TextOut Master Service Agreement

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SaaS Services Order Form for TextOut™ Standard 

Customer access to the platform and documentation, with online help and limited email support from Company Services are described below in Exhibit A (the "Services").

Per Outbound Message
Standard Fee

Messages number 1-1,000,000

$0.07

Messages number 1,000,001-5,000,000

$0.06

Messages number 5,000,001-10,000,000

$0.05

Messages number 10,000,001+

$0.04

Fee Protection:  The Service Fees are for the duration of the Service Term. Notwithstanding the foregoing sentence, if any of the Company’s telecommunication providers supporting the service increases the rates charged to the Company during the Service Term (a “Provider Rate Change”), Company will have the right to, upon prompt written notice to Customer of such a Provider Rate Change, increase the Service Fees charged to Customer to account for the increased charges on a zero-markup basis (a “Fee Increase”).

  

Some carriers apply a delivery surcharge per message segment. Carriers and their partners may also require and charge for Brand (Customer) and Campaign registration with The Campaign Registry, and (optional) vetting fees. These carrier-associated fees are “Carrier Fees.” Company will pass these Carrier Fees through at no markup to Customers. The Company will provide Customer written notice of any new Carrier Fees during the Service Term. Carrier Fees will be broken out as separate line items in Customer invoices.

Service Capacity: Customer does not have minimum spend.

Capacity Planning: Every month, Customer agrees to provide Company with their estimated usage for the upcoming month to assist Company with their capacity planning.

Initial Service Term: End of fiscal year. 

Terms and Conditions SaaS Services and Support

1.1    Subject to the terms of this Agreement, Company will provide (a) Customer employees who Customer permits to access and use the Services and (b) any of the consultants, contractors and agents who, in writing, Company permits to access and use the Services and for whom access to the Services has been purchased hereunder (collectively, the “Authorized Users”), the Services as described in Exhibit A (the “Services”), in accordance with the Service Level Terms attached hereto as Exhibit B.


1.2    Subject to the terms hereof, for the Term of this Agreement, Company will provide Customer and Authorized Users with Technical Support Services in accordance with the terms set forth in Exhibit C.


1.3    Company will supply a Training and Best Practices Guide, FAQs, and Sample Scripts online through its Online Support Portal (collectively, the “Documentation”).

 

1.4    Best efforts are made to conform to the area codes as selected by Customer when purchasing outgoing cell phone numbers to text from. However, the availability of preferred area codes is outside of Company’s control. For Customers with Standard service, if the preferred area codes are not available, area codes as available elsewhere in the United States shall be selected. For Customers with Turnkey service, before turning to outside area codes, the Customer shall first be informed of the situation by Company to authorize the use of alternate area codes and/or authorize a program timeline shift in order to reuse internal inventory of area codes.  For Customers who select to reuse Company’s internal inventory of area codes, the area codes available shall be allocated on a first-come, first-serve basis.

2. Restrictions and Responsibilities


2.1    Customer and any Authorized User will not, directly or indirectly, use the Services for any purposes beyond the scope of this Agreement.  Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer and any Authorized User will not, directly or indirectly:  (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (ii) copy, modify, translate or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); (iii) rent, lease, license, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services or any Software; (iv) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices or labels or publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Services or any Software; (vi) utilize any equipment, device, software or other means designed to circumvent or remove any form of copy or other protection used by the Company in connection with the Services or any Software (or use the Services or any Software together with any user credentials or other copy protection device not supplied by the Company; (vii) use the Services or any Software to contact any individual or group which the Parties agree, in writing, shall not be contacted using the Services or any Software; (viii) automate any of the Services’ or any Software’s processes, if such automation is otherwise restricted by the Company; (ix) otherwise use the Services or any Software in a manner expressly forbidden by the terms of Exhibit A, use the Services in any manner or for any purpose that infringes or misappropriates; or (x) otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

2.2    Further, Customer and any Authorized User will not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR Section 2.101, the Services and documentation are “commercial items” and according to DFAR Section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR Section 227.7202 and FAR Section 12.212, any use modification, reproduction, release, performance, display or disclosure of such commercial software or commercial software documentation by the U.S. government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.


