TERMS OF SERVICE
WHAT INFORMATION DO WE COLLECT AND FOR WHAT PURPOSE?
1.1 The categories of information we collect can include:
Information you provide to us directly. We may collect personal information, such as your name, administrator/agent names, mobile phone numbers, location, payment information, email address, and other information about your company/organization when you register for our Service, sign up for our mailing list, or otherwise communicate with us. Customers also generally provide the full name, short name, phone number, and email address of their agents and administrators. We may also collect any communications between you and Defiant Global Communications and any other information you provide to DEFIANT
Information collected through your use of the Service. We collect information about how you use the Service, your actions on the Service, and content you post to the Service, including information on Message Recipients (e.g., names, phone numbers and group designations) and their contact information, messaging scripts, photos and videos you post to the Service, and any other content you provide through other functionalities of the Service (“User Content”). Please remember that Defiant Global Communications may, but has no obligation to, monitor, record, and store User Content in order to protect your safety or the safety of other users, to assist with regulatory or law enforcement efforts, or to protect and defend our rights and property. By using the Service, you consent to the recording, storage, and disclosure of such communications you send or receive for these purposes.
Text message content and related metadata. We collect certain data about your messages and the content of your messages with Message Recipients, such as the content of messages you send and receive, message timestamps, message length, reply rates other statistics and metadata (“Text Message Data”). We use this Text Message Data for our internal purposes such data analysis, fraud prevention, developing and improving our Service, and identifying usage trends. For example, we may build recommendations into our Services based on aggregated and anonymized Text Message Data. Note that any messages you send that are transmitted via Defiant Global Communications may be accessible by certain third-party organizations, such as cellular networks and SMS gateway services, that may be used to transmit the messages. These organizations may have their own rules, policies, and security measures controlling who has access to messages transmitted through their services.
Information we receive from third parties. From time to time, we may receive information about you or Message Recipients from third parties and other users. We may also collect information about you that is publicly available, or if you share information with us via a social network (such as “liking” us on a social media site), in accordance with the terms of those sites.
We use this information to operate, maintain, and provide to you the features and functionality of the Service, as well as to communicate directly with you, such as to send you email messages and push notifications, or invite others to join the Service. We may also send you Service-related emails or messages (e.g., account verification, updates to features of the Service, technical and security notices). We may also use this information for our internal business purposes, such as data analysis, audits, fraud prevention, developing new products, services, and/or features, improving our Service, identifying usage trends, and determining the effectiveness of our Service. For more information about your communication preferences, see “Control Over Your Information” below.
Categories of Personal Information Collected: Customers provide information, including Personal Information of Message Recipients, to Defiant Global Communications via their customer relationship management (“CRM”) integration with the Defiant Global Communications Platform, by uploading the information in a CSV file, or by entering it directly in the Defiant Global Integration’s Platform.
What Defiant Global Communications Collects at a Minimum: Message Recipient Personal Information provided to Defiant Global Communications varies by the Customer and depends on what they transfer from their CRM/CSV file to the Defiant Global Communications Platform, but this information at a minimum always includes the Message Recipient’s first name, last name, and telephone number. In addition, Defiant Global Communications obtains the IP Address of the Customer’s admin & agent users, as well as the agent’s unique phone device IDs. Customers also generally provide the full name, short name, phone number, and email address of their agents and administrators. This information is collected by Defiant Global Communications solely to provide its Services to Customers and to improve and enhance its Service.
Other Information Defiant Global Communications Might Collect. In addition to the above, Customers may provide Defiant Global Communications with additional Message Recipient Personal Information by manually entering it into a “custom field” or creating a “tag” within the Defiant Global Communications Platform. Again, this depends on what a particular Customer decides to provide but may include (a) postal address; (b) limited education information in certain circumstances (limited to school attended or field of study); (c) characteristics of protected classifications under federal law; and (d) professional or employment-related information. Defiant Global Communications may use this information to draw inferences from the categories identified in this section to create a profile about a Message Recipient reflecting the Message Recipient’s preferences, characteristics, psychological trends, preferences, predispositions, behavior, or attitudes. Defiant Global Communications may also may collect browsing behavior and device and browser metadata, as well as metadata about voice calls.
