THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL OF OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THE FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM FOR OUR SERVICES VIA ANY MEDIUM, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICES.
This Agreement is effective between you and us as of the earlier of the date of you accept this Agreement or use the Services (the “Effective Date”).
1. Definitions. All capitalized terms used in this Agreement have the meaning set forth in this Agreement or as otherwise defined below:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity.
“API Service” or “Application Program Interface Service” means a process through which the Service(s) are made available to you, and formats include, but are not limited to, hhtp/XML, SOAP and SMPP web services.
“End User” means an individual who is authorized by you to use a Service ordered or provisioned by you from us, with or without charge. End User may include, for example, your employees, consultants, clients, contractors, agents, and third-parties with which you transact business.
“Governmental Authority” means any federal, state, local, foreign or supranational government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.
“Intellectual Property” means any and all trade secrets, trademarks, patents, domain names, original works of authorship and related copyrights, and any other intangible property in which any person holds proprietary rights, title, interests or protections, however arising, pursuant to the Laws of the US, including all applications, registrations, renewals, issues, reissues, extensions, divisions and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing.
“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order, other requirement or rule of law of any Governmental Authority.
“Order Form” means an ordering document or online order specifying the Service(s) to be provided that is entered into between you and us. By entering into an Order Form, you or your Affiliates agree to be bound by the terms of this Agreement.
“Representatives” means a Party's Affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors and permitted assigns.
“Service(s)” means the products or services that are ordered by you under an Order Form or provided to you under a free trial or as a Beta Service.
“Tariff” means an open contract between a telecommunications carrier and the FCC. Tariffs contain the rates, terms and conditions of certain services provided by the telecommunications carriers.
“We”, “us” or “our” means CDYNE Services, LLC d/b/a Esendex.
“You” or “your” means the person or company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which sign an Order Form.
2. Free Trial. If you register on our website for a free trial, we will make one or more of the Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s); (b) if the trial period includes a limitation on the use of the Service(s) (for example, a maximum number of messages) than when you reach that limitation; (c) the start date of any purchased Service subscriptions ordered by you for such Service(s); or (d) termination by us in accordance with this Agreement. Additional trial terms and conditions may appear on the trial registration webpage or Order Form and are incorporated into this Agreement by reference. We may require that you provide to us credit card information in order to enroll in the Free Trial. We will not bill you for the free trial.
Data that you enter into the Services, or any modifications made to the Services for you, during your free trial will be permanently lost unless you purchase the same Service(s) or you export Your data before the end of the trial period.
Notwithstanding any other provision of this Agreement to the contrary, all Services provided during the free trial period are provided “AS IS” and without any warranty.
3. Beta Services. From time to time, we may make available to you Beta Services at no charge. You may choose to use the Beta Services in your own discretion. Beta Services are not intended for production use, are not supported, are provided on an “AS IS” basis and without any warranty. Additional terms and limitations may be applicable to the Beta Services. We may modify, suspend or discontinue the Beta Services at any time and in our sole discretion. You agree that we will have no liability for any harm or damage arising out of or in connection with your use of the Beta Services.
4. Service Order Forms and Rates.
(a) Orders. During the Term, you may submit to us Order Forms requesting the Service(s). Any additional Terms and Conditions contained in the Order Form(s) and our Acceptable Use Policy, as (currently in effect and available on our website at www.esendex.us/Legal) are all fully incorporated into this Agreement.
(b) Modifications. We reserve the right, in our sole discretion, to reject modifications to any Order Form or to this Agreement. If we accept the Order Form, we will notify you in writing (including electronically) of our acceptance and you will pay all Rates (as defined below) specified in the Order Form. If we do not accept the Order Form, we will have no liability or other obligation with respect to that Order Form, including any Order Form submitted at the conclusion of any trial period. No changes to Rates will be effective until an Order Form is signed by both parties. If you use the Services prior to our acceptance of the Order Form, our standard Rates applicable to the Service and this Agreement will apply. You will remain obligated to pay for any such Service pursuant to this Agreement.
