IMPORTANT: This Terms of Service Agreement (the “Agreement”), together with any on-line or written order form for the purchase of the Services as herein defined (each, a “Service Order”), collectively are binding and enforceable between you (“Customer”) and TextRetailer, Inc. d/b/a AudienceTap (“AudienceTap” or “Supplier”). This Agreement also applies if you purchase a right to use the Services as herein defined pursuant to a Service Order entered into between you and an Authorized Reseller.
“You” refers to the entity or organization using the Services described in this Agreement. By downloading the AudienceTap Platform, using the AudienceTap Platform and AudienceTap's Services, or signing an order form to use the Services, you, the Customer, are accepting and agreeing to be bound by this Agreement in full. Your use of the Services of AudienceTap is an express acknowledgement that you have read and are bound by this Agreement. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, YOU ARE NOT PERMITTED TO USE THE SERVICES.
GENERAL TERMS AND CONDITIONS
1.1. “Authorized Reseller” means an AudienceTap-authorized agent, vendor, or reseller of the AudienceTap Platform and AudienceTap's Services, including, but not limited to, Shopify, Stripe, or Authorize.net.
1.2. “Confidential Information” means all confidential information disclosed by or otherwise obtained from a party to or by the other party, whether orally, visually, 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. Confidential Information also includes all Customer Data and End User Communications submitted to AudienceTap or collected through Customer’s use of the AudienceTap Platform or its Services.
1.3. “Customer Data” means the data created or inputted by Customer or its End Users for the purpose of using the Services of AudienceTap or facilitating Customer’s use of the Services.
1.4. “AudienceTap Platform” means the software program supplied by AudienceTap to Customer, including when obtained as an application from the Shopify App Store.
1.5. “Services” means the online customer management services presently being offered by AudienceTap. These customer management services include using AudienceTap software to retrieve End User information from End User Communications, viewing data available from the End User Communications, and using AudienceTap's marketing platform to send messages to End Users through SMS and MMS messages.
1.6. “Submissions” means any type of communication that might be sent by Customer or any End User.
1.7. “End User” means an individual who interacts with Customer, its Affiliates, and/or its Agents through the Services.
1.8. “End User Communications” mean the End User emails, SMS and MMS messages, and information submitted through the Services.
1.9. “Subscription Fees” are the fees that Customer pays to utilize the Services. The Subscription Fees applicable to this Agreement are monthly fees that allow a certain capacity of SMS & MMS messages to be sent through the Services during each monthly period. Subscription Fees also include any applicable transaction fees assessed by AudienceTap and its payment processors - Stripe & Authorize.net.
2. GENERAL RULES FOR AUDIENCETAP PLATFORM & SERVICES
2.1 Acceptable Use Policy – AudienceTap Platform & Services
2.1.1 Generally. Customer may not, and may not permit any third party to, use the AudienceTap Platform or Services in violation of (a) the CTIA Messaging Principles and Best Practices Guidelines; (b) the CTIA Short Code Monitoring Handbook; or (c) any other applicable laws, rules, and regulations, including, but not limited to, the Telephone Consumer Protection Act and those laws, rules, and regulations applicable to data privacy and use and consumer protection.
2.1.2 Programs. Customer shall be responsible for ensuring that all programs used in conjunction with the AudienceTap Platform or Services (including advertising or promotional campaigns, contests, drawing, raffles, lotteries, etc.) (“Programs”), including the administration thereof, comply with all applicable laws, rules, and regulations.
2.1.3 Enforceable Terms of Service. Customer shall be responsible for ensuring that all End Users who are engaged by Customer through the AudienceTap Platform are required to agree to the Customer’s Terms of Service (the “End User Terms of Service”) and that Customer at all times has in effect an enforceable Terms of Service related to the sending of SMS/MMS messages that include certain provisions that are intended to protect AudienceTap.
188.8.131.52 The Customer has the option to utilize model End User Terms of Service provided by AudienceTap as a starting point for developing its own End User Terms of Service. These model End User Terms of Service are provided by AudienceTap as a courtesy and AudienceTap makes no representation or warranty regarding the model End User Terms of Service. AudienceTap is not providing legal advice and no attorney-client relationship is created by the use of the model End User Terms of Services. You agree that you accept full legal responsibility for the End User Terms of Service and have been advised to obtain independent legal counsel before implementing the model End User Terms of Service or any variation thereof.
