General Terms & Conditions

These General Terms & Conditions are hereby incorporated into and are a material part of the Agreement for Platform & Services.  The Agreement for Platform & Services and these General Terms & Conditions are collectively referred to herein as the “Agreement”.

Definitions

The terms “we,” “us,” “our,” “Company” or “Huddie” will refer to Parallax Enterprises, LLC (dba Huddie) and the terms “you,” “your” and “Client” shall refer to the person or entity identified after “Client Name” in the Client Information section on the first page of the attached Agreement for Platform & Services.  Huddie and Client may be referred to herein individually as a “Party” and collectively as the “Parties.”

The term “Affiliates” means any entity or person that controls you, is controlled by you, or is under common control with you, such as a subsidiary, parent company, agent, representative or employee.

The term “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either Party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential, proprietary or trade secret given the nature of the information and the circumstances surrounding disclosure. Confidential Information does not include any information which: (a) is publicly available through no fault of the receiving Party; (b) was properly known to the receiving Party, without restriction, prior to disclosure by the disclosing Party; (c) was properly disclosed to the receiving Party, without restriction, by another person without violation of the disclosing Party’s rights; or (d) is independently developed by the receiving Party without use of or reference to the Confidential Information of the disclosing Party.  For the sake of clarity, the terms of this Agreement shall be deemed Confidential Information.

The term “Customer Content” shall mean content exchanged by means of use of the Huddie Services, such as text, message bodies, voice and video media, images, sound, and other content.

The term “Customer Data” means data and other information made available to us through the use of the Huddie Services under the terms of this Agreement, including, without limitation, Customer Usage Data and Customer Content.

The term “Customer Usage Data” shall mean communications metadata processed by us for the purposes of transmitting, distributing, or exchanging communications that are made available to us through the use of the Huddie Services and include, without limitation, data used to trace and identify the source and destination of a communication, such as individual data subjects’ telephone numbers, data on the location of the device generated in the context of providing the Huddie Services, and the date, time, duration, and type of communication.

The terms “Service” or “Services” means all of the services described in the attached Agreement for Platform & Services, including (a) the platform services, which include the application programming interface for the Services (the “Huddie API”) and any cloud based software provided to you by Huddie in connection with our use of the platform services and programs, features, functions and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by Huddie, and (b) the connectivity services, which include the interconnection capabilities embedded with the Huddie Services that link the Huddie Services to the telecommunications providers’ networks (including fixed-line, cellular, wireless, high-bandwidth, and/or fiber optic cable) via the Internet.

The term “Service Fees” means all of the fees as stated in the Agreement for Platform & Services.  All of the Service Fees are non-refundable.

The term “Taxes” means all applicable federal, state and local taxes, fees, charges, carrier surcharges or other similar exactions, including, without limitation, sales and use taxes, communications service taxes, utility user’s taxes or fees, excise taxes, VAT, GST, any other license or business and occupations taxes, 911 taxes, franchise fees and universal service fund fees or taxes, but does not include any taxes that are imposed on or measured by our net income, property tax, or payroll taxes.

  1. Your Huddie Account(s)

1.1        License.  Huddie grants Client a limited, non-exclusive, non-sublicensable, non-transferable license to create an account for and use the Huddie software application (the “Software”) for Client’s organization in accordance with the terms of this Agreement.  Our Privacy Notice (located on our website at http://www.Huddie.com/privacy) is hereby incorporated herein by this reference.  By entering into this Agreement, you acknowledge that you have read, understand and agree to be bound by our Privacy Notice, in addition to each of the terms set forth herein.  In the event of a conflict between the Privacy Notice and/or the terms of this Agreement, the terms of this Agreement shall control.

1.2        Registration.  To use the Huddie Services, you will be asked to create a Huddie account. As part of the account creation process, you’ll be asked to provide your e-mail address, create a password, and verify that you’re a human being by providing a telephone number to which we’ll send you a verification code to enter into a form. Until you register for a Huddie account, your access to the Huddie Services will be limited to what is available to the general public. When registering for a Huddie account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You may also create sub-accounts within each Huddie account.  You must keep all such information true, accurate, current and complete after you create each Huddie account.

1.3        Responsibility for Account Use.  You are solely responsible for all use (whether or not authorized) of the Huddie Services under your Huddie account(s) and any subaccount(s), including the quality and integrity of your Customer Data and each Customer Application (as defined below).  You are also solely responsible for all acts and omissions of anyone who has access to or otherwise uses any Customer Application.  You agree to take all reasonable precautions to prevent unauthorized access to or use of the Huddie Services and will notify us promptly in writing of any unauthorized access or use.  We will not be liable for any loss or damage arising from unauthorized use of your Huddie account(s).

1.4        MO Messages.  A mobile-terminated (“MT”) message is any SMS message transmitted by Client to an end-user using Huddie’s platform. A mobile-originated (“MO”) message is any SMS message sent by an end-user back to Huddie.  For any SMS short-code campaign, Client’s monthly allotted plan includes only MT messages.  Each MT message transmitted to an end-user constitutes a separate message regardless of the timing of the transmission or identity of a recipient.  Client will not be charged for MO messages.