2.3    Customer agrees that Customer and any Authorized User will use the Services only in compliance with the terms of this Agreement or any applicable law or regulation.  Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s and any Authorized User’s use of Services.  Although Company has no obligation to monitor Customer’s and any Authorized User’s use of the Services, Company may do so and, notwithstanding anything to the contrary in this Agreement, the Company may temporarily suspend Customer’s and any Authorized User’s use of any portion or all of the Services if:  (i) the Company reasonably determines that (A) there is a threat or attack on any of the Services or any Software; (B) Customer’s or any Authorized User’s use of the Services disrupts or poses a security risk to the Services or to any other customer or vendor of the Company; (C) Customer or any Authorized User uses the Services for fraudulent or illegal activities or to harass any individual or group; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (E) Customer’s or any Authorized User’s use of the Services violates the terms of this Agreement or any applicable law or regulation; or (F) use of the Services by Customer or any Authorized User is otherwise prohibited by applicable law;  or (ii) any vendor or other service provider of the Company has suspended, terminated or materially changed the terms of the Company’s access to or use of any third-party services or products required to enable Customer to use the Services (any such suspension described in subclause (i) or (ii), a “Service Suspension”).  The Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension.  The Company shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured.  The Company will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur as a result of a Service Suspension.


2.4    Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, internet access, third-party API keys, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including, but not limited to, administrative and user passwords) and files and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.


2.5    The Company acknowledges that, as between the Company and Customer, Customer owns all right, title and interest, including all intellectual property rights, in and to the Customer Data (as defined below).  Customer hereby grants to the Company a non-exclusive, royalty-free, worldwide license to reproduce, distribute and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for the Company to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, analyze and otherwise use and display in any form Customer Data incorporated within the Aggregated Statistics (as defined below).  The Company does not provide an archiving service and the Company expressly disclaims all obligations with respect to storage of Customer Data.


2.6    If Customer or any of its employees or contractors sends or transmits any communications or materials to the Company by mail, email, telephone or otherwise, suggesting or recommending changes to the Services, including, without limitation, new features or functionality relating thereto, or any comments, questions, suggestions or the like (“Feedback”), the Company is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.  Customer hereby assigns to the Company on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title and interest in, and the Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although the Company is not required to use any Feedback.

3. Third-Party Code


3.1    Software may be delivered using or incorporated with components which are licensed from third parties (“Provided Third Party Code”).  For purposes of this Agreement, such Provided Third-Party Code is subject to its own license terms and the applicable flow through provisions.  If Customer does not agree to abide by the applicable terms for such Provided Third-Party Code, then Customer should not use such Provided Third-Party Code.  The Services may also contain certain open source software (“Open Source Software”).  Customer understands and acknowledges that such Open Source Software is likewise not licensed to Customer pursuant to the provisions of this Agreement and that this Agreement may not be construed to grant any such right and/or license.  Open Source Software may be identified in documentation, or in a list of the Open Source Software to be provided to you upon written request.  To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.


3.2    In addition to the Provided Third-Party Code, the Company may permit and facilitate communication and/or integration between the Services and other third-party products or services (“Customer Third Party Code”).  Customer represents and warrants that it has all necessary rights with respect to any Customer Third Party Code that Customer chooses to connect the Services with, and that all use of the Services by or on behalf of the Customer will comply at all times with the terms and conditions of any applicable agreement between Customer and the applicable third-party provider regarding Customer’s use of such Customer Third-Party Code.  ALL INTEGRATION OF THE SERVICES WITH ANY SUCH CUSTOMER THIRD-PARTY CODE IS “AS-IS,” AND THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.  THE COMPANY WILL HAVE NO LIABILITY FOR CUSTOMER’S USE OF ANY SUCH CUSTOMER THIRD-PARTY CODE, INCLUDING, WITHOUT LIMITATION, ANY USAGE AND/OR OVERAGE FEES.

4. Restrictions and Responsibilities


       The Company reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Customer or any third party any intellectual property rights or other right, title or interest in or to the Services or any Software.

5. Confidentiality; Proprietary Rights


5.1    Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business, including information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media and whether or not marked, designated or otherwise identified as “confidential” or “proprietary” (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services, including the terms of this agreement.  Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”).  The Receiving Party agrees:  (i) to take reasonable precautions to protect such Proprietary Information; and (ii) not to use (except in performance or use of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information; provided, however, Customer may disclose Proprietary Information to its vendors and Authorized Users in connection with its use of the Services.  The Disclosing Party agrees that the foregoing shall not apply with respect to (A) any information after five (5) years following the disclosure thereof; provided, however, with respect to any Proprietary Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Proprietary Information remains subject to trade secret protection under applicable law; or (B) any information that (i) the Receiving Party can document; (ii) is or becomes generally available to the public; (iii) was in its possession or known by Receiving Party prior to receipt from the Disclosing Party; (iv) was rightfully disclosed to it without restriction by a third party; (v) was independently developed without use of any Proprietary Information of the Disclosing Party; or (vi) is required to be disclosed by law, provided that the Disclosing Party shall first have given written notice to the other party and made a reasonable effort to obtain a protective order.


