Terms of Service
Last Updated: 9 February 2022

Connectly Terms of Service


Connectly.aihttps://www.connectly.ai, including all of its related applications, dashboards or platforms (individually and collectively, the "Website"), is owned and operated by Connectly Inc. ("Connectly", "we" or "us"). By using, installing or accessing the Website or Services (as defined below), by signing or clicking to accept these terms or any Subscription Documentation (as defined below) referencing these terms, you agree to be bound by the following terms and conditions including Connectly’s Privacy Policy (together, these "Terms", or this "Agreement").

If you are using a Connectly Service on behalf of a company or other entity, then "Client" or "you" means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Client is an entity, this Agreement is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement.

By visiting our site, using the Service, using any of our products and services, participating in an electronic conversation facilitated by our products and services, and/ or purchasing something from us, you engage in the “Service” and agree to be bound by the following terms and conditions (“Terms of Service” or “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply  to all users of the Service, including without limitation users who are browsers, vendors, customers, merchants, consumers and/ or contributors of content.

Please read these Terms of Service carefully before accessing or using the Service. By accessing or using any part of the Service, you agree to be bound by these Terms of Service. If you do not agree to all the terms and conditions of this agreement, then you may not access the website or use any Services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

Any new features or tools which are added to the current website shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Service following the posting of any changes constitutes acceptance of those changes.

Any deviation from this Agreement shall only be valid if and agreed upon by and between the Parties in writing.

1 WEBSITE TERMS

By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this site.

You may not use our Service for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws, and laws governing communications and marketing, including but not limited to the Telephone Consumer Protection Act, 47 U.S.C. 227).

You must not transmit any worms or viruses or any code of a destructive nature.

A breach or violation of any of the Terms will result in an immediate termination of your Services.

2  GENERAL CONDITIONS

We reserve the right to refuse service to anyone for any reason at any time.

You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.

The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

The Service is available only to individuals who are at least 18 years old.

3 DEFINITIONS

 "Business Associate Agreement" (hereinafter "BAA") means a written agreement between a covered entity and a business associate containing the elements specified at 45 CFR 164.504(e).

  1. "Confidential Information" means code, inventions, know-how, product plans, technical and financial, business, operational, or other information exchanged under this Agreement or learned during the performance of this Agreement, or that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
  2. “Affiliate” means, in relation to either Party, any legal person which is Controlled by, Controls or is under common Control with, such person. Control meaning with respect to the relevant person, (i) the direct or indirect ownership or control of more than 50% of the (a) ownership interests or (b) voting power at the general meeting or a similar body, of that person, or (ii) the right or ability to appoint or remove such number of the members of the board or a similar body of that person with decisive voting power in such body.
  3. “Agreement” means the General Terms and Conditions and any exhibits, annexes, and addenda hereto.
  4. “API” means application programming interface.
  5. “Applications” means software-based tools that provide a visual interface designed to operate and utilize the Platform.
  6. “Beta Release” means new services, functionality or features (such as an API, Application, Solution, Channel, or other functionality) within the Services which is enabled for Customer use for the purpose of testing such new services, functionality or features, for technical, commercial or any other use.
  7. “Channels” means the services that allow point-to-point information exchanges between Customer and the end-users of the Messages such as SMS, Voice, Chat, and E-mail.
  8. “Claim” means a third-party claim, demand, suit or proceeding.
  9. “Commercial Launch Date” means the date specified in the Order Form or in the website as of which Connectly shall start charging Customer for the Services.
  10. “Confidential Information” means information maintained in confidence by a Party, information which is marked as such, or information whether written or oral that by its nature would be understood, by a reasonable person under the circumstances, to be confidential information of a party. For the avoidance of doubt, the specific content of this Agreement, details of the Platform, supporting documentation, the Cloud Communication Service, any data or information transmitted by Customer through the Platform or used by Customer for or in connection with the Cloud Communication Service and the results of any performance tests will be regarded as Confidential Information.
  11. “Cloud Communication Service” or “Services” means all services and subscriptions provided by Connectly to Customer, including, without limitation, the Managed Services, the Platform, the Dashboard, the Software, the API, the Solutions and the Channels (generally referred to, unless the context requires otherwise or is differently defined in the Order Form or in the Dashboard).
  12. “Customer” means any company, business or any other entity acting in the exercise of a profession or business to which Connectly provides Services and which is named as such in the Order Form or in the Dashboard.
  13. “Customer Creation” means any type of creation (such as, but not limited to,
    software, source code, APIs, free text, pictures or other functionality) which
    Customer has included in the Services.
  14. “DPA” means the Data Processing Annex which forms part of this Agreement. In case of conflict or inconsistencies between the data protection related provisions of the Agreement and the DPA, the DPA will prevail.
  15. “Data Protection Legislation” means all relevant requirements of the applicable data protection legislation, including without limitation, the General Data Protection Regulation (EU) 2016/679 and the California Consumer Privacy Act 2018. For the avoidance of doubt, CCPA references shall only apply to End-users that are California residents.
  16. “Dashboard” means Connectly’s customer portal available on the Site.
  17. “Effective Date” means when (i) both Parties execute an Order Form, (ii) when Customer registers an account on the Dashboard, or (iii) when Customer starts using the Services.
  18. “End-user” means the private individual who ultimately receives the communications sent by Customer or its Affiliates via the Services.
  19. “Fees” means the prices paid by Customer for the access and use of the Cloud Communication Service.
  20. “Guidelines” means the terms outlined in the Order Form, in the Dashboard, or on the Site.
  21. “Inappropriate Content” means collectively any content that (i) is unsolicited, including without limitation, “junk mail”, “bulk email”, spam or other unsolicited material; or (ii) qualifies as spam under any applicable laws and regulations; or (iii) potentially causes the introduction of harmful computer programs or code in the Platform or End-User’s devices; or (iv) violates any legal, regulatory, self-regulatory, governmental, statutory or telecommunication network operator’s requirements or codes of practice, or Third-Party Application Terms; or (v) is unlawful, pornographic, abusive, racist, obscene, offensive, threatening, harassing, defamatory, discriminatory, misleading or inaccurate; or (vi) is harmful or malicious content, including but not limited to hate speech, and any other material that Connectly reasonably believes degrades, intimidates, encourages violence against, or foments prejudicial action against anyone based on gender, race, age, ethnicity, nationality, religion, sexual orientation, disability, geographic location or other discrimination reason; or infringes the intellectual property rights of any person or entity; or (vi) is illegal in any other way.
  22. “Integrations” means the interoperable and coordinated use of the Services within Third-Party Applications.
  23. “Licensed Material” means the Platform, the API, Beta Releases and all Software and related documentation provided by Connectly.
  24. “Managed Services” means support-based services that provide onboarding and support of the Customer as they utilize the Platform, such as the Support Plan.
  25. “Message” or “Messages” means a set of systematized, textual, numerical, graphical or phonetical characters transmitted between Customer and an End-User over the Channels.
  26. “Network Adds-on” means additional telecom network services.
  27. “Order Form” means the document as referred to in clause 17.2 of the Agreement.
  28. “Party” or “Parties” means Connectly and Customer individually or together.
  29. “Platform” means the cloud communication platform of Connectly.
  30. “Site” means Connectly’s web domains, including the pricing and all other webpages thereof, available at www.Connectly.ai 
  31. “SLA” means the Service Level Agreement available on the Site.
  32. “Solution” means the prepackaged and preconfigured components of the Platform designed to execute a predefined process and produce a specific result which uses the Platform and enables Customer to communicate with its clients by means of the Channels.
  33. “Subscription” means the plan Customer elects for access to and/or use of the Services.
  34. “Subscription Fee(s)” means the monthly or yearly recurring fees Customer is charged for the Subscription. In the event Customer decides to upgrade its Subscription, the relevant Subscription Fee of the higher-tier Subscription shall apply pro-rata for the remainder of the term of the Services. Any changes to the Subscription Fee shall be applicable as of the date of renewal of the Services.
  35. “Support Plan” means the managed support services provided by Connectly to Customer in accordance with the Guidelines. For the avoidance of doubt, Customer may change the Support Plan on monthly basis by giving Connectly prior written notice except in the event (i) Customer subscribed to the Private Support Plan, (ii) Customer purchased a Technical Account Manager as a separate add-on to the applicable Support Plan, and/or (iii) Customer subscribed to any paid Support Plan at a discounted pricing. Customer understands and agrees that upon the occurrence of any of the scenarios mentioned above, Customer is committed to the applicable Support Plan for a minimum period of twelve months.
  36. “Traffic Commitment” means a committed volume for use of the Services as
    specified in the applicable Order Form.
  37. “Taxes” means any and all applicable local, federal and state taxes, fees, charges, telecommunications provider surcharges, withholding taxes or other similar taxes, including, but not limited to, VAT, GST, sales tax and/or use tax.
  38. “Third-Party Applications” means third-party internet-based or offline enabled software applications, APIs, source code, operating systems, databases (including
    code repositories and package managers) and other types of platforms that
    interoperate with the Cloud Communication Service to enable its complete range
    of functionality. For the avoidance of doubt, telecom network providers (such as
    network (mobile) operators or virtual (mobile) network operators) are excluded
    from this definition.
  39. “Third-Party Applications Terms” means the terms and conditions, and/or usage policies which directly or indirectly apply to use of the Third-Party Applications.
  40. “Transactional Fee(s)” means the fees for the use of the Services.
  41. “Trial Period” means the period agreed by the Parties for the Customer to use the Services in accordance with clause 15 of the Agreement.

