Version Date: September 2, 2019

1. Services.

1. Provision of Services. Client and users of Client’s Services account ("Reps") may access and use the Services in accordance with this Agreement, the Website Terms of Use, Privacy Policy, and any other applicable agreements.
2. Facilities and Data Processing. We will use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process Client Data. These measures are designed to protect the integrity of Client Data and guard against the unauthorized or unlawful access to, use, and processing of Client Data. Client agrees that we may transfer, store, and process Client Data in locations other than Client's country. "Client Data" means Stored Data and Account Data. "Client Data" means the files and structured data submitted to the Services by Client or Reps. "Account Data" means the account and contact information submitted to the Services by Client or Reps.
3. Modifications to the Services. We may update the Services from time to time. If we change the Services in a manner that materially reduces their functionality, we will inform Client via the email address associated with the account.
4. Location of Services. The Services may be available in both Europe and the United States. The Services may be made available under different trademarks in different countries and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries.
5. Limitations to Services. We transmit text messages, emails, and voice broadcasts via telecommunications and mobile network operators. As such, our influence over the timing of the transmission of your messages and broadcasts are limited by the technical constraints imposed by those networks. We do not guarantee, a specific delivery time. We are not liable for any loss incurred by the failure of a message or broadcast to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure.

2. Client Obligations.

• Compliance. Client is responsible for use of the Services by its Reps. Individuals Client designates as Reps may request various services on your behalf. Reps must be Client’s employees or independent contractors. Client will obtain from Reps any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow us to provide the Services. Client will comply with laws and regulations applicable to Client's use of the Services, if any.
• Phone Numbers. You represent and warrant that the owners of the phone numbers you initiate messages to through our Services have consented or otherwise opted-in to the receipt of such messages and broadcasts as required by any applicable law or regulation. You agree that you will include clear opt-out/unsubscribe information on your messages or broadcasts when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to your messages. You further agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list and you further agree that you will not initiate any subsequent messages or broadcasts to any individuals after they request DNC status.
• Professional Use. You represent and warrant that you will not provide us with instructions to contact emergency services, such as hospitals, fire, police, 911 or utility-related telephone numbers; using strings of numbers as to engage two or more lines of a multi-line business; harvesting, or otherwise collecting information about others, without their consent; transmitting, associating or publishing any unlawful, racist, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind; transmitting any material that may infringe upon the intellectual property rights of third parties including trademarks, copyrights or other rights of publicity; transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or any other harmful/deleterious programs; Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks; attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means; engaging in any other activity that we believe could subject it to criminal liability or civil penalty/judgment.
• Geographic Differences. Client is responsible for following all applicable guidelines as well as all state and federal laws that the Services are subject to, including in the jurisdictions of Client’s customers, Provider, and the Client.
  
• Customer Interactions. Client is responsible and liable for the content, timing, and volume of interactions with Client’s customers using the Services. Under no circumstances are we liable for interactions with Client’s customers stemming from Client’s use of our services.
• Client Administration of the Services. Client may specify Reps as "Administrators" through the administrative portal or dashboard. Administrators may have the ability to access, disclose, restrict or remove Client Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts. Our responsibilities do not extend to the internal management or administration of the Services. Client is responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators' use of the Services complies with this Agreement.
• Intellectual Property. You are responsible for obtaining any and all rights or licenses to any data or intellectual property for usage in any messages sent to Client’s customers.
• Unauthorized Use & Access. Client will prevent unauthorized use of the Services by its Reps and terminate any unauthorized use of or access to the Services. Client will promptly notify us of any unauthorized use of or access to the Services.
• Restricted Uses. Client will not (i) sell, resell, or lease the Services; (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; or (iii) reverse engineer the Services, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by law.
• Third Party Requests.
• "Third Party Request" means a request from a third party for records relating to a Rep's use of the Services including information in or from a Rep or Client's Services account. Third Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from Rep permitting a disclosure.
• Client is responsible for responding to Third Party Requests via its own access to information. Client will seek to obtain information required to respond to Third Party Requests and will contact us only if it cannot obtain such information despite diligent efforts.
• We will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third Party Request, to: (A) promptly notify Client of our receipt of a Third Party Request; (B) comply with Client's commercially reasonable requests regarding its efforts to oppose a Third Party Request; and (C) provide Client with information or tools required for Client to respond to the Third Party Request (if Client is otherwise unable to obtain the information). If Client fails to promptly respond to any Third Party Request, then we may, but will not be obligated to do so.

3. Third-Party Services.

If Client uses any third-party service with the Services, (a) we will not be responsible for any act or omission of the third party, including the third party's access to or use of Client Data and (b) we do not warrant or support any service provided by the third party.

4. Suspension.

• Of Rep Accounts by Provider. If a Rep (i) violates this Agreement or (ii) uses the Services in a manner that we reasonably believe will cause us liability, then we may request that Client suspend or terminate the applicable Rep account. If Client fails to promptly suspend or terminate the Rep account, then we may do so.
• Security Emergencies. Notwithstanding anything in this Agreement, if there is a Security Emergency then we may automatically suspend use of the Services. We will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. "Security Emergency" means: (i) use of the Services that do or could disrupt the Services, other clients’ use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third-party access to the Services.