(c) Rates. You agree to pay all fees specified in the applicable Order Form and any Tariffs, if applicable (collectively, the “Rates”). If no applicable Rates are attached, or if you use the Service prior to submitting an Order Form and receiving our acceptance, our standard Rate will apply and will constitute the Rate for the applicable Service. From time to time, our standard Rates change and are posted on our website. Unless we have accepted an Order Form with specific rates, your use of the Service will constitute acceptance of the changed Rate.
(d) Pass Through and Maintenance Fees. You agree to pay any other fees imposed on us by third-party carrier or other service provider, whether charged to or against us, including, without limitation, leasing charges, maintenance fees or message termination charges associated with your use of the Service (the “Pass Through Fees”). The Pass Through Fees are subject to change and may include interest, collection fees or exchange rate differentials, if applicable. We will use commercially reasonable efforts to notify you of any applicable Pass Through Fees prior to your use of the Service.
(a) Invoicing. Unless the Order Form provides otherwise, we will invoice you on a monthly basis together with any Pass Through Fees. You agree to pay all invoiced amounts due to us by the date stated on the invoice (the “Due Date”), except for any amounts disputed by you in good faith and in accordance with Section 5(d) below. We will impose a late payment charge of the lesser of 1.5% per month, or (ii) the highest legally permissible rate for any payment not made by the Due Date. You agree to reimburse us for all costs incurred in collecting any late or dishonored payments, including, without limitation, attorneys’ fees.
(b) Payment Methods. We may require that you provide a valid and updated credit card information. If you provide credit card information to us, you authorize us to charge the credit card for the Service. Such charges may be made in advance, as the Service is used, or in accordance with any different billing frequency as stated in the applicable Order Form. If the charges exceed your available daily credit limit, you authorize us to charge your credit card until such time as the charges are paid in full.
(c) Taxes. Amounts payable by you under this Agreement may include sales, use and excise taxes, and any other similar taxes, duties and charges imposed by any Governmental Authority on such amounts. You will be responsible for all such charges, costs and taxes, except for taxes imposed on, or with respect to our income, revenues, gross receipts, property or other assets. If you are tax exempt, we will require you to provide to us an exemption certificate.
(d) Invoice Disputes. You agree to notify us in writing of any dispute with an invoice, along with a reasonably detailed description of the dispute, prior to the invoice Due Date. You will be deemed to have accepted all invoices for which we do not receive timely notification of the dispute and shall pay all undisputed amounts due by the Due Date. We both agree to work together to resolve all disputed amounts expeditiously and in good faith.
(e) Credit or Deposits. We may require that you provide to us credit information or a security deposit as a condition of our acceptance of any Order Form. You authorize us to verify the information you provide and to run a credit check, if applicable. We reserve the right, at any time, to require a security deposit to continue to provide the Service if we determine that (i) your usage of the Service does not meet the expected level previously agreed to; (ii) you miss the Due Date or otherwise become delinquent or are in breach of this Agreement; (iii) your level of credit with us is insufficient. We also reserve the right, without limiting any other rights or remedies we may have, to accelerate all amounts that are due and demand immediate payment or to suspend the Service without notice and without any liability to you if you fail to make payments by the Due Date, fail to replenish any pre-paid account balances, or are in breach of this Agreement. You agree to pay such invoices immediately upon receipt.
6. Your Obligations.
(a) Credentials. We will assign to you a confidential identification, log-in and password (and ability to change the password) so that you may access the Service (collectively, the “Credentials”). You agree to not disclose your Credentials to any third-party. You agree to use reasonable efforts to prevent unauthorized access to or use of the Service and notify us promptly of any such unauthorized access or use. You will be responsible for all use of the Services under your Credentials.
