Terms

Last modified October 31, 2016

 

These terms and conditions and all applicable service-specific terms (“Terms of Service”, “Terms of Use” or “Agreement”) govern your access to and use of any websites, mobile sites, mobile applications, products or services offered by Reply‘em Inc. (“Reply ‘em” “Reply’em” “REPLYEM” “Replyem” “we” “us”) based on the plan you purchased (the “Services”)

 

BY ACCESSING AND USING THE SERVICES IN ANY MANNER, YOU ARE "ACCEPTING" AND AGREEING TO BE BOUND BY THESE TERMS OF SERVICE TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU DO NOT UNCONDITIONALLY ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU SHALL NOT (AND SHALL HAVE NO RIGHT TO) ACCESS OR USE THE SERVICES. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. THESE TERMS SHOULD BE READ IN CONJUNCTION WITH REPLY ‘EM’S PRIVACY POLICY AND COPYRIGHT POLICY.

 

Wherever used in these Terms of Service, “you”, “your”, “Customer”, or similar terms means the person or legal entity accessing or using the Services.  If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Service.

 

We reserve the right, at any time, to update and change any or all of these Terms of Service, in our sole discretion, including but not limited to the fees and charges associated with the use of the Services. If we do so, we will post the modified Terms of Service on www.replyem.com (the “Site”), though we will notify you of any changes that, in our sole discretion, materially impact these Terms of Service.   Continued use of the Services after any such changes have been made shall constitute your consent to such changes. If a change has a material adverse impact on you, and you have contracted and prepaid for a certain term, you may notify us within 30 days after being informed of that change that you do not agree with the change. If you do so, we will delay applying the change to you until your prepaid term ends, or, at our sole and absolute discretion, allow you to cancel your account, and we will refund any prepaid amount pro rata to you. If you use our Services after your prepaid term ends, all changes will apply to you. You are responsible for regularly reviewing the most current version of these Terms of Service, which are currently available at: http://www.replyem.com/terms .

 

1. Definitions

 

“Authorized Users” means individuals who are directly accessing the Services via an online sign-up process, or individual users authorized by you to use the Services and who you have supplied user identifications and passwords to. Authorized Users may include your employees, consultants, contractors, agents, or your other designees, but shall not include any employee or agent of any Reply’em competitor.

 

“Customer Content” means all information and data (including text, images, photos, videos, audio, and documents) or any other content in any media and format provided or made available to Reply’em by or on your behalf in relation to the use of the Services.

 

“Fair Use Policy” means the limits placed on usage as described in Section 2.6.

 

“Mentions” means the information, including links, posts, and excerpts, that has been made publicly available and obtained by Reply’em on your behalf from the Internet, and data derived therefrom, including reports, summaries, graphs, and charts.

 

“Services” means services provided to you by Reply’em based on the plan you have purchased either through an online transaction /*or via an Authorization Form, */ but excluding Third-Party Services.

 

“Supported Platform(s)” means the social networking site(s) currently supported by the Services, including Twitter, Facebook, /*LinkedIn, Instagram,*/ and other social networking sites as described via the Site.

 

“Taxes” means all taxes, assessments, charges, fees, and levies that may be levied or based upon the sale or license of goods and/or services, as the case may be, including all sales, use, goods and services, value added, and excise taxes, custom duties, and assessments together with any instalments with respect thereto, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority (including federal, state, provincial, municipal, and foreign governmental authorities).

 

“Third-Party Services” means products, services, applications, or websites made available by third parties through the Services (i.e., companies or people who are not Reply’em).

 

2. Reply’em Services.

 

2.1 Services. During the Term, subject to the terms and conditions of this Agreement, and solely for your personal or internal business purposes, Reply’em grants you and your Authorized Users a right to access and use our Services, and support, if applicable, in accordance with the plan you selected.

 

2.2 Updates and Functionalities. You acknowledge that from time to time Reply’em may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of the Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, Reply’em shall provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”). You acknowledge that the Services interoperate with several Supported Platforms, and that the Services provided are highly dependent on the availability of such Supported Platforms. If at any time any Supported Platforms cease to make their programs available to Reply’em on reasonable terms, Reply’em may cease to provide such features to you without entitling you to refund, credit, or other compensation.