5.2    Company shall own and retain all right, title and interest in and to (i) the Services and Software, all improvements, enhancements or modifications thereto; (ii) any other the Company deliverables, including any and all related and underlying Software (including interfaces), databases (including data models, structures and any other non-customer specific data and statistical data), technology, reports and documentation as well as any related process or methodology provided or used by the Company, and with respect to each of the foregoing, any copies, modifications, improvements, derivative works or enhancements thereto, however developed or provided (including any which incorporate any of your ideas, Feedback (as defined below) or suggestions; (iii) without limitation, all patent, copyright, trade secret and other intellectual property rights related to any of the foregoing.

 

5.3    Notwithstanding anything to the contrary, Company shall have the right to collect, analyze and display data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, Customer Data and data derived therefrom) (collectively, the “Aggregated Statistics”), and Company will be free (during and after the term hereof) to (i) use the Aggregated Statistics to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings; (ii) publicly disclose and display the Aggregated Statistics in aggregated or other de-identified form and (iii) use the Aggregated Statistics for any other purpose.  No rights or licenses are granted except as expressly set forth herein.


5.4    For complete transparency and absence of confusion, the existence of a business relationship between Company and Customer is not considered to be confidential information and is subject to the terms of Section 13.

6. Payment of Fees


6.1    Customer will pay Company the fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”).  If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.  If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) calendar days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  All billing inquiries will be directed to Company’s accounting department via the Company’s Online Support Portal.


6.2    Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after Customer’s receipt of the invoice.  Unpaid amounts are subject to a finance charge of one percent (1%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including attorneys’ fees, court costs and collection agency fees; and if such failure to pay unpaid amounts continues for sixty (60) days after Customer’s receipt of the invoice, the Company may, in its sole discretion, immediately prohibit use of any portion or all of the Services by Customer until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such prohibition of access to or use of the Services.


6.3    All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments.  Customer shall be responsible for all sales, use or similar taxes associated with Services other than U.S. taxes based on Company’s net income.

7. Term and Termination


7.1    Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and may be renewed for additional terms by written agreement of the Parties.


7.2    In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ written notice.  Customer will pay in full for the Services up to and including the last day on which the Services are provided. If Customer has committed to an annual contract fee (or other term based contract fee), all fees not yet paid under such a contract will be due upon such termination.  Upon any termination, Company will use commercially reasonable efforts to make Customer Data that is exportable via the TextOut application available to Customer for electronic retrieval for a period of thirty (30) days.  All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability.

8. Warranty and Disclaimer


8.1    Company represents and warrants that (i) the Services will be provided in a professional, workman-like and timely manner in accordance with prevailing industry standards; (ii) neither the Services, any data provided thereby nor Customer’s use thereof will infringe or violate the intellectual property or other rights of any third party; (iii) all Services will be provided in compliance with all applicable Federal laws, rules and regulations; and (iv) the Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control.  The Company does not warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss.


8.2    The limited warranties set forth in Section 8.1 does not apply and becomes null and void if Customer or any Authorized User breaches any provision of this Agreement, or if Customer, any Authorized User or any other person provided use of the Services by Customer, whether or not in violation of this Agreement:  (i) uses the Services on or in connection with any hardware or software prohibited by the Documentation, this Agreement or as otherwise expressly prohibited by the Company in writing; (ii) modifies or damages the Services or any Software; (iii) misuses the Services, including any use of the Services other than as specified in the Documentation or expressly authorized by the Company in writing; or (iv) fails to make a warranty claim and deliver such claim in writing to the Company within thirty (30) days of the date on which the condition giving rise to the claim first appeared.


8.3    COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.  NOR DOES THE COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THAT THE SERVICES WILL BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR WILL BE SECURE, ACCURATE, COMPLETE OR FREE OF HARMFUL CODE.  EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 8, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.  ADDITIONALLY, THE FOREGOING WARRANTIES DO NOT APPLY, AND THE COMPANY STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY PROVIDED THIRD-PARTY CODE, CUSTOMER THIRD-PARTY CODE AND OPEN SOURCE SOFTWARE.


