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Pebbler License Agreement 3/27/2008
Pebbler License Agreement 3/27/2008
1 Preamble
IMPORTANT INFORMATION: PLEASE READ THIS LICENSE CAREFULLY BEFORE ACCEPTING IT. BY CLICKING "I ACCEPT," YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS LICENSE, DO NOT USE THE aPEBBLE SOFTWARE OR ACCESS THE SITE.
This License Agreement (the Agreement) is by and between you (you or the Pebbler) and aPebble, Inc. a Massachusetts Limited Liability Company, with offices at 175 Portland Street, Boston, Massachusetts 02114 (we, us or aPebble) (each a Party and together the Parties). This Agreement is effective as of the date You click "I accept" to this Agreement (the Effective Date).
2 Recitals
A. aPebble has developed a software application (the aPebble Software) that is designed to allow a licensee to create a networking website to organize participants with respect to political campaigns, political candidates, political issues, social action issues, and other issues of common interest.
B. The Software allows a licensee to create a graphical user interface (a Pebble), and then display this Pebble on a website (the Hosted Pebble Site) located on servers maintained by aPebble or its service provider (the Host Servers, as defined more fully below).
C. The aPebble Software is also designed to allow a licensee to host political and social action discussions on the licensee's Pebble, and to organize individuals and groups around topics of public debate and interest via this Pebble.
D. The Host Servers store users' contact information, as well as information exchanged over the Hosted Pebble Site (collectively, User Data, as more fully defined below), and make this User Data available to the licensee for organizing and other purposes allowed by the privacy policy selected by the licensee.
E. Finally, as the licensee-aPebble relationship is governed by this Agreement, the licensee-end user relationship is governed by a privacy policy and set of terms of use, that are provided by aPebble, but that permit a level of customization by the licensee.
F. You wish to employ our aPebble Software to create and maintain a Pebble, and to engage in the range of organizational and other activities our Software and business model permit, on the terms and conditions set out below.
G. aPebble is willing to grant you these rights and permissions, on the terms and conditions set out below.
NOW, THEREFORE, aPebble and you hereby agree as follows:
3 1. Definitions.
The following capitalized terms have the meanings indicated below. Additional terms are defined in context elsewhere in this Agreement.
aPebble Software or Software. The terms aPebble Software or Software means the software application provided to You by aPebble under this Agreement, including all related code, designs, schema, Documentation, and similar materials. The terms "aPebble Software" or "Software" includes Updates and Error Corrections (if any).
Baseline Software. The term Baseline Software means (i) the aPebble Software in its standard form, as originally made available to you (or as modified by Updates or Error Corrections under this Agreement), and (ii) the standard Pebble generated by this Software, before any modification or changes. By way of clarifying example, and not by way of limitation, Baseline Software does not include Customizations.
Customization. The term Customization shall mean any modification or change made to the Baseline Software or the standard Pebble by you or by your consultants. The term Customization includes all text, images, or other content you (or your vendors or Users) post to or include on the standard Pebble.
Documentation. The term Documentation means all materials, whether in written, graphical or other reproducible format, that aPebble provides to the Pebbler to assist the Pebbler in using the aPebble Software or the Hosted Pebble Site.
Effective Date. The term Effective Date has the meaning set out in the introduction to the Recitals.
Emailing Services. The term Emailing Services has the meaning provided in Emailing Service.
Error Correction. The term Error Correction has the meaning provided at Standard Maintenance.
Host Servers. The term Host Servers means the servers that are operated by aPebble (or by its service provider(s)) and that host your Pebble and associated User Data.
Hosted Pebble Site or the Site. The term Hosted Pebble Site or the Site means the website that meets the following three criteria: (i) the site houses Your Pebble, (ii) the site's URL is the Supplied Domain Name that You have provided, and (iii) the site is hosted on the Host Servers.
Intellectual Property Rights. The term Intellectual Property Rights means any rights or interests (whether owned by or licensed to a Party), including but not limited to, those rights existing under common law or other non-statutory rights to the inventor or creator, now or in the future, under patent law, copyright law, trademark and unfair competition law, data and database protection law, trade secret law, and any and all similar proprietary rights or other rights to exclude. The term "Intellectual Property Rights" means such rights as they exist as of the Effective Date, and all such rights as subsequently acquired by a Party, to the extent reasonably necessary to perform under this Agreement.
Interested Recipients. The term Interested Recipients has the meaning provided in Emailing Structure.
Non-Standard User Agreement. The term Non-Standard User Agreement means any User Agreement that does not constitute our Standard User Agreement in all material respects.
Participant. The term Participant has the meaning set out in the Standard Privacy Policy.
Pebble The term Pebble means the program file that generates the appearance of the webpages designed by the Pebbler using the aPebble Software. A Pebble consists of the content, color, typeface, font, general layout, and other aesthetic and cosmetic qualities of such webpages . The term "Pebble" expressly excludes the aPebble Software, and excludes for example, aPebble Software code and architectural and design elements.
Pebbler. The term Pebbler means the person or entity that clicks "I accept" to this Agreement and that is thus the licensee of the aPebble Software. The aPebble Software is designed to prohibit a user from creating a Pebble unless he or she first clicks "I accept" to this Agreement.
Pebbling. The term Pebbling has the meaning set out in the Standard Privacy Policy.
Permitted Website Hosting Service. The term Permitted Website Hosting Service has the meaning provided in Hosting Service Levels.
Personal Information. The term Personal Information means a natural person's name, mailing address, email address, telephone number, cell phone number, and other information by which that person can be identified.
Standard Format. The term Standard Format means industry standard format, as determined by aPebble, in its reasonable discretion.
Standard Privacy Policy. The term Standard Privacy Policy means our standard Privacy Policy, available at http://apebble.com/1/privacy.php
Standard Server Capacity. The term Standard Server Capacity has the meaning provided in Server Capacity.
Standard Terms of Use. The term Standard Terms of Use means the Terms of Use available at http://apebble.com/1/terms.php
Standard User Agreements. The term Standard User Agreements means our Standard Privacy Policy and Standard Terms of Use.
Subscription Fee. The term Subscription Fee has the meaning provided in Selection of Payment Model.
Supplied Domain Name. The term Supplied Domain Name has the meaning provided in Domain Name.
Term. The word Term has the meaning set out in Term.
