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Master Terms and Conditions

1. Definitions

  1. 1.1"Agreement" means these Master Terms and Conditions document (as updated from time to time by ClickGo) together with all Order Forms executed by the parties in effect as of the time of determination.
  2. 1.2"Authorized Users" means Customer's employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement.
  3. 1.3"ClickGo Disabling Device" means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by ClickGo or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of ClickGo or its designee.
  4. 1.4"ClickGo Materials" means the Services, the Solution, all related specifications, Documentation, and ClickGo Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions that are provided or used by or behalf of ClickGo in connection with the Services or otherwise comprise or relate to the Services. For the avoidance of doubt, ClickGo Materials include Resultant Data and any information, data, or other content derived from ClickGo's monitoring of Customer's access to or use of the Services, but do not include Customer Data.
  5. 1.5"ClickGo Systems" means the information technology infrastructure used by or on behalf of ClickGo in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by ClickGo or through the use of third-party services.
  6. 1.6"Customer Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
  7. 1.7"Customer Systems" means all information technology infrastructure (including, without limitation, computers, software, hardware, databases, electronic systems, database management systems, and networks) used or needed to access the Services or the Solution, whether operated directly by Customer or through the use of third-party services.
  8. 1.8"Documentation" means any manuals, instructions, or other documents or materials that ClickGo provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Solution, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
  9. 1.9"Effective Date" means the date listed as such on the applicable Order Form.
  10. 1.10"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or ClickGo Systems as intended by this Agreement. Harmful Code does not include any ClickGo Disabling Device.
  11. 1.11"Intellectual Property Rights" means any and all registered or unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
  12. 1.12"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
  13. 1.13"Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
  14. 1.14"Order Form" means each ClickGo service order document, online registration form, or statement of work executed by Customer from time to time.
  15. 1.15"Partners" means the third-party affiliates, publishers, influencers, or advertising networks that Customer manages, tracks, or interacts with using the Solution.
  16. 1.16"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
  17. 1.17"Process" means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content. "Processing" and "Processed" have correlative meanings.
  18. 1.18"Raw Clicks" means the total volume of clicks Processed by the Solution, calculated as raw events and including blocked or invalid clicks.
  19. 1.19"Resultant Data" means any information or data that is derived from Customer Data or related to Customer's use of the Services and processed in an aggregate or de-identified form for the purpose of improving the Solution, benchmarking, and other business purposes.
  20. 1.20"Services" means the provision of the Solution, along with any implementation, support, or domain administration services provided by ClickGo under this Agreement.
  21. 1.21"Solution" means ClickGo's proprietary affiliate marketing platform, including its user interface, Application Programming Interface ("API"), software, documentation, and related tracking technologies.
  22. 1.22"Term" means the duration of the Agreement, commencing on the Effective Date and continuing until the expiration or termination of all outstanding Order Forms.
  23. 1.23"Terms" means these ClickGo Master Terms and Conditions.
  24. 1.24"Third-Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to ClickGo.