184.108.40.206 Whether the Customer utilizes the model End User Terms of Service or elects to draft its own End User Terms of Service, Customer’s End User Terms of Service shall contain at least the following provisions at all times:
a. An express representation and warranty that the End User is supplying his or her own phone number, and not someone else’s, to Customer, and that the End User agrees to provide Customer with notice if he or she is no longer the primary user of that number;
b. A dispute resolution and/or jurisdiction provision expressly providing that End User waives the right to any class action litigation and/or jury trials and expressly providing that End User agrees to resolve all disputes via confidential arbitration in which the arbitrator will apply the substantive law of the Federal Judicial Circuit in which the Customer’s principle place of business is located for any and all TCPA related claims;
c. An opt-out provision expressly providing that the End User agrees to opt-out of receiving any further messages on the AudienceTap Platform via one or more explicitly designed methods, which, at a minimum, shall include the following: (a) any of the opt-out keywords that are universally recognized, including but not limited to STOP, UNSUBSCRIBE, CANCEL, END, or QUIT; and (b) one or more alternative opt-out methods, including, but not limited to, via a web-based portal, telephone number, and/or email address established by the Customer for the purpose of opting-out End Users. The opt-out provision must also expressly stipulate that any opt-out method not expressly provided in the Customer’s opt-out provision is unreasonable;
d. A provision expressly providing that AudienceTap is a third-party beneficiary of the Customer’s arbitration, class action, and jury waiver provisions;
e. An age restriction provision expressly providing that the End User may not use or engage with the AudienceTap Platform if the End User is under thirteen (13) years of age and that, if the End User is between the ages of thirteen (13) and eighteen (18) years of age, End User must have his or her parent’s or legal guardian’s permission to use or engage with the AudienceTap Platform; and
f. A prohibited content provision expressly providing that the End User is prohibited from using the AudienceTap Platform or its Services in connection with any of the following types of content:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; and
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act.
2.1.4 Telephone Consumer Protection Act (“TCPA”). Customer is solely responsible and liable for ensuring that its use of the AudienceTap Platform or its Services comply with the TCPA, 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations of the Federal Communications Commission, 47 C.F.R. § 64.1200 et seq., and the Federal Trade Commission, 16 C.F.R. § 310, including, without limitation, ensuring that all phone numbers and other personal information used in connection with the AudienceTap Platform or its Services have been collected in accordance with the TCPA, ensuring that sufficient notice and consent has been received and maintained by Customer in connection with its use of the AudienceTap Platform or its Services under the Agreement, and for the preparation and distribution of all messages, content, and other materials delivered to the Customer’s End Users and other recipients by and through the AudienceTap Platform or its Services.
2.1.5 Controlling the Assault of Non-Solicited Pornography and Marketing Acts (“CAN-SPAM”). Customer is solely responsible and liable for ensuring that its use of the AudienceTap Platform or its Services comply with the CAN-SPAM Act, 15 U.S.C. §§7701-7713.
2.1.6 Prohibited Content. Customer acknowledges and agrees to not hold AudienceTap liable for any prohibited content that it or its End Users send over the AudienceTap Platform or via AudienceTap's Services, including, but not limited to, content that may be obscene, indecent, misleading, fraudulent, racist, intolerant, harmful, or otherwise objectionable. In addition to, and without limitation to, the terms listed above, Customer acknowledges that AudienceTap prohibits any use of the AudienceTap Platform or its Services in connection with any of the following types of content:
220.127.116.11 Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
18.104.22.168 Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
22.214.171.124 Pirated computer programs, viruses, spyware, worms, Trojan horses, or other harmful code;
126.96.36.199 Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; and
188.8.131.52 Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”).
2.1.7 Age Restriction. In order to use the AudienceTap Platform and/or its Services, Customer must be eighteen (18) years of age or older. Customer acknowledges and agrees that Customer is not under the age of eighteen (18) years and is of adult age in Customer’s jurisdiction and is permitted by that jurisdiction’s Applicable Law to use the AudienceTap Platform and its Services. Customer also agrees that it will not knowingly permit an End User under the age of eighteen (18) years to use the AudienceTap Platform without parental consent.
2.2 Communications Equipment
Customer is responsible for obtaining and maintaining all of the appliances, hardware, software, and services that Customer may need to access and use the AudienceTap Platform and its Services. Without limiting the foregoing, Customer must obtain and maintain, and pay all charges, taxes, and other costs and fees related to, Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by Customer to access and use the AudienceTap Platform and its Services.
Customer is responsible for protecting and safeguarding any keys, certificates, passwords, access codes, Customer IDs, or other credentials and login information (collectively, “Passwords”) that have been provided to Customer or that are generated in connection with Customer’s use of the AudienceTap Platform and its Services. Customer will not disclose or make available any Passwords other than to Customer authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords, the AudienceTap Platform, or its Services. Customer is solely and fully responsible for all activities that occur in connection with Customer’s Passwords. Without limiting the foregoing, Customer is responsible for all charges and liabilities applicable to data and information transmitted to and stored under Customer’s account on the AudienceTap Platform. In the event Customer believes the Passwords have been compromised, Customer is solely responsible for notifying AudienceTap immediately by emailing such notice to email@example.com.
