This Salesmsg Messaging Services Agreement (“MSA”) is entered into as by and between SalesMessage, Inc (“Salesmsg”), a Delaware corporation having its principal offices at 1045 East Atlantic Ave #202, Delray Beach, FL 33483 and the entity entering into this MSA with Salesmsg through a corresponding Order Form or otherwise (“Company”, and together with Salesmsg, each a “Party” or jointly as the “Parties”). In consideration of the mutual obligations contained in this Agreement, the Parties agree as follows:
1. DEFINITIONS. All capitalized terms shall have the meanings ascribed to them in this Section 1 or elsewhere in this Agreement or associated Order Form.
1.1. “Admin User” means the Company employee who has access to certain additional features and functionalities of the Messaging Services to monitor and administer Company’s account including without limitation the ability to grant access to use the Messaging Services to Authorized Users.
1.2. “Affiliate” means, with respect to either Party, any person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such Party. For purposes of this Agreement, the word “control,” when used with respect to any specified person, means the power to direct the management and policies of such person, directly or indirectly, or ownership of at least 50 percent (50%) of the voting securities of such person.
1.3. “Agreement” means this MSA in combination with any associated Order Form(s).
1.4. “Applicable Law” means any law, regulation, rule, or order, of any government authority applicable to a Party, its business, or the subject matter of this Agreement, including but not limited to the following United States (and if applicable, Canadian) statutes and any regulations relating thereto: the Telephone Consumer Protection Act, the Telephone Consumer Fraud & Abuse Prevention Act, the Controlling the Assault of Non- Solicited Pornography and Marketing (CAN-SPAM) Act, the Children’s Online Privacy Protection Act, and (if applicable) Canada’s Anti- Spam Legislation.
1.5. “Authorized User” means an employee, contractor, or agent of Company who is authorized to use the Messaging Services and who has access to the Messaging Services via a unique username and password under Company’s Account.
1.6. “Confidential Information” means any information however disclosed by a Party (a “Disclosing Party”) to the other Party (a “Receiving Party”) that is when disclosed or within thirty (30) days of disclosure designated or described as “Confidential,” “Proprietary,” or information that the Receiving Party knows, or reasonably should have known, was the Confidential Information of the Disclosing Party
1.7. “Content” means any and all text, pictures, video, or any other type or form of information contained in the body of any Message.
1.8. “Salesmsg APIs” means any application programming interface provided by Salesmsg as part of its Messaging Services, which allows customers like Company to establish access to the Messaging Services for sending and receiving Messages, uploading and managing contacts, and other service-related access.
1.9. “Inappropriate Content” means any Content that (a) violates Applicable Law, (b) violates any Salesmsg policies including without limitation Salesmsg’s Acceptable Use Policy, or is otherwise unsolicited, including without limitation, spam or other unsolicited commercial or other advertising material, (c) violates any authoritative industry guidelines, or violates any Network Operator requirements, conditions, or codes of practice, (d) is racist, harassing, defamatory, libelous, abusive, threatening, demeaning, vulgar, pornographic, obscene, coercive or objectionable, including material that is false, misleading or inaccurate, (e) violates the rights of any person or company protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations, (f) contains any malicious programs including viruses, worms, Trojan horses, e-mail bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, data or personal information, including executing any form of network monitoring that will intercept data not expressly approved for use, or (g) Salesmsg reasonably believes in its sole discretion could subject it to criminal or civil liability or cause it to lose its common carrier status.
1.10. “Message(s)” means any short-message service message (SMS), multi-media service message (MMS), or other form of message supported by the Messaging Services that is free of Inappropriate Content.
1.11. “Messaging Services” means the Salesmsg text-based and related communications services accessible via Salesmsg’s website (www.salesmessage.com), mobile applications, and APIs that are being provided by Salesmsg to Company on a non-exclusive basis.
