Telesign terms of service 5-23-18

‍May 23, 2018

Changes from previous version:

Terms added relating to Privacy Provisions and DPA.

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This Agreement is executed as of the Effective Date 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. ONCE YOU CLICK “GET STARTED”, THIS AGREEMENT BECOMES A BINDING LEGAL COMMITMENT BETWEEN YOU, THE CLIENT AND TELESIGN. IF YOU DO NOT WANT THE CLIENT TO BE BOUND BY THIS AGREEMENT, DO NOT CLICK THE “GET STARTED” BUTTON AND DO NOT USE TELESIGN’S SERVICES.

PLEASE NOTE – TELESIGN DOES NOT PROVIDE WARRANTIES IN RESPECT OF THE SERVICES, THIS AGREEMENT LIMITS TELESIGN’S LIABILITY, AND TELESIGN HAS THE RIGHT TO AMEND BOTH THESE TERMS OF SERVICE AND THE 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, the following terms shall have the meaning set out in this section 1 when used in this Agreement:

“Acceptable Use Policy” or “AUP” means the Client’s and Users’ obligations regarding use of the Services and Licensed Data as set out in https://www.telesign.com/acceptable-use-policy, as may be updated by TeleSign from time to time at its discretion.

“Additional Feature” means any product feature which is not defined within the description of the Services, but which is introduced or made available to Client by TeleSign (including but not limited to the URL shortener and SMS Retriever features), regardless of whether TeleSign charges for such feature.

“Affiliate” means a company, person or entity that is owned or controlled by, that owns or controls or is under common ownership or control with a Party.  Ownership shall mean direct or indirect ownership of more than 50% of the shares in a company or entity, and control shall mean any power to appoint persons to the board of directors of a company or entity.

“Agreement” means the terms and conditions set out in these Terms of Service, as such terms may be amended by TeleSign from time to time as described herein, including TeleSign’s AUP, DPA, Privacy Policy, and any schedules, annexes, policies and service descriptions linked hereto.

“API” means application programming interface made available to Client by TeleSign that allows Client to create applications 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 a relevant court of law or decision of a tribunal or competent authority, to the extent any of the foregoing applies to a Party’s performance of obligations under this Agreement in the relevant jurisdiction.

“Carrier” means any telecommunications service provider that may provide services used in the delivery of the Services, including SMS and voice interconnect and transit providers, data center operators, and fixed and mobile operators.

“Client”, “you” or “your” means the company entered into the Company Name field on the account application page of TeleSign’s website when signing up to use the Services, as well as the person that completes the account application (where applicable).

“Client Data” means any information transmitted by or on behalf of Client or a Client Affiliate during the execution of an electronic request to the Services.

“Client Portal” means a web portal maintained by TeleSign for TeleSign’s customers where they can securely login using their credentials to access information regarding their TeleSign account such as their billing and recent account activity, and includes any other delivery mechanism for the Services provided by TeleSign, including but not limited to any SDK or API.

“Content Standards” means the content standards 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 of this Agreement, and as may be updated by TeleSign from time to time in its discretion provided any such updates do not result in the material degradation of the original privacy and security protections as may be required by Applicable Law.

“Effective Date” means the date that you accept these Terms of Service by clicking “Get Started” on the account application page (or other mechanism provided), subject to successful completion of identity verification and any other checks carried out by TeleSign in its discretion.

“Fees” means the fees and charges payable to TeleSign pursuant to this Agreement for the Services, as listed in applicable Price Plans.

“Free Trial” means Client’s use of the Services for the period of time, number of transactions, amount of credit, or other limitation stated by TeleSign, commencing on the Effective Date.

“Inappropriate Content” means any content 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 computer programming routines; (c) is in any way in breach of Applicable Law or otherwise unlawful; (d) infringes the intellectual property or privacy or other rights of any person, including without limitation the Intellectual Property Rights of TeleSign; (e) violates the Content Standards; (f) is misleading or deceptive; (g) is offensive to public morals, decency or sensibilities; or (h) executes, initiates or causes ”phishing” or social engineering activities.

“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks, services marks, trade names, internet domain names, copyrights (including copyrights in computer software), moral rights, rights in knowhow and any renewals or extensions of the foregoing, and all other proprietary rights, and all other equivalent or similar rights which may subsist anywhere in the world, including any renewals or extensions thereof.  

