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This Agreement is executed as of the EffectiveDate defined below, and is between TeleSign and Client,as those terms are defined below (each a “Party”, and collectively, the“Parties”).
PLEASE REVIEW THIS AGREEMENT CAREFULLY. ONCEYOU CLICK “GET STARTED”, THIS AGREEMENT BECOMES A BINDING LEGAL COMMITMENTBETWEEN YOU, THE CLIENT AND TELESIGN. IF YOU DO NOT WANT THE CLIENT TO BE BOUNDBY THIS AGREEMENT, DO NOT CLICK THE “GET STARTED” BUTTON AND DO NOT USETELESIGN’S SERVICES.
PLEASE NOTE – TELESIGN DOES NOT PROVIDEWARRANTIES IN RESPECT OF THE SERVICES, THIS AGREEMENT LIMITS TELESIGN’SLIABILITY, AND TELESIGN HAS THE RIGHT TO AMEND BOTH THESE TERMS OF SERVICE ANDTHE FEES WE CHARGE FOR THE SERVICES. PLEASE REVIEW SECTIONS 5.2, 9 &10.4 VERY CAREFULLY.
In consideration of the mutual promises,agreements and conditions stated herein, the Parties agree as follows:
1. Definitions
Unless the context requires otherwise, thefollowing terms shall have the meaning set out in this section 1 when used inthis Agreement:
“Acceptable Use Policy” or “AUP”means the Client’s and Users’ obligations regarding use of the Services andLicensed Data as set out in https://www.telesign.com/acceptable-use-policy, as may be updated by TeleSign from time totime at its discretion.
“Additional Feature” means any productfeature which is not defined within the description of the Services, but whichis introduced or made available to Client by TeleSign (including but notlimited to the URL shortener and SMS Retriever features), regardless of whetherTeleSign charges for such feature.
“Affiliate” means a company, person orentity that is owned or controlled by, that owns or controls or is under commonownership or control with a Party. Ownership shall mean direct orindirect ownership of more than 50% of the shares in a company or entity, andcontrol shall mean any power to appoint persons to the board of directors of acompany or entity.
“Agreement” means the terms andconditions set out in these Terms of Service, as such terms may be amended byTeleSign from time to time as described herein, including TeleSign’s AUP, DPA,Privacy Policy, and any schedules, annexes, policies and service descriptionslinked hereto.
“API” means application programminginterface made available to Client by TeleSign that allows Client to createapplications to make use of the Services.
“Applicable Law” means any statute,statutory instrument, regulation, order and other legislative provision,including any delegated or subordinate legislation, and any judgment of arelevant court of law or decision of a tribunal or competent authority, to theextent any of the foregoing applies to a Party’s performance of obligationsunder this Agreement in the relevant jurisdiction.
“Carrier” means any telecommunicationsservice provider that may provide services used in the delivery of theServices, including SMS and voice interconnect and transit providers, datacenter operators, and fixed and mobile operators.
“Client”, “you” or “your”means the company entered into the Company Name field on the accountapplication page of TeleSign’s website when signing up to use the Services, aswell as the person that completes the account application (where applicable).
“Client Data” means any informationtransmitted by or on behalf of Client or a Client Affiliate during theexecution of an electronic request to the Services.
“Client Portal” means a web portalmaintained by TeleSign for TeleSign’s customers where they can securely loginusing their credentials to access information regarding their TeleSign accountsuch as their billing and recent account activity, and includes any otherdelivery mechanism for the Services provided by TeleSign, including but notlimited to any SDK or API.
“Content Standards” means the contentstandards set out in section 1 of the Acceptable Use Policy.
“Data Processing Addendum” or “DPA”means the addendum located at https://www.telesign.com/DPA in effect upon the Effective Date ofthis Agreement, and as may be updated by TeleSign from time to time in itsdiscretion provided any such updates do not result in the material degradationof the original privacy and security protections as may be required byApplicable Law.
“Effective Date” means the date thatyou accept these Terms of Service by clicking “Get Started” on the accountapplication page (or other mechanism provided), subject to successfulcompletion of identity verification and any other checks carried out byTeleSign in its discretion.
“Fees” means the fees and chargespayable to TeleSign pursuant to this Agreement for the Services, as listed inapplicable Price Plans.
“Free Trial” means Client’s use of theServices for the period of time, number of transactions, amount of credit, orother limitation stated by TeleSign, commencing on the Effective Date.
“Inappropriate Content” means anycontent which (a) is unsolicited, including without limitation, unauthorized“bulk” or “spam” messages; (b) contains or introduces “viruses”, “worms”,“Trojan Horses”, “e-mail bombs”, “cancel bots” or other similar computerprogramming routines; (c) is in any way in breach of Applicable Law orotherwise unlawful; (d) infringes the intellectual property or privacy or otherrights of any person, including without limitation the Intellectual PropertyRights of TeleSign; (e) violates the Content Standards; (f) is misleading ordeceptive; (g) is offensive to public morals, decency or sensibilities; or (h)executes, initiates or causes ”phishing” or social engineering activities.
“Intellectual Property Rights” meansall trade secrets, patents and patent applications, trademarks, services marks,trade names, internet domain names, copyrights (including copyrights incomputer software), moral rights, rights in knowhow and any renewals orextensions of the foregoing, and all other proprietary rights, and all otherequivalent or similar rights which may subsist anywhere in the world, includingany renewals or extensions thereof.
