Better Agency Terms & Conditions
These Master Terms and Conditions of Use (“Terms and Conditions”), together with any Orders, and any other materials attached or incorporated by reference, constitute the entire agreement between you and Better Agency, a Delaware Corporation, regarding your access to, and use of, any Services provided by Better Agency (collectively, this “Agreement”). If you are entering into this Agreement on behalf of an entity, you represent that you have the authority to bind such entity to this Agreement.
You may not access any Services unless, and by accessing the Services you represent and warrant that, you (1) if an individual, are at least 18 years of age, (2) are not in any manner affiliated with a competitor of Better Agency, (3)will not access the Services to monitor their availability, functionality, or for any other benchmarking or competitive purposes, (4) or any entity that you are affiliated with, have not at any time breached a contract with Better Agency, and (5) accept and agree to be bound by the provisions of this Agreement.
As used in this Agreement and in any Orders, the following capitalized terms have the following meanings, unless otherwise expressly specified:
“Anonymized Data” means Customer Data and User statistical information such as usage, traffic patterns, or User activities, that is (a) de-identified such that no person or entity (including, but not limited to, a customer) can be identified, and (b) combined with the data of other customers or additional data sources.
“Billing Period” means the interval of time for which you are invoiced (e.g., monthly or annually), as determined by the billing frequency set forth in the applicable Order.
“Contact” means any person who has been entered into the system, either by itself manually, through a list upload, or automatically through a third-party service. A contact can be a lead/prospect, as well as a current or past client.
“Content” means the audio and visual information, documents, software, products, services, and other information contained within, or made available to you in the course of using the Services.
“Customer Data” means any data, information or material provided, submitted, or made available by you to the Services in the course of using the Services. If you are subscribed to Better Agency email Services, Customer Data includes Customer Email Data.
“Customer Email Data” means email contacts, email attachments, and the content of email messages provided, submitted, or made available by you to the Services in the course of using the Services.
“Effective Date” means the earlier of (a) the date this Agreement is accepted by your clicking the “I Accept” or similar option presented in conjunction with these Terms and Conditions, (b) the date of the applicable Order, or (c) the date you begin using the Services.
“Intellectual Property Rights” means rights in and to inventions (whether or not patentable), patent applications, patents, design rights, rights in and to software code and other works of authorship including copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, trade secret rights, and all other intellectual property rights and forms of protection of a similar nature anywhere in the world.
“Better Agency Technology” means all of Better Agency’s proprietary technology (including software, hardware, products, processes, algorithms, user and programming interfaces, know-how, techniques, designs and other tangible or intangible technical material or information), made available to you or otherwise used by Better Agency in providing the Services.
“Order(s)” means any form evidencing your subscription for the Services that you may submit online or in written form and which is accepted by Better Agency, specifying, among other things, (a) the number of subscriptions and other Services contracted for, (b) the applicable Fees and other charges, (c) the Billing Period, and (d) other terms and conditions as may be agreed upon between the Parties in writing, each such Order to be incorporated into and to become a part of this Agreement.
“Party” or “Parties” mean(s) either Better Agency or you, or both, as appropriate.
“Services” means Better Agency’s online contact management platform, telecommunications, billing, data analysis, training, custom development, related third-party services, or other services identified on the Order(s) as services to which you will have access during the Subscription Term, accessible via http://betteragency.io or another web site or IP address designated by Better Agency, and any ancillary service rendered to you by Better Agency, to which you are being granted access under this Agreement.
“Subscription Administrator(s)” means those Users designated by you who are authorized to purchase subscriptions to use the Services online within your account or by executing written Orders, and to create User accounts and otherwise administer your use of the Services.
“Subscription Start Date” means the later of (a) the date of the last signature on an applicable Order, or (b) the date provided in the Subscription Start Date field in an applicable Order.
“Subscription Term(s)” means the period(s) during which a specified number of Users are permitted to use the Services as set out in the relevant Order(s) made up of an initial term and any renewal.
“User(s)” means your employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied with individual access credentials by you or by Better Agency at your request.
Other terms defined in this Agreement or any Order shall have the meanings so given them.
2.1 Provision of the Services.
The Services are purchased as subscriptions. During the Subscription Term, we will (a) make the Services available to you pursuant to this Agreement and the applicable Orders, and (b) use commercially reasonable efforts to provide the Services for remote electronic access and use by you and your Users.
