PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES (DEFINED BELOW).
THE TERMS AND CONDITIONS OF THIS AGREEMENT (DEFINED BELOW) GOVERN THE USE OF THE SERVICES UNLESS YOU AND SENDSMART®, INC. (“SENDSMART®”, “US”, “WE”,“OUR”) HAVE EXECUTED A SEPARATE AGREEMENT GOVERNING THE USE OF THE SERVICES.
SendSmart® is willing to provide the Services to You only upon the condition that You accept all the terms contained in this Agreement. By clicking on the checkbox marked “[Accept]”, submitting your contact information or by accessing or using the Services, You have indicated that You understand thisAgreement and accept all of its terms. If You are accepting the terms of this Agreement on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “You” and “Your” will refer to that company or other legal entity. If You do not accept all the terms of this Agreement, then You must not accept this Agreement and You may not use the Services.
You understand and agree that if you submit your contact information to SendSmart® either directly or through one or more intermediaries you are agreeing to receive text messages, calls, emails, video chats, and social messages regarding your inquiry. Substantial ongoing work is done to recognize all manner of natural language requests to opt-out, however, to be certain of removal please reply"stop".
SendSmart® does not buy or sell contact data for any reason, all contact data is stored in and governed by the laws of the State of Oregon.
California residents and/or clients may request an individuals contact data be removed by emailing ccpa ( at ) SendSmart® ( dot ) com with full name, phone number(s) and email(s) or they can reply to any SendSmart® message with the word "stop" to discontinue all SendSmart® messaging.
“Agreement” means this Subscription Services Agreement.
"Authorized User" means an employee, contractor, or agent of Customer who is authorized to use the Services and who has access to the Services via a unique user name and password under Your account.
“Customer” means the entity that purchases a subscription to the Services.
“Customer Data” means any content, materials, software, data, or other information that You or Your Authorized Users provide through the Services or to SendSmart® in connection with Your use of the Services. Without limiting the foregoing, Customer Data includes text or other content that You upload or disseminate in connection with Your Messages.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Messages” means voice, text, or e-mail communications that are submitted for transmission using the Services.
“Order Form” means a written order to purchase Authorized User subscriptions to use the Services.
“Services” means the SendSmart® communications platform, customer website, mobile applications and tools, as more particularly described or identified in the applicable Order Form, or other document under which the subscription was obtained.
“Software” means any and all software and tools that SendSmart® provides or makes available to facilitate use of or access to the Services.
2. SUBSCRIPTION SERVICES
2.1 Subscription Services; Account. Subject to Your compliance with the terms and conditions of this Agreement, during the Term, SendSmart® will provide You with Services, and You may access and use the Services via a Services account solely for Your internal business purposes within the usage limits specified in the applicable Order Form. Each SendSmart® account is exclusively authorized to serve one rooftop, defined as one business entity occupying one physical building. You will keep all information related to Your account current and promptly notify SendSmart® of any changes.
2.2 Software. Some features and functionalities of the Services may requireYour Authorized Users to download and use our Software. During the Term, and subject to Your payment of all applicable Fees, SendSmart® hereby grantsYou a limited, nonexclusive, nontransferable, non-sublicensable, revocable right and license to (i) access and use the Services via a web browser or web-enabled device; and (ii) use the Software solely for the purposes of accessing and using the Services.
2.3 Updates. We may modify the Services or update the Software from time to time without notice to You.
2.4 Authorized Users. Only Authorized Users may access or use the Services under Your account. You agree that You will only permit Authorized Users to access the Services and that You and Your Authorized Users will maintain the security of their usernames and passwords. You will notify SendSmart® immediately if You suspect or become aware of any unauthorized use of theServices or if an Authorized User’s username or password is lost or stolen. You are solely responsible for the acts and omissions of Your Authorized Users, including their use of the Services, Software, and Customer Data. The number ofAuthorized User subscriptions purchased may be increased by upgrading to a newTier (under a new Order Form) but cannot be decreased during any subscription period.
2.5 Customer’s Responsibilities. Customer will (i) be responsible for meeting SendSmart®’s applicable minimum system requirements for use of the Services; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Customer Data; and (iii) use the Services only in accordance with applicable laws and government regulations, and any documentation or written instructions provided by SendSmart®.
