TERMS AND CONDITIONS

TERMS AND CONDITIONS
ONE CALL NOW

THESE TERMS AND CONDITIONS (THESE “TERMS”) GOVERN YOUR ACCESS AND USE OF THE SERVICE (AS DEFINED BELOW) PROVIDED BY ONSOLVE, LLC (“ONSOLVE” OR “PROVIDER”) PURSUANT TO ORDERS PLACED BY YOU (“CUSTOMER”) WITH ONSOLVE. YOU MUST HAVE CONFIRMATION OF YOUR ORDER FROM ONSOLVE (THE “ORDER FORM”) PRIOR TO ACCESSING AND USING THE SERVICE. THE TERMS OF SUCH ORDER FORM ARE INCORPORATED INTO AND MADE PART OF THESE TERMS. IF YOU DO NOT HAVE A CURRENT ORDER FORM, YOU MAY NOT ACCESS OR USE THE SERVICE. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF AN ENTITY OR ORGANIZATION, SUCH AS YOUR EMPLOYER OR THE COMPANY YOU WORK FOR, YOU REPRESENT: (1) ALL REFERENCES TO CUSTOMER ARE TO THAT ENTITY OR ORGANIZATION AND (2) YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION.

1. DEFINITIONS.

1.1. “Affiliate” means any entity which directly or indirectly controls or is controlled by a party to these Terms, where “control” means the control of more than 50% of all the voting power of the shares entitled to vote for the election of the entity’s governing body; provided that such entity shall be considered an Affiliate only for the duration of such control.

1.2. “Applicable Law” means any domestic and/or foreign statute, ordinance, judicial decision, executive order, or regulation having the force and effect of law.

1.3. “Contact” means an individual person capable of only receiving and responding to Messages and, if permitted, updating its own profile.

1.4. “Content” means content, data, text, messages and other material contained in a Message.

1.5. “Documentation” means Provider’s then current official, applicable documentation that Provider provides to Customer (electronic or written) regarding the Service.

1.6. “Fees” means the fees for access to and use of the Service, including but not limited to any recovery fees or set-up fees.

1.7. “Initiator(s)” means an individual person or application authorized to create and issue Messages.

1.8. “Messages(s)” means notifications issued by an Initiator through the Service, whether or not responded to by Contact.

1.9. “Sensitive Data” means any personally identifiable information relating to health/genetic or biometric information; religious beliefs or affiliations; political opinions or political party membership; labor or trade union membership; sexual preferences, practices or marital status; national, racial or ethnic origin; philosophical or moral beliefs; criminal record, investigations or proceedings or administrative proceedings; financial, banking or credit data; date of birth; social security number or other national id number, drivers’ license information; or any other “sensitive data” category specifically identified under any Applicable Laws.

1.10. “Service” means Provider’s software-as-a-service, Internet-accessed notification service to set up and send Message.

1.11. “Standard Personal Information” means name, business contact details (work telephone number, cell phone number, e-mail address and office address and location), personal contact details (home telephone number, cell phone number, other telephone, e-mail address and physical address), geolocation, and employee ID or other non-identifying ID number.

1.12. “User” means, collectively Initiator(s) and Contact(s).

2. SCOPE OF THE SERVICE.

2.1. Service. Subject to these Terms and Conditions, Provider shall provide Customer with access to and use of the Service in accordance with Provider’s Documentation. Only Customer, its Affiliates’ and their respective employees and agents may act as Initiators; all use of the Service by Customer, its Affiliates’ and their respective employees and agents are subject to these Terms and Conditions.

2.2. Content. Customer represents and warrants it has the right and authority to provide Provider with the Content for use in connection with the Service and Provider agrees that Content shall be owned by Customer. Provider and its third-party providers shall have a royalty-free, worldwide, transferable, sub-license license to use the Content solely as necessary to provide the Service.

