These TERMS OF SERVICE (this “Agreement”) is made between WhooshPosh, (“WhooshPosh”) and you, or, if you represent an
entity or other organization, that entity or organization (in either case “You” or “Your”).
WhooshPosh provides certain services relating to the development, transmission, analysis, and management of digital
communications and tools (the “Services”) through the web site located at www.WhooshPosh.com and such other sites as may
be designated by WhooshPosh (each, the “Site” or collectively, the “Sites”). All access to and use of the Services
available through the Site are subject to the terms of this Agreement. If You wish to access and use the publicly
available portions of the Services and the Site, You may do so only in compliance with this Agreement. If You have
placed or later place an order (whether through the Site, by email, phone or otherwise) with WhooshPosh (Your “Order”)
seeking to access and use certain of the Services requiring registration, WhooshPosh is willing to accept Your Order and
provide You with access to and use of those Services only if You comply with this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY. BY SUBMITTING AN ORDER OR BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE AND
AGREE YOU (1) HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT; (2) IF AN INDIVIDUAL, ARE 18 YEARS OR OLDER; AND (3)
MEET THE OTHER QUALIFICATIONS SET FORTH IN THIS AGREEMENT.
This Agreement is entered into as of the earlier of the date You first submit an Order relating to the Services or first
access or use the Services or the Site (the “Effective Date”). This Agreement consists of the following terms and
conditions and each Order submitted by You and accepted by WhooshPosh, each of which is incorporated in and made a part
of this Agreement.
Table of Contents:
1. Definitions2. Changes to this Agreement3. Changes to the Site and Services4. Orders and Confirmation5. Term7. Trial/Free Subscription8. Access to the Services9. Software10. Add-ons11. Restrictions12. Fees and Payment13. Termination and Suspension14. Ownership of IPR15. Content16. Warranties and Disclaimer17. Indemnity18. Limitations on Liability19. Data Privacy20. Confidentiality21. Claims of Infringement22. Linked Sites23. Disputes24. Governing Law25. General26. OEM Terms and Conditions
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1. Definitions. Capitalized terms used in this Agreement will have the definitions given in this Agreement, and other
terms will have their plain English meaning as commonly interpreted in the United States.
2. Changes to this Agreement. WhooshPosh reserves the right, at any time, to change or modify this Agreement by making
such change or modification available on the Site or by providing other notice to You. Any such change or modification
will be effective immediately after posting on the Site or such other notice. As applicable, You will be deemed to have
agreed to such change or modification of this Agreement through Your continued use of the Site or Services. You may also
enter into one or more statements of work with WhooshPosh for onboarding, delivery, optimization or similar services
included in the Services (each, a “SOW”). Each SOW shall be governed by this Agreement in addition to the terms of such
SOW.
3. Changes to the Site and Services. The features and functions of the Service, including the APIs, may change over
time. It is Your responsibility to ensure that calls or requests You make to the Service are compatible with
then-current APIs. Although WhooshPosh endeavours to avoid changes to the APIs that are not backwards compatible, if any
such changes become necessary, WhooshPosh will use commercially reasonable efforts to notify You prior to
implementation. Notwithstanding the foregoing, You understand that WhooshPosh may from time to time, in its sole
discretion, update, change, revise, suspend or discontinue the Services (or any portion thereof) with or without notice.
4. Orders and Confirmation. WhooshPosh will confirm Your Order either through the Site at the time You submit Your Order
or by providing You with access to the Services (each, a “Confirmation”). If the terms of any Order conflict with the
terms of any Confirmation of that Order, the terms of the Confirmation will govern and control with respect to the
Services provided to You. By accessing or using any of the Services, You agree to be bound by the terms of this
Agreement and each applicable Order and Confirmation with respect to those Services.
5. Term. If You have ordered a non-trial subscription to the Services, then the term of this Agreement will commence on
the Effective Date and continue for the initial period stated in the applicable Order or Confirmation for the Services
(the “Initial Term”) and will thereafter automatically renew for successive additional periods of equal duration or as
otherwise set forth in such Order or Confirmation (the “Renewal Term”, and together with the Initial Term, the “Term”).
If no Initial Term is stated in the applicable Order or Confirmation for the Services, this Agreement will continue for
an Initial Term of one month and will thereafter automatically renew for successive additional one-month Renewal Terms.
Unless terminated as set forth herein, the Term will continue to renew until You notify WhooshPosh that You do not wish
to renew the Agreement at least 10 days prior to the end of the then-current Term. In all other cases, the Term will
continue until terminated as set forth herein.
6. Subscription; OEM Service. During the Term, WhooshPosh will provide You with a limited subscription to access and use
the Services subject to Confirmations under this Agreement, solely for Your own use in connection with Your own business
purposes and not for resell, lease, license or sublicense; Your rights to access and use the Services are personal,
non-exclusive, non-transferable and non-sublicensable.
