Zipwhip Terms of Service

REVISED AND POSTED:

EFFECTIVE December 1, 2021

PRIOR VERSIONS: Terms 2019, Terms July 8, 2021

By email notice sent in either October or November, 2021, Zipwhip has notified customers that we will be deprecating the Zipwhip software product.

Unless you have received other notifications from us, notwithstanding anything to the contrary in these Terms, below are key changes to our Terms:

  • End of Account Changes: April 30, 2022: After this date, customers will no longer be able to make most changes to their accounts, including purchasing upgrades and requesting downgrades.
  • End of Product Functionality: December 1, 2022: After this date, Zipwhip’s software product will no longer be available on any apps, including desktop and mobile, and web integrations will cease to function at this time.
  • Month-to-Month Service Plans: At the expiration of your current Subscription Term, the only Service Plan available for auto renewal will be a month-to-month Subscription Term. As defined in Section 14 of the Terms and Your Order Form, any annual or multi-term Order Form that renews on or after December 1, 2021 will be amended to a month-to-month Subscription Term. This month-to-month Subscription Term may not be auto-renewed after November 1, 2022.
  • Notice of Cancellation: If you do not agree to a month-to-month Subscription Term following the expiration of your current Subscription Term, please notify us at notice@zipwhip.com to cancel your contract in accordance with Section 14.3 of the Terms.
Zipwhip, LLC. and its affiliates (“Zipwhip” or “we”) offer cloud-based software services that enable landline and VOIP telephone numbers to send and receive text messages, as well as application program interfaces, mobile applications, downloadable web software applications and related products and services (altogether, our “Services”). Zipwhip provides its Services subject to these Terms of Service (“Terms”).

For our Services:

  • you are our “Customer” if you are the legal or natural person that orders our Services.
  • you are an “Authorized User” if you are an employee, consultant, contractor, agent or other representative authorized by Customer to access and use our Services under our agreement with our Customer. If you are Customer and a natural person (and not a representative of our Customer who or that is a legal entity), then you also are an Authorized User.
  • an “End User” receives text messages through the Services from Customer but does not have a direct contractual relationship with Zipwhip.
When used in these Terms, “you” (and variants) means the Customer or Authorized User that uses the Services.

BY SIGNING AN ORDER FORM OR BY CLICKING “CONFIRM” OR OTHERWISE ELECTRONICALLY AGREEING TO THESE TERMS, YOU AFFIRM TO ZIPWHIP THAT:

IF YOU USE THE SERVICES OR AGREE TO THESE TERMS ON BEHALF OF A LEGAL ENTITY, THEN YOU REPRESENT TO ZIPWHIP THAT YOU HAVE THE AUTHORITY TO BIND THAT LEGAL ENTITY TO THESE TERMS.

IF YOU DO NOT AGREE TO THESE TERMS OR DO NOT HAVE THE AUTHORITY TO AGREE TO THESE TERMS, THEN YOU ARE NOT AUTHORIZED TO USE THE SERVICES.

IMPORTANT NOTE: These Terms contain provisions that limit our liability to you and require you to resolve any dispute with us through arbitration on an individual basis and not as part of any class or representative action. Please see “Agreement to Arbitrate.” (Section 23) and “Waiver of Class or Consolidated Actions” below for more information. BY ACCEPTING THESE TERMS, YOU AGREE TO BE BOUND BY THIS AGREEMENT TO ARBITRATE AND CLASS ACTION WAIVER.

  1. Defined Terms.

For your convenience, many of the capitalized terms that we use in these Terms are defined in this Section 1:

Acceptable Use Policy means Zipwhip’s requirements for using the Services, available at zipwhip.com/acceptable-use-policy, which include guidelines set by telecommunication carriers and industry operators, as updated from time to time.

Beta Services means new functionality or components of the Services made available from time to time for a Customer to try that are clearly identified as ‘beta’, ‘pilot’, ‘preview’, ‘evaluation’ or similar designation. Without limiting the foregoing, Beta Services may include code snippets that Zipwhip may elect to provide to a Customer for Customer’s evaluation and testing purposes in connection with enhancing the interoperability of the Services with Customer’s platform.

Confidential Information means all information disclosed by or on behalf of Zipwhip to Customer or an Authorized User (and vice versa), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

CTIA Guidelines means the Messaging Principles and Best Practices published by the CTIA, as amended from time to time, available at https://api.ctia.org/wp-content/uploads/2019/07/190719-CTIA-Messaging-Principles-and-Best-Practices-FINAL.pdf.

Customer Application means any software developed by Customer to interact with the Services.

Customer Data means data in any form or medium that are transmitted to or through the Services or otherwise made available by Customer, Authorized Users or End Users in connection with the Services, including Messages but excluding Usage Data.

Customer Marks means Customer's proprietary trademarks, trade names, branding or logos, whether or not registered.

Documentation means all manuals, instructions or other documents or materials that Zipwhip provides or makes available to Customer in any form or medium and that describe the functionality, components, features or requirements of the Services, as updated from time to time.

Feedback means ideas, suggestions, documents, proposals or other feedback about the Services submitted to Zipwhip by Customer or an Authorized User or End User.

Fees means the fees due to Zipwhip for use of the Services that are specified in an Order Form.

Free Trial means testing, trial and other evaluative (but not developmental or productive) use of the Services solely for the purpose of Customer's evaluation of the Services prior to commitment to the Initial Subscription Term.

“Inappropriate Content” means Customer Data that (i) violates applicable law, (ii) is an unsolicited Message, such as Messages that are spam, “phishing” and other unsolicited commercial Messages (iii) likely or intended to deceive the recipient, (iv) is abusive, harmful, deceptive, fraudulent, misleading, malicious, harassing, threatening, discriminatory, bullying, excessively profane, obscene, defamatory, libelous, promotes or glamorizes alcohol abuse, illegal drug use or use of tobacco products, incites harm or violence, is intended to intimidate, cause safety concerns; (v) includes Malicious Code; (vi) violates any authoritative industry guideline (including the CTIA Guidelines) or any of the telecommunications carrier requirements, conditions or codes of practice, including the requirements and guidelines described in of these Terms.

Integration Partner means a third party that provides software that is integrated with the Services pursuant to a written agreement between that third party and Zipwhip.

Integration Partner Services mean an Integration Partner’s software and related services that Customer orders on an Order Form or otherwise obtains directly from an Integration Partner.

Malicious Code means any virus, Trojan horse, worm, back door, trap door, time bomb, drop-dead device, timer, clock, counter or other limiting routine, as well as other software or hardware designed to disable, erase or otherwise harm software, hardware or data stored in electronic form.

