1.1 Service. ZipLingo will provide text messaging services (the “Services”) to Customer as set forth at www.gonudge.com (the “Website”). ZipLingo may change the Services it provides at any time by changing the description of the Services on the Website, without notice to Customer. Any such change is effective immediately. Customer acknowledges that ZipLingo necessarily relies on various programs, products and services provided by independent third parties in order to offer its Services. Because these third parties may modify, suspend or cancel their programs, products and services at any time, the Services offered by ZipLingo may be affected, including the termination of specific features, benefits and services. No modification, suspension or cancellation by any third party that causes ZipLingo to change or terminate specific features, benefits or Services shall affect Customer’s obligation to pay for the services or otherwise affect Customer’s obligations under this Agreement.
1.2 Service Fees. Customer will pay a non-refundable activation fee of Zero Dollars ($0) (the “Activation Fee”) as well as a monthly service fee (the “Service Fee”) based on the monthly data plan selected by Customer. The Service Fee is due in advance, before Services are provided and will begin on the billing commencement date shown in the Schedule of Rates. Customer’s credit card will be billed on the Tenth (10th) of each month for the following month’s Services, unless Customer terminates this Agreement as provided in Section 1.4. Any overage charges will be assessed and charged on the Tenth (10th) of the month in connection with the billing of the following month’s Service Fee. Any payment not received within thirty (30) days of the billing date will accrue interest at a rate of one and one-half percent (1½%) per month, or the highest rate allowed by applicable law, whichever is lower. If Customer is delinquent in any payment, ZipLingo may, upon notice to Customer, modify the payment terms to require full payment for the remainder of the term or discontinue the Services by terminating this Agreement. All fees charged for Services are exclusive of taxes and similar fees now in force or enacted in the future imposed on the transaction, all of which Customer will be responsible for, except for taxes based on ZipLingo’s net income.
1.3 Services and Monthly Commitments. ZipLingo agrees to provide the Products and Services in accordance with the terms and conditions of this Agreement beginning on the Effective Date. ZipLingo may perform additional technical, supplemental, or professional services (other than the Products and Services) for Customer at either ZipLingo’s published pricing rates or at rates mutually agreed to in writing between Customer and ZipLingo. Also, ZipLingo may perform remedial services as provided for in the Schedule of Rates at the pricing set forth therein and without obtaining Customer’s consent in advance. If a Customer subscribes for any Product and Service for a term other than on a month-to-month basis, then each month of such term Customer shall pay ZipLingo the greater of (i) the actual fees and expenses payable by Customer for the Products and Services for which Customer has subscribed for such term (based on all actual licensing and usage of such Products and Services on a monthly basis) and (ii) the Minimum Monthly Commitment. For purposes of this Agreement, “Minimum Monthly Commitment” shall be determined each month and shall mean with respect to each Product and Service subscribed for by Customer other than on a month-to-month basis, the greater of (A) the amount specified as the “Minimum Monthly Commitment” in the Schedule of Rates associated with the subscription for such Products and Services and (B) the highest aggregate monthly amount paid or payable by Customer with respect to all Products and Services subscribed to for a term other than on a month-to-month basis, during the current term for which Customer subscribed for such Products and Services. If for any month Customer’s aggregate monthly fees and expenses actually paid or payable by Customer for the Products and Services for which Customer has subscribed for such term (based on all actual licensing and usage of such Products and Services on a monthly basis) does not exceed the Minimum Monthly Commitment, then Customer shall pay the Minimum Monthly Commitment in lieu of the charges that would otherwise be due with respect to such Products and Services. All payments made by Customer with respect to such Products and Services shall be credited first towards the Minimum Monthly Commitment.
