Subscription Agreement for InformaCast Fusion and InformaCast Mobile SaaS

This Subscription Agreement is made by and between Customer (as defined below) and Singlewire Software, LLC, a Wisconsin limited liability company (“Singlewire”).

The terms and conditions located at www.singlewire.com/terms (the “Additional Terms”) and any applicable Order Forms for the Service are incorporated herein by this reference. This Subscription Agreement, the Additional Terms and the Order Forms are referred to collectively herein as this “Agreement.”

THIS AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN CUSTOMER AND SINGLEWIRE. BY ACCESSING OR USING THE SERVICE, OR BY ACCEPTING THE TERMS OF THIS AGREEMENT THROUGH AN ORDER FORM THAT INCORPORATES THIS AGREEMENT, CUSTOMER ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE SERVICE. THE PERSON ACCEPTING AND AGREEING TO THIS AGREEMENT REPRESENTS THAT HE OR SHE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.

IN THE EVENT OF A CONFLICT BETWEEN THE ADDITIONAL TERMS AND THE TERMS HEREIN, THE TERMS HEREIN SHALL CONTROL. THE PARTIES AGREE THAT ANY TERM OR CONDITION STATED IN A CUSTOMER PURCHASE ORDER OR IN ANY OTHER CUSTOMER ORDER DOCUMENTATION (OTHER THAN THE ORDER FORM PROVIDED BY SINGLEWIRE) IS VOID.

1. CERTAIN DEFINITIONS.

As used in this Agreement:

a. “Administrator” means an individual person or application capable of performing administrative functions in Customer’s account in the Service including but not limited to, managing data for recipients or groups, running or viewing reports, managing User roles, activating/deactivating features, setting default values, or using any of the features in the administrative area of the user interface in the Service.

b. “Content” means all the text, audio, imagery, video and other information or content contained in a Notification or otherwise input by Users into the Service.

c. “Customer” means the customer named in the Order Form.

d. “Documentation” means the manuals and other documentation, if any, that Singlewire makes available to Customer with the Service and Installed Technology, whether electronic or printed.

e. “Endpoints” means devices capable of receiving Notifications including, but not limited to, mobile devices (g., cellular telephones), Internet Protocol (“IP”) speakers, IP phones, personal computers, audio paging interfaces and video displays.

f. “Harmful Code” means any program, routine or device designed to delete, disable, deactivate, interfere with, prevent access to, or otherwise harm any software, program, data, device, system or service, including without limitation, any ‘time bomb’, virus, drop dead device, malicious logic, worm, Trojan horse or trap or back door.

g. “Initiator” means an individual person or device capable of creating Notifications in the Service.

h. “Notification(s)” are messages in any media or form (e.g., text messages or push notifications) issued by an Initiator via the Service whether or not received or responded to by a Recipient.

i. “Order Form” means Singlewire’s quotation or ordering document specifying the Service to be provided to Customer hereunder, including any addenda and supplements thereto.

j. “Recipient” means an individual person capable of receiving or responding to Notifications.

k. “Service” means the products and services that are ordered by Customer under an Order Form and made available by Singlewire, as described in the Documentation.

l. “Singlewire Materials” means the Documentation, Installed Technology and any other documents, software, devices, works or materials provided by Singlewire in connection with the Service under this Agreement.

m. “Users” means, collectively, Customer’s Administrators, Initiators and Recipients.

n. “User Data” means data and information regarding Users (including, without limitation, mobile telephone numbers, email addresses, names, etc.) submitted or input by Users into the Service or otherwise input, collected or processed for Users using the Service.

2. SERVICE AND SUPPORT.

Subject to the terms and conditions of this Agreement, Singlewire will provide to Customer a subscription to access and use the Service and Singlewire Materials solely for Customer’s internal business operations in accordance with the Documentation. Singlewire will make the Service available for Customer’s use subject to the Service Level Agreement set forth at www.singlewire.com/SLA, except during any suspension or termination of Customer’s or any Users’ access to or use of the Service as permitted in this Agreement. Only Customer’s authorized employees and consultants may act as Initiators or Administrators.

Singlewire will provide support for the Service as set forth at www.singlewire.com/support. Customer shall not contract with or otherwise allow a third party to provide assistance, maintenance or support for the Service without the prior written consent of Singlewire. Singlewire may provide updates or modifications to the Service and Documentation from time to time, in which case earlier versions of the Service and Documentation will no longer be accessible. Customer may not use the Service other than as set forth in the Documentation.