Updates. The term Updates has the meaning provided in the Standard Maintenance for Baseline Software Schedule.
User. The term User means visitors that access Your Pebble. More precisely, "Users" consist of Site Visitors, Participants, and Pebblings, as such terms are defined in the Standard Privacy Policy.
User Agreements. The term User Agreements means a website privacy policy and terms of use. The term "User Agreements" includes, but is not limited to, user agreements that constitute our Standard Privacy Policy and/or our Standard Terms of Use.
User Data mean any information submitted by or gathered from a User, including (i) his or her Personal Information, (ii) information concerning communications with or inquiries to the Pebbler or to other Users via the Pebble, (iii) tracking or other information indicating the User's preferences or other online conduct at the Hosted Pebble Site, and (iv) any other "clickstream" or related information concerning the User exchanged via the Pebble.
We, us, our. The terms we, us, and our mean aPebble.
You or Your. The terms you or your and You or Your mean the Pebbler.
4 Your Authority
4.1 Authority to Act on Behalf of an Organization
The person who clicks "I accept" and thereby agrees to this Agreement may be (a) an individual, acting on his or her own behalf in creating and posting a Pebble (an Individual Signer), or (b) an individual acting in a representative capacity (a Representative Signer) on behalf of a political organization, a community group, a corporate entity, or other collection of individuals (an Organization) that collectively will create and manage the Pebble. During the registration process, you will be prompted to state whether you are an Individual Signer or a Representative Signer and, if you are a Representative Signer, you will be asked to identify the Organization on whose behalf you are acting. If you click "I accept" as a Representative Signer, you represent and warrant that you in fact have requisite authority to bind your Organization to this Agreement.
4.2 Authority to Act On Behalf of, and Statements concerning, Candidates and Other Public Figures.
You may wish to create a Pebble that refers to a political candidate, or other individual of public interest. If this individual has not given you permission to create such a Pebble, you should seek legal advice from your attorney as to potential issues or legal liabilities that may arise from such a Pebble. For example, if you were to falsely claim that your Pebble was the "official website of candidate XYZ," this claim would likely create legal liability, and potentially expose you to damages and other sanctions. Moreover, although it is permissible to make a range of statements concerning candidates and other public figures, there are categories of statements (for example, untrue or reckless statements) that may similarly create liability.
5 Registering Your Pebble
During the registration process, we ask for and confirm certain information as to each Pebble. The following explains the legal significance of the referenced components of our registration process. The registration process must take place for each Pebble you wish to deploy.
5.1 Personal Information
To become a Pebbler, you must provide us with the Personal Information we request during the registration process. In addition, you must identify any Organizations on whose behalf you are acting. For example, if you are registering on behalf of the "Committee to Re-Elect Candidate XYZ for State Representative," then you must indicate this during the registration process, as more fully explained in Authority to Act on Behalf of an Organization. Any Personal Information you provide as Pebbler will be protected under our Standard Privacy Policy.
5.2 Domain Name
During the registration process, one of two methods will be used to select the domain name for your Pebble, as follows:
5.2.1 Pebbler-Supplied Domain Name
Under the Pebbler-supplied method, you identify the domain name under which you want your Hosted Pebble Site to appear (the Pebbler-Supplied Domain Name). We will link your Supplied Domain Name with the Hosted Pebble Site at no extra charge. You will continue to bear the responsibility for maintaining this Domain Name, including the responsibility for paying registration fees and charges associated with use of the Supplied Domain Name.
5.2.2 aPebble-Supplied Domain Name
Under the aPebble-supplied method, we will provide you with a domain name of your choosing within the aPebble domain, at no extra charge (subject to Disputes (an aPebble-Supplied Domain Name). After the 12 month anniversary of the Effective Date, or upon thirty (30) days prior written notice, you agree that you will convert to a Pebbler-Supplied Domain Name, upon our request.
5.2.3 Disputes
If there is a dispute concerning an aPebble-Supplied Domain Name, you hereby agree (i) that aPebble shall be entitled to resolve this dispute in its sole judgment and without liability to you (or to demand expedited mediation or arbitration of such dispute); and (ii) that such resolution, in aPebble's sole judgment, may entail modifying your aPebble Supplied Domain Name or re-assigning to another the aPebble Supplied Domain Name.
5.3 System Requirements
We have designed the aPebble Software to rely on standard system requirements, and these requirements can be found at http://apebble.com/system-requirements.php (the System Requirements). You are responsible for meeting these System Requirements, and your Users are similarly responsible for meeting these Requirements.
5.4 Pebbler Password; Precautions
Upon registration, we will provide you with the tools to create a password, associated with the user id you provide. Please keep in mind that we will treat anyone who uses your password as "you." We will provide this user with the rights and privileges that we provide to you, and we will hold you responsible for the activities of anyone using your password. Therefore, we recommend that you maintain your user id and password in confidence, and that you refrain from disclosing this information to anyone who might "pretend" to be you with respect to the aPebble Software or your Pebble. We also ask that you notify us immediately if you suspect that someone is using your password in this manner.
5.5 DMCA Immunity
The Digital Millennium Copyright Act (the DMCA) provides scoped immunity from claims for copyright infringement to certain internet service providers and others, provided these actors comply with the DMCA's requirements. The DMCA's provisions might be applicable, for example, if a User posted materials on your Pebble that infringe a third party's rights under the Copyright Act. The Standard Terms of Use are structured to provide you with grounds for claiming immunity from such claims under the DMCA. To increase the strength of your claims to be entitled to such immunity, however, you must register your Pebble with the Copyright Office. It is your responsibility to complete this registration process, and you may do so by following directions at http://www.copyright.gov/onlinesp/.
6 Defining the aPebble-Pebbler Relationship
During the registration process, you will also define certain variable components in the aPebble-Pebbler relationship, as set out below:
6.1 Selection of Payment Model
We employ two payment models for our aPebble Software and the hosting services we provide (or provide through our vendors). During the registration process you will choose either (a) to pay our subscription fee, as specified in Payment of Active Subscription Fee, and provide your Pebble free of advertising (the Active Subscription Fee); or (b) to pay no subscription fee, and to provide your Pebble with advertising provided by our advertisers, as specified in Passive Subscription Fee) (we refer to this payment method as a Passive Subscription Fee). The term "Subscription Fee" means (i) the Active Subscription Fee and (ii) the Passive Subscription Fee. If you have elected to pay the Active Subscription Fee, and you fail to pay this Fee in a timely manner as provided in Subscription Fee, we reserve the right (without prejudice to other remedies), to convert your Pebble to a Passive Subscription Fee, and include Advertising on your Pebble.
