READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU (HEREINAFTER “YOU” OR “CUSTOMER”) UNDERSTAND EACH PROVISION OF THIS AGREEMENT.
“Customer” shall mean the person or entity registering for Services under this Agreement and any affiliate of such person or entity.
“Zingle” shall mean Bryte Light Enterprises, LLC, a California limited liability company doing business as Zingle.
“Device” shall mean the Zingle hardware that enables Customer to receive and process orders or requests.
“Service” shall mean the system whereby Customer is able to accept text requests through a text messaging service from its consumers using the Device.
The initial Term of this Agreement shall begin upon the receipt of the Device (the “Effective Date”) and shall end upon expiration of the account type selected by Customer. After the initial Term ends, this Agreement shall automatically renew on a month-to-month basis at the then current published monthly rate until either party gives thirty (30) days written notice pursuant to the termination provision below.
GRANT OF LICENSE
Subject to the terms and conditions of this Agreement, Zingle grants Customer during the Term a personal, the nonexclusive, nontransferable right and license to use the Proprietary Property, as defined herein below, solely in connection with the Device and Services (the “License”).
By accepting the terms of this Agreement, Customer expressly waives any right it may have to a jury trial or class action lawsuit in connection with this Agreement. Customer further understands its remedies are limited as set forth herein. Customer agrees that it will work with Zingle in good faith for a period of sixty (60) days to resolve any disputes that may arise under this Agreement (the Waiting Period”). To the extent the parties are unable to resolve their dispute within such sixty (60) day period; either party may initiate arbitration proceedings. In order for Customer to initiate arbitration proceedings, You must send a letter requesting arbitration and describing your claim to Zingle Corporate at 2262 Carmel Valley Road Suite F, Del Mar, 92014. The parties agree any such arbitration shall be filed and heard with the San Diego, California chapter of the American Arbitration Association (AAA). Nothing herein shall limit or otherwise comprise Zingle’s right to initiate collection proceedings or otherwise enforce any rights to which it may be entitled under this Agreement immediately upon the event giving rise to the action. For claims of less than Seventy Five Thousand Dollars ($75,000), the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for claims over Seventy Five Thousand Dollars ($75,000), the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. An arbitrator may award any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under Seventy Five Thousand Dollars ($75,000) provided the notice and good faith negotiation requirements were attempted as contemplated above, the prevailing party in the arbitration shall be entitled to the recovery of its reasonable attorneys’ fees and costs.
LICSENSE CANCELLATION PERIOD / TERMINATION
Upon any termination or cancellation of this Agreement, Customer shall immediately pay Zingle all fees for the remaining Term of this Agreement or any subsequent extension thereof, and shall return any Device and accessories Licensed under this Agreement in good condition and working order. In the event that this Agreement is terminated or cancelled for any reason and Customer fails to return the Device or returns the Device in any condition other than good condition and working order, in addition to charging Customer for the remaining Term of this Agreement, Customer authorizes Zingle to immediately charge, and Customer agrees to pay, the sum of Two Hundred Seventy Five Dollars ($275.00) per Device. Either party may terminate this Agreement at any time after the end of the initial Term with thirty (30) days prior written notice delivered to the other party.. Zingle may interrupt or terminate this Agreement with or without cause without notice for any reason. Notwithstanding the foregoing, if this Agreement terminated without cause, Zingle will issue Customer, upon request, a credit equal to a pro-rata adjustment of the monthly fee, not to exceed Customer’s then current monthly rate. Zingle’s liability to Customer for termination of this Agreement is limited solely to the credit set forth above. Zingle is hereby granted by Customer a security interest in the Device and all replacements, substitutions and proceeds there from to secure payment of the unpaid portion of the Agreement fees and all other sums due under this Agreement and hereby authorizes Zingle to file any and all financing statements signed only by Zingle to perfect the security interest in the Device herein granted in accordance with the Uniform Commercial Code.
BILLING, PAYMENT TERMS & LATE PAYMENT CHARGES
Customer agrees to the pricing set forth at the time of this Agreement; that all fees due hereunder shall be paid on a monthly basis and billing shall commence upon the Effective Date. At the end of the initial Term, Customer agrees to pay the currently published monthly rate on a month-to-month basis until Customer signs a new agreement. Customer authorizes Zingle to charge the credit card account, Automatic Check Handling or Direct Billing provided to it for start-up fees, monthly fees and all other charges or fees contemplated under this Agreement. Monthly charges are billed one month in advance and there is no proration of such charges if the Agreement is terminated. Additional charges may apply for additional copies of Customer’s bill or for detailed information about Customer’s usage of the Device. If the Device is lost or stolen, Customer must contact Zingle immediately to report the Device lost or stolen. Zingle will take into account the information provided by the Customer to evaluate on an individual basis whether grounds exist for financial restitution. Customer also remains responsible for paying the monthly fee if the Agreement is suspended for nonpayment.
