This Master Service Agreement ("Agreement") is by and between Shout About Us, Inc., a Delaware corporation ("SAU") and the individual or other entity ("Company") indicated in the Order Form (defined below) and made effective the date shown on the Order Form ("Effective Date"). Provisions for Companies designated as "Resellers" in the applicable Order Forms are governed by the provisions of Section 15 hereof, which are not applicable to Companies not designated as Resellers. In consideration of the mutual covenants contained herein, the parties hereto agree as follows:
SAU has developed a software platform and related software and services that assist businesses in managing online reviews, among other things (together and individually, the "Services"). The Services are ordered via an order form or other document produced by SAU and signed by both parties that sets forth a description of the Services and the costs and other specific terms related thereto (the "Order Form"). The body of this Agreement shall govern the parties' contractual relationship except to the extent the Order Form specifically contradicts a provision contained in the body of this Agreement.
Company desires to access the Services to manage their online reviews.
By this Agreement, the parties wish to set forth the terms and conditions under which Company will license the Services from SAU.
2.1 Independent Contractor Status. The parties recognize and agree that Company and SAU are independent contractors and not partners, joint venturers, or participants in any relationship in which one can act as an agent for the other or bind the other to any obligation whatsoever.
2.2.1 License to the Services. Subject to the terms and conditions of this Agreement, SAU grants to Company a worldwide, limited, non-exclusive, non-transferable, non-sublicensable right to internally use the Services solely to support Company's rights and obligations under this Agreement.
2.2.2 Delivery. SAU shall use commercially reasonable efforts to make the Services available but shall have no liability for failure to do so.
2.2.3 General Restrictions. Except as explicitly provided in this Agreement or expressly permitted by applicable law, Company will not decompile, disassemble, reverse engineer, or otherwise attempt to discern the source code of the Services; copy, modify, enhance, or otherwise create derivative works of the Services; or develop methods to enable unauthorized use of the Services.
2.2.4 Direct Sales by SAU. SAU reserves the unrestricted right to market, distribute, and sell licenses to the Services worldwide, including without limitation through original equipment manufacturers, value-added companies, other third-party intermediaries, multi-location brands, and direct to independent businesses.
2.3 Supported Platform Authorization. By entering into this Agreement, Company expressly authorizes SAU to: (a) access Company's business profiles on third-party review and listing platforms ("Supported Platforms") on Company's behalf; (b) collect, retrieve, and aggregate review data from Supported Platforms; (c) publish review responses on Supported Platforms on Company's behalf; and (d) use SAU's proprietary data collection and publishing technology to perform the above functions. Company represents and warrants that it has the authority to grant SAU such access. Company acknowledges that certain Supported Platforms may restrict or discourage the use of third-party review management services, and that SAU's access methods may not be expressly authorized by all Supported Platforms. SAU's ability to perform these functions depends on the ongoing accessibility of each Supported Platform and may be interrupted by platform restrictions, access changes, or policy modifications outside SAU's control. SAU will not be liable for any such interruptions.
2.4 Review Platform Compliance. Company acknowledges that certain Supported Platforms, including Yelp, discourage or restrict the use of reputation management software. SAU does not monitor the policies of such platforms and disclaims any obligation to do so. Company agrees to be responsible for compliance with any such policies and to accept any penalties imposed by Supported Platforms for failure to do so.
2.5 Supported Platform Changes. SAU reserves the right to add, modify, or remove any Supported Platform from the Services at any time and without liability. For planned removals, SAU will provide Company with at least thirty (30) days advance written notice where practicable. In cases where removal is required by legal process, cease-and-desist letter, or immediate platform restriction outside SAU's control, no advance notice is required. Removal of a Supported Platform does not constitute a breach of this Agreement and does not entitle Company to a fee reduction, refund, or early termination without penalty.
2.6 Review Data Deletion. SAU reserves the right to delete or restrict access to Review Data collected from any Supported Platform where required to do so by that platform's terms of service, legal process, cease-and-desist letter, or applicable law, without liability to Company. SAU will notify Company of any such deletion where legally permitted to do so.
2.7 Compensation. Company will purchase the Services directly from SAU. Pricing is provided in the Order Form. SAU shall be entitled to revise the pricing set forth in the Order Form in the event its underlying costs increase. SAU will provide Company with at least thirty (30) days written notice of any fee increase. If Company does not accept the revised pricing, Company may terminate this Agreement without early termination penalty upon written notice to SAU within ten (10) days of receiving the fee increase notice.
