Terms of Service
PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY BEFORE USING ANY OF THE SERVICES AVAILABLE AT DELIVRA.COM (THE “SITE”) OR OFFERED BY DELIVRA, INC. OR ITS AFFILIATES. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES.
This Terms of Service Agreement (the “Agreement”, as modified from time to time in accordance with the terms of this Agreement) is a legal agreement between You (“Customer”, “You”, “Your”) and Delivra, Inc. (“Delivra”, “Company”) (collectively the “Parties”) and deﬁnes the terms and conditions under which You are allowed to use the Services (as defined below).
This Agreement takes effect on the earliest of You: 1) creating an account for use of the Services while being presented a link to this Agreement; 2) executing or electronically accepting an Ordering Document referencing this Agreement; or 3) using the Services (the earliest of the foregoing being the “Effective Date”). If You enter into this Agreement or acquire the Services on behalf of an entity, You represent and warrant that You have the authority to accept this Agreement on the entity’s behalf.
In order to use the Services, You must:
- be at least 18 years old;
- complete the registration process;
- agree to this Agreement; and
- provide true, complete, and up to date contact information.
By using the Services, You represent and warrant that You meet all the requirements listed above. Company may refuse to provide You with the Services, suspend or close Your account, and change eligibility requirements at any time in accordance with the terms of this Agreement. If You have any questions, please email firstname.lastname@example.org.
DEFINITIONS. In addition to terms defined elsewhere in this Agreement, the following definitions will apply to capitalized words in this Agreement:
- “Add-On Features” means Services that are not included in the Subscription Plan or other package purchased by Customer.
- “Affiliate” of a party means any entity that directly or indirectly controls, is controlled by, or is under common control of a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of a party or the right to receive more than 50% of the profits or earning of the entity.
- “API Connector/Integration” means any Web-based, on-demand and/or downloadable software that permits the connection and/or interoperation of a third party service/application with the Services.
- “Beta Features” mean services and/or features available to Users for use which are still in their beta stage and have not been fully tested.
- “Carrier Requirements” means the terms and conditions set by wireless carriers and other parties that provide SMS services.
- “Customer’s Account” means the Web-based account provided by Company to Customer that enables Users to use the Subscription Services which is accessible to Users via usernames and passwords created and/or assigned by Customer.
- “Customer Content” means, excluding the Services, any and all information, data, text, software, photographs, graphics, video, messages, tags and/or other materials and content, that Users post, upload, share, submit, store or otherwise provide or make available through or using the Services.
- “Custom Works” means, any custom designs, projects, or other works, including Deliverables, created by Company for, or on behalf of, Customer by Company; provided Custom Works specifically exclude the Services, Generic Tools, and any Pre-Existing IP.
- “Deliverables” means any outputs specifically defined in an SOW and characterized as “Deliverables” that will be provided by Company to Customer, provided Deliverables expressly exclude the Services and any Pre-Existing IP.
- “Generic Tools” means coding, programming techniques, designing techniques, architecture, trade secrets, methodology, APIs, functions, applications, knowledge, experience, skills, templates, other know-how and related Intellectual Property Company uses to provide the Services.
- “Intellectual Property Rights” means any and all patents, inventions, copyrights, moral rights, trademarks, domain names, trade secrets, know-how, and any other form of intellectual property and/or proprietary rights recognized in any jurisdiction whether existing now or acquired hereafter including any application or right to apply for registration of any of these rights.
- “Law(s)” means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any international, federal, state or local governmental authority, including where applicable, the Telephone Consumer Protection Act (“TCPA”), the Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (the, “General Data Protection Regulation” or “GDPR“). Where relevant to the Customer’s or User’s obligations, when assessing “applicability”, Customer and User shall take into account the Governing Law in Section 13 and the Laws relating to both the jurisdiction where User is using the Services and the jurisdiction where the Contact resides.
- “Order Term” means the period specified in an Ordering Document (including any renewals of the same) during which Users will have access to the Services.
- “Ordering Document” means any form (including an electronic form or SOW), either executed by the Parties or agreed to by the Customer via the Site, that sets out the commercial terms of Customer’s purchase of the Services. All Ordering Documents will be deemed to incorporate, and will be subject to and governed by, this Agreement.
- “Pre-existing IP” means any Intellectual Property Rights in materials and/or information (including, but not limited to, algorithms, methods, forms, software, software components in source or object code form) that is owned by, licensed to, or in the possession of Company either: 1) on or prior to the creation of the Custom Work; or 2) after the commencement of the Custom Work but not specifically created as a part of the Custom Work, including any enhancements, improvements, and modifications to any of the foregoing in 1) or 2), whether created prior to or after the Effective Date. Notwithstanding the foregoing, Pre-Existing IP expressly excludes the content, logos, graphics, photos, images or text of any type included in Custom Works at Customer’s request.
- “Privacy Notice” means the Privacy Notice available at delivra.com/legla/privacy-notice/, as updated from time to time.
- “Professional Services” means services, other than the Software, provided by Company staff including, but not limited to, onboarding services, support services, provision and/or creation of any Custom Works, and /or Customer-specific customizations.