“Licensed Data” means the results returned to Client by or on behalf of TeleSign in response to Client submitting Client Data as part of the Services.

“Personal Information” means any information about an identified individual, or an individual whose identity may be inferred or determined from the information.

“Price Plan” means the schedule of Fees for a particular Service located at https://www.telesign.com/pricing/sms-and-voice, which may be updated from time to time by TeleSign at its discretion.

“Privacy Policy” means TeleSign’s privacy policy located at https://www.telesign.com/privacy-notice, as may be updated by TeleSign from time to time at its discretion.

“Proprietary Marks” has the meaning given in section 2.4.

“SDK” means a software development kit made available to Client by TeleSign to enable Client to develop applications to make use of the Services.

“Services” means all products offered by TeleSign, now or in the future, as described at https://www.telesign.com/services or otherwise provided by TeleSign, and including any services delivered or accessed via an SDK or the Client Portal (including but not limited to outbound and inbound SMS messages and telephone calls to and from Users).

“SPAM Policy” means the SPAM policy set out in section 2 of the Acceptable Use Policy.

“TeleSign”, “we” or “us” means TeleSign Corporation, a California corporation located at 13274 Fiji Way Suite 600, Marina del Rey, CA  90292, and its Affiliates.

Transaction” means each submission of Client Data to the Services by or on behalf of Client or a Client Affiliate or any User, including but not limited to any submission of voice or SMS content, or any other request to the Client Portal for any Service.  Any submission of SMS content that requires splitting into more than one message shall be treated as a separate Transaction for each SMS sent or received by TeleSign.  Any submission of Voice content will be charged on a per minute basis. For any Services for which Fees are charged upon verification, the Transaction shall be deemed complete when a response confirming verification or failure to verify has been received by TeleSign from the relevant SDK or other delivery mechanism.

“Term” means the term of this Agreement, as defined in section 2.1 of the Agreement.

“Upgrade” means the process of upgrading the Client’s account from the Free Trial into a fully functional account by entering valid payment details in the Client Portal.

“User” means any customer, client or other user of Client’s services in respect of whom Client Data is submitted.

“Website Terms & Conditions” means the 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 to time at its discretion

2. Scope of Services & Agreement

2.1      Term.  The Agreement shall commence on the Effective Date and continue until terminated by either Party in accordance with this Agreement (the “Term”).

2.2      Services.  Subject to the terms and conditions of this Agreement, and effective upon the Effective Date, TeleSign shall make the Services available to the Client during the Term.  Such Services will be provided via TeleSign’s API, SDK or the Client Portal.

2.3      Service Levels.  The Services will materially comply with the Service 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 advance notice if practicable, at any time if:

(i)           TeleSign has reasonable cause to suspect that the Services are being used to transmit Inappropriate Content or to commit fraud;

(ii)          TeleSign reasonably believes such action is necessary to avoid an imminent material threat of harm to TeleSign, its Affiliates, Clients, Users, or any third party; or

(iii)         the Client Portal or Services require maintenance or repair; and

(b)       TeleSign may, upon written notice (including via email), suspend provision of the 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 reliant is suspended or terminated.

2.4      Intellectual Property Rights.  Except as specifically set forth herein, TeleSign retains all right, title, and interest, including all Intellectual Property Rights, relating to or embodied in the Services, including without limitation all technology, hardware, software, systems and copies of the foregoing relating to the Services, including without limitation any upgrades, updates, or modifications thereof or otherwise.  Such Intellectual Property Rights are licensed, not sold, solely for use by Client under the terms of this Agreement.   All graphics, logos, service marks, and trade names, including company names, third party names, product names, and brand names relating 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 remove from the other Party’s products or services, any of the other Party’s Proprietary Marks, copyright notices or other proprietary rights markings, or use any of the other Party’s Proprietary Marks without the prior written permission of the other Party, which shall be at the exclusive discretion of the other Party.   Any SDK made available to Client is licensed to Client in accordance with TeleSign’s SDK license agreement, which is available at https://www.telesign.com/telesign-sdk-license-agreement,  the terms of which may be amended by TeleSign from time to time at its discretion.

2.5      Additional Features:

(a) For the avoidance of doubt, any Additional Feature used by the Client is deemed to form part of the Services. Any insights or other information provided to Client by TeleSign as part of an Additional Feature shall                 be considered to be Licensed Data, as defined in this Agreement.