3.1 Metrics Report. On the 1st of each month, SAU will provide to Company a monthly invoice that contains usage metrics, such as the number of active locations, location type, cost per location, and add-on service fees if applicable.
3.2 Payment Terms. SAU will invoice Company on the first (1st) day of each month for the upcoming month's Services, based on the total number of Active Locations on the platform as of the last day of the prior month. The same invoice also includes pro-rated charges for any new Active Locations added during the prior month, calculated from their date of activation through the last day of that month. Payment terms are Net 10 days from invoice date. All fees are payable in United States Dollars. Company is responsible for removing locations from paid tiers prior to the last day of a billing month if it intends to avoid being billed for those locations in the following month. No refunds will be given for unused or partial months' fees. Payment shall not be conditioned on collection by Company of its Customer Service Fees, the risk of which shall be borne solely by Company.
3.3 Credit Card Processing Fee. If Company elects to pay invoices by credit card, a processing fee of 2.3% of the invoice amount will be added to each payment processed by credit card. This fee reflects the cost of payment processing and is in addition to the fees set forth in the Order Form. SAU will separately itemize the credit card processing fee on each applicable invoice. Company may avoid this fee by remitting payment via ACH, wire transfer, or check.
3.4 Late Payment. If Company fails to make a payment when due and fails to cure such failure within ten (10) days of notice regarding the default, SAU may suspend or terminate this Agreement at its option. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Company will reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by SAU to collect any amount that is not paid when due. Amounts due from Company under this Agreement may not be withheld or offset by Company against amounts due to SAU for any reason. All amounts payable under this Agreement are denominated in United States Dollars, and Company will pay all such amounts in U.S. Dollars. Accrued interest for late payments will be added to the following month's invoice.
3.5 Taxes. Other than net income taxes imposed on SAU, Company will bear all taxes, duties, and other governmental charges (collectively, "taxes") resulting from this Agreement. Company will pay any additional taxes as are necessary to ensure that the net amounts received by SAU after all such taxes are paid are equal to the amounts that SAU would have been entitled to in accordance with this Agreement as if the taxes did not exist.
Company and SAU will be jointly responsible for the development and support of any integration between the Services and any platform operated by Company on which the Services are located. SAU's support obligations shall be fulfilled via phone, video conference, or email throughout the implementation process or during live platform operations.
5.1 Term. The term of this Agreement is set forth in the applicable Order Form. Cancellation terms, notice periods, renewal terms, and any early termination fees are governed by the Order Form. If Company does not have a signed Order Form, contact your SAU account representative to discuss your options.
5.2 Termination for Cause / Bankruptcy. If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement by giving 30 days prior written notice if the matters set forth in such notice are not cured to the other party's reasonable satisfaction within the 30-day period. In addition, if the other party files any petition in bankruptcy or takes (or has taken against it) any action that would have the effect of re-organizing or restructuring its assets and/or debts on behalf of creditors, the other party may declare such party in default and may terminate this Agreement immediately.
5.3 No Liability for Termination. Except as expressly required by law, if either party terminates this Agreement in accordance with any of the provisions of this Agreement, neither party will be liable to the other because of such termination for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases, or commitments in connection with the business or goodwill of SAU or Company. Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.
5.4 Effects of Termination. If this Agreement is terminated for any reason: (a) the parties will pay each other any amounts outstanding as of the date of termination; (b) any and all liabilities accrued prior to the effective date of the termination will survive; (c) Company will immediately cease use of the SAU Services; and (d) Company may request an export of its account data and such review data as SAU has the right to export under the terms of the applicable Supported Platform within thirty (30) days of the termination date. SAU will use commercially reasonable efforts to provide available data within that period. SAU makes no representation that review data from third-party platforms can be exported where such platforms restrict data portability in their terms of service. After thirty (30) days SAU may securely delete Company's data. The provisions of this Agreement that by their nature indicate that the parties intended they would survive termination shall survive any expiration or termination of this Agreement, including without limitation Sections 6.2 (SMS Compliance Obligations), 7 (Trademarks), 8 (Proprietary Rights), 9 (Warranty Disclaimer), 10 (Infringement Indemnification), 11 (Company Indemnification), 12 (Confidential Information), 13 (Limitation of Liability), 14.7 (Dispute Resolution), 15.7 (Customer Records), and 15.10 (Other Records).
Program Name: ORM
Description: SAU delivers SMS messages to platform users and end customers who have opted in, including review solicitation requests, account notifications, and service updates.
Message Frequency: Message frequency varies based on account activity and settings.
Pricing: Message and data rates may apply to recipients.
Consent Not Required: Consent to receive SMS messages is not required as a condition of entering into this Agreement or using the Services.