2.4 Changes to Service
AudienceTap has the right to change, modify, update, add to, discontinue, or retire any aspect or feature of the AudienceTap Platform or its Services including, but not limited to, hours of availability, equipment needed for access or use, and the type and size of files that can be stored or transmitted. AudienceTap may provide notice of material changes to the AudienceTap Platform or its Services by posting them on the AudienceTap Website. It is Customer’s responsibility to check the AudienceTap Website periodically to be informed of any changes. You understand and agree that AudienceTap may change the telephone number(s) and/or the credit card payment processing system. You agree that AudienceTap will not be liable for damages (including consequential or special damages) arising out of any such change and you hereby waive any claims with respect to any such change, whether based on contractual, tort, or other grounds.
2.5 Termination of Service
2.6 Refusal of Service
AudienceTap reserves the right to refuse service to any person or entity for any reason which AudienceTap, in its sole discretion, deems to be appropriate.
2.7 Reservation of Rights
AudienceTap reserves the right to determine any violation of the General Rules listed in Section 2 at its sole discretion.
3. SERVICE ORDER, SUBSCRIPTION TERM, SUBSCRIPTION FEES, AND PAYMENT
3.1. Service Order
Each Service Order is hereby incorporated into this Agreement by this reference and is subject to the terms and conditions of this Agreement; provided, however, that in the event of conflict with the terms contained in any Service Order, the terms contained in this Agreement shall control. In the event of any conflict between the terms and conditions of this Agreement or a Service Order and any Customer-issued order form or purchase order, the terms and conditions of this Agreement and the applicable Service Order shall control.
3.2. Subscription Term
3.2.1. Customer acknowledges and agrees to be held responsible for all Subscription Fees for the period specified on the applicable Service Order (“Subscription Term”) and acknowledges and agrees to pay all Subscription Fees for the Subscription Term, regardless of Customer’s cancellation date.
3.2.2. All Subscriptions Fees for the AudienceTap Platform and its Services will continue and renew automatically for so long as Customer’s subscription is in place and all applicable fees are timely paid or until Customer provides AudienceTap with notice of its decision to cancel its subscription renewal, as described in Section 3.7.3.
3.3. Payment Processing
AudienceTap, or, if applicable, the Authorized Reseller, will charge Customer the Subscription Fees and applicable taxes for the AudienceTap Platform and Services rendered in advance of each billing period on or after the first day of such billing period. If Customer is paying by credit card or electronic check, (a) Customer hereby irrevocably authorizes AudienceTap, or, if applicable, the Authorized Reseller, to charge the credit card or other payment method provided for any such amounts when due; (b) amounts due will be automatically charged in advance; and (c) if Customer’s credit card expires or is declined, Customer hereby gives AudienceTap, or, if applicable, the Authorized Reseller, permission to submit the credit card charge with a later expiration date and/or suspend Customer’s access to the AudienceTap Platform and its Services until a new method of payment is provided. AudienceTap, or, if applicable, the Authorized Reseller, reserves the right to have Customer complete a credit application to determine Customer’s creditworthiness as a condition of receiving further Services.
3.4 Recurring Billing
By starting its AudienceTap subscription and providing or designating a Payment Method, Customer authorizes AudienceTap to charge Customer a subscription fee at the then-current rate, and any other charges Customer may incur in connection with its use of the AudienceTap subscription service to Customer’s Payment Method. Customer acknowledges that the amount billed each period may vary for reasons that may include differing amounts due to promotional offers, including VIP Code redemption and promotional code redemption, and/or changing or adding a plan, and Customer authorizes AudienceTap to charge its Payment Method for such varying amounts.
3.5. 30-day Money Back Guarantee
AudienceTap will provide a refund to the Customer up to 30 days after the original purchase if AudienceTap does not meet Customer’s expectations. Refunds will be for the full amount of the subscription minus the proportional cost of any used credits. Transaction fees are not refundable. At any time, and for any reason, AudienceTap may provide a refund, discount, or other consideration to some or all of AudienceTap’s customers. The amount and form of such credits, and the decision to provide them, are at the sole and absolute discretion of AudienceTap.
3.6. Billing Disputes
In the event Customer would like to dispute any bill it received from AudienceTap, Customer acknowledges and agrees to provide AudienceTap with written notice within fourteen (14) calendar days of delivery of the billing statement. If any issues or disputes are not received within this timeframe, Customer waives its right to said dispute. Any billing dispute is further governed by Section 11 (Dispute Resolution).
3.7. Late Payments
Late payments, including those resulting from credit card declines that the Customer fails to resolve within five (5) business days of being informed of the decline, will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower.
