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Last modified: January 15th, 2019

Terms

Introduction

Thank you for using the DATADYNE MARKETING Services! These Terms of Service (the "Terms") and the associated order for Services (the “Order”, and together with these Terms, the “Agreement”) govern your access to and use of the DATADYNE MARKETING Services (which include the DATADYNE MARKETING website, the DATADYNE MARKETING hosted services, and the Software (as defined below), all together, the "Services"). Please read them carefully before using the Services.

By using the Services you are agreeing to the terms and conditions of the Agreement. If you are using the Services on behalf of an organization, you are agreeing to the Agreement on behalf of that organization and representing that you have the authority to bind that organization to the Agreement. In that case, "you" and "your" will refer to that organization. DATADYNE MARKETING and you are each a “Party” to the Agreement.

You may use the Services only in accordance with the Agreement. You may use the Services only if you have the legal power and capacity to form a contract with DATADYNE MARKETING. The Services will continue to evolve as we refine features and functionality, and we may modify the Services, in general or with respect to you, from time to time without prior notice. We may delete any content or data from the Services to meet our regulatory obligations or protect you, other DATADYNE MARKETING Customers, and/or the Services.

Your Data

In order to use our Services you must link at least one third party email account to your DATADYNE MARKETING account, however you may link no more email accounts than total number of your authorized users, defined herein as an employee, contractor, or agent of yours who is authorized to use the DATADYNE MARKETING Services and who has access to the DATADYNE MARKETING Services via a unique username and password under your account with DATADYNE MARKETING (“Your Authorized Users”). With your permission (which you are granting by using the Services), we will create and update versions of your address book and emails for you to access in DATADYNE MARKETING. You will also have the option to import and update versions of your calendar, social media contacts, call history and call recordings, and you can later choose to upload files to or provide comments through DATADYNE MARKETING. You retain full ownership of all of the address books, emails, calendars, social media contacts, call history, call recordings and files you upload or otherwise provide to DATADYNE MARKETING (“Your Data”). We do not claim any ownership over any of Your Data.

You are solely responsible for your conduct, the content of Your Data and your communications with others while using the Services. For example, it's your responsibility to ensure that you have all rights and permissions needed to comply with the Agreement and to avoid infringement or violation of any rights of others.

You acknowledge that DATADYNE MARKETING has no obligation to monitor any information on the Services and that we are not responsible for the accuracy, completeness, appropriateness, safety or legality of Your Data or any other information or content you may be able to access using the Services.

Nothing in the Agreement will restrict DATADYNE MARKETING from collecting, using and analyzing general information and data from its customers (including you) in an aggregated manner for purposes of improving and enhancing the quality and nature of Services, or to market or publish general information and statistics, provided that DATADYNE MARKETING does not specifically identify You or disclose publicly any personally identifiable information in the course of collecting, using, analyzing, marketing or publishing that information or data. Additional information about what we do with Your Data and how we collect and use other information relating to You and Your use of the Services is explained in our Privacy Policy.

Sharing Your Data, Third Party Products and Your Privacy

Subject to the limited exceptions specified in our Privacy Policy, until you choose otherwise, all of Your Data remains visible only to you. However, the Services do allow you to share Your Data with others. If you choose to share Your Data, we cannot be responsible for what those other users do with Your Data, so please carefully consider what you share and with whom you share it.

A Third Party Product is any third party product, application, service, software, network, system, directory, website, database and/or information obtained separately by you which links to the Services, or which you may connect to or enable in conjunction with the Services, including, without limitation, Third Party Products which may be integrated directly into the Services by you or at your direction. If you or your Authorized Users choose to share Your Data in any manner, including through a Third Party Product or integration you are solely responsible for what that third party may do with Your Data, and your relationship with that third party. Likewise, you are solely responsible for any of the effects a Third Party Product may have on Your Data, including deleting or corrupting Your Data. You acknowledge that DATADYNE MARKETING is not responsible for the disclosure of Your Data by you or your agents (including your Authorized Users) to any third parties or the effects of any Third Party Product on Your Data.

What we do with Your Data, and how we collect and use other information relating to you generally is explained in our Privacy Policy.

Your Responsibilities

Information and content accessible through the Services may be protected by intellectual property rights of others. Please do not copy, upload, download, or share any information or content unless you have the right to do so. You, not DATADYNE MARKETING, will be fully responsible and liable for what you copy, share, upload, download or otherwise use while using the Services. You must not upload spyware or any other malicious software to the Services, or use the Services to spam others.