How to Opt In: End users may opt in to receive SMS communications through account settings or registration. SMS opt-in is voluntary and separate from account registration.
How to Opt Out: Reply STOP to any SMS message to unsubscribe. Alternatively, contact support@shoutaboutus.com or (858) 429-5745 with the commands STOP, END, CANCEL, UNSUBSCRIBE, or QUIT.
Help: Reply HELP to any SMS message or contact support@shoutaboutus.com.
Data Privacy: Mobile phone numbers and SMS opt-in consent will not be shared, sold, rented, or transferred to any third party for marketing purposes.
Carrier Liability Limitation: SMS delivery is dependent on effective transmission by mobile network operators and upstream telecommunications carriers. Neither SAU nor its carrier partners (including Bandwidth Inc.) are liable for delayed, undelivered, or blocked messages. Delivery is not guaranteed.
Communications Metadata: To route SMS messages, SAU shares transaction data with telecommunications carriers including source and destination phone numbers, IP addresses, message timestamps, and delivery logs. This sharing is required for message delivery and does not constitute a sale of personal information.
Zero-Sharing Commitment: No mobile information will be shared with third parties or affiliates for marketing or promotional purposes. All of the above categories exclude text messaging originator opt-in data and consent. This information will not be shared with any third parties.
Supported Carriers: Major US carriers including AT&T, Verizon, T-Mobile, and others. Carrier support may vary.
Because Company and its resellers use the Services to send SMS messages to end customers, Company bears full legal responsibility for compliance with all applicable laws and carrier requirements governing those messages. The following obligations apply to all SMS activity initiated through the Services by Company or its authorized users:
Prior Express Consent. Company represents and warrants that every mobile phone number uploaded or entered into the platform has provided prior express written consent to receive SMS messages from Company. Company bears sole responsibility for obtaining, documenting, and maintaining records of such consent. SAU does not verify consent on Company's behalf and assumes no liability for messages sent to recipients who have not provided proper consent.
No Purchased Lists. Company may not upload purchased, rented, scraped, or third-party contact lists for SMS delivery. All contact lists must consist solely of individuals who have directly provided their mobile number to Company and consented to receive SMS from Company.
TCPA Compliance. Company acknowledges that the Telephone Consumer Protection Act (TCPA) imposes significant penalties for non-compliant commercial SMS messages, including statutory damages of $500 to $1,500 per violation. Company assumes full responsibility for TCPA compliance in connection with all SMS activity initiated through the Services. SAU has no obligation to monitor Company's messaging activity for legal compliance.
Template Compliance. All message templates created or customized through the platform must comply with applicable law, including the TCPA, CAN-SPAM Act, and wireless carrier acceptable use policies. Templates may not contain deceptive, misleading, or unsolicited marketing content, affiliate marketing material, debt collection language, or any content that violates carrier guidelines.
SMS Indemnification. Company will defend, indemnify, and hold harmless SAU and its carrier partners (including Bandwidth Inc.) from and against any claims, fines, penalties, damages, and expenses (including attorneys' fees) arising from: (a) Company's failure to obtain proper consent from SMS recipients; (b) the content of messages sent through the Services; (c) Company's violation of TCPA, CAN-SPAM, or any other applicable law governing SMS communications; or (d) any carrier penalties or deregistration actions resulting from Company's messaging activity.
Suspension Right. SAU reserves the right to immediately suspend Company's SMS capabilities, without prior notice, if SAU determines in its sole discretion that Company's messaging activity violates applicable law, carrier policies, or this Agreement. Suspension of SMS capabilities does not constitute termination of this Agreement.
7.1 Use of Company Names. Each party may identify the other as a cooperative partner in their advertising and marketing materials. However, neither party will use the other party's trade names or marks to identify the other party without the party's prior written approval, which approval will not be unreasonably withheld.
7.2 Company's Trademarks. Company will have the right to place its trademarks, trade names, service marks, and logos (Company's "Trademarks"), on the Services for purposes of identifying the Services.
7.3 SAU Trade Names and Marks. "Shout About Us," "Review Navigator," "Response Scribe," "Online Review Manager," and associated logos are trade names and common law trademarks of Shout About Us, Inc., protected by applicable law through years of continuous commercial use. Except as set forth in this section, nothing contained in this Agreement will grant or be deemed to grant to Company any right, title, or interest in or to SAU's trade names or marks. All uses of SAU's trade names and related goodwill will inure solely to SAU.
