Certain services may be subject to additional terms and conditions specified by us from time to time, and your use of such services is subject to those additional terms and conditions, which are hereby incorporated into this Agreement by reference.
1. Definitions. In addition to the capitalized terms defined elsewhere in this Agreement, as used in this Agreement, the following capitalized terms have the meanings given to them in this Section 1.
1.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Content” means any text, images, sounds, video, graphics, audience, names, logos, marks or symbols transmitted in connection with the Services.
1.3 “Data” means all data generated, created or provided in connection with Subscriber’s use of the Services, which may include, without limitation, personal information relating to an identifiable natural person, either alone or in combination with other information, and analytics information. Data includes Subscriber Data and OE Data.
1.4 “Improvements” means any improvement, refinement, enhancement, or other modification of, or any addition to, the Platform.
1.5 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.6 “OE Data” means all Data generated, created or provided by OutboundEngine in connection with Subscriber’s use of the Services, including Data generated, created or provided by its agents, vendors, service providers or other third parties engaged by OutboundEngine, which is not Subscriber Data.
1.7 “Platform” or “OutboundEngine Platform” means the tools and features (including the Services) developed, operated and maintained by OutboundEngine as to which Subscriber is obtaining access to hereunder via http://www.outboundengine.com and other OutboundEngine owned or controlled websites, and/or mobile services, including, without limitation, our mobile applications and any related software provided on or in connection with the foregoing.
1.8 “Services” means the services provided to Subscriber based upon the Subscriber’s subscriptions hereunder, pursuant to this Agreement and any applicable Service-Specific Terms. Services may include, without limitation, (i) OutboundEngine’s managing elements of the Platform on Subscriber’s behalf and/or generating content to be processed via the Platform, (ii) the provision of the ReadyChat offering, and/or (iii) such other services made available to, and subscribed for by, Subscriber through the Platform.
1.9 “Service-Specific Terms” means the supplemental terms of this Agreement that are specific to any particular Service for which Subscriber has subscribed. By way of example and without limitation, the Service-Specific Terms for ReadyChat identified below are part of this Agreement for Subscriber only if Subscriber has subscribed for ReadyChat.
1.10 “Subscriber Content” means Content provided by Subscriber under this Agreement, including pursuant to any Service-Specific Terms.
1.11 “Subscriber Data” means all Data provided by Subscriber to OutboundEngine, including Subscriber’s own contact information.
1.12 “Subscriber Marks” means all proprietary marks (including, without limitation any trademarks, service marks, trade dress, or other marks or logos) of Subscriber or its Affiliates heretofore or hereinafter registered or used.
1.13 “Third-Party Applications” means technology, Web-based applications and offline software products that are provided by third parties, interoperate with the Platform, and are not owned or created by OutboundEngine.
1.14 “Users” means individuals who are authorized by Subscriber to use the Platform on Subscriber’s behalf, and who have been assigned a unique username-password combination to access and use the Subscription Services, or who have otherwise been provided with access to Subscriber’s Account (defined below). Users may include but are not limited to Subscriber’s employees, consultants, contractors, and agents, or other third parties.
2. Use of the OutboundEngine Platform Generally.
2.1 Our Responsibilities. Subject to the terms and conditions of this Agreement, including without limitation Subscriber’s payment of the Fees due hereunder, OutboundEngine shall use commercially reasonable efforts to make the Platform and those Services for which Subscriber has subscribed available to Subscriber and its Users. Depending upon the Services for which Subscriber has subscribed, different tools and features will be available.
2.2 Subscriber’s Responsibilities. Subscriber shall (a) be responsible for its and its Users’ compliance with this Agreement, (b) be responsible for preventing unauthorized access to or use of the Platform, and notify OutboundEngine promptly of any such unauthorized access or use, (c) be responsible for reviewing and ensuring the accuracy of any Content that is to be transmitted using the Platform, (d) be responsible for ensuring that sending of emails and other communications to persons or entities that are included in the Subscriber Content complies with applicable laws, privacy policies and any applicable professional rules of conduct, and (e) use the Platform only in accordance with this Agreement (including any Service-Specific Terms), our rules, and any applicable privacy policies, laws and government regulations. Subscriber shall provide OutboundEngine with all information, assistance and materials as reasonably required to activate and operate the Platform for Subscriber pursuant to this Agreement, including uploading Subscriber’s logo, sharing customer contact information, etc. OutboundEngine recommends setting up Subscriber’s account (“Subscriber Account”) on the same day as Subscriber’s first subscription payment.
