Standard Terms and Conditions of Business
Last updated: 9 March 2017
Please read these Terms carefully before you agree to the statement of work or order form (as appropriate). We may amend these Terms from time to time as set out in Section 17.2. Every time you are presented with a statement of work or order form (as appropriate), please check these Terms to ensure you understand the most up to date version which will apply at that time.
You may contact us by e-mailing us at firstname.lastname@example.org. If you wish to give us formal notice of any matter related to this Contract, please see Section 25.
1.1 The definitions and rules of interpretation in this Section apply in these terms and conditions:
Authorized Users: your employees, agents and contractors who are authorized by you to use the Services and the Documentation.
Business Day: means any day, other than Saturday, Sunday or any other day when banks in Reston, Virginia are authorized or required by law to remain closed.
Communications System or Provider: any third-party organization or technology system through which ContactEngine conducts Conversations, including, but not limited to, SMS aggregators, telecommunication providers, mobile network operators (i.e., wireless service providers and carriers), Internet service providers, social networking platforms, internet messaging systems or email providers.
Confidential Information: any and all technical or non-technical information related to the past, current, or proposed operations, products, technology, services, and business of such party (the “Discloser”) disclosed or otherwise made available in any manner by such party to the other party (the “Recipient”), or to which the Recipient may gain access in the performance of the Contract, whether disclosed orally, visually, or through any tangible medium. Confidential Information may include, without limitation, trade secrets and proprietary information, data, techniques, sketches, drawings, specifications, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs and software source documents, customer lists, business forecasts, sales, and marketing plans and any other similar information or data.
Conversation: A conversation is defined as one or more automated messages, managed via any Communications System or Provider, between ContactEngine and an individual person or organization in relation to a specific activity, event, proposal, or point of information on a particular day.
Customer Data: the data inputted by you, the Authorized Users, or us on your behalf (either manually or via data-feed, API, web-service or other automated method) for the purpose of using the Services or facilitating your use of the Services.
Documentation: any documentation referred to or linked to in a statement of work or order form (as appropriate) which sets out additional information about the Services or the user instructions for such Services (if any).
Effective Date: the date the statement of work or order form (as appropriate) is executed by the parties, or such later commencement date as is specified in the statement of work or order form (as appropriate).
EUAA: the end user access agreement that your Authorized Users must agree to in order to use the Services, as may be updated from time to time by us.
Fees: the fees for the Services, as set out in the statement of work or order form (as appropriate). Unless otherwise specified, all Fees are in United States dollars exclusive of applicable taxes.
Normal Business Hours: 9:00 am to 5:00 pm local time, each Business Day.
Services: the services to be provided by us to you pursuant to the statement of work or order form (as appropriate). Services may include, but are not limited to, consulting upon, configuring and executing Conversations, as well as training and reporting in relation to those Conversations.
SLA: our service level agreement, as may be notified to you and updated from time to time.
Software: the online intelligent communications software applications provided by us as part of the Services.
Transaction Taxes: US sales and use taxes.
Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
1.2 Section, schedule and paragraph headings shall not affect the interpretation of the Contract. References to Sections are to the Sections of these Terms. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract and shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision. A reference to writing or written includes email.
2.1 The following order of precedence shall apply to this Contract and the documents referred to in it: (a) the Sections in these Terms; (b) each statement of work or order form (as appropriate), save where provisions of these Terms are specifically disapplied or varied in the statement of work or order form (as appropriate) (in which case such special conditions shall take precedence to the extent of any inconsistency between the special conditions and such provisions of these Terms); and (c) the SLA.
2.2 Each statement of work or order form (as appropriate): (a) shall be entered into by you and us; (b) forms a separate contract between the signatories; and (c) shall incorporate these Terms.
3.1 We shall provide the Services, and make available the Documentation (as applicable), to you on and subject to the terms of the Contract.
3.2 The terms of the SLA from time to time are incorporated into this Contract by reference and shall apply to all Services, subject to Section 2.1.
3.3 We shall use commercially reasonable efforts to make the Services available 24 hours a day, seven days a week, except for: (a) planned maintenance carried out during the maintenance window of 10:00 pm to 6:00 am (Virginia time); and (b) unscheduled maintenance performed outside Normal Business Hours, provided that we have used commercially reasonable efforts to give you at least six (6) Normal Business Hours' notice in advance.
