1. Services. Company shall provide the services described on the cover page to this Agreement (collectively the “Services”) and Client shall timely pay the associated non-refundable One Time Fees and Recurring Fees as stated on the cover page to this Agreement (the “Service Fees”). Company shall have the right in its sole discretion to immediately suspend the Services without abatement of Client’s continuing obligation to pay the Service Fees if Client fails to pay an invoice within ten (10) days of the date it is due.
2. Invoices. Company will bill Client each month for the applicable Service Fees. Payment is due in full upon receipt of the applicable invoice. Company will invoice one-time setup fees upon execution date of this agreement and Company may invoice for the license fee when the platform access is granted. If payment is not made within twenty (20) days of Client’s receipt of the invoice, Client shall pay a late fee of 1.5% plus interest at the rate of .008333 per month, or the maximum allowed by law if less, until the entire amount due has been paid in full. Client shall reimburse Company for any reasonable collection agency fees and attorneys’ fees associated with Company’s attempts to recover amounts due from Client for an overdue and undisputed invoice, and $25 for any returned checks.
3. Term. The initial term is set forth on the cover page of this Agreement (the “Initial Term”). After the expiration of the Initial Term, this Agreement shall automatically renew for additional terms of one (1) year each (each “Renewal Term”), unless either party provides written notice to the other party of its intention to not renew this Agreement at least thirty (30) days prior to the expiration of the Initial Term or any applicable Renewal Term. Upon each Renewal Term, the Company reserves the right to
increase Service Fees.
4. Termination. Either party may terminate this Agreement in the event of a material breach of this Agreement by the other party, if such breach is not cured within twenty (20) days following delivery of written notice to the breaching party which specifies the breach with reasonable particularity. Notwithstanding any other provision of this Agreement, Company may terminate this Agreement immediately if: i) Client’s use of the Services is determined by Company to violate any law or regulation; ii) Client fails to comply with Sections 5 or 11 through 17 of this Agreement; or (iii) Client has an overdue balance for any Services more than forty-five (45) days. 4.1 Effect of Termination. If Company terminates Client’s account, Client must immediately stop using the Software and associated documentation. After termination, Company will provide upon written request the list of unsubscribe requests from within 30 days of Client’s last email campaign, but will not process said requests. If Client’s account is classified (at Company’s sole discretion) as inactive for over 60 days, Company has the right to permanently remove Client’s subscriber data. 4.2 DISABLING DEVICE. THE SOFTWARE OR PLATFORM MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED UPON TERMINATION OR SUSPENSION OF THIS AGREEMENT. CLIENT WILL NOT TAMPER WITH THIS DISABLING DEVICE OR THE SOFTWARE. CLIENT SHALL TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE SOFTWARE OR PLATFORM CAN NO LONGER BE USED.
5. Client Responsibilities. Client shall familiarize itself with and abide by all applicable local, state, national and international laws and regulations, and is solely responsible for all acts or omissions that occur under Client’s account, including, without limitation, the content of the messages and broadcasts transmitted through the Services. Without limiting the foregoing, Client agrees to familiarize itself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the Services. The Telephone Consumer Protection Act (“TCPA”), the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and text messages. Company is in no way attempting to interpret any laws, rules, or regulations for Client. This information is not intended to replace Client’s responsibility to familiarize itself with and abide by the legal requirements pertaining to its messages, broadcasts and campaigns prior to using the Services. Client is ultimately responsible to make its own informed decisions regarding its messages, broadcasts, and campaigns.
7. Disclaimer. The Services are provided “AS IS” and is only responsible for ensuring that the Client’s messages are processed and leave the Company network as described. Client acknowledges and agrees that the Services contain inherent limitations (e.g., number of messages per hour) and the Services are subject to such limitations.
8. Company Property. The Software and any associated documentation are and shall remain the sole and exclusive property of Company, and is licensed, not sold. All rights not granted to Client herein are expressly reserved by Company. Client may not remove any material belonging to Company from any web site or any of Company’s databases. Client shall not use Company’s name, logos or any related product and service names, design marks and slogans in any advertising, publicity or any other commercial manner without the prior written consent of Company. All worldwide right, title and interest in and to the Services, and all components thereof, including all intellectual property rights therein, is the sole property of Company or its third-party
9. Trade Secrets/Confidentiality. Client acknowledges that Company possesses valuable confidential, proprietary and trade secrets, and agrees to maintain the confidentiality of Company’s proprietary, confidential and/or trade secret materials. Company shall maintain as confidential Client’s e-mail, phone, fax, physical mailing addresses, instant message handles and pager list(s).
