Terms of Service
PLEASE READ THIS TERMS OF SERVICE AGREEMENT CAREFULLY BEFORE USING ANY OF THE SERVICES AVAILABLE AT WWW.DELIVRA.COM (the “Site”) OR OFFERED BY OR ON BEHALF OF DELIVRA, INC. IF YOU DO NOT ACCEPT AND AGREE TO THE TERMS OF THIS AGREEMENT IN ITS ENTIRETY, YOU ARE NOT AUTHORIZED TO ACCESS THE SITE, OR USE ANY OF THE SERVICES BEING MADE AVAILABLE TO YOU THROUGH THE SITE, IN ANY MANNER OR FORM.
This Terms of Service Agreement (the "Agreement", as modified from time to time in accordance with the terms of this Agreement) is a legally binding agreement between the user of the Services (“Customer”, “You”, or “Your”) and Delivra, Inc. (“Delivra”) (each a “Party” and collectively the “Parties”) and defines the terms and conditions under which You are permitted to use the Site and the Services (as defined below). This Agreement shall govern any Ordering Document executed between the Parties. The Parties acknowledge and agree that where there is a conflict between the Agreement and the applicable Ordering Document, the terms and conditions defined in the Ordering Document shall prevail.
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; or 2) executing or electronically accepting an Ordering Document referencing this Agreement (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 are of legal age to form a binding contract in Your applicable jurisdiction, and that You have the authority to accept this Agreement on the entity's behalf and to bind such entity to the terms and conditions of this Agreement.
1. Definitions
In addition to terms defined elsewhere in this Agreement, the following definitions will apply to capitalized words in this Agreement:
a. “Affiliate” of a Party means any entity that directly or indirectly controls, is controlled by, or is under common control of that Party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the entity or the right to receive more than 50% of the profits or earning of the entity.
b. “Anti-Spam Policy” means Delivra’s Anti-Spam Policy located at https://www.delivra.com/trust/anti-spam-policy, as updated from time to time.
c. “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 Software and/or Services.
d. “AUP” means Delivra’s Acceptable Use Policy located at https://www.delivra.com/trust/acceptable-use-policy, as updated from time to time.
e. “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.
f. "Contact” or “Subscriber” (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 applicable Laws) via the Services by Customer; and/or 2) to whom Customer sends, transmits, or otherwise engages with via the Services.
g. “Customer’s Account” means the Web-based account provided by Delivra to Customer that enables Users to use the Subscription Services which is accessible to Users via usernames and passwords created by and/or assigned to Customer.
h. “Customer Content” means, excluding the Services, any and all information, data, text, software, photographs, graphics, video, messages, short code or long code SMS/MMS 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.
i. “Custom Works” means, any custom designs, projects, or other works, including Deliverables, created by Delivra for, or on behalf of, Customer by Delivra; provided Custom Works specifically exclude the Services, Generic Tools, and any Pre-Existing IP.
j. “Deliverables” means any outputs specifically defined in an SOW and characterized as “Deliverables” that will be provided by Delivra to Customer, provided Deliverables expressly exclude the Services and any Pre-Existing IP.
k. “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 Delivra uses to provide the Services.
l. “Intellectual Property Rights” means any and all patents, inventions, copyrights, moral rights, trademarks, domain names, trade secrets, know-how, software, 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.
m. “Law” or “Laws” means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any governmental authority, including without limitation, the General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), the Telephone Consumer Protection Act (TCPA), the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), Canada’s Anti-Spam Legislation (CASL), and/or any other similar state, provincial, and federal laws, all of the foregoing as may be amended or superseded from time to time. Where relevant to the Customer’s or User’s obligations, when assessing “applicability”, Customer and User shall take into account the Governing Law in this Agreement and the Laws relating to both the jurisdiction where Customer and/or User is using the Services and the jurisdiction where the Contact resides.
n. “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.
o. “Ordering Document” means any form provided by Delivra (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 and limitations of the Customer’s use of the Services. All Ordering Documents will be deemed to incorporate, and will be subject to and governed by, this Agreement.
p. “Permission” means permission obtained from an individual to receive communications from Customer that was either: 1) obtained within the preceding 12 months; or 2) obtained at any time and ongoing communications have been sent to the individual over the course of the preceding 12 months.
q. “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 Delivra 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 provided by Customer and included in Custom Works at Customer’s request.
r. “Privacy Notice” means the Privacy Notice available at https://www.delivra.com/trust/privacy, as updated from time to time.
s. “Professional Services” means services, other than the Software, provided by Delivra staff including, but not limited to, onboarding services, support services, provision and/or creation of any Custom Works, and /or Customer-specific customizations.
t. “Related Materials” means any applicable documentation, media, manuals and other technical information including an online help system related to the Software.
u. “Services” means the Software, Professional Services, Pre-Existing IP, Statistical Data, SMS Services, products, services, applications, tools and other resources provided or made available by Delivra or accessible at the Site (or other website(s) owned by Delivra), 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.
v. “SMS Services” mean providing Services as follows: designation of short codes or long codes (including, without limitation, 10-Digit Long Code and 8xx numbers) for use with Customer’s Short Message/Messaging Service (SMS) campaigns and Multimedia Message/Messaging Service (MMS) messaging campaigns; the collection of SMS and MMS messages from Customer as agreed to by the Parties; the transmission of such SMS and MMS 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.
w. “Software” means the Subscription Services, Site, SMS Services, and any software provided by Delivra and/or its Subcontractors, including, but not limited to, software development kits, other software code supplied by Delivra to Customer that allows for integration of the Services into Customer’s websites or mobile applications, and any related updates or modifications provided by Delivra from time to time.
x. “Statement of Work” or “SOW” means a document entitled “SOW” or “Statement of Work” that: 1) expressly incorporates this Agreement; 2) is issued or provided by Delivra; and 3) executed by the Parties.
y. “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.
z. “Subcontractor” means a service provider engaged by Delivra that provides a part of the Services.
aa. “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 have different Services associated with them.
bb. “Subscription Service” means the web-based application(s) available to the Customer via the Site.
cc. “Third Party Services” means any software, products, tools, applications, or services that may be used in connection with the Services that are not owned by Delivra or its Affiliates.
dd. “User” means any person, other than Delivra employees or agents engaged in providing Professional Services to Customer, accessing and/or using the Services through Customer’s Account.