 

2.3 Acceptable Use. You shall (i) be responsible for your and your Authorized Users’ compliance with these Terms of Service, including the Fair Use Policy; (ii) be solely responsible for the accuracy, quality, integrity, and legality of Customer Content and of the means by which you acquired or generated Customer Content; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, including keeping you password and user name confidential and not permitting any third party to access or use your user name, password, or account for the Services; (iv) be solely responsible and liable for all activity conducted through your account in connection with the Services; (v) promptly notify Reply’em if you become aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of your (or any Authorized User’s) user name, password, or account; (vi) use the Services only in accordance with applicable laws and government regulations; (vii) comply in all respects with all applicable terms of the Third-Party Services that you subscribe to or otherwise access in connection with your use of the Services. You must not (a) make the Services available to anyone other than to your Authorized Users; (b) sell, trade, or otherwise transfer your Seats to another party; (c) use the Services to store or transmit any content, including Customer Content, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (d) upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component; (e) attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Services, any third-party use of the Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law); (f) access the Services in order to build a competitive product or service or copy any ideas, features, functions, or graphics of the Services; (g) attempt to gain unauthorized access to the Services or its related systems or networks; or (h) authorize, permit, or encourage any third party to do any of the above.

 

2.4 Mentions. You understand that by using the Services you may be exposed to third-party content, information, and Mentions that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. Reply’em does not own, control, or review Mentions, and unless Customer creates the content of Mentions, Mentions shall not be considered “Customer Content” under any circumstances. Mentions may be indecent, offensive, inaccurate, unlawful, or otherwise objectionable. Reply’em has no obligation to preview, verify, flag, modify, filter, or remove any Mentions, even if requested to do so, although Reply’em may do so in its sole discretion. Your use of Mentions is at your sole risk, and Reply’em shall not be liable to you or any third party in relation to Mentions.

 

2.5 Fair Use Policy. Reply’em may suspend your access to the Services for abusive practices that degrade the performance of the Services for you and/or other customers of Reply’em.

 

2.6 Third-Party Products and Services. You acknowledge that the Services may enable or assist you to access, interact with, and/or purchase Third-Party Services from Supported Platforms and other third parties. When you access the Third-Party Services, you will do so at your own risk. These Third-Party Services may also allow you to store your Customer Content with the provider or operator of the Third-Party Services. Any use of Third-Party Services is governed solely by the terms and conditions of such Third-Party Services (and you shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between you and the relevant third party, and not Reply’em. Reply’em makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Services or any transactions completed and any contract entered into by you with any such third party.

 

2.7 Non-Exclusivity. You acknowledge that the rights granted to you under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict Reply’em's right to license, sell, or otherwise make available the Services to any third party or perform any services for any third party.

 

2.8 Beta Testing.  From time to time, we may offer you the opportunity to install, use and test (the “Beta Testing”) certain of our Services prior to their commercial release (the “Beta Services”). 

 

Beta Services are intended for evaluation purposes and not for production use and are subject to following additional terms:

 

(i) we grant you a limited right to use the Beta Services for Beta Testing purposes during the applicable testing period;

 

(ii) you agree to provide suggestions, comments, or other feedback with respect to the Beta Services as reasonably requested, including ideas for modifications and enhancements (the “Beta Feedback”).  You hereby assign to us all right, title and interest in and to the Beta Feedback.  All Beta Services and your Beta Feedback are Reply’em’s Confidential Information, and Reply’em may use your Beta Feedback in advertising and promotional materials with your prior consent (not to be unreasonably withheld);

 

(iii) we reserve the right to modify the Beta Services or terminate your participation in the Beta Testing for any reason, without liability to you. We will use commercially reasonable efforts to provide you with reasonable advance notice of such termination;

 

(iv) you acknowledge that the Beta Services are not at the level of performance or compatibility of a final, generally available product offering, and may be substantially modified prior to commercial availability, or withdrawn.  We are under no obligation to provide technical support with regards to the Beta Services, and we provide no assurance that any specific errors or performance issues in the Beta Services will be corrected; and

 

(v) the Beta Services are provided on an “as is” and “as available” basis without any warranties or conditions of any kind, whether express, implied, statutory or otherwise. Use of the Beta Services is at your sole risk.   In no event will we be liable to you for any damage whatsoever arising out of the use of or inability to use the Beta Services.

 

3. Intellectual Property

 

3.1 Reply’em Services. As between you and Reply’em, Reply’em retains all right, title, and interest in and to the Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of Reply’em’s rights or interests therein or any other Reply’em intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by Reply’em. You may from time to time provide suggestions, comments or other feedback to Reply’em with respect to the Services (“Feedback”). Feedback, even if designated as confidential by you, shall not create any confidentiality obligation for Reply’em notwithstanding anything else. You shall, and hereby do, grant to Reply’em a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.