1.12. “Network Operator” means any mobile network operator, wireless service provider, wireless carrier, cellular company, Third Party operator or user of a communications network to and from which Salesmsg can directly transmit and receive Messages.
1.13. “Order Form” means any order form signed by the Parties that indicates the Messaging Services to be provided Salesmsg and the fees to be paid by Company and which also incorporates by reference this Agreement.
1.14. “Pass Through Fees” means any fees imposed by a Network Operator or Third Party for the delivery of any Message.
1.15. “Third Party” means any person not a Party to this Agreement.
2. SALESMSG SERVICES.
2.1. Messaging Services. Subject to the terms and conditions of this Agreement Salesmsg will make the Messaging Services, including the Salesmsg APIs, available to Company on a non-exclusive basis.
2.2. Access to Services. Company’s Admin User may allow such number of Company employees and/or independent contractors as is indicated on an Order Form to use the Messaging Services on behalf of Company as Authorized Users, provided each Authorized User creates a unique password protected account. All Authorized Users shall be deemed to be part of Company’s account and Company is solely responsible for all use (whether or not authorized) of the Messaging Services conducted via Company’s account including without limitation all charges related to such use.
2.3. Suspension of Access. Salesmsg may suspend Company’s account and access to the Messaging Services at any time and without prior notice if Salesmsg reasonably believes that any use of the Messaging Services via Company’s account is in violation of this Agreement. Although Salesmsg is under no obligation to monitor Company’s use of the Messaging Services, Salesmsg may do so and may prohibit any use it reasonably believes may be or alleged to be in violation of the foregoing provided however, that Company shall not have any right to transfer such dedicated short code and Salesmsg shall not have any obligation to assist in any requested transfer by Company until (i) after the first anniversary date of the Effective Date of this Agreement, and (ii) Company has paid in full all amounts due to Salesmsg pursuant to this Agreement.
2.4. Affirmative Consent. Company will only send Messages to end users who have affirmatively consented (“opted-in”) to receive such Messages, and Salesmsg will automatically assume and rely on the foregoing obligation of Company. Company acknowledges and agrees that using the Messaging Services to send Messages to phone numbers that have not affirmatively consented, or that have subsequently opted out is a material breach of this Agreement and contrary to Applicable Law. Company is prohibited from using third party lists whether consent has been gathered or not.
2.5. Opt-Out. Company will include clear opt-out or unsubscribe instructions in its messages when required to do so by Applicable Law, and Company agrees to comply with all Network Operator policies including without limitation the CTIA’s Messaging Principles and Best Practices, if and when applicable to Company’s Messages. Company shall honor any such opt-out requests immediately. Company will acknowledge and honor all opt-out requests by sending one final opt-out confirmation message to notify the consumer that they have opted-out successfully. No further messages will be sent following the confirmation message unless a valid opt-in is re- obtained.
2.6. Message Content. Company is solely responsible for the Content of any Message it or any third party on its behalf generates and sends to end users through the Messaging Services, and Company shall not use the Messaging Services, or permit any Messaging Services to be used directly or indirectly, to transmit Inappropriate Content.
2.7. Rights in the Content. Except for stock images made available to Company by the Messaging Services, Company represents and warrants that it has all rights, title, and interests necessary to transmit such Content to and via the Message Services and that Company’s provision of the Content does not infringe any third party’s proprietary or personal rights, including without limitation, any trademark, copyright, patent, or trade secret. By providing any such information or materials to Salesmsg (other than information required for Company’s use of the MessagingServices as contemplated herein), Company grants to Salesmsg an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works of, and distribute such information and materials for the purpose of Salesmsg performing its obligations under this Agreement.