2. License
a. Subject to the terms and conditions of this Agreement, Delivra grants to Customer a limited, revocable, non-exclusive, non-transferable right and license, without the right to sublicense, to use the Services and any Related Materials in accordance with this Agreement and any other written agreement that you may have with Delivra, including without limitation any Ordering Document(s). These terms and conditions will also govern any upgrades and updates to the Services provided by Delivra that replace and/or supplement the original Services, unless such upgrades and/or updates are accompanied by a separate license, in which case the terms of that Services license agreement will govern.
b. Customer is being granted a right and license to use the Services and any Related Materials. Delivra does not transfer title of the Services and/or any Related Materials to Customer. This Agreement is a legally binding agreement between Customer and Delivra. If Customer does not agree to the terms and conditions of this Agreement and/or any applicable Ordering Document, Customer is required to immediately cease using the Services and any Related Materials. Delivra reserves the right to terminate this Agreement and the licenses granted herein in the event that Customer violates any term or condition of this Agreement, or violates any policies and guidelines referenced in this Agreement or applicable Ordering Document.
3. Use of the Sites and Services
a. Prerequisite to Use of the Services and Software. Customer is responsible for obtaining all hardware, software and services necessary for the Customer and/or any User to access and use the Site and the Services.
b. Right to Access and Use the Site, Services, and Software. Subject to the terms and conditions of this Agreement and Customer’s compliance with the AUP, Anti-Spam Policy, and any policies and guidelines referenced herein, Delivra grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to access and use the Site, the Services, and the Software ordered pursuant to an Ordering Document during the Order Term, and in accordance with the limitations (if any) set forth in the Ordering Document and this Agreement. These terms and conditions will also govern any Software and Services upgrades and updates provided by Delivra that replace and/or supplement the original Software and Services, unless such upgrades and/or updates are accompanied by a separate license, in which case the terms of that Software and Services license agreement will govern. Customer is being granted a right and license to use the Site, Software, Services, and the Related Materials. Delivra does not transfer title of the Site, Software, Services, or any Related Materials to Customer. Delivra is not obligated to provide, and Customer acquires no right of any kind with respect to, any source code for the Software and/or Services. THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN DELIVRA AND THE CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER IS REQUIRED TO IMMEDIATELY CEASE USING THE SOFTWARE, THE SERVICES, AND ANY RELATED MATERIALS. Delivra reserves the right to terminate this Agreement and the licenses granted in the event that Customer breaches any term or condition of this Agreement, the Ordering Document, and/or any policies and guidelines referenced herein.
c. Customer Account. In order to access and use the Services, Customer will be required to create and maintain a Customer’s Account. The individual creating a Customer’s Account on behalf of a company, organization, or other entity represents and warrants that he/she/they are an authorized representative with the authority to bind such company, organization, or entity to this Agreement and the applicable Ordering Document. By connecting to the Services through a third-party service provider, Customer gives Delivra permission to access, use, and to store certain information about Customer that is obtained from that third-party service provider, and as permitted by such service provider. Such information may include, without limitation, Customer’s log-in credentials for that service provider. When creating a Customer’s Account, Customer must provide accurate and complete information, and Customer must keep this information up to date. Customer is solely responsible for the activity that occurs on the Customer’s Account. Delivra shall not be liable for any damages caused or losses incurred by any unauthorized access and/or use of any Customer’s Account. If Customer wishes to share its Customer’s Account login credentials (username and password) with any Users to access the Customer’s Account, Customer agrees that BY SHARING CUSTOMER’S ACCOUNT USERNAME AND PASSWORD, CUSTOMER AGREES TO BE RESPONSIBLE FOR ASSURING THAT ANY USERS OF THE CUSTOMER’S ACCOUNT COMPLY WITH THE TERMS OF THIS AGREEMENT, AND ANY APPLICABLE ORDERING DOCUMENT, AND THAT CUSTOMER SHALL BE RESPONSIBLE FOR THE ACTIONS OF ITS CUSTOMER’S ACCOUNT USERS.
d. Restrictions. Except as otherwise expressly permitted by this Agreement, Customer is not authorized to resell, distribute, assign, sublicense, transfer, pledge, lease, rent, copy, modify, re-package, reverse-engineer or disassemble the Site, Services, Software, Related Materials, or share its rights under this Agreement unless otherwise expressly permitted in writing by Delivra. Customer’s use of the Site, Services, Software, and Related Materials confers no title or ownership in any of the foregoing and shall not be deemed a sale of any rights in the Site, Services, Software, and Related Materials. Customer will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury in Customer’s use and receipt of the Services. Customer will not directly or indirectly export, re-export, or transfer the Services to prohibited countries or individuals or permit use of the Services by prohibited countries or individuals.
