Terms of Service
Last Updated: 9/1/2016
THESE TERMS OF SERVICE ("AGREEMENT") GOVERN YOUR ACQUISITION AND USE OF TOGGLEHQ’S SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT BY CLICKING A CHECK BOX OR BUTTON (THE "EFFECTIVE DATE"), OR BY ACCESSING THE TOGGLEHQ SERVICES. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE TOGGLEHQ SERVICES.
Article I. definitions
Section 1.1 Defined terms
a. Customer Data means data or content contained in the Messages or data streams published by Customer or its users to the ToggleHQ Services.
b. Customer Service means the features, products, and services that Customer makes available on or through the Customer Products.
c. Customer Products means any websites, applications, or other portals accessible to End Users which are owned and operated by the Customer or at the direction of the Customer or under license from the Customer.
d. Data transfer means the total size of message payloads and metadata (measured in Gigabytes) delivered to your users by the ToggleHQ Platform during the Service Period.
e. Data storage means the total size of message payloads and metadata (measured in Gigabyte-months) stored within the ToggleHQ Platform during the Service Period.
f. End User means any subscriber, person or entity that uses the ToggleHQ Services to access, use, interact with, view or otherwise consume a Customer Service.
g. End User Data means any data or information of any End User that is provided to or obtained by any Party in the performance of its obligations under this Agreement, including but not limited to, all lists of End Users, former End Users, and all information relating to and identified with such End Users.
h. Fees means the money in US Dollars that Customer is obligated to pay ToggleHQ for the provision of the ToggleHQ Services.
i. Intellectual Property Rights means all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or any other state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.
j. ToggleHQ Dashboard means the section of the ToggleHQ website to which access is restricted, allowing the Customer to configure account settings, access and view information about their use of the ToggleHQ Services. Also known as the Developer Dashboard.
k. ToggleHQ Proprietary Materials means (i) ToggleHQ Services, ToggleHQ’s SDK's, API’s and Services Documentation; (ii) any content (other than Customer Service or Customer Products or any derivative works thereof) embodied in or used in connection with the implementation, operation, maintenance, or hosting of the ToggleHQ Services; and (iii) all Intellectual Property Rights embodied therein and all derivative works, improvements, updates, modifications, or translations thereof.
l. ToggleHQ Platform means ToggleHQ’s communications platform used by ToggleHQ to provide the ToggleHQ Services, for the transmission of text, rich messages, and other data (in website, application, and other formats), including any APIs to such platform.
m. ToggleHQ Services means ToggleHQ’s services provided under this Agreement.
n. Monthly Authenticated User or MAUTH means a unique user that has connected to the ToggleHQ Platform during the Service Period.
o. Message means data originating from or destined for delivery to a User that is sent or received through the ToggleHQ Services.
p. Order Form(s) means the form evidencing an order for the ToggleHQ Platform and ToggleHQ Services submitted online or in written or electronic form, specifying, among other things, the Effective Date, the applicable Fees, the billing period, and other charges, each such Order Form is automatically incorporated into and becomes a part of this Agreement.
q. Service Period means a calendar month.
r. Services Documentation means collectively, written guides and guidelines that describe the ToggleHQ Services, the operating instructions, getting started guides, user manuals, and help files, in written or electronic form, made available to Customer by download or on ToggleHQ’s website, and that are intended for use in connection with the ToggleHQ Services.
s. SLA means the service level agreement located at https://togglehq.com/sla as such may be updated from time to time.
t. Support means ToggleHQ’s technical support provided to its Customers.
u. Trademarks means all common law or registered trademark, service mark, trade name and trade dress rights and similar or related rights arising under any of the laws of the United States or any other country or jurisdiction, whether now existing or hereafter adopted or acquired.
Article II. licenses
Section 2.1 License to ToggleHQ Platform, ToggleHQ Services and Services Documentation
During the Term and subject to the terms of this Agreement, ToggleHQ grants to Customer and Customer accepts from ToggleHQ a non-exclusive, non-transferable limited license and right to access the ToggleHQ Platform and ToggleHQ Services for the transmission of, and data relating to, Messages as described in the Services Documentation.