As set forth in the applicable Order Form, the Service will be provided for a specified subscription period (subject to the termination provisions in this Agreement). Customer shall pay the subscription fees for the Service as set forth in the Order Form. Customer’s ability to access and use the Service shall be subject to Customer’s compliance with the terms of this Agreement and Customer’s receipt and use of applicable access credentials provided by Singlewire.

The Order Form will specify certain usage limits with respect to Customer’s use of the Service (e.g., limitations on the numbers of Users or Endpoints). Customer may not exceed the applicable limits. Singlewire may impose limits on the number of devices which can be held by each User with the ability to receive communications through the Service.

Singlewire may suspend, terminate or otherwise deny Customer’s or any User’s access to or use of all or any part of the Service or Singlewire Materials without liability, if: (a) Singlewire receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Singlewire to do so; or (b) Singlewire believes, in its good faith discretion, that: (i) Customer or any User has failed to comply with, any term of this Agreement (including, without limitation, Customer’s failure to make payments when due under this Agreement), or accessed or used the Service or Singlewire Materials beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Service; (iii) Customer’s use of the Service has become excessive, abusive or otherwise detrimental to the operation of the Service or Singlewire’s business; or (iv) this Agreement or Customer’s subscription expires or is terminated. This paragraph does not limit any of Singlewire’s other rights or remedies, whether at law, in equity or under this Agreement.

Customer agrees that Customer’s acquisition of a subscription to the Service was not made in reliance on an expectation that the Service will add additional functionality in the future, or on any statements made by Singlewire regarding possible future functionality.

3. INSTALLED TECHNOLOGY.

The Service may require the use of associated components provided by Singlewire, such as hardware or software, which may require installation on Customer’s systems (“Installed Technology”), as set forth in the Documentation. This Section applies to the extent the Service requires Installed Technology. The Installed Technology may be software or hardware which, in either case, requires installation on Customer’s network. Customer shall pay the purchase price for any Installed Technology in the form of hardware as set forth in the Order Form. If the Installed Technology is software, Singlewire will provide Customer with instructions regarding how to download it. Subject to the terms and conditions of this Agreement, Singlewire hereby grants Customer a non-exclusive, non-transferable, non-sublicenseable license to install the Installed Technology on Customer’s network and to use it solely in accordance with the Documentation to facilitate Customer’s use of the Service during the subscription term.

During the term for which Customer has a subscription to the Service arising under this Agreement which requires Installed Technology, Singlewire will provide to Customer maintenance updates, revisions and product enhancements to the Installed Technology and Documentation (“Release(s)”) if and when Singlewire makes any such Release generally available, and as part of its support services, Singlewire may provide patches and fixes for reproducible errors to cause the Installed Technology to operate in substantial conformity with its then-current Documentation (collectively, “Patches”). For clarity, Releases and Patches are considered part of the Installed Technology or Documentation, as applicable. Customer will use commercially reasonable efforts to promptly test, install and implement production use of all Releases and Patches provided by or on behalf of Singlewire and discontinue any use of any Installed Technology or Documentation which has not implemented the applicable Release or Patch. Customer is responsible for acquiring at its own cost, any updated or additional hardware, firmware or other components necessary to implement or use any Releases or Patches.

4. OWNERSHIP AND RESTRICTIONS.

All rights not expressly granted under this Agreement are reserved by Singlewire, its licensors, service providers and suppliers (as applicable). Customer acknowledges that Singlewire and its licensors, service providers and suppliers (as applicable) retain all right, title and interest in and to the Service and the Singlewire Materials, including all of their related intellectual property rights. Customer acknowledges and agrees that it does not acquire any right, title or interest in or to any of the Service or the Singlewire Materials or any intellectual property rights therein, except the right to use them pursuant to the terms and conditions of this Agreement. Customer acknowledges and agrees that portions of the Service and Singlewire Materials, including without limitation any underlying source code, constitute or contain trade secrets of Singlewire or its licensors, service providers or suppliers, as applicable.