- “Services” means the Software, Professional Services, Pre-Existing IP, Statistical Data, products, services, applications, tools and other resources provided or made available by Company or accessible at the Site (or other website(s) owned by Company), including any applicable support services, manuals, documentation and related material, and all related service names, logos, design marks, slogans, and all other material comprising the Software, Professional Services, and Pre-Existing IP, but excluding any Customer Content and Custom Works.
- “SMS Services” mean providing Services as follows: designation of short codes or long codes for use with Customer’s messaging campaigns; the collection of SMS messages from Customer as agreed to by the parties; the transmission of such SMS messages to mobile subscribers who either (1) opt-in electronically to SMS Services through Customer; or (2) are identified by Customer as individuals who have opted in to SMS Services through Customer.
- “Software” means the Subscription Services, Site, SMS Services, and any software provided by Company and/or its Subcontractors, including but not limited to software development kits, other software code supplied by Company to Customer that allows for integration of the Services into Customer’s websites or mobile applications, and any related updates or modifications provided by Company from time to time.
- “Statement of Work” or “SOW” means a document entitled “SOW” or “Statement of Work” executed by the Parties and expressly incorporating this Agreement, as amended from time to time.
- “Statistical Data” means aggregated and anonymized statistical and performance information based on and/or related to Customer’s use of the Services, which does not contain any personally identifying information and is compiled using a sample size large enough to ensure the underlying data cannot be attributed to Customer.
- “Subcontractor” means a service provider engaged by Company that provides a part of the Services.
- “Subscriber” or “Contact” (used interchangeably in this Agreement and the incorporated documents) means, other than Users, any identified or identifiable natural person: 1) whose information is stored, transmitted, or otherwise ‘processed’ (as defined by the GDPR) via the Services by Customer; and/or 2) to whom Customer sends, transmits, or otherwise engages with via the Services. For example, a subscriber to Customer’s marketing communications is a “Contact”.
- “Subscription Plan” means the subscription type (including applicable volume limits) chosen by the Customer on an Ordering Document which sets out the base set of Services ordered by the Customer. Different Subscription Plans shall have different Services associated with them as further described here: Pricing Page.
- “Subscription Service” means the web-based application(s) available to the Customer via the Site.
- “Third Party Services” means any software, products, tools, applications, or services that are used in connection with the Services that are not owned by Company or its Affiliates.
- “User” means any person, other than Company employees or agents engaged in providing Professional Services to Customer, accessing and/or using the Services through Customer’s Account.
- Other Incorporated Documents. This Agreement hereby incorporates the Acceptable Use Policy available at delivra.com/legal/acceptable-use-policy/, as updated from time to time (hereinafter, “AUP”). This Agreement, together with its incorporated documents and any Ordering Documents and/or SOWs referencing this Agreement, constitutes the entire agreement between Customer and Company regarding the Services and supersedes all prior and contemporaneous agreements, representations, and understandings, whether written or oral, concerning its subject matter and governs Company’s provision of and Customer’s receipt of the Services. Company may receive and sign or otherwise execute purchase orders or similar documents provided by Customer contemporaneously with or after the execution of this Agreement (including documents Customer provides in connection with a renewal), and the Parties agree that the sole purpose of such documents is for Customer’s internal business purposes and that execution by Company does not constitute an acceptance of any of the terms or conditions of such document.
Order of Precedence. Notwithstanding the foregoing, if Customer and Company mutually execute a written agreement for use of the Services, the terms and conditions of the executed agreement will prevail to the extent of any conflict with the terms of this Agreement. In the event of any conflict between the terms of this Agreement and the other incorporated documents, the conflict will be resolved in the order of precedence stated below unless: 1) the conflicting term is expressly stated to vary the conflicting provision of the controlling document; 2) the controlling document specifically provides that a lower order document may vary the applicable term of the controlling document; or 3) the Parties expressly agree otherwise:
- Ordering Document,
Agreement Modifications. This Agreement was last modified on the date listed at the end of this Agreement (“Last Modified Date”). Company may make modifications to this Agreement by posting a revised Agreement on the Site and/or by sending an email to the last email address provided by Customer to Company. Customer acknowledges and agrees that use of the Services by Customer after the Last Modified Date constitutes Customer’s acceptance of the modified terms, that such modified terms will become effective on the Last Modified Date, and that it is Customer’s responsibility to check this website regularly for modifications to this Agreement. No modification, addition, deletion or waiver of any rights under this Agreement will be binding on Company unless signed by a duly authorized representative of Company.
- Access. On or as soon as reasonably practicable after the Effective Date and subject to Customer’s payment of the fees set forth in the Ordering Document, Company shall provide Customer with access to Software ordered pursuant to such Ordering Document.
- Prerequisite to Use of Software. Customer is responsible for obtaining all hardware, software and services necessary to access the Software.
- Right to Access and Use Software. Subject to the terms and conditions of this Agreement, Company grants to Customer a limited, non-exclusive, non-transferable, revocable right to access and use the Software ordered pursuant to an Ordering Document during the Order Term, solely for Customer’s internal business purposes (unless otherwise expressly agreed by Company) and in accordance with the limitations (if any) set forth in the Ordering Document.