Master Service Agreement means the agreement by and between Zipwhip and certain customers.

Message means any message sent through a multi-media messaging service (MMS) or short message service (SMS).

Order Form means an offline or online ordering form specifying the Services to be provided pursuant to these Terms that is agreed by and between Customer and Zipwhip, including supplements thereto.

Service Plan means the bundle of Services made available by Zipwhip and selected by its Customers.

Subscription Term has the meaning given in Section 14.

Territory means the U.S. and Canada.

Third-Party Materials means technology and services provided by a third party that interoperate with or otherwise support the Services, such as spam filtering, security and hosting service providers.

Usage Data means data related to Customer's use of the Services that is used by Zipwhip to compile statistical and performance information related to the provision, operation and improvement of the Services and to detect and prevent fraud.

Zipwhip API means Zipwhip’s messaging application program interfaces (APIs) and associated Documentation. For purposes of these Terms, the Zipwhip API is part of the Services unless otherwise indicated.

Zipwhip Business Directory means the list of Customers displayed to certain telecommunication providers to assist them with fraud detection and prevention and also used by Zipwhip to authenticate Customers.

Zipwhip Marks means Zipwhip's proprietary trademarks, trade names, branding or logos, whether or not registered.

  1. How these Terms Apply.

These Terms apply to access to and use of the Services. Unless otherwise indicated, these Terms also apply to Beta Services and Free Trials.

A Master Service Agreement may contain terms that apply to Customer and its Authorized Users that are different from these Terms, in which case the Master Service Agreement applies instead of these Terms.

Certain Services, such as the Zipwhip APIs, Zipwhip Community Hub (https://zipwhip.influitive.com/users/sign_up?join-code=t_c) or the Zipwhip Business Directory, may require that you agree to additional terms (“Supplemental Terms”). If any of these Terms conflict with the Supplemental Terms, then the Supplemental Terms will control with respect to the Services to which the Supplemental Terms relate.

  1. Changes to these Terms.
You acknowledge and agree that Zipwhip has the right to modify these Terms from time to time to reflect changes to the Services, industry requirements or applicable law. Zipwhip will notify Customers at least ten (10) business days in advance of material modifications to these Terms that reduce legal rights. Zipwhip will send notifications of material modifications by email using the email addresses associated with Customer’s account and through a notice posted in the Services. For non-material modifications, Zipwhip will notify Customers and Authorized Users by posting a notice in the Services. Continued use of the Services after the end of the notice period specified in the notification is deemed conclusive acceptance of the Terms as modified. Customer acknowledges and agrees that changes to applicable law and changes required by telecommunications providers may prevent Zipwhip from providing advance notification.
  1. Changes to Our Services.
We are always looking to innovate and make the Services better. As a result, Zipwhip may from time to time update the Services, including enhancements, modifications, upgrades and other changes to the existing features and operability of the Services (collectively, “Changes”). Whenever possible, Zipwhip will provide Customer with reasonable, advance notice (which may include notice by way of website posting or within the Services portal) of material Changes to enable Customer to prepare for the Changes. Customer acknowledges and agrees that Changes made to comply with applicable law and Changes required by telecommunications providers may not allow Zipwhip to provide advance notice of Changes.

Certain modifications that add material new features or functionality to the Services (collectively “Enhancements”) may be made available to Customers at Zipwhip’s discretion upon amendment to a Customer’s Service Plan and the payment of additional Fees, if any. Zipwhip may elect to deprecate certain functionality or features within the Services upon notice posted on the Zipwhip website or as part of the Services portal. Zipwhip will provide at least one hundred and eighty (180) days advance notice of deprecation of any material function (and any related support) within the Services by way of website posting or within the Services portal.

Customer is responsible for notifying Authorized Users and End Users about Changes that affect them.

  1. Accounts and Service Plans.
Certain Services require that each Authorized User create an account. To create an account, the Authorized User must (i) choose a username and password (“Account Credentials”); (ii) provide true, accurate, current and complete information and maintain that information as accurate, current and complete; and (iii) use appropriate safeguards to maintain the confidentiality and security of Account Credentials. Zipwhip may, in its sole discretion, suspend or terminate Account Credentials and access to the Services if account information is inaccurate, out of date or incomplete (or if Zipwhip reasonably believes it is).

Every Customer must choose a Service Plan as part of the account creation process. A Service Plan may require designation of an Authorized User who controls the account (“Admin User”). Depending on the Service Plan, the Admin User may create accounts for the number of Authorized Users specified in the Order Form. The total number of Authorized Users must not exceed the number set forth in the Order Form, except as expressly agreed in an amendment to the applicable Order Form and subject to an appropriate adjustment of the Fees.

  1. Use of the Services.
Subject to and conditioned on compliance with these Terms by Customer and Authorized Users, Zipwhip hereby grants the following a limited, revocable, non-exclusive, non-transferable rights during the Subscription Term: (i) to use the Services to send to and receive Messages from Customer’s End Users in the Territory; (ii) to develop Customer Applications that communicate and interoperate with the Services; and (iii) to access and use the Services and Documentation solely for Customer's own business purposes in connection with its use of the Services. Zipwhip reserves all rights that are not expressly granted in these Terms. Zipwhip makes the Services available in compliance with laws applicable to Zipwhip and not necessarily in compliance with laws applicable to Customer’s specific use of the Services.

A Customer using the Zipwhip API must obtain an API key to use and access the Zipwhip API. Customer may not share its API key with any third party, must keep the API key secure and must use the API key as the sole means of accessing the Zipwhip API. Customer may access and use the Zipwhip API solely for the purpose of accessing the Services. Zipwhip may limit: (i) the number of network calls that Customer may make via the Zipwhip API; (ii) the maximum file size; and (iii) the maximum content that may be accessed or anything else about the Zipwhip API and the content it accesses that Zipwhip deems appropriate, in Zipwhip’s sole discretion. Zipwhip may impose or modify these limitations with or without notice, may use technical measures to prevent over-usage or stop usage of the Zipwhip API after usage limitations are exceeded or may suspend access to the Zipwhip API with or without notice to Customer if usage limitations are exceeded.

The Services may include software offered under an open source license with use requirements that supplement these Terms.