4. SERVICES

Products or Services are available exclusively online through the website. These products or Services may have limited quantities and are subject to refunds only according to our Refund Policy.

We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.

We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

5.  ACCURACY OF BILLING AND ACCOUNT INFORMATION

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

6. USE RIGHTS; RESTRICTIONS.

Use of Services. Subject to all terms and conditions of this Agreement, including any Additional Terms, Connectly grants Client a non-exclusive, non-transferable, non-sublicensable, revocable, limited right and license during the applicable Subscription Term and within the Territory (to the extent available in the Territory) to: (a) install and use an object code copy of any mobile application associated with the Services; and (b) access and use the Services, designated on Client’s Subscription Documentation solely for Client’s internal business purposes, but only in accordance with this Agreement, the applicable Subscription Documentation, and all applicable Scope of Use descriptions. Although the Services may be accessible worldwide, Connectly makes no representation that the Services are appropriate or available for use in locations outside the Territory (or that all products or features of the Services are available throughout the Territory). Furthermore, accessing the Services from territories where their content or use is illegal is prohibited. Those who choose to access the Services from other locations do so at their own initiative and are responsible for compliance with local laws and any costs associated with access or use outside the Territory. You may not use or export the Services in violation of U.S. export laws and regulations.

Account Registration. Client will register for a Connectly account in order to access or receive the Services. Account information must be accurate, current and complete, and will be governed by Connectly’s Privacy Policy (currently available at https://www.Connectly.com/privacypolicy)as may be amended from time to time. Client agrees to keep its account information up to date so that Connectly may send notices, statements and other information by email or through Client’s account. By using or accessing the Website, Client agrees and consents to Connectly’s use of cookies in accordance with the terms of Connectly’s Privacy Policy. You are solely responsible for all use of the Services account. Connectly will not be liable for any loss or damage arising from unauthorized use of Client's account.

Eligibility and Use by Others. By agreeing to these Terms, Client warrants that it and its employees and contractors whom Client has authorized to access the Services on its behalf ("Authorized Users"): (a) are over 18 years old; (b) have not previously been suspended or removed from the Services; and (c) will comply with all applicable laws when using the Services. Client may permit its Authorized Users to use the Services provided their use is for Client’s benefit only and remains in compliance with this Agreement. Authorized Users are and will be subject to the applicable terms and conditions of this Agreement which may be communicated by posting to the Website or on a click-through basis to Authorized Users upon access to the Services and/or Website.

Responsibility for Authorized Users. Client will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions herein. Client will be solely responsible for authorizing and creating user IDs, passwords and other access credentials for Authorized Users. Client is solely responsible for determining its Authorized Users and restricting and/or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Provided, however, Connectly may, in its sole discretion, suspend any Authorized User’s access to the Services. Client is solely responsible for ensuring that any user IDs, passwords and other access credentials (such as API tokens) for the Services are kept strictly confidential and not shared with any unauthorized person. Additionally, Client is solely responsible for complying, and ensuring its Authorized Users comply, with all laws applicable to Client. Client will be solely responsible for any and all actions taken using its and its Authorized Users’ accounts, passwords or access credentials. Client must notify Connectly within twenty-four (24) hours of any breach of security or unauthorized use of its account. Use by all Authorized Users in aggregate will count towards any applicable Scope of Use restrictions.

Use by Customers. Any person that is a client, customer, or patient of Client, or that is a potential client, customer or patient of Client ("Customer(s)") who accesses and/or uses the Services, including via Client’s website, are subject to Connectly’s Acceptable Use Policy ("Acceptable Use Policy") (currently available at https://www.Connectly.com/acceptable-use-policy/) and such other terms as may be provided by Connectly from time to time, which includes Connectly’s right to remove or disable access to any Customer or content or resource that violates the Acceptable Use Policy.

General Restrictions. Client must not (and must not allow any third party to): (a) rent, lease, copy, transfer, sublicense or provide access to the Connectly Technology (as defined below) to a third party (except Authorized Users as specifically authorized above); (b) incorporate the Connectly Technology (or any portion thereof) into, or use it with or to provide, any site, product or service; (c) use the Connectly Technology (or any portion thereof) for time-sharing purposes or for a third party’s benefit; (d) publicly disseminate information regarding the performance of the Connectly Technology (which is deemed Connectly’s Confidential Information); (e) modify or create a derivative work of the Connectly Technology or any portion thereof; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Connectly Technology or Services, except to the extent expressly permitted by applicable law and then only upon advance notice to Connectly; (g) break or circumvent any security measures or rate limits for Services; (h) distribute any portion of the Connectly Technology other than as specifically permitted above; or (i) remove or obscure any proprietary or other notices contained in the Connectly Technology including in any reports or output obtained from the Connectly Technology.