2.6 Prohibitions. You and Your Authorized Users must not (i) make the Services available to anyone other than Authorized Users; (ii) sell, resell, rent, lease, outsource, act as a service bureau, or sublicense the Services orSoftware; (iii) use the Services to send communications to individuals or entities that reside or are located outside the United States; (iv) use theServices to promote a prohibited industry as listed in SendSmart®’s ProhibitedIndustry List; (v) remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Services, or features that enforce limitations on the use of the Services or any content therein; (vi) use theServices or Software (including by uploading Customer Data, downloading or sharing other content or information, or emailing, calling, or communicating with others through the Services) in any manner that is harmful, infringing, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, is a hate crime, or otherwise violates the rights of another or does not comply with applicable law; (vii) create a false identity or impersonate another for the purpose of misleading others in Your use of the Services; (viii) use the Services to store or transmit viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs; (ix) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (x) attempt to gain unauthorized access to the Services, or any related systems or networks.
2.7 Acceptable Use Policy. The customer acknowledges that it has reviewed and agrees to abide by the SendSmart® Acceptable Use Policy. The AcceptableUse Policy is hereby incorporated into and is hereby deemed a part of thisAgreement, binding upon Customer and its Authorized Users with respect to its and their use of the Services in connection with this Agreement.
3. FEES AND PAYMENT FOR SERVICES.
3.1 Fees. You will pay all fees for the Services according to the prices quoted by SendSmart® and set forth on the Order Form. Except as otherwise agreed by the parties in writing, fees are quoted and payable in United States dollars, and Your payment obligations are non-cancelable and fees paid are non-refundable. All subscription fees are due and payable in advance at the beginning of the subscription period and on or before each renewal.
3.2 Invoicing and Payment. For subscriptions governed by the up-front payment option, payment for the Services will be due no later than the first day of the subscription term (including renewal periods) to which the payment relates. For subscriptions governed by the periodic payment option, payment for the Services will be due on the first day of each month during the subscription term. You are responsible for keeping SendSmart® accurately and fully informed of Your billing and contact information (including, where applicable, by updating Your account details in the administrative areas of the Services).
3.3 Suspension of Service and Acceleration. If any amount that You owe under this or any other agreement for the Services is 30 or more days overdue, SendSmart® may, without limiting SendSmart®’s other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Your access to the Services until such amounts are paid in full.
3.4 Taxes. You are responsible for paying all applicable sales, use, service, value-added, consumption or other taxes associated with the Services You purchase. If SendSmart® has the legal obligation to pay or collect taxes for which Customer is responsible under this paragraph, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides SendSmart® with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. YOUR DATA
4.1 Ownership and Permissions. SendSmart® acknowledges that as between You and SendSmart®, You own all right, titles, and interests, including all intellectual property rights, in and to the Customer Data. You hereby grant to SendSmart® a worldwide, limited, revocable, non-exclusive right and license to use and reproduce the Customer Data solely for the purposes of providing the Services to You or as expressly authorized under this Agreement.
4.2 Usage Data. Nothing in this Agreement will restrict SendSmart® from collecting, using, and analyzing general information from its customers(including You) in an aggregated manner for purposes of improving and enhancing the Services, developing new products and services, or marketing and publishing general information and statistics. You authorize SendSmart® to access and use the Customer Data to generate [de-identified] [aggregated] data that does not identify or reasonably permit the identification of the Customer Data(collectively, “Usage Data”).
4.3 Responsibility. You are solely responsible for Your Customer Data, including the content, accuracy, and integrity of Your Data and for correcting errors and omissions in Your data. You represent and warrant that (i) You have, and will continue to have, during the term of this Agreement, all necessary rights, authority, and licenses for the access to and use of the CustomerData as contemplated by this Agreement and the software and systems on or through which You have requested us to provide services; and (ii) SendSmart®’s use of the Customer Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligation between You and any third party.
5. PROPRIETARY RIGHTS
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, SendSmart® reserves all rights, title, and interest in and to theServices, the Software and any associated documentation, including all relatedIntellectual Property Rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 Restrictions. In addition to the other prohibitions set forth in thisAgreement, Customer will not (i) create derivate works based on the Software or the Services; (ii) copy, frame, or mirror any part or content of the Services, other than copying or framing on Customer’s own intranets or otherwise forCustomer’s own internal business purposes in accordance with SendSmart®’s applicable documentation; (iii) reverse engineer the Software or Services; or(iv) access the Software or Services in order to build a competitive product or service or to copy any features, functions, or graphics of the Services.
5.3 Suggestions. Customer grants SendSmart® a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services (or SendSmart®’s other products or services) any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including Authorized Users, relating to the operation or features of the Services.
