Customer desires to use Betasend’s online customer management services presently offered or available, (the “Services“) using Betasend’s Customer’s instructions and other documentation of Betasend (the “Betasend Documentation“). Customer management services include using Betasend software to get customer information from customer emails, websites and similar opt-ins, and transactions (the “Communications“), seeing data resulting from the Communications, and using Betasend’s marketing platform to send messages to end customers through email and SMS text messages. Betasend will permit Customer to use the Services and the Betasend Documentation subject to the terms and conditions of these Terms of Service. By using the Services, Customer agrees to all of the terms and conditions of these Terms of Service, including but not limited to the limitations on liability set forth herein. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, CUSTOMER IS NOT PERMITTED TO USE THE SERVICES.
Agreement to Provide Services. Subject to the terms and conditions of these Terms of Service and during the term of these Terms of Service, Betasend will provide to Customer access to the Services purchased through and described on the Betasend website at www.betasend.com and its sub domains (the “Betasend Site“), or purchased through an Authorized Reseller. Customer’s Services start on the date of the beginning of the Term as defined in Section 12. Customer understands and agrees that by using the on-line registration process and consenting to the terms of these Terms of Service, Customer has made a binding selection of the type of Services to be provided and all associated specifications, prices, policies and documentation related to the delivery of the Services.
Service Orders. Each Service Order is hereby incorporated into these Terms of Service by this reference and is subject to the terms and conditions of these Terms of Service; provided, however, that in the event of conflict with the terms contained in any Service Order, the terms contained in these Terms of Service shall control. In the event of any conflict between the terms of these Terms of Service or a Service Order and any Customer-issued order form or purchase order, the terms of these Terms of Service and the applicable Service Order shall control.
License. Subject to the terms and conditions of these Terms of Service, Betasend grants to Customer a non-exclusive, non-transferable, revocable license during the Term (as defined in Section 12), without the right to sublicense, to (i) use the software and other technology supplied by Betasend to enable Customer to receive or access the Services (the “Betasend Platform“) solely for the purposes of accessing and using the Services; and (ii) use the Betasend Documentation in connection with the Customer’s use thereof. Except for the limited licenses granted hereunder, Betasend reserves all rights not expressly granted and no such additional rights may be implied.
Ownership. Customer acknowledges that (i) all right, title and interest in and to the Services, including the Betasend Platform and Betasend Documentation therein, and all patents, copyrights, trade secrets, trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and other proprietary rights embodied therein or associated therewith, are and shall remain with Betasend or its third party licensors; (ii) no right or interest in the Services or the Betasend Platform is conveyed other than the limited licenses granted herein; (iii) the Services, the Betasend Documentation and the Betasend Platform are protected by copyright and other intellectual property laws; and (iv) Betasend asserts that the Services, the Betasend Documentation and the Betasend Platform embody valuable confidential and secret information of Betasend or its licensors, the development of which required the expenditure of considerable time and money.
No Modification. Customer agrees that Customer shall not (i) modify or alter the Betasend Platform; (ii) create derivative works of the Betasend Platform; (iii) decompile, disassemble, decode or reverse engineer the Betasend Platform, translate the Betasend Platform or otherwise attempt to learn the source code, structure, algorithms or internal ideas underlying the Betasend Platform or reduce the Betasend Platform by any other means to a human perceivable form; or (iv) bypass, delete or disable any copy protection mechanisms or any security mechanisms.
License to Customer Marketing Content. In connection with the Services, Customer grants Betasend and Third-Party Partner Site(s) a non-exclusive, transferable, royalty-free license during the Term to use Customer’s trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols and all other marketing or promotional content provided by Customer to Betasend (“Customer Marketing Content“) in connection with the advertising, promotion and sale of Customer’s products, services or business, and to sublicense such Customer Marketing Content to third parties in connection with the provision of such Services. Customer acknowledges that any on-line coupon or similar marketing offer, deal or advertisement to market its products or services (each, an “Offer“) posted on Third-Party Partner Site(s) may not carry the Betasend trademark or branding. Customer further acknowledges and agrees that Betasend or its sublicensees may modify Customer Marketing Content in order to effectively provide the Services ordered in Betasend’s reasonable discretion, provided, that none of such modifications shall materially alter the terms of any Offer without Customer’s prior written consent.
