Terms of Use

VAROLII CORPORATION

Services: The following terms and conditions constitutes the agreement between Varolii Corporation ("Varolii") and you (either an individual or a legal entity that you represent as an authorized employee or agent) ("Customer") (the "Agreement") in connection with Customer's request to develop or use those services provided by Varolii (the "Service(s)"), which may be referenced in a separate written individual order, appendix, schedule, attachment or statement of work mutually executed (or in the case of Work Orders, approved by the Parties via email) by the Parties (each an "Attachment"). Varolii and Customer may sometimes individually be referred to herein as a Party or collectively as the "Parties".
Definitive Agreement. To the extent there is a conflict between the terms of separate mutually executed written agreement or Attachment(s) between Customer and Varolii that covers (i) Varolii's provision of, or Customer's use of part or all of the Service(s); and/or (ii) disclosure of confidential information of a party the terms of Definitive Agreement (the "Definitive Agreement") shall control as of the effective date thereof, provided that such Definitive Agreement has not expired or has been terminated, the terms of the Definitive Agreement shall control as of the effective date thereof. Notwithstanding the foregoing, the pre-printed standard terms and conditions contained in any purchase order or other standard or pre-printed forms issued by Customer that are in conflict with the Terms of Service or Definitive Agreement shall be of no force and effect, even if such form is accepted by Varolii.
Rates: Unless otherwise mutually agreed to by the parties under a Definitive Agreement, rates or license fees for the services will be invoiced at Varolii's then-standard rates and fees as of the date of Service. Rates and fees may be increased at any time by giving Customer prior notice. Any consent by Varolii honoring pricing under a Definitive Agreement which has expired and/or is under negotiation shall not constitute any waiver by Varolii of any of Varolii's rights or waiver of Customer's obligations under this Agreement.
Payment. Varolii will invoice and Customer agrees to pay for all amounts due in connection with the Services. All amounts are due and payable within 30 days of receipt of invoice. Varolii may charge 1½% interest per month, or any lesser amount permitted by law, on late payments. All payments are due net 30 upon receipt of Varolii's invoice. Varolii shall have the right to suspend all or a portion of the Services with 5 days prior written notice to Customer in the event of non-payment.
Appropriate Use: Customer acknowledges that it is solely responsible for the approval of any content of messages delivered, the selection of the recipients of the messages, and the manner, time and means of delivery of such messages and that it will not create or transmit any message that contains harmful or deleterious programs, or which otherwise is harmful, threatening, defamatory, obscene, sexually explicit, harassing, or racially, ethically or otherwise objectionable. Customer agrees that it will not use the Service in connection with High Risk Activities as defined in Section 11, below.
Notification: Each Party agrees to provide the other with immediate notice of any complaint, investigation, or data request by a federal, state or other entity that calls into question the compliance of the Services under this Agreement with any law or regulation or proposed law or regulation.
Warranty by Customer: Customer represents and warrants that (i) it has the right to deliver the information, data and materials to Varolii to use in connection with the Services ("Customer Data"); (ii) the Customer Data and disclosure thereof such does not violate the intellectual property or privacy rights of third parties; (iii) its choices of notification services, functionality, content and notified parties will be in accordance with best business practices, and in compliance with all applicable federal, state, or international laws or regulations, including without limitation, such laws and regulations governing Customer contacts and notifications, by all media, including telephone calls, autodialers, and electronic mail.
Confidentiality: Confidential Information means any proprietary information, technical data, trade secrets or know-how of the disclosing Party, including, but not limited to, research, product plans, products, services, suppliers, customer lists, prices/costs, markets, or other business or technical information of disclosing Party that is designated as confidential or proprietary or which reasonably appears to be confidential or proprietary. Confidential Information does not include anything already in the possession of the receiving Party without obligation of confidence, is independently developed by the receiving Party without use of the other's Confidential Information, becomes available to the general public without breach of this Agreement, or is rightfully received by receiving Party from a third party without obligation of confidence. Each Party agrees that for a period of 3 years following the date of such Party's receipt of Confidential Information from the other Party, the receiving Party will hold Confidential Information in strict confidence and not disclose to others or use it in any way except performing the receiving Party's obligations under this Agreement. The Parties agree to take all action reasonably necessary to protect the confidentiality of the Confidential Information of the other. Upon request, receiving Party agrees to promptly return or certify the destruction of all Confidential Information provided by the disclosing Party.
Ownership: All right, title and interest in and to the Services and all deliverables, inventions, innovations, improvements, or other works of authorship Varolii may conceive of or develop in the course of performing the Services for Customer, or as a result of such Services under an Attachment or otherwise, (collectively, the "Work Product") whether or not they are eligible for patent, copyright, trademark, trade secret, or other legal protection shall be owned by Varolii. Customer retains ownership of all its proprietary rights, including intellectual property rights in its data and information provided by Customer to Varolii during Customer's use of the Services. Notwithstanding the foregoing, Customer grants Varolii a limited license to collect, use, distribute and publish aggregate Customer's analytic, statistical and non-personally identifiable data and information collected in the course of providing the Services to Customer to test, improve and modify Varolii's products and services.
DISCLAIMER OF WARRANTY. Varolii MAKES NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES OR THE RESULTS OBTAINED FROM SUCH SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
HIGH RISK ACTIVITIES. IN ADDITION TO THE OTHER DISCLAIMERS AND LIMITATIONS CONTAINED WITHIN THIS AGREEMENT, VAROLII AND ITS AFFILIATES, AGENTS, CONTENT PROVIDERS, SERVICE PROVIDERS, AND LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. CUSTOMER FURTHER ACKNOLWEDGES AND AGREES THAT THE SERVICES ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE IN HAZARDOUS CIRCUMSTANCES REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING BUT NOT LIMITED TO, USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, OR IN ANY CASE IN WHICH THE FAILURE OF THE SERVICES OR ANY COMPONENT THEREOF COULD CAUSE DEATH, PERSONAL INJURY, PROPERTY DAMAGE OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, AND ANY SUCH USE SHALL BE AT CUSTOMER'S SOLE RISK ("HIGH RISK ACTIVITIES").
Indemnification. Customer shall defend, indemnify and hold harmless, at its expense, Varolii from all claims, losses, liabilities, damages, suits, actions, government procedures, taxes, penalties or interest, associated auditing and legal expenses and other costs incurred by Varolii (including reasonable attorneys' fees and costs of suit) arising from Customer, its agents', its subcontractors', or their personnel's breach of Customer's obligations under this Agreement, and/or misrepresentation or breach of any representation, warranty, obligation or covenant of this Agreement.
Limitation of Damages. IN NO EVENT SHALL VAROLII BE LIABLE FOR ANY DIRECT OR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOSS OF REVENUE, PROFITS OR DATA, LOSS OF USE DAMAGES OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FORESEEABLE OR NOT, EVEN IF VAROLII HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VAROLII SHALL IN NO EVENT BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY INACCURACY, ERROR, OR OMISSION IN, OR LOSS, INJURY, OR DAMAGE CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS, OR INTERRUPTIONS IN THE SERVICES GENERALLY, AND ANY CONTENT CONTAINED IN THE MESSAGES DELIVERED BY VAROLII AS PART OF THE SERVICES.
Termination or Suspension of Service: Unless otherwise stated under a Definitive Agreement, Varolii may suspend or terminate all or a portion of the Service or this Agreement with or without cause by giving prior written or email notice to Customer.
Force Majeure: Varolii shall not be liable for damages for any delay or failure of delivery or failure to perform as a result of out of causes beyond its reasonable control, including, but not limited to, acts of civil or military authority, terrorist act, Act of God, fires, riots, wars, or embargoes.
Notices. Legal Notices to Varolii may be mailed via first class or air mail or overnight courier to the following address (and are deemed given upon receipt):

