WooSender Inc. (“WooSender”) Terms Of Service & User Agreement
These Terms of Service (the “Agreement”) set forth the terms and conditions that apply to your access and use of the internet website owned and operated by WooSender Inc. (“WooSender”) and located at WooSender Inc. and WooSender (the “Site”) including all subsidiary webpages and access to any optimized version of the Site via a wireless device, and access and use of the services available thereon, including, without limitation, the services that enable you to create, test and host promotion-specific custom landing pages for online marketing purposes (the “Services”).
This Agreement is legally binding between you (the “Client”), the person using the Site, and WooSender. Terms such as “we” “our” and “us” refer to WooSender.
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. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the services. On our Site, we may provide short summaries of the terms and conditions in this Agreement. Any such summaries are provided only for your convenience, are not legally binding and do not modify this Agreement in any way. These Terms of Service govern Client’s access to and use of WooSender’s services, as defined by WooSender and Client above (“the Services”).
Client may update or modify these Terms of Service at any time and such updated versions will be posted on WooSender’s website, (with all subdomains, “the Site”). Client is responsible for periodically checking the Terms of Service. Client continued use of the Site and/or the Services after these Terms of Service are updated shall be deemed acceptance of any such updated Terms of Service.
WOOSENDER Inc. Terms of Service
These terms of service are effective on March 1, 2022, for all customers agreeing to these terms of service for the first time.
If you have previously agreed to a version of our terms or services before March 1, 2022, please note that these terms of service will be effective on March 1, 2022, and completely replace the prior version. Please be aware by continuing to use WOOSENDER services as of March 1, 2022, you are accepting these updated Terms of Service.
Please review these terms of service carefully, once accepted these terms become a binding legal commitment between you and WOOSENDER Inc. If you refuse to be bound by these terms you should not accept these terms or create an account and you should not use the services of WOOSENDER Inc.
In these Terms of Service (referred to as these “Terms” this “Agreement”), “we, “us”, “our” or “WOOSENDER” will refer collectively to WOOSENDER Inc., a Pennsylvania corporation located at Philadelphia, Pennsylvania. The terms “you, “your” or “customer” will refer to you. If you are creating an account in order to use the services on behalf of an organization then you are agreeing to these terms for that organization and promising to us that you have the authority to bind that organization to these terms and in which case the terms “you”, “you” or “customer” will refer to the organization. Further, WOOSENDER or customer may also be referred to in these terms individually as party and together as parties. TO CREATE AN ACCOUNT IN ORDER TO USE THE SERVICES YOU MUST CAREFULLY REVIEW AND ACCEPT THESE TERMS IN WRITING.
When we refer to the “services” in these terms which shall include all services that are used by you or ordered by you under an order form. When we refer to an “Affiliate” in these terms we mean any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. The purpose of this definition control means direct ownership of more than 50% of the voting interest of the subject entity.
1. Changes to These Terms
The notice will be given to you in accordance with section 13.4 (notices). Updates will be effective upon the effective date indicated at the top of these terms. The updated version of these Terms will supersede all prior versions.
Following such notice your continued use of those services on or after the effective date of the updated version of these terms constitute your acceptance of such updated terms. IF YOU DO NOT AGREE TO THE UPDATED VERSION OF THESE TERMS, YOU MUST STOP USING THE SERVICES IMMEDIATELY.
2. Account Creation and Information
To use the Services, you will be asked to create an account. As part of the account creation process, you’ll be asked to provide you email address, create a password, and verify that you are a human being by providing a telephone number to which we will send you a verification code to enter into an online form. Until you create an account, your access to the services will be limited to what is available to the general public. When creating an account, you must provide true, accurate, current, and complete information about yourself as requested during the account creation process. You must keep that information true, accurate, current, and complete after you create each account. As part of our ongoing and routine monitoring of account activity and the services, you will initially be limited in the number of text messages you can send while we are activating your account or when you have not used an account for a period of at least six (6) months. If you breach these Terms, including, without limitation, your payment obligations in section 6 (fees and payment Terms), you are strictly prohibited from creating accounts until you remedy such breach in full.
