Terms of Use – Snappy Kraken [DEV]

SNAPPY KRAKEN, LLC

END USER LICENSE AGREEMENT
Last updated January 2, 2020

This End User License Agreement, including the Order Form which by this reference is incorporated herein (this “Agreement”), is a binding agreement between SNAPPY KRAKEN, LLC (“Snappy Kraken”) and the person or entity identified on the Order Form as the Adviser or entity of the Snappy Kraken Platform (“Adviser”).

SNAPPY KRAKEN PROVIDES THE PLATFORM SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT ADVISER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON/CHECKING THE “ACCEPT” BOX ON THE ORDER FORM YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT ADVISER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (i) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (ii) IF ADVISER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF ADVISER AND BIND ADVISER TO ITS TERMS. IF ADVISER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, SNAPPY KRAKEN WILL NOT AND DOES NOT LICENSE THE PLATFORM TO ADVISER AND YOU MUST NOT ACCESS THE PLATFORM.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR ADVISER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT ADVISER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF SNAPPY KRAKEN’S SOFTWARE.

1. DEFINITIONS. For purposes of this Agreement, the following terms have the following meanings:“Content” means the output generated by the Platform which is a combination of Snappy Kraken’s Original Content and Adviser’s proprietary information submitted to the Platform, e.g. biographical information, customer lists, prospect lists, investment philosophy, historical results, etc. that are specific to the Adviser (“Adviser IP”).“Documentation” means user manuals, technical manuals, and any other materials provided by Snappy Kraken, in printed, electronic, or other form, that describe the access, operation, use, or technical specifications of the Platform.“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.“License Fees” means the License Fees, including all taxes thereon, paid or required to be paid by Adviser for the license granted under this Agreement.“Order Form” means the order form filled out and submitted by or on behalf of Adviser, and accepted by Snappy Kraken, for Adviser’s purchase of the license for the Platform granted under this Agreement.“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.“Platform” means the Snappy Kraken Platform for which Adviser is purchasing a license, as expressly set forth in the Order Form.“Territory” means the geographical territory selected by Adviser during the sales process.
  “Third Party” means any Person other than Adviser or Snappy Kraken.
2. LICENSE.
  1. Subject to and conditioned upon Adviser’s payment of the License Fees and Adviser’s strict compliance with all terms and conditions set forth in this Agreement, Snappy Kraken hereby grants to Adviser a non-exclusive, non-transferable, non-sublicensable limited license during the Term to use the Platform and the Content in the Territory, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement.
  2. All code, scripts, landing pages, pre-written emails and other content (“Content”) provided by Snappy Kraken remain the property of Snappy Kraken. Modifications or extensions of Snappy Kraken’s Embedded Content by Adviser or its agents does not create any rights in Adviser in such modified Embedded Content. Adviser’s right to use Snappy Kraken’s Embedded Content terminates with the termination of any License to the Platform granted by this Agreement.
3. TERRITORY.
  1. Snappy Kraken licenses the Platform to Adviser for use exclusively within a designated Territory. Except as permitted in Subsection 3(b), Snappy Kraken will not grant licenses to use the Platform in the selected territory to any other individual or entity other than Adviser as long as this Agreement remains in effect. Adviser agrees not to advertise Snappy Kraken campaigns or materials outside of the Territory, with the exception of their existing prospect and customer email lists and social media followers, and further agrees that advertising Snappy Kraken campaigns or materials outside of the Territory may result in immediate termination of the License granted hereunder.
  2. Upon not less than thirty (30) days written notice to Adviser, Snappy Kraken may grant licenses to use the Platform to other individuals or entities within the Territory.
4. USE RESTRICTIONS. Adviser shall not, directly or indirectly, without Snappy Kraken’s prior written consent, which Snappy Kraken may grant or withhold in its sole discretion:
  1. use the Platform beyond the scope of the license granted under Section 2;
  2. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Platform or any part thereof, provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Adviser, with access to or use of the Platform; provided that nothing in this Agreement is intended to prevent Adviser or its agents from creating Content for use with the Platform, or from modifying the Content provided by Snappy Kraken;
  3. copy, re-use, adapt, modify or re-purpose any of the Content;
  4. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Platform or any part thereof;
  5. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Platform, including any copy thereof;