  1. Access and Use of the Huddie Services

2.1        Your Right to Use.  You may use the Huddie Services we make available to you on a non-exclusive basis solely in connection with, and as necessary for, your activities pursuant to the terms and conditions of this Agreement.  You may use and make the Huddie Services available to your authorized employees users subject to, and strictly in accordance with, any and all written documentation provided to you by Huddie (including, without limitation, the Privacy Notice).  You agree that you will not use the Huddie Services to access or allow access to emergency services.  You will ensure that we are entitled to use your Customer Data as needed to provide the Huddie Services and agree that you will not use the Huddie Services in any way that violates any applicable laws, rules or regulations.

2.2        Your Obligation to Comply with Applicable Laws.  You must familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and you are solely responsible for all acts or omissions that occur under your Huddie account(s), 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.  You acknowledge and understand that the Telephone Consumer Protection Act, the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and text messages.  Huddie is in no way attempting to interpret any laws, rules, or regulations for you. This information is not intended to replace your sole and exclusive responsibility to familiarize yourself with and abide by all applicable legal requirements pertaining to your messages, broadcasts and campaigns prior to using the Services.  You acknowledge and agree that you are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns.

2.3        No Reverse Engineering.  You shall not: (1) use or copy Huddie’s platform, network, marks or website or its associated documentation except as provided in this Agreement; (2) modify or merge Huddie’s platform, network, marks or website or its associated documentation; (3) publish, display, disclose, sell, rent, lease, modify, loan, distribute, create or otherwise make available derivative works based on Huddie’s platform, network, marks or website or its associated documentation or any part thereof, in whole or in part, to any other person or entity; (4) remove, alter, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on Huddie’s platform, network, marks or website or its associated documentation; (6) reverse engineer, decompile, translate, adapt, or dissemble Huddie’s platform, network, website or its associated documentation, nor shall you attempt to create the source code from the object code for Huddie’s platform, network, or website or its associated documentation; (7) sublicense or assign the license for Huddie’s platform, network, marks or website or its associated documentation; or (8) copy these terms and conditions of this Agreement for your own use or the use of your customers (provided, that you shall have the right to copy specific sections of this Agreement as a means of complying with such sections in your agreements with independent contractors or your customers).

2.4        Your Responsibility for Messages.  You shall be solely responsible for all Customer Content, including, without limitation, the text, files, images, photos, videos, sounds, musical works, works of authorship, links, or any other materials that you submit, transmit or otherwise make available through the Services, and agree that you, and not Huddie, have full responsibility for all Content that you provide, including its legality, accuracy, appropriateness, and trademark and copyright ownership.  You shall retain ownership of any copyrights or other intellectual property rights applicable to the Content.  You shall not upload, post or otherwise make available through the Service any material protected by patent, copyright, trademark, or any other proprietary right without the express written permission of the owner of such patent, copyright, trademark or other proprietary right owned by a third party, and the burden of determining whether any material is protected by any such right is on you. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm resulting from any Content. You represent and warrant that: (i) you own all Content provided by you through the Service or otherwise have the applicable licenses necessary to use such Content in accordance with the terms of this Agreement, and (ii) the transmission of Content through the Service does not violate the privacy rights, publicity rights, trademark rights, copyrights, contract rights or any other rights of any person or entity.  You agree to pay for all royalties, fees, damages and any other monies owing any person or entity by reason of any Content provided by you to or through the Service.

2.5        Your Responsibility for Content.  When providing Customer Content to or otherwise using the Services, you shall not:

a.     send any unsolicited e-mails, instant messages, wireless text messages (SMS), or voice messages that contain any unauthorized advertising, promotional materials, ‘junk mail’, ‘spam’, ‘chain letters’, ‘pyramid schemes’, or any other form of such solicitation, except as may be expressly authorized by applicable law;

b.     send unsolicited e-mails, instant messages, wireless text messages (SMS), or voice messages to email addresses, phone numbers, or landline phones that are obtained from any purchased or harvested lists in which the recipient did not provide the ‘Express Written Consent” required by the Federal Communications Commission to receive such messages (or your customers’ messages), except as may be expressly authorized by applicable law;

c.     send e-mails, instant messages, wireless text messages (SMS), or voice messages that harass, embarrass, defame, abuse, threaten, libel, slander or otherwise violate the legal rights of any individual, entity, group, or organization;

d.     send e-mails, instant messages, wireless text messages (SMS), or voice messages 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 substance, content that violates laws or regulations designed to protect minors, or other content deemed to be offensive or inappropriate by us in our sole discretion;

e.     send e-mails, instant messages, wireless text messages (SMS), or voice messages that contain material that infringes, misappropriates or violates any patent, trademark, trade secret, copyright, rights of privacy or publicity, or any other proprietary rights of any individual, entity, group, or organization;

f.     send e-mails, instant messages, wireless text messages (SMS), or voice messages that contain a computer virus or any other code, program or file that could damage, harm, or otherwise disrupt the operation of any computer or storage device, or violate the privacy or security of any individual, entity, group or organization;

g.     perform or promote illegal activities or promote physical harm or injury against any individual, entity, group or organization, or promote any act of cruelty to animals;

h.     impersonate, use the name of (without express written permission) or misrepresent any individual, entity, group or organization;

i.     violate any applicable local, state, federal or international law, statute, order or regulation or perform any activity that would cause us to violate any law, statute, order or regulation;

j.     Transmit or otherwise make available any content that is false, harmful, threatening, abusive, tortious, defamatory, libelous, disparaging, vulgar, obscene, pornographic, or that promotes, furthers or incites violence, terrorism or illegal acts, or is otherwise objectionable (as determined by us in our sole discretion);

k.     Submit any copyrighted or trademarked materials without the express written permission from the owner of such materials;

l.     Solicit personal information from anyone under 16 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.