All payments shall be made without claim of set-off or reduction for any purposes whatsoever. Customer agrees that for amounts not paid by the due date, Zingle may charge, and Customer agrees to pay, a late payment charge equal to 1.5% of the balance carried forward to the next bill, unless limited by state law, in which case the late payment charge shall be the maximum permitted charge. Should it become necessary to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover from the other party all reasonable attorneys’ fees and court costs.
DISHONORED CHECKS AND OTHER INSTRUMENTS
Zingle will charge Customer Thirty Dollars ($30) or the highest amount allowed by law, whichever is less, for any check or other instrument (including credit card charge backs) tendered by Customer and returned unpaid by a financial institution for any reason. Customer agrees to reimburse Zingle for the fees of any collection agency, which may be based on a percentage at a maximum of 33% of the debt, and all costs and expenses, including reasonable attorneys' fees, Zingle incurs in such collection efforts.
CHANGES TO TERMS AND RATES
Zingle may change any terms, conditions, rates, fees, expenses or charges regarding this Agreement at any time following the initial Term. Zingle will provide Customer with notice of such changes (other than changes to governmental fees, proportional charges for governmental mandates or administrative charges) either in Customer’s monthly bill or separately. If Zingle increases Customer’s rate, Zingle will disclose the change at least one billing cycle in advance and Customer may terminate this Agreement provided Customer’s written notice of termination is delivered to Zingle within thirty (30) days after the first bill reflecting the change.
LICENSE SERVICE LIMITATIONS, LIMITATION OF LIABILITY & INDEMNIFICATION
Limitations of liability set forth herein govern unless they are prohibited by applicable law. Customer understands that Service may be interrupted, delayed terminated or otherwise limited for a variety of reasons, including environmental conditions, unavailability of radio frequency channels, system capacity, priority access by National Security and Emergency Preparedness personnel in the event of a disaster or emergency, coordination with other systems, Device modifications and repairs, and problems with the facilities of interconnecting carriers. Use of the Device and License may not include the ability to receive international text messages. Zingle may send "alerts" via SMS to Customer’s Device. These are courtesy alerts. There is no guarantee Customer will receive them. Zingle does not guarantee Customer uninterrupted use of the Service. Zingle makes no warranty, express or implied, of merchantability or fitness for a particular purpose, suitability, or performance regarding the Service, License or Device, and in no event shall Zingle be liable, whether or not due to its own negligence, for any: (a) act or omission of a third party; (b) mistakes, omissions, interruptions, errors, failures to transmit, delays, or defects provided by or through this Agreement ; (c) any damage or injury arising under this Agreement; (d) claims against Customer by third parties; or (e) damage or injury caused by a suspension or termination of this Agreement by Zingle. Notwithstanding the foregoing, if the Service is interrupted for twenty four (24) or more continuous hours by a cause within Zingle’s control, it will issue Customer, upon request, a credit equal to a pro-rata adjustment of the monthly fee for the time period during which the Service was unavailable, not to exceed Customer’s then current monthly rate. Zingle’s liability to Customer for any Device or Service failures is limited solely to the credit set forth above.
To the fullest extent permitted by law, Customer hereby releases, indemnifies and holds Zingle and its officers, directors, employees and agents harmless from and against any and all claims of any person or entity for damages of any nature arising in any way from or relating to, directly or indirectly, this Agreement, the Device, Service or License provided by Zingle or any person's use thereof, including claims arising in whole or in part from the alleged negligence of Zingle, or any violation by Customer of this Agreement. This obligation shall survive termination of this Agreement. Zingle shall not be liable for any consequential or special damages or for loss, expense or damage directly or indirectly arising from this Agreement or use of the Device. Customer accepts full and complete responsibility for any and all inability to use the Service or Device, either separately or in any combination with any other device, for loss of profits, business interruption, loss of business information, corruption or loss of data, failures to receive any data, revenue cost of capital, cost of purchased or replacement device or claims of its customers.
PROPRIETARY PROPERTY & ASSIGNMENT
Customer acknowledges the design, software, functionality and other intellectual property integrated into and with the Device and the phone number, service contract and any other agreement assigned to the Device is and shall remain at all times the sole and proprietary property of Zingle (“Proprietary Property). Customer is strictly prohibited from using the Proprietary Property for any purpose other than as provided in this Agreement and is strictly prohibited from sublicensing, directly or indirectly in any manner or way, the Proprietary Property to any person for any purpose. Customer’s use of the Zingle text back confirmation feature is limited to promotion of Customer or Customer’s brand. Customer is strictly prohibited from promotion of any third party brand, company, product or service. Additionally, Customer is prohibited from the reselling of the text back confirmation feature in any capacity including trade, barter or similar exchange without the prior written permission of Zingle. Customer and its authorized users shall use the Device only in compliance with all applicable laws. Customer shall not, during or after the Term of this Agreement, create derivative works, copy, reverse engineer, reverse compile or disassemble any process or technologies in or associated with the Service, Proprietary Property, License and/or Device, or otherwise attempt to analyze any steps, processes or recreate the Service Proprietary Property, License and/or Device or any aspect thereof in any way. Customer may not assign this Agreement in whole or in part without obtaining the prior written consent of Zingle and any attempted assignment of the Device, License or Proprietary Property is void.