2. Access & License

  1. 2.1Grant of Rights. Subject to the terms and conditions hereof, ClickGo grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Solution during the Term solely for its internal business operations. Such license is conditioned upon Customer's and its Authorized Users' compliance with the provisions of this Agreement and such policies as ClickGo may adopt from time-to-time.
  2. 2.2ClickGo Materials & IP; Reservation of Rights. ClickGo retains all ownership, right, title, and interest in and to the ClickGo Materials, including all Intellectual Property Rights therein. Nothing in this Agreement grants any right, title, interest or authorization in or to (including any license under) the Services, ClickGo Materials, or Third-Party Materials (or any Intellectual Property therein), whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the ClickGo Materials, and the Third-Party Materials are and will remain with ClickGo and the respective rights holders in the Third-Party Materials. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to ClickGo an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
  3. 2.3Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
    1. ClickGo has and will retain sole control over the operation, provision, maintenance, and management of the ClickGo Materials; and
    2. Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, all Customer Systems. Customer has and will retain responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer's and its Authorized Users' access credentials; and (e) all access to and use of the Services and ClickGo Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' access credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Customer accepts full liability for any actions taken through its accounts (whether by Authorized Users or third parties) with or without Customer's knowledge.
  4. 2.4Platform Evolution. ClickGo practices continuous deployment and reserves the right to modify, update, or deprecate features of the Solution at any time to (a) maintain or enhance the quality or delivery of the Solution or Services, (b) to comply with applicable law, (c) to improve performance or security, or (d) for any other reason that ClickGo may determine to be necessary or appropriate from time to time.
  5. 2.5Subcontractors. ClickGo may from time to time engage third parties (each, a "Subcontractor") to perform such services as ClickGo may determine to be necessary or appropriate in its sole and absolute discretion.
  6. 2.6Future Orders. Customer may purchase additional Services by executing additional Order Forms. Each such Order Form shall be deemed a separate contract governed by these Master Terms and Conditions.
  7. 2.7Changes in Pricing Tier. Customer may change their selected Pricing Tier (a) for billing months commencing after the date that Customer elects to make such change, at any time upon written notice to ClickGo, and (b) for billing months commencing on or before the date that Customer elects to make such change, following a written request to ClickGo, it being understood that ClickGo may accept or deny such requests at its sole and absolute discretion.

