1. YOUR DIVVY ACCOUNT(s): By accepting Divvy Technologies Inc.’s (Divvy’s) Terms and Conditions, You are applying for an account(s) with Divvy. You represent and warrant: (a) You have binding decision-making authority for Your organization and are authorized to digitally commit (“click to agree”) to Divvy’s Terms and Conditions on behalf of your organization; (b) Your organization has decision-making authority for the physical Venue(s) Divvy will establish account(s) for; (c) You have accurately represented the true Venue location(s) in your account application(s) and (d) Any bank deposit instructions You provide will be on behalf of Your organization.
You acknowledge Divvy may need more information regarding Your Venue(s) and may refuse to provide any services and equipment contemplated in Divvy’s Terms and Conditions should Divvy, in its sole discretion, not approve your account. By accepting Divvy’s Terms and Conditions, You agree to permit Divvy, its advertising, technology, and other partners to deliver to Your Venue(s), for purposes of fulfillment of Divvy’s Terms and Conditions, (i) digital signage and related place-based advertising Equipment; (ii) advertisements not prohibited by the New Jersey division of Alcohol Beverage Control (ABC) and other compliant content (“Ads”) and, (iii) related place-based advertising technologies such as, wireless messaging, mobile applications, and other related Services (Collectively “Equipment” and “Services”). You understand Divvy has and will continue to invest significant time and money aggregating Venues to be relevant to advertisers. You understand Divvy has and will continue to invest significant time and money in advertiser relationships, connectivity, infrastructure, and physical Equipment to provide its Services. You understand that Divvy Equipment and Services are tangible assets. You understand, acknowledge, and agree that said tangible assets and monetary payments from Divvy, to You, constitute valuable consideration granted in exchange for Your strict adherence to all provisions of Divvy’s Terms and Conditions, herein.
2. YOUR INCOME: For as long as Divvy’s Terms and Conditions remain in effect, Divvy shall maintain a Thirty Percent (30%) Gross Profit account(s) for You as described herein. For the purpose(s) of these Terms and Conditions, “Gross Profit” is NOT intended to include our general overhead. “Gross Profit” is intended to mean Digital Advertising Revenues generated from Your Venue(s), less the expenses associated with providing Divvy’s revenue-producing Equipment and Services to You. Expenses typically consist of, but are not limited to, equipment costs, amounts paid to governmental or quasi-governmental entities, sales commissions, advertising agency expenses, advertiser marketing costs, customer refunds, etc. Because different technical or other related expenses may have varying degrees of impact on the Services to Your specific Venue(s), the methodology in which “Gross Profit” is calculated will be shared with You but shall be at Divvy’s sole discretion. Each Divvy account will be associated with a single Venue.
3. HOW YOU GET PAID: Beginning with the first month in which the cumulative earned balance in Your Divvy account(s) exceeds $1,200.00 (one thousand, two hundred dollars) (our estimated per-Venue onboarding costs, not including recoverable “as new” equipment), Divvy will pay Your Gross Profit share of the realized (received) earnings in Your Gross Profit revenue share Account(s) for the immediately preceding month, as legally permissible. This payment will be made within thirty (30) days after the end of the calendar month. To ensure proper payment, You are responsible for providing and maintaining accurate contact and banking information with Divvy. Unless otherwise agreed, Divvy will electronically transfer funds to the account designated by You in Your Divvy account application. You are responsible for all electronic transfer fees incurred by both You and Divvy. Divvy may withhold and offset any payments to You if advertisers require refunds, advertisers’ default, or if chargebacks are incurred by Divvy. To dispute any payment or withholding, You must notify Divvy, in writing, within thirty (30) days of the payment or withholding, or Your dispute shall be deemed waived.
4. YOUR INSURANCE: You agree to use all reasonable efforts to include Divvy equipment under your existing policies for fire, theft, damage, and other such risks at a recovery value of no less than $2,400.00 (two thousand, four hundred dollars). Upon Divvy’s request, You agree to make the insured amount payable to Divvy and provide proof of insurance to Divvy. Uninsured equipment may be recalled by Divvy, at Divvy’s sole discretion, at any time.
5. OUR UNDERSTANDING AND RESPONSIBILITIES: Divvy grants You a revocable, non-exclusive, non-sub-licensable license to use Divvy’s trade names, trademarks, service marks, logos, domain names and other distinctive brand features in connection with Your use of Divvy services. Divvy may revoke this license at any time, for any reason at Divvy’s sole discretion. Divvy may include Your name, brands, and marketing materials for similar promotions. You acknowledge that Divvy’s advertising and exchange partners may transact auctions where multiple Buyers may compete simultaneously against each other for the right to deliver advertisements to Your Venue(s). You acknowledge and agree that Divvy makes no guarantee regarding the level of impressions and/or engagements that Your Venue(s) may receive or the timing and delivery of such impressions. You may use Divvy Services only as permitted by Divvy’s Terms and Conditions and applicable law. You shall only interact with Divvy Services via a Divvy provided interface. You will not attempt to, and will not permit or assist any other entity in (a) Unauthorized use; (b) Copying, reproducing, modifying, damaging, disassembling, decompiling, reverse engineering or creating derivative works of any portion of Divvy provided Equipment and Services; (c) Breach, disable, tamper with, or develop or use (or attempt) any workaround for any security measure provided by Divvy or its exchange and advertising partners; (d) Use the Services or any part thereof in any manner other than as permitted herein; (e) Use the Services in a way that infringes or misappropriates a third party’s intellectual property rights or personal rights; (f) Engage in any promotional or marketing activities that are deceptive, misleading, obscene, defamatory or illegal; (g) Use any other device, software or routine to interfere or attempt to interfere with the proper working of the Services or any activities conducted on Divvy’s servers; (h) Impose an unreasonable or disproportionately large load on the Divvy’s infrastructure; (i) Interfere with others’ use of the Services; or (j) Alter or tamper with any information or materials on or associated with Divvy Equipment and Services.