(b) Acceptable Use Policy. Use of the Service must comply with our Acceptable Use Policy, which is available on our website at www.esendex.us/Legal. The Acceptable Use Policy is incorporated by reference and is subject to change. We reserve the right, in our sole discretion, to cooperate with legal authorities or third-parties in investigation of any suspected or alleged civil or criminal activity as a result of a violation of this Agreement or the Acceptable Use Policy. Disclosure of information to a legal or third-party made pursuant to this Section 6(b) will not be considered a violation of any provision of Section 12 (Confidentiality).
(c) Equipment. You are solely responsible for the installations, configuration, security (including, without limitation, any firewall security policies whether configured or implemented by you or by a third-party on your behalf), and the integrity of all your facilities, systems, equipment, servers, software, networks, network configuration and the like (collectively, the “Equipment”) used with or related to the Service. You are solely liable for your Equipment and agree to maintain all Equipment necessary to establish a connection to the Service, including installing, configuring or maintaining software required to access the Service.
(d) End-User Compliance. As part of providing the Service(s) we may, from time to time, receive domain names, your customer’s names, End User names, addresses, passwords, telephone and device numbers, message content, data files and other data and information provided by you or your End Users in using the Service (collectively “User Information”). Except as required to provide the Service, we do not exercise any control over User Information, including, without limitation, the content of messages that may be transmitted or generated using the Service. We undertake no responsibility to review the content of any messages to determine whether such User Information may violate any Law, or create any liability on behalf of any third-party. You will be responsible for (i) your End User’s compliance with this Agreement, the Order Forms, and the Acceptable Use Policy; (ii) the accuracy, quality and legality of User Information; and (iii) ensuring End User’s use of the Service comply with all applicable Laws, including, without limitation, laws and regulations governing the invasion of privacy, libel or slander.
(e) Your Use of the Service(s). You will (a) not make the Service available to anyone other than you or End Users, unless otherwise expressly stated in the governing Order Form; (b) use the Service to store or transmit malicious code; (c) use the Service transmit infringing, libelous, or otherwise tortious or unlawful material, or to transmit material in violation of third-party privacy rights; (d) attempt to gain unauthorized access to the Service in a way that circumvents a contractual usage limit; (e) access any Service in order to build a competitive service; (f) reverse engineer, decompile, modify or create derivative works of any Service. Any use of the Service that is in breach of this Agreement, the Order Form, or the Acceptable Use Policy that in our judgment threatens the security, integrity or availability of the Service may result in immediate suspension. We will provide to you commercially reasonable notice and an opportunity to remedy the violation or threat of violation before we suspend the Service.
7. Our Obligations.
(a) Availability of Service(s). We will (i) make available to you the Service pursuant to this Agreement and the applicable Order Form; (ii) provide standard support for the Service to you at no additional charge; (iii) use commercially reasonable efforts to make the Service available 24 hours a day, seven days a week except for planned downtime.
(b) Service Level Agreement. We agree to provide the Service in accordance with our current Service Level Agreement, as posted by us from time to time at www.esendex.us.
(c) Protection of Your data. We will maintain administrative, physical, and technical safeguards for protection of your User Information. Those safeguards include measures for preventing access, use modification or disclosure of User Information by our personnel except to (i) provide the Service and prevent or address service or technical problems; (ii) as compelled by Law; or (iii) as you expressly permit.
(d) Our Personnel. We will be responsible for the performance of our personnel and their compliance with our obligations under this Agreement, except where otherwise specified herein.
8. Term and Termination.
(a) Term. Unless otherwise stated in the Order Form, the term of this Agreement will commence on the Effective Date and will continue for twelve (12) months (the “Initial Term”). The Initial Term will automatically be renewed thereafter upon the same terms and conditions applicable during the Initial Term (each a “Renewal Term”) until this Agreement is terminated pursuant to Section 8(b) below (the Initial Term and all Renewal Terms collectively referred to herein as the “Term”).