- Restrictions. Customer is not authorized to copy, modify, re-package (unless otherwise expressly agreed by Company), reverse-engineer or disassemble the Services. Customer’s use of the Services confers no title or ownership in the Services and is not a sale of any rights in the Services. All ownership rights to the Services remain in Company or its third party suppliers, as applicable.
- Modification of the Services. Company, in its sole discretion, reserves the right to modify the Services, or any features of the Services at any time and for any purpose, including but not limited to, improving performance or quality, correcting errors, or maintaining competitiveness.
- Beta Features. From time to time, Company may make Beta Features available to Customer. Customer may choose to use such Beta Features in Customer’s sole discretion. Company may discontinue Beta Features at any time in Company’s sole discretion. Customer understands and agrees that Company may never make Beta Features generally available. Company will have no liability for any harm or damage arising out of or in connection with a Beta Feature.
Free Trials. Company may make some or all of the Services available to on a limited, non-exclusive, non-transferable, revocable, free trial basis for evaluation purposes only. COMPANY MAY TERMINATE FREE TRIAL ACCOUNTS OR ANY FEATURES OF THE SERVICES OFFERED PURSUANT TO A FREE TRIAL AT ANY TIME IN COMPANY’S SOLE DISCRETION WITH NO OBLIGATIONS TO THE USER OF SUCH ACCOUNT.
Professional Services Terms.
- Customer Cooperation. Customer acknowledges that its timely provision of responses, assistance, cooperation, complete and accurate information and data from its officers, agents, and employees, and suitably configured computer products (collectively, “Cooperation”) are essential to performance of any Professional Services, and that Company will not be liable for any deficiency in performing Professional Services if such deficiency results from Customer’s failure to provide full Cooperation.
- Custom Works. In the course of providing the Professional Services, Company may create Custom Works for Customer that incorporates, embeds, or integrates Company’s Pre-Existing IP. Other than any Pre-Existing IP incorporated, embedded, or integrated into the Custom Works, Customer owns all right title and interest in the Custom Works. Company hereby grants to Customer a worldwide, non-exclusive license to use the Pre-Existing IP solely in conjunction with, and to the extent incorporated in an unmodified version of the Custom Works. Customer shall not, and shall not allow any employee or third party to copy, reverse-engineer, modify, improve, create derivative works of or use the Pre-Existing IP in any way outside of the Custom Works as delivered by Company to Customer. In the event that any Customer employee or third party at Customer’s request or direction modifies, improves or creates derivative works of the Pre-Existing IP, whether or not in violation of this Agreement, Customer shall cause all right, title and interest in and to such modifications, improvements and/or derivative works to be assigned to Company and will sign all further documents necessary to effect such assignment.
- Generic Tools. Company may use its Generic Tools when providing the Services to Customer. To the extent permissible by Law, Company and/or its Subcontractors own all rights, title, and interests in such Generic Tools. For clarity, any API Connector/Integrations built by Company are hereby expressly considered Generic Tools and at no point will any API Connector/Integrations be considered Custom Works or Deliverables.
- Customer Definition of Requirements. Where Customer engages Company to provide any Custom Works, Customer represents and warrants that Custom Works, as developed in accordance with the instructions and requests of Customer, do not infringe the Intellectual Property Rights or any other rights of any third party. Customer is solely responsible for review of any Custom Works to ensure they do not violate or infringe a third party’s privacy rights, Intellectual Property Rights, or any other rights. Customer acknowledges and agrees that the provision of the Professional Services does not constitute any assumption of risk related to the Custom Works by Company.
Reselling the Services. To the extent Company permits Customer to resell the Services to its clients (each an “End Client”), Customer:
- agrees to procure that End Client abide by terms substantially similar to the AUP and Sections 4 (Third Party Services), 6 (Intellectual Property), 7 (Confidentiality, Security, & Privacy), and 8.C (Customer Warranties) of this Agreement and further Customer acknowledges and agrees that Customer shall be liable for any failure by End Client to abide by the foregoing.
- agrees to procure that End Client abide by terms at least as protective of Company as those in this Agreement, specifically as they relate to Sections 7 (Confidentiality, Security, & Privacy), 9 (Disclaimers), 10.A (Customer Indemnity), 11 (Limitation of Liability), 13.B (Force Majeure), and 13.F (Remedies).
- agrees to resolve all disputes occurring within its account.
- acknowledges and agrees that Company’s permission to allow resale of its Services does not diminish Company’s right to provide an acceptable use policy directly to the End Clients and/or enforce the terms of this Agreement against such End Client, including, without limitation, Company’s right to suspend or terminate access to the Services at any time, irrespective of any impact on Customer or End Client and without liability to Customer or End Client.
- acknowledges and agrees that Company may, in its sole discretion, revoke Customer’s permission to resell the Services at any time
SMS Services Equipment. Customer will be solely responsible for establishing and maintaining its connection to Customer’s platform and services. Each party is responsible, at its own expense, for its equipment, software, and other facilities required in connection with the performance of its obligations hereunder. Customer shall comply with any specifications provided by Company for the SMS Services and for its connection.
