Terms

MessageBuy Software Subscription License Terms and Conditions

Last Modified: September 3rd, 2019

By clicking “I Agree” or including a signature on a corresponding MessageBuy Subscription Order Form (the “Order Form”) between MessageBuy, Inc., a North Carolina corporation with an address of 8255 Chapel Hill Rd., Cary, NC 27513 (“Company”) and the “Customer” named therein (“Customer”), as may be renewed from time to time, the Company and Customer agree that these Subscription License Terms and Conditions (the “Terms of Use”) shall govern all Access by or on behalf of the Customer and its Users of the Site, Subscription Services and Information provided to Customer by Company. These Terms may be updated from time to time without notice in Company’s sole discretion. By using the Subscription Service or receiving the Consulting Services (“Services”), you the Customer are agreeing to these Terms of Use (the “Terms”).

A. DEFINITIONS

1) “Agreement” means these Customer Terms of Use and all materials referred or linked to in here.

2) “Subscription Services” means the Services provided by Company to Customer, governed by the Agreement, including all of our web-based inbound marketing and sales applications, tools and platforms that you have subscribed to by an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via https://app.MessageBuy.com or another designated URL, and any ancillary products and services, including all types of messaging, that we provide to you.

3) “Users” means those representatives of Customer who utilize the Service(s). These representatives include Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service. It also includes representatives who do not have unique user identifications, but do view messages produced by the Subscription Service(s).

4) “Billing Period” means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.

5) “Communication Services” means sending electronic messages (“Messaging”), third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Subscription Service that enable you to communicate with the public or with a private group.

6) “Confidential Information” means all information provided by you or us (“Discloser”) to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of the Order. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.

7) “Contact” means a single individual (other than a User) whose Contact Information is stored by you in the Subscription Service.

8) “Contact Information” means the name, email address, phone number, online user name(s), mobile telephone number, and similar information submitted by visitors on your website and into the Subscription Service or uploaded by you to the Subscription Service.

9) “Consulting Services” means the professional services provided to you by us, which may include training services, installation, integration, campaign or marketing advice, or other consulting services.

10) “Online Revenue” means the revenue transactions provided by Customer to Company for each transaction. Online Revenue will be used as a component of overall pricing as specified on the Order and will be considered Crowdsourced Data.

11) “Customer Data” means all information that you submit or collect via the Subscription Service. Customer Data does not include Enrichment Data.

12) “Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.

13) “Message Send Limit” means the number of Messages that you may send in any given calendar month.

14) “Enrichment Data” means the data we make available to you as part of the Subscription Service and Crowdsourced Data. Enrichment Data does not include personally identifiable information. We may obtain Enrichment Data from public or third party sources and our internal data processes provided from Customer Data.

15) “Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.

16) “MessageBuy Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services, including Enrichment Data.

17) “Order” or “Order Form” means the MessageBuy-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services. Most Orders are completed through our online payment process or via in-app purchase.

18) “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Sensitive Personal Data’.

19) “Subscription Fee” means the amount you pay for the Subscription Service.

20) “Subscription Term” means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.

21) “Third-Party Products” means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service.

22) “Third-Party Sites” means third-party websites linked to from within the Subscription Service, including Communications Services.

23) “MessageBuy”, “we”, “us” or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.

24) “You”, “your” or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.

25) "MessageBuy Pricing Page" refers to the published pricing which may change from time to time located at https://www.messagebuy.com/sms-mms-rcs-pricing

B. GENERAL COMMERCIAL TERMS

1. Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement and the applicable Order. We may also provide you access to use our Free Services at any time by activating them in your MessageBuy account. We might provide some or all elements of the Subscription Service through third party service providers.

2. Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your MessageBuy account (if this option is made available by us). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your MessageBuy account.

3. Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.

4. Consulting Services. You may purchase Consulting Services by placing an Order with us. Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with your subscription. All Consulting Services are performed remotely, unless you and we otherwise agree. For Consulting Services performed on-site, you will reimburse us our reasonable costs for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice. If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If there is no Expiration Period or Delivery Period indicated, then it will be one hundred and eighty (180) days from purchase. If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services. We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.

