THIS AGREEMENT GOVERNS YOUR USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A WEB-BASED BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AWRITTENQUOTE(AS DEFINED BELOW) THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMSAND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are a competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on November 1, 2019. It is effective between You and Us as of the date of You accepting this Agreement. We may amend the Terms of Service, at any time with notice that we deem to be reasonable in the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a “Revised Version”). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than fifty per cent (50%)of the voting interests of the subject entity.
“Agreement” means these Terms of Service (as updated).
“Beta Services” means Our services that are not generally available to customers.
“Content” means information obtained by Us from Our content licensors or publicly available sources and provided to You pursuant to an executed Quote, as more fully described in the Documentation.
“Documentation” ?means ?Our ?online ?user ?guides, ?documentation, ?and ?help ?and ?training ?materials, ?as updated from time to time, and as we make accessible to you.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
"Non-Verb Applications" means a Web-based or offline software application that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You.
“Quote” means the proposal or offer from Us to You, specifying the Services to be provided by Us to You. Once the Quote is executed by You(an “executed Quote”) it becomes a binding agreement that is entered into ?between ?You ?and ?Us ?or ?any ?of ?Our ?Affiliates, and ?incorporates ?by ?reference any ?addenda ?and supplements thereto as well as the terms herein. When You execute a Quote, Your Affiliate is deemed to have agreed to be bound by the terms of this Agreement as if it were an original party hereto.
"Purchased Services" means Services that You or Your Affiliate purchase pursuant to an executed Quote, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under a free trial or an executed Quote and ?made ?available ?online ?by ?Us, ?including ?associated ?offline ?components, ?as ?described ?in ?the Documentation. “Services” exclude Content and Non-Verb Applications.
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors, independent sales representatives,agents, and third parties with which You transact business.
"We," "Us" or "Our" means Verb Technology Company, Inc. and/or Verb Direct, Inc. and its affiliates and divisions, ?including ?the ?company ?described in ?Section ?13 ?(Who ?You ?Are ?Contracting ?With, ?Notices, Governing Law and Jurisdiction).
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected ?and ?processed ?by ?or ?for ?You ?using ?the ?Purchased ?Services, ?excluding ?Content ?and ?Non-myVerb.com Applications.
2. FREE TRIAL
If You register on our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s). Additional trial terms and conditions may appear on the trial registration webpage. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING ? SECTION ? 9 ? (REPRESENTATIONS, ? WARRANTIES, ? EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. OUR RESPONSIBILITIES
3.1. Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and the applicable executed Quotes, (b) provide Our standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give at least 8 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday ?Pacific Standard ?Time[PST]), ?and ?(ii) ?unavailability ?caused ?by ?circumstances ?beyond ?Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-Verb Application, or denial of service attack.
3.3 Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
3.4 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.5 Beta Services. From time to time, We may invite You to try Beta Services at no charge. You may accept or decline any such trial in Your sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
4.USE OF SERVICES AND CONTENT
4.1 Subscriptions. Unless otherwise provided in the applicable executed Quote, (a) Services and Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2 Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in executed Quotes. Unless otherwise specified, (a) a quantity in an executed Quote refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute a Quote for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with the Documentation and applicable laws and government regulations, and (e) comply with terms of service of Non-Verb Applications with which You use Services or Content.
4.4 Usage Restrictions. You will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an executed Quote or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).
4.6. Removal of Content and Non-Verb Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-Verb Application hosted on a Service by You may violate Our policies or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-Verb Application or modify the Non-Verb Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-Verb Application without notice until the potential violation is resolved.
5.1. Acquisition of Non-Verb Products and Services. We or third parties may make available third-party products ?or ?services, ?including, ?for ?example, Non-Verb Applications ?and ?implementation ?and ?other consulting services. Any acquisition by You of such Non-Verb products or services, and any exchange of data between ?You ?and ?any Non-Verb provider, ?is ?solely ?between ?You ?and ?the ?applicable Non-Verb provider. We do not warrant or support Non-Verb Applications or other Non-Verb products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an executed Quote.
5.2. Non-Verb Applications and Your Data. If You install or enable a Non-Verb Application for use with a Service, You grant Us permission to allow the provider of that Non-Verb Application to access Your Data as required for the interoperation of that Non-Verb Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by a Non-Verb Application.
