Last Revised: June 20, 2018
IMPORTANT: This Terms of Service Agreement (the "Agreement") is binding and enforceable between you ("Customer") and alive5, Inc., a Delaware C Corporation ("alive5" or "Supplier"). "You" refers to the entity or organization using the Application and/or Services described in this Agreement. By signing an order form to use the Application and/or to receive Services, you, the Customer, are accepting and agreeing to be bound by this Agreement in full. You shall inform all Users of the Application of the terms and conditions of this Agreement and your use of the Application and/or Services of alive5 is an express acknowledgment that you have read and are bound by this Agreement.
1.1. "Application" means the software program supplied by alive5 to Customer and/or the software and content that are actively displayed on alive5’s website.
1.2. "Confidential Information" means all confidential information disclosed by or otherwise obtained from a party to or by the other party, whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
1.3. "Customer Data" means the data created or inputted by Customer or its Users for the purpose of using an Application or facilitating Customer’s use of an Application.
1.4. "Professional Service" means any and all software implementation, training, configuration, data migration, and consulting service performed by or on behalf of alive5 for Customer pursuant to this Agreement.
1.5. "Services" means each Application and Professional Service provided by alive5 to Customer.
1.6. "Submissions" means any type of communication that might be sent by Customer or any website visitor to alive5, including, but not limited to, any “letter to the editor,” “complaint” letter, or “suggestion” letter.
1.7. "Subscription Fees" means any fees relating to Services and the Application.
1.8. "Users" means individuals who are authorized by Customer to use the applicable Application and individuals who interact with Customer, its Affiliates, and or its Agents through the Application.
1.9. "Website Visitor" means individuals who enter or visit the alive5 website and/or individuals who view any portion of the alive5 website.
2.1. Acceptable Use Policy – alive5 Website.
2.1.1. Generally. By visiting alive5’s website, Website Visitor and/or Customer agrees to the following:
126.96.36.199. Website Visitor and/or Customer may not violate the Applicable Law of any jurisdiction while visiting alive5’s website;
188.8.131.52. Website Visitor and/or Customer may not harass or cyber stalk any user of alive5’s Application or Services or any alive5 website visitor;
184.108.40.206. Website Visitor and/or Customer may not transmit any information or content via the alive5 website that, in alive5’s sole discretion, are obscene, indecent, defamatory, hateful, threatening, or intolerant in nature or in violation of the Applicable Law of any jurisdiction;
220.127.116.11. Website Visitor and/or Customer may not upload any material that is harmful to alive5’s other customers’ computers or that is reasonably objectionable to any of alive5’s other customers.
18.104.22.168. Website Visitor and/or Customer may not falsely represent itself as another person or as a representative of a business or entity that Website Visitor and/or Customer does not actually represent;
22.214.171.124. Website Visitor and/or Customer may not falsely represent its professional or business credentials or Website Visitor’s and/or Customer’s professional background;
126.96.36.199. Website Visitor and/or Customer may not: (a) use any automated scripts or “robots” to access, copy, or manipulate any content provided on the alive5 website; (b) engage in denial of service attacks upon the servers that publish the alive5 website; and/or (c) engage in any activity that uses more than .01 percent of the hardware and software infrastructure of the alive5 website.
188.8.131.52. Website Visitor and/or Customer may not violate any rule, requirement, or guideline relating to customer conduct as posted by alive5 on the alive5 website or made known to Website Visitor and/or Customer by alive5 in any way.
184.108.40.206. Website Visitor and/or Customer is not under the age of eighteen (18) years and is of adult age in Website Visitor’s and/or Customer’s jurisdiction, and is permitted by that jurisdiction’s Applicable Law to use the alive5 website. Parents or guardians of minors may use the alive5 website on the minor’s behalf, but said parents or guardians are solely responsible for the direct supervision of the minor while the minor is visiting the alive5 website.
2.1.2. Content Issues. Website Visitor and/or Customer acknowledges that alive5 is not responsible for any content provided to the public by those individuals, groups, or customers who engage with or use the alive5 website and understands and agrees that use of the alive5 website may subject Website Visitor and/or Customer to the risk of viewing or receiving obscene, indecent, misleading, fraudulent, racist, intolerant, harmful, or otherwise objectionable content and files.