2.2 Usage Restrictions.
You will not, directly or indirectly, (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or other underlying Better Agency Technology; (b) modify, copy, reproduce, display to third parties, translate, or create derivative works based on (i) the Services or (ii) any Better Agency Technology; (c) rent, lease, distribute, sell, resell, assign, or otherwise purport to transfer rights to the Services or any Better Agency Technology; (d) use the Services or any Better Agency Technology for timesharing or service bureau purposes or otherwise for the benefit of any third party; (e) remove any proprietary notices from the Services or any Better Agency Technology; (f) publish or disclose to third parties any evaluation of the Services or any Better Agency Technology without Better Agency’s prior consent; (g) create any link to the Services or frame or mirror any Content contained on, or accessible from, the Services, without Better Agency’s prior written consent; (h) authorize, permit, or otherwise allow more than the specified number of authorized Users on the Order to access the Services; (i) assert, authorize, assist, or encourage any third party to assert, against Better Agency or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Better Agency Technology you have used; or (j) use Better Agency Technology in any manner or for any other purpose other than as expressly permitted by this Agreement. If you permit individuals other than Users to access the Services (“Unpermitted Individuals”), you will be charged User subscription Fees commensurate with the number of Unpermitted Individuals who used the Services.
3. Use of Services.
You are responsible for obtaining and maintaining all computer hardware, software, communications equipment, facilities and equipment needed to access the Services, and for paying all third-party access charges (e.g., charges of Internet or telecommunications service providers) incurred in connection with using the Services.
3.2 Your Responsibilities.
You are solely responsible for your actions and the actions of your Users (and any of your other employees or agents) while using the Services and any Customer Data and other information or materials that may be stored or transmitted through your use of the Services, and you agree: (a) to comply with all local, state, national, and international laws and regulations applicable to your use of the Services, including the Telephone Consumer Protection Act, CAN-SPAM Act, and the rules and regulations implemented pursuant thereto or by the Federal Communications Commission or any other government agencies, the laws and regulations of any country, and, including without limitation, all laws regarding the transmission of conversational, informational, and promotional communications, whether via electronic mail, text message, or otherwise, and the collection of personal data by or through the Services; (b) not to upload or distribute in any way files that contain viruses, corrupted files, or any other software code that may damage the operation of the Services or any other computers or facilities; (c) not to interfere with or disrupt networks or facilities used in providing, or that are connected to, the Services; (d) not to post, promote or transmit through the Services any material that is unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable; (e) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (f) not to interfere with any other customer’s use and enjoyment of the Services or any another person or entity’s use and enjoyment of services provided by Better Agency or any third party; and (g) to comply with all regulations, policies and procedures of networks connected to the Services. You acknowledge that the laws and regulations governing the use of the Services may change from time to time. You acknowledge and agree that Better Agency neither endorses the contents of any of its customers’ communications, nor assumes any responsibility for the time, place, manner, or contents of any such communications or Customer Data. You further acknowledge and agree that Better Agency has the right, but not the obligation, to implement mechanisms to screen, monitor, modify, and remove any Customer Data or other content posted or stored on the Services or transmitted through the Services, at any time, which violates this Agreement, without notice. Additionally, and without limiting the generality of the foregoing, you represent and warrant that you have obtained from your prospective and existing customers all effective authorizations, consents, and approvals required under applicable law regarding telephone, electronic mail, and text message communications, including without limitation, the Telephone Consumer Protection Act, CAN-SPAM Act, and the rules and regulations implemented pursuant thereto or by the Federal Communications Commission or any other government agencies.
3.3 Customer Support.
“Better Agency Support Services” includes customer support in the form of self-administered help notes at http://betteragency.io. Basic email and in-app support through Better Agency’s customer service department is available with the purchase of one or more of Better Agency’s packages of implementation and training Services, and is accessible only to Users who have completed Better Agency’s standard System Administrator Training. Unintended or improper use of the Services or breach of this Agreement may, at Better Agency’s sole discretion, void your access to customer support. Better Agency does not provide support for integrations between the Services and third party applications unless otherwise expressly agreed between the Parties in writing. If found that you have utilized Better Agency Support Services in matters relating to a non-supported third party integration or an unintended or improper use of the Services, you agree to reimburse Better Agency for all costs incurred by Better Agency in the providing of such Services and to pay Better Agency professional services Fees, billable at the then-current hourly rate.