“Licensed Data” means the resultsreturned to Client by or on behalf of TeleSign in response to Client submittingClient Data as part of the Services.
“Personal Information” means anyinformation about an identified individual, or an individual whose identity maybe inferred or determined from the information.
“Price Plan” means the schedule of Feesfor a particular Service located at https://www.telesign.com/pricing, which may be updated from time to time byTeleSign at its discretion.
“Privacy Policy” means TeleSign’sprivacy policy located at https://www.telesign.com/privacy-notice , as may be updated by TeleSign from time totime at its discretion.
“Proprietary Marks” has the meaninggiven in section 2.4.
“SDK” means a software development kitmade available to Client by TeleSign to enable Client to develop applicationsto make use of the Services and is licensed to Client in accordance withTeleSign’s SDK license agreement, which may be either available at https://www.telesign.com/telesign-sdk-license-agreement/ or within the SDK, as applicable, theterms of which may be amended by TeleSign from time to time at its discretion.
“Services” means all products offeredby TeleSign, now or in the future, as described at https://www.telesign.com/services or otherwise provided by TeleSign, andincluding any services delivered or accessed via an SDK or the Client Portal(including but not limited to outbound and inbound SMS messages and telephonecalls to and from Users).
““SPAM Policy” means the SPAM policy setout in section 2 of the Acceptable Use Policy.
“TeleSign”, “we” or “us”means TeleSign Corporation, a California corporation located at 13274 Fiji WaySuite 600, Marina del Rey, CA 90292, and its Affiliates.
Transaction” means each submission of Client Data to the Services by or onbehalf of Client or a Client Affiliate or any User, including but not limitedto any submission of voice or SMS content, or any other request to the ClientPortal for any Service. Any submission of SMS content that requiressplitting into more than one message shall be treated as a separate Transactionfor each SMS sent or received by TeleSign. Any submission of Voicecontent will be charged on a per minute basis. For any Services for which Feesare charged upon verification, the Transaction shall be deemed complete when aresponse confirming verification or failure to verify has been received byTeleSign from the relevant SDK or other delivery mechanism.
“Term” means the term of thisAgreement, as defined in section 2.1 of the Agreement.
“Upgrade” means the process of upgradingthe Client’s account from the Free Trial into a fully functional account byentering valid payment details in the Client Portal.
“User” means any customer, client orother user of Client’s services in respect of whom Client Data is submitted.
“Website Terms & Conditions” meansthe terms and conditions governing use of TeleSign’s website located at https://www.telesign.com/terms-conditions/, as may be updated by TeleSign from time totime at its discretion
2. Scopeof Services & Agreement
2.1 Term. The Agreement shall commence on the Effective Date and continue untilterminated by either Party in accordance with this Agreement (the “Term”).
2.2 Services. Subjectto the terms and conditions of this Agreement, and effective upon the EffectiveDate, TeleSign shall make the Services available to the Client during theTerm. Such Services will be provided via TeleSign’s API, SDK or theClient Portal.
2.3 ServiceLevels. The Services will materially comply with theService definitions set out in this Agreement and any associated documentation,provided that the Services may be affected in the following circumstances:
(a) TeleSign may temporarily suspend or discontinue the Services, with advancenotice if practicable, at any time if:
(i) TeleSign has reasonable cause to suspect that the Services are being used totransmit Inappropriate Content or to commit fraud;
(ii) TeleSign reasonably believes such action is necessary to avoid an imminentmaterial threat of harm to TeleSign, its Affiliates, Clients, Users, or anythird party; or
(iii) the Client Portal or Services require maintenance or repair; and
(b) TeleSign may, upon written notice (including via email), suspend provision ofthe Services if:
(i) any Fees are due and unpaid;
(ii) Client or any Users fail to comply with the Acceptable Use Policy; or
(iii) any agreement between TeleSign and a Carrier on which the Services are reliantis suspended or terminated.
2.4 IntellectualProperty Rights. Except as specifically set forth herein, TeleSignretains all right, title, and interest, including all Intellectual PropertyRights, relating to or embodied in the Services, including without limitationall technology, hardware, software, systems and copies of the foregoingrelating to the Services, including without limitation any upgrades, updates,or modifications thereof or otherwise. Such Intellectual Property Rightsare licensed, not sold, solely for use by Client under the terms of thisAgreement. All graphics, logos, service marks, and trade names,including company names, third party names, product names, and brand namesrelating to products or services of each Party (collectively and respectively,each Party’s “Proprietary Marks”) are the trademarks of such Party.Except as set out in this Agreement, neither Party may alter, add to or removefrom the other Party’s products or services, any of the other Party’sProprietary Marks, copyright notices or other proprietary rights markings, oruse any of the other Party’s Proprietary Marks without the prior writtenpermission of the other Party, which shall be at the exclusive discretion ofthe other Party.
2.5 Additional Features:
(a) For the avoidance of doubt, any AdditionalFeature used by the Client is deemed to form part of the Services. Any insightsor other information provided to Client by TeleSign as part of an AdditionalFeature shall beconsidered to be Licensed Data, as defined in this Agreement.
