CUSTOMER TERMS OF SERVICE
Last Modified: Sept 1, 2021
BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THIS “AGREEMENT”) GOVERNING YOUR USE OF OBVIYO’S SOFTARE-AS-SERVICE TECHNOLOGY, INCLUDING OFFLINE COMPONENTS AND CONSULTING SERVICES (COLLECTIVELY, THE “SERVICE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.
We may update these terms, from time to time in its sole discretion.
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@Obviyo.com.
We have several different products, and there are some provisions that apply only to those products. In the ‘General Terms’ below, we have those that apply to all of our products, except as we explain in the ‘Product Terms’. In the ‘Product Terms’ below, we have those that apply to our specific products. If you are using our Alpha/Beta Services, or our Free Services, please carefully review the ‘Product Terms’, as this section will control if there’s any conflict between the ‘General Terms’ and the ‘Product Terms’.
- Definitions. As used in this Agreement and in any Statement of Works that you might accept during the procurement of Obviyo services now or hereafter associated herewith:
“Billing Period” means the period for which you agree to pay fees under a Statement of Work, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Subscription Service for a one (1) year Initial Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“Collected Personal Data” shall have the meaning ascribed to it in the Data Protection Agreement.
“Consulting Services” means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
“Contact Information” means the name, email address, phone number, online user name(s), telephone number, and similar information submitted by visitors to your landing pages on the Subscription Service or uploaded by you to the Subscription Service.
“Customer Data” means all information that you submit or collect via the Subscription Service, including, where applicable, the Collected Personal Data.
“Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
“CXO” means our Customer Experience Optimization product offerings, which includes online testing, targeting, 4D optimization, e-Optimizer, and other applications provided under the umbrella of customer experience optimization offerings. Unless otherwise specified in this Agreement, CXO is considered part of the Subscription Service.
“Data Event” means a string of data collected as result of visitor visiting your website.
“Data Event Limit” means the maximum number of Data Events that are included as part of your Subscription Service in any given calendar month.
“Effective Date” means the date this Agreement is accepted by you.
“Obviyo”,”we”, “us” or “our” means Obviyo, Inc., a Florida corporation, having its principal place of business at 5901 Broken Sound Pkwy. NW, Suite 100, Boca Raton, FL 33484.
“Obviyo Content” means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service.
“Obviyo Materials” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services.
“Obviyo Technology” means all of Obviyo’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Obviyo in providing the Service.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Sensitive Information” means credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the Health Insurance Portability and Accountability Act and the Payment Card Industry Data Security Standards.
“Site Visit” means interaction with your website by a single visitor in a single session.
“Statement of Work” means a document agreed to by you and Obviyo, from time to time, that defines project specific activities, deliverables and times for Obviyo Products provided to you.
“Subscription Fee” means the amount you pay for the Subscription Service.
“Subscription Service” means our web analytics or customer experience optimization applications, tools and platform that you have subscribed to by a Statement of Work or that we otherwise make available to you, and developed, operated, and maintained by us, accessible via designated URL, and any ancillary products and services, including website hosting, that we provide to you.
“Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms.
“User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by Obviyo at your request).
“Visitor Limit” means the maximum number of site visits that are included as part of your Subscription Service in any given calendar month.
“Web Analytics” means our Web Analytics product offering. Unless otherwise specified in this Agreement, Web Analytics is considered part of the Subscription Service.
“Users” means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
“You”, “your” or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable billing statement, online subscription process or Statement of Work as the customer.
- The Subscription Service
- During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement.
- Limits may apply to the number of Users, Site Visits, or Data Events per month. Any limits will be specified in your Statement of Work.
- We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. But we will not make changes to the Subscription Service that materially reduce the functionality of the Subscription Service provided to you during the Subscription Term. We might provide some or all elements of the Subscription Service through third party service providers.
- Additional Features. You may subscribe to additional features of the Subscription Service by agreeing to a new Statement of Work.