3.4 Unless stated otherwise in a statement of work or order form (as appropriate), we will, as part of the Services and at no additional cost to you, provide you with support services for any issues notified to ContactEngine at email@example.com during Normal Business Hours.
3.5 We may, from time to time, alter or improve the Services provided that such alteration does not materially affect the functionality of the Services.
3.6 You shall use commercially reasonable efforts to provide us with reasonable prior notice of any anticipated material increase in the volume of Conversations to be actioned by our Services. If, following your delivery of such notice, we notify you that the operation of the Services will be impacted by such increased volume, the parties will cooperate in good faith to resolve the problem.
4. Your use of the Services
4.1 Subject to your compliance with the Terms of the Contract (including payment of the Fees), we hereby grant to you a non-exclusive, non-transferable right to permit the Authorized Users who have been notified of and accepted the terms of the EUAA to use the Services (including the Software) and the Documentation (as applicable) during the term of the Contract solely for your internal business operations.
4.2 We warrant to you that (i) we are the authorized licensor or legal and beneficial owner of all intellectual property rights in the Services and all bug fixes and updates made to the Services on or after the Effective Date; (ii) none such Services, bug fixes, and updates infringe upon the intellectual property rights of any third party, and (iii) we have the full power and authority to grant to you the rights and licenses in the Services and all such bug fixes and updates herein contemplated without the consent of any third party,
4.3 When providing Customer Data to us or otherwise using our Services, you shall not, without limitation, direct us to:
(a) send any unsolicited e-mails, instant messages, wireless text messages (SMS), voice messages or faxes or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of such solicitation;
(b) send unsolicited e-mails, instant messages, wireless text messages (SMS), voice messages or faxes to email addresses, phone/pager numbers, landline phones or fax machines, obtained from any purchased or harvested lists in which the recipient did not provide the express written consent required by the Federal Communications Commissions in the transmission of such messages;
(c) send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that harass, embarrass, defame, abuse, threaten, libel, slander or otherwise violate the legal rights of any individual, group, or organization;
(d) send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contain or link to pornographic or sexually explicit content, racially or ethnically objectionable content, content that directly or indirectly promotes the use of any illegal substances, content that violates laws or regulations designed to protect minors, or other content deemed to be offensive or inappropriate by us;
(e) send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contains material that infringes, misappropriates or violates any patent, trademark, trade secret, copyright, rights of privacy or publicity or any other proprietary rights of any party;
(f) send e-mails, instant messages, wireless text messages (SMS), voice messages or faxes that contain a computer virus or any other code, program or file that could damage, harm, or otherwise disrupt the operation of anyone else’s computer or storage device, or violate the privacy or security of any individual, group or organization;
(g) perform or promote illegal activities or promote physical harm or injury against any individual, group or organization, or promote any act of cruelty to animals;
(h) impersonate, use the name of (without express permission) or misrepresent any individual, group or organization;
(i) violate any applicable local, state, federal or international laws or regulations or perform any activity that would cause us to violate any law, statute or regulation;
(j) transmit or otherwise make available any content that is false, harmful, threatening, abusive, tortuous, defamatory, libelous, disparaging (including disparaging of ContactEngine), vulgar, obscene, pornographic, or that promotes, furthers or incites violence, terrorism or illegal acts, or is otherwise objectionable (as reasonably determined by us);
(k) submit any copyrighted or trademarked materials without the express permission from the owner;
(j) solicit personal information from anyone under 13 years of age; or
(m) upload or transmit viruses, Trojan horses or other harmful, disruptive or destructive files or post material that interferes with any third party’s uninterrupted use and enjoyment of the Services.
4.4 This list of prohibitions provides examples and is not complete or exclusive. We reserve the right to terminate your access to your account or your ability to use the Services if you violate these or similar prohibitions, in which case we shall provide you with two (2) Business Days advance written notice of our intent to terminate and shall also provide to you a complete, up-to-date backup copy of your mailing list(s).
4.5 Unless expressly permitted by the Contract, you shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services, the Software and Documentation (as applicable) in order to build a product or service which competes with the Services;
(c) use the Services, Software and/or Documentation (as applicable) to provide services to third parties, except your customers;
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, the Software and/or Documentation available to any third party, except the Authorized Users; or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation (as applicable), other than as provided under this Section 4.
