Notified Terms and Conditions
Effective August 9, 2023
IMPORTANT! READ CAREFULLY. CUSTOMER’S ACCESS TO AND USE OF NOTIFIED’S ARE CONDITIONED UPON CUSTOMER’S COMPLIANCE WITH AND ACCEPTANCE OF THIS AGREEMENT. CUSTOMER IS ENCOURAGED TO PRINT OR DOWNLOAD THESE TERMS AND CONDITIONS AND SAVE THEM FOR CUSTOMER’S RECORDS.
This Agreement (the “Agreement”) is between the individual or legal entity using, purchasing or opening an account for Services (“Customer”) and the Notified Entity which signs an applicable Order Form with Customer or which invoices for the Services (“Notified”). Notwithstanding the foregoing, if Customer and Notified have executed a written master agreement, such agreement will apply to the Order Form in lieu of the terms herein. Please read this Agreement carefully before installing, accessing, or otherwise using the Services. By installing, accessing, or otherwise using Services, Customer agrees to be bound by this Agreement. Please maintain a copy for Customer’s records. If Customer does not agree with the terms of this Agreement, do not use the Services. This Agreement governs Customer’s purchase and use of software-as-a-service platform service(s) or related services provided pursuant to one or more order forms, purchase orders, service schedules or statements of work (each, an “Order Form”) between Customer and an Notified Entity. Order Forms may be for proprietary services provided by an Notified Entity (“Notified Services”) or a Notified third party supplier(s) (“Third Party Services”) (collectively, “Services”). “Notified” means Digital Media Innovations, LLC, Digital Media Innovations Sweden AB, DMI Digital Media Innovations Canada, Inc., Digital Media Innovations UK Limited, Digital Media Innovations Australia Pty. Ltd., Digital Media Innovations Singapore Pte. Ltd., Digital Media Innovations Hong Kong Limited, or other such Notified entity based on the Order Form signed by Customer. References to “Notified” herein apply to the Notified Entity identified in the applicable Order Form, and Customer will look only to such Notified Entity regarding any obligation under any Order Form with that Notified Entity.
1. Term and Termination
1.1. Term. This Agreement begins on the Order Form Effective Date and will remain in effect for the duration of any and all Order Forms unless earlier terminated in accordance with the terms hereof. Termination of any Order Form will not affect this Agreement or any other Order Form. The term of each Order Form, if any, shall be governed by such Order Form and shall continue for the term of the Order Form notwithstanding any termination of this Agreement.
1.2. Termination. If either party fails to cure a material default within 30 days after notice of the default (or within 14 days for late payments of undisputed amounts due), the non-defaulting party may terminate the applicable Order Form and pursue any other available remedies at law or equity. A party’s insolvency, assignment of any or all of its assets for the benefit of its creditors or voluntary or involuntary filing for dissolution, liquidation or bankruptcy will be a material breach. If Customer terminates an Order Form for cause, Notified will reimburse Customer for any applicable amounts prepaid and unused by Customer under such Order Form and Customer will be relieved of any future payments or minimum commitment related to the terminated Order Form. Otherwise, upon any termination of an Order Form, Customer will pay for all Services rendered through the termination date, any future amounts due under the Order Form, and the shortfall of any applicable minimum commitment(s). The parties agree that Notified has made pricing concessions based on the provisions agreed to herein and that any minimum commitment shortfall payments due are a fair approximation of the damages to Notified and do not constitute a penalty.
1.3. Survival. All provisions of this Agreement, any Service Schedule and any Order Form which, by their nature should survive termination will so survive, including the following sections: Term and Termination, Payments and Charges, Responsibility for Accounts, Responsibility for Content of Communication, Limited Warranty, Limitation of Liability, Indemnification, Confidentiality and Miscellaneous.
2. Payments and Charges.
2.1. Payments. Customer will pay the fees described in each Order Form. Payment will be made by electronic funds transfer. Customer shall make payment electronically within 30 days of the date of invoice to the account identified on each invoice. Notified will apply payments first to the oldest outstanding invoice. Customer must notify Notified of any billing disputes within 30 days from the date of invoice, otherwise Customer will be deemed to agree to such charges.