(b) Termination. Unless otherwise stated in an Order Form, you may terminate this Agreement or any applicable Order Form at the end of the Term by providing written notice not less than ninety (90) calendar days prior to the end of the Term. We will cease to provide the Service pursuant to the written notice. We may terminate this Agreement and any applicable Order Form at the end of the Term by providing you written notice not less than thirty (30) calendar days prior to the end of the Term.
In addition to any other rights we may have pursuant to this Agreement, if we determine, in our sole discretion, that your use, or End User’s use of the Service materially and adversely interferes with, or places in our network, other customers, partners or other providers in jeopardy, we may suspend or terminate the Service immediately. We will use commercially reasonable efforts to provide to you prior notification as is practicable under the circumstances.
Except as otherwise provided in this Agreement, a party may terminate this Agreement for cause (i) upon fifteen (15) calendar days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Upon termination or expiration of this Agreement or any Order Form, we may collect from you: (i) all amounts that are due and payable pursuant to this Agreement or any Order Form provided before termination or expiration, including any past due amounts; (ii) if the Service contained a monthly minimum commitment, then the applicable monthly minimum multiplied by the number of months that remain in the Term, prorated for any partial months that remain in the Term; and (iii) any early termination charges as specified in the Order Form.
9. Proprietary Rights and Licenses.
(a) Reservation of Rights. Subject to the limited rights expressly granted in this Agreement, we and our licensors reserve all our or their right, title, interest in the Service, including all associated Intellectual Property rights. No rights are granted to you under this Agreement other than as expressly set forth herein.
(b) Access to and Use of Service(s). You have the right to access and use applicable Service subject to the terms of this Agreement.
(c) API Service(s). If you purchase an API Service, we grant to you a limited, non-exclusive, nontransferable license to use the API Service solely to develop a wireless application that connects and sends data pursuant to the Service. Your use of the API Service is limited solely to your internal use, and unless otherwise agreed to by us in writing, is not for resale, sublicensing, timesharing, renting, or loaning to any third-party, except for your End Users.
(d) Feedback. You grant to us a worldwide, perpetual, irrevocable, royalty free license to use and incorporate into our Service any suggestion, enhancement request, recommendation, correction or other feedback provided by you or End Users relating to the operation of the Service.
10. Limitation of Liability and Remedies.
(a) Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM (I) A PARTY’S BREACH OF ITS OBLIGATIONS PURSUANT TO SECTION 12 (CONFIDENTIALITY); (II) A BREACH OF SECTION 6 (YOUR OBLIGATIONS); OR (III) WITH RESPECT TO ANY INDEMNIFICATION, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL WE BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF WE HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT AS DESCRIBED IN THIS SECTION 10, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL WE BE LIABLE TO YOU FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF THIS SECTION 10 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
(b) Third-Party Factors and Span of Control. Our provision of the Service is dependent on the facilities, networks and connectivity of third-party internet, wireless and wireline service providers (the “Carriers”) and third-party aggregators (collectively, including the Carriers, “Third-Party Factors”). You acknowledge that the performance of the Service may be impacted or affected by the Third-Party Factors and as such, we will have no liability for any reduction, interruption, termination or suspension of the Service related to any Third-Party Factors.
11. Limited Warranty. We warrant that during the Term (a) this Agreement will accurately describe the applicable administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of your data; (b) we will not materially decrease the overall security of the Service; and (c) the Service will perform materially in accordance with this Agreement.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TRIAL AND BETA SERVICES ARE PROVIDED “AS IS” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY FACTORS.
12. Confidentiality. From time to time during the Term, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”).
Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 12 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed to provide the Service or pursuant to applicable Law.
The Receiving Party shall, for one (1) year from receipt of such Confidential Information: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 12 caused by any of its Representatives.