Certain Other Obligations. Customer agrees that Customer (i) shall not sell, transfer, lend, provide or otherwise make available, or disclose to third parties, the Services or any components thereof; (ii) shall not obscure, alter or remove any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation appearing on or contained within the Services, the Betasend Platform, the Documentation or on any other Betasend materials; and (iii) shall take all reasonable precautions to prevent unauthorized or improper use of the Services.
Non-Assertion of Claims. During and after the term of these Terms of Service, Customer will not assert, nor will Customer authorize, assist, or encourage any third party to assert, against Betasend or any related party, any patent infringement or other intellectual property infringement claim with respect to the Betasend Platform, Betasend Documentation or the Services.
Feedback and Comments. In the event Customer elects, in connection with any of the Services, to communicate to Betasend (either directly or through an Authorized Reseller) suggestions for improvements to the Services (“Feedback“), Betasend shall be entitled to use the Feedback without restriction and Feedback will not be treated as confidential to Customer. Customer hereby grants to Betasend a royalty-free, sub-licensable, transferable, perpetual, irrevocable worldwide license in and to the Feedback to use in any manner related to the operation of its business. In addition, Betasend hereby disclaims any and all liability for any comments, drawings, depictions, audio clips or other content made available on the Betasend Site by Customers of the Betasend Site generally (“Comments“). Further Betasend (i) shall have a royalty-free, sub licensable, transferable, perpetual, worldwide, irrevocable license in and to such Comments to use in any manner related to the operation of its business, and (ii) reserves the right to remove any such Content from the Betasend Site immediately in its sole discretion.
Fees. In consideration for the provision of Services to Customer, Customer will pay to Betasend, or if Customer purchases a right to use the Service from an Authorized Reseller, then Customer will pay to such Authorized Reseller, all Services fees (“Fees“) due in advance according to the Service Order. Charges are exclusive of all applicable taxes, which may be billed to Customer in addition to the Fees. Betasend or Authorized Reseller will provide Customer fourteen (14) days advance notice for any increase in fees or addition of new fees for any existing Services. Customer’s continued use of the Services after a fee increase will constitute Customer’s agreement to the increase in service fees.
Billing, Invoicing and Payment Terms. Betasend, or if applicable, the Authorized Reseller, will, using Stripe (or other third party payment processors), charge Customer the Fees and applicable taxes for the Services rendered in advance for each billing period on or after the first day of such billing period. If Customer is paying by credit card or eCheck, (a) Customer hereby irrevocably authorizes Betasend, or if applicable, the Authorized Reseller, to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, in advance, and (c) if Customer’s credit card expires, Customer hereby gives Betasend, or if applicable, the Authorized Reseller, permission to submit the credit card charge with a later expiration date. All billing disputes must be emailed to email@example.com within fourteen (14) days of delivery of the billing statement, and disputes not made within that time are waived by Customer. Late payments, including those resulting from credit card declines that the Customer have attempted to follow up on hereunder will accrue interest at a rate of one and one-half percent (1 1/2 %) per month, or the highest rate allowed by applicable law, whichever is lower. Betasend, or if applicable, the Authorized Reseller, reserves the right to have Customer complete a credit application to determine Customer’s creditworthiness as a condition of receiving further Services. If Betasend, or if applicable, the Authorized Reseller, must initiate a collections process to recover Fees due and payable hereunder, then Betasend, or if applicable, the Authorized Reseller, shall be entitled to recover from Customer all costs associated with such collections efforts, including but not limited to reasonable attorneys’ fees. In the event Betasend, or if applicable, the Authorized Reseller, delivers to Customer an invoice for any Fees or interest payments owed hereunder, such invoiced amounts shall be due within fourteen (14) days of the date of such invoice. In the event an account is past due and Customer requests to cancel per Section 12, Customer is required to pay for the month of service from their initial bill date decline.