2.3 Restrictions. Subscriber shall not (a) use the Platform as a service bureau or otherwise make the Platform available to anyone other than Users, (b) unless otherwise agreed, sell, resell, rent or lease the Platform or access thereto to any third party, (c) use the Platform to store or transmit Malicious Code, (d) interfere with or disrupt the integrity or operation of the Platform or third-party data contained therein, or (e) attempt to gain unauthorized access to the Platform or its related systems or networks. Furthermore, Subscriber shall not provide any Subscriber Data or Subscriber Content or otherwise use the Platform or the Services in a manner that: (i) infringes, violates or misappropriates another’s intellectual property rights, rights of publicity or privacy, or other rights, (ii) violates any international, federal, state or local law, statute, ordinance or regulation or which would render OutboundEngine in violation of any applicable laws or regulations, or (iii) is harmful, fraudulent, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable. Users may be required to acknowledge and agree to the pertinent provisions of this Agreement as a condition to access. Further, Subscriber may not access the OutboundEngine Platform if it is or is under the control of a direct competitor of OutboundEngine or for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes, except with OutboundEngine’s prior written consent.
2.4 Responsibility for Subscriber Data and Subscriber Content. Subscriber represents and agrees that Subscriber has obtained the Subscriber Data lawfully, in accordance with all applicable agreements, privacy policies and privacy laws, regulations and obligations. Subscriber shall be solely responsible for the accuracy, quality, integrity, and legality of Subscriber Content and Subscriber Data and of the means by which Subscriber acquired its Subscriber Content and Subscriber Data. Subscriber shall not submit or cause to be submitted any Subscriber Data that includes a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, financial or health information, personal information relating to a resident of the European Economic Area or personal information relating to an individual under sixteen (16) years of age, or any other information which may be subject to additional protections under applicable laws or regulations including, but not limited to, the Gramm-Leach-Bliley Act (GLBA) or the Health Insurance Portability and Accountability Act (HIPAA), the Children’s Online Privacy Protection Act (COPPA), or the General Data Protection Regulation (GDPR), or which could give rise to notification obligations under data breach notification laws, without OutboundEngine’s prior written approval.
2.6 Compliance with Email Laws. Subscriber warrants and agrees that its use of the Services shall comply with all applicable laws relating to the sending of commercial email messages, including but not limited to, the CAN-SPAM Act of 2003 and its implementing regulations, as well its applicable privacy policies, agreements and statements, and with any instructions provided by an email recipient to Subscriber in the form of an unsubscribe, opt-out, withdrawal of consent, or other directive. All commercial email messages sent through the Platform shall contain an unsubscribe link to permit email recipients to opt-out of receiving commercial email through the OutboundEngine Service, whether sent by OutboundEngine on behalf of itself or its Subscribers. Commercial emails sent through the Platform to a recipient who previously unsubscribed is prohibited and OutboundEngine shall not knowingly send, or permit any Subscriber to send, email messages through the Platform in contravention of the recipient’s unsubscribe instruction. Further, Subscriber shall notify OutboundEngine promptly, and within no more than 10 days, of any individual who unsubscribes or withdraws consent to receive email communications from Subscriber or agents acting on Subscriber’s behalf.
