Rezility Strategic Alliance Partner Terms of Use and Provider Agreement

LAST UPDATED DECEMBER 1, 2017

1. Scope; Service

(a)  Service.  Enterprise Technology Company LLC d/b/a Rezility and its affiliated entities (collectively, “Us”, “We”, or “Rezility”) provide platforms that will enable You, as a Strategic Alliance Partner (“Provider” or “You,” or in the possessive form, “Provider’s or “Your”), to upload via the Internet and distribute content to Rezility users (“Users” or “Rezility Users”) that is related to agreed upon services, programs, or goods that are offered within agreed upon geographic areas. Content may include graphics, hyperlinks, text, images, banners, videos and other content (“Content”) to be displayed to Rezility Users at Provider’s request.  Rezility and the Provider are collectively referred to as the “Parties.” You may create and manage content through Rezility’s web interface, and Rezility will deliver the Content on Your behalf to Users who have installed mobile applications or visit websites that contain Rezility’s proprietary software, tags, other technology, or otherwise are contractually within the Rezility network (the “Service”).  Your access and use of the Service is governed by this Provider Agreement and applicable law,  and must be consistent with the representations and promises that Rezility made to Rezility Users in the Rezility Terms of Use (“Rezility User Terms of Use”) and the Rezility Privacy Notice  (“Rezility User Privacy Notice”) on the Rezility website, located at www.rezility.com (the “Site”). This Provider Agreement includes the terms found on the signature page hereto.

(b)  Suspension of the Service. Rezility reserves the right to modify or discontinue, temporarily or permanently, the Service, or any features or portions thereof, without prior notice.  You agree that Rezility will not be liable for any modification, suspension or discontinuance of the Service, or any part thereof. This Provider Agreement does not alter in any way the terms or conditions of any other agreement You may have with Rezility for products, services or otherwise.

 

2. Account Registration and Site Terms

(a) Registration and Site Terms.  In order to access and use the Service, You must: (i) register for a Provider account (“Account”) by emailing support@rezility.com (ii) execute this Provider Agreement; and (iii) comply with this Provider Agreement, the Rezility User Terms of Use, the Rezility User Privacy Notice, and any other relevant terms that Rezility may publish from time to time. We may change any relevant terms from time to time and in the event of such changes, we will post a revised version on our website www.rezility.com and provide you with a notice via a feed notification so that you can consider whether you wish to continue utilizing the Rezility Service.   You must keep all information that You provide about You to Rezility updated, accurate, truthful, and complete at all times. You may access Your Account using the user name/password credentials (“Credentials”) either provided by Rezility or as registered by You.  You must protect Your Account Credentials and You are fully responsible for all use and activity of Your Account.  If You suspect any improper or unauthorized use of Your Account, Your Credentials, or any other security breaches, You must contact Rezility at privacy@rezility.com immediately.  You should carefully choose Your password and not include any personal or other information that may be easily guessed by another.  Any distribution by You of Your Credentials may result in termination of Your access to the Site or Service.  Rezility and You each have the right to terminate or suspend Your access to or use of the Service and the Site at any time, for any reason, with or without notice.

 

3. Privacy of RezilityTM Users and Providers

If Provider receives information about a Rezility User from a Rezility app, website, or portal, Provider will use the information in a manner that is consistent with this Agreement and the Rezility User Privacy Notice. If Rezility Users visit Provider’s website and are presented with Provider’s website privacy notice as required under this Agreement, then any information gathered from the Rezility User while on Provider’s website will not be subject to this Agreement or the Rezility User Privacy Notice.

Rezility asks Rezility Providers to provide certain information directly to Rezility when setting up a Provider Agreement and an Account. Rezility also collects information about Providers’ use of the Rezility Site for purposes of Site administration, but does not disclose the information to third parties.

 

4. License to Content

During the Term of this Provider Agreement, You grant to Rezility a limited, worldwide, royalty-free license to reproduce, distribute, display,  and otherwise use Your trademarks and the Content (including any trademarks therein) in connection with Rezility’s provision of the Service to Users designated by Provider, including, without limitation, copying and distributing Your trademarks and the Content to Rezility Users on applications and websites, and to third-party social media networks, in keeping with the purposes of this Agreement.

