Terms of Service for SayHey Messenger®
TOS Date: February 13, 2023
THE TERMS AND CONDITIONS APPLY TO USE OF THE SAYHEY MESSENGER SERVICES PROVIDED BY SEVEN TABLETS, INC. PLEASE READ THESE TERMS CAREFULLY. BY USING THE SERVICES, YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE OUR SERVICES. THESE TERMS APPLY TO BOTH THE CUSTOMER ENTERING THE ORDER FORM AND ANY USERS GRANTED ACCESS BY THE CUSTOMER.
These terms and conditions (the “Terms”) are a legally binding contract between the customer using the services ordered in an order form (“Customer” including “you” and “your”) and Seven Tablets, Inc. (“7T” including “we, “our” and “us”) (together Customer and 7T are the “Parties”). These Terms apply to Customer’s users. In consideration of the mutual covenants, promises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged and confirmed, the Parties agree as follows:
“Affiliate” means any entity that is controlled by Customer or is under common control with Customer through at least a 51% ownership (or through board or directors’ control if a not-for profit entity).
“Agreement” means the Order Form and these Terms, including any policies or other terms referenced herein.
“Application” means the Internet-based, hosted solution(s) listed on an Order Form together with the related data processing services.
“Documentation” means the standard installation materials, training materials, specifications and online help documents normally made available for the Application(s) in connection with specific Services.
“Order Form(s)” means the ordering documents, executed by the parties from time to time, representing the purchase of Services, that specify, among other things, the Subscription Services ordered, the fees, usage limits, and the terms applicable to the transaction. Any renewal Subscription shall be subject to the Agreement, whether or not a subsequent document is signed. The Order Form may be referred to as a “Statement of Work” (“SOW”) if you are purchasing Professional Services.
“Professional Services” means the professional services, implementation services, training or consulting services performed by 7T or its authorized representatives for Customer as agreed between Customer and 7T.
“Services” means the Subscription Services and Professional Services collectively.
“Subscription” or “Subscription Services” means access to the Application for the term specified on an Order Form.
“Subscription Period” means the term of access to a hosted Application specified on an Order Form or any subsequent renewal.
“User” means Customer’s and its Affiliates’ employees, consultants, agents, services providers, contractors, and other individuals who are authorized to use the Subscription Services for Customer’s benefit and have been supplied user identifications and passwords.
- Order Form & Access. Customer will sign an Order Form for the Services referencing Terms. If the Parties fail to sign an Order Form for the Services, or the Order Form signed fails to reference these Terms, the Parties agree these Terms shall apply.
A Subscription is effective upon Customer’s execution of the Order Form, or if no Order Form is executed, the date 7T makes the Subscription available to Customer (“Effective Date”). During the Subscription Period, 7T will provide Customer access to use the Subscription Services as described in an Order Form subject to these Terms. 7T endeavors to make the Subscription Service available 24/7 other than planned downtime for maintenance. 7T may modify the
Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve the customer experience. However, we will not make changes to the Subscription Service that materially reduce the functionality provided to you during the Subscription Period.
- Professional Services. 7T will provide Customer with Professional Services, as may be agreed in writing by 7T and Customer. Professional Services and any associated fees are separate from the fees for the Subscription Services. The scope of and fees for such services shall be in writing and subject to the terms of this Agreement. Professional Services will be delivered based on 7T standard phases and tasks as described in a separate Order Form. Any non-package services such as custom reporting, onsite services, data integrations, and data conversions will individually be scoped and estimated, agreed in writing by both parties, and subject to this Agreement. All standard services are performed remotely, unless otherwise agreed in writing. Travel and related expenses are not included in the quoted or estimated price and shall be paid by Customer. Professional Services will be prepaid prior to delivery of engagement, and a monthly status will be provided to Customer based on percentage of completion of phases of implementation.
- Fees; Payment Terms.