2.7 Compliance with Calling Laws. To the extent the Services provide a functionality to enable Subscriber to make calls or send SMS/text messages to individuals through the Platform or Services, Subscriber shall at all times comply with the Telephone Consumer Protection Act (47 U.S.C. §227), the Do-Not-Call Implementation Act and the Do-Not-Call list registry rules (http://www.donotcall.gov), the Telemarketing Sales Rule, 47 C.F.R. § 64.1200 et seq, and all other state or local laws, rules, regulations, and guidelines relating to calling or texting, including without limitation, rules, regulations and guidelines set forth by the Federal Trade Commission and the Federal Communications Commission (collectively, the “Calling Laws”). Subscriber is responsible for all activity occurring under Subscriber’s Account, including any unauthorized use of Subscriber’s Account by any User or other third party. Subscriber agrees that, as between the parties, Subscriber is the initiator and sender of any call, SMS/text message, or other communication transmitted through the Services. OutboundEngine is not responsible for reviewing the contents of any communication transmitted through the Services, nor is it responsible for ensuring any necessary consents or permissions from message recipients. Subscriber agrees to familiarize itself with and abide by all applicable local, state, national and international laws and regulations that place restrictions on certain types of phone calls and/or SMS/text messages and is solely responsible for calls or texts sent through the Platform and Services. Subscriber warrants and agrees that it shall not use the Service to engage in unsolicited advertising, telemarketing, or any other activities in violation of the Calling Laws.
2.8 Limitations. Scheduled system maintenance shall take place during a normal maintenance window, as reasonably determined by OutboundEngine. During such time, the Platform or elements thereof may be unavailable. Emergency maintenance may be required at other times in the event of system failure. OutboundEngine will use commercially reasonable efforts to promptly remedy any system failure and restore access to the Platform.
3. Support and Technical Matters.
3.1 Maintenance and Technical Support. During the Term, OutboundEngine shall provide reasonable maintenance and technical support services relating to the Platform.
3.2 Hosting. OutboundEngine shall host and serve the Platform. OutboundEngine may retain one or more third-party service providers to supply the necessary facilities, equipment, and connectivity to provide the hosting services. OutboundEngine retains sole right and control over the programming, content, and conduct on the OutboundEngine Platform. OutboundEngine shall solely be responsible for the maintenance, functionality and improvement of the OutboundEngine Platform.
4. Fees; Payment.
4.1 Fees. In exchange for the provision of the Platform and the Services for which Subscriber has subscribed, Subscriber agrees to pay OutboundEngine all fees listed on the confirmation email (the “Subscription Confirmation Email”) sent to Subscriber or otherwise agreed to by Subscriber during the subscription process (“Fees”). Subscriber agrees that (i) Fees are due and payable in United States dollars, and (iii) except as set forth in Section 17, payment obligations are non-cancelable and Fees paid are non-refundable.
4.2 Invoicing and Payment. Subscriber will provide OutboundEngine with valid and updated credit card information, or with an alternative payment method acceptable to OutboundEngine. If Subscriber provides credit card information to OutboundEngine, Subscriber authorizes OutboundEngine to charge such credit for all Fees due hereunder. Such charges shall be made as specified in the Subscription Confirmation Email. Subscriber is responsible for maintaining complete and accurate billing and contact information in its account.
5. Suspension or Cancelation of Access to the Platform. If any amount owing by Subscriber under this or any other agreement for Services is twenty-one (21) or more days past due, OutboundEngine may, without limiting its other rights and remedies, suspend or cancel Subscriber’s access to the Platform and applicable Services (including without limitation Subscriber’s access to all Data) until such amounts are paid in full.
6. Taxes. Unless otherwise stated, Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Subscriber is solely responsible for paying all Taxes associated with this Agreement. If OutboundEngine has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Subscriber, unless Subscriber provides OutboundEngine with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. License Grant.
7.1 Subscriber License Grant. Subscriber hereby grants to OutboundEngine and its third-party providers, under all of its applicable intellectual property rights, a world-wide, non-exclusive, royalty-free, transferable, sublicensable (through multiple tiers of sublicenses) right and license to use, reproduce, distribute, modify, perform and display the Subscriber Data, Subscriber Content and Subscriber Marks, both during and after the term of this Agreement: (a) in conjunction with the provision of the Platform and the Services to Subscriber and its Users under this Agreement, and (b) to analyze, monitor, improve, and develop OutboundEngine’s products and services, provided that OutboundEngine shall not disclose Subscriber Data or Subscriber Content to third parties other than as needed to perform the Services or as otherwise provided in this Agreement unless such data or content has been de-identified and/or aggregated such that it does not reasonably identify any natural person nor identify Subscriber as the source of such content or data.