8.1 Proprietary Rights. Each party will own all right, title, and interest in and to its own intellectual property, software, platforms, and other Services, including any developments, improvements, and additions made thereto as a result of the parties' cooperation under this Agreement. Neither party will act to jeopardize, limit, or interfere in any manner with the other party's ownership of and rights with respect to its intellectual property. Company will have only those rights in or to the Services and documentation granted to it pursuant to this Agreement.
8.2 Proprietary Rights Notices. Except as expressly provided herein, neither party nor its employees or agents will remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on the other party's intellectual property, software, platforms, or other Services or related documentation delivered by the other party.
Company acknowledges that its personnel who access the SAU platform may be exposed to proprietary workflows, data structures, response methodologies, UI design, and platform architecture. All such information constitutes Confidential Information of SAU. Company agrees to ensure that all personnel who access the platform are bound by confidentiality obligations at least as protective as those in Section 12 of this Agreement, and that such personnel will not use observations of the platform's functionality, design, or methodology to inform the development of any competing product or service.
9.1 Limited Warranty. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
9.2 WARRANTY DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTY(IES) CONTAINED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. NEITHER PARTY WARRANTS AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE OTHER PARTY'S SERVICES OR SOFTWARE OR AGAINST INFRINGEMENT. NEITHER PARTY WARRANTS THAT THEIR SERVICES OR SOFTWARE SHALL BE ERROR-FREE, SECURE, OR UNINTERRUPTED. SAU MAKES NO WARRANTY REGARDING THE ACCURACY, COMPLETENESS, CURRENCY, OR AVAILABILITY OF REVIEW DATA COLLECTED FROM SUPPORTED PLATFORMS. REVIEW DATA IS PROVIDED AS COLLECTED FROM THIRD-PARTY SOURCES AND MAY BE INCOMPLETE, DELAYED, OR SUBJECT TO ERRORS OUTSIDE SAU'S CONTROL.
10.1 Infringement Defense. SAU will defend Company from any actual or threatened third party claim that the Services or any element thereof infringe or misappropriate any U.S. patent issued as of the Effective Date or any trade secret of any third party during the term of this Agreement if: (1) Company gives SAU prompt written notice of the claim; (2) Company gives SAU full and complete control over the defense and settlement of the claim; (3) Company provides assistance in connection with the defense and settlement of the claim as SAU may reasonably request at SAU's expense; and (4) Company complies with any settlement or court order made in connection with the claim.
10.2 Infringement Indemnification. SAU will indemnify Company against: (1) all damages, costs, and attorneys' fees finally awarded against Company in any proceeding under Section 10.1; (2) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by Company in connection with the defense of such proceeding (other than attorneys' fees and costs incurred without SAU's consent after SAU has accepted defense of such claim); and (3) if any proceeding arising under Section 10.1 is settled, all amounts paid to any third party as agreed to by SAU in settlement of any such claims.
10.3 Mitigation of Infringement Action. If permitted use of the Services are, or in SAU's reasonable opinion are likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 10.1, then SAU will either: (1) procure the continuing right to use of the Services; (2) replace or modify the Services in a functionally equivalent manner so that it no longer infringes; or if SAU is unable to do either (1) or (2), SAU will terminate the licenses with respect to the Services subject to the infringement claim and refund to Company all unused fees pre-paid by Company (if any).
11.1 Defense of Claims. Company will defend SAU from any actual or threatened third party claim arising out of or based upon (i) Company's use of the Services in any manner other than as permitted under this Agreement; (ii) Company's violation of any Applicable Laws, its gross negligence or willful misconduct; or (iii) Company's material breach of any of the provisions of this Agreement. SAU will: (a) give Company prompt written notice of the claim; (b) grant Company full and complete control over the defense and settlement of the claim; (c) assist Company with the defense and settlement of the claim as Company may reasonably request and at Company's expense; and (d) comply with any settlement or court order made in connection with the claim.
11.2 Indemnification. Company will indemnify SAU against: (a) all damages, costs, and attorneys' fees finally awarded against SAU in any proceeding or claim under Section 11.1; (b) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by SAU in connection with the defense of such proceeding or claim; and (c) if any proceeding arising under Section 11.1 is settled, Company will pay any amounts to any third party agreed to by Company in settlement of any such claims.
12.1 Definition. "Confidential Information" means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party's technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party; (b) is independently developed by the receiving party without use of or reference to the Confidential Information; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
12.2 Restricted Use and Nondisclosure. During and after the term of this Agreement, each party will: (a) use the other party's Confidential Information solely for the purpose for which it is provided; (b) not disclose the other party's Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and has executed a written agreement containing substantially similar confidentiality obligations; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the other party's Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
12.3 Required Disclosure. If either party is required by law to disclose the Confidential Information or the terms of this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure, to the extent permitted by law, and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.