(b) Client’s use of any Additional Feature and such Licensed Data is subject to all terms and conditions set out in this Agreement, including the Acceptable Use Policy.

(c) Except to the extent expressly stated herein, TeleSign provides no warranty or commitment in relation to any Additional Feature, including but not limited to the accuracy, timeliness or quality of any Licensed Data               provided as part of such feature.

(d) TeleSign reserves the right at any time to immediately suspend or cease providing any Additional Feature without notice.

3. Website Terms & Conditions

3.1      Client shall, and shall ensure that its employees, agents, contractors, affiliates and any Users, comply with TeleSign’s Website Terms & Conditions.

4. Free Trial for eligible Services

The following terms and conditions apply to Client’s use of eligible Services during the Free Trial:

4.1      Free Trial.  Client may evaluate the Services at no charge up to a maximum of the number of Transactions or credit stated on the Client Portal  (“Maximum Transactions”) during the Free Trial. If Client exceeds the number of Maximum Transactions allowed, TeleSign may invoice Client for such Transactions in 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.  If the Maximum Transactions are reached, TeleSign reserves the right to cease providing Services immediately and without notice.

4.2      Evaluation only.  Client agrees to use the Services solely for its own internal analysis to evaluate and determine the acceptability of the Services and whether Client has an interest in obtaining, as appropriate, the Services from TeleSign for use by Client.  Client is prohibited from using the Services for any other purposes whatsoever (including any commercial purpose), until and unless Client Upgrades its account

4.3      Suspension.  TeleSign reserves the right to suspend or terminate the Services provided under this Agreement at any time during the Free Trial in its discretion.

4.4      Termination of 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 the Services, shall cease unless and until Client Upgrades its account; and

(b)       Client shall upon request by TeleSign destroy or delete (at TeleSign’s discretion), the Confidential Information and all copies thereof and shall provide a written certification to TeleSign as to the destruction or deletion of the Confidential Information from their computer systems.  Client agrees to hold the processes and methodology of the Services in strict confidence and not to disclose such processes and methodology to any third party or to use it for any purpose other than as specifically authorized herein.  Further, Client agrees that any results of its evaluation of the Services and/or reports generated thereby shall be considered and treated as TeleSign’s Confidential Information. Client’s obligations under this section shall survive any termination of this Agreement.

4.5      No Free Trial. Not all Services shall be eligible to receive the Free Trial. For such Services, Client shall be required to pay the Fees for the Services, in accordance with the payment terms set out in section 5, upon signing up for the said Services.

5. Account Upgrade, Fees & Payment

5.1      Account Upgrade of Free Trial.  At any time during or following expiry of the Free Trial, Client may Upgrade its account.  Upon Upgrade, the Free Trial shall immediately cease, and Client shall be required to pay the Fees for the Services, in accordance with the payment terms set out in this section 5.  Client hereby irrevocably commits to pay all Fees for the Services upon Upgrading 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 as described in the relevant Price Plan.  The Fee stated for the Services excludes all applicable taxes and currency exchange settlements, unless stated otherwise. Client is solely responsible for paying any such taxes or other charges. TeleSign reserves the right to change the Price Plans, Fees and/or formulae by which the Fees are calculated by notifying Client from time to time.  Such notification may be made by updating Price Plans and/or via email or other notification on the Client Portal.  TeleSign will endeavor to provide at least five (5) days in advance of any such change(s), unless such changes result from regulatory requirement or changes imposed by Carriers on less than 5 days’ notice.

5.3      Payment terms.

(a)       USD.  All payments by Client hereunder shall be made only in United States Dollars.

(b)       Billing information & disputes.  TeleSign will provide usage and billing information on the Client Portal.  Client must notify TeleSign of any dispute in relation to Fees within 60 days of the relevant Services being delivered, in which case TeleSign and Client will cooperate to investigate and resolve the dispute.  Client waives its right to challenge any Fees not disputed within such time, and TeleSign is hereby released from all liability and claims of loss resulting from any error not notified within such time.

(c)       Payment method.  To pay the Fees for any Service, you are required to provide a valid payment method at the time you sign up for that Service. You can access and change your payment method at any time via the Client Portal.  You hereby authorise TeleSign to use any account information regarding your selected payment method provided or required by your issuing bank. You agree to promptly update your account and other information, including your email address and payment method details.