13. Mutual Indemnity.
(a) Indemnification by Us. We will defend you against any claim, demand, suit or proceeding made or brought against you by a third-party alleging that any of the Service infringes or misappropriates such third-party’s Intellectual Property rights (the “Claim”) and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a settlement approved by us in writing of a Claim, provided you (a) promptly give us reasonable notice of the Claim against you; (b) give us sole control of the defense and settlement of the Claim, except that we may not settle any Claim against you unless it releases you of liability; and (c) give us all reasonable assistance, at our sole expense. If we receive information about an infringement or misappropriation claim related to a Service, we may in our sole discretion and at no cost to you (i) modify the Service so that it is no longer claimed to infringe or misappropriate; (ii) obtain a license for your continued to use of the Service in accordance with this Agreement; or (iii) terminate the Service upon thirty (30) days’ written notice to you. The above indemnification obligations do not apply to the extent a Claim arises from (i) use of the Service in combination with other products, services, methods, techniques, software or data not supplied or expressly approved by us; (ii) modifications or additions to the Service made or provided by you; (iii) the resale, sublicense or other provision of the Service, alone or in combination with other products or services by you to third-parties or End Users; (iv) Your End User’s use of the Service; (v) Our compliance with your specifications or requirements for the Service which result in the Claim; or (vi) Intellectual Property rights owned by or licensed to, in whole or part, you or your Affiliates.
(b) Indemnification by You. You will defend us against any claim, demand, suit or proceeding (i) made or brought against us by a third-party alleging that your data or our compliance with your specifications or requirements for the Service infringes or misappropriates such third-party’s Intellectual Property rights; (ii) your End-User’s use of the Service; (iii) your use of the Service in violation of this Agreement, the Acceptable Use Policy or the Order Form; or (iv) the use of the Service in violation of any Law by you, the End-User or your Affiliates. You will indemnify us for any and all damages, attorney fees and costs awarded against us as a result of, or for any amounts paid by us under a settlement approved by you in writing of the Claim, except that you may not settle any Claim against us unless it releases us of liability.
14. General Provisions.
(a) Further Assurances. Upon a party's reasonable request, the other party shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
(b) Entire Agreement. This Agreement, including any applicable Order Forms and the Acceptable Use Policy, constitutes the sole and entire agreement between you and us with respect to your use of the Service, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
(c) Survival. Subject to the limitations and other provisions of this Agreement, (a) Section 4 (Service Order Forms and Rates), Section 5 (Payment), Section 8 (Term and Termination), Section 9(d) (Feedback), Section 10 (Limitation of Liability and Remedies), Section 12 (Confidentiality), Section 13 (Indemnification), and Section 14 (General Provisions), of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement for the period specified therein.
(d) Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties provided on the signature page, or if no signature page is attached, then to the address you provided to us when you registered for the Service (or to such other address that may be designated by the receiving Party from time to time in accordance with this section). Unless otherwise provided for in this Agreement, notice will be deemed to be delivered when sent via one or any combination of the following (i) email address(es) of record, (ii) via facsimile number of record, (iii) overnight delivery to the physical address of record by a nationally recognized overnight delivery service, (iv) or certified or registered mail, return receipt requested, postage prepaid. Notice is effective only (a) upon receipt by the receiving party and (b) if the party giving notice has complied with this Section 14(d).
(e) Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement to affect the original intent of the parties.
(f) Amendment and Modification. No amendment to or modification of or rescission, termination or discharge of this Agreement or Order Form is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized Representative of each Party.
(g) Waiver. No waiver under this Agreement is effective unless it is in writing and signed by the party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion.
(h) Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at Law, in equity, by statute, in any other agreement between the parties or otherwise.
(i) Assignment. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, however, that either party may assign this Agreement to an Affiliate. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
(j) No Third-party Beneficiaries. This Agreement benefits solely the parties to this Agreement and nothing in this Agreement, express or implied, confers on any other person, including without limitation, End Users, any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(k) Choice of Law. This Agreement, including any applicable Order Forms and the Acceptable Use Policy, and all matters arising out of or relating to this Agreement, shall be governed by, and construed in accordance with, the Laws of the State of Virginia, United States of America, without giving effect to any conflict of laws provisions thereof.
