Replyify LLC (replyify.com)

Universal Terms of Service Agreement

Last Revised: June 1, 2016

PLEASE READ THIS UNIVERSAL TERMS OF SERVICE AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.

1. OVERVIEW

This Universal Terms of Service Agreement (this "Agreement") is entered into by and between REPLYIFY LLC, an Ohio Limited Liability Company ("REPLYIFY") and you, and is made effective as of the date of your use of this website ("Site") or the date of electronic acceptance. This Agreement sets forth the general terms and conditions of your use of the Site and the products and services purchased or accessed through this Site (individually and collectively, the "Services"), and is in addition to (not in lieu of) any specific terms and conditions that apply to the particular Services.

Whether you are simply browsing or using this Site or purchase Services, your use of this Site and your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with the following policies and the applicable product agreements, which are incorporated herein by reference:

Privacy Policy

The terms "we", "us" or "our" shall refer to REPLYIFY. The terms "you", "your", "User" or "customer" shall refer to any individual or entity who accepts this Agreement, has access to your account or uses the Services. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.

REPLYIFY may, in its sole and absolute discretion, change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Services after such changes or modifications have been made shall constitute your acceptance of this Agreement as last revised. If you do not agree to be bound by this Agreement as last revised, do not use (or continue to use) this Site or the Services. In addition, REPLYIFY may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your user account ("Account") information current. REPLYIFY assumes no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.

2. DEFINITIONS

"Business Hours" means Monday to Friday (excluding federal holidays), 9 a.m. to 5 p.m. Eastern Time.

"Content" means text, photographs, drawings, data and other information provided by either party or by any User for use on or in connection with the Services. "REPLYIFY Content" means any Content owned or provided by REPLYIFY. "Customer Content" means any Content owned or provided by Customer, including by any Users.

"Customer" means any user of Customer's website or services, or an user of an email sent by, for, or on behalf of, Customer.

"Documentation" means the online documentation of the Services for Users as provided by REPLYIFY.

"Intellectual Property Rights" means any and all known or hereafter existing worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, know-how, moral rights, contract rights, and other proprietary rights, and all registrations, applications, renewals, extensions, and combinations of the foregoing.

"Order Form" means the ordering documents representing the initial purchase of the Services as well as any subsequent purchases agreed to between the parties in writing from time to time, that are executed hereunder and deemed incorporated into this Agreement from time to time and that specify, among other things but not limited to, the platform, web site, subscription term, usage, services subscriptions, revenue share and the applicable fees.

"Platform" means (i) any proprietary software or service applications as part of the Services and (ii) any third party software or applications.

"Customer Data" means all electronic data, materials, files, trademarks, copyrights, and/or information submitted by Customer to the Services or used in conjunction with the Services.

"Services" means the services to be provided by REPLYIFY to Customer as set out in the applicable Order Form, including without limitation, the Platform.

"Service Levels" means the service levels, including the remedies and other rights and obligations, set out in the applicable Order Form.

"Usage" means use of the Services, as measured by Gigabyte or any other method, of the data and traffic created by serving the applications, images, and ad network fees to Customers.

"Users" means Customer's employees, consultants, contractors or agents who are authorized to use the Services and who have been supplied user identifications and passwords by Customer (or by REPLYIFY at Customer's request).

3. SERVICES

3.1 Provision of Services. REPLYIFY shall perform the Services, including performing the Services in accordance with the Service Levels, and Customer shall pay REPLYIFY for the Services in accordance with the terms and conditions set out in this Agreement. Customer agrees that its purchase of the Services is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written comments made by REPLYIFY with respect to future functionality or features.