4.6 You shall use all commercially reasonable efforts to prevent any unauthorized access to, or use of, the Services, Software and/or the Documentation (as applicable) and, in the event of any such unauthorized access or use, promptly notify us.
4.7 If you engage in any conduct or activity that constitutes a breach of your obligations under this Contract (the “Offending Activity”), and any Communications System or Provider notifies us that the Offending Activity has resulted in or will, if allowed to continue, result in, a breach of ContactEngine’s agreement with such Communications System or Provider, then (a) ContactEngine shall immediately notify you and demand in writing that you cease and desist from engaging in the Offending Activity (the “Cease and Desist Notice”); and (b) if you fail to stop the Offending Activity within the lesser of 48 hours following delivery of such Cease and Desist Notice or the cure period permitted by the Communications System or Provider , we may temporarily suspend the your use of our Services until such time as the Offending Activity ceases.
5.1 You shall familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account for use of our Services, including without limitation the content of the messages and broadcasts transmitted through the Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the Services. The Telephone Consumer Protection Act (“TCPA”), the Federal Trade Commission, the Federal Communications Commission, the Do Not Call (“DNC”) list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations that place restrictions on certain types of phone calls and text messages. We are in no way attempting to interpret any laws, rules, or regulations for you, and you are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns.
5.2 You represent, covenant, and warrant that you shall use the Services only in compliance with the Contract, the federal CAN-SPAM Act of 2003, and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity or defamation). In the event you use the Services to conduct telemarketing activities, you warrant to us that you will take all required actions necessary to comply with applicable state and federal DNC and telemarketing registration statutes and regulations, and you shall not use the Services in a manner which will result in a violation of any laws or regulation respecting such Services, including but not limited to the TCPA and related regulations promulgated by the Federal Communications Commission and the Federal Trade Commission.
5.3 When providing Customer Data to us or otherwise using our Services, you shall use our Services only for “opt-in” lists, which are lists in which the recipient has voluntarily signed up to be on your list and has not requested to be unsubscribed. Any Conversations sent to users who did not request to be on your customer lists, whether purchased or otherwise obtained without the recipients’ consent, shall be deemed as “Spam” and may result in termination of your account without refund and legal action, including the pursuit of damages, against you for violating our “No Spam” policy in this Section.
5.4 You shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.5 We shall follow our archiving procedures and security measures for Customer Data as set out in our ISO 27001 data security procedures, details of which shall be made available upon request (subject to confidentiality and provided security clearance). In the event of any loss or damage to Customer Data, your sole and exclusive remedy shall be for us to use commercially reasonable efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us in accordance with the archiving procedure described in our ISO 27001 security procedures. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by us to perform services related to Customer Data maintenance and back-up).
5.6 If we process any personal data as part of the Services, it is agreed that the intention shall be for you to be the data controller and for us to be a data processor and in any such case:
(b) you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation, and that such personal data is accurate and complete;
(c) you acknowledge and agree that all email address and SMS lists that you provide to us will not contain email addresses or SMS numbers of any person that has previously opted-out of receiving emails, SMS or other communications from you (or from your previous email marketing service provider).
(d) you shall include the relevant subscribe/unsubscribe information (as well as a physical address for the CAN SPAM act and an abuse link to our abuse system) in relation to each Conversation to be executed by us. You shall also honor in a timely manner all unsubscribe requests sent directly to you from those who elected not to use our automated subscribe/unsubscribe features;
(e) you acknowledge and understand that emails that are sent through our Services may generate abuse complaints from recipients. We will make a reasonable effort to share with you the e-mail addresses, instant message handles, phone numbers, pager numbers or fax numbers of those who complain about your campaigns;
(f) you acknowledge and agree that you will not in the Conversations detail sensitive personal information, including but not limited to ,whole account numbers, access codes/pin numbers, Social Security Numbers, or financial details unless that Conversation is being handled via one of the ContactEngine channels that is encrypted, e.g. web chat or encrypted Instant Messaging;
(g) you acknowledge and agree that the Customer Data may be transferred or stored outside the country where you and the Authorized Users are located in order to carry out the Services and our other obligations under these Terms;
(h) we shall only disclose Customer Data to third party contractors or professional advisors where such disclosure is required for us to provide you with the Services under the Contract or to comply with legal obligations and subject always to us entering into written agreements with such third party recipients on terms no less stringent than the terms of the Contract from time to time;
(j) each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage, in our case, in accordance with the information security management standard, ISO27000:2015; and
(k) you acknowledge and agree that we may use your email address and SMS lists to conduct analysis for the benefit of your business, which may include general, anonymous determinations of location, gender, business affiliations, etc. You hereby grant to us the right to conduct such analytics and to provide your email address and SMS lists to third parties solely for the purpose of conducting such analysis for the benefit of your business.