6.2 Selection of Maintenance Level
We allow Pebblers to choose between two levels of maintenance: (i) standard maintenance, which is included in the Subscription Fee; and (ii) premium maintenance, which is charged in addition to our Subscription Fee, all as further described in Hosting and Maintenance. Maintenance is provided, as are all of our services, on a per Pebble basis.
6.3 Selection of User Agreements
We offer Standard User Agreements to govern (i) the treatment of Personal Information provided to you by your Users, and (ii) to create and structure the legal relationship between you and your Users in a manner consistent with the features, performance, and philosophy of our aPebble Software. You are not required to employ our Standard User Agreements, although you must include in any User Agreements that you employ the minimum terms set out in Rights in User Data. The effect on the Pebbler-aPebble relationship of your employing Non-Standard User Agreements is specified in Use of the Standard User Agreements, and the effect of our providing to you the Standard User Agreements in this manner is specified in No Legal Advice - Revisions to Standard User Agreements. During the registration process, you will indicate whether you wish to employ our Standard User Agreements, or whether you wish to create and employ Non-Standard User Agreements.
6.4 Selection of Optional Data Enhancement and Email Service
Our services include providing you with certain email services, and with certain enhanced data concerning Users (via vendors you contact directly), as specified in Data Enhancements and Email Service. These services are billed in addition to your Subscription Fee. During the registration process you determine which, if any, of these services you wish to select.
6.5 Changing Selections
We recognize that, over time, you may wish to change the selections you made during the registration process. You may change these selections by going to your "Pebble Essentials" page, and following the directions provided there for such changes. You should allow for at least thirty (30) days for changes to take effect, and we reserve the right to limit the number of changes a Pebbler makes during any one-year period. In addition, because payment of Fees occurs in advance of services, as set out in Fees, you should make any changes in a manner to accommodate this timing, as we will not pro rate Fees.
7 Acceptance and Testing Period
After completing registration, you will enjoy a period of up to thirty (30) days (commencing on the date you are first offered access to your Hosted Pebble Site) (the Acceptance Period) to test and evaluate the aPebble Software.
7.1 Discontinuance of Use; Refund
If you notify us, before expiration of the Acceptance Period, that you do not wish to continue your use, then (i) this Agreement will be deemed terminated in accordance with Termination for Convenience, (ii) we will refund to you all payments you may have made to us (other than the Set-Up Fee, which is non-refundable), and the Parties will proceed as set out in Effect of Termination.
7.2 Acceptance
This Agreement will continue in full force and effect if you notify us during the Acceptance Period that you wish to continue use, or if you do not contact us during the Acceptance Period concerning either acceptance or rejection of the aPebble Software.
8 Training Documentation
The Set-Up Fee includes the provision of Documentation. aPebble does not provide training apart from such Documentation, under this Agreement.
9 Customizing Your Pebble; Assistance
The aPebble Software allows you to create a range of modifications and to tailor your Pebble, within these limits, in the manner you choose (collectively "Customizations", as further defined in Customization). aPebble's services do not include assistance or support with respect to Customizations and associated strategies.
9.1 Treatment of Customizations; Take-Down.
Provided Customizations to your Site comply with limitations specified in the Documentation, and with the provisions of this Agreement, you will have sole control over your Customizations, and aPebble will not modify or alter your Site (except in connection with changes warranted in connection with improvements, or maintenance activities under Hosting and Maintenance). aPebble reserves the right to take-down non-compliant Customizations, as further provided in Pebbler Conduct Obligations.
9.2 Uploading
With our aPebble Software, you have the ability to electronically transmit and upload Customizations directly to your Hosted Pebble Site. Our services do not include uploading Customizations on your behalf.
9.3 Consulting Assistance
Consultants that may be available to provide and work with you regarding Customizations are listed at http://apebble.com/consultants.php. aPebble's affiliate, Alipes CME, Inc. (located at http://alipescme.com), for example, provides such services with respect to Pebbles, and aPebble Software.
10 Hosting and Maintenance
aPebble offers uniform service levels for hosting, and two levels of maintenance: (i) standard, and (ii) premium, as follows:
10.1 Standard Maintenance and Hosting
In consideration of your payment of Subscription Fees, you will receive hosting services and Standard Maintenance for your Pebble, as follows:
10.1.1 Hosting Service Levels
Subject to Server Capacity, aPebble will provide hosting for your Pebble, and the hosting service levels for Your Site shall be as set forth in the aPebble Hosting Service Levels Schedule. You understand and agree that aPebble may outsource hosting services to a vendor of its choice, provided such outsourcing complies with the Standard Privacy Policy (a Permitted Website Hosting Service).
10.1.2 Security
aPebble (or its Permitted Website Hosting Service) shall use reasonable efforts to prevent unauthorized access to the Hosting Servers, and to backup server sites. aPebble shall notify the Pebbler of any known security breaches or holes. Additional security obligations are set out in the aPebble Hosting Service Levels Schedule.
10.1.3 Standard Maintenance
aPebble shall provide maintenance and support for the aPebble Baseline Software as specified in the Standard Maintenance for Baseline Software Schedule.
10.1.4 Site Backup
Subject to Server Capacity, aPebble (or its Permitted Website Hosting Service) shall maintain a backup copy of the Hosted Pebble Site. The Site shall be backed-up no less than once per week. In the event that service is interrupted to your Hosted Pebble Site, the applicable backup server shall be activated in a timely manner, so that public access to the Hosted Pebble Site may continue with reasonably minimal interruption.
10.1.5 Support to Pebblings
The Pebbler shall provide first level-support to its Pebblings. Where necessary or advisable (in aPebble's sole judgment), aPebble will provide second-level and other support directly to a Pebbling, and the Pebbler shall reasonably facilitate such support.
10.2 Premium Maintenance
Premium Maintenance consists of Standard Maintenance with the additional premium services specified on the Premium Maintenance for Baseline Software Schedule. In consideration of your payment of Premium Maintenance Fees, aPebble shall provide you with Premium Maintenance services for the aPebble Baseline Software.