3.8. Collection of Subscription Fees Owed
If AudienceTap, or, if applicable, the Authorized Reseller, must initiate a collection process to recover Subscription Fees due and payable hereunder, AudienceTap, or, if applicable, the Authorized Reseller, shall be entitled to recover from Customer all costs associated with such collection efforts, including, but not limited to, reasonable attorneys’ fees.
3.9.1. Cancellation by AudienceTap. AudienceTap may immediately cancel Customer’s Subscription Term without notification to Customer under the following circumstances:
184.108.40.206. Customer’s credit card expires, is canceled, or is otherwise terminated, and AudienceTap is not immediately provided with another valid credit card or alternative form of payment by Customer;
220.127.116.11. Customer violates and/or fails to comply with any of the terms and conditions set forth in this Agreement.
3.9.2. Cancellation by AudienceTap Without Cause: Upon AudienceTap canceling Customer’s subscription to the AudienceTap Platform and its Services without cause, Customer may be entitled to a pro-rata refund of any pre-paid and unused Subscription Fees advanced to AudienceTap.
3.9.3. Cancellation by Customer. Customer may cancel its subscription at any time through the AudienceTap Platform or by providing written notice to AudienceTap at least five (5) business days prior to the expiration of the then-current Subscription Term. Customer will continue to have access to the AudienceTap subscription service through the end of its billing period. AUDIENCETAP DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY CANCELLATIONS THAT OCCUR BEYOND THE INITIAL 30 DAYS. To cancel, email your account representative.
4. PROPRIETARY RIGHTS
Subject to the terms and conditions of this Agreement, AudienceTap grants to Customer a non-exclusive, non-transferable, revocable license during the Subscription Term, without the right to sublicense, to use the AudienceTap Platform solely for the purposes of accessing and using the Services. Except for the limited license granted hereunder, AudienceTap reserves all rights not expressly granted and no such additional rights may be implied.
Customer acknowledges that (a) all right, title, and interest in and to the AudienceTap Platform and its Services, and all patents, copyrights, trade secrets, trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols, and other proprietary and intellectual property rights embodied therein or associated therewith, are and shall remain with AudienceTap or its third-party licensors; (b) no right or interest in the AudienceTap Platform or its Services is conveyed other than the limited license granted hereunder; (c) the AudienceTap Platform and its Services are protected by copyright and other intellectual property laws; and (iv) AudienceTap asserts that the AudienceTap Platform and its Services embody valuable confidential and secret information of AudienceTap and/or its third-party licensors, the development of which required the expenditure of considerable time and money.
Unless AudienceTap grants Customer permission, Customer shall not, and shall not permit any third party to: (a) sell, transfer, lend, provide or otherwise make available, or disclose to third parties the AudienceTap Platform, its Services, or any components thereof; (b) obscure, alter, or remove any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation appearing on or contained with the AudienceTap Platform, its Services, or any documentation or AudienceTap materials related thereto; (c) modify or alter, copy, publish, exchange, trade, broadcast, or create derivative works based on the AudienceTap Platform or AudienceTap’s Services; (d) “frame” or “mirror” any content forming part of the AudienceTap Platform or AudienceTap’s Services; (e) reverse engineer, decompile, disassemble, decode, or otherwise attempt to discover the source code of the AudienceTap Platform; (f) bypass, delete, or disable any copy protection mechanisms or any security mechanisms on the AudienceTap Platform; or (g) access the AudienceTap Platform or AudienceTap’s Services in order to (i) build a competitive product or service, (ii) translate the AudienceTap Platform or otherwise attempt to learn the source code, structure, algorithms, or internal ideas underlying the AudienceTap Platform, or (iii) copy any ideas, features, functions, or graphics of the AudienceTap Platform or AudienceTap’s Services. In addition to these restrictions, Customer shall take all reasonable precautions to prevent unauthorized or improper use of the AudienceTap Platform or its Services.
4.4 Non-Assertion of Intellectual Property Infringement Claims
Customer will not assert, nor will Customer authorize, assist, or encourage any third party to assert, against AudienceTap or any Authorized Reseller, any patent infringement or other intellectual property infringement claim with respect to the AudienceTap Platform, its services, or any documentation or AudienceTap materials related thereto.
4.5 License to Customer Marketing Content and Submissions.
4.5.1 Pursuant to Customer’s use of the AudienceTap Platform and its Services, Customer grants AudienceTap, its Authorized Resellers, and any third-party partner website(s) a non-exclusive, transferable, royalty-free license during and after the Subscription Term to use Customer’s trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols, and all other marketing or promotional content provided by Customer to AudienceTap (“Customer Marketing Content”) in connection with the advertising, promotion, and sale of Customer’s products, services, or business, and to sublicense such Customer Marketing Content to third parties in connection with the provision of such Services. Customer further acknowledges and agrees that AudienceTap or its sublicensees may modify Customer Marketing Content in order to effectively provide the Services ordered in AudienceTap’s reasonable discretion, provided that no modifications shall materially alter the terms of any Offer without Customer’s prior written consent.