12.4 Return of Materials. Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other or destroy all Confidential Information that it may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
13.1 Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
13.2 Cap on Liability. EXCEPT FOR LIABILITY RESULTING FROM (A) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (B) ACTUAL DIRECT DAMAGES RESULTING FROM A BREACH OR VIOLATION OF SECTION 12 (CONFIDENTIALITY), OR (C) EITHER PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, UNDER NO CIRCUMSTANCES WILL A PARTY'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO SAU DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM.
13.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.
14.1 Assignability. Neither party may assign its right, duties, or obligations under this Agreement without the other party's prior written consent except in connection with a merger, acquisition, or sale or exclusive license of all or substantially all of the assigning party's assets to a third party. If consent, which shall not be unreasonably withheld or denied, is given, this Agreement will bind the assigning party's successors and assigns.
14.2 Non-solicitation. During the term of this Agreement and for a period of one year thereafter, neither party hereto will, directly or indirectly, employ or solicit the employment or services of an employee or independent contractor of the other party without the prior written consent of such party.
14.3 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the Order Form. Either party may change its address for receipt of notice by notice to the other party. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
14.4 Force Majeure. Neither party will be liable for or be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such party's reasonable control, including natural disasters, government actions, internet or telecommunications failures, carrier outages, cease-and-desist letters or other legal demands from third-party review platforms, any restriction, suspension, or termination of SAU's access to any Supported Platform, or cyberattacks, so long as the party uses commercially reasonable efforts to avoid or remove such causes of non-performance.
14.5 Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act and with SAU's corporate policies regarding foreign business practices, neither party nor its employees and agents shall directly or indirectly make any offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government, or inducing such a person to use his influence to affect any such governmental act or decision in order to assist the party in obtaining, retaining, or directing any such business.
14.6 Compliance with Applicable Laws. Company agrees that it shall comply with all regulations, rules, laws, and ordinances that apply to their use of the Services and their operations, including without limitation all privacy laws such as the General Data Protection Regulation ("GDPR"), the California Consumer Privacy Act ("CCPA"), and review site policies (together and individually the "Applicable Laws").
14.7 Dispute Resolution. Prior to initiating any formal legal proceeding, the parties agree to attempt to resolve any dispute in good faith through direct negotiation for a period of thirty (30) days following written notice of the dispute. If informal resolution is unsuccessful, either party may elect to resolve the dispute through binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, conducted in Del Mar, California, on an individual basis, or by remote hearing. If arbitration is not elected, disputes will be resolved exclusively in the federal and state courts of the State of California in the County of San Diego, and the parties hereby submit to the personal jurisdiction of such courts. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules.
14.8 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party's right to demand strict compliance in the future.
14.9 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
14.10 Interpretation. The parties have had an equal opportunity to participate in the drafting of this Agreement and the related Order Forms. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings in this Agreement are for identification and reference purposes only and must not be used to construe or interpret this Agreement.
14.11 Counterparts. This Agreement may be executed in any number of identical counterparts with the same effect as if the parties had signed the same document. This Agreement may be executed and delivered by electronic signature, including through DocuSign or similar electronic signature platforms, which shall have the same legal effect as an original handwritten signature. Electronic signature means any electronic symbol or process attached to or logically associated with a record and adopted by a party with the intent to sign such record.
14.12 Entire Agreement. This Agreement, including the applicable Order Form, is the final and complete expression of the agreement between these parties regarding the matters addressed herein. This Agreement supersedes all previous oral and written communications regarding these matters. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.
The following provisions apply only to Company if the Order Form applicable to Company designates Company as a Reseller, in which case Company is referred to in this Section 15 as "Reseller." Resellers are governed by the entire Master Services Agreement, including this Section 15.
15.1 Appointment and Independent Contractor Status. SAU hereby appoints the Reseller as a nonexclusive distributor of the Services, as more fully set forth in this Agreement. The parties recognize and agree that Reseller and SAU are independent contractors. Acknowledging that SAU's online review management and response service consists of and is accompanied by technology, business methods, know-how, trade secrets, processes, and other confidential information that SAU has developed over the years and not made public, Reseller agrees that it shall not enter into an agreement to resell online review management services of any Competing Party or represent any Competing Party's online review management service during the term of this Agreement. Exceptions to this non-compete obligation for specific pre-existing vendor relationships may be negotiated and documented in the applicable Order Form. "Competing Party" means any company, individual, or other business that competes in the same general marketplace as SAU regarding online review management services.
