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These Terms and Conditions accompany the Order Form by and between WaJao Inc. dba Retention Science (“Retention Science”) and you (“Partner”) and collectively set forth the entire understanding of the parties with respect to the subject matter described herein and constitute the entire agreement between the parties. Retention Science and Partner are each referred to herein as a “Party” and collectively as the “Parties”. 1. Definitions. For purposes of this Agreement, certain terms will have the meanings ascribed to them in this section.
1.1 “Retention Science Admin Console” means the web based administrative console, provided and hosted by Retention Science, that allows Partner to access and view the Retention Science Data.
1.2 “Retention Science API” means the application program interface(s) provided by Retention Science to Partner hereunder.
1.3 “Retention Science Content” means any content provided by Retention Science under this Agreement, including without limitation images, text, creative, audio, video, internet links, software, and messaging, but excluding the Partner Content.
1.4 “Retention Science Data” means data relating to the use of the Retention Science Platform such as timing optimization information, and other similar information collected by Retention Science and made available to Partner via the Retention Science Platform. Retention Science Data will be made available via API and the Retention Science Admin Console.
1.5 “Retention Science Marks” means all trademarks, service marks, trade dress, trade names, domain names, corporate names, brand names, proprietary logos, symbols, artwork, and all other indicia of origin, whether or not registered, under which Retention Science offers its products or services.
1.6 “Retention Science Platform” means the online service operated by Retention Science which permits Users to manage marketing campaigns incorporating timing optimization, dynamic offers, subject line A/B testing, smart segmentation, product recommendations, life-cycle marketing management, real-time abandon cart campaigns, onsite offers, mobile offers, mobile product recommendations, and onsite product recommendations through the Partner Marketing Channels. The Retention Science Platform includes, without limitation, access to Retention Science API, the Retention Science Data, Retention Science analytics, and the Retention Science Admin Console.
1.7 “Retention Science User” means an individual who utilizes the Retention Science Platform and Retention Science Admin Console to manage marketing campaigns via Partner Marketing Channels.
1.8 “Confidential Information” means any information disclosed by one Party to the other that is either non-public, confidential or proprietary in nature, including without limitation, information related to any research, products, services, customers, markets, concepts, software, developments, inventions, processes, designs, engineering or marketing plans, or any other information that, by the nature of the circumstances surrounding its disclosure, ought in good faith to be treated as confidential. Partner’s customer data shall constitute Partner’s Confidential Information. Without limiting the foregoing, the terms of this Agreement, the Retention Science Data, and all non-public aspects of the Retention Science Platform shall be the Confidential Information of Retention Science.
1.9 “Intellectual Property Rights” means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, trademarks, service marks, trade dress, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
1.10 “Partner Content” means any content provided by Partner to Retention Science under this Agreement, including without limitation email templates, logos, text, creative, audio, video, internet links, software, and messaging.
1.11 “Partner Customer Data” means any personal data, including without limitation, names, addresses, telephone numbers, email addresses, and any other information about an individual that is associated with or linked to any of the foregoing data, that Partner submits to Retention Science in connection with this Agreement.
1.12 “Partner Marks” means all trademarks, service marks, trade dress, trade names, domain names, corporate names, brand names, proprietary logos, symbols, artwork, and all other indicia of origin, under which Partner offers its products or services.
1.13 “Partner Marketing Channels” means any channel owned or operated by Partner leveraging the Retention Science Platform for campaigns. This includes, but is not limited to, email service provider, website, storefront, and mobile applications. The Retention Science Platform may only be used on Partner Marketing Channels unless the Parties agree otherwise in writing.
1.14 “Partner Privacy Notice” means Partner’s conspicuously posted privacy notice that is associated with any Partner Marketing Channels operated by Partner. 2. MutualResponsibilities of the Parties.
2.1 Integration and Customization of the Retention Science Platform. Retention Science and Partner will cooperate, mutually agree on, and jointly implement the integration of the Retention Science Platform with the Partner Marketing Channels in order to create targeted marketing campaigns.
3. Retention Science Responsibilities.
3.1 Provision of Services. Retention Science will: (i) provide the Retention Science API: (ii) host and maintain the Retention Science Platform; and (iii) provide and host the Retention Science Admin Console.