  1. Customer Responsibilities.
Customer is solely responsible for:
  • Compliance with these Terms and the Acceptable Use Policy, including use of the Services and decisions and actions based on use of the Services by Authorized Users and End Users;
  • Compliance with all applicable laws, regulations and written telecommunications provider (e.g., carrier) rules and industry standards related to Customer’s use of the Services, such as obtaining all necessary consent, honoring all opt-out requests from End Users with respect to sending and receiving Messages and the quality, integrity and lawfulness of all Customer Data;
  • The security and use of Access Credentials associated with Customer and Authorized Users and all activities that occur through those Account Credentials. Zipwhip is not responsible for loss or damages arising from unauthorized use of Account Credentials unless such loss or damage arises directly from Zipwhip’s gross negligence or willful misconduct. (Please immediately notify Zipwhip at support@zipwhip.com if unauthorized activity is suspected or detected.);
  • Issues arising from or related to changing telecommunication providers, such as lost or undelivered Messages. Porting your voice service from one carrier to another may break your texting service and Zipwhip has no control over this. You will remain responsible for all charges associated with your account notwithstanding a break in the texting service as a result of your change of carriers. (Please notify Zipwhip at support@zipwhip.com of any change in your texting service);
  • Use of reasonable and appropriate administrative, physical and technical safeguards to protect against unauthorized access to or use of the Services;
  • Reasonably cooperating with Zipwhip’s investigation of Inappropriate Content or Customer Data that Zipwhip believes violates law or these Terms;
  • The information technology infrastructure through which Customer accesses and uses the Services, including hardware and other equipment, software, networks and internet connectivity (and associated fees), whether operated directly by Customer or through the use of third-party services ("Customer Systems") and Customer Applications, all access to and use of the Services directly or indirectly through the Customer Systems, whether or not authorized and the operation, maintenance and management of the Customer Systems; and
  • For creating backup copies of Customer Data at Customer’s sole cost and expense. Except as otherwise agreed in writing, Zipwhip may periodically delete Customer Data. Zipwhip has no responsibility or liability for damages, losses or other consequences arising from or related to Zipwhip’s deletion of Customer Data.
  1. Use Conditions.
You understand and agree that:
  • Certain Services may enable you to specify the level at which such Services restrict access to Customer Data. You are solely responsible for applying the appropriate level of access to Customer Data. If you do not choose, the system may default to its most permissive setting.
  • If Customer purchases Integration Partner Services, Zipwhip may disclose Customer Data to the Integration Partner. Your use of Services may require specific configurations to function with Integration Partner Services or other features of the Services (“Configurations”) and Zipwhip will provide the requirements of Configurations to Customer at the time of account creation. Zipwhip reserves the right to change or remove Configurations if Zipwhip suspects or detects unauthorized use of the Services. if a Configuration includes Integration Partner Services, Integration Partner may have access to your account for purposes of enabling the Configuration.
  • You are solely responsible for any fees, including internet connection or mobile fees, that you incur when accessing Services. We are not responsible for service failures due to network outages.
  • In the event that Zipwhip provides you with a phone number in connection with your use of the Services, you understand and agree that (1) Zipwhip retains exclusive rights to such phone number and (2) you are expressly prohibited from porting the phone number in any manner.
  • Zipwhip has the right but no obligation to access and screen Messages and reserves the right in its sole discretion to screen, reject, not transmit or remove from the Services Messages. Zipwhip may filter or block traffic or immediately suspend use of the Services
    • If Zipwhip discovers Inappropriate Content or Messages that is (or could in Zipwhip’s good-faith judgment reasonably become) the subject of any legal, regulatory or other governmental proceeding or process, including any law enforcement demand, process or investigation;
    • To protect End Users;
    • If Zipwhip or a telecommunications carrier learns of End User complaints or opt-out requests that Customer did not honor;
    • To address actual or suspected fraud, security or similar urgent concerns in the discretion of Zipwhip or at the direction of any telecommunications provider.
  • Customer Data submitted through the Services may be transmitted via unencrypted methods over various third party networks. You have no expectation of privacy concerning the transmission of Customer Data.
  • Zipwhip may disclose Customer Data, including the content of communications stored on our systems, if (i) Zipwhip believes that disclosure is reasonably necessary to comply with any law or a request from a government regulator or telecommunications provider that Zipwhip believes in good faith is lawful, (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our Services, (iv) to protect ourselves, our other customers or the public from harm or illegal activities, or (v) to respond to an emergency that Zipwhip believes in good faith requires us to disclose Customer Data to assist in preventing a death or serious bodily injury.
  • Zipwhip may impose reasonable limits on storage of Customer Data, such as limits on file size, storage space, processing capacity and similar limits.
For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as these Terms expressly permit:
  • copy, modify, frame, mirror or create derivative works or improvements of the Services;
  • rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
  • reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
  • bypass or breach any security device or protection used by the Services or access or use the Services 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, any information or materials that are unlawful or injurious or contain, transmit or activate any virus, worm, malware or other malicious computer code;
  • damage, destroy, disrupt, disable, impair or otherwise impede or harm in any manner the Services or Zipwhip’s provision of services, in whole or in part;
  • remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notice from any of the Services or Third-Party Materials, including any copy thereof;
  • access or use the Services or Third-Party Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other customer) or that violates any applicable law;
  • permit use of the Services to transmit Inappropriate Content or Malicious Code;
  • access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing product or service or any other purpose that is to Zipwhip’s detriment or commercial disadvantage; or
  • otherwise access or use the Services beyond the scope of the authorization expressly granted under these Terms.
The Services are not designed, intended, authorized or warranted to be suitable for use in the following: life support applications, devices or systems; the operation of nuclear facilities; aircraft navigation systems; aircraft communication systems; air traffic control; direct life support machines; weapons systems; military or space equipment requiring radiation hardened components; and Enhanced 911 or the E911 emergency calling system (“Prohibited Uses”).

YOU UNDERSTAND AND AGREE THAT YOU WILL NOT USE THE SERVICES FOR ANY OF THE PROHIBITED USES.

  1. Intellectual Property Rights.
9.1       As between Customer and Zipwhip, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, Customer Applications and the Customer System, including all intellectual property rights relating thereto. Customer hereby irrevocably grants to Zipwhip all rights and permissions in or relating to Customer Data as Zipwhip determines necessary or useful to perform the Services, enforce these Terms or otherwise exercise Zipwhip's rights and perform Zipwhip's obligations. Customer expressly acknowledges that Customer Data excludes Usage Data

9.2       As between Customer and Zipwhip, Zipwhip is and will remain the sole and exclusive owner of all right, title and interest in and to the Services, including all intellectual property rights therein but excluding Customer Data, Customer Applications and the Customer System. In furtherance of the foregoing, Customer and each Authorized User hereby unconditionally and irrevocably grant to Zipwhip all their respective rights, title and interests (if any) in and to Usage Data.