4.1 Customer shall pay fees to 7T as set out here and in any Order Forms, and all applicable sales and use taxes (“Subscription Fees”). All Subscription Fees are due and payable in advance throughout the Subscription Period, except the initial term following the Effective Date where Subscription Fees are invoiced on or promptly after the Effective Date, and due net thirty (30) days, unless otherwise stated in an Order Form. Fees for subsequent Subscription Periods will be invoiced and due in advance each renewal unless otherwise agreed in writing. Except for the Fast Start implementation, all Professional Services fees are payable in arrears unless otherwise agreed in the Order Form or SOW, and 7T shall invoice Customer each month for the fees for any Services provided in the previous month with payment due from Customer within thirty (30) days of receipt of the invoice.
4.2 Invoices not paid when due shall incur a service charge of one and one-half percent (1.5%) per month on any outstanding balance or the maximum legal rate allowed by law, whichever is less. 7T shall also be entitled to receive, in addition to the amounts due hereunder, reasonable attorney’s fees and all costs and expenses incident to collection of such amounts. Subscription Fees are subject to change for any renewal Subscription Period, so long as 7T provides at least sixty (60) days’ notice of such pricing changes, unless the price increase is less than 5% over the prior Subscription Fee. Payment obligations are non-cancelable and, except as expressly stated in the Agreement, all fees paid hereunder are non-refundable.
4.3 Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, Customer will reimburse us for such withholding tax.
4.4 Use. In Customer’s use of the Application, Customer agrees that all its Users shall abide by the SayHey Acceptable Use Policy available at www.sayheymessenger.co/AUP (“AUP”). Customer will notify 7T immediately if it becomes aware of any unauthorized use of its Users’ identification, passwords, its account, or violations of this Agreement or the AUP.
- Warranties; Disclaimer of Warranties. 7T represents and warrants that the Application shall perform substantially in accordance with the Documentation during the term. 7T shall provide all Services hereunder in a professional and workmanlike manner. Customer’s sole remedy for breach of any obligation hereunder shall be the repair, replacement or correction of the Application (as determined in 7T’s sole discretion) or reperformance of the applicable Professional Services. TO THE EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OR CONDITION OF ANY KIND. WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. 7T MAKES NO REPRESENTATION OR WARRANTY THAT (I) THE SERVICES PROVIDED HEREUNDER WILL MEET CUSTOMER’S REQUIREMENTS, NEEDS, OR EXPECTATIONS; OR (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM 7T, OR THROUGH OR FROM THE SERVICES PROVIDED HEREUNDER SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
Customer represents and warrants that it has validly entered into the Agreement and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Users and their compliance with the terms of this Agreement.
- Risks of Delivery and Security. Customer acknowledges that the Services are provided in part over the Internet or other public networks, over which 7T maintains no control, and that substantial risks, including loss and corruption of data, delays, non-deliveries, mis-deliveries, and service interruptions, are associated with the reception, transmission, storage, manipulation, and other uses of data. Customer acknowledges and accepts all risks of dependence upon or use of data received, transmitted, accessed, stored, or managed by the Application. Customer agrees to ascertain, implement, and take all appropriate or necessary precautions to protect itself from losses and damages associated with such risks and acknowledges it has been advised to acquire insurance against such risk. Customer acknowledges that the Services are not designed or intended for use in connection with any hazardous environments or high risk applications, such as use in or with medical applications, life support machines, safety equipment, nuclear facilities, or any application where failure of the Services (either alone or in conjunction with other components or third party services) could lead directly to death, personal injury, or severe physical, property or environmental damage. 7T specifically disclaims any express or implied warranty, representation and condition of fitness for such activities.
- Customer Data.