(b) Client’s use of any Additional Feature andsuch Licensed Data is subject to all terms and conditions set out in thisAgreement, including the Acceptable Use Policy.
(c) Except to the extent expressly statedherein, TeleSign provides no warranty or commitment in relation to anyAdditional Feature, including but not limited to the accuracy, timeliness orquality of any Licensed Data provided as part of such feature.
(d) TeleSign reserves the right at any time toimmediately suspend or cease providing any Additional Feature without notice.
3. WebsiteTerms & Conditions
3.1 Clientshall, and shall ensure that its employees, agents, contractors, affiliates andany Users, comply with TeleSign’s Website Terms & Conditions.
4. FreeTrial for eligible Services
The following terms and conditions apply toClient’s use of eligible Services during the Free Trial:
4.1 FreeTrial. Client may evaluate the Services at no charge up to a maximumof the number of Transactions or credit stated on the Client Portal (“MaximumTransactions”) during the Free Trial. If Client exceeds the number ofMaximum Transactions allowed, TeleSign may invoice Client for such Transactionsin excess of the Maximum Transactions at a fee of $0.10 per Transaction. Any such fees shall be payable within 30 days of the date of invoice. Ifthe Maximum Transactions are reached, TeleSign reserves the right to ceaseproviding Services immediately and without notice.
4.2 Evaluationonly. Client agrees to use the Services solely for its own internalanalysis to evaluate and determine the acceptability of the Services andwhether Client has an interest in obtaining, as appropriate, the Services fromTeleSign for use by Client. Client is prohibited from using the Servicesfor any other purposes whatsoever (including any commercial purpose), until andunless Client Upgrades its account
4.3 Suspension. TeleSign reserves the right to suspend or terminate the Services provided underthis Agreement at any time during the Free Trial in its discretion.
4.4 Terminationof Free Trial. At the termination or expiry of the Free Trial:
(a) Client’s right to use the Services, and TeleSign’s commitment to provide theServices, shall cease unless and until Client Upgrades its account; and
(b) Clientshall upon request by TeleSign destroy or delete (at TeleSign’s discretion),the Confidential Information and all copies thereof and shall provide a writtencertification to TeleSign as to the destruction or deletion of the ConfidentialInformation from their computer systems. Client agrees to hold theprocesses and methodology of the Services in strict confidence and not to disclosesuch processes and methodology to any third party or to use it for any purposeother than as specifically authorized herein. Further, Client agrees thatany results of its evaluation of the Services and/or reports generated therebyshall be considered and treated as TeleSign’s Confidential Information.Client’s obligations under this section shall survive any termination of thisAgreement.
4.5 NoFree Trial. Not all Services shall be eligible to receive the FreeTrial. For such Services, Client shall be required to pay the Fees for theServices, in accordance with the payment terms set out in section 5, uponsigning up for the said Services.
5. AccountUpgrade, Fees & Payment
5.1 AccountUpgrade of Free Trial. At any time during or following expiry of theFree Trial, Client may Upgrade its account. Upon Upgrade, the Free Trialshall immediately cease, and Client shall be required to pay the Fees for theServices, in accordance with the payment terms set out in this section 5. Client hereby irrevocably commits to pay all Fees for the Services uponUpgrading its account.
5.2 Fees. If there is a Fee expressed for any element of the Services in a Price Plan,TeleSign shall charge Client such Fee for each Transaction and/or Service asdescribed in the relevant Price Plan. The Fee stated for the Servicesexcludes all applicable taxes and currency exchange settlements, unless statedotherwise. Client is solely responsible for paying any such taxes or othercharges. TeleSign reserves the right to change the Price Plans, Fees and/orformulae by which the Fees are calculated by notifying Client from time totime. Such notification may be made by updating Price Plans and/or viaemail or other notification on the Client Portal. TeleSign will endeavorto provide at least five (5) days in advance of any such change(s), unless suchchanges result from regulatory requirement or changes imposed by Carriers onless than 5 days’ notice.
5.3 Paymentterms.
(a) USD. All payments by Client hereunder shall be made only in United States Dollars.
(b) Billinginformation & disputes. TeleSign will provide usage and billinginformation on the Client Portal. Client must notify TeleSign of anydispute in relation to Fees within 60 days of the relevant Services beingdelivered, in which case TeleSign and Client will cooperate to investigate andresolve the dispute. Client waives its right to challenge any Fees notdisputed within such time, and TeleSign is hereby released from all liability andclaims of loss resulting from any error not notified within such time.
(c) Paymentmethod. To pay the Fees for any Service, you are required to providea valid payment method at the time you sign up for that Service. You can accessand change your payment method at any time via the Client Portal. Youhereby authorise TeleSign to use any account information regarding yourselected payment method provided or required by your issuing bank. You agree topromptly update your account and other information, including your emailaddress and payment method details.
(d) Paymentinformation. By providing TeleSign with a paymentmethod, (including credit card details) you (i) represent that youare authorized to use the payment method that you provided and that any paymentinformation you provide is true and accurate; and (ii) authorize TeleSignto store such payment method charge Client for the Services usingsuch payment method.