2.1.3. Links to Third Party Websites. Website Visitor and/or Customer acknowledges that alive5 provides links to third party websites, but that alive5 is not responsible for the content of such third-party websites or their terms, conditions, or privacy policies. Website Visitor and/or Customer acknowledges that it must carefully review the terms, conditions, and privacy policies of all websites prior to use and assumes all risk of using third-party websites. Furthermore, Website Visitor and/or Customer understands and agrees to not hold alive5 responsible for any content provided on the alive5 website by third parties that may infringe on intellectual property rights, rights of privacy or publicity, or any rights of any nature in any jurisdiction.
2.1.4. Typographical Errors. Website Visitor and/or Customer acknowledges that the alive5 website may contain typographic errors or mistakes, and Website Visitor and/or Customer acknowledges that alive5 disclaims any responsibility for such errors.
2.1.5. Submissions. All Website Visitor and/or Customer Submissions (except personal information) become the property of alive5 and may be published by alive5 in any matter that alive5 deems to be appropriate, including via all forms of media and publication. Website Visitor and/or Customer is solely responsible for the content of all Submissions, including any violation of copyright, privacy, fraud or other Applicable Laws and regulations. Website Visitor and/or Customer acknowledges and agree to hold alive5 harmless and to defend and indemnify alive5 in accordance with Section 7 (Indemnification) from any civil actions filed or threatened to be filed by any third party or entity who alleges that Website Visitor’s and/or Customer’s Submissions support a legal cause of action.
2.1.6. Foreign Usage. alive5 makes no representation that usage of the alive5 website, or the content provided therein, will not violate the laws of Website Visitor’s and/or Customer’s local jurisdiction. Website Visitor and/or Customer is responsible for the laws of its own jurisdiction, especially if Website Visitor and/or Customer is accessing the alive5 website from outside the United States of America.
2.2. Acceptable Use Policy – alive5 Application & Services.
2.2.1. Generally. Customer may not , and may not permit any third party to, use alive5’s Application or Services in violation of (a) the CTIA Messaging Principles and Best Practices Guidelines; (b) the CTIA Short Code Monitoring Handbook; or (c) any other applicable laws, rules, and regulations, including, but not limited to, those laws, rules, and regulations applicable to data privacy and use and consumer protection.
2.2.2. Programs. Customer shall be responsible for ensuring that all programs used in conjunction with alive5’s Application or Services (including advertising or promotional campaigns, contests, drawing, raffles, lotteries, etc.) (“Programs”), including the administration thereof, comply with all applicable laws, rules, and regulations.
2.2.3. Enforceable Terms of Service. Customer shall be responsible for ensuring that all Users who are engaged by Customer through the alive5 Application are required to agree to the Customer’s Terms of Service and that Customer at all times has in effect an enforceable Terms of Service that includes certain provisions that are intended to protect alive5. Any and all versions of the Terms of Service implemented by Customer must be provided to alive5 via written notice at least thirty (30) days before they go into effect and shall include at least the following provisions:
220.127.116.11. An express representation and warranty that the User is supplying his or her own phone number, and not someone else’s, to Customer, and that the User agrees to provide Customer with notice if he or she is no longer the primary user of that number;
18.104.22.168. A dispute resolution and/or jurisdiction provision expressly providing that User waives the right to any class action litigation and/or jury trials and expressly providing that User agrees to resolve all disputes via confidential arbitration in which the arbitrator will apply the substantive law of the Federal Judicial Circuit in which the Customer’s principle place of business is located for any and all TCPA related claims;
22.214.171.124. An opt-out provision expressly providing that the User agrees to opt-out of receiving any further messages on the alive5 Application via one or more explicitly designed methods, which, at a minimum, shall include the following: (a) any of the opt-out keywords that are universally recognized, including but not limited to STOP, STOPALL, UNSUBSCRIBE, CANCEL, END, or QUIT; and (b) one or more alternative opt-out method, including, but not limited to, via a web-based portal, telephone number, and/or email address established by the Customer for the purpose of opting-out Users. The opt-out provision must also expressly stipulate that any opt-out method not expressly provided in the Customer’s opt-out provision is unreasonable;
126.96.36.199. A provision expressly providing that alive5 is a third-party beneficiary of the Customer’s arbitration, class action, and jury waiver provisions;
188.8.131.52. An age restriction provision expressly providing that the User may not use or engage with the alive5 Application if User is under thirteen (13) years of age and that, if User is between the ages of thirteen (13) and eighteen (18) years of age, User must have his or her parent’s or legal guardian’s permission to use or engage with the alive5 Application; and
184.108.40.206. A prohibited content provision expressly providing that the User is prohibited from using the alive5 Application or its Services in connection with any of the following types of content:
220.127.116.11.1. Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
18.104.22.168.2. Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
22.214.171.124.3. Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
126.96.36.199.4. Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; and
188.8.131.52.5. Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act.