15.2.1 License to the Services. Subject to the terms and conditions of this Agreement, SAU grants to Reseller a worldwide, limited, non-exclusive, non-transferable, non-sublicensable right to resell the Services to its customers ("End Users") anywhere in the world; make the Services available to End Users; and internally use the Services solely to support Reseller's rights and obligations under this Agreement.
15.2.2 End User Sublicensing. Subject to the terms and conditions of this Agreement, Reseller may allow End Users to access and use the Services. Prior to an End User's accessing or using the Services, Reseller must require each End User to enter an End User License Agreement with provisions that are substantially identical to the End User License Agreement published at the login page of the applicable SAU platform or service. This requirement is built into the login process when an End User accesses the Services via any SAU-operated or SAU-powered login portal. Where SAU has not built the End User License Agreement into the login process, this requirement shall be the responsibility of Reseller.
15.2.3 Delivery. SAU shall use commercially reasonable efforts to make the Services available to End Users following new customer sales but shall have no liability for failure to do so.
15.2.4 General Restrictions. Except as explicitly provided in this Agreement or expressly permitted by applicable law, Reseller will not, and will not intentionally permit or authorize End Users or other third parties to (a) decompile, disassemble, reverse engineer, or otherwise attempt to discern the source code of the Services; (b) copy, modify, enhance, or otherwise create derivative works of the Services; or (c) develop methods to enable unauthorized use of the Services. In addition, during the term of this Agreement and for a period of three (3) years following termination, Reseller shall not use any of the technology, business methods, know-how, trade secrets, processes, or other confidential information of SAU's online review management and response service to develop, plan, design, or in any other manner create or market any online review management and response service. Reseller also agrees not to share SAU response templates, tools, processes, or technology with any other vendors with the intention of creating a competitive solution.
15.2.5 Direct Sales by SAU. SAU reserves the unrestricted right to market, distribute, and sell licenses to the Services worldwide, including without limitation through original equipment manufacturers, value-added resellers, and other third-party intermediaries and directly to end users.
15.3 Compensation. Reseller will purchase the Services directly from SAU. It may sell the Services at any price it determines in its sole discretion, but payment as provided in the Order Form shall be due to SAU whether or not Reseller receives payment from its customers. SAU shall be entitled to revise the pricing set forth in the Order Form in the event its underlying costs increase. SAU will provide Reseller with at least thirty (30) days written notice of any fee increase. If Reseller does not accept the revised pricing, Reseller may terminate this Agreement without early termination penalty upon written notice to SAU within ten (10) days of receiving the fee increase notice.
15.4 Additional Services. All services required by End Users, including without limitation all support obligations, will be provided by Reseller. However, if Reseller desires SAU to provide services beyond the license itself, the parties will agree separately in writing.
15.5 Metrics Report. On the 1st of each month SAU will provide to Reseller a monthly invoice that contains usage metrics, such as the number of active locations, location type, and cost per location.
15.6 Payment Terms. SAU will invoice Reseller on the first (1st) day of each month for the upcoming month's Services, based on the total number of Active Locations on the platform as of the last day of the prior month. The same invoice also includes pro-rated charges for any new Active Locations added during the prior month, calculated from their date of activation through the last day of that month. Payment terms are Net 10 days from invoice date. All amounts payable under this Agreement are denominated in United States Dollars. Reseller is responsible for removing locations from paid tiers prior to the last day of a billing month to avoid charges for the following month. No refunds will be given for unused or partial months' fees.
15.6a Credit Card Processing Fee. If Reseller elects to pay invoices by credit card, a processing fee of 2.3% of the invoice amount will be added to each payment processed by credit card. SAU will separately itemize the credit card processing fee on each applicable invoice. Reseller may avoid this fee by remitting payment via ACH, wire transfer, or check.
15.7 Customer Records. During the term of the Agreement, and for a period of 3 years thereafter, Reseller and SAU will maintain clear and complete records relating to the number of respective customers using services as described in this Agreement.
15.8 Currency and Late Payment. If Reseller fails to make a payment when due and fails to cure such failure within ten (10) days of notice regarding the default, SAU may suspend or terminate this Agreement at its option. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Reseller will reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by SAU to collect any amount that is not paid when due. Amounts due from Reseller under this Agreement may not be withheld or offset by Reseller against amounts due to SAU for any reason. Accrued interest for late payments will be added to the following month's invoice.