7. Trial/Free Subscription. If You have ordered a trial subscription to the Services or a subscription to any free
Services, as indicated in an Order (a “Trial/Free Subscription”), then the following additional terms shall apply during
any such Trial/Free Subscription: (a) the Term will continue for the period of the Trial/Free Subscription indicated in
the Order and will thereafter expire unless You place an Order for a non-trial subscription to the Services prior to the
expiration thereof; (b) this Agreement may be terminated by WhooshPosh, at any time, in WhooshPosh’s sole discretion,
for any reason or no reason, upon notice to You; (c) WhooshPosh shall have the right to include its trademark or service
mark (including any name, logo, slogan or product or service names) in email communications sent by You; and (d) Section
13(Fees and Payment), Section 17(a) (Warranties and Disclaimer – By WhooshPosh), and Section 18(a)(Indemnity – By
WhooshPosh) will not be applicable to You.
8. Access to the Services. Upon Confirmation of Your Order by WhooshPosh, You will be granted access to the Services
using the username and password applicable to Your Account (each such username and password, an “Account ID”). Each
Account ID is personal in nature and may be used only by You or, if You are an organization, by designated employees
within Your organization or contractors who are contractually required to comply with the terms of this Agreement (such
individual, as applicable, the “User” of the Account). You are solely responsible for all use of the Services by each
User and for compliance by each User with this Agreement. You will ensure the security and confidentiality of each
Account ID and will notify WhooshPosh immediately if any Account ID is lost, stolen or otherwise compromised. You
acknowledge that You are solely responsible for all costs, fees, liabilities or damages incurred through use of each
Account ID (whether lawful or unlawful) and that any Services ordered or transactions completed through any Account or
under any Account ID will be deemed to have been lawfully completed by You. You will be solely responsible, at Your own
expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for
You and each User to connect to, access, and use the Services and the Sites.
9. Software. Software or code available on or for download through the Site or Services (“Software”), if any, are
protected by IPR (as defined below). Unless otherwise expressly stated in a license or other agreement separate from
this Agreement that You may have entered into (or may enter into) with WhooshPosh relating to any Software (each such
license or other agreement, a “Software License Agreement”), WhooshPosh grants You a limited, non-exclusive,
non-transferable right and license to download, install and execute the Software in accordance with the instructions
provided on the Site and solely for Your own business purposes in connection with Your access to and use of the
Services. Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), You
are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any IPR
therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from,
republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the
Software without the prior written permission of WhooshPosh. Except as set forth in this Agreement, any Software License
Agreement will control in the event of a conflict between the terms of this Agreement and that Software License
Agreement. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights,
rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible
property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade
secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
10. Add-ons. WhooshPosh may make available through the Services additional optional, non-essential features,
functionality and services (“Add-ons“) offered by third-party partners (each, an “Add-on Partner”). Your use of Add-ons
is subject to this Agreement and any other agreement separate from this Agreement that You may enter into (or may have
entered into) relating to the Add-on directly with the applicable Add-on Partner (each, an “Add-on Service Agreement”).
Except as set forth in this Agreement, the terms of any Add-on Service Agreement will control in the event of a conflict
between the terms of this Agreement and such Add-on Service Agreement. Add-ons may be subject to additional Fees as set
forth on the Site or Confirmation. You acknowledge WhooshPosh is not a party to the Add-on Service Agreement between You
and the Add-on Partner with respect to that Add-on, and the Add-on Partner of each Add-on is solely responsible for that
Add-on, the content therein and any claims that You or any other party may have relating to that Add-on or Your use of
that Add-on. By purchasing an Add-on, You give consent for WhooshPosh to share Your Content and user information with
the Add-on Partner as necessary in order to provide You with the Add-on. The license granted to You to use any Add-on is
personal to You, and is not sublicensable or transferrable to Your end users, including any OEM User. You will not
provide or resell Add-ons to others. Notwithstanding the terms of any Add-on Service Agreement, WhooshPosh may change,
modify or discontinue any Add-on at any time and without notice to You, subject to any continuing rights You may have
under the Add-on Service Agreement.