2.3. Restrictions. Customer will not, and will not allow or assist any other entity to, (i) create derivative works of, modify, decompile, disassemble, or otherwise reverse engineer or attempt to discover any source code or underlying ideas of any component of the Service; (ii) sublicense, assign, transfer, distribute, rent or sell use or access to the Service (in whole or in part), or (iii) remove, alter or obscure any product identification, copyright or other notices; (iv) collect, or attempt to collect, or store information about the Service or other users, including contact information, without their consent; (v) interfere, or attempt to interfere, with or disrupt connections to the Service or violate the regulations, policies, or procedures of such connections; or (vi) attempt to gain unauthorized access to the Service, other accounts, computer systems, or networks connected to the Service.

2.4. Retained Rights. All rights not expressly granted to Customer herein are expressly reserved by Provider. The Service is and shall remain the exclusive property of Provider and its licensors. Provider may gather Service data for the purpose of optimizing the Service.

3. PAYMENT AND TAXES

3.1. Payment. Customer shall pay the Fees as set forth on the applicable Order Form without setoff or deductions, within thirty (30) days from the date the invoice is received by Customer. Unpaid balances will be subject to interest at a rate of one and a half percent (1.5%) per month or the highest rate permitted by Applicable Law, whichever is lower, commencing on the date that payment was due.

3.2. Taxes. In addition to the Fees, Customer agrees to pay any taxes (including any VAT or sales tax), whether foreign, federal, state, local or municipal that may be imposed upon or with respect to the Service exclusive of taxes on Provider’s net income.

3.3. Contact Limit. During the term of the applicable Order Form, Provider shall have the right to inspect the number of Contacts. If Provider determines that Customer has exceeded the licensed number of Contacts, Customer shall pay Provider for the additional Contacts in accordance with these Terms. Certain plans are classified as “unlimited,” which means Customer can send an unlimited number of time-sensitive Messages to a relatively static list of Users. If there are frequently changing recipient lists, frequently messages that have a high percentage of disconnected numbers, or frequent hang-ups by recipients shortly after the call begins or Messages receiving a high percentage of opt-out requests from your Users, Provider may require Customer to change the plan. Organizations (excluding schools and emergency groups) on unlimited plans who send 15 or more Messages per phone number in a 30-day period will be subject to conversion to a Pay Per Call plan.

3.4. Message Surcharges. Provider will not be liable to Customer or to any Contact for any charges or fees that arise from sending or receiving a Message via the Service.

4. TERM AND TERMINATION

4.1. Term. Unless earlier terminated in accordance with the terms of these Terms, the Initial Term shall begin on the Service Start Date and continue for the Initial Term set forth on the applicable Order Form. Upon completion of the Initial Term, these Terms shall automatically renew for successive one (1) year periods (each a “Renewal Term”), unless either party provides at least sixty (60) days’ written notice that the Agreement will expire at the end of the Initial Term or then-current Renewal Term. Renewal Terms shall be on the same terms as herein, provided that Provider reserves the right to increase the Fees payable during any Renewal Term by up to five percent (5%) over the Fees payable during the Initial Term or most recent Renewal Term (as applicable).

4.2. Termination. If either party defaults in any of its material obligations under these Terms and such default has not been cured within thirty (30) days after written notice, upon notice to the defaulting party, the non-defaulting party may immediately terminate these Terms in addition to its other rights and remedies.

4.3. Suspension. Provider may suspend Customer’s access to and use of the Service: (a) effective immediately upon notice if Customer breaches any provision under Section 5 (Customer Obligations); or (b) if payment of any portion of the Fees is not received by Provider within fifteen (15) days after receipt of written notice that payment is past due. Such suspension shall not modify or lengthen the term of these Terms, nor shall any rights or obligations hereunder be waived during the suspension period.

4.4. Effects of Termination. Upon termination or expiration of the applicable Order Form: (i) Customer’s access to and use of the Service will be terminated and (ii) Customer will immediately pay to Provider all amounts due and payable prior to the date of termination. In addition, upon termination of these Terms for Customer’s breach: (a) Customer will immediately pay to Provider all unpaid Fees that would become due under the then-current term if such termination did not occur; and (b) Provider shall retain any Fees paid to date. Upon termination of these Terms for Provider’s breach, Provider will refund an amount equal to the prorated amount of Fees paid for the remainder of the then current term, less any expenses for Messages sent prior to the date of termination.