THIRD PARTY SERVICES. If Customer enables, installs, connects, or provides access to any Third Party Services for use with the Services, Customer hereby:
- acknowledges and agrees that access and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services, and Company does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or process data (including Customer Content) or any interaction between Customer and the provider of such Third Party Services.
- acknowledges and agrees that Company does not guarantee the continued availability of such Third Party Service features and makes no representation or warranty regarding such Third Party Services or integrations to such Third Party Services.
- acknowledges and agrees that Company may cease enabling access to them without entitling Customer to any refund, credit, or other compensation, if, for example and without limitation, the provider of a Third Party Service ceases to make the Third Party Service available for interoperation with the corresponding Service in a manner acceptable to Company.
- permits the transmission of and access to Customer Content to such Third Party Services.
- grants to Company and its Subcontractors a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable right and license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of any data transmitted to or obtained by Company from any Third Party Service enabled, installed, or connected to the Services by Customer for the duration of the Agreement and until such time as Customer requests deletion of the foregoing data, and Customer represents and warrants that doing do so will not violate Laws or any third party’s privacy, Intellectual Property Rights, or other rights.
- agrees that Company is not liable for: a) damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access, or use of any Third Party Services, or b) Customer’s reliance on the privacy, data security, or other practices of such Third Party Services.
- irrevocably waives any claim against Company with respect to such Third Party Services.
- agrees to comply with any requests by Company to remove any connections to or from other websites and/or applications to the Services which Customer installs.
Fees. Customer shall pay all fees specified in all Ordering Documents for the entirety of the Order Term. Except as otherwise specified in herein or in an Ordering Document: (a) fees are based on the Services ordered pursuant to an Ordering Document; (b) payment obligations are non-cancelable and fees paid are non-refundable; and (c) quantities purchased cannot be decreased during the relevant Order Term.
- Overage Fees. If Customer exceeds the limits of their Subscription Plan or Ordering Document, Company may charge Customer overage fees for such excess usage.
- Usage-Based Fees. Customer acknowledges and agrees that fees for certain features of the Services may be assessed based on Users’ actual usage of those features. Customer agrees to pay for Users’ usage of any such features.
- Fees for Add-On Features. Customer may order Add-On Features at any time by using the Add-On Feature and/or executing an Ordering Document for the Add-On Feature. Customer agrees to pay fees for such Add-On Feature for the remainder of the Order Term, and any renewals thereof.
- Subscription Tier. Fees associated with each Subscription Plan are based on Customer’s Subscription Tier as further described in Customer’s Ordering Document. Except as otherwise stated in Customer’s Ordering Document, if Customer exceeds the limits of its Subscription Tier, Company will upgrade the Customer’s account to the appropriate Subscription Tier and charge Customer the applicable fees for that Subscription Tier for the remainder of the Order Term and any renewals thereof.
Payment Method. Unless otherwise stated on Customer’s Ordering Document, Company will charge Customer and Customer shall pay, all fees for Services Customer purchases or uses in U.S. Dollars, up front via credit card, in accordance with the terms listed on Customer’s Ordering Document and this Agreement. Customer agrees to provide accurate payment information, and hereby authorizes Company to charge such credit card for all fees set forth in the Ordering Document for the duration specified therein (and any renewal thereof). Customer is responsible for reviewing the pricing schedule, features, and limits associated with its Subscription Plan.
- Late Payment. If any amount due is not received by the due date, then without limiting Company’s rights or remedies, Company may (a) apply a late fee of 1.5% of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid; (b) accelerate the payment of any fees payable; and/or (c) condition future subscription renewals and orders on pre-payment or payment terms shorter than those specified in the Ordering Document.
- Taxes. All fees stated in the Ordering Document are exclusive of any applicable taxes. Customer shall pay any sales, use, value added, excise, property withholding or similar tax, duties, and any related tariffs, and similar charges applicable to Customer’s purchase of the Services assessable by any local, provincial, federal, or foreign jurisdiction and shall include any related penalties or interest, except taxes based on Company’s net income (“Customer’s Taxes”). Customer’s Taxes may be added to the final price charged to Customer on Customer’s invoice. Customer shall pay Customer’s Taxes with no reduction or offset in the amounts payable to Company hereunder. Customer will, and hereby agrees to, promptly reimburse Company for any and all of Customer’s Taxes (and any applicable penalties) that Company may be required to pay in connection with this Agreement upon receipt of Company’s invoice.
- Fees at Renewal. Unless otherwise stated on Customer’s Ordering Document, Company reserves the right to change fees for any Services at the time of renewal and Customer is responsible for reviewing the fees charged by Company prior to renewal. Except any fees that are designated in the applicable Ordering Document as promotional or ‘one-time’, no fee change will be effective until renewal of that Service. Upon expiration of the applicable Order Term, Customer will automatically be charged in accordance with the payment method specified on Customer’s Ordering Document for renewal unless Customer downgrades or terminates its account in accordance with this Agreement.
