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Terms of Service
PLEASE READ THESE TERMS OF SERVICE (THESE “TERMS”) BEFORE USING THE PRODUCTS OR SERVICES OF MEGAPHONE, INC. (“MEGAPHONE”). BY ACCESSING OR USING MEGAPHONE’S PRODUCTS OR SERVICES, YOU, ON BEHALF OF THE CUSTOMER ENTITY IDENTIFIED ON THE ORDER FORM (“CUSTOMER” AND, TOGETHER WITH MEGAPHONE, THE “PARTIES” AND, EACH, A “PARTY”) SIGNIFY ACCEPTANCE OF AND AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE MEGAPHONE’S PRODUCTS OR SERVICES. WHEREAS, Megaphone has developed a referral marketing technology platform (the “Referral Marketing Platform”), which it provides to customers on a hosted basis to help such customers identify and engage with referral sources (“Referral Sources”) for the purpose of reaching prospective customers (such prospective customers, “Prospects”); and WHEREAS, Customer desires to obtain access to the Referral Marketing Platform pursuant to these Terms.NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Customer and Megaphone agree to the following terms:1. Definitions.
(a) “Authorized Users” means Customer’s employees, consultants, contractors, and agents who have been authorized by Customer to access and use the Referral Marketing Platform on behalf of Customer pursuant to these Terms.(b) “Megaphone IP” means the Referral Marketing Platform, the Documentation, and any and all intellectual property embodied in or related to the foregoing. For the avoidance of doubt, Megaphone IP does not include Customer Data.(c) “Customer Data” means information, data, and other content that is submitted, ingested, posted, or otherwise transmitted through the Referral Marketing Platform by an Authorized User. Customer Data includes Prospect Pixel Data (as defined in Section 4(b)).
(d) “Documentation” means Megaphone’s user manuals and guides relating to the Referral Marketing Platform available at usemegaphone.com/join.
(e) “Order Form” means an ordering document entered into by the Parties describing the fees, subscription length and related terms for Customer’s access to the Referral Marketing Platform and, if applicable, the terms related to any Support Services to be provided by Megaphone to Customer. (f) “Support Services” means the implementation and support services, if any, described in the applicable Order Form. 2. Access and Use.
(a) Access Rights. Subject to Customer’s full compliance with these Terms, Megaphone hereby grants Customer a non-exclusive, non-transferable right to access and use the Referral Marketing Platform during the Term, solely for Customer’s internal use and in accordance with Megaphone’s Documentation. Megaphone may, in its sole discretion modify, enhance or otherwise change the Referral Marketing Platform; provided that such changes do not materially limit or adversely affect the Referral Marketing Platform. (b) Use Restrictions. Customer shall not, directly or indirectly: (i) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Referral Marketing Platform or any software, Documentation or data related to the Referral Marketing Platform (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) copy, modify, translate, or create derivative works of the Referral Marketing Platform or Software, in whole or in part; (iii) use or access the Referral Marketing Platform or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Customer as set forth in these Terms; (iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Referral Marketing Platform or Software; (v) remove any product identification, proprietary, copyright or other notices from the Referral Marketing Platform or Software; (vi) use the Referral Marketing Platform or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including but not limited to any privacy laws, and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation); (vii) use the Referral Marketing Platform for the purpose of selling, marketing or otherwise posting any product, service or material that is libelous, tortuous, indecently depicts children, is of a profane, sexual, pornographic, or obscene nature, or is likely to result in retaliation against Megaphone by offended users, or any material that Megaphone determines in its sole discretion to be inappropriate; or (viii) permit any third party to do any of the foregoing. Customer will use reasonable efforts to prevent any unauthorized use of the Referral Marketing Platform or the Software, and will promptly notify Megaphone of any unauthorized use that comes to Customer’s attention and provide all reasonable cooperation to prevent and terminate such use.(c) Reservation of Rights. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Megaphone IP.