- Customer Support
- Support is included in your Subscription Fee. Phone support for the Subscription Service is available 9AM to 6PM Eastern Time (GMT-5), Monday through Friday, excluding US national holidays. We accept webform support questions 24 Hours per Day x 7 Days per Week at https://obviyo.com/company/contact-us/. Webform responses are provided during phone support hours only. We attempt to respond to webform support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time.
- We make the Subscription Service available 24 hours a day, 7 days a week, in accordance with the terms of our Service Level Agreement except for planned down-time for maintenance.
- Consulting Services. You may purchase Consulting Services through a Statement of Work. Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with the ‘Renewal Subscription Term’ section below. Unless otherwise agreed, all Consulting Services are performed remotely.
For Consulting Services performed on-site, you will reimburse us our reasonable cost for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice.
If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.
We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
- Fees and Payments
- Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you (i) exceed your applicable limits (see Section 2.b. above), (ii) change products or base packages, or (iii) subscribe to additional features or products, including additional Visits or Data Events. Where a price change applies to you, we will charge or invoice you under the new price structure, starting with the next Billing Period in the Subscription Term, except as provided below under ‘Fee Adjustments During a Billing Period’. In order to avoid additional charges, you should purchase the appropriate tier of Subscription Service for your anticipated needs.
- Fee Adjustments in Next Billing Period. If you exceed your limits, then your Subscription Fee will be adjusted at the beginning of the next Billing Period up from the current price / limit tier to the next price/ limit tier. This process will continue for each Billing Period during the Subscription Term. Our pricing and limits will be as set forth at https://obviyo.com/pricing. Once increased, your Subscription Fee will not decrease, even if there is a subsequent reduction in the number of Visits or Data Events.
- Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
- Payment against invoice. If you are paying by invoice, we (or a third party authorized by us or you) will invoice you at the beginning of the Initial Subscription Term and at the beginning of each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Statement of Work.
- Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your Obviyo application. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a Obviyo partner that purchases on behalf of a client, you agree to be responsible for the Statement of Work and to guarantee payment of all fees.
- Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
- Subscription Term and Renewal
- Initial Subscription Term. The initial subscription term shall begin on the effective date of your subscription and expire at the end of the period selected during the subscription process (“Initial Subscription Term”).
- Renewal Subscription Term. Unless one of us gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for the shorter of the Initial Subscription Term or one year (“Renewal Subscription Term”). Written notice of non-renewal must be sent no more than ninety (90) days but no less than forty-five (45) days in advance of the end of the Subscription Term. The Renewal Subscription Term will be on the current terms and conditions of this Agreement, and subject to the renewal pricing provided for in your Statement of Work or, if not specified in the Statement of Work, on our standard pricing available at https://obviyo.com/pricing. In addition, on renewal, the current product usage limits https://obviyo.com/pricing will apply to your subscription, unless otherwise agreed to by you and Obviyo. Should you decide not to renew, you may send the notice of non-renewal by email to account@Obviyo.com.
- End of Subscription Term. The Subscription Term will end on the expiration date and cannot be canceled before its expiration.
- Obviyo’s Proprietary Rights.
- This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws. The Subscription Service and Consulting Services belong to and are the property of us or our licensors (if any). We retain all ownership rights in the Subscription Service and Consulting Services. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Obviyo Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. Obviyo and other marks that we use from time to time are our trademarks. The appearance, layout, color scheme, and design of the site are protected trade dress. You may not use any of these without our prior written permission.
- We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like (collectively, “Feedback”). You agree that we own all rights to Feedback and are free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback as we see fit (including incorporating Feedback into the Subscription Service or Consulting Services), entirely without payment or attribution to you or any obligation or restriction of any kind on account of intellectual property rights or otherwise.