- Reactivation Fee. Company may charge a re-activation fee to re-activate a suspended account.
- No Refunds. Except as otherwise provided in this Agreement or required by Law, Company will not provide refunds or credits for partial or unused periods of service or mid-term downgrades.
- Disputing Charges. Any dispute to a charge on Customer’s invoice must be made with specificity within 60 days after the date of the invoice that initially contained the disputed charge. Disputes can only be made in writing, via email to email@example.com or firstname.lastname@example.org or by phone at 866.915.9465.
- Customer’s Property. By using the Services, submitting any Customer Content through the Services, or providing any Customer Content to Company, Customer hereby grants Company and its Subcontractors a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, publicly perform, publicly display, host, communicate, distribute, and prepare derivative works of the Customer Content in connection with the Services for the duration of the Agreement and until such time as Customer requests deletion of the Customer Content. For clarity, the foregoing license granted to Company and its Subcontractors, does not affect Customer’s ownership or license rights in its Customer Content (excluding any Pre-Existing IP) unless otherwise agreed in writing. Customer represents and warrants that Customer has all rights to grant such licenses to Company and its Subcontractors without infringement or violation of moral rights or any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other Intellectual Property Rights.
- User Data. In addition, while using the Services, Customer and/or Users may provide information (such as a User’s name, contact information, and/or other registration information) to Company. Customer agrees to obtain the necessary consent to permit Company to use this information and any technical information about User’s use of the Services for the limited purposes of tailoring the user experience of the Services to the User, facilitating Users’ use of the Services, and communicating with Customer and/or a User. Further, Customer agrees that Company may use such information to identify and understand trends in the various interactions with our Services and to conduct internal business analysis based on meta-data about usage, feature adoption and forecasting, on an anonymized, aggregated basis (unless otherwise agreed by Customer).
- Company’s Property. Customer acknowledges and agrees that all rights, title and interest in and to Services are the exclusive property of Company or its affiliates, licensors or suppliers. Unless stated otherwise, Company and its licensors retain all Intellectual Property Rights in and to Services and all logos, graphics, software, algorithms, functionality, content (other than Customer Content) comprising the Services.
- Statistical Data. Notwithstanding anything to the contrary in this Agreement, but subject to the Privacy Notice, Company may monitor, analyze, and compile Statistical Data. Customer agrees that Company may make such Statistical Data publicly available. Company and/or its licensors own all right, title and interest in and to the Statistical Data and all related software, technology, documentation, and content provided in connection with the Statistical Data, including all Intellectual Property Rights in the foregoing.
- Feedback. Customer may provide feedback, suggestions, and comments to Company regarding the Services (“Feedback”). Customer hereby grants to Company a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, prepare derivative works, and otherwise fully exploit such Feedback in any medium or format, whether now known or later developed.
- Publicity. Unless otherwise agreed by the Parties, Customer hereby agrees that Company may reference Customer in marketing and public relations materials, including a press release announcing Customer as a customer. Customer hereby grants Company a nonexclusive, worldwide license to use and display Customer’s trademarks, trade names and logos in connection with the foregoing.
CONFIDENTIALITY, SECURITY, & PRIVACY.
- Confidential Information. The Parties acknowledge that in the course of performing their obligations under this Agreement, each party (a “Recipient”) may receive information from the other party (a “Discloser”)that is either clearly marked as “confidential” or nonpublic information that under the circumstances surrounding the disclosure, a reasonable person would conclude should be treated as confidential (“Confidential Information”). Recipient covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Discloser, except (a) to those employees, representatives, or contractors of the Recipient who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by confidentiality obligations, or (b) as such disclosure may be required by Law, subject to and to the extent permitted by Law, the Recipient providing to the Discloser written notice to allow the Discloser to seek a protective order or otherwise prevent the disclosure. Notwithstanding the foregoing, nothing in this Agreement will prohibit or limit the Recipient’s use of information: (i) previously known to it without breach or obligation of confidence, (ii) independently developed by or for it without use of or access to the Discloser’s Confidential Information, (iii) acquired by it from a third party that was not under an obligation of confidence with respect to such information at the time of disclosure, or (iv) that is or becomes publicly available through no breach of this Agreement
- Protection of Customer Content. Without limiting the above, Company shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Content. Company shall not modify or access the Customer Content except as required to provide the Services, prevent or address service or technical problems, or at Customer’s request in connection with support matters.
- User Passwords. Customer is solely responsible for keeping Customers’ and/or Users’ account name, password, and any other login credentials confidential. Customer is responsible for any and all activities that occur within Customer’s Account, whether authorized by Customer or not. Customer must notify Company immediately of any unauthorized access or use of Customer’s Account. Company will not be held responsible or liable for any losses due to lost or hacked passwords.
- Privacy Notice. Notwithstanding anything to the contrary in this Agreement, the Privacy Notice explains how Company handles Customer Content and other data processed by the Services. Customer hereby acknowledges and agrees that Company will handle data in accordance with the Privacy Notice. Customer agrees to provide its Contacts with a privacy notice that complies with Laws and takes into account the processing activities it has engaged Company to provide. For more information on how personal data is handled in connection with the Services as well as information on rights to access, correct and lodge a complaint regarding the handling of personal data please refer to the Privacy Notice.
