Prompt.io General Terms and Conditions

EFFECTIVE AS OF JANUARY 6, 2023

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY and make sure you understand each provision as they contain important information about the services provided to you and Prompt.io’s use of certain information.  These Terms and Conditions require the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.  These Terms and Conditions limit Prompt.io’s liability and the remedies available to you in the event of a dispute.     

These terms and conditions (“Agreement” or “Terms”) apply to you (“you”, “your” or “Subscriber”) and your access to and use of services from Prompt.io Inc. (“us”, “our” or “Prompt.io”), whether purchased directly through Prompt.io or via a Reseller.  By entering into an Order Form (or Reseller Agreement) and using the Prompt.io Services, you accept and are bound by these Terms . If you are using the Prompt.io Services on behalf of an organization, you are agreeing to these Terms for that organization and representing to Prompt.io that you have the authority to bind that organization to these Terms (and, in which case, the terms “you” and “your” or “Subscriber” will refer to that organization).

IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE PROMPT.IO SERVICES.

1. DEFINITIONS

(a)   “Applicable Laws” means any law, regulation, rule, policy, or order, of any government authority applicable to Subscriber, its business or users, or the subject matter of this Agreement, including but not limited to the United States (and, if applicable, foreign) statutes and any corresponding regulations concerning the Telephone Consumer Protection Act (“TCPA”), Telemarketing Sales Rule (“TSR”), the Telephone Consumer Fraud & Abuse Prevention Act, the CAN-SPAM Act, the Children’s Online Privacy Protection Act,  the California Consumer Privacy Act of 2018 (“CCPA”), Canada’s Anti-Spam Legislation and the European Economic Area’s (“EEA”) General Data Protection Regulation (“GDPR”), and all other applicable laws concerning calling, texting, and marketing to individuals and processing their information.

(b) “Application” means the websites or software applications developed by Subscriber or on Subscriber’s behalf that can be used with the Prompt.io Services via the APIs.

(c)  “Authorized User” means Subscriber’s employees or agents, including Reseller where applicable, that Subscriber designates as authorized to use the Prompt.io Services solely for the benefit of the Subscriber in accordance with this Agreement

(d)   “Inappropriate Content” means Subscriber Data that (i) violates Applicable Law, or (ii) violates any applicable self-regulatory codes or guidance including those of the Cellular Telecommunications Industry Association (CTIA).

(e)  “Order Form” means any web form, statement of work, order form, or service-specific document (including an agreement between Reseller and Prompt.io) that sets forth terms related to Subscriber’s access to the Prompt.io Services.    

(f)   “Prompt.io Services” means the Prompt.io™ cloud-based messaging platforms, which include some or all of the following: PromptMessaging (P2P and full suite), automation via APIs, PromptExchanges and PromptExchange builder for creating custom applications, real-time data sync via APIs, agent tools, analytics, Prompt.io’s proprietary application programming interfaces (including any modifications, enhancements and derivatives thereof) (“APIs”) and any technical data, specifications, documentation and other materials (including user manuals, on-line help files, etc.) (“API Materials”). “Prompt.io Services” includes by reference the Third Party APIs and Services that Subscriber has been granted permission to access.

(g) “Reseller” means any entity other than Prompt.io that sold you any Prompt.io Services consistent with and subject to a license and authority from Prompt.io. 

(h) "Reseller Agreement" means the separate agreement between you and Reseller regarding the Prompt.io Services, pursuant to which you agree to be bound to these Terms in using the Services. The Reseller Agreement is independent of and outside the scope of this Agreement.

(i)  “Subscriber Data” means the data made available by you to Prompt.io including, but not limited to, content of communications.

(j)  “TCPA” means the Telephone Consumer Protection Act of 1991, as amended (47 C.F.R. §227), and its implementing regulations promulgated and administered by the Federal Communications Commission.

(k)  “TSR” the Telemarketing Sales Rule contained in 16 Code of Federal Regulations Part 310 implemented and administered by the Federal Trade Commission. 

(l)  “Third Party APIs and Services” means any application programming interfaces and services provided by third parties to Prompt.io and used by Prompt.io in connection with the provision of the Prompt.io Services to you.