6.1 We shall provide and/or utilize Services to configure and execute Conversations in accordance with the terms and conditions of the Contract.
6.2 We undertake that the Services will be performed substantially in accordance with the Contract and other Documentation (as applicable), and with reasonable skill and care.
6.3 The undertaking at Section 6.1 shall not apply to the extent of any non-conformance which is caused by your use of the Services contrary to our instructions, or modification or alteration of the Services by any party other than us or our duly authorized contractors or agents. If the Services do not conform to the foregoing undertaking, we will, at our expense, use all commercially reasonable efforts to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in Section 6.1. Notwithstanding the foregoing, we:
(a) do not warrant that your use of the Services will be uninterrupted, timely, secure or error-free, or that the Services, Software or Documentation (as applicable) and/or the information obtained by you through the Services will meet your requirements or expectations; and
(b) are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over third party communications networks and facilities, including the internet, and you acknowledge that the Services, Software and Documentation (as applicable) may be subject to limitations, delays and other problems inherent in the use of such communications facilities, including without limitation, geographical or topographical shortcomings in the network of any telecommunications network operator, network capacity, physical obstructions or atmospheric conditions and terms and conditions of your consumers’ telecommunication service providers.
6.4 In supplying the Services, we shall:
(a) provide you with all necessary co-operation in relation to the Contract;
(b) obtain and maintain all licenses, consents and permissions necessary to enable us to comply with our obligations under the Contract; and
(c) comply with all applicable laws and regulations, as well as codes and guidelines issued by a competent body or authority, with respect to our activities under the Contract.
6.5 This Contract shall not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or Services which are similar to those provided under the Contract.
(a) receive Services from ContactEngine in accordance with the terms and conditions of the Contract;
(b) pay us the Fees in accordance with the terms and conditions of the Contract;
(c) provide us with:
(i) all necessary cooperation in relation to the Contract; and
(ii) all necessary access to such information as may be required by us
in order to provide the Services, including but not limited to Customer Data, security access information, and configuration services and to enable use to fulfill our obligations in this Agreement and statements of work or order forms as appropriate;
(d) comply with all applicable laws and regulations, as well as codes and guidelines issued by a competent body or authority, with respect to the Services under the Contract;
(e) obtain and shall maintain all necessary licenses, consents, and permissions necessary for us, our contractors and agents to perform the obligations under the Contract;
(f) participate in developing the statements of work or order forms that will define your requirements to receive Services provided by us and shall perform duties and responsibilities as outlined in the statements of work or order forms as appropriate. In the event of any delays in your provision of such assistance as agreed by the parties, we may adjust any agreed timetable or delivery schedule as reasonably necessary;
(g) ensure that the Authorized Users use the Services and the Documentation (as applicable) in accordance with the Contract and the EUAA, including any and all user instructions for the Services in the Documentation (as applicable), and you shall be responsible for any breach of the Contract or the EUAA by any such Authorized User;
(h) upon request, provide us with such information about the Authorized Users as is reasonably required by us for the purposes of managing and enforcing the terms of the EUAA with such persons;
(i) maintain a written, up to date list of current Authorized Users and:
(i) provide such list to us within five (5) Business Days of our written request at any time; and
(ii) notify us in the event an Authorized User is no longer employed, or contracted, by you and ensure that such person shall no longer have any right to access or use the Services (including the Software) and the Documentation (as applicable);
(j) ensure that your network and systems comply with the relevant specifications provided by us from time to time; and
(k) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
8. Payment of Fees
8.1 We shall invoice you for the Fees pursuant to the payment schedule set out in the statement of work or order form (as appropriate), and you shall pay the amount set out in each invoice to us within 30 days after the date of such invoice.
