Spokesly Products And Services
These general terms and conditions are part of the contract to which they are
attached (the “Agreement”) and apply to your use of any data provided by Spokesly Inc. (“Spokesly”),
or its Parent, branches, affiliated companies or subsidiary companies established in USA, India,
Australia and in other countries not listed in this agreement explicitly whose data or Services are
referred to collectively as the “Data.”
The titles and subtitles in these Terms are used for convenience only and are
not to be considered in construing it. All references herein to “including” and variations thereof
shall be deemed to mean, “including, but not limited to.”
These Terms and Conditions (these “Terms”) represent a legal agreement between
you and Spokesly inc. (“Spokesly”) and govern your use of all of the following
(i) this website and any related website operated by Spokesly (the “Site”);
(ii) any products, services or applications offered by Spokesly in connection
with the Site (the “Products”); and
(iii) any information, data or other materials contained in or accessible by
means of the Site or the Products (the “Information”).
By accessing or using any of the Data, you acknowledge that you have read,
understood, and agree to be bound by and comply with these Terms.
1. Ownership.
(i) The term “Spokesly Property” means all software, source code, database,
tools, automation scripts, services, software interfaces such as API(Application Programming
Interface) or SDK (Software Development Kit), computer programs, files, systems, documentation,
information, content, graphics, page layouts, site designs, web frameworks, authentication
mechanisms and user interfaces utilized or provided by Spokesly, work product produced by Spokesly,
and derivate works of any of the foregoing, including, without limitation, the website or websites
made available to you by Spokesly, any HTML programming performed as part of providing you with Data
and any other special programs, scripts, features and functionalities, interfaces and other work
product, ideas, concepts, designs or techniques which Spokesly may develop, use or rely upon in
providing the Data s to you.
(ii) All Spokesly Property shall be and will remain the property of Spokesly
Inc. and is proprietary and covered under all international copyright and patent laws and is not to
be infringed on by any means or mechanisms explicitly or implicitly and directly or via any other
third party source or mechanisms.
(iii) As between you and Spokesly, Spokesly shall be the sole and exclusive
owner of all patents, copyrights, trademarks, trade secrets and other intellectual property rights
in and to the Spokesly Property and the Data.
2. Products.
Use of certain Products may be subject to ADDITIONAL TERMS & CONDITIONS,
including payment of fees, which Spokesly will post on the Site. When you register for or use such
Products, such additional terms and conditions will apply and be deemed incorporated into these
Terms.
3. Limited License.
Upon your execution of the Agreement and the payment of all amounts due to
Spokesly, you are granted a personal, nontransferable and nonexclusive license to use the Service or
Data solely for your direct marketing, market research and customer prospecting purposes, in strict
accordance with the terms of the Agreement. If no usage period is selected, the license’s term shall
be for a period of one (1) year. Company shall retain all right, title and interest in and to the
Production/Services and all intellectual property contained therein. Upon expiration or termination
of the Agreement, you shall discontinue use of the Service or Data and, as requested by Spokesly,
either (i) return the Data to Spokesly without retaining any copies thereof or any notes or other
information thereon or (ii) provide a certificate, executed by you, in form and substance
satisfactory to Spokesly, that the Data or Data originating from our Service to you has been
destroyed in such a manner to render the Data permanently unreadable and unrecoverable.
4. Limitations on Use.
(i) Unless specifically authorized in advance and in a written agreement duly
signed and authorized by Spokesly, you will not share, sell, transfer or otherwise make the Data
available to any third person or entity and you will use your best efforts to prevent the misuse or
unauthorized use of the Service or Data by any third person or entity.
(ii) You will not name or refer to Spokesly or its related entities for your
use of the Data in any of your advertisements or promotional or marketing materials.
(iii) You will not use the Data for consumer credit purposes, underwriting
consumer insurance, employment purposes, tenant screening purposes, for any other purpose covered by
the federal Fair Credit Reporting Act or for any other purpose not expressly authorized by the
Agreement.
5. Your Responsibilities; Use of Email Data; Review and Audit by Spokesly.
(i) Your use of the Data will comply with all applicable federal, state,
local and foreign laws, statues, rules and regulations (“Laws”), including Laws regarding
telemarketing, email and facsimile marketing, customer solicitation and all applicable guidelines of
the Direct Marketing Association (“DMA”). If you are not a member of the DMA, you will use your best
efforts to comply with the DMA’s guidelines.