(d) Suspension. Notwithstanding anything to the contrary in these Terms, Megaphone may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Referral Marketing Platform if: (i) Megaphone reasonably determines that (A) there is a threat or attack on the Referral Marketing Platform or Software; (B) Customer’s or any Authorized User’s use of the Referral Marketing Platform disrupts or poses a security risk to the Referral Marketing Platform, the Software or to any other customer or vendor of Megaphone; (C) Customer, or any Authorized User, is using the Referral Marketing Platform for fraudulent or illegal activities or otherwise in violation of these Terms; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Megaphone’s provision of the Referral Marketing Platform to Customer or any Authorized End User is prohibited by applicable law; or (ii) in accordance with Section 6(a)(iii) (any such suspension described in subclause (i) or (ii), a “Service Suspension”). Megaphone shall use commercially reasonable efforts to provide prior notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Referral Marketing Platform following any Service Suspension. Megaphone shall use commercially reasonable efforts to resume providing access to the Referral Marketing Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Megaphone will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
3. Service Levels; Support Services.
(a) Availability. Megaphone shall use commercially reasonable efforts to keep the Referral Marketing Platform available on a 24 hour a day, 7 day a week basis, subject to scheduled downtime for maintenance purposes, unscheduled maintenance and systems outages. Notwithstanding the foregoing, Megaphone makes no guarantees that the Referral Marketing Platform will be available at any given time, and Megaphone shall not be liable to Customer for failure of accessibility to the Referral Marketing Platform.
(b) Support Services. Megaphone will provide the Support Services, if any, which are set forth in the Order Form.4. Security and Privacy. (a) Security. Megaphone will maintain commercially reasonable administrative, physical and technical safeguards for the Referral Marketing Platform designed to protect against the accidental or unauthorized access, use, alteration or disclosure of Customer Data uploaded to, or ingested by, the Referral Marketing Platform and processed or stored on a computer and/or computer network owned or controlled by Megaphone in connection with the Referral Marketing Platform. If, at any time, Megaphone fails to comply with this Section, Customer may promptly notify Megaphone in writing of any such noncompliance. Megaphone will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate these Terms as its sole and exclusive remedy for such noncompliance. (b) Privacy. The Parties agree that, with respect to the California Consumer Privacy Act (and its successor legislation), Megaphone acts as a “service provider” with respect to all Customer Data provided or made available by Customer to the Referral Marketing Platform. Without limiting the foregoing, the Parties agree that Megaphone acts as a “service provider” with respect to any data that may be collected through the use of a cookie, pixel or other tracking device placed through the Landing Page (as defined in Section 5(c)) on the browser of individuals associated with Prospects (such data, “Prospect Pixel Data”) and shall use such Prospect Pixel Data solely in furtherance of Customer. In addition, as between the Parties, Customer is responsible for ensuring that Customer or Customer’s Referral Sources possess the necessary rights to contact Prospects with offers to purchase Customer’s products and services. Megaphone does not send direct marketing communications to Prospects and does not exercise control over the content, timing, or recipients of any such communications. As a result, Megaphone is not responsible for any alleged violation of any applicable law, rule or regulation in connection with communications to Prospects, including the CAN-SPAM Act of 2003 or the Privacy and Electronic Communications Directive 2002/58/EC (the “ePrivacy Directive”), or any national law implementing the ePrivacy Directive. 5. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Referral Marketing Platform resulting from access provided by Customer, including all acts and omissions of Authorized Users. Customer shall make all Authorized Users aware of these Terms’ provisions as applicable to such Authorized User’s use of the Referral Marketing Platform, and shall cause Authorized Users to comply with such provisions. Customer shall ensure that each Authorized User will: (i) be responsible for the security and/or use of his or her logon credentials; (ii) not disclose such logon credentials to any person or entity; (iii) not permit any other person or entity to use his or her logon identifier; (iv) use the Referral Marketing Platform in accordance with all applicable laws, rules and regulations and (v) use the Referral Marketing Platform in accordance with these Terms.