Communications. Customer is responsible for obtaining and maintaining all of the appliances, hardware, software and services that Customer may need to access and use the Services. Without limiting the foregoing, Customer must obtain and maintain, and pay all charges, taxes and other costs and fees related to, Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by Customer to access and use the Services.
Customer Management. Customer assumes for responsibility for complying with the Telephone Consumer Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Acts, and Customer assumes full responsibility for ensuring that marketing messages are only sent to those who are legally eligible to receive them. Customer’s obligations with respect to customer management include those more fully described in Section 5.7 below.
Passwords. Customer is responsible for protecting and safeguarding any keys, certificates, passwords, access codes, Customer IDs or other credentials and login information (collectively, “Passwords“) that have been provided to Customer or that are generated in connection with Customer use of the Services. Customer will not disclose or make available any Passwords other than to Customer authorized employees and shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, the Passwords or the Services. Customer is solely and fully responsible for all activities that occur in connection with Customer’s Passwords. Without limiting the foregoing, Customer is responsible for all charges and liabilities applicable to data and information transmitted to and stored under Customer’s account on the Services. In the event Customer believes the Passwords have been compromised, Customer is solely responsible for notifying Betasend immediately by email to firstname.lastname@example.org.
Downtime. Customer acknowledges that Customer’s access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of Betasend.
Suspension, Limitation or Termination. Betasend shall be entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s access to the Services at any time in the event (i) that Betasend determines, in its sole discretion, that the Services is being used in violation of applicable federal, state or local law or ordinance, these Terms of Service, or any agreement applicable to the Services; (ii) that Betasend, in its sole discretion, determines that the Services are being used in an unauthorized, inappropriate, or fraudulent manner; (iii) that Betasend determines that the use of the Services adversely affects Betasend’s equipment or service to others; (iv) Betasend is prohibited by an order of a court or other governmental agency from providing the Services; (v) of a denial of service attack or any other event which Betasend determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; or (vi) of a security incident or other disaster that impacts the Services or the security of Customer Data. In addition, Betasend shall have the right to immediately deny or suspend access to the Betasend Platform or Services in the event Betasend, or if applicable, an Authorized Reseller, is not paid any amount due in connection with the Services or Customer’s breach or alleged breach of these Terms of Service. Without limiting the generality of Section 5, Betasend shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer‘s right to use the Services in accordance with these Terms of Service.
Prohibited Activities. Customer may not use the Services (i) in violation of these Terms of Service, including usage that exceeds storage volume limits or other parameters and restrictions described on the applicable Service Order or on the Betasend Site; (ii) to infringe on, violate, dilute or misappropriate the intellectual property rights of any third party or any rights of publicity or privacy; (iii) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control (including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control), unfair competition, anti-discrimination and/or false advertising); (iv) to store, or transmit throughout, defamatory, trade libelous, unlawfully threatening, or unlawfully harassing data; (v) to store or transmit obscene, pornographic or indecent data in violation of applicable law; or (vi) to introduce or propagate any unauthorized data, malware, viruses, Trojan horses, spyware, worms, other malicious or harmful code. Customer may not use the Betasend Platform or Services in any application that may involve risks of death, personal injury, property damage or environmental damage. Customer may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Services or the Betasend Platform. Customer may not attempt to discover or use any license keys, access codes or similar information provided from time to time to Betasend. Customer may not attempt to discover, access, read, alter, destroy, or damage any programs, data or other information stored on or in connection with the Betasend Platform or Services by any other party. Customer may access the Services only through the interfaces and protocols provided or authorized by Betasend. Customer may not access the Betasend Platform or Services through unauthorized means, such as unlicensed software clients. Customer may not compile or use the Betasend provided materials or any other information obtained through the Services or the Betasend Platform for the purpose of spamming, unsolicited contacting of sellers or customers, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.
No Spam; Customer’s Obligation to Obtain Permission. Under the terms of the CAN-SPAM Act, as between Betasend and Customer, Customer is the sender of emails and is obligated to follow all legal requirements applicable to the sending of emails under CAN-SPAM, including but not limited to the prohibition against sending unsolicited emails to persons with whom Customer does not have a business relationship or who have not requested (opted-in) to Customer’s emails (Spam). As part of its agreement to these Terms of Service, Customer agrees to only send permission-based emails. “Permission-based” means that all recipients must have opted-in to receive email communications from Customer. Emails sent by Customer must include all information required by CAN-SPAM.