You acknowledge that, as between you and DATADYNE MARKETING, DATADYNE MARKETING owns and retains all right, title and interest in the Intellectual Property Rights in the Services. You own and retain all right, title, and interest in the Intellectual Property Rights in Your Data. “Intellectual Property Rights” means: (i) copyrights and other rights associated with works of authorship; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; and (v) all registrations, applications, renewals, extensions, continuations, divisions, or reissues now or in the future.

You, and not DATADYNE MARKETING, are responsible for maintaining and protecting all of Your Data. DATADYNE MARKETING will not be liable for any loss or corruption of Your Data, or for any costs or expenses associated with backing up or restoring any of Your Data.

If any information related to your account changes, you must notify us promptly and keep your information current. The Services are not intended for use by you if you are under 18 years of age. By agreeing to these Terms, you are representing to us that you are over 18.

The Services are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500).

You will not import, export, re-export, transfer or otherwise use the Services in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the Services, you represent and warrant that you are not located in any such country or on any such list.

You will not engage in activity that would cause DATADYNE MARKETING to be in violation of these laws and regulations, and will indemnify DATADYNE MARKETING for any fines, penalties or other liabilities incurred by DATADYNE MARKETING for your failure to comply with this provision.

If you utilize DATADYNE MARKETING Voice™ as part of your Services or you otherwise utilize DATADYNE MARKETING Voice in any capacity, you understand and agree that (a) neither DATADYNE MARKETING Voice nor the Services are intended to support or carry emergency calls to any emergency services such as public safety answering points; (b) we will not be held liable for any claim, damages or loss (and you hereby waive any and all such claims or causes of action), arising from or relating to your (or agents or end-users) inability to use DATADYNE MARKETING Voice or any Services to make such emergency calls. DATADYNE MARKETING may disable the phone numbers provided to you if unused or substantially underused for sixty (60) days, or if your subscription to the Services, account or rights to access and/or use of the Services is otherwise suspended, terminated, or cancelled. Use of DATADYNE MARKETING Voice may be subject to the payment of additional fees and charges, including, without limitation, the phone call rates as detailed on the Site applicable to the DATADYNE MARKETING Service. Availability of local phone numbers outside of the United States may be limited by local jurisdictions.

We will comply with all U.S. state and federal laws in our provision of DATADYNE MARKETING Voice and our processing of Your Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. However, you are solely responsible for your operation of DATADYNE MARKETING Voice in compliance with all applicable laws, including but not limited to telephone recording and wiretapping laws, which generally require an announcement that a recording is being made, at the beginning of the recording, and the opportunity for the other party to consent or to end the conversation. You must ensure that proper consent to record is obtained prior to making any such recording. We recommend that you always secure consent before recording.

You expressly warrant and represent to DATADYNE MARKETING that you will comply with the aforementioned laws, regulations and rules at all times when using DATADYNE MARKETING Voice or any other DATADYNE MARKETING Service.

You agree to indemnify, defend and hold harmless DATADYNE MARKETING and its officers, directors, owners, employees, agents, consultants and vendors from and against any and all liabilities, losses, claims, damages, causes of action, costs and expenses (including attorneys’ fees) that may be incurred by DATADYNE MARKETING arising out of or related to your acts or omissions in connection with call recordings, whether such claims arise under contract, tort, statute or other legal theory, including but not limited to your failure to comply with telephone recording and wiretapping laws.

While DATADYNE MARKETING Voice provides features to help you comply with call recording laws, regulations and rules, We make no representations or warranties with respect to call recording.

Account Security

You are responsible for keeping the password that you use to access the Services secure and you agree not to provide your password to any third party. You are responsible for all activity using your account, whether or not authorized by you. Accordingly, you should notify DATADYNE MARKETING immediately of any unauthorized use of your account. You acknowledge that if you wish to protect Your Data when you are transmitting it to DATADYNE MARKETING, it is your responsibility to use a secure encrypted connection to do so.

Software and Updates

Some parts of our Services may require you to download a client software package ("Software"). Subject to your compliance with the Agreement, DATADYNE MARKETING hereby grants you a limited, nonexclusive, nontransferable, non sublicensable, revocable license to use the Software, solely to access the Services. This license will be automatically revoked if you violate the Agreement. We reserve all rights not explicitly granted in the Agreement. You must not attempt to reverse engineer the Software or encourage or assist anyone else to do so; however, this restriction will not prohibit reverse engineering for interoperability in the European Union to the extent European Union law forbids such a restriction. The Services may automatically update the Software on your device when a new version becomes available.