2.8. Provisioning of Services. Company acknowledges and agrees that Salesmsg is a regulated telecommunications carrier, serving as a passive conduit that provides telecommunication services consisting of the processing and delivery of Company’s messages to Network Operators and that the final delivery of Messages to end users is the responsibility of Network Operators and outside of Salesmsg’s control. Company acknowledges and agrees that all Messages are subject to Network Operator policies and conditions including without limitation maximum message length and that the time it takes to transfer a Message to an end user and whether the end user receives the Message is dependent upon a number of conditions prevailing at the time of submission, many or all of which are outside of Salesmsg’s control and that Salesmsg will not be liable to Company for any losses, costs, or damages incurred as a result of (a) the actions of any Network Operator, (b) the unavailability of the Messaging Services, or (c) the delay or failure of any Message in reaching one or more end users. Salesmsg reserves the right to segment, truncate, or otherwise reduce the length of any Message or to refuse to transmit and/or deliver a Message that does not comply with any Network Operator’s policies or conditions.
2.9. No Guarantee of Message Privacy. Company acknowledges and agrees that Messages may be transmitted in an unencrypted format and Salesmsg cannot guarantee the privacy of any message. Company agrees that Salesmsg will not be liable to Company or any third party for any lack of privacy or security regarding message content by virtue of using the Messaging Services.
2.10. Limitations on Message Transmissions. Salesmsg shall have the right not to accept, transmit or deliver any Message that Salesmsg or any Network Operator reasonably believes, exercising reasonable discretion based on industry experience, contains Inappropriate Content or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including without limitation any law enforcement, proceeding, process, or inquiry.
2.11. Account Suspension. Salesmsg may suspend, terminate, or otherwise deny Company access to or use of all or any part of the Messaging Services without incurring any resulting obligation or liability, if Salesmsg reasonably believes, exercising reasonable discretion based on industry experience that (a) the traffic created from Company’s account is fraudulent or negatively impacting the operating capability of the Messaging Services, (b) Company’s use of the Messaging Services is not in compliance with Applicable Law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Messaging Services, (c) there is any use of the Messaging Services by Company that in Salesmsg’s reasonable judgment threatens the security, integrity, or availability of the Messaging Services, or Salesmsg’s legal status as a common carrier under applicable law, or (d) Company has materially breached this Agreement. Salesmsg will use commercially reasonable efforts under the circumstances to (i) provide Company with notice and where practicable an opportunity to remedy such violation or threat prior to any such suspension, (ii) where practicable, limit the suspension based on the circumstances leading to the suspension (e.g. to certain phone numbers, sub-accounts or othersubset of traffic), and (iii) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.
2.12. Forecasting. Company agrees to use commercially reasonable efforts to provide any anticipated usage information reasonably requested by Salesmsg solely for the purpose of assisting Salesmsg in developing a projection of Company’s anticipated minimum and maximum usage of the Messaging Services for the next 6 months. Such forecasts may include the anticipated number of Messages per day, the peak Messages per hour and per minute. Salesmsg may update these six-month projections and forecasts quarterly.
2.13. Compliance with Laws. Company will comply with all Applicable Laws and Network Operator rules and directions while using the Messaging Services and will not transmit any communication that would violate any federal, state or local law, court order or regulation. Company will cooperate with Salesmsg, Network Operators and/or governmental authorities in investigations alleging a violation of any law, rule or regulation. The Parties shall cooperate by (a) notifying each other of any enforcement action, governmental investigation, governmental inquiry, or other communications with any governmental authority relating to performance of this Agreement, unless doing so would violate such action, investigation, inquiry, or request, and (b) negotiating with the other Party in good faith and adopting any modifications to this Agreement necessary to comply with the laws, rules, and regulations.
2.14. Technical Support. Salesmsg will provide Company with technical support for the Messaging Services in accordance with Salesmsg’s policies, including, without limitation, providing all necessary and commercially reasonable error corrections, fixes, and workarounds, to promptly remedy any errors associated with the Messaging Services, and will use commercially reasonable efforts to provide such support during Salesmsg’s standard business hours.
