InstaContact Contract

InstaContact Cloud Services Agreement

This Cloud Services Agreement (“Agreement”) is entered into as of the last signature date below (“Effective Date”) by and between the entity signing below (“Customer”) and Technology Business Partners LLC dba InstaContact (“InstaContact”).

  1. Definitions.
    1. “API” means application programming interface information made available by InstaContact for communicating with Services.
    2. “Applicable Law” means federal, state and local laws, rules and regulations, including HIPAA, applicable to a party in their performance of this Agreement.
    3. Business Associate Agreement” means a business associate agreement, compliant with HIPAA, separately entered into by the parties.
    4. “Customer Data” means the information, data, and content input or uploaded by Customer and the Users into the Services.
    5. “Services” means InstaContact’s cloud-based platform, accessible to Customer and its Users, enabling the storage, transmission, analysis and management of customer data, telephonic and text message records, and related data.
    6. “Protected Health Information” or “PHI” shall be as defined under the Health Insurance Portability and Accountability Act (“HIPAA”).
    7. means mean(s) any employee, personnel, associate, web developer, software administrator, contractor or subcontractor, or other third party authorized by Customer to access and use the Services on its behalf or to receive or exchange data with the Services.
  2. Term. This Agreement will become effective on the Effective Date and continue thereafter for one (1) year (the “Initial Term”), Renewal Term”), Term.
  3. Services. Subject to the terms and conditions of this Agreement and Customer’s payment of all relevant fees, during the Term, InstaContact grants Customer a non-exclusive, non-transferable license to access and use the Services; subject to the foregoing and as otherwise provided herein, Customer may grant its Users access to the Services. To the extent any InstaContact software is provided to Customer for installation on its systems for use in connection with the Services, the InstaContact software will be included in the definition of Services and subject to the foregoing license. All software may only be used in support of Customer’s use of the Services and for no other purpose.
  4. Users. Customer is responsible for ensuring all Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Customer. With regard to any third party Users, including web developers, software administrators, contractors and subcontractors, Customer shall enter into written agreements with each User disclaiming all liability and warranties of Customer’s licensors and vendors and include language at least as protective as set forth herein regarding the protection of InstaContact’s intellectual property and Confidential Information. Customer will not make any representations or warranties to Users or any other third party regarding the Services. From time-to-time, Customer may direct InstaContact to permit third party Users to access the Services on Customer’s behalf or to directly transmit designated data sets to such third party Users. Customer understands and agrees that InstaContact shall have no obligation or liability whatsoever in following such directions from Customer or for any loss or misuse of Customer Data once it leaves InstaContact’s servers.
  5. API. Subject to the terms and conditions of this Agreement and Customer’s payment of all relevant fees, during the Term, InstaContact grants Customer a non-exclusive, non-transferable license to use the API for purposes of exchanging data with the Services. The API information shall be deemed part of and including in the definition of “Documentation,” as defined in Section 6 (Restrictions).
  6. Restrictions.Customer and its Users may only use the Services as described in this Agreement and in the then current documentation made generally available by InstaContact to its customers regarding use of the Services (the “Documentation”). Except as expressly authorized by this Agreement, Customer will not, and will not allow any User or other third party to, (i) permit any third party to access or use the Services, other than an User; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Services, except to the extent expressly permitted by applicable law; (iii) use the Services or any InstaContact Confidential Information to develop a competing product or service; (iv) use any Confidential Information disclosed by InstaContact to dispute the validity of any InstaContact’s intellectual property rights, including those comprising the Services; (v) use any Service, or allow the transfer, transmission, export, or re-export of any Service or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency; or (vi) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation and Service, including any screen displays, etc., or any other products or materials provided by InstaContact hereunder. Under no circumstances will InstaContact be liable or responsible for any use, or any results obtained by the use, of the Services in conjunction with any services, software, or hardware that are not provided by InstaContact. All such use will be at Customer’s sole risk and liability.