9.3       You hereby grant to Zipwhip a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sub-licensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of and otherwise exploit in any manner all Feedback. You also acknowledge and agree that Zipwhip may publish your Feedback on its website.

9.4       With respect to Third-Party Materials, the applicable third-party providers own all right, title and interest, including all intellectual property rights, in and to Third-Party Materials. Customer has no right, license or authorization with respect to Third-Party Materials except as expressly set forth in the applicable third-party license. All other rights in and to the Third-Party Materials are expressly reserved by the applicable third-party licensor.

9.5       Subject to these Terms, Zipwhip and Customer each grant the other the right to use and display each other’s name and logos (the “Marks”) in promotional materials (including websites) solely in connection with the Services and in accordance with relevant written usage guidelines. Depending on then current and available features of the Services, Zipwhip may use Customer’s business logo for the purpose of identifying Customer in text messages sent by Customer and its Authorized Users, including for security and fraud prevention purposes and the Zipwhip Business Directory. All such use will inure to the benefit of the Marks’ owner. Zipwhip and Customer each agree not to use, register or take other action with respect to the other’s Marks unless expressly agreed in writing. In using the Marks, Zipwhip and Customer agree to use the then-current Marks and not add to, delete from or modify the Marks or misrepresent the relationship between Zipwhip and Customer.

  1. Accessing and Download Applications.

In order to use Zipwhip’s mobile application, you must have access to a wireless network, and you agree to pay all fees associated with such access.

10.1       App Store. If you access and download Zipwhip’s mobile application from Apple’s App Store, you acknowledge and agree that the Terms are concluded between you and Zipwhip only, and not Apple. Zipwhip, not Apple, is solely responsible for Zipwhip’s mobile application and content thereof. Your use of Zipwhip’s mobile application must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to Zipwhip’s mobile application. If Zipwhip’s mobile application fails to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price for Zipwhip’s mobile application to you and, to the maximum extent permitted by law, Apple will have no other warranty obligation whatsoever with respect to Zipwhip’s mobile application. As between Zipwhip and Apple, all other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Zipwhip. You acknowledge that, as between Zipwhip and Apple, Apple is not responsible for addressing any claim you have or any claim of any third party relating to Zipwhip’s mobile application or your possession and use of Zipwhip’s mobile application, including but not limited to: (i) product liability claims; (ii) any claim that Zipwhip’s mobile application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge that, in the event of any third-party claim that Zipwhip’s mobile application or your possession and use of Zipwhip’s mobile application infringes a third party’s intellectual property rights, as between Zipwhip and Apple, Zipwhip, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Zipwhip acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms as related to your license of Zipwhip’s mobile application and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of Zipwhip’s mobile application against you as a third-party beneficiary thereof. Without limiting any other terms of these Terms, you must comply with all applicable third-party terms when using Zipwhip’s mobile application.

10.2       Other App Platforms. You acknowledge and agree that the availability of Zipwhip’s mobile application downloadable via Google Play or another platform or online store (“App Platform”) as part of the Services is dependent on the terms of the App Platform from which you received Zipwhip’s mobile application. Zipwhip, not the App Platform, is solely responsible for Zipwhip’s mobile application and its content, maintenance, support services and warranty therefor, and for addressing any claim relating thereto (e.g., product liability, legal compliance or intellectual property infringement). You also agree to pay all fees (if any) charged by the App Platform in connection with Zipwhip’s mobile application. You agree to comply with, and your license to use Zipwhip’s mobile application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Platform’s terms and policies) when using the Services, including Zipwhip’s mobile application. You acknowledge that the App Platform (and its subsidiaries) are third-party beneficiaries of these Terms and will have the right to enforce these Terms as related to your license of Zipwhip’s mobile application against you as a third-party beneficiary thereof.

  1. Free Trials and Beta Services.

11.1     Free Trials. If indicated as part of the Order Form or web-based electronic submission application process, a Customer may have trial access to the Service for a specified Free Trial period. You may cancel your use of the Services at any time during the Free Trial period. At the end of the Free Trial period, your subscription will automatically continue on a paid subscription basis for the Initial Subscription Term, subject to Fees, unless you take action to cancel the subscription prior to the expiration of the Free Trial period.

Zipwhip may require Customer to provide a valid credit card prior to the beginning of the Free Trial. At the end of the Free Trial, if Customer did not previously cancel, Customer’s credit card is charged the Fees as stated in the Order Form.

If you have used Zipwhip’s web-based electronic submission application process for signing up for your Free Trial you may cancel at any time prior to the expiration of the Free Trial period within the application. Please login to the Zipwhip Admin console and cancel using the in-app cancellation process.

For Customers that have signed an Order Form that wish to cancel during the Free Trial period, please send an email before your Free Trial expires to notice@zipwhip.com. Please use the subject line “Free Trial Cancellation” and add your telephone number (in xxx-xxx-xxxx format) in the body of email.

11.2     Beta Services. Customer may access and use Beta Services solely for testing, demonstration, trial and other evaluative (but not any developmental or productive) purposes, including to assess the Beta Services’ compatibility with the Customer System, Customer Application or business needs. Customer agrees to provide Feedback about the Beta Services as reasonably requested by Zipwhip. Zipwhip reserves the right to modify Beta Services without notice until Beta Services are deemed part of the Services and to decide not to make Beta Services part of the Services. These Terms govern Free Trials and Beta Services unless otherwise stated.

11.3     WAIVERS AND DISCLAIMERS RELATED TO FREE TRIALS AND BETA SERVICES. NOTWITHSTANDING THE WARRANTIES AND DISCLAIMERS, INDEMNIFICATION AND LIMITATIONS OF LIABILITY SECTIONS IN THESE TERMS, SERVICES MADE AVAILABLE DURING A FREE TRIAL OR WITH RESPECT TO BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND AND ZIPWHIP SHALL HAVE NO INDEMNIFICATION OBLIGATIONS OR LIABILITY OF ANY KIND ARISING FROM USE OF A FREE TRIAL OR BETA SERVICES. IF ANY EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, ZIPWHIP’S LIABILITY WITH RESPECT TO THE FREE TRIAL OR BETA SERVICES SHALL NOT EXCEED $1,000.