(d)       Payment information.   By providing TeleSign with a payment method, (including credit card details) you (i) represent that you are authorized to use the payment method that you provided and that any payment information you provide is true and accurate; and (ii) authorize TeleSign to store such payment method charge Client for the Services using such payment method.

(e)       Payment timing.  Fees may be payable via (a) prepayment; (b) post-payment; or (c) on a recurring basis for subscription Services. Also, we may charge you up to the amount you have approved, and we will notify you in advance of any change in the amount to be charged for recurring subscription Services. We may bill you at the same time for more than one of your prior billing periods for amounts that haven’t previously been processed.

(f)        Prepayment.  Unless stated otherwise, Fees shall be payable via prepayment.  Client must purchase account credit using the payment method given during account Upgrade (as such details may be amended from time to time).  Client agrees to the use and storage of its payment method details (including credit card details) for such purpose.  Client irrevocably authorizes TeleSign to use such account credit to pay for any Services used by Client.

(g)       Automatic Top-up.  If you have selected the relevant option via the Client Portal, when your credit balance reduces to zero or reaches a predetermined level, the account balance may be automatically replenished by an agreed amount.  In such case, you authorize TeleSign to take payment for such replenishment via the payment method you have chosen.  Such authorization will remain valid until you notify TeleSign otherwise.  TeleSign will notify you whenever such payment is taken.

(h)       Post-payment.  In the event Services are provided on a post-payment basis, TeleSign shall issue 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)        Recurring Payments.  When you purchase the Services on a subscription basis (e.g., monthly, every 3 months or annually (as applicable)), you acknowledge and agree that you are authorizing recurring payment, and payments shall be made to TeleSign by the method you have chosen at the recurring intervals chosen by you, until the subscription for that Service is terminated. Subscription fees are generally billed or charged in advance of the applicable subscription period.

(j)        Prepaid to post-paid payment terms. Upon your request, TeleSign may approve your move from a prepayment model to a post-payment model for certain Services.  Upon such approval, TeleSign may also require that you enter into a separate Agreement with TeleSign to be executed prior to issuing credentials.

5.4      Late payment.  Client shall be deemed to be in default hereunder if payment of any undisputed Fees are not received by TeleSign within thirty (30) days of the invoice date and, in addition to its other remedies, TeleSign may charge Client 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 sums that remain unpaid at the expiration of such period.

5.5      Suspension.  TeleSign is entitled to suspend or cancel Client’s account in the event that:  (a) Client’s account is inactive for 365 days; (b) Client’s account balance reduces to zero or a negative balance and is not replenished by Client immediately; (c) Client’s chosen payment method ceases to be a valid payment method; or (d) any Fees for post-paid or recurring subscription Services are not paid by the relevant due date.  Suspension or cancellation may result in Client Data or other content being lost or deleted, and TeleSign shall not be liable for any such loss or deletion resulting from account suspension or cancellation.  If Client’s account balance reduces to zero or a negative balance, Client may not be able to consume any Services until the account balance is replenished to a positive balance.

5.6      Inactive accounts.  If Client’s account is inactive for 365 days, TeleSign reserves the right at its discretion to (a) refund any remaining credit balance on 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) remit any remaining credit balance to an appropriate body as required by Applicable Law.  “Inactive” means Client has not entered into a Transaction to use the Services, or accessed the Client Portal, during the relevant period.  Notwithstanding the above, Client may at any time request to reactivate any credit that has been retained by TeleSign.  In such case, TeleSign shall act reasonably in deciding whether to reactivate any credit.

5.7      Refunds.  Unless otherwise provided by Applicable Law, all payment obligations cannot be cancelled and are non-refundable. This refund policy does not affect any statutory rights that may apply.  Upon termination of the Agreement for any reason other than TeleSign’s default, TeleSign may deal with any remaining credit balance on Client’s account as if Client’s account had been inactive for 365 days.

6. Client’s obligations

6.1      Acceptable Use Policy.  Client shall, and shall ensure that its employees, agents, contractors, affiliates and any Users, abide at all times with TeleSign’s Acceptable Use Policy.

