Terms of Service

PIZZAZZ™ DIGITAL SALES TOOL APP TERMS OF SERVICE

THANK YOU FOR CHOOSING THE PIZZAZZ™ DIGITAL SALES TOOL APP. BEFORE CONTINUING, PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY.

THE FOLLOWING DESCRIBES THE TERMS ON WHICH WORKHORSE DEVELOPMENT INC. (“WHD,” "WE," "OUR" and "US") OFFERS YOU USE OF OUR " PIZZAZZ™ DIGITAL SALES TOOL" APPLICATION AND ITS ASSOCIATED SERVICES (COLLECTIVELY THE "LICENSED APPLICATION"). If you wish to use the LICENSED Application, you must agree to all of the terms of this Agreement. If any of the following terms, or any updates or changes to the following terms, are not acceptable to you, do not use THE Licensed Application. Your continued use of the Licensed Application is deemed TO BE your acceptance of these terms and conditions.

By doing any of the following, you agree to be bound by these TERMS and CONDITIONS and any updates or changes to these TERMS AND CONDITIONS IMPLEMENTED BY WHD:

• By expressly accepting this Agreement at any time, including, but not limited to, selecting "set up," "install," "I agree" or other phrase indicating your assent to this Agreement on any COMPUTER or DEVICE; or
• By downloading the Licensed Application or any upgrade to the Licensed Application; or
• By using the Licensed Application on any COMPUTER OR device.

1. DESCRIPTION OF THE APPLICATION

The Licensed Application allows you to use and display information, which is stored remotely, on Apple devices. Instead of loading content on each device separately, the Licensed Application will launch selected materials in an accessible and custom branded mode so that visitors to a device display can view information such as company literature, videos, and live and off-line web pages and engage in interactive experiences such as entering contests or sending literature to themselves. The Licensed Application will also provide a mode for running a slideshow or video when visitors are not actively engaged with the device. The app also allows for custom branding through the upload of your company logo, the selection of custom fonts and colors, and the organization and upload of marketing materials.

2. YOUR LICENSE TO USE THE LICENSED APPLICATION

• Subject to the terms and conditions of this Agreement, WHD hereby grants to You a limited, nonexclusive, nontransferable, worldwide license to access and to use the Licensed Application, including its associated services, solely for Your own internal business purposes (the "License"). All rights not expressly granted to You are reserved by WHD and, where applicable, WHD’s licensors.

3. YOUR CONDUCT

• This License granted to You for the Licensed Application by WHD is limited to Your use of the Licensed Application on an Apple device running Apple's iOS (collectively, “Apple Device(s)”) that You own or control and as permitted by the usage rules set forth in the Mac App Store, App Store and iBookstore Terms and Conditions (the “Usage Rules”). This License does not allow You to use the Licensed Application on any Apple Device that You do not own or control, and You may not distribute or make the Licensed Application available over a network in violation of the Usage Rules. You may not rent, lease, lend, sell, redistribute, or sublicense the Licensed Application. You may not copy (except as expressly permitted by this License and the Usage Rules), decompile, reverse-engineer, disassemble, unlock, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of WHD and its licensors. If You breach this restriction, You may be subject to prosecution and damages.
• The terms of this License will govern any updates or upgrades provided by WHD that replace and/or supplement the original Licensed Application, unless such update or upgrade is accompanied by a separate license in which case the terms of that license will govern.
• You may use the Licensed Application only for Your internal business purposes and shall not use the Licensed Application to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or which violates a third party’s privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Licensed Application or the data contained therein; or (v) attempt to gain unauthorized access to the Licensed Application or its related systems, networks, servers, storage facilities or any other components that facilitate the operation of the Licensed Application.
• You may not use the Licensed Application for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