3.2 Uptime Guarantee. Retention Science will use commercially reasonable efforts to maintain uptime of 99%, excluding downtime for maintenance, upgrades, repairs and emergency outages. Shall the downtime exceed 1% in any month, as measured by Retention Science and excluding the aforementioned exclusions, Retention Science will pro-rate the monthly service fee (or credited toward future month). Retention Science shall use commercially reasonable efforts to notify Partner of any scheduled downtime.
4. Partner Responsibilities.
4.1 Partner Channels and Content. Partner shall provide, host and maintain the Partner Marketing Channels and shall be responsible for all creation of Partner Content.
4.3 Restrictions. Notwithstanding anything herein to the contrary, Partner may not use the Retention Science Platform in any manner that, in Retention Science’s sole discretion, damages, disables, overburdens, impairs, or gains unauthorized access to any Retention Science products or services, including Retention Science’s servers, computer network, or accounts.
4.4 Partner Privacy Notice. Partner represents, warrants and covenants that it will at all times during the Initial Term and Renewal Terms maintain a Partner Privacy Notice that is associated with or linked to all Partner Marketing Channels, which policy complies with all applicable laws and regulations and which clearly and accurately describes the processing, use and disclosure of all personal information it receives, including Retention Science Data. Partner represents, warrants, and covenants that it does not and shall not violate the Partner Privacy Notice.
5.1 Fees. In consideration for the services provided by Retention Science hereunder, Partner agrees to pay Retention Science the fees set forth in the Order Form (the “Fees”). All Fees are non-refundable.
5.2 Payment Terms. Partner shall pay Retention Science the Fees within thirty (30) days of invoice by wire transfer / ACH or other method mutually acceptable to the Parties.
5.3 Overdue Charges. If any invoiced amount is not received by Retention Science by the due date, then without limiting Retention Science’s rights or remedies, those charges may accrue late interest at (a) the rate of 1.5% of the outstanding balance per month, or (b) the maximum rate permitted by law, whichever is lower.
5.4 Suspension of Service and Acceleration. If any charge owed by Partner under this Agreement or any other agreement for services is thirty (30) days or more overdue, Retention Science may, without limiting its other rights and remedies, accelerate Partner’s unpaid fee obligations under such agreement(s) so that all such obligations become immediately due and payable, and Retention Science may suspend access to all products and services offered by Retention Science under such agreement(s) until such amounts are paid in full, provided that Retention Science will give Partner at least 10 days’ prior notice that its account is overdue before suspending services to Partner.
5.5 Taxes. All Fees are exclusive of, and Partner shall report and pay, all taxes, duties, and assessments, however designated, which are levied or imposed upon such Fees, with the sole exception of taxes based on Retention Science’s net income. Partner agrees to indemnify, defend, and hold Retention Science and its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Partner’s failure to report or pay any such taxes, duties or assessments as may be required by law.
6. Term and Termination.
6.1 Term. Unless earlier terminated as provided in this Section 6, this Agreement will be in effect for the term specified in the Order Form.
6.2.1 By Either Party. This Agreement may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows:
(a) if the other Party fails to perform or observe any material term or condition in this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party; or
(b) if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing.
6.2.2 By Retention Science. Notwithstanding anything to the contrary in this Agreement, Retention Science reserves the right to immediately terminate this Agreement or suspend performance hereunder, in each case without penalty or refund of any kind whatsoever to Partner, (i) if Retention Science reasonably suspects or learns that Partner or the Partner Marketing Channels are infringing on the Intellectual Property Rights of Retention Science or any third party, (ii) in the event that Partner violates or threatens to violate Section 10 hereof, (iii) in the event that Partner violates or threatens to violate any applicable law or regulation, or (iv) if Partner otherwise materially breaches any provisions of this Agreement and such breach is not curable, in the sole discretion of Retention Science.
6.2.3 Effect of Termination.
(a) The following Sections shall survive termination or expiration of this Agreement for any reason: Sections 1, 5 (to the extent payment obligations accrued during the Term), 6.2.3, 8, 9.2, and 13.
(b) All other rights and obligations of the Parties under this Agreement, including any licenses granted hereunder, shall expire upon termination or expiration of this Agreement.
