This Services Agreement and Terms of Service (the “Agreement”) is entered into pursuant to the order form (the “Order Form”) between you (hereinafter, “Client” or “You”) and CHOOZIFY LLC (“Choozify”, “we” or “us”) (together with you, the “Parties”), and it becomes effective as of the date of your signature on the Order Form (the “Effective Date”). This Agreement relies on certain defined terms, and these terms are specified in Section 10 or are otherwise defined in context.

This Agreement is incorporated into the Order Form by reference and, likewise, the terms of the Order Form are hereby incorporated herein by reference, subject to the provisions of each section below.

1. CHOOZIFY LLC. We provide access to a web-based portal containing data, reports, dashboards, and analytics through a product named WEBSITE VISITOR ID (the “Services”), as defined below and as more specifically identified in in the Order Form. As part of the Services, Choozify will provide consulting and implementation assistance for WEBSITE VISITOR ID as agreed upon in one or more Statements of Work entered into hereunder.

2. Grant of Rights; Intellectual Property Ownership. To provide the Services, we use proprietary software (“Software”), know-how and other items that together embody CHOOZIFY LLC and its licensors own the Software, reports and analysis created thereunder (the “Reports”), and all associated intellectual property. You retain ownership of Client Information and intellectual property rights associated with such Client Information. CHOOZIFY owns the Intellectual Property associated with all the content in the Reports, including all information, artwork, text, trademarks, trade dress and report formatting.

We grant you a non-exclusive, nontransferable, royalty-free, license to access and use the Reports for your internal business purposes during the term of this Agreement.

2.1. Grant of License. CHOOZIFY LLC hereby grants to Client a non-exclusive, non-transferable license to use the Software and its related Documentation during the Term of this Agreement as follows:

2.1.1. For internal purposes only, in the conducting its normal business; and

2.1.2. To copy any software data files created by the Software or for back-up or archival purposes.

Use of the Services and Software underlying them is limited to authorized personnel of the Client and access may not be granted to any other individual or entity without CHOOZIFY LLC’s advanced written permission.

Use of the Services shall be limited to Client’s internal business uses in its ordinary course of business. Any use exceeding this limitation shall represent a material breach of this Agreement and the license provided hereunder.

2.2. EULA; Privacy Policy; Acceptable Use. All users of the Software shall be required to review, accept, and abide by the Privacy Policy, User Guidelines and Acceptable Use Policy.

The text of the applicable policies may be found at the following URLs and their terms and provisions are hereby explicitly incorporated herein by reference: https://choozify.com/privacy-policy

Client agrees that it is the data controller of personal information and/or personally identifiable information (“PII”) collected or otherwise entered into its licensed accounts for the Software and/or the Services. Client grants to CHOOZIFY LLC the right and license to make use of Client Information, including but not limited to PII, for the purpose of processing said information as necessary in order to provide the Services.

CHOOZIFY LLC agrees that it shall make use of PII only for the providing the Services and for otherwise complying with legal and/or regulatory requirements imposed upon CHOOZIFY LLC with respect to the PII or otherwise. Customer is responsible for all Customer Sites integrated or used with the Services, including without limitation.

Compliance with all Applicable Laws that relate to data protection and individual privacy and publicity rights.

3.1 When required posting an online privacy notice that:

• Discloses in a legally sufficient manner how data (including Personal Data) is collected and the purposes for which data is collected and used by Customer.
• Includes instructions on how End Users can control the collection of data by web browsers and mobile devices and how End Users can opt-out from receiving interest-based advertising.

GDPR. Client shall be responsible for addressing any and all inquiries or requests from individuals regarding their PII pursuant to the General Data Privacy Directive of the European Union and the rules thereunder (the “GDPR”).

CHOOZIFY LLC agrees to cooperate in a commercially reasonable manner with the Client with respect to instructions received in writing from the Client regarding Client’s PII disclosure and/or removal obligations under the GDPR.

Where the Customer Sites attract End Users from European Territories, Customer must deploy a consent and transparency mechanism (“Consent Mechanism”) on Customer Sites to obtain End User consent to CHOOZIFY LLC placing cookies or similar tracking technologies on End Users’ browsers and/or through emails. CCPA. Client shall be responsible for addressing any and all inquiries or requests from individuals regarding their PII pursuant to the California Consumer Privacy Act and the rules thereunder (the “CCPA”).

CHOOZIFY LLC agrees to cooperate in a commercially reasonable manner with the Client with respect to instructions received in writing from the Client regarding Client’s PII disclosure and/or removal obligations under the CCPA. 

Unless otherwise stated, CHOOZIFY LLC fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Client is responsible for paying all taxes associated with client’s purchases. hereunder. 

“Confidential Information” means non-public and proprietary knowhow and information disclosed under this Agreement, whether oral or written or electronic, that (a) concerns the Services, the reports or the software, technology, customers, finances, methods, research, processes or procedures of either CHOOZIFY LLC or Client; and (b) is designated as “Confidential” or “Proprietary” by the Disclosing Party at the time of disclosure or within a reasonable period thereafter.

Confidential Information also includes, without limitation, information relating to the disclosing party’s software or hardware products which may include source code, API data files, documentation, specifications, data bases, networks, system design, file layouts, tool combinations and development methods as well as information relating to the disclosing party’s business or financial affairs, which may include business methods, marketing strategies, pricing, competitor information, product development strategies and methods, Client lists, and financial results.