1.4 Term and Termination. The term of this Agreement shall commence on the Effective Date and shall continue throughout the Contract Term stated in the Schedule of Rates; and thereafter will continue on a month-to-month basis until either Customer or ZipLingo terminates the Agreement by providing written notice no less than fifteen (15) days prior to the end of a term; provided, however, this Agreement shall terminate immediately at the end of a monthly term if Customer’s credit card is denied or Customer otherwise fails to pay for Services for the following month. Upon termination of this Agreement, ZipLingo shall cease providing the Services, Customer shall immediately discontinue use of the Services, and ZipLingo shall delete all stored User Content. However, ZipLingos shall be entitled to receive, and Customer shall immediately pay to ZipLingo, all amounts owing to ZipLingo up to the date of termination. Termination of this Agreement shall not act as a waiver of any breach of this Agreement or as a release of Customer from any liability for breach of Customer’s obligations under this Agreement. Regardless of any other provision of this Agreement, ZipLingo shall not be liable by reason of termination of this Agreement for compensation, reimbursement, or damages on account of the loss of prospective profits on anticipated sales, or on account of expenditures, investments, leases or other commitments made in connection with Customer’s business or otherwise, excluding any amounts paid by Customer to ZipLingo pursuant to the terms of this Agreement. Sections 1.2, 2.4-2.7, and 4, and any other provision of this Agreement which by its nature or express terms extends beyond the duration of this Agreement, shall survive any termination of this Agreement.
SECTION 2. ZIPLINGO’S RIGHTS AND DUTIES
2.1 Services. ZipLingo will exercise commercially reasonable efforts to provide Services in the manner provided in the description set forth in the Website.
2.2 Availability of Services. Subject to the terms and conditions of this Agreement, ZipLingo will use commercially reasonable efforts to provide the Services twenty-four (24) hours a day, seven (7) days a week, throughout the term of this Agreement. Customer agrees that from time to time the Services may be inaccessible or inoperable for various reasons, including periodic maintenance procedures or upgrades, service malfunctions, and causes beyond ZipLingo’s control or which are not foreseeable by ZipLingo, including the interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures.
2.3 Operation and Security. ZipLingo will use commercially reasonable efforts to operate and maintain its web sites and systems and to ensure the security, confidentiality and integrity of all text, data, images and other information provided by Customer, its customers and clients, or otherwise related to Customer (“User Content”) transmitted through or stored on ZipLingo’s system. Customer will bear full risk of loss or damage to all User Content. Customer agrees to regularly backup all User Content and expressly acknowledges that the Services and ZipLingo’s systems are not intended as an archive for any User Content.
2.4 Warranty and Limitations of Liability.
a. Warranty Limitations. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK. ZIPLINGO WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN ACCEPTABLE PERFORMANCE OF THE SERVICES. HOWEVER, ZIPLINGO PROVIDES NO WARRANTIES WHATSOEVER AND DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. ZIPLINGO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. ZIPLINGO DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES IN TERMS OF ACCURACY, RELIABILITY OR OTHERWISE. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR USE OF THE SERVICES TO ACHIEVE INTENDED RESULTS. ZIPLINGO DOES NOT AND CANNOT CONTROL THE FLOW OF INFORMATION TO OR FROM ITS SYSTEM AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICE PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CONNECTIONS TO THE INTERNET.
b. Liability Limitation. IN NO EVENT SHALL ZIPLINGO HAVE ANY LIABILITY TO CUSTOMER, ITS CUSTOMERS OR CLIENTS, OR ANY OTHER THIRD PARTY ARISING FROM ZIPLINGO’S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATE STATUTES MAY APPLY RESTRICTIONS REGARDING LIMITATIONS OF LIABILITY. THE SOLE AND MAXIMUM LIABILITY OF ZIPLINGO, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS WHATSOEVER, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT THAT CUSTOMER PAID FOR THE SERVICES WITHIN THE THREE (3) MONTHS IMMEDIATELY PRECEDING A CLAIM IN WHICH ZIPLINGO IS LIABLE TO CUSTOMER FOR SUCH CLAIM.
c. Reliance on Limitations. CUSTOMER ACKNOWLEDGES THAT ZIPLINGO HAS SET PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT AND THAT THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF PORTIONS OF THIS AGREEMENT ARE FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.