 

3.2 Customer Content. You grant Reply’em a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 9.1) license, without a right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Customer Content for the purpose of supporting your use of the Services and providing Services to you. Reply’em may also use Customer Content for the purpose of supporting and developing the Services, provided that when doing so, Reply’em shall only use Customer Content in an anonymized and aggregated way. Subject only to the limited license expressly granted herein, you and your Authorized Users shall retain all right, title and interest in and to the Customer Content and all intellectual property rights therein. Nothing in this Agreement will confer on Reply’em any right of ownership or interest in the Customer Content or the intellectual property rights there.

 

3.3 Responsibility for Customer Content and Mentions. You are solely responsible for the Customer Content that you or Authorized Users upload, publish, display, link to, or otherwise make available via the Services, and you agree that Reply’em is only acting as a passive conduit for the online distribution and publication of the Customer Content and the online display of Queries and Mentions. Reply’em will not review, share, distribute, or reference any Customer Content or Mentions except as provided herein, as provided in Reply’em’s privacy policy and copyright policy, or as may be required by law. Notwithstanding the foregoing, Reply’em retains the authority to remove any Customer Content uploaded that it deems in violation of this Agreement, at its sole discretion.

 

4. Reply’em Products and Fees

 

4.1 Online Paid Services.  For paid Services purchased online (“Online Services”), you must provide Reply’em with a valid credit card or other payment method  (e.g., PayPal account) to pay for such services. Some Services may be available as a one-time purchase, and others can be purchased as a monthly or yearly subscription. You agree that Reply’em has permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms Reply’em retains in the future) your submitted payment information in order to process your purchase. Depending on where you transact with us, the type of payment method used and where your payment method was issued, your transaction with us may be subject to foreign exchange fees or differences in prices, including because of exchange rates. Reply’em does not support all payment methods, currencies, or locations for payment. If the payment method you use with us, such as a credit card, reaches its expiration date and you do not edit your payment method information or cancel or downgrade your account to a charge-free account, you authorize Reply’em to continue billing your credit card and/or PayPal account and you remain responsible for any uncollected amounts. All applicable taxes are calculated based on the billing information you provide us at the time of purchase.

 

4.2 Free Trial Period. If you sign up for a free trial period for a Service that is subject to charges (the “Free Trial”), we may require you to provide us with a valid credit card or other valid payment method. We may start charging you automatically on the first day after the Free Trial is over, unless you cancel or downgrade to a charge-free Service and uninstall any Apps or other items, as required for cancellation, before the end of the Free Trial period. The Free Trial is only available to first time users of a paid Online Service. We may refuse to provide our free trial period services to other users who have access to the same properties on the supported platforms i.e. the same Facebook Pages.

 

4.3 Subscription Services; Auto-renewal and Cancellation.  If you are purchasing Online Services on a subscription basis, you may have the option to purchase a monthly or a yearly subscription, which will automatically renew at the end of its applicable term. Subscriptions are billed in advance on a monthly or yearly basis (as per the option chosen when you purchased such Online Services) and are non-refundable for the subscription period they are purchased for. You agree that Reply’em may process your credit card or other valid payment method on each monthly, annual, or other renewal term (based on the applicable billing cycle), on the calendar day corresponding to the first day you subscribed to Online Services. If your paid subscription to Online Services began on a day not contained in a subsequent month (e.g., your service began on January 30 and there is no February 30), we will process your payment on the last day of such month. You may elect to cancel or downgrade your Online Services at any time by following the steps outlined at http://www.replyem.com/cancel . If you subscribed to a yearly plan, the downgrade will only be effective at the end of the then-current annual billing period and no credits or refunds will be issued to you for prepaid fees. Online Services purchased for a one-time fee are not refundable.

 

4.4 Late Payment. If any amounts due hereunder are not received by Reply’em by the due date, then at Reply’em’s discretion, such charges may accrue late interest at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, upon 10 days' written notice, Reply’em may suspend your access to the Services if Reply’em does not receive the amounts invoiced hereunder at the expiration of such period.

 

4.5 Taxes and Withholdings. You are responsible for paying all Taxes associated with your purchase of Services. If Reply’em has the legal obligation to pay or collect Taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you, unless you provide Reply’em with a valid tax exemption certificate authorized by the appropriate taxing authority. Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any Taxes. If you are required to deduct or withhold any Taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Reply’em receives an amount equal to the sum it would have received had no such deduction or withholding been made.

 

5. Term and Termination

 

5.1 Term of the Agreement (“Term”). For Online Services, the term of this Agreement shall commence on the day you access the Services for the first time and shall continue until your subscription ends, or your account is cancelled and you cease using our Services.