3.4 Use and Data Limitations.
Better Agency reserves the right to establish, and to update and otherwise modify, limitations upon the use of the Services from time to time upon written notice to you. For example, Better Agency may implement a maximum amount of memory or other computer storage, a maximum amount of Customer Data that you may store, post or transmit on or through the Services, and implement limitations on the size, frequency, timing, or other manner of messages transmitted using the Services. You will be responsible for maintaining an archive or back-up copy of all Customer Data and Better Agency will have no liability for any loss of Customer Data.
3.5 Third Party Interactions.
In your use of the Services, you may enter into correspondence with, or may receive communications from, advertisers, sponsors, or other persons promoting their goods and/or services through the Services. Any such activity, any purchases of goods or services you may make from such persons, and any terms, conditions, warranties or representations associated with such activities are solely between you and the applicable third party. Better Agency and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchases or promotions. Better Agency does not endorse any sites or services that are linked to or otherwise mentioned on the Services. Better Agency provides any links or references to third-party products and services to you only as a matter of convenience, and in no event will Better Agency or its licensors be responsible for any content, products, or other materials available from such third parties. Better Agency provides the Services to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services. Better Agency shall in no way be responsible for any adverse effects caused by the use of third-party applications in conjunction with the Services, and you assume full responsibility for the use of such applications and their effect on the Services.
3.6 No Solicitation.
During any Subscription Term, and for a period of three years following the expiration or termination of any Subscription Term, (a) you agree not to solicit or influence any employee or contractor of Better Agency to leave employment or terminate an engagement or relationship with Better Agency, and (b) if you are approached by an employee or contractor of Better Agency concerning employment or an engagement, you agree to notify Better Agency a least 30 days prior to making an offer of employment or engagement to such employee or contractor.
3.7 Additional Policies and Guidelines.
Certain Services, and certain features or capabilities of some of the Services, may be subject to terms and conditions particular to such Services, features, and capabilities. Any such additional terms and conditions may be set forth in policies, guidelines, and similar documents that may be posted on the Services or otherwise made available to you from time to time. You must comply with any and all such policies and guidelines, all of which are incorporated into this Agreement.
4. Fees and Payment.
4.1 Subscription Fees.
You will pay all Fees and other charges described and otherwise referenced in this Agreement or any Order (“Fees”) in advance (e.g., monthly or annually) in accordance with your billing frequency and subscription. In the event you are unable to pay all Fees in advance, you will be charged a 3% billing processing fee. You are responsible for paying for all User subscriptions ordered for the entire Subscription Term, whether or not such User subscriptions are actively used. The quantity of User subscriptions cannot be decreased during the Subscription Term.
Subscription Terms will automatically renew at the then-effective annual Subscription Term rate, unless you provide Better Agency with written notice of termination at least 30 days prior to the end of such annual Subscription Term or any renewal term, as applicable. We may offer a number of subscription plans, including special promotional plans or subscriptions with differing conditions and limitations. Better Agency reserves the right to modify its Fees and to introduce new Fees at any time, upon at least 30-days’ prior notice to you.
4.2 Adding/Transferring Users and Services.
A Subscription Administrator may add subscriptions for additional Users by executing an additional written Order or within your account. Added subscriptions will be subject to the following: (a) added subscriptions will be coterminous with the then existing Subscription Term; (b) the subscription Fee for the added subscriptions will be the subscription Fee in the applicable Order; and (c) subscriptions added will be charged pro-rata for the days remaining in the Subscription Term in which they are added.
4.3 Billing and Payment.
You agree to provide and maintain complete and accurate billing and contact information in the Services. You must provide Better Agency approved purchase order information, a valid and current credit card, or bank account information (“Payment Source(s)”) as a condition to signing up for and continuation of the Services. You agree to and authorize Better Agency to invoice or collect payment for all outstanding Fees, on the due date of Fees, from the Payment Sources provided by you. You further agree to consistently maintain a Payment Source or credit balance available to Better Agency for payment of Fees.
4.4 Billing Errors.
You must contact Better Agency in writing no later than 45 days after the date of the applicable invoice to report a billing error. If an error notice is not received within 45 days of the date of the invoice, then such invoice shall be final, you waive any right to an adjustment or credit, and you agree to pay the amount billed in full.
4.5 Refund Policy.
All transactions between you and Better Agency, whether paid monthly or annually, are final and non-refundable. Better Agency does not issue refunds, credits, or any prorated adjustments for transactions or Services that have been paid for by you, except as may be otherwise provided in a written Order.