11. Restrictions. You acknowledge the Services, Sites, Software, and the databases, hardware and other technology used
by or on behalf of WhooshPosh to provide the Services and operate the Sites (the “Technology”) and their structure,
organization, and underlying data, information and source code constitute valuable trade secrets of WhooshPosh. You will
not, and will not permit any third party (including any OEM User, as applicable) to: (a) access or use the Services or
the Sites, in whole or in part, except as expressly provided in this Agreement; (b) use the Site, Services or any
Software in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or
Services; (c) use automated scripts to collect information from or otherwise interact with the Site, Services or any
Software; (d) use the Site, Services or any Software to intimidate or harass any other people or entities; (e) alter,
modify, reproduce, create derivative works of the Services, Technology, or any Software; (f) reverse engineer,
disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets
embodied in the Site, Services, Technology or any Software; (g) attempt to circumvent or overcome any technological
protection measures intended to restrict access to any portion of the Sites, Services, Technology, or any Software; (h)
interfere in any manner with the operation or hosting of the Sites, Services, Technology or any Software, or attempt to
gain unauthorized access to the Sites, Services, Technology or any Software. WhooshPosh does not intend uses of the
Service to create obligations under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the
Gramm-Leach-Bliley Act (“GLBA”) or similar Laws (as defined below) and makes no representations that the Service
satisfies the requirements of such laws. If You are (or become) a Covered Entity or Business Associate (as defined in
HIPAA) or a Financial Institution (as defined in GLBA), You agree not to use the Service for any purpose or in any
manner involving Protected Health Information (as defined in HIPAA) or Nonpublic Personal Information (as defined in
GLBA). You will not allow any access to or use of the Services by anyone other than Your authorized Users or OEM Users
(as applicable), and any such use will be consistent with the terms, conditions and restrictions set forth in this
Agreement.
12. Fees and Payment.
1. Fees. You agree to pay WhooshPosh all fees set forth in each Order or Confirmation and any fees otherwise specified
on the Site (“Fees”). All Fees will be billed as indicated in each Order or Confirmation. Unless WhooshPosh and You
expressly agree otherwise in writing, all Fees are payable in United States dollars. You will also be responsible for
all use, sales, and other taxes imposed on the Services, other than taxes that are imposed on or measured by the net
income, property tax or payroll taxes of WhooshPosh. WhooshPosh may change any portion of the Fees by posting the
changes to the Sites or otherwise notifying You through the Services of the change, such changes to take effect at the
beginning of the next Renewal Term.
2. Payment Terms. If the applicable Order or Confirmation does not specify the payment terms, the initial payment of
Fees specified under such Order or Confirmation for each period in Your subscription will be due and payable by You in
advance on or before the Effective Date and again on or before the completion of each subsequent period under this
Agreement. If You have specified credit card, or direct withdrawal or ACH payment from a bank account, as an applicable
payment mechanism under this Agreement, You grant WhooshPosh the right to charge the credit card or debit the bank
account provided to WhooshPosh for all Fees incurred under this Agreement. Except as expressly set forth herein or
agreed to in writing with WhooshPosh, all Fees will be non-refundable once paid to WhooshPosh, including upon any
termination or suspension of this Agreement. Subject to Section 13(c) (Fee Disputes), if You are overdue on any payment
of Fees and fail to pay within five business days of a written notice of overdue payment, WhooshPosh may charge You a
late fee equal to the lesser of 1½% per month or the maximum amount permitted under applicable law. If WhooshPosh
requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible
for those expenses.
3. Fee Disputes. In the event You dispute any portion of the Fees paid or payable by You under this Agreement, You must
provide written notice to WhooshPosh within 60 days of the invoice and the parties will work together to resolve the
applicable dispute promptly. If You do not provide written notice of Your fee dispute within such 60-day period, You
will not be entitled to dispute any Fees paid or payable.
13. Termination and Suspension.
1. Termination. This Agreement may be terminated by WhooshPosh, at any time, in WhooshPosh’s sole discretion, upon any
breach by You of this Agreement that remains uncured 10 days after WhooshPosh delivers written notice to You of such
breach.2. Suspension. Without limiting WhooshPosh’s right to terminate this Agreement, WhooshPosh may also immediately and
indefinitely suspend Your access to the Sites or Services, with or without notice to You, upon any actual, threatened or
suspected breach of this Agreement or upon any other conduct deemed inappropriate or detrimental to the Services by
WhooshPosh including, but not limited to, rogue script, bad send and unauthorized takeover or other malicious activity
on Your Account.3. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (i) all rights and
subscriptions granted to You under this Agreement will terminate; (ii) You will immediately cease all use of and access
to the Sites and Services; (iii) all Fees then owed by You will become immediately due and payable; (iv) You will
immediately either return to WhooshPosh or, at WhooshPosh’s discretion, destroy the WhooshPosh Confidential Information
in Your possession or control; and (v) WhooshPosh shall delete any of Your Content held by WhooshPosh in accordance with
WhooshPosh’s then-current data retention policy. The following sections of this Agreement will survive any expiration or
termination of this Agreement: Section 1 (Definitions), Section 7(d) (Trial/Free Subscription), Section 9 (Applicable
Policies), Section 11(Add-ons), Section 12 (Restrictions), Section 13 (Fees and Payment), this Section 14(c)
(Termination and Suspension – Effect of Termination), Section 15 (Ownership of IPR), Section 16(d) (Content – Service
Data), Section 16(e) (Content – Customer Feedback), Section 17(c) (Warranties and Disclaimer – Disclaimer), Section
18(b) (Indemnity – By You), Section 19 (Limitations on Liability), Section 20 (Data Privacy), Section 21
(Confidentiality), Section 24 (Disputes), Section 25 (Governing Law), Section 26(General) and Section 27(c) (Use of the
Services by OEM Users).