3. Provision of the Services
3.1 (a). We will make the service available to you in accordance with these Terms including any usage guides and policies for the Services contained in such documentation and any applicable ordering document between the parties that specifies mutually agreed upon rates for certain Services and other commercial terms including any applicable minimum spending commitments where applicable. (b). comply with our service level agreement, for the services SLA and our security overview for the services, each of which may be updated from time to time (c.) provide the service in accordance with laws applicable to our provisions of the service to our customers, generally subject to your use of the Services in accordance with these Terms, the applicable documentation if any and applicable order forms (d.) make continually reasonable offers to use standard measures which may include designs to scan, detect, and delete code files, scripts, agents or programs intended to do harm including for example viruses, worms, time bonds, and trojan horses for applicable use train qualified personnel. (f.) use commercially reasonable efforts to provide you with applicable support for services as described herein.
3.2 Beta Offerings. This agreement does not apply to Beta offerings, notwithstanding anything else set forth in this agreement. WOOSENDER does not make any representations or warranties regarding any Beta offering, or the integrity of any data stored in connection with any Beta offering. You are strongly discouraged from using any Beta offering in connection with sensitive data. WOOSENDER may in its sole discretion change or terminate any Beta offering without notice and does not represent or warrant the result or any such action.
3.3 Suspension of Services. We may suspend the services immediately upon cause (a) You or your end user( as defined below) materially breaches (or we believe that you and an End user has materially breached) any provision of these terms.(b) there is an unusual and material spike or increase in your use of the services and we believed that such traffic or use is fraudulent or materially and negatively impacting the operating capability of the services (c) we determine that our provision of the services is prohibited
by applicable law or regulation; (d) there is any use of the services by you or an End User that in our judgment threatens the security, integrity, or availability of the services; or (e) information in your account is untrue, inaccurate, or incomplete. However, we will use commercially reasonable efforts under the circumstances to (x) provide you with notice and an opportunity to remedy such violation or threat prior to any such suspension; (you) where practicable, limit the suspension based on the circumstance leading to the suspension (e.g., to certain phone numbers, sub-accounts, or other subset of traffic); and (z) remove the subscript as quickly as reasonably practicable given the circumstances leading to the suspension have been resolved. If your account is blocked because you are operating in a country or region prohibited under Section 8.3 (Export Controls), you will receive notice of your account being inoperable when you attempt to log into your account in such restricted country or region. If we suspend the Services pursuant to Section 3.3 or Section 6.3 (Payment Terms), we will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur in connection with any such suspension.
3.3.1 Acceptable Use and Conduct. Client agrees that it will not use the Site or Services in a manner that:
- Infringes, violates, or misappropriates any third party’s intellectual property or proprietary rights;
- Uses or uploads software viruses, Trojan horses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- Constitutes unlawful spamming, “chain letters,” “pyramid schemes,” advertisement of illegal or controlled products or services or other advertising or marketing activities that violate this Agreement, the Private Policy, or any applicable laws, regulations, or generally-accepted advertising or marketing industry guidelines;
- Is misleading, deceptive, fraudulent, or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent purposes;
- Targets or is harmful to minors in any way;
- Is hateful or discriminatory based on race, color, sex, region, nationality, ethnic or national origin, marital status, disability, sexual orientation, or age, or is otherwise objectionable as determined by WooSender in its sole and exclusive discretion;
- Impersonates a WooSender employee, or any person, or falsely states or otherwise misrepresents Client’s affiliation with any person or entity, or to obtain access to the Site or Services or a portion thereof without proper authorization;
- Interferes or attempts to interfere with the proper working of the Site or Services or prevents others from using the Site or Services, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (e.g., flooding attack) to the Site or Services, or that otherwise negatively affects other persons’ ability to use the Site or Services or inadvertently to intentionally disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Site or Services or any other site or system in use by another user of WooSender;