The foregoing list of prohibitions provides examples and is not complete or exclusive.  We reserve the right, at our discretion, to suspend and/or terminate your access to your Huddie account or your ability to use the Services if you or anyone acting on your behalf violates these prohibitions (as in effect from time to time) and/or our Privacy Notice, effective immediately upon notice to you.  In such event, we will provide you a complete and up-to-date backup copy of your mailing list(s).

2.6        Your “Do Not Call” Obligations.  Huddie is compliant with the CAN-SPAM laws and enforces such practices for all of its customers.  We also work closely with the major anti-spam organizations such as Mail Abuse Prevention System (MAPS), SpamCop, Spamhaus, and Spam Prevention Early Warning System (SPEWS) to ensure that all of our customers are not in violation of spamming policies.  You represent, covenant and warrant to us that you shall use the Services only in compliance with this Agreement, 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 or anyone acting on your behalf uses the Services to conduct telemarketing activities, you further warrant to us that you will take all required actions necessary to comply with applicable state and federal “DO NOT CALL” and telemarketing registration statutes and regulations, and you shall not use the Services in a manner which will result in a violation of any law or regulation respecting any such Services, including, but not limited to, the Federal Telephone Consumer Protection Act and related regulations promulgated by the Federal Communications Commission and the Federal Trade Commission.  You shall use us and our Services only for “opt-in” lists (i.e., lists in which the recipient has voluntarily signed up to be on your list and has not requested to be unsubscribed).  Any messages sent to users who did not request to be on your list or your customers’ lists, whether purchased or otherwise obtained without the recipients’ consent, shall be deemed as “Spam” and may result in immediate suspension and/or termination of your account without refund and legal action, including the pursuit of damages, against you for violating our “No Spam” policy.

2.7        Your Privacy Policy Obligations.  You agree to abide by and display a privacy policy or link to a privacy policy on your signup page.  As part of the delivery audit, we will identify changes you can make in your privacy policy to comply with our privacy policy recommendations.  Any violation of your final mutually agreed upon privacy policy may result in termination of your account without refund and the commencement of legal action against you.  You agree to indemnify and hold us harmless from any damages and claims arising from any violation of this policy.

2.8        Your Responsibility for Your Affiliates.  You shall ensure that anyone in your organization or your Affiliates or anyone else acting on your behalf or at your direction who uses the Services (either locally or remotely) does so only for your authorized use and that any such use of the Services complies with all of the terms and conditions of this Agreement.  You and your Affiliates that use the Huddie Services will be jointly and severally responsible for the acts and omissions of your Affiliates, including, but not limited to, their breach of any of the terms of this Agreement. Any claim from any of your Affiliates that use the Huddie Services pursuant to this Agreement may only be brought against us by you on your Affiliates’ behalf.

2.9        Global Permanent Removal List.  We maintain a Global Permanent Removal List which contains addresses and domains which we will not allow any customer to add to a database.  You understand and agree that we have full discretion to block the uploading of any e-mail address which we have placed on such a list, and will not be liable for the blocking of any such address from any customer database.  You 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).

2.10      Your Responsibility for Subscribe/Unsubscribe Information.  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) provided by us in each message you send using Huddie’s email platforms.  You shall also honor in a timely manner (but in no event longer than ten (10) business days) all unsubscribe requests sent directly to you from those who elected not to use our automated subscribe/unsubscribe features.

2.11      Complaints.  You acknowledge and understand that e-mails that are sent through Huddie’s Services may generate abuse complaints from recipients.  We will make a reasonable effort to share with you the e-mail addresses, instant message handles, or phone numbers of anyone who complains about your campaigns.

  1. Product Terms

3.1        Add-Ons.  We may make available additional features, functionality, and services (each, an “Add-on”) offered by third-party partners (each, an “Add-on Provider“).  If you, at your sole discretion, choose to use an Add-on, then you will be required to accept the Add-on Provider’s terms of service (“Add-on Provider’s Terms”) as part of the Add-on installation process.  You acknowledge that, for each Add-on you purchase through Huddie, the Add-on Provider’s Terms constitute a binding agreement between you and the relevant Add-on Provider only. The Add-on Provider of each Add-on is solely responsible for that Add-on, the content therein, and any claims that you or any other party may have relating to that Add-on or your use of that Add-on.  You acknowledge that you are purchasing the license to each Add-on from the relevant Add-on Provider.  We are not a party to the license between you and the Add-on Provider with respect to that Add-on and we are not responsible for that Add-on, the content therein, or any claims that you or any other party may have relating to that Add-on or your use of that Add-on.  You acknowledge and agree that we, and our affiliates, are third party beneficiaries of the agreement between you and the Add-on Provider for each Add-on, and that we and our affiliates have the right (and will be deemed to have accepted the right) to enforce such license against you as a third party beneficiary thereof.  The Add-on Provider’s Terms shall not modify or otherwise supersede this Agreement with respect to the Huddie Services.  By purchasing an Add-on, you grant us permission to share Customer Applications and Customer Data with the Add-on Provider as necessary in order to provide you the Add-on.  The license granted to you to use any Add-on is personal to you, and is not sublicensable to any third party, unless an Add-on is provided to your recipients through a Customer Application.  You may not provide or resell Add-ons to others.