4. Billing and Payment of Fees

1. In consideration for the License to use the Licensed Application, and any associated services as described herein or other obligations of WHD expressed in this Agreement, You shall pay WHD the subscription fee at the time of Your purchase of the License for the Licensed Application (the “Monthly License Fee”). To fully utilize the Licensed Application, including storage and access of Your Materials (as defined below), you shall pay WHD a subscription fee either monthly or in one annual lump sum to cover a 12-month subscription.
2. Your Monthly Subscription Fee shall be due and payable on the anniversary date of Your initial Monthly Subscription Fee. All Monthly Subscription Fees shall be assessed to the credit card account You used to provide your initial Monthly Subscription Fee. Any Monthly Subscription Fees received by WHD after the due date shall be subject to a late fee equal to one and one-half percent (1.5%) per month or, if less, the maximum amount allowed by applicable law. You shall pay any collections fees, including reasonable attorney's fees, incurred by WHD in collections. Should your credit card fail, your access to your data in the app will be terminated.
3. WHD reserves the right to adjust the Monthly Subscription Fee at its discretion but shall provide notice of any change in the Monthly Subscription Fee to You no later than sixty (60) days in advance of a change to the Monthly Subscription Fee.
4. You will pay or reimburse WHD for all sales, use, excise, value-added, and gross receipts taxes (collectively, “Taxes”) that may be imposed upon the Licensed Application.

5. Your Access Credentials

1. You will be given, or will be offered an opportunity to create, a username and password (your "Access Credentials"), which you will use to access your account for the Licensed Application. You are responsible for protecting your Access Credentials, and you should not share them with any third parties.
2. You are responsible for all activity occurring under Your user account(s) and shall abide by all applicable local, state, national, and foreign statutes, treaties and regulations in connection with Your use of the Licensed Application, including those related to data privacy, international communications, and the transmission of technical or personal data. You shall notify WHD immediately of any unauthorized use of your Access Credentials or any other known or suspected breach of security associated with the Licensed Application.

6. Intellectual Property Ownership

1. WHD and, where applicable, its licensors, shall exclusively own all right, title, and interest, including all related intellectual property rights including, but not limited to, all copyrights, patents, trademarks, trade secrets or other technology, in and to the Licensed Application.
2. WHD and, where applicable, its licensors, shall exclusively own all right, title, and interest, including all related intellectual property rights including, but not limited to, all copyrights, patents, trademarks, trade secrets or other technology, in and to any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by You or any other party relating to the Licensed Application and shall have no duty to keep any such information confidential.
3. You acknowledge that You will not in any way, directly or indirectly, do or cause to be done, any act or thing contesting or which would reasonably be known to impair or tend to impair any part of WHD’s and, where applicable, its licensors’ right, title and interest in connection with WHD’s intellectual property rights in the Licensed Application. You shall not represent that You have any ownership in WHD’s intellectual property rights in the Licensed Application. You agree that You will not, directly or indirectly, during the term of this Agreement or thereafter, attack the validity of or WHD's ownership of intellectual property rights in the Licensed Application or attack the validity of the License granted herein. You agree to immediately report to WHD any unauthorized use, copying, or distribution of the Licensed Application that is known or suspected by You.

7. YOUR MATERIALS

1. The Licensed Application allows you to transmit and store a variety of information, text, documents, data, video, sounds, graphics or other materials (collectively "Your Materials") on WHD's servers or servers to which WHD has obtained access. WHD does not take any ownership of Your Materials or any related intellectual property rights. However, by using the Licensed Application and/or uploading Your Materials, you grant WHD a non-exclusive, perpetual, worldwide, royalty-free license to store, host, display, modify, transmit, or otherwise use Your Materials for the purpose of providing you with the Licensed Application's services. This license remains in effect even after you cease use of the Services and for as long as, and to the extent which, Your Materials reside on WHD's servers. You acknowledge and agree that due to the inherent nature of electronically stored data, WHD makes no representation or warranty that Your Materials will ever be entirely removed from every location in which they are stored or archived through your use of the Licensed Application.
2. You are responsible for procuring any equipment or services, including, but not limited to, the Apple Device necessary to run the Licensed Application and an internet connection and service necessary to access Your Materials or otherwise utilize the functions of the Licensed Application as well as any fees associated with such equipment and services.
3. We do not screen Your Materials when you upload them to or download them from, our servers. You acknowledge and agree that you are responsible for ensuring that Your Materials do not violate any laws or third party's rights. Accordingly, you represent and warrant that (i) you have the right to utilize Your Materials in connection with the Licensed Application and that by doing so you do not infringe the rights of any third parties including but not limited to, third-party rights to any copyright, patent, trademark or trade secret; and, (ii) any of Your Materials which you use in connection with the Licensed Application are free of viruses, worms, or other code that may manifest contaminating or destructive properties.
4. YOU SHOULD HAVE NO EXPECTATION THAT YOUR MATERIALS WILL BE KEPT PRIVATE OR SECURE. While WHD will take reasonable steps to protect the integrity of the Licensed Application, and the servers and networks which it uses, from unauthorized access, no internet transmission or system is ever fully secure and WHD cannot, and does not, guarantee or warrant that unauthorized third parties will not access Your Materials. Accordingly, you are advised not to transmit or share any sensitive personal/corporate information in connection with the Licensed Application.