WITHOUT LIMITING THE FOREGOING, ZIPWHIP DOES NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S FREE TRIAL OR USE OF BETA SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR (B) CUSTOMER’S FREE TRIAL OR USE OF BETA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, CUSTOMER IS FULLY LIABLE TO ZIPWHIP UNDER THESE TERMS FOR DAMAGES ARISING OUT OF USE OF THE SERVICES BY CUSTOMER AND ITS AUTHORIZED USERS AND END USERS DURING THE FREE TRIAL OR WITH RESPECT TO BETA SERVICES AND ANY BREACH BY CUSTOMER OF THESE TERMS AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

  1. Privacy and Data Protection.

12.1     Privacy Policy. You acknowledge that you have read Zipwhip’s Privacy Policy and understand that it describes how Zipwhip and its authorized agents will collect, use, share and otherwise process personal information and how to exercise privacy rights with respect to that personal information.

12.2     Security. Zipwhip uses administrative, physical and technical safeguards intended to protect Customer Data. Our safeguards are designed to provide a level of security appropriate to the risk of processing Customer Data and include (as applicable) measures to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and a procedure for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing of Customer Data.

  1. Customer Confidentiality.

The parties agree that Customer Data are Confidential Information of Customer and that the Documentation, Order Forms, Services and Usage Data are Zipwhip’s Confidential Information.

Each party agrees that it will use the Confidential Information of the other party in accordance with these Terms and it will not use, access or permit the use or access of Confidential Information of the other party except to exercise its rights, perform its obligations in accordance with these Terms and, in the case of Zipwhip, Zipwhip’s Privacy Policy or as permitted by these Terms or the disclosing party in writing. Each party agrees to exercise due care in protecting the Confidential Information of the other party from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with these Terms. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.

In these Terms, Confidential Information does not include any information that: (i) is publicly available through no fault of the receiving party; (ii) was known or disclosed to the receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was disclosed to the receiving party, without restriction, by another person without violation of the disclosing party’s rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. Customer expressly acknowledges and agrees that use and disclosure of Customer Data to an Integration Partner or telecommunication provider in order to provide the Services to Customer or in connection with fraud detection or spam prevention is not a breach of this Section 13.

Zipwhip and you each expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section 13 and that, in the event of an actual or threatened breach of the provisions of confidentiality, the non-breaching party is entitled to seek immediate injunctive and other equitable relief, without the requirement to post bond and without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violation of these confidentiality obligations.

  1. Subscription Term and Termination.

14.1       Subscription Term. The term of Customer’s subscription for the Services begins on the date specified in the Order Form or, if no Order Form is in effect, the date on which Customer’s first Authorized User creates Account Credentials or, with respect to the web-based electronic submission application process, upon clicking “Confirm”, and ends in accordance with the Service Plan (“Initial Subscription Term”). Customer’s subscription automatically renews for successive periods equal in length to the Initial Subscription Term (each, a “Renewal Term”), unless otherwise specified in the Service Plan, Order Form or Master Services Agreement or Customer cancels Customer’s subscription at the end of the Free Trial or in accordance with the procedures set forth in Section 14.3 of these Terms. Notwithstanding the preceding sentence, for any annual or multi-term Order Form that renews on or after December 1, 2021, the Renewal Term will be amended to a month-to-month Subscription Term, unless cancelled earlier in accordance with Sections 14.2 or 14.3 of these Terms. No Customer Subscription Term will be renewed after November 1, 2022 and all Subscription Terms subject to these Terms terminate on December 31, 2022 unless expressly agreed otherwise between a Customer and Zipwhip. The Initial Subscription Term and all Renewal Terms (if any) are together the “Subscription Term.

14.2       Termination or Suspension by Zipwhip. Zipwhip may terminate Customer’s subscription by providing Customer with at least thirty (30) days’ prior written notice, with termination to take effect at the end of the Subscription Term in which the notice period concludes. Zipwhip may terminate or suspend access to the Services immediately if Zipwhip determines in its sole discretion that: (a) Customer or any of Customer’s Authorized Users violated (or give Zipwhip reason to believe you have violated) these Terms or the Acceptable Use Policy; (b) the traffic created from Customer’s use of the Services or Customer’s use of the Services is fraudulent or adversely affecting the operating capability of the Services; (c) providing the Services is prohibited by law or has become impractical or unfeasible for any legal or regulatory reason; (d) Customer has experienced a liquidation, commencement of dissolution proceedings, disposal of assets or change of control, a failure to continue business, assignment for the benefit of creditors, or Customer became the subject of bankruptcy or similar proceeding; (e) use of the Services by Customer or its Authorized Users or End Users threatens the availability, integrity, resilience or security of the Services; or (f) Customer has not paid the applicable Fees due as described in Section 15. Zipwhip also may be required to suspend the Services generally as a result of changes in telecommunications provider requirements, some of which may occur without notice to Zipwhip. Zipwhip shall not be liable to you or any third party for any suspension associated with changes in telecommunications provider requirements.

14.3       Termination by Customer. Customer may cancel or terminate Customer’s subscription by providing Zipwhip with at least thirty (30) days’ prior written notice, with termination to take effect at the end of the Subscription Term in which the notice period concludes. To be effective, a cancellation notice must be sent to notice@zipwhip.com. Cancellation of a Free Trial is governed by Section 11.

14.4       Notice of Suspension or Termination. If Zipwhip suspends access to the Services, Zipwhip will make a reasonable attempt to notify Customer and, once the violation is remedied, restore access to the Services. If Zipwhip terminates Customer’s access to the Services, Zipwhip will send a notice using the contact information provided by Customer. Zipwhip shall not be liable to Customer (including, for clarification, any Authorized User or End User) or any third party for any suspension or termination that complies with these Terms.

14.5       Effect of Termination. Upon expiration of any earlier termination of the Subscription Term, your right to use the Services automatically terminates and all Customer Data associated with your account may be deleted. Zipwhip will not have any liability whatsoever to you for any suspension or termination, including for deletion of Customer Data. Zipwhip may retain Customer’s Confidential Information (including Customer Data) in standard archival or computer back-up systems, or for litigation and regulatory purposes or to the extent required by law. All retained information is treated as Confidential Information for as long as Zipwhip retains it.

You are solely responsible for ensuring you export any Customer Data prior to any termination of your access to the Services. Upon a Customer’s request, and provided such Customer is not in breach of any of its obligations under these Terms, including Customer’s payment obligation, Zipwhip may, in its sole discretion, export Messages in a format determined by Zipwhip to Customer. Customer will be responsible for any costs associated with such export.

If your ability to access the Services is discontinued by Zipwhip due to your violation of these Terms or the Acceptable Use Policy, then you agree that you will not attempt to re-register with or access the Services through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated.