8.4    FOR ANY BREACH OF THE ABOVE WARRANTIES, COMPANY WILL REMIT A SERVICES FEE CREDIT TO CUSTOMER CALCULATED AT TEN PERCENT (10%) OF NET MONTHLY FEES FOR THE SERVICES RENDERED PRIOR TO THE BREACH IN THE MONTH IN WHICH THE BREACH OCCURRED.  THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO COMPANY, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT CUSTOMER’S EXCLUSIVE REMEDY, AND COMPANY’S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT.

9. Indemnity


9.1    Company shall indemnify, defend and hold Customer, its officers, directors, employees, Customers, vendors, campaigns, and affiliates  harmless from any and all third party claims, actions, or demands and all related liability, settlements, damages, cost or expense (including reasonable attorneys’ fees) to resulting from or arising out of any infringement or any claim of infringement by the Service or any component thereof of any third-party intellectual property right, including, without limitation, any patent or any copyright or misappropriation of any trade secret.  The Customer agrees to promptly notify the Company of any and all threats, claims and proceedings related thereto (but any failure to provide notice shall reduce the Company’s obligations only to the extent the Company is prejudiced by such failure) and provide reasonable assistance and the opportunity to assume sole control over defense and settlement.  The Customer will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply to the extent any claim is based on portions or components of the Service (i) made entirely in accordance with Customer specifications; (ii) that are modified after delivery by Company; (iii) combined with other products, processes or materials where the alleged infringement results from such combination; (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (v) where Customer’s use of the Service is not in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, in addition to its indemnification obligations set forth above, at its option and expense (i) replace or modify the Service to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality; (ii) obtain for Customer a license to continue using the Service; or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of all amounts paid for the Service.


9.2    Customer shall indemnify and hold harmless the Company and its directors, officers, representatives, agents and employees against any and all damages and liabilities, including reasonable attorneys’ fees, that arise from a third party’s claim resulting from (i) any suit, claim, action or demands of any kind arising from or in connection with any act, error or omission on the part of Customer, any employee of Customer or any other person or entity retained by Customer who conducts actions in connection with the Services contained in this Agreement; or (ii) Customer’s breach of this Agreement, provided that Customer may not settle any such third-party claim against the Company unless such settlement completely and forever releases the Company from all liability with respect to such a claim or unless the Company consents to such settlement, and further provided that the Company will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

 

9.3    THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND THE COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE SERVICES OR ANY SOFTWARE INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.  IN NO EVENT WILL THE COMPANY’S LIABILITY UNDER THIS SECTION 9 EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO THE COMPANY UNDER THIS AGREEMENT IN THE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10. Limitation of Liability


       NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR BODILY INJURY OF A PERSON, THE COMPANY’S BREACH OF ITS WARRANTIES UNDER SECTION 8, THE COMPANY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 OF THIS AGREEMENT, NEITHER PARTY OR ITS OFFICERS, DIRECTORS OR EMPLOYEES SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY:  (I) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS, GOODWILL OR REPUTATION; (II) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (III) FOR ANY MATTER BEYOND THE PARTY’S REASONABLE CONTROL; OR (IV) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. Force Majeure


       In no event shall either party be liable to the other party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including, but not limited to, acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (each a “Force Majeure Event”).

12. Miscellaneous

12.1    If any provision of this Agreement is found to be unenforceable, illegal or invalid, upon such determination the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.


12.2    This Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent.


12.3    This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in writing signed by both Parties, except as otherwise provided herein.

 

12.4    No agency, partnership, joint venture or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever.

 

12.5    All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next-day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.


12.6    This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions.  Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

 

12.7    No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party.  No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving.  Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

13. Publicity


       Neither party shall issue a press release of any nature regarding this Agreement without the other party’s prior written approval.  Each party hereby agrees that the other party may use its name, URL and logo on its website and in its customer and partner lists for corporate and financial presentations; provided, however, that all such use shall be subject to compliance with the other party’s guidelines for use of its name, trademarks and logos. For Turnkey Service customers, each party hereby agrees that the other party may promote the other on social media, in email communications, and in text message conversations for the purposes volunteer activation, motivation, and retention.

14. Counterparts


       This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

15. U.S. Government Rights

       The Services are a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212.  Accordingly, if Customer is an agency of the U.S. government or any contractor therefor, Customer only receives those rights with respect to the Services as are granted to all other end users under license, in accordance with (i) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors; or (ii) 48 C.F.R. § 12.212, with respect to all other U.S. government Customers and their contractors.

Exhibit A

 

Standard Services

1.    Descriptions: 
 
TextOut™ Standard - Customer access to the platform and knowledge-base online documentation without help or support from the Company.  