5. CUSTOMER OBLIGATIONS

Customer will only use the Service in accordance with all Applicable Laws and the Acceptable Use Policy attached hereto as Exhibit A. Provider may modify the Acceptable Use Policy upon thirty (30) days written notice to Customer if necessitated due to changes from its third party providers or changes in Applicable Law. Customer acknowledges and agrees that Provider does not require or “pull” any specific data from Customer; that Customer controls which data and Content is input through the Service and which data is sent and to whom such data is sent. Customer shall not under any circumstances, transmit or store any Sensitive Data to or through the Service.

6. CONFIDENTIALITY.

During the term set forth in the applicable order Form, each party may have access to confidential, proprietary or trade secret information disclosed by the other party, including, without limitation, ideas, trade secrets, procedures, methods, systems, and concepts, whether disclosed orally or in writing or stored within the Service, or by any other media (“Confidential Information”). Any information related to the Service shall be deemed to be Confidential Information of Provider, and any Content shall be deemed to be Confidential Information of Customer. Each party (the “Receiving Party”) acknowledges that the Confidential Information of the other party (the “Disclosing Party”) contains valuable trade secrets and other proprietary information of the Disclosing Party and that any such Confidential Information will remain the sole and exclusive property of the Disclosing Party. Each party will use Confidential Information only for the purpose of performing under these Terms, restrict disclosure of Confidential Information solely to its employees and contractors with a need to know, not disclose such Confidential Information to any other entities unless required to perform the terms of these Terms, and otherwise protect the Confidential Information with no less restrictive measures than it uses to protect its own confidential and proprietary information. Information will not be deemed “Confidential Information” if it: (a) is generally available to the public (other than through breach of these Terms); (b) is received from a third party lawfully empowered to disclose such information without being subject to an obligation of confidentiality; or (c) was rightfully in the Receiving Party’s possession free of any obligation of confidence at the time it was communicated to the Receiving Party. Notwithstanding the above, the Receiving Party will not be in violation of the confidentiality restrictions herein with regard to a disclosure that was in response to a valid order by a court or other governmental body, provided that the Receiving Party provides the Disclosing Party with prompt written notice prior to such disclosure where reasonably possible in order to permit the Disclosing Party to seek confidential treatment of such information. A Receiving Party shall promptly notify the Disclosing Party if the Receiving Party becomes aware of any misuse or unauthorized disclosure of Confidential Information.

7. REPRESENTATIONS AND DISCLAIMER

7.1. Provider Representations. Provider represents and warrants that: (i) the Service will conform in all material respects to Applicable Law and Provider’s Documentation; and (ii) all customer support, training and other services to be performed hereunder shall be performed in a professional and workmanlike manner consistent with industry standards.

7.2. Disclaimer. Provider makes no representation, warranty or guaranty, that the Service will work with, or be supported by, all protocols, networks, operating systems or environments; will be error-free; or that all Messages will be delivered. Customer acknowledges and agrees that the Service is provided on a best efforts basis and is not designed, intended, authorized or warranted to be suitable for hosting life-support or EMT-based applications or other critical applications where the failure or potential failure of the Service can cause injury, harm, death, or other grave problems, including, delays in getting medical care or other emergency services, and that any use of the Service to support such applications is fully at Customer’s risk and Customer acknowledges that Provider will not have any liability for issues related to such use. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED, OR STATUTORY OR OTHERWISE, REGARDING THE SERVICE, INCLUDING, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

8. INDEMNIFICATION AND RESPONSIBILITY

8.1. Provider General Indemnification. Provider will defend, indemnify, and hold harmless Customer and its employees (“Customer Indemnitees”) from and against any and all third party actions, losses, awards, liabilities, claims, expenses, damages, settlements, fees, penalties and costs of every kind and description, including reasonable legal fees and government regulatory fines (collectively, “Losses”), arising from: (i) any gross negligence or willful misconduct by Provider; or (ii) any breach of Section 6 by Provider.