 

5. Content Delivery

Rezility will deliver Content on behalf of You to Users in accordance with the criteria established through this Agreement.  You shall specify the information necessary for Rezility to deliver the Content, which information may be changed by You from time to time.  Rezility does not control, endorse, or adopt any Provider Content.  Rezility is not responsible or liable in any manner for any Content You provide and undertakes no responsibility to update or review any Content. Rezility makes no warranty or guarantee that the Content will be delivered timely or will be delivered at all, and will not be liable for damages associated with any delay in or failure to deliver Content.

Rezility, in its sole judgment, reserves the right to reject or remove any Content if the Content materials, associated software code (e.g. pixels, tags, JS), or the website to which the Content is linked, do not comply with the Rezility User Terms of Use, the Rezility User Privacy Notice, or Community Guidelines, or this Agreement, or with any applicable law, regulation or other judicial or administrative order.

 

6. Consumer Data

Whenever Users click on or otherwise interact with Content, or a web page accessible to such Users after clicking on Content, You may be able to collect personal information directly from such Users, including User Volunteered Data (“Consumer Data”). For the purposes of this Provider Agreement, “User Volunteered Data” is personally identifiable information collected from individual Users through Content during delivery of Content through Rezility, where it is expressly disclosed to such individual Users that such collection is solely on behalf of Provider.

You must collect, use, and disclose Consumer Data solely in accordance with all applicable federal, state and local laws and rules, and judicial and administrative decisions. You are fully responsible for all collection, use, storage, or disclosure of Consumer Data by or on behalf of You and received by You.

You will not (a) attempt to decrypt or re-identify any hashed or encrypted Consumer Data You may receive from Rezility or the Rezility User; or (b) repurpose any Consumer Data that you receive from a Rezility User. “Repurpose” means to retarget a Consumer or append data to a non-public profile regarding a Consumer for purposes other than providing the goods or services that are the subject of the Content specified through the Rezility Service interface.

You represent and warrant that before authorizing the distribution of Content through Rezility, You will: (i) if the Content directs consumers in a way that enables You to collect Consumer Data, provide a clear, meaningful, and functional link to Your privacy policy within the Content to be distributed that describes Your data use and disclosure in relation to the Consumer Data collected, prominently displayed within the Content; and (ii) comply with all applicable data security and privacy laws, this Agreement, and the Rezility User Privacy Notice, with respect to use, disclosure, storage, and destruction of Rezility User data provided to you by Rezility through the Rezility Service.

 

7. Representations and Warranties

You represent and warrant to Rezility that: (i) You have the right and authority to publish and display the Content and to grant the rights granted herein; (ii) Your performance under this Provider Agreement will not violate any agreement or obligation between You and a third party or any applicable law, ordinance, or regulation or cause Rezility to be in violation of any agreement or obligation between Rezility and a third party or any applicable law, ordinance or regulation; (iii) Your use of Consumer Data received from the Rezility Service will not violate any provision of the Rezility User Privacy Notice nor violate any requirement in regards to Consumer Data;  (iv) the Content provided by You does not now nor will it in the future infringe upon or violate any Intellectual Property Right (as defined below) of a third party, including but not limited to any patent, copyright, trademark, trade secret, trade dress, mask work, moral right, right of attribution or integrity, or other intellectual property rights (collectively, “Intellectual Property Rights”) or non-proprietary right of any third party or violate Rezility’s User Terms of Use; (v) Content, and technology provided by You, do not violate any applicable third-party policies, including but not limited to, third-party platform policies (such as Google and Apple, as applicable); (vi) any Content or other technology provided does not (A) contain any virus, malware, or other harmful component or (B) collect any data beyond what is expressly agreed to by Rezility under this Provider Agreement and is not in violation of the Rezility User Privacy Notice or any applicable industry standards, including the Digital Advertising Alliance self-regulatory guidelines; (vii) You have not suffered any actual, probable, or reasonably suspected breach of any safeguards or of any other actual, probable, or reasonably suspected unauthorized access to or acquisition, use, loss, destruction, compromise, or disclosure of any information maintained on any of Your systems (“Security Breach”), or if any of Your systems has suffered one or more Security Breaches, You have fully disclosed each such Security Breach to Rezility; and (vii) You will implement and maintain reasonable security procedures and practices to prevent unauthorized access, use, modification, or disclosure of personal information of Rezility Users that You receive from Rezility through the Rezility Service.