8.2 If we have not received payment of an invoice within 30 days after the due date, and without prejudice to any of our other rights and remedies:
(a) we may, without liability to you, disable your (including all your Authorized Users’) passwords, accounts and access to all or part of the Services which are subject to the invoice and we shall be under no obligation to provide such Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to the prime interest rate (as quoted in the Wall Street Journal, Eastern Edition) plus 3%, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.3 All amounts and fees stated or referred to in the Contract: (a) shall be payable in US dollars; (b) are non-cancellable and non-refundable; (c) are exclusive of value added and other taxes, which shall be added to our invoice(s) at the appropriate rate; and (d) shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.5 We shall be entitled to increase the Fees on the anniversary of the Effective Date, provided such percentage increase does not exceed that of the Consumer Price Index, as published by the US Bureau of Labor Statistics (or any successor index thereto). Invoices for the Services will be adjusted on a pro rata basis (as necessary).
9.1 You acknowledge and agree that we and/or our licensors own all Intellectual Property rights in the Services, Software and the Documentation (as applicable). Except as expressly stated herein, the Contract does not grant you any rights to, or in, ContactEngine’s Confidential Information, patents, copyright, know how, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Services, Software or the Documentation (as applicable). For purposes of these Terms, “Intellectual Property” means (a) patents, (b) copyrights, moral rights, works of authorship (including copyrights in computer software), and rights in data and databases, (c) trademarks, service marks, Internet domain names, trade dress, and trade names, together with all goodwill associated therewith, (d) registrations, applications, renewals and extensions for any of the foregoing in (a)-(c), (d) trade secrets, and (e) rights of privacy and publicity.
9.2 Neither party shall represent that it has ownership of the other party’s trademarks or at any time do, or cause to be done, any act or thing contesting, or in any way impairing the other party’s right, title, and interest in such trademarks, whether or not they are registered in the jurisdictions in which the party is located or does business.
9.3 We confirm that we have all the rights in relation to the Services, Software and the Documentation (as applicable) that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of the Contract.
10.1 The Recipient will hold in confidence and, without the consent of the Discloser, except as permitted by Section 10.2, will not use, reproduce, distribute, transmit, or disclose directly or indirectly, the Confidential information of the Discloser. The Recipient shall not remove any proprietary notices of the Discloser from Confidential Information.
10.2 The Recipient may disclose the Discloser’s Confidential Information: (a) to its employees, officers, contractors, representatives, attorneys, or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. Each party shall ensure that persons to whom it discloses the other party's confidential information comply with this Section 10 and shall be at all times liable for the failure of any such persons to comply with the obligations set out in this Section 10. Without limiting the foregoing, the Recipient agrees that it will exercise at least the same standard of care in protecting the confidentiality of the Discloser’s Confidential Information as it does with its own Confidential Information of a similar nature.
10.3 Confidential Information shall not include information if, and only to the extent that, the Recipient establishes that the information: (a) is or becomes a part of the public domain through no act or omission of the Recipient; (b) was in the Recipient’s lawful possession prior to the disclosure and had not been obtained by the Recipient either directly or indirectly from the Discloser; (c) is lawfully disclosed to the Recipient by a third party that is not subject to any confidentiality requirement at the time it is received by the Recipient without reference to the Confidential Information; (d) is independently developed by the Recipient; or (e) is disclosed by the Recipient pursuant to a requirement of a governmental agency or by operation of law, provided that the Recipient shall disclose only that part of the Confidential Information which it is required to disclose and shall notify the Discloser promptly after receiving notice from such agency and prior to such disclosure in order to permit the Discloser to attempt to prevent or restrict such disclosure should it so elect. No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
11.1 You shall defend and hold harmless ContactEngine and ContactEngine’s affiliates, officers, directors, employees, agents, successors and assigns (each, a “ContactEngine Indemnitee”) from and against any and all liabilities, damages, losses, costs and expenses (including legal expenses) suffered or incurred by any ContactEngine Indemnitee, to the extent such losses arise from any third party or governmental claim, action, or proceeding arising out of or in connection with your use of the Services, Software, and/or Documentation (as applicable) under the Contract or alleging that: (i) any Customer Data infringes any copyright, patent, registered or unregistered trademark, or right in Confidential Information or trade secret; (ii) a Service infringes any copyright, patent, registered, or unregistered trademark or right in Confidential Information or trade secret existing as of the Effective Date arising from your unauthorized modification or combination of the Service with a product or service not authorized by us to be combined with a Service, or unintended or unauthorized use where the Service would not have infringed absent such modification or combination or use of the Service in a manner not authorized or intended hereunder; or (iii) a breach by you in Section 5 involving a violation of applicable law, provided that we provide you with written notice of the suit, claim, or proceeding, demanding or seeking such damages and provide you with information, cooperation and assistance necessary to enable you to defend such suit, claim, or proceeding in a timely fashion. We reserve the right, at our own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with us in the defense of such matter, including payment for any and all losses, liabilities, expenses, damages and costs, including reasonable legal fees and court costs.