8. Intellectual Property Ownership.
8.1 Ownership. All right, title, and interest in the Platform, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, all copyrights, patents, trade secrets, trade dress, and other proprietary rights, and any derivative works thereof (including Improvements), shall belong solely and exclusively to OutboundEngine or its licensors, and Subscriber shall have no rights whatsoever in any of the foregoing except as expressly set forth herein. Subscriber acknowledges that the Platform is comprised of valuable trade secrets and is the confidential information of OutboundEngine and/or its licensors. Nothing in this Agreement or otherwise will be deemed to grant to Subscriber or its Users an ownership interest in the Platform, in whole or in part.
8.4 Suggestions. OutboundEngine shall have and Subscriber hereby grants a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Platform and any derivatives thereof any suggestions, enhancement requests, recommendations, or other feedback provided by Subscribers (including Users), relating to the Platform.
9. Trademarks. The OutboundEngine and ReadyChat names and logos, and other related names, design marks, product names, feature names, and related logos are trademarks of OutboundEngine and may not be used, copied, or imitated, in whole or in part, without the express prior written permission of OutboundEngine. In addition, except as otherwise set forth herein, the look and feel of the Platform (including all page headers, custom graphics, button icons, and scripts) constitutes the service marks, trademarks, and trade dress of OutboundEngine and may not be copied, imitated or used, in whole or in part, without the express prior written permission of OutboundEngine.
11. Third-Party Service Providers. The Platform may include Third-Party Applications or may be fulfilled by third-party providers who are acting on behalf of OutboundEngine and/or Subscriber as a subcontractor, service provider, vendor or contracted third-party service provider. Subscriber acknowledges and agrees that, notwithstanding any of the provisions of Section 7 to the contrary, OutboundEngine may allow third-party providers to access its Data, including Subscriber Data and Subscriber Content, as required for the interoperation of such Third-Party Applications with the Platform.
12. Warranties and Disclaimers.
12.1 Mutual Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement.
12.2 Subscriber Warranties. Subscriber represents and warrants that its use of the Platform and the Services complies, and at all times will comply, with its representations and obligations set forth in Section 2. Subscriber further represents and warrants that it has received all necessary licenses, permits, certifications and approvals (including for attorneys any necessary state bar licenses and specialty certifications) required by any governmental or certification authority to operate its business and to advertise, offer or provide its products and services (collectively, “Regulatory Approvals”), that it is in good standing and in compliance with any professional licensing organization that governs its business, and that it is not subject to any disciplinary or other proceedings that might invalidate its Regulatory Approvals or licensing status.
12.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM AND THE SERVICES ARE PROVIDED “AS IS” AND NEITHER OUTBOUNDENGINE NOR ANY THIRD-PARTY PROVIDER MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH OF OUTBOUNDENGINE AND ANY THIRD-PARTY PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR OF NON-INFRINGEMENT, AND ANY WARRANTY THAT IT CAN HANDLE UNEXPECTED CHAT VOLUMES (AS APPLICABLE), IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ADDITION, NEITHER OUTBOUNDENGINE NOR ANY THIRD-PARTY PROVIDER PROVIDES LEGAL OR REGULATORY ADVICE IN CONNECTION WITH THE SERVICES OR THE PLATFORM.
13. Mutual Indemnification.
13.1 Indemnification by OutboundEngine. OutboundEngine shall defend, hold harmless and indemnify Subscriber against any claim, demand, suit, cost (including attorney’s fees), penalties, investigation or proceeding (collectively, a “Claim”) made or brought against Subscriber by a third party alleging that the use of the Platform as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Subscriber for any damages finally awarded against Subscriber in connection with any such Claim; provided, that Subscriber (a) promptly gives OutboundEngine written notice of the Claim; (b) gives OutboundEngine sole control of the defense and settlement of the Claim; and (c) provides OutboundEngine all reasonable assistance, at Subscriber’s expense.