Section 2.2 Customer License to ToggleHQ
Customer grants to ToggleHQ a non-exclusive, non-transferable, worldwide, perpetual, royalty-free license to collect, analyze or use data relating to its delivery of the ToggleHQ Service derived from, or related to, the Customer Data, including the generation of reports for internal, external, and public use. ToggleHQ shall distribute such data publicly only in aggregate, non-personally identifiable form that cannot be used to identify Customer and individual End Users. Customer grants to ToggleHQ a non-exclusive, worldwide, perpetual, irrevocable, sublicensable, royalty-free right and license to use and incorporate into the ToggleHQ Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of the ToggleHQ Services.
Section 2.3 Customer Data
Other than to the limited extent provided in Article II and Article III, Customer will have control over any and all Customer Data which Customer or End Users upload through the Customer Service. Customer hereby grants to ToggleHQ a non-exclusive, royalty-free, worldwide license during the Term of this Agreement to reproduce, distribute, publicly perform, publicly display and digitally perform the Customer Data in conjunction with the ToggleHQ Services. Additionally, Customer understands that the technical processing and transmission of the ToggleHQ Services, including any Customer Data provided by Customer, may involve (i) transmissions over various third party networks, and (ii) changes to conform and adapt to technical requirements of connecting networks or devices, and Customer consents to such transmission and changes.
Section 2.4 Use of Trademarks
Each party shall strictly comply with all standards with respect to the other party’s marks which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more marks of the other party. All uses of the other party's marks shall inure to the benefit of the party owning such mark. Notwithstanding the foregoing, ToggleHQ may identify Customer by name, with or without use of the Customer’s trademark, in general promotional lists of ToggleHQ’s customers without Customer’s prior consent.
Section 2.5 Licenses Restrictions
Except as specifically provided in this Agreement, the license grant under this Agreement does not permit Customer (directly or indirectly, in whole or in part) to: (a) reverse engineer or attempt to derive the source code from or create derivative works of the ToggleHQ Platform, or any portion thereof; (b) sublicense or distribute the ToggleHQ Platform or ToggleHQ Services or rent, electronically distribute, timeshare, or market ToggleHQ Proprietary Materials by interactive cable, (c) access, use, or copy any portion of the ToggleHQ Platform or ToggleHQ Services to directly or indirectly to develop, promote or support any product or service that is competitive with the ToggleHQ Services or ToggleHQ Platform, (d) remove any identification, patent, trademark, copyright, or other notice from the ToggleHQ Platform or ToggleHQ Services; (e) interfere with or disrupt the integrity or performance of the ToggleHQ Platform or ToggleHQ Services or third-party data contained therein; (f) attempt to gain unauthorized access to the ToggleHQ Platform or ToggleHQ Services, including access to other ToggleHQ customer’s data; (g) disclose or publish, without ToggleHQ’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the ToggleHQ Services; (h) use the ToggleHQ Platform and ToggleHQ Services including the transmission of Customer Data, in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign; (i) use, reproduce, distribute, or permit others to use, reproduce, or distribute any ToggleHQ Proprietary Materials for any purpose other than as specified in this Agreement; or (j) utilize ToggleHQ’s sandbox environment for commercial use, use in an app store or app marketplace, or in a manner that is noncompliant with the restrictions set forth by ToggleHQ as noted in the ToggleHQ Dashboard.
Section 2.6 Reservation of Rights
Customer acknowledges and agrees that except for the rights and licenses expressly granted to Customer in this Agreement, ToggleHQ shall retain all right, title and interest in and to the ToggleHQ Proprietary Materials and any derivatives, modifications or improvements of the foregoing; and, nothing contained in this Agreement shall be construed as conferring upon Customer by implication, operation of law, estoppel, or otherwise, any other license or right.