14. Ownership of IPR.
1. By WhooshPosh. WhooshPosh retains all right, title and interest, including, without limitation, all IPR in and to the
Sites, Services, Technology, WhooshPosh Content (as defined below), any Software, and any additions, improvements,
updates, and modifications thereto. You acknowledge that You are not receiving any ownership interest in or to any of
the foregoing, and no right or license is granted to You to use them apart from Your right to access the Services under
this Agreement. The WhooshPosh name, logo and the product and service names associated with the Services are trademarks
of WhooshPosh (or its third party providers), and no right or license is granted to You to use them.2. By You. You retain all right, title and interest, including, without limitation, all IPR in and to Your products and
services and Your Content (as defined below) and any additions, improvements, updates, and modifications thereto.
WhooshPosh acknowledges that it is not receiving any ownership interest in or to any of the foregoing, and no right or
license is granted to WhooshPosh to use them, except as expressly set forth herein.
15. Content.
1. WhooshPosh Content. WhooshPosh provides You with access to certain data, information and other content through the
Site and Services (“WhooshPosh Content”). Subject to this Agreement, each User and OEM User (as applicable) may: (i)
access the WhooshPosh Content solely for Your own business purposes in connection with the use of the Services. Except
as expressly provided in this Agreement, You will not, and will not permit any User or OEM User (as applicable) to
alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with the
WhooshPosh Content. Certain of the WhooshPosh Content includes or is based on data, information and content from
independent third party providers (“Third Party Content”). WhooshPosh uses commercially reasonable measures to ensure
that the Third Party Content is reliable, but WhooshPosh has no independent basis to verify or contradict the accuracy
or completeness of the Third Party Content and will not be responsible for any erroneous Third Party Content provided
through the Services.2. Your Content. You will be solely responsible for all data, information and other content provided by, or collected or
obtained from, You or any of Your Users or OEM Users (as applicable) through the Services, including, without
limitation, all personal data relating to You or any of Your Users, customers, OEM Users, service providers, employees,
contractors or agents (“Your Content”). You, on behalf of Yourself and each OEM User (as applicable), grant to
WhooshPosh all necessary rights and licenses in and to Your Content necessary for WhooshPosh to provide, optimize and
maintain the Services, to manage the WhooshPosh platform, system administration and security, comply with applicable
Laws, and to investigate and prevent system abuse or fraud, unauthorized access to or use of the Services, breaches of
this Agreement or applicable policies, and other wrongful behavior. As between You and WhooshPosh, You retain all of
Your rights in and to Your Content and do not convey any proprietary interest therein to WhooshPosh other than the
licenses set forth herein. You will maintain an adequate back-up of all Your Content and WhooshPosh will not be
responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of Your
Content. WhooshPosh may take remedial action if any of Your Content violates this Agreement, provided that WhooshPosh is
under no obligation to review any of Your Content for accuracy or potential liability.3. Sensitive Data. Sensitive Data (as defined below) will not be provided to WhooshPosh at any time and WhooshPosh will
have no liability whatsoever for Sensitive Data, whether in connection with a security incident or otherwise. For
purposes of this Agreement, “Sensitive Data” means (i) social security number, passport number, driver’s license number,
or similar identifier (or any portion thereof), (ii) credit or debit card number (other than the truncated (last four
digits) of a credit or debit card), (iii) employment, financial, genetic, biometric or health information, (iv) racial,
ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual
orientation, (v) account passwords, (vi) date of birth, (vii) criminal history, (viii) mother’s maiden name, or (ix) any
other information that falls within the definition of “special categories of data” under GDPR (defined in Section 20(b)
below), or any other applicable law relating to privacy and data protection.4. Service Data. WhooshPosh will have the right to collect, extract, compile, synthesize and analyze aggregated,
non-personally identifiable information or data (data or information that does not identify You or any other entity or
natural person as the source thereof) resulting from Your or any OEM User’s (as applicable) access to the Site and Your
or any OEM User’s (as applicable) use and operation of the Services including, by way of example and not limitation,
information relating to volumes, frequencies, bounce rates, or any other information regarding the communications You
and any OEM User (as applicable) generates and sends using the Services (collectively, “Service Data”). To the extent
Service Data is collected or generated by WhooshPosh, such data will be solely owned by WhooshPosh, constitutes
“WhooshPosh Content” hereunder and may be used by WhooshPosh for any lawful business purpose without a duty of
accounting to You or any of Your OEM Users, customers or recipients.5. Customer Feedback. If You or any OEM User provides WhooshPosh feedback or suggestions about the Service, WhooshPosh
may use that information without obligation to You or such OEM User, and You, on behalf of Yourself and each OEM User,
hereby irrevocably assigns to WhooshPosh all right, title, and interest in such feedback or suggestions.
