FREE TRIAL AGREEMENT FOR KICKFIRE LIVE LEADS
This FREE TRIAL AGREEMENT FOR KICKFIRE LIVE LEADS (the "Agreement") is a legal contract between you ("USER") and VisiStat, Inc., a California corporation doing business as KICKFIRE, ("KICKFIRE"). The Agreement governs USER's use of certain KICKFIRE services as described below. USER's use of these services is conditional on USER's acceptance of and agreement with each of the terms of this Agreement by clicking the "I AGREE" button in the manner provided below. Any person entering into this Agreement on behalf of any business or other entity represents that s/he is of legal age to form a binding contract and has full legal authority to enter into this Agreement. KICKFIRE and USER may also be referred to as "Party" and/or "Parties" below. It is therefore agreed as follows:
- KICKFIRE SERVICES
- Subject to the terms and conditions of this Agreement and for so long as it is in effect, KICKFIRE will provide USER with the use of KICKFIRE's proprietary real time KickFire LIVE Leads and Analytics services, tools and programs provided by KICKFIRE on a free trial basis (collectively referred to as the "Services"), as made available on KICKFIRE's then-current Services web site for users. KICKFIRE reserves the right to modify, add to, cancel and delete from the Services in any manner and at any time without notice in its sole discretion.
- Access and use of the Services are limited to USER's lawful business purposes and must be conducted in a way that conforms to all federal, state, local and foreign applicable laws, regulations, treaties and ordinances, including without limitation those pertaining to privacy and restrictions on and/or requirements for data use and/or disclosure, data protection and similar matters. It is further provided that the Services, in whole or in part, may not be directly or indirectly accessed or used by or on behalf of USER to design, develop, or in any other way create the concepts, specifications and/or content of any product or service that is similar to, a derivative work of and/or an effective market substitute for (i) the Services and/or (ii) any other KICKFIRE products and services of any kind then in existence, in whole or in part.
- USER may not permit third parties to engage in any activities permitted under this Section. USER's rights under this Agreement are personal, limited to USER alone and, except as expressly provided herein, indivisible, nontransferable and non-assignable.
- USER will not modify, create derivative works of, copy, reverse engineer, reverse assemble or reverse compile the Services or any of their components nor will USER use any mechanical, manual, electronic, or other methods to trace, de-compile, dis-assemble, or identify the source code of any software components of the Services, in whole or in part.
- USER will not use the Services in conjunction with (1) any unlawful (whether by statute, contract or otherwise) automated data collection methods, spiders, robots, crawlers, data mining tools, scrapers and the like or (2) any spamming, sending viruses or other harmful code or engaging in any denial of service and/or other attacks or unlawful, fraudulent, invalid or deceptive actions of any kind. Notwithstanding any other provisions of this Agreement, KICKFIRE may, without notice or liability to USER, immediately terminate this Agreement if it has reasonable cause to suspect that USER has engaged in any USER conduct prohibited under this Section 1.
- The Services do not include, nor will USER have any rights to access or use, any new KICKFIRE products or services as defined by KICKFIRE in its sole discretion, whether identified by new names or otherwise, even if the same are related to and/or enhancements of the Services.
- REGISTRATION PROCESS - To sign up for or receive the Services, USER must submit or maintain on file with KICKFIRE certain registration data, as requested by KICKFIRE's online registration form for the Service. Registration information must be true and accurate. KICKFIRE reserves the right, in its sole discretion, to refuse any registration or Services activation request for any reason or no reason, and will not be obligated to provide or continue any Services to USER.. By signing up and/or registering for services, trials, subscription or any offerings, paid or free of charge, USER agrees to be added to KICKFIRE's promotional mailings and e-mail updates.
