1. DEFINITIONS

1. a. “Alerts” means notices sent to the User by the Merchant about new or specific deals.  

2. b. “Analytics” means information gathered about the views, acceptances, uses and executions of the deals along with aggregated information about the Users who are interacting with the deals.  

3. c. “Confidential Information” means any and all information disclosed by one party to the other party, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or is or should be reasonably understood to be confidential or proprietary to the disclosing party, including, without limitation, information about the Wagglez Software, the Wagglez Merchant Service, the Documentation, and the terms of this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is or becomes generally available to the public through no breach of this Agreement or any other agreement by the recipient of the information; (ii) is or was known by the recipient of the information at or before the time such information was received from the discloser, as evidenced by the recipient’s tangible (including written or electronic) records; (iii) is received from a third-party that is not under an obligation of confidentiality to the disclosing party with respect to such information; or (iv) is independently developed by the recipient of the information without any breach of this Agreement, as evidenced by the recipient’s contemporaneous tangible (including written or electronic) records.  

4. d. “Dashboard” means the software module contained in the Wagglez Software that displays statistical data relevant to End-Users’ use of Merchant Offers.  

5. e. “Deals” means any sort of special, reduced price, coupon, daily deal, sale or other product or service price which is a reduction from what is typical for the Merchant.  

6. f. “Documentation” means such manuals, documentation and any other supporting materials relating to the Wagglez Software and/or the Wagglez Merchant Service that are provided to Merchant by Wagglez in connection with this Agreement.  

7. g. “End-User” or “User” means an individual who uses the Wagglez Software to access the Merchant deals.  

8. h. “Events” means a post which notifies end-users that the Merchant Partner has a special occurrence at a fixed time at a particular storefront.  

9. i. “Intellectual Property Rights” means any and all rights existing from time to time under patent, copyright, trademark, trade secret, unfair competition, moral rights, publicity rights, or privacy rights laws, and any and all other proprietary rights.  

10. j. “Legal Requirements” means all applicable laws, rules, regulations, governmental permits, or other binding determinations of any governmental authorities.  

11. k. “Marks” means the Wagglez Marks or the Merchant Marks, as applicable.  

12. l. “Merchant Content” means any and all materials and content provided by Merchant to Wagglez through the Wagglez Merchant Service, including, without limitation, the Merchant Offers, any Merchant Marks, other Merchant branding elements, and textual, image, video, or audio content.  

13. m. “Merchant Location” means each Merchant store for which Merchant is using the Wagglez Merchant Service, as may be changed from time to time by Merchant within the Wagglez Merchant Service.  

14. n. “Merchant Marks” means the trademarks, service marks, trade names, domain names, logos or other designations provided by Merchant to Wagglez within the Wagglez Merchant Service.  

15. o. “Merchant Materials” has the meaning set forth in Section 7(a).  

16. p. “Merchant Offer” means any offer, coupon, or promotion of Merchant made available to End-Users through the Wagglez Software, including any content relating to such offer, coupon, or promotion.  

17. q. “Performance Data” means all information and data generated by the Wagglez Software and the Wagglez Merchant Service relating to the performance of the Merchant Offers.  

18. r. “Storefront” means the physical address of the place of business itself, as opposed to the corporate address.  A Merchant can have any number of Storefronts for their business.  

19. s. “Support” means assistance offered by Wagglez to Merchants and Users to help them make the optimum use of Wagglez and to troubleshoot problems they may be having with Wagglez functionality.  

20. t. “Tiers” means the different levels of Service to which the Merchants may subscribe, specifically Freemium, Basic, Business, Premium and Enterprise.  

21. u. “Updates” means any modifications, error corrections, bug fixes, new releases, or other updates of or to the Wagglez Merchant Service and Documentation related thereto that are generally made available by Wagglez to its customers at no additional charge during the term of this Agreement.  

22. v. “Wagglez Marks” means the trademarks, service marks, trade names, domain names, logos or other designations provided by Wagglez to Merchant within the Merchant Control Center.  