e. Modification of the Site, Software, and Services. Delivra, in its sole discretion, reserves the right to modify the Site, Software, and/or Services, or any features of the Site, Software and/or Services at any time and for any purpose, including but not limited to, improving performance or quality, correcting errors, or maintaining competitiveness. Such modifications, when delivered, shall become part of the Site, Software, and/or Services and shall be subject to the terms and conditions of this Agreement. When these changes are made, Delivra will exert commercially reasonable efforts to make any new terms and conditions available to you from within, or through, the Site, Software, and/or Services, or by other communication methods. Customer acknowledges and agrees that the continued use of the Site, Software, and/or Services following any modifications shall be deemed as Customer’s acknowledgement and acceptance of any modifications to the Site, Software, and/or Services.
f. Beta Features. From time to time, Delivra may make Beta Features available to Customer. Customer may choose to use such Beta Features in Customer’s sole discretion. Delivra may modify or discontinue Beta Features at any time in Delivra’s sole discretion. Customer understands and agrees that Delivra may never make Beta Features generally available. Delivra will have no liability for any harm or damage arising out of or in connection with any Beta Feature, including, without limitation, Customer’s access thereto or use thereof.
g. Free Trials. Delivra may make some or all of the Services available on a limited, non-exclusive, non-transferable, revocable, free trial basis for evaluation purposes only. DELIVRA MAY TERMINATE FREE TRIAL ACCOUNTS OR ANY FEATURES OF THE SERVICES OFFERED PURSUANT TO A FREE TRIAL AT ANY TIME IN DELIVRA’S SOLE DISCRETION WITH NO OBLIGATIONS TO CUSTOMER OR THE USER OF SUCH ACCOUNT. Once the free trial has expired, Customer will have the option to purchase a license to continue using the Services.
h. 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 the performance of any Professional Services, and that Delivra 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, Delivra may create Custom Works for Customer. 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. Delivra 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 Delivra to Customer. In the event that any Customer employee or third party on Customer’s behalf or 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 Delivra and will sign (or cause to be signed) all further documents necessary to effect such assignment.
- Generic Tools. Delivra may use its Generic Tools when providing the Services to Customer. Delivra and/or its Subcontractors own all rights, title, and interests in and to such Generic Tools. For clarity, any API Connector/Integrations built by, for, or on behalf of Delivra 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 Delivra 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 Delivra.
- Expenses. Customer shall pay for all travel expenses, fees, and out of pocket expenses incurred by Delivra in providing the Services, provided that Customer approves such expenses in advance in writing.
i. SMS Services.
- 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 Delivra for the SMS Services and for its connection.
- Customer acknowledges that use of the SMS Services is subject to the terms and conditions established by certain wireless carriers, long code messaging providers, and applicable third-party aggregators, which are subject to change, and Customer agrees to comply at all times with such terms and conditions.
- Customer understands and agrees that SMS Services are only available for use in the United States, unless otherwise stated/indicated in the applicable Ordering Document. Delivra shall not be obligated to process any SMS Services to any country or territory other than those defined under the applicable Ordering Document. In the event that Delivra processes any SMS Services to a country or territory not defined in the applicable Ordering Document, Delivra will charge Customer the current fees for delivery to such country or territory, including any applicable additional wireless carrier fees, long code messaging providers, and/or applicable third-party aggregators. All such fees are subject to change from time to time based upon changes to the wireless carrier’s, long code messaging provider’s, and/or applicable international aggregator’s rates and/or changes in currency exchange rates.
- SMS Services are subject to various legal compliance and regulatory requirements depending on the nature of Customer’s text messaging campaign, the location from where Customer is sending text and multimedia messages, and the location of SMS and/or MMS recipients. Customer agrees to comply with all applicable Laws and industry standards related to its use of the SMS Services, including without limitation, Laws and standards which require (1) clear instructions on how SMS and/or MMS recipients can opt-out from receiving future text and/or multimedia messages from Customer; and (2) specific information to be included wherever the short code or long code is advertised, or where individuals are invited to sign up for short code or long code messages.
- Customer acknowledges and agrees that its use of the SMS Services will be subject to certain additional fees, limitations, and restrictions all of which will be defined under the applicable Ordering Document.
- Delivra will charge Customer, on a monthly basis, for any additional fees and charges imposed by the applicable wireless carriers, long code messaging providers, and/or applicable third-party aggregators. For clarification purposes, the additional fees and charges are pass-through fees and are in addition to the long code message fees, as well as any other fees defined under this Agreement and/or the applicable Ordering Document. Such fees and charges are subject to change from time to time by the applicable wireless carriers, long code messaging providers, and/or their Affiliates. Additional fees include, without limitation, any fines or fees imposed by the applicable wireless carriers and/or long code messaging providers arising from Customer’s breach of this Agreement, and as further defined in the applicable Ordering Document.
- Customer shall indemnify, defend, and hold Delivra harmless from and against any third-party claims that may arise from (1) Customer’s violation of any wireless carrier’s terms and conditions with respect to Customer’s use of the SMS Services; and/or (2) Customer’s violation of any applicable Laws with respect to Customer’s use of the SMS Services.
- All short code and long code leases have a minimum commitment term of three (3) months (the “Code Lease Term”) and shall automatically renew for successive three (3) month terms following the expiration of the current Code Lease Term, unless either Party hereto provides written notice to the other Party of its intent not to renew the Code Lease Term no less than thirty (30) days prior to the expiration of the current Code Lease Term. Unless otherwise terminated as permitted herein, Customer acknowledges and agrees to it will remain responsible and liable for payment for the applicable Code Lease Term regardless of whether or not Customer uses the SMS Services. Customer will not receive any credit or refund for any unused SMS Services during any Code Lease Term.