3.2 Support Services. REPLYIFY will support the Services with a combination of telephone, email and web support during Business Hours. Unless otherwise expressly agreed to in writing by REPLYIFY, Customer shall not permit any third party to perform or provide any maintenance or support services with respect to the Services. Upon REPLYIFY's receipt of notice from Customer of a failure of the Services to conform to its current Documentation (an "Error"), REPLYIFY will use commercially reasonable efforts to promptly resolve the Error. REPLYIFY does not provide support for any failure or defect in the Services caused by any of the following: (i) the improper use, alteration, or damage of the Services by Customer or any User or third party; (ii) modifications to the Services not made or authorized in writing by REPLYIFY; or (iii) interaction between the Services and Customer's computer systems unless REPLYIFY expressly approves such use in writing. Customer is exclusively responsible for the supervision, management, backup, security and control of Customer's information technology systems. Customer must provide REPLYIFY will full, good faith cooperation and such information as may be required by REPLYIFY in order to support the Services.

4. USE OF THE SERVICES

4.1 REPLYIFY Responsibilities. REPLYIFY shall: (i) only use Customer Data in conjunction with the Services; (ii) use commercially reasonable efforts to maintain the security and integrity of the Services; (iii) provide telephone and online standard support to the Users, at no additional charge; and (iv) use commercially reasonable efforts to make the Services generally available 24 hours a day, 7 days a week, except for downtime caused by circumstances beyond REPLYIFY's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems not involving REPLYIFY employees, third party acts/omissions, computer or telecommunications failures or delays involving hardware or software not within REPLYIFY's possession or reasonable control, and network intrusions or denial of service attacks, but only to the extent unavailability results notwithstanding the exercise by REPLYIFY of reasonable care and due diligence to avoid or mitigate the same in anticipation of or in response to such causes. REPLYIFY makes no representations or warranties with respect to the availability of any future modifications, updates, or enhancements to the Services. ANY SUCH HARD DOWNTIME SHALL NOT BE CONSIDERED BREACH OF THIS AGREEMENT.

4.2 Customer Responsibilities. Customer is responsible for all activities that occur under User accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify REPLYIFY promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal, and foreign laws (including, without limitation, privacy, and anti-spam) in using the Services and, if using the Services outside of the United States, not use the Services in a manner that would violate any federal or state laws of the United States if conducted therein.

4.3 Subcontracting. REPLYIFY shall have the right to subcontract certain of REPLYIFY's material rights or obligations under this Agreement without the prior written consent of Customer.

4.4 Promotion of Project. The parties agree that REPLYIFY shall have the right to use the Customer name and logo in the promotion of REPLYIFY work pursuant to this Agreement on REPLYIFY's website, printed collateral, tradeshows and sales presentations. REPLYIFY and Customer agree to coordinate press activities, including a joint press release to announce the project delivered under contract at such time as the parties shall mutually agree. Notwithstanding the foregoing, either party may issue public statements or other disclosures as required by law as reasonably advised by legal counsel without the consent of the other party and in such event, the disclosing party will provide at least five (5) business days prior notice of such disclosure.

5. FEES & PAYMENT

5.1 Fees. Customer shall pay all "Fees" specified in the applicable Order Form. Except as otherwise provided, all Fees are quoted in United States Dollars. Except as otherwise provided, fees are non-refundable.

5.2 Automatic Renewal Terms. You agree to pay any and all prices and fees due for Services purchased or obtained at this Site at the time you order the Services. All prices and fees are non-refundable even if your Services are suspended, terminated, or transferred prior to the end of the Services term. REPLYIFY expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at this Site and effective immediately without need for further notice to you. If you have purchased or obtained Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal as further described below.

Except as prohibited in any product-specific agreement, you may pay for Services by utilizing any of the following "Payment Methods": (i) by providing a valid credit card. REPLYIFY will automatically place an order for that Service and charge the primary Payment Method on file for your Account. Confirmation of that order will be sent to the email address on file for your Account. Your Payment Method on file must be kept valid if you have any active Services in your Account.