Beta Releases and Free Access Subscriptions. Subject to Client’s compliance with the terms of this Agreement, Connectly may provide Client with certain Services for free or on a trial basis (a "Free Access Subscription") or with "alpha", "beta" or other early-stage Services, integrations or features ("Beta Releases") for the Subscription Term set forth in the applicable Subscription Documentation (if applicable). This Section and any relevant Additional Terms will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee or counts towards Client’s Scope of Use allocations) and supersedes any contrary provision in this Agreement. For the avoidance of doubt, Section 6 (Availability of Services; Support) will not apply to any Free Access Subscription or Beta Releases. Connectly may use good faith efforts in its discretion to assist Client with Free Access Subscriptions or Beta Releases. Without limiting the other disclaimers and limitations in this Agreement, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CLIENT AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH Connectly WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA RELEASE IS AT CLIENT’S SOLE RISK. You may choose to use Beta Releases in your sole discretion. Connectly makes no guarantees or promises with respect to the continued availability of any Free Access Subscriptions or Beta Releases or that future versions of a Beta Release will be released or will be available under the same commercial or other terms. Connectly may discontinue Beta Releases at any time, in our sole discretion, and decide not to make a Beta Releases generally available. Notwithstanding anything to the contrary herein, Connectly may terminate Client’s right to use any Free Access Subscription or Beta Release at any time for any reason or no reason in Connectly’s sole discretion, without liability.

7.  COMPLIANCE WITH LAWS

You represent and warrant that your use of any part of the Service will comply with all applicable laws and regulations. You are responsible for determining whether our Services are suitable for you to use in light of any applicable regulations such as EU Data Privacy Laws or other laws. If you’re subject to regulations (such as HIPAA) and you use our Service, then we won’t be liable if our Service doesn’t meet those requirements. You may not use our Service for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce. You are also responsible to notify the end-user of data collection in connection with the Software, as required by applicable law.

You represent and warrant that you shall be solely responsible for obtaining end user consent for text messaging in full compliance with all applicable laws, rules, and regulations, including, without limitation, the Telephone Consumer Protection Act, 47 U.S.C. 227 and its implementing regulations, 47 C.F.R. 64.1200. You further represent and warrant that you shall not use the service to communicate with consumers who have requested that you cease contacting them.”

If you are located in the European Economic Area (EEA) or serve end-users in the EEA market, you represent and warrant that in using the Software, you:

  1. Will get consent or use any other available, legally-valid mechanism to transfer data to Connectly and be processed, and you’ll otherwise comply with your posted privacy policy.
  2. Have collected, stored, used, and transferred all data relating to any individual in compliance with all applicable data protection laws and regulations. You have the necessary permission to allow Connectly to receive and process data on your behalf.
  3. Acknowledge in all cases that Connectly acts as the processor of such Customer Data and your remain the controller of such Customer Data for all applicable data protection or privacy laws and regulations.
  4. You agree not to use the Service to collect, manage or process sensitive information. We will not have any liability that may result from your use of the Service to collect or manage sensitive information.
  5. Have reviewed and accepted the Connectly DPA.
  6. Аgree to indemnify and hold Connectly and its officers and directors harmless from any claims, demands, and losses, including attorney's fees, arising out of your breach of any part of the representations and warranties in this Section 8.

 

8. CLIENT DATA

Rights in Client Data. As between the parties, Client retains all right, title and interest (including any intellectual property rights) in and to any text, images or other content and data that Client selects or submits for use or incorporation with the Services (including without limitation, chat and message logs, Customer Data, PHI or any Third-Party Content) ("Client Data"). "Customer Data" means data related to the identity, characteristics and activities of Customers, collected or submitted to the Services by Client or captured by the Services. To the extent Client is a Covered Entity or a Business Associate, as those terms are defined in HIPAA, "Client Data" also includes PHI. "Third-Party Content" means content, data or other materials that Client provides to the Connectly Services from its third-party data providers, including through Third-Party Products (as defined below) used by Client. Client hereby grants Connectly a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of the Client Data solely to the extent necessary to provide the Services and related services to Client and as otherwise provided herein. Client further instructs Connectly to use and disclose Client Data and Customer Data as necessary to (a) provide the Services consistent with this Agreement and Connectly’s Privacy Policy, including detecting, investigating, and preventing security incidents, spam, fraud, or unlawful use of the Services, and (b) respond to Client’s inquiries or any technical problems and ensure the Services are working properly. All personal data shared between the Parties shall only be used for purposes relating to this Agreement and/or the Services. Each Party shall comply with the Data Protection Legislation.

The Parties acknowledge that Connectly is a data processor for the purpose of processing personal data on behalf of Customer when providing the Service to Customer.

Customer shall ensure that it has obtained all required and valid consent under the Data Protection Legislation to the extent such consent is required for the processing of personal data by Connectly for the performance of the Cloud Communication Service. Customer acknowledges that Connectly has the right to monitor and intercept any electronic communications sent or received by Customer under the Cloud Communication Service for the purpose of verifying compliance under this Agreement.

 

Aggregate/Anonymous Data. Client agrees that Connectly will have the right to generate usage data from Client use of the Services and may aggregate anonymized Client Data ("Aggregate/Anonymous Data"). Notwithstanding anything to the contrary herein, the parties agree that Aggregate/Anonymous Data is Connectly Technology, which Connectly may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Connectly’s products and services and to create and distribute reports and other materials). Connectly will not distribute Aggregate/Anonymous Data in a manner that personally identifies Client or its Customers, or that would otherwise violate applicable laws. If Client and Connectly have entered into a BAA, Connectly will use the Aggregate/Anonymous Data only in conformity with the terms of such agreement.

Monitoring. Client understands and agrees that Connectly, and any third-party platform(s) Client uses or accesses in connection with the Services, may monitor and analyze Client Data or Customer Data (including but not limited to reviews, surveys, messages, chats, etc.) to improve the Website, Services or third-party platform; to improve Client’s experience using the Website, Services or third-party platform; to customize and communicate informational or product offerings and promotions to Client; to ensure compliance with the Acceptable Use Policy (including taking corrective action permitted therein); and/or to make the Website, Services, or third-party platform more helpful or useful to Client and other users.

Security. Connectly agrees to maintain physical, technical and organizational measures designed, in its discretion, to secure its systems from unauthorized access, use or disclosure. If Client is a Covered Entity or Business Associate, as defined in HIPAA, Connectly and Client agree to the terms of Connectly’s BAA (currently available at https://www.Connectly.com/business-associate-agreement/), which may be amended from time to time, and to secure and utilize PHI in accordance with the BAA. Connectly takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section.

