Terms & Conditions
PHONE2ACTION CLIENT TERMS AND CONDITIONS
Last Revised: 8/28/2018
These Phone2Action Terms and Conditions (“Terms and Conditions”), and all exhibits, service orders, statements of work, and schedules (collectively, “Schedules”) executed by the parties, which reference these Terms and Conditions, shall be referred to collectively as the “Agreement.” In the event of a conflict between the terms of this Agreement and any Schedule, the terms of this Agreement shall govern.
IMPORTANT — THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (“CLIENT“) AND PHONE2ACTION, INC. (HEREINAFTER “PHONE2ACTION”, “WE“, “US” OR “OUR”) THAT sets forth the legal terms and conditions for CLIENT’S use of PHONE2ACTION’S ONLINE ADVOCACY AND ENGAGEMENT PLATFORM AND OTHER services ordered pursuant to one (1) or more schedules (collectively, “Service(s)“).
BY accessing and/or USING THE SERVICES, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. Term. This Agreement will become effective on the effective date of the first Schedule entered into by the parties. Unless otherwise specified in a Schedule, the initial term of each Schedule (“Initial Term”) will begin on the effective date of the applicable Schedule (“Schedule Effective Date”) and will continue for one (1) year. Thereafter, the Schedule will automatically renew for successive one-year terms (each a “Renewal Term” and, together with the Initial Term, the “Schedule Term”), unless either party gives notice to the other of its intent not to renew at least sixty (60) calendar days prior to the expiration of the then current Term. Prices are subject to annual increases in accordance with Section 5 below. This Agreement will expire when all outstanding Schedules have expired or otherwise terminated in accordance with the terms of this Agreement.
2.1. Subscription Services.Client may, on a non-exclusive, non-transferable, non-assignable, limited basis, access and use, and allow its Authorized Users (as defined below), to access and use, Phone2Action’s Services (the “Services”) solely in connection with Client’s business purposes. For purposes of this Agreement, “Authorized Users” means Client’s (a) employees, contractors, agents and representatives, who are either fully bound to Client’s obligations under this Agreement by the terms of their employment or have, prior to accessing the Services, entered into an agreement with Phone2Action to protect the Confidential Information of Phone2Action with terms and conditions no less stringent than those contained in Sections 2.2(ii)-(iii) (Restrictions), 4.1 (Proprietary Rights), 8 (Confidentiality), and 11.9 (Survival), as Section 11.9 applies to Sections 2.2(ii)-(iii), 4.1, and 8, herein and to otherwise abide by the terms of this Agreement relating to the use and distribution of Phone2Action’s Confidential Information. During the Term of the Agreement, Client may also authorize third-party customers and members to use the Services for the purpose of furthering Client’s business purposes (“Supporters”), subject to the restrictions and conditions herein for Authorized Users. Notwithstanding any other provision herein, Client shall be responsible for all acts and omissions of Client’s Authorized Users and Supporters in connection with the Services and the use and distribution of Phone2Action’s Confidential Information.
2.2 Restrictions.Client shall only use, and shall ensure that its Authorized Users and Supporters only use, the Services in the manner described or permitted in this Agreement. Client is responsible for ensuring that its Authorized Users and Supporters are in full compliance with all relevant terms of this Agreement and any failure to comply will constitute a material breach of this Agreement by Client. Except as expressly authorized by this Agreement, Client will not, and will not allow any Authorized User, Supporter or other third-party to, (i) permit any third-party to access or use the Services other than as an Authorized User or Supporter, (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive any Phone2Action Information, including trade secrets, embodied in the Services, (iii) decompile, disassemble, reverse engineer, or otherwise attempt to use the application programming interface key (“API”) to develop a competing product or service to the Services, (iv) use the Services, API or any Phone2Action Confidential Information for any purpose not specifically authorized in writing by Phone2Action, including without limitation to develop a competing product or service to the Services, (v) use any Service, or allow the transfer, transmission, export, or re-export of any Service or portion thereof, in violation of any laws or regulations of any governmental agency, including without exception any export control laws or regulations administered by the U.S. Commerce Department or any other government agency, (vi) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice or any other notice or legend included on or embedded in any part of the Service, including, but not limited to, any screen displays, or any other products or materials provided by Phone2Action hereunder, or (vii) use the Services in a defamatory or obscene manner, or in violation of applicable foreign, federal, state, or local laws, rules, or regulations or in any manner whatsoever not authorized in writing by Phone2Action. Under no circumstances will Phone2Action be liable or responsible for any use, or any results obtained by the use, of the Services in conjunction with any services, software, or hardware that are not provided by Phone2Action. PHONE2ACTION ACCEPTS NO RISK, RESPONSIBILITY OR LIABILITY AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESSLY OR IMPLIED FOR ANY UNAUTHORIZED USE, AND ALL SUCH UNAUTHORIZED USE WILL BE AT AND TO CLIENT’S SOLE RISK AND LIABILITY.