2.2. Unpaid Amounts. If undisputed invoices are not paid when due, Notified may refuse to accept any new order(s) and/or suspend Services until Customer’s account is current. Reinstatement of Services may be conditioned on satisfactory assurance of Customer’s ability to pay for Services, including modified payment terms. Such suspension will not relieve Customer of payment liability accrued through the date of such suspension and any subsequent reinstatement of Services, including any reinstatement fee. Customer will pay interest from the due date on all past due amounts at the lower of 1.5% per month or the highest rate allowed by law. Customer will pay all reasonable costs of collection, including attorneys’ fees.
2.3. Taxes. In addition to fees for the Services, Customer will pay to Notified any Service-related sales, use, excise, value-added, gross receipts, services, consumption and other similar taxes, however designated (“Taxes”), except taxes based on Notified’s income or employees. If a taxing authority determines Notified has incorrectly determined any Tax liability, or if Notified believes any new or additional Taxes apply, Notified will notify Customer and such Taxes will be payable by Customer. If Customer is legally required to deduct or withhold amounts from payments to Notified, then Customer will pay Notified such additional amounts so the net amount Notified receives from Customer is equal to the full amount for the charges which Notified would have received from Customer had such withholding not been made and Customer will pay the applicable tax authorities any such required deduction or withholding. Any tax exemption must have appropriate documentation.
3. Right to Use the Services.
Subject to Customer’s compliance with this Agreement, Notified grants Customer a nonexclusive, nontransferable right to use the Services identified any Order Form for its internal business purposes. Notified or its suppliers retain exclusive ownership of its intellectual property rights, and all rights, title and interest in, to and under its trademarks, service marks, tradenames and logos, and any intellectual property relating to or embodied in the Services, including all technology, telephone numbers, web addresses, software, systems, designs, data, specifications, know-how, devices, techniques, algorithms, methods or inventions, whether or not reduced to practice, and any developments, enhancements, improvements or derivative works relating thereto. All of the foregoing constitute Notified’s proprietary information. Customer hereby grants to Notified a worldwide, non-exclusive, royalty-free license to use, reproduce, transmit and distribute the Customer Content solely as necessary for Notified to provide the Services provided under each Order Form. Subject to the foregoing, Customer retains all right, title and interest in and to the Customer Content. Customer agrees to not reverse engineer, decompile, disassemble, translate or attempt to learn the source code of any software related to the Services. Customer will not use the Services contrary to or outside of the technical limitations provided or approved by Notified. Customer may not resell, license or sublicense the Services. Notified may from time to time, upon reasonable advance notice to Customer, modify the Services and the documentation as Notified feels is appropriate, provided that, any such modification does not materially adversely affect the quality of the Services. Notified reserves the right, upon reasonable advance notice, where practicable, to suspend the performance of its obligations under this Agreement for the purposes of improving or maintaining the quality of the Services.
4. Responsibility for Accounts.
Customer is responsible for maintaining the confidentiality of Customer’s accounts, owner numbers, access codes, passwords and personal identification numbers used with the Services, and for all authorized or unauthorized use of the Services in association with Customer’s accounts including, but not limited to, unintended usage due to holidays, daylight savings, computer clock errors or similar circumstances. Customer will immediately notify Notified if it becomes aware of any unauthorized use of Customer’s accounts.