11.2 If all or any material part of a Service is, or in the opinion of ContactEngine, may become the subject of an infringement claim, we may at our own expenses promptly (i) replace the Service with a compatible, functionally equivalent, non-infringing Service, (ii) modify or take other action so that the Service provides you with the same function or benefit without infringing upon the rights of any third party, (iii) procure the right for you to continue accessing the Service, or, (iv) discontinue the Service to you and reimburse you for any payment made in advance for such discontinued Services that cannot be delivered, all without any additional cost to you, and in ContactEngine’s sole and absolute discretion.
11.3 The indemnification obligations of this section survive termination of this Contract.
12.1 ALL SERVICES, SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS" AND CONTACTENGINE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND CONTACTENGINE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CONTACTENGINE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, SOFTWARE OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET THE CLIENT'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE, BE FREE FROM DEFECTS, ERRORS AND BUGS OR WILL NOT GIVE RISE TO ANY CIVIL OR CRIMINAL LEGAL LIABILITY ON THE PART OF THE CLIENT OR ANY OTHER PERSON.
12.2 IN NO EVENT WILL CONTACTENGINE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION.
13. Limitation of Liability
13.1 IN NO EVENT WILL CONTACTENGINE’S COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS CONTRACT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID AND PAYABLE BY YOU TO CONTACTENGINE DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING.
13.2 IN NO EVENT WILL CONTACTENGINE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE CLIENT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.3 EACH PARTY ACKNOWLEDGES AND AGREES THAT THE PROVISIONS OF THIS CONTRACT ALLOCATE THE RISKS BETWEEN CONTACTENGINE AND YOU.
14. Term and Termination
14.1 The Contract shall commence on the Effective Date and, unless terminated in accordance with these Terms or the terms in the statement of work or order form. The Contract shall automatically renew for a further term of one (1) year unless terminated in writing by either party within thirty (30) days advance notice.
14.2 Without affecting any other right or remedy available to it, either party may terminate the Contract, with immediate effect, by giving written notice to the other party if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
(d) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction. To the extent permitted by applicable law, the Contract shall automatically terminate without notice in the event that (i) a receiver, trustee, liquidator, administrator, administrative receiver or a similar person should be appointed for either party or its property, (ii) either party should become insolvent or unable to pay its debts as they mature or cease to pay its debts as they mature in the ordinary course of business, or makes an assignment for the benefit of creditors, (iii) any proceedings should be commenced against either party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within sixty (60) days from the date of commencement thereof, or (iv) either party should be liquidated or dissolved.
(e) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(f) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfill its obligations under the Contract has been placed in jeopardy.
14.3 In the event any applicable law or regulation is implemented or modified with the effect that it is no longer commercially viable or possible for us to provide the Services, without affecting any other right or remedy available to us, we may terminate the Contract with immediate effect upon giving 14 Business Days’ written notice to you.
14.4 On termination of the Contract for any reason:
(b) we shall cease to provide the Services to you;
(c) each party shall return and make no further use of any equipment, property, Documentation (as applicable), Confidential Information. and other items (and all copies of them) belonging to the other party;
(d) all outstanding sums payable by you to us under the Contract will become immediately due and payable;
(e) we may destroy or otherwise dispose of any of the Customer Data in our possession unless:
(i) the Customer Data is used as part of the Services provided in another statement of work or order form between you and us then in force at the date of termination; or
(ii) we receive, no later than ten days after the effective date of termination, a written request for the delivery to you of the then most recent back-up of the Customer Data. We shall use commercially reasonable efforts to deliver the back-up to you within 30 days of our receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination);
(f) you shall pay all reasonable expenses incurred by us in returning or disposing of Customer Data; and
(g) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages which existed at or before the date of termination, shall not be affected or prejudiced. We will refund to you the pro-rated amount of any and all fees prepaid by you in respect of any periods of time which are after the date of such expiration or termination except for any non-refundable third-party costs incurred by us with your prior consent or pursuant to the requirements of any statements of work or order forms.