  7. Availability. The hosted elements of the Services will be available for remote access 99.9% of the time each calendar month of the Term, excluding Excused Outages (as defined below) (“Availability”). Downtime as a result of any causes beyond the control of InstaContact or that are not reasonably foreseeable by InstaContact, including, without limitation by any of the events noted below are excluded from the Availability calculations (collectively, “Excused Outages”):
    1. Customer environment issues affecting connectivity or interfering with the Services, including without limitation, Customer’s telecommunications connection or any other Customer software or equipment, Customer’s web sites, Customer’s firewall software, hardware or security settings, Customer’s configuration of anti-virus software or anti-spyware or malware software, or operator error of Customer;
    2. any third party software, hardware, or telecommunication failures, including Internet slow-downs or failures;
    3. force majeure events, including, without limitation fire, flood, earthquake, elements of nature or acts of God; third party labor disruptions, acts of war, terrorism, riots, civil disorders, rebellions or revolutions; quarantines, embargoes and other similar governmental action; or any other similar cause beyond the reasonable control of InstaContact;
    4. issues related to third party domain name system (DNS) errors or failures;
    5. scheduled maintenance of the Services, conducted on a regular basis, of which InstaContact will give Customer a minimum of twenty-four (24) hours advanced notice by email or other pre-approved notification; and
    6. emergency maintenance of the Services, not to exceed four (4) hours in any month, for which Customer may not receive advanced notice.
    In the event InstaContact fails to achieve the Availability requirement, InstaContact will use commercially reasonable efforts to correct the interruption as promptly as practicable. In the event InstaContact fails to achieve the Availability requirement in two consecutive months during the term of this Agreement, Customer may terminate this Agreement within thirty (30) days of the end of the second consecutive month, without further obligation and receive a prorated refund of any pre-paid, unused recurring fees. The refund will constitute Customer’s sole and exclusive remedy and InstaContact’s sole and exclusive liability for failure to achieve the Availability requirement.
  8. Information Security; Compliance. Consistent with Applicable Laws and InstaContact’s then current practices and procedures, InstaContact will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of the Customer Data. InstaContact will promptly report to Customer any compromise of security that it becomes aware of with regard to Customer Data.
  9. Business Associate Agreement. With regard to the protection and use of the Customer Data, the provisions of this Agreement are in addition to and cumulative of the provisions in the Business Associate Agreement, applicable to Healthcare Customers.
  10. Connectivity. Customer and Users are solely responsible for all telecommunication or Internet connections required to access the Services, as well as all hardware and software at Customer’s site. In addition to other third party costs that may apply, Customer agrees to pay for all telecommunications costs, fees and services required for and dedicated to Customer’s access to the Services.
  11. Proprietary Rights. Customer acknowledges and agrees that (i) all Services and Work Product (as described in Section 16.4), including Support Services and Professional Services, are protected by intellectual property rights, as applicable, of InstaContact and its vendors/licensors and that Customer has no right to transfer or reproduce any of the foregoing or any software provided with the Services or Work Product or prepare any derivative works with respect to, or disclose Confidential Information (as defined in Section 21 (Confidentiality)) pertaining to, any Services or Work Product, including Support Services and Professional Services, or any part of them and (ii) that InstaContact owns all right, title, and interest in and to the Services or Work Product, including Support Services and Professional Services, including any changes or modifications made to the Services performed in connection with this Agreement, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services or Work Product, including Support Services and Professional Services. Under no circumstances will Customer be deemed to receive title to any portion of the Services or Work Product, including Support Services and Professional Services, title to which at all times will vest exclusively in InstaContact. This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code. Customer will preserve all Services and Work Product from any liens, encumbrances, and claims of any individual or entity. Customer will not use any Confidential Information disclosed by InstaContact to Customer in connection with this Agreement to contest the validity of any intellectual property rights of InstaContact or its licensors. Any such use of InstaContact’s Confidential Information will constitute a material, non-curable breach of this Agreement.
  12. Customer Data. Customer grants InstaContact a non-exclusive, world-wide, royalty-free license to use the Customer Data for purposes of performing this Agreement. Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to InstaContact for use as contemplated under this Agreement. Except for the licenses granted in Sections 12 and 13, Customer retains all right, title, and interest in and to the Customer Data.
  13. Aggregated Data. Customer grants InstaContact a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, and otherwise exploit statistical and other aggregated data derived from Customer’s and its Users’ use of Services and the Customer Data (the “Aggregated Data”) for InstaContact’s business purposes, including the provision of products and services to InstaContact’s customers; provided the Aggregated Data is does not include (directly or by inference) any information identifying Customer or any identifiable individual and is de-identified pursuant to all applicable laws, including HIPAA. Once aggregated, InstaContact shall be the owner of all right, title, an interest in and to the Aggregated Data. The Aggregated Data will not be considered Customer’s Confidential Information.