23. w. “Wagglez Merchant Service” means (i) the “Merchant Control Center” (including, without limitation, the Dashboard) located at a subdomain of www.getWagglez.com (or any successor website thereto) that allows Merchants to create, publish, and manage their Merchant Offers and that is hosted on servers controlled by Wagglez and, as applicable, its designees; and (ii) any Updates thereto.  

24. x. “Wagglez Software” means the software distributed by Wagglez to End-Users that enables End-Users to use offers, coupons, and promotions from multiple merchants on their mobile devices.  

2. WAGGLEZ MERCHANT SERVICE

1. a. Rights to Use Wagglez Merchant Service. Subject to the terms and conditions of this Agreement and the timely payment of all Service Fees hereunder, Wagglez hereby agrees to allow Merchant to access and use the Wagglez Merchant Service, through a compatible Internet browser or other remote Internet interface, solely for the purpose of posting Merchant Offers on the Wagglez Merchant Service for use by End-Users. Merchant will register an account on the Wagglez Merchant Service, selecting the tier of service desired and select a user name and password for such account. Merchant is solely responsible for any and all use of Merchant’s account, including maintaining the confidentiality of Merchant’s password. Merchant agrees to notify Wagglez immediately if Merchant suspects any unauthorized use of Merchant’s account or access to Merchant’s password. Merchant agrees to (a) provide true, accurate, current and complete information as prompted during the registration process (collectively, the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If Merchant provides any Registration Data that is untrue, inaccurate, not current or incomplete, or Wagglez has reasonable grounds to suspect that Merchant has done so, Wagglez has the right to suspend or terminate Merchant’s use of the Wagglez Merchant Service until such matter has been cured.. Except as set forth in this Section 2(a), no other right or license of any kind is granted by Wagglez to Merchant hereunder with respect to the Wagglez Merchant Service. Merchant acknowledges that Wagglez is free to enter into relationships and license the Wagglez Merchant Service to other third parties that conduct business that is or may be competitive with the business of Merchant. Wagglez is not obligated to customize or alter the Wagglez Merchant Service for Merchant.  

2. b. Restrictions  

   1. 1. Merchant acknowledges that the Wagglez Merchant Service and the Documentation related thereto, including, without limitation, the know-how embodied therein, constitute the valuable trade secrets of Wagglez. Merchant may not, and may not allow others, to (a) copy, disassemble, decompile, “unlock,” reverse translate, reverse engineer or in any manner decode, or customize the Wagglez Merchant Service for any reason or modify or create any derivative works based upon the Wagglez Merchant Service or the Documentation related thereto; or (b) use the Wagglez Merchant Service (including the processes, methods and know-how embodied therein) other than as expressly allowed in this Agreement.  

   2. 2. Merchant may not distribute, disclose, or otherwise offer the benefits of the Wagglez Merchant Service or the Documentation related thereto to any third party (including affiliates of Merchant), whether such arrangement is in the nature of a service bureau, an outsourcing service, or any other similar service or business.  

   3. 3. Merchant is solely responsible for all Merchant Content and acknowledges that Wagglez does not monitor or review Merchant Content. Notwithstanding the foregoing, Wagglez reserves the right to remove any Merchant Content from the Wagglez Merchant Service and the Wagglez Software that Wagglez believes, in its sole discretion, violates any Legal Requirement or the terms of this Agreement or if Wagglez believes, in its sole discretion, that such Merchant Content could be harmful to Wagglez or Merchant in any way, including, without limitation, because it could create liability for Wagglez or Merchant or otherwise negatively impact Wagglez’s or Merchant’s reputation or goodwill.  

   4. 4. Regardless of the Tier to which the Merchant subscribes, each Merchant will (a) ensure that the Merchant Offer clearly states all applicable conditions and restrictions of the Merchant Offer; and (b) ensure that End-Users are able to access Merchant Offers in accordance with the applicable terms and conditions of such Merchant Offers, including, without limitation, by providing the necessary training and instruction for the redemption of Merchant Offers to its employees at all Merchant Locations.  