5. Fees and Payments

a. Subscription Fees. The Subscription Fee will remain fixed as stated on the MessageBuy Pricing Page during the Subscription Term unless you: (i) exceed your Messaging Send Limit, (ii) upgrade products or base packages, (iii) subscribe to additional features or products, including additional Messages, or (iv) unless otherwise agreed to in the Order.

b. Revenue Percentage. MessageBuy will monitor all online transactions to determine Online Revenue and conversions from MessageBuy campaigns in Company’s sole discretion. Customer will be obligated to pay the Revenue Percentage as determined on the MessageBuy Pricing Page on a monthly basis via a provided credit card. In order to improve pattern recognition and increase conversions, Company will monitor and retain Average Order Value (“AOV”), Conversion Rate (“CR”) and Online Revenue (“OR”) for calculations and improvement opportunities. For the purposes of this agreement, AOV, CR and OR is not considered Confidential Information.

c. Fee Adjustments During a Billing Period. The Subscription Fee will increase during the course of a Billing Period if you exceed your Message Send Limit in a Billing Period. In this case, the Subscription Fee will increase as specified on the MessageBuy Pricing Page in excess of your Message Send Limit.

d. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.

e. Payment against invoice. If you are paying by invoice, we will invoice you no more than seven (7) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form. Late payments will be charged late fees of 1.5% of the outstanding balance for each successive period of 30 days.

f. Payment Information. Customer will keep contact information, billing information and credit card information up to date. Changes may be made on your Billing Page within your MessageBuy account. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a MessageBuy Agency Partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.

g. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.

6. Use and Limitations of Use

a. Acceptable Use. You will use the MessageBuy software and technology in compliance with all laws, regulations, and within the restrictions of these License Terms and Conditions.

b. Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service; (iv) access the Subscription Service other than through our interface; (v) reverse-engineer, dismantle the Services, or otherwise make an effort to extract any source code; (vi) replicate the Services or any, function, feature, or user interface thereof; or (vii) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement. You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so you may not use the Subscription Service where your communications would be subject to such laws. You agree not to use data from the Subscription Service in legal proceedings or otherwise as evidence. You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account by emailing us at info@messagebuy.co.

c. No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.

d. Use of Communication Services. You agree to use Communication Services for Messaging only in compliance with any terms of use specified by each Communication Service. Although we may suggest content, We do not have final control of the content, messages or information found in the Communication Services. We will not have any liability with regards to the Communication Services and any actions resulting from your use of the Communication Services.

e. Third-Party Sites and Products. Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warrant the Third-Party Site or Product.

f. Cellular Carriers. Customer agrees and understands that cellular carriers may change regulations or rules regarding text messaging at any time without notice. Therefore Customer will indemnify and hold harmless MessageBuy, Inc for any such changes which may affect the Services. Furthermore, Cellular Carriers may ultimately prevent the software from delivering messages, and in such case MessageBuy may cancel this agreement and provide a pro-rated refund. Under no circumstances shall Customer request Specific Performance of from MessageBuy, Inc for the Services.

g. Age Eligibility To Use Our Services. The Services are only available to individuals of 13 years old or older. You indicate and uphold that if you are an individual, you are of legal age to form a binding contract and that all registration information you submit is authentic and honest. We may, in our own judgement, deny to extend the Services to any individual or entity and to change the criteria for eligibility at any time. This arrangement is void where prohibited by law and the right to access the Services is invalidated in such jurisdictions.

h. Shopify. If Customer is on the Shopify Platform, Customer agrees to insert and use at minimum following opt-in language at all times, “Opt me in for Shipping Notifications via text message. I understand I may receive via text autodialed promotional marketing messages, and that by checking this box I'm providing an e-Signature. I understand I do not need to check this box in order to complete my purchase.” Customer also acknowledges MessageBuy is not a legal entity and Customer agrees to seek their own legal advice relative to text messaging opt-ins, and hold MessageBuy harmless for any and all claims due to failure to follow legal requirements. ANY FAILURE TO COMPLY WITH THIS CLAUSE WOULD BE CONSIDERED AN ACT OF GROSS NEGLIGENCE BY CUSTOMER.