  14. Feedback. Customer may provide suggestions, comments or other feedback (collectively, “Feedback”) to InstaContact with respect to its products and services, including the Services. Feedback is voluntary. InstaContact may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer grants InstaContact an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with InstaContact’s business, including the enhancement of the Services.
  15. Support and Maintenance. During the Term, InstaContact will provide Customer with reasonable email, chat and/or telephone support during InstaContact’s then current business hours. InstaContact will provide Customer Service updates and bug fixes that InstaContact in its sole discretion makes generally available to its other similarly situated licensees at no charge. However, Customer shall not be entitled to receive updates or new releases that include new or different functionality for which InstaContact imposes an additional charge to its other customers. Such new or different functionality may be purchased by Customer, in its discretion, at InstaContact’s then current pricing. InstaContact will use commercially reasonable efforts to correct reproducible failures of the Service to perform in substantial accordance with their then current Documentation. The support and maintenance services described in this Section may be referred to, collectively, as the “Support Services.”
  16. Professional Services.
    1. In General. From time-to-time, InstaContact and Customer may enter into one or more Statements of Work that specifically reference and be governed by this Agreement under which InstaContact will furnish certain professional services to Customer (the “Professional Services”).
    2. Performance. Each party will use its reasonable efforts to accomplish the tasks assigned to it in the Statement(s) of Work, and to cooperate with and support the other party’s performance of the tasks assigned to it, on a timely basis and in a professional manner, subject to receipt of all necessary and appropriate cooperation and support from the other party. In particular, Customer will furnish InstaContact prompt access to the Customer Database to facilitate implementation of the API and provision of the Services. Customer will also grant InstaContact prompt access to relevant Customer premises and systems, as needed to perform this Agreement. InstaContact is responsible for delivering and performing only those Professional Services specifically identified in the Statement(s) of Work.
    3. Change Orders Customer must submit all change requests concerning the Professional Services to InstaContact in writing. On receiving each change request, InstaContact will evaluate the request at its then current rates and charges and provide a written response. The written response will include a statement of the availability of InstaContact’s personnel and resources, as well as the impact the proposed changes will have on the fee for the Professional Services, delivery dates, milestones, or warranty provisions of this Agreement. If the response is acceptable to Customer, InstaContact and Customer shall execute a mutually agreed upon written change order.
    4. Work Product. To the extent InstaContact develops any intellectual property, including modifications to the Services, in rendering the Professional Services (collectively, “Work Product”), the provisions of Section 11 shall apply. Any such intellectual property will be included in the definition of Services in Section 3 and subject to the license therein.
  17. Fees.
    1. In general. Customer will pay InstaContact the fees for the Services set forth in Exhibit A and the fees for Professional Services set forth in the Statement(s) of Work. Except as provided in Sections 18.2, and 23, all fees are non-refundable. Customer will prepay fees and receive an account credit OR pay all invoices within fifteen (15) days of invoice date. Payments not made within that time period will be subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. In the event an invoice remains unpaid forty-five (45) or more days from the invoice date, InstaContact may, in its discretion, suspend the Services and Professional Services until the invoice is paid in full. Following the initial year of the Term, on sixty (60) days prior notice to Customer, InstaContact may, at its discretion, adjust any or all fees due hereunder. Customer may terminate this Agreement on written notice to InstaContact within thirty (30) days of its receipt of notice from InstaContact to adjust the fees; provided, however, that if Customer fails to object to such adjustment in writing within the foregoing thirty (30) days then Customer will be deemed to have agreed to the adjustment.
    2. Taxes. In addition to any other payments due under this Agreement, Customer agrees to pay, indemnify and hold InstaContact harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement; excluding, however, income taxes on profits which may be levied against InstaContact.
  18. Warranties.
    1. Customer Warranty. Customer represents and warrants that (a) it has full power, capacity, and authority to enter into this Agreement and to grant the license set forth in Section 12 (Customer Data); and (b) the licensed use of the Customer Data does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of Applicable Laws.
    2. InstaContact Warranty. InstaContact represents and warrants (i) the Services will substantially comply with the Documentation; (ii) it shall use commercially reasonable efforts to screen the Services for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; (iii) it shall comply with Applicable Law in performing this Agreement; and (iv) the Professional Services will materially comply with the requirements of the relevant Statement of Work for a period of thirty (30) days from completion. In the event of a breach of the warranty in Section 18.2(i), InstaContact’s sole and exclusive liability and Customer’s sole and exclusive remedy will be to perform the defective Service or Professional Services again. In the event InstaContact is unable through reasonable efforts to correct the defective Service or Professional Service within thirty (30) days from receipt of notice from Customer of the breach, Customer may elect to terminate this Agreement and receive a pro-rated refund of any pre-paid, unused recurring fees for the non-conforming Services or Professional Services.
