1. Company shall provide the services described on the cover page to this Agreement (the “Services”) and Client shall pay the associated, fees as set forth on the cover page (the “Service Fees”). Payment of the amount reflected on each invoice presented by Company to Client shall be due within twenty (20) days of receipt of applicable invoice. If a payment is thirty (30) days past due, a late fee of 1.5% percent per month due, or the maximum allowed by law if less, will be applied. Client shall pay Company a $25 fee for any returned checks.
2. The initial term of the Agreement is set forth on the cover page of this Agreement. After the period set forth on the cover page of this Agreement and each anniversary thereof the term of this Agreement will automatically renew for an additional one (1) year term equal unless terminated in writing by either Party with thirty (30) days advance notice. Either party may terminate this Agreement in the event of a breach of this Agreement by the other party, if such breach is not cured within twenty (20) days following written notice detailing the breach. Beginning on the three (3) month anniversary of the execution of this Agreement, Client may terminate this Agreement without cause upon advance written notice to Company, provided that Client will remain liable for payment of monthly fees as follows: (a) if the termination notice is received by Company on or before the 7th of the month, then Client is liable for the monthly fees for the Service until the end of such month, or (b) if the termination notice is received after the 7th of the month, then Client is liable for the monthly fees for the Service until the end of the following month. By way of example, if the cancellation request is received by Company on June 2nd, then Client would remain liable for the monthly fees through June 30th, but if the cancellation request is received by Company on June 15th, then Client would remain liable for the monthly fees until July 31st.
3. Company shall bill Client according to the terms of the attached proposal, and any subsequent quotations which may be accepted by Client. Client shall pay the applicable messaging usage fee as set forth in Paragraph 1 above.
4. Company and Client shall abide by all applicable local, state, national and international laws and regulations and Client is solely responsible for the content of the messages and broadcasts transmitted under Client’s account as a result of the Services provided by Company under the provisions of this Agreement.
6. Company provides the Services “AS IS” and is only responsible for ensuring that Client’s messages leave the Company network. Company shall not be responsible for the ultimate delivery of the client’s messages, and makes no such warranty or guarantee. Company reserves the right to send, dispatch, remit, transmit and/or forward any type, category or form of communication to Client including, but not limited to, e-mails, SMS/text messages, facsimiles and/or telephone calls to address or discuss any issue related to the Services. Client acknowledges and agrees that the Services contain inherent limitations (e.g. number of messages per hour) and as such the Services are subject to such limitations.
7. The Software, and any associated documentation, is and shall remain the sole and exclusive property of Company, and is copyrighted and licensed, not sold. Company’s databases contain material that is protected by United States Copyright Law and trade secret law, and by international treaty provisions. All rights not granted to Client herein are expressly reserved by Company. Client may not remove any material belonging to Company from any web site or any of Company’s databases. Client shall not use Company’s name, logos or any related product and service names, design marks and slogans in any advertising, publicity or any other commercial manner without the prior written consent of Company. All worldwide right, title and interest in and to the Services, and all components thereof, including all intellectual property rights therein, shall be and remain the sole and exclusive property of Company or its third party licensors, as applicable.
8. Client acknowledges that Company possesses valuable trade secrets and agrees to maintain the confidentiality of Company’s proprietary materials. Company acknowledges and agrees to protect and keep confidential all Client Confidential Information. “Confidential Information” means non-public information that a party marks as “confidential” or “proprietary” or that otherwise should be understood by a reasonable person to be confidential in nature. Confidential information specifically includes all terms of this Agreement and Client’s e-mail, phone, fax, physical mailing addresses, instant message handles and pager list(s). Company shall not compile, buy, sell, rent, rent or trade Client’s e-mail, phone, fax, physical mailing addresses, instant message handles or pager list(s), or send unauthorized emails, instant messages, wireless text messages (SMS), direct mail, voice messages or faxes to any individual or entity on Client’s list(s). Company shall not use Client’s customer list(s) or any other customer information for any purposes other than those specifically intended with the Service. Company shall protect the confidentiality of Client’s Confidential Information that it receives from Client and shall not share Client’s Confidential Information with any other third party except as required by applicable law, statute, rule, or regulation. If disclosure is required by law, statute, rule or regulation (including any subpoena or other similar form of process), Company shall provide Client with prior prompt written notice thereof and, if practicable under the circumstances, allow Client to seek a restraining order or other appropriate relief and agrees to stipulate to any orders necessary to protect said information from public disclosure.