16. Warranties and Disclaimer.
1. By WhooshPosh. WhooshPosh represents and warrants to You that WhooshPosh will use commercially reasonable efforts to
maintain and verify that the Services operate in accordance with this Agreement. WhooshPosh’s sole obligation and Your
sole and exclusive remedy in the event of any failure by WhooshPosh to comply with the foregoing sentence will be for
WhooshPosh to, at WhooshPosh’s sole discretion, re-perform the affected Services or refund to You the Fees You have
actually paid for the affected Services for the days in which the failure occurred.
Force Majeure. WhooshPosh relays on Third Party software and their underlying technology, to which WhooshPosh has not
control of to perform its commercial activity.
WhooshPosh will not be responsible for failure or delay of performance if caused by an event outside the reasonable
control, including but not limited to an electrical, internet, or telecommunication change, change in Third Party API,
protocol or underlying technology or outage not caused by WhooshPosh; government restrictions; or illegal acts of third
parties.
2. By You. You hereby represent, warrant, and covenant for the benefit of WhooshPosh that: (i) You have the legal right
and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other
entity, to bind the company or other entity to the terms of this Agreement; (ii) You have the legal right and authority
to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in
any applicable additional agreement You enter into in connection with any of the Services; (iii) Your Content, and any
other data, information or content You or any OEM User (as applicable) provides to WhooshPosh in connection with this
Agreement and Your and each OEM User’s (as applicable) access to the Site and use of the Services, is correct and
current and does not or will not violate this Agreement; (iv) You have all necessary right, title, interest and consent
necessary to allow WhooshPosh to use Your Content for the purposes for which You or any OEM User (as applicable)
provides Your Content to WhooshPosh, including, without limitation, the delivery of any communications; (v) You will not
and will not allow any User or OEM User (as applicable) to export or re-export the Service except in compliance with the
U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if
applicable; (vi) You will not and will not allow any User or OEM User (as applicable) to remove or export from the
United States or allow the export or re-export of the Service (A) into (or to a national or resident of) any embargoed
or terrorist-supporting country, (B) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury
Department’s list of Specially Designated Nationals, (C) to any country to which such export or re-export is restricted
or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental
approval at the time of export or re-export without first obtaining such license or approval, or (D) otherwise in
violation of any export or import Laws; (vii) You are not and will ensure each User and OEM User (as applicable) are
not, located in, under the control of, or a national or resident of any prohibited country or on any prohibited party
list referred to in subsection (vi) immediately above (for more information, see the U.S. Department of Treasury website
at https://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx); (viii) You will comply with, and
will be responsible for each OEM User’s (as applicable) compliance with, any applicable international, federal, state or
local treaties, laws, rules, regulations or ordinances (“Laws”) regarding Your or the OEM Users’ (as applicable) use of
or access to the Site or Services or regarding Your business, products or services, including, without limitation,
regarding data and data privacy and the transmission of electronic mail messages, whether solicited or unsolicited; and
(ix) if You will make the Service available OEM Users as an integrated part of the OEM Service, You (A) will not,
without WhooshPosh’s prior written approval, make any representation, warranty or guarantee to OEM User on behalf of
WhooshPosh concerning the Service and (B) will only offer the Service to any OEM Users as an integrated part of the OEM
Service and not for resale without integration.3. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 17(a), THE SITES AND SERVICES (AND ALL WHOOSHPOSH CONTENT
PROVIDED THROUGH THE SITES AND SERVICES) ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND WHOOSHPOSH AND ITS
PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF
THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NEITHER THE SOFTWARE, THE SITES NOR THE SERVICES ARE
DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES. NEITHER WHOOSHPOSH NOR ITS LICENSORS WARRANT THAT THE
OPERATION OF THE SOFTWARE OR THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE
GIVEN BY WHOOSHPOSH, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW
WARRANTIES IN ADDITION TO, THE WARRANTIES OF WHOOSHPOSH EXPRESSLY SET FORTH IN SECTION 17(a).
