SAAS SERVICES AND SUPPORT
Subject to these terms of use (“Terms of Use”), Toskr will use reasonable efforts to provide Customer with the Services. As used in this Agreement, “Services” means the services described in this Agreement and the applicable Service Agreement provided by Toskr, which is incorporated by reference. “Services” also includes all functions, source code, object code, or related documentation of the ThruText and ThruTalk software, including but not limited to those described in our Help Center, which can be accessed online at help.getthru.io or other such URL(s) that Toskr may designate from time to time. “Customer” means the Party that has agreed to the applicable Service Agreement, all others acting on that Party’s behalf and all other users of the Services.
Subject to the terms hereof, Toskr will provide Customer with reasonable technical and customer support services in accordance with Toskr’s standard practices then in effect and as described in the applicable Service Agreement, which is referenced and incorporated in this Agreement.
No Guarantee of Results. Customer acknowledges and agrees that Toskr makes no guarantee with respect to the outcome, results or other consequence of any services conducted on behalf of Customer under this Agreement.
RESTRICTIONS AND RESPONSIBILITIES
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, or algorithms relevant to the Services or any software, documentation, or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Toskr or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third Party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Toskr hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term, only for the purpose of using the Services in a manner consistent with these Terms of Use. This provision does not restrict Customer from deploying the Software for use at affiliated organizations such as local chapters, state federations, or other affiliates, provided that each such organization agrees to these terms and any applicable Service Agreement, and provided that Customer will be responsible for the conduct of any such organizations under this Agreement.
Customer represents, covenants, and warrants that all data it submits to Toskr, including personal information of any type, may be used by Toskr to provide the Services and for all other purposes described in this Agreement, and that Customer has obtained all permissions necessary to transfer such data to Toskr for such uses. Customer represents, covenants, and warrants that Customer will follow all applicable international, federal, state, provincial, municipal, and local laws and regulations governing the use of the Services and/or the Software, including, without limitations, laws and regulations concerning disclosure of political contributions, telemarketing activities, anti-spam, and privacy. Customer will also comply with all applicable standards in the telecommunications industry regarding the use of the Services, such as 10DLC, as well as the standards of the CTIA and the Mobile Marketing Association.
Customer represents, covenants, and warrants that Customer will not use the Services in any way that (i) is illegal; (ii) disrupts or damages any of Toskr’s computer systems or network or other Parties’ computer systems and networks, or (iii) violates any person’s rights (including without limitation intellectual property, privacy, publicity, and/or statutory rights). Prohibited uses of Toskr Services include communications that are obscene, libelous, defamatory, fraudulent, discriminatory, or abusive; communications that are unsuitable for minors; communications that promote, incite, or instruct on criminal behavior; communications that are false, misleading, or deceptive; communications that infringe on the intellectual property or privacy rights of third parties; and otherwise unlawful communications.
Without limiting the foregoing, Customer specifically agrees to immediately honor any customer opt-out request, including without limitation any communication in which a recipient says STOP, do not text or call me, or otherwise indicates their desire to no longer receive text messages or phone calls from Customer. The customer agrees to desist from sending any further messages or making further phone calls to that recipient following receipt of any such opt out request.
Customer will be responsible for obtaining and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Customer will also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords), and files, and for all uses of Customer’s account or the Equipment with or without Customer’s knowledge or consent.
Toskr does not provide legal advice, and any organization using ThruTalk for fundraising warrants that they’re using ThruTalk at their own risk, in consultation with their legal counsel. Toskr is a service provider and is not a professional fundraiser or fundraising counsel. Customer warrants they will not use subcontracted services and/or professional fundraisers to make phone calls with ThruTalk. ThruTalk, however, may be used for in-house fundraising, which for this purpose is defined as employees of Customer’s organization making fundraising phone calls on behalf of Customer’s organization. Additionally, ThruTalk may not be used for telemarketing, sales, or advertising services for any Customer’s in-house programs (i.e., selling tickets, and membership packages). Violation of these terms may result in termination or suspension of all services provided by Toskr and may also result in civil, criminal, or administrative liability or penalties against Customer and those assisting Customer. Any failure to enforce these terms does not amount to a waiver of Toskr’s rights. Although Toskr has no obligation to monitor the Customer’s use of the Services, Toskr may do so and prohibit any use of the Services it believes may be (or alleged to be) in violation of these Terms. For the purpose of this section, “professional fundraisers” are defined as separate companies, or individuals who are not employees of the organization hired by an organization to conduct fundraising (i.e., a “professional fundraiser” includes, but is not limited to, a separate company which provides a staffed call center to the organization).