- Uses any manual or automated means, including agents, robots, scripts, or spiders, to monito or copy the Site or Services or content contained therein;
- Facilitates the unlawful distribution of copyrighted Content;
- Licenses, sublicenses, rents, or leases the Services to third parties, uses the Services for third-party training, commercial time-sharing, or service bureau use, otherwise makes the Services available to third parties, or otherwise commercially exploits the Services;
- Includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, forged headers, or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Site or Services to users;
- Constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products, or commercial interests;
- Stalks or otherwise harasses anyone on the Site or Services or with information obtained from the Site or Services;
- Collects, uses, or discloses data, including personal information, about users without their informed consent, for unlawful purposes or otherwise, or in violation of any applicable laws;
- Requests, solicits, or otherwise obtains access to usernames, passwords, or other authentication credentials from any user of the Site or Services for the purposes of automating logins to the Site or Services;
- Attempts to gain unauthorized access to the computer systems of WooSender or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the Site or Services;
- Posts adult or pornographic Content;
- Decompiles or reverse engineers or attempts to access the source code of the software underlying the Site, the Services, or any other WooSender technology;
- Copies, archives, stores, reproduces, rearranges, modifies, downloads, uploads, creates derivative works from, displays, performs, publishes, distributes, redistributes, or disseminates all or any part of the Site or Services;
- Accesses the Site or Services for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes; or
- Accesses the Site or Services to upload any Content or computer code for the purposes of : (i) causing a breach of security to the Site or Services (ii) interfering with proper working, functionality or performance of the Site or Services (iii) preventing others from accessing or using the Site or Services.
- Sending unsolicited marketing messages or broadcasting spam;
- Sending any calls or messages to life-line services, such as hospitals, fire, police, 911 or utility-related telephone numbers;
- Using strings of numbers; or
- Harvesting or otherwise collecting information about others, without their consent;
3.4 Changes to Services. The features and functions of the Services may change over time; provided, however, we will not materially decrease the overall functionality of the Services. It is your responsibility to ensure each customer application (as defined below) is compatible with the then-current Services. Although we try to avoid making changes to the Services that are not backwards-compatible, if any such changes become necessary, we will use reasonable efforts to let you know at least sixty (60) days prior to implementation. In the event we make a non-backwards compatible change to WOOSENDER API and such change materially and negatively impacts your use of the Services (“Adverse API Change”), (a) you will notify us of the adverse API Change and (b) we may agree to work with you , in our sole discretion, to resolve or otherwise address the Adverse API Change, except where we, in our sole discretion, have determined that an Adverse API Change is required for security reasons, by telecommunication providers, or to comply with applicable law or regulation.
4. Your Responsibilities
You will: (a) be solely responsible for all use of the services and documentation under your account, including the quality and integrity of the data and other information made available to us by or for you through the terms and services under these Terms (“Customer Data”) and each software application or service that you make available to End Users that
interfaces with the Service (each “Customer Application”); (b) not transfer, resell, lease, license, or otherwise make available the Services to third parties (except to make the Services available to End Users in connection with the use of each Customer Application as permitted under these Terms) or offer them on a standalone basis; (c) use the Services only in accordance with these Terms, the applicable Documentation, any applicable Order Form(s), and applicable law or regulation; (d) be solely responsible for all acts, omissions, and activities of anyone of accesses or otherwise uses any Customer Application (“End User”) including End Users compliance with these Terms and any applicable Order Form(s); (e) do your best to prevent unauthorized access or use of the services; (f) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (g) comply with the representations and warranties you make in Section 8 (Representation, Warranties, and Disclaimer). WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM UNAUTHORIZED USE OF YOUR ACCOUNT.
5. Your Affiliates
Your Affiliates are not permitted to use the Services under these terms that you accepted. Each of your Affiliates that wants to use the Services must accept the Terms individually and create its own account.