- DURATION AND CANCELLATION OF TRIAL SERVICES - Unless stated otherwise on KICKFIRE's Web pages, trial Services will be provided for a period of seven (7) days from the date of Services activation or Two Hundred and Fifty Thousand (250,000) page views (whichever occurs first). NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, KICKFIRE RESERVES THE UNCONDITIONAL RIGHTS TO REFUSE TO PROVIDE USER WITH THE SERVICES AND/OR CANCEL ANY AND ALL OF USER'S RIGHTS TO USE THE SERVICES IMMEDIATELY AND WITHOUT NOTICE, WITH OR WITHOUT CAUSE AND IN ITS SOLE DISCRETION, FOR REASONS OF ITS CONVENIENCE. This Agreement will terminate automatically and without notice if USER violates any terms or conditions of this Agreement. Sections 4, 5, 6, 7, 8, 9,10 and 11 will survive any cancellation of the Services, expiration or termination of this Agreement.
- REPRESENTATIONS AND RELATED MATTERS. AS A CONDITION OF RECEIVING ANY SERVICES, USER PROMISES, REPRESENTS, AND WARRANTS THE FOLLOWING.
- All of the registration information USER supplies to KICKFIRE belongs to USER or USER is licensed/has permission to use it or is a valid agent for such information's owner, and is true, complete, and accurate. USER will notify KICKFIRE of any changes to USER's registration data within 72 hours of any such changes, by updating the USER account information on KickFire.com.
- USER will safeguard USER's user name and password by not disclosing USER's password to any third party, and USER assumes legal and financial responsibility for any and all harm or liability attributable to USER or any other person accessing USER's account or any Services with USER's user name and password;
- USER will not copy, sell, redistribute, license, sublicense, or otherwise transfer USER's account, Code or any materials provided to USER in connection with the Services, to any third party without KICKFIRE's written consent;
- USER will treat any and all consumer information gathered for or transmitted to USER via the KICKFIRE Website or Services in an ethical lawful manner and will not engage in any spamming, sending viruses or other harmful code or engaging in any denial of service and/or other attacks or unlawful, fraudulent, invalid or deceptive actions of any kind;
- SOLE AND EXCLUSIVE REMEDY - If USER is dissatisfied with any portion of any Service, USER's sole and exclusive remedy is to cancel USER's account or USER's subscription to the given Services according to this Agreement. No refunds or obligations are inferred or available.
- PROPRIETARY RIGHTS AND RELATED MATTERS
- Title to and ownership of the Services and all of its software and other components, in whole and in part and whether in electronic, printed, or other forms and including without limitation all revisions, enhancements, extensions, translations, know-how, patents, patent rights, copyrights, processes, business methods, business models, moral rights, trade secrets, privacy rights, publicity rights, logos, designs, trademarks, trade names and all other U.S. and foreign intellectual property rights and interests of any kind in and/or associated with the Services in any and all forms, are and will remain the sole and exclusive property of KICKFIRE and its licensors and USER acknowledges and agrees that it has no express or implied rights or interests in any of the same except as stated in this Agreement. Except as stated in this Agreement, USER will have no rights of any kind in or to the Services. The rights granted in this Agreement do not include any rights under patents of third parties.
- USER and others on its behalf may from time to time provide suggestions, error corrections, improvements, enhancements, comments or other feedback (collectively "Feedback") to KICKFIRE with respect to the Services and/or other matters. It is agreed that all Feedback will be deemed given voluntarily and without expectation of receiving anything in return. Feedback, even if designated as confidential by USER, will be the sole property of KICKFIRE and will not create any confidentiality or other obligation of KICKFIRE. KICKFIRE is at all times free to use, disclose, sell, reproduce, license and otherwise distribute, and exploit all Feedback as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
- KICKFIRE agrees that all USER registration information, site usage information and statistics, tracking data and Website visitor usage information captured during USER's use of the Services (the "Services Data") are USER's property. USER hereby grants to KICKFIRE a worldwide, perpetual, irrevocable, fully paid, license to use, display, publish or sell the Services Data so long as the Services Data is aggregated with other data gathered from KICKFIRE's other USERs and no personally identifiable information of USER will be disclosed in connection with KICKFIRE's use, display, publication or sale of the Services Data.