The terms of this Section 14 and the terms of the following Sections will survive: Section 12 (for as long as Zipwhip holds your personal information) and Sections 9, 13, 14, 17, 18, 19 and 23.

  1. Fees and Payment Terms.

15.1.    Fees. Customer agrees to pay Fees when due and using the payment method set forth in the Order Form or as agreed in writing. Fees may include an activation fee and/or recurring minimum payments, per message charges and/or charges for each text-enabled telephone number as set forth in the Order Form. Except as set forth in these Terms or an Order Form, all Fees are non-refundable. Unless expressly agreed otherwise in writing with Zipwhip, Zipwhip reserves the right to increase Fees applicable to any Renewal Term upon at least forty-five (45) days’ prior written notice to Customer.

15.2     Credit Card Payment. If Customer elects to pay via credit card, then Customer agrees that Zipwhip will charge Customer’s credit card as set forth in the Order Form. If the credit card provided is declined for any reason, then Zipwhip reserves the right to suspend the Services. By providing Zipwhip with your credit card number account and associated payment information, you agree that Zipwhip is authorized to immediately charge your account for all Fees due and payable to Zipwhip hereunder and that no additional notice or consent is required. You agree to immediately notify Zipwhip in writing of any change in your billing address or the credit card or billing information, used for payment hereunder. If you elect to pay via credit card, then you are responsible for either (a) enabling auto-recharge on your account or (b) ensuring that your account has a sufficient positive balance to cover all Fees due. If, for any reason, you have a negative balance on your account, then we reserve the right to suspend the Services.

15.3     Invoicing. If Zipwhip agrees in writing to send invoices to Customer and Customer pays in arrears, then Zipwhip will send monthly invoices (as PDF) to Customer via email associated with the Customer account. Customer will pay Fees hereunder upon receipt of the invoice, or as may otherwise be provided under Customer’s Order Form, in United States dollars. If Customer is overdue on any payment of Fees and fails to pay within thirty (30) days of Zipwhip’s of the due date, then Zipwhip may assess and Customer must pay a late charge of 1.5% per month or the maximum amount allowable by applicable law, whichever is less. Following the notice of non-payment, Zipwhip also may suspend the Services until Customer pays the unpaid Fees plus late fees. Zipwhip will have no liability for any damage, liability, loss (including any loss of data or profits) or any other consequence that Customer may incur if Zipwhip suspends Customer’s access to the Services pursuant to this Section 15.3.

15.4     Fee Disputes. If Customer has a good-faith dispute about any of the Fees, Zipwhip and Customer agree to cooperate diligently to resolve the dispute. Customer must notify Zipwhip at billing@zipwhip.com in writing within sixty (60) days of the date on which Customer is charged.

15.5     Cancellation/Reduction in Services. Customer is entering into a contract with Zipwhip for Services for the Subscription Term designated in the Order Form. Unless otherwise agreed in writing, Zipwhip charges Fees for the entire Subscription Term in advance. Cancellation or reduction in the number of text-enabled telephone numbers does not relieve the Customer’s obligation to pay all Fees due for the entire Subscription Term. If Zipwhip agree to payment arrangements other than payment in advance for any Subscription Term, and Customer elects to cancel or reduce their subscription during the Subscription Term, the remaining balance of the Fees is immediately due and owing; if payment is made via a payment provider or ACH payment method, the remaining outstanding Fees will be charged upon cancellation. If Customer is paying based on invoices, the remaining balance of the Fees will be billed upon cancellation. Payment is due upon receipt of the invoice. If you cancel your subscription, your ability to use the Services will terminate at the end of the then-current Subscription Term unless expressly otherwise agreed with Zipwhip and Customer is not eligible for a prorated refund of any portion of the Fees paid for the then-current Subscription Term.

  1. Taxes

16.1     Taxes. Zipwhip’s Fees are exclusive of any applicable Sales Tax, VAT taxes, use taxes, utility user’s fees, excise taxes, any other business and occupations taxes, 911 taxes, franchise fees and universal service fund fees or taxes and carrier surcharges imposed on or with respect to our Services, whether these taxes are imposed directly on you or on Zipwhip (collectively, the “Taxes”). If any Services, or payments for any Services, under the Terms are subject to Taxes, or in any country/jurisdiction and you have not remitted the applicable Taxes to Zipwhip, you will be responsible for the payment of such Taxes and any related penalties or interest to the relevant tax authority, and you will indemnify Zipwhip for any liability or expense we may incur in connection with such Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable Taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Zipwhip is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. For purposes of this section, Taxes do not include any taxes that are imposed on or measured by the net income, property tax or payroll taxes of Zipwhip.

  1. Warranties; Disclaimers; Release.

17.1     Customer Warranties. Customer represents and warrants to Zipwhip that (i) Customer has all necessary rights and consents to use Customer Data and grants Zipwhip the right to use Customer Data as required or permitted in these Terms; and (ii) Customer will comply with these Terms and all applicable laws related to Customer’s use of the Services, including without limitation obtaining all necessary consent and honoring all opt-out requests from End Users with respect to sending and receiving Messages

YOU REPRESENT AND WARRANT THAT (I) YOU HAVE OR HAVE PROCURED ALL POWER AND AUTHORITY NECESSARY TO USE THE SERVICES AND THE DEVICES AND TELEPHONE NUMBERS THAT YOU REGISTER OR ASSOCIATE WITH YOUR ACCOUNT AND NO CONSENT OF ANY THIRD PARTY IS REQUIRED, (II) YOU WILL NOT USE THE SERVICES ON A TELEPHONE NUMBER THAT WAS EXCHANGED, RENTED OR PURCHASED FROM A THIRD PARTY UNLES YOU HAVE PERMISSION OF THE TELEPHONE NUMBER’S OWNER, (III) THE TELEPHONE NUMBER IS NOT A WIRELESS MOBILE TELEPHONE NUMBER, AND (IV) YOU AGREE TO EXECUTE ANY ADDITIONAL DOCUMENTS NECESSARY TO ENSURE YOUR AUTHORITY TO USE AND TEXT ENABLE THOSE TELEPHONE NUMBERS.

17.2     Zipwhip Warranties. Zipwhip represents and warrants to Customer that the Services will perform materially in accordance with the applicable Documentation. Customer’s sole and exclusive remedy if Zipwhip breaches the foregoing warranty is, at Zipwhip’s option, to re-perform the affected Services or refund to Customer the Fees actually paid for the affected Services.

