Textual - Terms of Service & Client Agreement
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
Greetings to all Clients who have discovered the Textual platform to accelerate Mobile Commerce growth!
You, our esteemed Client, agree to these Terms of Service, by using the Textual Site, Platform and Text Commerce Services.
Updated: January 15, 2023
- Description of Services
- Term & Termination
- Use of Services
- Acceptable Use Policy
- Customer Data
- Intellectual Property
- Disclaimers and Liability
- SLA - Uptime Agreement
"Agreement" or “Customer Terms of Service” means these General Terms and all materials referred or linked to in here, unless otherwise stated.
"Billing Period" means the period for which you agree to prepay fees under an Order Form.
“Confidential Information” means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or a reasonable person would consider confidential. Confidential Information includes all information concerning: the Disclosing Party's customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.
"SOW" or "Order Form" means the Textual form or online Platform process by which you agree to subscribe to the Platform Service and purchase Services.
“Client” Any Merchant, Ecommerce Store, Retailer or Brand that uses the Textual Platform.
“Subscriber” Any User who signs up to receive Text Message marketing and product offers from Textual Clients. It means a single individual (other than a User) whose Contact Information is stored by you in the Platform Service.
“Subscriber Account” An Account is created when a Subscriber completes the full registration process including Shipping and Billing information.
"Subscriber Information" means the name, email address, phone number, online user name(s), telephone number, and similar information submitted by visitors to your landing pages on the Platform Service or uploaded by you to the Platform Service.
“Customer” Any Subscriber that purchases a product through Text Message.
2. Description of Services
Textual provides a Text Message Marketing and Payment Platform as a service, described in this Agreement. The Textual Platform enables Clients to send Text Messages to Subscribers who have opted into a Marketing Program.
The Textual platform also maintains a payment profile for all the Client’s Subscribers, and collectively as a whole these Subscriber Accounts are maintained for the Textual Platform.
Client’s Subscribers are never shared with any other Client across the platform. Textual maintains these Subscriber Accounts on behalf of the Clients, whereas the Payment Profiles for the Subscribers are maintained for the benefit of all Clients, and for the Textual / Subscriber relationship.
The Textual platform allows Clients to send Text Message Marketing Campaigns that contain Product offers which can be purchased immediately through Text Message by the Subscribers when they reply Yes.
The Textual Platform has certain controls to help Clients be in compliance with Text Message Marketing guidelines; however the Clients are responsible for being compliant, i.e. Clients can not abuse the platform.
Textual creates the charges to Subscriber’s credit cards using the Stripe Connect platform. These charges are created on behalf of the Clients and their own Stripe Account.
Any claims, refunds and disputes are not managed by Textual but rather these matters are between the Textual Client (any merchant, ecommerce store or retailer) and their Customer.
The Fee Services are as follows:
- Platform Access
- Monthly Access Fee based on number of Subscribers
- Text Message Charges
- Every plan includes a quota of included SMS/MMS messages blended.
- For any SMS/MMS that exceed the plan credits, Textual charges $0.025 per message
- Transaction Fees
- Transactions Fee vary based on the degree of services and operations being used.
- Textual maintains payment profiles, processes orders in the cloud, and places those orders into your eCommerce system.
Please refer to your SOW or Order form for your exact Fee schedule.
All platform access fees will be charged on a monthly basis to your credit card
4. Term & Termination
This Agreement is effective upon the date you first access or use the Platform and continues until terminated by you or Textual.
Every Plan and Platform Fee is considered month to month with a 60 day cancellation policy. Textual bills every Client’s credit card at the beginning of the month for the following 30 day period. In the case of invoices, they will be sent to you on the first of every month for the following 30 day period. Invoices are Net 15 days.
Please contact email@example.com to request cancellation. We will provide a downloadable file of your Contacts.
We may suspend your Textual Account or terminate this Agreement, if we determine at our sole discretion that you are ineligible for the Platform Services because of significant fraud or credit risk, or any other risks associated with your Textual Account; you use the Platform Services in a prohibited manner or otherwise do not comply with any of the provisions of this Agreement; we are otherwise entitled to do so under this Agreement.
5. Use of Services
This Agreement covers the Clients use of the Textual Platform for Text message marketing and the Text-to-Buy platform features, access and usage.
You must ensure that all access, use and receipt by your Users is subject to and in compliance with this Agreement.