4.5.2 Customer grants AudienceTap a perpetual, non-exclusive, non-transferable, royalty-free, worldwide right and license to use Customer Marketing Content on the AudienceTap Website and to identify Customer on the AudienceTap Website as one of its partners. In addition, Customer grants to AudienceTap the right to use Customer Marketing Content and any performance data related to Customer’s use of the AudienceTap Platform and its Services in case studies, slide decks, and any other marketing materials.
4.5.3 All Customer Submissions become the property of AudienceTap and may be published (except personal information) by AudienceTap in any manner that AudienceTap deems to be appropriate, including via all forms of media and publication. Customer is solely responsible for the content of all Submissions, including any violation of copyright, privacy, fraud or other Applicable Laws and regulations. Customer acknowledges and agree to hold AudienceTap harmless and to defend and indemnify AudienceTap in accordance with Section 8 (Indemnification) from any civil actions filed or threatened to be filed by any third party or entity who alleges that Customer’s Submissions support a legal cause of action.
Either AudienceTap or Customer may publicize the availability of the Services through press releases, media interviews, and other public statements, provided that any press release will be provided to the other party in writing and at least forty-eight (48) hours before publication for the other party’s approval, which shall not be unreasonably withheld. Either AudienceTap or Customer may include the other party’s name and logo in marketing materials featuring or referencing the availability of the AudienceTap Platform and/or its Services, provided that each party will comply with the other party’s trademark usage guidelines in doing so.
5.1 Confidential Information - Definition
Customer’s Confidential Information includes Customer Data and End User Communications. AudienceTap’s Confidential Information includes the AudienceTap Platform, all documentation related to and the product of all Services, and AudienceTap’s financial, security, architectural, or similar information. The Confidential Information of each party shall include the terms and conditions of this Agreement and any revised Agreement entered into, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by or on behalf of such party.
5.2 Protection of Confidential Information
Each party agrees to maintain Confidential Information in confidence and not to disclose it or any portion of it, except to its and its Affiliates’ employees and consultants who have a need to know such Confidential Information and are bound by obligations of confidentiality similar to those herein, for a period of three (3) years after the expiration or termination of this Agreement, using the same care and discretion to avoid disclosure, publication, or dissemination of the Confidential Information as it uses with its own confidential or proprietary information, but in no event less than reasonable care. Notwithstanding the foregoing, neither party shall have liability to the other with regard to any Confidential Information that is required to be disclosed by law or court order, provided that the party that received the Confidential Information (“Receiving Party”) shall provide reasonable advance notice to enable the party that provided the Confidential Information (“Disclosing Party”) to seek a protective order or otherwise prevent such disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6. CUSTOMER DATA
6.1 Customer Data
Customer warrants that Customer is the owner or legal custodian of, or otherwise has the right to provide to AudienceTap, all programs, data, information and other content transmitted via the AudienceTap Platform and hosted through its Services, including, without limitation, End User Data (as defined below) and the Customer Marketing Content (collectively, the “Customer Data”) and has the full authority to transmit and store the Customer Data through the AudienceTap Platform and its Services. Customer hereby authorizes the storage of Customer Data by AudienceTap through the AudienceTap Platform and its Services. Customer acknowledges that Customer bears sole responsibility for adequate security, protection, and backup of Customer’s Data on Customer’s equipment. Customer understands that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions, and other causes, which might result in Customer restoring files that are no longer usable. Without limiting the generality of Section 6, AudienceTap will have no liability to Customer for any unauthorized access to, or use, alteration, corruption, deletion, destruction, or loss of any Customer Data on Customer’s equipment.
6.2 End Customer Data
7. WARRANTIES AND DISCLAIMERS
7.1 Mutual Warranties
Each party represents and warrants that: (a) it has the legal power to enter into the Agreement; (b) the signatory hereto has the authority to bind the Customer; and (c) when executed, the Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with the terms listed hereto.