10.3 Server Capacity
Maintenance and hosting service levels set out in at Hosting and Maintenance are based on the assumption that your Pebble (i) will not exceed 100 web pages; (ii) will not include more than 1000 Users in total; and (iii) will not average more than 10,000 hits per 24 hour period (the Standard Server Capacity). If your Pebble exceeds the Standard Server Capacity, you will either reduce demand or pay the Extra Server Capacity Fee set out in Increased Server Capacity Fee.
11 User Data
The following Section governs the use of User Data. Rights in User Data governs the Parties' respective rights in such Data.
11.1 Access Controls for Pebblings
The aPebble Software allows the Pebbler to set access controls for its Pebblings. These controls are designed to allow a Pebbling to access Personal Information concerning only those Participants that are relevant to the Pebbling's responsibilities. You are responsible for setting these access controls, and ensuring that they are consistent with your User Agreements.
11.2 Downstream Recipients
Your selection of a Privacy Policy under Selection of User Agreements determines the scope of permissible transferees of User Data. You agree to strictly comply with the Standard Privacy Policy you have selected, and to ensure that any recipients of User Data downstream from you are bound to respect and comply with the Standard Privacy Policy to which you have agreed.
11.3 Data Transfers; Format
The aPebble Software allows Pebblers to download the data from their Pebbles in comma separated values format.
12 Data Enhancements and Email Service
At your option (exercised as provided in Defining the aPebble-Pebbler Relationship, you may obtain data-enhancement services, as follows:
12.1 Emailing Service
In consideration of your payment under Emailing Services Fees, aPebble will provide you with the following email services (the Emailing Services). To request these Services, follow the instructions on your Pebbler Essentials Page. You will note that the charges for an Emailing Services increase as the number of addresses you request increases.
12.1.1 Structure.
The Emailing Service functions as follows: (i) you provide to aPebble a list of email addresses that complies with Pebbler Email List Compliance (the Pebbler Email List); (ii) in connection with your Pebbler Email List, you provide draft text for the email you wish us to send (the Target Email) that complies with Content for Target Email; (iii) we will add to the Target Email header information, "opt-in" or "opt-out" information, and other information as provided in Opt-In Opt-Out; and (iv) we will then forward the final Target Email via your Pebble to the addresses listed on your Pebbler Email List. You will then be able to monitor the responses to the Target Email on your Pebble.
12.1.2 Pebbler Email List Compliance
You remain responsible for ensuring that the Pebbler Email List you provide to us for Target Emails complies with the CAN-SPAM Act (15 U.S.C. sect. 7701-7713) and with other applicable State and Federal law. You agree to update your Pebbler Email List with information provided under Opt-In Opt-Out. aPebble reserves the right (but assumes no obligation) to independently confirm the information on your Pebbler Email List based, for example, on information obtained under Opt-In Opt-Out.
12.1.3 Initial Email and Later Email
The term Initial Email refers to the first Target Email we send to a recipient under this Emailing Service. If that recipient opts in to receiving further Target Email through this service (as provided in Opt-In Opt-Out), then subsequent email we send to this recipient under this Emailing Service are referred to as Later Email.
12.1.4 Purposes of Opt-In Structure
Our aPebble Software and our services are designed primarily for organizational political activities, and are not provided for bulk email purposes. Our Opt-In Structure (as defined below) is designed to further these purposes, and it is assumed that addressees on your Pebbler Email List will be motivated to take action and "opt in" to become involved in the organizational activities taking place on your Pebble.
12.1.5 Opt-In Structure Required for Initial Email; Opt-Out Structure Employed Thereafter.
For the initial Email, we will provide opt-in instructions and features (the Opt-In Structure). Under the Opt-In Structure, the recipient of the Initial Email will be offered a choice to opt in to receive additional email and/or to register as a Participant or Pebbling at your Pebble. If the recipient does not affirmatively opt in, in the manner specified in the Target Email (a Rejecting Recipient), then we will (i) notify you of this fact (to facilitate your compliance with Pebbler Email List Compliance); and (ii) use commercially reasonable efforts to affirmatively exclude this addressee from further Target Emails you may ask us to send under this Emailing Service. If the addressee opts in (an Interested Recipient), we will similarly notify you, and use commercially reasonable efforts to "flag" this addressee as an Interested Recipient in our records. For Later Email to such Interested Recipients, we will provide an opt-out structure, under which the Recipient will be deemed to consent to further Target Email unless the Recipient affirmatively opts out of such Email, in the manner specified in the Target Email.
12.1.6 Content for Target Email
For Initial Email, you will be entitled to include reasonable explanatory content (generally not to exceed 250 characters) and links concerning your Pebble. In an Initial Email, the majority of content will consist of our standard language explaining the Opt-In Structure. For Later Email, apart from an opt-out notice and other information defined in Opt-In Opt-Out, you will have wide discretion on content and links, subject to mutual agreement on pricing, as provided in Emailing Services Fees.
12.1.7 Overlapping Addressees
It may be that different Pebblers will request that we send Target Email to the same addressee. This addressee, for example, may be an Interested Recipient as to one Pebbler, and a Rejecting Recipient as to another Pebbler. It is our view that each of our Pebblers offers distinguishable Pebbles, and we will not as a general rule assume either (i) that an Interested Recipient for Pebbler XYZ is an Interested Recipient for Pebbler ABC, or (ii) that a Rejecting Recipient for Pebbler XYZ is a Rejecting Recipient for Pebbler ABC; except as may be required by law, or except if we believe (in our reasonable judgment) that an addressee's negative response to another Pebbler's Initial Email should apply to your proposed Target Email. In this case we will treat the addressee as a Rejecting Recipient as to your Pebble, and provide you notice in accordance with Opt-In Opt-Out.
12.2 Data Enhancement
You may also choose to obtain enhancements to your User Data, including, for example, telephone numbers associated with individual Users.
12.2.1 Relationship between this Agreement and Any Data Enhancement Vendor Agreement
If you choose to work with a Data Enhancement Vendor, your contract and legal relationship with that Vendor will be wholly independent from this Agreement, and the Pebbler-aPebble relationship. For example, if you have complaints concerning your Data Enhancement Vendor, you shall look solely to that Vendor for redress, and not to aPebble.