Confidential Information also includes information received from others that the disclosing party is obligated to treat as confidential and oral information that is identified by the disclosing party as confidential.

Confidential Information disclosed by a subsidiary of the disclosing party and/or its agents is covered by this Agreement.

Confidential Information includes all tangible materials which contain Confidential Information whether written or printed documents, computer disks or tapes whether user or machine readable.

Confidential Information shall not include any information that: (1) is already known to the receiving party or its affiliates, free of any obligation to keep it confidential; (2) is or becomes publicly known through no wrongful act of the receiving party or its affiliates; (3) is received by the receiving party from a third party without any restriction on confidentiality; (4) is independently developed by the receiving party or its affiliates; (5) is disclosed to third parties by the disclosing party without any obligation of confidentiality; or (6) is approved for release by prior written authorization of the disclosing party. 

As a result of the business relationship formed by this Agreement, the Parties hereto may have access to Confidential Information. The Parties agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of the other Party’s Confidential Information by preventing any unauthorized copying, use, distribution, installation or transfer of possession of such information.

The Receiving Party will retain the Disclosing Party’s Confidential Information in confidence and shall not use or disclose Confidential Information except for purposes permitted under this Agreement.

The Receiving Party shall be entitled to disclose Confidential Information of the Disclosing Party (i) to its employees, provided such employees are bound by non-disclosure obligations no less protective than those set out in this Agreement, and (ii) to affiliates and vendors, provided such affiliates and vendors are bound by non-disclosure obligations no less protective than those set out in this Agreement. 

The initial term of this Agreement shall be twelve (12) months (“Initial Term”). The Agreement shall then automatically renew for additional periods each the same length as the Initial Term (each an “Additional Term;” together with “Initial Term” the “Term”) unless either Party notifies the other in writing at least thirty (30) days before the end of any term that it does not want the Agreement to renew, in which case this Agreement will expire at the end of the then current term.

Termination. We may terminate this Agreement and/or suspend the services provided hereunder immediately and without advanced notice to you in the event that you materially breach this Agreement in any respect, including but not limited to the non-payment of any fees due hereunder.

CHOOZIFY LLC Limited Warranties. During the Term, CHOOZIFY LLC warrants that the Software is fit for the ordinary purposes for which it is designed, but expressly disclaims and excludes any warranty or representation that the Software or Documentation will meet any particular requirement or business need of the Client.

CHOOZIFY LLC warrants that the Software and Documentation does not infringe upon or contribute to the infringement of any United States patent, trademark, or copyright.

Disclaimers. WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

Client Information. You represent and warrant that, during the Term, you hold all rights and permissions necessary to provide Client Information to us for the uses specified in this Agreement. You are solely responsible for the accuracy, integrity and completeness of Client Information.

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), EXCEPT DIRECT DAMAGES, ARISING OUT OF, OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE SERVICES.

IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID BY YOU TO US.

No Waiver. The failure of CHOOZIFY LLC to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.

Severability. If a court of competent jurisdiction finds any provision of this Agreement to be illegal or unenforceable, that provision will be eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.

No Agency. For the purposes of this Agreement, the Parties will at all times be independent contractors with no right to bind or obligate the other in any manner whatsoever. Nothing in this Agreement shall operate to create a partnership between the Parties, or to authorize either Party to act as agent for the other.

Nondisparagement. The Client agrees that it will not publicly disparage Visual Visitor or its services. Client agrees that it will address any dissatisfaction or complaints with CHOOZIFY LLC and/or its services exclusively and directly to CHOOZIFY LLC and will work in good faith with CHOOZIFY LLC to address any such dissatisfaction of complaints privately and directly.

Governing Law; Dispute Resolution; Jurisdiction. TEXAS LAW, without reference to rules governing conflict of laws, shall apply to this Agreement and any dispute between the Parties related hereto. Any such dispute shall be resolved through binding arbitration in Denton County, Texas. The foregoing shall not apply to injunctive relief sought with respect to any breach or alleged breach of our terms.

As a condition precedent to filing an action in a court of competent jurisdiction, the Parties agree to mediate their dispute within forty-five days (45) of either Party receiving notice of a request to mediate. The Parties shall agree on a mediator or in the event the Parties cannot agree, each party shall choose a mediator who in turn shall choose the mediator to hear the dispute. The Parties by written agreement may treat the mediation as binding arbitration. The cost of mediation or binding arbitration shall be borne by the losing Party.

Entire Agreement. This Agreement and the CHOOZIFY LLC policies cited herein, the terms of which are incorporated herein by reference, along with the Order Form executed between the Parties which is incorporated herein by reference, contains the entire understanding of the Parties regarding its subject matter and supersedes all prior agreements between the Parties, both oral and written, and can be modified only by a subsequent written agreement executed by both Parties. To the extent of any conflicts between the terms of this Agreement and the Order Form, the terms of this Agreement shall supersede those contained in the Order Form, except where the Order Form explicitly

Choozify LLC

405 TX-121 Suite A250
Lewisville, TX 75067

By email: [email protected]
By phone: 1-469-619-3788