Platform Terms and Conditions
These Platform Terms and Conditions (“T&Cs”) are entered into as of the Effective Date and govern the relationship between Avagate, LLC (“Avagate”) the provider of the https://addtowallet.io/ website (the “Website”) and the subscriber (“Subscriber”) that has signed up to the Website, the signup to which these T&Cs are incorporated and the date of which shall constitute the effective date (“Effective Date”) for the purposes of these T&Cs.
1. Nature of the Services.
Avagate offers digital integration services, including access to and use of Avagate’s technology platform (e.g. Website and associated tools) (“Platform”), and other services and technology (collectively, the “Services”) designed to allow businesses and brands to easily distribute their offerings to consumers (“Consumers”) by allowing Consumers to add offerings from Subscriber to Consumers’ mobile wallet of choice such as Apple Wallet. Subject to any restrictions herein or as set forth in our policies, guides, and manuals as updated and amended from time to time (“Documentation”), Avagate grants Subscriber, a limited, non-exclusive, non-transferable right for Subscriber to access and use the Services for the purposes set forth in these T&Cs and solely in connection with Subscriber’s use of Avagate’s Platform (the "License"). This License terminates upon Subscriber’s cessation of use of the Services or upon the end of Subscriber’s Term (as defined below). The Services are made available to Subscriber via a portal in Subscriber’s Account. Subscriber shall (a) be responsible, at its expense, for obtaining its own Internet access, and any required hardware, software, or other technology to connect to the portal, (b) be responsible for its use and decisions relating to the Services, (c) prevent unauthorized access to or use of the Services and unauthorized disclosure of Avagate IP (defined below), and notify Avagate promptly of any such unauthorized access or use, and (d) use the Services only in accordance with applicable laws and Documentation. All rights not expressly granted to Subscriber are reserved by Avagate and its licensors or other providers. There are no implied rights.
2. Use of the Services.
2.1 Subscriber’s Use. By establishing an Account (defined below), or accessing the Services, Subscriber represents and warrants that: (a) Subscriber is legally permitted to use the Services in their jurisdiction or in the jurisdiction in which the use of Services occurs, including accessing and using any Avagate IP, (b) Subscriber will not (or attempt to) purchase, sell, rent, or give away its Account, or create an Account using a false identity or information, (c) Subscriber will not engage in any automated use of the Services, including through the use of any code, software, scripts, robots, or similar automatic devices, to “crawl,” “scrape” or “spider” the Services or otherwise to copy, distribute, or misappropriate any information or other content from the Services, including Avagate IP, (d) Subscriber will not resell, lease, distribute, transfer, or otherwise make available the Services on a time-sharing or service bureau basis, (e) Subscriber will not decompile, disassemble, or reverse engineer the Services, in whole or in part, (f) Subscriber will not use or reference the Services to develop or offer a competing service or product, and (g) Subscriber will not make the Services available to any third-party other than as contemplated by these T&Cs.
2.2 Compliance. Subscriber agrees that activities performed under these T&Cs, including without limitation, transacting in digital offers or goods, may be regulated by international, federal, state and local laws, rules and regulations. Subscriber will comply with applicable laws, rules, and regulations related to these T&Cs and Subscriber’s use of the Services, including any transactions subscriber makes using the Services. Subscriber is not acting directly or indirectly on behalf of persons or entities that are included on the List of Specially Designated Nationals and Blocked Persons maintained by the US Treasury Department’s Office of Foreign Asset Control (“OFAC”). Subscriber agrees not to access, download, or use the Services from any country in which such access, download, or use is prohibited by applicable law or regulation.
3. Fees and Payments
3.1 Fees. As consideration for the Services provided by Avagate hereunder, the Subscriber agrees to pay Avagate a monthly fee (“Fees”) in the amount of zero dollars ($0) for an initial trial period of six months. After said trial period, the fees will be disclosed in a separate SOW. This amount will automatically be deducted from Subscriber’s provided payment method on a monthly basis until Subscriber cancels their Account.
3.2 Payments. In consideration for the rights granted, Subscriber will pay to Avagate, without offset or deduction, the Fees described above. Fees may increase each Renewal Term. The Fees and other amounts payable by Subscriber to Avagate do not include any taxes of any jurisdiction that may be assessed or imposed upon the Services, excluding only taxes based upon Avagate’s net income. Subscriber will directly pay any such taxes assessed. Subscriber will indemnify, defend, and hold Avagate harmless from any such taxes, fines, or interest that Subscriber is responsible under these T&Cs or applicable law (except for taxes on Avagate’s income). All fees and other amounts payable by Subscriber under these T&Cs are non-refundable and non-cancellable, except as otherwise expressly provided. In the event that Subscriber’s account is overdue, Avagate will have the right, in addition to any other remedies under these T&Cs or pursuant to applicable law, to suspend Subscriber’s use of the Services, without further notice to Subscriber, until Subscriber has paid the full balance owed, plus any interest due at the rate of 18% per annum.