5.3 Refunds. You acknowledge and agree that where refunds are issued to your Payment Method, REPLYIFY's issuance of a refund receipt is only confirmation that REPLYIFY has submitted your refund to the Payment Method charged at the time of the original sale, and that REPLYIFY has absolutely no control over when the refund will be applied towards your Payment Method's available balance. You further acknowledge and agree that the payment provider and/or individual issuing bank associated with your Payment Method establish and regulate the time frames for posting your refund, and that such refund posting time frames may range from five (5) business days to a full billing cycle, or longer. In the event a refund is issued to your Payment Method and the payment provider, payment processor or individual issuing bank associated with your Payment Method imposes any limitations on refunds, including but not limited to, limitations as to the timing of the refund or the number of refunds allowed, then REPLYIFY, in its sole and absolute discretion, reserves the right to issue the refund either (i) in the form of an in-store credit; or (ii) via issuance of a REPLYIFY check, which will be sent to the mailing address on file for your Account. REPLYIFY also has the right, but not the obligation, to offer an in-store credit for customers seeking refunds, even if there are no limitations on refunds imposed by the Payment Method. For the avoidance of doubt, any and all refunds processed via the issuance of either in-store credits or a REPLYIFY check are solely within REPLYIFY's discretion and are not available at customer request.

5.4 Automatic Renewal. If you are being billed on a monthly basis, your monthly billing date will be based on the date of the month you purchased the Services and will renew every 30 days. If for any reason REPLYIFY is unable to charge your Payment Method for the full amount owed for the Services provided, or if REPLYIFY receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to your Payment Method, you agree that REPLYIFY may pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation, without notice to you.

5.5 Invoicing & Payment. If applicable, Customer shall submit monthly invoices to REPLYIFY for all Customer Payments received by REPLYIFY during that month. REPLYIFY shall remit payment for such invoices within thirty (30) days of receipt by REPLYIFY of an invoice. For the purposes of this section, "Customer Payments" means the sales proceeds received by REPLYIFY in its capacity as payment processor for Customer for certain transactions.

5.6 Overdue Payments. Any payment not received from Customer by the due date will accrue (except with respect to charges then under reasonable and good faith dispute), at REPLYIFY's discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

5.7 Suspension of Services. If Customer's account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, REPLYIFY reserves the right to suspend the Services provided to Customer, without liability to Customer, until such amounts are paid in full.

5.8 Taxes. Unless otherwise stated, the Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). REPLYIFY is responsible for collection and payment of all Taxes charged in connection with Customer's use of the Services.

5.9 Billing and Contact Information. Customer shall maintain complete and accurate billing and contact information on the Services at all times as set forth in the applicable Order Form.

6. PROPRIETARY RIGHTS

6.1 Reservation of Rights/Ownership. Customer acknowledges that in providing the Services, REPLYIFY utilizes (i) its names, logos, domain names, the product and service names associated with the Services, and other trademarks and service marks; (ii) certain audio and visual information, documents, software and other works of authorship; (iii) any and all information provided to REPLYIFY by a Customer and (iv) other technology, software, hardware, products, processes, algorithms, user interfaces, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively, "REPLYIFY Technology") and that the REPLYIFY Technology is covered by intellectual property rights owned or licensed by REPLYIFY (collectively, "REPLYIFY IP Rights"). Other than as expressly set forth in this Agreement, no license or other rights in or to the REPLYIFY Technology or REPLYIFY IP Rights are granted to Customer, and all such licenses and rights are hereby expressly reserved. Customer acknowledges and agrees that REPLYIFY (or its licensors) owns, and Customer hereby assigns to the extent it may have acquired by operation of law or otherwise, all right, title and interest in and to Services, REPLYIFY technology, REPLYIFY IP Rights, and any other software licensed under the Agreement and/or work product/developments resulting from such Services (and all content contained therein), and the functionality and URL's that enable Customer access to the Services. In addition, Customer shall not challenge, directly or indirectly, any of REPLYIFY's (or its licensors) rights as set forth in the preceding sentence. REPLYIFY does not grant Customer any rights except as expressly set forth in the Agreement. Customer shall not directly nor indirectly, register, apply for registration of, nor attempt to acquire any legal protection for any items or rights described in this section.

6.2 License to REPLYIFY. Customer hereby grants REPLYIFY during the term of this Agreement, a worldwide, paid up, non exclusive, non transferable, royalty-free license to use Customer Data, for the sole purpose of providing the Services and performing services and any other obligations under this Agreement.

