Self Hosted Terms & Conditions

1. Each  party (the  “Receiving  Party”)  understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was disclosed in tangible or written form and is conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure.
2. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Services   and   underlying software, algorithms   and information embodied therein which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or  becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed. In the performance of the Services, Service Provider is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Services’ performance, provided that the  user data is anonymized and no personally identifying information of the Customer or its users is revealed.

1. Customer will pay Service Provider the Fees for the Services as listed on the applicable Order Form.  If Customer exceeds the annual limits set forth in the Order Form, Service Provider will contact Customer to discuss Customer upgrading its plan. Customer will have thirty (30) days to upgrade its plan or negotiate a new plan with Service Provider, or Service Provider reserves the right to immediately terminate this Agreement. Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Service Term or then current Renewal Term (as defined below, upon thirty (30) days prior notice to Customer (which may be sent by email).
2. If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Service Provider’s customer support department. Service Provider shall respond to Customer within three (3) business days after receiving such inquires.
3. Service Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Service Provider thirty (30) days after the mailing date of the invoice, or the Services may be terminated.  Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is  lower, plus all  expenses  of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Service Provider’s net income.

1. Subject to earlier termination as provided below, this Agreement is for the initial Service Term as specified in the applicable Order Form (the “Initial Service Term”), and shall be automatically renewed for additional periods (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then current term.
2. In addition to any other remedies it may have, Service Provider may also terminate this Agreement upon ten (10) days notice if Customer materially breaches any of the terms or conditions of this Agreement including, in the case of Customer, the file limits set forth in the Order Form, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of notice.  If this Agreement is terminated as a result of a material breach by Customer during the Initial Service Term, Customer will pay in full all remaining Fees payable through the remainder of the Initial Service Term. If this Agreement is   terminated  as a  result of a material breach by Customer during a Renewal Term, the Customer will pay in full for the Services up to and including the last day on which the Services are provided.
3. Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under any order form.
4. The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”) shall survive termination of this Agreement.

1. Service Provider agrees, at its own expense, to indemnify, defend Customer and hold Customer harmless   against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with this Agreement infringes any U.S. copyright, trademark or patent, provided that Customer (i) promptly notifies Service Provider in writing of any such suit, claim or proceeding, (ii) allows Service Provider, at Service Provider’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Service Provider all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Service Provider’s written consent.  The foregoing obligations do not apply with respect to the Services or portions or components thereof (x) not supplied by Service  Provider, (y) made in whole  or in part in accordance to Customer specifications, (z) combined with   other products, processes or materials where the alleged infringement would not have occurred without such combination.  This section states Service Provider’s entire liability and Customer’s exclusive remedy for   infringement or misappropriation of intellectual property of a third party.
2. Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Service Provider against   any damages, losses, liabilities, settlements and expenses  (including  without   limitation  costs  and  attorneys’ fees)  in connection with any demand, claim, action, suit or proceeding that arises from an alleged violation of Sections 2.1 to 2.3, or otherwise from Customer’s use of Services excluded from Service Provider’s aforementioned indemnity obligations in the second to last sentence of Section 6.1, above.

SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE  ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED  “AS IS”  AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR  A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

NOTWITHSTANDING ANYTHING TO THE   CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER   PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT   OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR   OTHER   LEGAL   OR   EQUITABLE   THEORY:   (A) FOR   ERROR   OR INTERRUPTION   OF   USE   OR   FOR   LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS,   SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS;   (B) FOR   ANY   INDIRECT, EXEMPLARY,  INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES;   (C) FOR   ANY   MATTER BEYOND   A PARTY’S REASONABLE CONTROL;  OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS   ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY,   EVEN IF THE PARTY HAS BEEN ADVISED OF THE  POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES   OR   DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO   CIRCUMSTANCES BEYOND THE  REASONABLE   CONTROL OF SERVICE PROVIDER, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY SERVICE PROVIDER, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN THIS AGREEMENT.

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This   Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent.  Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this  Agreement, and that all waivers and modifications must  be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind or attempt   to   bind   Service   Provider in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have   been   duly   given   when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  The parties  agree  that  any  material breach  of   Section  2  or  3 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to   prevent an initial or continuing breach of Section 2   or   3   in additional to any other relief to which the owner of such Proprietary Information may be entitled. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to   this   Agreement   must   be   brought   in   a federal   court   in   the   Northern   District   of   California, or in a   state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.