(b) Third Party Services. Customer acknowledges and agrees that the Referral Marketing Platform operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Megaphone is not responsible for the operation of any Third Party Services nor the availability or operation of the Referral Marketing Platform to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Megaphone does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.(c) Customer Branding. Customer is responsible for providing Megaphone samples of all logos and other branding assets (“Customer Assets”) to be included in a Customer branded landing page that will be accessible to Prospects (the “Landing Page”). Customer hereby grants Megaphone a royalty-free, non-exclusive license to use such Customer Assets on the Landing Page throughout the Term. Megaphone’s use of the Customer Assets will adhere to the usage guidelines provided by Customer, and all goodwill arising out of the use of such Customer Assets shall inure to the sole benefit of Customer.
6. Fees and Payment.
(a) Fees. Customer shall pay Megaphone the fees (“Fees”) as set forth in Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in Order Form. If Customer fails to make any payment when due, without limiting Megaphone’s other rights and remedies: (i) Megaphone may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Megaphone for all costs incurred by Megaphone in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, Megaphone may suspend Customer’s and its Authorized Users’ access to any portion or all of the Referral Marketing Platform until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Megaphone’s income.
7. Confidential Information; Feedback. (a) Confidentiality. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, 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 is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees or consultants who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall, to the extent permitted pursuant to applicable law, rule or regulation, first have given written notice to the other Party and made a reasonable effort to obtain a protective order or (ii) to establish a Party’s rights under these Terms, including to make required court filings. Megaphone may use Customer Data to (y) provide the Referral Marketing Platform and Support Services to Customer and perform these Terms and (z) to test, improve, and provide Megaphone products and services; provided, that Megaphone will disclose Customer Data used for the purposes described in this clause (z) solely in aggregated and anonymized form and in a manner that does not disclose Customer Data or Confidential Information of Customer. (b) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Megaphone by mail, email, telephone, or otherwise, suggesting or recommending changes to the Megaphone IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), Megaphone is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. (d) Return or Destruction. On the expiration or termination of the Terms, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies.
8. Warranties and Disclaimers.
(a) Mutual. Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of the state of its organization; (ii) it has full power and authority to enter into these Terms, to carry out its obligations under these Terms, and to grant the rights granted to the other Party herein; (iii) the execution of these Terms by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; and (iv) it and its performance hereunder will comply with all applicable laws and regulations.(b) Megaphone. Megaphone warrants that (i) it will not knowingly include, in any Software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data, and (ii) it will provide the Support Services, if applicable, in a professional and workmanlike manner.
(c) Disclaimers. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, THE REFERRAL MARKETING PLATFORM AND THE SUPPORT SERVICES ARE PROVIDED “AS IS” AND MEGAPHONE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MEGAPHONE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, MEGAPHONE MAKES NO WARRANTY OF ANY KIND THAT THE REFERRAL MARKETING PLATFORM, SUPPORT SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Indemnification.
(a) Megaphone Indemnification. Megaphone shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that Customer’s permitted use of the Referral Marketing Platform infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies Megaphone in writing of the claim, cooperates with Megaphone, and allows Megaphone sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Megaphone, at Megaphone’s sole discretion, to (A) modify or replace the Referral Marketing Platform, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue to use the Referral Marketing Platform in substantially the same manner as contemplated in these Terms and the applicable Order Form. If Megaphone determines that neither alternative is reasonably available, Megaphone may terminate these Terms and each outstanding Order Form, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 9(a) will not apply with respect to portions or components of the Referral Marketing Platform (I) not created by Megaphone, including but not limited to Customer Data or Third-Party Products, (II) that are modified by anyone other than Megaphone where the alleged infringement relates to such modification, (III) combined with other products, processes or materials where the alleged infringement relates to such combination, (IV) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (V) where Customer directed the development of the feature or functionality that gives rise to the alleged infringement; or (VI) where Customer’s use thereof is not strictly in accordance with these Terms and the Documentation.