15.9 Taxes. Other than net income taxes imposed on SAU, Reseller will bear all taxes, duties, and other governmental charges resulting from this Agreement. Reseller will pay any additional taxes as are necessary to ensure that the net amounts received by SAU after all such taxes are paid are equal to the amounts that SAU would have been entitled to in accordance with this Agreement as if the taxes did not exist.
15.10 Other Records. During the term of this Agreement and for two years after, each party will maintain at its primary place of business full, true, and accurate books of account and records concerning all transactions and activities under this Agreement, including without limitation all data that the party is required to provide under this Agreement and End User license information.
15.11 Audit of Records. Each party, or its authorized agent, shall have the right to examine and audit the books and records set forth in this Agreement at its own expense and upon reasonable prior notice during normal business hours. In the event of any dispute as to the sufficiency or accuracy of such records, a party may have an independent auditor examine and certify the other party's records at the requesting party's expense, provided that the audited party shall be required to pay for such expenses if it is determined that the audited party has underpaid amounts due by it by more than 5% for any annual period.
15.12 Account Manager. Each party will designate a single point of contact within its organization to manage the relationship established by this Agreement ("Account Manager"). Either party may change its Account Manager by providing written notice to the other party. Disputes that cannot be resolved by the Account Managers will be escalated to more senior executives for resolution.
15.13 Sales and Marketing Practices. In selling, marketing, and promoting the SAU products and otherwise performing under this Agreement, Reseller will (1) not engage in any deceptive, misleading, illegal, or unethical practices; (2) not make any representations, warranties, or guarantees concerning SAU Services that are inconsistent with or in addition to those made by SAU in this Agreement; and (3) comply with all applicable international, national, state, and local laws and regulations.
15.14 Reseller's Efforts. Reseller agrees to make commercially reasonable efforts to market the Services throughout the term of the Agreement.
15.15 End User Sales and Onboarding. Reseller is responsible for sales, onboarding, and support for Reseller customers enrolling to use the Services. Reseller will provide an official contact email address to facilitate any interaction with SAU.
15.16 Second-Tier Support. Notwithstanding anything in this Agreement to the contrary, SAU is responsible for providing sales support to Reseller in order for Reseller to effectively offer the Services to Reseller's customers and support their customers.
15.4a Reseller Responsibility for Downstream Service Changes. Reseller acknowledges that the platform removal, data deletion, and service suspension rights set forth in Sections 2.5, 2.6, and 15.24 apply to the reseller relationship and Reseller is solely responsible for communicating any resulting service changes, interruptions, or limitations to its End Users. SAU has no obligation to communicate directly with Reseller's End Users regarding any such changes and shall have no liability to Reseller or its End Users arising from Reseller's failure to communicate such changes.
15.17 Integration and Development. Reseller and SAU will be jointly responsible for the development and support of any integration between the Services and any platform operated by Reseller on which the Services are located. SAU's support obligations shall be fulfilled via phone, video conference, or email throughout the implementation process or during live platform operations. If SAU personnel are required to travel to Reseller's location, the reasonable costs of such travel and boarding shall be borne by Reseller.
15.18 Use of Company Names. Each party may identify the other as a cooperative partner in their advertising and marketing materials. However, neither party will use the other party's trade names or marks to identify the other party without the party's prior written approval, which approval will not be unreasonably withheld.
15.19 Reseller's Trademarks. Reseller will have the right to place its trademarks, trade names, service marks, and logos (Reseller's "Trademarks"), on the Services for purposes of identifying the Services.
15.20 Use of Trademarks. Except as set forth in this section, nothing contained in this Agreement will grant or be deemed to grant to the non-owning party any right, title, or interest in or to the owning party's trade names or marks. All uses of trade names and related goodwill will inure solely to the owning party.
15.21 Proprietary Rights. Each party will own all right, title, and interest in and to its own intellectual property, software, platforms, and other Services, including any developments, improvements, and additions made thereto as a result of the parties' cooperation under this Agreement. Reseller will have only those rights in or to the Services and documentation granted to it pursuant to this Agreement.
15.22 Proprietary Rights Notices. Except as expressly provided herein, neither party nor its employees or agents will remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices appearing on the other party's intellectual property, software, platforms, or other Services or related documentation.
15.23 Reseller SMS Compliance Flow-Down. Reseller agrees to flow down the SMS compliance obligations set forth in Section 6.2 of this Agreement to all of its End Users and authorized sub-resellers. Reseller represents and warrants that: (a) all End Users who send SMS messages through the Services have provided prior express written consent to receive such messages; (b) Reseller has contractually bound its End Users to SMS compliance obligations at least as protective as those in Section 6.2; and (c) Reseller will promptly notify SAU of any known or suspected TCPA violation or carrier complaint arising from End User SMS activity. Reseller will indemnify SAU and its carrier partners (including Bandwidth Inc.) from any claims, fines, or penalties arising from Reseller's or its End Users' failure to comply with applicable SMS laws and carrier requirements.
