These Franfunnel Terms of Service ("Agreement") is entered into by and between Franfunnel LLC ("Franfunnel" or “we”) and the entity or person placing an order for or accessing any Franfunnel Services ("Customer" or "you"). If you are entering into this Agreement on behalf of your company, you represent that you are authorized to do so on behalf of your company, and all references to "you" or "Customer" in this Agreement refer to your company.
This Agreement sets forth the terms and conditions of your access and use of, and payment for, the software-as-a-service products and services that you order from us in connection with any Franfunnel ordering documents, online registration, or order confirmations that reference this Agreement ("Order Form"). (Please note that there are other defined terms used in this Agreement; the definitions are in Section 13 below.) This Agreement will apply to your initial purchase on the Effective Date and any future purchases you make, including by accessing or using the Services or entering into any other Order Form that refers to this Agreement. In all events, by accessing or using any of our Services, you are accepting these Terms. Please note that THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN THROUGH JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES.
The "Effective Date" of this Agreement is the date of (a) Customer's initial access to any Service (as defined below) through any order process, online provisioning, or registration, or, if otherwise expressly provided for in an Order Form, (b) the effective date of the first Order Form referencing this Agreement.
Changes to this Agreement: From time to time, Franfunnel may change this Agreement. Unless we specify otherwise, changes become effective for Customer upon renewal of Customer's current Term (as defined below) or entry into a new Order Form. Franfunnel will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email, or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Term or entering into a new Order Form, and in all events continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version. If Franfunnel specifies that changes to the Agreement will take effect before Customer's next renewal or order (such as for legal compliance or service-change reasons) and Customer objects to such changes, Customer may terminate the applicable Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Term.
1.1. Provision of Services. Each Service is provided on a subscription basis for a set term designated on the Order Form, or, if no particular service term is identified, then the ordered Services are provided for on a month-to-month basis (each, a "Term"). Customer will purchase and Franfunnel will provide the specific Services as specified in the applicable Order Form.
1.2. Access to Services. Customer may access and use the Services solely for its own benefit and in accordance with this Agreement, the Documentation and any restrictions designated in the applicable Order Form. Use of and access to the Services is permitted only by Permitted Users. If we provide Customer API keys or passwords to access the Services on Franfunnel's systems, Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party, then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor) of Customer, then Customer will immediately notify their Franfunnel account representative to facilitate the termination of such Permitted User's access to the Service.
1.3. Franfunnel Apps. To the extent Franfunnel provides Franfunnel Apps for use with the Services, subject to all of the terms and conditions of this Agreement, Franfunnel grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Term to use the object code form of the Franfunnel Apps internally, but only in connection with Customer's use of the Service and otherwise in accordance with this Agreement.
1.4. Deployment of Franfunnel Properties. Subject to all of the terms and conditions of this Agreement, Franfunnel grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Term to copy the Franfunnel Properties in the form we provide on Customer Properties solely to support Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement. In certain use-cases, Customer must implement Franfunnel Properties on the Customer Properties to enable features of the Services. Customer will implement all Franfunnel Properties in strict accordance with the Documentation and other instructions we provide. Customer acknowledges that any changes made to the Customer Properties after initial implementation of Franfunnel Properties may cause the Services to cease working or to function improperly and that Franfunnel will have no responsibility for the impact of any such Customer changes.
1.5. Contractors and Affiliates. Customer may permit its Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for Customer’s sole benefit.
1.6. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party without Franfunnel’s prior express written consent; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and only upon advance notice to Franfunnel); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services; or (f) publicly disseminate information regarding the performance of the Services.
1.7. Franfunnel APIs. If Franfunnel makes access to any APIs available as part of the Services, Franfunnel reserves the right to place limits on access to such APIs (such as limits on the numbers of calls or requests). Franfunnel may also monitor Customer's usage of such APIs and limit the number of calls or requests Customer may make if Franfunnel believes that Customer's usage is in breach of this Agreement or may negatively affect the Services or otherwise impose liability on Franfunnel.
2.1. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest (including any intellectual property rights) in and to the Customer Data as provided to Franfunnel. Subject to the terms of this Agreement, Customer hereby grants to Franfunnel a non-exclusive, worldwide, irrevocable, royalty-free right to use, copy, store, transmit and display the Customer Data.