6. Fees and Payment Terms
6.1 Fees. You agree to pay fees in accordance with the then-current applicable rates available at WOOSENDER pricing pursuant to the purchase order available at Woosender.com. Additionally, we will charge you, and you will pay, any and all additional costs, fines, or penalties we incur from a governmental or regulatory body telecommunications provider as a result of your use of the Services.
6.2 Taxes. All fees are exclusive to any applicable taxes, levies, duties, or other similar exactions imposed by a legal, governmental, or regulatory authority in any applicable jurisdiction, including, without limitation, sales, use, value-added, consumption, communications, or withholding taxes (collectively, “Taxes”). You will pay all Taxes associated with these Terms, excluding any Taxes based on our net income, property, or employees.
6.2.1 Communications Surcharges. All fees are exclusive of any applicable communications service or telecommunication provider (e.g., carrier) or surcharges (collectively, “Communications Surcharges”). You will pay all Communications Surcharges associated with your use of the Services.
6.2.2 Exemption. If you are exempt from paying certain Taxes or Communication Surcharges, you will provide the necessary exemption information as requested by us or a valid exemption certificate issued by the appropriate authority via e-mail to (their email). You will be exempt on a going-forward basis once we approve your exemption request. If the appropriate authority determines, at any time, that you are not exempt from paying any Taxes or Communication Surcharges, you will promptly pay such Taxes or Communications Surcharges to us, plus any appliable interest or penalties.
6.3 Payment Terms. PAYMENT OBLIGATIONS ARE NON-CANCELABLE AND FEES, ONCE PAID, ARE NON-REFUNDABLE. You will make all of the payments due under these Terms in accordance with the following applicable payment method:
6.3.1 Credit Card Payment Terms. If you elect to pay by credit card, then you are responsible for either (a) enabling auto-recharge on your account or (b) ensuring that your account has a sufficient positive balance to cover all fees due. If, for any reason, you have a negative balance on your account or your credit card declines a charge for fees due, then WOOSENDER reserves the right to suspend the Services to all of your accounts
6.3.2 Payment Disputes. You will notify us in writing in the event you dispute any fees, Taxes, or Communications Surcharges paid or payable by you under their Terms. If you dispute any fees, Taxes, or Communications Surcharges, you must act reasonably and in good faith and will cooperate diligently with us to resolve the dispute. You will provide such notice to us within sixty (60) days of the date we bill you for such fees, Taxes, or Communications Surcharges due that are in dispute and the parties will work together to resolve the dispute promptly.
7. Ownership, Use of Customer Data, and Confidentiality
7.1 Ownership. As between the parties, we exclusively own and reserve all right, title, and interest in and to the Services, the Documentation, our Confidential Information (as defined below), and any data, in anonymized or aggregated form that does not identify you, any End Users, or any natural person, generated or derived from the use or operation of the Services, including volumes, frequencies, bounce rates, and performance results for the Services. As between the parties, you exclusively own and reserve all right, title, and interest in and to each Customer Application, your Confidential Information, and Customer Data, Subject to our rights to use and disclose Customer Data in accordance with these Terms.
7.2 Our Use of Customer Data. You Instruct us to use and disclose Customer Data as necessary to (a) provide the Services consistent with this Section 7.2, Section 7.4 (Confidentiality), including detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of Services, and (b). respond to any technical problems or your queries and ensure the proper working of the Services. You acknowledge that the internet and telecommunications providers’ networks are inherently insecure. You agree we are not liable for any changes to, interception of, or loss of Customer Data while in transit via the Internet or telecommunications provider’s network.
7.3 Feedback. We welcome any recommendations, suggestions, improvement or correction requests, comments, or other feedback from you or any End User about the Services (collectively, “Feedback”). Please know, however, that by submitting Feedback to us, you agree that: (a) Feedback will not be treated as your Confidential information; (b) we may use or disclose, or chose not to use or disclose, Feedback for any purpose and in any way; (c) we own any Feedback; and (d) you and any End User are not entitled to any compensation or reimbursement of any kind from us under any circumstances for Feedback.
