Effective Date: 9 August 2019
We have adopted the Australian Privacy Principles (APPs) contained in the Privacy Act 1988 (Cth) (the Privacy Act). The APPs govern the way in which we collect, use, disclose, store, secure and dispose of your Personal Information.
A copy of the Australian Privacy Principles may be obtained from the website of The Office of the Australian Information Commissioner at www.aoic.gov.au.
Collection and Use of Information on the VeMessage Website
We may collect the following personal information from users who visit our website:
- Contact Information such as name, email address, mailing address, phone number
- Unique Identifiers such as user name and password
- Information about your business such as company name and job title
- Work and salary history
We use this information to:
- Assess the needs of your business to determine suitable products
- Send you requested product or service information
- Respond to customer service requests
- Send you marketing communications
- Respond to employment inquiries
- Improve our website and marketing efforts
- Conduct research and analysis
User Data Supplementation
We purchase marketing data about our customers from third parties and combine it with the information we have already collected to help us ensure the data is accurate and complete. VeMessage will retain your information for as long as your account is active or as needed to provide you services. We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.
When you download and use our Services, we automatically collect information on the type of device you use and the operating system version.
We send you push notifications from time-to-time in order to update you about any events or promotions that we may be running. If you no longer wish to receive these types of communications, you may turn them off at the device level. To ensure you receive proper notifications, we will need to collect certain information about your device such as operating system and user identification information.
We do not ask for, access or track any location based information from your mobile device at any time while downloading or using our Mobile Apps or Services.
We use mobile analytics software to allow us to better understand the functionality of our Mobile Software on your phone. This software may record information such as how often you use the application, the events that occur within the application, aggregated usage, performance data, and where the application was downloaded from. We do not link the information we store within the analytics software to any personally identifiable information you submit within the mobile application.
Collection and Use of Information through the VeMessage Service
VeMessage collects information under the direction of its Clients, and has no direct relationship with the individuals whose personal data it processes. VeMessage works with its Clients to help them provide notice to their customers concerning the purpose for which personal information is collected. We collect the following kinds of personal information from our Clients:
- Contact Information such as name, email address, mailing address, phone number
- Unique Identifiers such as user name and password
- Information about your business such as company name and business type
We use this information to:
- Submit notifications, emergency warnings and updates to individuals on behalf of our Clients
- Assess system health and volume metrics and performance data
- Send you requested product or service information
- Respond to customer service requests
- Administer your account
- Send you marketing communications on an opt in basis
VeMessage will retain personal data we process on behalf of our Clients for as long as needed to provide services to our Client. VeMessage will retain and use this personal information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.
Disclosure of Information
We will share your personal information with third parties only in the ways that are described in this privacy statement. We do not sell your personal information to third parties.
Service Providers and Sub-Processors
We may provide your personal information to companies that provide services to help us with our business activities such as submitting promotional email communications and emergency alerts to you on behalf of VeMessage. These companies are authorized to use your personal information only as necessary to provide these services to us. VeMessage may transfer personal information to companies that help us provide our service to our Clients. Transfers to subsequent third parties are covered by the provisions in this Policy regarding notice and choice and the service agreements with our Clients.
We may also disclose your personal information:
- As required by law, such as to comply with a subpoena, or similar legal process
- When we believe in good faith that disclosure is necessary to protect our rights, protect your safety or the safety of others,
investigate fraud, or respond to a government request
- If VeMessage is involved in a merger, acquisition, or sale of all or a portion of its assets, you will be notified via email and/or a prominent
notice on our website of any change in ownership or uses of your personal information, as well as any choices you may have regarding
your personal information
- To any other third party with your prior consent to do so
Access to Information and Choice
Data Controlled by VeMessage
Upon request VeMessage will provide you with information about whether we hold any of your personal information. You may access, correct, or request deletion of your personal information by making the changes within your account settings or by contacting us via one of the methods listed below. We will respond to your request within a reasonable timeframe.
Data Controlled by Our Clients
VeMessage acknowledges that you have the right to access your personal information. VeMessage has no direct relationship with the individuals whose personal data it processes. An individual who seeks access, or who seeks to correct, amend, or delete inaccurate data should direct their query to the VeMessage’s Client (the data controller). If requested to remove data we will respond within a reasonable timeframe.
Out of respect for your privacy, you may choose to stop receiving our marketing emails by following the unsubscribe instructions included in these emails, accessing the email preferences in your account settings page or by contacting us via one of the methods listed below.
The security of your personal information and our Clients’ information is important to us. When you enter sensitive information (such as login credentials) we encrypt the transmission of that information using secure socket layer technology (SSL). We follow generally accepted standards to protect the personal information submitted to us, both during transmission and once we receive it. No method of transmission over the Internet, or method of electronic storage, is 100% secure, however. Therefore, we cannot guarantee its absolute security. If you have any questions about security on our website, you can contact us via one of the methods listed below.
As is true of most websites, we gather certain information automatically and store it in log files. This information may include internet protocol (IP) addresses, browser type, internet service provider (ISP), referring/exit pages, operating system, date/time stamp, and/or clickstream data. We may combine this automatically collected log information with other information we collect about you. We may combine this automatically collected log information with other information we collect about you.
We partner with a third party to either display advertising on our website or to manage our advertising on other sites. Our third party partners may use technologies such as cookies to gather information about your activities on this site and other sites in order to provide you advertising based upon your browsing activities and interests.
VeMessage also uses Google Analytics to monitor trends, performance, and the like. To learn more about Google Analytics, please see https://www.google.com/policies/privacy/partners/.
We may update this privacy statement to reflect changes to our information practices. If we make any material changes, we will notify you or our Client by email (sent to the e-mail address specified in your account) or by means of a notice on this Site prior to the change becoming effective. We encourage you to periodically review this page for the latest information on our privacy practices.
Links to 3rd Party Sites
Our Site includes links to other websites whose privacy practices may differ from those of VeMessage. If you submit personal information to any of those sites, your information is governed by their privacy statements. We encourage you to carefully read the privacy statement of any website you visit.
Blog / Forum
Our website offers publicly accessible blogs or community forums. You should be aware that any information you provide in these areas may be read, collected, and used by others who access them. To request removal of your personal information from our blog or community forum, contact us via one of the methods listed below. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why.
With your consent we may post your testimonial along with your name. If you wish to update or delete your testimonial, you can contact us via one of the methods listed below.
If you choose to use our referral service to tell a friend about our site, we will ask you for your friend’s name and email address. We will automatically send your friend a one-time email inviting him or her to visit the site. VeMessage does not store this information for additional purposes. If you believe that one of your contacts has provided us with your personal information and you would like to request that it be removed from our database, please contact us at firstname.lastname@example.org.