10. Analytics. Client acknowledges and agrees that Company may use Client’s email address and SMS lists to conduct analysis for the benefit of Client, which may include general, anonymous determinations of location, gender, business affiliations, etc. Client hereby grants to Company the right to conduct such analytics and to provide its email address and SMS lists to third parties solely for the purpose of conducting such analysis for the benefit of Client. Company will upon request provide the results of the analysis to Client.
11. Global Permanent Removal List. Company maintains a Global Permanent Removal List which contains addresses and domains which it will not allow any customer to add to a database. Client understands and agrees that Company has full discretion to block the uploading of any e-mail address which it has placed on such a list, and will not be liable for the blocking of any such address from any Client or customer database. Client agrees that all email address and SMS lists that Client provides to Company will not contain email addresses or SMS numbers of any person that has previously opted-out of receiving emails, SMS or other communications from Client (or from Client’s previous email marketing service provider).
12. Restrictions. Neither Client nor anyone acting on its behalf shall: (1) use or copy Company’s platform, network, marks or website or its associated documentation except as specifically provided in this Agreement; (2) modify or merge Company’s platform, network, marks or web site or its associated documentation; (3) publish, display, disclose, sell, rent, lease, modify, loan, distribute, create or otherwise make available derivative works based on Company’s platform, network, marks or web site or its associated documentation or any part thereof, in whole or in part, to any other person or entity; (4) remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on Company’s platform, network, marks or web site or its associated documentation; (5) reverse engineer, decompile, translate, adapt, or dissemble Company’s platform, network, web site or its associated documentation, or attempt to create the source code from the object code for Company’s platform, network, or web site or its associated documentation; or (6) sublicense or assign the license for Company’s platform, network, marks or web site or its associated documentation.
13. Unsubscribe Requests. Client shall include the relevant subscribe/unsubscribe information (and a physical address for the CAN SPAM Act and an abuse link to Company’s abuse system) provided by Company in each message Client sends using Company’s email platforms. Client shall also honor in a timely manner all unsubscribe requests sent directly to Client from those who elected not to use Company’s automated subscribe/unsubscribe features.
14. Content. Client shall be solely responsible for the text, files, images, photos, videos, sounds, musical works, works of authorship, links, or any other materials that Client submits, transmits or otherwise makes available through the Services (collectively, the “Content”). Client acknowledges and agrees that Client, and not Company, has full responsibility for all Content, including its legality, accuracy, appropriateness, and trademark and copyright ownership. Client shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm resulting from any Content. Client represents and warrants that: (i) Client owns all Content provided by Client through the Services or otherwise has the applicable licenses necessary to use such Content in accordance with the terms of this Agreement, and (ii) the transmission of Client’s Content through the Services does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity. Client agrees to pay for all royalties, fees, damages and any other monies owing any person because of any Content provided by Client to or through the Services.