17.3     Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE SERVICES (INCLUDING BETA OFFERINGS AND FREE TRIALS) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ZIPWHIP DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, AVAILABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.

ZIPWHIP MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; OR (5) ZIPWHIP WILL CONTINUE TO OFFER THE SERVICES IN WHOLE OR IN PART.

CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ZIPWHIP IS NOT LIABLE AND CUSTOMER EXPRESSLY AGREES NOT TO SEEK TO HOLD ZIPWHIP LIABLE FOR (i) THE CONDUCT OF OPERATORS OF TELECOMMUNICATIONS NETWORKS AND MOBILE CARRIERS, AND THAT THE RISK OF INJURY FROM THESE THIRD PARTIES RESTS ENTIRELY WITH CUSTOMER AND (II) MALICIOUS CODE OR INAPPROPRIATE CONTENT SUBMITTED TO OR THROUGH THE SERVICES BY AN UNAUTHORIZED THIRD PARTY.

17.4      Release. Customer and each Authorized User hereby release Zipwhip and its affiliates and each of their respective officers, directors, investors, shareholders, employees, agents and permitted successors and assigns from claims, demands, losses, damages, rights and actions of any kind (including personal injury, death and property damage) (each, a “Claim”) that directly or indirectly relates to or arises from use of the Services, including any interactions with or conduct of other Authorized Users, End Users or third-party websites of any kind arising in connection with or as a result of these Terms or use of the Services.

If you are a California resident, you hereby expressly waive any rights you may have under California Civil Code Section 1542, which states “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

  1. Indemnification.

Customer will defend, indemnify and hold Zipwhip and its officers, directors, employees and agents harmless from and against any actual or threatened claim, third-party discovery demand, governmental investigation or enforcement action (each, a “Indemnified Claim”) arising out of or relating to breach of Customer’s warranties in Section 17.1 or the Acceptable Use Policy. Zipwhip will cooperate as fully as reasonably required in the defense of any Indemnified Claim, at Customer’s expense. Zipwhip reserves the right, at Customer’s expense, to retain separate counsel in connection with an Indemnified Claim or, if Customer has not responded reasonably to the Indemnified Claim, to assume the exclusive defense and control of the Indemnified Claim in which Customer is a named party and that is otherwise subject to indemnification under this Section 18. Customer will pay all costs, expenses, reasonable attorneys’ fees, government fines and penalties, settlement amounts and other damages incurred by Zipwhip in connection with an Indemnified Claim. Customer also is liable to Zipwhip for all costs and reasonable attorneys’ fees Zipwhip incurs to establish or enforce Zipwhip’s right to indemnification under this Section 18. Customer agrees that this Section 18 survives termination of any account associated with Customer and the expiration or any earlier termination of these Terms.

  1. Exclusion of Damages; Limitations of Liability.

EXCEPT FOR LIABILITY ARISING FROM VIOLATIONS OF SECTIONS 7, 8 OR 17.1, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF SUCH PARTY HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT AS DESCRIBED IN THIS SECTION 19, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL ZIPWHIP BE LIABLE TO YOU FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM OR $500, WHICHEVER IS GREATER. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ZIPWHIP AND YOU. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

  1. Export Controls.

The Services may be subject to US export control laws, including the US Export Control Reform Act and its associated regulations. You will not directly or indirectly, export, re-export or release the Services to, or make the Services accessible from, any country, jurisdiction or third party to which export, re-export or release is prohibited by applicable law. You will comply with all applicable laws and complete all requirements (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing or otherwise making the Services available outside the US.

You may not transfer any aspect of our Services without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of the Services if you are placed on any such list or under the control of or an agent for any entity placed on such a list. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo or that designated by the U.S. Government as a “terrorist supporting” country.

  1. US Government Rights.

The Documentation is and the Services are a "commercial item" as defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other customers and users under license, in accordance with (i) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

  1. International Users.
The Services are currently made available to customers in the U.S. and Canada from Zipwhip’s facilities in the U.S. Zipwhip makes no representations that the Services are appropriate or available for use outside of the U.S. and Canada. All parties that access or use Services from other jurisdictions or with recipients of other countries do so at their own volition and are responsible for compliance with local law.
  1. Agreement to Arbitrate.

23.1     If a dispute arises out of or relates to these Terms, the breach thereof, or the parties’ relationship, and if the parties cannot settle the dispute through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures before resorting to arbitration. The parties agree to mediation under the AAA Commercial Mediation Procedures. If settlement is not reached within 60 days after service of a written demand for mediation, Customer agrees that any unresolved controversy or claim arising out of or relating to these Terms, the breach thereof, or the parties’ relationship, shall be settled by binding arbitration administered by the AAA under its Commercial Arbitration Procedures pursuant to the terms of this Section 23 (“Agreement to Arbitrate”).

23.2      Exceptions. Customer and Zipwhip each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.

23.3      Rules. The arbitration will be conducted before a single arbitrator, unless the claim amount exceeds US $2,500,000 in which case the dispute shall be heard by a panel of three arbitrators. Unless you and Zipwhip otherwise agree, the arbitration will be conducted in English in Seattle, Washington, United States of America, the AAA under its Commercial Arbitration Procedures. The parties may agree to conduct proceedings, when practical, by telephone or other electronic means. The parties also agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings.

If the disclosed claim does not exceed $250,000, then the arbitration will be conducted pursuant to the AAA Expedited Procedures, unless otherwise agreed by the parties. If the disclosed claim does not exceed $100,000, and does not include a request for any type of equitable remedy, the party bringing the claim may choose whether the arbitration of the claim will be conducted through a telephonic hearing, or by an in-person hearing, or solely on the basis of documents that Customer and Zipwhip submit to the arbitrator, unless the arbitrator determines that a hearing is necessary. If the claim exceeds $100,000, then the right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of Customer and Zipwhip.

Except as may be required by law, neither a party nor its representatives may disclose the existence, content or results of any arbitration hereunder without the prior written consent of both parties. Notwithstanding any language to the contrary in these Terms, the parties hereby agree that a Final Award issued may be appealed pursuant to the AAA Optional Appellate Arbitration Rules ("Appellate Rules").

During the arbitration, the amount of any settlement offer made by Customer or Zipwhip may not be disclosed to the arbitrator until after the arbitrator makes a final decision and award (if any). Judgment on an arbitration award may be entered by any court having jurisdiction, in any country which has ratified the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

23.4     WAIVER OF CLASS OR CONSOLIDATED ACTIONS. Customer and Zipwhip agree to resolve any dispute in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Also, to the fullest extent legally permissible, the arbitrator cannot consolidate claims into a class proceeding or join any other proceedings or parties. If any clause within this Waiver of Class or Consolidated Actions Section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.