Social Media Features
Your privacy is extremely important to us. Please send all privacy concerns to email@example.com. Additional contact information can be found on the website. VeMessage.
90 Collins St., Melbourne VIC 3000, Australia
Vemessage Free Terms and Conditions.
Use of Vemessage Free constitutes acceptance of these terms and conditions Your use of the free, cloud based, hosted software-as-a-service of Vemessage (“Vemessage Free”), is expressly subject to these terms and conditions of service and creates a binding contract with Vemessage (the “Agreement”). The Agreement becomes effective when you electronically and affirmatively assent to this Agreement upon registration of your account with Vemessage to use and access Vemessage Free.
This Agreement applies only to Vemessage Free, which is a free product offered by Vemessage that showcases some of the features of the paid subscription products offered by Vemessage. Subscription products are governed by either the Hosted Services Policy, or a separately negotiated Hosted Services Agreement, as applicable.
Who are You?
The client is you (“You”) and/or the organization or company for whom you represent (“You” or the “Client”) in assenting to this Agreement.
If you registered an account using your corporate email domain, your organization is the Client, and the Client can modify and re-assign roles on your account, including your role, and otherwise exercise its rights under the Agreement. If Client elects to replace You as the Client representative with ultimate authority for the account, we will provide You with notice following such an election, and You agree to take any actions reasonably requested by us to facilitate the transfer of authority to a new representative of the Client.
If You use a personal email address to sign up for Vemessage Free, You will still be considered a representative of the company or organization for whom You use Vemessage Free. This means that your company or organization will be subject to this Agreement. By registering for an Vemessage Free account, You represent and warrant that you have the requisite legal authority to contract on behalf of your company or organization.
How long can You use Vemessage Free?
Vemessage makes its Hosted Service available to You based on the terms in this Agreement. During the period of your access and use of Vemessage Free (“Free Term”), and subject to your compliance with this Agreement, You are granted a worldwide, fully-paid, royalty-free, limited-term, non-sublicensable, non-transferable and non-exclusive license to access and use Vemessage Free for internal business purposes. The Free Term commences when you register or open your Vemessage Free account and agree to the terms and conditions of this Agreement and continues until You, the Client, or Vemessage terminates the Agreement.
Vemessage can terminate this Agreement at any time if You breach its terms and conditions. We will give you five (5) days’ notice if we discover that You have breached this Agreement and that we intend to terminate your access. We may also terminate your account and therefore this Agreement in the event of non-use or abandonment of your account.
You can terminate this Agreement at any time by closing your account or otherwise giving Vemessage notice of your intent to terminate the Agreement. Following termination, we will delete your Client Data (defined below) within sixty (60) days.
What are Your responsibilities when using Vemessage Free?
You are responsible for any equipment needed for your connections and applications. We are responsible for ours. You agree to use Vemessage Free service in compliance with the laws as related to telecommunications, anti-spam, do not call, and any other applicable law. You cannot resell, sublicense, lease, time-share or otherwise make Vemessage Free available to third parties other than explicitly stated in this Agreement. You cannot use Vemessage Free to send or store unlawful material or material containing software viruses, worms, Trojan horses or similar harmful code, files, scripts, agents or programs. You further cannot use Vemessage Free to impersonate someone or something when sending messages. You agree to not modify, copy or create their own similar systems based on Vemessage Free (this includes attempts to reverse engineer the service or access it for the purpose of building a competitive product).
Because it is so important, we are going to state it again: under no circumstances may You use Vemessage Free for competitive purpose. Any attempt to do so will be a material breach of this Agreement, and will be subject to further legal action, including but not limited to preliminary injunctive relief. You agree that if we prevail in any legal action, You will pay our attorneys’ fees and other costs related to litigation.
How does Vemessage get and use my data?
As the Client, You will supply Vemessage with your information (“Client Data”) in order to access the functionality of Vemessage Free. By accessing the service and providing the Client Data and Information, You are warranting that this information is true and accurate, and that You have authorization to provide the Client Data to Vemessage. In the event the Client Data is inaccurate, and/or You do not have authorization to provide the Client Data to Vemessage, You agree to indemnify Vemessage for any third party claims arising from Your provision of the Client Data and/or Your use of Vemessage Free. Please ensure that You have all requisite legal authority to provide Client Data to Vemessage Free prior to any provision of Client Data.
What is included with Vemessage Free?
You can get a comprehensive description of the features of Vemessage Free, as well a comparison with our subscription products, at https://vemessage.com/pricing, which will be updated from time to time, as we reserve the right to modify or even discontinue Vemessage Free in our sole discretion. There is no service level agreement applicable to Vemessage Free, and customer support services for Vemessage Free are limited to Community Support, which is defined and described at (https://vemessage.com/policy/client-support/). It is also important to note that SMS messaging, phone alerts, and conference calling are not included with Vemessage Free. Please see our messaging policy at https://vemessage.com/policy/ for further details (will be updated shortly).
Representations, Warranties, Indemnifications, and Limitations of Liability
You and Vemessage represent that each have the legal power to enter into this Agreement and will comply with all applicable laws when performing under this Agreement. Vemessage makes no other warranty, including any implied, statutory or any other warranties, including warranties of merchantability or fitness for a particular purpose. Vemessage is providing Vemessage Free at no charge, as-is and doesn’t warrant that the operation of Vemessage Free will be uninterrupted or free of errors.
Vemessage defends, indemnifies and holds You and your officers, directors, employees and agents harmless against any loss, damage or costs – including reasonable attorney fees – incurred in connection with claims, demands, suits, or proceedings made or brought against you by a third party alleging that use of our service contemplated under this Agreement (i) violates any applicable law or regulation or (ii) infringes the intellectual property rights of the third party, provided that the You promptly provide written notice of the claim to Vemessage. The latter represents Vemessage’ sole obligation and the Client’s sole remedy respecting infringement or misappropriation of third-party intellectual property rights.
You agree to defend, indemnify and hold Vemessage, its affiliates and each of their officers, directors, employees, and agents harmless against any loss, damage or costs – including reasonable attorney fees – incurred in connection with claims made against Vemessage or its affiliates by a third party alleging that the Client Data created and stored by You in the service or otherwise provided to Vemessage by You in connection with this Agreement (i) violates any applicable law or regulation; (ii) violates any third party’s privacy rights; or (iii) infringes any patent, copyright or other intellectual property right of a third party, provided that Vemessage (a) promptly gives the You written notice of the claim (provided that the obligations under this section shall not be reduced by the failure to give such notice except to the extent that the Client is materially prejudiced by such failure); (b) gives the You sole control of the defense and settlement of the claim (provided that You may not settle any claim unless it unconditionally releases Vemessage of all liability and obligation); and (c) provides You, at the your cost, all reasonable assistance.