3. Restrictions & Responsibilities

  1. 3.1Prohibited Use. Customer shall not directly or indirectly and shall not permit any other Person to, access or use the Services or the ClickGo Materials except as expressly permitted by this Agreement. Without limitation of the foregoing, Customer shall not directly or indirectly and shall not permit any other Person to:
    1. copy, modify, or create derivative works or improvements of the Services or ClickGo Materials;
    2. reverse engineer, decompile, disassemble, decode, adapt or attempt to discover, derive or gain access to the source code of the Solution, Services or ClickGo Materials;
    3. access or use the Solution, Services or ClickGo Materials for purposes of competitive analysis or benchmarking, the development, provision, or use of a competing software service or product or any other purpose that is to the ClickGo's detriment or commercial disadvantage;
    4. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or ClickGo Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
    5. bypass or breach any security device or protection used by the Services or ClickGo Materials or suffer access to or use of the Services or ClickGo Materials other than by an Authorized User through the use of his or her own then-valid access credentials;
    6. input, upload, transmit, or otherwise provide to or through the Services or ClickGo Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
    7. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, ClickGo Systems, or ClickGo's provision of services to any third party, in whole or in part;
    8. remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or ClickGo Materials, including any copy thereof;
    9. access or use the Services or ClickGo Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including, without limitation, by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other ClickGo customer), or that violates any applicable Law;
    10. access or use the Services or ClickGo Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
    11. share credentials with (or allow access to the Solution by) anyone other than Authorized Users.
  2. 3.2Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and ClickGo Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify ClickGo of any such actual or threatened activity.
  3. 3.3Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair all Customer Systems on or through which the Services are accessed or used; (b) provide ClickGo with such access to Customer's premises and Customer Systems as is necessary for ClickGo to perform the Services in; and (c) provide all cooperation and assistance as ClickGo may reasonably request to enable ClickGo to exercise its rights and perform its obligations under and in connection with this Agreement.
  4. 3.4Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. CLICKGO HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
  5. 3.5Usage Limits & Technical Strain. ClickGo reserves the right to charge additional fees or suspend Services if Customer's usage places excessive strain on the Solution or on any related infrastructure.
  6. 3.6Partner Management. Customer is solely responsible for its relationships with Partners. ClickGo acts solely as a technology provider and is not a party to any agreement between Customer and its Partners. Customer is solely responsible for (a) all payments to Partners; (b) ensuring Partners comply with applicable laws; and (c) resolving any disputes with Partners.
  7. 3.7Compliance & Content. Customer is solely responsible for its advertising content and must comply with all applicable laws (including, without limitation, the Telephone Consumer Protection Act (TCPA) of (1991), as amended and the CAN-SPAM Act of 2003, as amended. ClickGo provides the Services "As-Is" and assumes no liability for Customer's campaigns or compliance with industry rules.
  8. 3.8Audit Rights. ClickGo may, upon reasonable notice, audit Customer's usage logs, click volume, and advertising content to verify compliance with the Agreement.
  9. 3.9Insurance. During the Term, Customer shall maintain, at its own expense, commercial general liability and cyber liability insurance with coverage limits sufficient to cover its obligations and liabilities under this Agreement.
  10. 3.10No Sensitive Data. Customer acknowledges that the Solution is not designed to comply with the Payment Card Industry Data Security Standard (PCI-DSS) or the Health Insurance Portability and Accountability Act (HIPAA). Except for Routing Data expressly permitted under Section 3.12, Customer shall not use the Solution to collect or process: (a) government-issued identification numbers (e.g., SSNs, passport numbers); (b) credit card numbers, debit card PINs, or related consumer financial account information; (c) "protected health information" as defined by HIPAA; or (d) data revealing racial/ethnic origin, political opinions, or religious beliefs ("Sensitive Data"). ClickGo shall have no liability for any Sensitive Data processed in violation of this Section.
  11. 3.11Anti-Fraud & Prohibited Practices. Customer warrants that it will not use the Solution to engage in, or knowingly allow its Partners to engage in, fraudulent activities, including but not limited to: (a) cookie stuffing; (b) generating artificial clicks or impressions via bots or scripts; (c) deceptive redirects; or (d) cloaking. ClickGo reserves the right to immediately suspend or terminate Customer's account without refund if such activities are detected.
  12. 3.12Financial Data & Payment Routing. Customer may utilize the Solution to collect and store standard Partner payment routing information (such as ACH routing numbers, SWIFT codes, and wire instructions) ("Routing Data"). ClickGo warrants that it employs industry-standard cryptographic protocols (including AES-256-CBC encryption or its equivalent) to secure Routing Data at rest within the Solution's database. Customer acknowledges that ClickGo acts solely as a secure data repository with respect to Routing Data. Customer is solely responsible for: (a) managing internal access controls, user permissions, and authentication within its account to prevent unauthorized viewing or export of Routing Data; and (b) resolving any payment disputes with its Partners. ClickGo assumes no liability for misdirected funds, fraudulent payments, or data exposure resulting from Customer's failure to properly restrict user access within its own administrative environment.
  13. 3.13Accuracy of Configurations. Customer bears full and sole responsibility for the accuracy, quality, and validation of all data and configurations entered into the Solution, including but not limited to payout rules, commission structures, CPA/CPL calculations, and Routing Data. ClickGo shall not be liable for any overpayments, underpayments, or financial discrepancies resulting from Customer's or its Authorized Users' data entry errors or misconfigurations.
  14. 3.14Not a Payment Agent. ClickGo acts solely as a technology and tracking software provider. ClickGo is not a bank, financial institution, money transmitter, or fiduciary. ClickGo does not receive, hold, control, clear, settle, or transmit funds on behalf of Customer, Partners, or any other party. Customer is solely responsible for executing and arranging all actual payments owed to its Partners.

4. Security

  1. 4.1Information Security. ClickGo will employ security measures in accordance with the Data Privacy Addendum, a current copy of which is set forth in Exhibit A, as amended from time to time (the "DPA"). Customer acknowledges that the DPA is or will be available online at https://clickgo.com, and may be updated by ClickGo from time to time. Customer agrees that the then-current version of the DPA (as posted to the website, or, if none has been posted to the website, as attached hereto) shall govern this Agreement and any future Agreements executed by the parties.
  2. 4.2Data Breach Procedures. ClickGo maintains a data breach plan in accordance with the criteria set forth in the DPA and shall implement the procedures required thereunder upon the occurrence of a data breach (as defined in the DPA).
  3. 4.3Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.