7.4.1 Definition. “Confidential Information” means any information of data, regardless of whether it is in tangible form, disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure, including, without limitation, any Order Form(s), Customer Data, the Documentation, security reports and attestations, audit reports, customer lists, pricing, phone numbers, concepts, processes, plans, designs and other strategies, “know how”, financial, and other business and/or technical information and material of Disclosing Party and its Affiliates. Confidential Information does not include any information which: (a) is publicly available through no breach of these Terms by the fault of Receiving Party; (b) was properly known, without any restrictions prior to disclosure by Disclosing Party; (c) was properly disclosed to Receiving party, and to its knowledge, without any restriction, by another person without breach of Disclosing Party’s rights; or (d) is independently developed by the receiving party without use of or reference to the Confidential Information of Disclosing Party. Use and Disclosure. Except as otherwise authorized by Disclosing Party in writing. Receiving Party will not (a) use any Confidential Information of Disclosing Party for any purpose outside the scope of these Terms and (b) disclose or make Confidential Information of Disclosing Party available to any party, except to its, its Affiliates’, and their respective employees, legal counsel, accountants, contractors, and in our case, subcontractors (collectively, “Representatives”) who have a “need to know” in order to carry out the purpose of these Terms. Receiving Party is responsible for its Representatives compliance with this section 7.4. Representatives will be legally bound to protect Confidential Information of Disclosing Party under terms of confidentiality that are at least as protective as the terms of this section 7.4. Receiving Party will protect the confidentiality of Confidential Information of Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information but in no event less than reasonable care.
7.4.2 Compelled Disclosure. Receiving Party may disclose Confidential Information of Disclosing Party if so required pursuant to a regulation, law, subpoena, or court order (collectively, “Compelled Disclosures”), provided Receiving Party gives Disclosing Party notice of a Compelled Disclosure (to the extent legally permitted). Disclosing Party will cover Receiving Party’s reasonable legal fees for preparation of witnesses, deposition, and testimony to the extent such Compelled Disclosure is in connection with a lawsuit or legal proceeding to which Disclosing party is a party or to the extent fees are incurred in connection with reasonable assistance provided to Disclosing Party in connection with Disclosing Party’s efforts to contest such Compelled Disclosure.
7.4.3 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 7.4 and that, in the event of an actual or threatened breach of the provisions of this Section 7.4, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
7.4.4 Intellectual Property Rights. The Site, the Services, and all components of the Site and Services, are protected by U.S. and international intellectual property laws. All rights, title, interest, ownership, and intellectual property rights in and to the Site, Services, WooSender trademarks and the templates provide via the Site or the Services, including but not limited to its “look and feel” (e.g., text, graphics, images, logos, buttons, icons, and the placement and layout thereof), images ,video, audio, data, content, software (including HTML-based computer programs), and other media, material, or information, other than Clients Content, are and will remain the sole and exclusive property of WooSender or its software or content suppliers. Any templates or derivatives of templates provided that Client may build using the Site or Services belong to WooSender. Subject to the terms and conditions of this Agreement. WooSender grants to Client, during the term of this Agreement, a non-transferable, non-sublicensable, non-exclusive, revocable, limited-purpose right to access and use the Services that are subject to a valid subscription. Client acknowledges and agrees that any ideas, suggestions, concepts, processes, or techniques that Client provides to WooSender related to the Services, the Site or WooSender or its business (the “Feedback”) shall become WooSender’s property without any compensation or other consideration payable to Client by WooSender and Client does so of Client’s own free will and volition. WooSender may, in its sole discretion, use or incorporate the Feedback in whatever form or derivative WooSender may choose into the Site, its software, services, documentation, business, or other products, or any future versions or derivatives of the foregoing. Client hereby assigns all rights on a worldwide, irrevocable, transferrable, and royalty-free basis in perpetuity to WooSender in any Feedback and, as applicable, waives any moral rights. WooSender owns any test results, data, information, and other output generated by Client’s use of the Site and/or the Services during the term of this Agreement.