5. Responsibility for Content of Communication.
Use of Services. Customer will provide information reasonably requested by Notified to perform the Services, including as applicable: telecommunication specifications, Customer or third party telephone numbers and location information, and network architecture and diagrams. As between Customer and Notified, Customer is the sole owner and is solely responsible for all such information and for all content provided to Notified, including all audio, visual, electronic or written communications (collectively “Customer Content”) on Customer’s accounts. Customer warrants that Customer is solely responsible for the content and rights to Customer Content. Customer will comply with all laws, rules and regulations while using the Services, and ensure it has the right to use the Services where Customer is located and where any of its users or invitees are located. Customer will not (i) transmit any communication that violates any law, rule or regulation; (ii) violate any third party rights in the course of using the Services; (iii) use the Services in any way that damages Notified’s property or interferes with or disrupts Notified’s system(s) or other users; or (iv) transmit, upload, receive or store on or through Notified’s network any Customer Content or other material that contains any viruses, worms, “Trojan Horses” or other code features that may damage, disrupt or disable computers, networks or any information thereon. Although Notified is not responsible for any such communications, Notified may suspend any such communications, provided that any such suspension will be limited in scope to the extent necessary to identify and/or resolve the suspect communication(s). Customer acknowledges and agrees Notified does not control or monitor Customer Content and does not guarantee the accuracy, integrity, security or quality of Customer Content. Recording any use of the Services may subject Customer to laws or regulations and Customer is solely responsible for and obligated to provide any required notification to those being recorded.
6. Limited Warranty.
Notified warrants that Services will be provided in a workmanlike manner, in accordance with industry standards and by individuals with suitable skills and abilities. To enable Services, the parties may use networks, facilities and technology which are not in the parties’ possession or under the parties’ direct control; therefore, Notified cannot provide warranties relating to such networks, facilities or technology. EXCEPT AS OTHERWISE PROVIDED IN THE PRIOR SENTENCE, CUSTOMER UNDERSTANDS AND AGREES THAT LICENSES AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NOTIFIED AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEROPERABILITY, OR THAT SERVICES OR RELATED SYSTEMS WILL BE UNINTERRUPTED OR ERROR FREE.
7. Limitation of Liability.
IN NO EVENT WILL NOTIFIED OR ITS SUPPLIERS OR ANY NOTIFIED ENTITY BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OR LOSS OF GOODWILL, DATA OR PROFITS, OR COST OF COVER, REGARDLESS OF THE LEGAL THEORY OF RECOVERY, EVEN IF NOTIFIED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTIFIED’S MAXIMUM CUMULATIVE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIMS WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF RELATED TO THE SERVICES OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SERVICES UNDER THE APPLICABLE ORDER FORM DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING ANY SUCH CLAIM. ANY SUIT MUST BE FILED WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES.
8. Indemnification
8.1. Notified Indemnification. Notified will indemnify and hold Customer, Customer Affiliates and their officers, directors and employees harmless from any and all third party claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys’ fees and expenses (collectively, “Claims”), which arise out of or result from Notified’s violation of applicable law or any Claim against Customer that the Notified Services infringe a patent, copyright, trademark or other similar property right in the United States or Canada; provided that Notified will have no indemnity obligation to the extent arising from: (i) Customer’s negligence, breach of the Agreement or alteration of the Services; (ii) Services that are based upon information, design, specifications, directions, instruction, software, data, or material not furnished by Notified; (iii) combination of the Notified Services with any item not provided by Notified; or (iv) Third Party Services. If such an infringement claim is or is likely to be made, Notified will, at its own expense and sole discretion, exercise one or more the following remedies: (1) obtain for Customer the right to continue to use the Notified Services consistent with this Agreement; (2) modify the Notified Services so they are non-infringing and in compliance with this Agreement; (3) terminate the applicable Notified Services without liability for such termination other than (a) the refund of pro-rated amounts prepaid and unused as of the date of termination for the applicable Notified Service, and (b) Notified’s ongoing indemnity obligation hereunder. The foregoing states the entire obligation of Notified and its suppliers, and the exclusive remedy of Customer, with respect to infringement of proprietary rights.
8.2. Customer Indemnification. Customer will indemnify and hold Notified, Notified Affiliates and their officers, directors and employees harmless from any and all Claims which arise out of or relate to Customer’s violation of applicable law, Customer Content, Customer-provided systems, hardware, software, data or other materials or devices, or Customer’s use of the Services in violation of the terms of this Agreement or Order Form.