5. Domain Name Services

  1. 5.1Administration. For any tracking domains administered by ClickGo on Customer's behalf ("Administered Domains"), Customer authorizes ClickGo to act as the technical administrator.
  2. 5.2Registrant Obligations. Customer agrees to be the designated "Registrant" of record for all Administered Domains and shall comply with all ICANN terms and registrar policies. Customer authorizes ClickGo to submit Customer's contact information to the registrar for this purpose.
  3. 5.3SSL Certificates. ClickGo shall manage the acquisition and renewal of SSL certificates for Administered Domains.

6. Fees & Payment

  1. 6.1Invoicing & Payment Terms. Base subscription fees are invoiced monthly in advance. Any applicable overage fees (calculated based on the actual number of Raw Clicks exceeding the Included Raw Clicks for the selected Pricing Tier) are calculated and invoiced monthly in arrears, concurrently with the base fee for the following month. All payments are due upon receipt of the invoice.
  2. 6.2Late Payments. Unpaid amounts are, commencing on the fifth day after such amounts becomes due, subject to a finance charge of 1.5% per month (or the maximum allowed by law) plus all expenses of collection. ClickGo may immediately suspend access if any undisputed invoice is more than 10 days overdue or if an automatic payment fails and is not promptly remedied.
  3. 6.3No Deductions or Setoffs. All amounts payable to ClickGo under this Agreement shall be paid by Customer to ClickGo in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
  4. 6.4Taxes. All fees and amounts payable hereunder are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, excise, value-added and similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on ClickGo's net income.
  5. 6.5Proration.
    1. FIRST PARTIAL MONTH. Upon execution of this Agreement, CUSTOMER will be charged the full Base Subscription Fee listed in the order form FOR the SELECTED Pricing Tier (without discount or proration) for the calendar month during which THE AGREEMENT IS EXECUTED (the "First Partial Month"), regardless of the number of days remaining in such First Partial Month.
    2. FIRST FULL CALENDAR MONTH. For the first full calendar month commencing after the Effective Date, CUSTOMER will be charged (on the first business day of such calendar month) a prorated BASE SUBSCRIPTION FEE for the SELECTED Pricing Tier based on the number of days from the Effective Date to the last day of the First Partial Month.
    3. OVERAGE FEES. During any partial calendar month during the term of this agreement, CUSTOMER'S number of Included Raw Clicks shall be prorated for the number of days in the Term during such calendar month. Overage fees will apply only to Raw Clicks processed in excess of the Included Raw Clicks, as so prorated.
  6. 6.6Payment Methods and Surcharges. Customer may elect to pay all amounts due under this Agreement via ACH/bank transfer or credit card. If Customer elects to pay via credit card, ClickGo will apply a standard service fee of 2.9% to the total transaction amount to cover the cost of credit card acceptance. This service fee is non-refundable and will be included on the applicable invoice or payment receipt. No service fee or surcharge will be applied to payments made via ACH or direct bank transfer. ClickGo reserves the right to refuse credit card payments in jurisdictions where such surcharges are prohibited by law.

7. Data & Proprietary Rights

  1. 7.1Customer Data. As between Customer and ClickGo, Customer retains all right, title, and interest in and to all Customer Data, provided, Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to ClickGo or its Subcontractors to enforce this Agreement and exercise their respective rights and perform their respective obligations under this Agreement.
  2. 7.2Feedback. If Customer provides any suggestions, enhancement requests, recommendations, or other feedback regarding the ClickGo Materials ("Feedback"), Customer hereby grants ClickGo a perpetual, irrevocable, royalty-free, worldwide license to use, incorporate, and monetize such Feedback without restriction.
  3. 7.3Data Retention. Customer acknowledges that ClickGo is not an archival service. ClickGo reserves the right to delete Customer Data (including transaction logs and click history) older than 90 days. Upon termination of this Agreement, ClickGo shall have no obligation to maintain or provide any Customer Data and may delete all Customer Data in its systems or otherwise in its possession or under its control.

