Attentive Terms of Use for Reseller Customers

‍Attentive Terms of Use‍

THESE TERMS OF USE (the “Terms”) ARE ENTERED INTO BY THE ENTITY (“COMPANY”) USING THE ATTENTIVE PLATFORM AND RELATED SERVICES (DEFINED BELOW) PROVIDED BY ATTENTIVE MOBILE INC. (“Attentive”) PURSUANT TO AN AGREEMENT BETWEEN COMPANY AND AN AUTHORIZED ATTENTIVE RESELLER (“Reseller”). THESE TERMS APPLY TO COMPANY’S USE OF THE PLATFORM, WHETHER DIRECTLY THROUGH THE ATTENTIVE UI OR INDIRECTLY THROUGH A THIRD-PARTY API INTEGRATION (E.G., ELOQUA).

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1. Scope of Terms; Certain Definitions. These Terms govern Company’s access to and use of Attentive’s software-as-a-service product known as Attentive® (“Platform”) and related professional services to Company and its Authorized Users (defined below) for the sending and receiving of mobile messages and/or email messages (collectively, “Messages”). Company may be provided with certain templates or other materials to help Company communicate effectively with Subscribers (defined below) in connection with Company’s use of the Platform (“Templates,” together with the Platform, the “Service”). As used herein, the term “Authorized User” means any person or affiliate of Company for whom Company has created an account to access and use the Platform (which may include employees, contractors, or third-party service providers). Company’s acceptance of these Terms is required for use of the Service.

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2. Proprietary Rights.

a. License to Service. During the Term (defined below), Company may use the Service solely to conduct message-based marketing for Company’s business. In the course of using the Platform, Company may upload content to be processed by the Platform in accordance with Company’s or its Authorized Users’ instructions (“Input”), and receive output generated and returned by the Platform using that Input (“Output”). Company is solely responsible for its and its Authorized Users’ Inputs, Outputs, and use thereof. Company is responsible for reviewing and sending all Messages, including any Messages that contain any Output. In every case Company shall rely upon and exercise its own business and legal judgment as to sending Messages. Inputs and Outputs are “Data” as defined in Section 2(d) (Data) and “Confidential Information” as defined in Section 4(a) (Definition of Confidential Information).

b. Restrictions. Company may not: (i) copy, modify, translate, or create derivative works of the Platform; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Platform; (iii) lend, lease, offer for sale, sell or otherwise use the Service for the benefit of any third party or provide any third party except for Authorized Users with access to the Service; (iv) attempt to disrupt the integrity or performance of the Platform; (v) attempt to gain unauthorized access to the Platform or its related systems or networks; (vi) use the Service in a manner that violates these Terms, any third-party rights or any applicable laws, or rules or regulations; or (vii) access the Service to build a competitive product or services or copy any ideas, features, functions, or graphics of the Service. Company acknowledges and agrees that it is responsible for the use or misuse of the Service by Authorized Users. Company is responsible for the acts or omissions of its Authorized Users with respect to the Services, and any act or omission by an Authorized User that would be deemed a breach of these Terms if that act or omission was made by Company will be deemed a breach of these Terms by Company. Without limiting the foregoing, Company is responsible for the proper care and use of Company’s and Authorized Users’ access credentials and responsible for any actions resulting from the use of Company’s or its Authorized Users’ access credentials.

c. Attentive Ownership of Service. Except for the rights granted to Company in Section 2(a) (License to Service) above, as between the parties, Attentive retains all right, title and interest, including all intellectual property rights, in and to the Service, the Attentive Works (defined below) and data regarding use of the Service and the Platform’s performance that is aggregated and de-identified such that it cannot identify Company, any third-party entity, or any natural persons (“Diagnostic Data”). All rights that Attentive does not expressly grant to Company in these Terms are hereby reserved. Attentive does not grant any implied licenses under these Terms.

d. Data. As between Attentive and Company, Company owns all Data (defined below). Company hereby grants to Attentive a non-exclusive and non-transferable license to host, copy, process and transmit the data, information and other materials transmitted to or through the Platform by Company or Authorized Users (except for Diagnostic Data) (collectively, “Data”) solely to provide and improve the Service. For the sake of clarity Data may include but is not limited to the following data: Subscriber (as defined below) telephone numbers, Subscriber email addresses, Company’s messages, and Subscribers’ Messages. 

e. Suspension. Attentive reserves the right to suspend, terminate or limit Company’s and/or Authorized Users’ access to the Service if Attentive determines, in its reasonable discretion, that (i) the Service is being used by Company, or its Authorized Users, in violation of these Terms, Attentive’s content policy set forth at https://www.attentive.com/content-policy/ or Attentive’s email acceptable use policy set forth at https://www.attentive.com/legal/email-acceptable-use-policy; (ii) the Service is being used by Company in an unauthorized or fraudulent manner; or (iii) the use of the Service by Company adversely affects Attentive’s equipment or its provision of the Service to others. Attentive further reserves the right to suspend, terminate or limit Company’s and/or Authorized Users’ access to the Service pursuant to these Terms (x) in the event of breach or termination of Reseller’s agreement with Attentive or (y) at Reseller’s instruction.