13.2 Indemnification by Subscriber. Subscriber shall defend, hold harmless and indemnify OutboundEngine and its subsidiaries, agents, licensors, managers and other affiliated companies and their employees, contractors, agents, officers, and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, expenses (including but not limited to attorney’s fees) arising from: (a) Subscriber’s use of and access to the Platform and the Services, including any Data or Content provided, transmitted or received by Subscriber; (b) Subscriber’s violation of any term of this Agreement, including without limitation Subscriber’s breach of any of the representations or warranties hereunder or Subscriber’s Responsibilities set forth in Section 2 or any of the Service-Specific Terms; (c) Subscriber’s violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) Subscriber’s violation of any applicable law, rule or regulation, including but not limited to violations of CAN-SPAM or the Calling Laws; (e) Subscriber Content or any content that is submitted via Subscriber’s Account including without limitation misleading, false, or inaccurate information; (f) Subscriber’s products and services or claims or advertising related to Subscriber’s products and services, including any material on Subscriber’s website; (g) Subscriber failure to obtain Regulatory Approvals for its business, products or services. (h) Subscriber’s willful misconduct; or (i) any other party’s access and use of the Service with Subscriber’s unique username, password or other appropriate security code.
13.3 Exclusive Remedy. This Section 13 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
14. Limitation of Liability. IN NO EVENT SHALL OUTBOUNDENGINE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $10,000 OR THE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
15. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL OUTBOUNDENGINE OR ANY THIRD-PARTY PROVIDER HAVE ANY LIABILITY TO SUBSCRIBER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
16.1 Definition of Confidential Information. As used herein, Confidential Information means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Subscriber’s Confidential Information shall include its Subscriber Data; OutboundEngine’s Confidential Information shall include the Platform and OE Data; and Confidential Information of each party shall include any business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Subscriber Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
16.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
16.3 Protection of Subscriber Data. Without limiting the above, OutboundEngine shall maintain appropriate administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Subscriber Data in OutboundEngine’s possession and control from unauthorized access, disclosure and use. In the event that an unauthorized party accesses and acquires Subscriber Data (a “Security Incident”), OutboundEngine shall promptly notify Subscriber. If, due to a Security Incident which is caused by the acts or omissions of OutboundEngine or its agents, a notification to an individual, organization or government agency is required under applicable privacy laws, Subscriber shall be solely responsible for the timing, content and method of any such legally-required notice and compliance with such laws.
16.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
17. Term and Cancellation of Subscription.
17.1 Term. This Agreement will commence on the date listed on the Subscription Confirmation Email sent to Subscriber and, continue for as long as Subscriber has an active subscription to a Service (the “Term”).
17.2 Duration and Non-Renewal or Cancellation of Subscription. A subscription to a particular Service shall have such initial subscription periods and renewal periods as indicated at the time of subscription and confirmed in the applicable Subscription Confirmation Email. If Subscriber elects to cancel, or not to renew, a subscription, Subscriber must call OutboundEngine at 1-888-988-5526 and speak with a Client Success Manager, who will confirm the cancellation or non-renewal via email. Unless otherwise specified in the Subscription Confirmation Email, cancellation of a subscription will be effective within 5 business days of receipt of the email, if Subscriber cancels during the initial term of a subscription, and within 30 days if Subscriber cancels within any subscription renewal term or other month-to-month subscription. OutboundEngine reserves the right to suspend Subscriber’s access to the Platform and terminate this Agreement at any time upon notice to Subscriber, and may also extend a Subscription in its discretion.
17.3 Effect of Termination. In no event shall termination of this Agreement or any subscription relieve Subscriber of the obligation to pay any Fees payable to OutboundEngine for the period prior to the effective date of termination. If the effective date of termination of a subscription is prior to the end of the subscription month, Fees for such partial month will be prorated. If Subscriber cancels its subscription prior to the expiration of the initial term of the subscription, Subscriber agrees to pay an early termination fee of 50% of the Fees that otherwise would have been payable during the remainder thereof. If Subscriber prepaid any Fees, OutboundEngine will, subject to offset for any other amount due, refund to Subscriber such prepaid Fees covering the remainder of the term of the applicable subscription after the effective date of termination; provided that if Subscriber received a prepayment discount, the amount refunded will also be less any applicable discount for the periods prior to the effective date of termination.
18. General Provisions.
18.1 Governing Law; Venue. This Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Platform shall be subject to the exclusive jurisdiction of the state and federal courts located in Austin, Texas.
