Terms of Service
SEE WHAT YOU SEND, INC.
SUBSCRIBER AGREEMENT AND TERMS OF USE
1. IMPORTANT-READ CAREFULLY: THIS IS A LEGAL AGREEMENT BETWEEN YOU (AN INDIVIDUAL OR A SINGLE ENTITY) AND SEE WHAT YOU SEND, INC. PERTAINING TO THE SOFTWARE (INCLUDING ANY FUNCTIONAL SPECIFICATIONS AND OTHER DOCUMENTATION THAT MAY BE PROVIDED THEREWITH) THAT YOU ARE ABOUT TO DOWNLOAD, INSTALL, COPY, ACCESS, OR OTHERWISE USE (SINGULARLY AND COLLECTIVELY, THE "SOFTWARE") AND THE SERVICE THAT SWYS PROVIDES TO YOU THROUGH THE SOFTWARE (THE "SERVICE"). SWYS LICENSES THE SOFTWARE TO YOU AND PROVIDES THE SERVICE TO YOU ONLY UPON THE EXPRESS CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS SUBSCRIBER AGREEMENT AND TERMS OF USE (THE "AGREEMENT"). YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING OR INSTALLING THE SOFTWARE OR USING THE SERVICE. IN PARTICULAR, YOU ARE AGREEING TO GRANT SWYS CERTAIN RIGHTS IN INFORMATION AND DATA THAT YOU MIGHT COLLECT AND TRANSMIT TO SWYS USING THE SOFTWARE AND THE SERVICE, AND YOU ARE ASSURING SWYS THAT YOU HAVE THE RIGHT TO DO SO. If you do not agree to all of the terms OF THIS AGREEMENT, do not DOWNLOAD, INSTALL, COPY, ACCESS, OR OTHERWISE USE the Software OR THE SERVICE.
2. Definitions
"Affiliate" means any entity that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with another entity, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of the other entity.
"Agreement"means this Subscriber Agreement and Terms of Use between you and SWYS.
"Customer"means any third party that purchases or receives goods or services from you.
"Electronic Communications" means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
"Functional Specifications" means the written functional specifications sent to you upon your registration for the Service, as updated and made available to you from time to time.
"Service" means SWYS's online "See What You Send" service, as described in the applicable Functional Specifications, that is licensed by you from SWYS, including the Software and associated offline components, but excluding Third Party Applications and implementation services.
"Software" means SWYS's software (including any documentation or Functional Specifications provided therewith) that you download, install, copy, access or otherwise use. Software is included in the "Service."
"Submitted Data" means all electronic input, data or information submitted to, uploaded to or entered into the Service by you, your employees, contractors, agents and Affiliates, your Customers or their Affiliates, including without limitation photographs, e-mails or other data owned or created by you and your Customers.
"SWYS"means See What You Send, Inc.
"Term"means the period beginning with your acceptance to the terms of this Agreement and ending when your rights to use the Service terminate as provided herein.
"Third Party Applications" means online, Web-based applications and offline software products that are provided by third parties and interoperate with the Service.
"Users" means individuals who are authorized by you to use the Service and who have been supplied user identifications and passwords by you (or by SWYS at your request). Users may include but are not limited to your and your Affiliates' employees, contractors and agents.
"You" are SWYS's counterparty to this Agreement, the licensee of the Software and purchaser of the Service. If you are a corporation, company or other entity, the person accepting this Agreement must have the authority to contractually bind the corporation, company or other entity.
3. Terms of Service. You acknowledge and agree that the following terms will govern your access and use of the Service. In addition, you agree that unless explicitly stated otherwise, any new features that augment or enhance the Service, and any new service(s) subsequently licensed or purchased by you from SWYS or its Affiliates will be subject to this Agreement.
3.1. Accuracy of Your Contact Information. You will provide accurate, current and complete information on your legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.
3.2. Users: Passwords, Access, and Notification. You will be responsible for the confidentiality and use of its passwords and user names. SWYS will act as though any Electronic Communications it receives under your passwords, user name, and/or account number will have been sent by you. You will use commercially reasonable efforts to prevent unauthorized access to or use of the Service and will promptly notify SWYS of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User's password or name and/or Service account numbers.
3.3. Your Lawful Conduct. The Service allows you to send Electronic Communications directly to SWYS [and to third parties]. You will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. You will not send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory or threatening. Except as expressly permitted by this Agreement, no part of the Service or the Software may be copied, reproduced, distributed, republished, displayed, posted, decompiled, reverse-engineered or transmitted by you in any form or by any means. You agree not to access the Service by any means other than through the mobile application and other interfaces that are provided by SWYS. You will ensure that all access and use of the Service by Users is in accordance with the terms and conditions of this Agreement, including but not limited to those Users that are your employees, contractors and agents, and your Affiliates. Any action or breach by any of such employees contractors, agents or Affiliates will be deemed an action or breach by you and you waive all of those defenses that you may have as to why you should not be liable for your employees', contractors', agents' or Affiliates' acts, omissions and noncompliance with this Agreement.