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Megaphone’s option, defend Megaphone from and against any Losses resulting from (i) any Third-Party Claim that the Customer Data infringes or misappropriates such third party’s intellectual property rights; (ii) any Third-Party Claims excluded from indemnity obligation in Section 9(a) above; (iii) any Third-Party Claims alleging that Customer’s products or services violate applicable laws, rules or regulations; (iv) any Third-Party Claims alleging that any Prospect communications or other sales efforts by or on behalf of Customer violate any applicable laws, rules or regulations; (v) any Third-Party Claims alleging that the Customer Assets infringe, misappropriate or otherwise violate the intellectual property or proprietary rights of any third-party; or (vi) any Third-Party Claims otherwise resulting from Customer’s or any Authorized User’s violation of these Terms; provided, in each case that, if Megaphone requests Customer to assume the defense of any such Third-Party Claim, Customer may not settle any Third-Party Claim against Megaphone unless Megaphone consents to such settlement, and further provided that Megaphone will have the right, at its option, to defend itself against any such Third-Party Claim at Customer’s expense or to participate in the defense thereof by counsel of its own choice. (c) Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE REFERRAL MARKETING PLATFORM INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability. (a) Indirect Liabilities. IN NO EVENT WILL MEGAPHONE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER MEGAPHONE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. (c) Direct Liability. IN NO EVENT WILL MEGAPHONE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO MEGAPHONE UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.(d) Exclusions. THE FOREGOING LIMITATIONS IN THIS SECTION 10 SHALL NOT LIMIT MEGAPHONE’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 9(A).11. Term and Termination.
(a) Term. These Terms and Customer’s subscription to the Referral Marketing Platform pursuant to each Order Form shall become effective on the date the Customer first enters into an Order Form and, unless earlier terminated pursuant to these Terms, will continue in effect for the initial term stated on such Order Form (the “Initial Term”). These Terms and each such Order Form will automatically renew for successive one (1) year terms (each a “Renewal Term” and together with the Initial Term, the “Term”) unless earlier terminated pursuant to these Terms or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Initial Term or Renewal Term, as applicable. With respect to each Renewal Term of an Order Form, Megaphone may increase the Fees payable pursuant to such Order Form upon notice provided to Customer at least sixty (60) days prior to the commencement of such Renewal Term.
(b) Termination for Breach. In addition to any other express termination right set forth in these Terms: (i) either Party may terminate these Terms, effective on written notice to the other Party, if the other Party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days (or 10 days for Customer’s failure to pay any amount when due) after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms, Customer shall immediately discontinue use of the Referral Marketing Platform. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(d) Survival. This Section 11(d) and Sections 1, 6, 7, 8(c), 9, 10, and 13 survive any termination or expiration of these Terms. No other provisions of these Terms survive the expiration or earlier termination of these Terms.12. Beta Services. From time to time, Megaphone may, in its sole discretion, invite you to use, on a trial basis, pre-release or beta features that are in development and not yet available to all customers (“Beta Services”). Beta Services may be subject to additional terms and conditions, which Megaphone will provide to you prior to your use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Megaphone’s Confidential Information and subject to the confidentiality provisions in these Terms. Customer agrees that it will not make any public statements or otherwise disclose its participation in the Beta Services without Megaphone’s prior written consent. Megaphone makes no representations or warranties that the Beta Services will function. Megaphone may discontinue the Beta Services at any time in its sole discretion, with or without notice to Customer. Megaphone will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. Megaphone may change or not release a final or commercial version of a Beta Service in our sole discretion.
13. Miscellaneous.
(a) Entire Agreement. These Terms, together with the Order Forms and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms, the Order Forms or any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms, excluding its Exhibits; (ii) second, the applicable Order Form; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission to the intended recipient) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall Megaphone be liable to Customer or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond Megaphone’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, epidemic or pandemic, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each Party. Notwithstanding the foregoing, Megaphone may update these Terms from time to time, and such updated Terms will apply to any new Order Form entered into following such update as well as any renewal or extension of an Order Form following such update. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the state or federal courts located in Dallas, Texas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, except that either Party may assign these Terms without consent of the other Party to its successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which these Terms relate. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. The Referral Marketing Platform utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Referral Marketing Platform or the underlying software or technology to, or make the Referral Marketing Platform or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Referral Marketing Platform or the underlying software or technology available outside the US.