Personal Information Shared: In the course of using the Services, Customers are able to sync, and control the movement of, Personal Information between the Customer-operated platforms on which Personal Information resides (e.g., CRM platforms and other third-party services and platforms) (“Customer-Operated Platforms”) and the Defiant Global Communications Platform. As a result of this back-and-forth movement of Personal Information at the Customer’s behest, Defiant Global Communications by definition shares this Personal Information with the Customer-Operated Platforms and therefore with the entities that own and control these platforms. For example, a Customer may take Personal Information residing within a CRM platform (such as a Message Recipient’s name and phone number) and share it with the Defiant Global Communications Platform so it may contact that Message Recipient via the Defiant Global Communications Platform. Later, that same Customer may take that Message Recipient’s Personal Information, along with relevant information pertaining the Customer’s interaction with the Message Recipient via the Services (such as whether the Message Recipient opted-out, interacted, etc.) and sync that Personal Information back into the CRM platform. By enabling Customers to perform these activities and other similar Communications, Defiant Global Communications must share the Personal Information with the Customer-Operated Platforms. This is the business purpose for Defiant Global Communications sharing Personal Information.
Personal Information Sold to Third Parties: Defiant Global Communications does not sell or share any Personal Information to any third party
We, and our third-party partners, automatically collect certain types of usage information when you visit our Service, read our emails, or otherwise engage with us. We typically collect this information through a variety of tracking technologies, including cookies, web beacons, embedded scripts, location-identifying technologies, file information, and similar technology (collectively, “tracking technologies”). For example, we collect information about your device and its software, such as your IP address, browser type, Internet service provider, platform type, device type, operating system, date and time stamp (a unique ID that allows us to uniquely identify your browser, mobile device, or your account), and other such information. We also collect information about the way you use our Service, for example, the site from which you came and the site to which you are going when you leave our website, the pages you visit, the links you click, how frequently you access the Service, whether you open emails or click the links contained in emails, whether you access the Service from multiple devices, and other actions you take on the Service. When you access our Service from a mobile device, we may collect unique identification numbers associated with your device or our mobile application (including, for example, a UDID, Unique ID for Advertisers (“IDFA”), AdID, or Windows Advertising ID), mobile carrier, device type, model and manufacturer, mobile device operating system brand and model, phone number, and, depending on your mobile device settings, your geographical location data, including GPS coordinates (e.g., latitude and/or longitude) or similar information regarding the location of your mobile device, or we may be able to approximate a device’s location by analyzing other information, like an IP address. We may collect analytics data or use third-party analytics tools such as Google Analytics to help us measure traffic and usage trends for the Service and to understand more about the demographics of our users. We may also work with third-party partners to employ technologies, including the application of statistical modeling tools, which permit us to recognize and contact you across multiple devices. Although we do our best to honor the privacy preferences of our users, we are unable to respond to Do Not Track signals set by your browser at this time.
We use or may use the data collected through tracking technologies to: (a) remember information so that you will not have to re-enter it during your visit or the next time you visit the site; (b) provide custom, personalized content and information, including targeted content and advertising; (c) recognize and contact you across multiple devices; (d) provide and monitor the effectiveness of our Service; (e) monitor aggregate metrics such as total number of visitors, traffic, usage, and demographic patterns on our Service; (f) diagnose or fix technology problems; and (g) otherwise to plan for and enhance our Service.
If you would prefer not to accept cookies, most browsers will allow you to: (i) change your browser settings to notify you when you receive a cookie, which lets you choose whether or not to accept it; (ii) disable existing cookies; or (iii) set your browser to automatically reject cookies. Please note that doing so may negatively impact your experience using the Service, as some features and services on our Service may not work properly. Depending on your mobile device and operating system, you may not be able to delete or block all cookies. You may also set your email options to prevent the automatic downloading of images that may contain technologies that would allow us to know whether you have accessed our email and performed certain functions with it.