(ii) You will not Make any Information available to Spokesly if doing so
would violate any applicable Laws, industry or professional codes or standards, contractual or
fiduciary obligations, confidentiality obligations, or employer policies or other requirements to
which you are bound;
(iii) You will not Transmit any information, data, images, or other materials
that are unlawful, harmful, threatening, harassing, libelous, defamatory, vulgar, obscene or
otherwise objectionable or that may invade another’s right of privacy or infringe any intellectual
property right, including patent, trademark, service mark, trade secret, copyright or other
proprietary rights of any third party;
(iv) You will not Impersonate any person or entity or falsely state or
otherwise misrepresent your affiliation with a person or entity;
(v) You will not Violate or attempt to violate the security of any of the
Data, or Site, including: logging in to a server or account that you are not authorized to access;
attempting to scrape, extract, test, scan, probe or hack the vulnerability of the Site or any
network used by the Site or to breach security, encryption or other authentication measures; or
attempting to interfere with the Site by overloading, flooding, pinging, mail bombing or crashing
it;
(vi) You will not Reverse engineer, decompile or disassemble any portion of
the Data or Site; or
(vii) You will not “Scrape” information from the site, or use or attempt to
use any engine, software, tool, agent or other device or mechanism (including browsers, spiders,
robots, avatars or intelligent agents) to navigate or search any portion of the Site, other than the
search engine and search agents available from Spokesly on the Site and generally available to third
party web browsers (e.g., Mozilla Firefox, Google Chrome and Microsoft Internet Explorer).
(iix) You shall: (i) provide true, accurate, current and complete information
about yourself if prompted by the registration form or any signup or similar form on the site; and
(ii) maintain and update this information to keep it true, accurate, current, and complete.
(ix) You will not violate any applicable international, federal or state
laws, regulations or rules or any securities exchange requirements (collectively, “Laws”), including
by using any Information in a manner that violates the U.S. CAN-SPAM Act of 2003 or the Canadian
Anti-Spam Legislation, as such statutes may be amended from time to time;
(x) Your use of any email Data will comply with all applicable Laws,
including the CAN-SPAM Act, COPPA, and any State Registry laws.
(xi) Spokesly reserves the right to review your use of the Data to ensure
compliance with this Agreement, but any failure of Spokesly to review such use will not constitute
acceptance of such use or waive any of Spokesly’s rights hereunder or limit any of your obligations
with respect to the Data. At any time upon at least 3 days’ notice, Spokesly may audit your records
to determine whether you are in compliance with this Agreement and you will make available to
Spokesly or its representatives all records necessary for the conduct of such an audit.
6. Restrictions.
(i) You may not develop or derive for commercial sale any Data or other
Information in any form, including an individual’s contact information or lists of multiple
individuals’ contact information, that you may be granted access to through use of Spokesly’s
products and services. Except with the prior written consent of Spokesly, you may not transfer or
disclose any Data or other Information to anyone else. You may only use the Site for commercial
purposes after registering and paying any applicable fees for one or more applicable Spokesly
Services. You may not use the Services in a commercial service bureau environment including any
provision or export of Information to third parties in any form whatsoever. You may use the Services
solely for personal and/or your internal business purposes only, subject to the limitations set
forth herein and in compliance with all applicable laws, including the U.S. CAN-SPAM Act of 2003 and
the Canadian Anti-Spam Legislation.
(ii) You may not modify, copy, distribute, display, publish, license, create
derivative works from, transfer or sell any Data or other Information, except that you may store,
print and/or email personal or company summaries of Information as needed for your personal use
(provided that such use is in compliance with these Terms).
7. Submissions.
(i) You are solely responsible for the accuracy of the content of any
submission you make to the database through your participation in Spokesly Exchange or any other
similar program. Spokesly reserves the right, but does not assume any obligation, to delete messages
or other content that Spokesly, in its sole discretion, deems abusive, defamatory, obscene, in
violation of copyright or trademark laws, or otherwise unacceptable.
(ii) Spokesly does not want to receive confidential or proprietary
information from you except for what is or would be publicly available under applicable copyright
usage provisions or is free and public information in any public accessible open domain such as the
Internet or any other such digital or non-digital public source or domain. Any information or
material submitted by you to Spokesly through Spokesly Exchange, or in any other manner, will be
deemed NOT to be confidential. By sending Spokesly any information or other material, you grant
Spokesly a non-exclusive, unrestricted, irrevocable, perpetual, royalty-free, worldwide, assignable,
transferrable, licensing, right and Sub-licensing right, in all formats or digital or non-digital
media, whether now known or hereafter devised or discovered, to use, reproduce, display, transmit,
translate, rent, sell, modify, disclose, publish, create derivative works from and distribute that
material or information, and you also agree that Spokesly is free to use any ideas, concepts,
know-how or techniques, mechanisms, designs and such that you send us for any purpose. You further
agree to indemnify, defend and hold Spokesly harmless from any liability arising due to the use or
distribution of any such material or information.