8. Safeguarding Your Materials and Your Hardware

You understand that WHD cannot and does not guarantee or warrant the Licensed Application or any files available for downloading from the servers and networks associated with the Licensed Application, including Your Materials, will be free of viruses, worms, or other code that may manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and safeguards to satisfy your particular requirements for maintaining the security of your software and hardware, and for maintaining a means external to the Licensed Application for the reconstruction of any lost data. You should not use the Licensed Application as a means to archive, backup, store or safeguard Your Materials permanently, and WHD will not be responsible if Your Materials are lost, deleted, corrupted, made inaccessible or otherwise no longer available to you.

9. Consent to Use of Data

You agree that WHD may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other services to You. You agree and acknowledge that WHD may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide services or technologies to You.

10. Support

WHD agrees to provide You with email-based support service through which WHD agrees to address Errors in the Licensed Application. "Error" means an error in the Licensed Application which causes a failure to conform to the representations made by WHD and which negatively impacts the performance of the Licensed Application. WHD shall not be required to provide You with instruction on proper installation, use, or setup of the Licensed Application. WHD shall use commercially reasonable efforts to respond to all email inquiries within two business days but makes no representation and does not warrant that it will react to Your inquiry within any specific period of time.

11. Links

This Licensed Application may contain links to other applications or websites ('Sites") which are not maintained by, or related to, WHD. Links to such Sites are provided as a service to users and such linked Sites may not be sponsored by or affiliated with this Site or WHD. WHD has not, and does not, review the Sites linked from the Licensed Application and is not responsible for the content of those Sites. You follow any links from the Licensed Application at your own risk, and WHD makes no representations or warranties about the content, completeness or accuracy of these links or the Sites linked to the Licensed Application. The inclusion of any link to a Site does not necessarily imply endorsement of that Site by WHD.

12. Third Party Intellectual Property Rights

WHD respects the intellectual property rights of others. If you believe that any of your work was copied by another, in a way that infringes your copyrights, and is included in the Licensed Application or displayed by it, please provide WHD with the following information: (i) a description of your work that you believe was infringed; (ii) a description of the work believed to be infringing and where it appears on the Licensed Application and, if possible, the contact information for the person you believe responsible for the infringing act in connection with that work; (iii) your contact information – name, address, telephone number and e-mail address; (iv) your notice must include the statement: “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent or the law.”; and, (v) your notice must include a statement signed by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. Send the written communication via regular mail or email to info@workhorsedev.com.

13. Termination

The Agreement and the License granted herein is effective for one year from the date of Your Annual Subscription Fee and shall be renewed automatically each year upon Your payment of the Annual Fee or until terminated by WHD. Your rights under this Agreement will terminate automatically without notice from WHD if You fail to comply with any term(s) of this Agreement. Upon termination of the Agreement, You shall cease all use of the Licensed Application and shall remove all copies, full or partial, of the Licensed Application from Your computer or device.

14. Nonpayment and Suspension

In addition to any other rights granted to WHD herein, WHD reserves the right to suspend or terminate this Agreement and Your License to access and use the Licensed Application and any related services if Your account becomes delinquent. If WHD initiates a suspension or termination of this Agreement and/or Your License to the Licensed Application, You will not be permitted to access WHD's servers or use the Licensed Application. In addition, if WHD initiates a suspension or termination of this Agreement and/or Your License to the Licensed Application, any information or data stored on WHD's servers may be permanently lost. In the event your License is terminated or suspended due to the delinquency of your account, WHD reserves the right to require you to pay a re-connection fee.