17. Indemnity.
1. By WhooshPosh. WhooshPosh will not, at its expense, defend You against any claims brought against You by a third
party that Your use of the Services in accordance with this Agreement infringes any copyright, trade secret or trademark
right. If You are, or WhooshPosh reasonably believes You may be, enjoined from using the Services, WhooshPosh, at
WhooshPosh’s option and expense, may procure the right for You to continue using the Services, replace or modify the
Services so that they become non-infringing, or terminate this Agreement with respect to such Services. This Section
18(a) constitutes WhooshPosh’s sole and exclusive liability, and Your sole and exclusive remedy, for any third party
claims under this Agreement.2. By You. You hereby indemnify, defend, and hold harmless WhooshPosh and its affiliates, employees, agents,
contractors, assigns, licensees, and successors in interest (the “WhooshPosh Indemnified Parties”) from any and all
claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards,
and settlement amounts) that result from any claim or allegation against any WhooshPosh Indemnified Party arising from
Your or the OEM Users (as applicable) accessing or using the Site, Services, Software, Your Content, WhooshPosh Content,
any other communication generated or sent through the Services or the OEM Service (as applicable), or any breach of this
Agreement. WhooshPosh will provide You with notice of any such claim or allegation, and WhooshPosh will have the right
to participate in the defense of any such claim at its expense.
18. Limitations on Liability.
1. NO SPECIAL DAMAGES. IN NO EVENT WILL WHOOSHPOSH BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT
(INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE SITES, SOFTWARE,
TECHNOLOGY, SERVICES (OR ANY WHOOSHPOSH CONTENT PROVIDED THROUGH THE SITES OR SERVICES), EVEN IF YOU HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS,
BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.2. CUMULATIVE LIABILITY. WHOOSHPOSH’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES
PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO WHOOSHPOSH
HEREUNDER IN THE ONE MONTH PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID,
US$10). YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT
WHOOSHPOSH WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE
LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, WHOOSHPOSH’S LIABILITY IS LIMITED TO
THE MAXIMUM EXTENT PERMITTED BY LAW.3. SPECIAL LIMITATIONS. FOR THE PURPOSE OF CLARITY, WHOOSHPOSH WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO
INDEMNIFY YOU, FOR (I) SENSITIVE DATA SENT TO WHOOSHPOSH; (II) VIOLATION OF ANY LAW BY WHOOSHPOSH WHEN ACTING AT YOUR OR
ANY OEM USER’S (AS APPLICABLE) DIRECTION; OR (III) THE SENDING BY WHOOSHPOSH OF YOUR OR ANY OEM USER’S (AS APPLICABLE)
EMAILS, INCLUDING ANY CLAIMS AGAINST WHOOSHPOSH DUE TO YOUR OR ANY OEM USER’S (AS APPLICABLE) SENDING OR DATA COLLECTION
PRACTICES OR YOUR CONTENT.
19. Data Privacy.
1. General Obligations and Limitations. In respect of Your or the OEM Users’ (as applicable) use of the Site and
Services and in relation to any personally identifiable and other data and information You or any OEM User (as
applicable) provides to WhooshPosh through the Site and Services, You expressly consent to the use and disclosure of
that data and information. You are responsible for complying with all applicable data protection and privacy Laws in
respect of Your or any OEM User’s use of the Services and with regard to any personal data that You or any OEM User
provides to WhooshPosh through the Services. In particular, You must ensure You have properly informed and obtained all
necessary rights, authorizations or consents from any data subjects to whom the data relates, to enable WhooshPosh to
lawfully access their personal data under this Agreement and to process their personal data outside of their country of
residence. You acknowledge that security of information transmitted through the Internet can never be guaranteed.
WhooshPosh is not responsible for any interception or interruption of any communications through the Internet or for
changes to or loss of Your Content. WhooshPosh may process and store Your Content in the United States or any other
country in which WhooshPosh or its agents maintain facilities and, by using the Services, You consent to this processing
and storage of Your Content.2. EU Data Privacy. WhooshPosh cannot guarantee to provide adequate privacy protection for the transfer of personal data
originating from the EU and/or Switzerland (within the meaning of EU data protection laws). For the purposes of this
Agreement, the terms “personal data”, “processing” and “data subject” have the same meanings as those given to them in
EU General Data Protection Regulation 2016/679 (“GDPR“). If Your use of the Services requires WhooshPosh to process
personal data falling within the scope of GDPR, you should not attempt to use WhooshPosh Services.