7.2 Archive, Deletion, or Removal of Customer Data. Customer Data contained in archived electronic records created pursuant to standard electronic backup procedures is subject to confidentiality obligations set forth in this Agreement and shall remain in the possession of 7T. Customer Data contained in such records shall be exempted from any and all deletion or destruction requirements at or after termination of the Agreement as per the electronic retention and destruction policies of 7T. Electronic retention and destruction policies of 7T are subject to change at any time. Thirty (30) days after termination or expiration of your Subscription, 7T will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control. If 7T believes there could be a violation of the Agreement or any of the policies set forth herein that can simply be remedied by Customer’s removal of certain Customer Data or taking other action, 7T will, in most cases, ask Customer to take action rather than intervene. However, 7T reserves the right to take appropriate action at its discretion (including disabling user or Customer’s account) if Customer does not take appropriate action or 7T believes there is a credible risk of harm to us, the Services, Users, or any third parties.
7.3 Aggregate Data. For the purpose of improving the Application by understanding patterns of use and other metrics, and without limiting Customer’s ownership rights in the Customer Data, 7T may utilize data capture, syndication and analysis tools and other similar tools to extract, compile, synthesize and analyze any non-personally and non-Customer identifiable data or information resulting from Customer’s use of the Services (“Statistical Data”). Statistical Data may be collected by 7T for any lawful business purpose without a duty of accounting to Customer, provided that the Statistical Data is used only in an aggregated form without specifically identifying the source of the Statistical Data.
7.4 Protection of Customer Data. Protection of Customer Data is high priority and we will maintain at a minimum industry standard administrative, physical, and technical safeguards and include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel. Customer bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control.
7.5 European Privacy and Data Security Compliance. This provision applies only if and to the extent any User or Customer Data is subject to data security and privacy laws of the European Union or the UK. Except for information about Customer’s account, Customer is considered the sole controller of any personal data included in Customer Data, and, to the extent applicable, appoints 7T and its authorized third party service providers as processors to process such personal data (as those terms are defined in the European Regulation (EU) 2016/679 (General Data Protection Regulation)) solely to the extent required to deliver the Services. Customer agrees and will ensure that its Users accessing the Application through Customer’s account agree, that 7T and its subprocessors are permitted to process personal data as contemplated by these Terms, may transfer personal data across a country border, including outside the European Economic Area and the UK, and use processors and subprocessors (including personnel and resources) in locations worldwide to deliver the Services. 7T will reasonably cooperate with Customer or a User, as applicable, in its fulfillment of any legal requirement, including providing a User with access to their personal data of which 7T has access and control. Upon request by either party, 7T and Customer may enter into additional agreements required by law for the protection of personal data, including but not limited to, a standard data processing addendum incorporating the EU Standard Contractual Clauses or the UK Standard Contractual Clauses with optional clauses removed. The parties agree that any such data processing addendum will be subject to the limitations and exclusions of liability in these Terms, such that the total liability of each party and its Affiliates, in the aggregate, will not exceed the limitations set out in these Terms. If either 7T or its subprocessors makes a change to the way it processes or secures personal data as part of the Services and such change causes Customer to be noncompliant with applicable data protection laws, Customer may terminate the affected Service by providing written notice to 7T within thirty (30) days of 7T’s notification of the change to Customer.
- Customer Obligations
8.1 Customer acknowledges that to receive full benefit of the Application, Customer’s users must be trained in the use of the Application, and that such training should include both initial system training and periodic updates. Customer shall designate one person (as well as an alternate) to serve as its point of contact (“Administrator”) with 7T. Customer agrees that such Administrator shall receive initial training on the Application, provided either by 7T or by an assigned representative of 7T, and that such Administrator shall complete the minimum prescribed number of training hours as specified by 7T. The Services are not intended for and should not be used by anyone under the age of 16. Customer must ensure that all Users 16 years old or older. Customer is solely responsible for providing high speed internet service for itself and its Users to access and use the Subscription Services. Each user shall access the Subscription Services with a unique user ID and password. Customer shall not allow any users to access the Subscription Services with the same user ID and password.