- Customer acknowledges and agrees that (1) with regard to any impact on service levels, including up time, latency, and through put commitments, Delivra shall not be responsible or liable for any SMS Services that are outside of the direct control of Delivra. For clarity, Delivra shall only be responsible for the SMS Services, acts and omissions that are directly within Delivra’s control; and (2) there can be no assurances that any or all of the SMS Services, or the content contained therein will: (a) be accepted by the long code messaging providers, applicable third-party aggregators and/or wireless carriers, (b) that any or all of the long code messaging providers and/or wireless carriers will maintain connectivity with Delivra, and/or (c) permit long code messaging.
j. Reselling the Services. To the extent Delivra provides prior express written consent to 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 terms and conditions of this Agreement and any applicable policies and guidelines. Customer further acknowledges and agrees that Customer shall be liable for the acts and omissions of any End Client;
- agrees to procure that End Client abide by terms at least as protective of Delivra as those defined in this Agreement;
- acknowledges and agrees that Delivra’s permission to allow for the resale of the Services does not diminish Delivra’s right to provide an acceptable use policy, and/or any additional policies and guidelines, directly to the End Clients and/or enforce the terms of this Agreement against such End Client, including, without limitation, Delivra’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 any End Client; and
- acknowledges and agrees that Delivra may, in its sole discretion, revoke Customer’s permission and right to resell the Services at any time.
4. Third-Party Software Applications, Extensions, Services, Content and Links
a. Delivra may advertise and recommend third-party software applications and software extensions to Customer for the purposes of enhancing the Customer’s experience with the Services. These third-party applications and software extensions are intended to work with the Services to provide additional features and functionality. When using any third-party application or software extension(s) as identified and recommended through the Services and/or the Related Materials, or as advertised and recommended by Delivra, Customer will be bound to that third-party’s own terms and conditions and legal agreements. All third-party content, software product names, company names, and software extensions displayed in the Services, and the Related Materials are for identification purposes only and may be the copyright and trademark of their respective owners. Delivra is in no way affiliated with nor does Delivra represent or endorse any of the companies, products, and/or services identified and displayed in the Services and/or the Related Materials. Under no circumstance shall Delivra be liable for any losses (including data or profit loss, loss of business, or loss of use), damage, or any other consequences that may arise as a result of Customer’s, or any User’s, use of any third-party software applications and software extensions. Customer assumes all faults, and the entire risk as to performance and responsibility for selecting, installing, and using any third-party software applications and software extensions.
b. The Services may include hyperlinks to other third-party web sites, content, or resources. Delivra may have no control over any web sites, content, or resources which are being provided through the Services by third-parties other than Delivra. When using the Services, the Related Materials, and any associated product(s) and/or service(s), Customer acknowledges and agrees that Delivra is not responsible for the availability of any such third-party external sites, content, products, services, or resources. Delivra does not endorse any advertising, products, or services on or available from such third-party web sites, content, or resources. Customer further acknowledges and agrees that Delivra shall not be liable for any loss or damage which may be incurred by Customer as a result of the availability of those external sites, content, or resources, or as a result of any reliance placed by Customer on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such websites or resources.
5. Payment Terms
a. Fees. Customer shall pay all fees specified in all Ordering Documents for the entirety of the Order Term (and any renewals thereof) in accordance with Ordering Document terms and conditions. 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. If Customer exceeds the limits of its Subscription Plan or Ordering Document, Delivra may charge Customer overage fees for such excess usage. Without limiting any of the foregoing, any price or fee increases imposed by wireless carriers, long code messaging providers, applicable third-party aggregators, and/or organizations responsible for the administration of short codes and/or long codes arising from Customer’s use of the SMS Services will be passed through to Customer at cost. Such price changes will go into effect concurrently when such corresponding price changes applicable to Delivra take effect.
b. Sales Tax. All fees are exclusive of applicable sales, use, withholding or other transactional taxes, which are the sole responsibility of Customer, and Delivra will charge as applicable. The amounts of any such taxes will not reduce any fees due hereunder or under the applicable Ordering Document. Customer agrees to pay any taxes applicable to its use of the Services. If Customer is located in the European Union, all fees are exclusive of any VAT and Customer represents that it is registered for VAT purposes in the applicable member state. Upon Delivra’s request, Customer will provide Delivra with the VAT registration number under which Customer is registered in the applicable member state. If Customer does not provide Delivra with a VAT registration number prior to the application transaction(s) being processed, Delivra will not issue refunds or credits for any VAT that was charged. If Customer is subject to GST, all fees are exclusive of GST. If Customer is located in Canada, all fees are exclusive of GST, PST, and/or HST.
c. Withholding Tax. If Customer is required to deduct or withhold tax from payment of any fees specified in the applicable Ordering Documents, Customer may deduct this amount from the applicable fees payable to Delivra to the extent it is due and payable as assessed withholding tax required under applicable Laws. Customer will not be required to repay any withheld tax to Delivra, provided that Customer presents Delivra with a valid tax receipt verifying payment of the withheld tax to the relevant tax authority within ninety (90) days from the date of the invoice, or provides a valid tax exemption certificate within thirty (30) days from the date of the invoice. If Customer fails to provide a tax receipt or certificate of tax exemption within the specified time period, then all fees, inclusive of the withheld tax amounts, will be immediately due and payable.
d. Late Payment. Without limiting any other Delivra rights or remedies, and to the fullest extent permitted by applicable Laws, overdue and undisputed payments will accrue interest at the lesser rate of eighteen (18%) percent per annum or the maximum rate permitted by Law, calculated from the date upon which the invoice is due, compounded monthly.
e. No Refunds. Except as otherwise provided in this Agreement, in the applicable Ordering Document, or required by Law, Delivra will not provide refunds or credits for partial or unused periods or portions of the Services.
f. Disputing Charges. Any dispute to a charge on Customer’s invoice must be made in writing within thirty (30) days following the date of the applicable invoice detailing the disputed charge(s).