EXCEPT FOR THE CLIENT’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION, OR EITHER PARTY’S BREACH OF THE CONFIDENTIALITY OBLIGATIONS ALSO SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF ANY SUBSCRIPTION FEES PAID DURING THE PRECEDING TWELVE (12) MONTHS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL VEMESSAGE OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE CLIENT FOR ANY LOST PROFITS, OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, AND WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT VEMESSAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In this Agreement, “confidential information” means all confidential and proprietary information of a disclosing party disclosed to the receiving party. Confidential information doesn’t include information that: (i) is or becomes generally known in a way that does not breach any obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure by the disclosing party without breaching any obligation owed to the disclosing party; (iii) was independently developed by the receiving party without breaching any obligation owed to the disclosing party; or (iv) is received from a third party without breaching any obligation owed to the disclosing party. The receiving party must not disclose the disclosing party’s confidential information for any purpose outside the scope of this Agreement, except with prior written consent from the disclosing party. Upon any termination of this Agreement, the receiving party shall continue to maintain the confidentiality of the disclosing party’s confidential information and, upon request and to the extent feasible, return to the disclosing party or destroy (at the disclosing party’s election) all materials containing the confidential information.
General and Additional Terms
No Amendment or Waiver. No amendment or waiver of any provision of this Agreement will be effective unless it is in writing and signed by the You and Vemessage. To the extent that there is any conflict between this Agreement and any other schedule or attachment, this Agreement shall prevail unless expressly stated otherwise. This Agreement represents the entire Agreement among the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
Force Majeure. Neither You nor Vemessage will be liable by reason of any failure or delay in the performance of obligations hereunder on account of events beyond the reasonable control of the party affected, which may include denial-of-service attacks, failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
Choice of Law, Jurisdiction, and Venue. This Agreement is governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules. Any dispute arising under this Agreement can only be brought in the courts located in Contra Costa County, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Please send all legal notices to Vemessage, Level 2, 90 Collins Street Melbourne.
Vemessage Free Users: Defined as users who have registered for a free subscription account or are listed as a user within an account and/or instance. These users and accounts do not have phone alerts or SMS messaging enabled, with only email and mobile push notifications to the Vemessage app enabled. Vemessage Free Users and accounts are not subject to a service level agreement, and customer support is limited to the Vemessage Community portal.
Full Users:Defined as users within an account and/or instance. Each user has the ability to login and access the account, initiate manual message workflows, access development features if authorized and interact with 2-way messaging on all supported communication channels (email, SMS, phone, etc.).
Base and Advanced
Full Users: Defined as users within an account and/or instance. Each user has the ability to login and access the account, initiate manual message workflows, access development features if authorized and interact with 2-way messaging on all supported communication channels (email, SMS, phone, etc.).
Stakeholders1: Defined as users who have the ability to receive 1-way messages on all supported communication channels (email, SMS, phone, etc.), but are not enabled for response options therefore, they cannot respond to them. In addition, these users do not have the ability to initiate any manual messaging workflows in the product, predefined or custom, as they can only receive messages.
Individual Stakeholders can be upgraded to Full Users and Individual Full Users can be downgraded to Stakeholders no more than three (3) times per year unless otherwise agreed to in writing with Vemessage.
Business Continuity Management (BCM)
BCM Users: Defined as users who have the ability to interact with 2-way messaging on all supported communication channels (email, SMS, phone, etc.). These users also have the ability to initiate any manual messaging workflows that are predefined in the product. BCM Users may only use the account in preparation for or in response to a Business Continuity Event.
Business Continuity Event (BCM): Because every client has different needs and different use cases that may constitute a disruption of business continuity, Vemessage’ clients agree to define and declare their own business continuity events within the generally accepted standards of the management of critical events, crisis management, disasters, and overall business impact analysis and contingency. As BCM events are typically infrequent, pricing for this product is discounted from other Vemessage products.
Full Users: Defined as users who have the ability to interact with 2-way messaging on all supported communication channels (email, SMS, phone, etc.). These users also have the ability to initiate any manual messaging workflows that are predefined in the product as well ones that have been customized for the client. In addition, where the product provides the capabilities to do so, Users can access development environment features. Users are restricted from using the application for Business Continuity alerts or Information Technology alerts.
1 Formerly known as Limited-Use Users or Standard Users.
- Use of the Services. You may only view, download, print one copy of the materials from, and use the Services subject to the following conditions: (a) the materials may be used solely for Your personal, non-commercial, and informational purposes; and (b) You may not modify or remove any copyright and other proprietary notices contained in the materials on any copies of the materials. Any use of the Services not expressly granted herein is prohibited. You may not (a) reproduce, republish, publicly display, perform, distribute, exploit, or otherwise use the materials or the Services for any public or commercial purpose or prepare any modification or prepare derivative works based on the contents from the Services; (b) propagate any virus, worms, trojan horses, or other programming routine intended to damage any system or data; (c) access the Services for the purpose of building a competitive product or service or copying its features or user interface; or (d) use the Services, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Vemessage’ prior written consent. In addition to this Agreement, You may also be subject to any additional terms applicable to a particular Service, which will be presented to You through the use of such Service. You also agree that You will not use the Services for any unlawful purposes.
- Fees. The Services are generally free. In the event that is not the case, You will be expressly presented with the applicable fees and the right to expressly accept the fees prior to Your use of the applicable Service (“Fees”). Fees are non-refundable. Any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including sales, use, or withholding taxes (“Taxes”) related to the Services shall be borne by You.
- Ownership; Copyright. The underlying software, algorithms (and the output of the algorithms and the Services), materials on the Site, and other materials accessed through the use of the Services are the exclusive property of Vemessage, copyrighted by Vemessage, and are protected by US Copyright Laws and international treaties. Vemessage reserves all rights in the Services and its content, not expressly granted herein.
- Trademarks. Vemessage is a service mark and trademark of Vemessage. Other marks, graphics, and logos used in the provision of the Services are Vemessage’ service marks, trademarks, and trade dress (“Marks”) and are the sole and exclusive property of Vemessage. Vemessage’ Mark’s may not be used in any manner by You.
- Postings and Feedback. If You submit any postings, feedback, ideas, or the like (“Information”) through the use of the Services, You acknowledge and agree that: (a) You have the right to provide the Information free of any restriction, (b) the Information is true and accurate, and (c) upon submission, the Information then becomes the property of Vemessage without any obligation of Vemessage to You of any kind, and Vemessage may use the Information in any manner without any compensation or reimbursement of any kind from Vemessage.
Vemessage has the right but not the obligation to: (a) Remove or refuse to post any Information for any reason or no reason, in its sole discretion, including without limitation any violation of this Agreement; (b) Disclose Your identity to any third party who claims that material posted by You violates their rights, including their intellectual property rights or their right to privacy; and (c) Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site.