8.2 Customer is responsible for the compliance with these Terms (including the AUP) by any user accessing the Subscription on behalf of Customer. It is Customer’s responsibility to ensure the disclosure of these terms and obligations to any user to whom access to the Subscription is granted. CUSTOMER HAS SOLE RESPONSIBILITY TO (1) INFORM USERS OF CUSTOMER POLICIES AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF CUSTOMER DATA; (2) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM USERS THAT ARE NECESSARY FOR THE LAWFUL USE OF CUSTOMER DATA OR ANY PERSONALLY IDENTIFIABLE INFORMATION OF ANY USER IN THE OPERATION OF THE SERVICES; (3) ENSURE THAT THE TRANSFER AND PROCESSING OF CUSTOMER DATA UNDER THIS AGREEMENT IS LAWFUL AS BETWEEN CUSTOMER AND ANY OF ITS USERS; AND (4) RESPOND TO AND RESOLVE ANY DISPUTE WITH USERS OR ANY THIRD PARTY RELATING TO OR BASED ON CUSTOMER DATA, THE SERVICES OR CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS.
8.3 Customer acknowledges that certain locally active security settings and installed software (i.e. anti-spam, anti-virus, pop-up blocker, and other similar software) can interfere with or prevent the delivery of notifications through the Application and that 7T has no control over these user installed programs or security settings. Customer agrees to indemnify and hold harmless 7T from any service interruptions, delays or system failures arising from such security settings or software, and will take necessary steps to eliminate these issues.
8.4 If the Parties enter into an SOW, Customer acknowledges that 7T’s ability to complete the Professional Services is dependent upon Customer’s active participation and assumes that the Customer will perform, in a timely and satisfactory manner, certain tasks such as delivering requested materials, data and information, responding to inquiries, and providing feedback and approvals.
8.5 Customer is responsible for all login credentials, including usernames and passwords, for Administrator and Users. We will not be responsible for any damages, losses or liability to Customer, Users, or anyone else, if such information is not kept confidential by Customer or its Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.
- Customer Support. Customer may designate up to two primary Customer Contacts. Customer may also designate one backup Customer Contact for each primary Customer Contact. Customer shall provide 7T with a list of its Customer Contacts as well as updates to that list as appropriate. Customer Support is available by email to email@example.com.
- Relationship of Parties; Feedback. This Agreement is not intended, and shall not be construed, to create between Customer and 7T a relationship as partners, co-venturers, employer and employee, or principal and agent.
We welcome and encourage customer feedback. The more suggestions our customers make, the better the Services become. Because there is a chance we will use feedback or suggestions, Customer agrees such information is not confidential and that 7T owns any such feedback or suggestions for any purpose without any obligation or compensation to Customer, any User or other Customer personnel.
- Term and Renewal; Termination. The term of the initial Subscription will be specified in the Order Form, commencing as of the Effective Date. Each Subscription shall automatically renew for subsequent one (1) year periods at the end of the applicable Subscription Period, unless either Party gives the other written notice of intent not to renew at least thirty (30) days prior to the end of the then-current Subscription Period. Subscriptions may be cancelled early, but no refunds will be provided for not using the Subscription Service or seeking to end the Subscription Period early.
11.1 Suspension or Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors, or if the breach is of a nature that cannot be cured. In addition to any other rights hereunder, 7T reserves the right to suspend or terminate this Agreement and Customer’s access to the Application if Customer’s account becomes delinquent (falls into arrears) and the Customer does not correct such delinquency upon five (5) days’ written notice. Any Order Form may not otherwise be terminated prior to the end of the Subscription Period.