6. YOUR INSTALLATION: Unless otherwise agreed, You are responsible for the installation, maintenance, and cleanliness of Divvy patron-facing equipment. You are responsible for ensuring that Divvy’s equipment has consistent internet connection, power, and accessibility. You are responsible for ensuring that software and networking equipment is used strictly in accordance with Divvy’s Terms and Conditions. You are responsible for ensuring that Divvy’s Digital Signage Equipment remains in a highly visible location inside Your Venue. You agree to abide by all reasonable Signage placement instructions Divvy provides for as long as Divvy’s Terms and Conditions are in effect.
7. YOUR TAXES: You are responsible for all taxes associated with Your Services.
8. THE TERM OF DIVVY’S TERMS AND CONDITIONS: Divvy’s Terms and Conditions shall commence upon your acceptance (agreeing to these Terms and Conditions) and shall expire on a per Venue basis, three (3) years following the first day an advertisement was displayed in a specific Venue.
9. RENEWAL OF DIVVY’S TERMS & CONDITIONS: Unless You notify Divvy, in writing, thirty (30) days prior to the end of the Term, these Terms and Conditions will automatically renew, pursuant and subject to the published Divvy Terms and Conditions, at the time of expiration of the Initial Term.
10. YOUR NON DISCLOSURE RESPONSIBILITY: You acknowledge that during the course of Divvy’s Terms and Conditions Divvy trade secrets will include but not be limited to: technical methods, processes, systems, techniques, procedures, inventions, and business information including pricing, income, customer and investor lists, suppliers, financial and marketing information, production, or plans. You shall not during, or at any time during or for a period of two (2) years after the termination Divvy’s Terms and Conditions, disclose or divulge to others any trade secrets, confidential information, or any other proprietary data acquired through use of the Equipment and Services or from Divvy. You agree that upon the termination of Divvy’s Terms and Conditions, You shall return to Divvy all Equipment, Service documentation and other information, including but not necessarily limited to: reports, correspondence, customer lists, and all other materials and all copies thereof relating in any way to Divvy’s business. Divvy shall be entitled to full injunctive relief, and any other legal remedies available.
11. YOUR NON-COMPETE COVENANTS. You agree that during and for a period of two (2) years after the termination of Divvy’s Terms and Conditions, You shall not compete with Divvy directly or indirectly by initiating, participating in, or assisting competitive Digital Signage and related place-based digital advertising offerings in Your Venue(s). You understand and agree that Divvy shall be entitled to full injunctive relief and any other legal remedies available, should you fail to comply with Your covenants herein.
12. CHANGES TO EQUIPMENT, SERVICES, TERMS AND CONDITIONS: Divvy may modify, add or remove functionalities and features of Equipment and Services or stop Services altogether, at any time. Divvy may modify its Terms and Conditions at any time, at its sole discretion. Modifications to Divvy’s Terms and Conditions will be posted on the Divvy website, will not apply retroactively, and generally become effective fourteen (14) days after they are posted. However, changes that affect functionalities or changes made for legal reasons will be effective immediately.
13. SEVERABILITY: If any part or parts of Divvy’s Terms and Conditions shall be held unenforceable, for any reason, the remainder of Divvy’s Terms and Conditions shall remain in full force and effect. If any provision of Divvy’s Terms and Conditions is deemed invalid and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
14. ASSIGNMENT: Neither Divvy’s Terms and Conditions nor Your rights herein are assignable, except with Divvy’s prior written consent.
15. LIMITATION OF LIABILITY: Divvy will not be liable and disclaims any liability for any special, punitive, incidental, or consequential damages, lost profits, or lost business opportunities arising out of or related to these Terms and Conditions, even if Divvy has been advised of the possibility of such damages. Divvy’s aggregate liability arising under these Terms and Conditions will not surpass the amount of the referral fees arising under these Terms and Conditions in the twelve (12) months prior to the claim.
16. BINDING EFFECT: The covenants contained in these Terms and Conditions shall apply to and bind the Parties and the heirs, legal representatives, successors and permitted assigns of the Parties.
17. MUTUAL INDEMNIFICATION: You and Divvy shall hold each other harmless, and indemnify the other, each other’s directors, officers, agents, and employees against any and all liability and damage, including but not limited to, direct, indirect or consequential loss, arising from use of the Equipment and Services contemplated in these Terms and Conditions, even if the party at fault has been advised of the possibilities of such damages.
18. GOVERNING LAW: Divvy’s Terms and Conditions shall be governed by and construed in accordance with the laws of the State of New Jersey
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