6.3 Customer Data Ownership. a) REPLYIFY hereby grants a terminable, revocable, non-exclusive, non-transferrable, strictly limited license of the Data to Customer. This license is revocable at any time by REPLYIFY if Customer violates any of the terms of this Agreement or any applicable addendum. The Data furnished to Customer may be licensed to its End Users in connection with their own marketing programs, and for no other purpose. The Data is to be used for the list rental purposes and project(s) specified on Exhibit A or as may be otherwise specified in any applicable addendum only and, unless otherwise specified within the order confirmation for the specific project, is for one-time use only. Any Data ordered by Customer may be used for marketing programs by mail, telemarketing, mobile marketing or email or for database analysis only. All right, title and interest in the Data will remain the property of REPLYIFY or its licensors, and no right, interest in or title to any Data is sold, conveyed or otherwise transferred to Customer, End Users or any third party. Customer is obligated by this Agreement to ensure that its End Users are made aware that no right, interest in, or title to any Data is passed to End Users under this Agreement or any applicable addendum. e) Customer acknowledges and agrees that it may not use or permit the use of the Data in connection with the preparation, publication, cleaning or maintenance of any directory of any nature. Customer will not use or permit the use of the Data for compiling, enhancing, verifying, supplementing, adding to or detracting from any mailing list, geographic or trade directories, business directories, classified directories, classified advertising, or other compilation of information which is sold, rented, published, or provided to a third party. Customer will not use or permit use of the Data for generating any statistical information which is sold, rented, published, furnished or in any manner provided to a third party, or use or permit the use of the Data in connection with individual credit, employment or insurance applications. f) Customer agrees that it will not use or permit the use of the Data in violation of any federal, state, local, or international law, rule, or regulation or for any unlawful purpose, and will comply with the Direct Marketing Association's Ethical Use and Fair Information Practices Guidelines. Customer agrees to comply and cause its End Users to comply with any and all current and future federal, state, local and international laws concerning use of the Data, telephone solicitations and marketing, and the transmission of facsimiles and email, including but not limited to, the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act of 2003, the Federal Trade Commission ("FTC") Telemarketing Sales Rule, and any other existing or future FTC rules and any enforcing regulations related to the foregoing. Customer understands that any person violating such laws, rules or regulations may be subject to substantial civil and criminal penalties, for each transmission of any unsolicited facsimile or other information. Customer acknowledges that the U.S. Federal government, certain states and self-regulatory bodies may each have restrictions on telemarketing activities, including, but not limited to, permitting a telephone subscriber to give public notice that such subscriber does not wish to receive sales solicitation telephone calls. Due to the varying publication dates of such notices, REPLYIFY disclaims any warranty, express or implied, that the names and telephone numbers of all such subscribers have been identified on or deleted from any Data or other list ordered by Customer. Further, Customer agrees that it will fully indemnify REPLYIFY for any claims, actions, damages, fees or costs related to any breach or violation by Customer or its End Users of any of the acts, regulations or guidelines set forth in this Section 4.

6.4 Customer Data: Subject to the terms and conditions of the Agreement, Customer hereby grants to REPLYIFY the right and license to do the following during the term: (a) access, collect, transmit to computers owned or controlled by REPLYIFY or third party systems and analyze the Customer Data provided to REPLYIFY; (b) assemble, combine and synthesize the Customer Data with behavior and other data and information relating to users of third party web; (c) sublicense any or all Customer Data to third party licensees; and (d) utilize aggregated segment data that is derived from or relates to Customer Data only for segmentation, overlap reporting and other REPLYIFY internal analysis (which expressly excludes the use of such segment data directly for targeted advertising campaigns). REPLYIFY may (a) use the Customer Data to create targeted advertising packages for advertisers and sell advertising campaigns to advertisers and (b) license and distribute the data to licensees for use of the segments by such third parties to create targeted advertising packages for advertisers and sell advertising campaigns to advertisers.