18.2 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
18.3 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Subscriber shall not permit Users to access or use the Platform in violation of any U.S. export embargo, prohibition or restriction.
18.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
18.5 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
18.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
18.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
18.8 Attorney Fees. Subscriber shall pay on demand all of OutboundEngine’s reasonable attorney fees and other costs incurred by OutboundEngine to collect any Fees or charges due OutboundEngine under this Agreement.
18.9 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with any merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
18.10 Entire Agreement. This Agreement, including all Subscription Specific Terms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or attachment hereto, the terms of this Agreement shall prevail.
18.11 Survival. Rights and obligations under this Agreement which by their nature should survive, including, but not limited to any and all payment obligations invoiced prior to the termination or expiration hereof, will remain in effect after termination or expiration hereof.
18.12 Amendment. This Agreement will not be changed, modified, or amended except by a writing executed by both parties or if Subscriber electronically accepts a subsequent agreement or amendment delivered by OutboundEngine via the Platform.
18.13 Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third party networking equipment, failure of the public Internet, power outages, labor disputes or governmental demands or restrictions.
19. Service-Specific Terms.
19.1. Promotional Offerings. These Service-Specific Terms apply to any use of the Services any Subscriber on a promotional basis.
19.1.1 Promotional Catalog. When Subscriber uses the Platform on a promotional basis, OutboundEngine may provide Subscriber with a promotional products catalog. OutboundEngine reserves all rights therein, and Subscriber acknowledges and agrees that OutboundEngine shall not be responsible for the accuracy of any information posted therein. OutboundEngine cannot guarantee specific pricing, product descriptions, or availability, as these factors are controlled in part by suppliers and other parties. OutboundEngine shall, in its sole discretion, determine the method, details, and means of developing, altering, or enhancing any such promotional catalog.
19.1.2 Termination and Liability. OutboundEngine reserves the right to terminate any promotional offering by providing written notice to Subscriber. The protections afforded by Section 13.1 shall not apply to any promotional subscription.
19.2 OutboundEngine Core. If and for so long as Subscriber has an active subscription to OutboundEngine’s Core Service, the following terms shall form part of the Agreement:
19.2.1 Additional Subscriber Responsibilities. In the event that any individual requests information about how OutboundEngine acquired his or her information (an “Inquiring Party”), OutboundEngine shall be entitled to disclose to the Inquiring Party (a) that OutboundEngine used his or her consumer information in conjunction with and as part of the provision of Services to Subscriber, (b) the source of the Inquiring Party’s information maintained by OutboundEngine, and (c) if the Inquiring Party’s information was provided to OutboundEngine in Subscriber Data, the name and contact information of Subscriber so the Inquiring Party may contact Subscriber directly.
19.2.2 Additional Intellectual Property Acknowledgements. All Content and materials included as part of the OutboundEngine Core service, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (the “Works”) are the property of OutboundEngine and are protected by copyrights, trademarks, trade secrets, or other proprietary rights, and these rights are valid and protected in all forms, media, and technologies existing now or hereinafter developed. All Works are copyrighted as individual works and as a collective work under the U.S. copyright laws and international treaty provisions, and OutboundEngine owns a copyright in the selection, coordination, arrangement and enhancement thereof. Subscriber may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Works, in whole or in part. Any use other than as expressly contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Works is strictly prohibited. Subscriber understands and acknowledges that unauthorized disclosure, use or copying of the Works may cause OutboundEngine and its licensors irreparable injury, which may not be remedied at law, and agrees that OutboundEngine’s and its licensors’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
19.2.3 Links to External Sites. The Site(s) and the Platform may contain links to other web sites. OutboundEngine is not responsible for the availability of these external sites nor does it endorse the activities or services provided by these websites. Under no circumstances will OutboundEngine be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to a user in connection with the use of or reliance on any content, goods, or services available on such external websites.