6.2      Content Standards.  TeleSign and its subcontractors may, in their sole discretion, reject sending all or part of any content to any Carriers if in TeleSign’s opinion such content does not comply with the Content Standards.  TeleSign shall notify Client within five (5) days of the reasons for such rejection.  TeleSign shall not be liable for any rejection of content.  Client is solely responsible for ensuring that all content is accurate, complete and correct, and shall be solely responsible for all claims or liability arising from the distribution and publication of Client’s content.  TeleSign shall have no obligation to read, proofread or correct any content supplied by Client, nor any responsibility for its accuracy, completeness or correctness.

6.3      SPAM Policy.  TeleSign may immediately and without notice suspend the Services in whole or in part if TeleSign reasonably suspects the Client’s account is being used in breach of the SPAM Policy.

6.4      Agents.  Client is responsible for all use of the Services by any third party contractor, agent, partner, intermediary, service provider or platform that Client uses to receive or make use of the Services or connect to the client portal or any other TeleSign computer systems or networks (“Agent”) (whether with or without Client’s permission), and Client shall indemnify, defend and hold 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 of such Agent.

6.5      Claims.  Client must immediately inform TeleSign if any User or third party makes or threatens to make any claim against Client or a Client Affiliate regarding the Services.

7. Privacy & Data Protection

7.1      Privacy Policy.  The Parties shall each comply with TeleSign’s Privacy Policy, and Client acknowledges and authorizes TeleSign’s use of data in accordance with the Privacy Policy, the terms of which may be amended by TeleSign from time to time at its discretion.

7.2      Data Protection Laws.  The Parties shall each perform its obligations under this Agreement in compliance with all Applicable Laws relating to the protection of privacy and data, in the provision and use of the Services as set out in the DPA.

7.3      Client Data.  TeleSign shall use Client Data only as described in this Agreement, the DPA and the Privacy Policy, and otherwise to provide, maintain, and improve the Services.  TeleSign shall process and protect Client Data in accordance with the DPA.  Client Data, including any Personal Information therein, may be stored and processed in the United States or any other countries in which TeleSign maintains facilities.  Client Data may also be shared with:

(a)       Carriers and other third party service providers for the purpose of delivering the Services to Client;

(b)       third parties in response to government or regulatory requirement; and

(c)       third parties on an anonymized or aggregated basis, such that Client and Users may not be directly identified.

Client consents to any such use and processing, and appoints TeleSign to conduct such a transfer on Client’s behalf in order to provide the Services.

7.4      Consent.  Client shall provide all Users with any disclosure or explanation required by Applicable Laws concerning the Client’s use of the Services, and obtain, maintain and secure any necessary consent and authorizations from Users that may be required by Applicable Laws in order to authorize TeleSign’s provision of the Services, or otherwise ensure a lawful basis for TeleSign’s provision of the Services and processing of Client Data, including any Personal Information.

7.5      Third Party Data Providers.  The Licensed Data may include data obtained by third parties such as Carriers.  Client hereby consents to the disclosure by TeleSign of Client’s (and its Users’) identity to such third parties, for the limited purpose of ensuring that TeleSign is complying with the terms of its agreements with such third parties.  If any such third party requires Users to provide specific consent to enable the provision of the Services, Client shall reasonably cooperate with TeleSign to confirm the sufficiency of such consent.

7.6      Content filtering.  TeleSign is entitled to (either by its own processing of Client Data or by the transfer of Client Data to third party service providers) carry out content filtering, review and other procedures for the purpose of ensuring Client Data and the sending thereof complies with Applicable Law, including but not limited to the prevention of the sending of unsolicited communications, or “spam”.  For the avoidance of doubt, such procedures do not absolve Client of any obligation to ensure compliance with Applicable Law, nor does TeleSign give any warranty that such procedures will ensure compliance with Applicable Law.

7.7      Re-use of data.  Client acknowledges that as part of providing the Services, TeleSign may assess Client Data for the purpose of calculating the fraud risk of a particular transaction.  Client consents to the results of each such assessment, including any telephone number to which such assessment relates, being re-used by TeleSign for the purposes of improving the Services and providing future fraud identification, prevention and risk assessment.

7.8      TeleSign news and updates.  If you selected the “I would like to receive TeleSign news and updates” checkbox when signing up for your Free Trial or Upgrading your account, Client hereby consents to receiving TeleSign news, updates and other marketing messages, until such time as Client revokes such consent.