HIPAA Compliance. Customer agrees to not upload or incorporate into any customer lists, or otherwise provide to Betasend any protected health information of any kind within the meaning of the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA). Notwithstanding the foregoing, if Customer is a covered entity under HIPAA, Customer agrees to contact Betasend at email@example.com in order to request a business associate agreement (BAA) prior to using the Site or the Services. If Betasend agrees to enter into a BAA with Customer, Customer may provide protected health information to Betasend, subject to these Terms of Service and the terms of the BAA.
Changes to the Services. Betasend has the right to change, modify, update, add to, discontinue or retire the Services and any aspect or feature thereof, including but not limited to, hours of availability, equipment needed for access or use, and the type and size of files that can be stored or transmitted. Betasend may provide notice of material changes to the Betasend Platform or Services by posting them on the Site. It is Customer’s responsibility to check the Betasend Site periodically to be informed of any changes. You understand and agree that Betasend may change the telephone number(s) and/or the credit card payment processing system. You agree that Betasend will not be liable for damages (including consequential or special damages) arising out of any such change and you hereby waive any claims with respect to any such change, whether based on contractual, tort or other grounds, even if Betasend has been advised of the possibility of such damages.
Customer Data. Customer warrants that Customer is the owner or legal custodian of, or otherwise has the right to provide to Betasend, all programs, data, information and other content transmitted via the Betasend Platform and hosted through the Services, including, without limitation, End Customer Data (as defined below) and the Customer Marketing Content (collectively the “Customer Data“) and has the full authority to transmit and store the Customer Data through the Services. Customer hereby authorizes the storage of Customer Data by Betasend through the Services that Customer elects to transmit via the Betasend Platform. Customer acknowledges that Customer bears sole responsibility for adequate security, protection and backup of Customer’s Data on Customer’s equipment. Customer understands that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions and other causes, which might result in Customer restoring files that are no longer usable. Without limiting the generality of Section 6, Betasend will have no liability to Customer for any unauthorized access to, or use, alteration, corruption, deletion, destruction or loss of any of Customer Data on Customer’s equipment.
Authority. Customer represents and warrants that (i) Customer has full corporate right, power and authority to enter into these Terms of Service, (ii) the execution of these Terms of Service by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which Customer is a party or by which Customer is bound, and (iii) when executed and delivered, these Terms of Service will constitute your legal, valid and binding obligation, in accordance with its terms.
Compliance with Law. In connection with the subject matter of these Terms of Service, Customer agrees to, and warrants and represents that it shall, comply with all applicable United States Federal and State laws and regulations, including but not limited to any State or Federal laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates data privacy and protection, sending of electronic marketing messages including but not limited to the CAN-SPAM Act of 2003, and HIPAA.
Validity of Offers. Customer warrants that any Offer shall not violate any laws or regulations and, upon claim by a customer whether on the Betasend Site or a Third-Party Partner Site or otherwise, shall be available for redemption by such customer. Customer agrees to comply with the Offer terms and conditions as set forth in a particular Offer or any other advertising or marketing terms or Offers made available to Customer’s end customers or potential end customers via the Services, and shall at all times honor the terms of any Offer offered or otherwise promoted via the Services. This Section 7.3 shall remain in effect, regardless of whether Customer is currently using the Services.
Authorization and Account Information. Customer represents and warrants that: (i) the information Customer provides in connection with Customer’s registration for the Services is accurate and complete; (ii) if Customer is registering for the Services as an individual, that Customer is at least 18 years of age and has the legal capacity to enter into these Terms of Service; and (iii) if registering for the Services as an entity or organization, (a) Customer is duly authorized to do business in the country or countries and state and local jurisdictions where it operates, (b) the individual accepting these Terms of Service and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of Customer, and (c) Customer’s employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind Customer to these Terms of Service and all transactions conducted under Customer’s account.