(m) “Third Party Service Provider” means a third party licensor of Prompt.io who operates any of the Third Party APIs and Services. 

2. USE OF PROMPT.IO SERVICES

(a)   Use of Prompt.io Services. For the duration of the Term, Prompt.io grants you a limited, non-exclusive, non-sublicensable and non-transferable (except as permitted in Section 13(e)) license to use and permit the Authorized Users to use the Prompt.io Services as set forth in the Order Form in connection with your business operations, subject to these Terms.  You will not have any rights to the Prompt.io Services except as expressly granted in this Agreement. Your use of the APIs may only be in accordance with the API Materials and solely for the purposes of: (i) developing, testing and deploying the Application; and (ii) providing Subscriber Data to Prompt.io for use by Prompt.io in accordance with these Terms.  Subscriber agrees that the form and nature of the APIs may change without prior written notice and that future versions of the APIs may be incompatible with the Application developed using a previous version of the APIs.

(b)  Use Restrictions.  You agree not to (and to not permit any of your directors, officers, employees, agents or contractors to) (i) license, sublicense, sell, resell, transfer, assign, distribute, lease, loan or otherwise commercially exploit the Prompt.io Services; (ii) modify, translate or make derivative works based upon the Prompt.io Services; (iii) copy, frame or mirror any part or content of the Prompt.io Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes; (iv) cause harm to the operation of the Prompt.io Services; (v) reverse engineer, decompile or disassemble any or all of Prompt.io Services; (vi) use the Prompt.io Services for any purpose other than to support your business operations; (vii) attempt to use the Prompt.io Services to access or allow access to emergency services; (viii) permit use of, or access to, the Prompt.io Services to anyone that does not qualify as an Authorized User;  (ix) attempt to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Prompt.io Services, (x) make or permit any use of the Prompt.io Services in any way in violation of the TCPA or the TSR or other Applicable Laws.   

(c) Authorized and Unauthorized Use. You will use the Prompt.io Services in accordance with the Prompt.io Acceptable Use Policy ((https://www.prompt.io/acceptable-use) (which is incorporated herein by reference), will use reasonable efforts to prevent and promptly terminate any unauthorized use of the Prompt.io Services, immediately notify Prompt.io of any unauthorized or potential unauthorized use that comes to your attention and cooperate and assist with any actions taken by Prompt.io to prevent or terminate unauthorized use. Prompt.io is not responsible for the conduct of any end users of the Prompt.io Services (whether or not you authorized them) or the content of any communications between you and any end users. You will immediately report to Prompt.io any violations of these Terms that arise out of the actions of any end user.

(d) Subscriber Data. Subject to these Terms, you hereby grant Prompt.io, the Third Party Services Providers and each of their affiliates and contractors a non-exclusive, worldwide right and license to use the Subscriber Data (i) in connection with providing the Prompt.io Services; and (ii) to understand and analyze the usage trends and preferences of users to improve the Prompt.io Services, and to develop new products, services, features, and functionality.  You acknowledge and agree that Prompt.io may access or disclose Subscriber Data, including content of communications, if: (a) Prompt.io believes that disclosure is reasonably necessary to comply with any Applicable Law, legal process or government request, (b) to enforce our agreements and policies; (c) to protect the security or integrity of the Prompt.io Services; (d) to protect Prompt.io or other customers, or the public, from harm or illegal activities; (e) to respond to an emergency which Prompt.io believes in good faith requires Prompt.io to disclose data to assist in preventing a death or serious bodily injury; or (f) to comply with the GDPR, the CCPA or other applicable data privacy legislation. As between you and Prompt.io, you are solely and exclusively responsible for the content of communications exchanged using the Prompt.io Services among Subscriber, Authorized Users and any third parties with which you or they communicate, including the content of all messages sent to the foregoing Users or third parties, the selection of the recipients of those messages, the procurement from the recipient of all applicable required prior consents  to send such messages (which consents must, among other things, satisfy all applicable requirements of the TCPA and TSR), and the manner, time and means of delivery of such messages.