Article III certain rights and obligations of ToggleHQ
Section 3.1 certain rights and obligations of ToggleHQ
a. Delivery of ToggleHQ Services. Subject to the terms and conditions of this Agreement, including the payment of all applicable Fees as set forth in Section 5 below, ToggleHQ shall provide to Customer the ToggleHQ Services in accordance with the SLA at https://togglehq.com/sla as applicable, and Support, as applicable.
b. Suspension / Deactivation of an End User Account. ToggleHQ reserves the right, but not the obligation, to suspend or deactivate, or to require Customer to suspend or deactivate, an End User’s account and access to the ToggleHQ Services at any time for any reason, including the malicious use of the ToggleHQ Services, or use of the ToggleHQ Services to facilitate illegal activity.
c. Suspension / Deactivation of Customer. ToggleHQ reserves the right to suspend or deactivate a Customer’s account and access to the ToggleHQ Services if continued operation of the Customer Service threatens the stability or performance of the ToggleHQ Services or ToggleHQ Platform, or if the Customer Service is not implemented in accordance with the Services Documentation or uses the ToggleHQ Services to facilitate illegal activity.
d. Availability. Subject to the terms and conditions of this Agreement, ToggleHQ will use commercially reasonable efforts to make the ToggleHQ Platform and ToggleHQ Services available. ToggleHQ does not warrant that Customer’s or End Users’ use of the Service will be error-free or uninterrupted.
Article IV certain rights and obligations of customer
Section 4.1 certain rights and obligations of customer
a. Customer’s Service Responsibility. Except for the express obligations of ToggleHQ set forth in this Agreement, Customer is solely responsible for all activities required by or otherwise related to the development, production, delivery, updating and promotion of the Customer Service. Customer is solely responsible for all customer service issues relating to Customer Services, including functionality, warranty, and technical and End User support.
b. Compliance. Customer shall comply with all applicable laws in the performance of its obligations hereunder, and shall ensure that each of the following complies with all applicable law: (i) the Customer Services and all related features and functionality; (ii) the terms and conditions applicable to the Customer Services; (iii) the fees and charges applied to or in connection with any Customer Service; (iv) and all materials related to the Customer Services, including, without limitation, all marketing and informational materials and disclosures.
c. Notification of End User Misconduct. Customer shall notify ToggleHQ regarding any End User that engages in (or that Customer believes has engaged in) activity that is illegal, fraudulent, malicious, or violates any rights of any third party or the terms of this Agreement. Customer shall promptly notify ToggleHQ if it becomes aware of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of security related to the ToggleHQ Services. ToggleHQ will not be liable for any loss or damage arising from unauthorized use of any accounts, usernames or passwords.
d. Proper Implementation. Customer shall promptly fix any bugs in Customer Service or software that causes the ToggleHQ Services to be accessed in a way that is not consistent with the Services Documentation, or is otherwise detrimental to the performance of the ToggleHQ Platform or ToggleHQ Services.
e. Content Notices. Customer is responsible for processing and handling notices it receives from any third party claiming that Customer’s or its End User's content in connection with the ToggleHQ Platform and ToggleHQ Services violates such party’s rights including without limitation, notices pursuant to the Digital Millennium Copyright Act. ToggleHQ reserves the right to block any Customer Data and Customer account that violates the terms of Sections 2.4 and 4.1.
Article V fees and payment
Section 5.1 fees
a. ToggleHQ Fees. As compensation for its services under this Agreement, Customer shall pay to ToggleHQ the amounts set forth on the ToggleHQ website ( https://togglehq.com unless otherwise agreed in an Order Form, and Customer shall pay to ToggleHQ any applicable Support fees as ordered by Customer in an Order Form. Customer agrees to pay the applicable fees including any MAUTH, Data transfer and Data storage fees. There will be no refunds or credits for partial months of service, upgrades, downgrades, or unused months. Fees listed do not include any applicable sales, use, excise or VAT taxes. Customer shall be responsible for payment of all such taxes (excluding taxes based on ToggleHQ’s net income), fees, duties and charges, and any related penalties and interest, arising from the payment of such fees or the delivery or use of the ToggleHQ Services.