3. SHARING OF YOUR INFORMATION
We may share your personal information in the instances described below. For further information on your choices regarding your information, see the “Control Over Your Information” section below.
We may share your personal information with:
Third-party vendors and other service providers that perform services on our behalf, as needed to carry out their work for us, which may include identifying and serving targeted advertisements, providing mailing services, providing tax and accounting services, web hosting, or providing analytics services;
The public when you provide feedback on our Service. For example, if you post user content on our blog or comment on our social media sites, your information, such as your first name, last initial, state of residence, and your comments, may be displayed on our Service or on our social media pages;
Third parties as required by law or subpoena or if we reasonably believe that such action is necessary to (a) comply with the law and the reasonable requests of law enforcement; (b) to enforce our Terms & Conditions of Use, please see Terms & Conditions Policy on our website to protect the security or integrity of our Service; and/or (c) to exercise or protect the rights, property, or personal safety of Defiant Global Communications, our visitors, or others. This is subject to the terms of our Customer Notification Policy set forth in Section 8 below.
We may also share information, including User Content and Text Message Data, with third parties and other Defiant Global Communications Customers in an aggregated or otherwise anonymized form, such as aggregated user statistics, that does not reasonably identify you or your Message Recipients directly as individuals. Please see the “Control Over Your Information” section for more information.
4. CONTROL OVER YOUR INFORMATION
How to control your communications preferences. You can stop receiving promotional email communications from us by clicking on the “unsubscribe link” provided in such communications. In addition, if a Customer receives a promotional text from Defiant Global Communications, that Customer may opt-out of future promotional texts by texting “STOP” in response. We make every effort to promptly process all unsubscribe requests. You may not opt out of service-related communications (e.g., account verification, transactional communications, changes/updates to features of the Service, technical and security notices). Customer’s agents and administrators who no longer wish to perform the agent or administrator functions can contact the particular Defiant Global Communications Customer and request removal from groups.
Deleting Customer information. Unless otherwise agreed in writing, upon Customer’s request, Defiant Global Communications will delete all Defiant Global Communications Customer production data, including personally identifiable information uploaded to the Service by that Defiant Global Communications Customer. We may not be able to delete your information in all circumstances. For example, we may retain and use your information as necessary to comply with our legal obligations, resolve disputes, or enforce our agreements. Defiant Global Communications may also retain a secure, encrypted copy of Customer Data for up to one year after termination pursuant to Defiant Global Integration’s standard archiving and back-up procedures and policies.
5.MESSAGE RECIPIENT OPT-OUT OF CUSTOMER MESSAGES THROUGH DEFIANT GLOBAL COMMUNICATIONS
We offer services enabling our Customers to send text messages through our Service. This Section discusses how individuals who receive a message from a Defiant Global Communications Customer may opt-out of receiving messages from any particular Defiant Global Communications Customer Campaign. To unsubscribe from any Defiant Global Communications Customer texting campaign, Message Recipient recipients may text “STOP,” “UNSUBSCRIBE” or similar words or phrases as a response to the sender or contact us via email at info@DefiantGlobal.com. In the event the Message Recipient uses the Service with multiple Defiant Global Communications Customers, we may send the Message Recipient a follow-up message to clarify which Customer from whom the Message Recipient would like to stop receiving messages. Message Recipients may also email us at info@DefiantGlobal.com in the event they believe that a Defiant Global Communications Customer has added their information in error or without their permission. Please note that opt-outs are tracked separately for each Defiant Global Communications Customer, so unsubscribing from one Defiant Global Communications Customer will not unsubscribe you from communications from another Defiant Global Communications Customer.
To restart receiving text messages from a Defiant Global Communications Customer, Message Recipients may text START to the Customer’s short code or long code. In the event Message Recipients use the Service with multiple Defiant Global Communications Customers, we may send an automated message to clarify which customer the Message Recipient wants to restart receiving messages and calls from. Standard message and data rates apply.