3.2        Short Codes.  If you use a short code with us, then: (a) you will not change your short code use case (e.g., a campaign) approved by the telecommunications providers without first working with us to have the new short code use case approved by such telecommunications providers; (b) you will stop sending additional messages to any recipient that replies by texting “STOP” (or the equivalent) to the short code, except for sending a single text message confirming that such recipient has been successfully opted out of the short code; and (c) you will follow all applicable telecommunications provider rules with respect to the use of short codes, including, without limitation, telecommunications provider rules with respect to ensuring that each of your recipients knowingly and explicitly opts in to receive messages from the short code prior to receiving any such messages.  You agree that each short code application or request for a short code submitted by you or on your behalf by us (each, a “Short Code Application”) is subject to approval from the applicable telecommunications provider. We have no control over the telecommunications provider approval process for short codes and will bear no liability if a Short Code Application is rejected by a telecommunications provider.  Furthermore, if a telecommunications provider rejects a Short Code Application, then we have no obligation to refund any short code-related fees paid by you to us prior to the telecommunications provider’s rejection of the Short Code Application.

  1. Customer Data

4.1        Use of Customer Data.  You acknowledge that you have read our Privacy Notice and understand that it sets forth how we will collect, store, and use your Customer Data.  If you do not agree with our Privacy Notice, then you must stop using the Huddie Services immediately.  You hereby instruct us to use and disclose Customer Data as necessary to (a) provide the Huddie Services consistent with the Privacy Notice and this Section 4, including detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Huddie Services; (b) respond to any technical problems or customer queries and ensure the proper working of the Huddie Services; (c) protect ourselves (including the Huddie Services), our other customers, and the public from harm or illegal activities; (d) respond to an emergency which we believe in, good faith, requires us to disclose Customer Data to assist in preventing a death or serious bodily injury; or (e) comply with any applicable law, regulation, legal process or government request.  You represent and warrant that you have provided adequate notices and obtained the necessary permissions and consents to provide Customer Data to us for use and disclosure.

4.2        Return and Deletion of Customer Usage Data and Customer Content.  Upon termination of this Agreement, we may retain, use, and disclose Customer Usage Data (a) for our accounting, tax, billing, audit, and compliance purposes; (b) to investigate fraud, spam, or unlawful use of the Huddie Services; and/or (c) as required by applicable law, provided that the retention, use, and disclosure of such Customer Usage Data for the foregoing purposes is subject to the confidentiality obligations as otherwise set forth in this Agreement.  We will anonymize or otherwise delete Customer Usage Data when we no longer require it for the foregoing purposes. We provide you the ability to obtain a copy of Customer Content via the Huddie Services.  During the term of this Agreement, you agree that you are solely responsible for obtaining a copy of and deleting Customer Content via the Huddie Services.  Any Customer Content archived on our back-up systems will be securely isolated and protected from any further processing, except as otherwise required by applicable law, and deleted thirty (30) days following your initiating the deletion of Customer Content via the Huddie Services.  Upon termination of this Agreement, we will (x) provide you thirty (30) days after the termination effective date to obtain a copy of any stored Customer Content via the Huddie Services; (y) automatically delete any stored Customer Content thirty (30) days after the termination effective date; and (z) automatically delete any stored Customer Content on Huddie’s back-up systems sixty (60) days after the termination effective date. Notwithstanding anything to the contrary in this Section 4.2, we may retain Customer Content or any portion thereof if required by applicable law.

4.3        Obligation to Keep Customer Data Current.  Customer hereby acknowledges that Customer Data may become stale over time and that the use of such stale data in any campaign may significantly slow down delivery and/or prevent successful delivery.  Accordingly, Customer agrees and covenants that it shall provide only current and clean Customer Data to Huddie and shall not, in any event, provide any Customer Data that is older than twelve (12) months (“Stale Data”).  Huddie reserves the right, if necessary (as determined in our sole discretion), to, from time to time, expunge any Stale Data from the Huddie Services.  If agreed upon by the Parties and at an additional cost, Huddie may provide you with products and/or services designed to update your Stale Data so that such data may be used in campaigns.

  1. Export Controls. The Huddie Services may be subject to applicable U.S. export control laws and economic sanctions regulations. In receiving the Huddie Services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to the Huddie Services, and to the extent consistent with this Agreement, to obtain any necessary license or other authorization to export, re-export, or transfer the Huddie Services.  These laws include restrictions on destinations, recipients, and end use. Without limitation, you may not transfer the Huddie Services without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government exclusion list or under the control of, or an agent for, any entity on such a list, and you further warrant that you will immediately discontinue use of the Huddie Services if you become placed on any such list or under the control of, or an agent, for any entity placed on such a list.
  1. Ownership and Confidentiality

6.1        General.  As between you and Huddie, we exclusively own and reserve all right, title and interest in and to the Huddie Services and our Confidential Information.  As between you and Huddie, you exclusively own and reserve all right, title and interest in and to your Confidential Information.

6.2        Suggestions and Contributions.  We welcome your feedback about the Huddie Services which you can provide any time by emailing your Huddie client services representative.  Please know that by submitting suggestions or other feedback about the Huddie Services (“Contributions”) you agree that: (a) we are not under any obligation of confidentiality with respect to your Contributions; (b) we may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way; (c) you irrevocably, non-exclusively license to us the right to exploit your Contributions; and (d) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances for your Contributions.