b. Upgrades, Downgrades, Cancellations. Prepaid package upgrades, downgrades, or cancellations must be processed within the ToggleHQ Administrative Portal. To ensure upgrades, downgrades, or cancellations are processed for an upcoming Service Period, requests must be submitted before the end of the current month (using Pacific Standard Time) to avoid billing of fees for the next month. Customer’s requested upgrades, downgrades and cancellations shall constitute an Order Form once confirmed by ToggleHQ.
c. Payment by Credit Card or ACH. Customer must maintain a payment method on file within the ToggleHQ Dashboard. Customer authorizes ToggleHQ to charge your payment method on file for all services purchased including Data transfer and Data storage fees. Customer authorizes ToggleHQ to use a third party to process payments and consents to the disclosure of your payment information to such third party.
d. Modification of Fees. ToggleHQ has the right to modify the ToggleHQ Fees and other charges upon written notice to Customer, which will be provided no less than thirty (30) days prior to the new charges going into effect. The notice period is not applicable to any free versions.
e. Billing Correspondence. ToggleHQ will send billing correspondence to the email address entered as billing contact by Customer in the ToggleHQ Dashboard.
f. Payment Disputes. In the event of a good faith dispute as to the calculation of a charge, Customer shall promptly give written notice to ToggleHQ stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by ToggleHQ of such partial payment shall not constitute a waiver of payment in full by ToggleHQ of the disputed amount. Customer agrees to pay all costs and expenses of whatever nature, including reasonable attorneys’ fees, incurred by or on behalf of ToggleHQ in connection with the collection of any unpaid amounts due to ToggleHQ hereunder.
g. Timely Payment; Suspension of Service. Any undisputed amount due to ToggleHQ under this Agreement and not paid within 30 days of invoice due date may be subject to a finance charge payable by Customer which is equal to one and one-half percent (1.5%) or the highest rate allowable by law, whichever is less, determined and compounded daily from the date such amount is due until the date such amount is paid. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle ToggleHQ to suspend Customer access to the ToggleHQ Platform and ToggleHQ Services without notice at ToggleHQ’s sole discretion.
Article VI warranties and disclaimers
Section 6.1 ToggleHQ Warranties
a. ToggleHQ warrants it has full power and authority to enter into and perform the ToggleHQ Services as described in this Agreement.
b. With respect to ToggleHQ Services, ToggleHQ represents and warrants that the ToggleHQ Services and ToggleHQ Platform provided to Customer hereunder will conform substantially to specifications set forth in the applicable Services Documentation, as may be amended from time to time at ToggleHQ’s sole discretion.
c. The preceding warranties will not apply if: (i) any products, services, or deliverables provided by ToggleHQ hereunder are used in material variation with this Agreement or the Services Documentation; (ii) any products, services, or deliverables licensed hereunder or any part thereof have been modified without the prior written consent of ToggleHQ; or (iii) a defect in any products, services, or deliverables provided hereunder has been caused by any of Customer’s equipment, software or third party software. In addition, the preceding warranties do not apply to downtime, service interruption or other related issues covered by ToggleHQ's SLA (the "SLA Obligations"). Customer's sole and exclusive remedies for ToggleHQ's failure to meet an SLA Obligation is described in the applicable SLA.
d. In the event Customer discovers that the ToggleHQ Services provided by ToggleHQ hereunder, as applicable, are not in conformance with the representations and warranties set forth in Section 6.1 and reports such non-conformity to ToggleHQ, ToggleHQ will, at ToggleHQ’s discretion, (i) exercise commercially reasonable efforts to correct the non-conformity at no additional charge to Customer, or (ii) refund Customer any prepaid fees covering the remainder of the then-current term dating from the Customer’s notice of such non-conformance. THE REMEDY STATED IN THIS PARAGRAPH AND THE REMEDY STATED IN TOGGLEHQ'S SLA, AS APPLICABLE, CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND TOGGLEHQ’S ENTIRE LIABILITY UNDER SECTIONS 6.1 OF THIS AGREEMENT.