Without limiting the foregoing, Vemessage has the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity of anyone posting any Information on or through the Site. You agree to waive and hold Vemessage harmless from any claims resulting from any action taken by Vemessage during or as a result of its investigations and from any actions taken as a consequence of investigations by either Vemessage or law enforcement authorities.
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, Vemessage has adopted a policy of terminating, in appropriate circumstances, and at Vemessage’ sole discretion, subscribers or account holders who are deemed to be repeat infringers. Vemessage may also at its sole discretion limit access to the Services or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If You believe that anything on the Services infringes upon any copyright that You own or control, You may file a notification with Vemessage’ Designated Agent as set forth below:
Designated Agent: Legal Department
Address of Designated Agent: 90 Collins St., Melbourne VIC 3000, Australia
Email Address of Designated Agent: info@Vemessage.com
PLEASE SEE 17 U.S.C. § 512(C)(3) FOR THE REQUIREMENTS OF A PROPER NOTIFICATION. IF YOU KNOWINGLY MISREPRESENT IN YOUR NOTIFICATION THAT THE MATERIAL OR ACTIVITY IS INFRINGING, YOU MAY BE LIABLE FOR ANY DAMAGES, INCLUDING COSTS AND ATTORNEYS’ FEES, INCURRED BY VEMESSAGE OR THE ALLEGED INFRINGER AS THE RESULT OF VEMESSAGE RELYING UPON SUCH MISREPRESENTATION IN REMOVING OR DISABLING ACCESS TO THE MATERIAL OR ACTIVITY CLAIMED TO BE INFRINGING.
- Links. The Services may contain links to other websites. Any such links do not represent an endorsement, sponsorship, or approval of the material on and/or generally of such website.
- DISCLAIMER AND LIMITATIONS. THE MATERIALS ON THE SITE, AND INFORMATION PRESENTED BY A THIRD-PARTY, AND THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF ANY THIRD-PARTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VEMESSAGE DISCLAIMS ANY AND ALL LIABILITY FROM ANY INACCURACIES RELATED TO THE SERVICES, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, AND/OR THAT THE RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE COMPLETE, ACCURATE, AND/OR RELIABLE. VEMESSAGE DOES NOT REVIEW ANY INFORMATION POSTED ON THE SITE AND/OR THROUGH THE USE OF THE SERVICES AND IS NOT RESPONSIBLE FOR ANY SUCH INFORMATION. VEMESSAGE CAN NEITHER REVIEW ANY AND/OR ALL INFORMATION BEFORE IT IS POSTED ON THE SITE NOR ENSURE PROMPT REMOVAL OF OBJECTIONABLE MATERIALS AFTER THEY HAS BEEN POSTED ON THE SITE AND DISCLAIMS ALL LIABILITY FOR ANY ACTION OR INACTION REGARDING TRANSMISSIONS, COMMUNICATIONS OR INFORMATION PROVIDED BY ANY USER OR THIRD PARTIES. CERTAIN STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES AND/OR LIMITATIONS ON CERTAIN DAMAGES. IF ANY OF THESE LAWS APPLY TO YOU, SOME OF THE PROVISIONS IN THIS SECTION MAY NOT APPLY NOT YOU.
IN NO EVENT SHALL VEMESSAGE OR ITS EMPLOYEES, DIRECTORS, OFFICERS, CONTRACTORS, OR AGENTS BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE MATERIALS PROVIDED ON, OR OTHERWISE RELATED TO, THE SERVICES, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE, EVEN IF VEMESSAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VEMESSAGE’ LIABILITY FOR DIRECT DAMAGES SHALL BE LIMITED TO FIFTY US DOLLARS ($50).
- Indemnity. You shall defend, indemnify and hold Vemessage and its employees, contractors, shareholders, subsidiaries, affiliates, and officers harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any claims made or brought against Vemessage by a third party resulting from Your use of the Services, including alleging that any Information infringes the rights of such third party.
- Term. This Agreement is effective upon Your first use of the Services. Vemessage may suspend or discontinue all or part of the Services (in general or specifically for You) for any reason with or without notice to You.
- Modifications. Vemessage may make changes to the Services at any time and by posting notice of a new version of the Agreement on the Site. You must check the Agreement before using the Service.
- Miscellaneous. Any disputes arising out of the use of the Services shall be governed by the laws of California, without regard to any conflict of laws principles, and any proceedings shall solely be brought in Contra Costa County, California. You represent and warrant that You are not located in a country that is subject to a U.S. Government embargo, designated by the U.S. Government as a “terrorist supporting” country, or subject to a similar designation; or listed on any U.S. Government list of prohibited or restricted entities. You also acknowledge that the Application may be subject to other U.S. and foreign laws and regulations governing the use of the Services and agree to comply with all such laws.
The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. Vemessage may provide You notice under this Agreement to the latest address it has on file for You. This Agreement may only be modified by an agreement signed by an officer of Vemessage. No failure or delay in exercising any right by Vemessage shall constitute a waiver of such right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. This Agreement constitutes the entire agreement between Vemessage and You, and supersedes any and all prior or contemporaneous agreements, understandings, and representations with respect to the information on and the use of the Services.
This Support Policy (“Policy”) describes the support services that Vemessage, inc. (“Vemessage”) provides to customers who have paid all applicable subscription fees for the “Hosted Service”. For purposes of this Policy, users of Vemessage Free are invited to use the Vemessage Community for support services; all other terms and conditions of this Policy apply to paid customers (“Customers”). Customers of Vemessage Starter are referred to as “Starter”, and Customers of Vemessage Base, Vemessage Advanced, Vemessage BCM, and Vemessage Employee Engage products are referred to as “Subscription” customers.
|Website Ticket Submission||Y||Y|
|Telephone||8 hrs x 5 Days||24 hrs x 7 Days|
Description of Services
Telephone Support: Vemessage will provide Customers with telephone access support services. Calls may be answered by any Vemessage call center during normal business hours defined as follows:
The Americas: 5AM (PT) to 5PM (PT);
Europe, Middle East and Africa: 9AM (GMT) to 6PM (GMT);
Asia Pacific (APAC): 9AM (AEST) to 6PM (AEST);
Excluding weekends and local holidays.
For all hours not covered above, Subscription customers will receive call-back assistance based on Severity as defined below.
Website Support: Customers may log support requests at info@Vemessage.com.
Vemessage Community: Vemessage hosts and maintains a knowledge portal called the Vemessage Community. This site can be accessed by all registered users, 24 hours a day, 7 days a week at http://support.Vemessage.com. The Vemessage Community contains self-service, knowledge-based articles designed to assist Customers with the use and operations of Vemessage’ products, as well community forums, product downloads and on-line documentation. Product announcements are sent through the Vemessage Community notification mechanism.