 

8. Indemnification

(a) Indemnification.  You will defend, indemnify, and hold harmless Rezility, its affiliates, independent contractors, service providers and consultants, and its and their respective directors, officers, employees and agents, from and against any third party claims, suits or actions and any resulting damages, costs, liabilities, and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (i) Your use of the Site or the Service; (ii) Your violation of any terms of this Provider Agreement; (iii) Your collection, use or disclosure of Consumer Data; or (iv) any alleged or actual infringement, violation, or misappropriation of any Intellectual Property Rights or non-proprietary right, by You, Your agents or representatives related to any Content provided by You.

(b) Procedure.  Rezility will provide You prompt written notice of any such claim and such information and assistance as You may reasonably request to help You defend such claims; provided that You pay or reimburse all of the costs and expenses reasonably incurred by Rezility in connection with any assistance requested by You under this Section.  You will not have any right to settle any such claim without Rezility’s written consent, if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Rezility or otherwise requires Rezility to take or refrain from taking any material action (such as the payment of fees).  Rezility will have the right to approve the counsel selected by You for defense of any such claim, which approval will not be unreasonably withheld.  Rezility may, at its option and expense, participate in, or take control over, the defense of any such claim and, in such event, You will provide such authority, information, and assistance related to such proceeding as Rezility may reasonably request to protect Rezility’s interests.  You will maintain adequate insurance to cover risks that are reasonably foreseeable and that may adversely affect Rezility.  If requested by Rezility, You will provide Rezility with certificates of insurance and other supporting materials as Rezility may reasonably request to verify Your continuing compliance with the preceding sentence.

 

9. Limitation of Liability

Rezility’s liability under this Provider Agreement will be limited to the amount of money paid by Provider to Rezility pursuant to this Provider Agreement, or $100, whichever is greater. Rezility will not be liable for any incidental or consequential damages suffered by Provider as a result of any breach of this Provider Agreement.

 

10. Arbitration

(a)  Process

  1. You and Rezility agree: A/ to notify each other of any dispute within thirty (30) days of when it arises; B/ to attempt informal resolution prior to any demand for binding arbitration for at least sixty (60) days; C/ that any arbitration will occur in Howard County, Maryland; and D/ that arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Rules of the American Arbitration Association and any Expedited Procedures. The parties will select an arbitrator within seven (7) days of delivery of the Demand for Arbitration; if the parties cannot agree upon an arbitrator, the AAA will appoint the arbitrator in accordance with AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Maryland and will be from AAA’s roster of arbitrators.
  2. If Your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents You and Rezility submit to the arbitrator, unless You request a hearing or the arbitrator determines that a hearing is necessary. If Your claim exceeds $10,000, Your right to a hearing will be determined by the AAA Rules.  Subject to AAA Rules and any expedited procedures, the arbitrator will have the ability to manage information exchange by the parties.
  3. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable.
  4. The state or federal courts in Howard County, Maryland have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration.
  5. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court
  6. Any dispute between the parties will be governed by this Provider Agreement and the laws of the State of Maryland and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
  • In the event that Rezility changes this section (Arbitration) after the date You first accepted this Provider Agreement (or any subsequent changes to this Provider Agreement), You may reject such change by sending us written notice (including via email to legal@rezility.com; Subject Line: Attn: Arbitration Objection) within thirty (30) days of the date of the feed notification to You by Rezility of such changes. By rejecting any change, You agree to arbitrate any dispute between You and Rezility in accordance with the provisions of this section (Arbitration) as of the date You first accepted this Provider Agreement (or any subsequent changes to this Provider Agreement).

(b)  Waiver of Class Action

WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR COURT, NEITHER YOU NOR REZILITY WILL COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.  UNDER THIS PROVIDER AGREEMENT, THE PARTIES ARE ALSO PROHIBITED FROM PARTICIPATING IN A CLASS ACTION (EXISTING OR FUTURE) BROUGHT BY A THIRD PARTY.  THE PARTIES AGREE TO RESOLVE DISPUTES ARISING OUT OF THIS PROVIDER AGREEMENT ON AN INDIVIDUAL BASIS.

(b)  Waiver of Class Action

WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR COURT, NEITHER YOU NOR REZILITY WILL COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.  UNDER THIS PROVIDER AGREEMENT, THE PARTIES ARE ALSO PROHIBITED FROM PARTICIPATING IN A CLASS ACTION (EXISTING OR FUTURE) BROUGHT BY A THIRD PARTY.  THE PARTIES AGREE TO RESOLVE DISPUTES ARISING OUT OF THIS PROVIDER AGREEMENT ON AN INDIVIDUAL BASIS.