2.2.4. Telephone Consumer Protection Act ("TCPA"). Customer is solely responsible and liable for ensuring that its use of alive5’s Application or Services comply with the TCPA, 47 U.S.C. § 227, and all implementing rules, orders, and regulations of the Federal Communications Commission, 47 C.F.R. § 64.1200 et seq., and the Federal Trade Commission, 16 C.F.R. § 310, including, without limitation, ensuring that all phone numbers and other personal information used in connection with the alive5 Application or Services have been collected in accordance with the TCPA, ensuring that sufficient notice and consent has been received and maintained by Customer in connection with its use of alive5’s Application or Services under the Agreement, and for the preparation and distribution of all messages, content, and other materials delivered to the Customer’s customers and other recipients by and through the alive5 Application or Services.
2.2.5. Payment Card Industry Data Security Standard ("PCI DSS"). While alive5 complies with the basic PSI DSS requirements, Customer acknowledges and agrees that SMS and MMS are not one-hundred percent secure methods by which to transmit information subject to PCI DSS. Accordingly, Customer agrees to not hold alive5 liable for any damages arising from the transmittal of information subject to PCI DSS over the alive5 Application.
2.2.6. Prohibited Content. Customer acknowledges and agrees to not hold alive5 liable for any prohibited content that it or its Users send over the alive5 Application or via alive5’s Services, including, but not limited to, content that may be obscene, indecent, misleading, fraudulent, racist, intolerant, harmful, or otherwise objectionable. In addition to, and without limitation to, the terms listed above, Customer acknowledges that alive5 prohibits any use of the alive5 Application or its Services in connection with any of the following types of content:
184.108.40.206. Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
220.127.116.11. Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
18.104.22.168. Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
22.214.171.124. Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received; and
126.96.36.199. Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act ("HIPAA") or the Health Information Technology for Economic and Clinical Health Act ("HITECH Act").
2.2.7. Age Restriction. In order to use the alive5 Application and/or its Services, Customer must be eighteen (18) years of age or older. Customer acknowledges and agrees that Customer is not under the age of eighteen (18) years and is of adult age in Customer’s jurisdiction, and is permitted by that jurisdiction’s Applicable Law to use alive5’s Application and Services.
2.3. Termination of Service. alive5 may immediately terminate this Agreement and/or any and all Service provided to Customer (either as a group or as an individual) if: (a) Customer breaches any term or condition of the General Rules listed in Section 2, or any term or condition in the Agreement hereunder, and fails to cure the breach within ten (10) days after receiving written notice of the breach; or (b) if Customer becomes subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors by written notice. If alive5 terminates Service to Customer, alive5 will deactivate Customer’s account. Termination of this Agreement and any Service provided shall be in addition to and not in lieu of any equitable remedies available to alive5.
2.4. Refusal of Service. alive5 reserves the right to refuse service to any person or entity for any reason which alive5, in its sole discretion, deems to be appropriate.
2.5. Reservation of Rights. alive5 reserves the right to determine any violation of the General Rules listed in Section 2 at its sole discretion.
3.1. Subscription Term.
3.1.1. All Subscriptions Fees for alive5’s Application and Services will continue and renew automatically for so long as Customer’s subscription is in place and all applicable fees are timely paid or until Customer provides alive5 with notice of its decision to change or otherwise cancel its subscription renewal, as described in Section 3.2.2.
3.1.2. Customer will have the choice of signing up for a monthly, quarterly, or annual Subscription Term. The Billing and Payment Cycle for the monthly, quarterly, or annual Subscription Term will be as follows:
188.8.131.52. Monthly Subscription Fee. Customer’s credit card or selected payment method will be charged at the time of purchase for Customer’s first month of use. After Customer’s initial payment, Customer’s credit card or selected payment method will be automatically charged on the same day of the subsequent month for the use of alive5’s Application and Services, until Customer cancels its subscription.