Storage. Connectly does not provide an archiving service. During the Subscription Term, Client acknowledges that Connectly may delete Client Data no longer in active use. Except for requirements that are included in any BAA entered into between Connectly and Client, Connectly expressly disclaims all other obligations with respect to storage.

9. CLIENT OBLIGATIONS

Warranty. Client warrants and represents that it is in full compliance with all applicable state, federal, and international laws, rules and regulations and that Client will not use the Services in a manner that would violate or cause Connectly to violate any obligation with respect to any such laws, rules or regulations, or amendments thereto, including but not limited to the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, the CAN-SPAM Act, Do Not Call rules and prohibitions, and Canada's Anti-Spam Legislation ("CASL"). Client also warrants and represents that: (a) Client has sole ownership of any Client Data it provides to Connectly, or otherwise has legal rights to provide such Client Data, and Client Data and Connectly’s use thereof will not violate third-party rights, including intellectual property, privacy and publicity rights; (b) Connectly’s possession and/or use of the Client Data on Client’s behalf in connection with the Services, as contemplated hereunder, will not violate any contract, statute, or regulation; (c) any Client Data Client and/or Client’s authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, and will only concern Client or the goods and/or services that Client provides; (d) Client is authorized to provide Connectly with any Customer, Client or Authorized User information it provides in connection with the Services, including any personally identifying information; and (e) Client and/or Client’s authorized representative(s) will only use the Services for interaction with actual Customers. If Client receives any take-down requests or infringement notices related to Client Data or its use of Third-Party Products, it will promptly stop using these items with the Services and notify Connectly immediately. Additionally, if an integration is included in the Services Client orders, Client grants Connectly the right to access Client’s Information or CRM system directly or through a third-party service for the purposes of fulfilling Connectly’s obligations under this Agreement, and Client warrants that Client is not restricted by law or applicable agreement from granting Connectly such right. Connectly will not be held liable for any consequences of false and/or inaccurate content published to an online review or ratings website through Connectly by Client or its Authorized Users.

Customer Consent; Intended Use of the Services. Client understands and agrees that the Services are intended to allow Client to send electronic communication, including but not limited to text messages, only to Client’s own current Customers who have consented to the receipt of such communications and are provided with necessary notices in accordance with applicable law and regulations. Client also understands and agrees that the Services are intended primarily to be used to send transactional and/or informational messages, not advertisements, marketing, telemarketing, or promotional messages, as such are defined in applicable laws, rules, and regulations (hereinafter, collectively “Marketing”), and that Client may use the Services to send Marketing messages only via Connectly Campaigns. Accordingly, Client will for the duration of the Subscription Term: (a) provide all required disclosures to Customers and obtain all required consents and/or authorizations from Customers, based on applicable laws, prior to utilizing the Services; (b) obtain all necessary rights, releases and consents to allow Client Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant Connectly the rights herein; and (c) send Marketing messages through Connectly only via Connectly Campaigns and only in compliance with all local, state, national and international laws, regulations and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions. Client agrees and acknowledges that Client is solely responsible for its compliance with applicable law and regulations and must not rely on the Services for any such compliance. Use of the Services does not guarantee compliance with applicable law or regulation and Connectly expressly disclaims any liability for Client’s non-compliance. Connectly reserves the right to suspend or terminate Client’s access to the Services or the messaging feature if Connectly believes, in its discretion, that Client has violated this Section 5.

10. OPTIONAL TOOLS

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.

You acknowledge and agree that we provide access to such tools “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.

Any use by you of optional tools offered through the Service is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).

We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.

11. THIRD-PARTY LINKS

Certain content, products and services available via our Service may include materials from third-parties.

Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

12. THIRD-PARTY PRODUCTS AND INTEGRATIONS

Connectly may make arrangements with third-party providers, or facilitate Client making arrangements with third-party providers, that provide products or services in connection with the Services described in this Agreement. If Client elects to use applications, integrations, add-ons, software, code, online services, systems and other products not developed by Connectly ("Third-Party Products") in connection with or otherwise made available through the Services, those products may make Third-Party Content available to Client and may access Client’s instance of the Services, including Client Data. Client agrees and acknowledges that use of such Third-Party Products may require Client to enter into separate terms and conditions with such third-party. Connectly is not a party to any such terms and will not be liable thereunder. Connectly does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by Connectly as "powered", "verified" or otherwise) and disclaims all responsibility and liability for these items and their access to the Services, including their modification, deletion, disclosure or collection of Client Data. Connectly is not responsible in any way for Client Data once it is transmitted, copied or removed from the Services.

WhatsApp & Usage Policy

The Customer shall adhere to all the terms & conditions set by WhatsApp at all times. WhatsApp may update WhatsApp Business Policy without notice; by continuing to use the WhatsApp Business Products after such change, Customer consents to such changes.

https://www.whatsapp.com/legal/business-policy/

The Customer is not in violation of the WhatsApp Commerce Policy, and not in any of the restricted industries. https://www.whatsapp.com/legal/commerce-policy/

WhatsApp may add limits to businesses on the number of messages to send per day. All Customers must adhere to this Messaging Limit (https://developers.facebook.com/docs/whatsapp/api/rate-limits)

WhatsApp has the absolute discretion to review, approve or reject any Message Templates (as defined in WhatsApp documentations) at any time.

Customer agrees to ensure full compliance with WhatsApp Policies regarding sending of messages

WhatsApp does not offer a way to be notified when a user has blocked your sender, or to retrieve a list of users who have blocked you.

Any violation of these WhatsApp policies may lead to suspension of the number by WhatsApp. WhatsApp has absolute discretion to limit or remove Customer’s access to or use of the WhatsApp Business Products if Customer receives excessive negative feedback, causes harm to WhatsApp or WhatsApp’s users, or violates or encourages others to violate our terms or policies, as determined by WhatsApp in our sole discretion. If WhatsApp terminates your account for violations of relevant WhatsApp Business terms or policies, WhatsApp may prohibit Customer and Customer organization from all future use of WhatsApp products.

Connectly shall take no responsibility in case of any such violations. Any additional charges arising due to this shall be borne by the Customer.

Once registered on Connectly, Customers cannot reuse the WhatsApp number on WhatsApp Business App or WhatsApp mobile app. The Customer owns the phone number.

WhatsApp Onboarding & Verification Terms

WhatsApp imposes reviews, such as Facebook business verification (https://www.facebook.com/business/help/2058515294227817?id=180505742745347) to ensure the quality of businesses using WhatsApp products. These requirements are prerequisites to use WhatsApp Business API, and Connectly. WhatsApp has absolute discretion to approve Customer’s usage of WhatsApp products. Connectly will assist with the application and submission process

By using Connectly, clients agree to the setup for WABA and WhatsApp business API, and will provide all the prerequisite documents as required by Whatsapp & Facebook.