6.3        Trade Secrets.  You acknowledge that Huddie possesses valuable trade secrets and other proprietary information, and you agree to maintain the confidentiality of all of our trade secrets and other proprietary information.

6.4        Client Data.  We agree to maintain as confidential your e-mail, phone number, physical mailing addresses, and instant message handle list(s).  We will not compile, buy, sell, rent, rent or trade your e-mail, phone, physical mailing addresses, or instant message handles list(s), or send unauthorized emails, instant messages, wireless text messages (SMS), direct mail, or voice messages to any individual or entity on your list(s).  We will not use your Client’s customer list(s) or any other customer information for any other purposes than those intended with the Huddie Services.  Your customer information will not be shared with any other third parties unless required by law.  Notwithstanding the foregoing or any other provision of this Agreement, you acknowledge and agree that we may use your email address and SMS lists to conduct analysis for your benefit, which may include general, anonymous determinations of location, gender, business affiliations, etc.  You hereby grant to Huddie the right to conduct such analytics and to provide you email address and SMS lists to third parties solely for the purpose of conducting such analysis for your benefit.  We will provide the results of the analysis to you upon request.

6.5        Confidentiality.  Neither Party shall disclose any Confidential Information of the other Party to any third party except as specifically permitted by this Agreement. The receiving Party agrees that it will use the Confidential Information of the disclosing Party solely in accordance with the terms and conditions of this Agreement and it will not disclose such Confidential Information to any third party without the disclosing Party’s prior written consent, except as otherwise permitted hereunder; provided, however, subject to Section 4 above, Huddie may use and disclose your Confidential Information as necessary to provide the Huddie Services.  The receiving Party agrees to exercise due care in protecting Confidential Information of the disclosing Party from unauthorized use and disclosure. The receiving Party may disclose the Confidential Information of the disclosing Party, in whole or in part, to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section 6.5.  The receiving Party may disclose the Confidential Information of the disclosing Party as required by applicable law provided that, prior to any such compelled disclosure, the receiving Party will, if permissible: (a) promptly notify the disclosing Party in writing to allow the disclosing Party a reasonable opportunity to resist such disclosure and/or seek a protective order, and (b) reasonably cooperate with the disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure. In the event that such protection against disclosure is not obtained, the receiving Party will be entitled to disclose the Confidential Information of the disclosing Party, but only as and to the extent necessary to legally comply with such compelled disclosure.

6.6        Our Property.  The Software and any associated documentation are and shall remain the sole and exclusive property of Huddie, and is copyrighted and licensed, not sold.  Our databases contain material that is protected by United States Copyright Law and trade secret law, and by international treaty provisions.  All rights not specifically granted to you herein are expressly reserved by us.  You may not remove any material belonging to Huddie from any web site or any of our databases.  You shall not use Huddie’s name, logos or any related product and service names, design marks or slogans in any advertising, publicity or any other commercial manner without our prior written consent. All worldwide right, title and interest in and to the Services, and all components thereof, including all intellectual property rights therein, shall be and remain the sole and exclusive property of Huddie or its licensors, as applicable.

6.7        Injunctive Relief.  The Parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 6 and that, in the event of an actual or threatened breach of the provisions of this Section 6, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section 6.

  1. Fees; Payment Terms; Taxes

7.1        Fees.  You agree to timely pay the Service Fees when due.  Payment of the Service Fees is due in full upon receipt of an applicable invoice or as otherwise stated in the Agreement for Platform & Services.  You acknowledge and agree that the Service Fees are non-refundable.  We will also bill you, and you agree to pay us, the applicable messaging usage fee on the 1st of each calendar month.  If your plan does not include unlimited messages, then at the end of each calendar month, we will bill you, and you shall pay, the applicable messaging usage fees as set forth on the Agreement for Platform & Services.

7.2        Payment Terms.  You shall pay all of the Service Fees within thirty (30) days of the date of the invoice. Unless you and Huddie agree otherwise in writing, all undisputed fees due pursuant to this Agreement are payable in United States dollars. Payment obligations cannot be canceled and fees paid are non-refundable. Subject to Section 7.4 below, if you fail to make any payment within thirty (30) days of the date of the invoice, then we may assess and you must pay a late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by applicable law, whichever is less.  We shall have the right to suspend the Huddie Services until you pay the amount you are overdue plus any applicable late fees.  You shall be responsible to pay us a fee of $50.00 for any returned checks.

7.3        Suspension or Termination for Non-Payment.  If we suspend or terminate the Huddie Services pursuant to this Section 7 (or as a result of your breach of any terms of this Agreement), then we will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any such suspension or termination.

7.4        Fee Disputes.  You must promptly notify us in writing if you dispute any portion of any fees paid or payable by you pursuant to this Agreement.  You must provide that written notice to us within twenty (20) days of the date we invoice you for the charge you want to dispute which specifies with reasonable particularity the basis for your dispute, and we will work together with you to resolve the dispute promptly.  All undisputed amounts shall be paid in full when due.

7.5        Taxes.  Unless otherwise stated in writing from us, you shall be responsible for and shall pay all Taxes imposed on or with respect to the Huddie Services that are the subject of this Agreement whether such Taxes are imposed directly upon you or upon us.  If you are exempt from a Tax, then it is your responsibility to provide the necessary information to us to establish your exemption.  If for any reason a taxing jurisdiction determines that you are not exempt from any such exempted Taxes and then assesses us such Taxes, you agree to promptly pay to us such Taxes, plus any applicable interest or penalties assessed.