- Sensitive PII. Customer understands and acknowledges that the Services are not configured to process, receive, and/or store: 1) personal health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”); 2) “nonpublic personal information” as defined under the Gramm-Leach-Bliley Financial Modernization Act of 1999 (“GLBA”); 3) data on any minor under the age of thirteen that would be subject to the Children Online Privacy Protection Act (“COPPA”); 4) card holder data under the Payment Card Industry Data Security Standard; 5) personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation (the “special categories of personal data” identified in Article 9 of GDPR); or 6) social security numbers, driver’s license or state identification number or other government related identifier, financial account numbers (i.e., credit card, checking account, savings account, etc.), medical, employment, criminal records, or insurance numbers, passport numbers, or other highly sensitive personally identifiable information, (collectively, “Sensitive PII”). As such, Customer agrees not to, and not to permit Users to, transmit, request, provide Company with access to, submit, store, or include any Sensitive PII through the Services. Customer agrees that Company may terminate this Agreement immediately, without refund, if Customer is found to be in violation of this clause.
- EU Personal Data Transfer. In the event that Users intend to transfer the Personal Data of an EU Data Subject (as defined by the GDPR), Customer shall notify Company and the Parties shall execute Company’s Data Protection Addendum (the “Data Protection Addendum”). Once executed, the Data Protection Addendum will be deemed wholly incorporated into this Agreement and will prevail over any conflicting terms in this Agreement.
- Mutual Warranties. Each party represents and warrants that: (a) it has the full right, power and authority to enter into, execute, and perform its obligations under this Agreement; and (b) it will not violate Laws in the provision or receipt of the Services.
- Company Warranties. Company represents and warrants that Company shall make every reasonable attempt to ensure there is no material degradation of the Services during the Order Term. Professional Services shall be performed in a professional and workmanlike manner by qualified personnel.
Customer Warranties. Customer represents and warrants that:
- all personal information (including any Personal Data as defined by the GDPR) provided by Customer to Company (including, without limitation, that of Users and Contacts) has been collected with the relevant individual’s consent;
- Customer has informed all persons whose information is collected: 1) of the purpose for which that information was collected, 2) that Customer may provide this information to its vendors and/or service providers for the purposes of use in relation to the Services, and 3) that such information may be processed and/or stored by Customer’s vendors and/or service providers on servers located in the United States of America; and
- Customer has obtained the consent of such persons for processing of their personal information by its vendors and service providers in the foregoing manner.
- No Guarantee of Results. Customer understands and acknowledges that, it is not possible to guarantee that the performance of the Services will be successful in producing any specific results. In particular, Customer further acknowledges that it is not possible for Company to warrant that the Professional Services guarantee 1) high deliverability; 2) high engagement with Customer Content; or 3) a successful marketing campaign. Customer hereby acknowledges and agrees that Company will not be liable for the failure of the performance of the Services to generate any expected or useful results.
- API Connector/Integration. Company does not guarantee the continued availability of any API Connector/Integrations. Company may discontinue any API Connector/Integration at any time in its sole discretion. Customer should not make purchase decisions based on the availability of any such API Connector/Integration. Customer acknowledges and agrees that Customer may be able to use the connected application to access Customer Content in Customer’s account and/or transmit data out of the Customer’s account. To the extent data is transmitted out of the Services, Company is not responsible for the privacy, security or integrity of that data.
- Service Availability. From time to time, down-time, either scheduled or unscheduled, may occur in respect of the Services. Company will work to ensure the amount of down-time is limited. In the case of anticipated or planned outages or system-wide issues affecting the basic use of the Services, Company will endeavor to provide Customer with reasonable advance notice. Customer acknowledges and understand that Company does not warrant that the Services will be uninterrupted or error free and that Company may occasionally experience “hard outages” due to disruptions that are not within Company’s control. Any such hard outage shall not be considered a breach of this Agreement by Company. Customer releases Company entirely of all responsibility for the consequences of any down-time.
- Advice. From time to time, Customer may obtain advice or information from Company help or support pages, white papers, and/or Company’s employees (collectively, “Advice”). Customer acknowledges and agree that such Advice will not be deemed to constitute financial, legal or tax advice. Customer should seek the advice of its own advisers prior to acting upon any such Advice. Customer agrees that use of and reliance on any such Advice is at its own risk and Customer releases Company entirely of all responsibility for any consequences of its use of and reliance on any such Advice.