 

11. Disclaimer

THE SITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED.  REZILITY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICE AND THE SITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN.  REZILITY DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR THE SITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.  WHILE REZILITY ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SERVICE AND THE SITE SAFE, REZILITY CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SERVICE AND THE SITE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD OR USE.  THIS PROVISION MAY NOT APPLY TO NEW JERSEY RESIDENTS.

 

12. Confidentiality

Confidential Information” means any non-public information disclosed by Rezility, whether or not marked (if not so marked, is of a nature or disclosed under circumstances that a reasonable person would recognize such information as confidential), including, without limitation, Consumer Data, Information about the Site or the Service, the terms of this Provider Agreement (including any Content details), the publishers in Rezility’s network, the contents of the Site, individual contact information provided by Rezility, and information regarding Rezility’s marketing, plans, products, services, and technical environment. You agree to protect Confidential Information in the same manner as You protect Your own (but using no less than a reasonable degree of protection) and shall only disclose Confidential Information to those with a need to know that information, who have agreed in writing to be bound by terms at least as protective as those contained in this Provider Agreement.  The restrictions in this paragraph will not apply to Confidential Information if (i) available to the public other than by a breach of a confidentiality obligation or other wrongful act by You or a third party, (ii) rightfully received from a third party not in breach of a confidentiality obligation and who has otherwise not wrongfully obtained the Confidential Information, (iii) independently developed by You without use of or reference to the Confidential Information of Rezility; (iv) known to the You at the time of disclosure (other than under a separate confidentiality obligation); or (v) produced in compliance with applicable law or court order, provided that Rezility is given reasonable advance notice of the obligation to produce Confidential Information and You use diligent efforts to limit such disclosure and assist Rezility to obtain a protective order or otherwise seek confidential treatment. Rezility shall be entitled to seek injunctive or other equitable relief for breach of the confidentiality obligations herein. Such injunctive or equitable relief shall not be the exclusive remedy for any breach of confidentiality, but shall be in addition to all other rights and remedies available at law or in equity.

 

13. Miscellaneous

(a) Independent Contractors.  The Parties and their respective personnel are and shall be independent contractors and neither Party by virtue of this Provider Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other Party.

(b) Amendment.  Rezility may change or modify any of the terms and conditions contained in this Provider Agreement which will become effective when we post the revisions on the Site. We will provide you with a notice via a feed notification so that you can consider whether you wish to continue utilizing the Rezility Service.  Your continued use of the Site or Service following the posting of changes or modifications will confirm Your acceptance of such changes or modifications. Termination:  Either Party may terminate this agreement upon sixty days’ notice to the other Party.

(c) Assignment.  You may not assign this Provider Agreement or any right, interest, or benefit under this Provider Agreement without prior written consent of Rezility.  Any attempted assignment in violation of the foregoing will be void.  Subject to the foregoing, this Provider Agreement will be fully binding upon, inure to the benefit of, and be enforceable by any permitted assignee.

(d) Severability.  If any provision of this Provider Agreement shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Provider Agreement and shall not affect the validity and enforceability of any remaining provisions.

(e) Nonwaiver. Any failure by Rezility to insist upon or enforce performance by You of any of the provisions of this Provider Agreement or to exercise any rights or remedies under this Provider Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right, or remedy in that or any other instance; rather, the provision, right or remedy will be and shall remain in full force and effect.

(f) Survival. The respective rights and obligations of the Parties under Sections 3, 6, 7, 8, 9, 10, 11, 12, 13, and 14 shall survive any termination or expiration of this Provider Agreement.

(g) Force Majeure. If the performance of any part of this Provider Agreement by either Party is prevented, hindered, delayed, or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either Party, that Party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.

(h) Entire Agreement. This Provider Agreement, together with the Rezility User Terms of Use and Privacy Notice, with a fully executed signature page, constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications, and understandings, oral or written. In case of any discrepancy between this Provider Agreement, the Rezility User Terms of Use, and the Rezility User Privacy Notice, this Provider Agreement shall control.

 

 

4818-4087-5604, v.  1

11000 Broken Land Parkway, Suite 700
Columbia, MD 21044

info@rezility.com

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