TERMS OF SERVICE
Last Updated: August 2014
The following Terms of Service, and any additional terms incorporated by reference herein (collectively, the “Terms”), govern access and use of (a) all Respondr, Inc. (“Respondr”) software, including the Respondr “Platform” made available by Respondr (the “Software”) and (b) all Respondr services and products made available to through or in connection with the Respondr website located at respondr.io, including without limitation all sub-domains thereof (collectively, the “Site”) and the Software (collectively, the “Service”), by Respondr Customer, as the term is defined below. The Service includes the Software itself.
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY, AS THEY CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN THE RESPONDR CUSTOMER AND RESPONDR.
THE SERVICE IS AVAILABLE ONLY TO PERSONS WHO CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF A BUSINESS OR ANOTHER ORGANIZATION, YOU ACKNOWLEDGE AND WARRANT THAT: (A) YOU HAVE FULL AUTHORITY TO EXECUTE THIS AGREEMENT ON BEHALF OF SUCH PARTY, (B) THIS AGREEMENT HAS BEEN DULY AUTHORIZED AND APPROVED BY SUCH PARTY; AND (C) THIS AGREEMENT CONSTITUTES A VALID AND BINDING OBLIGATION OF SUCH PARTY. IF YOU WISH TO USE THE SERVICE IN YOUR CAPACITY AS AN EMPLOYEE, YOU MUST HAVE THE ABILITY TO BIND YOUR EMPLOYER. WITHOUT LIMITING THE FOREGOING, THE SERVICE IS NOT AVAILABLE TO INDIVIDUALS UNDER THE AGE OF 18. IF YOU DO NOT QUALIFY FOR THE SERVICE, PLEASE DO NOT ATTEMPT TO REGISTER FOR, ACCESS OR USE THE SERVICE.
BY CLICKING “CREATE ACCOUNT”, CREATING AN ACCOUNT, SUBSCRIBING TO THE SERVICE, OR OTHERWISE ACCESSING OR USING THE SERVICE YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTOOD, AND THAT YOU ARE AGREEING ON BEHALF OF A RESPONDR CUSTOMER TO BE BOUND BY THE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT REGISTER FOR, ACCESS OR USE THE SERVICE.
Notwithstanding the foregoing, if Respondr Customer and Respondr have entered into a separate signed agreement with respect to your use of the Service, the terms and conditions of such agreement will govern Respondr Customer’s use of the Service and the Respondr Customer will not be bound by, and its access and use of the Service will not be subject to, these Terms unless these Terms are incorporated into such agreement by reference.
- 1.1 “Users” means any of the users of the Service.
- 1.2 “Respondr Customer” means the entity or organization identified as a User’s “Company” when establishing the User’s account with Respondr.
- 1.3 “Respondr Customer Website(s)” means the websites, services, and mobile applications owned by the Respondr Customer, as set by a Respondr Customer account using Respondr’s “Add a Site” or similar functions.
- 1.4 “Respondr Materials” means all materials created, developed and provided by Respondr to the Respondr Customer in connection with or arising from the Service or these Terms, including without limitation the Results (defined in Section 2.4) and all other elements of the Service provided by Respondr (for example, email templates, content, visual interfaces, interactive features, information, graphics, designs, and compilations).
- 1.5 “Respondr Platform” or “Platform” means the Service that allows for managing customer analytics, Respondr links, customer email templates, and other similar customer relationship management (“CRM”) and customer management services (“CMS”) functions, and any documentation for such Service.
- 1.6 “Respondr Integration Code” means the Software (including without limitation code and scripts) provided by Respondr to Respondr Customer for inclusion in the Respondr Customer Website(s), including without limitation any updates, modifications or improvements thereto or derivative works thereof, as well as any documentation for such Software.
- 1.7 “Features” means the features and functionality of the Service a Respondr Customer selects when it signs up for Respondr’s Service or when the Respondr Customer chooses to upgrade the Service using the Respondr Platform, and/or are otherwise made available to the Respondr Customer by Respondr, including without limitation Fees, payment terms, number of Authorized Accounts (defined in Section 4.2 below), and access to any application programming interfaces (“APIs”) and integrations of the Service with any third-party products or services.
- 1.8 “Fees” means the Service fees, if any, payable by Respondr Customer to Respondr, as described in these Terms and specified upon establishing the Respondr Customer account and changed from time to time in accordance with these Terms.
- 1.9 “Subscription” means Respondr Customer’s access to the Service with the Features provided to the Respondr Customer.
- 1.10 “Feedback” means any suggestions, ideas, enhancement requests, feedback, recommendations and any other information, including without limitation information identifying potential errors, a Respondr Customer provides to Respondr, including without limitation in Respondr developer forums or by email.