(e) Paymenttiming. Fees may be payable via (a) prepayment; (b) post-payment; or(c) on a recurring basis for subscription Services. Also, we may charge you upto the amount you have approved, and we will notify you in advance of anychange in the amount to be charged for recurring subscription Services. We maybill you at the same time for more than one of your prior billing periods foramounts that haven’t previously been processed.
(f) Prepayment. Unless stated otherwise, Fees shall be payable via prepayment. Clientmust purchase account credit using the payment method given during accountUpgrade (as such details may be amended from time to time). Client agreesto the use and storage of its payment method details (including credit carddetails) for such purpose. Client irrevocably authorizes TeleSign to usesuch account credit to pay for any Services used by Client.
(g) AutomaticTop-up. If you have selected the relevant option via the ClientPortal, when your credit balance reduces to zero or reaches a predeterminedlevel, the account balance may be automatically replenished by an agreedamount. In such case, you authorize TeleSign to take payment for suchreplenishment via the payment method you have chosen. Such authorizationwill remain valid until you notify TeleSign otherwise. TeleSign willnotify you whenever such payment is taken.
(h) Post-payment. In the event Services are provided on a post-payment basis, TeleSign shallissue invoices on a monthly basis, promptly following the end of each month,for the total amount of Fees due for Transactions submitted during that month.The invoice is due and payable thirty (30) calendar days from invoice date.
(i) RecurringPayments. When you purchase the Services on a subscription basis(e.g., monthly, every 3 months or annually (as applicable)), you acknowledgeand agree that you are authorizing recurring payment, and payments shall bemade to TeleSign by the method you have chosen at the recurring intervalschosen by you, until the subscription for that Service is terminated.Subscription fees are generally billed or charged in advance of the applicablesubscription period.
(j) Prepaidto post-paid payment terms. Upon your request, TeleSign may approve yourmove from a prepayment model to a post-payment model for certainServices. Upon such approval, TeleSign may also require that you enterinto a separate Agreement with TeleSign to be executed prior to issuing credentials.
5.4 Latepayment. Client shall be deemed to be in default hereunder if paymentof any undisputed Fees are not received by TeleSign within thirty (30) days ofthe invoice date and, in addition to its other remedies, TeleSign may chargeClient interest at that rate equal to the lesser of one and one half percent(1½ %) per month or the maximum amount permitted by Applicable Law on all sumsthat remain unpaid at the expiration of such period.
5.5 Suspension. TeleSign is entitled to suspend or cancel Client’s account in the eventthat: (a) Client’s account is inactive for 365 days; (b) Client’s accountbalance reduces to zero or a negative balance and is not replenished by Clientimmediately; (c) Client’s chosen payment method ceases to be a valid paymentmethod; or (d) any Fees for post-paid or recurring subscription Services arenot paid by the relevant due date. Suspension or cancellation may resultin Client Data or other content being lost or deleted, and TeleSign shall notbe liable for any such loss or deletion resulting from account suspension orcancellation. If Client’s account balance reduces to zero or a negativebalance, Client may not be able to consume any Services until the accountbalance is replenished to a positive balance.
5.6 Inactiveaccounts. If Client’s account is inactive for 365 days, TeleSignreserves the right at its discretion to (a) refund any remaining credit balanceon Client’s account to Client (less a reasonable administration fee); and/or(b) discontinue Client’s account and delete all data relating thereto; and/or(c) retain any remaining credit balance on Client’s account; and/or (d) remitany remaining credit balance to an appropriate body as required by ApplicableLaw. “Inactive” means Client has not entered into a Transaction to usethe Services, or accessed the Client Portal, during the relevant period. Notwithstanding the above, Client may at any time request to reactivate anycredit that has been retained by TeleSign. In such case, TeleSign shallact reasonably in deciding whether to reactivate any credit.
5.7 Refunds. Unless otherwise provided by Applicable Law, all payment obligations cannot becancelled and are non-refundable. This refund policy does not affect anystatutory rights that may apply. Upon termination of the Agreement forany reason other than TeleSign’s default, TeleSign may deal with any remainingcredit balance on Client’s account as if Client’s account had been inactive for365 days.
6. Client’sobligations
6.1 AcceptableUse Policy. Client shall, and shall ensure that its employees,agents, contractors, affiliates and any Users, abide at all times withTeleSign’s Acceptable Use Policy.
6.2 ContentStandards. TeleSign and its subcontractors may, in their sole discretion,reject sending all or part of any content to any Carriers if in TeleSign’sopinion such content does not comply with the Content Standards. TeleSignshall notify Client within five (5) days of the reasons for suchrejection. TeleSign shall not be liable for any rejection ofcontent. Client is solely responsible for ensuring that all content isaccurate, complete and correct, and shall be solely responsible for all claimsor liability arising from the distribution and publication of Client’s content. TeleSign shall have no obligation to read, proofread or correct any contentsupplied by Client, nor any responsibility for its accuracy, completeness orcorrectness.
6.3 SPAMPolicy. TeleSign may immediately and without notice suspend theServices in whole or in part if TeleSign reasonably suspects the Client’saccount is being used in breach of the SPAM Policy.