6.5 Customer Data: REPLYIFY and Customer shall jointly own any and all information provided by Customers to either party in connection with this Agreement and the provision of the Services contemplated herein (the "Customer Data"). Such Customer Data shall be kept, maintained and used in accordance with all applicable local, state and federal laws and regulations. CUSTOMER ACKNOWLEDGES THAT THE DATA IS NOT THE PRODUCT OF AN INDEPENDENT COMPILATION OR INVESTIGATION PROMPTED BY OR ON BEHALF OF CUSTOMER, BUT IS UPDATED AND REVISED INDEPENDENTLY ON A PERIODIC BASIS. CUSTOMER ACKNOWLEDGES THAT EVERY BUSINESS DECISION TO SOME DEGREE REPRESENTS AN ASSUMPTION OF RISK AND THAT REPLYIFY AND ITS THIRD PARTY LICENSORS OR SUPPLIERS OF DATA, DO NOT AND WILL NOT UNDERWRITE THAT RISK, IN ANY MANNER WHATSOEVER. CUSTOMER THEREFORE AGREES THAT IT OR CUSTOMER'S END USERS WILL NOT HOLD REPLYIFY OR ITS THIRD PARTY SUPPLIERS LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY REPLYIFY'S OR ITS THIRD PARTY SUPPLIERS' NEGLIGENT OR OTHER ACTS OR OMISSIONS IN PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING, OR DELIVERING THE DATA.

6.6 Suggestions REPLYIFY shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the operation of the Services.

6.7 Compliance with CAN-SPAM Customer shall comply with the provisions of CAN-SPAM Act in performing their respective obligations hereunder, including but not limited to, the multiple sender rule, the use of an opt-out mechanism honored within 10 days and valid for 30 days, the use of clear and accurate header and subject line information, and the use of a physical mailing address.

7. CONFIDENTIALITY

7.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally 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, the Services, the REPLYIFY Technology, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

7.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.

7.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information.

7.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.

7.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

8. WARRANTIES & DISCLAIMERS

8.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. EXCEPT AS EXPRESSLY SET FORTH HEREIN, REPLYIFY HEREBY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO SERVICE (OR ANY OTHER SOFTWARE LICENSED), ANY ADDITIONAL SERVICES (INCLUDING WITHOUT LIMITATION, INTEGRATION) OR REPLYIFY TECHNOLOGY, REPLYIFY IP RIGHTS, OR ANY WORK PRODUCT/DELIVERABLES CREATED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AGAINST INFRINGEMENT AND IMPLIED WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES THAT THE SERVICE (OR ANY OTHER SOFTWARE LICENSED) OR WORK PRODUCT/DELIVBERABLES WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT ANY ADDITIONAL SERVICES WILL BE PERFORMED ERROR-FREE. REPLYIFY MAKES NO REPRESENTATIONS OR WARRANTS REGARDING LOCALIZATION TO A PARTICULAR MARKET (I.E. LOCAL LANGUAGE, LOCAL SUPPORT OF TAXES OR LOCAL PAYMENT OR SHIPPING CARRIERS). REPLYIFY IS NOT AFFILIATED WITH LINKEDIN CORPORATION, TWITTER INC., FACEBOOK INC. OR ANY OTHER SOCIAL NETWORK AND BY ENTERING OR BROWSING THIS SITE, YOU AGREE THAT YOU OR YOUR KNOWN FAMILY MEMBERS, DO NOT WORK WITH, FOR, OR HAVE ANY ASSOCIATIONS WHATSOEVER WITH LINKEDIN CORPORATION, TWITTER INC., FACEBOOK INC. OR ANY OTHER SOCIAL NETWORK. REPLYIFY IS A SYSTEM THAT USES PROPRIETARY SECRETS AND DESIGNS. YOU AGREE NOT TO DISCUSS THE WAY IN WHICH REPLYIFY WORKS, NOR DISCUSS THE PRODUCT ITSELF WITH ANYONE WHO IS NOT ASSOCIATED WITH REPLYIFY, WITHOUT EXPRESS WRITTEN PERMISSION FROM US BEFOREHAND. ANY DISCUSSION OF HOW THE SYSTEM FUNCTIONS, WHAT ITS INTENDED PURPOSE IS OR ANY ATTEMPTS TO REVERSE ENGINEER ANY PARTS OF THE SYSTEM ARE EXPRESSLY FORBIDDEN.