3.4. Third Party Web Sites, Products and Services. SWYS (through the Service) may offer links to Third Party Applications or other services. SWYS does not warrant any such Third Party Applications or services. Any license or purchase by you of any Third Party Applications or services is solely between you and the applicable third party provider. SWYS is not responsible for the availability or the quality, accuracy, integrity, fitness, safety, reliability, legality, or any other aspect of such Third Party Applications or services that you may license or purchase or connect to through the Service, or any descriptions, promises or other information related to the foregoing. If you install or enable Third Party Applications or services for use with the Service, any exchange of data or other interaction between you or your Customers and a third party provider is solely between you or your Customers and such third party provider. No license or purchase of such Third Party Applications or services is required to use the Service.
3.5. Transmission of Data. Youunderstand that the technical processing and transmission of Electronic Communications is fundamentally necessary to use of the Service. You expressly consent to SWYS's transmission and storage of Electronic Communications and Submitted Data, and you acknowledge and understand that your Electronic Communications will involve transmission over mobile data networks, the internet, and over various other networks, only part of which may be owned and/or operated by SWYS. You further acknowledge and understand that Electronic Communications may be accessed by unauthorized parties when communicated across the internet, network communications facilities, telephone or other electronic means. SWYS is not responsible for any Electronic Communications that are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by SWYS, including, but not limited to, the internet and your local network.
3.6. Confidentiality. For purposes of this Agreement, "Confidential Information" will include SWYS's proprietary technology, business processes and technical product information, designs, communication between the parties regarding the Service and any information that is clearly identified in writing by SWYS at the time of disclosure as confidential. Confidential Information will not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without your fault, subsequent to disclosure by SWYS; or (4) you become aware of from a third party not bound by nondisclosure obligations to SWYS and with the lawful right to disclose such information to you. You agree (a) to keep confidential all Confidential Information; (b) not to use or disclose Confidential Information except to the extent necessary to perform your obligations or exercise rights under this Agreement; (c) to protect the confidentiality thereof in the same manner as you protect your own confidentiality of similar information and data (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and (d) to make Confidential Information available to authorized persons only on a "need to know" basis. You may disclose Confidential Information on a need to know basis to your employees, agents, contractors and service providers who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of this Agreement. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is permitted by law or order of a court or other governmental authority or regulation.
You agree that you will not submit to the Service any credit card data, bank account information, social security numbers or other legally protected personal data of your Customers.
3.7. Ownership of Submitted Data. SWYS does not claim ownership of any Submitted Data that you or your Customers post on or through the Service. Instead, to the maximum extent permitted by law, you hereby grant to SWYS a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to use, copy, distribute, modify and commercialize the Submitted Data that you post on or through the Service. Some of the Service is supported by advertising revenue and may display advertisements and promotions, and you hereby agree that SWYS may place such advertising and promotions on the Service or on, about, or in conjunction with Submitted Data. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.
You represent and warrant that: (i) you own the Submitted Data posted by you on or through the Service or otherwise have the right, acquired from your Customers or others, to grant the rights and licenses set forth in this Agreement; (ii) the posting and use of Submitted Data on or through the Service do not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, moral rights, copyrights, trademarks and/or other intellectual property rights; and (iii) you agree to pay for all royalties, fees, and any other monies owed by reason of Submitted Data that you post on or through the Service.
3.8. SWYS Intellectual Property Rights. You agree that all rights, title and interest in and to all intellectual property rights in the Service (including the Software) are owned exclusively by SWYS or its licensors. Except as expressly provided in this Agreement, the license granted to you does not convey any rights in the Service (including the Software), express or implied, or ownership in the Service or any intellectual property rights thereto. In addition, SWYS will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by you or your Users and Customers relating to the Service. Any rights not expressly granted herein are reserved by SWYS. SWYS service marks, logos and product and service names are marks of SWYS (the "SWYS Marks"). You agree not to display or use the SWYS Marks in any manner without SWYS's express prior written permission. The trademarks, logos and service marks of Third Party Application providers ("Marks") are the property of such third parties. You are not permitted to use these Marks without the prior written consent of such third party that may own the Mark.
3.9. Dispute Resolution. Each party agrees that before it or any employee, agent or representative of the party files a claim or suit with a federal or state agency or court or other public forum, it will provide thirty (30) days prior written notice to the other and that, within such thirty (30) day period (or longer, if extended by mutual desire of the parties), authorized representatives of the parties will meet (or confer by telephone) at least once in a good faith attempt to resolve the perceived dispute.
4. Warrantyof Functionality. SWYS warrants that the Service will achieve in all material respects the functionality described in the Functional Specifications applicable to the Service. Your sole and exclusive remedy for SWYS's breach of this warranty will be that SWYS will be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the Functional Specifications, and if SWYS is unable to restore such functionality, you or SWYS will be entitled to terminate the Agreement. SWYS will have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem, and such notice must be sent to support@seewhatyousend.com. The warranties set forth in this Section 4 are made to and for the benefit of you only. Such warranties will only apply if the applicable Service has been utilized in accordance with the Functional Specifications, this Agreement and applicable law.
5. Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 4 ABOVE, SEE WHAT YOU SEND, INC. DOES NOT REPRESENT THAT YOUR USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO MOBILE NETWORKS, THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 4 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY SWYS. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS STATED IN SECTION 4 ABOVE, THE SERVICE IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND IS FOR COMMERCIAL USE ONLY. YOU ASSUME ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR YOUR PURPOSES.
6. Limitations of Liability. YOU AGREE THAT THE CONSIDERATION THAT SWYS IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY SWYS OF THE RISK OF YOUR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL SWYS BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THIS AGREEMENT (AND WHETHER OR NOT SWYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES TO THE MAXIMUM EXTENT PERMITTED BY LAW) OR OTHERWISE SHALL IN NO EVENT EXCEED THE DIRECT DAMAGE LIMITATIONS AS SET FORTH IN THIS SECTION 6.
To the maximum extent permitted by law, the maximum liability of SWYS to any person, firm, corporation or entity whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed the equivalent of 12 months in subscription fees applicable at the time of the event. The essential purpose of this provision is to limit the potential liability of SWYS arising from this Agreement. You acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with making the Service available to you and that, were SWYS to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY'S INDEMNITY OBLIGATIONS AS SET FORTH IN SECTION 7 BELOW. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.
7. Indemnification
7.1. Infringement by SWYS. SWYS shall, at its own expense and subject to the limitations set forth in this Section 7, defend you from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively "Claims") alleging that the Service, as used in accordance with this Agreement and the Functional Specifications, infringes third party copyrights, trade secrets, trademarks, moral rights and privacy rights and shall hold you harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees) (collectively, "Losses") to the extent based upon such a Claim, subject to your compliance with Section 7.3.
Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of the Service in violation of this Agreement, the Functional Specifications or applicable law or (b) use of the Service after SWYS notifies you in writing, including e-mail, to discontinue use.
If a Claim of infringement is brought or threatened, SWYS shall, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect you against such Claim without cost to you; (b) to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible in the opinion of SWYS, terminate the Agreement.
7.2. Infringement by You. You shall, at your own expense and subject to the limitations set forth in this Section 7, defend SWYS from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties (collectively, "Claims") alleging that the Submitted Data, as used in accordance with this Agreement, infringes third party copyrights, trade secrets, trademarks, moral rights and privacy rights and shall hold SWYS harmless from and against liability, damages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees) (collectively, "Losses") to the extent based upon such a Claim subject to SWYS's compliance with Section 7.3.
Excluded from the above indemnification obligations are Claims to the extent arising from (a) use of the Submitted Data in violation of this Agreement or applicable law, (b) use of the Submitted Data after you notify SWYS in writing, including e-mail, to discontinue use because of an infringement claim, or (c) modifications to the Submitted Data or use of the Submitted Data in combination with any data, images or information provided other than by you.
If a Claim of infringement is brought or threatened, you shall, at your expense, use commercially reasonable efforts to procure a license that will protect SWYS against such Claim without cost to SWYS.
7.3. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 7, the indemnified party shall: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party's cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 7 are expressly conditioned upon the indemnified party's compliance with this Section 7.3 except that failure or delay to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 7 but such Claim shall be reduced to the extent of any damages attributable to such failure or delay.
8. Suspension/Termination
8.1. Suspension for Delinquent Account. SWYS reserves the right to suspend your, your Customers' and any or your Affiliates' access to and/or use of the Service for any accounts for which any payment is due but unpaid. The suspension is for the entire account and you understand that such suspension would therefore include Affiliate subaccounts. You agree that SWYS shall not be liable to you or to any Affiliate of yours or other third party for any suspension of the Service pursuant to this Section 8.1.
8.2. Suspension for Ongoing Harm. You agrees that SWYS may, with reasonably contemporaneous notice to you (including by telephone or e-mail), suspend access to the Service if SWYS reasonably concludes that your Service is being used to engage in denial of service attacks, spamming, or illegal activity, and/or use of your Service is causing immediate, material and ongoing harm or damages to SWYS or others. You further agree that SWYS shall not be liable to you nor to any third party for any suspension of the Service under such circumstances as described in this Section 8.2.
8.3. Termination for Cause, Expiration. Either party may immediately terminate this Agreement in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty (30) days of written notice from the non-breaching party. Such notice by the non-breaching party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and will be sent to the President or owner of the alleged breaching party at the address provided by you (or such other address that may be provided pursuant to this Agreement) ("Notice"). For purposes of this Agreement, SWYS's physical and e-mail addresses are: 2300 North Lincoln Park West, Unit 1218, Chicago IL 60614 and support@seewhatyousend.com. Upon termination or expiration of this Agreement, you will have no rights to continue use of the Service. If this Agreement is terminated as a result of a breach on SWYS's part, SWYS will refund the pro rata portion of any pre-paid subscription fees paid by you to SWYS under this Agreement.
9. Modification; Discontinuation of the Service. SWYS may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify you of any material modifications. SWYS reserves the right to discontinue offering the Service at any time. SWYS will not be liable to you or to any third party for any modification of the Service as described in this Section 9.