Version Date: September 20, 2022
- “Access Credentials” means any username, identification number, password, license, or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
- “Action” has the meaning set forth in Section 13.1.
- “Administrator” refers to the Authorized User(s) that You grant or otherwise designate to have administrative permission for the management of Authorized Users and Your account for the Services.
- “Authorized User” means a Person that You or an Administrator authorize to access and use the Services on Your behalf. The maximum number of Authorized Users permitted to access the Services, at any given time, may be set forth on a Sales Order.
- “Business Associate Agreement” is a written arrangement that specifies each party's responsibilities when it comes to Protected Health Information as defined under HIPAA and as defined in 45 C.F.R. Section 164.501.
- “Capability” and “Capabilities” have the meaning set forth in Section 3.6.
- “CCPA” has the meaning set forth in Section 9.4.
- “CCPA Personal Information” has the meaning set forth in Section 9.4.
- “Confidential Information” has the meaning set forth in Section 10.1.
- “Flow Services” refers to the primary Services, excluding Integrated Services or other optional add-ons.
- “Customer” has the meaning in Section 1.
- “Data License” has the meaning set forth in Section 9.3.
- “Disclosing Party” has the meaning set forth in Section 10.1.
- “Documentation” means any manuals, instructions, websites, or other documents or materials that We provide or make available to You in any form or medium and which describe the functionality, components, features, or requirements of the Services or PDCflow Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
- “Early Termination Fee” has the meaning set forth in Section 11.5.
- “Effective Date” refers, as applicable, to the “Contract Effective Date” set forth on Your Sales Order(s).
- “Fees” refers to all monthly or annual fees for each Service that You subscribe to use, pursuant to a Sales Order, and the applicable fees for each pay-per-use Service that You or an Authorized User use with the Services.
- “Force Majeure Event” has the meaning set forth in Section 15.1.
- “Integrated Services” refers to an optional feature, reports, databases and/or functionalities that may be integrated with or made available through the Services for certain Authorized Users.
- “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
- “Law” means any statute, law, ordinance, regulation, policy, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction, including the TCPA and TSR.
- “License” has the meaning set forth in Section 3.1.
- “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
- “PDCflow” means PDC, Pay Data Center, Inc., a Delaware corporation, whose principal office is located at 529 – 25th Street, Suite 200, Ogden, Utah 84401.
- “PDCflow Indemnitee” has the meaning set forth in Section 13.2.
- “PDCflow Materials” means the Service Software, Specifications, Documentation, and PDCflow Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by PDCflow or any Subcontractor in connection with the Services or that otherwise comprise or relate to the Services or PDCflow Systems. For the avoidance of doubt, PDCflow Materials include Resultant Data and any information, data, or other content derived from PDCflow’s monitoring of Your access to or use of the Services, but do not include Your Data.
- “PDCflow Personnel” means all Persons involved in the performance of Services as employees, agents, or independent contractors of Us or any Subcontractor.
- “PDCflow Systems” means the information technology infrastructure used by or on behalf of Us in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Us or through the use of third-party services.
- “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
- “Personal Information” means information that You upload, provide, edit and/or request with the Services, or information that We create or obtain on Your behalf, that (a) directly or indirectly identifies a Person; or (b) can be used to authenticate a Person, including, without limitation, employee identification numbers, government-issued identification numbers, passwords, PINs, user information, biometric, genetic, health-related records and billing, answers to security questions, or other personal identifiers.
- “Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
- “Prohibited Content” has the meaning set forth in Section 9.5.
- “Receiving Party” has the meaning set forth in Section 10.1.
- “Reimbursable Expenses” has the meaning set forth in Section 7.3.
- “Representatives” means, with respect to a party, that party’s and its affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and/or legal advisors.
- “Resultant Data” means information, data, and other content that is derived by or through the Services from the Processing of Your Data and is sufficiently different from Your Data that Your Data cannot be reverse-engineered or otherwise identified from the inspection, analysis, or further Processing of such information, data, or content.
- “Scheduled Downtime” has the meaning set forth in Section 5.2.
- “Security Concern” means any item, code, content, or use or access of the Services which could result in: (a) unauthorized access to the Services, (b) a security risk to the Services or any third party, (c) subjecting Us, our affiliates, our customers, or any third party to liability, or (d) a disruption of: (i) the Services, (ii) use and or access of the Services by Us, our customers, You, or third parties, and or (iii) Our network or servers used to provide the Services.