- CUSTOMER UNDERSTANDS THAT DOWNGRADING ITS ACCOUNT MAY RESULT IN THE LOSS OF CONTENT, FEATURES, OR CAPACITY OF CUSTOMER’S ACCOUNT AND COMPANY DOES NOT ACCEPT ANY LIABILITY FOR ANY SUCH LOSSES. USE OF THE SERVICES AND ANY RELIANCE BY CUSTOMER UPON THE SERVICES, BETA FEATURES, OR ADVICE, INCLUDING ANY ACTION TAKEN BY CUSTOMER BECAUSE OF SUCH USE OR RELIANCE, IS AT CUSTOMER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY OR GUARANTEE AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES, BETA FEATURES, AND ADVICE ARE PROVIDED “AS IS” AND TO THE EXTENT PERMITTED BY LAW COMPANY DISCLAIMS ALL WARRANTIES, GUARANTEES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
- Customer Indemnity. Customer shall defend, indemnify and hold Company, its officers, directors, shareholders, successors in interest, employees, agents, subsidiaries and affiliates harmless from any claims, losses, damages, liabilities, settlements, and expenses (including, but not limited to attorney fees) by a third party (“Claims”) related to, arising from, or connected with: 1) Users’ use of the Services; 2) Users’ breach of this Agreement or the AUP or any representation or warranty made by Customer therein; 3) Custom Works requested by a User and/or the Customer Content (including, without limitation, Claims alleging that the Custom Works requested by a User and/or the Customer Content violates or misappropriates the Intellectual Property Rights or other rights of any third party); 4) Users’ negligence or intentional misconduct; 5) an allegation of defamation or invasion of privacy by Customer; and/or 6) any violation of Law by Customer or a User. Notwithstanding the foregoing, Customer shall not make any admissions on behalf of Company or settle any claim without Company’s consent.
- Company’s Right to Defend. Promptly upon learning of any Claim against Customer arising from or related to allegations that the Services violate or infringe a third party’s privacy or Intellectual Property Rights (a “Services Claim”), Customer shall give notice to Company of the Services Claim and immediately deliver to Company all original notices and documents (including court papers) received in connection with and/or related to the Services Claim. Company will have the exclusive right, but no obligation, to assume defense of such Services Claim at any time and at any stage. If Company assumes defense of any such Services Claim, Customer shall cooperate in the defense thereof as reasonably requested by Company. Upon assuming the defense of a Services Claim, Company may appoint any legal counsel selected by Company and settle any Services Claims on such terms and conditions that Company deems advisable. Customer agrees that upon Company’s assumption of the defense of the Services Claim: i) Company will not be liable to Customer for any legal costs or expenses subsequently incurred by Customer in connection with the Services Claim; ii) is not an acknowledgment by Company that it is liable to indemnify Customer in respect of the Services Claim; and iii) it will not constitute a waiver by Company of any defenses it may assert against the Customer if Customer claims it is owed indemnification for such Services Claim.
LIMITATION OF LIABILITY.
- TO THE EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF OPPORTUNITY, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, COMPANY OR ITS AFFILIATES IS FOUND LIABLE TO CUSTOMER FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IN NO EVENT WILL COMPANY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE TWELVE MONTHS PRECEDING THE APPLICABLE CLAIM GIVING RISE TO LIABILITY. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. CUSTOMER AGREES THAT COMPANY’S LIABILITY WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH CUSTOMER CONTRIBUTED TO THE LOSS.
- CUSTOMER ACKNOWLEDGES THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICES AVAILABLE TO CUSTOMER, AND THAT, IF COMPANY WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
TERM, TERMINATION, & SURVIVAL.
- Term. The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, and will continue to apply to all Ordering Documents for the duration of such Ordering Documents. Notwithstanding the foregoing, Customer’s obligations pursuant to this Agreement will continue to apply to any use of the Services by a User. Except as otherwise specified in the applicable Ordering Document or where prohibited by applicable Law, the Ordering Document and all non-expiring items added during the course of the Order Term, will automatically renew for additional periods equal in duration to the original Order Term or one year, whichever is shorter, unless either party gives the other notice of non-renewal at least 30 days before the end of the Order Term (or, if applicable, any renewal of the Order Term). The foregoing will not apply to any SOWs, which will terminate as stated therein.
- Right to Suspend. Company may suspend Customer’s Account: (i) for non-payment or untimely authorization of payment; (ii) at any time without notice for conduct that it believes, in its sole discretion, violates: 1) this Agreement or other agreements or guidelines which may be associated with Customer’s use of the Services; or 2) any Laws applicable to Customer’s use of the Services; or (iii) If Customer does not log into its account for more than 700 days (“Inactive Account”). INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA MAY BE PERMANENTLY REMOVED FROM COMPANY’S DATABASE.
- Termination. Either party may terminate this Agreement or any individual Ordering Document as follows: (a) for cause if the other party materially breaches this Agreement or an Ordering Document and does not remedy such breach within 30 days after its receipt of written notice of such breach; or (b) immediately if the other party: (i) terminates its business activities or becomes insolvent, (ii) admits in writing to the inability to pay its debts as they mature, (iii) makes an assignment for the benefit of creditors, or (iv) becomes subject to direct control of a trustee, receiver or similar authority. Customer agrees that Company will not be liable to Customer or to any third party for termination of Customer’s access to the Services resulting from any violation of this Agreement by Customer. Company may terminate this Agreement or any individual Ordering Document at any time in its sole discretion.