12.2.2 Selection of Data Enhancement Vendors
We have suggested Data Enhancement Vendors, in part, due to their ability generally to provide data in our Standard Format. We make no representations or warranties concerning the quality, propriety, security, or legality of the data they provide.
12.2.3 Additional Vendors.
If you would like to engage a data enhancement vendor that does not appear on our list of Data Enhancement Vendors, please contact us in accordance with Contact Us, to discuss possible integration between (a) our aPebble Software and (b) your proposed vendor's data formats and software.
13 The Pebbler-User Relationship
Your relationship with us will drive a number of features in your relationship with the Users of your Pebble. For example, the maintenance levels you have selected under Hosting and Maintenance will affect your Users' experience of your Pebble. To fairly and accurately set your Users' expectations concerning your Pebble, statements you make to your Users concerning the features, functionality, and performance of your Pebble should be consistent with the features, functionality, and performance established in this Agreement. We seek to accomplish this "consistency" goal by providing you with (i) a Standard Privacy Policy, and (ii) Standard Terms of Use (collectively, the Standard User Agreements). These Standard User Agreements provide a consistent set of expectations and obligations through (i) the aPebble-Pebber relationship and (ii) the Pebbler-User relationship, as follows:
11.1.Use of the Standard User Agreements. If you employ our Standard Privacy Policy and Standard Terms of Use on your Pebble, then the legal terms establishing the Pebbler-User relationship will conform to the terms that establish the aPebble-Pebbler relationship. In contrast, if you modify the Standard User Agreements, then your Users may be entitled to claim legal rights against you with respect to your Pebble that differ from, or exceed, the rights you may claim against us. Accordingly, we are not responsible for any changes, or for the effects caused by any changes, you may make to our Standard Privacy Policy and Standard Terms of Use.
13.1 No Legal Advice - Revisions to Standard User Agreements
aPebble does not provide legal advice and you expressly agree that the Standard Terms of Use and the Standard Privacy Policy do not constitute legal advice. Moreover, you acknowledge that the Standard Terms of Use and the Standard Privacy Policy may or may not meet applicable legal standards. If you believe that legal standards require other or different terms than those set out in our Standard User Agreements, then kindly notify us in writing. If we agree with your assessment (in our sole discretion), we will work to conform the Standard User Agreements to those legal standards.
14 Grant of Rights; Ownership
14.1 Grant of Rights to Pebbler
In consideration of Pebbler's payment of requisite Fees under Set-Up Fee) and Subscription Fee, under its Intellectual Property Rights and during the Term, aPebble hereby grants to Pebbler a non-exclusive, subscription-based, worldwide license to access and use the aPebble Software (i) for purposes of creating, modifying, and managing a single Pebble on the Hosted Pebble Site in the manner permitted by the Software; and (ii) for all other purposes allowed by the Software's intended end-user functionality, as to that single Pebble.
14.2 Sublicensing Rights
In addition, for the consideration set out in Grant of Rights to Pebbler and during the Term, aPebble grants to the Pebbler the right to sublicense to its Pebblings the Pebbler's rights under Grant of Rights to Pebbler, limited to the single Pebble that is the subject of this Agreement, and provided the Pebbler remains responsible for its Pebblings' compliance with the restrictions set out in this Agreement.
14.3 Ownership of Your Pebble
As between the Parties, you shall own the right, title and interest in and to the Pebble created by you (or your agents) including ownership of any rights in the Pebble under the Copyright Act, subject to the following:
14.3.1 Limitation to Your Pebble
Your rights in your Pebble do not extend to any components or functionality of the aPebble Software, aPebble contributions, or aPebble confidential information, and your rights under the Copyright Act (if any) in no event extend (a) beyond the literal text of the program file(s) that contain those components of your Pebble that can be exported without including portions of the aPebble Software code, or (b) beyond the visual presentation of your Pebble, obtained through print-screens of the pages of your Pebble.
14.3.2 Export of Your Pebble; Limitations
You understand that you may export some or all of the User Data from your Pebble in your discretion and at the frequency you desire under Data Transfers. You understand, however, that the structure of the aPebble Software may preclude you from exporting in a live, modifiable format other content on or available from your Pebble. You acknowledge, therefore, that you will likely be unable to export your complete, functioning Pebble to an environment unaffiliated with aPebble.
14.4 Your Grant of Rights To Us
You grant the following Intellectual Property Rights to us (in addition to those rights specified in Permission for aPebble To Employ Comments):
14.4.1 Grant Concerning Your Pebble
To allow aPebble to provide access your Hosted Pebble Site, you hereby grant to aPebble and its service providers a royalty-free, worldwide license to copy, distribute, display, and perform your Pebble for purposes of making the Pebble accessible on the Hosted Pebble Site to Users.
14.4.2 Grant Concerning Trademarks
The term Authorized Marks shall mean those Pebbler trademarks, service marks, trade names, or logos designated by the Pebbler for use in connection with the Pebble. The Pebbler hereby grants to aPebble a non-exclusive, royalty-free, sublicensable, worldwide license to display the Authorized Marks on the Pebble hosted in compliance with this Agreement. Any benefit or goodwill generated by such use of the Authorized Marks shall inure solely to the benefit of the Pebbler. To the extent that aPebble's exercise of rights under Promotions causes the display of an Authorized Mark, the Pebbler hereby permits such uses, consistent with Promotions.
14.5 Allocation of Rights in User Data
It is agreed and understood that the User's legal relationship with the Pebbler shall ultimately determine rights in fact of the Parties to User Data; provided, however, that any deviations from the below allocation of rights, if the Pebbler has employed Non-Standard User Agreements, shall constitute a breach of this Agreement.
14.5.1 Rights in User Data
As between the Parties, and except (i) for aPebble's rights under Anonymous Data, and (ii) for aPebble's rights to contact Pebblings under Communications with Pebblings, the Pebbler shall hold all rights in User Data.
14.5.2 Anonymous Data; aPebble's Rights
In consideration of the grant of rights to you set out in Grant of Rights, you hereby grant to aPebble a perpetual, irrevocable, sublicensable, non-exclusive license to copy, modify, aggregate, distribute, display, and otherwise exploit Anonymous Data (as such term is defined in the Standard Privacy Policy) to the maximum extent permitted by law. You agree to allow aPebble's access to the Hosted Pebble Site to permit the exercise of the rights set out in this Section, and you agree to structure the Pebbler-User relationship so that your Users grant such rights to us.