7.6        Processing of Payments.  If you pay the Service Fees via check, Huddie may process payment of that check using Back Office Conversion (BOC), which is a method approved by The National Automated Clearing House Association for converting certain checks to ACH debits.  BOC allows retailers and billers that accept checks to convert eligible checks to ACH debits in the back-office.  Eligible checks are those that provided by the payor at the point of purchase or manned bill payment location, contain a pre-printed serial number, be for $25,000 or less, be completed and signed by the payer, and must not contain the check serial number (auxiliary On-Us field) at the far left of the MICR line.  Checks that do not meet all of the foregoing requirements cannot be converted through BOC.  You may opt out of BOC at any time by notifying us in writing of your election to so opt out.

  1. Term; Termination; Suspension

8.1        Term.  The initial term of this Agreement is set forth on the cover page of on the Agreement for Platform & Services (the “Initial Term”).  Unless terminated in writing by either Party at least thirty (30) days prior to the end of the Initial Term, upon the expiration of the Initial Term this Agreement will automatically renew on a month-to-month basis.  Thereafter, Client or Huddie may terminate this Agreement without cause upon advance written notice to the other Party, provided that Client will remain liable for payment of Service Fees as follows: (a) if the notice of termination as delivered by either Party is received by the other Party on or before the 7th day of the month, then Client is liable for the Service Fees through the end of such month, and (b) if the notice of termination as delivered by either Party is received by the other Party after the 7th day of the month, then Client is liable for the Service Fees through the end of the following month.  By way of example, if the notice of termination is received by Huddie on June 2nd, then Client would remain liable for the Service Fees through June 30th, but if the notice of termination is received by Huddie on June 15th, then Client would remain liable for the Service Fees through July 31st.

8.2        Termination for Cause.  Either you or Huddie may terminate this Agreement in the event of a breach of this Agreement by the other Party, (i) if such breach is not capable of cure, immediately upon receipt of written notice by the breaching Party which notice specifies the breach, or (ii) if such breach is capable of cure, within fifteen (15) days following receipt of written notice by the breaching Party which notice specifies the breach, if such breach is not cured in such time period.  The foregoing is in addition to any other rights conferred upon either Party as set forth in this Agreement.  Additionally, Huddie may terminate your account immediately if: (a) your use of the Services violates applicable law; (b) your account is dormant for a period of sixty (60) consecutive days; (c) the Services are discontinued; or (d) you have an overdue balance for any Services in excess of thirty (30) days.  If we terminate your account, you must immediately stop using the Software, Services and associated documentation, including sample documents provided within the Software or Services, and any copies you have made of them.

8.3        Suspension or Termination of Services.  In addition to suspension or termination of the Services for non-payment of fees as described in Section 7.3 above, we may also suspend and/or terminate the Services immediately upon notice for cause if: (a) you violate (or give us reason to believe you have violated) this Agreement (including Section 2 above); (b) there is reason to believe the traffic created from your use of the Huddie Services or your use of the Huddie Services is fraudulent or negatively impacting the operating capability of the Huddie Services; (c) we determine, in our sole discretion, that providing the Huddie Services is prohibited by applicable law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Huddie Services; or (d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. If we suspend the Huddie Services, we will make a reasonable attempt to notify you prior to the suspension to the extent we can.

8.4        Our Rights If You Breach this Agreement.  You acknowledge and agree that, if you breach this Agreement, in addition to all other rights and remedies provided herein and at law, Huddie shall be entitled to equitable relief to protect its interests, including preliminary and permanent injunctive relief and you further agree to waive any right or claim to which you may be entitled to immunity or exemption from liability.  Huddie may also seek damages as a result of any such breach.  THE SOFTWARE OR OUR SERVICES MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED UPON TERMINATION OF THIS AGREEMENT.  YOU AGREE THAT YOU WILL NOT TAMPER WITH THIS DISABLING DEVICE OR THE SOFTWARE.  YOU ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE SOFTWARE OR SERVICES CAN NO LONGER BE USED.

8.5        Unsubscribe Requests; Subscriber Data.  After termination of this Agreement, we will provide, upon request, the list of unsubscribe requests from within thirty (30) days of your last email campaign, but will not process said requests. If your account is classified (at our sole discretion) as inactive for over sixty (60) days, we have the right to permanently remove your subscriber data.  We will attempt to contact you via email prior to taking any permanent removal actions.

  1. Our Representations and Warranties; Warranty Disclaimer

9.1        Limitations of Services.  We provide the Services “AS IS” and are only responsible for ensuring that your messages leave the Huddie network.  We are not responsible and cannot be responsible for the ultimate delivery of your messages, and we make no such warranty or guarantee.  We reserve the right to send, dispatch, remit, transmit and/or forward any type, category or form of communication to you including, but not limited to, e-mails, SMS/text messages and/or telephone calls to address or discuss any issue related to the Services.  You acknowledge and agree that the Services contain inherent limitations (e.g., number of messages per hour) and as such the Services are subject to such limitations.