2.5 Confidential Information.
a. Each Party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other Party, including, but not limited to, software, algorithms, technical processes and procedures, product designs, sales, cost and other unpublished financial information, product and business plans, revenues, advertising relationships, projections, and marketing data, and any other information that the disclosing Party (“Discloser”) desires to protect against unrestricted disclosure by the receiving Party (“Recipient”) that: (a) if disclosed in tangible or electronic form, is marked as “confidential,” (b) if disclosed orally or visually, is designated orally as “confidential” at the time of disclosure or within a reasonable period of time thereafter, or (c) that the Recipient knows or should reasonably know is confidential or proprietary. Provided, however, the parties agree that all information regarding distributors, suppliers and business methods of Nikken are considered to be trade secrets, confidential and proprietary and not readily accessible to the public. The parties believe that such confidential information represents a legitimate, valuable and protectable interest belonging to the parties which gives the parties a competitive advantage, which would otherwise be lost if the confidential information were to be improperly disclosed or revealed.
b. The Recipient will maintain the confidentiality of the Discloser’s Confidential Information with at least the same degree of care that it uses to protect its own confidential information, but no less than a reasonable degree of care. The Recipient will not disclose any of the Discloser’s Confidential Information to any employees or third parties except for (1) the employees of the Recipient who have a need to know and who have agreed in writing to maintain the confidentiality of such information, and (2) Recipient’s third party contractors who have agreed in writing to maintain the confidentiality of such information. These confidentiality obligations shall survive for two (2) years after expiration or termination of this Agreement; provided, that the expiration of such obligations shall not affect any other restrictions on the Recipient, including without limitation, any restrictions under patent or copyright laws.
c. Exceptions. Confidential Information will not include any information that is: (a) rightfully in the public domain without any breach by the Recipient, but only from the date it entered the public domain, (b) rightfully received by Recipient from a third party without any obligation of confidentiality, (c) rightfully known to the Recipient without any obligation of confidentiality prior to its receipt from the Discloser, (d) independently developed by the Recipient’s employees without use of the Discloser’s Confidential Information, (e) made generally available to third parties by the Discloser without restrictions on disclosure, (f) required, on advice of counsel, to be disclosed under applicable laws, rules, or regulations, provided that Recipient gives reasonable prior notice to Discloser of such duty to disclose, or (vii) technical feedback from Customer related to the Services.
2.6 Intellectual Property Rights. Exclusive of User Content, ZipLingo and/or its suppliers will retain all right, title and interest (including copyright and other proprietary or intellectual property rights) relating to the Services and all legally protectable elements or derivative works thereto. ZipLingo will not obtain any right, title or interest in the User Content. ZipLingo may place copyright and/or proprietary notices, including hypertext links, within its website, system and software applications. Customer may not alter or remove such notices without the written permission of ZipLingo. Customer will not, directly or indirectly, reverse engineer, decompile, modify, sublicense or otherwise attempt to derive source code, trade secrets or other intellectual property from ZipLingo, or allow or assist any other person to do so. ZipLingo reserves all rights under any intellectual property rights in and to the Services not expressly granted in this Agreement.
2.7 Feedback. Without limiting Section 2.6, any recommendations, ideas, contributions, corrections, enhancements, improvements, or the like relating to the Services that are submitted to ZipLingo and are incorporated, implemented, or used by ZipLingo in the Services, or in any other software, products, technology, or processes of ZipLingo, shall be the sole property of ZipLingo and the same, together with all copyrights, trade secrets, patent rights, and other intellectual property thereto shall be and hereby are assigned to ZipLingo.
a. Each Party shall defend, indemnify, and hold harmless the other Party, its directors, officers, employees and agents with respect to any third party claim, demand, cause of action, debt or liability, including reasonable legal costs and attorney’s fees, to the extent that it is based upon a claim that that arises out of the negligence, gross negligence or willful misconduct of the offending Party.
b. ZipLingo shall indemnify, defend and hold Customer harmless from any costs or liabilities (including reasonable attorneys’ fees) arising from any third party claim or action brought against Customer arising from allegations that ZipLingo service infringes any patent, copyright or other intellectual or proprietary right of any third party.