2.3 Connectivity. Client and its Authorized Users and Supporters are solely responsible for securing all telecommunication and Internet connections required to access the Services, as well as all hardware and software necessary to access or use the Services. In addition to other third-party costs that may apply, Client agrees to be responsible for all telecommunications costs, fees, repairs and services required for and dedicated to Client’s access to the Services.
2.4 Availability. Phone2Action will use commercially reasonable efforts to make the Services available to Client at least 99.7% of the time each calendar month during the Term in accordance with the terms of Phone2Action’s Service Level Agreement (the “SLA”), which SLA may be amended or modified from time to time by Phone2Action at its sole discretion.
2.5 Information Security. Phone2Action maintains administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Those safeguards include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.4 (Compelled Disclosure) below, or (c) as Client expressly permit in writing. If Phone2Action processes any Personal Data (as defined in the DPA) of Data Subjects in the European Economic Area on Client’s behalf, in the provision of the Services, the terms of the Data Processing Addendum ("DPA"), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For the purposes of the Standard Contractual Clauses attached to the DPA, when and as applicable, Client is the data exporter, and Client's signing of this Agreement, shall be treated as signing of the Standard Contractual Clauses and their Appendices. The DPA shall only apply if Phone2Action processes any Personal Data of Data Subjects in the European Economic Area on Client’s behalf, in the provision of the Services.Phone2Action maintains administrative, technical, and physical safeguards to ensure that no Client Data will be accessed by any current or prospective client of Phone2Action and will maintain commercially reasonable administrative, technical, and physical safeguards to ensure that no Client Data will be combined or commingled with the data of any current or prospective client of Phone2Action, other than as permitted in Section 4.2. Phone2Action will report to Client as soon as commercially reasonable any unauthorized access or disclosure of Client Data of which Phone2Action becomes aware.
2.6 Consulting Services. During the term of the Agreement, Phone2Action may provide consulting and other professional services as particularly described in one or more Schedules to this Agreement. Such Schedules shall be governed by the terms of this Agreement, except to the extent specifically declared in any such Schedule, and may require the payment of additional fees to Phone2Action, also as set forth in such Schedule. Phone2Action shall have no obligation to perform any consulting or professional services without the execution of a Schedule containing mutually agreed upon terms.
3. Training and Support Services. Phone2Action shall provide training and support services during Phone2Action’s normal business hours in accordance with the package purchased by Client as described in the applicable Schedule. Additional training and support services may be purchased by Client by executing one or more Schedules in accordance with the procedure provided in Section 2.6 (Consulting Services). If Client reports a problem with the Services and requests Phone2Action to provide additional support services, and Phone2Action identifies the problem as caused by a software, application or device not under Phone2Action’s control, such support services shall be considered a professional service and shall be invoiced and paid according to the payment terms in Section 5 (Fees) and the applicable Schedule(s).