(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. (j) Publicity. During the Term, Megaphone may include Customer’s name and logo in its customer lists, including on its website. To the extent Customer provides standard trademark usage guidelines, Megaphone shall use Customer’s name and logo in accordance with such guidelines.(k) Interpretation. For purposes of interpreting these Terms, (a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (b) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to these Terms as a whole and not to any particular section or paragraph; (c) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; (d) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy; and (e) the captions and section and paragraph headings used in these Terms are inserted for convenience only and will not affect the meaning or interpretation of these Terms.
(a) “Authorized Users” means Customer’s employees, consultants, contractors, and agents who have been authorized by Customer to access and use the Referral Marketing Platform on behalf of Customer pursuant to these Terms.(b) “Megaphone IP” means the Referral Marketing Platform, the Documentation, and any and all intellectual property embodied in or related to the foregoing. For the avoidance of doubt, Megaphone IP does not include Customer Data.(c) “Customer Data” means information, data, and other content that is submitted, ingested, posted, or otherwise transmitted through the Referral Marketing Platform by an Authorized User. Customer Data includes Prospect Pixel Data (as defined in Section 4(b)).
(d) “Documentation” means Megaphone’s user manuals and guides relating to the Referral Marketing Platform available at usemegaphone.com/join.
(e) “Order Form” means an ordering document entered into by the Parties describing the fees, subscription length and related terms for Customer’s access to the Referral Marketing Platform and, if applicable, the terms related to any Support Services to be provided by Megaphone to Customer. (f) “Support Services” means the implementation and support services, if any, described in the applicable Order Form. 2. Access and Use.
(a) Access Rights. Subject to Customer’s full compliance with these Terms, Megaphone hereby grants Customer a non-exclusive, non-transferable right to access and use the Referral Marketing Platform during the Term, solely for Customer’s internal use and in accordance with Megaphone’s Documentation. Megaphone may, in its sole discretion modify, enhance or otherwise change the Referral Marketing Platform; provided that such changes do not materially limit or adversely affect the Referral Marketing Platform. (b) Use Restrictions. Customer shall not, directly or indirectly: (i) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Referral Marketing Platform or any software, Documentation or data related to the Referral Marketing Platform (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) copy, modify, translate, or create derivative works of the Referral Marketing Platform or Software, in whole or in part; (iii) use or access the Referral Marketing Platform or Software for timesharing or service bureau purposes or for any purpose other than for the internal benefit of Customer as set forth in these Terms; (iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Referral Marketing Platform or Software; (v) remove any product identification, proprietary, copyright or other notices from the Referral Marketing Platform or Software; (vi) use the Referral Marketing Platform or Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including but not limited to any privacy laws, and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation); (vii) use the Referral Marketing Platform for the purpose of selling, marketing or otherwise posting any product, service or material that is libelous, tortuous, indecently depicts children, is of a profane, sexual, pornographic, or obscene nature, or is likely to result in retaliation against Megaphone by offended users, or any material that Megaphone determines in its sole discretion to be inappropriate; or (viii) permit any third party to do any of the foregoing. Customer will use reasonable efforts to prevent any unauthorized use of the Referral Marketing Platform or the Software, and will promptly notify Megaphone of any unauthorized use that comes to Customer’s attention and provide all reasonable cooperation to prevent and terminate such use.(c) Reservation of Rights. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Megaphone IP.
(d) Suspension. Notwithstanding anything to the contrary in these Terms, Megaphone may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Referral Marketing Platform if: (i) Megaphone reasonably determines that (A) there is a threat or attack on the Referral Marketing Platform or Software; (B) Customer’s or any Authorized User’s use of the Referral Marketing Platform disrupts or poses a security risk to the Referral Marketing Platform, the Software or to any other customer or vendor of Megaphone; (C) Customer, or any Authorized User, is using the Referral Marketing Platform for fraudulent or illegal activities or otherwise in violation of these Terms; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Megaphone’s provision of the Referral Marketing Platform to Customer or any Authorized End User is prohibited by applicable law; or (ii) in accordance with Section 6(a)(iii) (any such suspension described in subclause (i) or (ii), a “Service Suspension”). Megaphone shall use commercially reasonable efforts to provide prior notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Referral Marketing Platform following any Service Suspension. Megaphone shall use commercially reasonable efforts to resume providing access to the Referral Marketing Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Megaphone will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