Additional Covenants applicable to Canadian Customers.
(i) Customer represents, covenants, and warrants that Customer will not use the Services or the Software in anyway for solicitation, as such term is defined in the Canadian Radio-television and Telecommunications Commission Unsolicited Telecommunications Rules; and
(ii) acknowledges and confirms that Toskr does not make telecommunications calls for or on behalf of the Customer and therefore Toskr is not a calling service provider, as such term is defined in the Canada Elections Act. Customer represents, covenants, and warrants that, in connection with the use of the Services and/or the Software, Customer will not register with, and will not identify Toskr as a calling service provider to, the Canadian Radio-television and Telecommunications Commission Voter Contact Registry.
CONFIDENTIALITY; PROPRIETARY RIGHTS
Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (in this Agreement after referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Toskr includes information regarding features, functionality, pricing, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Toskr to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use or divulge to any third person (except in performance of the Services or as otherwise permitted in this Agreement) any such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or generally becomes available to the public through no fault of the Receiving Party, or (b) was known by the Receiving Party prior to receipt from the Disclosing Party, or (c) was properly received from a third party who is not under any obligation to maintain the confidentiality of such information, and without breach of this Agreement by the Receiving Party, or (d) was independently developed without the use of or reference to any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law or judicial order (provided that reasonable notice of this requirement is first delivered to the other Party, so that it may contest this potential disclosure).
Customer will own and retain all rights, titles, and interest in and to the Customer Data. Toskr will own and retain all rights, title, and interest in and to each of the following, even if the Customer contributed to or assisted in their development or improvement: (a) the Services and Software, including all improvements, enhancements, or modifications thereto, (b) all software, applications, inventions or other technology developed in connection with the Services, Software, or Support, and (c) all intellectual property rights related to any of the foregoing.
DATA MANAGEMENT AND RETENTION
Toskr will have the right to collect and analyze data and other information relating to the provision, use, and performance of the Services and related systems and technologies (including, without limitation, Customer Data and data derived therefrom), and Toskr will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services, Software, and for other development, diagnostic and corrective purposes in connection with the Services, Software, and other Toskr offerings.. Toskr will (ii) disclose and/or share such data solely in aggregate or other de‐identified form in connection with its business. No rights or licenses are granted except as expressly set forth in this Agreement.
Customer represents that personal information transferred by Customer to Toskr has been collected in accordance with applicable privacy laws, and Customer has the authority to provide this personal information to Toskr. Toskr does not and may not retain, sell, use, or disclose personal information provided by Customer for any purpose other than as needed to perform its Services, or as required by law. For the purposes of this Section, “personal information” means any information relating to an identified or identifiable natural person, as defined under applicable privacy laws.
The parties agree that TOSKR, Inc. will process Personal Information subject to protection under the California Consumer Privacy Act (CCPA) as a Service Provider strictly for (1) the purpose of performing or providing the Services described in the Service Agreement, (2) as to Usage Data, for its own legitimate Business Purpose as per our Privacy Policy (https://www.getthru.io/privacy-policy). The parties agree that Toskr, Inc. will not (3) Sell such Personal Information (as defined in the CCPA); (4) retain, use, or disclose Personal Information for a commercial purpose other than for the purpose of providing the Service or as otherwise permitted by the CCPA; or (5) retain, use, or disclose Personal Information outside of the direct business relationship between Customer and Toskr.
Definition of cold storage. Toskr maintains a “cold storage” database for storing old account data for ThruText accounts. The cold storage data exists outside of our primary database, and data housed there is not immediately available to Customers via the ThruText application. Data housed in cold storage is handled similarly and subject to the same restrictions as data not housed in cold storage.
Data management of closed accounts. ThruText accounts may be closed upon the Customer’s request or at Toskr’s discretion after the account is unused for 180 days. When account closure is being done at Toskr’s discretion, Toskr will provide 30 days of advance notice via email to all account administrators before closure. Any account administrator can prevent an account from being closed by responding to this email notice and requesting that the account remain open. Account closure will result in all campaigns being archived and all users being removed from the account. Once an account is closed for 180 days, the account messages and opt-outs will be moved into cold storage. All other account data will be deleted, including data on users, groups, and survey responses.
Data management of open accounts. Toskr reserves the right to move data into cold storage from archived ThruText campaigns in open accounts 2,000 days after the campaign was archived. When an archived campaign is moved into cold storage, Toskr will retain the content of the messages sent via that campaign and delete all other data, including survey response data.
Requests for data that has been moved to cold storage. Clients may request that data be recovered from cold storage only in cases where the request is necessary to fulfill a legal requirement related to the use of the Services. Toskr reserves the right to determine whether a request for cold storage data meets this threshold.
