Terms of Service

Connectly Customer Agreement

This Customer Agreement (this “Agreement”) is entered into by and between Connectly Inc., a Delaware corporation (“Connectly”), and Customer. “Customer” means the company or other legal entity that entered into an Order Form (as defined below) or through the Connectly website referencing this Agreement. You represent that you have the authority to bind Customer to the terms of this Agreement. If you do not agree to the terns of this Agreement, or if you are not authorized to accept this Agreement on behalf of your organization or entity, do not access or use any of the Connectly Products (defined below).

Background

Connectly has developed and makes available a SaaS-based platform to assist businesses to communicate with their customers within their favorite messaging channels, including Whatsapp, SMS, Facebook Messenger and Instagram (the “Connectly Product”). Customer desires to use the Connectly Product to augment its existing communication capabilities with its customers.

1. Definitions

2. The following terms, when used in this Agreement will have the following meanings:

“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.

“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Connectly for the Connectly Product.

“Non-Connectly Product” means a third party or Customer web-based, mobile, offline or other software application that integrates with the Connectly Product (other than third party data hosting services used by Connectly). For clarity, the Connectly Product excludes Non-Connectly Products.

“Order Form” means an order form, quote or other similar document that sets forth the specific Connectly Product and pricing therefor (including in relation to overages), permitted number of users and subscription term, and that references this Agreement and is mutually executed by the parties.

1. Connectly Product

2. **Provision of Connectly Product. Subject to the terms and conditions of this Agreement, Connectly will make the Connectly Product available to Customer pursuant to this Agreement and applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Connectly Product for its internal business purposes. **

3. **Data Security. **

4. Connectly will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the Connectly Product (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. In furtherance of the foregoing, Connectly will maintain the administrative, physical and technical safeguards to protect the security of Customer Data.

5. To the extent that Connectly processes any Personal Data (as defined in the DPA referenced below) contained in Customer Data that is subject to Data Protection Legislation (as defined in the DPA), on Customer’s behalf, in the provision of the Connectly Product, the parties will execute a Data Processing Addendum ("DPA"), and such DPA is hereby deemed incorporated herein by reference.

6. Customer Responsibilities.

7. Customer acknowledges that Connectly’s provision of the Connectly Product is dependent on Customer providing all reasonably required cooperation, and Customer will provide all such cooperation in a diligent and timely manner.

8. Customer will (i) be responsible for all use of the Connectly Product under its account, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Connectly Product and notify Connectly promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Connectly Product and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Connectly Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Connectly will have no liability for such failure (including under any service level agreement).

9. Customer shall be responsible for the content of all communications sent by its users via the Connectly Product. Customer agrees that it will not use the Connectly Product to communicate any message or material that (i) is libellous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) constitutes or encourages conduct that could constitute a criminal offense.

10. Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Connectly and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.

11. Fees

12. Fees. Customer will pay Connectly the fees set forth in the applicable Order Form. Customer shall pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice, unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.

13. Late Payment. Connectly may suspend access to the Connectly Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.

14. Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Connectly. Customer will not withhold any Taxes from any amounts due to Connectly.

15. Proprietary Rights

16. Proprietary Rights. As between the parties, Connectly exclusively owns all right, title and interest in and to the Connectly Product, System Data and Connectly’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, insights produced specifically for Customer via the use of the Connectly Product by Customer (which will constitute Customer Data for purposes hereof) and Customer’s Confidential Information. “System Data” means data collected by Connectly regarding the Connectly Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Connectly Product.

17. Feedback. Customer may from time to time provide Connectly suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Connectly Product. Connectly will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Connectly will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

18. Product Improvement and Aggregated Statistics. Customer further agrees that Connectly has the right to aggregate, collect and analyze [Customer Data and other] information relating to the performance of the Connectly Product and shall be free (during and after the term hereof) to (i) use such data and other information to improve Connectly’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.

19. Confidentiality; Restrictions

20. Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

21. Technology Restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Connectly Product; (b) attempt to probe, scan or test the vulnerability of the Connectly Product, breach the security or authentication measures of the Connectly Product without proper authorization or wilfully render any part of the Connectly Product unusable; (c) use or access the Connectly Product to develop a product or service that is competitive with Connectly’s products or Product or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Connectly Product or otherwise offer the Connectly Product on a standalone basis; or (e) otherwise use the Connectly Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.

22. Warranties and Disclaimers

23. Connectly. Connectly warrants that it will, consistent with prevailing industry standards, provide the Connectly Product in a professional and workmanlike manner and the Connectly Product will conform in all material respects with the Documentation. For material breach of the foregoing express warranty, Customer’s exclusive remedy shall be the re-performance of the deficient Connectly Product or, if Connectly cannot re-perform such deficient Connectly Product as warranted within thirty (30) days after receipt of written notice of the warranty breach, Customer shall be entitled to terminate the applicable Order Form and recover a pro-rata portion of the prepaid subscription fees corresponding to the terminated portion of the applicable subscription term.

24. Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Connectly to use the same as contemplated hereunder.

25. DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE CONNECTLY PRODUCT IS INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S COMMUNICATION TOOLS, SYSTEMS AND PROCESSES. CONNECTLY DOES NOT REPRESENT OR WARRANT THAT THE CONNECTLY PRODUCT WILL BE ERROR-FREE [AND CUSTOMER ACKNOWLEDGES THAT THE INSIGHTS PROVIDED BY THE CONNECTLY PRODUCT DO NOT CONSTITUTE PROFESSIONAL ADVICE OR COUNSEL]. CONNECTLY IS NOT RESPONSIBLE OR LIABLE FOR ANY NON-CONNECTLY PRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.

26. BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH CONNECTLY WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY CONNECTLY. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. CONNECTLY DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR CONNECTLY MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.

27. Indemnification

28. Indemnity by Connectly. Connectly will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Connectly Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Connectly) in connection with any such Claim; provided that (a) Customer will promptly notify Connectly of such Claim, (b) Connectly will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Connectly may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Connectly in connection therewith. If the use of the Connectly Product by Customer has become, or in Connectly’s opinion is likely to become, the subject of any claim of infringement, Connectly may at its option and expense (i) procure for Customer the right to continue using and receiving the Connectly Product as set forth hereunder; (ii) replace or modify the Connectly Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. Connectly will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Connectly Product by Customer not in accordance with this Agreement; (C) modification of the Connectly Product by or on behalf of Customer; (D) Customer Confidential Information or (E) the combination, operation or use of the Connectly Product with other products or services where the Connectly Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Connectly’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

29. Indemnification by Customer. Customer will defend Connectly against any Claim made or brought against Connectly by a third party arising out of the Excluded Claims, and Customer will indemnify Connectly for any damages finally awarded against Connectly (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Connectly will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Connectly’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Connectly of all liability) and (c) Connectly reasonably cooperates with Customer in connection therewith.

30. Limitation of Liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF SECTION 5 OR A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

1. Termination

2. Term. The term of this Agreement will commence on the Effective Date and continue until terminated as set forth below. The initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

3. Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

4. Survival. Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below. Upon expiration or termination of this Agreement, each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control.

5. General

6. Publicity. Customer agrees that Connectly may refer to Customer’s name and trademarks in Connectly’s marketing materials and website; however, Connectly will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).

7. Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

8. Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

9. Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

10. Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

11. Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

12. Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.

13. Entire Agreement. This Agreement comprises the entire agreement between Customer and Connectly with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Connectly, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

14. Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

15. Government Terms. Connectly provides the Connectly Product, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Connectly Product, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Connectly Product was developed fully at private expense.

16. Interpretation. For purposes hereof, “including” means “including without limitation”.