All Fees are exclusive of applicable state, federal, national, withholding and VAT taxes, and applicable customs duties or tariffs (collectively “Taxes”). You will be responsible for the payment of all Taxes applicable to the Services provided under this Agreement, except for taxes based on Better Agency’s income, property and employees. If Better Agency has the legal obligation to pay or collect Taxes for which you are responsible, the appropriate amount will be invoiced to you for payment, unless you provide to Better Agency a valid tax exemption certificate authorized by the appropriate taxing authority.
5. Term and Termination.
These Terms and Conditions commence on the Effective Date and continue until all User subscriptions and Subscription Term(s) granted in accordance with this Agreement have expired or been terminated. User subscriptions commence on the Subscription Start Date and continue for the Subscription Term specified in your applicable Order.
5.2 Termination or Suspension for Cause.
Any breach of your obligations under this Agreement will be deemed a material breach of this Agreement. Better Agency, in its sole discretion, may terminate, suspend, or otherwise restrict your password, account or use of the Services if you breach or otherwise fail to comply with any of your covenants, representations, or warranties in this Agreement. Where the breach is for non-payment, you shall have ten days following receipt of written notice by Better Agency to cure the breach for past due amounts owing before Better Agency may terminate this Agreement.
You will continue to be charged for User subscriptions during any period of suspension or while your account is otherwise limited or restricted. Upon termination of this Agreement for cause, if you have not paid all Fees for the then-current Subscription Term, you agree to pay the sum of any unbilled Fees from the then-current Subscription Term, in addition to any unpaid balances at the time of termination of this Agreement. Better Agency reserves the right to impose a reconnection Fee in the event that your account is suspended.
5.3 Customer Data.
Better Agency will retain Customer Data for a period of 30 days after expiration or termination of this Agreement or any Subscription Term and may, in its sole discretion, obtain such Customer Data for a longer period. You may request that Better Agency conduct an export of Customer Data by providing Better Agency written notice, and Better Agency agrees to provide such Services, as soon as reasonably practical based on Better Agency’s available resources, after receiving such written request at its then current rates on a time and materials basis. You agree and acknowledge that Better Agency has no obligation to retain the Customer Data for longer than 30 days after termination or expiration of this Agreement or any Subscription Term; provided, however, that Better Agency, and its successors and assigns, may store and continue to retain and use Anonymized Data indefinitely and without limitation.
5.4 Survival; Effect of Termination.
This Section 5.4, Section 2.2 (Usage Restrictions), Section 4 (Fees and Payment), Section 6 (Proprietary Rights), Section 7 (Confidentiality, Privacy and Publicity), Section 8 (Warranties and Disclaimers), Section 9 (Indemnification), Section 10 (Limitation of Liability), and Section 11 (General) will survive any termination or expiration of this Agreement or any Subscription Term. In no event will any termination or expiration of this Agreement relieve you of any obligations or liability accrued prior to termination including, without limitation, the obligation to pay any Fees payable to Better Agency.
6. Proprietary Rights.
6.1 Intellectual Property Ownership.
Better Agency (and its licensors, where applicable) will exclusively own all right, title and interest, including all related Intellectual Property Rights, in and to the Services, the Better Agency Technology, and any modifications thereto or derivative works thereof. Further, Better Agency will exclusively own any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any third party relating to the Services or Better Agency Technology (the “Feedback”). You hereby assign, and agree to assign, any and all right, title, and interest, including all related Intellectual Property Rights, in and to the Feedback and any modifications to, or derivative works of, the Services and the Better Agency Technology. This includes all campaigns, automated messages, sequences, workflows, copywriting and all technology and processes within the application to engage contacts. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Services, the Better Agency Technology or the Intellectual Property Rights owned by Better Agency or its licensors, where applicable. The Better Agency name, the Better Agency logo, and the product names associated with the Services are trademarks of Better Agency or third parties, and no right or license is granted to use them. Other trademarks, logos, and trade names that may appear on the Services are the property of their respective owners. Better Agency reserves to itself all rights in and to the Services and Better Agency Technology not expressly granted to you in accordance with this Agreement.