2. RESPONDR PLATFORM AND INTEGRATION CODE.
- 2.1 Respondr Platform. Subject to Respondr Customer’s compliance with these Terms, Respondr hereby grants Respondr Customer the non-transferable right during the Term (defined in Section 8.1) to access and use the Respondr Platform internally for internal business purposes only, solely in accordance with the intended functionality of the Respondr Platform. The Respondr Customer is responsible for obtaining and configuring all required computer hardware, software and telecommunications services to access the Respondr Platform.
- 2.2 Use of the Respondr Platform and Service
- 2.2.1 Use of the Service to Send Email. Respondr allows each Respondr Customer to send emails through the Service if the Respondr Customer has established an Amazon Simple Email Service account through Amazon Web Services. Respondr may modify, change, add to or remove email service providers that are supported through the Service at any time and without notice to Respondr Customer. Respondr Customer shall be responsible for supplying its own login credentials for such email services, and represents and warrants that it shall comply with any and all terms and policies applicable to its use of such email services. When sending email through the Service, Respondr Customer shall not: (a) send via or store on the Service infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (b) send via the Service any unsolicited commercial or non-commercial communication; or (c) send via the Service any messages to recipients obtained through list rental, list purchase, or opt-out email append methodology. Respondr Customer shall send email messages only to those recipients: (i) who have given Respondr Customer permission to send them such messages; or (ii) whose messages can be characterized as “transactional or relationship messages” as contemplated by the Controlling the Assault of Non- Solicited Pornography and Marketing Act of 2003 (the “CAN-SPAM Act”). Respondr Customer understands and acknowledges that: (A) Respondr may, in its reasonable discretion, refuse to distribute any message content that Respondr reasonably believes is defamatory, infringing, or otherwise unlawful, or otherwise casts Respondr in an unfavorable light; (B) Respondr may, in its reasonable discretion, refuse to distribute any email to any recipient that Respondr reasonably believes has not granted permission to Respondr Customer (or otherwise directly “opted-in”) to send such message(s); (C) Respondr has no obligation to review message content, recipient addresses or other data for any reason; (D) all recipient addresses are supplied solely by Respondr Customer and Respondr has no obligation to supply or “scrub” any message recipient list other than to process unsubscribe and opt-out requests submitted to Respondr via the Service; and (E) Respondr Customer is solely responsible for the creation, initiation and sending of messages via the Service, including, but not limited to, the content, recipients, and timing of such messages.
- 2.2.3 Integrated Services, Generally. Respondr Customer may integrate social media (such as Facebook, Twitter, or other social media accounts as may be supported by Respondr) into its use of the Service. Each such integrated social media service constitutes an “Integrated Service” as the term is used in our Privacy Statement. By authorizing Respondr to connect with an Integrated Service, Respondr Customer agrees to authorize Respondr to access and store information that the Integrated Service makes available to Respondr, and to use and disclose this information in accordance with these Terms and the Respondr Privacy Statement. Respondr Customer understands that full functionality of any incorporation of Integrated Services is dependent on the availability and performance of the third party social media platforms underlying each of the Integrated Services, and that the use of Integrated Services will be significantly impaired during any period in which these third-party services are not available. Respondr Customer shall be responsible for supplying its own login credentials for such Integrated Services, and represents and warrants that it shall comply with any and all terms and policies applicable to its use of such Integrated Services.
- 2.2.4 Restrictions on Use of Integrated Services. Respondr may, but shall have no obligation to, terminate a Respondr Customer’s use of an Integrated Service where that Respondr Customer’s Integrated Service accounts contain content that Respondr determines in its sole discretion to be unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable, or that violates any third party’s intellectual property right, any Applicable Law, or these Terms. Respondr Customer understands that the technical processing and transmission of data using the Integrated Services, including Respondr Customer’s content, may be transferred unencrypted and involve (a) transmissions over various networks (including networks outside of Respondr’s control), and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Respondr Customer shall use its best efforts to conform to “spam” policies determined and enforced by Respondr and supported Integrated Services. Respondr Customer understands and acknowledges that failure to comply with such spam policies or other terms and conditions of supported Integrated Services may impact its ability to publish and receive messages through the Service. Users of the Integrated Services must be a human. Accounts registered by “bots” or automated methods are not permitted.
- 2.2.5 Service Notifications. Respondr may enable Respondr Customer to incorporate mechanisms provided by third parties for providing notifications to their customers, including through the use of the Amazon Simple Notification Service. Respondr may modify, change, add to or remove third party notification service providers that are supported through the Service at any time and without notice to Respondr Customer. Respondr Customer shall be responsible for supplying its own login credentials for such services, and represents and warrants that it shall comply with any and all terms and policies applicable to its use of such services.
- 2.2.6 Other Incorporated APIs. Respondr may, from time to time, enable Respondr Customer to incorporate additional features offered by third parties under the terms of those third parties’ application programming interfaces (“APIs”). In each case, Respondr Customer shall be responsible for supplying its own authentication credentials and shall in all cases comply with the terms and conditions governing access to and use of each API that Respondr Customer attempts to integrate into the Service.
