Customerly Terms and Conditions

Please read carefully

The Agreement set forth here below (hereinafter referred to as the “Agreement”) is entered into by and between Customerly Ltd (hereinafter referred to as “Customerly”) and the person, the entity, or the person on behalf of an entity/company or another person, accessing, using or expressly accepting Services provided by Customerly (hereinafter referred to as the “Client”).

Through this Agreement the Client can purchase online software, services and any other products from Customerly by the subscriptions of order forms, online registration, order confirmations and any other procedure proposed by Customerly on its website, by the dispatch of e-mail, referring to this Agreement. The Agreement sets forth terms and conditions under which products and services will be delivered and it governs subsequent Client’s purchases as well.

The Agreement Effective Date below (hereinafter referred to as “Effective Date”) is the date of the first Client’s access to any Services (as listed below) through any online provisioning, registration or order procedure.

Within the meaning and for the purposes of this Agreement Customerly means Customerly Ltd, an Irish Corporation with offices at Accountantonline Colab Centre Port Road, LETTERKENNY, F92 RKC7, Ireland

Client's billing address indicated on the applicable Order Form, can be located anywhere in the world.

Agreement Modifications: Customerly could periodically modify this Agreement by notifying the Client of the changes that will become effective upon renewal of Client’s subscription term or upon the entry into a new order form. Customerly will use Client's account, email or other reasonable means to notify any changes to the Client. Client may be required to click to accept or agree to the modifications.
The new Agreement Effective Date will be the date of the Client’s explicit acceptance or the continued use of the Services considering that as a silent acceptance after the publication of the updated version of the Agreement.

In case the notified changes will take effect before the next renewal. the Client may object to the changes and may terminate the applicable terms and use the applicable service until the expiration of the previous terms.

The explicit or evident and silent acceptance of the Agreement as well as the access or use of any Customerly’s Services means to the Parties to be bound by all terms, conditions and notices indicated in this Agreement.

If the Client does not agree to all terms, conditions and notices of this Agreements needs to avoid any use of any services provided by Customerly.

Customerly and the Client legally binding upon this Agreement expressly agree about a mandatory arbitration provision that provide the use of Arbitration to resolve disputes, rather than jury trials.

Definitions

"Affiliate" means any entity or person which is or will be under the Client’s control where "control" means ownership of or the right to address and control Affiliate’s decision and action.

"AUP" means Customerly's Acceptable Use Policy, available here or a successor URL.

"Contractor" means an independent contractor or consultant who is not a competitor of Customerly.

"Client Data" means any data of any type that is submitted to the Services by or on behalf of the Client, including without limitation: (a) data submitted, uploaded or imported to the Services by the Client (including from Third Party Platforms) and (b) data provided by or about People (including chat and message logs) that are collected from the Client using the Services.

"Client Properties" means Client's websites, apps, or any other tools and instruments owned and managed by (or for the benefit of) Client through which Client uses the Services for communication purposes with People.

"Dashboard" means Customerly’s user interface for accessing and administering the Services that Client may access via web or via Customerly Apps.

"Documentation" means the user documentation and instructions provided with the Services.

"Feedback" means comments, questions, suggestions or other feedback coming from Client relating to any Customerly product or service, used or suggested.

"Customerly App" means one or more mobile applications included in the applicable Service that is or will be made available by Customerly.

"Customerly Integration Code" means the JavaScript code, software development kits or other code provided by Customerly for installations, placement and settings on Client Properties.

"Laws" means all applicable local, state, european and international laws, regulations and conventions including, without limitation, related to data privacy and data transfer, international communications, and exportation of technical or personal data.

"People" (and singular "Person") means Client’s end user or potential customers or any other people using or visiting Client Properties.

"Permitted User" means any Client’s employee or Contractor or Affiliate who is or will be authorized to access the Services.

"Sensitive Personal Information" means every information related to: (i) credit, debit or other payment card data subject; (ii) patient, medical or other protected health information; or (iii) any other personal data of an EU citizen deemed to be in a "special category" (as identified in EU Data Protection Directive 95/46/EC or any successor directive or regulation).