Management of cases
Language support: All support services are delivered in English.
Opening a case: Authorized contacts of the Customer who require assistance may call or log the ticket via the Vemessage Community portal. Unique cases will be opened for each identified issue or request. The following items are required with each case in order for Vemessage to provide Customers with rapid and complete assistance:
Please have the following information available:
- Company name
- Contact full name
- Telephone number
- Email Address
- Instance URL
- Business impact (e.g., which instance(s) are affected? Dev, Test, Prod)
- Articulate description of the problem / symptoms
- Steps to reproduce the issue and / or details on where issue was observed
- Including Event ID, date and time stamp of issue occurrence
- Error messages and or screen shots (if applicable)
Depending upon the issue reported, Vemessage may request additional items to further troubleshoot the request and provide a solution. Some items are time-sensitive due to system archiving schedules and 3rd party considerations (provider or aggregator). Additionally, screen-shots may be needed from a live event, for SMS (user phone #), local carrier information, etc.
Severity levels: When a case is opened, Vemessage works with our Customer to assign the appropriate severity to the case based on the criteria below. As the case progresses, the Vemessage Client Assistance team will inform you if the problem no longer fits the definition of the severity level originally assigned to the case and will adjust accordingly.
|Severity 1||Critical business impact. A complete loss of Production service, work cannot reasonably continue. All severity 1 production issues must be submitted by telephone.|
|Severity 2||High business impact. Production service functions seriously affected, but can be worked around or function with reduced performance. Or, if during implementation, project is completely blocked.|
|Severity 3||Minimal business impact. Production or Non-Production services affected. System is still usable, problems can be worked around and system can be used with minimal inconvenience.|
|Severity 4||Low business impact. Production or Non-Production services affected with minimal impact. Also includes how-to questions, feature requests, and documentation requests.|
Response Times: For all reported cases, Vemessage’ uses commercially reasonable efforts to deliver our service within these response time goals:
|Severity 1||Acknowledgement: 1 hour||Response: 2 hours|
|Severity 2||Acknowledgement: 4 business hours||Response: 1 business day|
|Severity 3 or 4||Acknowledgement: 1 business day||Response: 2 business days|
|Severity 1||Acknowledgement: 2 business hours||Response: 4 business hours|
|Severity 2||Acknowledgement: 6 business hours||Response: 1 business day|
|Severity 3 or 4||Acknowledgement: 2 business days||Response: 3 business days|
“Acknowledgment” is the amount of time from submitting the case to Vemessage and the time that the Customer is given an identifying case number. “Response” is the elapsed time until an Vemessage support engineer is assigned and actively working on the case.
Case escalation: In the case of Severity 1 issues, regular status updates will be provided and the case will be escalated to an on-duty manager and the Vemessage customer success or sales representative. Customer resources may be required to continue work within our service levels. If these resources are unavailable, Vemessage may lower the ticket severity until Customer resources become available.
Closure of support cases: Open cases will be considered to be resolved and will be closed when:
- Severity 1 – the Customer receives a workaround or information that resolves the issue and the Customer agrees that the issue has been resolved.
- Severity 2, 3 or 4 – one of the following conditions occurs:
- the Customer receives a workaround or information that resolves the issue and agrees that the issue is resolved, or
- the Case results in a defect being entered and the Customer has received a defect number for future reference, or
- the Customer has not responded to Vemessage for 10 business days. The case can be reopened if the issue has not been resolved.
Product defects: If the Customer encounters behavior that is contrary to the documented behavior of the product, a defect number will be generated and the case will be escalated to development. In general, the Severity Level is used to determine the Defect Priority; in some cases Vemessage may re-assign a Priority Level (higher or lower) after conversation with the Customer. We strive to provide our Customers with an excellent experience and rapidly correct Defects; at a minimum we ensure the following service levels:
|Priority||Temporary Workaround||Permanent Correction|
|One||Commercially reasonable effort until fixed or a suitable workaround provided or Customer lowers.||Within 30 business days.|
|Two||Commercially reasonable business hours effort or until Customer agrees to lower severity level.||Within 60 business days.|
|Three||In next feasible product release, Customer will be notified when a fix becomes available.||In next feasible quarterly product release.|
|Four||Feature requests are reviewed by the Vemessage product manager before each release.||All features are considered, but may or may not be included in a future release.|
Permanent correction time goals are from the date Vemessage reproduces the test case provided by the Customer and validates the defect.
Our support services consist of updates, product support and/or other support services including community access.
Limitation on supported releases: Vemessage will provide the support services described under this Policy solely for the current release. For more information on the product support lifecycle please refer to the Vemessage support matrix at support.Vemessage.com.
Supported configurations: Customer-hosted-components must be on a supported configuration including operating system levels, custom developed scripts, firmware levels, databases, devices, device drivers and application, as listed in the Vemessage product documentation.
Limitation on remote consulting: Vemessage cannot provide extended consulting services through Customer Support. Vemessage does have a consulting organization to assist Customers in project planning, installation, upgrades, integration, customized scripts, and programming. Vemessage reserves the right to advise Customers to use the consulting organization for additional assistance in resolving issues that fall outside the scope of this Policy.
Renewals: Typically, an Vemessage Sales Representative will contact the Customer approximately 60 days prior to the expiration date of their current Hosted Service subscription. Please contact Vemessage at info@Vemessage.com with any questions. Vemessage is not obligated to renew your contract if a lapse of service has occurred.
HOSTED SERVICE POLICY
This is the Vemessage’ Hosted Service Policy (“Policy”). This Policy, along with any terms specified in an Order Form and/or an equivalent ordering document forms the complete agreement for provision and use of the Hosted Service.
(Updated August 6, 2019)
TERMS AND CONDITIONS
“Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party.
“Consulting Services” means the installation, implementation, training or other professional services provided hereunder by Vemessage to Customer under a separately negotiated Statement of Work, Order Form, or other mutually executed ordering document for Consulting Services. For purposes of clarity, Consulting Services are optional, and Customer’s use of the Hosted Services does not require any Consulting Services.
“Content” means all text, data, images, code, material, and/or other content uploaded by Customer for distribution through the messaging functionality (email, voice mail, SMS/text/push notifications, and conference calling) of the Hosted Service.
“Confidential Information” has the meaning set forth in Section 11.
“Control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity.
“Customer Data” means all Content and other data stored by Customer or any of its Affiliates in the Hosted Service, including the contact data of authorized Users.
“Customer Equipment” means Customer’s and its Affiliates’ computer hardware, software and network infrastructure used to access the Hosted Service.
“Documentation” means the description of the Hosted Service and related materials generally available on the Vemessage website for paid subscribers to the Hosted Service.