SECTION 3. CUSTOMER’S DUTIES
3.1 Product Information. Customer will provide to ZipLingo the text of all text messages and emails to be delivered through the Service.
3.2 Compliance with Laws. Customer will conduct its business in compliance with all applicable laws and regulations.
3.3. Acceptable Use Restrictions. Customer is solely responsible for all acts, omissions and use under and charges incurred with its account or password. Customer is also solely responsible for any User Content displayed, linked, posted, transmitted through or stored on ZipLingo’s system or any third-party web site or system. Customer agrees not to engage in unacceptable use of the Services, which includes, without limitation (collectively, “Unacceptable Uses”):
(i) to disseminate or transmit unsolicited messages, chain letters or unsolicited commercial email;
(ii) to disseminate or transmit any material that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, offensive, vulgar, threatening or malicious;
(iii) to disseminate or transmit files, data or other material, information or work that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person;
(iv) to create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication or do any act in violation of applicable laws and regulations;
(v) to export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions;
(vi) to interfere, disrupt or attempt to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding your authorization;
(vii) to disseminate or transmit any virus, Trojan horse or other malicious, harmful or disabling data, work, code or program;
(viii) to conduct, if applicable, any bank card or other financial transactions except as specifically authorized in each case by your respective customers, clients and patients;
(ix) to engage in any conduct that is not in compliance, if applicable, with the privacy requirements of the Health Insurance Portability and Accountability Act (HIPAA); or
(x) to engage in any other activity deemed by us to be in conflict with the spirit or intent of this Agreement or any policy of ours.
3.4 Protected Information and Actions as Agent. Customer acknowledges that User Content may include protected and confidential customer or client patient information that is transmitted through or stored on ZipLingo’s system. Applicable federal and state laws, as well as ethical and licensure requirements of Customer’s profession, may impose obligations with respect to patient confidentiality that may limit Customer’s ability to use the Services or to transmit certain information to third parties. Customer represents and warrants that, at all times during and after the term of this Agreement, Customer will comply with all laws, rules and regulations directly or indirectly applicable to Customer or its organization that may now or hereafter govern the gathering, use, transmission, processing, receipt, reporting, disclosure, maintenance, and storage of patient information. Moreover, Customer will use its best efforts to cause all persons or entities under its direct or indirect direction or control to comply with such laws, rules and regulations. Customer is, at all times during and after the term of this Agreement, solely responsible for obtaining and maintaining or verifying that Customer has obtained and are maintaining all customer, client and patient consents and all other legally necessary consents, authorizations, software licenses or other permissions required or advisable to process, access, retrieve, transmit, monitor, post, store, disclose and view any patient information that is transmitted and stored on ZipLingo’s system or any third-party web site or system. Customer agrees that ZipLingo, acting on Customer’s behalf as its agent, has the right to process, access, retrieve, transmit, monitor, store, disclose and view patient information solely in connection with providing the Services pursuant to this Agreement. ZipLingo reserves the right to use and disclose to third parties information obtained while providing Services for purposes of complying with all applicable laws, rules and regulations. Customer will indemnify ZipLingo for any and all claims, damages, liabilities, costs and expenses, including attorneys’ fees and court costs, related to any Services ZipLingo provides or action ZipLingo may take on Customer’s behalf as Customer’s agent to process, access, retrieve, transmit, monitor, post, store, disclose and view any customer, client or patient information or other User Content pursuant to this Agreement.
SECTION 4. GENERAL PROVISIONS
4.1 Authorizations. This Agreement is entered into electronically. The entity completing the application and clicking the “I agree” box on at the Website represents and warrants (a) that he or she is fully and lawfully authorized by the Articles, Bylaws and/or resolutions of Customer to execute this Agreement for and in behalf of Customer and that Customer is fully bound thereby; (b) that Customer’s performance hereunder will not breach any other contractual obligations which it may have to third parties nor infringe upon any third party’s rights nor violate any law; and (c) that there are no actions, lawsuits or proceedings pending or threatened against or affecting said companies which would have any material adverse effect upon the rights granted or property sold by said companies under this Agreement, or in any way adversely affect this Agreement’s legality or enforceability.