- “Service Software” means Our software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements, and modifications of the foregoing, that We provide remote access to and use of as part of the Services.
- “Specifications” means the specifications for the Services as may be set forth in the Documentation.
- “Subcontractor” has the meaning set forth in Section 3.5.
- “Support Services” has the meaning set forth in Section 5.7.
- “TCPA” means the Telephone Consumer Protection Act of 1991, as amended (47 C.F.R. §227), and its implementing regulations promulgated and administered by the Federal Communications Commission.
- “Term” refers to Your subscription period for Services, including any renewal periods.
- “TSR” means the Telemarketing Sales Rule contained in 16 Code of Federal Regulations Part 310 implemented and administered by the Federal Trade Commission.
- “Your Data” means, other than Resultant Data, information, data, and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from You or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data or content by or through the Services.
- “Your Failure” has the meaning set forth in Section 4.10.
- “Your Indemnitee” has the meaning set forth in Section 13.1.
- “Your Systems” means Your information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by You or through the use of third-party services.
- License Restrictions. You and the Authorized Users may use the Services and/or PDCflow Materials for Permitted Uses only. All other uses of the Services are prohibited. You will not, and will not permit any other Person to (or attempt to), access or use the Services and/or PDCflow Materials to:
- copy, modify, adapt, translate or create derivative works or improvements of the Services or PDCflow Materials;
- rent, lease, lend, sell, resell, license, sublicense, assign, give, distribute, publish, republish, transfer, or otherwise make available any part of the Services or PDCflow Materials to any Person, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service, unless expressly given permission to do so in writing by PDCflow;
- reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or PDCflow Materials, in whole or in part, except to the extent that applicable Law permits it despite these limitations;
- create internet “links” to the Services or “frame” or “mirror” any part of the Services on any other server or wireless or internet-based device, unless expressly given permission to do so in writing by PDCflow;
- bypass or breach any security device or protection used by the Services or PDCflow Materials or access or use the Services or PDCflow Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
- input, upload, transmit, or otherwise provide to or through the Services or PDCflow Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
- damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, PDCflow Systems or PDCflow’s provision of services to any third party, in whole or in part;
- remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or PDCflow Materials, including any copy thereof;
- access or use the Services or PDCflow Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
- access or use the Services or PDCflow Materials for purposes of (i) attempting to gain unauthorized access to the Services or the related systems and networks, (ii) building a competitive product or service, (iii) building a service or product using similar ideas, features, functions or graphics of the Services, or (iv) coping or making derivative works of any ideas, features, functions or graphics of the Services; or
- otherwise access or use the Services or PDCflow Materials for anything other than a Permitted Use and in accordance with applicable Law, including the TCPA and TSR.
3. ADDITIONAL USAGE LIMITATIONS AND CUSTOMER RESPONSIBILITIES
- PDCflow facilitates the execution of PDCflow transactions between the participating parties. PDCflow is not a party to any transaction processed through the PDCflow Services, and PDCflow makes no representation or warranty regarding the transactions sought to be effected by any Flow transaction;
- The Customer has exclusive control over and sole responsibility for the content, quality, and format of any Flow transaction, including the content of all messages sent to its customers using the Services, the selection of the recipients of those messages, the procurement from the recipient of all applicable required prior consents to send such messages (which consents must, among other things, satisfy all applicable requirements of the TCPA and TSR and be retained as set forth in Section 12.5), and the manner, time and means of delivery of such messages;
- PDCflow is not responsible or liable to determine whether any electronic signature acquired via the PDCflow Services is (i) subject to an exception to applicable electronic signature laws; (ii) subject to any particular agency promulgations; (iii) can be legally formed by electronic signatures (iv) or satisfies the requirements of any other applicable Law;
- PDCflow does not take any responsibility for determining how long any contracts, documents, and other records are required to be retained or stored under any applicable Laws, or legal or administrative agency processes;
- It is the Customer’s responsibility solely to utilize the Services in a manner that complies with all applicable consumer protection or similar Laws that may impose special requirements with respect to electronic transactions, including the TCPA and TSR.
4. Data Storage and Deletion
- File and Document Storage. During the active Term PDCflow will store files and documents that are the resulting artifacts of Flow transactions per these Terms. PDCflow may set and enforce limits for reasonable use. Files or Documents associated with uncompleted or expired PDCflow transaction requests may be deleted at the sole discretion of PDCflow.