15. NO WARRANTY

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, SECURITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION IS PROVIDED "AS IS" AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WHD HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF SECURITY, AND OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. WHD DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN OR PROVIDED BY THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WHD OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

16. Indemnification

You shall indemnify and hold WHD, its licensors and each such Party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, actions, proceedings, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) (each, a “Claim”) arising out of or in connection with: (i) a Claim alleging that Your use of the Licensed Application and/or Your Materials infringe the intellectual property rights of, or has caused harm to, a third party; (ii) a Claim, which if true, would constitute a violation by You of Your representations and warranties as expressed herein; (iii) a Claim arising from the breach of this Agreement by You or anyone that uses the Licensed Application on an Apple Device owned or controlled by You; or (iv) a Claim arising from Your misuse of the Licensed Application, or any third party's misuse of the Licensed Application through an Apple Device owned or controlled by You.

17. Limitation of Liability

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WHD AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS LICENSED APPLICATION, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE LICENSED APPLICATION, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE LICENSED APPLICATION, ANY INTERRUPTION, INACCURACY, ERROR, LOSS OR UNINTENDED DISCLOSURE OF DATA/YOUR MATERIALS OR OMISSION, REGARDLESS OF CAUSE OR THE CONTENT, EVEN IF WHD OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WHD AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY DAMAGES IN EXCESS OF THE COSTS PAID BY YOU FOR THE LICENSE GRANTED UNDER THIS AGREEMENT DURING THE THREE MONTHS WHICH PRECEDED THE EVENT WHICH GAVE RISE TO SUCH DAMAGES.

18. Internet Delays

The Licensed Application may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. WHD is not responsible for any delays, delivery failures, loss of data or Your Materials, or other damage resulting from such problems.

19. No Export

You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained.

20. General Terms

1. Independent Contractor. It is understood and agreed that the Parties will act solely as independent contractors. Nothing in this Agreement will be construed to create an employment relationship, a partnership or a joint venture between You and WHD. You and WHD are not agents of each other, and have no authority to bind, represent, or speak for each other or their respective divisions, subsidiaries, or affiliates.
2. No Assignment. You may not assign this Agreement or otherwise sublicense or assign any of the rights granted to You under this Agreement. Any attempted assignment of this Agreement or any of the rights granted to You herein shall be null and void, and shall constitute a material breach of this Agreement.
3. Force Majeure. WHD or its Licensors shall not be liable for any failure of performance of the Licensed Application or any of its related services due to causes beyond its reasonable control, including but not limited to: (i) acts of God, terrorism, fire, flood or other catastrophes; (ii) any statute, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; (iii) national emergencies, insurrections, riots, wars; (iv) unavailability of Internet connectivity, telephone Licensed Applications or materials; or (v) strikes, lock-outs, work stoppages, or other labor difficulties.
4. Governing Law and Venue. These Terms of Use will be governed and interpreted pursuant to the laws of Pennsylvania, United States of America, notwithstanding any principles of conflicts of law. You specifically consent to personal jurisdiction in Pennsylvania in connection with any dispute between you and WHD arising out of these Terms of Use or pertaining to the subject matter hereof. The parties to these Terms of Use each agree that the exclusive venue for any dispute between the parties arising out of these Terms of Use or pertaining to the subject matter of these Terms of Use will be in the state and federal courts located within Lancaster County, Pennsylvania.
5. No Waiver. All waivers hereunder must be in writing, and no failure by either Party to enforce any rights hereunder shall constitute a waiver of such right then or in the future.
6. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the economic intent of the Parties, and the remainder of this Agreement will continue in full force and effect.
7. Headings. The paragraph headings and captions of this Agreement are included merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement and in no way limit or affect any of the contents of this Agreement or its provisions.
8. Survival. The provisions of this Agreement that by their nature continue and survive, shall survive any expiration or termination of this Agreement.
9. Entire Agreement. This Agreement constitutes the entire understanding of the Parties related to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written or oral, regarding such subject matter. This Agreement may only be amended or modified in writing signed by authorized representatives of each Party.