8.3. Indemnification Procedure. The party seeking indemnification for a Claim must: (i) promptly notify the indemnifying party in writing of the Claim; (ii) relinquish control of the defense and settlement of the Claim; and (iii) assist the indemnifying party as reasonably requested. The indemnifying party may settle any Claim without the indemnified party’s consent if the settlement does not affect the rights of the indemnified party. The indemnified party may participate in the defense of the Claim at its own expense.
9. Confidentiality.
Each party may disclose (the “Discloser”) Confidential Information to the other party (the “Receiver”). Receiver will use Confidential Information only in connection with Services performed or received, hold Confidential Information in confidence, and not disclose Confidential Information except to its Affiliates, employees or agents who have need to know such Confidential Information in order to perform such party’s obligations under this Agreement. Receiver is responsible for such parties’ compliance with the confidentiality obligations set forth herein. Confidential Information means all information disclosed by Discloser that is marked as confidential or proprietary or that by its nature or context constitutes information that a reasonable businessperson would treat as proprietary, confidential, or private, even if not so marked. Confidential Information includes the terms of this Agreement and any Order Form, business strategies, marketing plans, industry and competitive information, technology, trade secrets, computer systems, software, analytical procedures, techniques, skills, ideas, models, research, pricing, employee information and financial information of each party and its Affiliates. Confidential Information will not include information (i) generally available to the public other than by Receiver’s breach of this Agreement; (ii) already known to the Receiver at the time of disclosure by Discloser; (iii) rightfully received from a third party without restriction on disclosure; or (iv) independently developed by a party without use of Discloser’s Confidential Information. Neither party will have any right in the other party’s Confidential Information and will return or destroy all such Confidential Information upon written request of Discloser, provided that Confidential Information residing on Receiver’s backup, disaster recovery or business continuity systems will not be subject to return or destructions but will continue to be subject to all other terms of this Agreement until destroyed. Receiver may disclose Discloser’s Confidential Information as required by law or court order, provided that Receiver (unless prohibited by law) promptly notifies Discloser and cooperates with Discloser in Discloser’s efforts to challenge the disclosure or seek appropriate protective order.
10. Data Protection.
Each party will comply with any applicable data protection legislation existing in all jurisdictions in which Services are performed (together, the “Data Protection Laws”). The parties agree provision of the Services may involve the collection, processing, storage or recording of certain “Personal Data” or “Personal Information” (as defined by applicable Data Protection Laws and referred to collectively herein as “Personal Data”) of Customer and participants. Where applicable under Data Protection Laws, the parties acknowledge Notified acts as a “Data Processor” in relation to the Personal Data it processes on Customer’s behalf and Customer remains the “Data Controller” with respect to such Personal Data. Notified is a “Service Provider” as defined in the California Consumer Privacy Act. Notified hereby undertakes that it will (i) use Personal Data only to provide and administer Services as outlined in the applicable privacy statement(s) referenced below; (ii) process the Personal Data in accordance with Customer’s instructions and only to provide Services specified in this Agreement and any applicable Order Form; (iii) implement appropriate security measures designed to provide a commercially reasonable level of protection of the Personal Data; (iv) implement and maintain commercially reasonable technical and organizational measures, insofar as is possible, for the fulfillment of Customer’s obligations to respond to requests by users of the Services (“Data Subjects”); (v) take commercially reasonable steps to destroy or permanently de-identify Personal Data when it no longer is necessary to retain it; (vi) ensure that its employees authorized to process Personal Data are bound to appropriate confidentiality obligations; (vii) not sell Personal Data; (viii) not retain, use or disclose Personal Data outside of the direct business relationship between the parties; and (ix) ensure any applicable third party suppliers agree to substantially similar terms with respect to the processing of Personal Data. Personal Data may be collected, processed and/or stored by Notified or its third party suppliers in the United States of America, the United Kingdom, the European Union and the rest of the world. Customer represents and warrants it has a valid lawful basis for Notified to process the Data Subjects’ Personal Data in connection with the Services in accordance with applicable Data Protection Laws. Notified processes Personal Data in accordance with the applicable privacy policies set forth at https://www.notified.com/privacy.