- Termination of Service. PDCflow may delete an Account and Customer Data, including all associated files and documents, upon the expiration of the Term or termination for any acceptable reason defined in these Terms.
- Retention of Transactional Data. PDCflow may retain Transaction Data for as long as it has a business purpose to do so.
6. Changes. We may change or add features, tools, functionality, applications, software, application program interface (API), reports, and analytics (each a “Capability,” collectively, the “Capabilities”) available through the Services and/or install updates periodically. We reserve the right to change, discontinue, or deprecate Capabilities from time to time or to elect to discontinue the Services in their entirety. If we elect to discontinue the Services in their entirety, Your exclusive remedy will be a pro rata refund of all prepaid Fees. If we remove or discontinue a material Capability, You may (and Your exclusive remedy is the option to) request a cancellation of Your subscription for the applicable Service(s) provided that (a) Your request for cancellation is made within 30 days that the Capability was removed or discontinued, (b) the request identifies the specific Capability and states that the cancellation is due to a cancellation of such Capability, and (c) We fail to restore the Capability within 30 days of receipt of Your cancellation request. If the subject Capability is restored within the 30-day period, You may elect to continue use of the Services or to cancel Your subscription subject to the Early Termination Fee.
7. Subcontractors. We may from time to time in Our discretion engage third parties, including affiliated entities, to provide, or to assist in providing, the Services (each, a “Subcontractor”).
8. Suspension or Termination of Services.
4. Your Obligations.
- Transactional Responsibility.You may only use the Services for legitimate transactions with your customers. You are responsible for your relationship with your customers. PDCflow is not responsible for the products or services you publicize or sell, or that your customers purchase using the Services; or if you accept donations, for your communication to your customers of the intended use of such donations. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to your customers. PDCflow provides Services to you but We have no way of knowing if any particular transaction is accurate or complete, or typical for your business. You are responsible for knowing whether a transaction initiated by your customer is erroneous or suspicious. You are solely responsible for any losses you incur due to erroneous or fraudulent transactions in connection with your use of the Services.
- Accepting Payments Via Payment Cards. When accepting payment card payments, you must comply with all applicable Network Rules, including the Visa Rules and Regulations specified by Visa U.S.A., Inc. and Visa International (“Visa”), the Mastercard Rules specified by MasterCard International Incorporated (“Mastercard”), the American Express Merchant Operating Guide specified by American Express, and the Discover Network Rules (please contact Discover for a copy) specified by Discover Financial Services, LLC (“Discover”). Collectively, Visa, Mastercard, American Express and Discover are referred to in this Agreement as the “Networks”.
- Accepting Payments Via Automated Clearinghouse (ACH). The ACH network is controlled and managed by the National Automated Clearinghouse Association (NACHA) and its member organizations. Where submitting Charges over the ACH network, you are required to comply with the NACHA Operating Rules. NACHA may amend the NACHA Operating Rules at any time, and we may amend this Agreement or make changes to the Payment Processing Services as necessary to comply with the NACHA Operating Rules and You understand and accept your role as the Originator (as defined in the NACHA Operating Rules)..
- Disclosures to Your customers. When using the Services you agree to: (i) accurately communicate, and not misrepresent, the nature of the transaction, and the payment amount, when applicable, in the appropriate currency prior to submitting it to the API; (ii) provide an accurate receipt for each transaction to customers; (iii) provide Your customers a way to contact you to resolve any confusion or disputes;(iv) not use Services in a manner that is unfair or deceptive, exposes Your customers to unreasonable risks, or does not disclose material terms of a transaction in advance; and inform Your customers that, subject to in furtherance of the transaction that they have entered into with You, PDCflow will send them informational/transactional messages and related information at any telephone number that they have provided to you in connection with the transaction. You also agree to maintain and make available to your customers a fair and neutral return, refund, cancellation, or adjustment policy, and clearly explain the process by which Your customers can receive a refund. Our Services may include functionality that enables you to receive recurring or subscription payments from Your customers, and to issue invoices to your customers. You agree to comply with applicable Laws and payment method rules regarding recurring payments, including clearly informing Your customers in advance of submitting the initial payment that they will be charged on an ongoing basis and explaining the method for unsubscribing or cancelling their recurring billing or subscription.