4. Ownership. Except for Subscriber Data (defined below), as between Avagate and Subscriber, Avagate (or its licensors) own all right, title, and interest in and to (a) all data, content, information, feedback, and performance-related data, content, or information arising from, collected by Avagate, or otherwise related to the Services, (b) the technology necessary or required to provide the Platform and Services, including the “look and feel” of the Services, all Documentation thereto, and all software, ideas, processes, data, algorithms, text, media, and other content available on or arising from the Services; and (c) Avagate Marks (collectively, “Avagate IP”). Subscriber may not modify, duplicate, copy, reverse engineer, or reuse any portion of the Avagate IP other than as permitted under these T&Cs without Avagate’s prior express written consent.
5. Account. To access and use the Services, Subscriber must establish an account (“Account”). By creating an Account, Subscriber agrees to (a) provide accurate, current, and complete information; (b) maintain and update the information you provide to Avagate, as necessary; (c) maintain the security of your login credentials to your Account and accept all risks of unauthorized access to your Account; and (d) immediately notify Avagate if you discover or otherwise suspect any security breaches related to your Account or the Services. You acknowledge and agree that Avagate is not responsible or liable for any damages, losses, costs, expenses, or liabilities related to any unauthorized access to or use of your Account.
6. Subscriber Consumer Details
6.1 Onboarding. Avagate shall perform commercially reasonable on-boarding activities to assist Subscriber with Account set up and integration of the Services with Subscriber’s existing platform. Avagate may, upon agreement of the Parties, provide additional individualized Services and onboarding of Subscriber, the terms of which will be covered under a separate agreement between the Parties. Shall Subscriber change platforms, an additional agreement with associated fees will be provided by Avagate.
6.3 Avagate Marks. Avagate grants to Subscriber a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free right to use the trademarks, service marks, names, logos or other marketing collateral provided by Avagate for use under these T&Cs (the “Avagate Marks”) solely for purposes of marketing and granting Consumers the right to access the Services subject to the terms and conditions set forth herein. Subscriber shall comply with any written guidelines provided by Avagate relating to appropriate use of the Avagate Marks, as may be updated from time to time upon notice by Avagate.
7. Confidential Information. Each party (the “Recipient”) acknowledges that, in the course of performing its rights and obligations under these T&Cs, the other party (the “Discloser”) may provide to Recipient certain information relating to Discloser or third parties that is of value to its owner and is treated as confidential (“Confidential Information”), including the Products and all documentation of the Services. Recipient will use the Confidential Information only in connection with performing its rights and obligations under these T&Cs and will not otherwise use or disclose the Confidential Information. Recipient may disclose the Confidential Information to its employees who have a bona fide need to know and who have executed a written agreement restricting use and disclosure of the Confidential Information to no less an extent as that required under these T&Cs. The obligations contained in this Section will not apply to the extent any information: (i) is or becomes public knowledge without the fault or action of Recipient; (ii) is rightfully known by Recipient at the time of disclosure without an obligation of confidentiality; or (iii) is rightfully received by Recipient from a third party without restriction on use or disclosure. Items (i) – (iii) shall be demonstrable by competent written evidence only. The obligations contained in this Section will not apply to any Confidential Information that is required to be disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body, provided that, if allowed by law, Recipient gives reasonable notice to Discloser so that Discloser may contest such an order or requirement or that is required to be disclosed under applicable securities regulations. The obligations of the Recipient in this Section will continue during the Term and for three (3) years thereafter, except that for Confidential Information that qualifies as a trade secret under applicable law, the obligations in this Section will survive for as long as such Confidential Information is a trade secret.
8. Term and Termination.
8.1 Term. The term of these T&Cs shall commence on the Effective Date and, unless, earlier terminated as set forth herein, shall continue for a period of thirty (30) days (the “Initial Term”); provided that the term shall thereafter automatically renew for successive terms lasting one (1) month each (each, a “Renewal Term”), unless either Party provides the other Party at least fifteen (15) days’ advance written notice of its desire not to renew prior to the end of the then-current Term. For clarity, these T&Cs shall continue to apply so long as Subscriber uses the Services. The Initial Term and any Renewal Terms may be collectively and individually referred to as the “Term” herein.