19.3 ReadyChat. If and for so long as Subscriber has an active ReadyChat subscription, the following terms shall form part of the Agreement:
19.3.1 Acknowledgement. Subscriber must have a valid URL with a fully operational website to prevent potential suspension/deactivation of the live chat service until such time a valid URL and/or fully functional website/s is provided. ReadyChat code installation on Subscriber’s website must occur within 30 days of receiving, unless otherwise advised in writing to OutboundEngine of a delay and reasonable installation timeframe for code, which will be at the discretion of OutboundEngine to suspend, and or deactivate the ReadyChat Service.
19.3.2 Fee Reporting. Subscriber must dispute the number of leads invoiced within thirty (30) days after the statement date, or such statement shall be deemed to be correct and payable in full in accordance with the Agreement. Subscribed will provide detailed information regarding any dispute, and will cooperate with OutboundEngine in any investigation of disputed matters.
19.4 Profile Reach. If and for so long as Subscriber has an active Profile Reach subscription, the following terms shall form part of the Agreement with respect thereto:
19.4.1 Profile Reach Agreement. Subscriber agrees that its use of and access to the products and services provided pursuant to the Profile Reach subscription (the (“Profile Reach Products”) are subject to the “Product Terms” currently located at http://bit.ly/2iPxCnd, as may be amended from time to time. OutboundEngine’s licensor (the “Profile Reach Partner”) reserves the right to update, improve, replace, discontinue, modify or alter the specifications for or functionality of the Profile Reach Products from time to time.
19.4.2 Acknowledgements. Subscriber acknowledges and agrees that (A) certain of the Profile Reach Products may involve the distribution of Subscriber’s Content to and/or other interactions with third parties (the “Publishers”) that own or operate online business directors, search web sites, social media web sites, mobile apps or other online properties (the “Publisher Sites”); (B) Subscriber Content shall be subject to the Publisher’s character limits, quality standards and other applicable content policies, and that any Subscriber Content may be rejected, in whole or in part, by a Publisher at any time in its sole discretion, or modified at any time to comply with such policies; (C) the Profile Reach Partner does not guarantee that any Subscriber Content will be displayed on any Publisher Site; (D) the appearance and/or location of any Subscriber Content placement may change at any time; (E) if the Profile Reach Partner identifies any Subscriber Content that is inaccurate or contains errors (e.g. the incorrect spelling of a city name or a wrong zip code), or non- compliance with a Publisher’s formatting guidelines (e.g. use of unsupported special characters), the Profile Reach Partner may (but is not required to), in addition to its other available rights and remedies, modify the Subscriber Content to render it true; (F) in order to receive the Profile Reach Products, certain Subscriber Content must be furnished to OutboundEngine and/or the Profile Reach Partner, (G) it is a requirement of obtaining a subscription to Profile Reach Products that Subscriber have less than twenty-five (25) business locations; and (H) OutboundEngine can terminate Subscriber’s subscription to Profile Reach Products at any time by provision of written notice.
19.4.3 License Grant. Subscriber hereby grants Outbound Engine, the Profile Reach Partner and its affiliates (in each case solely to the extent necessary to extend such license as required by a Publisher) and each applicable Publisher a perpetual, unlimited, worldwide, nonexclusive, irrevocable, royalty-free, sublicensable (through multiple tiers of sublicensees) license (A) to use, reproduce, prepare (in each case solely to the extent necessary to extend such license as required by a Publisher) and each applicable derivative works of, and display Subscriber Content as necessary to provide the Profile Reach Products hereunder, and (B) to distribute Subscriber Content to Publishers for use in accordance with their requirements.
19.4.4 Subscriber Data. For the purposes of this Section 19.4 and without limiting the definition of Data in this Agreement more generally, Subscriber Content expressly includes all location and other information or content that is made available to OutboundEngine or its third party providers by or on Subscriber’s behalf in connection with Subscriber’s use of the Profile Reach Products. Subscriber represents and warrants that it owns or otherwise has all rights and permissions necessary to grant all relevant rights and permissions to the Profile Reach Partner and its publisher partners with respect to the Subscriber Content. Subscriber agrees that it will not upload or submit any Subscriber Content that is inaccurate, abusive, harassing, libelous, defamatory, embarrassing, obscene, threatening, or hateful, and agrees that it shall defend, indemnify and hold OutboundEngine harmless from and against any claim, loss, damage or liability associated with any violation of this restriction or otherwise arising from Subscriber Content.