8.2. Provider IP Indemnification. Provider will defend, indemnify, and hold harmless the Customer Indemnitees from and against all Losses arising out of a claim that the Service directly infringes a copyright or patent issued as of the Service Start Date, or other intellectual property right of a third party. The foregoing obligation of indemnification does not apply where: (a) Customer’s use of the Service is not in compliance with these Terms and Conditions; (b) Customer has combined the Service with software, hardware, system, data, or other materials not supplied or authorized by Provider where the infringement or misappropriation relates to such combination, unless Provider expressly authorized such combination or the combination; (c) the Loss is as a result of Content or Contact data; or (d) Customer continues use of the Service after being provided modifications that would have avoided the alleged infringement. If Provider believes that the Service is, or is likely to be, the subject of an infringement claim, Provider may, at its option, (1) procure for Customer the right to continue using the Service under these Terms, (2) replace or modify the Service so that it becomes non-infringing but substantially equivalent in functionality and performance, or (3) if neither clause (1) or (2) are feasible in spite of Provider’s reasonable efforts, terminate these Terms and refund a prorated portion of the Fees based on the days left in the Initial Term or then-current Renewal Term, less any expenses for usage accrued prior to the date of termination. The foregoing obligations are Provider’s only obligations and liability in connection with infringement by the Service.

8.3. Customer Indemnification. Customer will indemnify, defend and hold harmless Provider and its Affiliates, licensors and suppliers from and against all Losses arising out of: (i) Customer’s breach of Sections 5 and 6; (ii) third party claims that Customer’s Content infringes on any intellectual property rights; or (iii) Customer’s gross negligence or willful misconduct.

8.4. Indemnification Procedures. Each party seeking indemnification hereunder shall provide the other party with: (i) prompt written notice of any claim for which indemnification is sought; (ii) complete control of the defense and settlement of such claim; and (iii) reasonable assistance and cooperation in such defense at the indemnifying party’s expense. In any proceeding the indemnified party shall have the right to retain, at its expense, its own counsel. Notwithstanding the foregoing, the indemnifying party may not enter into a settlement of a claim that involves a remedy other than the payment of money by the indemnified party (which amounts must be subject to indemnification by the indemnifying party) without the indemnified party’s written consent.

9. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO OBLIGATIONS UNDER SECTION 5 (CUSTOMER OBLIGATIONS), SECTION 6 (CONFIDENTIALITY) OR SECTION 8 (INDEMNIFICATION AND RESPONSIBILITY): (a) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOSS OF DATA, REVENUES, PROFITS OR OTHER ECONOMIC ADVANTAGE, OR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR OTHER SIMILAR DAMAGES OF ANY KIND OR NATURE, (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE SERVICE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (b) IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF EITHER PARTY, ITS AFFILIATES AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS EXCEED THE FEES ACTUALLY PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS OF SERVICE PRIOR TO THE DATE ON WHICH SUCH CLAIM AROSE. Customer understands and agrees that the limitation of liability in these Terms for Provider is reasonable and that Provider would not enter into these Terms without such limitations.

10. GENERAL

10.1. Force Majeure. Neither party shall be responsible for delays or failures of performance resulting from acts beyond the reasonable control of such party, including, acts of God, acts of war, riots, acts of terror and other acts or omissions of third parties such as interruptions, delays, or malfunctions of service by third-party service providers.