2.2. Storage of Customer Data. Franfunnel does not provide an archiving service. Franfunnel agrees only that it will not intentionally delete any Customer Data from any Service before termination of Customer's applicable Subscription Term. Franfunnel expressly disclaims all other obligations with respect to storage.
2.3. Customer Duties.
a) In General. Customer is solely responsible for the accuracy, content and legality of all Customer Data and its use thereof. Customer represents and warrants to Franfunnel that Customer has all necessary rights, consents, and permissions to collect, share, and use all Customer Data as contemplated in this Agreement (including granting Franfunnel the rights in Section 2.1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer's accounts with any Third-Party Platforms. Customer will be fully responsible for any Customer Data submitted to the Services by any Person as if it was submitted by Customer.
b) No Sensitive Personal Information. Customer agrees not to use the Services to collect, store, process, or transmit any Sensitive Personal Information. Customer acknowledges that Franfunnel is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. Franfunnel will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
c) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation, any activities that violate Laws applicable to advertising, electronic communications, and telemarketing, including, but not limited to, Section 5 of the FTC Act (15 U.S.C. § 45), the CAN-SPAM Act (15 U.S.C. §§ 7701-7713), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108), the Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. § 310 et seq.), the Telephone Consumer Protection Act (47 U.S.C. §§ 227), the Federal Communications Commission regulations (47 C.F.R. 64.1200 et seq.) and orders implementing the Telephone Consumer Protection Act, all federal and state Do Not Call and calling-time restriction laws and regulations.
2.4. Indemnification by Customer. Customer will indemnify, defend and hold harmless Franfunnel from and against any and all losses, liabilities, claims, causes of action, demands, or damages of every kind brought by a third party, including all judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including expenses of litigation or arbitration, court or arbitration costs and attorneys' fees and other professional fees that Franfunnel may incur as a result of such third-party claims, demands, or causes of action (collectively, "Losses") arising out of or in connection with any claim arising from or relating to (a) Customer’s alleged breach of or activities under this Agreement; or (b) Customer’s use of the Services or Assets. Customer’s indemnification obligations under this Section 2.4 shall apply regardless of who may be at fault or otherwise responsible under any statute, rule, or theory of law, including but not limited to theories of strict liability, including, but not limited to, claims relating to the Telephone Consumer Protection Act or similar state and federal laws, and even though the subject loss, damage, or injury may have been caused in whole or in part by the concurrent, active, or passive negligence of Franfunnel or a defect in the Services. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Franfunnel at Customer's expense. Notwithstanding the foregoing sentence, (a) Franfunnel may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without Franfunnel's prior written consent, unless the settlement fully and unconditionally releases Franfunnel and does not require Franfunnel to pay any amount, take any action, or admit any liability. As noted below, this Section 2.4 shall survive the termination of this Agreement.
2.5. Aggregated Anonymous Data. Notwithstanding any other term of this Agreement, Customer agrees that Franfunnel may obtain and aggregate technical and other data about Customer's use of the Services that is non-personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and Franfunnel may use the Aggregated Anonymous Data for any lawful business purpose during and after the term of this Agreement, although Franfunnel agrees not to identify Customer as the source of any Aggregated Anonymous Data.
2.6. Your Phone Numbers. Franfunnel may offer the opportunity to enable you to use one or more phone numbers with the Services. If you use such a feature, you represent and warrant that (i) you will only use the Services for legal purposes and will comply with all applicable laws and regulations in connection with your use of the Services and any number you register or associate with your account, (ii) you have procured any and all necessary rights and licenses, and have the full power and authority, necessary to use any phone number you register or associate with your account, (iii) you will not use the services on a phone number that has been exchanged with, rented, or purchased from a third party unless you have received permission from the third party to do so.
The Services may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, Customer may be required to input credentials for the Services to access and receive relevant information from such Third-Party Platforms. By enabling use of the Services with any Third-Party Platform, Customer authorizes Franfunnel to access Customer's accounts with such Third-Party Platform. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that Franfunnel has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform. Franfunnel does not guarantee that the Services will maintain integrations with any Third-Party Platform and Franfunnel may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. Customer acknowledges that this Agreement governs Customer's use of and access to the Services even if accessed through an integration with a Third-Party Platform.