5.3. Integration with Non-Verb Applications. The Services may contain features designed to interoperate with Non-Verb Applications. To use such features, You may be required to obtain access to Non-Verb Applications from their providers, and may be required to grant Us access to Your account(s) on the Non-Verb Applications. If the provider of a Non-Verb Application ceases to make the Application available for interoperation with the corresponding Service features on reasonable terms, we may cease providing those Service features without entitling You to any refund, credit, or other compensation.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. Fees. You will pay all fees specified in executed Quotes. Except as otherwise specified herein or in an executed Quote, (i) fees are based on Services and Views, (ii) payment obligations are non-cancelable and fees paid are non-refundable, (iii) quantities purchased cannot be decreased during the relevant subscription term, ?and ?(iv) fees ?may ?be ?adjusted ?based ?on ?actual ?usage ?on ?the ?platform, ?any ?changes ?will ?be communicated in writing and will be applied to the next contract month
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the executed Quote for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable executed Quote. If the executed Quote specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant executed Quote. Unless otherwise stated in the executed Quote, invoiced charges are due net 10 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and associated agreements on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice), before suspending services to You.
6.5. Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever ?(collectively, ?“Taxes”). ?You ?are ?responsible ?for ?paying ?all ?Taxes ?associated ?with ?Your purchases here under. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7. PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights. Subject to the limited rights expressly granted here under, We and Our licensors reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You here under other than as expressly set forth herein.
7.2. License by Us to Use Content. We grant to You a worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use Content acquired by You pursuant to executed Quotes, subject to those executed Quotes, this Agreement and the Documentation.
7.3. License by You to Host Your Data and Applications. You grant Us and Our Affiliates a worldwide, limited-term license to host, copy, transmit and display Your Data, and any Non-VerbApplications and program code created by or for You using a Service, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or ?interest ?from You ?or ?Your ?licensors ?under ?this ?Agreement ?in ?or ?to ?Your ?Data ?or ?any Non-VerbApplication or program code.
7.4. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
8.1. ?Definition ?of ?Confidential ?Information. “Confidential ?Information” ?means ?all ?information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all executed Quotes (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include ?any ?information ?that ?(i) ?is ?or ?becomes ?generally ?known ?to ?the ?public ?without ?breach ?of ?any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses ?to ?protect ?the ?confidentiality ?of ?its ?own ?confidential ?information ?of ?like ?kind ?(but ?not ?less ?than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Quote, executed or otherwise,to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled bylaw to do so, provided the Receiving Party gives the Disclosing Party prior notice ?of ?the ?compelled ?disclosure ?(to ?the ?extent ?legally ?permitted) ?and ?reasonable ?assistance, ?at ?the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8.4. Non-Solicitation. During the Term and for a total of twenty-four (24)months after any termination of this agreement, YOU will not directly or indirectly, on Your own behalf or in the service or on behalf of others, in any capacity, induce or attempt to induce any officer, director, contractor or employee to leave OUR employ or otherwise interfere with the provision of services to US.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Our Warranties. We warrant that (a) this Agreement, the executed Quotes and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) subject to Section 5.3 (Integration with Non-Verb Applications), ?We ?will ?not ?materially ?decrease ?the ?functionality ?of ?the ?Purchased ?Services ?during ?a subscription term, and (e) the Purchased Services and Content will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 12.3 (Termination) and 12.4 (Refund or Payment upon Termination).
9.3 Your Warranties. You warrant that (a) You shall be solely responsible for your own content and the consequences of submitting and publishing your content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to Us all patent, trademark, trade secret, copyright or other proprietary rights in and to such content for publication on the Service pursuant to these Terms of Service,and (b) You further agree that content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Us all of the license rights granted herein.
9.4 Non-endorsement. We do not endorse any content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and We expressly disclaims any and all liability in connection with content. We do not permit copyright infringing activities and infringement of intellectual property rights on the Service, and will remove all content if properly notified that such Content infringes on another's intellectual property rights. ?We reserve the right to remove Content without prior notice.
9.5. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ?EACH ?PARTY ?SPECIFICALLY ?DISCLAIMS ?ALL ?IMPLIED ?WARRANTIES, ?INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. ?EACH PARTY ?DISCLAIMS ?ALL ?LIABILITY ?AND ?INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of a Purchased Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without ?breaching ?Our ?warranties ?under ?Section ?9.2(Our ?Warranties), ?(ii) ?obtain ?a ?license ?for ?Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-Verb Application or Your breach of this Agreement.
10.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Data, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (i) promptly give You written notice of the Claim Against Us, (ii) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (iii) give You all reasonable assistance at Your expense.
10.3. ?Exclusive ?Remedy. This ?Section ?10 ?states ?the ?indemnifying ?party’s ?sole ?liability ?to, ?and ?the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
10.4 Digital Millennium Copyright Act If you are a copyright owner or an agent thereof and believe that any content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
Submitting a Copyright/Trademark Infringement Notice
If You believe that third party material posted on or accessible through Verb’s applications, websites, and services constitutes infringement of Your copyright or trademark rights, please send a notice of infringement to Verb’s designated agent by [email@example.com].