8. Confidentiality

8.1      Confidential Information.  As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, the terms and conditions of this Agreement (including pricing and other commercial terms) and/or of provision of the Services, screen shots of the Services, pricing in proposals, business and marketing materials, technology and technical information, product designs, and business processes.  Licensed Data shall be deemed to be TeleSign’s Confidential Information.  Notwithstanding the foregoing, 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 purchaser of or successor to any portion of such Party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such Party.  Confidential Information shall not include any information that:  (i) is or becomes generally known to 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 Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party, which can be demonstrated with clear and convincing evidence; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

8.2      Confidentiality.  The Receiving Party shall not disclose or use any Confidential Information of the 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 such Confidential Information to those of its employees, contractors and Affiliates who need to know such information for purposes of performing or receiving the Services and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement.  The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a commercially reasonable degree of care.

8.3      Compelled Disclosure.  If the Receiving Party is compelled by Applicable Law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

9. Warranties, Indemnity, Liability & Termination

9.1      Personal Warranty.  You (the person entering into this Agreement on behalf of Client) hereby confirm and warrant that: (a) you are authorized to commit the Client to the terms and conditions of this Agreement; and (b) when registering Client’s account, you will provide true, accurate, up-to-date and complete information about the Client, and will keep that information true, accurate, up-to-date and complete for the duration of the Term.

9.2      Client Warranty.  Client warrants and represents that, in the use of the Services, it will: (a) comply with the Acceptable Use Policy; (b) use the Services and the Licensed Data in compliance with all Applicable Laws; and (c) obtain and maintain all necessary licenses, consents and permissions necessary for TeleSign to perform its obligations under this Agreement, including the provision of the Services.

9.3      Disclaimers of Warranty.

(a)       General disclaimers:  EXCEPT AS PROVIDED FOR HEREIN, THE SERVICES ARE SUBSCRIBED TO CLIENT “AS IS” AND WITH ALL FAULTS.  EXCEPT AS PROVIDED FOR HEREIN, TELESIGN DOES NOT MAKE ANY REPRESENTATION AND/OR WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES, OR THE HARDWARE 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 THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. CLIENT ACKNOWLEDGES THAT TELESIGN SECURES INFORMATION FROM THIRD PARTY SOURCES AND NEITHER TELESIGN NOR ANY OF ITS THIRD PARTY SOURCES WARRANT THAT THE INFORMATION WILL BE ACCURATE OR ERROR FREE.  TELESIGN FURTHER DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET FORTH HEREIN.  CLIENT AGREES THAT TELESIGN WILL NOT BE LIABLE FOR ANY CONTENT, INCLUDING BUT NOT LIMITED TO CONTENT THAT IS SENT, RECEIVED, HELD, RELEASED OR OTHERWISE CONNECTED IN ANY RESPECT TO THE SERVICES, CONTENT THAT IS SENT BUT NOT RECEIVED, AND CONTENT SENT USING AND/OR INCLUDED IN THE SERVICES (INCLUDING WITHOUT LIMITATION ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT), OR ANY ACCESS TO OR ALTERATION OF CONTENT.  CLIENT ACKNOWLEDGES THAT TELESIGN’S SERVICES INCLUDE THE USE OF CARRIERS TO DELIVER MESSAGES, AND THAT TELESIGN IS NOT RESPONSIBLE FOR THE ULTIMATE DELIVERY OF MESSAGES BY SUCH CARRIERS, AND THAT MESSAGES MAY BE DELAYED OR NOT DELIVERED FOR REASONS OUTSIDE TELESIGN’S CONTROL, INCLUDING NETWORK FAILURE OR USER DEVICES BEING UNAVAILABLE FOR MESSAGE DELIVERY.

(b)       No warranties in service descriptions.  FOR THE AVOIDANCE OF DOUBT, UNLESS EXPRESSLY STATED WITHIN THESE TERMS OF SERVICE, TELESIGN GIVES NO WARRANTIES IN RESPECT OF THE FUNCTIONALITY OR AVAILABILITY OF THE SERVICES, EVEN IF SUCH STATEMENTS ARE MADE BY AGENTS OF TELESIGN, OR IN PUBLISHED DOCUMENTATION ON TELESIGN’S WEBSITE, AND EVEN IF SUCH DOCUMENTATION IS ACCESSIBLE VIA LINKS FROM TELESIGN’S WEBSITE OR THIS AGREEMENT.  IN THE EVENT OF ANY INCONSISTENCY BETWEEN THESE TERMS OF SERVICE AND ANY SUCH DOCUMENTATION, THESE TERMS OF SERVICE SHALL PREVAIL.