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3. FEES AND PAYMENT

(a) Orders via Reseller. If you order any of the Prompt.io Services from a Reseller: (a) Section 12 (Reseller Orders) of this Agreement will apply in respect of such Services; and (b) the remaining terms of this Section 3 (Fees and Payment) will not apply in respect of such Services.

(b) Fees.  The fees applicable to Subscriber’s access to, and use of, the Prompt.io Services will be set forth in one or more Order Forms. 

(c) Taxes.  Other than net income taxes imposed on Prompt.io, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from Subscriber’s purchase of the Prompt.io Services subject to this Agreement. Subscriber will pay any additional taxes as are necessary to ensure that the net amounts received by Prompt.io after all such taxes are paid are equal to the amounts that Prompt.io would have been entitled to in accordance with this Agreement as if the taxes did not exist.  The fees payable to Prompt.io under this Agreement do not include any taxes or other amounts assessed by or imposed by any governmental authority. 

(d)   Invoicing and Payment.  Subscriber will pay Prompt.io the fees set forth in the Order Form(s) and any other amounts owing under this Agreement, plus any applicable sales, use, excise, value added or other taxes. All amounts payable will be denominated in U.S. dollars and Subscriber will make all payments in U.S. dollars.  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.  Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Prompt.io to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. 

4. WARRANTIES

(a)   “As Is” Services.  THE PROMPT.IO SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.  

(b)  Disclaimer. PROMPT.IO AND THE THIRD PARTY SERVICE PROVIDERS MAKE NO 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 IN CONNECTION WITH THE PROMPT.IO SERVICES. PROMPT.IO AND THE THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. PROMPT.IO DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PROMPT.IO SERVICES.  PROMPT.IO AND THE THIRD PARTY SERVICE PROVIDERS DO NOT WARRANT THAT THE PROMPT.IO SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE PROMPT.IO SERVICES WILL BE SECURE OR UNINTERRUPTED.  PROMPT.IO DOES NOT WARRANT AND DISCLAIMS ANY WARRANTY RELATED TO DELIVERABILITY OF MESSAGES. PROMPT.IO AND THE THIRD PARTY SERVICE PROVIDERS DO NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE PROMPT.IO SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE PROMPT.IO SERVICES WILL ALWAYS BE AVAILABLE. PROMPT.IO EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE PROMPT.IO SERVICES. YOU AND YOUR AUTHORIZED USERS ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR OBTAINING ANY PRIOR CONSENT REQUIRED BY THE TCPA OR TSR IN CONNECTION WITH THE PLANNED OR ACTUAL USE OF THE SERVICES BY YOU AND YOUR AUTHORIZED USERS.

(c) TCPA and TSR - You expressly represent and warrant with respect to your and all Authorized Users use of the Prompt.io Services and compliance with the TCPA and TSR that:

(a) You and all Authorized Users will use the Prompt.io Services in full compliance with the terms, conditions and requirements of the TCPA and, where applicable, the TSR, including the requirements to obtain prior express consent or, in the case of any marketing or promotional messages, prior express written consent, before sending any messages to wireless phones using automated dialing or texting technologies and/or artificial or prerecorded voice messages.

(b) You and all Authorized Users are familiar with the applicable TCPA and TSR regulations and standards, particularly relating to obtaining any required consent and that, if applicable, each and every prior express written consent obtained will comply in all respects the requirements related to the display, form and content of the consent process required under the TCPA and TSR or any other laws (whether state or federal) related to the granting of consent (or such analogous acts). In the event that any contacted party opts out of receipt of further messages that require consent, You will obtain renewed consent before recontacting that person.

(c) You and all Authorized Users will ensure that an internal Do Not Call (“DNC”) policy is implemented in accordance with TCPA implementing regulations prior to using the Prompt.io Services. You and all Authorized Users will ensure that residential numbers on the national DNC are not contacted without required express consent, a business relationship or an inquiry as permitted under Applicable Law.