11.2 Effect of Termination. Upon termination for cause by Customer, 7T will refund any prepaid fees covering the remainder of the term of the terminated Subscription from the effective date of termination. Fees are otherwise non-refundable. Upon any termination for cause by 7T, Customer will pay any unpaid fees covering the remainder of the term of the terminated Subscription if any. Except as stated above, termination will not relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
- Confidentiality. Customer and 7T acknowledge that, by reason of the business relationship created under this Agreement, each Party may have access to certain non-public information and materials relating to the other Party’s prospective employees, employees, business plans, customers, software technology, and marketing strategies, operations of the Services, information about 7T’s business procedures, and other similar confidential or proprietary information which is confidential and of substantial value to the respective Parties (“Confidential Information”). Each Party agrees that it will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of the other party’s Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Agreement; and (b) not use or disclose any Confidential Information of the other party for any purpose outside the scope of this Agreement. However, either party may share the other party’s Confidential Information (c) with financial and legal advisors that are bound to confidentiality obligations at least as restrictive as those herein or (d) if required by law, provided the disclosing party provides the other party prior notice of any compelled access or disclosure if legally permitted.
Upon termination of this Agreement, each Party shall return to the other Party all Confidential Information belonging to the other Party. If the provisions of this section are breached, or threatened to be breached, the Parties acknowledge that an irreparable harm will occur upon such breach, and the non-breaching Party shall be entitled to seek injunctive relief. The terms and conditions of this Agreement, including pricing, shall be considered Confidential Information. The provisions of this section shall survive the termination of this Agreement.
- Intellectual Property. 7T reserves all rights in and to the Application and any customization thereto, the Services, and all rights not specifically granted herein or in an Order Form, including any and all copyright, trademark or other intellectual property rights associated with the Services. Without limiting the foregoing, Customer may not: (i) design or create any derivative works based on the Application (or services constituting the Applications); (ii) modify, reverse engineer, decompile, disassemble or translate the source/object code comprising the Application; (iii) remove, obscure or alter any notice of copyright or other proprietary notices present on or in the Application (or services constituting the Application), or (iv) disclose or use any information which 7T informs Customer is confidential, including, without limitation, information about the operation of the Service, 7T’s customer base, or information about 7T’s business procedures. Customer may not permit its employees or any third party to do any of the foregoing. Customer hereby transfers to 7T, or its designee, all of its right, title and interest in and to any and all inventions, original works of authorship, developments, concepts, improvements or trade secrets, whether or not patentable or registerable under copyright or similar laws arising from the Application, which may be created or conceived by Customer or its employees. Customer agrees to execute and deliver to 7T any document evidencing such transfer at the request of 7T. If any anytime 7T makes software components available as part of or related to the Services, via download, app stores or other channels, 7T grants Customer a non-sublicensable, non-transferable, non exclusive, limited license for Customer and its Users to use the object code version of these components, but solely as necessary to use the Services and in accordance with the Agreement.
14.1 Customer Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action“) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you or your Users or Customer Data, (b) your or your Users’ noncompliance with or breach of this Agreement or the AUP, (c) use of Third-Party Products by Customer or Users, or (d) the unauthorized use of the Subscription Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim.
14.2 7T Indemnification. 7T will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that the use of the Services as permitted under the Agreement infringes or misappropriates a third party’s intellectual property rights (a “Action Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement we approve of in connection with an Action Against Customer. However, 7T will have no liability if an Action Against Customer arises from (a) Customer Data or Third-Party Products; or (b) any modification, combination or development of the Services that is not performed by us, including in the use of any application programming interface (API). Customer must provide 7T with prompt written notice of any such Action Against Customer and allow us the right to assume the exclusive defense and control and cooperate with any reasonable requests assisting our defense and settlement of such matter. This section states our sole liability with respect to, and Customer’s exclusive remedy, with respect to an Action Against Customer.
14.3 Limitations on Indemnification. (a) An indemnified party will always be free to participate in the defense of a claim and choose its own counsel if it pays for the cost of such counsel (not reimbursable under indemnity); and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if the settlement (i) involves the making of admissions by the indemnified parties, (ii) does not include a full release of liability for the indemnified parties, (iii) includes payment of money by indemnified party; or (iv) imposes liability not covered by this indemnity or places material restrictions or obligations on the indemnified party.