6.1 Definition of Confidential Information. As used herein, "ConfidentialInformation" means any non-public information disclosed by a party("Disclosing Party") to the other party ("ReceivingParty"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, ConfidentialInformation will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the DisclosingParty; (ii) was known to the Receiving Party prior to its disclosure by theDisclosing Party without breach of any obligation owed to the Disclosing Party;(iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the ReceivingParty.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the DisclosingParty for any purpose outside the scope of this Agreement; and (ii) theReceiving Party will limit access to Confidential Information of the DisclosingParty to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are legally bound to protect such Confidential Information consistent with the requirements of thisAgreement.
6.3 Compelled Disclosure. The Receiving Party may disclose ConfidentialInformation of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest, limit, or protect the disclosure.
7. DISCLAIMER. THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE SITE, THE SITE CONTENT, AND ANY OTHER PRODUCT, SITE OR INFORMATION PROVIDED BY SENDSMART®),AND ANY OTHER SOFTWARE, SITES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICES, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED,STATUTORY OR OTHERWISE, AND SENDSMART® SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. INDEMNIFICATION. Customer shall defend, indemnify and hold harmless SendSmart®,its officers, directors and employees, and any other SendSmart® users who use any of Your Content, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees (“Losses”), to the extent they result from: (i) Customer’s or any Authorized User’s use of theServices; (ii) any violation of this Agreement, including representations, warranties and covenants herein, by Customer or any Authorized User; or (iii)any violation by Customer or any Authorized User of the rights of any other person or entity, including but not limited to claims that intellectual property rights were violated. Customer’s obligations under this Section8 are contingent upon: (a) SendSmart® providing Customer with prompt written notice of such claim; and (b) SendSmart® providing reasonable cooperation toCustomer, at Customer’s expense, in the defense and settlement of such claim.
9. LIMITATION OF LIABILITY
9.1 Security and Other Risks. Customer acknowledges that, notwithstanding the security features of the Services, no product, hardware, software or service can provide a completely secure mechanism of electronic transmission or communication and that there are persons and entities, including enterprises, governments, and quasi-governmental actors, as well as technologies, that may attempt to breach any electronic security measure. SendSmart® will have no liability on account of any security breach caused by any such persons, entities, or technologies. Customer further acknowledges that the Services are not guaranteed to operate without interruptions, failures, or errors. IfCustomer or Authorized Users use the Services in any application or environment where failure could cause personal injury, loss of life, or other substantial harm, Customer assumes any associated risks and shall indemnify SendSmart® and hold it harmless against those risks.
9.2 Limitation of Liability. IN NO EVENT WILL SENDSMART®'S AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER IN CONTRACT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE MONTH PRECEDING THE INCIDENT.
9.3 Exclusion of Consequential and Related Damages. NEITHER SENDSMART® NOR ANY OTHER PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT ORFROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY,CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SENDSMART® HAS BEEN INFORMED OF THE POSSIBILITY OFSUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9.4 Basis of Bargain. THE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH IN THIS SECTION 9 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SENDSMART® AND CUSTOMER AND WILL APPLY TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW.
10. SUBSCRIPTION TERM AND TERMINATION
10.1 Term of Authorized User Subscriptions. Authorized User subscriptions purchased by Customer commence on the start date specified in the applicableOrder Form and, unless terminated earlier in accordance with this Agreement, continue for the subscription term specified therein (subject to prorating where SendSmart® deems it appropriate to cause newly purchased subscriptions to expire or renew simultaneously with Customer’s pre-existing subscription(s)).Except as otherwise specified in the applicable Order Form, all subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other at least sixty (60) days’ notice of non-renewal before the end of the relevant subscription term. The per-unit pricing during any such renewal term will be the same as that during the prior term unless SendSmart® has givenCustomer notice of a pricing increase before the end of such prior term, in which case the pricing increase will be effective upon renewal and thereafter. If either party provides notice of non-renewal as set forth above,Customer’s right to use the Services will terminate at the end of the relevant subscription term.
10.2 Termination or Suspension for Cause. A party may terminate any subscription for cause upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period. In addition, SendSmart® may, at its sole option, suspend or terminateCustomer’s or any Authorized User’s access to the Services, or any portion thereof, immediately: (i) if SendSmart® suspects unauthorized persons or entities of using or accessing the Services, or attempting to do so; (ii) if SendSmart® suspects that Customer or an Authorized User is using the Services in a way that violates this Agreement and could expose SendSmart® or any other entity to harm or legal liability; or (iii) if SendSmart® in its sole discretion believes it is required to do so by law.