184.108.40.206. Quarterly Subscription Fee. Customer’s credit card or selected payment method will be charged at the time of purchase for the entire quarterly Subscription Fee amount. After Customer’s initial payment, Customer’s credit card or selected payment method will be automatically charged on the same date of each subsequent quarter for the use of alive5’s Application and Services, until Customer cancels its subscription.
220.127.116.11. Annual Subscription Fee. Customer’s credit card or selected payment method will be charged at the time of purchase for the entire annual Subscription Fee amount. Customer will receive a notification at the email address supplied by Customer thirty (30) days prior to Customer’s annual subscription expiration date, which will give Customer the option to cancel the annual subscription. If Customer takes no action, its subscription will automatically renew for an additional one-year period.
3.2. Billing Disputes.
3.2.1. In the event Customer would like to dispute any bill it received from alive5, Customer acknowledges and agrees to provide alive5 with written notice within thirty (30) days of being charged by alive5 or its agent. If any issues or disputes are not brought to alive5’s attention within this timeframe, Customer waives its right to said dispute. Any billing dispute is further governed by Section 10 (Jurisdiction).
3.3.1. Cancellation by alive5. alive5 may immediately cancel Customer’s Subscription Term without notification to Customer under the following circumstances:
18.104.22.168. Customer’s credit card is canceled or otherwise terminated, and alive5 is not immediately provided with another valid credit card or alternative form of payment by Customer;
22.214.171.124. Customer violates and/or fails to comply with any of the terms and conditions set forth in this Agreement.
3.3.2. Cancellation by Customer. Customer may cancel its subscription to alive5’s Application and Services at any time by accessing Customer’s alive5, Inc. Member Account. Cancellation instructions are available through the Member Portal under “Administrator Console.” Customer may also send a cancellation request via email to alive5, Inc.’s Customer Care Department.
4.1.1. Unless alive5 grants Customer permission, Customer shall not, and shall not permit any third party to: (a) modify, copy, publish, exchange, trade, broadcast, or create derivative works based on alive5’s Application or Services; (b) "frame" or "mirror" any content forming part of the Application or Services; (c) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Application; or (d) access the Application in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions, or graphics of the Application.
4.2. alive5’s Intellectual Property.
4.2.1. Subject to any limited rights expressly granted hereunder, alive5 reserves all rights, title, and interest in and to the Application and the Services, including all related patent, copyright, trademark, and other intellectual property rights that are protected by United States and international copyright, patent, and trademark regulations and laws. No intellectual property rights are granted to Customer hereunder other than as expressly set forth herein.
4.2.2. In addition, alive5 shall own all rights, title, and interest, including all intellectual property rights, in and to any improvements to the Application, including without limitation those relating to any new alive5, Inc. programs, upgrades, modifications, refinements, or enhancements (collectively, "Improvements") developed by or for alive5 in connection with providing the Application to Customer, even when such Improvements result from Customer’s request.
4.3.1. All trademarks presented on or via the alive5 Application, website, or documentation are owned by alive5 and may not be used by Customer in any way without alive5’s prior written consent.
5.1. Confidential Information - Definition.
5.1.1 Customer’s Confidential Information includes Customer Data. alive5’s Confidential Information includes each Application, all documentation and the product of all Services, and alive5’s financial, security, architectural, or similar information. The Confidential Information of each party shall include the terms and conditions of this Agreement and any revised Agreement entered into, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by or on behalf of such party.
5.2. Protection of Confidential Information.
5.2.1 Each party agrees to maintain Confidential Information in confidence and not to disclose it or any portion of it, except to its and its Affiliates’ employees and consultants who have a need to know such Confidential Information and are bound by obligations of confidentiality similar to those herein, for a period of three (3) years after the expiration or termination of this Agreement, using the same care and discretion to avoid disclosure, publication, or dissemination of the Confidential Information as it uses with its own confidential or proprietary information, but in no event less than reasonable care. Notwithstanding the foregoing, neither party shall have liability to the other with regard to any Confidential Information that is required to be disclosed by law or court order, provided that the party that received the Confidential Information ("Receiving Party") shall provide reasonable advance notice to enable the party that provided the Confidential Information ("Disclosing Party") to seek a protective order or otherwise prevent such disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
6.1. Mutual Warranties.
6.1.1. Each party represents and warrants that: (a) it has the legal power to enter into the Agreement; (b) the signatory hereto has the authority to bind the Customer; and (c) when executed, the Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance the terms listed hereto.