6.4 Agents. Client is responsible for all use of the Services by any third partycontractor, agent, partner, intermediary, service provider or platform thatClient uses to receive or make use of the Services or connect to the clientportal or any other TeleSign computer systems or networks (“Agent”) (whetherwith or without Client’s permission), and Client shall indemnify, defend andhold harmless TeleSign, its Affiliates, and their respective officers,directors, agents and employees against all liabilities, costs, expenses,damages and losses suffered or incurred arising out of any act or omission ofsuch Agent.
6.5 Claims. Client must immediately inform TeleSign if any User or third party makes orthreatens to make any claim against Client or a Client Affiliate regarding theServices.
7. Privacy& Data Protection
7.1 PrivacyPolicy. The Parties shall each comply with TeleSign’s Privacy Policy,and Client acknowledges and authorizes TeleSign’s use of data in accordancewith the Privacy Policy, the terms of which may be amended by TeleSign fromtime to time at its discretion.
7.2 DataProtection Laws. The Parties shall each perform its obligations underthis Agreement in compliance with all Applicable Laws relating to theprotection of privacy and data, in the provision and use of the Services as setout in the DPA.
7.3 ClientData. TeleSign shall use Client Data only as described in thisAgreement, the DPA and the Privacy Policy, and otherwise to provide, maintain,and improve the Services. TeleSign shall process and protect Client Datain accordance with the DPA. Client Data, including any PersonalInformation therein, may be stored and processed in the United States or anyother countries in which TeleSign maintains facilities. Client Data mayalso be shared with:
(a) Carriers and other third party service providers for the purpose of deliveringthe Services to Client;
(b) thirdparties in response to government or regulatory requirement; and
(c) thirdparties on an anonymized or aggregated basis, such that Client and Users maynot be directly identified.
Client consents to any such use andprocessing, and appoints TeleSign to conduct such a transfer on Client’s behalfin order to provide the Services.
7.4 Consent. Client shall provide all Users with any disclosure or explanation required byApplicable Laws concerning the Client’s use of the Services, and obtain,maintain and secure any necessary consent and authorizations from Users thatmay be required by Applicable Laws in order to authorize TeleSign’s provisionof the Services, or otherwise ensure a lawful basis for TeleSign’s provision ofthe Services and processing of Client Data, including any Personal Information.
7.5 ThirdParty Data Providers. The Licensed Data may include data obtained bythird parties such as Carriers. Client hereby consents to the disclosureby TeleSign of Client’s (and its Users’) identity to such third parties, forthe limited purpose of ensuring that TeleSign is complying with the terms ofits agreements with such third parties. If any such third party requiresUsers to provide specific consent to enable the provision of the Services,Client shall reasonably cooperate with TeleSign to confirm the sufficiency ofsuch consent.
7.6 Contentfiltering. TeleSign is entitled to (either by its own processing ofClient Data or by the transfer of Client Data to third party service providers)carry out content filtering, review and other procedures for the purpose ofensuring Client Data and the sending thereof complies with Applicable Law,including but not limited to the prevention of the sending of unsolicitedcommunications, or “spam”. For the avoidance of doubt, such procedures donot absolve Client of any obligation to ensure compliance with Applicable Law,nor does TeleSign give any warranty that such procedures will ensure compliancewith Applicable Law.
7.7 Re-useof data. Client acknowledges that as part of providing the Services,TeleSign may assess Client Data for the purpose of calculating the fraud riskof a particular transaction. Client consents to the results of each suchassessment, including any telephone number to which such assessment relates, beingre-used by TeleSign for the purposes of improving the Services and providingfuture fraud identification, prevention and risk assessment.
7.8 TeleSignnews and updates. If you selected the “I would like to receiveTeleSign news and updates” checkbox when signing up for your Free Trial orUpgrading your account, Client hereby consents to receiving TeleSign news,updates and other marketing messages, until such time as Client revokes suchconsent.
8. Confidentiality
8.1 ConfidentialInformation. As used herein, “Confidential Information” meansall confidential and proprietary information of a Party (“Disclosing Party”)disclosed to the other Party (“Receiving Party”) that (a) if disclosedorally is designated as confidential at the time of disclosure, (b) ifdisclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c)reasonably should be understood to be confidential given the nature of theinformation and the circumstances of disclosure, including, the terms andconditions of this Agreement (including pricing and other commercial terms)and/or of provision of the Services, screen shots of the Services, pricing inproposals, business and marketing materials, technology and technicalinformation, product designs, and business processes. Licensed Data shallbe deemed to be TeleSign’s Confidential Information. Notwithstanding theforegoing, each Party may disclose the existence and terms of this Agreement,in confidence on terms no less strict than as set out herein, to a potential purchaserof or successor to any portion of such Party’s business resulting from thereorganization, spin-off, or sale of all or a portion of all of the assets ofany business, division, or group of such Party. Confidential Informationshall not include any information that: (i) is or becomes generally knownto the public without breach of any obligation owed to the Disclosing Party;(ii) was known to the Receiving Party prior to its disclosure by the DisclosingParty without breach of any obligation owed to the Disclosing Party; (iii) wasindependently developed by the Receiving Party without breach of any obligationowed to the Disclosing Party, which can be demonstrated with clear andconvincing evidence; or (iv) is received from a third party without breach ofany obligation owed to the Disclosing Party.