"Services" means any software-as-a-service solution, full owned by Customerly, including the Dashboard, Customerly’s application programming interfaces (APIs), Customerly Integration Code and Customerly Apps, as described in Customerly Home Page.

"Taxes" means any domestic or foreign income, VAT, withholding, or similar taxes or tribute due in compliance with the Law because of the terms of this Agreement.

"Third-Party Platform" means any software, service, data sources or products provided, used or employed by Client that are related or integrated with Services.

Customerly Services



Customerly provides a platform with a messaging software, a managing communications software, a dashboard for collecting, managing and accessing customers data, an import/export data system, a live chat, a survey system, a Net Promote Score system, an email marketing service and a series of services that allow the Client to manage independently any business relationships with customers.

The Services include the necessary Code to enable chat and messaging tools.

Services Provision and delivery

Full package of services is provided on a term basis tacitly renewable.

Services Access and Use

Client and Permitted Users may access and use the Services exclusively for Client’s own benefit and in accordance with the terms and conditions of this Agreement, the Documentation (without limitation the number of People tracked). Use of and access to the Services is permitted only by Permitted Users. If Client is given passwords to access the Services on Customerly's systems, Client will require that all Permitted Users keep 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 Client is accessing the Services using credentials provided by a third party, then Client will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Client will be responsible for any and all actions taken using Client's accounts and passwords. If a Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of the Client, then Client will immediately delete such user ID and otherwise terminate such Permitted User's access to the Service. The right to use the Services includes the right to deploy Customerly Integration Code on Client Properties in order to enable messaging, chat and similar functionality and to collect Client Data for use with the Services as further described below.

Customerly Apps

As Customerly shall provide one or more Apps for the use of Services purpose, they will be subjected to this Agreement terms and conditions. Customerly will allow Client to use the Apps internally by a limited, non-transferable, non-sublicensable, non-exclusive license, related to an applicable Subscription Term. This granting will be only in connection with Client's use of the Service and otherwise in accordance with the Documentation and this Agreement.

Release and installation of Customerly Integration Code

Established that Client must implement Customerly Integration Code on its Properties to enable features of the Services, according to all this Agreement terms and conditions, Customerly grants to the Client a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to duplicate the Customerly Integration Code in the form provided by Customerly on Client’s Properties exclusively to support Client's use of the Service and otherwise in accordance with the Documentation and this Agreement. Client will implement Customerly Integration Code in accordance with the Documentation and any other instructions provided by Customerly. Client acknowledges that any changes made to the Client Properties after initial implementation of Customerly Integration Code may cause the Services to cease working or function improperly and that Customerly will have no responsibility for the impact of any such Client changes.

Contractors and Affiliates

The Client may permit to Contractors, Affiliates and employees to serve as Permitted Users for the exclusive benefit of Client. The Client naturally will remain responsible for such individual’s compliance with all of the terms and conditions of this Agreement.

General Restrictions

Client will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (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 then only upon advance notice to Customerly); (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 (including without limitation (i) the "Powered by Customerly" designation that may appear as part of the deployment of the Services on Client Properties and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.

Customerly APIs

In the event that Customerly makes access to any APIs available as part of the Services, Customerly reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). In addition, Customerly may monitor Client's use of such APIs and limit the number of possible Client’s calls or requests if there will be any doubt about a use in breach of this Agreement or a possible negative effect on the Services (or otherwise impose liability on Customerly).

Initial free access


Client will have free access as a trial or evaluation subscription to the Service (a "Trial Subscription"). During this period Client undertakes to use the Services in accordance with the terms and conditions of this Agreement for a period of thirty (30) days or such other period granted by Customerly (hereinafter referred to as the "Trial Period"). Trial Period is permitted exclusively for Client’s use to decide whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Client decides to not enter into a paid Subscription Term within the Trial Period, this Agreement and Client’s right to access and use the Services will terminate at the end of the Trial Period. Customerly has the right to terminate a Trial Subscription at any time for any reason.

Client Data


Rights in Client Data


As between the parties, Client will retain all right, title and interest (including intellectual property rights) in and to the Client Data as provided to Customerly. Subject to the terms of this Agreement, the Client hereby grants to Customerly a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Client Data exclusively to the extent necessary to provide the Services to Client and for internal analytical purposes.