8. Confidentiality

  1. 8.1Confidential Information. As used herein (a) "Confidential Information" means any non-public information disclosed by one party ("Discloser") to the other party ("Recipient"), whether orally, in writing or otherwise, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information. Customer's Confidential Information includes Customer Data and Routing Data. ClickGo's Confidential Information includes the Solution, API, documentation, and pricing terms. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Discloser; (b) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation; (c) is received from a third party without breach of any obligation; or (d) was independently developed by the Recipient.
  2. 8.2Protection & Use. The Recipient will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Discloser in writing, limit access to Confidential Information to those of its employees, contractors, and agents who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Recipient (its "Representatives"). The Recipient will be liable for any breach of such confidentiality obligations by any of its Representatives.
  3. 8.3Compelled Disclosure. The Recipient may disclose Confidential Information to the extent compelled by law or court order, provided the Recipient gives the Discloser prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Discloser's cost, if the Discloser wishes to contest the disclosure.

9. Term & Termination

  1. 9.1Term. Subject to the remainder of this Section 9, the term of this Agreement shall be as set forth on the Order Form.
  2. 9.2Termination. ClickGo may terminate this Agreement, effective on written notice to Customer, if Customer:
    1. fails to pay any amount when due hereunder, and such failure continues more than 10 days after the applicable due date;
    2. breaches any of its obligations under Section 3.1 or Section 8 or breaches any other provision of this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the ClickGo provides Customer party with written notice of such breach;
    3. becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;
    4. files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law;
    5. makes or seeks to make a general assignment for the benefit of its creditors; or
    6. applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
  3. 9.3Effect of Termination. Upon termination of this Agreement:
    1. ClickGo may disable all Customer and Authorized User access to the ClickGo Materials;
    2. all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
    3. Customer shall immediately cease all use of any Services or ClickGo Materials and (i) return to ClickGo, or at ClickGo's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any ClickGo Materials or ClickGo's Confidential Information; (ii) permanently erase all ClickGo Materials and ClickGo's Confidential Information from all systems Customer directly or indirectly controls; and (iii) confirm to ClickGo in writing that it has complied with the requirements of this Section 9.3;
    4. if ClickGo terminates this Agreement, all amounts that would have become payable had the Agreement remained in effect until expiration of the then-current committed Term will become immediately due and payable, and Customer shall pay such Fees, on receipt of ClickGo's invoice therefor.
  4. 9.4Dormant Accounts. ClickGo reserves the right to terminate any unpaid account that has been inactive for a continuous period of 90 days.
  5. 9.5Suspension or Termination of Services. ClickGo may, directly or indirectly, and by use of a ClickGo Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer's, any Authorized User's, or any other Person's access to or use of all or any part of the Services or ClickGo Materials, without incurring any resulting obligation or liability, if: (a) ClickGo receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires ClickGo to do so; or (b) ClickGo believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Documentation; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 9.5 does not limit any of ClickGo's other rights or remedies, whether at law, in equity, or under this Agreement.

10. Warranty Disclaimer; Limitation of Liability

  1. 10.1Disclaimer. THE SOLUTION IS PROVIDED "AS IS". CLICKGO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
  2. 10.2Liability Cap. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF CLICKGO AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO CLICKGO UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  3. 10.3Exclusion of Damages. IN NO EVENT WILL CLICKGO OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; (E) LOSS OF GOODWILL OR REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

11. Indemnification

Customer shall indemnify, defend, and hold harmless ClickGo and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a "ClickGo Indemnitee") from and against any and all Losses incurred by such Person resulting from:

  1. 11.1Customer Data, including any Processing of Customer Data by or on behalf of ClickGo in accordance with this Agreement;
  2. 11.2any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including ClickGo's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User;
  3. 11.3allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement;
  4. 11.4negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement; or
  5. 11.5Customer's use of the Solution, relationships with Partners, or violation of applicable laws.