Varolii Corporation
Legal Department
821 2nd Avenue, Suite 1000
Seattle, WA 98104
206-902-3900 (Telephone)
Independent Contractors. This Agreement shall not be construed to create a joint venture or partnership between the Parties or to permit or allow any third party beneficiaries hereof. It is the explicit intention of the Parties hereto, that no person or entity other than the Parties is or shall be entitled to bring any action to enforce any provision of this Agreement against either of the Parties, and the covenants, undertakings, and agreements set forth in this Agreement shall be solely for the benefit of, and shall be enforceable only by the Parties hereto or their respective permitted successors and assigns hereunder.
General: Varolii may modify these terms of service at any time in its sole discretion by posting such changes on this Site. Unless there is a Definitive Agreement between the Parties for the Services being provided, this Agreement, together with any Attachment, constitutes the entire agreement and supersedes any prior agreements. If Varolii elects not to enforce a particular provision of this Agreement, Varolii reserves the right to enforce said provision at a later date without waiving any rights with regard that this Agreement or that provision. In the event any one or more of the provisions contained in this Agreement or any application thereof is unenforceable for any reason, such provision shall be restored to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of parties, and the remaining provisions of this Agreement shall remain in full force and effect. Customer shall not assign its rights or obligations under this Agreement or an Attachment to a third party without the prior written consent of Varolii. All terms and provisions contained in this Agreement are binding upon and inure to the benefit of the Parties and their permitted assigns. Sections 4, 6, 8, 9, 10, 11, 12, 13, 15, 17 and 18 shall survive termination thereof. This Agreement shall be construed and enforced in accordance with the laws of the State of Washington, except for its conflict of laws provisions.