(c)       Compliance with Content Standards.  Client is solely responsible for any compliance with any legislation, rules and regulations as described in the Content Standards.  TeleSign does not warrant that the Services will comply with such legislation, rules and regulations, and excludes all liability resulting from any breach thereof caused by non-compliance with the Content Standards.

(d)       No warranties relating to beta services:  From time to time, TeleSign may invite Client to participate in a program to use beta services.  Beta services are not generally available and may contain bugs, errors, defects or harmful elements.  Accordingly, TeleSign provides beta services to you “as is.”  TeleSign makes no warranties of any kind with respect to beta services, whether express, implied, statutory or otherwise, including any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Notwithstanding any published documentation that states otherwise, TeleSign does not warrant that beta services will be error-free or that they will meet any specified service level, or will operate without error or interruption.

9.4      Indemnity.  Client shall indemnify, defend and hold harmless TeleSign, its affiliates, and their respective officers, directors, agents and employees (the “Indemnified Parties”) against all liabilities, costs, expenses, damages and losses (including all legal costs, reasonable attorneys’ fees and any damages or settlement amounts) suffered or incurred by the Indemnified Parties arising out of any claim made by any third party related to or arising from: (i) any actual or alleged infringement or violation of any Intellectual Property Rights of any person or entity; and/or (ii) any breach of an express warranty set out in this Agreement by the Client or any User; and/or (iii) any breach of the AUP by Client or any User; and/or (iv) any act or omission of Client or any User in breach of any of the terms and conditions set out herein; and/or (v) any act or omission of Client or its Users in relation to Client’s use of the Services or Client Portal, except to the extent that such claim arises as a direct result of any act or omission of the Indemnified Parties in breach of this Agreement.

9.5      Limitation of Liability.  TELESIGN’S AGGREGATE LIABILITY TO CLIENT ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE), WILL IN NO EVENT EXCEED THE TOTAL OF ALL AMOUNTS PAID BY CLIENT TO TELESIGN FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE LIABILITY AROSE.  IN NO EVENT SHALL TELESIGN BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST INCOME, LOST PROFITS, PRESENT AND FUTURE, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY (EXPRESS OR IMPLIED), ACTIVE OR PASSIVE NEGLIGENCE, INTENTIONAL OR UNINTENTIONAL TORT, STRICT LIABILITY, VIOLATION OF STATUTE, ORDINANCE OR REGULATION, FAILURE OF CONSIDERATION, OR OTHER BASIS, ARISING OUT OF THE PROVISION OF THE SERVICES.  DURING THE FREE TRIAL, TELESIGN’S LIABILITY SHALL NOT EXCEED ONE HUNDRED US DOLLARS (USD 100.00).  THE PROVISIONS OF THIS SECTION 9.5 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.  Notwithstanding the foregoing, neither Party excludes or limits liability to the other Party for: (i) fraud or fraudulent misrepresentation; (ii) death or personal injury caused 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 may terminate this Agreement with immediate effect by giving written notice to the other Party if the other Party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 15 calendar days after being notified in writing to do so;

(b)       Either Party may terminate this Agreement for any or no cause with thirty (30) days prior written notice.

(c)       The termination of this Agreement shall not release Client from its obligations and liability to TeleSign with respect to any Fees incurred up to and including the date of termination (whether or not such Fees have been invoiced).  Any such amounts shall become immediately due and payable upon termination.

(d)       On termination of this Agreement for any reason, all licenses granted under this Agreement shall immediately terminate.  Any rights, remedies, obligations or 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 respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

(e)       On termination of this Agreement for any reason other than default by TeleSign, and except to the extent required by Applicable Law, TeleSign shall have no obligation 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 to Force 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 or suppliers, transportation difficulties, unavailability or interruption or delay in telecommunications or third party Services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed.

10.2    Assignment.  Client may not assign this Agreement without the written consent of TeleSign which will not be unreasonably withheld.  Subject to this restriction, this Agreement shall be binding on Client and TeleSign and each of our successors and assigns.