8. Representation, Warranties and Disclaimer
8.1 Customer Data. You represent and warrant that you have provided, and will continue to provide, adequate notices and have obtained, and will continue to obtain, the necessary permissions and consents to provide Customer Data to us for use and disclosure pursuant to Section 7.2 (Our Use of Customer Data).
8.2 Services. We represent and warrant that the Services perform materially in accordance with the applicable Documentation. Our sole obligation, and your sole and exclusive remedy, in the event of any failure by us to comply with section 8.2 will be for us to, at our option, reperform the effective Services or refund to you the fees you actually paid for the effective Services.
8.3 Export Controls. Each party will comply with export control and economic sanctions laws in all applicable jurisdictions that apply directly or indirectly to the Services, including, without limitation, the United States of America. You will obtain all licenses or other authorizations required to export, re-export, or transfer the Services. Each party represents that it (and, in your case, also End Users) is not on any government prohibited/denied/unverified-party, sanctions, debarment, or exclusion list (collectively, “Sanctions Lists”). You will not export, re-export, or transfer the Services to an entity on any Sanctions List without prior U.S government or other required government authorization. You will (a) immediately discontinue your use of the Services if you are placed on any Sanctions List and (b) remove an End User’s access to the Services if such End User becomes placed on any Sanctions List.
8.4 DISCLAIMER. WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS UNDER THESE TERMS, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, THE SERVICES ARE PROVIDED “AS IS,” AND WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. WE ADDITIONALLY DISCLAIM ALL WARRANTIES RELATED TO THIRD PARTY TELECOMMUNICATIONS PROVIDERS.
9. Mutual Indemnification
9.1 Scope of Indemnification. We will defend you from and against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that our provision of the Services infringes or misappropriates such third party’s intellectual property rights (“Infringement Claim”). We will indemnify you from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees, and costs awarded against you for settlement amounts approved by us for an Infringement Claim.
9.1.2 Infringement Options. If your use of the Services has become, or in our opinion is likely to become, the subject of any Infringement Claim, we may at our option and expense: (a) procure for you the right to continue using the Services as set forth in these Terms; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms, or, if applicable terminate the Services that are the subject of any Infringement Claim, and refund you any unused pre-paid fees.
9.1.3 Limitations. We will have no liability or obligation under this Section 9.1 with respect to any infringement Claim (a) arising out of your use of the Services in breach of these Terms; (b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves be infringing; or (c) arising from Services for which there is no charge.
9.2 Indemnification by You. You will defend us, our officers, directors, employees, and Affiliates (collectively, “WOOSENDER Parties) from and against any claim, demand, suit, or proceeding made or brought against WOOSENDER Indemnified Party by a third party alleging or arising out of (a) your or any End Users’ breach of Section 4 ( Your Responsibilities) or (b) a Customer Application, including, without limitation, any claims that a Customer Application, or your or an End User’s use of a Customer Application, infringes or misappropriates such third party’s intellectual property rights in whole or in part ( “Customer Indemnifiable Claims”). You will indemnify us from any damages, fines or penalties imposed by a government or regulatory body, attorneys’ fees and costs awarded against a WOOSENDER Indemnified Party or for settlement amounts approved by you for a Customer Indemnifiable Claim.
9.3 Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a). the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any infringement Claim or Customer Indemnifiable Claim (individually and collectively referred to as a “Claim”); provided, however, any failure to give such prompt notice will not relieve Indemnifying Party of its obligations under this Section 9 except to the extent that Indemnifying Party was actually and materially prejudiced by such failure; (b) Indemnifying Party will have the sole and exclusive authority to defend or settle any Claim; and (c) Indemnified Party will reasonably cooperate with Indemnifying Party in connection with Indemnifying Party’s activities under this Section 9 at Indemnifying Party’s expense. Indemnified Party reserves the right, at its own expense, to participate in the defense of the Claim. Notwithstanding anything to the contrary in this Section 9, Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 9 admitting liability or fault on behalf of Indemnified Party, nor create any obligation on behalf of Indemnified Party, without Indemnified Party’s prior written consent, which will not be unreasonably withheld, conditioned, or delayed.