9.2        Use Is at Your Own Risk.  The Services, Software and its platforms may have errors and may produce unexpected results.  Except as otherwise expressly provided herein, you agree that any use of Huddie’s platforms and Services will be entirely at your own risk.  You agree to backup your information and take other appropriate measures to protect programs and data.  You may not allow a third party to use your account, and you agree to indemnify and hold Huddie harmless from any damages or claims arising from such use by any third party.  You specifically acknowledge and understand that you assume the risk of your messages actually reaching their destination, and that Huddie does not and cannot guarantee the ultimate delivery of your messages.

9.3        WARRANTY DISCLAIMER.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HUDDIE AND ITS THIRD PARTY LICENSORS MAKE NO WARRANTIES, AND EXPRESSLY DISCLAIM ALL WARRANTIES, OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HUDDIE AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICES WILL MEET ANY OF YOUR REQUIREMENTS OR NEEDS, OR THAT THE SERVICES WILL BE ERROR FREE, OR OPERATE IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED.  HUDDIE DOES NOT WARRANT THAT THE SOFTWARE’S PLATFORM IS COMPATIBLE WITH ANY OTHER PARTICULAR PLATFORM.  YOU SPECIFICALLY UNDERSTAND THAT THERE ARE MANY REASONS, OUTSIDE OF THE CONTROL OF HUDDIE, THAT E-MAILS, INSTANT MESSAGES, TEXT MESSAGES AND PHONE MESSAGES MAY NOT REACH THEIR INTENDED RECIPIENTS, AND UNDERSTAND THAT HUDDIE CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR THE ULTIMATE ARRIVAL OF YOUR MESSAGES.

9.4        EMERGENCY SERVICES DISCLAIMER.  THE HUDDIE SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS OR SMS MESSAGES TO ANY EMERGENCY SERVICES. NEITHER HUDDIE NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND YOU AGREE TO HOLD HUDDIE HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE HUDDIE SERVICES TO CONTACT EMERGENCY SERVICES.

9.5        Location of Our Headquarters.  We control and operate our website from our headquarters in the United States of America and the Services may not be appropriate or available for use in other locations.  If you access our website or use the Services outside the United States of America, you are responsible for complying with applicable local laws.

  1. Limitation on Liability

10.1      Claims of Infringement.  If you receive a claim that the use of the Services infringes a patent, copyright or other intellectual property right without regard to the Content you have supplied, you must promptly notify us in writing. Huddie, at its own expense and option, may (i) defend and settle such claim, (ii) procure for you the right to use the platform, (iii) modify or replace the platform to avoid infringement; or (iv) refund the Service Fees you have paid, if applicable.  The foregoing are your sole and exclusive remedies for any and all claims you may have against Huddie arising out of or in connection with the use of Huddie platform or the Services, whether based in contract, tort or principles of equity.

10.2      NO LIABILITY FOR CONSEQUENTIAL OR PUNITIVE DAMAGES.  TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL HUDDIE OR ITS THIRD PARTY LICENSORS BE LIABLE TO YOU FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF HUDDIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HUDDIE OR ITS LICENSOR’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), EXCEED THE AMOUNT YOU HAVE PAID UNDER THIS AGREEMENT FOR THE SERVICES. 

  1. Indemnification

11.1      Our Indemnification of You.  Huddie hereby agrees to, indemnify and hold Client harmless against any damages, settlement awards, costs and expenses (including, without limitation, reasonable attorneys’ fees) awarded against or otherwise incurred by Client, arising out of or resulting from any third party claim, action or demand (collectively, a “Claim”) alleging that the Services, as provided by Company, when used in compliance with the terms of this Agreement, infringe or misappropriate any patent, copyright or trade secret of a third party under United States law. Notwithstanding the foregoing, Company will have no obligation hereunder for any Claim that arises out of or results from any use by Client of the Services (x) in combination with materials, products and/or services not supplied by Company, where the Claim would not have arisen but for the combination of the Services with the Content supplied by Client or such third party materials, products and/or services, or (y) not in compliance with the terms of this Agreement, where the Claim would not have arisen but for the unauthorized use.  Upon notice of a Claim or if, in Company’s opinion, such a Claim is likely, Company shall have the right, at its option, to: (1) modify the Services so that they are functionally equivalent and non-infringing or (2) obtain a license for Client to continue using the Services.  The foregoing obligations are contingent upon Client’s: (1) giving prompt written notice to Company of any alleged Claim, (2) allowing Company to control the defense and related settlement negotiations and (3) fully assisting in the defense, so long as Company agrees to pay Client’s out-of-pocket expenses. 

11.2      Your Indemnification of Us.  Client agrees to indemnify, defend and hold harmless Huddie and its affiliates and each of their respective officers, directors, shareholders, managers, members, employees, agents, contractors, representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements and reasonable attorneys’ fees, including attorneys’ fees incurred from counsel selected by Company) arising from or relating to any actual or threatened claim, suit, action, proceeding, governmental investigation or enforcement action based upon or arising out of: (i) Client’s breach of the agreements, covenants and warranties contained in this Agreement; or (ii) any use by Client, or an account or computer owned by Client, of the Services. Client agrees to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action.  Client acknowledges and agrees to be held liable for any and all damages caused to Huddie by Client resulting in a violation of local, state, national or international laws and regulations, including, but not limited to, those damages that may arise from Client’s fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by Huddie to Client.  Client further agrees that Client’s obligation to indemnify, defend and hold Huddie harmless, as outlined above, will continue regardless of the termination or expiration of our Services or this Agreement.