6. THIRD-PARTY TRACKING AND ONLINE ADVERTISING
If you visit our website, you should note that we participate in interest-based advertising and may use third party advertising companies to serve you targeted advertisements based on your online browsing history and your interests. We permit third party online advertising networks, social media companies and other third party services, to collect, information about your use of our Sites over time so that they may play or display ads on our Sites, on other websites, apps or services you may use, and on other devices you may use. Typically, though not always, the information used for interest-based advertising is collected through cookies or similar tracking technologies. We may share a common account identifier (such as an email address or user ID) or hashed data with our third party advertising partners to help identify you across devices. We and our third party partners use this information to make the advertisements you see online more relevant to your interests, as well as to provide advertising-related services such as reporting, attribution, analytics and market research.
To learn more about interest-based advertising and how you may be able to opt-out of some of this advertising, you may wish to visit the Network Advertising Initiative’s online resources, at http://www.networkadvertising.org/choices, and/or the DAA’s resources at http://www.aboutads.info/choices. You may also be able to set your browser to delete or notify you of cookies by actively managing the settings on your browser or mobile device. Please note that some advertising opt-outs may not be effective unless your browser is set to accept cookies. Furthermore, if you use a different device, change browsers or delete the opt-out cookies, you may need to perform the opt-out task again.
You may also be able to limit certain interest-based mobile advertising through the settings on your mobile device by selecting “limit ad tracking” (iOS) or “opt-out of interest based ads” (Android).
We may also utilize certain forms of display advertising and other advanced features through Analytics, such as Remarketing with Analytics, Display Network Impression Reporting, and Analytics Demographics and Interest Reporting. These features enable us to use first-party cookies and third-party cookies (such as the DoubleClick advertising cookie) or other third-party cookies together to inform, optimize, and display ads based on your past visits to the Sites. You may control your advertising preferences or opt-out of certain advertising products by visiting your Preferences Manager, or by vising NAI’s online resources at http://www.networkadvertising.org/choices.
7. HOW WE STORE AND PROTECT YOUR INFORMATION
Data storage and transfer: Your information collected through our Service may be stored and processed in the United States, Canada or any other country in which Defiant Global Communications or its parent, subsidiaries, affiliates, or service providers maintain facilities. If you are located in other regions with laws governing data collection and use that may differ from U.S. or Canadian law, please note that we may transfer information, including personal information, to a country and jurisdiction that does not have the same data protection laws as your jurisdiction.
Keeping your information safe: We care about the security of your information and employ physical, administrative, and technological safeguards designed to preserve the integrity and security of all information collected through our Service. However, no security system is impenetrable, and we cannot guarantee the security of our systems 100%. In the event that any information under our control is compromised as a result of a breach of security, we will take reasonable steps to investigate the situation and, where appropriate, notify those individuals whose information may have been compromised and take other steps, in accordance with any applicable laws and regulations.
8. CUSTOMER NOTIFICATION POLICY
Civil Legal Processes: Defiant Global Integration’s policy is to notify Customers upon receipt of a civil subpoena demand of their account information or any associated data stored with Defiant Global Integration. A two week wait period must transpire before disclosure of any information. Defiant Global Communications will advise the Customer that the information will be disclosed unless Defiant Global Communications is in receipt of a document seeking a court-approved protective order prior to the date on which Defiant Global Communications must legally comply with the demand. Defiant Global Communications will notify Customers upon receipt of legal process.
Fees for Civil Subpoena Processing: Defiant Global Communications charges a fee for the processing of civil subpoenas, as authorized under 18 U.S.C. § 2706 in the United States and has a similar fee in Canada. This fee is set at $200/hour and will be the equivalent in Canada based on the days Bank of Canada rate, with a two hour minimum per response. In addition, a per-subpoena fee of $50 per Customer whose data is requested shall be charged. No charge shall be required relating to matters involving the distribution of child pornography or any act of child endangerment. Furthermore, no charge shall be required to investigate matters dealing with abuse of Defiant Global Communications’ services to harass, abuse or intimidate any person; provided this situation is documented when a response is requested. Defiant Global Communications reserves the right to require payment in advance, to withhold delivery of information until payment is received and to seek enforcement of charges. Non-binding estimates can be provided to the requesting parties. For an estimate, please email info@DefiantGlobal.com with the requisite documentation and entitle the subject “Estimate Request.” However, entities that fail to pay charges must serve process by the registered agent within the appropriate state and requests for expedited response will not be granted.