9. INDEMNIFICATION

9.1 Indemnification by Customer. Customer will defend, indemnify and hold REPLYIFY harmless at Customer's own expense, against any action against REPLYIFY brought by a User or any other third party to the extent that the action alleges or is based upon a claim that such third party has been damaged as a result of Customer's use of the Service or any other services or goods provided by REPLYIFY, or any claim that the Customer Content infringes the Intellectual Property Rights or any other rights of any third parties, and Customer will pay those costs and damages finally awarded or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on REPLYIFY notifying Customer promptly in writing of any such action, giving Customer sole control of the defense thereof and any related settlement negotiations, and cooperating and, at Customer's reasonable request and expense, assisting in such defense.

9.2 Indemnification by REPLYIFY. REPLYIFY will defend and indemnify Customer at REPLYIFY's own expense, against any action against Customer brought by an unaffiliated third party that alleges that the Services infringe any U.S. copyright or misappropriates any trade secret, and REPLYIFY will pay those costs and damages finally awarded or those costs and damages agreed to in a monetary settlement of such action in accordance with this Section. The foregoing obligations are conditioned on Customer notifying REPLYIFY promptly in writing of any such action, giving REPLYIFY sole control of the defense thereof and any related settlement negotiations, and cooperating and, at REPLYIFY's reasonable request and expense, assisting in such defense. If the Services become, or in REPLYIFY's opinion are likely to become, the subject of an infringement claim, REPLYIFY may, at its option and expense, either procure for Customer the right to continue using the Services, replace or modify the Services so that they become non-infringing, or terminate this Agreement upon written notice to Customer, and refund Customer any unearned Fees pro-rated for the applicable period. Notwithstanding the foregoing, REPLYIFY will have no obligation under this section or otherwise with respect to any allegation or claim based upon any use of the Services by Customer or any User not in accordance with this Agreement, any use of the Services by Customer or any User in combination with products, equipment, software, or data not supplied by REPLYIFY if such infringement would have been avoided by the combination with other products, equipment, software or data, or any modification of the Service by any person other than REPLYIFY or its expressly authorized agents or subcontractors. THIS SECTION STATES REPLYIFY'S ENTIRE LIABILITY AND RETAILER'S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS OR ACTIONS.

10. LIMITATION OF LIABILITY

10.1 Independent Contractors: Nothing in this Agreement or any applicable addendum shall be construed to create a partnership, joint venture, or agency relationship between the parties. The parties to this Agreement are independent contractors and neither party has any authority to bind or commit the other in any respect whatsoever, and neither party shall hold itself out as the agent, principal, partner, associate or joint venturer of the other or as having any power or authority to bind or commit the other party.

10.2 Limitation of Liability. EACH PARTY'S TOTAL LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY), OR OTHERWISE, ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL NOT EXCEED THE TOTAL COMPENSATION PAID TO SUCH PARTY BY THE OTHER PARTY UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ASSERTION OF THE RELEVANT CLAIM.

10.3 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

10.4 Limitation of Action. Except for actions for non-payment or breach of either party's intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than two (2) years after the cause of action has accrued.

11. TERM & TERMINATION

11.1 Term of Agreement. This Agreement commences on the date your user account is created or stated on the applicable Order Form and continues until all services granted in accordance with this Agreement have expired or been terminated.

11.2 Term of Services. Services commence on the date your user account is created or Contract Effective Date specified in the relevant Order Form and continue for the service term specified therein. Services shall automatically renew for additional periods of one (1) month, unless Customer or REPLYIFY gives notice of termination at least 30 days prior to the end of the relevant service term.