5.2 Features. You may subscribe to additional features of the Platform Service by placing an additional Order Form or activating the additional features from within your Textual account (if this option is made available by us.). This Agreement will apply to all additional Order Forms and all additional features that you activate from within your Textual account.
5.3 Limits. The limits that apply to you will be specified in your Order Form, this Agreement or in our Product and Services Catalog, and for our Free Platforms, these limits may also be designated only from within the product itself. For further information on the limits that apply to your Platform, please refer to the Product Specific Terms.
You must be 18 years of age or older to use the Platform Service.
5.4 Customizations. We make modifications on the Platform for our Clients. These customizations are discussed, specified and will be covered by a separate SOW.
5.5 Customer Responsibilities. To realize the full value of the Platform, your participation and effort are needed. Resources that may be required from you include a project manager, one or more content creators, a sales sponsor, an executive sponsor and a technical resource (or equivalent). Responsibilities that may be required include planning of marketing programs; setting of a content creation calendar; creating blog posts, social media content, Calls-To-Action (CTAs), downloads, emails, nurturing content, and other materials; acting as internal liaison between sales and marketing; providing top level internal goals for the use of the Platform Service; attending regular success review meetings; and supporting the integration of the Platform Service with other sales and marketing systems.
5.6 Free Trial. If you register for a free trial, we will make the applicable Platform Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier) or (b) the start date of your paid Platform. Unless you purchase a Platform to the applicable Platform Service before the end of the free trial, all of your data in the Platform Service may be permanently deleted at the end of the trial, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those will apply as well.
5.7 Legacy Products. If you have a legacy Textual product, some of the features and limits that apply to that product may be different than those that appear in these General Terms, Product Specific Terms and/or the Product and Services Catalog. If you have legacy Textual products, we may choose to move you to our then-current products at any time. If you determine that you are using a legacy product and would like to upgrade to a current-version, you must execute a new Order.
6. Acceptable Use Policy
You agree to maintain Compliance with TCPA and CTIA Text Message Marketing guidelines, as outlined here https://www.textual.com/sms-compliance.
Prohibited and Unauthorized Use. You will not use the Platform Services in any way that violates the terms of the AUP or for any purpose or in any manner that is unlawful or prohibited by this Agreement.
Prohibited Use of our Services: You represent that your Text Message Marketing program complies with all applicable laws and guidelines. You may not sell fraudulent products, goods or services. The Textual Platform is not to be used for illicit substances, including pornography, drugs, firearms, or any other dangerous items. You warrant and agree that all of your activities on the Textual Platform are in accordance with local, state and federal laws that govern your business. The Textual Platform can not be used to send SPAM or mass text message marketing to randomly generated mobile phone numbers. You warrant that all Subscribers or Contacts have opted into your program with a clear Opt In. You warrant and agree to honor the opt out request.
Your Products and Your Customers: You may only use the Services for legitimate Transactions with your Customers. You own your Customers, and you are responsible for your relationship with them. Textual is not responsible for the products or services you market or sell, or products that your Customers purchase using the Textual Platform.
Claims, Erroneous Orders, Refunds: Textual provides the Platform to you but we can not know if any purchase, sale, donation, order, or other 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. You must handle any dispute related to a Customer Complaint. You own and manage your own Customers. Customer Claims as a result of a complaint about a product they purchase from you through the Textual Platform are solely your responsibility to manage. If any fraudulent orders using stolen credit cards incurs a loss for your company, Textual is not liable for this loss. It is solely your loss. Stolen Credit Cards and/or fraudulent orders should be managed directly with the credit card company.
The Platform Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA) or the Federal Information Security Management Act (FISMA), so you may not use the Platform Service where your communications would be subject to such laws. You may not use the Platform Service in a way that would violate the Gramm-Leach-Bliley Act (GLBA). Nothing contained in this section limits the usage restrictions specific to Sensitive Information under the Agreement.
No Sensitive Information. YOU ACKNOWLEDGE THAT THE Platform Services HAVE NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION AND ACCORDINGLY YOU AGREE NOT TO USE THE Platform SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE Platform SERVICE TO COLLECT, PROCESS OR MANAGE SENSITIVE INFORMATION.