10.3    Use of Proprietary Marks. Each Party may use the other Party’s Proprietary Marks on its website and in promotional materials, solely to refer to the Client’s use of the Services, and only in accordance with any usage guidelines provided by the other Party. All such use will inure to the benefit of the owner of the Proprietary Marks. The first Party will not use, register or take any other action with respect to the other Party’s Proprietary Marks, except to the extent allowed in advance in writing by the other Party. In using the Proprietary Marks, the first Party must always use the then-current Proprietary Marks and will not add to, delete from or modify any of Proprietary Marks. The first Party shall not, at any time, present itself as an Affiliate, partner or other legal agent of the other Party. The limited license to use Proprietary Marks under this section will cease automatically on termination of the Agreement.

10.4    Waiver and Amendments.  Except as expressly stated herein, No waiver, amendment, or modification of any provision of this Agreement shall be effective unless agreed to by both parties in writing. No failure or delay by either Party in exercising any rights, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy.  NOTWITHSTANDING THE PREVIOUS SENTENCE, TELESIGN SHALL BE ENTITLED TO AMEND ANY TERMS OF THIS AGREEMENT ON THE GIVING OF NOT LESS THAN FIVE (5) DAYS’ NOTICE TO CLIENT, SUCH NOTICE TO BE MADE VIA EMAIL OR ON THE CLIENT PORTAL.  IF CLIENT CONTINUES TO USE THE SERVICES BEYOND SUCH NOTICE PERIOD, CLIENT SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENT.  IF CLIENT DOES NOT AGREE TO SUCH AMENDMENT, IT SHALL BE ENTITLED TO TERMINATE THE AGREEMENT BY GIVING 30 DAYS’ WRITTEN NOTICE TO TELESIGN AT ANY TIME DURING SUCH NOTICE PERIOD.

10.5    Severability.  Should any term of this Agreement be finally determined by a court of competent jurisdiction to be invalid, unenforceable or otherwise contrary to law or equity, the parties agree that such provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary to eliminate its invalidity or unenforceability, and that the other provisions of this Agreement shall remain unaffected. If any part of this Agreement is determined to be invalid or unenforceable pursuant to Applicable Law then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.

10.6    Third Party Beneficiaries.  Except as expressly provided for herein, the provisions of this Agreement are solely for the benefit of the parties hereto and not for the benefit of any third parties.

10.7    Governing Law; Forum.  The laws of the State of California shall exclusively govern this Agreement, without regard to any contrary conflicts of laws principles.  In event of a dispute arising under this Agreement, each Party will make reasonable, good-faith efforts to resolve such dispute informally.  The parties agree to waive jury trial as to any claim, controversy or dispute arising under or related to this Agreement. All legal disputes arising from this Agreement shall be resolved in the Federal and/or State Courts of the County of Los Angeles, California.

10.8    Headings; Attachments.  Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.  The exhibits and attachments attached hereto are incorporated and made a part of this Agreement by this reference.

10.9    Independent Contractor.  Each Party is an independent contractor as to each other and no agency, partnership, joint venture or any legal relationship other than that of independent contractor is established by this Agreement.7.4            This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the Parties.  The Parties hereby agree to the execution of this Agreement remotely, by way of Client accepting these terms and conditions online.

10.10  No impact on other remedies.  Except as otherwise expressly provided in this Agreement, each Party’s remedies herein are in addition to any and all rights and remedies available to such Party at law or in equity.

10.11  Export Restrictions.  Client acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Services. Without limiting the foregoing, Client acknowledges that the Services are or may be subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. Client agrees not to export or re-export the Services in any form in violation 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. government exclusion list, and will immediately cease use of TeleSign’s Services and SDK upon being placed on any such list.

10.12  Notices.  Notices shall be in writing and shall be personally delivered, delivered via courier or via certified mail, or by email to the other Party at such address as may from time to time be designated by a Party. Notices shall be deemed effective upon receipt, or if delivery is not effected by reason of some fault of the addressee, when tendered.  Notices to TeleSign must include a copy sent to [email protected].

10.13  Survival.  Sections 2.4, 3, 4.4, 5, 6, 7, 8, 9, 10.3 and 10.5-10.14 shall survive the termination of this Agreement.

10.14  Agreement Terms and Priority.  This Agreement shall consist of these Terms of Service and all 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.

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