Ovation Customer Agreement Terms
These Ovation Customer Agreement Terms, together with the Order Form attached hereto, which is incorporated herein by reference (collectively, the “Agreement”), is a binding agreement by and between Ovation Up, Inc. DBA Ovation (“Company”) and the “Customer” set forth on the Order Form. In the event of any conflict in communications or prior documents, this Agreement will take precedence.
SAAS SERVICES AND SUPPORT
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer (a) the services set forth in the Order Form (the “Services”), and (b) technical support in accordance with Company’s standard practice. As part of the registration process, Customer will identify roles of users and provide information necessary to setting up accounts of said users.
Any development, customization, professional services, or reporting requests beyond the standard Services are not included in this Agreement and may be provided at Company’s discretion for an additional fee. Any such services will be quoted separately and require written approval by both parties prior to commencement.
CONFIDENTIALITY; PROPRIETARY RIGHT; EQUIPMENT
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas,
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations, including any such laws and regulations as pertaining to sweepstakes and contests, and the Telephone Consumer Protection Act of 1991. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
Except as set forth in the Order Form, Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for installing any Equipment on Customer’s premises and maintaining the Equipment in good working order. Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
CONFIDENTIALITY; DATA; PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to use such information and data to improve and enhance the Services and for other development, diagnostic and other purposes in connection with the Services and other Company offerings.
Company shall be permitted to use the name of Customer for general marketing purposes. Neither company shall infer any partnership or other relationship outside of what is herein expressed unless otherwise defined via contract, email agreement or other dated official documentation.
Customer can request copies of data about its customers that is stored by Company (e.g., names and other contact information) by sending an email request to hello@ovationup.com. Company may reject any such request if, in its reasonable discretion, it determines that such violates any applicable law or regulation. If Company does not reject a request as permitted by the previous sentence, Company will deliver the data to Customer within fourteen (14) days of Customer’s request. Customer shall not request data pursuant to this Section 3.4 more than once every thirty (30) days.
Company will not use Customer Data (a) for any purposes other than to provide the Service or (b) as expressly permitted by Section 3.2 herein.
Customer shall comply with all requirements of the Telephone Consumer Protection Act (“TCPA”) in connection with its use of the Services. Without limiting the foregoing, (a) Customer shall obtain an individual’s Prior Express Consent or Prior Express Written Consent, as defined in and required by the TCPA (collectively, “TCPA Consent”), before using the Services to send an SMS or other phone-to-text message to such individual; and (b) Customer represents and warrants to Company that his obtained the required TCPA Consent with respect to every phone number Customer provides or makes available to Ovation for purposes of providing the services. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of this Section 3.6.
Company shall use Customer’s Data only as permitted by applicable privacy laws, Company’s Privacy Policy, and this Agreement. By using Company’s Services, Customer confirms that Customer has read and understood Company’s Privacy Policy, which outlines how Company collects, stores, uses, and discloses Customer’s Data, including personal data. If Customer does not agree with Company’s Privacy Policy, Customer must stop using the Services. Customer agrees to periodically review Company’s Privacy Policy, as it may be updated from time to time.
To the extent the General Data Protection Regulation (GDPR) applies, Company shall handle Protected Personal Information subject to GDPR in accordance with these Terms, the Data Processing Agreement (“DPA”), and applicable law. The DPA is fully incorporated by reference into these Terms. In the event of any conflict between this Agreement and the DPA, the DPA shall prevail. Customers in other jurisdictions may contact Company to obtain relevant data processing terms.
Customer must comply with applicable privacy and data protection laws, ensure that any necessary notices are provided, and obtain required consents from employees and customers for the collection and use of their Data by Customer and Company. Company does not provide legal or compliance advice; Customer should seek professional counsel as needed.
If Company receives a subpoena, court order, or other legal request for Customer’s Data, Company will notify Customer before disclosing the requested information unless prohibited by law, law enforcement request, or the advice of Company’s legal counsel.