    3. Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 18.2 (INSTACONTACT WARRANTY), THE SERVICES, SUPPORT SERVICES, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. INSTACONTACT AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INSTACONTACT OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY OTHER WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF INSTACONTACT’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT INSTACONTACT AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED CUSTOMERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEBSITES, COMPUTERS, OR NETWORKS. INSTACONTACT WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. CUSTOMER IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.
  19. InstaContact Indemnity. InstaContact will defend and indemnify Customer and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from a claim by a third party that Customer’s licensed use of the Services infringes that third party’s United States patent, copyright, or trade secret rights. The foregoing indemnification obligation is contingent upon Customer promptly notifying InstaContact in writing of such claim, permitting InstaContact sole authority to control the defense or settlement of such claim and providing InstaContact reasonable assistance (at InstaContact’s sole expense) in connection therewith. If a claim of infringement under this Section 19 (Indemnity) occurs, or if InstaContact determines a claim is likely to occur, InstaContact will have the right, in its sole discretion, to either (i) procure for Customer the right or license to continue to use the Services free of the infringement claim, or (ii) modify the Services to make it non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to InstaContact, InstaContact may, in its sole discretion, immediately terminate this Agreement and return the prorated portion of any pre-paid, unused fees for the relevant Services. Notwithstanding the foregoing, InstaContact will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the Services with any hardware, software, products, data, or other materials not provided by InstaContact, (ii) modification or alteration of the Services by anyone other than InstaContact, (iii) use of Services in excess of the rights granted in this Agreement, or (iv) any specifications or other intellectual property provided by Customer, including the Customer Data (collectively, the “Excluded Claims”). In addition, Excluded Claims shall include any claims associated with liabilities to the United States government or any U.S. state, including, but not limited to, liabilities for billing or payment violations, overpayments, civil money penalties, false claims act liabilities, or any other similar liability. The provisions of this Section 19 (Indemnity) state the sole and exclusive obligations and liability of InstaContact and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Services or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.
  20. Customer Indemnity. Customer will defend and indemnify InstaContact and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) incurred by InstaContact as a result of (i) Customer’s use of the Services in breach of this Agreement; (ii) Customer’s breach of Section 4; (iii) claims by Users, clients or patients (other than to the extent arising from InstaContact breach of the Business Associate Agreement); (iv) professional malpractice claims or other claims relating in any way to client services or losses or defamation of individuals, businesses or brands (iv) medical malpractice claims or other claims relating in any way to patient care or injuries or harm to patients; (v) violations of HIPAA (other than to the extent arising from InstaContact breach of the Business Associate Agreement); (vi) errors in the Customer Data, including accidental or malicious entry of false medical data into the Services; or (vii) the Excluded Claims. The foregoing indemnification obligation of Customer is contingent upon InstaContact promptly notifying Customer in writing of such claim, permitting Customer sole authority to control the defense or settlement of such claim and providing Customer reasonable assistance (at Customer’s sole expense) in connection therewith.
  21. Confidentiality.
    1. Definition of Confidential Information. Each party agrees that all information supplied by one party and its affiliates and agents (collectively, the “Disclosing Party”) “Receiving Party”) “Confidential Information”).
    2. Exclusions. Confidential Information will not include any information or material, or any element thereof, whether or not such information or material is Confidential Information for the purposes of this Agreement, to the extent any such information or material, or any element thereof: (a) has previously become or is generally known, unless it has become generally known through a breach of this Agreement or a similar confidentiality or non-disclosure agreement; (b) was already rightfully known to the Receiving Party prior to being disclosed by or obtained from the Disclosing Party as evidenced by written records kept in the ordinary course of business of or by proof of actual use by the Receiving Party; (c) has been or is hereafter rightfully received by the Receiving Party from a third person (other than the Disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the Disclosing Party; or (d) has been independently developed by the Receiving Party without access to Confidential Information of the Disclosing Party.