- 2.3 Respondr Integration Code License. Subject to Respondr Customer’s compliance with these Terms, Respondr hereby grants Respondr Customer for the duration of the Term a limited, revocable, non-transferable, non-sublicensable, non-exclusive right and license:
- 2.3.1 to install and use the Respondr Integration Code internally for the sole purpose of using the Respondr Integration Code to provide data from Respondr Customer Websites to the Respondr Platform;
- 2.3.2 to use, reproduce and distribute the Respondr Integration Code solely as embedded within the Respondr Customer Websites for the purpose of providing data from Respondr Customer Websites to the Respondr Platform, provided that any such use, reproduction and distribution (i) is subject to terms at least as protective of Respondr Integration Code as those set forth herein and (ii) is accompanied by all attributions, disclaimers and other provisions required by third-party license requirements, as may be provided to Respondr Customer by Respondr; and
- 2.3.3 to internally use any documentation made available by Respondr to Respondr Customer for the sole purpose of exercising the foregoing licenses in this Section 2.
- 2.4 Respondr Results. Subject to Respondr Customer’s compliance with these Terms, Respondr hereby grants Respondr Customer a limited, non-transferable right and license during the Term to access and use any results and reports produced through the Service (“Results”) solely for Respondr Customer’s internal business purposes.
- 2.5 License Restrictions. Respondr Customer shall have no rights or licenses with respect to the Service or Respondr Materials except as expressly provided in these Terms. Without limiting the generality of the foregoing, except as expressly provided in these Terms, Respondr Customer may not (a) copy, distribute, rent, sell, lease, lend, sublicense, or transfer the Service or Respondr Materials; (b) make the Service or Respondr Materials available to any third party; (c) use the Service or Respondr Materials on a service bureau basis; (d) to the extent valid under applicable law, decompile, reverse engineer, or disassemble the Service or Respondr Materials; (e) alter or modify the Respondr Integration Code other than as may be reasonably necessary to use the Service for its intended purposes; (f) create derivative works based on the Service or Respondr Materials; (g) intentionally interfere with or damage, impair, or disable the operation of the Service or any customer’s enjoyment of it, by any means, including without limitation uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code; or (h) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Service or Respondr Materials or during the use and operation of the Service or Respondr Materials. Without limiting any of the foregoing, Respondr Customer will not provide third parties with access to the Respondr Platform or, except as expressly provided in Section 2.3.1, access to or copies of the Respondr Integration Code or any Respondr documentation.
- 2.6 Ownership. As between the parties Respondr retains all right, title and interest in and to the Service and any Respondr Materials, including without limitation all intellectual property rights related to each of the foregoing. Respondr reserves all rights not explicitly granted in these Terms. The Service and Respondr Materials are protected by United States copyright, trade dress, patent, trade secret and trademark laws, international conventions, and all other applicable laws. Respondr Customer agrees to assign and hereby do assign and otherwise transfer all right, title and interest in and to Feedback to Respondr, without payment or restriction.
- 2.7 Additional Restrictions. Except in accordance with any API agreements Respondr Customer may have with Respondr or services which Respondr may offer from time to time, Respondr Customer may not use any automated means, including without limitation agents, robots, scripts, or spiders, to access or manage Respondr Customer’s account(s) with the Service. Respondr Customer agree that it will not: (i) remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any content accessible through the Service, or features the enforce limitations on the use of the Service; (ii) gain unauthorized access to the Service, or any part of it, other accounts, computer systems or networks connected to the Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (iii) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service; (iv) post any content or material to the Service that promotes or endorses false or misleading information or illegal activities, or endorses or provides instructional information about illegal activities or other activities prohibited by these Terms; (v) upload or otherwise transmit to the Service any information that is unlawful, harmful, harassing, defamatory, libelous, threatening, vulgar, sexually explicit, hateful or otherwise objectionable material of any kind or information that contains a link to such objectionable material; (vi) solicit or attempt to solicit personal information from other customers of the Service; or (vii) make unsolicited offers, advertisements, proposals, or send spam to other customers of the Service. Respondr may suspend access to the Service as provided in Section 8.2 or terminate Respondr Customer’s Subscription, in whole or in part, at any time if Respondr reasonably determines that such action is appropriate to (i) prevent errors or any other harm with respect to the Service or other properties, services, web sites and applications serviced by the Service, (ii) respond to Respondr Customer’s breach of these Terms, or (iii) limit Respondr’s liability. Respondr shall notify Respondr Customer following any such suspension or termination.