9. Company acknowledges that in connection with this engagement Company may have access to Protected Health Information (“PHI”), consisting of individually identifiable health information. Company agrees that Company (a) will not use or further disclose PHI other than as permitted by this Agreement or required by law or professional regulation; (b) will use appropriate safeguards to prevent use of disclosure of PHI that Company creates, receives, maintains, or transmits on Client’s behalf; (c) will, for electronic PHI, implement appropriate administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of electronic PHI; (d) will require that all of Company’s subcontractors and agents to whom Company provides PHI pursuant to the terms of this Agreement agree to all of the same restrictions and conditions to which Company is bound, including reasonable and appropriate safeguards to protect this PHI; (e) will report to Client, within a reasonable period of time, any unauthorized use or disclosure, modification, or destruction of your electronic PHI promptly upon becoming aware of it, and will mitigate, to the extent practicable, any harmful effects known to Company; (f) will make available for access PHI that Company maintains as part of a designated record set; (g) will make available for amendment and incorporate any amendment to PHI that Company maintains as part of a designated record set; (h) will make available upon Client’s request an accounting of disclosures; (i) will make available to the Secretary of Health and Human Services upon reasonable notice, Company’s policies and procedures as necessary to determine Client’s HIPAA compliance as it relates to this Agreement; (j) will, upon termination of this Agreement, return or destroy all PHI received from Client that Company maintains; and (k) will authorize termination of this Agreement by Client if Client reasonably determines that Company has violated a material term of Company’s obligation to protect PHI, but only so long as no cure is reasonably possible, and that Client may report such violation as required if no cure is feasible and termination also is not feasible.
10. Client acknowledges and agrees that Company may use Client’s email address and SMS lists to conduct analysis for the benefit of Client, which may include general, anonymous determinations of location, gender, business affiliations, etc. Client hereby grants to Company the right to conduct such analytics and to provide its email address and SMS lists to third parties solely for the purpose of conducting such analysis for the benefit of Client, provided the third party agrees to be bound by the same confidentiality provisions as Customer pursuant to paragraphs 8 and 9 of this Agreement PRIOR to receiving any such Client information. Company will provide the results of the analysis to Client.
11. Company maintains a Global Permanent Removal List, which contains addresses and domains that it will not allow any customer to add to a database. Client understands and agrees that Company has full discretion to block the uploading of any e-mail address that it has placed on such a list, and will not be liable for the blocking of any such address from any customer database. Client agrees that it will not knowingly provide email addresses or SMS lists to Company that contain email addresses or SMS numbers of any person that has previously opted-out of receiving emails, SMS or other communications from Client (or from Client’s previous email marketing service provider).
12. Client shall not: (1) use or copy Company’s platform, network, marks or web site or its associated documentation except as provided in this Agreement; (2) modify or merge Company’s platform, network, marks or web site or its associated documentation; (3) publish, display, disclose, sell, rent, lease, modify, loan, distribute, create or otherwise make available derivative works based on Company’s platform, network, marks or web site or its associated documentation or any part thereof, in whole or in part, to any other person or entity; (4) remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on Company’s platform, network, marks or web site or its associated documentation; (6) reverse engineer, decompile, translate, adapt, or dissemble Company’s platform, network, web site or its associated documentation, nor shall Client attempt to create the source code from the object code for Company’s platform, network, or web site or its associated documentation; (7) sublicense or assign the license for Company’s platform, network, marks or web site or its associated documentation; nor (8) copy these terms and conditions of this Agreement for Client and Client’s customers’ own use. Client shall have the right to copy specific sections as a means of complying with such section in Client’s agreements with independent contractors, e.g., Client’s customers.
13. Client shall include the relevant subscribe/unsubscribe information (as well as a physical address for the CAN SPAM act and an abuse link to Company’s abuse system) provided by Company in each message Client sends using Company’s email platforms. Client shall also honor in a timely manner all unsubscribe requests sent directly to Client from those who elected not to use Company’s automated subscribe/unsubscribe features.