WhatsApp Message Policy

WhatsApp may change acceptable message types and related policies at their absolute discretion at all times.

The Customer may only initiate chats if you are sending a transactional notification, and only via approved Message Templates (as defined in WhatsApp documentation), subject to applicable pricing. Any Message Templates must comply with WhatsApp’s terms, and only be used for their designated purpose. WhatsApp has the right to review, approve and reject any Message Template at any time. — Customer acknowledges that they are responsible for the variable Message Template costs, billed by Connectly.

If a person initiates a chat with Customer, you may continue that conversation via WhatsApp for up to 24 hours after the last message sent to you by that person without charge (“Customer Service Window”). Outside of the Customer Service Window, Customer may only send messages via approved Message Templates, for which Connectly will bill and charge Customers at the applicable rate.

Customers may use automation when responding during the Customer Service Window, but must also have available prompt, clear, and direct escalation paths to human agents.

13. ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, services and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).

We undertake no obligation to update, amend, or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

14. PROHIBITED USES

In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content, or the Service: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet; (l) in any way which violates the Facebook platform policies found here. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

You also agree not to misuse our Services, for example, by interfering with them or accessing them using a method other than the interface and the instructions that we provide. You may not do any of the following while accessing or using the Services: (1) access, tamper with, or use non-public areas of the Service or Connectly’s computer systems; (2) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (3) access or search or attempt to access or search the Service by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Connectly and third-party integrations authorized by us (and only pursuant to the applicable terms and conditions), unless you have been specifically allowed to do so in a separate agreement with Connectly (NOTE: crawling the Service is permissible if done in accordance with the provisions of the robots.txt file and is limited to publicly-accessible parts of the Service only, however, scraping the Services without the prior consent of Connectly is expressly prohibited); (4) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; or (5) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Service, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Service.

We preserve the right to limit access to the platform for users and/or Facebook pages whose actions result in degrading the experience of other platform users, other Facebook users, Facebook’s employees, affiliates, or partners, or Connectly’s employees, affiliates, or partners.

We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (1) satisfy any applicable law, regulation, legal process or governmental request, (2) enforce the Terms, including investigation of potential violations hereof, (3) detect, prevent, or otherwise address fraud, security or technical issues, (4) respond to user support requests, or (5) protect the rights, property or safety of Connectly, its users and the public. Connectly does not disclose personally-identifying information to third parties except in accordance with our Privacy Policy.

15. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

We do not guarantee, represent, or warrant that your use of the Service will be uninterrupted, timely, secure or error-free.

We do not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.

You agree that from time to time we may remove the Service for indefinite periods of time or cancel the service at any time, without notice to you.

You expressly agree that your use of, or inability to use, the Service is at your sole risk. The Service and all products and services delivered to you through the Service are (except as expressly stated by us) provided 'as is' and 'as available' for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.

In no case shall Connectly, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

16. INDEMNIFICATION

You agree to indemnify, defend and hold harmless Connectly and any parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

17.  SEVERABILITY

In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

18. TERMINATION

In the event these Terms are terminated, the obligations and liabilities of the parties incurred prior to such date shall survive the termination of these Terms for all purposes.

These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our Service.

If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

19. COMMUNICATION BY TEXT MESSAGE OR EMAIL

If you would like to communicate with your users via text message or email you hereby agree to the following Compliance and Indemnity Terms (“CIT”). You are required to use the Service in full compliance with all applicable laws and regulations, including without limitation, all state, provincial and federal laws specifically including but not limited to the Telephone Consumer Protection Act of the United States, as amended (“TCPA”); the Personal Information Protection and Electronic Documents Act of Canada (“PIPEDA”), and any substantially similar provincial privacy laws; and Canada’s Anti-Spam Law, (“CASL”), all as may be amended (the TCPA, PIPEDA and CASL are collectively referred to as the “Electronic Messaging Laws”). By making any use of the Services, you expressly warrant that you are and shall continue to act in full compliance with the law.

You agree that you have read and understand the Electronic Messaging Laws and any similar state or provincial/territorial laws, and all other applicable laws and regulations. You understand that in some cases, applicable state and local restrictions are more restrictive than the federal rules. You should review these rules with your own legal counsel to ensure that you understand and comply. Connectly will not assume responsibility for ensuring that your activities meet applicable legal requirements. Connectly will not assume any liability if you are ever held guilty or found liable for any violation of law, rule or regulation. Notwithstanding the foregoing, you acknowledge that Connectly has and is taking active steps to help support the compliance of its customers, including by having you agree to these Terms.

You understand and acknowledge that it is generally a violation of federal law, including the TCPA, to contact a consumer by phone, text or email without prior express written consent. Connectly is not responsible for ensuring that you do not transmit messages to consumers, including by telephone or email in violation of the consent rules.

You understand and acknowledge that it is generally a violation of the federal law of Canada, including CASL, to contact a consumer by text message, phone, electronic messaging, or email without prior express written consent. You will not contact any individual through the Services or about the Services unless you have established consent to do so in accordance with the applicable law. You will provide proof of such consents or opt-ins, the messages you have sent, and your implementation of unsubscribe requests to us on our request. You will include all content required under the applicable laws in your messages, including your name, mailing address, an email, telephone or web address, and an ability to unsubscribe. You will not send any messages to any individual using the Services if the individual has opted out or withdrawn their consent, including if they have replied “STOP”, or similar, to one of your previous messages. You and not Connectly are solely responsible for the content of your messages, and its compliance with all applicable law. You acknowledge and agree that Connectly acts solely as a service provider to allow the sending of your messages, but that you exercise control over the message content and destination, and must ensure your messages comply with all applicable laws.

Connectly is not responsible for ensuring that you do not transmit messages to consumers, including by text message, telephone or email in violation of the consent rules.

You agree to indemnify, defend and hold harmless Connectly, along with its owners, members, directors, officers, agents, employees, contractors, consultants and vendors from and against any and all claims, suits, fines, costs, expenses, judgments and fees, including reasonable attorney’s fees, court costs and expenses, arising out of a claim alleging any violation by you of the law, or alleging facts that would constitute a breach of your warranties or obligations contained in these Terms, including this CIT. You will promptly indemnify, defend or settle, any such third-party claim, demand, lawsuit, investigation or proceeding brought against Connectly. Connectly will: (i) promptly notify you of such claim, (ii) provide you with reasonable information, assistance and cooperation in defending the lawsuit or proceeding, and (iii) give you control and authority over the defense and settlement of such claim, subject to Connectly’s approval of any such settlement, which approval will not be unreasonably withheld.

20. GOVERNING LAW

These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of the state of California, in the United States. Connectly’s mailing address is 601 Marshall Street, Redwood City CA 94063, United States.