5. Intellectual Property Rights.

• Reservation of Rights. Except as expressly set forth herein, this Agreement does not grant Client any Intellectual Property Rights in the Services or our trademarks and brand features. "Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
• Limited Permission. Client grants us only the limited rights that are reasonably necessary for us to offer the Services. This permission also extends to trusted third parties we work with to offer the Services (e.g., payment provider used to process payment of fees, etc.).
• Suggestions. We may, at our discretion and for any purpose, use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions Client or Reps send us.

6. Fees & Payment

• Fees. Client will pay, and authorizes us to charge using Client's selected payment method, for all applicable fees. Fees are non-refundable except as required by law. Client is responsible for providing complete and accurate billing and contact information to us. We may suspend or terminate the Services if fees are past due.
• Auto Renewals and Trials. IF CLIENT'S ACCOUNT IS SET TO AUTO RENEWAL OR IS IN A TRIAL PERIOD, WE MAY AUTOMATICALLY CHARGE AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS CLIENT NOTIFIES US THAT CLIENT WANTS TO CANCEL OR DISABLE AUTO RENEWAL. We may revise Service rates by providing Client at least 30 days’ notice prior to the next charge. Up-to-date pricing is available at www.carts.guru.
• Currency. Fees may be charged in EURO for Client’s located in European countries which use the Euro. For clients located in any other country, fees will be charged in USD based on the current conversion rate published by the European Central bank, at the date of the invoice.

7. Term & Termination.

• Term. This Agreement will remain in effect until Client's subscription to the Services expires or terminates, or until the Agreement is terminated.
• Termination for Breach. Either we or Client may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
• Effects of Termination. If this Agreement terminates: (i) the rights granted by us to Client will cease immediately (except as set forth in this section); (ii) we may provide Client access to its account at then-current fees so that Client may export its Stored Data; and (iii) after a commercially reasonable period of time, we may delete any Stored Data relating to Client’s account. The following sections will survive expiration or termination of this Agreement: 2(e) (Third Party Requests), 5 (Intellectual Property Rights), 6 (Fees & Payment), 7(c) (Effects of Termination), 8 (Indemnification), 9 (Disclaimers), 10 (Limitation of Liability), 11 (Disputes), and 12 (Miscellaneous).

8. Indemnification

• By Client. Client will indemnify, defend, and hold harmless Provider from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against us and our affiliates regarding: (i) Client Data; (ii) Client's use of the Services in violation of this Agreement; or (iii) Reps' use of the Services in violation of this Agreement.
• General. We will promptly notify client of any claim and will cooperate with Client’s defense of that claim. Client will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) we may join in the defense with its own counsel at its own expense.

9. Disclaimers

THE SERVICES ARE PROVIDED "AS IS." TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CLIENT NOR PROVIDER AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. CLIENT IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY STORED DATA.

10. Limitation of Liability

• Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR PROVIDER’S OR CLIENT'S INDEMNIFICATION OBLIGATIONS, NEITHER CLIENT NOR PROVIDER AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
• Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF $25,000 OR THE AMOUNT PAID BY CLIENT TO PROVIDER HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

11. Disputes

• Informal Resolution. We want to address your concerns without resorting to a formal legal case. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in section 12(e). If a dispute is not resolved within 30 days of notice, Client or Provider may bring a formal proceeding.
• Agreement to Arbitrate. Client and Provider agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in San Francisco, CA, or any other location both parties agree to in writing.
• NO CLASS ACTIONS. Client may only resolve disputes with us on an individual basis and will not bring a claim in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.

12. Miscellaneous

• Terms Modification. We may revise this Agreement from time to time and the most current version will always be posted on our website. If a revision, in our sole discretion, is material, we will notify Client (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to our terms page, and Client is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Client agrees to be bound by the revised Agreement. If Client does not agree to the revised Agreement terms, Client may terminate the Services within 30 days of receiving notice of the change.
• Entire Agreement. This Agreement, including Client’s invoice and order form, constitutes the entire agreement between Client and Provider with respect to the subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the order form, the Agreement.
• Governing Law. The Agreement is governed by California law except for its conflicts of laws principles.
  
• Severability. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
• Notice. Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to Client may also be sent to the applicable account email address and are deemed given when sent. Notices to us must be sent to: US Customers: Carts Guru, 880 Harrison Street, San Francisco, CA 94103.
• Waiver. A waiver of any default is not a waiver of any subsequent default.
• Assignment. Client may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Provider. We may not assign this Agreement without providing notice to Client, except we may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
• No Agency. Provider and Client are not legal partners or agents, but are independent contractors.
• Force Majeure. Except for payment obligations, neither Provider nor Client will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
• No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Client's Reps are not third-party beneficiaries to Client's rights under this Agreement.