- Limitation of Liability. EXCEPT FOR EITHER PARTY’S VIOLATION OF THE INTELLECTUAL PROPERTY SECTION ABOVE OR INDEMNIFICATION OBLIGATIONS HEREUNDER, AND NOTWITHSTANDING THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT AGAINST EITHER PARTY HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF OR DAMAGE TO REVENUES, PROFITS, OR GOODWILL, OR FOR OTHER SPECIAL, INCIDENTAL, INDIRECT, COVER, PUNITIVE, AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM THE FURNISHING, PERFORMANCE, OR USE OR LOSS OF USE OF THE SERVICES HEREUNDER, INCLUDING ANY INTERRUPTION OF BUSINESS, WHETHER RESULTING FROM BREACH OF CONTRACT OR BREACH OF WARRANTY OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL 7T’S LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES TO CUSTOMER OR ANY THIRD PARTY RESULTING FROM ANY CAUSE WHATSOEVER HEREUNDER EXCEED THE FEES PAID IN THE PRECEDING TWELVE MONTH PERIOD FOR THE SERVICES WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. CUSTOMER UNDERSTANDS AND AGREES THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.
7T Services are intended for use by businesses and organizations and not for consumer purposes. To the maximum extent permitted by law, Customer acknowledges and agrees that consumer laws do not apply. If however any consumer laws (e.g., in Australia, the Competition and Consumer Act 2010 (Cth)) do apply and cannot otherwise be lawfully excluded, nothing in these Terms will restrict, exclude or modify any statutory warranties, guarantees, rights or remedies a User may have, and 7T’s liability is limited (at its option) to the replacement, repair or resupply of the Services or the pro-rata refund to Customer of pre-paid fees for your subscription covering the remainder of the term.
The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Agreement between the Parties, and the Parties have relied on these limitations in determining whether to enter into this Agreement and the order for the Services.
- Dispute Resolution. Before commencing any legal enforcement action regarding this Agreement, arbitration proceeding or other legal action in respect of this Agreement, or before terminating this Agreement (any such action, a “Litigation”), each Party agrees that it will promptly notify the other Party in writing of its intention to initiate Litigation and of its reasons for doing so. No Litigation will be commenced by either Party unless and until (a) a senior management official of the Party proposing the Litigation reviews the dispute, disagreement or other reasons underlying the proposed Litigation; (b) the Parties attempt to hold a meeting to try to resolve the dispute, disagreement or other reasons underlying the proposed Litigation; and (c) if such a meeting is held, a letter is sent by the Party proposing the Litigation to the other Party stating that the Parties were unable to resolve the matters in dispute. The Parties agree to waiver of a jury trial and consent to the exclusive jurisdiction of the courts in Dallas County, Texas to resolve any dispute hereunder. However, either party may initiate Litigation for equitable relief in any court to protect against an actual or threatened violation of its confidentiality or intellectual property rights, and 7T may initiate Litigation in any court to compel payment due hereunder. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
17.1 Exclusions. No terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation outside of the Order Forms will be incorporated into, modify, amend, or form any part of the Agreement, and all such terms or conditions are rejected and be of no force or effect. Customer will be responsible for notifying Users of those conflicts or inconsistencies and the terms set forth herein will be binding on all Users.
17.2 Modifications. As our business evolves, we may change these Terms or any policies referenced herein. If we make a material change to the Terms or any referenced policy, we will provide you with reasonable notice prior to the change taking effect by emailing the notice address or other associated with your account or posting notification in the Application or on our website. You can review the most current version of the Terms or the related policies at any time by visiting the webpage on which these Terms or the referenced policies appear. Any material revisions to these Terms will become effective on the date set forth in our notice, and all other changes will become effective on the date we publish the change. If you use the Services after the effective date of any changes, your use will constitute your acceptance of the changes. If you object to the material modification, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the Terms prior to modification for the remainder of your then-current Subscription Period. If you are outside the period for providing notice of non-renewal (i.e. you have fewer than thirty (30) days remaining on your then-current Subscription Period), and you object to the modification(s), please contact us to discuss your renewed Subscription. Upon any renewal, the then-current Terms published by us on our website will apply. No other modification, amendment, waiver or other alteration of this Agreement (including conflicting terms in a purchase order or other customer issued document) may be made except by mutual agreement in writing.