  1. Our Relationship.

12.1      Independant Contractors. You and Huddie are independent contractors in the performance of each and every part of this Agreement. Nothing in this Agreement is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise.  Each of us shall be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents.  You and Huddie will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of this Agreement.  Neither you nor Huddie has the authority to commit the other in any way and will not attempt to do so or imply that it has the right to do so.

12.2      Non-Solicitation . During the term of this Agreement and for a period of twelve (12) months thereafter, neither Party shall, directly or indirectly, (i) induce or attempt to induce any employee or contractor of the other Party to leave the employ or contracting relationship with such other Party, or in any way interfere with the relationship between such other Party and any employee or contractor thereof, or (ii) induce or attempt to induce any customer, supplier or other business relation of the other Party to cease doing business with such other Party or in any way interfere with the relationship between any such customer, supplier or other business relation and such other Party.

  1. Dispute Resolution. The following procedures (collectively “Dispute Resolution”) shall be followed with respect to any and all disputes between us arising out of or in connection with this Agreement:

13.1      Governing Law.  All disputes arising under this Agreement shall be governed by and interpreted in accordance with the laws of the State of Utah, without regard to principles of conflict of laws.

13.2      Arbitration.  The Parties will submit all disputes arising under this agreement to arbitration in Salt Lake City, Utah before a single arbitrator, who shall be a retired judge, of Judicial Arbitration and Mediation Services (“JAMS”).  The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules.  Judgment on the award may be entered in any court having jurisdiction.  The Parties shall maintain the confidential nature of the arbitration proceeding and the award, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.  The arbitrator shall not have the authority to alter or change any of the provisions of this Agreement.  The arbitrator shall award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration, including all fees of the arbitrator.  The Parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.  Neither Party will challenge the jurisdiction or venue provisions as provided in this section. Nothing contained herein shall prevent either Party from seeking an injunction.

  1. For Customers That Reside in the European Union

14.1      GDPR Compliance.  Huddie is subject to the European Union’s General Data Protection Regulation (the “GDPR”) when it is a “controller” or “processor” of “personal data” from an individual “data subject” located in the European Union, as those terms are defined in the GDPR.  All applicable requirements of the GDPR are incorporated by reference as material terms of this Agreement.  Each of the Parties represents and warrants that (1) it is aware of and understands its compliance obligations as a “processor” under GDPR; (2) it has adopted a GDPR compliance policy/program; (3) it will process “personal data” only in accordance with the Client’s instructions; and (4) with regard to its obligations under this Agreement, it shall comply with all applicable requirements of the GDPR.

14.2      EU Data Protection Addendum.  For customers using the Huddie System to process personal data from the European Economic Area (EEA), Switzerland, or the United Kingdom, if Huddie will be processing personal data from the EEA, Switzerland, or the United Kingdom on your behalf, and you wish to execute a Data Protection Addendum (“DPA”) with Huddie, as required by the GDPR, then you may do so by submitting a written request to Huddie.  Upon receipt of your request, we will send you a DPA ready for execution.

  1. General Provisions

15.1      Compliance with Laws.  You and Huddie each agree to comply with all applicable laws relating to our respective activities pursuant to the terms of this Agreement.

15.2      Severability.  If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

15.3      Assignment.  This Agreement may not be assigned, delegated, or otherwise transferred, in whole or in part, by operation of law or otherwise, by either Party without the other Party’s express prior written consent.  Notwithstanding the foregoing, either Party may, without such prior written consent, assign this Agreement in connection with a merger or consolidation (or other similar transaction) or the sale of all or substantially all of its assets; provided, further, that any permitted assignee will assume all obligations of its assignor under this Agreement and no assignment will relieve either Party of the responsibility for the performance of any obligation that such Party has hereunder.

15.4      Notices.  Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed delivered to the receiving Party upon personal delivery, transmission via electronic mail, or one business day following deposit with a nationally recognized carrier for overnight delivery to the address listed on the Agreement for Platform & Services.

15.5      Force Majeure.  No failure, delay or default in performance of any obligation of a Party shall constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay or default arises out of a cause that is beyond the control of such Party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; terrorist act; war; riot; theft; earthquake; pandemic; and other natural disaster; provided, that (i) the Party experiencing the force majeure event shall take all reasonable actions to minimize the consequences of any such event; and (ii) in the event of a force majeure event that lasts longer than thirty (30) days, the Party not experiencing the force majeure event may terminate this Agreement upon written notice to the other Party.

15.6      Construction.  Section headings are included in this Agreement merely for convenience of reference; they are not to be considered part of this Agreement or used in the interpretation of this Agreement.  When used in this Agreement, “including” means “including without limitation.”

15.7      Waiver.  Any waiver of any term and condition hereof must be in writing and signed by the Party against whom it is sought to be asserted.  A Party’s failure in any case or circumstance to require performance of the other Party’s obligations or to enforce its rights in the event of a breach by the other Party shall not affect such Party’s right to enforce such rights and obligations in any other case or circumstance.  A waiver of any individual term or condition shall not be construed as a waiver of any other term or condition nor, unless so provided in such written waiver, shall the waiver of any term or condition be deemed a waiver of any future or continuing breach by the other Party.

15.8      Entire Agreement.  This Agreement and the documents incorporated by reference herein is the final, complete, and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous communications and understandings between the Parties.