6. Intellectual Property
a. Customer’s Property. By using the Services, submitting any Customer Content through the Services, or providing any Customer Content to Delivra, Customer hereby grants to Delivra and its Subcontractors a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license and right to process, store, modify, combine, reproduce, distribute, display, publicly perform, publicly display, host, communicate, and prepare derivative works of the Customer Content in connection with the Services for the duration of the Agreement and/or any applicable Order Term, and until such time as Customer requests deletion of the Customer Content. For clarity, the foregoing license and right granted to Delivra and its Subcontractors, does not affect Customer’s ownership or license rights in its Customer Content unless otherwise agreed in writing. Customer represents and warrants that Customer has all rights to grant such licenses and rights to Delivra 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. Under no circumstances shall Delivra be liable for any Customer Content submitted and/or transmitted through the Services. Customer shall indemnify, defend, and hold Delivra harmless from and against any third-party claims that may arise from any Customer Content transmitted through the Services.
b. User Data. Customer and/or Users may provide information (such as a User’s name, contact information, and/or other registration information) to Delivra while using the Services. Customer represents and warrants that it has complied with all Laws (including, as appropriate, with respect to providing any necessary notices and obtaining any necessary consents) to permit Delivra 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 represents and warrants that it has taken necessary steps, in compliance with Law, to ensure that Delivra may use such information to identify and understand trends in the various interactions with Delivra’s Services and to conduct internal business analysis based on meta-data about usage, feature adoption and forecasting, on an anonymized, aggregated basis.
c. Copyright Restriction. Customer acknowledges and agrees that any and all Intellectual Property Rights to or arising from the Services are and shall remain the exclusive property of Delivra and/or its licensors. Nothing in this Agreement intends to transfer any such Intellectual Property Rights to, or to vest any such Intellectual Property Rights in, Customer. Customer is only entitled to the limited use of the Intellectual Property Rights granted to Customer under this Agreement and/or the applicable Ordering Document. Customer will not take any action to jeopardize, limit or interfere with the Intellectual Property Rights of Delivra. Customer acknowledges and agrees that any unauthorized use of the Intellectual Property Rights of Delivra is a violation of this Agreement, the applicable Ordering Document, as well as a violation of intellectual property Laws, including without limitation copyright laws and trademark laws. Customer acknowledges and understands that all title and Intellectual Property Rights in and to any third-party content that is not contained in the Services, but may be accessed through use of the Services, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property Laws and treaties. The Services contain copyrighted material, trade secrets and other proprietary material. Customer shall not, and shall not attempt to, either directly or indirectly, modify, reverse engineer, disassemble or decompile the Site and/or Services. Furthermore, Customer is not permitted to create any derivative works or other works that are based upon or derived from the Services, in whole or in part. No program, code, part, image, or text may be copied or used in any way by the Customer except as intended within the bounds of this Agreement or the applicable Ordering Document. All rights not expressly granted hereunder are reserved for Delivra and its applicable licensors.
d. Statistical Data. Notwithstanding anything to the contrary in this Agreement, and consistent with the activities described in the Privacy Notice, Delivra may monitor, analyze, and compile Statistical Data. Customer agrees that Delivra may make such Statistical Data publicly available. Delivra 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.
e. Feedback. Customer may provide feedback, suggestions, and comments to Delivra regarding the Services (“Feedback”). Customer hereby grants to Delivra 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.
f. Publicity. Unless otherwise agreed by the Parties in writing, Customer hereby agrees that Delivra may reference Customer in marketing and public relations materials, including a press release announcing Customer as a customer. Customer hereby grants Delivra a nonexclusive, worldwide license to use and display Customer’s trademarks, trade names and logos in connection with the foregoing.
7. Confidentiality, Security, & Privacy
a. Confidential Information. A Party (the “Disclosing Party”) may, from time to time, disclose to the other (the “Receiving Party”) certain information relating to the Disclosing Party’s business or customers, Affiliates, subsidiaries, agents, or employees; business and marketing plans, processes, strategies and methods which may not be standard industry practice or which are not generally known in the industry; or studies, charts, plans, tales or compilations of business and industrial information acquired or prepared by or on behalf of the Disclosing Party (all collectively referred to as the “Confidential Information”). The Disclosing Party and the Receiving Party acknowledge that Confidential Information will be provided at the sole discretion of the Disclosing Party, and nothing in this Agreement obligates the Disclosing Party, its directors, agents or employees to disclose or grant to the Receiving Party access to any Confidential Information. Unless expressly authorized in writing by the Disclosing Party, the Receiving Party covenants and agrees (a) to use the Confidential Information only for the purposes expressly contemplated in this Agreement; (b) that no Confidential Information will be disclosed to any third party (excepting any legal or financial advisors, or any contractors or consultants who are bound to confidentiality obligations), subsidiary, or agent of the Receiving Party without the prior written consent of the Disclosing Party, which may be unreasonably and arbitrarily withheld. The Receiving Party acknowledges that the Disclosing Party remains the sole and exclusive owner of all right, title and interest in and to the Confidential Information. The undertakings and obligations of each Party under this Section shall not apply to any information which it can establish: (i) became publicly known through no action on the Receiving Party’s part; (ii) was known by the Receiving Party prior to receipt; (iii) was independently developed by the Receiving Party without use of or access to the Confidential Information; (iv) was approved for public release by the Disclosing Party’s written authorization; or (v) was required to be disclosed by law, or to a competent court, government or regulatory body having the right to same, provided that the Disclosing Party is notified immediately of such required disclosure and given the opportunity to seek a protective order. Upon termination of the Ordering Document, or otherwise on demand by the Disclosing Party, the Receiving Party agrees that it will promptly return the Confidential Information to the Disclosing Party, including all copies thereof or, if requested to do so by the Disclosing Party, will certify the destruction of the Confidential Information. The Receiving Party’s obligation to protect the Confidential Information shall survive the termination of this Agreement or the applicable Ordering Document for a period of three (3) years.