(c) Upon termination of this Agreement, Partner shall immediately delete, destroy or return all originals and copies of any Retention Science Confidential Information, including the Retention Science Data, the Retention Science Content, and all documentation, manuals, instructions and other information associated with the Retention Science Platform and any Retention Science products or services, and, upon request, provide Retention Science with certification thereof.
7.1 API License. Subject to the terms and conditions of this Agreement, Retention Science hereby grants Partner a revocable, non-exclusive, non-transferable (except as otherwise provided herein), non-sublicensable license during the Term to use the Retention Science API solely for the purpose of developing and managing marketing campaigns through the Partner Marketing Channels and the Retention Science Platform, in each case as contemplated in this Agreement.
7.2 Retention Science Data License. Subject to the terms and conditions of this Agreement, Retention Science hereby grants Partner a revocable, non-exclusive, non-transferable (except as otherwise provided herein), non-sublicensable license during the Term to access the Retention Science Data solely through the Retention Science Admin Console and the Retention Science API.
7.3 License Restrictions. Partner shall not (a) reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for the Retention Science Admin Console, the Retention Science API, the Retention Science Platform, sites, services, or technology; (b) use the Retention Science API for the purpose of testing or comparison of the Retention Science Platform or for any purpose competitive with Retention Science’s products and services or for any purpose beyond those described in the Retention Science API’s documentation; or (c) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Retention Science Content. Partner shall not retain any copies of the Retention Science Content.
7.4 Partner Marketing Channel Restrictions. The Partner Marketing Channels shall not contain or promote any products, services, or materials that, Retention Science determines in its sole discretion, constitute, promote or are used for the purpose of dealing in: malicious computer programs or code, counterfeit goods, items subject to U.S. embargo, hate materials or materials urging acts of violence, goods made from protected animal/plant species, recalled goods, hacking, surveillance, interception, or descrambling equipment, cigarettes, drug paraphernalia, illegal goods or activities, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, weapons or weapon accessories, or any other similar purpose.
7.5 Partner Content. Partner hereby grants Retention Science a non-exclusive, royalty-free, worldwide, revocable license, with the right to sublicense, to use, reproduce, publish, distribute, perform and display the Partner Content to the extent required by Retention Science to offer and operate the Retention Science Platform and as otherwise described in this Agreement.
7.6 Partner Customer Data. Partner hereby grants Retention Science a non-exclusive, royalty-free, worldwide, revocable license, with the right to sublicense, to use, reproduce, publish, distribute, perform and display the Partner Customer Data in order to (a) create Retention Science Data based on Partner Customer Data and (b) to integrate, reproduce and use the Partner Customer Data on behalf of Partner through or as part of the Retention Science Platform, in each case, solely for the purpose of providing the Retention Science Platform and its associated functionality to Partner.
7.7 Partner Marks and Campaign Data. Partner hereby grants Retention Science and its corporate parents, subsidiaries, and those under common ownership with Retention Science a non-exclusive, royalty-free, worldwide, revocable license, with the right to sublicense, to use, reproduce, publish, distribute, perform and display the Partner Marks, any testimonials or feedback provided by Partner, and any data regarding the performance of Partner’s marketing campaigns in order to publicly refer to Partner’s relationship with Retention Science and to disclose information about the performance of the Retention Science Platform in relation to Partner’s use of it.
8.1 By Partner. Retention Science acknowledges and agrees that, as between Partner and Retention Science, Partner owns all right, title, and interest in and to the Partner Marketing Channels (excluding the Retention Science Content and Retention Science Marks), Partner Marks, and Partner Content (collectively the “Partner Property”) and the Intellectual Property Rights therein, and nothing in this Agreement will confer on Retention Science any right of ownership or interest in the Partner Property.
8.2 By Retention Science. Partner acknowledges and agrees that, as between Partner and Retention Science, Retention Science owns all right, title, and interest in and to the Retention Science Platform, Retention Science Marks, Retention Science Content, Retention Science Data and the Retention Science API (collectively the “Retention Science Property”) and the Intellectual Property Rights therein, and nothing in this Agreement will confer on Partner any right of ownership or interest in the Retention Science Property. The Parties further agree that all right, title, and interest in and to any joint works created under the Agreement shall vest in and be assigned to Retention Science, and to the extent any such rights vest in Partner, Partner hereby assigns all such rights, title and interest to Retention Science.