4. Intellectual Property Rights.
4.1 Proprietary Rights. Client acknowledges and agrees that (i) all Services are protected by intellectual property rights, as applicable, of Phone2Action and its vendors/licensors and that Client has no right to copy, assign, transfer or reproduce any Services or prepare any derivative works with respect to, or disclose Confidential Information pertaining to, any Services or any part of them, and (ii) that Phone2Action owns all right, title, and interest in and to the Services, including, but not limited to, any changes or modifications made to the Services, together with any and all ideas, processes, techniques, designs, architecture, and “know-how,” including Confidential Information including trade secrets embodying the Services. Under no circumstances will Client be entitled to receive or be deemed to receive title or rights to all or to any portion of the Services, title to which at all times will be held exclusively by Phone2Action. Client will preserve all Services from any liens, encumbrances, and claims of any individual or entity. Client will not contest the validity of any Phone2Action intellectual property rights, or any intellectual property rights of its vendors/licensors. Any such use of Phone2Action’s Confidential Information, or any breach of Section 2.2(ii)-(iii) (Restrictions), will constitute a material, non-curable breach of this Agreement. Subject to the limited rights expressly granted hereunder, Phone2Action reserves all of its rights, title and interest in and to the Services. No rights are granted to Client other than as expressly and specifically set forth in this Agreement.
4.2 Client Data. Phone2Action shall permit Client to submit documents, information, graphics, data, content, and other materials created or otherwise lawfully obtained by Client into the Services (“Client Data”), to Phone2Action for purposes of achieving Client’s business objectives under this Agreement. Except for the rights expressly granted herein, Client owns all right, title and interest in and to any Client Data that is owned by or proprietary to Client. To the extent Client submits Client Data to Phone2Action, Client grants Phone2Action a non- exclusive, world-wide, royalty-free license to use the Client Data for purposes of achieving Client’s business objectives under this Agreement. You will (a) be responsible for Users’ compliance with this Agreement and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data, the means by which You acquired Your Data and Your use of Your Data with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-SFDC Applications with which You use Services or Content. Client will be responsible for obtaining all rights, consents, permissions, and authorizations prior to providing the Client Data to Phone2Action for use as contemplated under this Agreement and hereby represents and warrants that all Client Data provided to Phone2Action has all necessary rights, permissions and authorizations. Phone2Action shall have the right to aggregate, analyze and derive anonymized statistical and usage data related to the Services (the “Anonymized Data”). As long as such Anonymized Data does not include any personally identifiable information of Client, its Authorized Users or Supporters, Phone2Action will be the owner of all right, title and interest in such Anonymized Data.
4.3 Third-Party Materials. The Services may contain products, services or information provided by third parties that are not owned or controlled by either Phone2Action or Client (“Third-Party Data”). Any acquisition by o f any Third-Party Data is solely between Client and the applicable Third-Party Data provider. Phone2Action does not warrant or support any products or services not offered by Phone2Action, unless expressly provided otherwise in an Order Form. The use of such Third-Party Data may be subject to a separate agreement between Client and the third-party providing any such Third-Party Data.
4.4 Feedback. Client may voluntarily provide suggestions, comments, or other feedback (collectively, “Feedback”) to Phone2Action with respect to its products and services. Phone2Action may use Feedback for any purpose without obligation or restriction of any kind. To the extent a license is required under Client’s intellectual property rights to make use of the Feedback, Client grants Phone2Action an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Phone2Action’s business, including the enhancement of the Services.
5.1 Generally, Phone2Action will invoice Client all fees associated with the Services, as further described in the applicable Schedule(s). Except as specifically provided in Phone2Action’s SLA, all fees shall be non-refundable. Client will pay all invoices within thirty (30) calendar days of invoice date. Payments not made within that time period will be subject to late charges equal to the lesser of (i) one and one-half percent (1.5%) per month of the overdue amount, or (ii) the maximum amount permitted under applicable law. In the event an invoice remains unpaid forty-five (45) or more calendar days from the invoice date, Phone2Action may, in its discretion, suspend the Services until the invoice is paid in full. Following the initial year of each Schedule Term, on sixty (60) days’ prior notice to Client, Phone2Action may, at its sole discretion, adjust any or all fees due hereunder. Client may terminate this Agreement with written notice to Phone2Action within thirty (30) calendar days of its receipt of notice from Phone2Action to adjust the fees; provided, however, that if Client fails to object to such adjustment in writing within the foregoing thirty (30) calendar days then Client will be deemed to have agreed to the adjustment.