9.4 Exclusive Remedy. This Section 9 states Indemnifying Party’s sole liability to, and Indemnified Party’s exclusive remedy against, the other party for any third party claims.
10. Limitation of Liability
10.1 LIMITATION ON INDIRECT, CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILTY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, BUSINESS , GOODWILL, OR INDIRECT, SPECIAL, EXEMPLARY , CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILTY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.2 LIMITATION OF LIABILTY. IN NO EVENT WILL THE AGGREGATE LIABILTY OF EITHER PARTY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THESE TERMS FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILTY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILTY.
10.3 UNLIMITED LIABILTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10.1 (LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES) AND SECTION 10.2 (LIMITATION OF LIABILTY), THE LIMITATIONS IN SECTION 10.1 AND SECTION 10.2 DO NOT APPLY TO (a) YOUR BREACH OF SECTION 4 (YOUR RESPONSIBILITIES); (b) YOUR BREACH OF SECTION 6 (FEES AND PAYMENT TERMS); OR (c) AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (MUTUAL INDEMNIFICATION). THE PROVISIONS OF THIS SECTION 10 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH IN THIS SECTION 10 IN DETERMINING WHETHER TO ENTER INTO OR OTHERWISE ACCEPT THESE TERMS.
11. Use of Marks
You grant us the right to use your name, or a derivation thereof, logo, symbol a description of your case to refer to you on our website, earnings releases and calls, or marketing or promotional materials, subject to your standard trademark usage guidelines that you expressly provide to us.
12. Term, Termination, and Survival
12.1 Term. These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated in accordance with Section.
12.2 For Convenience. Either party may terminate these Terms and close all of your accounts for any reason upon thirty (30) days written notice to the other party. Notwithstanding the preceding sentence, if there is an Order Form(s) in effect, then these Terms will not terminate until such Order Form(s) has expired or been terminated in accordance with its terms.
12.2.1 Material Breach. We, at our sole discretion, may terminate these Terms and close all of your accounts in the event you commit any material breach of these terms and fail to remedy such material breach within fifteen (15) days after we provide written notice of such breach to you. You may also terminate these terms in the event we commit a material breach of these Terms and fail to remedy such material breach within fifteen (15) days after providing written notice of such material breach to us.
12.2.2 Insolvency. Subject to applicable law, either party may terminate these Terms immediately and close all of your accounts by providing written notice in the event of the other party’s liquidation, commencement of dissolution proceedings, or any other proceeding relating to a receivership failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.
12.2.3 Survival. Upon termination of these terms, the terms of this Section 12.2.3, and the Terms of the following Sections will survive (i.e. still apply): Section 3.1(b)(regarding our Security Overview), Section 6 (Fees and Payment Terms), Section 7 (Ownership, Use of Customer Data, and Confidentiality), Section 8.4 (Disclaimer), Section 9 (Mutual Indemnification), Section 10 (Limitation of Liability), Section 13 (General), and Section 14 (Dispute Resolution).
13.1 No Waiver and Order of Precedence. No failure or delay by either party in exercising any right or enforcing any provision under these Terms will constitute a waiver of that right, provision, or any other provision. Any waiver must be in writing and signed by each party to be legally binding. Titles and headings of sections of these Terms are for convenience only and will not affect the construction of any provision of these Terms. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order Form, (2) these Terms.
13.2 Assignment. You will not assign, delegate, or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be null and void. We may assign, delegate, or otherwise transfer these Terms, in whole or in part, without your consent. Subject to this Section 13.2, these Terms will be binding on each party and each party’s successors and assigns.
13.2.1 Relationship. Each party is an independent contractor in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of it respective employees and agents and its respective labor costs and expenses arising in connection with its respective employees and agents. Each party will also be solely responsible for any and all claims, liabilities, damages, or debts of any type that may arise on account of each of its respective activities, or those of its respective employees and agents, in the performance of these Terms. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.