5. INTELLECTUAL PROPERTY INFRINGEMENT

(a) Defense of Infringement Claims.  Prompt.io will, at its expense, either defend Subscriber from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of the Prompt.io Services infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the Term of this Agreement if: (a) Subscriber gives Prompt.io prompt written notice of the Claim; (b) Subscriber grants Prompt.io full and complete control over the defense and settlement of the Claim; (c) Subscriber provides assistance in connection with the defense and settlement of the Claim as Prompt.io may reasonably request; and (d) Subscriber complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Prompt.io Services or APIs).  Subscriber will not defend or settle any Claim without Prompt.io’s prior written consent.  Subscriber will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Prompt.io will have sole control over the defense and settlement of the Claim.

(b) Indemnification of Infringement Claims.  Prompt.io will indemnify Subscriber from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Subscriber in any Claim under Section 5(a); (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Subscriber in connection with the defense of a Claim under Section 5(a) (other than attorneys’ fees and costs incurred without Prompt.io’s consent after Prompt.io has accepted defense of the Claim); and (c) all amounts that Prompt.io agrees to pay to any third party to settle any Claim under Section 5(a).

(c) Exclusions from Obligations.  Prompt.io will have no obligation under this Section 5 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Prompt.io Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) the Prompt.io Services are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Prompt.io Services by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; (d) Subscriber’s failure to use the Prompt.io Services in accordance with instructions provided by Prompt.io, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Prompt.io Services not made or authorized in writing by Prompt.io where such infringement or misappropriation would not have occurred absent such modification.

(d) Indemnity Remedy. Without limiting the foregoing, if a claim that would be subject to Section 5(a) is commenced, or Prompt.io believes, in its sole discretion, is likely to be commenced, Prompt.io will, at its sole option and expense, either: (a) procure for Subscriber the right to use the infringing Prompt.io Services as provided herein; (b) replace the infringing Prompt.io Services with non-infringing, substantially equivalent products in both performance and functionality; (c) suitably modify the infringing Prompt.io Services so that it is not infringing and of equivalent performance and functionality; or (d) in the event (a), (b), and (c) are not, in Prompt.io’s sole judgment, achievable on commercially reasonable terms or in a commercially reasonable manner, terminate the provision of the Prompt.io Services and Subscriber shall not have any further liability for unbilled fees related to the infringing Prompt.io Services. 

(e) Limited Remedy.  This Section 5 states Prompt.io’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Prompt.io Services.

6.  SUBSCRIBER INDEMNIFICATION 

(a) Defense.  Subscriber will defend, and in accordance with Section (b) below, indemnify Prompt.io, the Third Party Service Providers and each of their affiliates, directors, officers, employees and agents (collectively the “Indemnified Parties”) from any actual or threatened Claim arising out of or based upon (a) Subscriber’s or Authorized Users’ or any other end user’s use of the Prompt.io Services allegedly breached any of the provisions of this Agreement or the limitations or requirements of any applicable Order Form; and/or (b) Subscriber’s or Authorized Users’ or any other end user’s use of the Prompt.io Services allegedly violated Applicable Laws, including specifically your or any Authorized Users’ violation of or failure to comply with the requirements of Sections 2.(b), 2.(c), 4, and 10 herein, including the TCPA or the TSR (including, without limitation any claim that, as a result of any Prompt.io provision of the Prompt.io Services or your use thereof, any Indemnified Party in any way violated the TCPA, TSR or any related law, rule or regulation) or other Applicable Laws concerning calling, texting, and marketing to individuals and processing their information; and/or (c) any claim that the Application, or any part thereof, infringes any third party rights, including intellectual property rights. Prompt.io will not defend or settle any Claim without Subscriber’s prior written consent. Prompt.io will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the Claim.

(b) Indemnification.  Subscriber will indemnify the Indemnified Parties from and pay (a) all damages, costs, and attorneys’ fees finally awarded against the Indemnified Parties in any Claim under Section 6(a); (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by the Indemnified Parties in connection with the defense of a Claim under Section 6(a) (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the Claim); and, (c)  all amounts that Subscriber agrees to pay to any third party to settle any Claim under Section 6(a). Subscriber agrees to indemnify the Indemnified Parties from and against any claims arising out of responding to compulsory processes (e.g., subpoenas, interrogatories, depositions, and other forms of discovery or legal process) seeking information about Subscriber, Subscriber Data or Subscriber’s use of the Prompt.io Services, whether served by the Subscriber, a government agent or employee, or a third-party.   