Storage of Client Data


Customerly does not provide an archiving service and disclaim any obligations with respect to data storage. Customerly is committed to not intentionally delete any Client Data from any Service prior to termination of Client’s applicable Subscription Term.

Client undertakings and commitments


Client is exclusively responsible for the accuracy, content and legality of all Client Data. Client represents and warrants to Customerly that he/she/it has all necessary rights, consents and permissions to collect, use and share data with other entities according to the Privacy Law currently in force and within the meaning and for the purposes of all parts of this Agreement (including rights in Client Data granted to Customerly).
Client hereby declares that no used, shared or collected Data are in violation of Intellectual Property Rights or any other property or publicity Law.

Client further represents and warrants that all Data complies with the AUP.

Client specifically guarantees and promises not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Consequently, according to this Agreement, Customerly will have no responsibility for Sensitive Personal Information and any related data-processing.

Compliance with Laws

Client agrees and undertakes to a full compliance with all applicable Laws concerning the purchase and the use of the Services. Given the above, Client will not engage in any activities in violation of existing legislation in force and coming into force, including anti-spam regulations and any other Consumer Protection Act.

Client Properties’ Disclosure

Client is fully aware that the Customerly Integration Code causes unique cookies ID to be associated with each Person who accesses the Client Properties. These cookies ID enable Customerly to provide the Services. Client is committed to include on each Client Property a link to its privacy policy that discloses Client's use of third party tracking technology to collect data about People as described in this Agreement. The Client's privacy policy will describe fully and exactly the method, the scopes and purposes of the data collection and processing done by means of Customerly Integration Code and that the data will be used and/or shared with Customerly as necessary part of the Services. Client is also committed to provide People with a clear and comprehensive information about storing and accessing of cookies or other information on the Peoples' devices where such activity occurs in connection with the Services and in according to applicable Laws. For clarity, as between Client and Customerly, Client will be the one in charge and accountable for obtaining the necessary clearances, consents and approvals from People under all applicable Laws.

As regard as the Social Media Data, the Client and Customerly hereby agree about the following:
a) The Services use third-party services (e.g. Facebook, Zapier, Linkedin, Leadsbridge) to enable Client to retrieve publicly-available information about People including without limitation social media information, profile information, gender, company, job titles, photos, physical addresses, and website URLs (hereinafter referred to as “Social Media Data”) based on People's email addresses input into the Services.


b) Restrictions. Client is committed to not use any Social Media Data obtained via the Services for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, sending electronic communications (including email) in violation of applicable Law, or any other activity or purpose that may be identified as prohibited by Customerly at any time.
c) Disclosures. Client is in charge and agrees to obtain all necessary clearances, consents and approvals from People in order to use Social Media Data according to applicable Laws, including without limitation by disclosing in Client's privacy policy information about the collection and use of People's email addresses as set forth herein.

Client will indemnify, defend and hold harmless Customerly from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any Client Data or breach or alleged breach by Customer of Section 3.3 (Customer Obligations). This indemnification obligation is subject to Client receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Client 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 Customerly at Client's expense. Given the above (a) Customerly may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Client will not settle any claim without Customerly's prior written consent, unless the settlement fully and unconditionally releases Customerly and does not require Customerly to pay any amount, take any action, or admit any liability.

Aggregated Anonymous Data

Notwithstanding anything to the contrary contained in this Agreement, Client agrees that Customerly may obtain and aggregate technical and other data about Client's use of the Services that is non-personally identifiable with respect to Client ("Aggregated Anonymous Data"), and Customerly may use the Aggregated Anonymous Data to analyse, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Client and other Customerly customers. For clarity, this provision shall not give Customerly entitlement to identify Client as the source of any Aggregated Anonymous Data.

Security


Customerly undertakes to use reasonable technical and organisational measures available on the market and specifically developed to prevent unauthorized access, use, alteration or disclosure of any Service or Client Data. Nevertheless, Customerly will have no responsibility for errors in transmission, unauthorised third-party access or other causes beyond Customerly's control.