   5. 5. Merchant will not create a Merchant Offer for a product unless Merchant reasonably believes it has sufficient supply of such product to fulfill all prospective purchases.  

   6. 6. Merchant agrees to comply with (i) Wagglez’s privacy policy displayed to End-Users within the Wagglez Software (the “Wagglez Privacy Policy”), as such privacy policy may be amended from time to time and (ii) all Legal Requirements, in connection with Merchant’s collection, storage, maintenance, processing, transfer, disclosure, renting, sharing, or any other use of any information, data, or other content about an End-User obtained via the Wagglez Service or the Wagglez Software (collectively, “End-User Data”). Merchant represents and warrants that the collection, storage, processing, use, and disclosure of any End-User Data as contemplated in this Agreement will not breach any contractual or legal obligations that Merchant may have to an End-User. Merchant will ensure that each End-User’s use of a Merchant Offer will be preceded by privacy disclosures that clearly notify the End-User how End-User Data are being collected, stored, processed, used, and disclosed to third-parties by Merchant and otherwise fully comply with all Legal Requirements.  

   7. 7. Merchant agrees that Merchant’s use of the Wagglez Merchant Service will comply with all Legal Requirements.  

3. c. Reporting. The Dashboard will provide Merchant with Analytics for each Merchant Offer.  

4. d. Technical Support. For technical support relating to the Wagglez Merchant Service, Merchant may (i) access Wagglez’s support forum located at http://help.getWagglez.com/ (or any successor URL); and/or (ii) contact Wagglez by e-mail at merchantsupport@getWagglez.com .  

5. e. Customer Service. Merchant will be solely responsible for responding to all End-User customer service inquiries. Wagglez will direct all End-User customer service inquiries to Merchant at the “Customer Service Phone Number” provided with registration for the Service. Merchant will ensure that a customer service representative is available at that phone number to answer all customer service inquiries during the Merchant’s regular business hours.  

6. f. License to Merchant Offers. Merchant hereby grants Wagglez a non-transferable, non-exclusive, non-sublicensable, royalty-free, worldwide limited right and license to reproduce, distribute, transmit, perform, and publicly display the Merchant Offers and the Merchant Content on the Wagglez Software and other third-party platforms.  

3. TRADEMARKS

1. a. License to Wagglez Marks. Wagglez hereby grants to Merchant a non-transferable, non-exclusive, non-sublicensable, royalty-free, limited right and license to use, reproduce, and display the Wagglez Marks (i) on any “window clings” provided to Merchant by Wagglez; and (ii) on Merchant’s corporate website and in Merchant’s other written marketing materials for the limited purpose of identifying and promoting the existence of the relationship between the parties as set forth in this Agreement.  

2. b. License to Merchant Marks. Merchant hereby grants to Wagglez a non-transferable, non-exclusive, non-sublicensable, royalty-free, limited right and license to use, reproduce, and display the Merchant Marks (i) for branding the Merchant Offers displayed to End-Users; (ii) for providing real-time lists to End-Users of Merchant Locations located in the End-Users’ geographic locations; (iii) on Wagglez’s corporate website and in Wagglez’s other written marketing materials for the limited purpose of identifying and promoting the existence of the relationship between the parties as set forth in this Agreement.  