11.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such 30-day period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer, REPLYIFY shall refund Customer any prepaid fees for the remainder of the service term after the date of termination.

11.4 Termination by REPLYIFY for Convenience. REPLYIFY expressly reserves the right to deny, cancel, terminate, suspend, lock, or modify access to (or control of) any Account or Services (including the right to cancel or transfer any domain name registration) for any reason (as determined by REPLYIFY in its sole and absolute discretion), including but not limited to the following: (i) to correct mistakes made by REPLYIFY in offering or delivering any Services (including any domain name registration), (ii) to protect the integrity and stability of, and correct mistakes made by, any domain name registry, (iii) to assist with our fraud and abuse detection and prevention efforts, (iv) to comply with court orders against you and/or your domain name or website and applicable local, state, national and international laws, rules and regulations, (v) to comply with requests of law enforcement, including subpoena requests, (vi) to comply with any dispute resolution process, (vii) to defend any legal action or threatened legal action without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, or (viii) to avoid any civil or criminal liability on the part of REPLYIFY, its officers, directors, employees and agents, as well as REPLYIFY's affiliates, including, but not limited to, instances where you have sued or threatened to sue REPLYIFY. REPLYIFY expressly reserves the right to terminate, without notice to you, any and all Services where, in REPLYIFY's sole discretion, you are harassing or threatening REPLYIFY and/or any of REPLYIFY's employees.

11.5 Termination by Customer for Convenience. Notwithstanding any other provision in this Agreement, Customer may, following completion of the first (1) month of the initial term of this Agreement, terminate this Agreement at any time for convenience provided that Customer delivers to REPLYIFY written notice of its intention to do so at least thirty (30) days prior to the effective date of termination.

11.6 Outstanding Fees. Termination shall not relieve Customer of the obligation to pay any Fees accrued or payable to REPLYIFY prior to the effective date of termination.

11.7 Return of Customer Data. Upon request by Customer made within 30 days of the effective date of termination, REPLYIFY will make available to Customer for download a file of Customer Data in common industry format chosen by REPLYIFY. After such 30-day period, REPLYIFY shall have no obligation to maintain or provide any Customer Data and shall thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.

11.8 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 5, 6 (excluding Section 6.2), 7, 8, 9, 10, 11 and 12.

12. GENERAL PROVISIONS

12.1 General. Neither party may assign this Agreement without the other party's prior written consent, except that: (1) REPLYIFY may assign this Agreement, in whole or in part, without Customer's consent in the case of a reorganization, merger, acquisition, consolidation, or sale of all or substantially all of its assets; and (2) REPLYIFY may assign this Agreement without Customer consent to one of REPLYIFY's parent companies or subsidiaries. Any attempts to assign this agreement in violation of this provision shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. The parties are independent contractors. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior or collateral agreements with respect to the subject matter hereof. Any amendments to this Agreement must be in writing and executed by the parties. If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of this Agreement and the severed provision shall be interpreted to be consistent with the Agreement. The failure of either party at any time or times to require performance of any provision hereof shall in no manner waive or affect the right at a later time to enforce the same. The section headings contained herein are for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement. There are no third-party beneficiaries to this Agreement.

12.2 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to REPLYIFY shall be addressed to the attention of its CEO (Ryan O'Donnell ryan@replyify.com ). Notices to Customer are to be addressed, unless otherwise noted, to the signatory below at the address in the preamble.

12.3 Governing Law and Venue. This Agreement shall be governed by the laws of Ohio, without reference to its conflict of laws rules or principles. The courts of Ohio shall have the non-exclusive jurisdiction to hear any matter arising in connection with this Agreement.

12.4 Conflict. In the event of any express conflict between the provisions in this Agreement and any executed Order Form, the provisions on this Agreement shall apply. To the extent possible, the documents should be read to be consistent with one another.

12.5 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.

Contact Information:

If you have any questions about this Agreement, please contact us by email or regular mail at the following address:

Replyify LLC
P.O. Box 796
Chardon, OH 44024
support@replyify.com

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