PAYMENT OF FEES
Customer will pay Toskr the fees described in the Services Agreement in accordance with the terms of this Agreement. If Customer’s use of the Services exceeds the service capacity, if any, set forth on the Services Agreement or otherwise requires the payment of additional fees, Customer will be billed for such usage and Customer agrees to timely pay such additional fees. Fees are non-refundable. Toskr reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon sixty (60) days prior notice to Customer (which may be sent by email). If Customer believes that Toskr has billed Customer incorrectly, Customer must contact Toskr no later than 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 Toskr’s customer support department.
Toskr may choose to send invoices by email or by U.S. postal mail, in which case full payment for invoices issued in any given month must be received by Toskr thirty (30) days after the invoice date. Unpaid amounts 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 collection expenses and may result in immediate termination of Service. Customer will be responsible for all taxes associated with Services other than U.S. taxes based on Toskr ’s net income.
TERM AND TERMINATION
This Agreement will be effective upon the Subscription Start Date and will remain in effect for a period of one year unless otherwise specified in the Agreement. It will thereafter automatically renew annually unless terminated in accordance with this Section 6, in which case the “Term” will include such renewal. After the initial term, Customer can terminate this Agreement at any time, with or without cause, by providing written notice sixty (60) days' notice to request termination in writing to Toskr and specifying a date upon which the Agreement will terminate. Toskr may terminate this Agreement either (1) upon 30 days prior written notice, with or without cause; or (2) immediately in the case of a material breach by Customer, including Customer’s failure to timely pay fees when due; or (3) upon an active account reaching 90 days without usage. Upon termination, Toskr will send a final invoice for outstanding charges; all licenses granted to Customer will immediately terminate, and Customer will cease using the Services. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, limitations of liability, and dispute resolution and arbitration provisions.
Pursuant to the Term and Termination clause, Toskr, Inc. certifies that at your written request and instruction, we will: (i) provide you with (1) temporary access to the Platform to retrieve Customer Data or (2) copies of all Customer Data then in our possession or control in a commonly accessible data format, or (ii) delete all Customer Data in our possession or otherwise in our control (1) unless we are legally prohibited or (2) except as (A) provided in our Service Agreement, then such Customer Data will be processed in accordance with our Service agreement or (B) to the extent we created archived copies of Customer Data during the course of performing our obligations under this Agreement, then we will destroy such archived copies pursuant to our internal practices for record destruction.
WARRANTY AND DISCLAIMER
Toskr will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and will perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance, either by Toskr or by third-party providers, or because of other causes beyond Toskr’s reasonable control. However, Toskr will use reasonable efforts to provide advance notice of any scheduled service disruption. Toskr does not warrant that the Services will be uninterrupted or error-free; nor does it make any warranty as to the results that may be obtained from use of the Services.
EXCEPT AS SET FORTH IN THIS SECTION, CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TOSKR AND OUR PARENTS, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, STOCKHOLDERS, LICENSORS, AND ANY PARTY UNDER OUR COMMON OWNERSHIP OR COMMON CORPORATE CONTROL (“OUR AFFILIATES”) EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE OR ANY WARRANTY OR CONDITION ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. TOSKR AND OUR AFFILIATES MAKE NO WARRANTY THAT (a) THE SERVICE WILL MEET YOUR REQUIREMENTS; (b) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (c) CONTENT WILL BE HOSTED AND/OR TRANSMITTED WITHOUT INTERRUPTION OR CESSATION; (d) ANY PRODUCTS, SITES, INFORMATION, OR OTHER MATERIAL, WHETHER IN TANGIBLE OR INTANGIBLE FORM, PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS OR ANY STANDARD OF QUALITY; AND (e) ANY DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICE OR RELATED SOFTWARE WILL BE CORRECTED; AND (f) CUSTOMER'S USE OF THE SERVICES OR THE SOFTWARE WILL COMPLY WITH APPLICABLE LAWS.
ANY MATERIAL, INFORMATION, OR DATA DOWNLOADED, VIEWED, SHARED, OR OTHERWISE ACCESSED THROUGH THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK; YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULT FROM THE DOWNLOADING, VIEWING, SHARING, OR OTHERWISE ACCESSING OF SUCH MATERIAL. NO ADVICE, REPRESENTATION, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU EITHER FROM US OR THROUGH OUR WEBSITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
INDEMNIFICATION
Customer hereby agrees to indemnify, defend and hold harmless Toskr (and its officers, directors, shareholders, employees, contractors, affiliates, representatives, successors, and assigns) against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation, breach or default of any obligation, representation, covenant, or warranty of Customer in this Agreement or these Terms of Use, or otherwise from Customer’s use of Services or the Software, including any act or omission of Customer, or failure by Customer to comply with any of the terms of this Agreement.