20. Confidentiality.
1. Definitions. For purposes of this Agreement, “Confidential Information” means all nonpublic information disclosed or
made available under this Agreement by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) that
relates to the Technology, the provision or receipt of the Services, or the Disclosing Party’s technology, finances,
operations, customers or business; provided, however, “Confidential Information” does not include (i) any information
that is or becomes generally available to the public other than as a direct or indirect result of the disclosure of any
of such information by the Receiving Party or by any of the Receiving Party’s Representatives (as defined below); (ii)
any information that was in the Receiving Party’s possession prior to the time it was first made available to the
Receiving Party or any of the Receiving Party’s Representatives by or on behalf of the Disclosing Party or any of the
Disclosing Party’s Representatives, provided that the source of such information was not and is not known to the
Receiving Party to be bound by any contractual or other obligation of confidentiality to the Receiving Party or to any
other person with respect to any such information; (iii) any information that becomes available to the Receiving Party
on a non-confidential basis from a source other than the Disclosing Party or any of the Disclosing Party’s
Representatives, provided that such source is not known to the Receiving Party to be bound by any contractual or other
obligation of confidentiality to the Disclosing Party or to any other person with respect to any of such information; or
(iv) any information that is independently developed by the Receiving Party or any of the Receiving Party’s
Representatives without the use of or reference to any of the Disclosing Party’s Confidential Information. For purposes
of this Section, a party’s “Representatives” will be deemed to include each person or entity, as applicable, that is or
becomes (A) a subsidiary or other affiliate of such party, (B) an officer, director, employee, partner, attorney,
advisor, accountant, agent or representative of such Party or of any of such Party’s subsidiaries or other affiliates,
and (C) an OEM User. For the avoidance of doubt, (1) the Services, Technology, and WhooshPosh Content are the
Confidential Information of WhooshPosh, (2) Service Data will not be Your Confidential Information.2. Confidentiality Obligations. The Receiving Party agrees to protect the Disclosing Party’s Confidential Information
with the degree of care the Receiving Party uses to protect its own confidential information of like nature, but in no
case less than reasonable care. The Receiving Party agrees that, except as expressly directed by the Disclosing Party,
it will not at any time during or after the Term: (i) disclose any Confidential Information to any third party (other
than the Receiving Party’s Representatives); (ii) permit any third party (other than the Receiving Party’s
Representatives) to examine and/or make copies of any reports, documents or electronic data containing Confidential
Information; or (iii) use any of the Confidential Information for any reason other than for the purposes of this
Agreement. The Receiving Party may disclose Confidential Information to its Representatives having a need to receive the
Confidential Information in the performance of their duties under this Agreement; provided, however, that such
Representatives are informed of the confidentiality obligations hereunder and the Receiving Party is responsible for
such Representatives’ compliance therewith. If the Receiving Party is required to disclose the Disclosing Party’s
Confidential Information pursuant to any Law, order, subpoena or document discovery request, it will furnish written
notice of such disclosure to the Disclosing Party so long as such notice is not prohibited by Law. When permitted, the
Receiving Party will provide notice to the Disclosing Party of such disclosure as soon as practicable so that the
Disclosing Party has an opportunity to seek a protective order or take other efforts to modify or restrict the
disclosure through legal means. The Receiving Party will reasonably cooperate in such efforts at the Disclosing Party’s
reasonable expense. Each party has the discretion to accept service of any subpoena or other document request without a
requirement for such party seeking such disclosure to comply with applicable rules of service. Each party acknowledges
that its breach of this Section may cause irreparable damage to the other party and hereby agrees that the other party
will be entitled to seek injunctive relief under this Section, as well as such further relief as may be granted by a
court of competent jurisdiction. In the event of any conflict between the Privacy Policies and the provisions of this
Section, the provisions of this Section shall control.
21. Claims of Infringement. Just as WhooshPosh requires users of the Site to respect the IPR of WhooshPosh, its
affiliates, and other third parties, WhooshPosh respects the IPR of Users of the Site and other third parties.
22. Linked Sites. The Site and communications sent through the Services may contain links to third-party sites that are
not under the control of WhooshPosh, and WhooshPosh is not responsible for any content on any linked site. If You access
a third-party site from the Site or from a communication sent through the Services, then You do so at Your own risk.
WhooshPosh provides links only as a convenience, and the inclusion of the link does not imply that WhooshPosh endorses
or accepts any responsibility for the content on those third-party sites. WhooshPosh welcomes links to the Site. You may
establish a link to this Site, provided that the link does not state or imply any sponsorship or endorsement of Your
site by WhooshPosh or any group or individual affiliated with WhooshPosh. You will not (a) use on Your site any
WhooshPosh Content or IPR appearing on the Site in establishing the link; or (b) frame or otherwise incorporate into
another site the WhooshPosh Content IPR appearing on the Site without prior written consent.
23. Disputes. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or
claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect,
interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to
arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the
procedures set forth in this Section 24. If any Dispute cannot be resolved through negotiations between the parties
within five days of notice from one party to the other of the Dispute, such Dispute will be finally settled through
binding arbitration under the arbitration of the International Chamber of Commerce (“ICC”) then in effect (the “Rules”).
Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The
arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties
cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this
Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The
arbitration will be conducted exclusively in the English language at a site specified by WhooshPosh. The award of the
arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or
plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by
the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any
court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the
award may be charged against the party that resists its enforcement.