- Compliance with Laws; Export. Both Parties will comply with all U.S. state and federal laws (where applicable) with respect to the Services. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws related to your use of the Services as they pertain to export control, including compliance with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Services to prohibited countries or individuals or permit use of the Services by prohibited countries or individuals.
- Governing Law; Venue; Attorneys’ Fees. All issues related to this Agreement will be governed and construed by the laws of the State of Texas, without regard to conflicts of laws rules or the United Nations Convention on the International Sale of Goods. Venue for any legal action or arbitration brought to enforce the Agreement shall be consistent with Section 16, Dispute Resolution, above. The prevailing Party in any Litigation brought to enforce this Agreement shall be entitled to the recovery of its reasonable attorneys’ fees and costs from the losing Party, in addition to any other remedies permitted under this Agreement or applicable law.
20.1 Severability. In the event that any provision of this Agreement for any reason shall be held illegal, unenforceable, or invalid, the remaining provisions hereof shall remain in full force and effect and the affected provision shall be modified in a manner which comes closest to the intention of the Parties at the time the original provision was agreed upon
20.2 Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party. However, either Party may assign this Agreement to any parent, affiliate, or subsidiary of such Party, or to any successor to the business of such Party, without the other Party’s consent so long as the assignee agrees in writing to assume all of the rights and obligations of the assigning Party hereunder.
20.3 Headings. The various headings in this Agreement are inserted for convenience only, and shall not affect the meaning or interpretation of this Agreement.
20.4 Survival. All terms and provisions of this Agreement which should by their nature survive the termination of this Agreement shall so survive (including without limitation disclaimer of warranties, ownership of data, payments, relationship of parties, confidentiality, intellectual property, indemnification, limitation of liability, dispute resolution, notices, governing law/venue, and survival). The failure of either Party to insist on the strict performance of any terms, covenants and conditions of this Agreement at any time, or in any one or more instances, or its failure to take advantage of any of its rights shall not be construed as a waiver or relinquishment of any such rights or conditions at any further time and shall in no way affect the continuance in full force and effect of this Agreement.
20.5 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right or entitlement under this Agreement.
20.6 Notices. Except as otherwise provided in this Agreement, all notices to Customer will go to the notice email listed in the Order Form unless otherwise indicated. Notices regarding non renewal, or any other issue other than legal issues to 7T shall go to firstname.lastname@example.org Notices to 7T regarding legal issues must be sent to email@example.com with a copy to Seven Tablets, Inc., 16803 Dallas Parkway, Suite 300, Addison, TX 75001 via overnight courier (i.e. FedEx, DHL, etc) or U.S Postal Service, postage prepaid, or registered mail with a return receipt requested. A notice will be deemed to have been duly given (a) the day after it is sent, in the case of a notice sent through email, with a proof of delivery receipt returned for notice of legal issues or non-renewal emails; and (b) the day delivered as indicated by the courier or US. Postal Service notice of delivery receipt. If electronic notice fails to return a valid proof of delivery, another type of notice is required.
We may give electronic notices by general notice via the Subscription Service, where available, and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. Either party may update its notice address by emailing the other party consistent with this section.
20.7 Publicity. Customer grants us the right to use Customer’s company name and logo as a reference on our website and in other public or private communications with our existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time.
20.8 Force Majeure. Neither Party shall be liable for failure to perform, nor be deemed to be in default, under this Agreement for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to failure of performance by the other Party, acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquake, riot, insurrection, civil disturbance, sabotage, embargo, blockade, acts of war, or power failure. In the event of such delay, the date of delivery or time of completion will be extended by a period of time reasonably necessary to overcome the effect of any such delay.