Criminal Legal Processes: Defiant Global Communications will notify Customers upon receipt of criminal legal process seeking information about their accounts and/or data unless prohibited by law. Should Defiant Global Communications receive any indefinite sealed legal process prohibiting notification of a Defiant Global Communications Customer, including a national security letter gag, Defiant Global Communications will invoke statutory procedures to have a judge review.
Defiant Global Communications does not and will not provide User Content or data without a valid search warrant. Please note: If an emergency situation that presents a clear and present danger to life, or legal process prohibits notification; Defiant Global Communications will notify Customer after emergency has ended, or once suppression order expires.
9. CHILDREN’S PRIVACY
Defiant Global Communications does not knowingly collect or solicit any information from anyone under the age of 13 on this Service. In the event that we learn that we have inadvertently collected personal information from a child under age 13, we will delete that information as quickly as possible. If you believe that we might have any information from a child under 13, please contact us at info@DefiantGlobal.com.
10. LINKS TO OTHER WEB SITES AND SERVICES
The Service may contain links to and from third-party websites of our business partners, advertisers, and social media sites and our users may post links to third-party websites. If you follow a link to any of these websites, please note that these websites have their own privacy policies and that we do not accept any responsibility or liability for their policies. We strongly recommend that you read their privacy policies and terms and conditions of use to understand how they collect, use, and share information. We are not responsible for the privacy practices or the content on the websites of third-party sites.
11. HOW TO CONTACT US
TERMS & CONDITIONS
SERVICES AND SUPPORT
1.1 Subject to these terms and conditions of use, in addition to any terms contained on an Order Form referencing these terms (collectively, the “Agreement”) Defiant Global Communications will use reasonable efforts to provide Customer access to the Defiant Global Communications applications as-a-service communication platform and related services as described in an applicable Order Form (“Services”).
1.2 Subject to the terms hereof, Defiant Global Communications will provide Customer with reasonable technical and customer support services in accordance with Defiant Global Communications’ standard practices then in effect and as described in an applicable Order Form, which is referenced and incorporated herein.
RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any portion thereof (except to the extent expressly permitted by Defiant Global Communications or authorized within the Services); use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary rights notices.
2.2 The Services may be subject to export laws and regulations of the United States, Canada and other jurisdictions. Defiant Global Communications and Customer each represents that it is not named on any U.S or Canadian government denied-party list. Customer will not permit any user to access or use any part of the Service in a U.S. or Canadian-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. or Canadian export law or regulation.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Defiant Global Communications’ Acceptable Use Policy located on this wsebsite, which is referenced and fully incorporated herein, (collectively the “Policy”) and all applicable laws and regulations. Defiant Global Communications reserves the right to determine whether to modify or amend the Policy and shall provide notice of such amendment to Customer on this website. Customer hereby agrees to indemnify and hold Defiant Global Communications harmless 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 Policy. Although Defiant Global Communications has no obligation to monitor Customer’s use of the Services, Defiant Global Communications may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 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 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.
2.5 Defiant Global Communications reserves the right to permanently deactivate groups of contacts organized within Customer’s Defiant Global Communications account (“DEFIANT Groups”) in which no messages have been sent for 89 or more days. Defiant Global Communications also reserves the right to deactivate DEFIANT Groups Customer has selected to be archived.
CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 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 Defiant Global Communications includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Defiant Global Communications 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.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Defiant Global Communications shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing.
PAYMENT OF FEES
4.1 Customer shall pay Defiant Global Communications the fees described in the Order Form for the Services as described in the Order Form in accordance with the terms therein. If Customer’s use of the Services exceeds the Service capacity, if any, set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Absent uncured material breach by Defiant Global Communications, fees are nonrefundable or subject to allocation. Defiant Global Communications reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Defiant Global Communications has billed Customer incorrectly, Customer must contact Defiant Global Communications no later than 30 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Defiant Global Communications accounting department.