i. Text Messaging Partner Exclusivity. Customer cannot work with any other text messaging partner or send text messages via any other platform while working with MessageBuy. This exclusivity must be in place to avoid possible inconsistencies with opt-in and opt-out confirmations. ANY FAILURE TO COMPLY WITH THIS CLAUSE WOULD BE CONSIDERED AN ACT OF GROSS NEGLIGENCE BY CUSTOMER.

j. Use Restriction. Customer agrees not to promote any Alcohol, Tobacco, Pharmaceutical, Drug, Explosives, Firearms, Mature, Pornographic, or Adult Novelty products via text messages. ANY VIOLATION OF THIS USE RESTRICTION WOULD BE CONSIDERED AN ACT OF GROSS NEGLIGENCE BY CUSTOMER.

k. Shopping Cart Platform Access. As needed, Customer may grant MessageBuy limited permission access to customer’s own shopping cart technology solution(s) for support, troubleshooting, or other purposes. Customer agrees to hold MessageBuy harmless for any errors, omissions, or actions taken that may occur during this Access period.

l. Authorization to Text. Customer provides express permission and authorization to MessageBuy to send text messages on Customer's behalf in MessageBuy's sole discretion and Customer will hold MessageBuy harmless for any and all claims associated with such authorization. Customer acknowledges MessageBuy may create, edit, or send completely new text messages as part of this authorization. This authorization extends to any MessageBuy employee, contractor, agent, affiliate, software developer, or the software itself. Customer also acknowledges MessageBuy may choose NOT to send text messages and will not hold MessageBuy liable for failure to send any messages.

m. Conversational Cart Recovery. Customer acknowledges that an upgrade to begin using the Conversational Cart Recovery feature may result in additional fees as outlined in on the Pricing page including but not limited to a % of revenue recovered due to MessageBuy. Furthermore, Customer understands MessageBuy will generate text messages to shoppers in MessageBuy's sole discretion including but not limited to sending photos, specific messages, emojis, personalized messages that appear to be human, and other methods as deemed necessary to engage and recover abandoned carts. Customer understands it is their option to turn Conversational Cart Recovery on or off using the MessageBuy application. Customer agrees to defend and hold MessageBuy harmless for any issues, complaints, or legal ramifications as a result of Conversational Cart Recovery or messages sent, or not sent, by MessageBuy.

n. Cart Recovery Audit. Customer may have the option to authorize MessageBuy to perform and "Audit" of consumers to understand the reason why carts are abandoned. This audit may be performed by MessageBuy's Conversational Cart Recovery feature, while also avoiding the act of recovery. Customer acknowledges MessageBuy will use its best efforts to make a guess as to why carts were recovered while engaging via text message with consumers. Customer understands it is their option to start or stop the Audit using the MessageBuy application. Customer agrees to defend and hold MessageBuy harmless for any issues, complaints, or legal ramifications as a result of the Audit or any messages sent, or not sent, by MessageBuy.

7. Subscription Term, Termination, Suspension

a. Term and Renewal. Your initial subscription period will be 30 days, and your subscription will automatically renew for a one month period at the end of each active subscription period. To prevent renewal of the subscription, either party may cancel in writing, and the required written notice must be provided in writing at least 5 days prior to the subscription period expiration.

b. No Early Termination; No Refunds. The Subscription Term will end on the expiration date and the subscription cannot be cancelled early. We do not provide refunds if you decide to stop using the MessageBuy subscription during your Subscription Term.

c. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon three (3) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on three (3) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.

d. Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the MessageBuy message send service that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review, edit and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty to prescreen, control, monitor or edit your Customer Data or Customer Materials.

e. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.

f. Suspension for Present Harm. If your website, or use of, the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.

g. Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.

h. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and MessageBuy Content, and if we request, you will provide us written confirmation that you have discontinued all use of the Subscription Services. We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable subscription as specified in the ‘Retrieval of Customer Data’ section below. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.