b. 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 Delivra immediately of any unauthorized access or use of Customer’s Account. Delivra will not be held responsible or liable for any losses due to lost or otherwise compromised passwords.
c. Consent to Use Data. Customer agrees that Delivra may collect and use information transmitted by Customer or any User through the Services and/or gathered in any manner as part of the Services provided to Customer, if any. Delivra may also use any information collected to improve and enhance the Services and to provide notices to Customer which may be of use or interest to Customer. The Services contain components that enable and facilitate the use of certain technologies and Internet-based services. Customer acknowledges and agrees that Delivra may automatically check the Software that has been installed on Customer’s or any User’s computer system, if applicable, and may provide updates, upgrades, or fixes to such Software. Delivra will not collect any personally identifiable information from the Customer’s and/or any User’s computer location or workstation during this process. The Software may automatically download and install updates, upgrades, or fixes to the Software from Delivra, or any of its licensors, in order for the Services to function and operate. Customer agrees to receive such updates, upgrades, or fixes (and permit Delivra to deliver these to Customer and/or Users) as part of Customer’s or any User’s use of the Software.
d. Privacy Notice. Notwithstanding anything to the contrary in this Agreement, the Privacy Notice explains how Delivra handles Customer Content and other data processed by the Services. Customer agrees to publish its own privacy notice or policy that complies with Law and takes into account the processing activities it has engaged Delivra to provide. For more information on Delivra’s collection and use of information in connection with the Services, please refer to the Privacy Notice.
8. Warranties
a. Delivra Warranties. Delivra represents and warrants that: (a) to the best of its knowledge, the Services will not violate any applicable Laws; and (b) Professional Services shall be performed in a professional and workmanlike manner by qualified personnel.
b. Customer Warranties. Customer represents and warrants that: (a) it will comply with Laws applicable to the collection, use, and processing of data relating to an individual that it uploads or transmits to and through the Services or collects via the Services; (b) it has obtained all necessary consents, approvals, and Permission from the applicable individuals, including without limitation Contacts and Subscribers, regarding the collection, use, and processing of such individuals information through the Services, including without limitation, personally identifiable information; (b) it is entitled to use and to permit Delivra to use, reproduce, transmit and display the Customer Content; (c) Customer has established a privacy policy, which provides, at a minimum, adequate notice, disclosure and choices to consumers regarding Customer’s use, collection, disclosure and security of their personal information; (d) it will not violate any Laws applicable to its use of the Services; (e) it will not conduct any deceptive, fraudulent, or otherwise illegal activity, harvest or otherwise collect information about individuals without their explicit consent, or harass any persons; and (f) the Customer Content does not and will not (1) violate or encourage the violation of any third-party Intellectual Property Rights or any Laws; (2) target children under the age of thirteen (13) and/or offers products or services that are illegal for minors to buy, possess or participate in; (3) contain any false or deceptive advertising; and/or (4) contain viruses, Trojan horses, browser hijackers, worm scrapers, time bombs, cancel bots, and any other computer programming routines or engines that are intended to damage, detrimentally interfere with, modify, impede, surreptitiously intercept, or expropriate any computer system data or information.
9. Disclaimers
a. 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 Delivra to warrant that the Professional Services guarantee i) high deliverability; ii) high engagement with Customer Content; or iii) a successful marketing campaign. Customer hereby acknowledges and agrees that Delivra will not be liable for the failure of the performance of the Services to generate any expected or useful results.
b. API Connector/Integration. Delivra does not guarantee the continued availability of any API Connector/Integrations. Delivra 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 Customer’s account. To the extent data is transmitted outside of the Services, Delivra cannot and will not be responsible for the privacy, security or integrity of such data.
c. Advice. From time to time, Customer may obtain advice or information from Delivra help or support pages, white papers, and/or Delivra’s employees (collectively, “Advice”). Customer acknowledges and agrees that such Advice will not be deemed to constitute financial, legal or tax advice. Customer agrees that use of and reliance on any such Advice is at its own risk and Customer releases Delivra entirely of all responsibility and liability for any consequences of its use of and reliance on any such Advice.
d. 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. DELIVRA DOES NOT MAKE ANY WARRANTY OR GUARANTEE AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES, BETA FEATURES, RELATED MATERIALS, ANY THIRD-PARTY SOFTWARE COMPONENTS, TECHNOLOGIES, EXTENSIONS, AND ADVICE ARE BEING PROVIDED ON AN “AS IS” AND “AS-AVAILABLE” BASIS. EXCEPT AS EXPRESSLY STATED IN WRITING BY DELIVRA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW DELIVRA AND ITS LICENSORS DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, GUARANTEES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. DELIVRA AND ITS LICENSORS FURTHER DO NOT REPRESENT OR WARRANT THAT THE SERVICES, THE RELATED MATERIALS, OR ANY THIRD-PARTY SOFTWARE COMPONENTS, TECHNOLOGIES, OR EXTENSIONS WILL ALWAYS BE ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES DELIVRA OR ITS LICENSORS WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, TO OR FROM ANY NETWORK OR ANY QUALITY OF ANY COMMUNICATION MADE USING THE SERVICES, THE RELATED MATERIALS, OR ANY THIRD-PARTY SOFTWARE COMPONENTS, TECHNOLOGIES, OR EXTENSIONS. WITHOUT LIMITING THE FOREGOING DISCLAIMER, DELIVRA AND ITS LICENSORS AND CONTRIBUTORS DO NOT REPRESENT, WARRANT, OR GUARANTEE THAT THE SERVICES (I) WILL ALWAYS BE AVAILABLE OR FREE FROM ALL HARMFUL COMPONENTS OR ERRORS; OR (II) WILL BE SECURE OR IMMUNE (INCLUDING THE INFORMATION THAT YOU PROVIDE) FROM UNAUTHORIZED ACCESS OR MALICIOUS ATTACKS.