6.2. Customer Warranties.
6.2.1. Customer represents and warrants that: (a) the Customer Data does not and will not infringe on any copyright, patent, trade secret, or other proprietary right held by any third party and was not and will not be gathered or used by Customer in a manner that violates Applicable Law; and (b) the Customer will not use the Platform in a manner that violates Applicable Law, including, but not limited to, the Telephone Consumer Protection Act or similar state and federal laws.
6.3.1. EXCEPT AS SET FORTH IN SECTION 6.1 (Mutual Warranties), EACH APPLICATION, ACCESS THERETO, THE DOCUMENTATION, AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND ALIVE5 AND ITS AGENT (A) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) DO NOT WARRANT THAT ACCESS TO ANY APPLICATION WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE OR PROVIDED THROUGH ANY APPLICATION IS ACCURATE, COMPLETE, OR FREE OF VIRUSES OR OTHER HARMFUL CONTENTS OR COMPONENTS; AND (C) SHALL IN NO EVENT BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY INACCURACY, ERROR, OR OMISSION IN, OR LOSS, INJURY, OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS, OR INTERRUPTIONS OF ANY APPLICATION, DOCUMENTATION, OR SERVICES. IF ANY WARRANT DISCLAIMER IN THIS SECTION IS INVALID, ILLEGAL, OR UNENFORCEABLE IN ANY JURISDICTION, SUCH INVALIDITY, ILLEGALITY, OR UNENFORCEABILITY SHALL NOT AFFECT ANY OTHER WARRANTY DISCLAIMER OR PROVISION OF THIS SECTION OR INVALIDATE OR RENDER UNENFORCEABLE SUCH WARRANTY DISCLAIMER IN ANY OTHER JURISDICTION.
7.1 Indemnification by Customer.
126.96.36.199. Customer shall indemnify, hold harmless, and defend alive5 and any of its officers, directors, employees, or affiliates against any and all losses, liabilities, claims, causes of action, demands, or damages of every kind brought by a third party, including all judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including expenses of litigation or arbitration, court or arbitration costs and attorneys' fees and other professional fees that alive5 may incur as a result of such third-party claims, demands, or causes of action (collectively, "Losses") that relate to or arise out of (a) Customer’s use of the Application or Services in alleged violation of this Agreement or applicable law; (b) any of Customer’s acts or omissions related to this Agreement, or (c) any claim that Customer’s Data infringes or misappropriates the intellectual property rights of a third party.
188.8.131.52. Subject to the allocation provisions of Section 7.2, Customer’s indemnification obligations in this Section 7.1 shall apply regardless of who may be at fault or otherwise responsible under any statute, rule, or theory of law, including but not limited to theories of strict liability, including but not limited to claims relating to the Telephone Consumer Protection Act or similar state and federal laws, and even though the subject loss, damage, or injury may have been caused in whole or in part by the concurrent, active, or passive negligence of alive5 or a defect in the Services.
7.1.2. alive5’s Notice of Third-Party Claims. alive5 shall give Customer prompt written notice (a "Claim Notice") of any Losses or discovery of facts on which alive5 intends to base a request for indemnification under Section 7.1. alive5’s failure to provide a Claim Notice to Customer under this Section 7.1.2 does not relieve Customer of any liability that Customer may have to alive5, but in no event shall Customer be liable for any Losses that result directly from a delay in providing a Claim Notice, which delay materially prejudices the defense of the related third-party claim. Each Claim Notice must contain a description of the third-party claim and the nature and amount of the related Losses (to the extent that the nature and amount of the Losses are known at the time). alive5 shall furnish promptly to Customer copies of all papers and official documents received in respect of any Losses. Customer’s duty to defend applies immediately, regardless of whether alive5 has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any third-party claim.
7.1.3. Customer Control of Defense. Customer may assume control of the defense, appeal, or settlement of any third-party claim that is reasonably likely to give rise to an indemnification claim under Section 7.1 (an "Indemnified Claim") by sending written notice of the assumption to alive5 on or before seven business days after receipt of a Claim Notice to acknowledge responsibility for the defense of such Indemnified Claim and undertake, conduct, and control, through reputable independent counsel of its own choosing (which alive5 shall find reasonably satisfactory) and at Customer’s sole cost and expense, the settlement or defense thereof.