- 3.1 Data Rights. In connection with the operation of the Service, Respondr collects, receives, and generates data in connection with Respondr Customer’s Users’ use of the Service (such data, “Customer Data”) and in connection with Respondr Customer Website visitors’ (collectively, “Site Visitors”) use of the Respondr Customer Website(s) (such data, “Site Visitor Data”). Respondr Customer grant Respondr the worldwide, perpetual, irrevocable right to:
- 3.1.1 access, use, store, display, disclose and transfer Customer Data and Site Visitor Data in connection with providing the Service to Respondr Customer, operating and improving the Service, developing new products and services, and for Respondr’s other business purposes (provided that Respondr will not disclose or transfer Customer Data or Site Visitor Data in a manner that specifically identifies Respondr Customer or Site Visitors without Respondr Customer’s consent, except as otherwise set forth in this Section 3.1); and
- 3.1.2 access, use, store, display, disclose, and transfer Customer Data and Site Visitor Data as may be required or permitted by law or legal process, or to protect Respondr’s rights or property (including without limitation, enforcement of Respondr’s agreements) or the rights, property, or safety of any person or entity.
Respondr Customer further grants Respondr the worldwide, perpetual, irrevocable right to display, disclose, transfer and sell Customer Data and Site Visitor Data when it is aggregated with other information or otherwise is not specifically identifiable to a User or the Site Visitor(s).
- 3.2 Data Limitations. Respondr Customer must not transfer to Respondr, and must not modify, configure or use the Respondr Integration Code or any other aspect of the Software or Service to track, collect, or to cause to be collected by or transferred to Respondr, any Site Visitor Data that is personally identifiable information, financial information, health information, medical information, pharmaceutical information, information regarding children under 13 years of age, or other sensitive information (for example, Social Security Numbers).
- 4.2 Authorized Accounts. Respondr Customer may create Respondr accounts with unique log-in credentials for designated Users to access and use the Service on its behalf (“Authorized Accounts”). Respondr Customer is solely responsible at all times for (a) ensuring that all of its accounts are used solely in accordance with these Terms, (b) maintaining the confidentiality of all log-in credentials for its accounts and restricting access to its computers, and (c) for the activities of any person accessing the Respondr Platform using any of its accounts.
5. BETA OR FREE TRIALS.
Respondr may offer “beta” versions or features of the Service (the “Beta Service”). Respondr will determine, at its sole discretion, the availability, duration (the “Trial Period”) and Features of each Beta Service. ANY BETA SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES. Notwithstanding anything to the contrary in these Terms, in no event will Respondr be liable to Respondr Customer or any third party for any damages or liability related to, arising out of, or caused by any Beta Service and/or any modification, suspension, or termination thereof. If Respondr permits Respondr Customer to use a Beta Service, Respondr Customer agrees to provide Respondr Feedback and respond to Respondr’s questions or other inquiries regarding its use of the Beta Service, as applicable. Respondr at its sole discretion shall determine whether or not to continue to offer any Beta Service. Upon completion of a Trial Period, Respondr Customer will lose access to the applicable Beta Service, unless it is permitted to add and add such features to its Subscription. Any production candidate or non-production version of the Service will be considered a Beta Service. Except as provided in this Section 5, these Terms govern Respondr Customer’s use of the Beta Service as part of the Service.
6. MODIFICATIONS; ADDITIONAL TERMS.
- 6.1 Changes to these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies Respondr Customer’s rights or obligations, we will make reasonable efforts to notify Respondr Customer of such change. We may provide notice through a pop-up or banner within the Service, by sending an email to any address Respondr Customer may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Terms materially modify Respondr Customer’s rights or obligations, we may require Respondr Customer to provide consent by accepting the changed Terms. If we require Respondr Customer’s acceptance of the changed Terms, changes to these Terms are effective only after their acceptance by Respondr Customer. If Respondr Customer does not accept the changed Terms, we may terminate Respondr Customer’s access to and use of the Service. All other changes are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the Terms in effect at the time the dispute arose.
- 6.2 Changes of the Service. The Service is subject to change from time to time. Respondr may, at its discretion, change, modify, add, remove, or discontinue the Service, in whole or in part, at any time without liability to Respondr Customer.
- 6.3 Customer Feedback. Respondr strives to improve the Service. If Respondr Customer is at any time dissatisfied with the Service, Respondr Customer’s sole remedy is to discontinue use of the Service. However, Respondr does want to hear from its customers, so do not hesitate to send Respondr an email with Feedback at firstname.lastname@example.org.
7. FEES; PAYMENT.
- 7.1 Payment Method. By providing payment for a Respondr Customer account, Respondr Customer authorizes Respondr or its third party payment providers to charge Respondr Customer for all Fees through the credit card or debit card Respondr Customer selects for payment (Respondr Customer’s “Payment Method”). WITHOUT LIMITING ANY PROVISION OF THESE TERMS, BY CHOOSING TO HAVE PAYMENTS AUTOMATICALLY CHARGED TO THE PAYMENT METHOD, RESPONDR CUSTOMER AUTHORIZES RESPONDR OR ITS THIRD PARTY PAYMENT PROVIDERS TO CHARGE RESPONDR CUSTOMER THE FEES AUTOMATICALLY IN ACCORDANCE WITH THE APPLICABLE RATE UNDER RESPONDR CUSTOMER’S SUBSCRIPTION. Respondr Customer acknowledges and agrees that any credit card and related billing and payment information that Respondr Customer provides to Respondr is deemed to be Customer Data and may be shared by Respondr with companies that work on Respondr’s behalf, such as payment processors and/or credit agencies, for the purpose of checking credit, effecting payment to Respondr and servicing Respondr Customer’s account(s). The terms of Respondr Customer’s payment will be based on Respondr Customer’s chosen Payment Method and may be determined by agreements between Respondr Customer and the financial institution providing such Payment Method.