Nondisclosure of Confidential Information

During the Term of the Agreement and for a period of one (1) year thereafter (except for trade secrets, which shall be held in confidence for so long as they constitute trade secrets, and confidentiality obligations as required by applicable law), each Party (the “Receiving Party”) that receives Confidential Information (as defined below) of the other Party (the "Disclosing Party") will not use, other than in connection with the provision or receipt of the Services, or disclose to anyone, other than officers, employees, contractors, or representatives of the Receiving Party with a need to know for purposes of the Agreement and who are subject to confidentiality obligations no less stringent than the terms of the Agreement (“Representatives”), any Confidential Information disclosed to the Receiving Party by or on behalf of the Disclosing Party. The Receiving Party will safeguard disclosure of such Confidential Information to the same extent that Receiving Party safeguards its own Confidential Information, but in any case will at a minimum use reasonable care. Upon request of the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party or destroy, certifying in writing to the Disclosing Party the destruction of such Confidential Information, the Disclosing Party’s Confidential Information in its possession or under its control.

“Confidential Information” means all information, material and data of the Disclosing Party which (i) is labeled or designated in writing as confidential or proprietary, (ii) the Receiving Party is advised is proprietary or confidential, or (iii) in view of the nature of such information and/or the circumstances of its disclosure, the Receiving Party knows or reasonably should know is confidential or proprietary. Confidential Information includes, without limitation, the terms and conditions of the Agreement, the Services, Your Data, and all information relating to the Disclosing Party’s business plans, marketing plans, customers, technology, employee and organizational information, product designs, product plans and financial information.

These confidentiality obligations will not apply to any information which (i) is or becomes publicly known without any fault of or participation by the Receiving Party or its Representatives; (ii) was in Receiving Party's possession prior to the time it was received from Disclosing Party or came into Receiving Party's possession thereafter, in each case lawfully obtained from a source other than Disclosing Party or its Representatives and not subject to any obligation of confidentiality or restriction on use; (iii) is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the Receiving Party will, unless prohibited by law, notify the Disclosing Party of the requirement of disclosure before making such disclosure and will comply with any protective order or other limitation on disclosure obtained by the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information.

Feedback

While we appreciate it when users send us feedback, comments, and/or suggestions about our Services (“Feedback”), please be aware that we (or others we authorize) may use in any manner any feedback, comments, or suggestions you post in our forums or otherwise provide without any obligation to you. You agree that we (or others we authorize) may freely use, disclose, reproduce, license, distribute, or otherwise exploit in any manner any Feedback you post in our forums or otherwise provide to us about our Services without any obligation to You, restriction of any kind (including on account of any Intellectual Property Rights), and without paying any compensation to You or any third party.

Acceptable Use Policy

You will not, and will not attempt to, use the Services to violate any laws or any rights of DATADYNE MARKETING or any other person or otherwise misuse or inappropriately use the Services, and will use the Services only in a manner consistent with theDATADYNE MARKETING Acceptable Use Policy, as it may change from time to time in our discretion.

Other Content

The Services may contain links to websites or resources of others. We do not endorse and are not responsible or liable for their accuracy, availability, content, products, services or anything else. You are solely responsible for your use of any such websites or resources. Also, if we provide you with any Software under an open source license, there may be provisions in those licenses that conflict with the Agreement, in which case the open source provisions will apply with respect to the code to which those provisions apply.

Billing

Unless otherwise indicated on an Order Form or Statement of Work (“SOW”), all fees will be due and payable upon commencement of the Services (“Service Fees”). If you fail to pay Service Fees within five (5) business days of notice to you that payment is due or delinquent, or if you do not update payment information upon request, we may suspend or terminate access to the Services by you or your Authorized Users.

You will pay all applicable sales, use, service, value-added, consumption or other taxes associated with the Services you purchase. DATADYNE MARKETING will pay all taxes on its income and all taxes and insurance associated with its personnel.

Payments made by credit card or debit card may be billed and processed by an agent on behalf of DATADYNE MARKETING. Such agent shall act solely as a billing and processing agent for and on behalf of DATADYNE MARKETING and shall not be construed to be providing the Service. If you mandate the use of any specific payment portal or other processing agent which charges a fee to DATADYNE MARKETING of any kind, you shall be invoiced the cost of such fee and obligated to pay it.

After the Initial Term, the Service Fees are subject to change and may be changed upon notice to you at least sixty (60) days prior to the start of any Renewal Term (as defined below).