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3. Professional Services.

Attentive may develop software or other works of authorship, trade secrets, inventions or other intellectual property in performing the professional services (collectively, “Attentive Works”). For the avoidance of doubt, Attentive Works shall not include any Data. Subject to timely payment of the applicable fees, Attentive hereby grants to Company a non-exclusive, non-transferable, non-sublicensable, royalty-free and worldwide right and license during the Term only to use any portion of the Attentive Works that is incorporated into the Service solely as necessary to use the Service in  accordance with these Terms. No part of the Platform, Templates, or professional services shall be considered work-for-hire. Company will reasonably cooperate with Attentive in the provision of professional services. Company shall remain solely responsible for its use of the Service and reviewing and approving any final design to confirm it meets its design and accessibility needs. Attentive does not make final design or accessibility decisions with respect to Company’s use of the Service.

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4. Confidential Information.

a. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by either Attentive or Company (“Discloser”) to the other (“Receiver”) that is marked in writing as “confidential” or by a similar designation or that otherwise should be considered confidential information based on the nature of the information and circumstances of disclosure. For clarity, Attentive’s Confidential Information also includes pricing, the non-public parts of the Service, its user interface, design and layout, and any related non-public specifications, documentation or technical information that Attentive provides to Company and/or Authorized Users. Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser; (ii) was known to the Receiver prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to the Discloser; or (iv) was independently developed by the Receiver.

b. Protection of Confidential Information. The Receiver will use the same degree of care to protect the Discloser’s Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiver may use Confidential Information of the Discloser only to perform its obligations or exercise its rights under these Terms. Except as expressly authorized by the Discloser in writing, the Receiver will limit access to Confidential Information of the Discloser to those of its and its affiliates’ employees, contractors or agents who need such access to perform obligations under these Terms and who are bound to terms as least as restrictive as those in these Terms. Neither party will disclose the terms of these Terms to any third party (other than its affiliates, legal counsel or accountants) without the other party’s prior written consent.

c. Compelled Disclosure. The Receiver may disclose Confidential Information of the Discloser if it is compelled by law to do so, provided the Receiver gives the Discloser prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Discloser’s cost, if the Discloser wishes to contest the disclosure.

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5. Term and Termination.

‍a. Term. These Terms will be coterminous with the term of Company's agreement with Reseller referencing these Terms (the “Term”).

‍b. Termination. Attentive may terminate Company’s access to the Services upon thirty (30) days’ prior written notice if Company is in material breach of these Terms and Company fails to remedy the breach within such thirty (30) day notice period.

‍c. Survival. The provisions of Sections 2(b) (Restrictions), 2(c) (Attentive Ownership of Service), 2(d) (Data), 2(e) (Suspension), 4 (Confidential Information), 6 (Requirements for Use), 8 (Limitations on Liability), 9 (Miscellaneous) and all defined terms used in those Sections will survive any expiration or termination of these Terms.

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6. Requirements for Use. Company agrees to the following: (i) it is duly organized, validly existing and in good standing under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (ii) it has the right, power and authority to enter into the Terms and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (iii) the execution of the Terms has been duly authorized by all necessary corporate or organizational action of the party; (iv) it owns or otherwise has sufficient rights to the Data to grant the license set forth in Section 2(d) (Data); (v) the posting and use of Data on or through the Platform does not and will not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or other rights of any person or entity, and Company will not upload any Data to the Platform that contains any sensitive or special categories of information as defined in Data Protection Laws (defined below), including the CCPA and California Privacy Rights Act; (vi) the upload, posting or other submission of Data to the Platform does not and will not result in a breach of contract between Company and any third party; (vii) it will not knowingly collect personally identifiable information from children under thirteen (13) when using the Service; (viii) when using the Service, including when using the Service to send Messages, Company will, and will cause its Authorized Users to: (A) comply with and maintain appropriate records to demonstrate its compliance with all applicable federal, provincial, state, and local laws, regulations, and rules governing Messages, including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2003, the Personal Information Protection and Electronic Documents Act, the Americans with Disabilities Act, provincial privacy legislation, Canada’s Anti-Spam Legislation (“CASL”), and all state, local, and foreign equivalents; all applicable industry guidelines and best practices, including, without limitation, the CTIA Short Code Monitoring Handbook and Messaging Principles and Best Practices, and any other applicable foreign carrier requirements (collectively, “Applicable Message Requirements”); (B) ensure the content of all Messages complies with Applicable Message Requirements, including all applicable form, content and unsubscribe requirements; (C) send Messages only to individuals from whom Company has obtained all necessary and legally required consent to do so in accordance with its obligations under Applicable Message Requirements (“Subscribers”); and (D) promptly notify Attentive of all requests made by Subscribers directly to Company to stop receiving Messages from Company; and (ix) any consumer contact information provided by Company to Attentive has been collected in accordance with Applicable Message Requirements. Company’s responsibilities as set forth in this Section and these Terms will remain the sole responsibility and liability of Company notwithstanding that Attentive may offer Templates, advice, guidance or suggestions relating to any of the matters that are Company’s responsibility and notwithstanding that Attentive may be engaged to provide services related to such responsibilities of Company.