- Compliance. You and the Authorized Users must adhere to all Laws applicable to You (and Your industry and business) and Your use of the Services, including, as applicable, debt collection, privacy, import, re-import, export, and re-export control Laws and the provisions of the TCPA (and its consent requirements as set forth in Section 12.5), the TSR, and all other applicable federal and state laws and regulations governing consumer contacts and notifications.
- Maintenance. When feasible, upgrades, patches, bug fixes or other maintenance to the Services will be scheduled for and completed during Scheduled Downtime (as defined below). You agree to collaborate and make reasonable accommodations for all maintenance to the Services, regardless whether scheduled in advance or completed on an emergency basis.
5. Service Levels.
- Scheduled Downtime. We will use commercially reasonable efforts to (a) schedule downtime for routine maintenance of the Services in advance; and (b) give You at least 24 hours’ prior notice of all scheduled outages of the Services (“Scheduled Downtime”).
- Service Support. Support is offered via email and telephone during Our regular business hours of 8:00 AM - 5:00 PM MST.
- PDCflow Systems and Security Obligations. We will employ appropriate security measures in accordance with applicable industry practice including, where applicable, obtaining PCI DSS level 1, Statement on Standards for Attestation Engagements (SSAE) No. 18 reports for Reporting on Controls at a Service Organization, Service Organization Controls (SOC) 2 reports, and establishing and implementing appropriate security measures for the Protected Health Information (as defined under the HIPAA rules) that We may receive, create, maintain, use, or disclose in connection with the Services.
- Your Control and Responsibility. You have and will retain sole responsibility for: (a) all Your Data, including its content and use; (b) all information, instructions, and materials provided by or on Your behalf or any Authorized User in connection with the Services; (c) Your Systems; (d) the security and use of Your and Your Authorized Users’ Access Credentials; and (e) all access to and use of the Services and PDCflow Materials directly or indirectly by or through the Systems or Your or Your Authorized Users’ Access Credentials, with or without Your knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
- Access and Security. You will employ all physical safeguards, administrative procedures, and technical controls, screening, and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; (b) control the content and use of Your Data, including the uploading or other provision of Your Data for Processing by the Services; and (c) comply with all applicable Laws.
7. Fees; Payment Terms.
- Fees. You will pay Us all Fees for (a) the Services that You use pursuant to Your applicable Sales Order, and (b) pay-per-use Services, based on the applicable Fees and actual usage by You and each Authorized User. We may require that all Fees be paid by credit or debit card, or by ACH electronic transfer of funds. Failure by You to comply with any such requirement will be grounds for the immediate suspension or termination of the Services.
- Fee Increases. We may increase Fees at any time. We will provide you written notice of any Fee increases.
- Reimbursable Expenses. You will reimburse Us for out-of-pocket expenses incurred by Us that are either pre-approved by You or incurred by Us at your request (“Reimbursable Expenses”). This includes time and materials for any audit requests made by You, beyond providing You our relevant compliance documents.
- Payment. All Fees and Reimbursable Expenses are due upon receipt of the invoice.
- Late Payment. If You fail to make any payment when due then, in addition to all other remedies that may be available:
- We may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
- You will reimburse Us for all reasonable costs incurred by Us in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees;
- if such failure continues for 10 days following notification thereof, We may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to You or any other Person by reason of such suspension, and You acknowledge that You will remain responsible for all Fees and charges You incur during any such suspension; and
- We may, at Our election, delete Your Data or alter the storage and maintenance of Your Data.
- No Refunds. All sales and services are final, and all Fees are fully earned upon payment. PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED SUBSCRIPTION PERIODS. Refunds, if any, are at Our sole discretion, and at Our option may be in the form of credit for Services. Nothing in these Terms or Use obligates Us to extend refunds or credit to any party.
8. Suspensions and Removals.
- Emergency Suspension. If a Security Concern exists in Our reasonable opinion, We may immediately suspend any or all Authorized User’s access to the Services, and may also remove, as applicable, the offending item, code, content (including Your Data) until the Security Concern is resolved in Our reasonable discretion.