Betasend Platform and Services. Betasend warrants solely to Customer that the Betasend Platform and the Services, when used in accordance with the terms of these Terms of Service, will function substantially in accordance with the Documentation. Betasend shall use commercially reasonable efforts to perform the Services. Betasend’s sole obligation and Customer’s exclusive remedy hereunder with respect to any failure of the foregoing obligations shall be to use reasonable efforts to correct any such failure. Betasend shall have no obligation for any failure resulting from (i) content provided by or passed through Customer or third-parties in connection with the Services (including Customer Data); (ii) operating system modifications, changes or updates applied by the Customer; (iii) the use or combination of the Betasend Platform or the Services with any other software or hardware not supported by Betasend; (iv) causes external to the Betasend Platform or the Services, such as problems with the hardware, network or other infrastructure with which the Betasend Platform and the Services are used; (v) unauthorized or improper use of the Betasend Platform or the Services; or (vi) any modification of the Betasend Platform or the Services by anyone other than Betasend.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, THE Betasend PLATFORM AND THE SERVICES ARE PROVIDED TO CUSTOMER “AS IS,” WITHOUT WARRANTY OF ANY KIND. Betasend HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THESE TERMS OF SERVICE, THE Betasend PLATFORM, THE SERVICES OR THE OFFERS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF CUSTOMER ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. Without limiting the generality of the foregoing, Betasend does not warrant that the Betasend Platform or the Services will meet Customer’s requirements or operate without interruption OR DOWNTIME or be error free. Notwithstanding anything in these Terms of Service to the contrary, the warranties provided by Betasend hereunder with respect to the Betasend Platform or the Services may not be extended, supplemented or modified by an Authorized Reseller, and if an Authorized Reseller makes any additional warranty, representation or commitment regarding the Betasend Platform or the Services (or modifies an existing warranty, representation or commitment granted by Betasend regarding the Betasend Platform or the Services), the Authorized Reseller shall be solely responsible for any such additional warranties, representations or commitments or modifications.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Betasend, NOR ANY OF ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, VENDORS, SUPPLIERS OR RESELLERS, NOR ANY OF ITS THIRD PARTY PARTNERS, BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM CUSTOMER’S OR ANY OTHER THIRD PARTY’S USE OF OR INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES WHETHER OR NOT Betasend HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF Betasend, ITS LICENSORS, VENDORS AND RESELLERS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES PAID BY CUSTOMER FOR THE SERVICE FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER.
Customer may not bring any suit or action against Betasend for any reason whatsoever more than one (1) year after the cause of action accrued.
Furthermore and notwithstanding anything herein to the contrary, Customer acknowledges and agrees that: (i) any Services (“Partner Services“) provided by, through or in partnership with an Authorized Reseller or any other third-party partner of Betasend (“Partners”) ARE PROVIDED TO CUSTOMER “AS IS,” WITHOUT WARRANTY OF ANY KIND. Betasend HEREBY DISCLAIMS ON BEHALF OF THE PARTNERS ALL OTHER WARRANTIES WITH RESPECT TO SUCH PARTNER SERVICES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NO PARTNER SHALL HAVE ANY LIABILITY TO CUSTOMER OTHER THAN AS MAY BE SET FORTH IN THE PARTNER’S STANDARD TERMS AND CONDITIONS FOR THE PARTNER SERVICES, (ii) each Partner is hereby granted a limited license to use any content supplied by Customer in connection with the Partner Services (“Partner Marketing Content“), with the right to sublicense to its partners in connection with the operation of the Partner Services, provided that Partner and its publisher partners shall not provide any third party with access to Partner Marketing Content nor use Partner Marketing Content for its or their own commercial benefit beyond the provision of the Partner Services; (iii) at Customer’s request, reasonable efforts will be used by the Partners to remove from publication any Customer Marketing Content, but in no event will a Partner or its publisher partners have any liability if such Customer Marketing Content nonetheless continues to be published; (iv) Customer will cooperate to provide Betasend with all information reasonably required by a Partner to provide any Partner Services; (v) each Partner is an intended third party beneficiary of this Section 9.3; and (vi) the terms and conditions of all Partner Services shall be subject to the Partner’s standard end user terms and conditions for such Services.