6.2 Customer Data and Account Information.
6.2.1 Customer Data.
You grant to Better Agency an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, sub-licensable, worldwide license to use, reproduce, publish, distribute, perform, further anonymize, assemble, categorize, and display any and all Anonymized Data. Better Agency may access Customer Data to service or respond to technical issues with the Services. Better Agency will exclusively own and retain all right, title, and interest in and to the Anonymized Data and, to the extent necessary, you hereby automatically assign to Better Agency all right, title and interest, including all Intellectual Property Rights, in and to all Anonymized Data or any portion thereof. Better Agency shall be free to sell, transfer, assign, license, or use in any way the Anonymized Data without the permission or consent of you or any other party and without compensation.
You will retain all ownership of Customer Data (other than Anonymized Data) that you submit to the Services in the course of this Agreement. You, not Better Agency, have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership and right to use all Customer Data. You will ensure that you and Better Agency have the right to use Customer Data as contemplated by this Agreement, and you hereby grant, and agree to grant, Better Agency the right to use all Customer Data for the purposes set forth in this Agreement. Better Agency will take commercially reasonable measures to protect Customer Data on the Services. However, Better Agency is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Customer Data. Except as permitted in this Agreement, Better Agency will not willfully (a) edit or delete Customer Data unless (i) authorized by you, (ii) Better Agency is required to do so by law, or (iii) in the good faith belief that such action is necessary to: (A) conform with applicable laws or comply with legal process served on Better Agency, (B) protect and defend the rights or property of Better Agency, or (C) enforce this Agreement; or (b) disclose Customer Data unless (i) authorized by you, (ii) Better Agency is required to do so by law, or (iii) in the good faith belief that such action is necessary to conform with applicable laws or comply with legal process served on Better Agency.
In addition to your ownership of your customer and prospect data, we view our role to assist you in growing and protecting your business as a fiduciary role. With that said, no member of the Better Agency team will use their access to the system to obtain your client data for any purpose other than to improve the application and for optimization purposes.
6.2.2 Customer Email Data.
If you are subscribed to Better Agency email Services, you grant to Better Agency an irrevocable, non-exclusive, royalty-free, fully paid up, perpetual, sub-licensable, worldwide license to use, reproduce, publish, distribute, perform, and display Customer Email Data, including personally identifiable information, for the limited purpose of, from time to time, offering to you Services, developing new services, and operating the Services and related services.
7. Confidentiality, Privacy and Publicity.
“Confidential Information” means any information that relates to the actual or anticipated business, research, or development of Better Agency and any proprietary information, trade secrets, and know-how of Better Agency that is disclosed to you by Better Agency, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Confidential Information includes, but is not limited to, research, product plans, products, services, customer lists, development plans, inventions, processes, formulas, algorithms, technology, designs, drawings, marketing, finances, and other business information, along with information received from third parties for which Better Agency has confidentiality obligations. As between you and Better Agency, Confidential Information is the sole property of Better Agency. Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time Better Agency disclosed the information to you, (b) became publicly known and made generally available, after disclosure to you by Better Agency, through no wrongful action or inaction of you or others who were under confidentiality obligations, or (c) was in your possession, without confidentiality restrictions, at the time of disclosure by Better Agency, as shown by your files and records. You agree not to disclose any Confidential Information to any third party or use the Confidential Information for any purpose other than use and receipt of the Services in accordance with this Agreement. You will take all reasonable precautions to prevent any unauthorized disclosure of all Confidential Information.
You will maintain written privacy policies governing the use of the data you collect using the Services and you agree to abide by them.
Better Agency will issue to you, or shall authorize a Subscription Administrator to issue, a password for each User authorized to use your account for whom you have paid the applicable Fees. You and your Users must maintain the confidentiality of all passwords and ensure that each password is used only by the unique authorized User to whom such password is assigned. You are entirely responsible for any and all activities that occur under your account. You agree to immediately notify Better Agency of any unauthorized use of your account (including any unauthorized use of any password of any User accessing the Services by means of your account) or any other breach of security known to you. Better Agency will have no liability for any loss or damage arising from your failure to comply with these requirements.
Better Agency will maintain the Better Agency Technology used to provide the Services at third party colocation, hosting, and telecommunication facilities, where they are subject to commercially reasonable security precautions to prevent unauthorized access to the Services. You acknowledge that, notwithstanding such security precautions, unauthorized third parties may gain access to the Services and to any or all Customer Data. Accordingly, Better Agency cannot and does not guarantee the privacy, security, or integrity of any Customer Data or of any other data transmitted by or through the Services.