 

5.2 Termination. If you violate the letter or spirit of this Agreement, abuse the Services, or otherwise create risk or possible legal exposure to Reply’em, we can terminate or suspend your access to the Services at our sole discretion. We will use commercially reasonable efforts to notify you by email or at the next time you attempt to access your account. You may also cancel or disable Services at any time. For cancellation procedure, and for further assistance, go to http://www.replyem.com/cancel .

 

5.3 Effects of Termination. Upon termination of this Agreement for any reason, (i) you will immediately cease all use of the Services; (ii) you will have no further access to your accounts provided by Reply’em; (iii) you will pay Reply’em all unpaid amounts owing to Reply’em and (iv) We may refuse to provide our services to other users who have access to the same properties on the supported platforms i.e. the same Facebook Pages.

 

5.4 Survival. Any provision of this Agreement which, either by its terms or to give effect to its meaning, must survive, and such other provisions which expressly, or by their nature, are intended to survive termination shall survive the expiration or termination of this Agreement.

 

6. Warranty Disclaimer

 

SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, REPLY’EM EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, REPLY’EM SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT, THAT ITS SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT ITS SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, REPLY’EM DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM REPLY’EM OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. REPLY’EM DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING THE CUSTOMER CONTENT AND MENTIONS, OR ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. REPLY’EM DOES NOT CONTROL OR VET CUSTOMER CONTENT OR MENTIONS AND IS NOT RESPONSIBLE FOR WHAT USERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. REPLY’EM IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SERVICES OR SUPPORTED PLATFORMS ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SERVICES OR SUPPORTED PLATFORMS. REPLY’EM EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. IF YOU ARE DISSATISFIED OR HARMED BY REPLY’EM OR ANYTHING RELATED TO REPLY’EM, YOU MAY CANCEL YOUR REPLY’EM ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 4.3 (AUTO-RENEWAL AND CANCELLATION) OR SECTION 5.2 (TERMINATION), AS APPLICABLE, AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY (AND REPLY’EM’S SOLE AND EXCLUSIVE LIABILITY).

 

7. Indemnification

 

7.1 Your Indemnification. You shall defend, indemnify, and hold harmless Reply’em, its affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature which are in connection with or arising out of a claim (a) alleging that the Customer Content or your use of the Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; (b) relating to, or arising from, Customer Content, or your breach of Section 2.3 or Section 2.6; or (c) relating to, or arising from, Third-Party Services.

 

8. Limitation of Liability

 

SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL REPLYEM’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF (A) THE FEEDS PAID BY YOU FOR THE SERVICES HEREUNDER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE AND (B) US$50. REPLY’EM DOES NOT OFFER ANY WARRANTY OR REMEDIES FOR THE INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL REPLY’EM, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL REPLY’EM BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. ALSO, UNDER NO CIRCUMSTANCES WILL REPLY’EM BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM USING THE SERVICES AND NOT COMPLYING WITH THE SUPPORTED PLATFORMS TERMS OF USE I.E. GETTING BANNED AND/OR LOSING A FACEBOOK PAGE OR PROFILE.

 

THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF REPLY’EM WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF REPLY’EM FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF REPLY’EM, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF REPLY’EM; OR (III) ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

 

9. General

 

9.1 Assignment. You may not assign or otherwise transfer any of your rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law or otherwise, without the prior written consent of Reply’em (not to be unreasonably withheld), and any attempted assignment or transfer without such consent will be void. Reply’em may freely assign or delegate all rights and obligations under this Agreement, fully or partially without notice to you. Reply’em may also substitute, by way of unilateral novation, effective upon notice to you, Reply ’em Inc. for any third party that assumes our rights and obligations under this Agreement.

 

9.2 Export Compliance and Use Restrictions. You shall not use or access the Services if you are located in any jurisdiction in which the provision of the Services is prohibited under Canadian, U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and you shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) you are not named on any Canadian or U.S. government list of persons or entities prohibited from transaction with any Canadian or U.S. person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) you shall not allow Authorized Users to access or use the Services in violation of any Canadian, U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) you shall comply with all applicable laws regarding the transmission of data exported from the country in which you (or your Authorized Users) are located to Canada and the United States.

 

9.3 Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.

 

9.4 Notices. For purposes of service messages and notices about the Services, we may place a banner notice across our pages to alert you to certain changes such as modifications to this Agreement. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you through your Reply’em account or through other means including email, mobile number, telephone, or delivery services including the postal service about your Reply’em account or services associated with us. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Services. You may provide legal notice to Reply’em via email to david@replyem.com. The email address provided may be updated as part of any update to these Terms of Service.