21. FEES AND PAYMENT.

Fees. Unless otherwise specified on the applicable Subscription Documentation, the Services are provided on an ongoing, per license subscription-basis including automatically recurring payments for periodic charges, according to the terms and conditions referenced in the Subscription Documentation ("Subscription"). Client agrees to pay to Connectly the fees for the Subscription to the Services or any Bundle ("Subscription Fees") and any additional fees (if applicable), all as set forth in the applicable Subscription Documentation (collectively, the "Fees"). Except as otherwise specified in the applicable Subscription documentation, unless Client terminates a Free Access Subscription prior to the lapse of the Free Access Subscription term, such Services will convert to a paid Subscription and Client agrees to pay Connectly the applicable Subscription Fees according to the terms of this Agreement. Unless otherwise specified in the applicable Subscription Documentation, payment for all Fees is due within thirty (30) days of the invoice date.

Payment of Fees. Unless otherwise specified in the applicable Subscription Documentation, all Subscription Fees will be paid annually in advance, though overage fees (if any) may be charged in arrears, and all references to currency set forth herein will mean U.S. dollars, with all payments hereunder to be made in U.S. dollars. Subscription Fees are non-refundable and non-creditable, except as expressly set forth in Sections 2.3 (Modification of the Services) and 8.3 (Termination for Cause). If the payment method selected on the applicable Subscription Documentation is credit card, ACH, or direct debit, Client authorizes Connectly to charge the Subscription Fees automatically, on an auto-renew basis on your Subscription Start Date (as defined below) for each subsequent Subscription Term. For the avoidance of doubt, all additional Subscription Fees for additional Services accessed by Client will be billed when the Service is first accessed by Client and automatically, on an auto-review basis on Client’s existing Subscription Start Date. The Subscription will continue unless and until you or Connectly terminate your Subscription in accordance with Section 8. You must cancel your Subscription before it renews in order to avoid billing of the next periodic Subscription Fees to your account. If Client elects to pay by credit card, then you are responsible for both (a) enabling auto-recharge on your account and (b) ensuring that your account has a sufficient positive balance to cover all Fees when due. Should Connectly be unable to process/receive the Fees when due and owing, payment shall be considered overdue. Connectly shall have the right to charge interest on all overdue amounts at the annual rate of 12%, compounded monthly, or the maximum lawful amounts, whichever is less. Additionally, after payment becomes overdue, Connectly shall have the right to immediately suspend Client’s access to the Services and/or seek to enforce Client’s payment obligations including through the use of third-party services.

Taxes. Connectly’s Fees are exclusive of all taxes, and Client must pay any applicable taxes or levies, whether domestic or foreign, other than taxes based on the income of Connectly. Client will make tax payments to Connectly to the extent amounts are included on Connectly’s invoices.

Annual Fee Increase. Connectly reserves the right to increase Fees for any Services, upon sixty (60) days’ prior written notice, effective on the start date of your subsequent Subscription Term.

22. DISCLAIMERS

EXCEPT AS PROVIDED EXPRESSLY HEREIN, ALL Connectly TECHNOLOGY AND RELATED SERVICES, MATERIALS AND CONTENT AVAILABLE THROUGH THE Connectly TECHNOLOGY ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. NEITHER Connectly NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. Connectly MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT Connectly TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT Connectly TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, AND Connectly DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. Connectly WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-Connectly SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON Connectly TECHNOLOGY OR Connectly’S RELATED SERVICES (INCLUDING CHANGES TO CLIENT PROPERTIES). THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR Connectly ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING ANY OF THE Connectly ENTITIES OR THE SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. Connectly DOES NOT PROVIDE ITS CLIENTS WITH LEGAL ADVICE REGARDING DATA PRIVACY OR COMPLIANCE WITH RELEVANT LAW IN ANY JURISDICTION, AND ANY STATEMENTS MADE BY Connectly TO ITS CLIENT(S) DOES NOT CONSTITUTE LEGAL ADVICE. USE OF THE SERVICES DOES NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS IN ANY JURISDICTION.

LIMITATIONS OF LIABILITY

TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL Connectly OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL Connectly’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID BY CLIENT TO Connectly FOR THE APPLICABLE SERVICE(S) OR RELATED SERVICE(S) IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES PROVIDED WITHOUT CHARGE, Connectly’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50.00 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 21 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY Connectly TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 14 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Data Processing Annex (DPA)

 

This Data Processing Annex applies to all processing of personal data on End-Users that Customer provides to Connectly through the Services.

 

Terms such as “personal data”, “processing”, “data controller”, “data processor”, “personal data breach” etc. shall have the meaning assigned to them under the applicable data protection legislation, such as the Regulation (EU) 2016/679 (General Data Protection Regulation), except for the definition of sub-processor which explicitly excludes telecom carriers and other telecom service providers which are deemed necessary for the operation of the Services, yet, due to the fact that such parties are acting as a mere conduit or as an independent data controller, do not fall under the definition of data processor as stated in the Data Protection Legislation. Additionally, the definitions of: “controller” includes “Business”; "processor" includes “Service Provider”; “data subject” includes “Consumer”; “personal data” includes “Personal Information”; in each case as defined under the CCPA.

 

Connectly and Customer both acknowledge and agree that the exchange of personal data between the Parties does not form part of any monetary or other valuable consideration exchanged between the Parties with respect to the Agreement or this DPA. For the avoidance of doubt, Connectly does not sell Customer’s personal data or the personal data of end users.

 

Customer and Connectly both acknowledge and understand that with respect to the processing of personal data of end-users (‘data subjects’), which Customer exports to Connectly for the provision of the Services, Connectly acts as a data processor.