Better Agency may use your name and logo as part of a list of customers and may refer to you as a user of its Services in its advertising and marketing activities. Each Party shall obtain the other Party’s permission prior to using the other Party’s name, logos, or other trademarks for any other marketing or promotional purposes. The Parties agree that any press release or other public comments issued by either Party relating to this Agreement (including, without limitation, any dispute under this Agreement), or your subscription to or use of the Services, will be prepared jointly between Better Agency and you and will be issued only upon mutual agreement of the Parties.
7.4 U.S. Defends Trade Secrets Act.
Parties are hereby notified in accordance with the U.S. Defend Trade Secrets Act of 2016 that a Party will not be held criminally or civilly liable under any U.S. federal or state trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a U.S. federal, state or local government official, either directly or indirectly, or to an attorney representing such Party, and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. The Parties are further notified that if a Party employee files a lawsuit for retaliation by an employer for reporting a suspected violation of law, the employee may disclose the employer’s trade secrets to his or her attorney and use the trade secret information in the court proceeding if the employee: (x) files any document containing the trade secret under seal; and (y) does not disclose the trade secret, except pursuant to court order.
8. Warranties and Disclaimers.
8.1. Mutual Representations and Warranties.
Each Party represents and warrants that (a) it has the legal right, power and authority to enter into this Agreement and to perform all of its obligations under this Agreement, and (b) its entrance into this Agreement does not violate any agreement between such Party and any third party.
8.2 Warranty Disclaimer.
Better Agency AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT. Better Agency AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (a) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA, (b) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (c) ANY STORED CUSTOMER DATA WILL BE SECURE, COMPLETE, TIMELY, ACCURATE OR RELIABLE, (d) THE QUALITY OF THE SERVICES OR ANY OTHER INFORMATION, ITEMS, OR MATERIALS OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (e) THE SERVICES WILL BE FREE FROM ERRORS OR DEFECTS OR THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED, OR (f) THE SERVICES, THE CONTENT, OR THE EQUIPMENT OR FACILITIES USED TO MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY Better Agency AND ITS LICENSORS. NO ADVICE, INFORMATION OR ACTION FROM Better Agency OR ANY OTHER SOURCE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8.3 Communications Delays and Outages.
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, OUTAGES, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, TELEPHONY, AND ELECTRONIC COMMUNICATIONS. Better Agency IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
You, including any of your parent organizations, subsidiaries, and other affiliates, will indemnify and hold harmless (and, if requested by Better Agency, defend and protect) Better Agency, its parent organizations, subsidiaries, other corporate affiliates, and licensors, and their respective officers, directors, employees, attorneys and agents (each, an “Better Agency Indemnified Party”), from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your use of the Services; (b) any claim alleging that transmission, storage, or other use of Customer Data infringes the rights of, or has caused harm to, a third party; (c) any claim alleging violation of the Telephone Consumer Protection Act, CAN-SPAM Act, or any related consumer protection law or privacy law, or any rules or regulations implemented pursuant to such laws or by the Federal Communications Commission or any other government agencies; or (d) a claim alleging or based upon any facts that, if true, would constitute a violation by you of any of your covenants, representations, or warranties in this Agreement. If Better Agency requests that you defend Better Agency or any Better Agency Indemnified Party, you will defend Better Agency and all such Indemnified Better Agency Parties at your sole cost and expense, and Better Agency will (a) give you sole control of the defense and settlement of the claim, subject to Better Agency’s approval of any such settlement, which approval will not be unreasonably withheld or delayed, and such settlement must include an unconditional, full, and final release of all liability with respect to Better Agency and all Better Agency Indemnified Parties, and further such settlement shall not affect Better Agency’s business, the Services, or any of its other products or services; and (b) provide reasonable information and assistance in connection with the defense and settlement of the claim.
10. Limitation of Liability.
10.1 Limitation of Liability.
IN NO EVENT WILL Better Agency’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED UPON CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE) EXCEED THE TOTAL SUBSCRIPTION FEES PAID TO Better Agency BY YOU FOR THE THREE-MONTH PERIOD IN WHICH THE CAUSE OF ACTION OCCURRED.
10.2 Disclaimer of Consequential and other Indirect Damages.
IN NO EVENT WILL Better Agency BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF CUSTOMER DATA OR OTHER INTANGIBLE PROPERTY, EVEN IF Better Agency HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Independent Allocations of Risk.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY Better Agency TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.