14. Client shall be responsible for the text, files, images, photos, videos, sounds, musical works, works of authorship, links, or any other materials that Client submits, transmits or otherwise makes available through the Services (collectively, “Content”), and that Client, and not Company, has full responsibility for all Content that Client prepares and provides to Company, including its legality, accuracy, appropriateness, and trademark and copyright ownership. Client shall retain ownership of any copyrights or other intellectual property rights applicable to the Content. Client shall not knowingly upload, post or otherwise make available through the Service any material protected by patent, copyright, trademark, or any other proprietary right without the express permission of the owner of such patent, copyright, trademark or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on Client. Client shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm relating to Content prepared and provided by Client and Client’s representatives and warrants that: (i) Client owns all Content provided by Client through the Service or otherwise has the applicable licenses necessary to use such Content in accordance with the terms of this Agreement, and (ii) the transmission of Client’s Content through the Service will not knowingly violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights of any person or entity. Client agrees to bear the expense associated with all claims for royalties, fees, damages and any other monies alleged to be owing any person by reason of any Content prepared and provided by Client to Company or through the Service.
15. When providing Content to or otherwise using the Service, Client shall not knowingly, without limitation:
15.1 send any unsolicited e-mails, instant messages, wireless text messages (SMS), voice messages or faxes or unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation;
15.2 send unsolicited e-mails, instant messages, wireless text messages (SMS), voice messages or faxes to email addresses, phone/pager numbers, landline phones or fax machines, obtained from any purchased or harvested lists in which the recipient did not provide the consent required by law to receive Client’s message (or Client’s customers’ messages);
15.3 send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that defame, libel, slander or otherwise violate the legal rights of any individual, group, or organization;
15.4 send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contain or link to pornographic or sexually explicit content, content that directly promotes the use of any illegal substances, or content that violates laws or regulations designed to protect minors,;
15.5 send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contains material that infringes, misappropriates or violates any patent, trademark, trade secret, copyright, rights of privacy or publicity or any other proprietary rights of any party;
15.6 send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contain a computer virus or any other code, program or file that could damage, harm, or otherwise disrupt the operation of anyone else’s computer or storage device, or violate the privacy or security of any individual, group or organization;
15.7 perform or promote illegal activities or promote physical harm against any individual, group or organization;
15.8 impersonate, use the name of (without express permission) or misrepresent any individual, group or organization;
15.9 violate any applicable local, state, federal or international laws or regulations or perform any activity that would cause Company to violate any law, statute or regulation;
15.10 transmit or otherwise make available any content that is defamatory, libelous, disparaging of Company, or that promotes, furthers or incites violence, terrorism or illegal acts, ;
15.11 submit any copyrighted or trademarked materials without the express permission from the owner;
15.12 solicit personal information from anyone under 13 years of age; or
15.13 upload or transmit viruses, Trojan horses or other harmful or destructive files, or post material that interferes with any third party’s uninterrupted use and enjoyment of the Service.
Company reserves the right to terminate Client’s access to Client’s account or Client’s ability to use the Service if Client violates the provisions of this Paragraph 15, in which case Company shall provide Client with twenty (20) days advance written notice of Company’s intent to terminate and shall also provide to Client a complete, up-to-date backup copy of Client’s mailing list(s). In the event Company exercised it right to terminate under this Paragraph 15, Client shall be liable only for the monthly fees for the Service until the end of the month in which Company provides Client the notice of termination.
16. Client represents, covenants and warrants that Client shall use the Services only in compliance with the intended uses set forth in this Agreement, the federal CAN-SPAM Act of 2003 and other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity or defamation). In the event Client uses the Service to conduct telemarketing activities, Client warrants to Company that Client will take actions necessary to comply with applicable state and federal “DO NOT CALL” and telemarketing registration statutes and regulations, and Client shall not knowingly use the Service in a manner which will result in a violation of any laws or regulation respecting such Service, including but not limited to the Federal Telephone Consumer Protection Act, 47 U.S.C. § 227, and related regulations promulgated by the Federal Communications Commission and the Federal Trade Commission. Client shall use Company only for “opt-in” lists, lists in which the recipient has voluntarily signed up to be on Client’s list and has not requested to be unsubscribed. Any messages intentionally sent to users who did not request to be on Client’s or Client’s customers’ lists, whether purchased or otherwise obtained without the recipients’ consent, shall be deemed as “Spam” and may result in termination of Client’s account and legal action, including the pursuit of damages, against Client for violating Company’s “No Spam” policy.