8.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information ofthe Disclosing Party for any purpose outside the scope of this Agreement,except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose suchConfidential Information to those of its employees, contractors and Affiliateswho need to know such information for purposes of performing or receiving theServices and certifies that such employees and contractors have agreed, eitheras a condition of employment or in order to obtain the ConfidentialInformation, to be bound by terms and conditions substantially similar to thosein this Agreement. The Receiving Party shall use the same degree of careto protect the Confidential Information as it uses to protect its owninformation of a confidential and proprietary nature, but in no event shall ituse less than a commercially reasonable degree of care.
8.3 CompelledDisclosure. If the Receiving Party is compelled by Applicable Law todisclose Confidential Information of the Disclosing Party, it shall provide theDisclosing Party with prior notice of such compelled disclosure (to the extentlegally permitted) and reasonable assistance, at Disclosing Party’s cost, ifthe Disclosing Party wishes to contest the disclosure.
9. Warranties,Indemnity, Liability & Termination
9.1 PersonalWarranty. You (the person entering into this Agreement on behalf ofClient) hereby confirm and warrant that: (a) you are authorized to commit theClient to the terms and conditions of this Agreement; and (b) when registeringClient’s account, you will provide true, accurate, up-to-date and completeinformation about the Client, and will keep that information true, accurate,up-to-date and complete for the duration of the Term.
9.2 ClientWarranty. Client warrants and represents that, in the use of theServices, it will: (a) comply with the Acceptable Use Policy; (b) use theServices and the Licensed Data in compliance with all Applicable Laws; and (c)obtain and maintain all necessary licenses, consents and permissions necessaryfor TeleSign to perform its obligations under this Agreement, including theprovision of the Services.
9.3 Disclaimersof Warranty.
(a) Generaldisclaimers: EXCEPT AS PROVIDED FOR HEREIN, THE SERVICES ARE SUBSCRIBEDTO CLIENT “AS IS” AND WITH ALL FAULTS. EXCEPT AS PROVIDED FOR HEREIN,TELESIGN DOES NOT MAKE ANY REPRESENTATION AND/OR WARRANTY OF ANY KINDWHATSOEVER, EITHER EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES, OR THEHARDWARE OR SOFTWARE UTILIZED OR ACCESSED IN CONNECTION WITH THE SERVICES,INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY WARRANTY THAT PROVISION OF THESERVICES WILL BE UNINTERRUPTED OR ERROR FREE. CLIENT ACKNOWLEDGES THAT TELESIGNSECURES INFORMATION FROM THIRD PARTY SOURCES AND NEITHER TELESIGN NOR ANY OFITS THIRD PARTY SOURCES WARRANT THAT THE INFORMATION WILL BE ACCURATE OR ERRORFREE. TELESIGN FURTHER DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET FORTH HEREIN. CLIENT AGREES THAT TELESIGN WILL NOT BE LIABLE FOR ANY CONTENT, INCLUDING BUTNOT LIMITED TO CONTENT THAT IS SENT, RECEIVED, HELD, RELEASED OR OTHERWISECONNECTED IN ANY RESPECT TO THE SERVICES, CONTENT THAT IS SENT BUT NOTRECEIVED, AND CONTENT SENT USING AND/OR INCLUDED IN THE SERVICES (INCLUDINGWITHOUT LIMITATION ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGALCONTENT), OR ANY ACCESS TO OR ALTERATION OF CONTENT. CLIENT ACKNOWLEDGESTHAT TELESIGN’S SERVICES INCLUDE THE USE OF CARRIERS TO DELIVER MESSAGES, ANDTHAT TELESIGN IS NOT RESPONSIBLE FOR THE ULTIMATE DELIVERY OF MESSAGES BY SUCHCARRIERS, AND THAT MESSAGES MAY BE DELAYED OR NOT DELIVERED FOR REASONS OUTSIDETELESIGN’S CONTROL, INCLUDING NETWORK FAILURE OR USER DEVICES BEING UNAVAILABLEFOR MESSAGE DELIVERY.
(b) Nowarranties in service descriptions. FOR THE AVOIDANCE OF DOUBT,UNLESS EXPRESSLY STATED WITHIN THESE TERMS OF SERVICE, TELESIGN GIVES NOWARRANTIES IN RESPECT OF THE FUNCTIONALITY OR AVAILABILITY OF THE SERVICES,EVEN IF SUCH STATEMENTS ARE MADE BY AGENTS OF TELESIGN, OR IN PUBLISHEDDOCUMENTATION ON TELESIGN’S WEBSITE, AND EVEN IF SUCH DOCUMENTATION ISACCESSIBLE VIA LINKS FROM TELESIGN’S WEBSITE OR THIS AGREEMENT. IN THEEVENT OF ANY INCONSISTENCY BETWEEN THESE TERMS OF SERVICE AND ANY SUCHDOCUMENTATION, THESE TERMS OF SERVICE SHALL PREVAIL.
(c) Compliancewith Content Standards. Client is solely responsible for anycompliance with any legislation, rules and regulations as described in theContent Standards. TeleSign does not warrant that the Services willcomply with such legislation, rules and regulations, and excludes all liabilityresulting from any breach thereof caused by non-compliance with the ContentStandards.