 

9.5 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all parties to this Agreement, except that any provision which does not give rights or benefits to particular parties may be waived in writing, signed only by those parties who have rights under, or hold the benefit of, the provision being waived if those parties promptly send a copy of the executed waiver to all other parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.

 

9.6 Nature of Relationship. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.

 

9.7 Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs, or labour disruptions; and any laws, orders, rules, regulations, acts, or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.

 

9.8 Governing Law. This Agreement and your relationship with Reply’em shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in Delaware, U.S.A. and shall be considered to have been made and accepted in Delaware, USA, without regard to its conflict of law provisions. All disputes under this Agreement will be resolved by the courts of Delaware. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.

 

9.9 Entire Agreement. The terms of this Agreement, together with any service-specific terms, any applicable Authorization Form, all exhibits, and Reply’em’s privacy policy and copyright policy, constitute the entire agreement between the parties with respect to the use of the Services and supersede any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, with respect to the subject matter and is binding upon the parties and their permitted successors and assigns. The terms of this Agreement will apply to all orders you submit to Reply’em and shall supersede any additional terms, which may be incorporated in a purchase order form, or any other form you generate. Any such terms shall be null and void.

 

 SERVICE-SPECIFIC TERMS

 

10. Generated Content

 

The following additional terms apply to the use of tools to publish, reply or send text and multimedia through our services.

 

10.1 Additional Definitions.

 

“Generated Content” means the text and multimedia created by you or your Authorized Users, including text, image format files (jpg, png, etc), video files (mp4, mov, etc) and audio files (mp3, wav, etc) you publish, reply or send through Reply’em.

 

“Page” means a social media profile you use with Reply’em services.

 

“Audience” means a person who participates in your Page.

 

“Reply’em Platform” means Reply’em’s proprietary software, content, text, images, media, and other materials delivered through Reply’em’’s web platform app.replyem.com (including successor domain names and sites) and mobile applications that enable you and your Authorized Users to create and manage generated content, including any modifications or Updates.

 

“Submitted Content” means all information (including personal information) and data or any other content in any media and format provided or made available to you by the Audience.

 

10.2 Generated Content. You shall: (i) be responsible for the content published and distributed on the Pages; (ii) ensure that every generated content complies with all applicable laws, rules, and regulations.

 

You acknowledge and agree that: (i) Reply’em is not liable for the content or customized display of any Generated Content or Page and disclaim any warranty as to the completeness of the Mentions and Submitted Content obtained on your behalf and displayed on any Page; (ii) you may not refer to Reply’em Platform nor use Reply’em’s name, trade-marks, or trade names, except to refer to Reply’em’s privacy policy and copyright policy where required in accordance with the paragraph above; (iii) if Campaign Participants provide you with Submitted Content that is personal information, Reply’em is not responsible or liable for your use or distribution of such information; and (iv) Reply’em is not responsible for monitoring your compliance with the obligations in this Section 10.2. If you are in breach of such obligations with respect to Generated Content, Reply’em may immediately suspend you and your access to the Services.

 

10.3 Submitted Content. You shall be solely responsible for the means by which you acquire or generate Submitted Content. You understand that, by using the Services, you may be exposed to Submitted Content that might be unlawful, offensive, harmful, inaccurate, or otherwise inappropriate. Unless you create the content of the Submitted Content, Submitted Content shall not be considered “Customer Content” under any circumstances. Reply’em has no obligation to preview, verify, flag, modify, filter, or remove any Submitted Content, even if requested to do so, although Reply’em may do so in its sole discretion. Your use of Submitted Content is at your sole risk, and Reply’em shall not be liable to you or any third party, including any Campaign Participant, in relation to Submitted Content.

 

10.4 Responsibility for Generated Content and Submitted Content. You agree that the Services are only a passive conduit for the online display of Generated Content and Submitted Content. Reply’em will not review, share, distribute, or reference any Generated Content or Submitted Content, except as provided in this Agreement, as provided in Reply’em’s privacy policy and copyright policy, or as may be required by law. Notwithstanding the foregoing, Reply’em retains the authority to remove any Submitted Content uploaded that it deems in violation of this Agreement, in its sole discretion.

 

10.5 Your Additional Indemnification. You shall defend, indemnify, and hold harmless Reply’em, its affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature which are in connection with or arising out of a claim (a) alleging that any Generated Content or Submitted Content infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates applicable law; or (b) relating to, or arising from, (i) any Campaign or Submitted Content, or entries to or from a Campaign or a Campaign Page or (ii) your breach of your obligations, representations, or warranties in Section 10.2 or 10.3 above.