7.2 Customer Warranties
EXCEPT AS SET FORTH IN SECTION 7.1 (Mutual Warranties), EACH APPLICATION, ACCESS THERETO, THE DOCUMENTATION, AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND AUDIENCETAP AND ITS AGENTS: (A) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) DO NOT WARRANT THAT ACCESS TO ANY APPLICATION WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE OR PROVIDED THROUGH ANY APPLICATION IS ACCURATE, COMPLETE, OR FREE OF VIRUSES OR OTHER HARMFUL CONTENTS OR COMPONENTS; AND (C) SHALL IN NO EVENT BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY INACCURACY, ERROR, OR OMISSION IN, OR LOSS, INJURY, OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS, OR INTERRUPTIONS OF ANY APPLICATION, DOCUMENTATION, OR SERVICES. IF ANY WARRANTY DISCLAIMER IN THIS SECTION IS INVALID, ILLEGAL, OR UNENFORCEABLE IN ANY JURISDICTION, SUCH INVALIDITY, ILLEGALITY, OR UNENFORCEABILITY SHALL NOT AFFECT ANY OTHER WARRANTY DISCLAIMER OR PROVISION OF THIS SECTION OR INVALIDATE OR RENDER UNENFORCEABLE SUCH WARRANTY DISCLAIMER IN ANY OTHER JURISDICTION.
8.1 Indemnification by Customer
18.104.22.168 Customer shall indemnify, hold harmless, and defend AudienceTap and any of its officers, directors, employees, or affiliates against any and all losses, liabilities, claims, causes of action, demands, or damages of every kind brought by a third party, including all judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including expenses of litigation or arbitration, court or arbitration costs and attorneys' fees and other professional fees that AudienceTap may incur as a result of such third-party claims, demands, or causes of action (collectively, “Losses”) that relate to or arise out of (a) Customer’s use of the AudienceTap Platform or Services in alleged violation of this Agreement or applicable law; (b) any of Customer’s acts or omissions related to this Agreement, or (c) any claim that Customer’s Data infringes or misappropriates the intellectual property rights of a third party.
22.214.171.124 Subject to the allocation provisions of Section 8.2, Customer’s indemnification obligations in this Section 8.1 shall apply regardless of who may be at fault or otherwise responsible under any statute, rule, or theory of law, including but not limited to theories of strict liability, including but not limited to claims relating to the Telephone Consumer Protection Act, the Children’s Online Privacy Protection Act, or similar state and federal laws, and even though the subject loss, damage, or injury may have been caused in whole or in part by the concurrent, active, or passive negligence of AudienceTap or a defect in the AudienceTap Platform or its Services.
8.1.2 AudienceTap’s Notice of Third-Party Claims. AudienceTap shall give Customer prompt written notice (a “Claim Notice”) of any Losses or discovery of facts on which AudienceTap intends to base a request for indemnification under Section 8.1. AudienceTap’s failure to provide a Claim Notice to Customer under this Section 8.1.2 does not relieve Customer of any liability that Customer may have to AudienceTap, but in no event shall Customer be liable for any Losses that result directly from a delay in providing a Claim Notice, which delay materially prejudices the defense of the related third-party claim. Each Claim Notice must contain a description of the third-party claim and the nature and amount of the related Losses (to the extent that the nature and amount of the Losses are known at the time). AudienceTap shall furnish promptly to Customer copies of all papers and official documents received in respect of any Losses. Customer’s duty to defend applies immediately, regardless of whether AudienceTap has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any third-party claim.
8.1.3 Customer Control of Defense. Customer may assume control of the defense, appeal, or settlement of any third-party claim that is reasonably likely to give rise to an indemnification claim under Section 8.1 (an “Indemnified Claim”) by sending written notice of the assumption to AudienceTap on or before seven (7) business days after receipt of a Claim Notice to acknowledge responsibility for the defense of such Indemnified Claim and undertake, conduct, and control, through reputable independent counsel of its own choosing (which AudienceTap shall find reasonably satisfactory) and at Customer’s sole cost and expense, the settlement or defense thereof.
8.1.4 AudienceTap’s Obligations Regarding Customer’s Control of Defense. If Customer assumes control of the defense under Section 8.1.3, AudienceTap shall fully cooperate with Customer in connection therewith; and may employ, at any time, separate counsel to represent it, provided that AudienceTap is solely responsible for the costs and expenses of any such separate counsel.
8.1.5 AudienceTap’s Control of Defense. Notwithstanding anything to the contrary in Section 8.1, upon giving written notice to Customer, AudienceTap may take control of its defense to an Indemnified Claim with counsel of its choosing if:
126.96.36.199 the Indemnified Claim is one for which AudienceTap properly gave Customer a Claim Notice under Section 8.1.2, and Customer fails to timely assume the defense or refuses to defend the Indemnified Claim under Section 8.1.3;
188.8.131.52 the Indemnified Claim seeks an injunction or other equitable relief against AudienceTap that has a reasonable potential of impacting, directly or indirectly, customers of AudienceTap other than Customer; or
184.108.40.206 AudienceTap reasonably determines that there are one or more legal or equitable defenses available to it that are different from or in addition to those available to Customer and that counsel for Customer may not fully or adequately represent the interests of AudienceTap.