- The Services rely on the use of a KICKFIRE supplied, specific and custom code ("Tag") placed in USER Web page(s). Subject to USER compliance with all the terms of this Agreement, KICKFIRE grants USER a non-exclusive, limited, duration, revocable, non-transferable, non-sublicenseable worldwide right to use the Tag supplied to USER by KICKFIRE in connection with the Services solely for USER's personal or internal business purposes. USER agrees to follow all related instructions and restrictions provided by KICKFIRE. In addition, USER agrees that at the termination of Services or this Agreement for any reason, USER will cease the use of the Services, the Tag and all other KICKFIRE Technology. USER further agrees to remove the Tag from all of its Web pages. USER AGREES THAT KICKFIRE WILL NOT BE RESPONSIBLE FOR ANY MALFUNCTIONS, ERRORS, DATA INACCURACIES OR IMPROPER RESULTS OF ANY KIND ATTRIBUTABLE TO USE OR LACK THEREOF OF ANY TAG, WHETHER USED CORRECTLY, INCORRECTLY AND/OR BY UNAUTHORIZED OR UNSUPPORTED USE OF ANY TAG.
- LIMITATIONS OF WARRANTY AND LIABILITY. ALL OF THE PROVISIONS OF THIS SECTION 7 WILL APPLY EXCEPT TO THE EXTENT PROHIBITED BY LAW. ALL EXPRESS, STATUTORY AND/OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS, QUIET ENJOYMENT, SATISFACTORY QUALITY, FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR TRADE USAGE, ARE EXPRESSLY DISCLAIMED AND EXCLUDED. KICKFIRE WILL NOT BE LIABLE TO USER OR ANY THIRD PARTIES CLAIMING THROUGH USER EXCEPT TO THE EXTENT THAT SUCH LIABILITY IS EXPRESSLY STATED IN THIS AGREEMENT. THE SERVICES ARE MADE AVAILABLE FOR USER'S ACCESS AND USE IN "AS IS" CONDITION WITHOUT ANY WARRANTIES OF ANY KIND THAT THEY WILL BE ERROR-FREE, WILL OPERATE CONTINUOUSLY, WILL BE FREE OF HARMFUL CONTENT, WILL BE SECURE, OR THAT DATA PROVIDED WILL BE CURRENT. KICKFIRE WILL NOT BE LIABLE OR OBLIGATED IN ANY MANNER FOR ANY CONSEQUENTIAL, ECONOMIC, PUNITIVE OR INDIRECT DAMAGES OR LOST REVENUE, LOSS OF GOODWILL, DAMAGE TO REPUTATION, LOST PROFITS, LOSS OF USE, LOST DATA, COST OF SUBSTITUTE SERVICES OR ANY INVESTMENTS OR EXPENSES OF USER IN CONNECTION WITH THIS AGREEMENT, EVEN IF KICKFIRE HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. IN NO EVENT WILL KICKFIRE BE LIABLE OR OBLIGATED IN ANY MANNER TO USER OR OTHERS FOR ANY AMOUNT IN EXCESS OF THE SUM OF ONE HUNDRED DOLLARS ($100.00 U.S.) , INCLUDING WITHOUT LIMITATION ANY AND ALL LIABILITY ARISING FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCT AND/OR SERVICE LIABILITY, AND ANY OTHER STATUTORY, CONTRACT, TORT AND/OR ANY OTHER THEORIES OF LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE. THIS SECTION ALLOCATES THE RISKS BETWEEN THE PARTIES, IS REFLECTED IN THE ECONOMIC TERMS OF THIS AGREEMENT, IS AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES AND WILL BE EFFECTIVE NOTWITHSTANDING THE FAILURE OF PURPOSE OF ANY ESSENTIAL AND/OR OTHER REMEDY HEREIN.