24. Governing Law. The interpretation of the rights and obligations of the parties under this Agreement, including, to
the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects
exclusively by the laws of the State of Colorado, U.S.A., as such laws apply to contracts between Colorado residents
performed entirely within Colorado. Each party agrees that it will only bring any action or proceeding arising from or
relating to this Agreement in a federal court in the District of Colorado, U.S.A., or in state court in Denver,
Colorado, U.S.A., and each party irrevocably submits to the personal jurisdiction and venue of any such court in any
such action or proceeding or in any action or proceeding brought in such courts.
25. General. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a
writing signed by both parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce
any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision
on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to
the extent necessary to comply with the Law, replaced by a provision that most closely approximates the original intent
and economic effect of the original to the extent consistent with the Law, and the remaining provisions will remain in
full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled
to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither
this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part
and including by sale, merger or operation of law) without the prior written approval of WhooshPosh. Any assignment in
violation of the foregoing will be null and void. WhooshPosh may assign this Agreement to any party that assumes
WhooshPosh’s obligations hereunder. This Agreement does not confer any benefits on any third party unless it expressly
states that it does. The parties hereto are independent parties, not agents, employees or employers of the other or
joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of
the other. This Agreement is the complete and exclusive statement of the agreement between the parties with respect to
the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written,
and any other communications between the parties in relation to the subject matter of this Agreement. If You (or any of
Your customers) is an agency, department, or other entity, the use, duplication, reproduction, release, modification,
disclosure, or transfer of the Service, or any related documentation of any kind, including technical data, software,
and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided
in this Agreement are conferred. The Service was developed fully at private expense. WhooshPosh may reference You as a
user of the Services and use Your name and logo, as applicable, in listings of users of the Services appearing on the
WhooshPosh web site and for other marketing and promotional purposes relating to the Services.
26. OEM Terms and Conditions. This Section 27 sets forth the terms and conditions upon which You will make the Service
available to OEM Users as an integrated part of the OEM Service. The terms set forth in this Section 27 shall be in
addition to, and not in lieu of, the terms set forth elsewhere in this Agreement.
1. Integration and Use of the WhooshPosh Interface. WhooshPosh will provide You with the right to integrate the Service
into the OEM Service through one or more interfaces for the Service designated by WhooshPosh during the Term (each, a
“WhooshPosh Interface”) and offer the Service to OEM Users as an integrated part of the OEM Service. You will access the
Service only through the WhooshPosh Interfaces designated by WhooshPosh, for purposes of integrating the Service into
the OEM Service.2. OEM Account. You will be provided with an administrative account to manage access to and use of the Service (the “OEM
Account”). The OEM Account may be accessed and used only by You for purposes of (i) establishing and administering OEM
User access to the Services and (ii) utilizing the Service to send email messages to OEM Users in connection with Your
business. You will be solely responsible for all use of the OEM Account. You will ensure the security and
confidentiality of all usernames and passwords associated with the OEM Account and will notify WhooshPosh immediately if
any such information is lost, stolen or otherwise compromised. You will be fully responsible for all liabilities and
damages incurred through use of the OEM Account (whether lawful or unlawful). Any transactions completed through any OEM
Account will be deemed to have been completed by You. In no event will WhooshPosh be liable for the foregoing
obligations or the failure by You to fulfill such obligations.3. Use of the Service by OEM Users. Prior to allowing any OEM User to access or use any OEM Service, including any
portion of the Service, You will require that the OEM User become legally bound by an agreement covering the use of the
OEM Service with You (an “OEM User Agreement”). You will be responsible for preparing the OEM User Agreement. The OEM
User Agreement will include terms consistent with Your rights and obligations under this Agreement and at least as
protective of the Service and the interests of WhooshPosh as those set forth Exhibit A hereto, but in no case less
protective of the Service and the interests of WhooshPosh than of the OEM Service and Your interests in the OEM User
Agreement. Upon request by WhooshPosh, You will provide WhooshPosh with a copy of the OEM User Agreement (including any
prior versions thereof) and verify that each OEM User has agreed to be legally bound by the OEM User Agreement. You
assume all responsibility and liability for the actions of all OEM Users, including all use of or access to the Service
by each OEM User or by You on behalf of any OEM User and will be responsible for each OEM User’s compliance or failure
to comply with the OEM User Agreement. You will promptly notify WhooshPosh upon becoming aware of any breach of any OEM
User Agreement and will enforce the terms of each OEM User Agreement against each OEM User. If You fail to enforce the
OEM User Agreement against any OEM User, upon the request of WhooshPosh, You will provide WhooshPosh with such authority
and such information regarding such OEM User as is required for WhooshPosh to enforce the OEM User Agreement directly
against that OEM User.