3. Service Levels; Support Services.
(a) Availability. Megaphone shall use commercially reasonable efforts to keep the Referral Marketing Platform available on a 24 hour a day, 7 day a week basis, subject to scheduled downtime for maintenance purposes, unscheduled maintenance and systems outages. Notwithstanding the foregoing, Megaphone makes no guarantees that the Referral Marketing Platform will be available at any given time, and Megaphone shall not be liable to Customer for failure of accessibility to the Referral Marketing Platform.
(b) Support Services. Megaphone will provide the Support Services, if any, which are set forth in the Order Form.4. Security and Privacy. (a) Security. Megaphone will maintain commercially reasonable administrative, physical and technical safeguards for the Referral Marketing Platform designed to protect against the accidental or unauthorized access, use, alteration or disclosure of Customer Data uploaded to, or ingested by, the Referral Marketing Platform and processed or stored on a computer and/or computer network owned or controlled by Megaphone in connection with the Referral Marketing Platform. If, at any time, Megaphone fails to comply with this Section, Customer may promptly notify Megaphone in writing of any such noncompliance. Megaphone will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate these Terms as its sole and exclusive remedy for such noncompliance. (b) Privacy. The Parties agree that, with respect to the California Consumer Privacy Act (and its successor legislation), Megaphone acts as a “service provider” with respect to all Customer Data provided or made available by Customer to the Referral Marketing Platform. Without limiting the foregoing, the Parties agree that Megaphone acts as a “service provider” with respect to any data that may be collected through the use of a cookie, pixel or other tracking device placed through the Landing Page (as defined in Section 5(c)) on the browser of individuals associated with Prospects (such data, “Prospect Pixel Data”) and shall use such Prospect Pixel Data solely in furtherance of Customer. In addition, as between the Parties, Customer is responsible for ensuring that Customer or Customer’s Referral Sources possess the necessary rights to contact Prospects with offers to purchase Customer’s products and services. Megaphone does not send direct marketing communications to Prospects and does not exercise control over the content, timing, or recipients of any such communications. As a result, Megaphone is not responsible for any alleged violation of any applicable law, rule or regulation in connection with communications to Prospects, including the CAN-SPAM Act of 2003 or the Privacy and Electronic Communications Directive 2002/58/EC (the “ePrivacy Directive”), or any national law implementing the ePrivacy Directive. 5. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Referral Marketing Platform resulting from access provided by Customer, including all acts and omissions of Authorized Users. Customer shall make all Authorized Users aware of these Terms’ provisions as applicable to such Authorized User’s use of the Referral Marketing Platform, and shall cause Authorized Users to comply with such provisions. Customer shall ensure that each Authorized User will: (i) be responsible for the security and/or use of his or her logon credentials; (ii) not disclose such logon credentials to any person or entity; (iii) not permit any other person or entity to use his or her logon identifier; (iv) use the Referral Marketing Platform in accordance with all applicable laws, rules and regulations and (v) use the Referral Marketing Platform in accordance with these Terms.
(b) Third Party Services. Customer acknowledges and agrees that the Referral Marketing Platform operates on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Megaphone is not responsible for the operation of any Third Party Services nor the availability or operation of the Referral Marketing Platform to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Megaphone does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.(c) Customer Branding. Customer is responsible for providing Megaphone samples of all logos and other branding assets (“Customer Assets”) to be included in a Customer branded landing page that will be accessible to Prospects (the “Landing Page”). Customer hereby grants Megaphone a royalty-free, non-exclusive license to use such Customer Assets on the Landing Page throughout the Term. Megaphone’s use of the Customer Assets will adhere to the usage guidelines provided by Customer, and all goodwill arising out of the use of such Customer Assets shall inure to the sole benefit of Customer.