- INDEMNITY OF KICKFIRE. USER will indemnify and hold harmless KICKFIRE and its officers, directors, employees, contractors and representatives, from all losses, damages, liabilities, costs, expenses, and reasonable attorney's fees paid and/or incurred by these parties as a result of any demand, claim, suit, award or judgment arising from (1) USER's access to and/or use of the Services; (2) USER's breach of any terms or conditions of this Agreement or applicable law and (3) any disputes and/or legal process of any kind between USER and any third party.
- IMPORT AND EXPORT COMPLIANCE. USER will not exercise its rights under this Agreement in violation of any United States statute or regulation, including without limitation regulations of the United States Department of Commerce and the United States Office of Export Administration, the International Traffic in Arms Regulations and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control.
- GOVERNING LAW AND DISPUTES. The Services are sponsored and managed by KICKFIRE in the state of California, USA. The laws of the state of California govern this Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws. This Agreement is deemed to have been executed and fully performed at San Jose, California. The United Nations Convention on Contracts for the International Sale of Goods (1980) is excluded from application to this Agreement. USER agrees that any dispute, claim, controversy, action at law or in equity arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, will be determined by confidential arbitration in San Jose, California, except that, to the extent that (1) USER has in any manner violated or threatened to violate KICKFIRE's Intellectual Property Rights, KICKFIRE may seek injunctive or other appropriate relief in any state or federal court in the state of California or elsewhere and (2) any claims with a monetary value within the jurisdiction of the small claims courts of Santa Clara County will be subject to such jurisdiction and venue. With respect to Sections (1) and (2) above, USER irrevocably consents to exclusive jurisdiction and venue in such courts. Any arbitration arising out of or related to this Agreement will be conducted by JAMS by a single arbitrator in accordance with the expedited procedures stated in the JAMS Comprehensive Arbitration Rules and Procedures as those rules exist on the effective date of this Agreement, including Rules 16.1 and 16.2 of those rules. The arbitrator is to be a retired judge at any available location of JAMS in Santa Clara County with substantial experience in intellectual property matters. The parties may agree on the arbitrator, but if they cannot agree within thirty (30) days of the submission of any claim to JAMS, then a retired judge will be selected by JAMS. The conclusion of the arbitrator will be in accordance with applicable law, in writing and will be binding and final. The arbitrator's award may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement will be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. Any changes to this arbitration policy will only be effective as to disputes that arise after such changes go into effect.
- GENERAL PROVISIONS. (a) No agency, partnership, joint venture, or employment is created between KICKFIRE and USER by this Agreement. Neither Party has any authority, express or implied, to create any obligation or responsibility on behalf of the other Party. The Parties are for all purposes independent contractors. (b) No waiver, amendment, or modification of any provision of this Agreement will be effective unless in writing and signed by the Party against whom its enforcement is sought. No failure or delay by either Party in exercising any right or remedy under this Agreement, except as provided herein, will operate as a waiver. (c) If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, unlawful, or invalid, such provision will be deemed modified to eliminate the invalid portion and as so modified will be deemed a part of this Agreement. (d) This Agreement is the entire agreement of the Parties for the subject hereof and supersedes all oral or written proposals, purchase orders and discussions relating to this Agreement and all prior courses of dealing or industry customs. Neither Party has made this Agreement in reliance on any representations of fact or opinion not expressly stated herein. (e) Each person electronically signing this Agreement in the manner provided below represents that he or she has requisite authority to do so. (f) All notices, demands or consents given under this Agreement (except for routine operational matters which may be conducted via email between appropriate personnel) will be in writing and will be deemed given when delivered personally, or five days after deposit in the United States mail (certified or registered mail), or three days after being sent by overnight courier, to the receiving Party at its then-current mailing address (Attn: President) or at such other address given by either Party to the other in writing. (g) This Agreement will be binding on the Parties' legal representatives, successors and permitted assigns. USER may not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of KICKFIRE.
BY CLICKING BELOW, USER ACKNOWLEDGES HIS/HER/ITS UNDERSTANDING OF AND AGREEMENT WITH ALL OF THE ABOVE TERMS AND CONDITIONS.