4.1. Franfunnel Assets. Customer acknowledges that it is obtaining only a limited right to access and use the Services and that no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Franfunnel (or, as applicable, its licensors or suppliers) retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements thereof, including as may incorporate Feedback (collectively, "Franfunnel Assets"). Except as expressly set forth in this Agreement, no rights in any Franfunnel Assets are granted to Customer. Further, Customer acknowledges that it has no right to obtain a copy of any of the Services, except for Franfunnel Properties and the Franfunnel Apps in the format provided by Franfunnel and in accordance with this Agreement.
4.2. Feedback. Customer may submit Feedback to Franfunnel. Franfunnel may freely use or disclose Feedback in connection with any of its products or services, and you irrevocably, non-exclusively license to us rights to exploit such Feedback.
5.1. Term and Renewals. Unless otherwise specified on the applicable Order Form, the standard subscription term to the Service is one month (from the Effective Date), and each one-month Term will automatically renew for additional one-month renewal periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Term.
5.2. Fees and Payment. All fees are as set forth in the applicable Order Form and will be paid by Customer in advance of the commencement of the applicable Term. Except as expressly set forth below in Sections 7 (Limited Warranty) and 9 (Indemnification), all fees are non-refundable. Customer is responsible for paying all Taxes. All Taxes are excluded from any fees set forth in the applicable Order Form. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
5.3. Payment Via Credit Card. If you pay for the Services via credit card, debit card, or other payment card ("Credit Card"), the following terms apply:
a) Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, Customer hereby authorizes Franfunnel (or its designee) to automatically charge Customer's Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Term for all fees due as of that date (if any) in accordance with the applicable Order Form.
b) Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Franfunnel and Franfunnel may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
c) Changing Credit Card Information. At any time, Customer may change its Credit Card information by promptly notifying its Franfunnel account representative.
d) Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Term by sending Franfunnel notice of non-renewal to support@franfunnel.com in accordance with Section 5.1 (Term and Renewals).
e) Payment of Outstanding Fees. Upon any termination of the Term, Franfunnel will charge Customer's Credit Card (or invoice Customer directly) for any outstanding fees for Customer's use of the Services during the Term, after which Franfunnel will not charge Customer's Credit Card for any additional fees.
5.4. Suspension of Service. If Customer's account is thirty days or more overdue, in addition to any of its other rights or remedies (including any termination rights), Franfunnel reserves the right to suspend Customer's access to the Services without liability to Customer until such amounts are paid in full. Franfunnel also reserves the right to suspend Customer's access to the Services without liability to Customer if Customer's use of the Services is in violation of this Agreement.
6.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
6.2. Termination for Cause. Either party may terminate this Agreement (including all Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
6.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Franfunnel Assets) and delete (or, at Franfunnel's request, return) any and all copies of the Documentation, any Franfunnel passwords or access codes and any other Franfunnel Confidential Information in its possession. Provided this Agreement was not terminated for Customer's breach, Customer may retain and use internally copies of all reports exported from any Service before termination. Customer acknowledges that following termination it will have no further access to any Customer Data input into any Service, and that Franfunnel may delete any such data as may have been stored by Franfunnel at any time.
6.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 1.6 (General Restrictions), 2.2 (Storage of Customer Data), 2.4 (Indemnification by Customer), 2.5 (Aggregated Anonymous Data), 4 (Ownership), 5.2 (Fees and Payment), 5.3 (Payment Via Credit Card), 6 (Term and Termination), 7 (Warranty Disclaimer), 8 (Limitation of Remedies and Damages), 9 (Indemnification for Infringement Claims), 10 (Confidential Information) and 12 (General Terms).