By submitting the infringement notice, You acknowledge and agree that Verb or its designated agent may forward the information You provide in your notice to the person responsible for the allegedly infringing material. If You are unsure whether the material that You are reporting is in fact infringing, You may wish to contact an attorney before filing a notification with Us. Please be aware that under 17 U.S.C. (s) 512(f) of the DMCA, You may be liable for any damages, including costs and attorneys’ fees incurred by Us or Our merchants, if You knowingly and materially misrepresent that an activity or material is infringing.
While the online form is the easiest and quickest way to submit your complaint with Us, if You prefer, You may also write to Verb’s designated agent at the following address. If You write to Us, please be sure to provide all the information listed above under Requirements.
Verb Technology Company, Inc.
Attn: Copyright/Trademark Agent
2210 Newport Blvd., Suite 200
Newport Beach, California 92663
Submitting a Counter-Notice After Removal of an Affected Party’s Material
If Your material has been removed or disabled as a result of an infringement notice and You believe such material is not infringing, or that you have the authorization or right to post and use that material from the copyright or trademark owner, that owner’s agent, or pursuant to law, You may send a counter-notice to Verb’s designated agent at the address above.
The counter-notice must include:
Submitting a Complaint to Report Violation of Your Likeness
If You think that content someone else has posted on Verb’s applications, websites or services uses your name, voice, signature, image or likeness, or that of your minor child, without your permission and in violation of a legally recognized right of publicity, we encourage you first to contact the user directly about your concerns. If that does not resolve your concerns, you may file a report at:
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ?ARISING ?OUT ?OF ?OR ?RELATED ?TO ?THIS ?AGREEMENT ?WILL ?EXCEED ?THE AMOUNT PAID BY CUSTOMER HERE UNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT ?OF ?OR ?RELATED ?TO ?THIS ?AGREEMENT ?EXCEED ?THE ?TOTAL ?AMOUNT ?PAID ?BY CUSTOMER HERE UNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE ?LIMITATIONS ?WILL NOT ?LIMIT ?CUSTOMER'S ?PAYMENT ?OBLIGATIONS ?UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN ?IF ?A ?PARTY ?HAS ?BEEN ?ADVISED ?OF ?THE ?POSSIBILITY ?OF ?SUCH ?DAMAGES. ?THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
12.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions here under have expired or have been terminated.
12.2. Term of Purchased Subscriptions. The ?term ?of ?each ?subscription ?shall ?be ?as ?specified ?in ?the applicable executed Quote. ?Except ?as ?otherwise ?specified ?in ?an executed Quote, ?subscriptions ?will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least sixty (60) days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
12.3. Termination. A party may terminate this Agreement for cause (a) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all executed Quotes after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all executed Quotes. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5. Your Data Portability and Deletion. Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems ?or ?otherwise ?in ?Our ?possession ?or ?control ?as ?provided ?in ?the ?Documentation, ?unless ?legally prohibited.
12.6. Surviving Provisions. The Sections titled "Fees and Payment for Purchase Services," "Proprietary Rights and Licenses," "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," "Refund or Payment upon Termination," "Your Data Portability and Deletion," "Who You Are Contracting With, Notices, Governing Law and Jurisdiction," and "General Provisions" will survive any termination or expiration if this Agreement.
13. WHO ?YOU ?ARE ?CONTRACTING ?WITH, ?NOTICES, ?GOVERNING ?LAW ?AND JURISDICTION
13.1. General. Who You are contracting with under this Agreement, who You should direct notices to under ?this ?Agreement, ?what ?law ?will ?apply ?in ?any ?lawsuit ?arising ?out ?of ?or ?in ?connection ?with ?this Agreement, and which courts have jurisdiction over any such lawsuit, depend on where You are domiciled.
13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals here under shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, or (c) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13.4. No Agency. We enter into this Agreement as principal and not as agent for any other company. Subject to any permitted Assignment under Section 14.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
14. GENERAL PROVISIONS
14.1. Export Compliance. The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria) or in violation of any U.S. export law or regulation.
14.2. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us.
14.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and ?Us ?regarding ?Your ?use ?of ?Services ?and ?Content ?and ?supersedes ?all ?prior ?and ?contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (a) the applicable executed Quote, (b) this agreement, and (c) the Documentation.
14.4. Assignment. Neither party may assign any of its rights or obligations here under, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all executed Quotes), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon three (3) days written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.6. Third-Party Beneficiaries. Our Content licensors shall have the benefit of Our rights and protections here under with respect to the applicable Content. There are no other third-party beneficiaries under this Agreement.
14.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
? 2019 Verb Technology Company, Inc.