  6. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform, or any features or functionality of the Platform, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
  7. use the Platform in violation of any law, regulation, or rule; or
  8. use the Platform for purposes of competitive analysis of the Platform, the development of a competing software product or service, or any other purpose that is to the Snappy Kraken’s commercial disadvantage.
5. RESPONSIBILITY FOR USE OF PLATFORM. Adviser is responsible and liable for all uses of the Platform through access thereto provided by Adviser, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Adviser is responsible and liable for all actions and failures to take required actions with respect to the Platform by Adviser or by any other Person to whom Adviser may provide access to or use of the Platform and/or Documentation, whether or not such access or use is permitted by or in violation of this Agreement. Adviser acknowledges and agrees that it operates in a regulated industry and assumes all responsibility for compliance with applicable rules and regulations of federal, state, and industry self-regulatory bodies such as FINRA.
6. SNAPPY KRAKEN COLLECTION AND USE OF INFORMATION.
  1. Adviser acknowledges that Snappy Kraken may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Platform and about equipment on which the Platform is installed or through which it otherwise is accessed and used, through:
    1. the provision of maintenance and support services; and
    2. security measures included in the Platform as described in this Section 6.
  2. Adviser agrees that the Snappy Kraken may use such information for any purpose related to any use of the Platform by Adviser or on Adviser’s equipment, including:
    1. improving the performance of the Platform or developing Updates; and
    2. verifying Adviser’s compliance with the terms of this Agreement and enforcing the Snappy Kraken’s rights, including all Intellectual Property Rights in and to the Platform.
  3. All information Snappy Kraken collects through or in connection with this Platform is subject to Snappy Kraken’s Privacy Policy. By accessing the Platform and providing information to or through the Platform, Adviser consents to all actions taken by Snappy Kraken with respect to Adviser’s information in compliance with the Privacy Policy.
7. INTELLECTUAL PROPERTY RIGHTS.
  1. Snappy Kraken’s Intellectual Property Rights. Adviser acknowledges and agrees that the Platform is provided under license, and not sold, to Adviser. Adviser does not acquire any ownership interest in the Platform under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Snappy Kraken and its vendors and service providers reserve and shall retain its/their entire right, title, and interest in and to the Platform and all Intellectual Property Rights arising out of or relating to the Platform, except as expressly granted to the Adviser in this Agreement. Adviser shall promptly notify Snappy Kraken if Adviser becomes aware of any infringement of the Snappy Kraken’s Intellectual Property Rights in the Platform and fully cooperate with Snappy Kraken, at Snappy Kraken’s sole expense, in any legal action taken by Snappy Kraken to enforce its Intellectual Property Rights.
  2. Adviser’s Intellectual Property Rights. Snappy Kraken does not acquire any ownership interest in the Adviser’s IP under this Agreement, or any other rights thereto, other than to use the same to generate campaigns via the Platform for exclusive use by Adviser. Snappy Kraken will not sell, transfer, license or otherwise exploit the Adviser IP. Upon termination of the license granted hereunder, Snappy Kraken will return and/or delete or destroy any Adviser IP in its possession within thirty (30) days following the termination date.
8. THIRD PARTY MATERIALS. The Platform may display, include or make available third party content (including data, information, Platforms and other products services and/or materials) or provide links to third party websites or services, including through third party advertising (“Third Party Materials “). Adviser acknowledges and agrees that Snappy Kraken is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Snappy Kraken does not assume and will not have any liability or responsibility to Adviser or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to Adviser and Adviser accesses and uses them at entirely at Adviser’s own risk and subject to such Third Parties’ terms and conditions.
9. PAYMENT. All License Fees and Support Fees are payable in advance in the manner set forth in the Order Form and are non-refundable. Any renewal of the license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full.
10. TERM AND TERMINATION.
  1. The initial Term of this Agreement and the License granted hereunder commences on the Commencement Date set forth on the Order Form and continues for twelve (12) months. Thereafter, the Agreement and License granted hereunder will continue on a month-to month basis until terminated by either party.
  2. Adviser may terminate this Agreement at any time by following the procedure set forth on the website used to access the Platform. If Adviser terminates the Agreement prior to the end of the Initial Term, Adviser will be charged a $400.00 Early Termination Fee, which is in addition to any License Fees already paid by Adviser. Termination by Adviser will not result in the refund of any License Fee regardless of the date of termination relative to the most recent payment. If Adviser terminates this Agreement at any time other than the last day of the last day of the month for which Adviser has paid License Fees, Adviser may opt to continue to use the Platform for the balance of the month.