(l) Choice of Forum. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement, including all Order Forms and the Acceptable Use Policy, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than the U.S. District Court for the Eastern District of Virginia, Norfolk Division or, if such court does not have subject matter jurisdiction, the courts of the State of Virginia sitting in the city of Chesapeake and any appellate court thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in U.S. District Court for the Eastern District of Virginia, Norfolk Division or, if such court does not have subject matter jurisdiction, the courts of the State of Virginia sitting in the city of Chesapeake. Each party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
(m) Waiver of Jury Trial. Each party acknowledges and agrees that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
(n) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
(o) Non-Exclusive Agreement. This Agreement is not exclusive. Nothing contained in this Agreement will prevent either party from entering into similar arrangements with, or otherwise providing services to, any other person or entity.
(p) Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party under this Agreement), when and to the extent such failure or delay is caused by or results from acts beyond the affected party's control, including, without limitation: (a) acts of God; (b) flood, fire or explosion; (c) national or regional emergency; (d) compliance with any Law or Governmental Order, rule, regulation or direction, or any action taken by a Governmental Authority; (e) shortage of adequate power or telecommunications or transportation facilities; or (f) any other event which is beyond the reasonable control of such party (each of the foregoing, a "Force Majeure Event"). A party whose performance is affected by a Force Majeure Event shall give Notice to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. If a Force Majeure Event materially impacts performance for ten (10) business days or more (“Extended Delay”), either party may terminate the affected Service without penalty or further obligation upon written notification to the other party.
(q) Change in Law. If any statute, regulation, decision, rule or order by a court of law or Governmental Authority, including, without limitation, the FCC or any state regulatory agency: (a) prohibits performance pursuant to this Agreement or any applicable Order Form; (b) makes such performance illegal, impossible or impractical; or (c) materially adversely impacts either party’s performance of its obligations under this Agreement, including, without limitation, the costs incurred by a party to perform its obligations under this Agreement or any applicable Order Form, the parties will use their commercially reasonable efforts to amend this Agreement or the Order Form so that: (i) performance pursuant to this Agreement or any applicable Order Form is no longer prohibited, illegal, impossible, impractical or is no longer materially adversely impacted; and (ii) the Agreement or any applicable Order Form preserves, to the maximum extent possible, the original intent of the parties. If the parties are unable to amend this Agreement or any applicable Order Form as contemplated above, then the party whose performance or use of Service is rendered prohibited, illegal, impossible, impractical or materially adversely impacted may, in its sole discretion and upon thirty (30) calendar days (or less if required by Law) prior written notification to the other party, cease performance of any such obligations or Service without further obligation or liability, excluding payment of any charges for Service received by prior to notification of change in Law.
(r) Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third-party.
Acceptable Use Policy
Last Modified: April 27, 2016
Your use of Our Service(s) is subject to this Acceptable Use Policy (“AUP”). This AUP describes actions that We prohibit when You use Our Services. This AUP is incorporated by reference into the Master Subscription Agreement (“MSA”) that contains defined terms that are used in this AUP. If there is any conflict between terms contained in this AUP and the terms in the MSA, the MSA terms will take precedence.
From time to time We may modify this AUP with such changes effective upon posting at www.esendex.us. Your continued use of the Service(s) indicates Your acceptance of the changes to this AUP. You may not use Our Service(s) without agreeing to this AUP. Thus, You agree, and Your End Users agree, not to use Our Service(s) in any prohibited manner, including, but not limited to:
Using the Service(s) to send, upload, distribute or disseminate (or permitting Your End Users to do so) any unlawful, libelous, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content.
Using the Service(s) in a manner that interferes with other users or interferes with Our business activities, or poses a risk to Us or other users.
Attempting to circumvent or break any security mechanism on the Service(s) or using the Service(s) in a manner that poses a risk to Us or other users.
Using the services to generate or facilitate unsolicited advertising, marketing or other activities, including any activities that violate anti-spam laws and regulations, the CAN-SPAM ACT of 2003, the Telephone Consumer Protection Act, and Do-Not-Call Implementation Act, or any similar law or regulation governing spam, data protection or privacy legislation in any other jurisdiction.