(d) Nowarranties relating to beta services: From time to time, TeleSign mayinvite Client to participate in a program to use beta services. Betaservices are not generally available and may contain bugs, errors, defects orharmful elements. Accordingly, TeleSign provides beta services to you “asis.” TeleSign makes no warranties of any kind with respect to betaservices, whether express, implied, statutory or otherwise, including anyimplied warranties of merchantability, fitness for a particular purpose, ornon-infringement. Notwithstanding any published documentation that statesotherwise, TeleSign does not warrant that beta services will be error-free orthat they will meet any specified service level, or will operate without erroror interruption.
9.4 Indemnity. Client shall indemnify, defend and hold harmless TeleSign, its affiliates, andtheir respective officers, directors, agents and employees (the “IndemnifiedParties”) against all liabilities, costs, expenses, damages and losses(including all legal costs, reasonable attorneys’ fees and any damages orsettlement amounts) suffered or incurred by the Indemnified Parties arising outof any claim made by any third party related to or arising from: (i) any actualor alleged infringement or violation of any Intellectual Property Rights of anyperson or entity; and/or (ii) any breach of an express warranty set out in thisAgreement by the Client or any User; and/or (iii) any breach of the AUP byClient or any User; and/or (iv) any act or omission of Client or any User inbreach of any of the terms and conditions set out herein; and/or (v) any act oromission of Client or its Users in relation to Client’s use of the Services orClient Portal, except to the extent that such claim arises as a direct resultof any act or omission of the Indemnified Parties in breach of this Agreement.
9.5 Limitationof Liability. TELESIGN’S AGGREGATE LIABILITY TO CLIENT ARISING FROMOR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGALTHEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE), WILL IN NO EVENT EXCEED THETOTAL OF ALL AMOUNTS PAID BY CLIENT TO TELESIGN FOR THE TWELVE (12) MONTHPERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE LIABILITY AROSE. INNO EVENT SHALL TELESIGN BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, ORCONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST INCOME,LOST PROFITS, PRESENT AND FUTURE, REGARDLESS OF WHETHER SUCH LIABILITY IS BASEDON BREACH OF CONTRACT, BREACH OF WARRANTY (EXPRESS OR IMPLIED), ACTIVE ORPASSIVE NEGLIGENCE, INTENTIONAL OR UNINTENTIONAL TORT, STRICT LIABILITY,VIOLATION OF STATUTE, ORDINANCE OR REGULATION, FAILURE OF CONSIDERATION, OROTHER BASIS, ARISING OUT OF THE PROVISION OF THE SERVICES. DURING THEFREE TRIAL, TELESIGN’S LIABILITY SHALL NOT EXCEED ONE HUNDRED US DOLLARS (USD100.00). THE PROVISIONS OF THIS SECTION 9.5 ALLOCATE THE RISKS UNDER THISAGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONSSET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. Notwithstandingthe foregoing, neither Party excludes or limits liability to the other Partyfor: (i) fraud or fraudulent misrepresentation; (ii) death or personal injurycaused by negligence; (iii) intentional misconduct or gross negligence; and/or(iv) if such exclusion or limitation would be in breach of any Applicable Law.
9.6 Termination.
(a) Without affecting any other right or remedy available to it, either Party mayterminate this Agreement with immediate effect by giving written notice to theother Party if the other Party commits a material breach of any term of thisAgreement which breach is irremediable or (if such breach is remediable) failsto remedy that breach within a period of 15 calendar days after being notifiedin writing to do so;
(b) EitherParty may terminate this Agreement for any or no cause with thirty (30) daysprior written notice.
(c) Thetermination of this Agreement shall not release Client from its obligations andliability to TeleSign with respect to any Fees incurred up to and including thedate of termination (whether or not such Fees have been invoiced). Anysuch amounts shall become immediately due and payable upon termination.
(d) Ontermination of this Agreement for any reason, all licenses granted under thisAgreement shall immediately terminate. Any rights, remedies, obligationsor liabilities of the Parties that have accrued up to the date of termination,including the right to payment of Fees incurred and to claim damages in respectof any breach of the Agreement which existed at or before the date oftermination shall not be affected or prejudiced.
(e) Ontermination of this Agreement for any reason other than default by TeleSign,and except to the extent required by Applicable Law, TeleSign shall have noobligation to refund any prepaid account balance to Client.
10. Miscellaneous
10.1 Force Majeure. Neither Party shall be liable for any delay or failure in performance due toForce Majeure, which shall mean acts of God, earthquake, labor disputes,changes in law, regulation or government policy, riots, war, fire, flood,insurrection, sabotage, embargo, epidemics, acts or omissions of vendors orsuppliers, transportation difficulties, unavailability or interruption or delayin telecommunications or third party Services (including DNS propagation),failure of third party software or hardware or inability to obtain rawmaterials, supplies, or power used in or equipment needed.
10.2 Assignment. Client may not assign this Agreement without the written consent of TeleSignwhich will not be unreasonably withheld. Subject to this restriction,this Agreement shall be binding on Client and TeleSign and each of oursuccessors and assigns.