Term and Termination; Suspension

The Agreement shall begin on the effective date as specified in your Order (“Order Effective Date”) and shall continue as specified in your Order (the “Initial Term”), automatically renewing thereafter for successive periods of twelve months each (each a “Renewal Term” and together with the Initial Term, the “Term”) unless earlier terminated. We reserve the right to suspend or terminate the Services in whole or part at any time, with or without cause, and with or without notice, without incurring liability of any kind. For example, we may suspend or terminate your use if you are not complying with the Agreement, or if you use the Services in any way that may cause us legal liability or disrupt others' use of the Services or damage to our business or reputation, or for any other reason. If we suspend or terminate your use, we will try to let you know in advance and help you retrieve data, though there may be some cases (for example, repeatedly or flagrantly violating the Agreement, a court order, or danger to other users) where we may suspend or terminate immediately. You acknowledge that if your access to the Services is suspended or terminated, you may no longer have access to Your Data that is stored with the Service. Either Party may terminate the autorenewal of the Agreement upon written notice to the other Party, which notice is given at least thirty (30) days prior to the end of the applicable then-current Initial Term or Renewal Term, as the case may be.

Warranties

DATADYNE MARKETING warrants that: (i) it will perform the Services in accordance the Support and Service Level Agreement; (ii) it will provide the Services in a professional manner, consistent with recognized industry security standards and good commercial practices; (iii) it will comply with all applicable law, and be duly licensed and otherwise authorized to provide the Services; and (iv) it has the authority and right to enter into the Agreement and to observe and perform its respective obligations contained in the Agreement.

Customer warrants that it has the authority and right to enter into the Agreement and to observe and perform its respective obligations contained in the Agreement.

WITH THE EXCEPTION OF THOSE EXPRESS WARRANTIES MADE IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, DATADYNE MARKETING DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY.

Indemnification

Your indemnity to us: You will defend and hold us and our affiliates, employees, officers, directors, agents, successors and assigns, harmless at your own expense, against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Your Data; (ii) your violation of any third party rights (including third party intellectual property rights or privacy rights); and (iii) your use of the Services in any way contrary to the Agreement.

Our indemnity to you: We will defend and hold you and your employees, officers, directors, agents, successors and assigns, harmless at our own expense, against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with any third party claims that the Services infringe or misappropriate the intellectual property rights of a third party.

The Party seeking indemnification under the Agreement will: (i) give the indemnifying Party prompt written notice of the claim, (ii) tender to the indemnifying Party control of the defense and settlement of the claim, and (iii) cooperate with the indemnifying Party in defending or settling the claim. The indemnified Party will have the right to participate at its own expense in any indemnification action or related settlement negotiations using counsel of its own choice. Neither Party may consent to the entry of any judgment or enter into any settlement that adversely affects the rights or interests of the other Party without that Party’s prior written consent, which may not be unreasonably withheld.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL DATADYNE MARKETING, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT DATADYNE MARKETING HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE AGGREGATE LIABILITY OF DATADYNE MARKETING TO YOU, ANY AFFILIATE OR ANY THIRD PARTY FOR ALL CLAIMS RELATING TO THE SERVICES OR CONNECTED WITH THE AGREEMENT, REGARDLESS OF THE DAMAGES THEORY, WILL NOT EXCEED THE FEES PAID OR OWING TO DATADYNE MARKETING UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE. THE LIMITATION OF LIABILITY PROVIDED IN THIS PARAGRAPH WILL APPLY IN THE AGGREGATE TO YOU AND YOUR AFFILIATES AND SHALL NOT BE CUMULATIVE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PURPOSE OF THIS PARAGRAPH IS TO PROVIDE FOR THE ALLOCATION OF RISK AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES PAID, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY THAN PROVIDED FOR HEREIN.

Some states do not allow the types of limitations in this paragraph, so they may not apply to you. IN THOSE JURISDICTIONS, DATADYNE MARKETING’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

In addition, DATADYNE MARKETING and its authorized personnel may require access to Your Data or account for the purposes of assisting you with any step of your account setup or any other troubleshooting, including attaining email connectivity. Neither DATADYNE MARKETING nor any of its employees will be liable in cases where this access exposes us to your private data, including prospect info and email metadata and content. By using DATADYNE MARKETING, you agree to permit DATADYNE MARKETING representatives these permissions only when circumstances necessitate it. We reserve the right to assist in these ways when needed and will keep information confidential as per our Privacy Policy.

Modifications

We may revise these Terms from time to time and the most current version will always be posted on our website. We will notify you of any change (for example via email to the email address associated with your account or by a notification when you sign in or by some other method). By continuing to access or use the Services after revisions become effective, you are agreeing to be bound by the revised Terms. If you do not agree to the new Terms, simply don't use the Services after the change is effective, in which case the change will not apply to you.