10.3 Cancelling Month-to-Month Accounts Without Cause. A client may cancel their month-to-month account without cause with one calendar month notice by following ALL of these steps IN THIS ORDER. (1) Contact any/all lead providers directing leads to SendSmart® and ask them to direct their leads elsewhere or stop them entirely. (2) Confirm lead providers have all followed this directive; no leads are going to SendSmart® and you are receiving leads directly from the provider in the case your organization wishes to continue accepting leads from that provider. SendSmart® does not disconnect accounts or halt billing on accounts that are still receiving leads as shutting off lead processing and/or forwarding may have significant negative impacts on our business as well as the client's business. Having SendSmart® process leads and/or remain ready to process leads at any moment constitutes ongoing use of our services. (3) Once all leads are directed away from SendSmart® please contact support via the help tab within the software and request the account be canceled. This request should come directly from the person whose name is on the card used for payment. The payment scheduled in the next calendar month after the notice is received is due as final payment.Failure to follow this cancellation process completely and in order is likely to result in the account not being canceled and incurring further subscription payments and/or additional fees. Successful cancellations will be confirmed via email. Account access will continue at least through the end of the final billing period to assist the client in capturing any lingering customer replies.
10.3 Surviving Provisions. Sections 5 (Proprietary Rights), 6(Confidentiality), 7 (Disclaimer), 8 (Indemnification), 9 (Limitation ofLiability), 10.3 (Surviving Provisions) and 11 (General Provisions) will survive any termination or expiration of this Agreement.
10.4 If/when you cancel a SendSmart® account you release SendSmart® and all its past, present, and future employees, contractors, and directors from any/all liability that results either in part or in whole from past, present, or future messaging conducted on our outside of the SendSmart® platform.
11.1 Notices. Except as otherwise specified in this agreement, all notices, permissions, and approvals hereunder will be in writing by electronic mail or regular mail. In addition, SendSmart® may provide Customers with notices by posting in the account portal for the Services. If notice is provided by electronic mail, notice will be deemed given twenty-four (24) hours after electronic mail is sent, unless the sender is notified that the electronic mail address is invalid. If notice is provided by posting through the account portal, then notice will be deemed given upon such posting. When notice is provided by regular mail, notice will be deemed given three (3) days after the date of mailing. Notices will be sent to the address specified by the recipient in writing when entering into this Agreement or establishingCustomer’s account for the Service (or such other address as the recipient may thereafter specify by notice given in accordance with this Section 11.1).
11.2 Dispute Resolution. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its CommercialArbitration Rules, and judgment on the award rendered by the arbitrator(s) maybe entered in any court having jurisdiction thereof. A party who intends to seek arbitration must first send written notice of the dispute to the other, by certified mail or Federal Express (signature required). SendSmart®’s address for this notice is: SendSmart®, Inc., P.O. Box 4281, Portland, OR 97208. Any arbitration hearings will take place at a location to be agreed upon by the parties in Clackamas County, Oregon.
11.3 Compliance with Laws. Each party shall comply with all applicable laws and regulations with respect to its activities under this Agreement including, but not limited to, the export laws and regulations of the UnitedStates and other applicable jurisdictions. Without limiting the foregoingCustomer shall not permit Authorized Users to access or use the Services in violation of any U.S. export embargo, prohibition, or restriction.
11.4 Relationship of the Parties. The parties are independent contractors. ThisAgreement does not create a partnership, franchise, joint venture, agency, fiduciary or similar relationship between the parties.
11.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law orin equity.
11.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as to best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
11.7 Assignment. Customer may not assign or transfer this Agreement, whether by operation of law or otherwise, without the prior written consent of SendSmart®. Any attempted assignment or transfer, without such consent, shall be void. SendSmart® may assign this Agreement without restriction, including by operation of law, merger, or sale of all or substantially all the assets to which this agreement pertains. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8 Publicity. Subject to the provisions of Section 6 (Confidentiality), each party shall have the right to publicly announce the existence of the business relationship between parties. In addition, during and after the subscription term of Customer’s use of the Services, SendSmart® and its affiliates, sublicensees, partners, designees and assignees (collectively, the “SendSmart® Licensees”)may use Customer’s name, trademarks, and logos (collectively, “Customer’sMarks”) in connection with providing case studies, references and sales materials.
11.9 Force Majeure. SendSmart® will not be liable for any delay or failure to perform under this Agreement to the extent such delay or failure results from circumstances or causes beyond the reasonable control of SendSmart®.
11.10 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning its subject matter and supersedes all prior communications, agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and either signed or accepted electronically by a duly authorized representative of each party against whom the modification, amendment or waiver is to be asserted.Notwithstanding any language to the contrary therein, no additional or conflicting terms or conditions stated in Customer’s Order Form or other order documentation will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
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