14.5.3 Communications with Pebblings
In consideration of the grant of rights to you set out in this Grant of Rights, you hereby grant to aPebble permission to access and use Personal Information of Pebblings in order (i) to provide certain technical support to our Pebblings, and (ii) for promotional and informational purposes concerning aPebble, in the manner permitted in Section 5 of the Standard Privacy Policy (“Site-Directed Personal Information”); provided, however, that (a) any such use by aPebble shall be subject to the Pebbling's right to opt out of receiving such communications by aPebble, and (b) aPebble makes available to such Pebblings a Privacy Policy that specifies (in addition to such opt-out rights) the Pebblings' data protection rights and aPebble's related obligations (the "aPebble Privacy Policy"). aPebble states that the current location of the aPebble Privacy Policy is http://apebble.com/apebble-privacy.php, and aPebble agrees to provide the Pebbler with prior written notice if aPebble changes the location of the aPebble Privacy Policy, to allow the Pebbler to so notify its Pebblings.
14.5.4 Rights in Enhanced Data
Your agreement with the Data Enhancement Vendor will govern your rights to any enhanced data this Vendor provides to you. This Agreement does not govern such rights.
14.6 Ownership - No Implied Licenses
You agree that, as between the Parties, aPebble owns the sole right, title and interest in and to the aPebble Software, including all associated Intellectual Property Rights. Any license granted under this Agreement must be expressly stated in this Agreement, and no license will be implied under this Agreement or based on any course of conduct. All rights and licenses not granted are reserved.
15 Fees
As set out in this Section, below, mandatory fees consist of (i) the Set-Up Fee, and (ii) the Subscription Fee. Optional fees for additional services consist of (iii) Emailing Services Fees; (iv) Premium Maintenance Fees; and (v) Increased Server Capacity Fees (items (i) through (v) are referred to collectively as the "Fees"). Each of these Fees is described below. The Fee Schedule lists the amount of these Fees.
15.1 Set-Up Fee
In consideration of aPebble's registration of your Pebble, you agree to pay to aPebble the one-time Set-Up Fee specified on the Fee Schedule. The Set-Up Fee shall be due on the date you click "I accept" to this Agreement.
15.2 Subscription Fee
During registration, you will select whether you (a) wish to pay the Active Subscription Fee, and present your Pebble free of advertisements, or (b) wish instead to allow advertisements to be placed on your Pebble, and "pay" the Passive Subscription Fee, which consists simply of allowing ads to be placed on your Pebble. Your Subscription Fee covers (i) your licensing rights under Grant of Rights; and (ii) hosting services and standard maintenance, as set out in Standard Maintenance and Hosting.
15.2.1 Payment of Active Subscription Fee
If you have selected the Active Subscription Fee, you agree to pay to aPebble the monthly Active Subscription Fee specified on the Fee Schedule. Your Active Subscription Fee is due in advance, on the first day of each month.
15.2.2 Passive Subscription Fee; Sufficiency of Advertising Traffic
If you have selected the Passive Subscription Fee, but your Pebble does not generate sufficient traffic to reasonably support our advertising model (in our reasonable judgment), then upon thirty (30) days notice we may either (a) require that you convert to Active Subscription Fees, or (b) terminate this Agreement under Termination for Breach, with a "hold" on your ability to re-start another Passive Subscription Fee Pebble.
15.3 Emailing Services Fees
If you have chosen to employ our Emailing Services under Emailing Service, you agree to pay to aPebble the Emailing Services Fee specified on the Fee Schedule. Payment of the Fee for our Emailing Services is due in advance of the Services.
15.4 Premium Maintenance Fee
If you have selected Premium Maintenance under Premium Maintenance, you agree to pay to aPebble the monthly premium maintenance fee (the Premium Maintenance Fee) specified in the Fee Schedule. Premium Maintenance Fees are due in advance, on the first day of each month.
15.5 Increased Server Capacity Fee
If you exceed the Standard Server Capacity, you agree to pay to aPebble the monthly Increased Server Capacity Fee specified in the Fee Schedule. The Increased Server Capacity Fee is due in advance, on the first day of each month.
15.6 Changes to Fees
aPebble agrees not to change your Subscription Fee for a one-year period commencing on the Effective Date. Other Fees aPebble shall be entitled to change on 30 days notice to you.
15.7 Payments Terms; Invoices
aPebble shall invoice all Fees monthly, and payment terms are net thirty (30) days following receipt of the invoice. Fees do not include, and the Pebbler shall pay, all sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement, except for taxes based on aPebble's net income. Where you have established an automatic payment plan, aPebble shall be entitled to debit your payment account simultaneously with forwarding you an invoice.
15.8 Late Payments; Conversion to Passive Subscription Fee
Interest shall run on late payments at the rate of one percent (1%) per month, commencing on the date the payment is due. In addition to charging such interest, and without prejudice to other remedies, if you are obliged to pay Active Subscription Fees, and you fail to pay such Fees, aPebble shall be entitled to convert your account to a Passive Subscription Fee account, as further provided in Selection of Payment Model.
16 Permission for aPebble To Employ Comments
During the Term, the Pebbler may choose to provide aPebble with comments or other feedback concerning its Pebble, concerning performance issues, concerning the aPebble Software or the Hosted Pebble Site, concerning User Agreements, or concerning other related issues (collectively, Comments). Under its Intellectual Property Rights, the Pebbler hereby grants to aPebble a perpetual, irrevocable, sublicensable, non-exclusive, royalty-free, worldwide license to use, copy, modify, distribute, display, perform, and otherwise exploit the Pebbler's Comments in connection with the aPebble Software. The Pebbler acknowledges that the rights granted in this section form an essential part of this Agreement's bargained-for consideration to aPebble.
Next: Mutual Representations and Warranties, Previous: Permission for aPebble To Employ Comments, Up: Top
17 Promotions
You agree that aPebble is entitled to copy, distribute, and display your Pebble (in digital, print, and other then-available media) for purposes of promoting aPebble's services, the aPebble Software, and services of aPebble affiliates (including Alipes CME, Inc.).