18. Company shall use commercially reasonable best efforts to comply with the CAN-SPAM laws and to enforce such practices for all of its customers. Company will work closely with the major anti-spam organizations such as Mail Abuse Prevention System (MAPS), SpamCop, Spamhaus, and Spam Prevention Early Warning System (SPEWS) to ensure that all of its customers are not in violation of spamming policies.
19. Client understands that e-mails that are sent through Company’s Services may generate abuse complaints from recipients. Company will make a reasonable efforts to share with Client the e-mail addresses, instant message handles, phone numbers, pager numbers or fax numbers of those who submit complaints about Client’s campaigns.
20. Client acknowledges that if Client breaches this Agreement Company shall be entitled to equitable relief to protect its interests, including preliminary and permanent injunctive relief. Company may also seek damages as a result of such breach. THE SOFTWARE MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED UPON TERMINATION OF THIS AGREEMENT. CLIENT WILL NOT TAMPER WITH THIS DISABLING DEVICE OR THE SOFTWARE. CLIENT SHALL TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE SOFTWARE CAN NO LONGER BE USED. Company may terminate this Agreement if such breach is not cured within twenty (20) days following written notice.
21. After termination pursuant to the terms and conditions set forth in this Agreement, Company will provide Client with the list of unsubscribe requests from within thirty (30) days of Client’s last email campaign, but Company will not process said requests. If Client’s account is classified (at Company’s sole discretion) as inactive for over sixty (60) days, Company has the right to permanently remove Client’s subscriber data. Company shall provide written to Client via email at least ten (10) business days prior to taking any permanent removal actions.
22. The Software and its platforms may have errors and may produce unexpected results. Client agrees to backup Client’s information and take other appropriate measures to protect Client’s programs and data. Client shall not allow a third party to use Company’s account Client specifically understands that Client assumes the risk of Client’s messages actually reaching their destination, and that Company does not and cannot guarantee the ultimate delivery of Client’s messages.
23. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY AND ITS THIRD PARTY LICENSORS MAKE NO WARRANTIES, AND EXPRESSLY DISCLAIM ALL WARRANTIES, OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY AND ITS THIRD PARTY LICENSORS DO NOT WARRANT THAT THE SERVICES WILL MEET ANY REQUIREMENTS OR NEEDS OF CLIENT, OR THAT THE SERVICES WILL BE ERROR FREE, OR OPERATE IN AN UNINTERRUPTED FASHION,. COMPANY DOES NOT WARRANT THAT THE SOFTWARE’S PLATFORM IS COMPATIBLE WITH ANY OTHER PARTICULAR PLATFORM. CLIENT SPECIFICALLY UNDERSTANDS THAT THERE ARE MANY REASONS, OUTSIDE OF THE CONTROL OF COMPANY, THAT E-MAILS, INSTANT MESSAGES, TEXT MESSAGES, PHONE MESSAGES AND FAX MESSAGES MAY NOT REACH THEIR INTENDED RECIPIENTS, AND UNDERSTANDS THAT COMPANY CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR THE ULTIMATE ARRIVAL OF CLIENT’S MESSAGES.
24. Company and Client agree that each party’s aggregate liability to pay damages for all claims, losses, liabilities or damages in connection with the Services provided pursuant to this Agreement, whether as a result of breach of contract, tort (including negligence) or otherwise (with the exception of infringement claims, which are expressly addressed below in Paragraph 26), regardless of the theory of liability asserted, is limited to no more than two (2) times the total amount of fees to be paid by Client to Company for the Service set forth in this Agreement as identified on the cover page. In addition, neither Company nor Client shall be liable in any event for lost profits, consequential, indirect, punitive, exemplary or special damages.
25. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY OR ITS THIRD PARTY LICENSORS BE LIABLE TO CLIENT OR CLIENT BE LIABLE TO COMPANY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) ARISING OUT OF THE PROVISION OF OR THE USE OF THE SERVICES.