13.3 Severability. Except as described in Section 14 (Dispute Resolution), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
13.4 Notices. Any notice required or permitted to be given under these Terms to us will be given in writing to the following address by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email:
Company Name: WOOSENDER Inc.
Notices may be sent to email@example.com with the subject line “Attention General Counsel”.
Any notice required or permitted to be given under these Terms to you will be sent via email to the email address you designated in your account or provided via your account portal.
13.5 Force Majeure. No failure, delay, or default in performance of any obligation of a party will constitute an event of default or breach of these Terms to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil, or military authority, fire, strike, lockout, or other labor dispute, flood, terrorist act, war, riot, theft, earthquake, or other natural disaster. The party affected by such cause will take all reasonable actions to minimize the consequences of such cause.
13.6 Governing Law and Venue. The enforceability and interpretation of Section 14 (Dispute Resolution) will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from Section 14 (Dispute Resolution), these Terms will be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania without regard to conflicts of laws and principles that would cause the laws of another jurisdiction to apply.
13.7 Entire Agreement. Except as provided in these Terms and any exhibits or attachments, applicable Order Form(s), or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sale materials, presentation, or agreements, oral and written. No oral or written information or advice given by us, our agents, or our employees will create a warranty or in any way increase the scope of the warranties or obligation under these Terms. Any term or condition stated in your vendor registration form or registration portal or in any purchase order document or similar document provided by you will be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon will be null and void and have no effect with regard to these Terms between the parties and be non-binding against us even if signed by us after you accept these Terms.
14. Dispute Resolution
14.1 Agreement to Arbitrate. If a dispute, claim or controversy related to these Terms or the Services (collectively, “Disputes”) cannot be resolved through our Customer Support team, each party’s senior representatives will engage in good faith negotiations with the other party’s senior representatives to amicably resolve a Dispute (except for Disputes set forth in Section 14.3 (Exceptions to Agreement to Arbitrate), which may be litigated in court). If parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree to in writing, the parties may commence binding arbitration in accordance with Section 14.2 (Detail on Arbitration Procedure). If either party has a Dispute about whether this Section 14.1 can be enforced or applies to a Dispute between the parties, each party agrees that the arbitrator will decide that, too. Pursuant to this Section 14.1, YOU UNDERSTAND THAT YOU ARE GIVING UP THE RIGHT TO HAVE A JUDGE AND/OR JURY RESOLVE AND DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR SERVICES.
14.2 Details of Arbitration Procedure. Except for Disputes set forth in Section 14.3 (Exceptions to Agreement to Arbitrate), Disputes that have not been resolved between the parties will be submitted to binding arbitration, which will be conducted by the American Arbitration Association (AAA). The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (“Rules) and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this Section 14 conflicts with the Rules, the language of this Section 14 applies. Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 14 does not alter in any way the statute of limitations that would apply to any Disputes asserted by either party. The arbitrators award will be based on the evidence admitted and the substantive law of the Commonwealth of Pennsylvania and the United States of America, as applicable, and will contain an award for each issue in Dispute. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Any arbitration proceedings will take place in Philadelphia, Pennsylvania.
14.3 Exceptions to Agreement to Arbitrate. Each party agrees it will go to court to resolve Disputes relating to:
14.4 Class Action Waiver. Each party agrees all and any Disputes between the parties must be brought against each other on an individual basis only. That means neither party can bring a Dispute as a plaintiff or class member in a class action, consolidated action, or representative action. An arbitrator cannot combine more than one person’s or entity’s Disputes into a single case and cannot preside over any consolidated class or representative proceeding. Each party agrees the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought a Dispute and cannot impact or otherwise be used to decide Disputes with other people or entities, including other WOOSENDER customers. If a court decides that this Section 14.4 is not enforceable or valid, then this Section 14.4 will be null and void. But the rest of these Terms will still apply.