10.2. Dispute Resolution. Except for injunctive relief sought by either party, the parties agree to cooperate and escalate any dispute or controversy (“Dispute”) arising out of or related to the performance of these Terms to each party’s business managers, who will meet and work in good faith to resolve each Dispute within ten (10) business days after receiving notification of the Dispute. If the business managers are unable to resolve the Dispute, either party may escalate the Dispute to the next highest level of management for resolution. If the Dispute remains unresolved thirty (30) days after referral to the next highest level of management within each party, either party may bring suit in a court of competent jurisdiction. If either party engages attorneys to enforce any rights out of or relating to these Terms, the prevailing party in any action to enforce or interpret these Terms shall be entitled to recover any and all costs and expenses of any nature including attorneys’ and experts’ fees and costs.

10.3. Governing Law/Venue. These Terms will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Delaware without reference to its choice of law rules. these Terms

10.4. Publicity. For the duration of these Terms, Provider may use Customer’s name and logo on the Provider web site and in Provider’s collateral marketing materials identifying Customer as a purchaser of the Service. If Provider’s expected use of Customer’s name and/or logo includes more than basic identification of Customer, Provider shall provide Customer with a copy of such content for approval, such approval not to be unreasonably withheld.

10.5. Survival of Terms. If these Terms are terminated for any reason, remedies for breach, rights to accrued payments and Sections 1 (Definitions), 2.2 (Ownership and Service Components), 2.3 (Contact Limit), 3. (Payment and Taxes), 4.4 (Effects of Termination), 5 (Customer Obligations), 6 (Confidentiality), 8 (Indemnification and Responsibility), 9 (Limitation of Liability), and 10 (General) will survive.

10.6. Independent Contractor. In making and performing under this Agreement, the parties are acting and shall act as independent contractors, and nothing in these Terms shall be construed to create a partnership, joint venture, principal-agent, or employer-employee relationship. Neither party will have or represent that it has the right, power or authority to bind, contract or commit the other party or to create any obligation on behalf of the other party.

10.7. Changes to These Terms. Provider reserves the right to modify these Terms, and modification(s) shall be effective immediately upon being posted on the One Call Now website.

10.8. Severability. If any term or provision of these Terms or the application thereof is to any extent held invalid or unenforceable, the remainder of these Terms shall not be affected thereby, and each term and provision hereof shall be valid and enforced to the fullest extent of the law.

10.9. Waiver. The failure of either party to enforce any provision of these Terms, unless waived in writing by such party, will not constitute a waiver of that party’s right to enforce that provision or any other provision of these Terms.

10.10. Notice. All notices and consents required or permitted under these Terms must be in writing; must be personally delivered or sent by registered or certified mail (postage prepaid), by overnight courier or other nationally recognized carrier, or by facsimile (receipt confirmed), in each case to Provider’s address set forth above, Attn: Legal, and to Customer’s Primary Contact set forth above, and will be effective upon receipt. Each party may change its address for receipt of notices by giving notice of the new address to the other party.

10.11. Counterparts. These Terms may be executed in facsimile and in counterparts.

10.12. Assignments. Neither party may assign these Terms without the prior written consent of the other party, except to an Affiliate or an entity that acquires all or substantially all of its business or assets, whether through merger, reorganization or otherwise. Any assignment in violation of the foregoing shall be void and of no effect.

10.13. Entire Agreement. These Terms constitutes the entire agreement and understanding between Customer and Provider with respect to the subject matter hereof and supersedes all prior and contemporaneous verbal and written negotiations, agreements and understandings, if any, between the parties. These Terms cannot be modified except by a writing signed by an authorized representative of each party. The terms of these Terms shall take precedence over any conflicting terms in purchase or procurement documentation, such as a purchase order, acknowledgement form, or other similar documentation and any pre-printed terms and conditions on or attached to Customer’s purchase orders or invoices will be of no force or effect.

EXHIBIT A
ACCEPTABLE USE POLICY

1.1 All Content is Customer’s sole responsibility. Customer is solely responsible for the integrity and quality of the Content. Customer shall be responsible for, and under no circumstances will Provider or its Affiliates or any of their licensors or suppliers be responsible, for any loss, damage or liability arising out of any Content, including any mistakes contained in the Content or the use or subject matter of the Content. Further, Customer is responsible for: (i) any Messages that are sent through its accounts (other than if caused by the Service itself or breaches by Provider); (ii) all Fees accruing from the use of the Service through its account, whether by its Affiliates and its and their employees and consultants,; and (iii) all actions of its Affiliates, and its and their employees consultants, as if such actions had been conducted by Customer.