Third-Party Platforms


The Services may support integrations with Third-Party Platforms, with whom the Services need to connect and communicate. Consequently, Client may be required to input credentials in order 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, Client authorizes Customerly to access his/her/its accounts with such Third-Party Platform, for the purposes indicated in this Agreement. Client is exclusively responsible for the full compliance with any relevant terms and conditions of the Third-Party Platforms and he/she/it is committed to maintain appropriate accounts in good standing with the providers of the Third-Party Platforms. Client acknowledges and agrees that Customerly has no responsibility or liability for any Third-Party Platform or any Client Data exported to a Third-Party Platform. Customerly does not guarantee that the Services will maintain integrations with any Third-Party Platform and Customerly may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Client. For clarity, this Agreement governs Client’s use of and access to the Services, even if accessed through an integration with a Third-Party Platform.

Ownership


Customerly Technology
This is a subscription agreement concerning the access to and the use of the Services. Client is aware that it is obtaining only a limited right to the Services and that irrespective of any use of the words "purchase", "sale" or like terms in this Agreement no ownership rights are being conveyed to Client under this Agreement. Client agrees that Customerly or its 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, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (called on the whole "Customerly Technology"). Except as expressly set forth in this Agreement, no rights in any Customerly Technology are granted to Client. Further, Client is aware that the Services are offered as an on-line, hosted solution, and that he/she/it has no right to obtain a copy of any of the Services, except for Customerly Integration Code and the Customerly Apps in the format provided by Customerly.

Feedback

Client may sometimes submit Feedback to Customerly, who may freely use or exploit Feedback in connection with any of its products or services.

Subscription Term, Fees & Payment


Subscription Term and Renewals
Each Subscription Term will automatically renew for an additional period of twelve months, unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.

Fees and Payment

All fees will be paid monthly by Client via Credit Card.
Except as expressly established in Section 9 (Limited Warranty) and Section 14 (Indemnification), all fees are non-refundable. The rates are valid for the initial twelve (12) months of each Subscription Term and thereafter may be subject to an automatic adjustment increase of up to ten percent (10%) per year. Client is aware of his/her/its responsibility for paying all related Taxes. In case Law requires Client to withhold any Taxes from Client's payment, the fees payable by Client will be increased as necessary so that after making any required withholdings, Customerly receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. 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.

Payment Via Credit Card

Given that Client will pay for Services via credit card, debit card or other payment card ("Credit Card"), the following terms will be applicable:
Recurring Billing Authorization

By providing Credit Card information and agreeing to purchase any Services, Client hereby authorizes Customerly (or its designee) to automatically charge Client'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 Subscription Term for all fees accrued as of that date (if any). Client is aware and agrees that the amount billed and charged each month may vary depending on Client's use of the Services and may include subscription fees for the remainder of Client's applicable billing period and overage fees for the prior month. Foreign Transaction Fees. Client acknowledges that for certain Credit Cards, the issuer of Client's Credit Card may charge a foreign transaction fee or other charges.

Invalid Payment

If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Client remains responsible for any amounts not remitted to Customerly and Customerly may, in its sole discretion, either (i) invoice Client directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Client (if applicable) or (iii) terminate this Agreement.
Changing Credit Card Information. At any time, Client may change its Credit Card information by entering updated Credit Card information via the "Billing" page on the “Settings” section in the Dashboard.

Termination of Recurring Billing

In addition to any termination rights set forth in this Agreement, Client may terminate the Subscription Term by sending Customerly notice of non-renewal to info@Customerly.io in accordance with Section 7.1 (Subscription Term and Renewals) or, if Client's Subscription Term is on a monthly basis (or if otherwise permitted by Customerly), by terminating via the "Billing" page on the “Settings” section in the Dashboard, with termination effective at the end of the current Subscription Term. As set forth in Section 2.9 (Trial Subscriptions), if Client does not enter into a paid Subscription Term following a Trial Period, this Agreement and Client's right to access and use the Services will terminate at the end of the Trial Period and Client's Credit Card will not be charged.