3. c. Restrictions. Each party to this Agreement agrees that (a) all rights, title and interest in and to the Marks of the other party are owned solely and exclusively by the other party; (b) except for the license granted in this Section 3, it has no rights, title, or interest in or to the Marks of the other party; and (c) all use of the other party’s Marks, and all goodwill arising out of such use, will inure to the sole benefit of the other party. Each party may only use the other party’s Marks in accordance with any trademark usage guidelines provided by the other party from time to time. Wagglez’s trademark usage guidelines may be located within the Wagglez Merchant Service. All materials in which a party’s Marks are proposed to be used will be subject to the prior written approval of such party. Each party will refrain from (x) altering any Mark of the other party; or (y) using the Mark of the other party for any purpose other than as explicitly set forth in this Section 3. If either party uses the other party’s Marks in a manner that has not been previously approved by the other party in accordance with the terms of this Section 3, the party owning such Marks will, at any time, have the right to require the party using the Marks to promptly modify or cease such use. Neither party will at any time challenge, or assist others in challenging, the other party’s Marks, or do, cause to be done or tolerate any act or thing contesting or in any way impairing or tending to impair any right, title or interest of the other party in such Marks. Each party has the right, in its sole and absolute discretion, to revoke the rights granted to the other party under this Section 3 if it objects to any use of its Marks by the other party.  

4. CONFIDENTIAL INFORMATION; PRESS RELEASE

1. a. Confidentiality Obligations. Each party will: (i) hold all Confidential Information of the other party in strict confidence and will not disclose any Confidential Information to any third party; (ii) avoid the unauthorized use or disclosure of the other party’s Confidential Information using the same degree of care that it uses in safeguarding its own confidential information, but in no event less than a reasonable degree of care; (iii) use the other party’s Confidential Information only in connection with the performance of its obligations under this Agreement; and (iv) disclose the other party’s Confidential Information only to such of its officers, employees, contractors and agents as have a need to know such Confidential Information in connection with the performance of its obligations under this Agreement. Notwithstanding the foregoing, the prohibitions on disclosure of Confidential Information contained in this Section 4(a) will not apply to the extent that such disclosure is: (i) approved in writing by the disclosing party; (ii) necessary for the receiving party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body, provided that the receiving party promptly notifies the disclosing party in writing of such required disclosure and cooperates with the disclosing party, at the disclosing party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.  

2. b. Press Releases; Publicity. Before issuing a joint press release regarding this Agreement and the relationship established hereunder, each party must approve the text of such press release, which approval may be withheld in each party’s sole and absolute discretion. Wagglez may identify Merchant as a customer of Wagglez in Wagglez’s private discussions and meetings with prospective Merchants and any written materials prepared for such discussions or meetings.  

5. PAYMENT

1. a. Fees. Merchant will pay Wagglez Service Fees in accordance with the terms set forth therein.  Fees will be paid with a debit or credit card or via ACH.  

2. b. The Freemium Tier has no Service Fee associated with it but Merchants choosing this level of the Service still need to complete registration and are bound by all other terms of this Terms of Use.  

3. c. Overdue Fees. If Wagglez is unable for any reason to process payment of any Comprehensive Service Fees in accordance with the payment processing method selected by Merchant on the first age of this Agreement, Wagglez reserves the right to provide Merchant with an invoice for such fees, and Merchant will be obligated to pay such invoice within thirty (30) days after its receipt thereof. Wagglez reserves the right to apply a service charge to any overdue balance at the rate of 1.5% per month (but in no event more than the maximum rate allowed by law). Wagglez also reserves the right to suspend Merchant’s use of the Wagglez Merchant Service if Merchant has not paid any Comprehensive Service Fees when due.  

4. d. Taxes. Merchant will be responsible for payment of all taxes (other than taxes based on Wagglez’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of Service Fees to Wagglez under this Agreement. Merchant will make all payments of Service Fees to Wagglez free and clear of, and without reduction for, any withholding taxes. Each party to this Agreement hereby acknowledges and agrees to provide reasonable written notice to the other party of any formal audit proceedings commenced by any state or local agency or institution that would involve the disclosure and/or review of certain information, books and records pertinent to the transactions contemplated herein. The parties agree to reasonably cooperate with each other and make accessible to the audited party any and all information that would facilitate a favorable audit outcome. The Party bearing financial responsibility or additional monetary exposure from the conduct of such audit shall be kept apprised of audit developments at all times, including settlement offers, and shall have the option to actively participate or exercise primary control in audit proceedings.  