8. Provision And Change To Services.
(i) Spokesly may make improvements or changes in the Data at any time
without notice.
(ii) Spokesly shall not be responsible for any failure to remove, or delay in
removing, harmful, inaccurate, unlawful, or otherwise objectionable content originating with or
otherwise provided by third parties except to the extent provided by law.
(iii) Spokesly will use reasonable commercial efforts to protect the
integrity of data collected by you and stored with the Site. However, Spokesly shall not be liable
for any loss or damage resulting from total or partial loss of your data or from any corruption of
your data. Data can get lost or become corrupt as a result of a number of causes, including hardware
failures, software failures or bugs, or communications failures. Spokesly recommends that you
periodically back up your information and web summaries onto media not associated with Spokesly,
including printing a hard copy.
(iv) Spokesly will use reasonable commercial efforts to provide the Services
on a 24/7 basis but it shall not be responsible for any disruption, regardless of length.
9. Termination.
The term hereof will commence when you first access the Data and continue in
effect until terminated by either party, provided that your License with respect to particular
Products may sooner expire as provided herein. Spokesly may, in its sole discretion, terminate or
suspend your access to all or part of the Data for any or no reason and with no prior notice to you;
provided, however, if Spokesly terminates for a reason other than your misconduct or breach of these
Terms, and you have prepaid for Data, Spokesly will recompense you on a pro rata basis for such
pre-paid amounts. You may terminate these Terms at any time by discontinuing use of the Data. Upon
termination of these Terms for any reason, the License will likewise terminate and you shall
immediately cease using the Data, including the Information. Any provision that must survive in
order to give proper effect to its intent (e.g., indemnity, general, any perpetual or Single use
license, limitations on liability, disclaimers, representations and warranties, etc.) shall survive
the expiration or termination of these Terms.
10. Links.
The Site contains links to websites that Spokesly does not operate. Spokesly
is not responsible for the content of these websites, and you should direct any concerns regarding
these websites to their respective site administrators or webmasters.
11. Spokesly Warranty
Spokesly offers a replacement warranty for its products and services.
Customers may request a replacement if they identify data quality issues within 30 days of delivery.
To qualify for a replacement, the hard bounce rate must exceed 15% of the total contact volume as
per the contract. Spokesly may also consider other reasonable and verifiable evidence of data
inaccuracy, such as order falling outside your specified requested criteria.
12. Limitation of Liability
Spokesly will not be liable for any claim, demand, loss, liability, damage,
injuries, cost or expense (including reasonable attorneys’ fees and legal costs), whether general,
direct, special, incidental, consequential or other damage caused in whole or in part or directly or
indirectly by any use of the Data or any alleged or actual failure by Spokesly to comply with the
terms of the Agreement, whether or not any such damages were foreseeable or whether Spokesly was
advised of the possibility of such damages.
13. Privacy
Your use of the Data is subject to Spokesly’s Privacy Policy, the provisions
of which are incorporated herein by this reference. By using the Data, you acknowledge and consent
to Spokesly’s Privacy Policy, including Spokesly’s collection, use and disclosure of information.
14. Changes to the Terms
Spokesly may modify these Terms at any time by posting changes on the Site;
however, (i) such changes will only become effective and binding after Spokesly provides notice on
the Site or by email that these Terms have changed, and your first use the Data following the date
of such posting, (ii) the changes will only apply with respect to your use of the Data after such
changes become effective, and (iii) any imposition or change of fee obligations will only apply if
and when you expressly agree. If at any time you find these Terms unacceptable and do not agree with
them, you thereafter will have no right to use or access the Data.
15. Your Indemnification of Spokesly.
You shall indemnify, defend and hold harmless Spokesly, its stockholders,
directors, officers, employees, independent contractors and agents against any claim, demand, loss,
liability, damage, injury cost or expense (including attorneys’ fees and legal costs) which arises,
directly or indirectly, out of your act or omission with respect to the Data or any violation of the
Agreement or any violation of Laws.
In addition to money damages, Spokesly shall be
entitled to seek
equitable relief where appropriate if you breach of any of these Terms.