Payment of Outstanding Fees

As soon as the Subscription Term will be terminated or expired Customerly will charge Client's Credit Card (or invoice Client directly) for any outstanding fees for Client's use of the Services during the Subscription Term. No additional fees will be charged after such term.

Suspension of Service

If Client's account would be thirty (30) days or more past the deadline, in addition to any of its other rights or remedies (including but not limited to any termination rights hereby established), Customerly has without liability the right to suspend Client's access to the applicable and to any other Service, until the amounts due are fully paid. Customerly also reserves the right to suspend Client's access to the Services without liability to Client if the Services are used is in violation of the Acceptable Use Policy (AUP).

Term and Termination


Term

This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.

Termination for Cause

Either party may terminate this Agreement (including all related 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).

Effect of Termination

As soon as this Agreement will be terminated or expired, for any cause, Client will immediately cease any and all use of and access to all Services (including any and all related Customerly Technology) and delete or return upon Customerly's request, any and all copies of the Documentation, any Customerly passwords or access codes and any other Customerly Confidential Information in its possession. Provided that the termination of this Agreement was not due to Client's breach, Client may retain and use internally copies of all reports exported from any Service prior to termination. Client is fully aware that after the termination it will have no further access to any Client Data input into any Service, and that Customerly may delete any such data as may have been stored by Customerly at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

Survival

Although any expiration or termination of this Agreement the following Sections will remain into force: 2.7 (General Restrictions), 2.9 (Trial Subscriptions), 3.2 (Storage of Customer Data), 3.4 (Indemnification by Customer), 3.5 (Aggregated Anonymous Data), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Credit Card), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 13 (Limitation of Remedies and Damages), 14 (Indemnification), 15 (Confidential Information) and 17 (General Terms).

Limited Warranty


Limited Warranty

Customerly guarantees, for Client's benefit only, that each Service will operate in substantial conformity with the applicable Documentation. Customerly's exclusive liability (and Client's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Client, for Customerly to use commercially reasonable efforts to correct the reported non-conformity, or if Customerly determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Client will receive a refund of any fees Customer has pre-paid for use of such Service as a remedy for the portion of the applicable Subscription Term. The limited guarantee established in this Section 9.1 will not apply in the following events: (i) Client’s claim within thirty (30) days of the date of first non-conformity spot, (ii) misuse, unauthorized modifications or third-party hardware, software or services causing the error, or (iii) to use provided on a no-charge, trial or evaluation basis.

Warranty Disclaimer

Except for the limited warranty provided in Section 9.1, all Services and Professional Services are provided “as is”. Customerly or its suppliers will not make any other warranties express or implied, including but limited to warranties of merchantability, title, fitness for a purpose or non-infringement. Customerly does not guarantee that Client's use of Services will be uninterrupted or error-free, nor does Client warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Client Data without loss or corruption. Customerly shall not be liable for the results of any communications sent or any failure of communications sent using the Services. Customerly shall not be liable for delays, interruptions, service failures or any other problems related to the use of Internet, e-communications, Third-Party Platforms or other systems outside the control of Customerly. Client may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by Law in force at that time.

Availability and Service Credits


The Services are available subject to Customerly's Service Level Agreement. ("SLA").

Support


During the Subscription Term of each Service, Customerly will provide end user support in accordance with Customerly's Support Policy ("Support Policy").

Professional Services


Customerly will provide the professional consulting services ("Professional Services") purchased in the applicable Order Form. The scope of Professional Services will be as established in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, the fees and any applicable milestones, dependencies and other technical specifications or related information ("SOW"). Unless Professional Services are provided on a fixed-fee basis, Client will pay Customerly for that at the per-hour rates established in the Order Form (or, if not specified, at Customerly’s standard rates) for any excess services. Client will reimburse Customerly for reasonable travel and lodging expenses as incurred. Client may use anything delivered as part of the Professional Services in support of authorized use of the Services and subject to the terms regarding Client's rights to use the Service set forth in Section 2 (Customerly Services) and the applicable SOW, but Customerly will retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by Customerly (or its agents).