7. Customer Data
7.1 Customer’s Proprietary Rights. You own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Platform Service and Services to you and as otherwise permitted by this Agreement. If you are using the Platform Service or receiving Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
7.2 Limits on Textual. We will not use Customer Data to contact any individual or company except as you direct or otherwise permit. We will use Customer Data only in order to provide the Platform Service and Services to you and only as permitted by applicable law and this Agreement.
7.3 Data Practices and Machine Learning.
7.3.1 Usage Data. We may collect information about you and your Users when you interact with the Platform Service as permitted by the Agreement.
7.3.2 Machine Learning. We may, as permitted by this Agreement, use Customer Data in an anonymized manner for machine learning to support certain product features and functionality within the Platform Service.
7.4 Protection of Customer Data. The terms of the DPA are hereby incorporated by reference and will apply to the extent any Customer Data includes Personal Data. The DPA sets out how we will process Personal Data on your behalf in connection with the Platform Services provided to you under this Agreement. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA, including our security measures in Annex 2 of our DPA.
7.5 Regional Data Hosting. We will store your Customer Data in a specific location or geographical region (e.g. North America or Europe) as part of your Platform subject to the terms of this Agreement and our Regional Data Hosting Policy.
7.7 Retention, Deletion and Retrieval of Customer Data. For information regarding the retention and deletion of Customer Data, please email us at firstname.lastname@example.org
8. Intellectual Property
8.1 This is an agreement for access to and use of the Platform Service, and you are not granted a license to any software by this Agreement. We retain all intellectual property rights to the Textual Content, the Platform Service, and any other products or services provided under this Agreement. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Textual Content, or the Platform Services, in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks may not use any of these without our prior written permission.
8.2 We encourage all customers to comment on the Platform Service, and provide suggestions for improving it. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Platform Service without payment or attribution to you.
9.1 The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third party service providers used by us), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its partners' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
9.2 The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; (ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and (iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure, including in circumstances where the Disclosing Party refuses to provide their consent or fails to respond to the Receiving Party’s inquiries in connection with the request to disclose the Confidential Information..
You will indemnify, defend and hold us and our 3rd party partners, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and partners) by a third party not partnered with us or our partners to the extent that such Action is based upon or arises out of
(a) unauthorized or illegal use of the Platform Service by you or your partners,
(b) your or your Partners’ noncompliance with or breach of this Agreement,
(c) your or your Partners’ use of Third-Party Products, or
(d) the unauthorized use of the Platform Service by any other person using your User information.
We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You will not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
11. Disclaimers and Liability
11.1 Performance Warranty. We warrant that: (i) the Platform Services will be provided in a manner consistent with generally accepted industry standards, and (ii) we will not knowingly introduce any viruses or other forms of malicious code into the Platform Services; provided however, this warranty will not apply to you if you only use the Free Services.
In the event of non-conformance with this warranty, we will use commercially reasonable efforts to correct such non-conformance. If we cannot correct such non-conformance within sixty (60) days from the date when you notified us of the non-conformity (the “Remedy Period”), then either party may terminate this Agreement by providing the other party written notice within thirty (30) days after the end of the Remedy Period. If you terminate the Agreement for this reason, we will promptly refund any prepaid but unused fees covering use of the Platform Services after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.
We will not have any obligation or liability under this section if the non-conformance is caused by or based on: (i) any combination of the Platform Services with any hardware, software, equipment, or data not provided by us, (ii) modification of the Platform Service by anyone other than us, or modification of the Platform Service by us in accordance with specifications or instructions that you provided, or (iii) use of the Platform Service in violation of or outside the scope of this Agreement.
THIS SECTION STATES OUR ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM PROVIDED FOR UNDER THIS SECTION.
11.2 Disclaimer of Warranties. EXCEPT AS SET FORTH IN THE ‘PERFORMANCE WARRANTY’ SECTION AND WITHOUT LIMITING OUR OBLIGATIONS IN THE 'PROTECTION OF CUSTOMER DATA' SECTION OF THIS AGREEMENT, WE AND OUR partnerS AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE Platform SERVICE, DATA SYNCHED TO OR MADE AVAILABLE FROM THE Platform SERVICE, Textual CONTENT, OR THE SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE Platform SERVICE, Textual CONTENT AND SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE Platform SERVICE AND THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
11.3 No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS partnerS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY; PROVIDED THAT, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
11.4 Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OfBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY OR ITS partnerS IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS partnerS OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS partnerS WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE FOR THE Platform SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
11.5 Third Party Products. WE AND OUR partnerS DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
11.6 Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE PLATFORM SERVICES TO YOU.