8.2 Termination. Either Party may terminate for the uncured material breach of the other Party or as expressly provided otherwise in these T&Cs. Avagate may suspend or terminate Subscriber’s access to the Services, at any time in its sole discretion, with or without notice if (a) there is a change to applicable law or regulations that restrict or prohibit the offering of the Services or (b) Avagate has a good faith concern that Subscriber’s use of the Services, including any transactions arising from such use, (i) violates a court order or judicial decree, (ii) violates appliable law or regulations, (iii) violates these T&Cs and Documentation, or (iv) may result in unreasonable risk to Avagate. Any terms and conditions, including without limitation payment obligations, disclaimers, Avagate’s IP, and limitations of liability, will continue to apply after termination or expiration as necessary to give effect to the intent of these T&Cs. Upon termination or expiration, Subscriber will cease using or accessing Avagate’s IP and each Party will return or destroy the other Party’s Confidential Information in its possession or control.
9. Disclaimer and Limitation of Liability.
9.1 Disclaimer. SUBSCRIBER IS SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM THE USE OF THE SERVICES AND AVAGATE IP, INCLUDING ANY TRANSACTIONS ARISING FROM THE USE OF SUCH SERVICES AND AVAGATE IP. THE SERVICES ARE PROVIDED "AS IS" AND AVAGATE MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, ACCURACY, OR NON-INFRINGEMENT. AVAGATE MAKES NO REPRESENTATIONS OR WARRANTIES, NOR WILL AVAGATE HAVE ANY LIABILITY WITH RESPECT TO, THE SECURITY OF DIGITAL ASSETS, TRANSACTIONS ARISING FROM SUBSCRIBER’S USE OF THE SERVICES AND AVAGATE IP, OR THE ACCURACY OF ANY DATA PROVIDED IN CONNECTION WITH THE SERVICES.
9.2 Limitation of liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OPPORTUNITIES, REVENUE OR SAVINGS) ARISING IN CONNECTION WITH THESE T&CS, THE SERVICES, OR AVAGATE IP BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AVAGATE’S TOTAL LIABILITY UNDER THESE T&CS OR RELATING TO THE SERVICES WILL UNDER NO CIRCUMSTANCES EXCEED THE FEES ACTUALLY PAID BY THE SUBSCRIBER TO AVAGATE DURING THE PRIOR TWELVE (12) MONTHS UNDER THESE T&CS. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO SUBSCRIBER’S INDEMNIFICATION OBLIGATIONS, SUBSCRIBER’S MISUSE OF THE AVAGATE IP, OR A PARTY’S WILLFUL MISCONDUCT.
10. Third-Party Services. You understand and agree that the Avagate Services may require the use of third-party resources which are not under the direction or control of Avagate. These resources may become unavailable during times of especially high traffic, or due to potential changes of access to those third-party resources. You accept the risk that interruption or inaccuracy of third-party services may impede your ability to use the Avagate Services. Additionally, if using the Avagate Services through the Apple Wallet or other mobile wallet platform(s), you may be subject to such third-party platform’s terms and conditions and privacy policies. You should review such third-party terms and conditions and privacy policies carefully.
12. Dispute Resolution. These T&Cs shall be governed by and construed in accordance with the laws of the State of [Arizona] including any conflicts of law provisions of the laws of the State of [Arizona]. For any dispute regarding or in any way involving these T&Cs, the parties hereto hereby irrevocably and exclusively submit to the exclusive jurisdiction of the federal and state courts in [Maricopa County, Arizona]. The parties agree that a final non-appealable judgment in any such action, suit or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. To the extent permitted by applicable law, each of the parties hereby waives and agrees not to assert by way of motion, as a defense or otherwise in any such action, suit or proceeding, any claim that it is not personally subject to the jurisdiction of such courts, that the action, suit or proceeding is brought in an inconvenient forum, that the venue of the action, suit or proceeding is improper, or that the related documents or the subject matter thereof may not be litigated in or by such courts.
13. Notices. Except as otherwise stated in these T&Cs, each party giving or making any notice, consent, request, demand, certificate, or other communication pursuant to these T&Cs (each, a “notice”) shall provide the notice in writing and delivered to the email address listed for that Party on the Account registration page. A party may change the address to which a notice shall be delivered by giving written notice thereof to the other party in accordance with this Section.