(h) Termination of the Contract shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve either party of its obligations to pay all undisputed Fees that are owed under the Contract as of the date of termination. Each party shall reasonably cooperate with the other party and shall take any action reasonably requested by such other party for the purpose of performing or satisfying obligations to be performed or satisfied hereunder following the expiration or termination of the Contract.
15. Force majeure
We shall not be in breach of the Contract, or be liable for delay in performing, or failure to perform, any of our obligations under the Contract if such delay or failure result from events, circumstances or causes beyond our reasonable control, provided that you are promptly notified of such an event and its expected duration. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for one month, you may terminate the Contract by giving five (5) days’ written notice to us.
In consideration for our provision of the Services and the Software and access to the Documentation (as applicable), you hereby grant us a non-exclusive, worldwide, irrevocable and royalty-free license to use your trademark and trading name (or that of the particular business division which will use the Services (as applicable)) and to refer to the Services provided to you in our sales and promotion material (excluding press releases) for the duration of the term of the Contract and five (5) years thereafter.
17.1 No variation of the statement of work or order form (as appropriate) shall be effective unless it is in writing and signed by the parties (or their authorized representatives).
17.2 We have the right to revise these Terms from time to time. If we opt to revise these Terms as they apply to the statement of work or order form (as appropriate) during the term of this Contract, we will provide you with no less than ten (10) Business Days’ notice of the changes. Your use of the Services after the effective date of the new terms and conditions will constitute your acceptance of the same. If you do not wish to continue using the Services under the new terms and conditions, you may terminate the Contract.
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
The parties acknowledge that (i) any use or threatened use by you of the Services in a manner inconsistent with the Contract, (ii) any use of threatened use by us of Customer Data in a manner inconsistent with the Contract, or (iii) any misuse by one party of the other party’s Confidential Information, may cause immediate irreparable harm for which there may be no adequate remedy at law. Accordingly, the parties agree that the non-breaching party shall be entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such breach or threatened breach. The parties agree and stipulate that the party seeking such relief shall be entitled to such injunctive relief without posting a bond or other security. Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
21.1 The Contract, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
21.2 Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.
21.3 In the event of any conflict between these Terms and the terms of the statement of work or order form, the provisions of the statement of work or order shall take precedence.
22.1 You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under the Contract.
22.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Contract, provided that we give you prior written notice of such dealing.
Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
No one other than a party to the Contract and their successors and permitted assignees, shall have any right to enforce any of its terms.
25.1 Any notice required to be given under the Contract shall be in writing and shall be either: (i) delivered by hand; (ii) sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the statement of work or order form (as appropriate) or such other address as may have been notified by that party for such purposes; (iii) sent by fax to the other party's fax number as set out in the statement of work or order form (as appropriate) or such other fax number as may have been notified by that party for such purposes; or (iv) sent by email to the other party’s contact email address as set out in the statement of work or order form (as appropriate) or such other email address as may have been notified by that party for such purposes.
25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Normal Business Hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax or email shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
26.1 In the event that any dispute may arise under or in connection with the Contact, which is not settled between ContactEngine’s commercial department and your appropriate representative, the parties shall first seek to resolve the dispute by negotiations between senior executives who have authority to settle the controversy. When a party believes there is a dispute relating to the Contract or any statement of work, the party will give the other party written notice of the dispute. The senior executives shall meet at a mutually acceptable time and place within fifteen (15) Business Days after the date of the notice to exchange relevant information and to attempt to resolve the dispute.
26.2. All offers, promises, conduct and statements, whether written or oral, made in the course of the negotiations by any of the parties, their agents, employees, experts and attorneys, are confidential, privileged and inadmissible for any purpose, including impeachment, in any proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
26.3. If a dispute has not been resolved within sixty (60) days after the original notice of a dispute, or if a party hereto in good faith believes that the dispute cannot be settled amicably between the parties within a sixty (60) day period, then either party may seek to have the dispute resolved by a court of competent jurisdiction pursuant to Section 26.4.
26.4 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action or proceeding arising out of or related to the Contract shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each party hereby consents to the exclusive jurisdiction of, the federal and state courts located in the City of Wilmington within the State of Delaware.