16. Interruption of Service
You acknowledge that, given the technical nature of resources Spokesly
requires to provide the Data to you, temporary interruptions may occur in the provision and Delivery
of Data and that any such interruptions shall not result in Spokesly having any liability to you or
others and shall not suspend or eliminate your payment obligations to Spokesly or provide you with
any refund rights for amounts previously paid to Spokesly.
17. No Assignment by You
You may not assign your rights or obligations under the Agreement to any
other person or entity without the prior written consent of Spokesly, whether by operation of law or
otherwise, and any attempt to do so shall be void.
18. Additional Remedy of Termination
In addition to all other legal rights and remedies available to Spokesly for
any apparent, threatened or actual breach or violation of the Agreement by you, Spokesly has the
right to terminate the Agreement and demand immediate return or destruction of the Data at any time
if Spokesly believes you are not complying in full with the Agreement.
19. Governing Law; Jurisdiction
The Agreement shall be governed by and construed under the laws of the State
of California, without regard for the principles of conflicts of law of that State or any other
state. Any litigation or other dispute relating to or arising under the Agreement shall only be
brought in the state or federal courts located in Santa Clara County, California and you agree to
submit to the exclusive jurisdiction of those courts and waive any objections to the venue of any
such proceeding in those courts.
20. Legal Expenses
The prevailing party in any legal action brought by one party against the
other that arises out of these Terms shall be entitled, in addition to any other rights and remedies
it may have, to reimbursement for its legal expenses, including court costs and reasonable
attorneys’ fees.
21. Notices
Notices required or permitted hereunder that are intended for you personally
and not all users of the Services will be sent to you at the most recent email address on file with
Spokesly. Notices to Spokesly shall be sent by email to [email protected].
22. Payment for Non-Invoiced Products
(i) Payment: You agree to pay Spokesly a fee in accordance with the fees,
charges and billing terms in effect at the time a fee or charge is due and payable. Fees charged are
nonrefundable. In the case of subscription products, the subscription term shall be effective for
the agreed upon period, after which the subscription term shall automatically renew for the
specified renewal period (if any) at the then current subscription price.
(ii) Recurring Billing:
Your acceptance of these terms constitutes your authorization to Spokesly to automatically charge
the credit/debit card provided by you, and in the case of subscription products, to continue
charging the credit/debit card at the agreed-upon intervals during the term of the subscription. You
agree to provide Spokesly with complete and accurate billing and contact information and to update
that information within thirty (30) days of any change to the billing information. Failure of the
recurring payment process does not absolve your payment obligations.
(iii) Interest Charges: There
will be no interest charges on any amounts which you fail to pay when due however a service charge
at the rate of $49.00 a month will be charged and additionally you agree to pay any charges incurred
at actuals for reporting to collection and/or for mediation, or any other such charges as may be
equal to the maximum rate allowed by applicable law, on the unpaid amount.
23. Entire Agreement; Amendment or Waiver
These Terms represent the entire binding agreement between you and Spokesly
with respect to the subject matter hereof, and supersede any and all prior understandings,
statements or representations, whether electronic, oral or written, regarding Data, Site or any
other Business dealings and Interactions. Certain Data, products and services provided by Spokesly
may have additional terms, guidelines, or rules that apply. By using or accessing such Data,
products and services, you agree to be bound by those additional terms, guidelines, or rules (which
shall control to the extent that they conflict with these Terms).
The Agreement may only be amended
by updated terms from Spokesly. No waiver of any breach of the Agreement shall be deemed a waiver of
a future breach, whether of a similar or different nature, and no waiver shall be effective unless
in writing signed by the waiving party.
The Person or Representative accepting these Terms on behalf
of each party represents and warrants that he or she has been duly authorized by that party to
accept the Agreement and thereby bind it to these terms. The parties agree that these Terms shall be
effective as of the date accepted by you.
24. Copyright & Related
Digital Millennium Copyright Act. If you believe that the Site contains
content that infringes on your copyright, please forward the following information to
[email protected]
You will have to include the particulars below for your complaint to be
registered
Your postal address, telephone number, and email address;
A description of the
copyrighted work that you claim has been infringed;
A description of where the alleged infringing
material is located;
A statement by you that you have a good faith belief that the disputed use
is
not authorized by you, the copyright owner, its agent, or the law;
An electronic or physical
signature of the person authorized to act on behalf of the owner of the copyright interest;
A
statement by you, made under penalty of perjury, that the above information in your notice is
accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
25. Execution; Counterparts
The Agreement may be executed in its original, by facsimile or in
electronically transmitted portable document format and it may be executed in any number of
counterparts, each of which shall be deemed an original of the same document.