9. Intellectual Property Rights.
- CCPA Service Provider. If We process any of Your customer data that includes Personal Information that is subject to the California Consumer Privacy Act of 2018 (“CCPA”), You acknowledge and agree that We are a “Service Provider” as defined in the CCPA. If and when We process Personal Information that is subject to the CCPA (“CCPA Personal Information”) for You or on Your behalf, We agree to not: (a) sell CCPA Personal Information; (b) retain, use, or disclose CCPA Personal Information for any purpose other than for the specific purpose of performing the Services (and the creation of Resultant Data), including retaining, using, or disclosing CCPA Personal Information for a commercial purpose other than providing the Services; and (c) retain, use, or disclose CCPA Personal Information outside of the direct business relationship between You and Us.
- Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party will:
- safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
- ensure its Representatives’ compliance with, and will be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section.
- Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10.3 (Protection of Confidential Information); and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
11. Term and Termination.
- Term. You may use the Services for the period set forth in the Sales Order, commencing on the Effective Date unless We agree in writing to an earlier or later date, and absent a written notice of non-renewal from You or Us at least 15 days prior to the expiration of the original term or any renewal term, the Term will renew automatically for additional periods matching the period in the applicable Sales Order.
- Upon written request from You, We will (i) promptly return to You, or at Your written request destroy, all documents and tangible materials containing Your Confidential Information; and (ii) permanently erase all Your Data and Your Confidential Information from all systems We directly or indirectly control;
- You will immediately cease all use of any Services and PDCflow Materials and (i) promptly return to Us, or at Our written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any PDCflow Materials or Our Confidential Information; and (ii) permanently erase all PDCflow Materials and Our Confidential Information from all systems You directly or indirectly control;
- We may disable all of Your access and Your Authorized Users’ access to the Services and PDCflow Materials;
- You will pay all Fees accrued up to the date of termination; including any costs or other Reimbursable Expenses due hereunder; and
12. Representations and Warranties.
- No Representations or Warranties Regarding Legal Matters. All information regarding Laws and legal forms found, available or referenced in the Services are provided for convenience only as a reference point and are provided “as is” without any representation or warranty regarding their accuracy, completeness, currency or applicability. All such information and legal forms do not and may not be deemed legal advice. You agree to consult Your legal counsel regarding all compliance and other legal matters and to not rely on any information or forms provided by Us.
- Receipt of Messages - You may elect to receive authentication, notification and/or Flow delivery messages by text (“SMS Messages”) at the mobile number you provide as part of your use of the PDCflow Services. You represent that you are the subscriber of the mobile service at the mobile number provided, or that you are otherwise authorized by the subscriber to receive SMS Messages at such mobile number as part of your use of the PDCflow Services. By electing to receive and send SMS Messages, you acknowledge that message and data rates may apply under your agreement with your provider of mobile communication services. You further understand and acknowledge that your Mobile Service Provider’s network services are outside of PDCflow’s control and we are not responsible or liable for any issues arising therefrom. PDCflow will not be liable for any of the following: a) failure of delivery of any content via SMS Message; b) any delays in transmission of SMS Messages; or c) any service or other changes implemented by your provider of mobile communication services impacting the receipt or sending of SMS Messages as part of your use of the PDCflow Services.
- TCPA and TSR - You expressly represent and warrant with respect to Your and all Authorized User use of the Services and compliance with the TCPA and TSR that:
(a) You and all Authorized Users will use the Services in full compliance with the terms, conditions, and requirements of the TCPA and, where applicable, the TSR, including the requirements to obtain prior express consent for non-marketing informational/transactional messages or, in the case of any marketing or promotional messages, prior express written consent, before sending any messages to wireless phones using automated dialing or texting technologies and/or artificial or prerecorded voice messages.
(b) You and all Authorized Users are familiar with the applicable TCPA and TSR regulations and standards, particularly relating to obtaining any required prior express consent and that, if applicable, each and every prior express written consent obtained will comply in all respects the requirements related to the display, form and content of the consent process required under the TCPA and TSR or any other Laws (whether state or federal) related to the granting of consent (or such analogous acts).
(c) Specifically, such prior express written consent shall, in accordance with 47 C.F.R. § 64.1200(f), be an agreement, in writing, bearing the signature of the person called that clearly authorizes the You, or those acting on your behalf, to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered. The agreement shall include a clear and conspicuous disclosure informing the person signing that (i) by executing the agreement, such person authorizes the You to deliver or cause to be delivered to the signatory telemarketing calls, including texts, using an automatic telephone dialing system or an artificial or prerecorded voice and (ii) the person is not required to sign the agreement, directly or indirectly, or agree to enter into such an agreement as a condition of purchasing any property, goods or services. The term “signature” shall include an electronic or digital form of signature, to the extent that such form of signature is recognized as a valid signature under applicable federal or state contract law.