    3. Treatment of Confidential Information. Each party recognizes the importance of the other’s Confidential Information. In particular, each party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section and elsewhere in this Agreement. Accordingly, each party agrees as follows: (a) the Receiving Party will hold any and all Confidential Information it obtains in strictest confidence and will use and permit use of Confidential Information solely for the purposes of this Agreement; (b) without limiting the foregoing, the Receiving Party will use at least the same degree of care, but no less than reasonable care, to avoid disclosure or use of this Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like importance; (c) the Receiving Party may disclose or provide access to its responsible employees who have a need to know and may make copies of Confidential Information only to the extent reasonably necessary to carry out its obligations hereunder; (d) the Receiving Party currently has, and in the future will maintain in effect and enforce, rules and policies to protect against access to, or use or disclosure of, Confidential Information other than in accordance with this Agreement, including, without limitation, written instruction to, and agreements with, employees and agents who are bound by an obligation of confidentiality no less stringent than set forth in this Agreement to ensure that such employees and agents protect the confidentiality of Confidential Information; (e) the Receiving Party expressly will instruct its employees and agents not to disclose Confidential Information to third parties, including, without limitation, agents, subcontractors, or consultants, without the Disclosing Party’s prior written consent; and (f) the Receiving Party will notify the Disclosing Party immediately of any unauthorized disclosure or use, and will cooperate with the Disclosing Party to protect, all proprietary rights in and ownership of its Confidential Information.
    4. Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with such law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of such law, order, or requirement, and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose, or seek to limit such disclosure by the Receiving Party, and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
    5. Return of Confidential Information. On termination or expiration of this Agreement, Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party will not be required to remove copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any retention obligations imposed on Receiving Party by law or regulation.
    6. Non-Exclusive Equitable Remedy. Each party acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with the other party, resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party will be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity before an arbitrator in accordance with the arbitration provision of this Agreement. Any breach of this Section 21 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching party.
  22. Limitation of Liability and Damages. NEITHER INSTACONTACT NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF OR INABILITY TO USE THE SERVICES, SUPPORT SERVICES, AND PROFESSIONAL SERVICES. THE TOTAL LIABILITY OF INSTACONTACT AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SERVICES, SUPPORT SERVICES, AND PROFESSIONAL SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
  23. No Medical Advice or Physician Relationship. THE SERVICES AND DOCUMENTATION DO NOT PROVIDE MEDICAL DIAGNOSIS OR ADVICE. INSTACONTACT IS NOT A LICENSED HEALTH CARE PROVIDER, NOR DOES IT RENDER HEALTHCARE ADVICE OR SERVICES. THE SERVICES ARE NOT A REPLACEMENT FOR THE ADVICES OF A MEDICAL PROFESSIONAL. CUSTOMER AND ITS USERS ARE SOLELY RESPONSIBLE FOR USING THEIR OWN PROFESSIONAL JUDGEMENT IN ASSESSING THE VALIDITY AND USEFULNESS OF ANY RESULTS OR OTHER INFORMATION MADE AVAILABLE THROUGH THE SERVICES. USE OF THE SERVICES DOES NOT CREATE A PHYSICIAN-PATIENT RELATIONSHIP.
  24. Termination.
    1. Termination. This Agreement will terminate (a) on the thirtieth (30th) day after either party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day; or (b) upon written notice by either party, immediately, if (i) a receiver is appointed for the other party or its property; (ii) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (iii) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof. In addition, either party may terminate this Agreement on written notice to the other party in the event the party undergoes a change in control or is acquired by a direct competitor of the other party.
    2. Suspension of Services. Notwithstanding any other provision of this Agreement, InstaContact may, in its sole discretion, suspend Customer’s access to the Services for any of the following reasons (a) to prevent damages or risk to, or degradation of, the Services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect InstaContact from potential legal liability; or (d) in the event an invoice remains unpaid for more than forty-five (45) or more days from the invoice date. InstaContact will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension of the Services. InstaContact will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on InstaContact to monitor use of the Services.
    3. Effect of Termination. Upon termination of this Agreement or termination of a particular Service for any reason: (a) Customer’s and all User’s access to and use of the Services will cease as of the effective date of termination; (b) Customer will pay to InstaContact all undisputed sums due to InstaContact for Services through the effective date of such expiration or termination (prorated as appropriate); and (c) at InstaContact’s standard time and materials rates, InstaContact will reasonably cooperate with Customer in transitioning the Customer Data back to Customer.