Upon termination of this Agreement, Customer is responsible for exporting and securely preserving Customer’s Data, including PII, by using any export or download features in the Services before the termination date. After the termination date, Company may delete Customer’s Data in accordance with Company’s data retention and deletion policies.
PAYMENT OF FEES
Except as set forth in Section 4.2, Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Unless otherwise stated, all prices are exclusive of any applicable sales, use, excise, or similar taxes. Customer shall be responsible for the payment of any such taxes imposed by sale, delivery, or use of the products or services provided under this agreement, which may be charged by Company.
4.1.1. Billing Commencement Date. Payment obligations for all items listed in the Order Form shall begin on the Billing Commencement Date specified in the Order Form. If no Billing Commencement Date is specified, payment obligations shall begin on the Effective Date.
All invoices issued under this Agreement shall be payable upon receipt. Payments shall be made via ACH transfer or Credit Card. The payor shall be responsible for any transaction fees associated with the chosen payment method including a 2.9% transaction fee for credit cards.
To send text messages through “text marketing” feature of the Service, Customer must purchase credits. If a customer exceeds the monthly allotment of credits, there will be a surplus charge for each credit used over the threshold. Unused monthly credit packages do not roll over to new months. Customer may use credits to send MMS and SMS messages at the following rates:
- MMS: Two (2) credits per message segment
- SMS: One (1) credit per message segment
For purposes of this Agreement, a “message segment” is a single message of up to 140 bytes. For GSM-7 encoded messages (i.e., messages that include only standard characters), this means up to 160 characters per segment for a single-segment message, and up to 153 characters per segment for multiple-segment messages. For UCS-2 encoded messages (i.e., messages that contain emoji and certain other special characters) this means up to 70 characters per segment for a single-segment message, and up to 67 characters per segment for multiple-segment messages.
Some text messages may be undeliverable due to carrier filters outside of Company’s control. Company is not responsible for such limitations and will not issue refunds or new credits for undeliverable messages.
NOTE – text messages that are in line with the one-on-one feedback responses are classified as “feedback” services, not “text marketing” services, and are not subject to the credit system described in this Section 4.2.
If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the billing statement in which the error or problem appeared, in order to receive an adjustment or credit with exception of fraud or negligent misrepresentation in which case 365 days after closing date window. Contract is considered fulfilled when the customer has been billed equal to the number of months of the contract, even if a customer was billed the month after the contract signed date. Inquiries should be directed to Company’s customer support department and hello@ovationup.com.
RENEWAL TERMS, TERM AND TERMINATION
At conclusion of the Initial Term, this agreement will automatically renew for an additional successive one (1) year terms (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either party provides written notice of nonrenewal at least sixty (60) days before the end of the then-current term. Any notice of nonrenewal or cancellation by Customer must be submitted in writing to Customer’s assigned Ovation Customer Success Manager, with a copy sent to cancellation@ovationup.com, and must include the Customer name, account name, and requested termination date, to be considered valid notice under this Agreement.
This Agreement may be terminated before the expiration date of the Term on written notice by Company, if Customer fails to pay any amount when due hereunder, or by either party:
if the other party breaches any provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching party within thirty (30) days after the breaching Party’s receipt of written notice of such breach; or
if the other party (a) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law that is not dismissed within sixty (60) days, (b) makes or seeks to make a general assignment for the benefit of its creditors, or (c) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business, or has such an appointment made without its consent and not vacated within sixty (60) days.
The expiration or termination of this Agreement, for any reason, shall not release either Party from any obligation or liability to the other Party, including any payment and delivery obligation, that (a) has already accrued hereunder; (b) comes into effect due to the expiration or termination of the Agreement; or (c) otherwise survives the expiration or termination of this Agreement.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WITH EXCEPTION TO INDEMNITY OBLIGATIONS, CONFIDENTIALITY OBLIGATIONS, ACTS OF FRAUD OR WILLFUL MISCONDUCT.
MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. However, Customer and Company may publicize a working relationship. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. This Agreement shall be governed by the laws of the State of Utah without regard to its conflict of laws provisions.