2.15. Reverse Engineering Prohibited. Except as allowed by Applicable Law, Company will not reverse engineer, decompile, disassemble, derive, or otherwise create, attempt to create or derive, or assist anyone else to create or derive the source code of any software provided in connection with the Messaging Services.
2.16. California Consumer Privacy Act of 2018. As part of the Messaging Services, Salesmsg hosts and processes data, including personal information, about the contacts Company wishes to communicate with by using the Salesmsg Platform. The parties acknowledge and agree that Salesmsg is a “service provider” as defined by the California Consumer Privacy Act of 2018 (“CCPA”) (Cal. Civ. Code § 1798.100 et seq.). This means that Salesmsg processes personal information on Company’s behalf when Company discloses to Salesmsg the personal information of contacts (“Contact Data”) in order to use our Messaging Services. When Salesmsg process Contact Data on Company’s behalf, Salesmsg agrees that it will not (a) retain, use, or disclose Contact Data we process in connection with the Messaging Services for any purpose other than for performing the Messaging Services in this Agreement and Company’s instructions, (b) use or process Contact Data for commercial purposes or direct marketing, (c) sell or promote the sale of Contact Data, and (d) disclose or transfer Contact Data to unauthorized personnel or parties, or outside the direct business relationship between Company and Salesmsg.
2.17. Data Security. In providing the Messaging Services, Salesmsg employs data security protocols and measures consistent with generally accepted industry standards, and in any event no less than commercially reasonable standards, considering the types and nature of the data (including Contact Data) processed, stored, accessed, collected and/or used by Salesmsg and/or its permitted affiliates, agents, consultants, personnel and other representatives in the provision of the Messaging Services, and all applicable laws and regulations. Salesmsg maintains a data breach plan and upon the occurrence of any data breach with respect to the Messaging Services or the systems maintained by or on behalf of Salesmsg affecting the Contact Data or the Messaging Services, Salesmsg will comply with all applicable laws and implement the procedures required under such data breach plan.
3. FEES AND PAYMENTS
3.1. Fees. Company shall pay to Salesmsg the amounts set forth in the Order Form attached here to with respect to the Messaging Services provided by Salesmsg and any Pass Through Fees incurred and invoiced by Salesmsg in connection with any Messaging Services provided by Salesmsg hereunder.
3.2. Pass Through Fees. If at any time after execution of this Agreement, a Network Operator or other Third-Party changes the Third-Party Fees then Salesmsg, at its discretion, may pass through such Pass- Through Fees to Company at cost. Pass-Through Fees will be added to the monthly invoice in USD. The rate of exchange to be used to compute the Pass-Through Fees from CAD to USD shall be the monthly average rate equal to the New York foreign exchange rate quoted by the Wall Street Journal. The monthly average exchange rate is the average for the rate published on the first and the last day of the month.
3.3. Invoicing and Payment. Any invoiced charges are due net 30 days from the invoice date. Unless otherwise specified in the Order Form, all undisputed payments are due and payable by Company to Salesmsg in United States dollars upon receipt of the invoice. If Company disputes any amounts set forth in the invoice Company shall notify Salesmsg within 15 days of the receipt of and the Parties shall work together in good faith to resolve such dispute. If Company requires a purchase order for payment, no terms on any purchase order provided by Company will be binding on Salesmsg to the extent they differ from the terms of this Agreement.
3.4. Late Payments and Interest. Undisputed payments not received by the due date will be assessed a finance charge of 1.5 percent per month. If Company is paying by credit or charge card, Company acknowledges and agrees that this Agreement constitutes a services agreement for the term specified in the Order Form and that Company is not entitled to any refund.
3.5. Taxes. Company will pay all applicable sales, use, service, value-added, consumption or other taxes associated with the Messaging Services purchased by Company. Salesmsg will pay all taxes on its income and all taxes and insurance associated with its personnel.
4. TREATMENT OF CONFIDENTIAL INFORMATION
4.1. Ownership of Confidential Information. For purposes of this Agreement, all Confidential Information is proprietary to the Disclosing Party and will remain the sole property of the Disclosing Party.