6. TERM; TERMINATION

1. a. Term. The Term of this Agreement in perpetuity or until one of the parties terminate the Agreement.  

2. b. Termination. Merchant may terminate this Agreement at any time for any reason, or no reason, with 30 days advance written notice and subject to any provisions requiring payment to Wagglez of the Minimum Service Fee.  Any Service Fees paid are non-refundable.  

3. c. Effects. Upon the expiration or termination of this Agreement for any reason: (i) all rights and licenses granted to Merchant hereunder will immediately terminate; (ii) Merchant will make no further use of the Wagglez Merchant Service or the Documentation related thereto, and Wagglez will have the right to remove all Merchant Offers from the Wagglez Merchant Service immediately; (iii) within ten (10) days, Merchant will, at Wagglez’s option, either destroy or permanently erase all copies of the Documentation under Merchant’s control, or return such copies to Wagglez; and (iv) within ten (10) days, each party will, at the other party’s option, either destroy or permanently erase all copies of the other party’s Confidential Information under its control. Upon any termination of this Agreement (including a termination by Wagglez in accordance with the terms of this Agreement), Merchant will still be obligated to pay all Comprehensive Service Fees accrued pursuant to this Agreement prior to the effective date of termination and/or the Minimum Service Fee. Either party’s termination of this Agreement will be without prejudice to any other right or remedy that it may have at law or in equity, and will not relieve either party of breaches occurring prior to the effective date of such termination. Sections 1, 2(b), 2(f), 3(c), 4(a), 5, 6(c), and 7-11 of these Standard Terms and Conditions, and any other provisions in this Agreement that by their nature would reasonably be expected to survive, will survive the expiration or termination of this Agreement.  

7. PROPRIETARY RIGHTS

1. a. Merchant. As between Wagglez and Merchant, Merchant will exclusively own all right, title, and interest, including all Intellectual Property Rights, in and to (i) the Merchant Offers; (ii) the Merchant Content; (iii) the Merchant Marks; (iv) all Confidential Information of Merchant; and (v) any modifications, updates, copies, translations, improvements, derivative works, or adaptations of any of the foregoing, irrespective of who authored, invented, or made same (collectively, the “Merchant Materials”).  

2. b. Wagglez. As between Wagglez and Merchant, Wagglez will exclusively own and retain all right, title, and interest, including all Intellectual Property Rights, in and to (i) the Wagglez Software and the Wagglez Merchant Service; (ii) the Documentation including all copies thereof; (iii) all Confidential Information of Wagglez; (iv) Performance Data; and (v) any modifications, updates, copies, translations, improvements, derivative works, or adaptations of any of the foregoing, irrespective of who authored, invented, or made same.  

8. REPRESENTATIONS, WARRANTIES & COVENANTS

1. a. Mutual. Each party represents and warrants to the other party that the execution, delivery and performance of this Agreement (i) is within its corporate powers, (ii) has been duly authorized by all necessary corporate action on such party’s part, and (iii) does not and will not contravene or constitute a default under, and is not and will not be inconsistent with, any judgment decree or order, or any contract, agreement, or other undertaking, applicable to such party.  

2. b. Merchant. Merchant represents, warrants and covenants that (i) the Merchant Content does not, and will not, infringe, violate, or misappropriate any Intellectual Property Rights or other rights of any third-party or violate any Legal Requirements; (ii) each Merchant Offer will comply with all Legal Requirements, including but not limited to compliance with local ordinances; (iii) Merchant will fulfill each Merchant Offer to End-Users pursuant to the Merchant Offer’s terms; (iv) Merchant has obtained and will maintain throughout the Term all rights, authorizations and licenses, if any, that are required in order for Wagglez to use the Merchant Content as contemplated in this Agreement; (v) the Merchant Content will not contain any defects, viruses, worms, Trojan horses or other harmful components; (vi) the Merchant Content will not contain any material that is inappropriate for general and family viewing (e.g., sexually explicit materials, materials advocating violence or hatred, or any material the display of which may be unlawful in any state); (vii) Merchant will not mislead or misrepresent to End-Users as to the origin, affiliation or nature of any Merchant Content; (viii) the Merchant Content will not contain any material that discriminates against any End-User on the basis of race, sex, gender preference, nationality, disability or age (unless the product by its nature is lawfully restricted to persons of a certain gender or age range, in which case Merchant is solely responsible for enforcement of all such legal restrictions); and (ix) merchant is a “brick and mortar” retail establishment and not a web based business. Notwithstanding any confidentiality obligations set forth in this Agreement, the parties hereto may disclose the terms of this Section 8(b) to any third-party.  