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7. No Warranty. ATTENTIVE MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE AND ATTENTIVE HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE FOREGOING. WITHOUT LIMITING THE FOREGOING IN THIS SECTION 7, (I) ATTENTIVE SHALL HAVE NO LIABILITY FOR COMPANY’S OR ITS AUTHORIZED USERS’ USE OF DATA; (II) TEMPLATES ARE PROVIDED FOR CONVENIENCE ONLY AND COMPANY SHOULD CONFER WITH ITS OWN COUNSEL AS TO WHETHER ANY LANGUAGE IN THE TEMPLATES IS SUFFICIENT FOR LEGAL PURPOSES OR TO MEET COMPANY’S OBLIGATIONS UNDER APPLICABLE LAWS, INCLUDING APPLICABLE MESSAGE REQUIREMENTS; (III) COMPANY MAY NOT RELY UPON THE PROVISION OF SAMPLE LANGUAGE OR OTHER CONTENT IN ANY TEMPLATE AS A REPRESENTATION THAT SUCH LANGUAGE OR CONTENT SATISFIES ANY APPLICABLE LEGAL REQUIREMENTS; AND (IV) ATTENTIVE HAS NO RESPONSIBILITY FOR MESSAGES OR MESSAGE CONTENT.

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8. Limitations on Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, (I) IN NO EVENT WILL ATTENTIVE’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED FIVE HUNDRED DOLLARS ($500); AND (II) IN NO EVENT WILL ATTENTIVE HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, DATA OR OTHER BUSINESS OPPORTUNITIES), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. COMPANY AGREES THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THESE TERMS. This Section 8 will not apply to any actual or alleged infringement by Company or any Authorized User of Attentive’s intellectual property or other proprietary rights. For avoidance of doubt, this Section 8 will have no effect on Reseller’s liability to Company.

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9. Miscellaneous.

a. Third-Party Interactions. Company’s use of any third-party products, packages or services that are not provided by Attentive which link to the Service, or which are enabled by Company in conjunction with the Service (“Third-Party Interactions”), shall be at Company’s choice and sole discretion. To the extent Company decides to use Third-Party Interactions, Company’s access and use of such Third-Party Interactions shall be governed solely by the terms and conditions of such Third-Party Interactions as between Company and the third party. In the event Company enables, installs, connects, or provides access to any Third-Party Interactions for use with the Service, Company (i) permits the transmission of Data to such Third-Party Interactions at Company’s direction; (ii) permits such Third-Party Interactions to access the Data at Company’s direction; and (iii) will provide notice to Attentive of any transmission of Data and provide notice to Attentive of the identity of such third party (unless notice is provided in connection with an API call). Attentive does not license, support, control, endorse or otherwise make any representations or warranties regarding any Third-Party Interactions, notwithstanding that Attentive may have identified such Third-Party Interaction that Company subsequently decided to use, and notwithstanding that Company has directed Attentive to implement or configure such Third-Party Interactions on Company’s behalf.

b. Export Regulations. Without limiting Section 2(b)(vi) (Restrictions), Company agrees to comply with all applicable export and re-export control laws and regulations, including trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control. Specifically, Company covenants that it will not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any products, service, or technology (including products derived from or based on such technology) received from Attentive under these Terms to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.

c. Severability. If any provision of these Terms is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of these Terms will remain in full force and effect.

d. Governing Law; Jurisdiction. These Terms will be governed by and construed under the laws of the State of New York without reference to its conflict of laws principles. All disputes arising out of or related to these Terms will be subject to the exclusive jurisdiction of the state and federal courts located in New York, New York, and the parties agree to waive all rights to challenge the foregoing.

e. Entire Agreement; Amendments; Waivers. These Terms embody the entire agreement between the parties with respect to the subject matter set forth herein and supersedes any previous or contemporaneous communications, whether oral or written, express or implied. These Terms may be modified or amended only by a signed writing.

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10. Data Protection.

a. Personal Information. Attentive may process Company’s Personal Information (as defined by applicable data protection laws) as a subprocessor of Reseller, in accordance with the terms of the agreement between Attentive and Reseller.

b. Privacy Notice. Company agrees it will provide and abide by an appropriate consumer-facing privacy policy and any other privacy notice as required to comply with any applicable laws and regulations that are applicable to the processing of Personal Information by Attentive on Company's behalf under the Terms (“Data Protection Laws”). Company’s privacy policy shall provide notice of the processing of Personal Information as contemplated by the Service, including, if applicable, the use of cookies and other similar technologies to collect Personal Information from individual consumers. Company will further ensure that each applicable consumer is provided with clear and comprehensive information about, and authorizes and/or consents to, the storing and accessing of cookies or other information on the individual’s device where such activity occurs in connection with the Service and to the extent required by Data Protection Laws, the California Invasion of Privacy Act of 1967 (Cal. Penal Code § 632 – 638.55) and analogous federal and state laws governing wiretapping laws and the interception of electronic communications.