15. Prohibited Acts of Client. When providing Content or otherwise using the Services, Client shall not: 15.1 send any unsolicited e-mails, instant messages, wireless text messages (SMS), voice messages or faxes or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation; 15.2 send any unsolicited e-mails, instant messages, wireless text messages (SMS), voice messages or faxes to email addresses, phone/pager numbers, landline phones or fax machines, obtained from any purchased or harvested lists in which the recipient did not provide the ‘Express Written Consent” required by the Federal Communications Commission to receive Client’s message (or Client’s customers’ messages); 15.3 send any e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that harass, embarrass, defame, abuse, threaten, libel, slander or otherwise violate the legal rights of any individual, group, or organization; 15.4 send any e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contain or link to any pornographic or sexually explicit content, racially or ethnically objectionable content, content that directly or indirectly promotes the use of any illegal substances, content that violates laws or regulations designed to protect minors, or other content deemed to be offensive or inappropriate by Company; 15.5 send any e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contain material that infringes, misappropriates or violates any patent, trademark, trade secret, copyright, rights of privacy or publicity or any other proprietary rights of any party; 15.6 send any e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contain a computer virus or any other code, program or file that could damage, harm, or otherwise disrupt the operation of anyone else’s computer or storage device, or violate the privacy or security of any individual, group or organization; 15.7 perform or promote illegal activities or promote physical harm or injury against any individual, group or organization, or promote any act of cruelty to animals; 15.8 impersonate, use the name of (without express permission) or misrepresent any individual, group or organization; 15.9 violate any applicable local, state, federal or international laws or regulations or perform any activity that would cause Company to violate any law, statute or regulation; 15.10 transmit or otherwise make available any Content that is false, harmful, threatening, abusive, tortuous, defamatory, libelous, disparaging (including disparaging of Company), vulgar, obscene, pornographic, or that promotes, furthers or incites violence, terrorism or illegal acts, or is otherwise objectionable (as reasonably determined by Company); 15.11 Submit any copyrighted or trademarked materials without the express, written permission from the owner; 15.12 Solicit personal information from anyone under 13 years of age; or 15.13 Upload or transmit viruses, Trojan horses or other harmful, disruptive or destructive files or post material that interferes with any third party’s uninterrupted use and enjoyment of any of the Services. This list of prohibitions provides examples and is not complete or exclusive. Company reserves the right to terminate Client’s access to Client’s account or Client’s ability to use the Services if Client violates these or similar prohibitions, in which case Company shall provide Client with fifteen (15) days advance written notice of Company’s intent to terminate and shall also provide to Client a complete, up-to-date backup copy of Client’s mailing list(s).
16. Client Representations and Warranties. Client represents, covenants and warrants that Client shall use the Services only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and all other applicable laws (including but not limited to laws and regulations related to spamming, privacy, obscenity or defamation). In the event Client uses the Services to conduct telemarketing activities, Client warrants to Company that Client will take all required actions necessary to comply with applicable state and federal “DO NOT CALL” and telemarketing registration statutes and regulations. Client represents and warrants that neither Client nor anyone acting on its behalf will use any of the Services in a manner which will result in a violation of any laws or regulations applicable to any such Services, including but not limited to the Federal Telephone Consumer Protection Act, 47 U.S.C. § 227, and related regulations promulgated by the Federal Communications Commission and the Federal Trade Commission. Client shall use the Services only for “opt-in” lists, lists in which the recipient has voluntarily signed up or otherwise consented in writing to be on Client’s list and has not requested to be unsubscribed. Any messages sent to users who did not request to be on Client’s or Client’s customers’ lists, whether purchased or otherwise obtained without the recipients’ consent, shall be deemed as “Spam” and may result in termination of Client’s account without refund, and may result in legal action against Client for violating Company’s “No Spam” policy.
18. Equitable Remedies. Client acknowledges and agrees that, if Client breaches this Agreement, Company shall be entitled to equitable relief to protect its interests, including preliminary and permanent injunctive relief, and Client further agrees to waive any right or claim to which Client may be entitled to immunity or exemption from liability. Company may also seek damages resulting from such breach.
19. Assumption of Risk. The Software and its platforms may have errors and may produce unexpected results. Except as otherwise expressly provided herein, Client agrees that any use of Company’s Software or platforms will be entirely at its own risk. Client agrees to backup Client’s information and take other appropriate measures to protect programs and data. Client may not allow a third party to use Company’s account and agrees to indemnify and hold Company harmless from any damages or
claims arising from such use by any third party.
20. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY AND ITS THIRD-PARTY LICENSORS MAKE NO WARRANTIES, AND EXPRESSLY DISCLAIM ALL WARRANTIES, OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. COMPANY AND ITS THIRD-PARTY LICENSORS DO NOT WARRANT THAT THE SERVICES WILL MEET ANY REQUIREMENTS OR NEEDS OF CLIENT, OR THAT THE SERVICES WILL BE ERROR FREE, OR OPERATE IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED. COMPANY DOES NOT WARRANT THAT THE SOFTWARE’S PLATFORM IS COMPATIBLE WITH ANY OTHER PARTICULAR PLATFORM. CLIENT SPECIFICALLY UNDERSTANDS THAT THERE ARE MANY REASONS, OUTSIDE OF THE CONTROL OF COMPANY, THAT E-MAILS, INSTANT MESSAGES, TEXT MESSAGES, PHONE MESSAGES AND FAX MESSAGES MAY NOT REACH THEIR INTENDED RECIPIENTS, AND UNDERSTANDS THAT COMPANY CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR THE ULTIMATE ARRIVAL OF CLIENT’S MESSAGES.