12. Customer Representations, Warranties, and Covenants

Customer represents, warrants, and covenants to ClickGo that:

  1. 12.1it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
  2. 12.2it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
  3. 12.3the execution of this Agreement by the Person whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of Customer;
  4. 12.4when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of Customer, enforceable against Customer in accordance with its terms.
  5. 12.5Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by ClickGo and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

13. Dispute Resolution

  1. 13.1Arbitration. Except as otherwise expressly set forth herein, any dispute arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration shall take place in Florida.
  2. 13.2Class Action Waiver. THE PARTIES AGREE THAT ANY CLAIMS WILL BE ADJUDICATED ON AN INDIVIDUAL BASIS, AND EACH PARTY WAIVES THE RIGHT TO PARTICIPATE IN A CLASS, COLLECTIVE, OR OTHER JOINT ACTION WITH RESPECT TO ANY SUCH CLAIMS.
  3. 13.3Equitable Relief. Notwithstanding the foregoing, ClickGo shall be entitled to seek injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property rights.
  4. 13.4Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. Without in any way limiting Section 13.1 hereof, to the extent that any legal suit, action, or proceeding is permitted in connection with this Agreement or the licenses granted hereunder, such suit, action or proceeding will be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in the city of Miami, Florida, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
  5. 13.5Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
  6. 13.6Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 8, Section 3.1 or Section 3.2, would cause ClickGo irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, ClickGo will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

14. General

  1. 14.1Amendment and Modification; Waiver. Without in any way limiting ClickGo's right (a) to modify any Order Form on a prospective basis in accordance with the express terms thereof, (b) to update these Terms as set forth in any applicable Order Form, it being understood that the then-current version of these Terms (as posted to the website, or, if none has been posted to the website, as attached to the applicable Order Form) shall govern such Order Form, or (c) to update the DPA in accordance with Section 4.1, no other amendment to this Agreement is effective unless it is in writing signed by each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  2. 14.2Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  3. 14.3No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
  4. 14.4Publicity. ClickGo may identify Customer as a client in marketing materials. Customer agrees to cooperate with ClickGo on a press release relating to the Services as ClickGo may reasonably request from time to time.
  5. 14.5Survival. The expiration or termination of this Agreement will not affect any rights or obligations that (a) are expressly intended to survive such expiration or termination, or (b) accrued prior to such expiration or termination. Without limiting the generality of the foregoing, the rights and obligations of the Parties under Sections 2.2, 2.3., 6 (solely with respect to any amounts accrued and owed by Customer prior to the effective date of termination), 7, 8, 9.3, and 10-14 of this Agreement, together with any other provision of this Agreement that by its nature and context should survive, shall survive any expiration or termination of this Agreement for any reason.
  6. 14.6Assignment. This Agreement is not assignable, transferable, or sublicensable by Customer except with ClickGo's prior written consent.
  7. 14.7Force Majeure. ClickGo shall not be liable for any failure to perform its obligations where such failure results from any cause beyond ClickGo's reasonable control.
  8. 14.8Export Control. Customer may not remove or export from the United States or allow the export or re-export of the Services or Solution in violation of any restrictions, laws, or regulations of the United States Department of Commerce or Office of Foreign Assets Control.
  9. 14.9Entire Agreement. This Agreement constitutes the entire agreement between the parties. In the event of a conflict between these Master Terms and Conditions and any Order Form, the Order Form shall prevail with respect to the specific commercial terms (fees, quantity, duration) therein, while these Master Terms and Conditions shall prevail for all other legal and operational matters.