10. Indemnification
a. Mutual Indemnity. Subject to the limitations expressed in this Agreement, each Party shall indemnify, defend and hold harmless the other Party and any officer, director, employee, or Affiliate from and against any and all third party claims, actions, proceedings, suits, losses, costs, expenses, liabilities or damages, including, without limitation, reasonable fees and disbursements of counsel whether or not suit is brought (collectively, the “Claim”) suffered or incurred by or arising from any breach by the indemnifying Party of any of its representations, warranties and covenants under this Agreement or in the applicable Ordering Document.
b. Indemnification Procedures. Each Party’s obligation to indemnify the other Party is subject to: (i) the indemnified Party giving prompt written notice to the indemnifying Party in the event that it becomes aware of a Claim or the possibility of a Claim; (ii) the indemnified Party giving full cooperation with the indemnifying Party, at the indemnifying Party’s expense, in responding to, defending or settling any such Claim; (iii) the indemnifying Party keeping the indemnified Party fully informed of the actions and positions taken by the claimant and taken or proposed to be taken by the indemnifying Party, including the decision to defend or not defend the claim or complaint; (iv) the indemnified Party not admitting any liability or entering into any settlement regarding the Claim on behalf of the indemnifying Party; and (v) the indemnified Party giving the indemnifying Party sole control of the defense of the Claim and that all costs and expenses incurred by the indemnifying party in investigating, resisting, litigating and settling the Claim, including the payment of any award of damages and/or costs to any third party, will be paid by indemnifying Party, provided that no settlement shall be entered into by the indemnifying Party that (1) imposes any legal or financial obligation on the indemnified party without the indemnified Party’s prior written consent; and (2) does not contain a full release of the indemnified Party from the Claim. Notwithstanding the foregoing, the Parties further agree that the indemnified Party may elect to participate as a party, in its sole cost and expense, in any litigation involving the Claim to the extent that the court may permit.
11. Limitation of Liability
a. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, OR THE BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER 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, ANY ORDERING DOCUMENT, OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, OR THE BREACH OF CONFIDENTIALITY OBLIGATIONS, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDERING DOCUMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDERING DOCUMENT IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. CUSTOMER AGREES THAT DELIVRA’S LIABILITY WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH CUSTOMER CONTRIBUTED TO THE LOSS.
c. THIS LIMITATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO THE FRAUDULENT ACTIONS, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF EITHER PARTY.
12. Term, Termination, & Survival
a. Term. The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, will continue to apply to all Ordering Documents for the duration of the Order Term. Customer’s obligations pursuant to this Agreement and/or the applicable Ordering Document will continue to apply to any use of the Services by a User.
b. Right to Suspend. Delivra may suspend Customer’s Account: (a) for non-payment or untimely authorization of payment; (b) at any time without notice for conduct that it believes, in its reasonable discretion, violates: i) this Agreement, the Ordering Document, the AUP, the Anti-Spam Policy, and/or other agreements, policies, or guidelines which may be associated with Customer’s use of the Services; or ii) any Laws applicable to Customer’s use of the Services.
c. 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 ten (10) calendar 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 acknowledges and agrees that any termination of this Agreement shall constitute the immediate and automatic termination of all Ordering Documents in effect, however, the termination of any applicable Ordering Document shall not terminate this Agreement or any other Ordering Document(s) in effect.
d. Equitable Relief. Customer agrees that a material breach of this Agreement by Customer would cause irreparable injury to Delivra for which there may be no adequate remedy at law. Delivra shall have the right to apply to any court of competent jurisdiction for injunctive relief and specific performance, without prejudice to any remedies available to it at law or in equity.
e. Effect of Termination. Upon expiration or termination of this Agreement or any applicable Ordering Document: (a) Customer’s right to use the Services will cease, and Delivra 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 and/or the applicable Ordering Document 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) Delivra may delete Customer Content and/or any archived data within thirty (30) days after the date of expiration or any termination of this Agreement and/or any applicable Ordering Document. Any statutory retention requirements with respect to Customer Content remains Customer’s responsibility.
f. Survival. Payment, indemnification, and confidentiality obligations shall survive any termination of this Agreement and/or any applicable Ordering Document. Termination, cancellation, or completion of an Ordering Document or this Agreement will not relieve either Party of any previously accrued obligations or of any obligations which by their nature are intended to survive termination, cancellation or expiration.