WITHOUT LIMITING OUR EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, FRANFUNNEL HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. EXCEPT FOR OUR EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
8.1. INDIRECT DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION 8.1 SHALL NOT LIMIT (A) CUSTOMER’S LIABILITY ARISING FROM ITS BREACH OF SECTION 2; (B) EITHER PARTY’S LIABILITY ARISING FROM SUCH PARTY’S BREACH OF SECTION 10 (CONFIDENTIAL INFORMATION); OR (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
8.2. DIRECT DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM. THIS SECTION 8.2 SHALL NOT LIMIT (A) YOUR LIABILITY ARISING FROM YOUR BREACH OF SECTIONS 2 OR 5; OR (B) EITHER PARTY’S LIABILITY ARISING FROM SUCH PARTY’S BREACH OF SECTION 10 (CONFIDENTIALITY); OR (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THESE TERMS. THE PROVISIONS OF THIS SECTION 8 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
9.1. Indemnification by Franfunnel. We will defend, indemnify, and hold you harmless from and against all claims, demands, actions, and suits (“Claim”) brought or threatened against you by a third party and any damages, liabilities, losses, settlements, judgments, costs and expenses (including, without limitation, reasonable attorney’s fees and costs) (“Losses”) related thereto alleging the use of the Franfunnel Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, or patent (“Infringement Claim”).
9.2. Infringement Options. If your use of the Franfunnel Services has become, or in Franfunnel’s opinion is likely to become, the subject of any Infringement Claim, Franfunnel may at its option and expense: (a) procure for you the right to continue using the Franfunnel Services as set forth herein; (b) modify the Franfunnel Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms and refund you any unused pre-paid fees. This Section 9.2 states your exclusive remedy, for any Claim by a third party alleging that the use of the Franfunnel Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, trademark or patent.
9.3. Limitations. Franfunnel will have no liability or obligation with respect to any (a) Claim and any Losses related thereto arising out of your use of the Franfunnel Services in breach of this Agreement or (b) Infringement Claim and any Losses related thereto arising out of the combination, operation, or use of the Franfunnel Services with other applications, portions of applications, products, or services where the Franfunnel Services would not by themselves, and without modification, be infringing.
Each party (as "Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Franfunnel Assets, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Franfunnel without any marking or further designation required. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Franfunnel, Subcontractors), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in writing in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
Customer hereby grants Franfunnel a revocable right to use Customer's name and logo on Franfunnel's web site and in Franfunnel promotional materials and to disclose Customer as a customer of Franfunnel. Customer agrees to provide Franfunnel notice of any revocation of this right and 30 days for Franfunnel to remove any reference to Customer on Franfunnel’s website.
12.1. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void.
12.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
12.3. Agreement to Arbitrate; Governing Law.
Before bringing a formal legal case, the parties agree to attempt to resolve any disputes arising out of this Agreement through informal dispute resolution means.
a) Agreement to Arbitrate. If a dispute cannot be resolved informally, the parties hereby agree to resolve any dispute relating to this Agreement or the Franfunnel Services or Assets by binding arbitration in New York, New York, or in another location that we have both agreed to. This applies to all claims under any legal theory, unless the claim fits in one of the exceptions below. It also applies even after you have stopped using your Franfunnel Services. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, the parties agree that the arbitrator will decide that issue. The parties understand and agree that they are giving up the right to have a judge and/or jury resolve any controversy or claim arising out of or relating to this Agreement or the Franfunnel Services or Assets.
b) Exceptions to Agreement to Arbitrate. The parties agree that either party may seek available judicial relief or remedies to resolve disputes relating to either party’s intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents).
Further, either party can bring a claim in small claims court either in New York, New York, or the county where Customer maintains its principal place of business, or some other place we both agree on, if it qualifies to be brought in that court. In addition, if either party brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is pending.
c) Arbitration Procedure. Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this Section 12 conflicts with the Rules, the language of this Section 12 applies. Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 12 does not alter in any way the statute of limitations that would apply to any claims asserted by either party. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of New York and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify this Agreement. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
d) Class Action Waiver. Both parties agree that any claims or controversies between us must be brought against each other on an individual basis only. Thus, neither party can or will bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). Further, the arbitrator’s decision or award in one party’s case can only impact the person or entity that brought the claim, not other Franfunnel customers, and cannot be used to decide other disputes with other customers. If a court decides that this Section 12.3 (Class Action Waiver) is not enforceable or valid, then the entire Section 12 (Agreement to Arbitrate) will be null and void, but, the rest of this Agreement will still apply.
e) Governing Law and Venue. The enforceability and interpretation of Section 12.3 (Agreement to Arbitrate) will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from Section 12.3, this Agreement will be governed by and interpreted according to the laws of the State of New York without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 12.3 (Agreement to Arbitrate), any legal suit, action or proceeding arising out of or related to these Terms or the Franfunnel Services shall be instituted in either the state or federal courts of New York, New York, and we each consent to the personal jurisdiction of these courts.