5.2 Taxes. In addition to any other payments due under this Agreement, Client agrees to pay, indemnify, and hold harmless Phone2Action from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits or taxes which may be levied against Phone2Action.
6.1 Client Warranty. Client represents and warrants that (i) it has full power, capacity, and authority to enter into this Agreement and to grant the license(s) set forth in Section 4.2 (Client Data); (ii) any Client Data provided by Client to Phone2Action for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state, or local laws, rules, or regulations (including, but not limited to, applicable policies and laws related to spamming, privacy, or consumer protection) (collectively, “Applicable Law”); and (iii) its use of the Services will be in compliance with all Applicable Law.
6.2 Phone2Action Warranty. Phone2Action represents and warrants that (i) it has full power, capacity, and authority to enter into this Agreement, and during the Term, (ii) it shall use commercially reasonable efforts to screen the Services for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and (iii) it shall comply with Applicable Law in performing this Agreement. In the event of a breach of the warranty in Section 2.4 (Availability) and 6.3 (Disclaimer of Warranties), Phone2Action’s sole and exclusive liability and Client’s sole and exclusive remedy will be for Phone2Action to re- perform the defective Service. In the event Phone2Action is unable through reasonable efforts to correct the defective Service within thirty (30) calendar days from receipt of notice from Client of the failure of the Services to comply with the warranty, Client may elect to terminate this Agreement and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Services.
6.3 Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 6.2 (PHONE2ACTION WARRANTY), THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS AND FLAWS, AND WITHOUT WARRANTIES OF ANY KIND. PHONE2ACTION AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PHONE2ACTION OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF PHONE2ACTION’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CLIENT ACKNOWLEDGES AND AGREES THAT PHONE2ACTION AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT PHONE2ACTION IS NOT RESPONSIBLE FOR: (i) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA OR SOFTWARE; (ii) UNAUTHORIZED USERS SUCH AS HACKERS WHO MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CLIENT’S DATA, WEB-SITES, COMPUTERS, OR NETWORKS; OR (iii) THE ACCURACY OR COMPLETENESS OF ANY DATA PROVIDED BY PHONE2ACTION, INCLUDING ANY THIRD-PARTY DATA. CLIENT IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.
7.1 Phone2Action Indemnity. Phone2Action will defend, indemnify, and hold harmless Client from any and all claims and associated damages arising from a claim by a third-party that Client’s use of the Services infringes that third-party’s United States patent, copyright, or trade secret rights. The foregoing indemnification obligation of Phone2Action is contingent upon Client promptly notifying Phone2Action in writing of such claim within 10 days, permitting Phone2Action sole control of the defense and settlement of such claim, and providing Phone2Action reasonable assistance in connection therewith. If Phone2Action receives information about an infringement or claim related to the Services, Phone2Action in its discretion and at no cost to Client may (i) modify the Services so that they are no longer claimed to infringe, (ii) obtain a license for Client’s continued use of the Services in accordance with this Agreement, or (iii) terminate Client’s subscriptions for the Services upon 30 days’ written notice and refund Client any prepaid fees covering the remainder of the term. The defense and indemnification obligations set forth in this Section do not apply if (1) the allegation does not state with specificity that Phone2Action’s Services are the basis of the claim against Client; (2) a claim against Client arises from the use or combination of Phone2Action’s Services with software, hardware, data, or processes not provided by Phone2Action, if Phone2Action’s Services would not infringe without such combination; (3) a claim against Client is based on traditional online functionality that is or was in general use in the industry; or (4) a claim arises from Client Data submitted by Client or Client’s use of the Services in violation of this Agreement (collectively, the “Excluded Claims”). The provisions of this Section 7.1 (Phone2Action Indemnity) state the sole and exclusive obligations and liability of Phone2Action and its licensors and suppliers, and Client’s sole and exclusive remedy, for any claim of intellectual property infringement arising out of or relating to the Services or this Agreement, and are in lieu of any implied warranties of non- infringement and title, all of which are expressly disclaimed.