4.2. Mutual Confidentiality Obligations. A Receiving Party shall (a) use Confidential Information only for the purposes described herein, (b) hold in confidence and protect Confidential Information from dissemination to, and use by, any Third Party, (c) restrict access to Confidential Information to a receiving Party’s employees, and, with Disclosing Party’s prior written consent, agents, and consultants, who need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement or are otherwise subject to similar written agreements with respect to the protection of confidential information, and (d) return or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control upon written request of the Disclosing Party. A Receiving Party shall not (i) create any derivative work from Confidential Information of a Disclosing Party, or (ii) reproduce Confidential Information without the prior written consent of the Disclosing Party except as required to accomplish the intent of this Agreement. In the event of any improper disclosure or loss of Confidential Information by the Receiving Party, the Receiving Party will promptly notify the Disclosing Party and reasonably cooperate with the Disclosing Party in investigating and remedying such disclosure or loss and in any subsequent inquiry, dispute or claim arising out of such disclosure or loss.
4.3. Confidentiality Exceptions. Confidential Information does not include information that is (a) publicly available or in the public domain at the time disclosed or becomes publicly available or enters the public domain through no fault of the Receiving Party, (b) lawfully communicated to the Receiving Party by persons not bound by confidentiality obligations with respect thereto, (c) already in the Receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure, or (d) independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
4.4. Authorized Disclosure. Notwithstanding the obligations in Section 4.2 hereof, a Receiving Party may disclose Confidential Information of a Disclosing Party to a court or governmental agency pursuant to statute, regulation, government order, or validly issued subpoena, provided, however, that the Receiving Party shall notify the Disclosing Party in writing as much in advance as is practicable under the circumstances prior to any such disclosure in a good faith effort to provide the Disclosing Party the opportunity to seek a protective order or to contest such required disclosure prior to such disclosure.
4.5. Remedies/Liability Limitation as to Confidential Information. The Parties agree that (a) a Receiving Party’s threatened or actual improper disclosure or use of a Disclosing Party’s Confidential Information will cause irreparable injury to the Disclosing Party for which money damages alone would be an inadequate remedy, and (b) a Disclosing Party shall have the right to seek an immediate injunction of any such threatened or actual improper disclosure or misuse of the Disclosing Party’s Confidential Information from any court of competent jurisdiction in the United States without the need for any bond or other security. Except for an action commenced solely for the purpose of seeking an injunction hereunder, a Party must commence or pursue any other claims or remedies against the other Party in accordance with Section 8.8 hereof.
5. REPRESENTATIONS AND COVENANTS; WARRANTIES DISCLAIMER; LIMITATION OF LIABILITY
5.1. Representations and Covenants. Each Party represents and warrants to the other that (a) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized, (b) it has the right and all necessary authority to enter into this Agreement, (c) upon execution this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms, (d) the execution and performance of this Agreement by it will not violate or conflict with Applicable Law, and (e) during the Term it shall materially comply with Applicable Law.
5.2. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE EXPRESS WARRANTIES IN SECTION 5.1 ARE IN LIEU OF ALL OTHER WARRANTIES AND Salesmsg DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND TITLE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY SERVICES PROVIDED BY Salesmsg HEREUNDER, INCLUDING WITHOUT LIMITATION THE MESSAGING SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE” EXCEPT AS MAY BE SET FORTH IN A SERVICE LEVEL AGREEMENT BETWEEN THE PARTIES, SALESMSG DOES NOT WARRANT THAT THE MESSAGING SERVICES, OR ANY NETWORK OPERATOR SERVICES WILL MEET COMPANY’S REQUIREMENTS OR THAT THE OPERATION OF THE MESSAGING SERVICES WILL BE SECURE, UNINTERRUPTED, OR ERROR FREE.