12.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
12.5. Amendments; Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
12.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
12.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, pandemic, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
12.8. Subcontractors. Franfunnel may use the services of subcontractors and permit them to exercise the rights granted to Franfunnel in order to provide the Services under this Agreement, provided that Franfunnel remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement.
12.9. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
12.10. Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country, (ii) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
12.11. Construction. Both parties to this Agreement will be considered the Agreement’s author and agree that these terms result from negotiations between the parties. Any ambiguities that exist shall not be construed against either party.
12.12. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together will be considered one and the same agreement.
"Affiliate" means any entity under Customer’s control, where "control" means ownership of or the right to control greater than 50% of the voting interests of that entity.
"Contractor" means an independent contractor or consultant that is not a Franfunnel competitor.
"Customer Data" means any information, data, text, messages or other materials that are made available to us, submitted to, or sent to Customer’s People via the Services by or on behalf of Customer, including, without limitation: (a) data submitted, uploaded, imported to or sent via the Services by Customer (including from Third Party Platforms) and (b) data sent or provided to, by or about People (including email, SMS, MMS, chat, and messages and logs thereof) that are collected from the Customer Properties or sent using the Services.
"Customer Properties" means the websites, apps, email applications, or telephony or messaging systems or other tools owned and operated by Customer (or for its benefit, including, without limitation, those systems and devices through which Customer’s agents and employees use the Services) and through which Customer uses the Services to communicate with People.
"Dashboard" means Franfunnel's user interface for accessing, using, and administering the Services, which Customer may access via the web or the Franfunnel Apps.
"Documentation" means technical user documentation provided with the Services, including, without limitation, onboarding documentation, launch guides, and FAQs, as revised from time to time.
"Feedback" means suggestions, comments, questions, or other feedback relating to any Franfunnel product or service.
"Franfunnel App" means any mobile application, browser web app, or desktop client software included in the applicable Service that Franfunnel makes available to you directly or via a third party, such as the Apple App store or Google Play.
"Franfunnel Properties" means certain software, integrations, email addresses, code, software development kits (SDKs) or other code or intellectual property provided by Franfunnel for deployment on Customer Properties.
"Laws" means all applicable local, state, federal, and international laws, regulations, ordinances, rules, judgments, orders and conventions of a government, court, or tribunal of competent jurisdiction, including, without limitation, those related to marketing, telemarketing, data privacy and data transfer, communications, franchises, and the exportation of technical or personal data.
"People" (in the singular, "Person") means Customer's end user customers or franchisees, potential customers or potential franchisees, and other users of and visitors to the Customer Properties.
"Permitted User" means an employee or Contractor of Customer or its Affiliate who is authorized to access the Service.
"Sensitive Personal Information" means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA"); or (iii) any other personal data of an EU citizen deemed to be in a "special category" (as identified in EU General Data Protection Regulation or any successor directive or regulation).
"Services" means the functionality provided through Franfunnel's proprietary software-as-a-service solution(s), including, but not limited to, the Dashboard, Franfunnel application programming interfaces (APIs), Franfunnel Properties, and Franfunnel Apps, which, among other things, and depending on your particular Order Form, includes the ability to send and/or receive emails, Short Message Service (SMS) messages and may enable Multimedia Messaging Service (MMS) messages; forward telephone calls to numbers you designate; calendar events; and to ingest, organize, manage and respond to communications; denote the communications history of your interactions with People; and provision one or more telephone numbers to facilitate the receipt of SMS, MMS and/or other communications, which telephone number(s) Customer understands and agrees are provisioned by third parties and subject to those party(ies) practices and policies.
"Taxes" means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on Franfunnel’s income.
"Third-Party Platform" means any software, software-as-a-service, data sources or other products or services not provided by Franfunnel that are integrated with any Services.