For Customer support, please email firstname.lastname@example.org. In providing support, Betasend or a Betasend agent may use a variety of tools to aid in the process of resolving Customer issues as a Customer and may request that Customer provide additional information in order to resolve these issues. Customer hereby grants Betasend and such agent the right to use those tools and any information Customer provides to Betasend in order to provide Customer with support.
Customer will indemnify and hold Betasend, its Partners, its and their investors, officers, directors, affiliates, subsidiaries, licensors, agents and employees (collectively, the “Betasend Parties“) harmless against any loss, liability, claim, demand, damages, penalties, settlements, costs and expenses, including reasonable attorney’s fees, resulting from any claim (including third party claims), suit, action or proceeding against a Betasend Party, resulting from or arising out of or in connection with (i) claims of intellectual property infringement based on (A) Customer’s use or combination of the Betasend Platform and the Services with any other software or hardware not supported by Betasend, if such infringement would not have occurred but for such use or combination; (B) any modification of the Betasend Platform and the Services by Customer; or (C) the use by Customer of any version of the Betasend Platform and/or Services other than the current version of the Betasend Platform and/or Services, if such version was made available by Betasend with notice that such version was being provided in order to avoid an alleged or potential infringement; (ii) claims relating to the Offers or the fulfillment thereof (including claims by purchasers or other Customers of the Offers on the Betasend Site or Third-Party Partner Site relating to Customer’s products or services); or (iii) any breach by Customer of any representation, warranty or obligation under these Terms of Service; or (iv) the use, transmission, access or disclosure of Customer Data. Betasend does not knowingly collect, either online or offline, Personal Information from persons under the age of thirteen (13). Customer agrees to indemnify Betasend if, as a result of Communications, Betasend collects Customer Data from persons under the age of 13.
Term. Subject to Betasend’s receipt of all applicable Fees, and unless otherwise terminated in accordance with this Section 12, these Terms of Service shall commence upon Customer’s first use of the Services or acceptance of these Terms of Service (whichever comes first) and shall continue in effect for the period specified on the applicable Service Order (the “Term“). Each Service Order shall continue for the Term specified therein, and will AUTOMATICALLY RENEW for subsequent Terms (“Renewal Term“) unless either party provides at least forty-eight (48) business hours written notice of termination prior to the expiration of the then-current Term that it elects to terminate the Services under such Service Order at the end of such Term.
Termination by Customer. Notification of termination from Customer to Betasend must be emailed to email@example.com, which must be confirmed by Customer. If Customer chooses not to renew, Customer must fully notify Betasend in writing at least 48 business hours prior to the Renewal Term, in which case, Customer will continue to have access to the Betasend service and be billed until the end of the then current term. Customer shall not receive a refund for any unused portion of the paid for month. In the case Customer fails to fully notify Betasend of their intent to cancel within this time, Customer is responsible for the payment of services rendered for that Renewal Term. Customer shall not in any event be entitled to any refund of any Fees previously paid to Betasend for services.
Termination by Betasend. Betasend shall have the right to terminate these Terms of Service at any time without cause and without notice. In addition, Betasend may terminate these Terms of Service upon written notice to Customer (or upon written notice provided to an Authorized Reseller and then passed along by an Authorized Reseller to a Customer) if Customer becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors. Upon a termination by Betasend without cause, Customer may be entitled to a pro-rata refund of any fees advanced to Betasend.
Past Due Bills. In the event of a credit card decline, Betasend, or if applicable, an Authorized Reseller, will attempt to reach out to Customer for a new payment method. If Betasend or, if applicable, an Authorized Reseller, fail to connect, the account will be terminated due to non-payment and Betasend will attempt to collect on any past due balances at Customer’s expense. Per Section 4.2, in the event Customer, or if applicable, an Authorized Reseller, requests to cancel with a past due balance, Customer is required to pay for a minimum of 30 days worth of service.