  25. General Provisions.
    1. Affiliates, Subcontractors and Vendors. Some or all of the Services, including support and Professional Services, may be provided by InstaContact’s affiliates, agents, subcontractors and information system vendors. The rights and obligations of InstaContact may be, in whole or in part, exercised or fulfilled by the foregoing entities. InstaContact shall ensure such entities comply with all relevant terms of this Agreement and any failure to do so shall constitute a breach by InstaContact.
    2. Publicity. Either party may identify the other party and use its logos in connection with this engagement in its partner/customer listings, web sites, and other promotional materials, subject to the other party’s prior approval, which shall not be unreasonably withheld or delayed. In addition, the parties may individually or mutually may issue an agreed upon press release regarding the parties’ new relationship under this Agreement.
    3. USA Patriot Act Notice. The U.S. federal USA Patriot Act (“USA Patriot Act”) provides generally for the operator of a communication host and law enforcement to be able to monitor any content, upon request of the operator. InstaContact anticipates fully complying with all its obligations, and availing itself of all its rights, under the USA Patriot Act.
    4. Force Majeure. Except for the payment of money as described in Section 17 (Fees) of this Agreement, neither party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions. In the event a party’s performance hereunder is subject to a force majeure event that continues for more than thirty (30) consecutive days, the other party may, in its discretion, terminate this Agreement on written notice to the impacted party.
    5. Entire Agreement; Amendment. This Agreement sets forth the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced herein. INSTACONTACT SPECIFICALLY OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS BEING ADDED THROUGH A PURCHASE ORDER OR SIMILAR DOCUMENT. IF A PURCHASE ORDER IS REQUIRED BY CUSTOMER, THE PARTIES AGREE THAT ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED THEREIN SHALL NOT BECOME PART OF THE AGREEMENT BETWEEN THE PARTIES AND SPECIFICALLY THAT THE TERMS OF THIS AGREEMENT SHALL SUPERSEDE ANY AND ALL TERMS IN ANY PURCHASE ORDER OR SIMILAR DOCUMENT.
    6. Governing Law, Venue, and Limitation of Actions. This Agreement will be construed according to, and the rights of the parties will be governed by, the law of California, without reference to its conflict of laws rules. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal courts (if permitted by law and a party elects to file an action in federal court) located in Los Angeles, California. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section. No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year after the cause of action has arisen. The prevailing party in any action or proceeding will be entitled to recover its reasonable attorneys’ fees and costs.
    7. No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. For the avoidance of doubt, no User will be deemed a third party beneficiary of this Agreement.
    8. Relationship of the Parties. The parties agree that InstaContact will perform its duties under this Agreement as an independent contractor. Nothing contained in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Personnel employed or retained by InstaContact who perform duties related to this Agreement will remain under the supervision, management, and control of InstaContact.
    9. Assignment. Customer may not assign this Agreement without the prior written consent of InstaContact, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Customer may assign this Agreement to a successor entity in the event of a merger, acquisition, or sale of all or substantially all of its assets. In such event, the successor shall agree in writing to be bound by the terms of this Agreement. No successor may be an existing customer or competitor of InstaContact. In the event of such an assignment, InstaContact may terminate this Agreement on written notice to Customer without further obligation.
    10. Severability. If any of the provisions of this Agreement are found or deemed by a court to be invalid or unenforceable, they will be severable from the remainder of this Agreement and will not cause the invalidity or unenforceability of the remainder of this Agreement.
    11. Waiver. Neither party will by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party will not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
    12. Survival. The following provisions will survive termination or expiration of this Agreement: 11 (Proprietary Rights), 13 (Aggregated Data), 14 (Feedback), 17 (With regard to fees due prior to termination); 18.3 (Disclaimer of Warranties), 19 (InstaContact Indemnity) (for claims accruing prior to termination), 20 (Customer Indemnity) (for claims accruing prior to termination), 21 (Confidentiality), 22 (Limitation of Liability and Damages), 23 (No Medical Advice or Physician Relationship), 24 (Termination), and 25 (General Provisions).
    13. Notices. Any written notice or demand required by this Agreement will be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice will be effective as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail. Any party may change the address at which it receives notices by giving written notice to the other party in the manner prescribed by this Section.
    14. Electronic Execution. This Agreement and Statements of Work may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and either party’s acceptance will be deemed binding between the parties. Each party acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form.
Exhibit A: Fees
  1. Free Trial