Customer shall not, and shall not permit any other party to, access or use the Service or Singlewire Materials except as expressly permitted in this Agreement. Without limiting the generality of the foregoing, Customer and Users shall not, and shall not assist or permit any other party to: (i) make the Service or Singlewire Materials available to, or use any Service or Singlewire Materials for the benefit of, anyone other than Customer or Users; (ii) copy, modify or make derivatives or improvements of the Service or the Singlewire Materials; (iii) use the Service or Singlewire Materials to store or transmit Harmful Code or any infringing, defamatory, libelous, obscene, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or other rights; (iv) disassemble, reverse engineer, decompile, translate or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Service or Singlewire Materials (to the extent this restriction is permitted by law); (v) sell, assign, transfer, sublicense, lease, pledge, distribute, rent or otherwise share Customer’s rights under this Agreement, or include any Service or Singlewire Materials in a service bureau or outsourcing offering; (vi) modify, obscure or remove any product identification or proprietary notices on the Service or Singlewire Materials; (vii) modify or incorporate the Service or Singlewire Materials into or with other software, (viii) interfere with the operation of the Service; (ix) bypass, breach or disable any usage limit, security device, copy control or digital rights management tool or other protection used in the Service and Singlewire Materials; (x) access or use the Service or Singlewire Materials for the purposes of benchmarking or competitive analysis, or developing any competitive product or service; (xi) interfere with the operation of the Service; or (xii) use the Service or Singlewire Materials in violation of any applicable law, regulation or rule. In the event Singlewire’s service providers, suppliers or carriers impose restrictions or limitations on Singlewire with respect to the type, nature or content of Notifications which can be sent through Singlewire Technology, Customer agrees to be bound by the same upon Singlewire’s notice to Customer.

If Customer becomes aware of any actual or threatened activity prohibited by the preceding paragraph, Customer shall, and shall cause all applicable Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Service and Singlewire Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Singlewire of any such actual or threatened activity.

5. USE OF THE SERVICE.

Customer, on behalf of itself and its Users, hereby grants Singlewire and its service providers and suppliers a worldwide, royalty-free license during the term of this Agreement to access, host, copy, transmit, process, display and use User Data and all Content in connection with the operation of the Service and Singlewire’s performance hereunder. Singlewire and its service providers and suppliers regularly perform system backups, and Customer acknowledges and agrees that User Data and Content may exist in such backups beyond the term of this Agreement. Customer grants to Singlewire a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service and Singlewire Materials any suggestions, enhancements, requests, or other feedback provided by Customer or Users. Customer represents and warrants that (a) it has the right to grant the foregoing licenses, (b) no consents or other authorizations are necessary from any other party for Singlewire to exploit its rights under such licenses, and (c) it and its Users have the right to submit and use the User Data and Content in connection with the Service.

Customer agrees that Users may only use the Service in the manner permitted in this Agreement. Customer will be responsible for Users’ use of the Service and compliance with this Agreement.

Customer agrees as follows:

a. All Content is the sole responsibility of Customer, and that Customer is solely responsible for the integrity, legality and quality of all Content.

b. Neither Customer nor any Users will send any Notifications to any telephone line or telephone number other than for emergency purposes or with the prior express consent of the contacted party (which consent has not been revoked);

c. No Content will infringe the intellectual property rights of any party, violate a party’s right to privacy or violate any privacy laws, any of Customer’s privacy policies or any applicable laws, rules or regulations, or will justify a complaint to the Federal Communications Commission or any other government agency.

Customer will not use or permit the use of the Service or Singlewire Materials:

a. to engage in or facilitate any illegal, unethical, deceptive or misleading practices, including but not limited to, creating a false identity or forged contact information or message header or otherwise attempt to mislead others as to the identity of the sender or the origin of the message;

b. in connection with any telemarketing, commercial messages, advertisements or solicitations, junk email, junk phone messages, spamming or any unsolicited or harassing messages (commercial or otherwise); or

c. in any manner which violates or facilitates the violation of any law, statute, ordinance, rule or regulation, (including without limitation the CAN-SPAM Act, the Telephone Consumer Protection Act, the Do-Not Call Implementation Act, the Health Insurance Portability and Accountability Act, laws governing export control, and any related rules or regulations).

Customer acknowledges and agrees that some or all of the Service is hosted online by or for Singlewire and, accordingly, the use of the Service requires, among other things, an Internet connection and a properly licensed web browser which is compatible with the Service, which Customer is responsible for obtaining and maintaining at its own expense. Customer and its Users will be solely responsible, at their own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for them to connect to, access, and use the Service under this Agreement. Customer and its Users acknowledge that the operation of the Service is dependent on the networks, services and facilities of third parties (e.g., telecommunications providers), and that Singlewire has no responsibility or liability for the failure of the Service due to the failure of any such third party networks, services or facilities.