  1. Customer hereby instructs Connectly to process data subjects’ personal data to the extent required for the performance of the Services under the Agreement.
  2. Connectly shall, in relation to any personal data which is processed in connection with the Services:
  1. process personal data only on documented instructions of Customer, unless otherwise required by the laws of any member of the European Union or by the laws of the European Union applicable to Connectly to process personal data;
  2. only provide personnel with ‘need to know’ access to the personal data and ensure that all such personnel who have access to or process personal data are under a legal obligation to keep the personal data confidential;
  3. take appropriate technical and organizational measures to protect the personal data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the level of risk presented by the processing (and having regard to the nature of the personal data) and to the harm which might result from a personal data breach affecting the personal data;
  4. provide Customer with any assistance as reasonably requested by Customer in order to allow Customer to comply with obligations of Customer under the Data Protection Legislation, including the notification of personal data breaches, security of processing and assisting Customer with the performance of any relevant data protection impact assessment;
  5. provide Customer with reasonable assistance in order to allow Customer to comply with its obligations to data subjects who exercise their rights under the Data Protection Legislation. Connectly will make available technical and organizational measures to allow Customer to fulfil these obligations via the account of Customer. Customer hereby acknowledges and agrees that requests sent by Customer via email are not considered as a valid means to exercise its rights and that any such requests will not be processed by Connectly. For the avoidance of doubt, Customer as the data controller is responsible for processing any request or complaint from data subjects with respect to the personal data of a data subject;
  6. at Customer’s choice, delete or return personal data and copies thereof to Customer on termination of Customer’s agreement with Connectly, unless otherwise required by applicable laws;
  7. maintain records as required under the Data Protection Legislation of the processing activities carried out under the Agreement and this DPA;
  8. be prohibited from retaining, using, or disclosing the personal data for any purpose other than as specified in the Agreement, as set out in this DPA, or as otherwise permitted by the Data Protection Legislation, unless Connectly is required to do so due to a legal obligation, in which case it will act as a data controller;
  9. not further collect, sell, or use personal data except as necessary for the fulfillment of the Agreement.
  10. at least every second year, audit the security and personal data processing activities of Connectly, and provide Customer (on a confidential basis), upon its specific written request, with a summary or a description of the results of such audit. A summary of an ISO 27001:2013 audit report will be considered to fulfil the request of Customer. For the avoidance of doubt, the audit may either be an internal audit, or an audit performed by a third party, which decision shall, however, be in the sole discretion of Connectly;
  11. if the summary or description of the results of the audit provided by Connectly to Customer, according to paragraph 2(j) of this DPA, gives Customer substantiated reasons to believe that Connectly is in breach of its obligations under this DPA, related to the personal data provided by Customer, allow an independent and qualified third party appointed by Customer and approved by Connectly, to audit the applicable personal data processing activities of Connectly, provided that the terms under Clause 3 of this DPA are met; and,
  12. notify Customer as soon as reasonably possible if Connectly receives a notice or communication from a governmental or regulatory body which relates directly to the processing of personal data, as instructed and provided by Customer, by Connectly or its (sub-)processors, unless notifying Customer of such notice or communication is prohibited by law.
  1. Customer shall:
  1. notify Connectly at least two (2) months before exercising the audit right of Customer under paragraph 2(k) of this DPA:
  2. ensure that any audit does not unreasonably disrupt the business operation of Connectly; and,
  3. bear and pay for all costs of such an audit.
  1. Customer represents and warrants that it has provided notice to the End-User that the personal data is being used or shared in accordance with the terms and conditions envisaged in Section 1798.140(t)(2)(C)(i) of the CCPA. Customer is responsible for compliance with the requirements of the CCPA applicable to it as a data controller.
  2. If Customer acts as a data controller, Customer guarantees that all processing activities are lawful, have a specific purpose, and any required notices and consents or otherwise appropriate legal basis are in place to enable lawful transfer of personal data. If Customer is a data processor (in which case Connectly will act as a sub-processor, Customer ensures that the relevant data controller guarantees that the conditions listed in this clause are met.
  3. Given the nature of the Services, the use of the Services by Customer and Customer’s End-Users may require the transfer of personal data outside the EEA; when the performance of the Services involves a transfer of personal data to sub-processors outside the EEA, Customer hereby gives Connectly a mandate for the term of all agreements in place between Customer and Connectly to enter into EU Model Contract Clauses with sub-processors outside the EEA on behalf of Customer, if no other appropriate transfer mechanisms under the Data Protection Legislation apply.
  4. By means of this clause, Customer gives Connectly a general written authorization for the engagement of any other third parties as new sub-processors for the processing of personal data, subject to the terms of this DPA. Connectly will not engage any sub-processor in the processing of personal data under this Agreement without prior informing Customer of any intended change concerning the addition or replacement of other processors, thereby giving Customer the opportunity to object to such changes. Customer may reasonably object to Connectly’s use of a new sub- processor (where using such a new sub-processor would weaken the protections for Personal Data provided in this DPA) by notifying Connectly promptly in writing within five (5) business days’ notice period. Such notice shall explain the reasonable grounds for the objection. Where Customer objects to the new sub-processor, Connectly shall work with Customer in good faith to make available a commercially reasonable change in the provision of the Services which avoids the use of that proposed sub-processor. If Connectly is unable to make such change available within thirty (30) business days from Connectly’s receipt of Customer's notice, either party may terminate the applicable features of the services which cannot be provided by Connectly without the use of the proposed sub-processor.
  5. Customer specifically agrees to the engagement of the entities listed at https://www.Connectly.com/en-gb/legal/privacy#processorList as sub-processors of Connectly for the processing of personal data. Connectly shall update the list of sub-processors when a new sub-processor for the processing of personal data is engaged.
  6. Connectly will take all available and appropriate contractual measures to ensure that when a sub- processor is engaged:
  1. the sub-processor will only process personal data if such processing is necessary for performance of the Services or a part thereof, and comply with the specific instructions stated in the Agreement, and;
  2. data protection obligations providing similar protection as those in this DPA shall be imposed on the sub-processor by way of a contract or other legal act under EU or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the Data Protection Legislation.
  1. Connectly remains liable to Customer under this DPA for the performance of the data protection obligations of its sub-processor.
  2. Connectly hereby certifies that it understands all its contractual restrictions set out in the CCPA and will comply with them, to the extent applicable.
  3. Details of the processing:
  1. Subject matter and purpose of the processing: provision of the Services of Connectly to Customer.
  2. Categories of personal data: information on End-Users that Customer provides to Connectly through the Services.
  3. Categories of data subjects: data subjects can include customers of the Customer, employees, suppliers, and any other natural person who is the End-User of Services, from whom Customer provides personal data through the use of the Services.
  4. Duration of the processing: personal data will be processed for as long as required for the performance of the Services, or as required under applicable law.

Connectly Customer Agreement 


This Customer Agreement (this “Agreement”) is entered into by and between Connectly Inc., a Delaware corporation (“Connectly”), and  Customer. “Customer” means the company or other legal entity that entered into an Order Form (as defined below) or through the Connectly website referencing this Agreement.  You represent that you have the authority to bind Customer to the terms of this Agreement. If you do not agree to the terns of this Agreement, or if you are not authorized to accept this Agreement on behalf of your organization or entity, do not access or use any of the Connectly Products (defined below).

Background

Connectly has developed and makes available a SaaS-based platform to assist businesses to communicate with their customers within their favorite messaging channels, including Whatsapp, SMS, Facebook Messenger and Instagram (the “Connectly Product”).  Customer desires to use the Connectly Product to augment its existing communication capabilities with its customers.

  1. Definitions
  1. The following terms, when used in this Agreement will have the following meanings:

Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists.  For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.

Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.  However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Connectly for the Connectly Product.

Non-Connectly Product” means a third party or Customer web-based, mobile, offline or other software application that integrates with the Connectly Product (other than third party data hosting services used by Connectly).  For clarity, the Connectly Product excludes Non-Connectly Products.

Order Form” means an order form, quote or other similar document that sets forth the specific Connectly Product and pricing therefor (including in relation to overages), permitted number of users and subscription term, and that references this Agreement and is mutually executed by the parties. 