- Customer’s Proprietary Rights. As between you and us, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission and a license to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as permitted by this Agreement. If you choose to use shortened URLs through the Subscription Service, you acknowledge that the data related to the number of clicks on a shortened URL may be publicly available and used by other parties. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
- Confidentiality. “Confidential Information” as used herein means all non-public, confidential, or proprietary information disclosed disclosing party to the Receiving Party or its affiliates, or to any of the Receiving Party’s employees, officers, directors, partners, shareholders, agents, attorneys, accountants, or advisors, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media that a reasonable person would deem to be confidential. The party receiving Confidential Information (“Receiving Party”) from the party disclosing Confidential Information (“Disclosing Party”)will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except as is necessary for the performance of this Agreement), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents that need to know such information. Upon notice to the Disclosing Party, the Receiving Party may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process, provided that it gives the Disclosing Party prompt notice of such request so that the Disclosing Party may seek an appropriate protective order. If the Disclosing Party determines to seek a protective order, the Receiving Party agrees to cooperate with the Disclosing Party (at the Disclosing Party’s sole cost and expense) to seek such protective order. If, in the absence of a protective order, the Receiving Party or its representatives are nonetheless required to disclose any Confidential Information, the Receiving Party may disclose such Confidential Information with no liability hereunder; provided that it gives the Disclosing party written notice of the Confidential Information to be disclosed as far in advance of its disclosure as is practicable, and uses commercially reasonable efforts (at the Disclosing Party’s sole cost and expense) to obtain assurances that confidential treatment will be accorded to such Confidential Information.
- Customer Responsibilities. To realize the full value of the Subscription Service and Consulting Services, your participation and effort are needed. Resources that may be required from you include a Project Manager, one or more Content Creators, a Sales Sponsor, an Executive Sponsor and a Technical Resource. Responsibilities that may be required include planning of optimization campaigns; creation of new web content or digital assets, acting as internal liaison between digital commerce teams, providing top level internal goals for the use of the Subscription Service, attending regular success review meetings; and supporting the integration of the Subscription Service with your digital commerce site and applications.
- Publicity. You grant us a nonexclusive, nontransferable, royalty-free right limited license to use and display your trademarks, service marks and the right to add your name and company logos (collectively, “Customer Marks”) on our customer list and website and in connection with this Agreement.
- Customer Data
- Limits on Obviyo. We will use the Collected Personal Data only in order to provide the Subscription Service and Consulting Services to you and only as permitted by applicable DP Laws (as defined in the Data Protection Agreement, which is incorporated by reference into this Agreement).
- Aggregate Data. We may monitor use of the Subscription Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Collected Personal Data and/or identify you, or any person who or which has not consented to being identified during such use or publication, if and as required by applicable law.
- We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States. You acknowledge that in all cases that Obviyo acts as the processor of Customer Data and you remain controller of Customer Data for applicable European Union data protection regulations.
- No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
- Use and Limitations of Use
- Acceptable Use. You will comply with our Acceptable Use Policy at https://obviyo.com/acceptable-use (“AUP”), as modified from time to time, in our sole discretion.
- Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service; (iv) access the Subscription Service other than through our interface; or (v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
- Downtime. Customer acknowledges that Customer’s access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of Obviyo. For scheduled service downtime customer will be notified by email no later than 48 hours before scheduled downtime.
You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account by following the instructions at https://obviyo.com/company/contact-us/.
- Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you; (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products; (d) the unauthorized use of the Subscription Service by any other person using your User information; or (e) our use of the Customer Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
- Disclaimers; Limitations of Liability
- Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, OBVIYO CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, OBVIYO CONTENT AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SUBSCRIPTION SERVICE, AND THE CONSULTING SERVICES INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
- Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR INDEMNITY OBLIGATIONS, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
- Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
- Termination, Suspension and Expiration
- Termination for Cause. Either of us may terminate this Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Suspension for Prohibited Acts. We may suspend any User’s access to the Subscription Service for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the Obviyo email send service that results in excessive bounce-backs, SPAM notices or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity.
- Suspension for Non-Payment. We may suspend your access to all or any part of the Subscription Service upon ten (10) days’ notice to you of non-payment of any amount past due. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If the Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
- Suspension for Present Harm. If your website on, or use of, the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service.
- Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and Obviyo Content. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
- Retrieval of Customer Data. As long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your Subscription, we will provide you with temporary access to the Subscription Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
- Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service, at any time, in our sole discretion. If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at https://obviyo.com/customer-terms-of-service/ and we will let you know through the Notification app in the Obviyo portal used to access your Obviyo subscription. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically.