18 Pebbler Conduct Obligations
We have designed our aPebble Software and surrounding business model in a manner that, we believe, provides our Pebblers with a powerful tool to inform and organize individuals around matters of public interest. In providing you with this powerful tool, we seek to encourage (and enforce) your compliance with a reasonable "code of conduct." Consider the following scenario: a carpenter lends her tools to her neighbor, believing the neighbor will use them to efficiently build a new barn. The neighbor instead efficiently builds a battering ram, and knocks down his neighbor's barn. We seek to avoid this "bad neighbor risk" with our "code of conduct" set out below (the Pebbler Code of Conduct).
18.1 Pebbler Code of Conduct
In consideration of our grant of rights to you under Grant of Rights, you agree to comply with the following Pebbler Code of Conduct:
18.1.1 No Unlawful or Prohibited Transmissions
The Pebbler warrants that it shall not use the aPebble Software or the Hosted Pebble Site (a) to engage in any unlawful activities; or (b) to upload, email or otherwise transmit any images, material, or other content that is defamatory, intentionally false, unlawfully threatening, unlawfully harassing, illegal, obscene, abusive, or otherwise in violation of (i) this Pebbler Code of Conduct, or (ii) any guidelines posted on the Site, included in the Software, or set forth in the Standard Terms of Use or the Standard Privacy Policy.
18.1.2 No Infringement
The Pebbler warrants that it shall not infringe any third party's copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy. No material may be transmitted over the Website without the copyright owner's permission, or without a legitimate "fair use" justification for the transmittal.
18.1.3 No Malicious Code
The Pebbler warrants that it shall not transmit materials that contain any viruses, trojan horses, worms, time bombs, cancelbots, or other computer-programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information.
18.1.4 No Artificial Generation of Traffic
The Pebbler warrants that it shall not use the Website, or anything available on the Website, to artificially generate traffic or page links to a website or for any other purpose not expressly allowed under this Agreement or the Standard Terms of Use.
18.1.5 Data Enhancement Vendor Contracts
The Pebbler shall comply with the terms and conditions of any agreement it reaches with a Data Enhancement Vendor, to the extent such terms and conditions (or the data subject to such terms and conditions) are implicated by the Pebble or the Hosted Pebble Site.
18.1.6 No Interference with the Site or the Software
The Pebbler warrants that is shall not use the Hosted Pebble Site or the aPebble Software in a manner that could disable, overburden, or impair the Site or the Software or interfere with any other party's use and enjoyment of the Site or the Software. Such uses would include, for example, distributing or promoting material containing unauthorized solicitations, forwarding chain letters, and sending "spam" email.
18.1.7 No Unauthorized Access
The Pebbler warrants that it shall not seek to obtain access to any materials or information through "harvesting," "scraping," or through other means we have not intentionally made available to you through the aPebble Software or the Hosted Pebble Site.
18.1.8 Software Use Restrictions
The Pebbler warrants that it shall not: (i) modify or alter the aPebble Software (other than as the Software permits for purposes of creating and modifying Pebbles), (ii) prepare any derivative work incorporating the aPebble Software or the Hosted Pebble Site (with the standard for prohibited derivative works defined in accordance with then-current U.S. copyright law, patent law, or applicable trade secret law), (iii) duplicate the Documentation, (iv) sell, lease, license, sublicense or re-package the Software to any third party; or (v) decompile, disassemble or reverse engineer the Software, in whole or in part.
18.1.9 Terms of Use and Privacy Policy
The Pebbler warrants (a) that it will post and maintain User Agreements on its Pebble throughout the Term; and (b) that it will comply with the provisions set out in these User Agreements, and particularly those terms that address treatment and dissemination of Users' Personal Information. If the Pebbler adopts Non-Standard User Agreements, the Pebbler acknowledges that it does so with full understanding (a) of Section 11 (The Pebbler-User Relationship), and the risks the Pebbler fully assumes by deviating from the Standard User Agreements; and (b) of Rights in User Data, and its limits on the types of acceptable modifications to the Standard User Agreements.
18.2 Breaches of Pebbler Code of Conduct
Without prejudice to our other rights and remedies (all of which are expressly reserved), aPebble shall be entitled to take-down, remove, or otherwise disable any Customizations or activities in which you are engaging (to the extent within aPebble's control) that do not comply with the above Pebbler Code of Conduct, or that threaten (in aPebble's reasonable judgment) to violate this Code of Conduct. aPebble's rights under this Section are discretionary, and aPebble assumes no obligation whatsoever to police or otherwise monitor your conduct on the Hosted Pebble Site.
19 Mutual Representations and Warranties
19.1 aPebble Representations and Warranties
During the Term, aPebble warrants that the aPebble Baseline Software does not and shall not: (a) knowingly infringe the Intellectual Property Rights of any third party; (b) constitute defamatory speech, trade libel, or unlawfully threatening or unlawfully harassing speech; or (c) knowingly contain any viruses, trojan horses, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Personal Information.
19.2 Your Representations and Warranties
During the Term, the Pebbler represents and warrants (a) that Customizations present on its Pebble do not and shall not (i) knowingly infringe on the Intellectual Property Rights of any third party or any rights of publicity or privacy; or (ii) violate any law, statute, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising); and (b) that it will comply with the Code of Conduct set out in Pebbler Code of Conduct.
19.3 Mutual Warranty Disclaimers; Disclaimers Concerning Software
EXCEPT AS SET FORTH IN THIS SECTION Mutual Representations and Warranties, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION AND WITHOUT LIMITING THE ABOVE DISCLAIMERS, THE aPEBBLE SOFTWARE, THE HOSTED PEBBLE SITE, AND ALL ASSOCIATED SERVICES (EXCEPT AS PROVIDED IN aPebble Representations and Warranties) ARE PROVIDED "AS-IS." YOUR SOLE AND EXCLUSIVE RECOURSE WITH RESPECT TO CLAIMED ERRORS OR DEFECTS CONSIST OF YOUR RIGHTS UNDER Acceptance and Testing Period AND Hosting and Maintenance, AND aPEBBLE EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE OR THE SITE WILL MEET YOUR REQUIREMENTS, OR THAT THE USE OR OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE.