“Extension Term” means each renewal subscription period for which the subscription term applicable to an Order Form is extended pursuant to Section 13.
“Hosted Service” means the on demand, cloud-based software, applications, application programming interfaces, and platform services provided by Vemessage which is accessed via the Internet.
“Initial Term” means the first subscription term period for the Hosted Service defined on an Order Form, or if no such period is defined, twelve (12) months, commencing on the date Customer executes such Order Form or the effective date stated in an Order Form.
“Order Form” means an ordering document for the Hosted Service signed by Vemessage and Customer.
“Statement of Work” means an ordering document for Consulting Services signed by Vemessage and Customer.
“Subscription Fees” mean the fees paid by Customer for the right to access and use the Hosted Service and receive standard support during the Term.
“Support Policy” The current version of the Support Policy is published by Vemessage at https://vemessage.com/policy/.
“System Availability” means the percentage of total time during which the Hosted Service is available to Customer and Customer is able to access the Hosted Service system interface.
“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
“Term” means the Initial Term and each subsequent Extension Term, unless terminated in accordance with Section 13.2, applicable to each Order Form.
“Users” means Customer’s and its Affiliates’ employees, agents, contractors or consultants, each of whom are (i) a natural person; (ii) authorized by Customer to use the Hosted Service; and (iii) supplied user identifications and passwords by Customer or by Vemessage at Customer’s request. Users may not include distribution lists unless each recipient of the distribution list is also a User as defined herein.
“Work Product” means all work developed or created by Vemessage for Customer during the course of providing Consulting Services to Customer pursuant to a Statement of Work. Work Product does not include any Customer Data or Confidential Information, or any Intellectual Property and/or title in and ownership by Vemessage in the Hosted Service.
- TERMS OF HOSTED SERVICE. Vemessage shall make the Hosted Service available to Customer in accordance with this Agreement, the Documentation, and each mutually executed Order Form. Subject to the terms of this Agreement, Vemessage grants Customer and its Affiliates a world-wide, fully-paid, royalty-free, limited term, non-sublicensable, non-transferable, and nonexclusive license to access and use the Hosted Service for Customer’s internal business purposes.
- CUSTOMER RESPONSIBILITIES, REPRESENTATIONS, AND WARRANTIES RELATING TO USE OF THE HOSTED SERVICE.
3.1 Customer is responsible for obtaining and maintaining any Customer Equipment and any ancillary services, including telephone, internet, and other connectivity services, needed to connect to, access or otherwise use the Hosted Service.
3.2 Customer represents and warrants that it will used the Hosted Service in compliance with all applicable law, including telecommunications, anti-spam, do-not-call laws, and all applicable privacy laws. Customer further represents and warrant that it will obtain all requisite permissions, consents, and authorizations to provide the Customer Data to the Hosted Service and shall maintain all such required permissions, consents, and authorizations during the applicable Term. Customer shall indemnify Vemessage for any third-party claims arising out of Customer’s breach of this provision 3.2 as more fully set forth in Section 10 herein.
3.3 Customer shall be responsible for the accuracy of all Customer Data, including Customer Data consisting of employee contact information such as email addresses and telephone numbers. Customer further represents and warrants that it will maintain the accuracy of such Customer Data during the Term. Customer shall indemnify Vemessage for any third-party claim arising from Customer’s breach of this section 3.3 as more fully set forth in Section 10 herein.
3.4 Customer shall be responsible for all Content sent through the Hosted Service. Customer acknowledges and agrees that the Hosted Service may not be used to transmit (a) personal health information as defined under the Health Insurance Portability and Accountability Act; (b) government issued identification numbers, including Social Security numbers, drivers’ license numbers or other state-issued identification numbers; (c) financial account information, including bank account numbers; (d) payment card data, including credit card or debit card numbers; or (d) “sensitive” personal data, as defined under Directive 95/46/EC of the European Parliament (“EU Directive”) and any national laws adopted pursuant to the EU Directive, about residents of Switzerland and any member country of the European Union, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life, or the commission or alleged commission any crime or offense. Customer shall indemnify Vemessage for any breach of this section 3.4 as more fully set forth in section 10.
3.5 Customer agrees that it shall not: (a) resell, sublicense, lease, time-share or otherwise make the Hosted Service available to any third party other than as contemplated by this Agreement; or (b) use the Hosted Service to send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Customer shall indemnify Vemessage for any breach of this section 3.5 as more fully set forth in Section 10.
3.6 Customer agrees to not (a) modify, copy or create derivative works based on the Hosted Service; (b) reverse engineer the Hosted Service; (c) access the Hosted Service for the purpose of building a competitive product or service or copying its features or user interface; (d) create Internet “links” to or from the Hosted Service, or “frame” or “mirror” any content forming part of the Hosted Service, other than on Customer’s or its Affiliates’ own intranets or otherwise for its or its Affiliates’ own internal business purposes; or (e) use the Hosted Service, for purposes of benchmarking or other comparative analysis intended for publication without Vemessage’ prior written consent.
3.7 The license granted hereunder is limited to the maximum number of Users stated in an Order Form (by type where applicable), the terms and conditions set forth herein, and any additional terms and conditions specified on an Order Form. In the event Customer exceeds the number or the type of licensed Users, Vemessage will inform the Customer and Customer must either correct such excess usage within fourteen (14) days or pay the additional Fees for such additional licenses.
3.8 All Customers and Users are subject to the Vemessage’ policy on messaging scope and limits in effect as of the effective date of the then-current Initial or Extension Term. The current policy on messaging scope and limits is published by Vemessage at https://vemessage.com/policy. In the event Customer exceeds the limits and scope of messaging, Vemessage will inform Customer and Customer must correct such excess usage, pay any additional fees and costs associated with such excess messaging within fourteen (14) days, or Vemessage has the right to terminate this Agreement immediately.
3.9 Customer represents and warrants that it has the power and authority to enter into this Agreement and perform its obligations hereunder.
- CONSULTING SERVICES.Consulting Services will be provided on the terms set forth in a mutually executed statement of work or Order Form at the fees specified therein, and under the terms and conditions for any Work Product created thereunder.
5.1 As between the parties, Vemessage shall retain all ownership rights in the Hosted Service, the technology, software, hardware, products, processes, algorithms, user interfaces and know-how related to the Hosted Service, in each case to the extent not constituting Customer Information (as defined below).
5.2 Customer shall retain all ownership rights in the Customer Data and all data, text, files, data, output, or other information material that Customer or its Affiliates provides, develops, generates, or creates in conjunction with the Hosted Service (collectively, “Customer Information”).
5.3 Vemessage hereby grants Customer a royalty-free, fully paid-up, nonexclusive, worldwide, transferable (only to a successor in interest by way of merger, reorganization or sale of all or substantially all assets or equity), license to use, copy, modify or distribute the Documentation for its internal business purposes during the Term.