19.4.5 Waiver. Subscriber waives any right to bring or participate in a class action litigation with respect to the Profile Reach Products. OutboundEngine’s Profile Reach Partner is an intended third-party beneficiary of this Section 19.4.5.
19.5 Social Ads. If and for so long as Subscriber has an active Social Ads subscription, the following terms shall form part of the Agreement with respect thereto:
19.5.1 Provision of Social Media Advertising Products.. OutboundEngine’s licensor (“Social Ad Partner”) will provide Subscriber with access to certain products and services for advertising on third-party social media platforms (including Facebook and Instagram) pursuant to the Social Ads subscription (the “Social Ad Products”). In connection with the Social Ad Products, Subscriber will be solely responsible for creating and/or managing Subscriber’s social media platform accounts. Subscriber shall not take any actions or instruct OutboundEngine or the Social Ad Partner to undertake any actions that violate applicable law or the applicable social media platform policies, including without limitation Facebook’s discriminatory advertising policies, the current version of which is available here: https://www.facebook.com/policies/ads/prohibited_content/discriminatory_practices.
19.5.2 License for Social Media Campaigns. Subscriber hereby grants OutboundEngine and the Social Ad Partner a non-exclusive, irrevocable, worldwide, transferable, royalty-free, sublicensable (through multiple tiers of sublicenses) right and license to register or establish accounts and publish campaigns using the Subscriber Data and Subscriber Content with the social media platforms.
19.5.3 Intellectual Property Ownership.. Any intellectual property developed by OutboundEngine or the Social Ad Partner in connection with providing the Social Ad Products that is not Subscriber Content is owned by OutboundEngine or the Social Ad Partner, as applicable.
20. Additional Terms for Mobile Application.
20.1 Mobile Applications. OutboundEngine may make available software to access the Service via a mobile device (“Mobile Applications”). To use any Mobile Applications Subscriber must have a mobile device that is compatible with the Mobile Applications. OutboundEngine does not warrant that the Mobile Applications will be compatible with Subscriber’s mobile device. Subscriber may use mobile data in connection with the Mobile Applications and may incur additional charges from its wireless provider for these services. Subscriber agree that it is solely responsible for any such charges. OutboundEngine hereby grants Subscriber a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one Account on one mobile device owned or leased solely by Subscriber, for Subscriber’s personal use. Subscriber may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile Applications. Subscriber acknowledges that OutboundEngine may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that Subscriber is using on its mobile device. Subscriber consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof, and OutboundEngine or its third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by You to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. OutboundEngine reserves all rights not expressly granted under this Agreement. If the Mobile Applications is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. The Mobile Applications originates in the United States, and is subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and the Service.
20.2 Mobile Applications from Apple App Store. The following applies to any Mobile Applications You acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between You and OutboundEngine, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Subscriber’s use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to You; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to OutboundEngine as provider of the software. Subscriber acknowledges that Apple is not responsible for addressing any claims of Subscriber or any third party relating to the Apple-Sourced Software or Subscriber’s possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to OutboundEngine as provider of the software. Subscriber acknowledges that, in the event of any third-party claim that the Apple-Sourced Software or Subscriber’s possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, OutboundEngine, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. Subscriber and OutboundEngine acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to Subscriber’s license of the Apple-Sourced Software, and that, upon Subscriber’s acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to Subscriber’s license of the Apple-Sourced Software against Subscriber as a third-party beneficiary thereof.
20.3 Mobile Applications from Google Play Store. The following applies to any Mobile Applications Subscriber acquire from the Google Play Store (“Google-Sourced Software”): (i) Subscriber acknowledge that this Agreement are between Subscriber and OutboundEngine only, and not with Google, Inc. (“Google”); (ii) Subscriber’s use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where Subscriber obtained the Google-Sourced Software; (iv) OutboundEngine, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to Subscriber with respect to Google-Sourced Software or this Agreement; and (vi) Subscriber acknowledges and agrees that Google is a third-party beneficiary to this Agreement as it relates to OutboundEngine’s Google-Sourced Software.