8.1.6 Customer’s Obligations Regarding AudienceTap’s Control of Defense. If AudienceTap assumes control of the defense under Section 8.1.5, Customer shall reimburse AudienceTap promptly and periodically for the costs properly incurred in defending against the Indemnified Claim (including its attorneys’ fees and expenses) and remain responsible to AudienceTap for any Losses indemnified under Section 8.1.
8.1.7 Settlement of Indemnified Claims by Customer. Customer shall give prompt written notice to AudienceTap of any proposed settlement of an Indemnified Claim. Customer may not, without AudienceTap’s prior written consent, settle or compromise any indemnification-related claim or consent to the entry of any indemnification-related judgment unless such settlement, compromise, or consent:
220.127.116.11 includes an unconditional release of AudienceTap from all liability arising out of such claim;
18.104.22.168 does not contain any admission or statement suggesting any wrongdoing or liability on behalf of AudienceTap; and
22.214.171.124 does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of AudienceTap.
8.1.8 Settlement of Indemnified Claims by AudienceTap. AudienceTap may not settle or compromise any claim or consent to the entry of any judgment regarding which it is seeking indemnification hereunder without the prior written consent of Customer, which Customer shall not unreasonably withhold, condition, or delay, unless:
126.96.36.199 the Indemnified Claim is one for which AudienceTap properly gave Customer a Claim Notice under Section 8.1.2, and Customer failed to assume the defense or refused to defend the Indemnified Claim under Section 8.1.3; or
188.8.131.52 such settlement, compromise or consent:
184.108.40.206.1 includes an unconditional release of Customer from all liability arising out of such claim;
220.127.116.11.2 does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Customer; and
18.104.22.168.3 does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of Customer.
8.2 Allocation of Liability for Certain Judgments or Awards
In the event a final judgment or award is entered against both Customer and AudienceTap and such judgment or award includes a finding that AudienceTap is liable in whole or in part for any enhanced, exemplary, or punitive damages because of reckless, wanton, or willful misconduct, then the parties’ respective liability shall be as follows:
8.2.1 In the event that only AudienceTap is found to have engaged in conduct that is determined to be reckless, wanton, or willful, Customer shall have no obligation to indemnify AudienceTap for any such judgments or awards.
8.2.2 In the event that both AudienceTap and Customer are found to have engaged in conduct that is determined to be reckless, wanton, or willful, AudienceTap’s sole obligation shall be to contribute to the payment of any enhanced, exemplary, or punitive damages in an amount proportional to its fault. Customer’s duty under Section 8.1 to defend and indemnify AudienceTap for all liability that would have resulted from acts deemed to be negligent shall not be affected by this Section 8.2.
9. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, AUDIENCETAP WILL NOT HAVE ANY LIABILITY TOWARDS CUSTOMER FOR ANY DAMAGES ARISING FROM CUSTOMER’S USE OF THE AUDIENCETAP PLATFORM AND/OR SERVICES THAT AUDIENCETAP PROVIDES TO CUSTOMER, WHETHER THE CAUSE OF ACTION BE BASED ON TORT, BREACH OF CONTRACT, OR ANY OTHER LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, PUNITIVE, ACTUAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR DUE TO ANY CAUSE OF ANY NATURE. BY ENTERING INTO THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES TO HOLD AUDIENCETAP HARMLESS FROM ANY LOSS OR HARM OF ANY NATURE DUE TO CUSTOMER’S USAGE OF THE AUDIENCETAP PLATFORM AND/OR SERVICES THAT AUDIENCETAP PROVIDES TO CUSTOMER, WHETHER DIRECTLY OR INDIRECTLY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.1 Customer shall, at its own cost and expense, procure and maintain in full force and effect during the Term of this Agreement, policies of insurance, of the types and in the minimum amounts reasonably necessary and appropriate in its industry to perform its obligations under this Agreement, with a responsible insurance carrier duly qualified in those states (locations) where the AudienceTap Platform and its Services are to be performed or used. Unless AudienceTap otherwise agrees in writing, a complying policy will include a coverage rider expressly providing for coverage of TCPA claims and will include a “most favored jurisdiction” provision. Upon AudienceTap’s request, Customer will provide its certificate of insurance.
11. DISPUTE RESOLUTION
11.1 Exclusive Dispute Resolution Mechanism
The parties shall resolve any and all disputes, controversies, or claims arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”), under the provisions of Sections 11.1 through 11.3. The procedures set forth in Sections 11.1 through 11.3 shall be the exclusive mechanism for resolving any Dispute that may arise from time to time, and Sections 11.1 through 11.3 are express conditions precedent to binding arbitration of the Dispute.
A party shall send written notice to the other party of any Dispute (“Dispute Notice”). The parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves, including at least one negotiation session attended by the party’s Chief Operations Officer, his/her designee, or a party’s representative with sufficient authority to negotiate and settle the Dispute on behalf of the corresponding party.