Limitation of Remedies and Damages


Consequential Damages Waiver
Except for excluded claims (see the list here below), neither Party of this Agreement, nor any Suppliers of them, shall have any liability arising out of this Agreement or related to it, for any loss of use, lost data, lost profits, security failures, business interruption or any other indirect, special, incidental, reliance or consequential damages of any kind, even if informed of the possibility of such damage in advance.

Liability Cap

Customerly’s and its suppliers’ liability to Client arising from this Agreement is limited and shall not exceed the amount paid by Client during the first twelve months period, starting from the first acceptance of this Agreement.

Excluded Claims
"Excluded Claims" means any claim arising (a) from Client's breach of Section 2.7 (General Restrictions); (b) under Section 3.3 (Client Obligations) or 3.4 (Indemnification by Client); or (c) from a party's breach of its obligations in Section 15 (Confidential Information) (but excluding claims arising from operation or non-operation of any Service).

Nature of Claims and Failure of Essential Purpose

Customerly and Client agree that the waivers and limitations specified in this Section 13 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

Intellectual Property Infringement.


Customerly will take an active part in defending Client from and against any claim, asserted as true by a third party, affirming that a Service, when used as authorized under this Agreement, infringes a worldwide patent, copyright, or trademark.

Confidential Information


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 Customerly Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of Customerly without any marking or further designation. 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 Customerly, the subcontractors referenced in Section 17.8 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 15 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 15. 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 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.

Co-Marketing


Upon Customerly’s request, Client will issue with Customerly a joint press release ("Press Release") on a mutually agreed date. Both parties have the right to approve the text of the Press Release in advance, but such approval cannot be unreasonably delayed or withheld. Client also agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and allow Customerly to use its/his/her name and logo on Customerly's web site and in its promotional materials and documents. Client generally agrees that Customerly may disclose him/her as a customer of Customerly.

General Terms


Commitments

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 17.1 will be null and void.

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.

Governing Law; Dispute Resolution

a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, ("Dispute"), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled "Initial Notice of Dispute," specifically setting forth the precise nature of the dispute ("Initial Notice of Dispute"). If an Initial Notice of Dispute is being sent to Customerly it must be emailed to info@customerly.io and sent via mail to:

After receiving of the Initial Notice of Dispute, both parties undertakes to consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties ("Direct Dispute Resolution"). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved by arbitration as set forth below.

Law and Jurisdiction

Given that the Parties have agreed to adopt a dispute resolution, as provided above, for other claims which is not subject to ADR according to law, the Parties agrees to submit and consent to the Jurisdiction of as competent court, and that law shall apply.

The Parties agrees to consider this Agreement as Jointly written.
Both Client and Customerly agree that each part may bring or participate in claims against the other only in their respective individual capacities and not as a plaintiff or class member in any purported class.

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.

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. No provision of any purchase order or other business form employed by Client will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.

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. Client acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved Client experience Customerly may make changes to the Services, and Customerly will update the applicable Documentation accordingly. The support and service level availability terms described in the Support Policy and the SLA may be updated from time to time upon reasonable notice to Client to reflect process improvements or changing practices (but the modifications will not materially decrease Customerly's obligations as compared to those reflected in such terms as of the Effective Date).

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, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

Subcontractors

Customerly may use the services of subcontractors and permit them to exercise the rights granted to Customerly in order to provide the Services under this Agreement, provided that Customerly 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.

Subpoenas

Nothing in this Agreement prevents Customerly from disclosing Client Data to the extent required by law, subpoenas, or court orders, but Customerly will use commercially reasonable efforts to notify Client where permitted to do so.

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

Export Control

In its use of the Services, Client undertakes to a full compliance with all export and import laws and regulations and other applicable jurisdictions. Without limiting the foregoing, (i) Client represents and warrants that it is not listed on any list of prohibited or restricted parties or located in (or a national of) a country that is subject to embargo or that has been designated by any government as a "terrorist supporting" country, (ii) Client will not (and will not permit any of its users to) access or use the Services in violation of any export embargo, prohibition or restriction, and (iii) Client will not submit to the Services any information that is controlled under any Traffic in Arms Regulations and Laws.

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.