6. Fees and Payment.
(a) Fees. Customer shall pay Megaphone the fees (“Fees”) as set forth in Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in Order Form. If Customer fails to make any payment when due, without limiting Megaphone’s other rights and remedies: (i) Megaphone may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Megaphone for all costs incurred by Megaphone in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, Megaphone may suspend Customer’s and its Authorized Users’ access to any portion or all of the Referral Marketing Platform until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Megaphone’s income.
7. Confidential Information; Feedback. (a) Confidentiality. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, 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 is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees or consultants who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall, to the extent permitted pursuant to applicable law, rule or regulation, first have given written notice to the other Party and made a reasonable effort to obtain a protective order or (ii) to establish a Party’s rights under these Terms, including to make required court filings. Megaphone may use Customer Data to (y) provide the Referral Marketing Platform and Support Services to Customer and perform these Terms and (z) to test, improve, and provide Megaphone products and services; provided, that Megaphone will disclose Customer Data used for the purposes described in this clause (z) solely in aggregated and anonymized form and in a manner that does not disclose Customer Data or Confidential Information of Customer. (b) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Megaphone by mail, email, telephone, or otherwise, suggesting or recommending changes to the Megaphone IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), Megaphone is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. (d) Return or Destruction. On the expiration or termination of the Terms, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies.
8. Warranties and Disclaimers.
(a) Mutual. Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of the state of its organization; (ii) it has full power and authority to enter into these Terms, to carry out its obligations under these Terms, and to grant the rights granted to the other Party herein; (iii) the execution of these Terms by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; and (iv) it and its performance hereunder will comply with all applicable laws and regulations.(b) Megaphone. Megaphone warrants that (i) it will not knowingly include, in any Software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data, and (ii) it will provide the Support Services, if applicable, in a professional and workmanlike manner.
(c) Disclaimers. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, THE REFERRAL MARKETING PLATFORM AND THE SUPPORT SERVICES ARE PROVIDED “AS IS” AND MEGAPHONE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. MEGAPHONE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, MEGAPHONE MAKES NO WARRANTY OF ANY KIND THAT THE REFERRAL MARKETING PLATFORM, SUPPORT SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Indemnification.
(a) Megaphone Indemnification. Megaphone shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that Customer’s permitted use of the Referral Marketing Platform infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Customer promptly notifies Megaphone in writing of the claim, cooperates with Megaphone, and allows Megaphone sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Megaphone, at Megaphone’s sole discretion, to (A) modify or replace the Referral Marketing Platform, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue to use the Referral Marketing Platform in substantially the same manner as contemplated in these Terms and the applicable Order Form. If Megaphone determines that neither alternative is reasonably available, Megaphone may terminate these Terms and each outstanding Order Form, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 9(a) will not apply with respect to portions or components of the Referral Marketing Platform (I) not created by Megaphone, including but not limited to Customer Data or Third-Party Products, (II) that are modified by anyone other than Megaphone where the alleged infringement relates to such modification, (III) combined with other products, processes or materials where the alleged infringement relates to such combination, (IV) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (V) where Customer directed the development of the feature or functionality that gives rise to the alleged infringement; or (VI) where Customer’s use thereof is not strictly in accordance with these Terms and the Documentation.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Megaphone’s option, defend Megaphone from and against any Losses resulting from (i) any Third-Party Claim that the Customer Data infringes or misappropriates such third party’s intellectual property rights; (ii) any Third-Party Claims excluded from indemnity obligation in Section 9(a) above; (iii) any Third-Party Claims alleging that Customer’s products or services violate applicable laws, rules or regulations; (iv) any Third-Party Claims alleging that any Prospect communications or other sales efforts by or on behalf of Customer violate any applicable laws, rules or regulations; (v) any Third-Party Claims alleging that the Customer Assets infringe, misappropriate or otherwise violate the intellectual property or proprietary rights of any third-party; or (vi) any Third-Party Claims otherwise resulting from Customer’s or any Authorized User’s violation of these Terms; provided, in each case that, if Megaphone requests Customer to assume the defense of any such Third-Party Claim, Customer may not settle any Third-Party Claim against Megaphone unless Megaphone consents to such settlement, and further provided that Megaphone will have the right, at its option, to defend itself against any such Third-Party Claim at Customer’s expense or to participate in the defense thereof by counsel of its own choice. (c) Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE REFERRAL MARKETING PLATFORM INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability. (a) Indirect Liabilities. IN NO EVENT WILL MEGAPHONE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER MEGAPHONE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. (c) Direct Liability. IN NO EVENT WILL MEGAPHONE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO MEGAPHONE UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.(d) Exclusions. THE FOREGOING LIMITATIONS IN THIS SECTION 10 SHALL NOT LIMIT MEGAPHONE’S INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 9(A).11. Term and Termination.