5.4 No license, right or interest in any Vemessage or Customer trademark, copyright, trade name or service mark is granted hereunder.
5.5 Vemessage shall own any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Hosted Service.
6.1 Unless otherwise specified on an Order Form, the Subscription Fees stated in each Order Form shall be effective during the Initial Term specified in that Order Form and Subscription Fees for the Initial Term and each Extension Term shall be payable in advance. If additional User subscriptions are added under an existing Order Form, the term of the additional User subscriptions shall be coterminous with the expiration of the Term applicable to such Order Form, If Customer does not cancel an Order Form at least 30 days prior to the last day of the Term, the Order Form will automatically extend for the same duration as the previous order or extension.
6.2 All undisputed fees due hereunder shall be due and payable within thirty (30) days of receipt of invoice. Any payment not timely received from Customer may result in suspension of Customer’s ability to access the Hosted Service until payment is received.
6.3 Unless otherwise provided, Vemessage’ fees do not include any Taxes, and Customer is responsible for paying all Taxes arising from its purchases hereunder, excluding Taxes based on Vemessage’ net income or property. If Vemessage has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount of such Taxes shall be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.
6.4 Unless otherwise provided in a Statement of Work, Customer shall reimburse Vemessage for all reasonable, pre-approved and appropriately documented, out-of-pocket travel and related expenses incurred by Vemessage in performing Consulting Services at Customer’s location, in each case in accordance with Customer’s standard expense policy if provided to Vemessage in advance of incurring such expenses. Customer shall be responsible for its own travel and out-of-pocket expenses associated with attending any training services at an Vemessage facility.
- SUPPORT.Provided Customer is current in payment of Subscription Fees due, Vemessage shall provide support in accordance with the terms and conditions described in Vemessage’ then current Support Policy. As long as this Agreement is in effect, the level of support shall not be materially less than that defined in Vemessage’ Support Policy in effect as of the Effective Date.
- VEMESSAGE’ WARRANTIES.
8.1 Vemessage represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all applicable laws in its performance hereunder.
8.2 Vemessage warrants that the Hosted Service will perform in all material respects in accordance with the Documentation. As Customer’s sole and exclusive remedy and Vemessage’ entire liability for any breach of the foregoing warranty, Vemessage will fix, provide a work around, or otherwise repair or replace the nonconforming Hosted Service, or, if Vemessage is unable to do so, terminate the license for the Hosted Service and return the Hosted Service Fees paid to Vemessage for the period beginning with Customer’s notice of nonconformity through the remainder of the Initial Term or Extension Term, as applicable.
8.3 Vemessage warrants that the Hosted Service will meet the Hosted Service System Availability level set forth in the Service Level Agreement (the “SLA”) in Schedule A. In the event of a breach of the foregoing warranty, as Customer’s sole and exclusive remedy, Vemessage will provide the remedy set forth in the SLA.
8.4 The Hosted Service performance and System Availability warranties set forth in Sections 8.3 and 8.4 respectively, shall not apply to the extent any problem which results in the Hosted Service performance or System Availability to be other than as warranted is due to: (i) third party software, hardware or network infrastructure outside of Vemessage’ third party hosted service provider; (ii) failure of the external internet beyond Vemessage’ network; (iii) electrical or internet access disruptions; (iv) any actions or inactions of Customer in violation of this Agreement; (v) attacks (i.e. hacks, denial of service attacks, malicious introduction of viruses and disabling devices) caused by third parties; or (vi) a Force Majeure event.
8.6 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY NOR ITS LICENSORS OR SUPPLIERS MAKES ANY WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VEMESSAGE DOES NOT WARRANT THE OPERATION OF THE HOSTED SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
- INTELLECTUAL PROPERTY INFRINGEMENT INDEMNITY.
9.1 Vemessage shall defend, indemnify and hold Customer, its Affiliates and each of their respective officers, directors, employees (collectively, “Customer Group”), and agents harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against any member of Customer Group by a third party alleging that use of the Hosted Service as contemplated hereunder (i) violates any applicable law or regulation or (ii) infringes the intellectual property rights of such third party, provided Customer (a) promptly gives written notice of the Claim to Vemessage (provided that the obligations under this Section 9.1 shall not be reduced by the failure to give such notice except to the extent Vemessage is materially prejudiced by such failure); (b) gives Vemessage sole control of the defense and settlement of the Claim (provided that Vemessage may not settle any Claim unless it unconditionally releases Customer of all liability and obligation); and (c) provides to Vemessage, at Vemessage’ cost, all reasonable assistance.
9.2 Vemessage will, at its sole option and expense: (i) procure for Customer the right to continue using the Hosted Service under the terms of this Agreement; (ii) replace or modify the Hosted Service to be non-infringing without material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate the license for the infringing Hosted Service and refund Customer all prepaid fees for the remainder of the then current subscription term after the date of termination.
9.3 Vemessage shall have no liability for any Claim to the extent the Claim is based upon (i) the use of the Hosted Service in combination with any other
product, service or device not furnished or approved by Vemessage, if such Claim would have been avoided by the use of the Hosted Service, without such product, service or device; or (ii) Customer’s use of the Hosted Service other than in accordance with this Agreement.
9.4 THE PROVISIONS OF THIS SECTION 9 SET FORTH VEMESSAGE’ SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
- INDEMNIFICATION BY CUSTOMER.
Customer shall defend, indemnify and hold Vemessage, its Affiliates and each of their respective officers, directors, employees (collectively, “Vemessage Group”), and agents harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Vemessage any member of Vemessage Group, by a third party alleging that the Customer Data and/or Content created and stored by Customer in the Hosted Service or otherwise provided to Vemessage in connection with the Agreement (i) was not authorized, permitted, or consented to by the applicable third party data subject asserting a Claim; (ii) violates any applicable law or regulation; or (iii) infringes any patent, copyright or other intellectual property right of a third party; provided, that Vemessage (a) promptly gives written notice of the Claim to Customer (provided that the obligations under this Section 10 shall not be reduced by the failure to give such notice except to the extent Customer is materially prejudiced by such failure); (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Vemessage of all liability and obligation); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
11.1 As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), 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, including the terms and conditions of this Agreement (including pricing and other terms reflected in Order Forms), Customer Data, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information (except Customer Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
11.2 Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party’s prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Vemessage represents and warrants that it will maintain the confidentiality of Customer Data in accordance with all applicable laws and, except as required by applicable law, will not disclose Customer Data to any third party for any purpose other than to provide the Hosted Service or Consulting Services to Customer, provided, however, that Vemessage may compile aggregate data related to Vemessage Customers’ usage, as a group, of the Hosted Service and may disclose such aggregate data to third parties to the extent that Customer is not identified as the source of such data. Each party represents and warrants that it will collect, maintain and handle all personal data in compliance with all applicable data privacy and protection laws. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
11.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the disclosure.