21. LIMITATION ON LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY OR ITS THIRD-PARTY LICENSORS BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, PUNITIVE OR EXEMPLARY DAMAGES) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES OR PLATFORM, OR FOR ANY CLAIM BY ANY OTHER PARTY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY OR ITS THIRD-PARTY LICENSOR’S TOTAL, AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), EXCEED THE AMOUNT PAID UNDER THIS AGREEMENT FOR THE SERVICES. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION ARE REASONABLE AND THAT THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED UPON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
22. Intellectual Property Infringement. If Client receives a claim that the use of the Services infringes a patent, copyright or other intellectual property right without regard to the Content supplied by Client, Client must promptly notify Company of same in writing. Company, at its own expense and option, may (i) defend and settle such claim, (ii) procure Client the right to use the platform, (iii) modify or replace the platform to avoid infringement; or (iv) refund the license fees Client paid, if applicable. These are Client’s sole and exclusive remedies for any and all claims Client may have against Company arising out of or in connection with the use of Company’s platform, whether made or suffered by Client and whether based in contract or in tort.
23. Indemnification. Client agrees to defend, indemnify and hold Company and its employees, officers, and directors, harmless against any Claim that arises out of, relates to or results from: (a) the breach by Client or any of its customers of any warranty or obligation contained in this Agreement; (b) any use by Client or any of its customers, or an account or computer owned by Client or any of its customers, of the Services; (c) any negligent or intentional act or omission of Client or any of its customers, or any of their respective officers, directors, agents or employees, or (d) a violation of applicable law by Client or any of its customers or any of the officers, directors, employees or agents of Client or any of its customers. This Section 23 will survive the termination or expiration of this Agreement.
24. MT/MO Messages. A mobile-terminated (“MT”) message is any SMS message transmitted by Client to an end-user using Company’s platform. A mobile-originated (“MO”) message is any SMS message sent by an end-user back to Company. For any campaign, Client’s monthly allotted plan includes only MT messages. Each MT message transmitted to an end-user constitutes a separate message regardless of the timing of the transmission or identity of a recipient. Client will not be charged for MO messages.
25. Company Location. Company operates its platform from its headquarters in the United States of America (“USA”). Client acknowledges that the Services may not be appropriate or available for use in other countries. Client is solely responsible for following all local laws for use of the platform or Services outside of the USA.
26. NO EXPORT OF SOFTWARE. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE SOFTWARE OR INFORMATION ABOUT THE SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. CLIENT SHALL NOT EXPORT THE SOFTWARE, THE DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE OR THE DOCUMENTATION, WITHOUT THE WRITTEN CONSENT OF COMPANY AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.
27. Independent Contractor. The parties acknowledge and agree that the relationship created between them is strictly that of independent contractors. Nothing in this Agreement shall be construed as creating a partnership or joint venture relationship between the parties. Neither Company nor any of its representatives are in any way the legal representatives or agents of Client for any purpose.
28. Miscellaneous Provisions. This Agreement is confidential, and Client shall not disclose the terms of this Agreement or release information concerning this Agreement to any other person without the prior written consent of the Company. All notices specifically required by this Agreement shall be in writing and shall be sent by personal delivery, overnight courier or by registered mail and electronic mail subject to confirmation by registered mail, to the addresses set forth on the cover page to this Agreement. This Agreement embodies the entire understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior agreements whether oral or implied. This Agreement may only be amended or assigned by way of a writing signed by both parties. Any waiver of any term and condition of this Agreement must be in writing signed by both parties. If any provision of this Agreement is held invalid, illegal or unenforceable in any way, it shall be deemed severed from the Agreement and not impair any other portion of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to the conflicts of laws principles The parties agree that the Superior Court of the State of California for the County of Los Angeles or the United States District Court for the Central District of California shall have mandatory exclusive jurisdiction and venue in connection with any action or dispute arising out, relating to or in connection with this Agreement, and the parties each hereby consent to the personal jurisdiction of said courts for any such action. This Agreement shall not be construed as conferring upon any third party any right or benefit, and any claims which may arise hereunder may be enforced solely by Company and Client.
29. Counterparts/Electronic Signature. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Client acknowledges that Company may use the services of electronic signature applications to execute this Agreement, and that the execution of this Agreement through the use of this technology (including ‘E-sign’) shall constitute a binding agreement on the parties.