If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Applicable Law. This Agreement is governed by the laws of the State of Florida, U.S.A. without reference to conflicts of law principles. For contracts with Obviyo, Inc., both parties consent to the exclusive jurisdiction and venue of courts in Ft. Lauderdale, Florida, U.S.A. for all disputes arising out of or relating to the use of the Subscription Service or the Consulting Services.
- Force Majeure. Neither of us will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
- Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
- Compliance with Laws. We will comply with all U.S. state and federal laws in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws. You must comply with all laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.
- If any part of this Agreement or a Statement of Work is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
- Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Obviyo, Inc.:
6079 Via Venetia S Delray Beach, FL 33484
Attention: General Counsel.
To you: your address as provided in our Obviyo Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
- You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
- No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
- Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
- The following sections in the ‘General Terms’ shall survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees and Payments’, ‘‘Obviyo’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Termination, Suspension and Expiration’, and ‘General’.
- Alpha/Beta Services
- If you are given alpha or beta access to any features of the Subscription Service, the following additional terms apply. In the event of a conflict between the terms set forth in the ‘General Terms’ and the terms set forth in this ‘Alpha/Beta Services’ section, the terms in this ‘Alpha/Beta Services’ section will control with respect to your use of Alpha/Beta Services.
- Alpha/Beta Services. If we make alpha or beta access to some or all of the Subscription Service (the “Alpha/Beta Services”) available to you (i) the Alpha/Beta Services are provided “as is” and without warranty of any kind, (ii) we may suspend, limit, or terminate the Alpha/Beta Services for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind related to your use of the Alpha/Beta Services. If we inform you of additional terms and conditions that apply to your use of the Alpha/Beta Services, those will apply as well. We might require your participation to be confidential, and we might also require you to provide feedback to us about your use of the Alpha/Beta Services. You agree that we own all rights to use and incorporate your feedback into our services and products, without payment or attribution to you.
- The following sections in this ‘Alpha/Beta Services’ section shall survive the expiration or termination of this Agreement: ‘Alpha/Beta Services’ and ‘Survival’.
- Free Services
- If you do not pay a Subscription Fee to us and you utilize only our Free Services (defined below), then the following additional terms apply. In the event of a conflict between the terms set forth in any of the sections above and the terms set forth in this ‘Free Services’ section, the terms in this ‘Free Services’ section will control with respect to your use of the Free Services.
- Additional Definitions. “Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
- Free Services. If you use our Free Services, we will make the Free Services available to you free of charge until earlier of (a) the date on which your free subscription is terminated or (b) the start date of your paid subscription.
- Free Trial. If you register for a trial of the Free Services, we will make the Free Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not earlier terminated) or (b) the start date of your paid subscription. If we include additional terms and conditions on the trial registration web page, those will apply as well. Unless you purchase a subscription to the applicable Free Services before the end of the free trial, all of your data in the Subscription Service may be permanently deleted at the end of the trial, and we will not recover it.
- The provisions of the ‘Confidentiality’ section in the ‘General Terms’ do not apply to use of the Free Services.
- Disclaimers; Limitations of Liability. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE FREE SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE FREE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE FREE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL OBVIYO BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, OBVIYO IS DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OBVIYO’S AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED DOLLARS. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE FREE SERVICES TO YOU. THIS ‘DISCLAIMERS; LIMITATIONS OF LIABILITY’ SECTION SHALL APPLY IN LIEU OF THE ‘DISCLAIMERS; LIMITATIONS OF LIABILITY’ SECTION IN THE ‘GENERAL TERMS’.
- We may suspend, limit, or terminate the Free Services for any reason at any time without notice.
- Contracting Entity and Applicable Law. This Agreement is governed by the provisions of the ‘Contracting Entity and Applicable Law’ section in the ‘General Terms’ above applicable to those in North America, regardless of where you are located.
- The following sections in this ‘Free Services’ section shall survive the expiration or termination of this Agreement: ‘Definitions’, ‘Disclaimers; Limitations.