1.2 Customer shall be responsible for procuring any necessary consents or having other legal basis to contact Contacts with respect to the provision of any data transmitted through the Service.

1.3 Customer shall use any data it uploads into the Service in accordance with any and all restrictions applicable to such data and all Applicable Laws.

1.4 Customer will use and permit its Users to use the Service in accordance with these Terms and all Applicable Laws, including the Telephone Consumer Protection Act, Fair Debt Collections Practices Act, Federal Communications Commission (“FCC”) or Federal Trade Commission (“FTC”) rules or regulations and any and all other Applicable Laws related to pre-recorded telephone and/or text messages and the use of automated dialing equipment.

1.5 Customer will include, at the beginning of each Message, its official business or government name. Customer will include, at the end of each Message, a telephone number for Customer.

1.6 Customer will not send any Messages to mobile devices owned by a Contact unless Customer has obtained such Contact’s “opt-in” consent to receive, or Customer has other legal basis to send such Contact, pre-recorded, telephone and text Messages using automated dialing equipment.

1.7 Customer must provide Contacts with a simple mechanism for opting out or unsubscribing from receiving Messages, including information on how to “opt-out” or unsubscribe. Provider provides Contacts with multiple means to manage or opt-out from receiving Messages. Upon such opt-out request, Provider will stop delivering messages to those Contacts and will inform the Customer of all such requests.

1.8 Customer will not send Messages to phone numbers that are emergency numbers and/or other numbers that may not be called using automated dialing equipment under Applicable Law.

1.9 Customer’s total Messages to an individual Contact will not exceed an average of one (1) Message per day (via any contact method), absent an emergency or a specific use case for the Contact. Should Customer exceed this fair use, the parties will meet to discuss the reasons, review best practices and determine if an adjustment to Customer’s Service plan is necessary. Due to vendor requirements for ensuring Messages sent by the Service are not blacklisted, Customer shall adhere to this fair use policy.

1.10 Customer will not send any Content that it knows, or has reason to know: (i) infringes another’s rights in intellectual property; (ii) invades any privacy laws including without limitation another’s right to privacy and/or any privacy policies of Customer or any third-party; and/or (iii) justifies a complaint to the FCC and/or FTC.

1.11 Customer will not: (i) engage or facilitate any unethical, deceptive or misleading practices in connection with the use of the Service; (ii) use the Service in connection with any telemarketing, solicitations, donations, sales, spamming or any unsolicited messages (commercial or otherwise); and/or (iii) provide Content to be transmitted in the Service which: (a) is defamatory, libelous, obscene, pornographic, or is otherwise harmful; (b) promotes violence, discrimination, illegal activities, gambling, alcoholic beverages, guns or tobacco; and/or (c) contains or otherwise links to viruses, worms, cancelbots or any other harmful code or computer programs designed to disrupt the functionality of any computer software or hardware or telecommunications equipment.

1.12 Customer may send SMS Texts in text format only.

1.13 Customer acknowledges and agrees that Messages may not be delivered to the phone if not in range of a transmission site, or if sufficient network capacity is not available at a particular time. Even within a coverage area, factors beyond the control of the carrier may interfere with message delivery, including the Customer’s equipment, terrain, proximity to buildings, foliage, and weather. Customer acknowledges that urgent Messages may not be timely received and that the carrier does not guarantee that messages will be delivered.

1.14 Customer acknowledges that Provider may block Messages (e.g., based on instructions from Contacts, carriers, aggregators, government agencies, etc.).

1.15 Customer agrees to maintain all security regarding its (and its Users’) account ID, password, and connectivity with the Service. If Customer’s account ID or password are stolen, or otherwise compromised Customer is obligated to immediately change the password and inform Provider of the compromise.