Section 6.2 Customer Warranties
a. Customer represents and warrants that at all times during the term of this Agreement, Customer’s installation, configuration, and use of ToggleHQ Services shall (i) conform to specifications set forth in the applicable Services Documentation and (ii) comply with all license and use restrictions with respect to any third party software used by, or incorporated into, the ToggleHQ Services.
b. Customer hereby represents, warrants and covenants that prior to transmitting End User Data using the ToggleHQ Services and at all times thereafter, it will provide all necessary disclosures and obtain all necessary consents from each End User regarding the disclosures and uses of the End User Data by ToggleHQ and by Customer, including without limitation those consents and disclosures necessary pursuant to COPPA.
c. Customer further represents and warrants that, at all times while this Agreement is in effect, Customer shall maintain and adhere to all commercially reasonable security measures to protect Customer Service and the data contained therein from unauthorized control, tampering, or any other unauthorized access, including, without limitation, compliance with applicable laws.
Section 6.3 Disclaimers
a. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND SERVICES PROVIDED HEREUNDER BY TOGGLEHQ ARE PROVIDED "AS IS" WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH THE CUSTOMER. TOGGLEHQ DOES NOT REPRESENT OR WARRANT THAT THE TOGGLEHQ SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. THIS DISCLAIMER OF WARRANTY EXTENDS TO CUSTOMER AND END USERS OF CUSTOMER’S PRODUCTS AND SERVICES AND IS IN LIEU OF ALL WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT WITH RESPECT TO THE PRODUCTS AND SERVICES, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
Article VII indemnification and limitation of liability
Section 7.1 Indemnification
Customer will defend ToggleHQ, its officers, directors, employees, and the successors and assigns of the foregoing from and against any and all claims by an unaffiliated third party directly or indirectly arising from or related to (i) facts that, if true would constitute a breach of this Agreement by Customer, (ii) Customer’s or its End Users’ access to, use, misuse or illegal use of the ToggleHQ Service, Customer Data or End User Data, or (iii) the violation or infringement by the Customer Service or the Customer Products of such third party’s U.S. Intellectual Property Rights. ToggleHQ reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case Customer agrees to cooperate with any reasonable requests to assist ToggleHQ’s defense of such matter.
Section 7.2 Limitation of Liability
IN NO EVENT WILL TOGGLEHQ BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (II) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID OR PAYABLE TO TOGGLEHQ HEREUNDER DURING THE SIX MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
Article VIII term, termination, and effects
Section 8.1 Term and Termination
a. This Agreement shall commence on the Effective Date and unless otherwise indicated on an Order Form shall continue until on a month-to-month basis until terminated as set forth herein.
b. ToggleHQ may terminate this Agreement, without cause, upon providing Customer with thirty (30) days prior written notice.
c. Notwithstanding the foregoing, ToggleHQ reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any free, trial, or beta versions with or without notice.
Section 8.2 Effects of Termination
Upon expiration or termination of this Agreement, all licenses granted to the ToggleHQ Services and the Services Documentation shall expire. ToggleHQ shall discontinue the provision of the ToggleHQ Services, and Customer shall immediately pay any outstanding invoices for services rendered through the date of termination.
Article IX copyright
Section 9.1 Copyright Infringement
You may have heard of the Digital Millennium Copyright Act (the DMCA), as it relates to online service providers, like ToggleHQ, being asked to remove material that allegedly violates someone’s copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers. To learn more about the DMCA, visit copyright.gov/legislation/dmca.pdf.
Article X general terms
Section 10.1 Confidential Information
Definition. Confidential Information means any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, Services Documentation (in whatever form or media provided), inventions, processes, plans, financial information, End User data, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information if: (i) it was already known to the receiving party prior to the Effective Date of this Agreement, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or, (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party.
Each Party acknowledges and agrees that, from time to time, it may receive Confidential Information from the other Party. The Party that receives Confidential Information (the Receiving Party) hereby agrees (i) to hold the other Party’s (the Disclosing Party) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, (iv) not to copy or reverse engineer any such Confidential Information, and (v) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate need to know and shall be bound in writing to comply with confidentiality obligations at least as restrictive as the Receiving Party's confidentiality obligations in this Agreement.