- 7.2 Fees. Respondr Customer agrees to pay Respondr all Fees incurred under its accounts the Service to which Respondr Customer or anyone else who uses its accounts subscribe pursuant to this Agreement. If Respondr Customer’s Payment Method fails or its accounts are past due, (a) Respondr Customer agree to pay all amounts due on its account upon demand, (b) Respondr may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with Respondr), (c) Respondr reserves the right to either suspend or terminate Respondr Customer’s access to the Service, or Respondr Customer’s account with Respondr, and/or (d) Respondr Customer agrees to pay a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. All Fees are due and payable in U.S. dollars. Respondr Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to these Terms, other than taxes based on Respondr’s income. All Fees are non-refundable unless otherwise provided by law. Notwithstanding the foregoing, Respondr Customer will be given a refund of the Fees it has paid in advance for the unused portions of the Term if the Service is permanently discontinued by Respondr or if these Terms or its Subscription is terminated by Respondr for any reason other than as provided in this Section 7 and Sections 2.7, 8.2 and 8.3. Respondr reserves the right to change the Fees payable by Respondr Customer for the Service for any Renewal Term, by written notice prior to such Renewal Term, and otherwise during the Initial Term or any Renewal Term, upon 30 days’ prior written notice to Respondr Customer.
8. TERM; TERMINATION.
- 8.1 Term. The term of these Terms shall commence on the Effective Date and end on the day prior to the one-month anniversary of the Effective Date (“Initial Term”) and will automatically renew for sequential one-month periods (each such period, a “Renewal Term”) (the Initial Term together with all Renewal Terms, collectively, the “Term”). The Term will cease upon termination of these Terms in accordance with either Section 8.3 or 8.4. Respondr Customer will not be notified in advance of impending Renewal Terms.
- 8.2 Suspension. If Respondr Customer or its use of the Service negatively affects, or is reasonably expected to negatively affect, any part of the Service, including without limitation in the event of breach of Respondr Customer’s payment obligations, then Respondr reserves the right to suspend the Service or change the level of the Service, including without limitation the Features, provided to Respondr Customer, with or without notice and without liability to Respondr Customer.
- 8.3 Termination for Cause. Respondr shall have the right to immediately terminate these Terms should Respondr Customer breach any of its representations and warranties. Either party may terminate these Terms effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within 30 days (or 10 days in the event of breach of payment obligations) after receiving written notice of the breach from the non-breaching party. Either party may terminate immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within 30 calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
- 8.4 Termination for Convenience. Respondr, at its sole discretion, has the right to terminate these Terms and refuse any and all current or future use of the Service by Respondr Customer, for any reason at any time without any liability to Respondr Customer upon 30 days’ prior written notice to Respondr Customer. Respondr Customer may also terminate these Terms and its Subscription and discontinue its use of the Service at any time by providing Respondr 30 days’ prior written notice of termination, provided that no refund will be made for payments already made by Respondr Customer and that all payments that would have been due by Respondr Customer to Respondr throughout the remaining Term if such termination had not taken place shall immediately become payable in full by Respondr Customer to Respondr.
- 8.5 Effect of Termination. Sections 2.2, 2.4, 2.6, 2.7, 3, 6, 7, 8.5, 10, 11, 12.2, and 13 through 16 of these Terms shall survive expiration or termination of these Terms. Upon termination or expiration of these Terms for any reason, all licenses granted herein to Respondr Customer shall terminate and Respondr Customer shall immediately discontinue all use of the Service, and at Respondr’s request, return or destroy all Respondr Materials, and certify such return or destruction in writing. Termination of the Service will result in the forfeiture of any and all of Customer Data and Site Visitor Data. Respondr may continue to use such Customer Data and App Data as permitted under these Terms.
9. SUPPORT AND SERVICE UPGRADES.
Respondr may at its discretion provide customer support via email email@example.com to Respondr Customer with respect to its use of the Service, including without limitation to integrate the Respondr Integration Code with a Respondr Customer Website. If Respondr releases any production-ready updates or upgrades to the Service, it is Respondr Customer’s responsibility to use the latest production-ready version of the Service to receive the full Features of its Subscription and Respondr is not responsible for any consequence due to Respondr Customer’s failure to do so (including without limitation Respondr Customer’s inability to access any Features of the Service).
10. REPRESENTATIONS AND WARRANTIES.
- 10.1 Mutual. Each party represents and warrants to the other party that: (a) it has the full power and authority to enter into these Terms; (b) the execution of these Terms and performance of its obligations under these Terms does not violate any other agreement to which it is a party; and (c) these Terms constitute a legal, valid and binding obligation when executed and delivered.