7. LIMITATION OF LIABILITY

IN NO EVENT WILL PROMPT.IO OR THE INDEMNIFIED PARTIES BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF PROMPT.IO IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. UNDER NO CIRCUMSTANCES SHALL PROMPT.IO’S OR THE INDEMNIFIED PARTIES’ TOTAL LIABILITY TO SUBSCRIBER ARISING OUT OF OR RELATED TO THIS AGREEMENT AND ALL ORDER FORMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS OR CLAIMS REGARDING A FAILURE TO DELIVER MESSAGES), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF $500 (FIVE HUNDRED DOLLARS) OR THE AMOUNT PAID BY SUBSCRIBER TO PROMPT.IO UNDER SUCH ORDER FORM FOR THE PROMPT.IO SERVICES DURING THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES.

8. CONFIDENTIAL INFORMATION

(a)   Confidential Information.  “Confidential Information” shall mean all confidential information of a party, whether written or oral, and whether in paper or electronic format, disclosed to a receiving party that is designated in writing or identified as confidential at the time of disclosure or that should be reasonably known by the receiving party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure.

(b)  Non-Disclosure Obligation.  During the Term of this Agreement and for a period of three (3) years after the date of termination or expiration of the Agreement, each party shall use at least the same degree of care (and shall in any event use no less than a reasonable degree of care) to prevent the disclosure of the other party’s Confidential Information as it uses to prevent the disclosure of its own Confidential Information, and shall not: (a) disclose Confidential Information to any third party; (b) use Confidential Information except as expressly permitted under the terms of the Agreement between the parties or otherwise previously authorized in writing by the disclosing party; and/or (c) permit any disclosure, unauthorized duplication, reverse engineering, disassembly, decompiling, misuse or removal of such Confidential Information.  The receiving party will promptly notify the disclosing party of any misuse or misappropriation of Confidential Information that comes to the receiving party’s attention.  Notwithstanding the foregoing, the receiving party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority; however, the receiving party will give the disclosing party prompt notice of any such legal or governmental demand (unless otherwise limited by law or court’s order) and reasonably cooperate with the disclosing party in any effort to seek a protective order or otherwise to contest such required disclosure, at the disclosing party’s expense.

(c) Prompt.io’s Provision of Services. Notwithstanding the foregoing, Prompt.io’s non-disclosure obligations hereunder do not apply to disclosure to Reseller, Prompt.io’s  providers of Third Party APIs and Services, or Prompt.io’s affiliates and independent contractors carrying out the Prompt.io Services, provided that such disclosure is reasonably necessary in order to carry out the Prompt.io Services and the recipient of Confidential Information has agreed with Prompt.io in writing to be bound by non-disclosure obligations substantially similar to those contained in this Agreement.

9. TERM AND TERMINATION

(a)   Term.  This Agreement continues for the duration set forth in any outstanding Order Form, unless terminated earlier in accordance with this Agreement (“Term”).

(b)  Termination for Material Breach.  You or Prompt.io may terminate the Agreement for material breach by written notice to the other, effective in 10 days unless the other party first cures such breach.

(c)   Suspension or Termination by Prompt.io.  Prompt.io may immediately suspend or terminate Subscriber’s access to the Prompt.io Services if (i) Prompt.io has a good faith belief that Subscriber or anyone with access to Subscriber’s account (A) is using or is reasonably believed to be using the Prompt.io Services in violation of Applicable Laws or Prompt.io’s then-current Acceptable Use Policy (https://www.prompt.io/acceptable-use), including any use that would or could constitute a violation of the TCPA or TSR or other Applicable Laws concerning calling, texting, and marketing to individuals and processing their information; or (B) is compromising the security or operability of the Prompt.io Services; or (ii) the payment terms set forth in the Order Form are not met, including failure of Subscriber (or Reseller, where applicable) to timely pay any fees owed Prompt.io in connection with Subscriber’s account. Resumption of Subscriber’s account following suspension or termination by Prompt.io is subject to the sole and exclusive discretion of Prompt.io. Subscriber’s resumption of access to the Prompt.io Services following a suspension by Prompt.io for the reasons cited in this section will not extend the then-current Term, nor result in an extension of the period covered by any prepaid fees. 