  1. Connectly Product
  1. Provision of Connectly Product.  Subject to the terms and conditions of this Agreement, Connectly will make the Connectly Product available to Customer pursuant to this Agreement and applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Connectly Product for its internal business purposes. 
  2. Data Security.  
  1. Connectly will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the Connectly Product (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.  In furtherance of the foregoing, Connectly will maintain the administrative, physical and technical safeguards to protect the security of Customer Data.
  2. To the extent that Connectly processes any Personal Data (as defined in the DPA referenced below) contained in Customer Data that is subject to Data Protection Legislation (as defined in the DPA), on Customer’s behalf, in the provision of the Connectly Product, the parties will execute a Data Processing Addendum ("DPA"), and such DPA is hereby deemed incorporated herein by reference.
  1. Customer Responsibilities.
  1. Customer acknowledges that Connectly’s provision of the Connectly Product is dependent on Customer providing all reasonably required cooperation, and Customer will provide all such cooperation in a diligent and timely manner.
  2. Customer will (i) be responsible for all use of the Connectly Product under its account, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Connectly Product and notify Connectly promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Connectly Product and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Connectly Product, including as set forth in the Documentation.  Customer will be solely responsible for its failure to maintain such equipment, software and services, and Connectly will have no liability for such failure (including under any service level agreement).  
  3. Customer shall be responsible for the content of all communications sent by its users via the Connectly Product.  Customer agrees that it will not use the Connectly Product to communicate any message or material that (i) is libellous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) constitutes or encourages conduct that could constitute a criminal offense.
  1. Affiliates.  Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Connectly and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement.  With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate.  Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.
  1. Fees
  1. Fees. Customer will pay Connectly the fees set forth in the applicable Order Form.  Customer shall pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice, unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified.  Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
  2. Late Payment.  Connectly may suspend access to the Connectly Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.
  3. Taxes.  All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”).  Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Connectly.  Customer will not withhold any Taxes from any amounts due to Connectly.
  1. Proprietary Rights
  1. Proprietary Rights.  As between the parties, Connectly exclusively owns all right, title and interest in and to the Connectly Product, System Data and Connectly’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, insights produced specifically for Customer via the use of the Connectly Product by Customer (which will constitute Customer Data for purposes hereof) and Customer’s Confidential Information.  “System Data” means data collected by Connectly regarding the Connectly Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Connectly Product.
  2. Feedback.  Customer may from time to time provide Connectly suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Connectly Product.  Connectly will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  Connectly will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
  3. Product Improvement and Aggregated Statistics. Customer further agrees that Connectly has the right to aggregate, collect and analyze [Customer Data and other] information relating to the performance of the Connectly Product and shall be free (during and after the term hereof) to (i) use such data and other information to improve Connectly’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.
  1. Confidentiality; Restrictions
  1. Confidentiality.  Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder.  However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.  Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.  Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
  2. Technology Restrictions.  Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Connectly Product; (b) attempt to probe, scan or test the vulnerability of the Connectly Product, breach the security or authentication measures of the Connectly Product without proper authorization or wilfully render any part of the Connectly Product unusable; (c) use or access the Connectly Product to develop a product or service that is competitive with Connectly’s products or Product or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Connectly Product or otherwise offer the Connectly Product on a standalone basis; or (e) otherwise use the Connectly Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.
  1. Warranties and Disclaimers
  1. Connectly.  Connectly warrants that it will, consistent with prevailing industry standards, provide the Connectly Product in a professional and workmanlike manner and the Connectly Product will conform in all material respects with the Documentation.  For material breach of the foregoing express warranty, Customer’s exclusive remedy shall be the re-performance of the deficient Connectly Product or, if Connectly cannot re-perform such deficient Connectly Product as warranted within thirty (30) days after receipt of written notice of the warranty breach, Customer shall be entitled to terminate the applicable Order Form and recover a pro-rata portion of the prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.
  2. Customer.  Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Connectly to use the same as contemplated hereunder.
  3. DISCLAIMERS.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  CUSTOMER ACKNOWLEDGES THAT THE CONNECTLY PRODUCT IS INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S COMMUNICATION TOOLS, SYSTEMS AND PROCESSES.  CONNECTLY DOES NOT REPRESENT OR WARRANT THAT THE CONNECTLY PRODUCT WILL BE ERROR-FREE [AND CUSTOMER ACKNOWLEDGES THAT THE INSIGHTS PROVIDED BY THE CONNECTLY PRODUCT DO NOT CONSTITUTE PROFESSIONAL ADVICE OR COUNSEL].  CONNECTLY IS NOT RESPONSIBLE OR LIABLE FOR ANY NON-CONNECTLY PRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.
  4. BETA PRODUCTS.  FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH CONNECTLY WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY CONNECTLY. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”.  CONNECTLY DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO.  CUSTOMER OR CONNECTLY MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.
  1. Indemnification
  1. Indemnity by Connectly.  Connectly will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Connectly Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Connectly) in connection with any such Claim; provided that (a) Customer will promptly notify Connectly of such Claim, (b) Connectly will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Connectly may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Connectly in connection therewith.  If the use of the Connectly Product by Customer has become, or in Connectly’s opinion is likely to become, the subject of any claim of infringement, Connectly may at its option and expense (i) procure for Customer the right to continue using and receiving the Connectly Product as set forth hereunder; (ii) replace or modify the Connectly Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.  Connectly will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Connectly Product by Customer not in accordance with this Agreement; (C) modification of the Connectly Product by or on behalf of Customer; (D) Customer Confidential Information or (E) the combination, operation or use of the Connectly Product with other products or services where the Connectly Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”).  This Section states Connectly’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
  2. Indemnification by Customer.  Customer will defend Connectly against any Claim made or brought against Connectly by a third party arising out of the Excluded Claims, and Customer will indemnify Connectly for any damages finally awarded against Connectly (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Connectly will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Connectly’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Connectly of all liability) and (c) Connectly reasonably cooperates with Customer in connection therewith.
  1. Limitation of Liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF SECTION 5 OR A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

  1. Termination
  1. Term.  The term of this Agreement will commence on the Effective Date and continue until terminated as set forth below.  The initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein.  Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
  2. Termination.  Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect.  Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. 
  3. Survival.  Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below. Upon expiration or termination of this Agreement, each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control.  
  1. General
  1. Publicity.  Customer agrees that Connectly may refer to Customer’s name and trademarks in Connectly’s marketing materials and website; however, Connectly will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).
  2. Assignment; Delegation.  Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement.  Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
  3. Amendment; Waiver.  No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.  Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision.  Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
  4. Relationship.  Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
  5. Unenforceability.  If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
  6. Governing Law.  This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws.  This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
  7. Notices.  Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery.  Notices to the parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.
  8. Entire Agreement.  This Agreement comprises the entire agreement between Customer and Connectly with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written).  No oral or written information or advice given by Connectly, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
  9. Force Majeure.  Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
  10. Government Terms.  Connectly provides the Connectly Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement.  If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Connectly Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement.  All other use is prohibited and no rights than those provided in this Agreement are conferred. The Connectly Product was developed fully at private expense.
  11. Interpretation.  For purposes hereof, “including” means “including without limitation”.