13. General
a. Interpretation. The headings in the Agreement do not affect its interpretation. References to sections are to sections of this Agreement. Any phrase introduced by the terms "including", "include" and "in particular" or any similar expression shall be construed as illustrative only and shall not limit the sense of the words preceding these terms. In this Agreement, unless the context requires otherwise: the singular includes the plural and vice versa; the masculine includes the feminine and vice versa.
b. Force Majeure. Neither Party shall be liable for any delays or failure in performance of any part of its obligations under this Agreement and/or the applicable Ordering Document due to any cause beyond its reasonable control. This includes, but is not limited to, acts of God, changes to Laws, pandemics, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, and acts of hackers or third-party internet service providers.
c. Notices. Notices to Customer will be effective when Delivra posts them to Customer’s Account or sends them to the email address associated with Customer’s Account. Notices to Delivra will be effective when delivered to contracts@delivra.com, with a copy to legal@delivra.com. Any such notice will be deemed to have been received on the date on which it was transmitted by email.
d. Governing Law. This Agreement and any applicable Ordering Document, and all claims related to it or the performance by both Parties under it, shall be interpreted, construed, and governed exclusively in all respects in accordance with the Laws of the State of Indiana, excluding its conflict of Laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or any applicable Ordering Document. The Parties shall endeavor to settle any dispute arising out of or in connection with this Agreement or any applicable Ordering Document, or in respect of any legal relationship associated with or derived from this Agreement or Ordering Document, by direct negotiation between their managing directors or similar senior management or executives. In the event that such direct negotiation does not result in a resolution of the dispute, the Parties irrevocably submit to the exclusive jurisdiction of the courts of Indianapolis with respect to any and all legal action and proceedings and expressly and irrevocably waive any defense of personal and/or subject matter jurisdiction in those courts or any claim on the grounds of inconvenient forum.
e. Claims. To the fullest extent permitted by applicable Law: (i) Customer agrees to waive any right to a jury trial; (ii) no legal proceeding shall be joined with any other; (iii) there is no right or authority for any dispute under this Agreement or under any applicable Ordering Document to be litigated or resolved on a class-action basis or to utilize class action procedures; and (iv) there is no right or authority for any dispute under this Agreement or under any applicable Ordering Document to be brought in a purported representative capacity on behalf of the general public or any other person. CUSTOMER AGREES THAT CUSTOMER MAY BRING CLAIMS AGAINST DELIVRA ONLY IN CUSTOMER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Except for claims related to breach of confidentiality obligations, the Parties agree that, notwithstanding any otherwise applicable statute(s) of limitations, any legal proceeding shall be commenced within two (2) years of the acts, events, or occurrences giving rise to the claim.
f. Export Control. The Services made available by Delivra may be subject to export control Laws of the United Kingdom, United States and other jurisdictions. Customer shall comply with all applicable export Laws, secure any applicable licenses, and, without limiting the generality of the foregoing: (a) Customer represents that it is not named on any United Kingdom or United States government list of persons or entities prohibited from receiving exports; (b) Customer will not export or re-export, directly or indirectly, any Services or Delivra Confidential Information to any countries except as permitted under the export Laws of the United Kingdom and United States; and (c) Customer shall not permit Users to access or use Services in violation of any United Kingdom or United States export embargo, prohibition or restriction.
g. Assignment. Neither this Agreement nor any right or duty under this Agreement or under any applicable Ordering Document may be transferred, assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of Delivra. Any purported assignment in violation of the foregoing shall be null and void. This Agreement and any applicable Ordering Document and/or any right or duty under this Agreement or under any applicable Ordering Document may be transferred by Delivra without the consent of Customer. 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.
h. 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 nor have the Parties granted to each other any right or authority to assume or create any obligation of responsibility, express or implied, on behalf of or in the name of the other, or to bind the other in any manner whatsoever. Nothing in this Agreement confers or is intended to confer any rights or remedies on any person or entity which is not a party to this Agreement.
i. Non-Solicitation. During the term of this Agreement, and for a period of one (1) year thereafter, Customer shall not solicit for hire, on behalf of itself or any other organization, any personnel of Delivra with whom Customer has had contact pursuant to the relationship established under this Agreement or under the applicable Ordering Document, except that the foregoing shall not apply to the solicitation of employment of any person where contact with the Customer is initiated by such person in response to an advertisement published by Customer in a newspaper, magazine, trade publication or other publication or by electronic means, such as posting on the Internet, and that is available to the general public. If Customer violates this provision, Customer shall pay Delivra an amount equal to the aggregate compensation paid by Delivra to the solicited employee in the six (6) months preceding Customer’s solicitation of such employee.
j. Amendment/Waiver. This Agreement was last modified on the date listed at the end of this Agreement (“Last Modified Date”). Deliver 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 Delivra. 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 the Site regularly for modifications to this Agreement. Any term or condition in any purchase order or other document provided by Customer to Delivra will be null, void, and of no legal force or effect unless it is made pursuant to an amendment to this Agreement and signed by an authorized representative of the Delivra. The failure of Delivra to enforce at any time any of the provisions of this Agreement or any applicable Ordering Document, or the failure to require at any time performance by Customer of any of the provisions of this Agreement or any applicable Ordering Document, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of Delivra to enforce each and every such provision thereafter.
k. Severability. If any provision of this Agreement or any applicable Ordering Document is held invalid, illegal or otherwise unenforceable, it shall be deemed severed from this Agreement and all other provisions will remain in full force and effect.
l. Counterparts. 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 or digital means, shall be deemed to be an original and all of which taken together shall constitute one and the same document. A digital, electronic or facsimile copy shall be deemed to be an original copy of the Ordering Document.
m. Entire Agreement. This Agreement, together with its incorporated documents and any Ordering Documents and/or SOWs referencing this Agreement, constitutes the entire agreement between the Parties regarding the Services and supersedes all prior and contemporaneous agreements, representations, negotiations, and understandings, whether written or oral, concerning the subject matter hereunder and governs Delivra’s provision of and Customer’s receipt and use of the Services.
Last Modified Date: September 1, 2023