- Effect of Termination. Upon expiration or termination of this Agreement: (a) Customer’s right to use the Services will cease, and Company will have no further obligation to make the Services available to Customer; (b) except as otherwise expressly stated herein, all rights granted to Customer under this Agreement will cease; (c) Customer will pay fees for the entire Order Term under all Ordering Documents in effect prior to the termination date, less any fees already paid pursuant to such Ordering Documents; and (d) Company may delete Customer Content and/or any archived data within 30 days after the date of expiration or any termination of this Agreement. Any statutory retention requirements with respect to Customer Content remains Customer’s responsibility.
- Headers. The headings in the Agreement do not affect its interpretation. References to sections are to sections of this Agreement.
- Force Majeure. Company will not be liable for any delays or failure in performance of any part of the Services, from any cause beyond Company’s control. This includes, but is not limited to, acts of God, changes to Laws, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, and acts of hackers or third party internet service providers.
- Notices. Notices to Customer will be effective when Company posts them to Customer’s Account or sends them to the email address associated with Customer’s Account. Notices to Company will be effective when delivered to email@example.com, with a copy to firstname.lastname@example.org.
- Governing Law. The Laws of the State of Delaware, excluding its conflict of Laws rules, will apply to any and all disputes arising out of or relating to the Services or this Agreement (“Disputes”). The United Nations Convention on Contracts for the International Sale of Goods (the “Vienna Sales Convention 1980”) is excluded from this Agreement.
- Disputes. CUSTOMER AND COMPANY AGREE THAT ANY DISPUTE AGAINST THE OTHER MAY ONLY BE BROUGHT ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND CUSTOMER IS FOREGOING A JURY TRIAL AND WAIVING ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST COMPANY. All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) or JAMS (www.jamsadr.org) according to this provision and the applicable arbitration rules for that forum. Consumer claimants (individuals whose use of the Services is intended for personal, family, or household use) may elect to pursue their claims in their local small-claims court rather than through arbitration. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies. If Customer is a consumer bringing a claim relating to personal, household, or family use, any arbitration hearing will occur within the county or parish where Customer resides. Otherwise, any arbitration hearing will occur in Delaware, or another mutually agreeable location. The arbitrator’s award will be binding on the Parties and may be entered as a judgment in any court of competent jurisdiction. For purposes of this arbitration provision, references to Customer and Company also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized Users or beneficiaries of the Services.
- Remedies. Each party acknowledges and agrees that any actual or threatened breach of the AUP will constitute immediate, irreparable harm to the Company for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the non-prevailing party.
U.S. Government End-Users. If the end user of the Services is the U.S. federal government (including any federal agency), then the following will apply: (a) Government technical data and software rights related to the Services include only those rights described herein; and (b) if a government agency has a need for rights not conveyed under this Agreement, it must negotiate with Company to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. The Services, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.”The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users:
- only as Commercial Items,
- with the same rights as all other end users, and
- according to this Agreement.
Export Control. The Services made available by Company may be subject to the export control Laws of the United States and other jurisdictions. Customer shall comply with all applicable export Laws, and, without limiting the generality of the foregoing: (a) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
- Anti-Corruption. Customer agrees that Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Company’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer hears of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Company’s Legal Department at email@example.com.
- Assignment. Neither this Agreement nor any right or obligation under this Agreement may be transferred, assigned or delegated by Customer, by operation of Law or otherwise, without the prior written consent of Company. Any attempted assignment or transfer in violation of the foregoing shall be null and void ab initio and shall not confer any rights or remedies upon any person or entity not a party hereto. This Agreement may be assigned or transferred by Company without the consent of the Customer. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective representatives, heirs, administrators, successors and permitted assigns.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, joint venture, agency, or fiduciary relationship between the Parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes. No rights for third party beneficiaries are created by this Agreement. Nothing in this Agreement is intended to confer any rights or remedies on any person or entity which is not a party to this Agreement.
- Non Solicitation. During the Term, and for a period of one year thereafter, Customer shall not solicit for hire, on behalf of itself or any other organization, any personnel of the Company with whom Customer has had contact pursuant to the relationship established under this Agreement. If Customer violates this Section 13.L, Customer shall pay Company an amount equal to the aggregate compensation paid by Company to the solicited employee in the six months preceding Customer’s solicitation of such employee.
- Waivers. Any waiver by Company must be in writing and signed by an authorized Company representative. No waiver by Company of any breach of this Agreement will be a waiver of any preceding or succeeding breach. No failure or delay by Company in enforcing any right or provision under this Agreement will be construed as a waiver of such right or provision or of any other right or provision.
- Severability. If any provision of this Agreement is held invalid, illegal or otherwise unenforceable, it shall be deemed modified to render it enforceable while preserving the Parties’ original intent to the fullest extent, and the rights and obligations of the Parties shall be construed and enforced accordingly. If the provision cannot be modified, then that provision will be deemed severed from this Agreement and all other provisions will remain in full force and effect.
- Electronic Signatures. This Agreement and any Ordering Document may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, e-mail or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument.
Last Modified on April 1, 2019