3. c. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 8(a) and 8(b), WAGGLEZ EXPRESSLY DISCLAIMS ALL WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY ASPECT OF THE WAGGLEZ MERCHANT SERVICE OR THE WAGGLEZ SOFTWARE OR ANY OTHER ASPECT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WAGGLEZ DOES NOT WARRANT THAT THE WAGGLEZ SOFTWARE WILL MEET ALL OF MERCHANT’S REQUIREMENTS OR THAT ITS ACCESSIBILITY OR OPERATION WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE. TO THE EXTENT WAGGLEZ MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.  

9. LIMITATION OF LIABILITY

EXCEPT WITH RESPECT TO (A) A BREACH OF SECTION 4(a); AND (B) EITHER PARTY’S INDEMNFICATION OBLIGATIONS UNDER SECTION 10, WAGGLEZ’S AGGREGATE LIABILITY TO MERCHANT FOR ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT UNDER ANY LEGAL THEORY (WHETHER IN TORT, CONTRACT, INDEMNITY, STATUTORY, OR OTHERWISE), WILL NOT EXCEED THE AMOUNT PAID BY MERCHANT TO WAGGLEZ PURSUANT TO THIS AGREEMENT IN THE THREE MONTHS PRECEDING SUCH CLAIM. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN TORT, CONTRACT, INDEMNITY, STATUTORY, OR OTHERWISE) WILL WAGGLEZ BE LIABLE TO MERCHANT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, GOODWILL, LOST PROFITS OR LOST DATA, INCURRED BY MERCHANT, EVEN IF WAGGLEZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM WAGGLEZ’S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR THE OPERATION OF WAGGLEZ’S BUSINESS.

10. INDEMNIFICATION

1. a. Wagglez. Wagglez will, at its sole expense, defend, indemnify, save and hold harmless Merchant and Merchant’s officers, directors, agents and employees from any and all damages, losses, liabilities, costs or expenses, including reasonable attorneys’ fees (collectively, “Losses”), resulting from third-party claims, demands, suits, or proceedings (collectively, “Claims”) arising out or relating to (i) Wagglez’s breach of its representations, warranties, or covenants set forth in this Agreement; and (ii) the infringement of any valid United States copyright or trade secret by the Wagglez Software or the Wagglez Merchant Service (which, for clarity, does not include Merchant Materials).  

2. b. Merchant. Merchant will, at its sole expense, defend, indemnify, save and hold harmless Wagglez and Wagglez’s officers, directors, agents and employees from any and all Losses resulting from Claims arising out of or relating to (i) Merchant’s breach of its representations, warranties and covenants set forth in this Agreement; (ii) the Merchant Materials; (iii) any Merchant Offer; (iv) Merchant’s goods and services; and (v) the infringement of third-party rights by Merchant.  

3. c. Requirements. Any party seeking indemnification under this Agreement will (i) promptly notify the indemnifying party in writing regarding any facts that may give rise to a claim for indemnification under this Agreement (provided that any delay in notification will not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is actually prejudiced by such delay); (ii) provide the indemnifying party with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (at the indemnifying party’s expense, to the extent of any out-of-pocket expenses); and (iii) give the indemnifying party full control and sole authority over the defense and settlement of such claim, subject to the indemnified party’s approval of any such settlement, which approval will not be unreasonably withheld or delayed.  