Zingle warrants that the Device will be free from defects in material and workmanship so long as Customer is current with monthly payments as set herein. Should defects covered by this warranty appear prior to the end of the Term, Zingle shall have the option of repairing or replacing the Device at its own expense. Customer warrants and agrees that such repair or replacement shall be Customer’s sole and exclusive remedy. Commencement of the warranty period occurs on the Effective Date and shall continue through the Term. However, Zingle is not obligated to provide warranty service until all terms of payment have been met, and no default by Customer has occurred. It is understood that any warranty provided herein does not cover damages to or failure of the Device caused by, but not limited to, misuse, negligence, accident, theft or unexplained loss, abuse, connections to direct current, fire, flood, wind, earthquake acts of God or public enemy. If any wiring, installation, repair or alteration of the Device, including any additions, moving or equipment and program changes is performed by anyone other than Zingle or its authorized representatives without Zingle’ prior written consent, this warranty will be void. If Zingle is required to restore the Device to good operating condition for any of the reasons set forth above, such service will be charged to Customer in accordance with Zingle’s standard hourly/material rates. Zingle grants and assigns to Customer the benefit of any warranties or guarantees provided to Zingle by the manufacturer of the Device to the extent is has the right to do so.
If Zingle is prevented from performance of any part of this Agreement by reason of strike, flood, riot, fire, unavailability of materials or supplies, or any other casualty or any other cause of whatever nature that is beyond the control of Zingle and cannot be overcome by means of responsible diligence and without unusual expense, Zingle shall be excused from such performance during continuation of any such happening so long as such event(s) shall continue to prevent such performance. This Agreement shall be deemed suspended so long as the extent that any such cause shall prevent the performance of Zingle of its obligations. Zingle shall under no circumstances be liable for damages whether special, consequential or otherwise for delivery, installation or suspension of Service.
AUTHORITY OF AGENTS
Zingle’s salespersons or agents shall have no authority to make representations not included within this Agreement and are therefore not binding. This Agreement may not be changed, altered or modified except in writing signed by the party against whom enforcement of such a change would be sought.
PLACE OF USE
Customer shall keep the Device at its place of business as specified herein. Customer covenants and agrees not to allow the use of the Device by other than the employees of Customer and covenants and agrees not to rent or sublet the Device or any part thereof to others for their own use.
TITLE TO PERSONAL PROPERTY
All Devices and any telephone numbers associated therewith shall remain personal property and the title thereto shall remain exclusively with Zingle. Customer shall keep the Device free from any and all liens and encumbrances. Customer shall give Zingle immediate notice of any attachment or other judicial process, liens or encumbrances affecting the Device and indemnify and hold Zingle harmless from any loss or damage caused thereby. In the event Customer becomes subject to a voluntary of involuntary bankruptcy proceeding, becomes insolvent or is otherwise unable to pay its bills as they become due, this Agreement shall automatically terminate and Customer shall immediately discontinue use of the Device and arrange for its immediate return to Zingle.
Notices and Customer Communications
You may contact our Customer Care by calling 1-877-946-4536 or by writing to: Zingle Customer Relations, 2262 Carmel Valley Road Suite F, Del Mar, 92014. Notices from Zingle to you are considered delivered when sent to your Device or by email or fax to any email or fax number you provided to Zingle, or three (3) days after mailing to your billing address. For multi-line accounts, a “Primary Telephone Number” may be assigned to your account for the purpose of receiving notices from Zingle, as well as for other purposes. If you would like to designate a Primary Telephone Number, please contact Zingle directly. Notices from you to Zingle are considered delivered when you send an email with receipt of confirmation, or three (3) days after mailing to the addresses above.
This Agreement makes up the complete agreement between Customer and Zingle and supersedes any and all prior agreements and understandings relating to the subject matter of this Agreement. If any provision of this Agreement is found to be unenforceable by a court or agency of competent jurisdiction, the remaining provisions will remain in full force and effect. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration clause; if that prohibition is found to be unenforceable, the arbitration clause (but only the arbitration clause) shall be null and void. Zingle may assign this Agreement, but Customer may not assign this Agreement without Zingle’ prior written consent. This Agreement shall be governed by, interpreted, and enforced in accordance with the laws of the State of California, excluding its conflict of laws or principles thereof. In the event that any legal action becomes necessary to enforce or interpret the terms of this Agreement, the parties agree that such action shall be exclusively held in San Diego County, California and the parties hereby submit to the jurisdiction of a court or tribunal within San Diego County.
In any event, Zingle reserves the right to contact Customer by any means regarding customer service-related notifications or other such information.