11.4 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
11.5. Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information and, upon request and to the extent practicable, return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing such Confidential Information.
- LIMITATION OF LIABILITY.
12.1 EXCEPT (i) FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS; OR (ii) EITHER PARTY’S MATERIAL BREACH OF SECTION 11 (“CONFIDENTIALITY”), IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE SUBSCRIPTION FEES PAID OR PAYABLE TO VEMESSAGE DURING TWELVE MONTHS PRIOR TO THE CLAIM.
12.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- TERM AND TERMINATION.
13.1 This Agreement commences on the Effective Date and continues until all User subscription licenses granted in accordance with this Agreement have expired or been terminated. The Initial Term applicable to each Order Form commences upon the effective date of a mutually executed Order Form. If not cancelled at least 30 days prior to the expiration of the Term, the Hosted Service subscription term applicable to such Order Form shall automatically renew for an Extension Term equivalent to the previous Term.
13.2 A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided herein. Upon any termination for cause by Customer, Vemessage shall refund Customer any prepaid fees for the remainder of its subscription term after the date of termination.
13.3 The parties’ rights and obligations under Sections 5, 6, 8.5, 9-12, 13.3, and 14 shall survive termination of this Agreement.
13.4 Upon the effective date of termination of an Order Form or this Agreement, Customer’s license to use the Hosted Service will cease.
14.1 If Customer is a federal government entity, Vemessage provides the Hosted Service, including related technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Hosted Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in this Agreement.
14.2 The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.
14.3 Notices (including notices of non-renewal and termination) shall be in writing and delivered to the address(es) stated in an Order Form by nationally recognized overnight delivery service or certified or registered U.S. Mail, and are effective upon proof of delivery.
14.4 No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and Vemessage. To the extent of any conflict between this Agreement and any other schedule or attachment, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or similar ordering document (other than a statement of work or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
14.5 Either party may include the other’s name or logo in Customer or vendor lists in accordance with the other’s standard guidelines.
14.6 No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
14.7 Neither party shall be liable to the other for any delay or failure to perform hereunder due to a natural disaster, action or decree of governmental bodies, communications line failure, or other circumstance beyond the reasonable control of a party that (i) hinders, delays or prevents a party in performing any of its obligations, and (ii) by the exercise of reasonable diligence such party is unable to prevent or provide against. Majeure Event”).
14.8 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms hereunder), without consent of the other party, to its successor in interest resulting from a merger, reorganization, or sale of all or substantially all of its assets. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.9 Each party agrees to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the provision and use of the Hosted Service.
14.10 This Agreement shall be governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules. Any dispute arising under this Agreement shall only be brought in the courts located in Contra Costa County, California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
SCHEDULE A TO HOSTED SERVICE POLICY (“Agreement”)
Service Level Agreement
Except as otherwise modified or defined herein, all capitalized terms in this Schedule A have the same meanings as set forth in the Agreement.
“Delivery Provider” means a third-party service provider used to send notifications to the User such as SMS providers, telephony services (e.g., AT&T, BT, Telstra), push notification providers (e.g., Apple and Google), or email providers.
“First Alert” means the first notification to the User assigned to review an initial alert for a new Event, provided that such notification must have been designated as “high priority” within the Hosted Service. Customers are responsible for ensuring correct and accurate contact information for each User to ensure that the Hosted Service is able to contact the User.
“Event” means the initiation of a trigger to the Hosted Service to notify one or more Users. Customers are responsible for ensuring a current non-deprecated method of event initiation is in use.
“Service Credit” means the percentage of the pro-rated monthly Subscription Fees for the Hosted Service that is awarded to Customer for a validated claim related to breach of the Hosted Service System Availability warranty during that month.
- SERVICE LEVELS
Vemessage’ will use commercially reasonable efforts to meet the following service levels for the Hosted Service.
Service Availability: During any calendar month, Vemessage will make the Hosted Service available for Customer access at these or greater levels of availability:
|99.90%||Vemessage Starter, Base and Engage|
|99.99%||Vemessage Business Continuity Management (BCM)|
Notification Delivery: For Vemessage Base and Advanced products only, Vemessage will deliver 99.9% of the First Alerts within five (5) minutes of an Event being triggered in any calendar month. Time is measured from the moment the Event is triggered within the Vemessage Hosted Service to the moment Vemessage delivers a First Alert to the Delivery Provider in accordance with the configuration of the system and the Users contact profile. Vemessage is not responsible for delays caused by factors outside Vemessage control including delays or failures of the Customer’s services, delays or failures of independent third-party Delivery Provider, Force Majeure Event or intentional or accidental filtering of network traffic by carriers or governments. Customer will configure and use the Hosted Service correctly in accordance with the Documentation to be eligible for this SLA.
- SERVICE LEVEL CLAIMS
In the event Vemessage does not meet its Service Levels in any one calendar month, the Customer will be entitled to a Service Credit. To file a claim with Vemessage, Customers must notify Vemessage within five (5) business days of the incident. For purposes of the preceding sentence, a Customer may notify Vemessage of an incident by initiating a Support Ticket in accordance with the Support Policy and, upon resolution of the incident, Customer may request a Service Credit. Vemessage will use log files, database records, audit logs, and any other information available to validate claims and make a good faith judgment on the applicability of Service Credits to said incident. Vemessage shall make information used to validate a Service Credit claim available for auditing by Customer at Customer’s request. The remedies set forth herein represent Customer’s sole and exclusive remedy for Vemessage’ breach of the Hosted Service System Availability warranty defined in this Schedule A.
If the Hosted Service Availability or Notification Delivery service levels are less than the percentages defined herein, Vemessage will provide Customer with a Service Credit for the month in which the failure to meet this warranty has occurred. Service Credits are not available for Vemessage Free, Starter or Engage products. The Service Credit will be calculated in accordance with the table below on a pro-rated monthly basis. If Customer submits one or more validated Service Credit claims under this warranty in each of three (3) consecutive calendar months, Customer may terminate the Agreement upon thirty (30) days written notice.
- SERVICE CREDITS
In any given month, Customer shall in no event be entitled to receive a credit that exceeds 100% of its monthly Subscription Fee. Service Credits may only be redeemed at time of renewal of the Agreement for an Extension Term. Upon Customer’s renewal of the Agreement for an Extension Term, Service Credits earned by Customer hereunder will be applied against Subscription Fees due for the Extension Term. If Service Credits cannot be applied to future Subscription Fees because the Agreement has expired or terminated or for any other reason, Vemessage will promptly pay Customer the amount of the Service Credit.