- 10.2 Representations and Warranties of Customer. Respondr Customer represents and warrants to Respondr that:
- 10.2.1 it has all necessary rights, title, and interest in and to the Respondr Customer Website(s) to allow Respondr to provide the Service;
- 10.2.2 it shall not use the Service in connection with any Respondr Customer Website(s) or technology in a manner that violates any law, rule, regulation or industry self-regulatory regime, including without limitation applicable laws, rules, regulations, and self-regulatory requirements relating to privacy or data protection;
- 10.2.3 it shall comply with and have and will maintain any and all consents, authorizations and clearances from Site Visitors for Respondr Customer to use any data that it collects or uses in connection with the Service and as may be required for Respondr to provide the Service or otherwise use any and all data as permitted under these Terms;
- 10.2.4 it shall not use or integrate any Respondr Integration Code or any other Software provided under these Terms in conjunction with the Respondr Platform or any other service or product in any way that is not expressly authorized by Respondr;
- 10.2.6 it shall provide Site Visitors the ability to opt out of having the Service collect or receive any data from their use of the Respondr Customer Website(s);
- 10.2.7 it shall not provide Respondr with, and must not track or collect in any manner using the Service or any Software, any personally-identifiable information, health information, financial information, medical information, pharmaceutical information, information regarding children under 13 years of age, or other sensitive information of Site Visitors;
- 10.2.8 it shall comply with all third-party terms and policies (including without limitation third-party software application markets) and all regulations that apply to the Respondr Customer Website(s);
- 10.2.9 the Respondr Customer Website(s) and the use or combination of the Respondr Integration Code as part of the Respondr Customer Website(s) do not and will not (I) infringe upon, violate, or misappropriate any third-party right, including without limitation any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (II) slander, defame, or libel any person;
- 10.2.10 it shall use Site Visitor Data for the sole purpose of improving the Respondr Customer Website(s) and for no other purpose; and
- 10.2.11 it agrees not to defame, harass, abuse, threaten, stalk or defraud others, including without limitation other customers or Site Visitors.
Respondr will not be liable to Respondr Customer or any third party for any harm related to, arising out of, or caused by the use or storage by Respondr in accordance with these Terms of any data provided by Respondr Customer through the Service, including without limitation Customer Data and Site Visitor Data.
- 11.1 NO WARRANTIES; “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICE AND RESPONDR MATERIALS ARE PROVIDED “AS IS” AND RESPONDR CUSTOMER AGREES THAT ITS USE OF THE SERVICE AND RESPONDR MATERIALS (INCLUDING WITHOUT LIMITATION ANY RESULTS) IS AT ITS SOLE RISK. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THESE TERMS, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE.
- 11.2 SERVICES AND RESPONDR MATERIALS. RESPONDR AND ITS AFFILIATES, SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE SERVICE OR RESPONDR MATERIALS WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE, RESPONDR MATERIALS OR THE SERVERS THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. RESPONDR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE RESPONDR MATERIALS (INCLUDING WITHOUT LIMITATION ANY RESULTS) AND HAS NO LIABILITY FOR RESONDR CUSTOMER’S USE OF THE RESPONDR MATERIALS. RESPONDR CUSTOMER UNDERSTANDS AND AGREES THAT IF IT USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS RESPONDR MATERIALS (INCLUDING WITHOUT LIMITATION RSS FEEDS AND ANY PLUG-INS) OR ANY THIRD PARTY SERVICES (DEFINED IN SECTION 11.4), IT IS AT ITS OWN DISCRETION AND RISK AND THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS PROPERTY (INCLUDING WITHOUT LIMITATION ITS COMPUTER SYSTEMS) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF RESPONDR MATERIALS. RESPONDR DOES NOT WARRANT THE COMPATIBILITY OF ANY SOFTWARE WITH THE RESPONDR CUSTOMER WEBSITE(S). FUTURE VERSIONS OF THE SERVICE AND RESPONDR MATERIALS MAY BE DEVELOPED AND RELEASED BY RESPONDR AT ITS SOLE DISCRETION, AND RESPONDR DOES NOT WARRANT THAT IT WILL DEVELOP OR RELEASE ANY UPDATES OR UPGRADES TO THE SERVICE OR RESPONDR MATERIALS.