23.5     Future changes to Agreement to Arbitrate. If Zipwhip makes any changes to this Agreement to Arbitrate, Customer may reject any of those changes by notifying Zipwhip via the process set forth in Section 25.6 within 30 days of the change. By rejecting a change, Customer is agreeing to arbitrate any dispute in accordance with the language of the last Agreement to Arbitrate that Customer accepted.

23.6     Governing Law. This Agreement to Arbitrate is governed by the Federal Arbitration Act (“FAA”) and (only to the extent not inconsistent with the substantive and procedural provisions of the FAA), the laws of the State of Washington, without regard to conflicts of laws principles. If any provision of this Agreement to Arbitrate is found unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, that provision will be severed and the balance of this Agreement to Arbitrate will remain in full force and effect.

If for some reason the entirety of this Agreement to Arbitrate is found to be unenforceable, then Customer and Zipwhip agree to resolve disputes arising from or related to these Terms or use of the Services in the state or federal courts in King County, Washington. Customer and Zipwhip agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.

  1. Claims of Copyright Infringement

Zipwhip responds to notices of alleged infringement that meet the requirements of the U.S. Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), including by removing or disabling access to infringing material.

24.1     Notification to Zipwhip. If you have a good faith belief that your work was copied or used by a third party in a way that constitutes copyright infringement in or through Zipwhip’s Services, please send your claim or notice of infringement to Zipwhip’s designated copyright agent (“DMCA Agent”).

Please contact our DMCA Agent at:

Zipwhip, LLC.
Attn: Copyright Agent/Legal
300 Elliot Ave. W., Suite 500
Seattle, WA 98119
Email: copyright@zipwhip.com (please include “Infringement Claim/Legal” in the subject line of the email)

Our DMCA Agent will only respond to notices that comply with the requirements of the DMCA.

Your written notice must include ALL of the information required by the DMCA:

  • a physical or electronic signature of the person(s) authorized to act on behalf of the owner of an exclusive copyright that is allegedly infringed;
  • a description of the copyrighted work that you claim has been infringed;
  • a description of where the material that you claim is infringing is located;
  • adequate information by which we can contact you (including your name, postal address, telephone number and email address);
  • a statement that you have a good-faith belief that use of the copyrighted material is not authorized by the copyright owner or its agent or applicable law; and
  • a statement made by you under penalty of perjury that the information in your written notice is accurate and that you are the copyright owner (or authorized to act on behalf of the owner) of an exclusive right that is allegedly infringed.

If you fail to provide the required information, your notice is not effective. Please see www.copyright.gov for more information.

Upon receipt of a notice of infringement that complies with the DMCA, Zipwhip will take steps to remove or disable access to infringing material.

If you knowingly materially misrepresent that material is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.

24.2     Counter Notification. If you believe that material was erroneously removed or disabled, you may file a counter notification with Zipwhip by submitting written notification that includes the information required by DMCA to our copyright agent designated above. Please see copyright.gov for more information

The DMCA allows Zipwhip to restore the removed content if the party filing the original DMCA notice does not file a court action against you within ten business days of receiving the copy of your counter notification. Please be aware that if you knowingly materially misrepresent that material or activity was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.

24.3     Repeat Infringers. Zipwhip will disable and/or terminate the accounts of Customers and Authorized Users who are repeat infringers in accordance with our policies.

24.4     Other Claims of Infringement. If you believe that any of your other intellectual property rights was violated through Zipwhip’s websites or online services, please send your claims of infringement to copyright@zipwhip.com (please include “Infringement Claim/Legal” in the subject line of the email).

Please include at least the following:

  • description of the infringement (location, type of infringement, etc.)
  • your contact information (including your name, postal address, telephone number and email address);
  • your statement that the information in your written notice is accurate and that you are the owner (or authorized to act on behalf of the owner) of an exclusive right that is allegedly infringed.
  1. General.

25.1     Governing Law. Except as set forth in Section 23.6, all matters related to the Services are governed by the internal laws of the State of Washington, United States, as such laws apply to agreements made and performed therein (without giving effect to the principles of conflicts of laws).

25.2     No Waiver. Zipwhip’s failure to enforce at any time any provision of these Terms or our Acceptable Use Policy does not waive Zipwhip’s right to do so later. Any waiver must be in writing and signed by Customer and Zipwhip to be legally binding.

25.3     Assignment. Customer will not assign or otherwise transfer these Terms, in whole or in part, without Zipwhip’s prior written consent. Any attempt to assign, delegate or transfer in violation of this subsection will be null and void. Subject to this Section 3, these Terms and any Order Form will be binding on both Customer and Zipwhip and their successors and assigns.

25.4     Relationship. Customer and Zipwhip are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Customer and Zipwhip are and will be solely responsible for their respective employees and agents and respective labor costs and expenses arising in connection with those employees and agents.

25.5      Severability. If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.

25.6      Notices. Zipwhip requires that Customer maintain as current the email address associated with your account. If your email address is not valid for any reason, Zipwhip’s dispatch of an email to the email address associated with Customer’s account with confirmed delivery containing a legal notice will constitute effective notice.

Except as otherwise provided in these Terms, (i) Customer will give any notice required under these Terms (i) to Zipwhip at the following address: Zipwhip, LLC. 300 Elliott Ave. W., Suite 500, Seattle, WA 98119 (delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address) and by sending an email (with confirmed delivery) to legal@zipwhip.com with the “Legal Notice” in the subject line; and (ii) Zipwhip will give any notice required under these Terms to Customer, at the address in the Order Form (delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address) and by sending an email (with confirmed delivery) to the email address(es) associated with Customer’s account. Any mailed notice shall be deemed given when received.

25.7     Entire Agreement. Except as provided in these Terms (including documents incorporated herein by reference), these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written with respect to the subject matter hereof. No oral or written information or advice given by Zipwhip, its agents or employees will create a warranty or in any way increase the scope of the warranties in these Terms.

25.8     Electronic Communications. The communications between Customer and Zipwhip may use electronic means. Except as prohibited by applicable law, Customer (a) consents to receive communications from Zipwhip in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Zipwhip electronically provides to Customer satisfy any legal requirement that such communications would satisfy if it were to be in writing.

25.9     Force Majeure. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.

QUESTIONS OR SUPPORT

We understand that these Terms contain a lot of information to read and absorb. If you have questions, please feel free to reach out to us at support@zipwhip.com