All notices required under this Agreement will be in writing and sent to the addresses specified in this Agreement and/or any Order and will be sent by certified mail, postage prepaid and return receipt requested, or by express courier service, having trackable service, and with signature required by the receiving Party. Notwithstanding the foregoing, you acknowledge and agree that Better Agency may provide you with notices, including but not limited to those regarding changes to this Agreement, by email, regular mail, or postings on the Services. Any such notices will be deemed given the day they are displayed on the Services.
11.2 Entire Agreement.
This Agreement, including all corresponding Orders and exhibits where applicable, contains the entire agreement of the Parties and supersedes any and all prior and contemporaneous agreements with respect to the subject matter hereof, whether orally or in writing. This Agreement supersedes any terms printed on your purchase order or other communications. In the event of any conflict between these Terms and Conditions and the terms of the Order, the terms of the Order will govern, but solely to the extent of the conflict.
11.3 Assignment and Delegation.
This Agreement will be binding on and shall inure to the benefit of the Parties and their respective successors and permitted assigns. You may not assign, delegate, or otherwise transfer this Agreement or any of your rights, interests, or obligations hereunder, whether voluntarily or by operation of law, without Better Agency’s prior written consent, which consent may be withheld in Better Agency’s sole discretion. Any attempted assignment without Better Agency’s written consent shall be null and void. Better Agency may assign this Agreement to any parent, subsidiary or affiliate and to any successor to its business, whether by merger, asset sale, or otherwise. Better Agency also may, in its discretion, subcontract and otherwise delegate any or all of its obligations hereunder, but shall nevertheless remain responsible for the performance of its obligations hereunder.
11.4 Relationship of the Parties.
The Parties expressly agree that they are independent contractors and do not intend for this Agreement to be interpreted as an employment, agency, joint venture, or partnership relationship.
11.5 Injunctive Relief.
Actual or threatened breach of Section 2 (Use of Services), Section 3 (Use of Services), Section 6 (Proprietary Rights), or Section 7 (Confidentiality, Privacy, and Publicity) may cause immediate, irreparable harm that would be difficult to calculate and could not be remedied by payment of damages alone. Accordingly, Better Agency will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.
11.6 Governing Law & Venue.
This Agreement and any disputes arising hereunder shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of Arizona, without regard to its conflict of laws principles. Any dispute under this Agreement shall be brought exclusively in the state and federal courts within the State of Arizona. EACH PARTY HEREBY IRREVOCABLY CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS. EACH PARTY SPECIFICALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY COURT IN CONNECTION WITH ANY ACTION OR LITIGATION. Any cause of action arising out of or related to this Agreement must be brought within one year after the circumstances giving rise to the cause of action arose; otherwise, such cause of action will be permanently barred.
11.7 No Third-Party Beneficiaries.
This Agreement is made for the benefit of Better Agency and you, and not for the benefit of any third parties. No other person or entity will be a third-party beneficiary to this Agreement.
11.8 Export Controls.
Each Party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (a) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (b) you shall not permit any Users to access or use any Services in violation of any U.S. export embargo, prohibition, or restriction.
The headings in this Agreement are for reference only and will not limit or otherwise affect the meaning of any provisions of this Agreement.
11.10 No Waiver.
No failure to exercise or enforce any right or provision of this Agreement, nor any waiver of any default or breach of this Agreement by either Party, will be deemed to imply or constitute a waiver of any other default or breach of this Agreement by either Party, whether of a similar nature or otherwise.
In the event that one or more of the provisions of this Agreement is invalid or otherwise unenforceable, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the enforceability of remaining provisions will be unimpaired.
11.12 Modification to Terms.
Better Agency reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Services at any time, effective only upon Better Agency posting an updated version of this Agreement on the Services. Continued use of the Services after any such changes shall constitute your consent to such changes.
11.13 Subsequent Agreements.
In order to be effective, all terms and conditions of subsequent agreements related to any subject matter in this Agreement must be agreed upon in writing and signed by both Parties.
11.14 Force Majeure.
Neither Party will be in default of any obligation under this Agreement (other than payment obligations) to the extent that its failure to perform is caused solely by conditions beyond that Party’s reasonable control, such as acts of God, civil strife or commotion, war (whether declared or undeclared), strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism, governmental laws, regulations or restrictions or changes to governmental laws, regulations or restrictions, acts by governmental authorities, governmental demands, and any other cause or causes, whether or not similar to those specified herein, which cannot reasonably be controlled by such party.