20 Indemnity
20.1 Mutual Indemnification
Each Party (the Indemnifying Party) shall defend the other Party (the Indemnified Party) against any third party claim, action, suit or proceeding arising out of any breach of the Indemnifying Party's representations and warranties set out in Mutual Representations and Warranties. Subject to Procedure for Indemnity, the Indemnifying Party shall indemnify the Indemnified Party for all losses, damages, liabilities and all reasonable expenses and costs incurred by the Indemnified Party in any such claim, action, suit or proceeding.
20.2 Limitations
Neither Party will be liable to the other for indemnification obligations under this section to the extent the claim or damage is caused by the party-seeking-indemnity's (i) failure to use corrections make available by the Indemnifying Party; or (ii) creation of unauthorized modifications to or misuse of the aPebble Software, the Pebble, User Data, or other material at issue.
20.3 Procedure for Indemnity
The Indemnifying Party's obligations are conditioned upon the Indemnified Party: (a) giving the Indemnifying Party prompt written notice of any claim, action, suit or proceeding for which the Indemnified Party is seeking indemnity; (b) granting control of the defense and settlement to the Indemnifying Party; and (c) reasonably cooperating with the Indemnifying Party at the Indemnifying Party's expense. An Indemnified Party is entitled to participate in any defense at its own expense with counsel of its own choosing.
21 Limitations on Liability
21.1 Consequential Damages Waiver
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR OTHER ECONOMIC LOSS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21.2 Limitation of Liability
EXCEPT FOR A CLAIM FOR INDEMNIFICATION MADE PURSUANT TO Indemnity, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY, IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT OF PAYMENTS DUE TO aPEBBLE FROM PEBBLER UNDER THIS AGREEMENT.
21.3 Basis of the Bargain; Failure of Essential Purpose
The Parties acknowledge that the Parties have set their prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this Agreement, and that the same form an essential basis of the bargain between the Parties. The Parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
22 Term
This Agreement shall commence on the Effective Date and continue for so long as Your remain current with requisite Fees unless and until it is terminated in accordance with Termination (the Term).
23 Termination
23.1 Termination for Convenience
You may terminate this Agreement for any reason provided (i) you give aPebble thirty (30) days prior written notice of your intent to terminate; and (ii) you pay aPebble in full for services through the effective date of termination.
23.2 Termination for Breach
In the event that the Licensee is in material breach of any obligation under this Agreement, aPebble may terminate this Agreement for cause by providing the Licensee with written notice (a "Notice of Breach"). Termination of this Agreement takes effect thirty (30) days after Licensee's receipt of the Notice of Breach, unless Licensee cures such breach within the 30-day period.
24 Effect of Termination
Upon expiration of the Term, or upon termination of this Agreement pursuant to Termination, the following provisions govern:
24.1 Cessation of Use
Upon termination or expiration of this Agreement, the Pebbler shall promptly cease all forward-looking use of the aPebble Software, and shall only use the Software as provided in Transition Period.
24.2 Transition Period
aPebble shall provide the Pebbler with a reasonable period of time (not to exceed thirty (30) days) within which to migrate its Pebble and User Data to another facility (the Migration Work). aPebble shall provide reasonable assistance in the Pebbler's Migration Work, but such efforts need not exceed the following (unless the Pebbler compensates aPebble under a separate, mutually agreeable migration services arrangement): (i) the downloading and provision to the Pebbler of the Pebble at issue, in native format; and (ii) the downloading and provision to the Pebble of User Data, in the Agreed Format.
24.3 Survival
The following Sections shall survive any termination or expiration of this Agreement:
- Ownership of Your Pebble
- Rights in User Data
- Anonymous Data
- Ownership - No Implied Licenses
- Permission for aPebble To Employ Comments
- Promotions
- Indemnity
- Limitations on Liability
- Survival
- General
25 General
25.1 Non-Solicitation
During the Term of this Agreement and for a period of twelve (12) months following the expiration or termination of this Agreement, Pebbler shall not, directly or indirectly, solicit or attempt to solicit for employment any persons employed by aPebble during the twelve (12) month period prior to Pebbler's solicitation or attempted solicitation.
25.2 Governing Law
This Agreement will be governed and construed in accordance with the laws of the Commonwealth of Massachusetts. Both Parties agree to submit to the exclusive jurisdiction of the State or Federal Courts in the Commonwealth of Massachusetts located in the judicial district in which aPebble resides.
25.3 Force Majeure
Neither Party shall be liable for any delay in performing its obligations under this Agreement if such delay is caused by circumstances beyond the Party's reasonable control, including without limitation, any acts of God, war, terrorism, floods, windstorm, labor disputes, changes in laws or regulations, or delay of essential materials or services. The Party not affected by the Force Majeure shall have the right to terminate this Agreement without penalty if the Party affected by the Force Majeure event is unable to resume full performance within sixty (60) days of occurrence of the event.
25.4 Severability; Waiver
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either Party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
25.5 Headings
Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.
25.6 References
A reference to a Section will include reference to all Sections junior to the referenced Section. Thus, a reference to "Section 2" will include reference to Section 2, Section 2.1, and Section 2.1.1, for example, and a reference to Section 2.1 will include reference to Sections 2.1.1 and 2.1.2.
25.7 Assignment
This Agreement shall inure to the benefit of and be binding upon the Parties' respective successors and assigns.
25.8 Notice
Any notices required or permitted hereunder shall be given to the appropriate Party at the address specified above or at such other address as the Party shall specify in writing. Such notice shall be deemed given: (i) if sent by hand, upon personal delivery to the recipient; (ii) if sent by facsimile, upon confirmation of receipt; (iii) if sent by certified or registered mail, postage prepaid, on expiration of the fifth (5th) day after the date of mailing; or (iv) if sent via email, upon receipt by the addressee.
25.9 Counterparts
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
25.10 Order of Precedence
The Parties agree that if a conflict arises between this Agreement and either the Terms of Use or the Privacy Policy, then the terms of this Agreement shall control.
25.11 Entire Agreement
This Agreement, including the schedules attached hereto, sets forth the entire understanding and agreement of the Parties and supersedes any and all oral or written agreements or understandings between the Parties as to the subject matter of this Agreement. It may be changed only by a writing signed by both Parties. Neither Party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
25.12 Contact Us
You may contact us for any reason at the following addresses:
Attention: Joe Samet, aPebble, LLC, 175 Portland Street, Boston, MA 02114
Phone: +1 (617) 303-1045
Email: info@apebble.com