(d)  Effect of Termination.  The following provisions will survive termination of the Agreement:  Sections 3 through 13. 

10. COMPLIANCE  

(a)   Subscriber’s Compliance.  You and your Authorized Users will use the Prompt.io Services in compliance with all Applicable Laws, including the TCPA (and its applicable consent requirements), the TSR, all other applicable laws concerning calling, texting, and marketing to individuals and processing their information, and Prompt.io’s Acceptable Use Policy (which may be updated from time to time).  Prompt.io shall have the right not to accept, transmit, or deliver any Subscriber Data that Prompt.io reasonably believes, subject to its own reasonable discretion, violates Applicable Law or contains Inappropriate Content or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including without limitation any law enforcement, proceeding, process or inquiry.

(b)   Privacy Compliance.  Your use of the Prompt.io Services is subject to Prompt.io’s Privacy Policy (https://www.prompt.io/privacy-policy), which may be updated from time to time.  If your use of the Prompt.io Services is subject to Applicable Laws requiring certain additional data privacy provisions (e.g., GDPR or CCPA), you will enter into Prompt.io’s standard Data Protection Addendum or such other data protection addendums with Prompt.io as Prompt.io may reasonably deem necessary and appropriate in order to continue providing the Prompt.io Services to you. 

(c)  Export Controls.  The Prompt.io Services may be subject to applicable U.S. export control laws and economic sanctions regulations.  You agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to the Prompt.io Services and, to the extent consistent with the terms of this Agreement, to obtain any necessary license or other authorization to export, reexport, or transfer of the Prompt.io Services.  These laws include restrictions on destinations, end users, and end use.  Without limitation, you may not transfer any Prompt.io Services without U.S. government authorization to any entity on a U.S. government exclusion list. Subscriber represents that it is not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and Subscriber further warrants that it will immediately discontinue use of the Prompt.io Services if it becomes placed on any such list or under the control of or an agent for any entity placed on such a list.

(d) Third Party APIs and Services.  To the extent Subscriber, through use of the Prompt.io Services, obtains access to, or to the functionality of, any Third Party APIs and Services, Subscriber agrees and acknowledges that title to and ownership of such Third Party APIs and Services remains with the Third Party Service Providers and each Third Party Service Provider is made an express third party beneficiary under these Terms.

11.  ARBITRATION, CLASS WAIVER & JURISDICTION

PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.

(a)   Governing Law and Venue.  This Agreement shall in all respects be interpreted, construed and enforced in accordance with the laws of the United States of America and of the State of Washington without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.  Unless Subscriber and Prompt.io agree otherwise in writing, any proceeding under or concerning this Agreement shall take place in King County, Washington.    

(b)  Mandatory, Bilateral Arbitration.  Any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration in King County in the State of Washington, and under the laws of the State of Washington. 

Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.  There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages), and must follow these Terms.

The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures.  The number of arbitrators shall be determined in accordance with those Rules.  In considering the facts and issues, in conducting the hearings, and in rendering a decision or award, the arbitrator is required to strictly apply the law of the State of Washington and failure to follow Washington law is grounds for vacating the decision or award.  This section shall not preclude Subscriber or Prompt.io from seeking provisional remedies in aid of arbitration from a court located in King County, Washington or injunctive relief necessary to enforce the Confidential Information provision of this Agreement.  Subscriber and Prompt.io shall equally divide the fees and costs of the arbitrator(s).  Subscriber and Prompt.io shall pay for its own costs and attorney’s fees, if any. However, the Subscriber and Prompt.io are entitled to seek recovery of costs and attorney’s fees to the same extent they would be entitled in court under controlling law. 

Any party that seeks to confirm, vacate or have the judgment entered on any arbitration award shall do so exclusively in a court in King County, Washington. Subscriber and Prompt.io hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in King County, Washington, for the purposes set forth above and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, or that such suit, action or proceeding is improper. 

(c)   Waiver of Jury Trial.  BY ENTERING INTO THIS AGREEMENT SUBSCRIBER AND PROMPT.IO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. 