- 11.3 THIRD PARTY SERVICES. RESPONDR OR THIRD PARTIES MAY PROVIDE LINKS, REFERRALS OR FEATURES IN THE SERVICE TO AND FROM OTHER SERVICES, PRODUCTS, WEBSITES OR CONTENT (“THIRD PARTY SERVICES“). RESPONDR HAS NO CONTROL OVER SUCH THIRD PARTY SERVICES, AND THEREFORE MAKES NO CLAIM OR REPRESENTATION REGARDING, AND EXPRESSLY DISCLAIMS RESPONSIBILITY FOR, THE ACCURACY, QUALITY, LEGALITY, NATURE, AVAILABILITY OR RELIABILITY OF THIRD PARTY SERVICES LINKED TO BY THE SERVICE. RESPONDR PROVIDES THIRD PARTY SERVICE LINKS, REFERRALS AND FEATURES TO RESPONDR CUSTOMER ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK, REFERRAL OR FEATURES ON THE SERVICE DOES NOT IMPLY RESPONDR’S AFFILIATION, ENDORSEMENT, OR ADOPTION OF THE THIRD PARTY SERVICE OR ANY CONTENT THEREIN. ACCESS AND USE OF THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION THE CONTENT, MATERIAL, PRODUCTS, AND SERVICES AVAILABLE ON OR THROUGH THIRD PARTY SERVICES, IS SOLELY AT RESPONDR CUSTOMER’S OWN RISK. WHEN RESPONDR CUSTOMER LEAVES THE SERVICE, RESPONDR’S TERMS AND POLICIES NO LONGER GOVERN. RESPONDR CUSTOMER SHOULD REVIEW APPLICABLE TERMS AND POLICIES, INCLUDING WITHOUT LIMITATION THE PRIVACY AND DATA GATHERING PRACTICES, OF ANY THIRD PARTY SERVICES. LIKE ANY FEATURE OF THE SERVICE, INTEGRATION WITH AND/OR ACCESS TO/FROM ALL OR ANY PART OF RESPONDR’S SERVICE FROM THIRD PARTY SERVICES, COLLECTED DATA, OR OTHERWISE MAY NOT CONTINUE AT ANY TIME.
- 12.1 Respondr Indemnification. Respondr agrees to defend or settle, at its option, any claim, demand, action, or proceeding initiated by a third party against Respondr Customer to the extent alleging that the technology underlying the Service, or any portion thereof, infringes any third party United States patent or copyright or misappropriates any third party trade secret, provided that Respondr Customer: (a) promptly notifies Respondr in writing of the claim, except that any failure to provide this notice promptly only relieves Respondr of its responsibility pursuant to this Section 12.1 to the extent its defense is materially prejudiced by the delay; (b) grants Respondr sole control of the defense and/or settlement of the claim; and (c) provides Respondr, at Respondr’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim, but in a manner consistent with Respondr Customer’s respective confidentiality obligations and preservation of attorney/client and work product privileges. In the event of a claim, demand, action or proceeding that the technology underlying the Service, or any portion thereof, infringes or misappropriates any third party intellectual property or other right or, if in Respondr’s reasonable opinion, such claim, demand, action or proceeding is likely to occur, Respondr shall have the right, at Respondr’s sole cost and expense, to either: (i) obtain the right to continued use of the affected portion of the Service or (ii) modify or replace, in whole or in part, the affected portion of the Service to eliminate the infringement or misappropriation. If Respondr is unable to achieve either of the foregoing (i) or (ii) in a commercially reasonable manner, Respondr shall have the right to immediately terminate these Terms upon written notice to Respondr Customer without liability therefor. The provisions of this Section 12.1 constitute Respondr Customer’s sole remedy and Respondr’s exclusive liability related to the Service with respect to any infringement, violation, or misappropriation of any Intellectual Property Right.
- 12.2 Customer Indemnification. Respondr Customer agrees to indemnify, defend, and hold Respondr and its affiliates and their respective directors, officers, employees and contractors harmless from and against any liabilities, damages or expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party to the extent arising out of or relating to: (i) the alleged or actual breach of any of Respondr Customer’s covenants, representations or warranties in these Terms, (ii) the Respondr Customer Website(s), including without limitation any actual or alleged violation of any applicable privacy policies or third-party terms or (iii) Site Visitor(s) (including without limitation Respondr Customer’s disputes with Site Visitors), in each case, provided that Respondr: (a) promptly notifies Respondr Customer in writing of the claim, except that any failure to provide this notice promptly only relieves Respondr Customer of its responsibility pursuant to this Section12.2 to the extent its defense is materially prejudiced by the delay; (b) grants Respondr Customer sole control of the defense and/or settlement of the claim; and (c) provides Respondr Customer, at its expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim, but in a manner consistent with Respondr’s respective confidentiality obligations and preservation of attorney/client and work product privileges. Respondr Customer are solely responsible for its involvement with Site Visitors.