(a) Term. These Terms and Customer’s subscription to the Referral Marketing Platform pursuant to each Order Form shall become effective on the date the Customer first enters into an Order Form and, unless earlier terminated pursuant to these Terms, will continue in effect for the initial term stated on such Order Form (the “Initial Term”). These Terms and each such Order Form will automatically renew for successive one (1) year terms (each a “Renewal Term” and together with the Initial Term, the “Term”) unless earlier terminated pursuant to these Terms or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Initial Term or Renewal Term, as applicable. With respect to each Renewal Term of an Order Form, Megaphone may increase the Fees payable pursuant to such Order Form upon notice provided to Customer at least sixty (60) days prior to the commencement of such Renewal Term.
(b) Termination for Breach. In addition to any other express termination right set forth in these Terms: (i) either Party may terminate these Terms, effective on written notice to the other Party, if the other Party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days (or 10 days for Customer’s failure to pay any amount when due) after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms, Customer shall immediately discontinue use of the Referral Marketing Platform. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
(d) Survival. This Section 11(d) and Sections 1, 6, 7, 8(c), 9, 10, and 13 survive any termination or expiration of these Terms. No other provisions of these Terms survive the expiration or earlier termination of these Terms.12. Beta Services. From time to time, Megaphone may, in its sole discretion, invite you to use, on a trial basis, pre-release or beta features that are in development and not yet available to all customers (“Beta Services”). Beta Services may be subject to additional terms and conditions, which Megaphone will provide to you prior to your use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto will be considered Megaphone’s Confidential Information and subject to the confidentiality provisions in these Terms. Customer agrees that it will not make any public statements or otherwise disclose its participation in the Beta Services without Megaphone’s prior written consent. Megaphone makes no representations or warranties that the Beta Services will function. Megaphone may discontinue the Beta Services at any time in its sole discretion, with or without notice to Customer. Megaphone will have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. Megaphone may change or not release a final or commercial version of a Beta Service in our sole discretion.
13. Miscellaneous.
(a) Entire Agreement. These Terms, together with the Order Forms and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms, the Order Forms or any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms, excluding its Exhibits; (ii) second, the applicable Order Form; and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission to the intended recipient) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall Megaphone be liable to Customer or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond Megaphone’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, epidemic or pandemic, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each Party. Notwithstanding the foregoing, Megaphone may update these Terms from time to time, and such updated Terms will apply to any new Order Form entered into following such update as well as any renewal or extension of an Order Form following such update. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the state or federal courts located in Dallas, Texas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, except that either Party may assign these Terms without consent of the other Party to its successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which these Terms relate. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. The Referral Marketing Platform utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Referral Marketing Platform or the underlying software or technology to, or make the Referral Marketing Platform or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Referral Marketing Platform or the underlying software or technology available outside the US.
(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. (j) Publicity. During the Term, Megaphone may include Customer’s name and logo in its customer lists, including on its website. To the extent Customer provides standard trademark usage guidelines, Megaphone shall use Customer’s name and logo in accordance with such guidelines.(k) Interpretation. For purposes of interpreting these Terms, (a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (b) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to these Terms as a whole and not to any particular section or paragraph; (c) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; (d) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy; and (e) the captions and section and paragraph headings used in these Terms are inserted for convenience only and will not affect the meaning or interpretation of these Terms.
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