Users who wish to receive Notifications via a Singlewire client application for compatible mobile devices (e.g., InformaCast Mobile for iOS devices) will need to obtain licensed copies of such application and accept the terms of the applicable end user license agreement. Users who receive Notifications on mobile devices are solely responsible for all data and wireless charges, fees and taxes.

Customer acknowledges and agrees that the Service is merely a passive conduit for the distribution and transmission of Content by Customer and Users.

Customer agrees that Singlewire has no obligation or liability for any loss, alteration, destruction, damage, corruption or recovery of any User Data or Content.

Singlewire or its service providers or suppliers may block Notifications based on instructions from its suppliers or service providers. Customer will not circumvent or try to circumvent such blocks.

Under no circumstances will Singlewire or any of its service providers or suppliers be responsible for any loss or access to the Content or User Data, or any damage or liability arising out of the Content or User Data, including any mistakes or errors contained in any Content or User Data or the use or transmission of the Content or User Data, any infringing Content or User Data, or the failure of a Notification to reach its intended recipient(s).

Customer agrees to maintain all security regarding its account ID, password, and connectivity with the Service. Customer is responsible for all Notifications transmitted through the Service using Customer’s account. If Customer’s account ID or password are stolen, or otherwise compromised, and used for malicious purposes, Customer is responsible for all Notifications sent using the stolen account information. Customer is obligated to immediately contact Singlewire to have such account ID or passwords changed to prevent continued malicious use of the Customer account.

Singlewire reserves the right to monitor Notifications sent using the Service in order to monitor the Service’s performance and Customer’s compliance with this Agreement. Customer agrees that communications made through the Service are not considered “secure communications media” for the purposes of the Electronic Communications Privacy Act, and that Customer has no expectation of privacy in communications made through the Service.

Customer and its Users will comply with Singlewire’s Acceptable Use Policy, located at www.singlewire.com/aup and as updated from time to time by Singlewire (the “AUP”). Singlewire will attempt to send notices of changes in the AUP to Customer via email. Changes to the AUP are effective upon posting.

To the extent the Service permits the use of third-party active directories, Customer shall only access and use those active directories that it has the right and license to access and use and shall comply with all terms and conditions applicable to Customer’s use of such active directory. Without limiting the foregoing, Customer shall only use its own access credentials to access and use any such active directories.

6. TERM AND TERMINATION.

This Agreement shall begin upon the earlier of Customer’s acceptance of this Agreement or Customer’s use of the Service and shall continue until the subscription granted in accordance with this Agreement has expired or been terminated.

Upon the expiration or termination of Customer’s subscription, Customer shall cease all use of the Service and the Singlewire Materials and delete all copies of Installed Technology in the form of software. Customer acknowledges that its ability to access or use the Service and Singlewire Materials may be automatically disabled upon the expiration or termination of Customer’s subscription.

Customer acknowledges that the Service may include technological means of determining compliance with this Agreement, and disabling the Service in the event of the breach or the termination of this Agreement. Singlewire may terminate this Agreement immediately, without judicial intervention or prior notice to Customer, if Customer fails to comply with any term of this Agreement. For clarity, the termination of this Agreement will result in the termination of any then-current subscription. Upon the expiration or termination of Customer’s subscription, Customer shall immediately uninstall and delete all copies of any Installed Technology in the form of software and stop use of all Installed Technology in the form of hardware.

7. INDEMNIFICATION.

Customer agrees to indemnify, defend and hold Singlewire and its affiliates, officers, agents, employees, service providers and suppliers harmless from any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of (a) User Data or Content, (b) Customer’s or Users’ use of the Service, or (c) Customer’s breach of this Agreement. Singlewire may participate in the defense of any indemnifiable claim with counsel of Singlewire’s choosing, at Singlewire’s own expense; provided, however that if Customer fails to provide a defense pursuant to the terms of this paragraph, such legal fees shall be at Customer’s expense. Customer will not enter into the settlement of any indemnifiable claim without the prior written consent of Singlewire, not to be unreasonably withheld.

8. WARRANTIES AND LIMITATIONS OF LIABILITY.

Among other additional terms and conditions, Singlewire’s limited warranty and its limitations of liability are found in the Additional Terms.


Updated May 2017

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