4.2 Cumulative Remedies. The rights and remedies of the parties hereto shall be construed cumulatively, and none of their rights and remedies shall be exclusive of, or in lieu or limitation of, any other right, remedy or priority allowed by law, unless otherwise expressly stated herein to the contrary.
4.3 Force Majeure. Except for the obligation to make payments when due hereunder, all other obligations under this Agreement shall be suspended for so long as any party hereto is prevented from complying with the provisions hereof by acts of God, the elements, riots, war, acts of federal, state or local governments, agencies or courts, strikes, lock-outs, damage to or destruction or unavoidable shut-down of necessary facilities, or other matters beyond their reasonable control (specifically excluding, however, matters of mere financial exigency); provided, however, that any party so prevented from complying with its obligations hereunder shall promptly notify the other party(s) thereof and shall exercise all due diligence to remove and overcome the cause of such inability to comply as soon as practicable.
4.4 No Fiduciary or Agency Relationship. Except as expressly provided in this Agreement, the parties hereto expressly disclaim and disavow any partnership, joint venture, fiduciary, agency or employment status or relationship between them and expressly affirm that they have entered into this Agreement as independent contractors and that the same is in all respects an “arms-length” transaction. No party hereto has the authority to make any representation or warranty or incur any obligation or liability on behalf of any other party hereto, nor shall they make any representation to any third party inconsistent with this paragraph, except to the extent expressly permitted elsewhere in this Agreement.
4.5 Governing Law and Exclusive Jurisdiction. This Agreement, and all matters relating to or disputes arising out of this Agreement, shall be interpreted, governed, and enforced according to the laws of the State of Utah and the United States of America. This Agreement is made and entered into between the parties in the State of Utah, U.S.A., and all parties hereby consent to the exclusive jurisdiction of an appropriate court in the State of Utah to resolve such disputes or to enter and enforce any arbitration award between the parties. Moreover, the parties have selected the English language to express their agreement and no other language shall be used to interpret, define or govern this Agreement. The non-prevailing party shall pay the prevailing party’s costs, including attorneys’ fees, arising in connection with any breach of this Agreement.
4.6 Entire Agreement. This Agreement constitutes and represents the entire agreement of the parties hereto with respect to the subject matter hereof, and all other prior agreements, covenants, promises and conditions, oral or written, between these parties are incorporated herein or superseded in their entirety by this Agreement. No party hereto has relied upon any other promise, representation or warranty, other than those contained herein, in executing this Agreement.
4.7 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto, their heirs, personal representatives, successors and permitted assigns. By entering into this Agreement, Customer represents that, if an individual, it is 18 years or older, that Customer has read and understands this Agreement, and that Customer agrees to be bound by the terms in effect as updated by ZipLingo from time to time. If Customer does not understand or agree with the terms of this Agreement, do not click “I Agree.”
4.8 Assignment. Neither Party may assign this Agreement or otherwise transfer in any way any of the rights and obligations arising out of this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, (1) either Party may assign this Agreement to any entity who acquires (by merger, acquisition, or otherwise) all or substantially all of the business assets of such Party applicable to the subject matter of this Agreement; and (2) ZipLingo may subcontract any portion of the Services to a third party contractor without the prior consent of Customer, provided that ZipLingo remains fully responsible to Customer for the delivery of such Services as set forth in this Agreement. Any attempted assignment or delegation without such prior written consent, except as expressly set forth herein, will be void, or at the non-assigning Party’s sole discretion, may be treated as fully binding upon and in force and effect against any such successor or assign.
4.9 Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder, shall constitute a waiver of such right or remedy or any other right or remedy, or future exercise thereof.
4.10 Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
4.11 Digital Signature Provisions. Customer represents and warrants that the individual electronically agreeing to the terms of this Agreement is authorized and empowered to agree to this Agreement on Customer’s behalf. Clicking the “I Agree” option constitutes an electronic signature as defined by the Electronic Signatures in Global and National Commerce Act and this Agreement is completely valid, has legal effect, is enforceable and is binding on and non-refutable.