8.3 Reservation of Rights. Each Party acknowledges that it obtains no Intellectual Property Rights or licenses by this Agreement except for those expressly granted herein.
9. Representations and Warranties.
9.1 Representations and Warranties. Each Party represents and warrants that it has full power and authority to enter into this Agreement and perform all of its obligations hereunder. Further, Partner represents and warrants (i) that it does not and will not violate any applicable laws, rules, regulations, orders or agreements by which it is bound, including but not limited to the United States CAN-SPAM Act of 2003, the California Consumer Privacy Act, the European Union’s General Data Protection Regulation 2016/679, and any policies, laws or regulations relating to unsolicited emails, spamming, privacy, or advertising, sales, promotional, or telemarketing efforts or practices; (ii) that it has full power and authority to grant the licenses it grants hereunder; and (iii) that the Partner Content and Partner Marks do not infringe or misappropriate any patent, copyright, trademark, or other intellectual property right of any third party.
9.2 DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, (I) NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO SUCH PARTY’S NETWORK, SERVICE, TECHNOLOGY, CONTENT, OR MARKS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR COURSE OF PERFORMANCE; AND (II) EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY’S NETWORK, SERVICE, TECHNOLOGY, CONTENT AND MARKS ARE PROVIDED “AS IS” AND THAT THE OTHER PARTY MAKES NO WARRANTY THAT THE FOREGOING ITEMS WILL BE FREE FROM BUGS, FAULTS, DEFECTS, OR ERRORS OR THAT ACCESS TO ITS NETWORK OR SERVICE WILL BE UNINTERRUPTED.
10.1 Nondisclosure. Each Party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes and shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a need to know and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
10.2 Exceptions. Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
10.3 Equitable Relief. The Receiving Party agrees that a breach of this Section 10 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
11. Limitation on Damages.
11.1 EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. EXCEPT FOR THIRD-PARTY DAMAGES INDEMNIFIED HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE.
11.2 MAXIMUM AGGREGATE LIABILITY. EXCEPT FOR THIRD-PARTY DAMAGES INDEMNIFIED HEREUNDER, THE MAXIMUM LIABILITY OF EITHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE CUMULATIVE AMOUNT PAID TO RETENTION SCIENCE BY PARTNER HEREUNDER. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Partner shall indemnify, defend, and hold harmless Retention Science and its officers, directors, consultants, employees, successors and permitted assigns from and against any damages, losses, and expenses (including reasonable attorneys’ fees), as a result of any third-party claim, demand or action arising from (i) a breach or alleged breach of this Agreement; (ii) infringement or alleged infringement of any third party Intellectual Property Right by Partner, including without limitation, the Partner Marketing Channels (excluding the Retention Science Content and the Retention Science Marks), Partner Content, and/or Partner Marks; or (iii) any alleged or actual product liability, property damage, or physical injuries relating to Partner’s products or services.
13.1 Referrals. Partner acknowledges and agrees that its employees, subcontractors, and agents (“Representatives”) may receive a monetary or other incentive directly from Retention Science in the event that such Representatives refer clients or potential clients to Retention Science in accordance with the terms of any Retention Science referral program.
13.2 Assignment. Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, which may not be unreasonably withheld. Notwithstanding the foregoing, either Party may, without the consent of the other Party, assign this Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee shall assume all rights and obligations under this Agreement. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement.
13.3 Entire Agreement. This Agreement, including the Order Form and these Terms and Conditions, and any exhibits and amendments thereto, constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be amended without the prior written consent of both Parties.
13.4 Force Majeure. Except for Partner’s payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes and continues to take all reasonably necessary steps to resume full performance.
13.5 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts without giving effect to its conflicts of law rules. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts of Suffolk County, Massachusetts.
13.6 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by overnight courier) or three business days after being mailed by registered or certified mail (postage prepaid, return receipt requested), in the case of Partner to the address first set forth hereto and in the case of Retention Science, to Constant Contact, Inc., 1601 Trapelo Road, Waltham, MA 02451, Attn: General Counsel. Either Party may change its contact information by providing the other Party with notice of the change in accordance with this Section 13.5.
13.7 Relationship of Parties. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
13.8 Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
13.9 Waiver. No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.
13.10 Headings. The headings of the articles and paragraphs contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement.
13.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one instrument.