26. Company hereby agrees to defend, indemnify and hold Client harmless against any damages, settlement awards, costs and expenses (including, without limitation, attorneys’ fees) awarded against or otherwise incurred by Client, arising out of or resulting from any third party claim, action or demand (collectively, a “Claim”) alleging that the Services, as provided by Company, when used in compliance with the terms of this Agreement, infringe or misappropriate any patent, copyright or trade secret of a third party under United States law. Notwithstanding the foregoing, Company will have no obligation hereunder for any Claim that arises out of or results from any use by Client of the Services in combination with materials, products and/or services not supplied by Company where the Claim would not have arisen but for the combination of the Services with the Content supplied by Client or such third party materials, products and/or services. Upon notice of a Claim Company shall have the right, at its option, to: (1) modify the Services so that they are functionally equivalent and non-infringing or (2) obtain a license for Client to continue using the Services. The foregoing obligations are contingent upon Client’s: (1) giving prompt written notice to Company of any Claim, (2) allowing Company to control the defense and related settlement negotiations and (3) fully assisting in the defense, so long as Company agrees to pay Client’s out-of-pocket expenses.
27. Client agrees to indemnify and hold harmless Company and its affiliates and each of their respective officers, directors, shareholders, employees, agents, contractors, representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, direct damages, settlements, costs and expenses (excluding, consequential damages, incidental damages, special damages, and disbursements, but including attorneys’ fees) arising from or relating to any claim, suit, action, proceeding, or governmental enforcement action based upon or arising out of: (i) Client’s breach of the warranties contained in this Services Agreement; or (ii) any use by Client, or an account or computer owned by Client, of the Services. Client agrees to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, or governmental enforcement action.
28. A mobile-terminated (“MT”) message is any SMS message transmitted by Client to an end-user using Company’s platform. A mobile-originated (“MO”) message is any SMS message sent by an end-user back to Company. For any campaign, Client’s monthly-allotted plan includes only MT messages. Each MT message transmitted to an end-user constitutes a separate message regardless of the timing of the transmission or identity of a recipient. Client will not be charged for MO messages.
29. Company controls and operates this web site from its headquarters in the United States of America and the Services may not be appropriate or available for use in locations outside of the United States of America. If Client uses this web site outside the United States of America, Client assumes the responsibility for complying with applicable laws of the local jurisdiction.
30. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE SOFTWARE OR INFORMATION ABOUT THE SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. CLIENT SHALL NOT EXPORT THE SOFTWARE, THE DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE, AND THE DOCUMENTATION WITHOUT CONSENT OF COMPANY AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.
31. Client will use commercially reasonable best efforts to ensure that anyone in Client’s organization or affiliated entities that uses Company’s Services (accessed either locally or remotely) does so only for Client’s authorized use and complies with the terms of this Agreement.
32. Company is an independent contractor and nothing contained herein shall be construed as constituting the Company an agent or legal representative of Client. Either party may assign this agreement and its rights and obligations, without additional cost, to any parent company or successor corporation resulting from a merger, reorganization, spin-off, or consolidation of such party or to an entity which acquires that party’s business without the consent of the other party. Subject to the foregoing, all of the terms, conditions, covenants, and agreements contained herein shall inure to the benefit of, and be binding upon, any such parent company or successor corporation and any permitted assignees of the respective parties hereto. This Agreement may only be amended by written agreement by the parties. This Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. This Agreement shall be governed by and construed and interpreted in accordance with the internal laws of the State of California without regard to conflicts of laws principles. Exclusive venue for any action arising out of or relating to this Agreement shall be in federal or state court within the State of California and Company agrees to submit to the jurisdiction of such venue. This Agreement may be executed simultaneously in any number of counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be in any way impaired thereby. This Agreement is intended by the parties to be the final, complete and exclusive expression of their agreement and understanding in respect to the subject matter contained herein, and supersede all prior agreements and understandings between the parties with respect to such subject matter.
33. Company understands and acknowledges that it shall not use Client’s name, logos or any related product and service names, design marks and slogans in any advertising, publicity or any other commercial manner not expressly permitted under the provisions of this agreement without the prior written consent of Company.