  • Access: Customer Access to the TextOut™ messaging platform and the pre-built library of script templates and standard replies.
     

  • Account: Customer is responsible for account administration, receiving any help from online documentation, with limited email support. Email support at this level is limited to issues with platform availability and outages.
     

  • Data: Company does not provide Customer any contact lists, all contact data is provided by Customer.  
     

  • Staffing: Customer trains and manages their own volunteers and staff to administer and send texts.  
     

  • Scripting: Customer is responsible for any and all modifications of script templates and standard replies.  
     

  • Additional services available for additional fees.

 

2.    Meeting Time 

No meeting time assumed for Standard SLA. In-person calls or meeting times, outside Company-offered scheduled consult times or webinars, may be charged at $150 per hour per person.

3.    Script Revisions 

No scripting support assumed for Standard SLA. 
 

Exhibit B

 

Service Level Terms Agreement

Definitions:

 

“Customer Cause” means any of the following causes of an Issue, except, in each case, any such causes resulting from any action or inaction that is authorized by this Exhibit or the Terms and Conditions, is specified in the then-current Documentation or otherwise authorized in writing by the Company:  (i) any negligent or improper use, misapplication, misuse or abuse of, or damage to, the Services or any Software by Customer or any Authorized User or by the Company acting on behalf of the Customer and according to the Customer’s instruction; (ii) any use of the Services and any Software by the Customer or any Authorized User in a manner inconsistent with the Terms of this Agreement; (iii) any use by Customer or any Authorized User of any Third-Party Code that Provider has not provided, caused to be provided to Customer or otherwise authorized Customer to use in writing; or (iv) any use by Customer of a non-current version or release of the Services.


“Issue” means any reproducible failure of the Services to operate in all material respects in accordance with the Documentation, including any problem, failure or error referred to in the Service Level Table.


“Excluded Issue” means an Issue caused by or otherwise arising from any of the following:  (i) scheduled maintenance; (ii) unscheduled maintenance which occurs outside of normal business hours; (iii) any Customer Cause; (iv) unavailability of internet not caused by the Company; or (v) any Force Majeure Event.


“Resolution” means the provision of:  (i) services that, in the Company’s reasonable discretion, corrects the Issue; (ii) information to Customer that corrects the Issue; (iii) information to Customer on how to obtain a software solution that corrects the Issue; (iv) notice to Customer that the Issue is caused by a known, unresolved issue or an incompatibility issue with the Services; or (v) notice to Customer that the Issue has been identified as an Excluded Issue.

Support Service Responsibilities


The Company shall respond to and resolve all Issues in accordance with the Service Level Table provided below, provided that the Company is not responsible to respond to and resolve any Issue which the Company determines, in its reasonable discretion, to be an Excluded Issue.

Service Level Table:

 
 
 
Issue
Definition Data
Response and Resolution

Critical

  • Issue that prevents all use of the Services by the Customer;

  • Has a critical impact on Customer’s business operations; and 

  • No readily available workaround.

  • Issue that prevents all use of the Services by the Customer;

  • Has a critical impact on Customer’s business operations; and 

  • No readily available workaround.

Response Time:  One hour from receipt of Customer’s notification of Issue.

Resolution Time:  One business day from receipt of Customer’s notification of Issue.

Major

  • Otherwise Critical Issue but at least some workaround available;

  • Some but not all functionality unavailable; and 

  • Issue materially degrades significant aspects of Customer’s business operations.

Response Time:  Two hours from receipt of Customer’s notification of Issue.

Resolution Time:  One week from receipt of Customer’s notification of Issue.

Minor

  • Issue that impairs some but not all the Customer’s use of the Services, but does not substantially affect Customer’s business operations

Response Time:  One Day from receipt of Customer’s notification of Issue

Resolution Time:  Next major release of the Services

Requested Enhancements

  • Suggested change to existing functionality and requests for new functionality; and

  • All existing functionality still available.

Response Time:  One day receipt of Customer’s request.

Resolution Time:  At the Company’s complete discretion.

Exhibit C

 

Technical Support

 

Company will provide Technical Support to Customer via electronic mail on weekdays during the hours of 9:00 a.m. through 6:00 p.m. Eastern time, with the exclusion of Federal Holidays (“Support Hours”).


In addition, on the two weekends prior to Primary and General election dates, Company will provide Technical Support to Customer via electronic mail during the hours of 9:00 a.m. through 9:00 p.m. Eastern time. Customer must provide one month’s notice to Company of upcoming Primary election date(s).


Customer may initiate a support request through the Company’s Online Support Portal.