Consequences of Termination. Upon termination of these Terms of Service or the Service for any reason, Customer shall cease to use the Betasend Platform, the Services and Documentation. Betasend retains the right to cease Customer’s access to any Betasend Platform and services in the event of termination by either party.
Data Preservation, Retrieval or Transfer. In the event of a temporary suspension of Customer’s access to Services, (i) Betasend will not take any action to intentionally erase or delete Customer Data or End Customer Data stored on the Services; and (ii) applicable Fees will continue to accrue. In the event of the termination of these Terms of Service, Customer may, upon reasonable notice to Betasend, elect to retrieve Customer Data and/or End Customer Data directly. If these Terms of Service are terminated for any reason other than Customer’s breach, Betasend will not take any action to intentionally erase or delete Customer Marketing Content or Customer Data stored on the Services for a period of thirty (30) days, or for sixty (60) days with respect to customer Communications as discussed above. If these Terms of Service are terminated on account of Customer’s breach or alleged breach of these Terms of Service, Betasend will not take any action to intentionally erase or delete Customer Marketing Content or Customer Data stored on the Services for a period of fifteen (15) days, or for sixty (60) days with respect to customer Communications as discussed above. In each case, Customer’s post-termination retrieval or transfer of Data or Marketing Content will be conditioned on Betasend’s receipt of all applicable Fees for the period following termination, payment in full of any other amounts owed, and Customer’s compliance with such reasonable terms and conditions as Betasend may establish with respect to such retrieval or transfer. In addition, if Customer utilizes the professional services of Betasend to assist Customer in connection with such retrieval or transfer, Customer will be responsible for Betasend’s then current charges for such professional services. In the event that Betasend does not receive all such Fees and amounts due within the thirty (30) day or fifteen (15) day periods described above, or in the event that Customer fails to notify Betasend of Customer’s election with respect to Customer Marketing Content or Customer Data within such period, Betasend shall have no obligation to continue to store Customer Marketing Content or Customer Data or permit Customer to retrieve or transfer the same.
Survival. The following shall survive the termination of these Terms of Service: (i) all liabilities accrued under these Terms of Service prior to the effective date of termination; and (ii) all provisions of Sections 3.2, 3.6, 4, 6, 7, 8.2, 9, 11, 12.4, 12.5, 12.6, 13 and 14 of these Terms of Service. Subject to the provisions of Section 9 hereof, the rights provided in this Section 12 shall be in addition to any and all rights and remedies available to a non-defaulting party at law or in equity upon any breach of these Terms of Service by the other party.
It is Betasend’s policy to respond to notices alleging that any material uploaded by users of the Services or the Betasend Platform infringes another persons’ copyright. If you believe any material accessible on or from the Site or the Services infringes your copyright, you may request removal of those materials (or access thereto) from this web site by contacting the Betasend, Inc. copyright agent (identified below) and providing the following information:
Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (URL) of an authorized version of the work.
Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
Your name, address, telephone number and (if available) e-mail address.
A statement that you have a good faith belief that the use of the materials is not authorized by the copyright owner, its agent, or the law.
A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
Marketing. Customer agrees that Betasend may refer to Customer by name and trademark in Betasend’s marketing materials and web site. Customer understands and acknowledges that Betasend does not certify or endorse, and has no obligation to certify or endorse, any of Customer’s products or content.
Modification; Waiver. Betasend shall have the right to amend these Terms of Service at any time, effective upon posting of an updated version of these Terms of Service at www.betasend.com/terms-of-service. Betasend shall use reasonable efforts to provide Customer with notice of changes to these Terms of Service (including, by submitting a notice to the applicable Authorized Reseller to be forwarded to Customer), but Customer is responsible for regularly checking the Betasend Site to be informed of such changes. Continued use of the Services after any such changes are posted shall constitute Customer’s agreement to such changes. The waiver by either party of a breach of any provision hereof shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of such party to avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege.