11. MISCELLANEOUS

1. a. Equitable Relief. The parties acknowledge that (a) the covenants contained in Section 4(a) are reasonable and necessary to protect the legitimate interests of the parties; (b) the parties would not have entered into this Agreement in the absence of such covenants; and (c) any violation or threatened violation of such covenants would cause irreparable harm for which monetary damages would not be adequate. Therefore, the parties agree that, in the event of a breach of Section 4(a) by a party, the other party will be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law, and the breaching party will reimburse the non-breaching party for the reasonable costs associated with such enforcement (including any attorney’s fees).  

2. b. Entire Agreement; Amendments. This Agreement, including any exhibits hereto, constitute the entire agreement between the parties with respect to the subject matter hereof, and this Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter. No term or condition in any purchase order or other business form drafted by Merchant will be effective unless agreed upon in writing signed by an authorized representative of Wagglez. If there is a conflict between the terms of this Agreement and the terms of any such purchase order or other business form, the terms of the Agreement will prevail. This Agreement may be modified or amended only by a writing signed by an authorized representative of both parties.  

3. c. Waivers. The waiver by either party of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach or default under the same or any other provision of this Agreement. No delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.  

4. d. Severability. If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (i) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby and (ii) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.  

5. e. Assignment. The rights granted and obligations undertaken in this Agreement are personal to Merchant and Merchant agrees not to transfer, assign or sublicense such rights or obligations to any third-party. Any attempted transfer, assignment or sublicense of such rights or obligations by Merchant will be null and void. Notwithstanding the foregoing, this Agreement will be binding on any successors and assigns of the parties.  

6. f. Relationship. The relationship of Wagglez and Merchant established by this Agreement is that of independent contractors, and nothing contained in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the parties or any of its respective agents or employees. Nothing in this Agreement grants to either party the authority to make any promise, warranty, guarantee, or representation that will create any obligation or liability whatsoever, whether express or implied, on behalf of the other.  

7. g. Non-Solicitation. During the Term of this Agreement and for a period of twelve (12) months thereafter, neither party will directly or indirectly solicit, induce, or attempt to induce any employee or independent contractor of the other party to terminate or breach any employment, contractual, or other relationship with such other party.  

8. h. Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia without giving effect to any contrary choice of law rules, and applicable United States federal law. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought against any of the parties only in the state or federal courts located in Clarke County, Georgia. Each of the parties consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein.  

9. i. Prevailing Party. If any legal action, including, without limitation, an action for arbitration or equitable relief, is brought by one party against the other party relating to this Agreement or the breach or alleged breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a voluntary dismissal by the party instituting the action, will be entitled to reimbursement from the other party for the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.  

10. j. Notices. All notices under this Agreement will be in writing and will be delivered to a party at the address specified in the first paragraph of this Agreement, Attn: Chief Legal Officer, by: (1) depositing the notice in the mail, using registered mail, return receipt requested; (2) confirmed facsimile or email transmission; (3) overnight delivery service; or (4) hand delivery to an individual authorized to accept such delivery. The notice will be effective; (i) seven (7) calendar days after deposit in the mail; (ii) upon receipt of confirmation that a facsimile or email was received; (iii) the next business day after deposit with an overnight delivery service; or (iv) on the date of hand delivery.  

11. k. Force Majeure. Except for Merchant’s obligations to pay Wagglez hereunder, neither party will be liable to the other party for any failure or delay in performance under this Agreement caused by reasons beyond its reasonable control.  

12. l. Construction. The terms of this Agreement have been negotiated by the parties hereto and the language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent. This Agreement will be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted, or in favor of the party receiving a particular benefit under this Agreement. No rule of strict construction will be applied against either party.  

13. m. Headings. The captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.  

14. n. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same Agreement. All signed fax copies of the Agreement will be deemed as valid as an original.