7.2 Client Indemnity. Client will defend, indemnify, and hold harmless Phone2Action from any and all claims and associated damages incurred by Phone2Action as a result of any claim by a third-party arising from (i) Client’s, its Authorized Users’ or Supporters’ use of the Services (to the extent not arising from a claim for which Phone2Action has an indemnification obligation pursuant to Section 7.1), (ii) the Excluded Claims, (iii) Client’s breach of Section 4.2 (Client Data), or (iv) any dispute between Client and any Authorized User or Client and any Supporter. The foregoing indemnification obligation of Client is contingent upon Phone2Action promptly notifying Client in writing of such claim and providing Client reasonable assistance in connection therewith.
8.1 Confidential Information. Each party agrees that all information supplied by one party and its affiliates and agents (collectively, the “Disclosing Party”) to the other party and its affiliates and agents (including any Authorized Users or Supporters of the Client) (the “Receiving Party”) including, without limitation: (i) prices, trade secrets, mask works, databases, hardware, software, designs and techniques, programs, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials, (ii) any unpublished information concerning research activities and plans, customers, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, and unpublished financial information, including information concerning revenues, profits and profit margins, and (iii) any information provided by the Disclosing Party to the Receiving Party received under circumstances reasonably interpreted as imposing an obligation of confidentiality, will be deemed confidential and proprietary to the Disclosing Party, regardless of whether such information was disclosed intentionally or unintentionally or marked as “confidential” or “proprietary” (“Confidential Information”). The Services are the Confidential Information of Phone2Action. The Client Data is the Confidential Information of Client.
8.2 Exclusions. Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (i) at the time of disclosure to Receiving Party was in the public domain or after disclosure becomes part of the public domain, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement; (ii) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Receiving Party; (iii) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (iv) has been independently developed by or on behalf of the Receiving Party without access to Confidential Information of the Disclosing Party.
8.3 Treatment of Confidential Information. With respect to each party’s Confidential Information, each party agrees as follows: (i) the Receiving Party will hold any and all Confidential Information it obtains in confidence and will use and permit use of Confidential Information solely to achieve the purposes of this Agreement; (ii) without limiting the foregoing, the Receiving Party will use at least the same degree of care, but no less than reasonable care, to avoid unauthorized disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of high importance; (iii) the Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; (iv) the Receiving Party currently has, and in the future will maintain in effect and enforce, rules and policies to protect against access to, or use or disclosure of, Confidential Information other than in accordance with this Agreement, including, without limitation, written instruction to, and agreements with, employees and agents who are bound by an obligation of confidentiality no less stringent than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information; (v) the Receiving Party expressly will instruct its employees and agents, including any Authorized Users and/or Supporters of Client, not to disclose Confidential Information to third-parties, including, without limitation, customers, subcontractors, or consultants, without the Disclosing Party’s prior written consent, and to use Confidential Information only as permitted by the terms of this Agreement; and (vi) the Receiving Party will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate fully with the Disclosing Party to protect, all proprietary rights in and ownership of its Confidential Information.
8.4 Compelled Disclosures.To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement, and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing if legally permitted to do so and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party, and any subsequent disclosure or use of Confidential Information that may result from such disclosure. Any such compelled disclosure by the Receiving Party will not otherwise affect the Receiving Party’s obligations hereunder.
8.5 Return of Confidential Information. On termination or expiration of this Agreement, Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information, and will also provide a written certification in form and substance reasonably satisfactory to the Disclosing Party that the Disclosing Party’s Confidential Information has been returned or destroyed. Notwithstanding the foregoing, the Receiving Party will not be required to return or destroy copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any records retention obligations imposed on Receiving Party by law or regulation.
8.6 Non-Exclusive Equitable Remedy. Each party acknowledges and agrees that due to the unique nature of either party’s Confidential Information there can be no adequate remedy at law for any breach of the Receiving Party’s obligations hereunder, that any such breach or threatened breach may allow such Receiving Party or third-parties to unfairly compete with the Disclosing Party, resulting in irreparable harm to such Disclosing Party. Therefore, upon any such breach or any threat thereof, the Disclosing Party will be entitled to appropriate equitable and injunctive relief from a court or forum of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might obtain under the arbitration provision of this Agreement. Any breach of this Section 8 (Confidentiality), or Section 2.2(ii)-(iii) (Restrictions) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching party.