Section 10.2 Entire Agreement; Severability
This Agreement, and any other references, appendices, exhibits or attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the parties concerning such subject matter. Except as provided in Section 10.11, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing (aside from an Order Form) that Customer may provide to ToggleHQ or use in connection with the procurement of ToggleHQ Services will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of ToggleHQ to object to such terms, provisions or conditions. In the event of any conflict or inconsistency among the following documents, the order of preference shall be: (1) the applicable Order Form, (2) this Agreement, (3) pricing per the ToggleHQ website ( https://togglehq.com If any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this Agreement.
Section 10.3 Waivers
The waiver by either Party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.
Section 10.4 Compliance with Export Controls and OFAC Regulations
The ToggleHQ Platform and ToggleHQ Proprietary Materials are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). Customer agrees that it will not import, export, re-export, transfer or otherwise use the ToggleHQ Platform or ToggleHQ Proprietary Materials in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the ToggleHQ Platform and ToggleHQ Proprietary Materials, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer will not engage in activity that would cause ToggleHQ to be violation of these laws and regulations, and will indemnify ToggleHQ for any fines, penalties or other liabilities incurred by ToggleHQ for Customer’s failure to comply with this provision.
Section 10.5 Relationship of the Parties
The Parties shall perform all of their duties under this Agreement as independent contractors, and nothing in this Agreement shall be construed to give either Party the power to direct or control the activities of the other Party, or to constitute the Parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. The Parties understand and agree that neither Party grants the other Party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other Party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other Party, or to transfer, release, or waive any right, title or interest of such other Party.
Section 10.6 Assignment
Neither this Agreement nor any rights hereunder may be transferred or assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, ToggleHQ may assign or transfer this Agreement or any rights or obligations hereunder without Customer’s consent to a third party acquirer of all, or substantially all, of the assets or business of ToggleHQ, whether by sale, merger, or otherwise. Except as provided in this section, any attempts by either Party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other Party shall be null and void.
Section 10.7 Force Majeure
Neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, natural disasters, war, acts of terrorism, strikes, revolutions, lack or failure of transportation facilities, lack or failure of public utilities, laws or governmental regulations or other causes that are beyond the reasonable control of such Party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than ten (10) days, the Parties hereto shall consult with each other to determine whether this Agreement should be modified or terminated.
Section 10.8 Survival
Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to confidentiality, Intellectual Property, limitation of liabilities, and indemnification shall survive any termination or expiration of this Agreement and continue in full force and effect in perpetuity.
Section 10.9 Governing Law; Arbitration
This Agreement shall be governed by and construed under the laws of the Commonwealth of Massachusetts and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of sixty (60) days after notice of a dispute has been given by one party hereunder to the other (the last day of such sixty (60) day period being herein referred to as the Arbitration Date), shall be finally settled by arbitration in Boston, Massachusetts in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (JAMS) then in effect, by one commercial arbitrator with substantial experience in resolving complex commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive or other equitable relief without recourse to arbitration. For all purposes of this Section 10.9, the parties consent to exclusive jurisdiction and venue in the United States are the state or federal Courts located in the Suffolk County, Massachusetts. Notwithstanding the foregoing, either party has the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments, a temporary restraining order, temporary injunction, permanent injunction and/or order of specific performance, as may appear reasonably necessary to preserve the rights of either party. The application by either party to a judicial authority for such measures shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the arbitrator.
Section 10.10 Notices
Any notice required or permitted to be given hereunder will be deemed to have been delivered and given for all purposes: (i) on the delivery date, if delivered by hand courier to the Party to whom such notice is directed; (ii) two (2) Business Days after deposit with a commercial overnight carrier; (iii) five (5) Business Days when mailed by United States mail; (iv) upon completion of transmission, if sent via facsimile with a confirmation of successful transmission; and (v) the first business day after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim). Suspension-related notices to Customer shall be sent to the account holder designated in the ToggleHQ Dashboard.
Section 10.11 Modifications
We may revise this Agreement from time to time, and will always post the most current version on our website. If a revision meaningfully reduces your rights, we will notify you (by, for example, sending a message to the email address associated with your account, posting on our blog or on this page). By continuing to use or access the Services after the revisions come into effect, you agree to be bound by the revised Agreement.