  3. Snappy Kraken may terminate this Agreement, effective upon written notice to Adviser, if Adviser, materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured fifteen (15) days after Snappy Kraken provides written notice thereof.
  4. Snappy Kraken may terminate this Agreement, effective immediately, if Adviser files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
  5. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Adviser shall cease using the Platform. No expiration or termination shall affect Adviser’s obligation to pay all Adviser Fees and Support Fees that may have become due before such expiration or termination or entitle Adviser to any refund.
  6. Termination will not limit any of Snappy Kraken’s rights or remedies at law or in equity.
11. EXCLUSIVE REMEDY, AND DISCLAIMER/WARRANTY DISCLAIMER.
  1. THE PLATFORM IS PROVIDED TO ADVISER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SNAPPY KRAKEN, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE SNAPPY KRAKENS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE SNAPPY KRAKEN PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE ADVISER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
  2. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
    1. IN NO EVENT WILL SNAPPY KRAKEN OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE SNAPPY KRAKENS OR SERVICE PROVIDERS, BE LIABLE TO ADVISER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE PLATFORM; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE SNAPPY KRAKEN WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. IN NO EVENT WILL SNAPPY KRAKEN OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE SNAPPY KRAKENS OR SERVICE PROVIDERS, BE LIABLE TO ADVISER FOR ANY CLAIM BASED ON THE BUSINESS RESULTS OR PERFORMANCE, OR LACK THEREOF, OF THE Content GENERATED BY THE PLATFORM.
    3. IN NO EVENT WILL SNAPPY KRAKEN’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE SNAPPY KRAKENS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE SNAPPY KRAKEN UNDER THIS AGREEMENT FOR (i) THE PLATFORM OR (ii) UP TO TWELVE (12) MONTHS OF THE SPECIFIC SERVICES, THAT IS OR ARE THE SUBJECT OF THE CLAIM.
    4. THE LIMITATIONS SET FORTH IN SECTION 11(a) AND SECTION 11(b) SHALL APPLY EVEN IF THE ADVISER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE
  3. REGULATORY COMPLIANCE. ADVISER ACKNOWLEDGES THAT ADVISER IS ENGAGED IN AN INDUSTRY THAT IS REGULATED BY MULTIPLE STATE AND LOCAL REGULATORY BODIES. SNAPPY KRAKEN HEREBY DISCLAIMS ALL RESPONSIBILITY FOR ADVISER’S COMPLIANCE WITH APPLICABLE FEDERAL, STATE, LOCAL, AND INDUSTRY REGULATORY BODIES. ADVISER WILL INDEMNIFY SNAPPY KRAKEN AND HOLD SNAPPY KRAKEN HARMLESS FROM AND AGAINST ANY LOSS, COST, DAMAGE, OR EXPENSE, INCLUDING WITHOUT LIMITATION LEGAL FEES AND EXPENSES, WITH RESPECT TO ANY CLAIM OR ACTION BROUGHT AGAINST SNAPPY KRAKEN BY A REGULATORY BODY OR THIRD PARTY BASED ON ADVISER’S USE OR MISUSE OF THE PLATFORM OR THE Content GENERATED FOR SNAPPY KRAKEN BY THE PLATFORM.
12. Miscellaneous.
  1. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in each case located in the City of Tampa and each party irrevocably submits to the non-exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
  2. Snappy Kraken will not be responsible or liable to Adviser, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Adviser equipment, loss and destruction of property, or any other circumstances or causes beyond Snappy Kraken’s reasonable control.
  3. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 12(c).
  4. This Agreement, together with the Order Form, all annexes, schedules, and exhibits attached hereto and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Adviser and Snappy Kraken with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
  5. Adviser shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Snappy Kraken’s prior written consent, which consent Snappy Kraken may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Adviser (regardless of whether Adviser is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Snappy Kraken’s prior written consent is required. No delegation or other transfer will relieve Adviser of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 12(e) is void. Snappy Kraken may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Adviser’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
  6. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
  7. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  8. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  9. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Order Form and all Annexes, Schedules, and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
  10. Third-party lists of email addresses are prohibited from use with Snappy Kraken. This includes purchased or rented lists, and lists scraped from third-party sources including public websites. Any contacts added to Snappy Kraken must have been collected entirely by the Adviser.

The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.