8.7 Personal Data. In connection with this Agreement and performance of the Services, Phone2Action may be provided or obtain from Client, Personal Data (as defined below) pertaining to Client’s Authorized Users and Supporters and (ii) may need to Process (as defined below) such Personal Data and/or transfer it, all subject to the restrictions set forth in this Agreement and otherwise in compliance with all applicable foreign and domestic laws and regulations for the sole purpose of performing the Services. For purposes of this Agreement, “Personal Data” shall mean any information relating to an identified or identifiable individual that would permit such individual’s identity to be determined. For the avoidance of doubt, Personal Data shall include, but not be limited to, all “nonpublic personal information,” as defined under the Gramm-Leach-Bliley Act (15 United States Code (“U.S.C.”) §6801 et seq.), and “Personal Data” as that term is defined in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (“GDPR”). “Process” or “Processing” shall mean any operation or set of operations performed upon the Personal Data, whether or not by automatic means, including collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of Personal Data.
8.8 Treatment of Personal Data. Without limiting any other warranty or obligation specified in this Agreement, and in particular the confidentiality provisions of this Section 8 (Confidentiality), Phone2Action will not gather, store, log, archive, use or otherwise retain any Personal Data in any manner and will not disclose, distribute, sell, share, rent or otherwise transfer any Personal Data to any third-party, except as permitted in Sections 2.5 and 4.2, required to perform its obligations under this Agreement or as Phone2Action may be directed in advance in writing by Client. Phone2Action will use Personal Data only in compliance with Applicable Laws. Phone2Action will notify Client of any actual breach of confidentiality or security with regard to Personal Data that it becomes aware of. Phone2Action will reasonably cooperate with Client in investigating any breach it becomes aware of, including, but not limited to, the provision of system, application, and access logs, conducting forensics reviews of relevant systems, imaging relevant media, and making personnel available for interview, provided that any such investigation does not unreasonably disrupt Phone2Action’s business operations. On notice of such actual breach, Phone2Action will institute reasonable measures designed to maintain and preserve electronic evidence relating to such actual breach. Phone2Action will reasonably cooperate with Client and any regulator or other governmental entity having jurisdiction over and the lawful possession and use of the Personal Data, provided that such cooperation does not unreasonably disrupt Phone2Action’s business operations.
9. Limitation of Liability. NEITHER PHONE2ACTION NOR ITS AGENTS, VENDORS, LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS WILL HAVE ANY LIABILITY TO CLIENT OR ANY THIRD-PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, USE OF OR INABILITY TO USE THE SERVICES. THE TOTAL LIABILITY OF PHONE2ACTION AND ITS AGENTS, VENDORS, LICENSORS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, TO CLIENT OR ANY THIRD-PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CLIENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING WRITTEN NOTICE PROVIDED TO PHONE2ACTION OF THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE. IN NO EVENT WILL PHONE2ACTION, OR ITS AGENTS, VENDORS, LICENSORS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, BE LIABLE FOR ANY USE OF THE SERVICES, OR ANY ACT OR OMISSION, BY CLIENT, CLIENT’S AUTHORIZED USERS, OR CLIENT’S SUPPORTERS UNDER THIS AGREEMENT, AND CLIENT AGREES TO BE SOLELY LIABLE FOR ALL ACTS OR OMISSIONS OF ITS SUPPORTERS AND AUTHORIZED USERS NOTWITHSTANDING ANY ADDITIONAL AGREEMENTS BETWEEN PHONE2ACTION AND ANY AUTHORIZED USERS AND/OR SUPPORTERS. ANY DISPUTE BETWEEN CLIENT AND ITS AUTHORIZED USERS AND/OR SUPPORTERS SHALL BE BETWEEN THE CLIENT AND THE APPLICABLE AUTHORIZED USER OR SUPPORTER, AND PHONE2ACTION DISCLAIMS, AND CLIENT SHALL BE FULLY RESPONSIBLE FOR, ANY LIABILITY IN CONNECTION WITH SUCH DISPUTES.