If the Parties cannot resolve any Dispute via the negotiation process for any reason, including, but not limited to, the failure of either party to agree to any settlement, within thirty (30) calendar days after the negotiations under this Section started, either Party may commence binding arbitration in accordance with the provisions of the following Section 11.3.
If the negotiations mentioned in the previous Section 11.2 do not resolve the Dispute, the parties agree to submit the Dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of Iowa, without regard to its conflict of laws rules. The venue of any such arbitration shall be in Iowa. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the Dispute. If the parties do not agree on an arbitrator within thirty (30) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in Section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration, or the papers, documents, or evidence related thereto, without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a Dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial.
12.1 Force Majeure
Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default that is caused by conditions beyond its control, including, but not limited to, acts of God, earthquakes, fire, flood, epidemics, labor disputes, changes in law, regulations or government policy, government restrictions (including the denial or cancellation of any export or other necessary license), riots, wars, insurrections, and/or any other cause beyond the reasonable control of the party whose performance is affected (including transportation difficulties, acts or omissions of vendors or suppliers, or mechanical, electronic, internet service provider, or communications failure). AudienceTap and Authorized Resellers are not responsible for server downtimes under any circumstances. If the force majeure continues for more than thirty (30) calendar days, either party may terminate this Agreement for convenience upon written notice to the other party.
Customer may not assign its rights or delegate any obligations pursuant to this Agreement without the express prior written consent of AudienceTap. Any assignment by Customer without the prior written consent of AudienceTap shall be null and void. AudienceTap may assign its rights or obligations pursuant to this Agreement without providing notice to Customer and without Customer’s prior consent, provided, however, that the Services shall continue to operate as specified in this Agreement. This Agreement shall inure to the benefit of each party’s successors and assigns.
12.3 Independent Contractor Relationship
Neither Customer nor AudienceTap shall be deemed to be an agent of the other and the relationship of Customer and AudienceTap shall be that of independent contractors. Neither Customer nor AudienceTap shall have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on behalf of the other party, or to bind the other party in any matter whatsoever.
Any notice or report required or permitted to be given or made under this Agreement by either party will be in English, in writing, and be deemed to have been fully given and received (a) when delivered personally; (b) when sent by confirmed facsimile; (c) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (d) one (1) business day after deposit with a commercial overnight carrier, with written verification of such receipt; or (e) to the extent expressly permitted in this Agreement, one (1) business day after being sent via email. Notices will be sent to the parties at the addresses set forth in this Agreement or such other address as a party may specify in writing to the other. All notices to TextRetailer, Inc. d/b/a AudienceTap must be made to the address listed below and all notices to Customer must be made to the mailing or email address of Customer’s primary contact with AudienceTap.
AudienceTap Notice Address:
TextRetailer, Inc d/b/a AudienceTap
ATTN: Legal Department
724 Elliott Ct
Iowa City, IA 52246
AudienceTap may broadcast notices or messages through the AudienceTap Platform or by posting notices or messages on the AudienceTap Website to inform Customer of changes to the AudienceTap Platform and/or its Services or other matters of importance; AudienceTap may also inform Customer of such broadcast by e-mail or surface mail.
For Customer support, please email firstname.lastname@example.org. In providing support, AudienceTap or an AudienceTap agent may use a variety of tools to aid in the process of resolving Customer issues and may request that Customer provide additional information in order to resolve these issues. Customer hereby grants AudienceTap and such agent the right to use those tools and any information Customer provides to AudienceTap in order to provide Customer with support.
The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
12.7 Entire Agreement
Should any term and condition hereof be declared illegal or otherwise unenforceable, it shall be severed from the remainder of this Agreement without affecting the legality or enforceability of the remaining portions.
Section 3 (Service Order, Subscription Term, Subscription Fees, and Payment), Section 5 (Confidentiality), Section 8 (Indemnification), Section 9 (Limitation of Liability), Section 11 (Dispute Resolution), and Section 12 (General) shall survive the termination or expiration of this Agreement.
13. SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS FOR END USERS
13.2 User Opt In
The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.
13.3 User Opt Out
If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
13.4 Duty to Notify and Indemnify
If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.
YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
13.5 Program Description
Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning AudienceTap's services, including performance metrics, tips, alerts, promotions and other notifications.
13.6 Cost and Frequency
Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
13.7 Support Instructions
For support regarding the Program, text “HELP” to the number you received messages from or email us at email@example.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
13.8 MMS Disclosure
The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
13.9 Our Disclaimer of Warranty
The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.
13.10 Participant Requirements
You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
13.11 Age Restriction
You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
13.12 Prohibited Content
You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
13.13 Message Deliverability.
Carriers (e.g. AT&T, Verizon, T-Mobile, Sprint, etc) are not responsible or liable for undelivered or delayed messages.