5.3. LIMITATION OF LIABILITY. IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, AND COSTS OF LOST OR DAMAGED DATA, EVEN IF AND REGARDLESS OF WHETHER IT HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
5.4. IN NO EVENT SHALL SALESMSG’S TOTAL LIABILITY FOR ANY CLAIM(S) OR DEMANDS ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID TO SALESMSG BY COMPANY UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT(S) FROM WHICH THE CLAIM(S) OR DEMANDS AND LIABILITY ARISES. THE LIMITATIONS IN THIS SECTION ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE LIMITATIONS IN THIS SECTION ARE A MATERIAL BASIS OF THE BARGAIN, AND THE TERMS OF THIS AGREEMENT WOULD BE DIFFERENT WITHOUT SUCH LIMITATIONS.
6.1. Indemnification of Salesmsg. Company shall (a) defend Salesmsg, its Affiliates, and their respective officers, directors and employees (individually, a “Salesmsg Indemnitee,” and collectively, “Salesmsg Indemnitees”), against any Permitted Salesmsg Indemnitee Claim, and (b) pay the amount (i) awarded to any such Third Party in any final judgment against any Salesmsg Indemnitee based on any Permitted Salesmsg Indemnitee Claim, or (ii) set forth in any written and executed settlement in full of any and all Permitted Salesmsg Indemnitee Claims of such Third Party. As used herein, “Permitted Salesmsg Indemnitee Claim” means any Third Party claim asserted against any Salesmsg Indemnitee that (1) arises from Company’s material breach of the Agreement, (2) arises from Company’s breach of any agreement with end users or Company customers receiving services from Company, or (3) arises from or related to any Content that is reasonably within the Company’s control.
6.2. Procedure. The foregoing obligations are conditioned on Salesmsg promptly notifying Company in writing of such action, giving Company sole control of the defense and settlement of the claims against Salesmsg (except that Company may not settle any claim against Salesmsg unless it unconditionally releases Salesmsg from all liability) and at Company’s reasonable request and expense, assisting Company in such defense.
7. TERM AND TERMINATION
7.1. Term. The initial term of this Agreement will be for a period of one year unless the Agreement is earlier terminated in accordance with this Section 7. The term will automatically renew for successive one-year periods unless either Party provides written notice of termination to the other Party no less than thirty (30) days prior to the end of the then current term.
7.2. Termination for Breach. Either Party may terminate this Agreement based on a default of the other Party, provided the Party gives at least thirty (30) days’ written notice to the defaulting Party, specifically identifying the default on which such notice is based. The defaulting Party will have a right to cure such default within thirty (30) days of receipt of such notice, and this Agreement will terminate only in the event that such cure is not made within such thirty (30) day period. As used herein, the term “default” means (a) the breach by a Party of any material obligations under this Agreement (including, without limitation, any payment obligations of Company to Salesmsg), (b) a Party’s insolvency, assignment for the benefit of creditors, appointment or sufferance of appointment of a trustee, receiver, or similar officer; or (c) any voluntary or involuntary proceeding seeking reorganization, rehabilitation, liquidation, or similar relief under bankruptcy, insolvency, or similar debtor- relief statutes.
7.3. Survival. The provisions of Sections 1, 3, (to the extent of accrued and outstanding unpaid fees), 4, 5, 6, and 8 will survive the termination or expiration of this Agreement.
8.1. Independent Contractors; No Third-Party Beneficiaries. In making and performing this Agreement, Salesmsg and Company act and will act at all times as independent contractors, and nothing contained in this Agreement will be construed or implied to create an agency, partnership, or employer and employee relationship between them. Neither Party shall have the power by virtue of this Agreement to bind the other Party or incur obligations on the other Party’s behalf without the other Party’s prior written consent. This Agreement is entered into solely between the Parties and may only be enforced by a Party against the other Party.