Governing Law. These Terms of Service shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions, provided that the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration agreement discussed in section 14.12. Unless you and Betasend agree otherwise in writing, in the event that the arbitration agreement is found not to apply to you or a particular claim (except for small claims court actions), as a result of a decision by the arbitrator or a court order, you agree that the claim will be resolved exclusively by a state or federal court located in Massachusetts. You and Betasend agree to submit to the personal jurisdiction of the courts located within Massachusetts for the purposes of litigating such claims. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Your use of the Services may also be subject to other local, state, national, or international laws.
Assignment. Customer may not assign its rights or delegate any obligations hereunder without the express prior written consent of Betasend. Any assignment by Customer without the prior written consent of Betasend shall be null and void. Betasend may assign its rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in these Terms of Service. These Terms of Service shall inure to the benefit of each party’s permitted successors and assigns.
Force Majeure. If either party is unable to perform any of its obligations hereunder (other than payment obligations) due to any act of God, fire, casualty, flood, war, strike, shortage or any other cause beyond its reasonable control, and if such party uses reasonable efforts to avoid such occurrence and minimize its duration and gives prompt notice to the other party, then the affected party’s performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform. If the force majeure continues for more than thirty (30) calendar days, then either party may terminate these Terms of Service for convenience upon written notice to the other party.
Severability. In the event that any provision contained herein shall for any reason be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, to such extent such provision shall be deemed null and void and severed from these Terms of Service, and the remainder hereof shall remain in full force and effect and enforceable.
Independent Contractor. Neither Customer nor Betasend shall be deemed to be an agent of the other and the relationship of Customer and Betasend shall be that of independent contractors. Neither Customer nor Betasend shall have any right or authority to assume any obligations, or to make any representations or warranties, whether express or implied, on behalf of the other party, or to bind the other party in any matter whatsoever..
Notices. Except as otherwise provided, notices under these Terms of Service shall be delivered by email addressed to the other party at such address as is set forth in the applicable Service Order or such other email address as Customer may provide to Betasend. Such notice will be deemed to have been given as of the date it is delivered by electronic mail, personally, by confirmed facsimile or by courier, or five (5) days after it is sent by postal mail. All communications and notices to be made or given pursuant to these Terms of Service shall be in the English language.
Compliance with Laws. Customer agrees to comply at all times with all laws, rules and regulations applicable to Customer’s use of the Services, including but not limited to data privacy laws and legal requirements.
Headings. The headings of the sections of these Terms of Service are for convenience of reference only and shall not be considered in construing these Terms of Service.
Arbitration. In any claim, action or proceeding to enforce any right or obligation of the parties under these Terms of Service including, without limitation, relating to your use of our services, you hereby waive any right you may now have or hereafter possess to a trial by jury. Both parties agree to resolve any dispute either Party may have arising out of or relating to these Terms of Service or the Betasend Services in good faith mediation. In the event no mutual agreement is made under mediation within sixty (60) days of notice of such dispute, the Parties have the right to resolve such dispute via arbitration before a single arbitrator pursuant to then current Commercial Rules of the American Arbitration Association (AAA). The arbitrator may award any relief available under applicable law including but not limited to an award of attorneys’ fees, this agreement to arbitrate does not interfere with either party’s right to file a claim with a state or federal agency with jurisdiction thereof to the extent permitted by applicable law. Even if allowed under AAA rules, no class or collective action or arbitration may be brought against Betasend hereunder unless required by applicable law. If either you or Betasend intends to seek arbitration under these terms of service, the party seeking arbitration must first notify the other party of the dispute in writing at least 30 days in advance of initiating the arbitration. Notice to Betasend should be sent as required by these Terms of Service. The notice must describe the nature of the claim and the relief being sought. If you and Betasend are unable to resolve our dispute within 30 days, either party may then proceed to file a claim for arbitration. The arbitration, information produced, and pre-and post-hearing proceedings will be confidential and any award shall not be used in any other case except to enforce the award itself.
Class Action Waiver. Any claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the claim is subject to arbitration, the arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration. If this class action waiver is found to be unenforceable, then the entirety of the arbitration agreement in Section 14.12, if otherwise effective, shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
If Customer has any questions or concerns about what has been stated in this Terms of Service, please contact us at firstname.lastname@example.org.