Using the Service(s) in connection with any unsolicited or harassing messages, including unsolicited phone calls, SMS or text messages, voice messages, or faxes.
Using the Service(s) to harvest, collect or data mine information about others, including email addresses, phone numbers or other contact information.
Use the Service(s) to transmit or receive Protect Health Information as defined by the Health Insurance Portability and Accountability Act of 1996 as amended, unless You have entered into a separate agreement with Us.
Violating or facilitating the violation of any local, state, federal or foreign law or regulation, including laws and regulations regarding the transmission of data or software.
Distributing viruses, worms, defects, Trojan horses, corrupted files, hoaxes or any other items of a destructive or deceptive nature.
Using the Service(s) to promote or encourage illegal activity, or to engage in fraudulent activity.
Using the Service(s) in any manner that may subject Us, other users, or third parties to liability, damages or danger.
Modifying adapting, translating or reverse engineering the Service(s), or attempting to do so to find limitations, vulnerabilities, or to evade filtering capabilities.
Selling, trading, reselling or otherwise exploiting the Service(s) for any unauthorized commercial purpose.
Using the Service(s) to illegally transmit another’s intellectual property or other proprietary information without the owner’s or licensor’s permission.
Impersonate another person (via the use of an email address or otherwise) or otherwise misrepresent Yourself or the source of any message, email or call.
Using the Service(s) in any manner not authorized by Us or that would be in violation of the MSA.
In addition to any remedies or rights We may have in the MSA, We reserve the right, in our sole discretion, to determine if a Service is being used for any of the foregoing purposes or activities. Any violation or attempted violation of the AUP by You or Your End Users will constitute a violation of this AUP and a material breach of the MSA. We reserve the right to investigate incidents that may violate this Policy and provide requested information to third-parties who have provided notice to Us that they have been harmed by Your use of the Service(s) in violation of this AUP.
Service Level Agreement (SLA)
Last Modified: November 21, 2022
This Service Level Agreement (“SLA”) governs the use of the Essendex Services, as defined in the Master Service Agreement (“MSA”) and applies your use of our Service. This SLA does not apply to any trial or beta Service we provide to you. This SLA is incorporated by reference into the MSA that contains defined terms that are used in this SLA. If there is a conflict between terms contained in this SLA and the terms in the MSA, the MSA terms will take precedence. We reserve the right to change the terms of this SLA in accordance with the MSA.
Our Commitment to You
Services Availability: We will use commercially reasonable efforts to make our Service available to you free of network outages 99.99% of the time. If we do not meet this goal in a given month, you will be eligible for a service credit.
For purposes of calculating the service credit, an “Outage” is defined as an instance that is within our control in which no traffic can pass in or out of our Service for more than 15 consecutive minutes.
If we experience and Outage and fail to make the Service available to you, we will provide you with a service credit to your account for future use. We will not provide to you refunds and the service credit has no cash value. The service credit will be calculated as follows:
For each hour, or a percentage thereof, of Outages in any calendar month, we will issue to you a one-day credit on your next invoice. A one-day credit is equal to 1/30th of your monthly recurring charges for the specific Service that experiences the Outage, except for any applicable Pass-Through Fees. For any given month, you may apply a maximum of five one-day credits .
What We do not control:
For purposes of this SLA, an Outage does not include a Service interruption resulting from (i) a failure of your applications, equipment or facilities; (ii) our scheduled maintenance windows; (iii) a force majeure event; (iv) a carrier, aggregator or local access provider related outage or interruption; or (iv) if we have suspended or deactivated your account in accordance with the MSA.
Requesting a credit:
You may apply for a service credit by contacting us within 30 days of the Outage via technical support at 1-800-984-3710 or by contacting your account representative. Our business hours are from 9am to 6pm, Monday-Friday eastern time.
The service credit shall be your sole remedy and only for any unavailability or non-performance of the Services.