15.24 Cease-and-Desist and Legal Demand Protection. SAU reserves the right to immediately suspend Reseller's access to all or any part of the Services, without liability to Reseller, upon receipt of a cease-and-desist letter, legal demand, court order, or other legal process from any third-party review platform, governmental authority, or regulatory body requiring SAU to cease providing or limit access to the Services. Where the legal demand does not require immediate cessation, SAU will provide Reseller with at least twenty-four (24) hours written notice before implementing the suspension. Where the legal demand requires immediate action, SAU may suspend without prior notice. Such suspension shall not constitute a breach of this Agreement and shall not entitle Reseller to any fee reduction, refund, or early termination without penalty. Reseller will defend, indemnify, and hold harmless SAU from and against any claims, damages, losses, and expenses (including attorneys' fees) arising from or related to: (a) SAU's compliance with any such cease-and-desist letter, legal demand, or legal process; (b) any interruption to Reseller's services caused by SAU's compliance with such demands; or (c) any claim by Reseller's End Users arising from such suspension or service interruption.
15.25 No Liability for Service Limitations. SAU shall have no liability to Reseller or its End Users for any failure or inability to collect review data, post review responses, access business profiles, or otherwise perform the Services resulting from: (a) restrictions, policy changes, access limitations, or technical modifications implemented by any Supported Platform; (b) limitations or failures of SAU's proprietary systems, data collection methods, or publishing technology, whether or not such methods are expressly authorized by the applicable Supported Platform; (c) cease-and-desist letters, legal demands, or other legal process received by SAU; (d) cyberattacks, outages, or technical failures outside SAU's reasonable control; or (e) any other cause beyond SAU's reasonable control. Reseller acknowledges that the availability and functionality of the Services is dependent on third-party platforms and systems and that SAU makes no guarantee of uninterrupted service delivery. Such service limitations shall not constitute a breach of this Agreement and shall not entitle Reseller to any fee reduction, refund, or early termination without penalty.
15.26 SAU Infringement Defense. SAU will defend Reseller from any actual or threatened third party claim that the Services or any element thereof infringe or misappropriate any U.S. patent issued as of the Effective Date or any trade secret of any third party during the term of this Agreement if: (1) Reseller gives SAU prompt written notice of the claim; (2) Reseller gives SAU full and complete control over the defense and settlement of the claim; (3) Reseller provides assistance in connection with the defense and settlement of the claim as SAU may reasonably request at SAU's expense; and (4) Reseller complies with any settlement or court order made in connection with the claim.
15.27 SAU Infringement Indemnification. SAU will indemnify Reseller against: (1) all damages, costs, and attorneys' fees finally awarded against Reseller in any proceeding under Section 15.26; (2) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by Reseller in connection with the defense of such proceeding (other than attorneys' fees and costs incurred without SAU's consent after SAU has accepted defense of such claim); and (3) if any proceeding arising under Section 15.27 is settled, all amounts paid to any third party as agreed to by SAU in settlement of any such claims.
15.28 Mitigation of Infringement Action. If permitted use of the Services are, or in SAU's reasonable opinion are likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 15.25, then SAU will either: (1) procure the continuing right to use of the Services; (2) replace or modify the Services in a functionally equivalent manner so that it no longer infringes; or if SAU is unable to do either (1) or (2), SAU will terminate the licenses with respect to the Services subject to the infringement claim and refund to Reseller all unused fees pre-paid by Reseller (if any).
15.29 Reseller Defense of Claims. Reseller will defend SAU from any actual or threatened third party claim arising out of or based upon (i) Reseller's or its End User's use of the Services in any manner other than as permitted under this Agreement; (ii) Reseller's or its End Users' violation of any Applicable Laws, its gross negligence or willful misconduct; (iii) Reseller's material breach of any of the provisions of this Agreement; and (iv) any End User's use of the Services or conduct in relation to the End User's use of the Services.
15.30 Reseller Indemnification. Reseller will indemnify SAU against: (a) all damages, costs, and attorneys' fees finally awarded against SAU in any proceeding or claim under Section 15.29; (b) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by SAU in connection with the defense of such proceeding or claim; and (c) if any proceeding arising under Section 15.29 is settled, Reseller will pay any amounts to any third party agreed to by Reseller in settlement of any such claims.
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