7.1.4. alive5’s Obligations Regarding Customer’s Control of Defense. If Customer assumes control of the defense under Section 7.1.3, alive5 shall fully cooperate with Customer in connection therewith; and may employ, at any time, separate counsel to represent it, provided that alive5 is solely responsible for the costs and expenses of any such separate counsel.
7.1.5. alive5 Control of Defense. Notwithstanding anything to the contrary in Section 7.1, upon giving written notice to Customer, alive5 may take control of its defense to an Indemnified Claim with counsel of its choosing if:
184.108.40.206. the Indemnified Claim is one for which alive5 properly gave Customer a Claim Notice under Section 7.1.2, and Customer fails to timely assume the defense or refuses to defend the Indemnified Claim under Section 7.1.3;
220.127.116.11. the Indemnified Claim seeks an injunction or other equitable relief against alive5 that has a reasonable potential of impacting, directly or indirectly, customers of alive5 other than Customer; or
18.104.22.168. alive5 reasonably determines that there are one or more legal or equitable defenses available to it that are different from or in addition to those available to Customer and that counsel for Customer may not fully or adequately represent the interests of alive5.
7.1.6. Customer’s Obligations Regarding alive5’s Control of Defense. If alive5 assumes control of the defense under Section 7.1.5, Customer shall reimburse alive5 promptly and periodically for the costs properly incurred in defending against the Indemnified Claim (including its attorneys’ fees and expenses) and remain responsible to alive5 for any Losses indemnified under Section 7.1.
7.1.7. Settlement of Indemnified Claims by Customer. Customer shall give prompt written notice to alive5 of any proposed settlement of an Indemnified Claim. Customer may not, without alive5’s prior written consent, settle or compromise any indemnification-related claim or consent to the entry of any indemnification-related judgment unless such settlement, compromise, or consent:
22.214.171.124. includes an unconditional release of alive5 from all liability arising out of such claim;
126.96.36.199. does not contain any admission or statement suggesting any wrongdoing or liability on behalf of alive5; and
188.8.131.52. does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of alive5.
7.1.8. Settlement of Indemnified Claims by alive5. alive5 may not settle or compromise any claim or consent to the entry of any judgment regarding which it is seeking indemnification hereunder without the prior written consent of Customer, which Customer shall not unreasonably withhold, condition, or delay, unless:
184.108.40.206. the Indemnified Claim is one for which alive5 properly gave Customer a Claim Notice under Section 7.1.2, and Customer failed to assume the defense or refused to defend the Indemnified Claim under Section 7.1.3; or
220.127.116.11. such settlement, compromise or consent:
18.104.22.168.1. includes an unconditional release of Customer from all liability arising out of such claim;
22.214.171.124.2. does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Customer; and
126.96.36.199.3. does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of Customer.
7.2. Allocation of Liability for Certain Judgments or Awards. In the event a final judgment or award is entered against both Customer and alive5 and such judgment or award includes a finding that alive5 is liable in whole or in part for any enhanced, exemplary, or punitive damages because of reckless, wanton, or willful misconduct, then the parties’ respective liability shall be as follows:
7.2.1. In the event that only alive5 is found to have engaged in conduct that is determined to be reckless, wanton, or willful, Customer shall have no obligation to indemnify alive5 for any such judgments or awards.
7.2.2. In the event that both alive and Customer are found to have engaged in conduct that is determined to be reckless, wanton, or willful, alive5’s sole obligation shall be to contribute to the payment of any enhanced, exemplary, or punitive damages in an amount proportional to its fault. Customer’s duty under Section 7.1 to defend and indemnify alive5 for all liability that would have resulted from acts deemed to be negligent shall not be affected by this Section 7.2.