11.7 Additional Coverage Terms. If your Total Committed Platform Value exceeds thirty-five thousand U.S. dollars (USD$35,000), then the Textual Additional Coverage Terms available at Appendix 1 to these General Terms will apply. If these terms apply to you, then they are incorporated into the Agreement.
12. Service Level Agreement
Textual will use commercially reasonable efforts to make the Platform Services available for each Client with a Monthly Uptime Percentage of at least 99%. In the event that any of the Platform Services do not meet this SLA, Textual will make every reasonable corrective action to restore services in the shortest amount of time possible.
In the event that Stripe Connect Payment services are experiencing considerable down time, Textual will make commercial reasonable efforts to report the issue and resolve the issue with Stripe directly.
In the event that Twilio’s SMS services are experiencing considerable down time, Textual will make commercial reasonable efforts to report the issue and resolve the issue with Twilio directly.
SMS Send rates are limited to 25 messages per second.
13.1 Amendment; No Waiver.
We may modify any part or all of the Agreement by posting a new one in your account. The revised version will become effective and binding the next business day after it is posted. We will send out a general announcement via email.
If you do not agree with a modification to the Agreement, you must notify us in writing within thirty (30) days after we send notice of the revision. If you give us this notice, then your Platform will continue to be governed by the terms and conditions of the Agreement prior to modification until your next renewal date, after which the current terms posted at http://legal.Textual.com will apply. However, if we can no longer reasonably provide the Platform to you under the terms prior to modification (for example, if the modifications are required by law or result from general product changes), then the Agreement and/or affected Platform Services will terminate upon our notice to you and we will promptly refund any prepaid but unused fees covering use of the Platform Service after termination in accordance with the ‘Effect of Termination or Expiration’ provision of this Agreement.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
13.2 Force Majeure. Except for payment obligations of amounts due under this Agreement, neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; pandemic; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
13.3 Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
13.4 Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
13.5 Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Platform Service, the Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
We will comply with our Code of Business Conduct and Ethics (a/k/a our Code of Use Good Judgment) which can be found on our Investor Relations page on Textual.com. You will comply with all applicable laws in your use of the Platform Services, including any applicable export laws.
You must comply with all applicable laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury in your use and receipt of the Platform Service and Services.
You will not directly or indirectly export, re-export, or transfer the Platform Services to prohibited countries or individuals or permit use of the Platform Services by prohibited countries or individuals.
13.6 Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
13.7 Notices. To Textual: Notice will be sent to the contact address set forth in the Jurisdiction Specific Terms, and will be deemed delivered as of the date of actual receipt.
To you: your address as provided in our Textual Platform account information for you. We may give electronic notices by general notice via the Platform Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Platform Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
13.9 Assignment. You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours. We may assign this Agreement to any Textual partner or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
13.10 No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or will confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
13.11 Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, will not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not govern this Agreement or the rights and obligations of the parties under this Agreement.
13.12 Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your partners compliance with the terms of this Agreement.
13.13 Insurance. During the term of this Agreement, we will, at our own cost and expense, obtain and maintain in full force and effect, with reputable insurers having A.M. best ratings of at least A (VII) or better, liability insurance with coverage and minimum limits of liability as follows: (i) Commercial General Liability Insurance (Primary & Umbrella) or equivalent, with minimum limits of $1,000,000 Each Occurrence and $2,000,000 Aggregate; (ii) Workers' Compensation & Employers Liability Insurance (as required by the state), with minimum limits of $500,000 Each Accident, $500,000 Disease-Policy Limit and $500,000 Disease-Each Employee; (iii) Professional Liability (cyber/errors and omissions liability insurance), with a limit of $5,000,000; and (iv) Umbrella/Excess Liability Insurance, with a minimum limit of $2,000,000.
13.14 U.S. Government Entities. If you are a U.S. local, state or federal government entity, then the Textual Government Customer Additional Terms available at Appendix 2 to these General Terms will apply to your Agreement. If these terms apply to you, then they are incorporated into the Agreement and will control in the event of any conflict with the Agreement.
13.15 Survival. The following sections will survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees’, ‘Intellectual Property’, 'Confidentiality’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’.
13.16 Precedence. In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.
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