8.2. Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of courier, by certified U.S. mail, postage prepaid and return receipt requested, by a nationally recognized express mail service or by electronic mail to the corresponding Party at: (a) with respect to Salemsg, the contact information listed below, and (b) with respect to Company, any address or email made available to Salesmsg by Company. Notice will be effective upon receipt or refusal of delivery. Each party may change its address for receipt of notice by giving notice of such change to the other party.
If to Salesmsg:
1045 E Atlantic Ave #202
Delray Beach, FL 33483
With a copy to: email@example.com
8.3. Assignment. Except with respect to an assignment between Salesmsg and any of its Affiliates, neither Party may assign or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party, which shall not be unreasonably withheld, except pursuant to a merger, acquisition, or sale of all or substantially all of such Party’s assets, in which case assignment shall be permitted without the consent of the other Party, provided that notwithstanding the foregoing no fees or pricing in this Agreement relating to any Messaging Services may be assigned by Company, except to an Affiliate of Company, without Salesmsg’s prior written consent, which shall not be unreasonably withheld. Except as permitted by the foregoing, any attempted assignment will be null, void, and of no effect. In the event of permitted assignment of this Agreement, all terms and conditions hereof, except for any pricing or other fees in the Agreement in the case of an assignment by Company, will be binding on and inure to the assignee as though such assignee were an original Party hereto.
8.4. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, or any other event beyond the control of such party (a “Force Majeure Event”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
8.5. Publicity. During the Term, neither party will disclose the existence of this Agreement or any of its terms to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law, (b) pursuant to a mutually agreeable press release, or (c) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to the other party to this Agreement.
8.6. Intellectual Property. The Parties retain all rights, title, and interest in and to their respective intellectual property and nothing in this Agreement, or the performance of a Party’s obligations hereunder, shall, or be construed to, operate as, or to cause, any conveyance, license, or other transfer of a Party’s intellectual property rights to the other Party or any Third Party.
8.7. Governing Law. This Agreement will be governed by, and construed in accordance with, the laws of the State of Florida, U.S.A. without regard to, or application of, any choice of law or conflicts of law rules thereof. Neither the United Nations Convention on the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement. This Agreement is prepared and executed in the English language only and any translations of this Agreement into any other language that either Party may prepare shall have no legal or binding effect on the other Party.
8.8. Jurisdiction and Venue. The Parties agree that any claims of any kind arising from, or related to, this Agreement shall be commenced exclusively in a state or federal court sitting in the state of Florida, U.S.A and each Party hereby (a) irrevocably submits to the jurisdiction of such courts over it, and (b) waives, and agrees not to assert in any action or proceeding in such courts to the fullest permitted by law any defense or objection that the action or proceeding is brought in an inconvenient forum, that the venue of the action or proceeding is improper, or that this Agreement, or the subject matter hereof, or any of the transactions contemplated hereby, may not be enforced in or by such courts. Notwithstanding the foregoing, either Party may commence in any court of competent jurisdiction an action solely for the purpose of obtaining an injunction against the other Party for an alleged violation of Section 4 as set forth more specifically in Section 4.5 hereof.
8.9. Agreement, Modifications, Severability, and Waiver. This Agreement, together with all Exhibits attached hereto, sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and merges all prior and contemporaneous, oral or written agreements, discussions, and understandings between the Parties with respect to the subject matter hereof, it being understood that neither Party will be bound by any conditions, inducements, or representations other than as expressly provided for herein. This Agreement may not be amended or modified except in writing duly executed by the Parties. If any provision of this Agreement is invalid or unenforceable for any reason in any court or tribunal of competent jurisdiction, such provision will be construed to have been modified to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering such provision invalid or unenforceable in any other case, circumstance, or jurisdiction or of rendering other provisions of this Agreement invalid or unenforceable whatsoever. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is, or would be, sought and any such waiver will constitute a waiver only with respect to the specific matter described there in and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
8.10. Counterparts. This Agreement may be executed in counterparts, including by electronic transmission, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same Agreement.