13. LIMITATION OF LIABILITY.
- 13.1 LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITIES ARISING OUT OF SECTION 12.2 (CUSTOMER INDEMNIFICATION), RESPONDR CUSTOMER’S BREACH OF SECTIONS 2 (RESPONDR PLATFORM AND RESPONDR INTEGRATION CODE) OR 3 (DATA), OR EITHER PARTY’S BREACH OF SECTION 10 (REPRESENTATIONS AND WARRANTIES), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
- 13.2 LIMITATION OF DAMAGES. IN NO EVENT WILL RESPONDR’S LIABILITY AND DAMAGES UNDER THESE TERMS EXCEED THE GREATER OF $100 OR THE SUM OF THE TOTAL FEES PAID AND PAYABLE TO RESPONDR UNDER THESE TERMS DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM FIRST AROSE. THE PARTIES AGREE THAT THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT INCREASE THE FOREGOING LIMIT, AND THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- 13.3 LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN. CERTAIN JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERAIN DAMAGES. IF A USER RESIDES IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO THE USER, AND RESPONDR CUSTOMER MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO RESPONDR CUSTOMER TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH RESPONDR CUSTOMER IS LOCATED.
- 14.1 “Confidential Information” means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure and is confirmed as such in writing within 15 days of the disclosure. In the case of Respondr, Confidential Information includes all information with respect to the Fees, including without limitation the amounts of the Fees and the payment terms. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of these Terms by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure.
- 14.2 Use and Disclosure Restrictions. Each party shall not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under these Terms. Except as otherwise permitted expressly by these Terms, each party shall not disclose the other party’s Confidential Information to any third party except to those of its employees, and contractors that need to know such Confidential Information for the purposes of these Terms, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than the efforts that party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors. In addition, each party may disclose the provisions of these Terms: (a) as required under applicable securities regulations and (b) on a confidential basis to current or prospective investors or acquirers of such party.
- 15.1 Publicity. Respondr Customer hereby grants Respondr the right to use its name, trademarks and logos in connection with customer references on the Site, in customer lists, in presentations, in promotional and marketing materials, or in any other similar manner. Respondr Customer agrees not to use any Respondr logos, graphics, or trademarks without Respondr’s express written consent.
- 15.2 Export Laws. Respondr Customer acknowledges and agrees that U.S. and foreign laws and regulations may restrict the export and re-export of certain commodities and technical data. Respondr Customer shall not export or re-export the Respondr Materials in any form without first obtaining all appropriate U.S. and foreign government licenses and permissions.
- 15.3 Relationship of the Parties. The parties are independent contractors with respect to each other. These Terms do not constitute and shall not be construed as constituting a partnership or joint venture among the parties, or an employee-employer relationship. No party shall have any right to obligate or bind any other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.Assignment. Respondr Customer may not assign any of its rights or obligations under these Terms without Respondr’s prior written consent. Respondr may freely assign its rights and obligations under these Terms without Respondr Customer’s consent. These Terms inure to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
- 15.4 Assignment. Respondr Customer may not assign any of its rights or obligations under these Terms without Respondr’s prior written consent. Respondr may freely assign its rights and obligations under these Terms without Respondr Customer’s consent. These Terms inure to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
- 15.5 Force Majeure. Except for payment obligations, neither party will be responsible for any failure or delay in its performance under these Terms due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
- 15.6 Headings and Wording. Unless otherwise expressly stated in these Terms, the words “herein,” “hereof,” “hereto,” and “hereunder” and other words of similar import refer to these Terms as a whole and not to any particular Section or other subdivision. The words “include” and “including” shall not be construed or interpreted as terms of limitation. The words “day,” “month,” and “year” mean, respectively, calendar day, calendar month, and calendar year. Section headings are for reference purposes only, and should not be used in the interpretation hereof.
- 15.7 Notices. All notices under these Terms shall be given in writing and sent by registered mail, internationally recognized carrier, email, or facsimile transmission with machine confirmation or shall be delivered by hand to following addresses.Respondr:
332 Gerald Circle
Milpitas, CA 95035
Attn: Leroy Ware
Via contact information provided during account creation.
All notices shall be presumed to have been received when they are hand delivered, or five business days of their mailing, or on the business day following the day of a successful email or facsimile transmission. Notwithstanding the foregoing in this Section 15.7, Respondr has the right to provide any notice to Respondr Customer through the Site.
- 15.8 Waiver. A waiver of any provision of these Terms will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either party to insist upon the strict performance of these Terms, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
- 15.9 Claims. RESPONDR CUSTOMER AND RESPONDR AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- 15.10 Construction. These Terms shall be fairly interpreted and construed in accordance with its provisions and without strict interpretation or construction in favor of or against either party. Each party has had the opportunity to consult with counsel in the negotiation of these Terms. No trade usage or other regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express provisions of these Terms.
- 15.11 Severability; Counterparts. If any provision, or portion thereof, of these Terms is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of these Terms, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. A waiver of any provision of these Terms will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived.
- 15.12 Governing Law; Jurisdiction. These Terms shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the federal and state courts in Santa Clara County, California will have exclusive jurisdiction and venue under these Terms, and the parties hereby agree to submit to such jurisdiction exclusively.
- 15.14 Disclosures. The Service is offered by Respondr, Inc., located at 332 Gerald Circle Milpitas, CA 95035. Respondr Customer may contact Respondr by sending correspondence to the foregoing address or by emailing Respondr at firstname.lastname@example.org.