11. Messages.
If Customer uses the Services to send fax, email, phone, text, SMS or other messages (collectively, “Messages”) to any recipients (“Recipients”), as a condition for using such Services Customer represents and warrants that: (i) Customer is solely responsible for the Messages; (ii) Customer has the legal right to send all Messages to the Recipients (including obtaining any required consents from the Recipients); (iii) the content, timing and purpose of all Messages, campaigns and programs are in compliance with all laws, rules and regulations; (iv) Customer is the sender of all Messages, and Notified is merely acting at Customer’s direction as the transmitter of the Messages; (v) Notified’s transmission of the Messages will not violate the rights of any third party or any law, rule or regulation; (vi) Customer has prior express consent to contact each wireless number delivered by Customer to Notified in connection with the provision of Services; (vii) in the case of a wireless phone number, the intended Recipient is the current subscriber to, or the non-subscriber customary user of, the wireless phone number; and (viii) Customer has, unless an exemption applies (for U.S. Customers), obtained from the Recipient of any solicitation Message an express written agreement that meets the requirements set forth in Section 310.4(b)(1)(v)(A) of the FTC’s Telemarketing Sales Rule and Section 64.1200(f)(8) of the FCC’s Telephone Consumer Protection Act Rules. Customer may use the Services to transmit Customer Content or direct Notified to make contacts via any channel to, or with, Recipients to transmit Customer Content. Where Notified reasonably believes Customer may not have complied with the provisions of this Section, Notified may, at its option, scrub all numbers against any appropriate database deemed necessary to remove all wireless numbers and/or temporarily suspend Services related to the compliance concern. Upon request by Notified, Customer will promptly provide, in writing, proof of prior express consent and Customer’s process for consent management.
12. Affiliates.
Services may be provided in whole or in part by Notified or any Notified Affiliates, including telecommunication Services which may be provided by an appropriately registered Notified Affiliate. “Notified Affiliate” will mean any legal entity that owns, is owned by or is commonly owned by or with Affiliate, where “own” means holding or controlling more than fifty percent (50%) of the shares, interest or assets of the entity. “Customer Affiliate” will mean any legal entity that owns, is owned by or is commonly owned by or with Customer, where “own” means holding or controlling more than fifty percent (50%) of the shares, interest or assets of the entity. Subject to Notified’s approval and the terms of this Agreement, Customer Affiliates may place orders with Notified, execute Order Forms with Notified, or otherwise use the Services pursuant to the terms of this Agreement. Customer will be directly liable for all Customer Affiliates’ obligations to Notified unless such Customer Affiliate executes a separate agreement with Notified. As purchasing agent for such Customer Affiliate(s), Customer represents and warrants it has authority to bind such Customer Affiliate(s) to this Agreement and will cause each Customer Affiliate to comply with this Agreement and any Order Form.
13. Governmental Agencies.
Use of the Services by the United States Government or other governmental agencies shall be as “restricted computer software” or “limited rights data” as set forth in 48 CFR 52.227-14, or as “commercial computer software” or “commercial computer software documentation” under DFARS 252.227-7202, or under such other similar applicable terms and conditions to prevent the transfer of rights in and to the technology to the government or such agency other than under normal commercial licensing terms and conditions. Contractor/manufacturer is Digital Media Innovations, LLC, 11650 Miracle Hills, Drive, Omaha, NE 68154.
14. Miscellaneous.
14.1. Waiver; Amendment.Any failure of a party to comply with, or to insist upon strict compliance with, any obligation or condition herein may be waived only in writing by the other party. No course of dealing between the parties will be construed as a waiver or amendment of any right or obligation under this Agreement. This Agreement may be modified or amended only in a writing signed by the parties.
14.2. Assignment Neither party may assign this Agreement in whole or in part without the prior written consent of the other party, not to be unreasonably withheld, provided that no such consent will be required for assignment (i) to an Affiliate that has the financial ability to meet the assignor’s contractual obligations, or (ii) in connection with a sale of all or substantially all of its assets, either in a stock transaction or asset sale, or a merger or similar transaction. Any such permitted assignment will not relieve the assigning party of its obligations hereunder. Subject to the foregoing, this Agreement will be binding upon the parties and their respective permitted successors and assigns.