C. GENERAL LEGAL TERMS

1. Customer Data

a. Limits on MessageBuy. We will not use, or allow anyone else to use, Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Subscription Service and Consulting Services to you and only as permitted by applicable law, this Agreement, and our Privacy Policy, located at https://MessageBuy.com/privacy-policy.

b. Aggregate Data. We may monitor use of the Subscription Service by all of our customers and use the information gathered in an aggregate and anonymous manner. You agree that we may use and publish such information.

c. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.

2. MessageBuy’s Proprietary Rights. This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of MessageBuy, Inc or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the MessageBuy Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks include, but aren’t limited to, those listed at http://legal.MessageBuy.com/trademarks (which we may update at any time without notice to you) and you may not use any of these without our prior written permission.

3. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you, (b) violation of any text message regulations including, but not limited to the Telephone Consumer Protection Act of 1991 and the Cellular Telecommunications Industry Association guidelines, (c) your noncompliance with or breach of this Agreement, (d) your use of Third-Party Products, or (e) the unauthorized use of the Subscription Service by any other person using your User information. We will notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

4. Disclaimers; Limitations of Liability

a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, MESSAGEBUY CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, MESSAGEBUY CONTENT AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES.

c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.

d. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.

e. Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.

f. Electronic Communications Privacy Act Notice (18 USC 2701-2711). COMPANY MAKES NO ASSURANCE OF PRIVACY OR CONFIDENTIALITY OF ANY INFORMATION TRANSMITTED THROUGH THE SERVICES. WE WILL NOT BE LIABLE FOR COMMUNICATIONS, DISK SPACE, REGISTRATION AND IDENTIFICATION INFORMATION, THE PRIVACY OF EMAIL ADDRESSES, CONFIDENTIAL OR TRADE-SECRET INFORMATION OR ANY OTHER CONTENT STORED ON OUR EQUIPMENT, TRANSMITTED OVER NETWORKS ACCESSED By OR THROUGH THE USE OF THE SERVICES.

5. Miscellaneous

a. Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.) The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically.

b. Force Majeure. Neither party will be responsible for failure or delay in performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

c. Actions Permitted. Except for actions for nonpayment or breach of Company’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
d. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.

d. Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Subscription Service. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws. You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals. You will comply with all data collection and marketing laws including but not limited to the CAN-SPAM ACT, CASL, and GDPR.

e. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

f. Notices. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.

g. Entire Agreement. This Agreement (including each Order), along with our Privacy Policy and AUP, is the entire agreement between us for the Subscription Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.

h. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

i. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.

j. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

k. Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees and Payments’, ‘Prohibited and Unauthorized Use’, ‘No Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Retrieval of Customer Data’, ‘MessageBuy’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.

l. Precedence. In the event of a conflict between the terms of the Customer Terms of Service and an Order, the terms of the Order shall control, but only as to that Order.

m. Logo and Testimonial. Customer agrees to provide its logo and testimonial to Company in Customer’s sole discretion. Company may choose to use Customer logo and testimonials for marketing purposes. Company reserves the right not to use logo or testimonial in Company’s sole discretion, and exercising this right does not place Company in breach of these Terms of Use.

6. Choice of Law; Disputes

a. These Terms of Use shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to the choice of law provisions thereof. Any disputes arising out of these Terms of Use that cannot be resolved by the parties will be brought into state or federal court, as the case may be, located in Raleigh, North Carolina.

b. Customer will pay all costs and expenses, including reasonable attorneys’ fees, that Company incurs in any action to enforce these Terms of Use against Customer or any of Customer’s Users. Customer shall be liable to Company for any act or omission by any of its Users, which if performed or not performed, as the case may be, by Customer would constitute a breach of or default under these Terms of Use.

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