(d)  Waiver of Class or Consolidated Actions.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE MEDIATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE SUBSCRIBER OR USER CANNOT BE MEDIATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

12.  RESELLER ORDERS

(a) Reseller Orders. If you order any Prompt.io Services from a Reseller, then this Section 12 (Reseller Orders) will apply and prevail over any conflicting term in the remainder of this Agreement.

(b) Payments. The fees for the Prompt.io Services will be set between Subscriber and Reseller, except that Prompt.io’s analytics tools may be used to determine Subscriber’s usage of the Prompt.io Services if applicable to fees. You will make payments of fees directly to Reseller under the Reseller Agreement. 

(c) Reseller as Administrator. Reseller may have access to your account. As between Prompt.io and you, you are solely responsible for: (a) any access by Reseller to your account and (b) defining in the Reseller Agreement any rights or obligations as between Reseller and you with respect to the Prompt.io Services. 

13.  OTHER TERMS

(a)   Independent Contractors. Subscriber and Prompt.io are independent contractors and will so represent themselves in all regards. The Agreement does not create any agency, partnership, or joint venture between Subscriber and Prompt.io. Neither Subscriber nor Prompt.io may bind the other in any way.

(b)  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: Prompt.io Inc., Attention:  COO at 14419 Greenwood Ave N., Ste A-373, Seattle, WA 98133 USA, or to: Subscriber, via the email or other user information provided in the Order Form or used when accessing the Prompt.io Services.  

(c)   Publicity.  Prompt.io may use Subscriber’s name and logo (in compliance with all guidelines, if any, communicated by Subscriber to Prompt.io) in promotional, advertising and marketing materials, including press releases, websites, social media, presentations and customer references. 

(d)  Use of Prompt.io Marks.  Subscriber recognizes Prompt.io’s exclusive right, title, and interest in and to all service marks, trademarks, and trade names used by Prompt.io and shall act in such a way as to preserve and protect Prompt.io’s interest in them.

(e)   Assignment.  Neither Subscriber nor Prompt.io shall assign or transfer its rights, duties, or obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Subscriber and Prompt.io may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.

(f)   Waiver.  The waiver by either Subscriber or Prompt.io 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, nor will the same be construed as a novation of this Agreement.

(g)  Severability.  If any part of this Agreement is held to be unenforceable by a court, arbitrator, or agency of competent jurisdiction, that part may be severed and the remaining provisions will remain in full force and effect.  If any material limitation or restriction on the use of the Prompt.io Services under this Agreement is found to be illegal, unenforceable, or invalid, Prompt.io may, in its sole discretion, immediately terminate Subscriber’s right to use the Prompt.io Services.

(h)  Feedback.  All recommendations, ideas, suggestions or feedback that Subscriber or Authorized Users provide to Prompt.io regarding the Prompt.io Services will be owned by Prompt.io and Subscriber hereby assigns these to Prompt.io.

(i) Subcontractors.  Prompt.io may use a subcontractor or other third party to perform its duties under this Agreement so long as Prompt.io remains responsible for all of its obligations under this Agreement.

(j) Force Majeure. Neither Subscriber nor Prompt.io 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 its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

(k) Carriers and Deliverability.  Subscriber acknowledges deliverability of messages cannot be guaranteed in light of prevailing carrier activity related to blocking, limiting, throttling, labeling, or rejecting calls or text message content.

(l) Entire Agreement.  Except as provided in these Terms and other documents incorporated herein by reference, these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written with respect to the subject matter hereof.  No oral or written information or advice given by Prompt.io, its agents or employees will create a warranty or in any way increase the scope of the warranties in these terms. The Agreement includes URL links to other terms which are incorporated by reference into the Agreement. If there is a conflict among the documents that make up the Agreement, then the documents will control in the following order: the applicable Order Form, the remainder of this Agreement, URL links to other terms and any other terms incorporated by reference into the Agreement.

(m)  Updates.  Prompt.io reserves the right to update these Terms at any time, effective upon posting an updated version at https://prompt.io/terms; however, Subscriber’s rights and obligations shall be as provided in the version of this Agreement last executed or agreed to by Subscriber. 

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