14.3. Governing Law; Venue. The following chart establishes the governing law (without regard to conflicts of laws principles) and exclusive jurisdiction and venue for all claims arising under this Agreement or any Order Form, based on the Notified Entity that sign the applicable Order Form.
Customer irrevocably consents, on behalf of itself and any Customer Affiliate(s), to the exclusive jurisdiction of the applicable courts shown above for purposes of any legal action. Application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded.
14.4. Compliance with Laws. Each party will comply with all laws, rules and regulations applicable to it or the Services. Notified may modify or improve Services during the term, and may cease or modify Services or this Agreement without liability as reasonably required to comply with changes in law, or if any law, rule, regulation or policy may cause Notified to become regulated. If applicable, each party will be entitled to the same governmental or other immunity or other protections afforded by any law, rule, or regulation to the other party, and neither party will object to or interfere with the other party’s application of this sentence. Customer is responsible for ensuring compliance with any applicable accessibility laws and standards as part of its design, implementation and use of the Services.
14.5. Notices. All legal notices must be in writing and delivered to the applicable address set forth on the first page of this Agreement. Legal notices are effective when delivered by hand, overnight courier or fax with confirmed receipt, or for U.S. Customers three days after deposit in the United States mail when sent by certified or registered U.S. Mail, charges prepaid, return receipt requested. Either party may update its address for legal notices by sending notice to the other party in accordance with this section. Customer agrees that service, product and standard rate notices may be communicated to Customer via invoice or via email.
14.6. Force Majeure. Neither party will be liable for delays or defaults in its performance (except for its payment obligations) due to causes beyond its reasonable control, including: acts of God; fire or explosion; flood; stability or availability of the Internet; the elements; telecommunication system failure; war; civil disobedience; weather; technology attacks; epidemic; acts of terrorism; riots; embargoes; quarantine; viruses; strikes; lockouts; failure of transportation, utilities, or suppliers; or acts or requests of any governmental authority; or any other cause beyond its reasonable control, whether or not similar to the foregoing.
14.7. Signature; Entire Agreement. This Agreement and any Order Form may be executed by electronic signature, in any number of counterparts, all of which will be considered an original and may be evidenced by scanned or electronic copy. This Agreement, together with any Order Form(s) constitute the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, representations, warranties, promises or agreements, whether oral or written. All such matters are merged into and superseded by this Agreement, and no Customer-provided, pre-printed or form terms (including those on a purchase order) will apply.
14.8. Use of Trademarks and Names. Neither party may use the other party’s name, trademarks, trade names or logos for any purposes without the prior written approval of the other party or to the extent necessary to provide the Services. Notwithstanding the preceding, Notified may use Customer’s name and logo as part of a list of customers and may refer to Customer as a user of its Services in its advertising and marketing activities.
14.9. Independent Contractor. The parties are independent contractors. No agency, joint venture, employer-employee or partnership relationship is intended or created under this Agreement. This Agreement benefits Customer and Notified (and their respective Affiliates) only; there are no third party beneficiaries, including any customers of Customer.
14.10. Interpretation. “Including” means “including, without limitation,” and “days” refers to calendar days. No inference may be drawn or rules of construction applied against either party to interpret ambiguities. Any provision held unenforceable will be enforced to the fullest extent permitted by law and will not affect the other provisions of this Agreement or any Order Form.
14.11. Modification. Notified may, at any time, amend the provisions of this Agreement by posting amended terms on its Website. Such terms will automatically become effective ten (10) days after they are posted on the Website. By using the Services after such revised terms are posted, Customer agrees to be bound by any such amended provisions. Therefore, Customer agrees to periodically visit the Website to examine the then-current Agreement. Any amendment proposed by Customer may only be accepted by Notified in a non-electronic writing duly executed by authorized representatives of the parties.