10.3 Use ofProprietary Marks. Each Party may use the other Party’s Proprietary Markson its website and in promotional materials, solely to refer to the Client’suse of the Services, and only in accordance with any usage guidelines providedby the other Party. All such use will inure to the benefit of the owner of theProprietary Marks. The first Party will not use, register or take any otheraction with respect to the other Party’s Proprietary Marks, except to theextent allowed in advance in writing by the other Party. In using theProprietary Marks, the first Party must always use the then-current ProprietaryMarks and will not add to, delete from or modify any of Proprietary Marks. Thefirst Party shall not, at any time, present itself as an Affiliate, partner orother legal agent of the other Party. The limited license to use ProprietaryMarks under this section will cease automatically on termination of theAgreement.
10.4 Waiver andAmendments. Except as expressly stated herein, No waiver, amendment,or modification of any provision of this Agreement shall be effective unlessagreed to by both parties in writing. No failure or delay by either Party inexercising any rights, power, or remedy under this Agreement shall operate as awaiver of any such right, power, or remedy. NOTWITHSTANDING THE PREVIOUS SENTENCE,TELESIGN SHALL BE ENTITLED TO AMEND ANY TERMS OF THIS AGREEMENT ON THE GIVINGOF NOT LESS THAN FIVE (5) DAYS’ NOTICE TO CLIENT, SUCH NOTICE TO BE MADE VIAEMAIL OR ON THE CLIENT PORTAL. IF CLIENT CONTINUES TO USE THE SERVICESBEYOND SUCH NOTICE PERIOD, CLIENT SHALL BE DEEMED TO HAVE ACCEPTED SUCHAMENDMENT. IF CLIENT DOES NOT AGREE TO SUCH AMENDMENT, IT SHALL BEENTITLED TO TERMINATE THE AGREEMENT BY GIVING 30 DAYS’ WRITTEN NOTICE TOTELESIGN AT ANY TIME DURING SUCH NOTICE PERIOD.
10.5 Severability. Should any term of this Agreement be finally determined by a court of competentjurisdiction to be invalid, unenforceable or otherwise contrary to law orequity, the parties agree that such provision shall be construed, limited,modified or, if necessary, severed, to the extent necessary to eliminate itsinvalidity or unenforceability, and that the other provisions of this Agreementshall remain unaffected. If any part of this Agreement is determined to beinvalid or unenforceable pursuant to Applicable Law then the invalid orunenforceable provision will be deemed superseded by a valid, enforceableprovision that most closely matches the intent of the original provision andthe remainder of this Agreement shall continue in effect.
10.6 Third PartyBeneficiaries. Except as expressly provided for herein, theprovisions of this Agreement are solely for the benefit of the parties heretoand not for the benefit of any third parties.
10.7 Governing Law;Forum. The laws of the State of California shall exclusively governthis Agreement, without regard to any contrary conflicts of lawsprinciples. In event of a dispute arising under this Agreement, eachParty will make reasonable, good-faith efforts to resolve such disputeinformally. The parties agree to waive jury trial as to any claim,controversy or dispute arising under or related to this Agreement. All legaldisputes arising from this Agreement shall be resolved in the Federal and/orState Courts of the County of Los Angeles, California.
10.8 Headings;Attachments. Headings used in this Agreement are providedfor convenience only and shall not be used to construe meaning or intent. The exhibits and attachments attached hereto are incorporated and made a partof this Agreement by this reference.
10.9 IndependentContractor. Each Party is an independent contractor as to each otherand no agency, partnership, joint venture or any legal relationship other thanthat of independent contractor is established by thisAgreement.7.4 This Agreement constitutes the entire agreement between the Parties withrespect to the subject matter hereof and supersedes any and all written or oralprior agreements and understandings between the Parties. The Partieshereby agree to the execution of this Agreement remotely, by way of Clientaccepting these terms and conditions online.
10.10 No impact on otherremedies. Except as otherwise expressly provided in this Agreement,each Party’s remedies herein are in addition to any and all rights and remediesavailable to such Party at law or in equity.
10.11 Export Restrictions. Client acknowledges that the laws and regulations of the United Statesrestrict the export and re-export of commodities and technical data of UnitedStates origin, including the Services. Without limiting the foregoing, Clientacknowledges that the Services are or may be subject to controls under theExport Administration Regulations promulgated by the U.S. Department ofCommerce. Client agrees not to export or re-export the Services in any form inviolation of the export laws of the United States or any foreign jurisdiction.Client represents and warrants that it is not listed on any U.S. governmentexclusion list, and will immediately cease use of TeleSign’s Services and SDKupon being placed on any such list.
10.12 Notices. Noticesshall be in writing and shall be personally delivered, delivered via courier orvia certified mail, or by email to the other Party at such address as may fromtime to time be designated by a Party. Notices shall be deemed effective uponreceipt, or if delivery is not effected by reason of some fault of theaddressee, when tendered. Notices to TeleSign must include a copy sentto legal@telesign.com.
10.13 Survival. Sections 2.4, 3, 4.4, 5, 6, 7, 8, 9, 10.3 and 10.5-10.14 shall survive thetermination of this Agreement.
10.14 Agreement Terms andPriority. This Agreement shall consist of these Terms of Service andall other policies, exhibits, attachments, addenda and amendments hereto. If there is an inconsistency between any of the provisions in those documents,the provisions in the Terms of Service shall prevail over the policy, exhibit,attachment or addendum.