4.2 Unless other terms have been agreed to in the applicable Order Form, full payment for invoices issued in any given month must be received by Defiant Global Communications thirty (30) days after the date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
4.3. Unless otherwise stated in an Order Form, Defiant Global Communications charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer is responsible for paying Taxes, except those assessable against Defiant Global Communications measured by its net income. Defiant Global Communications will invoice Customer for such Taxes if Defiant Global Communications believes it has a legal obligation to do so and Customer agrees to pay such Taxes if so invoiced.
TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and unless expressly stated otherwise in the Order Form, shall automatically renew for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured for thirty days following notice thereof. In no event will termination relieve Customer of its obligation to pay any fees payable to Defiant Global Communications for the period prior to the effective date of termination. 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, limitations of liability, and dispute resolution and arbitration provisions.
WARRANTY AND DISCLAIMER
6.1 Defiant Global Communications 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 Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Defiant Global Communications or by third-party providers, or because of other causes beyond Defiant Global Communications reasonable control, but Defiant Global Communications shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Defiant Global Communications 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. Defiant Global Communications shall have no liability whatsoever for unavailability or interruption of the Services or any portion thereof, including but not limited to message delivery or phone call connectivity, for reasons beyond Defiant Global Communications’ control such as telecommunications network disruption, handset availability, carrier filtering rules or other issues with telecommunications providers. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND DEFIANT GLOBAL COMMUNICATIONS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1 Subject to the limitation of liability set forth in Section 8 below, Defiant Global Communications shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States or Canadian patent or any copyright or misappropriation of any trade secret, provided Defiant Global Communications is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Defiant Global Communications will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Defiant Global Communications, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Defiant Global Communications, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Defiant Global Communications to be infringing, Defiant Global Communications may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a prorated refund of any prepaid, unused fees for the Service.
LIMITATION OF LIABILITY
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, DEFIANT GLOBAL COMMUNICATIONS 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 DEFIANT GLOBAL COMMUNICATIONS’ REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO DEFIANT GLOBAL COMMUNICATIONS FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT DEFIANT DIGITAL INTEGRATIOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.1 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.
9.2 This Agreement is not assignable, transferable or sublicensable by Customer except with Defiant Global Communications’ prior written consent. Defiant Global Communications may transfer and assign any of its rights and obligations under this Agreement without consent.
9.3 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.
9.4 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 Defiant Global Communications in any respect whatsoever.
9.5 The parties shall endeavor to resolve any dispute with respect to this Agreement in good faith within 30 days of a dispute being raised in writing by one party with the other party. Any unresolved controversy or claim arising out of or relating to this Agreement shall be submitted to binding arbitration in the State of Deleware for all U.S. based clients and in the province of Ontario ufor all Canadian customers, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. In any such action or proceeding, the prevailing party will be entitled to recover costs and attorneys’ fees. The decision of the arbitrator shall be final, binding, and conclusive upon the parties. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator. This dispute resolution provision shall be governed by the Federal Arbitration Act of the United States or Canada.
9.6 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.7 This Agreement shall be governed by the laws of the State of Delaware for all U.S. Clients and the laws of the Province of Ontario for all Canadian clients without regard to its conflict of laws provisions.
9.8 Force Majeure. No party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement except for any obligations to make payments to the other party hereunder, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control (“Force Majeure Event”). The party suffering a Force Majeure Event shall give notice within 3 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
9.9 Public Announcements and Case Studies. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party. Defiant Global Communications may, subject to obtaining Customer’s consent, include Customer’s name and/or other indicia in its lists of Defiant Global Communications’ current or former customers of Defiant Global Communications in promotional and marketing materials. Additionally, upon consent of Customer, Defiant Global Communications shall prepare a case study relating to Customer’s access and use of the Services, including but not limited to one or more testimonials from Customer’s users, aggregated data of the results of Customer’s use of the Services, and other informational material as determined by Defiant Global Communications. Customer agrees to provide reasonable assistance to Defiant Global Communications and timely responses in Defiant Global Communications’ preparation of said case study.