10.1 Termination. This Agreement will terminate (i) thirty (30) calendar days after either party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day, or (ii) immediately upon written notice by either party if (a) a receiver is appointed for the other party or its property, (b) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors, or (c) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) calendar days from the date of commencement thereof.
10.2 Suspension of Services. Notwithstanding any other provision of this Agreement, Phone2Action may, in its sole discretion and without penalty, suspend access to the Services of Client or any and all Authorized User(s) or Supporter(s) for any reason, including: (i) to prevent damage or risk to, or degradation of, the Services; (ii) to comply with any law, regulation, court order, or other governmental request; (iii) to otherwise protect Phone2Action from potential legal liability; or (iv) in the event an invoice remains unpaid for forty-five (45) or more calendar days from the invoice date. Phone2Action will use reasonable efforts to provide Client with notice prior to or promptly following any suspension of the Services. Phone2Action will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved, to the extent applicable. Phone2Action may terminate this Agreement with immediate effect in the event that Phone2Action suspends service for the reasons set forth in items (i)-(iii). Nothing in this Section 10.2 (Suspension of Services) or in this Agreement should be construed as imposing any obligation or duty on Phone2Action to monitor use of the Services by any Client, Authorized User or Supporter.
10.3 Effect of Termination. Upon termination of this Agreement or termination of a particular Service for any reason: (i) Client’s access to and use of the Services, and that of its Authorized User(s) and Supporter(s), will cease as of the effective date of termination; (ii) Client will immediately pay to Phone2Action all sums due to Phone2Action for Services through the effective date of such expiration or termination (prorated as appropriate); and (iii) at Phone2Action’s standard time and materials rates, Phone2Action will reasonably cooperate with Client in deleting or downloading the Client Data.
11. General Provisions.
11.1 Publicity. Phone2Action and Client each agree not to use the name, trademark, service mark, or trade name of the other party, its divisions, subsidiaries, or affiliates in publicity releases, promotional material, promotional media or written advertising, including customer lists, without the prior written consent of the other party.
11.2 Force Majeure. Except for payment obligations, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including, without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
11.3 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Client without Phone2Action’s prior written consent, but may be assigned by Phone2Action without restriction.
11.4 Entire Agreement; Amendment. This Agreement sets forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties, written, oral or otherwise, have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein.
11.5 Governing Law, Venue, and Limitation of Actions.This Agreement will be construed according to, and the rights of the parties will be governed by, the laws of the State of Delaware, without reference to its conflict of laws rules. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal courts (if permitted by law and a party elects to file an action in federal court) located in the State of Delaware. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section 11.5 (Governing Law, Venue, and Limitation of Actions). Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section 11.5 (Governing Law, Venue, and Limitation of Actions). No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen. The prevailing party in any action or proceeding will be entitled to recover its reasonable attorneys’ fees and costs.
11.6 Relationship of the Parties. The parties agree that Phone2Action will perform its duties under this Agreement as an independent contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by Phone2Action who perform duties related to this Agreement will remain under the supervision, management, and control of Phone2Action. There are no third-party beneficiaries to this Agreement.
11.7 Severability. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.
11.8 Waiver. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
11.9 Survival. The following Sections will survive termination or expiration of this Agreement: Sections 2.2(ii)-(iii) (Restrictions), 4 (Intellectual Property), 6.3 (Disclaimer of Warranties), 7.1 (Phone2Action Indemnity) (for claims accruing prior to termination), 7.2 (Client Indemnity) (for claims accruing prior to termination), 8 (Confidentiality), 9 (Limitation of Liability), 10 (Termination), and 11 (General Provisions).
11.10 Notices. Any written notice or demand required by this Agreement will be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice will be effective as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, as of five (5) calendar days after the date of posting if the notice is transmitted by registered or certified mail. Any party may change the address at which it receives notices by giving written notice to the other party in the manner prescribed by this Section.