(d) You and all Authorized Users will ensure that a record of each and every such prior express consent or express written consent obtained is stored and retained, for a period of 4 years, in a form, format and location that is secure and accessible so that evidence of such consent can be provided to PDCflow upon request by PDCflow.
(e) In the event that any contacted party opts out of receipt of further messages that require consent, You will obtain renewed consent, in the form required by subsection (b) and (c) above, before recontacting that person.
(f) You and all Authorized Users will ensure that an internal Do Not Call (“DNC”) policy is implemented in accordance with TCPA implementing regulations prior to using the Services. You and all Authorized Users will ensure that residential numbers on the national DNC are not contacted without required express consent, a business relationship or an inquiry as permitted under Law.
- access to or use of the Services or PDCflow Materials in combination with any hardware, system, software, network, or other materials or service not provided or authorized in the Specifications or otherwise in writing by Us;
- failure to timely implement any modifications, upgrades, replacements, or enhancements made available to You by or on behalf of Us; or
- Your act, omission, or other matter, whether or not the same results in any Action against or Losses by any PDCflow Indemnitee.
- Your Indemnification Obligations. You will indemnify, defend, and hold harmless Us and Our Subcontractors and affiliates, and each of Our and their respective officers, directors, employees, agents, successors, and assigns (each, a “PDCflow Indemnitee”) from and against any and all Losses incurred by such PDCflow Indemnitee in connection with any Action by a third party (other than an affiliate of a PDCflow Indemnitee) that arises out of or relates to any:
- any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on Your behalf or any Authorized User, including Our compliance with any specifications or directions provided by or on Your behalf or any Authorized User;
- Your or any Authorized Users’ violation of or failure to comply with the requirements of Sections 4.4 and 12.5 herein and any applicable Law, including the TCPA or the TSR (including, without limitation any claim that, as a result of any PDCflow Indemnitee provision of the Services or Your use thereof, any PDCflow Indemnitee in any way violated the TCPA, TSR or any related law, rule or regulation).
4. Mitigation. If any of the Services or PDCflow Materials are, or in Our opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Your or any Authorized User’s use of the Services or PDCflow Materials is enjoined or threatened to be enjoined, We may, at Our option and sole cost and expense:
- by written notice to You, terminate Your use of the Services and PDCflow Materials or any specified part or feature thereof.
5. THIS SECTION SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR THE PDCFLOW MATERIALS INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
14. Limitations of Liability.
15. Force Majeure.
- Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party will give prompt written notice to the other party stating the period of time the occurrence is expected to continue and will use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
- Optional Termination by Us. We may terminate the Services if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more. If We so elect to terminate the Services, You will be entitled to a pro rata refund of all prepaid Fees.
- Alternative Dispute Resolution. Any controversy or claim greater than $15,000 arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (https://www.adr.org) in accordance with its Commercial Arbitration Rules, and judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any oral hearing procedures required for arbitration will take place in Ogden, Utah. Any controversy or claim less than $15,000 arising out of or in relation to this contract, or the breach thereof, shall be settled in small claims court in Ogden, Utah. Excepted to the above, is immediate temporary or permanent injunctive relief.
- Class Action Waiver. We and You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
- Time Limitation. Any claim against Us must be filed within 1 year that You first knew of (or with reasonable inquiry, could have discovered) the act or omission that gave rise to Your claim.
- Equitable Relief. You acknowledge and agree that a breach or threatened breach by You or Your Authorized Users of any of Your obligations under Sections 3.2 (License Restrictions),4 (Your Obligations),or 10 (Confidentiality), would cause Us immediate and irreparable harm for which monetary damages would not be an adequate remedy, and You agree that, in the event of such breach or threatened breach, We will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
- Confidentiality. Except as may be required by law, no party or witness to any arbitration under this Agreement shall disclose the existence, content or outcome of that arbitration without the prior written consent of all parties to the arbitration.
- In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, incidental, indirect or consequential damages, except where required by federal or Utah statute.
- Arbitration Award. Any award in arbitration initiated under this section shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. The award of the arbitrators shall be accompanied by a reasoned opinion. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party shall be required to present evidence and legal argument as the arbitrator may require for the making of an award.