8.1. Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ALIVE5 WILL NOT HAVE ANY LIABILITY TOWARDS CUSTOMER FOR ANY DAMAGES ARISING FROM CUSTOMER’S USE OF THE ALIVE5 WEBSITE, OR ANY APPLICATIONS AND/OR SERVICES THAT ALIVE5 PROVIDES TO CUSTOMER, WHETHER THE CAUSE OF ACTION BE BASED ON TORT, BREACH OF CONTRACT, OR ANY OTHER LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, PUNITIVE, ACTUAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR DUE TO ANY CAUSE OF ANY NATURE. BY ENTERING INTO THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES TO HOLD ALIVE5 HARMLESS FROM ANY LOSS OR HARM OF ANY NATURE DUE TO CUSTOMER’S USAGE OF THE ALIVE5 WEBSITE, OR ANY APPLICATIONS AND/OR SERVICES THAT ALIVE5 PROVIDES TO CUSTOMER, WHETHER DIRECTLY OR INDIRECTLY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.1. Customer shall, at its own cost and expense, procure and maintain in full force and effect during the Term of this Agreement, policies of insurance, of the types and in the minimum amounts reasonably necessary and appropriate in its industry to perform its obligations under this Agreement, with a responsible insurance carrier duly qualified in those states (locations) where the Application and Services are to be performed or used. Unless alive5 otherwise agrees in writing, a complying policy will include a coverage rider expressly providing for coverage of TCPA claims and will include a “most favored jurisdiction” provision. Upon alive5’s request, Customer will provide its certificate of insurance.
10.1. Exclusive Dispute Resolution Mechanism. The parties shall resolve any and all disputes, controversies, or claims arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a "Dispute"), under the provisions of Sections 10.1 through 10.3. The procedures set forth in Sections 10.1 through 10.3 shall be the exclusive mechanism for resolving any Dispute that may arise from time to time, and Sections 10.1 through 10.3 are express conditions precedent to binding arbitration of the Dispute.
10.2. Negotiations. A party shall send written notice to the other party of any Dispute ("Dispute Notice"). The parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves, including at least one negotiation session attended by the party’s Chief Operations Officer, his/her designee, or a party’s representative with sufficient authority to negotiate and settle the Dispute on behalf of the corresponding party.
If the Parties cannot resolve any Dispute via the negotiation process for any reason, including, but not limited to, the failure of either party to agree to any settlement, within thirty (30) calendar days after the negotiations under this Section started, either Party may commence binding arbitration in accordance with the provisions of the following Section.
10.3. Arbitration. If the negotiations mentioned in the previous Section do not resolve the Dispute, the parties agree to submit the Dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the State of Texas, without regard to its conflict of laws rules. The venue of any such arbitration shall be in Houston, Texas. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the Dispute. If the parties do not agree on an arbitrator within thirty (30) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in Section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration, or the papers, documents, or evidence related thereto, without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a Dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial.
11.1. Force Majeure. Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default that is caused by conditions beyond its control, including, but not limited to, acts of God, earthquakes, fire, flood, epidemics, labor disputes, changes in law, regulations or government policy, government restrictions (including the denial or cancellation of any export or other necessary license), riots, wars, insurrections, and/or any other cause beyond the reasonable control of the party whose performance is affected (including transportation difficulties, acts or omissions of vendors or suppliers, or mechanical, electronic, internet service provider, or communications failure). We are not responsible for server downtimes under any circumstances.
11.2. Notices. Any notice or report required or permitted to be given or made under this Agreement by either party will be in English, in writing, and be deemed to have been fully given and received (a) when delivered personally; (b) when send by confirmed facsimile; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (d) one (1) day after deposit with a commercial overnight carrier, with written verification of such receipt; or (e) to the extent expressly permitted in this Agreement, one (1) day after being sent via email. Notices will be sent to the parties at the addresses set forth in this Agreement or such other address as a party may specify in writing to the other. All notices to alive5, Inc. must be made to the address listed below and all notices to Customer must be made to the mailing or email address of Customer’s primary contact with alive5.
alive5 Notice Address:
ATTN: Legal Department
2100 West Loop South, Suite 900
Houston, Texas 77027
alive5 may broadcast notices or messages through the applicable Application or by posting notices or messages on alive5’s website to inform Customer of changes to the Application and/or Services or other matters of importance; alive5 shall inform Customer of such broadcast by e-mail or surface mail.
11.3. Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.4. Severability. Should any term and condition hereof be declared illegal or otherwise unenforceable, it shall be severed from the remainder of this Agreement without affecting the legality or enforceability of the remaining portions.
11.5. Survival. Section 3 (Subscription Term, Subscription Fees, and Payment), Section 5 (Confidentiality), Section 7 (Indemnification), Section 8 (Limitation of Liability), Section 10 (Jurisdiction), and Section 11 (General) shall survive the termination or expiration of this Agreement.