Toskr will hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright, provided Toskr is promptly notified in writing of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Toskr will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by or originating with Toskr, (ii) that are modified after delivery by Toskr, (iii) that are combined with other products, processes, or materials where the alleged infringement relates to such combination, (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Toskr to be infringing, Toskr may, at its option and expense (a) replace or modify the Service to be noninfringing, (b) obtain for Customer a license to continue using the Service, or (c) terminate this Agreement and Customer’s rights under this Agreement and provide Customer a refund of any prepaid, unused fees for the Service.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, TOSKR AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES WILL NOT 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 THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE THREE MONTHS BEFORE THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In no event may Customer bring any claim, action or proceeding arising under this Agreement more than one (1) year after the date of the event giving rise to the cause of action.
THE LIMITATIONS STATED IN THIS SECTION WILL APPLY WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT (INCLUDING BUT NOT LIMITED TO BREACH OF WARRANTY), TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE GROUNDS. EACH OF THE LIMITATIONS OF LIABILITY IS INTENDED TO BE ENFORCEABLE REGARDLESS OF WHETHER ANY OTHER EXCLUSIVE OR NON-EXCLUSIVE REMEDY UNDER THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
Customer acknowledges that the license fees and other economic terms of this Agreement reflect the allocation of risks and the limitations of Toskr’s liability under this Agreement.
EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND IN SUCH INSTANCES, OUR LIABILITY AND THAT OF OUR AFFILIATES WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
MISCELLANEOUS
Toskr may change or amend these terms from time to time. If we make material changes, we will notify you that our terms have changed, either through the user interface, in an email message, or through other reasonable means. Your use of the Service after the date such change(s) become effective will constitute your consent to the changed terms. If you do not agree to the change(s), you must immediately stop using the Service; otherwise, the new terms will apply to you.
Each Party will maintain adequate insurance protection covering its respective activities under this Agreement, including coverage for statutory workers' compensation, comprehensive general liability for bodily injury and tangible property damage, and will provide Certificates of Insurance to the other Party, upon reasonable request, evidencing such coverage and amounts.
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 may not be assigned by either Party without the prior written approval of the other Party, which will not be unreasonably refused, provided however that either Party may assign this Agreement without consent in the event of a merger, sale, or reorganization in which the surviving entity owns or controls more than 50% of the acquired Party and agrees in writing to assume the obligations under this Agreement.
This Agreement, together with the Service Agreement, is the complete and exclusive statement of the parties’ mutual understanding and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in writing and signed by both parties.
Each Party is an independent contractor in relation to the other Party with respect to all matters arising under this Agreement. Nothing in this Agreement will be deemed to establish a partnership, joint venture, association, or employment relationship between the parties. Each Party will remain responsible and will indemnify and hold harmless the other Party, for the withholding and payment of all Federal, state, and local personal income, wage, earnings, occupation, social security, workers' compensation, unemployment, sickness and disability insurance taxes, payroll levies or employee benefit requirements now existing or hereafter enacted and attributable to themselves and their respective people. Customer does not have any authority of any kind to bind Toskr in any respect whatsoever.
The parties will endeavor to resolve any dispute with respect to this Agreement in good faith within 30 days of a dispute being raised. Any unresolved controversy or claim arising out of or relating to this Agreement, or the breach thereof, will be settled by confidential binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration will be Oakland, California. The arbitration will be governed by the laws of the State of California. The arbitrator(s) will award to the prevailing party, if any, as determined by the arbitrators, all of their costs and fees. "Costs and fees" mean all reasonable pre-award expenses of the arbitration, including the arbitrators' fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys' fees. The award of the arbitrators will be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration under this Agreement without the prior written consent of both parties. This dispute resolution provision will be governed by The Federal Arbitration Act.
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 email; 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.
This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. The parties agree to the personal jurisdiction by and venue in Alameda County, California, and waive any objection to such jurisdiction or venue.
No Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement except for any obligations to make payments to the other party under this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control (“Force Majeure Event”). The Party suffering a Force Majeure Event will give notice within three days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue and will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
Toskr retains the right to release an announcement, statement, press release, and/or other public materials relating to this Agreement unless expressly forbidden by Customer in writing. Likewise, Toskr may include Customer’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship unless expressly forbidden by Customer in writing. Toskr retains the right to share its client list in non-public forums (e.g., phone calls, person-to-person emails, in-person conversations).