This Application collects some Personal Data from its Users.
Personal Data collected for the following purposes and using the following services:
ResponseRX (an Ingenuity Marketing brand)
220 E. Forsyth St., Suite B
Jacksonville, FL 32202
Phone: (904) 867-4835
Owner contact email: hello@responserx.ai
Among the types of Personal Data that this Application collects, by itself or through third parties, there are: Cookies; Usage Data; first name; last name; phone number; email address; unique device identifiers for advertising (Google Advertiser ID or IDFA, for example).
Complete details on each type of Personal Data collected are provided in the dedicated sections of this privacy policy or by specific explanation texts displayed prior to the Data collection.
Personal Data may be freely provided by the User, or, in case of Usage Data, collected automatically when using this Application. Unless specified otherwise, all Data requested by this Application is mandatory and failure to provide this Data may make it impossible for this Application to provide its services. In cases where this Application specifically states that some Data is not mandatory, Users are free not to communicate this Data without consequences to the availability or the functioning of the Service.
Users who are uncertain about which Personal Data is mandatory are welcome to contact the Owner.
Any use of Cookies – or of other tracking tools – by this Application or by the owners of third-party services used by this Application serves the purpose of providing the Service required by the User, in addition to any other purposes described in the present document and in the Cookie Policy, if available. Users are responsible for any third-party Personal Data obtained, published or shared through this Application and confirm that they have the third party’s consent to provide the Data to the Owner. Mode and place of processing the Data.
The Owner takes appropriate security measures to prevent unauthorized access, disclosure, modification, or unauthorized destruction of the Data. The Data processing is carried out using computers and/or IT enabled tools, following organizational procedures and modes strictly related to the purposes indicated. In addition to the Owner, in some cases, the Data may be accessible to certain types of persons in charge, involved with the operation of this Application (administration, sales, marketing, legal, system administration) or external parties (such as third-party technical service providers, mail carriers, hosting providers, IT companies, communications agencies) appointed, if necessary, as Data Processors by the Owner. The updated list of these parties may be requested from the Owner at any time.
The Owner may process Personal Data relating to Users if one of the following applies:
In any case, the Owner will gladly help to clarify the specific legal basis that applies to the processing, and in particular whether the provision of Personal Data is a statutory or contractual requirement, or a requirement necessary to enter into a contract.
The Data is processed at the Owner’s operating offices and in any other places where the parties involved in the processing are located.
Depending on the User’s location, data transfers may involve transferring the User’s Data to a country other than their own. To find out more about the place of processing of such transferred Data, Users can check the section containing details about the processing of Personal Data.
Users are also entitled to learn about the legal basis of Data transfers to a country outside the European Union or to any international organization governed by public international law or set up by two or more countries, such as the UN, and about the security measures taken by the Owner to safeguard their Data.
If any such transfer takes place, Users can find out more by checking the relevant sections of this document or inquire with the Owner using the information provided in the contact section.
Personal Data shall be processed and stored for as long as required by the purpose they have been collected for.
Therefore:
The Owner may be allowed to retain Personal Data for a longer period whenever the User has given consent to such processing, as long as such consent is not withdrawn. Furthermore, the Owner may be obliged to retain Personal Data for a longer period whenever required to do so for the performance of a legal obligation or upon order of an authority. Once the retention period expires, Personal Data shall be deleted. Therefore, the right to access, the right to erasure, the right to rectification and the right to data portability cannot be enforced after expiration of the retention period.
By opting in for SMS communication, you agree to receive notifications at the phone number provided. Typical messages include customer support replies, appointment reminders and links, transaction information, product and services information, webchat replies, optin and optout notifications, and occasional marketing messages. Consent is not a condition of purchase. Reply STOP to unsubscribe. Message frequency varies. Msg & data rates may apply. Your Privacy is our priority. Your information will not be shared.
1.1 Service Provision. ResponseRX will provide its subscription service through the ResponseRX Customer Experience & Reputation Management platform (the "Subscription Service") and any professional services related to the implementation of the Subscription Service(the "Professional Services"; collectively, the "Services")in accordance with these Terms and any conditions provided in a customer agreement, reseller agreement, or order form for the Subscription Service (collectively,"Order Form") or a statement of work for the delivery of Professional Services ("Statement of Work"). Client understands, acknowledges, and agrees that onboarding and implementation of the Services may take up to 2 hours over a 4-week period. Client's reasonable and timely participation in the onboarding process is crucial for delivering the Services, and any delays caused by Client will not affect the agreement duration or provide a basis for non-payment or termination.
1.2 Third-Party Websites. To the extent that Client requests or causes the Subscription Service to be integrated with or use data from other websites or services (e.g., Facebook, Google+, Twitter)("Third-Party Websites"), Client agrees that ResponseRX does not control the terms of use, privacy policies, operation, intellectual property rights, performance, service levels, or content of any Third-Party Websites, and ResponseRX disclaims all responsibility and liability for any use of Third-Party Websites. The Services incorporate or use certain third-party software ("Third-Party Software"), which is licensed subject to the terms and conditions of the third party licensing such Third-Party Software.Nothing in these Terms limits Client's rights under, or grants Client rights that supersede, the terms and conditions of any applicable license for such Third-Party Software. Such Third-Party Software includes but is not limited to Google (https://policies.google.com/terms?hl=en-US) and Facebook (https://www.facebook.com/legal/terms). By using the Services, Client agrees to be bound by the terms of said Third-Party Software.
Using Third Parties For Reviews. Client understands that for its customers, end users, or others to leave a review about its product or services on Google, Facebook, and similar third-party sites, it may be required to have an active, registered account on the relevant third-party platform.
1.3 Subscription Service Content. During Client's use of the Subscription Service, Client may receive data generated by the Subscription Service. Client may display such generated data on Client's website but may not modify the data or use it for any other purposes without ResponseRX's prior express written approval. For clarification, data generated by the Subscription Service may include data and content owned or licensed by a third party, and Client's use of such third-party data and content is further limited by such third party's applicable license terms and website terms of use. ResponseRX disclaims responsibility and/or liability for Client's use of any such third-party data and content under these Terms.
1.4 Obligations With Respect to Third-Party Websites. When using the Services, Client agrees to adhere to the Terms of Service of all major review sites, including but not limited to Google, Facebook, and Yelp.
1.5 TCPA and 10DLC Compliance.
a. TCPA: To the extent required by law and as applicable to the parties, the parties shall comply with the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the "TCPA"). Client will be solely responsible for complying with any messaging consent obligations under the TCPA and TSR in the course of accessing and using the ResponseRX Services. Client is responsible for obtaining explicit consent(s) from any and all third parties(including Client's customers) to send and receive SMS and/or emails using the ResponseRX Services. ResponseRX shall have the same obligation to obtain third-party consent for all parties from which it is directly obtaining their phone number(s).
b. 10DLC: You understand that if you are using certain SMS-related Services, you are responsible for complying with A2P 10DLC,including but not limited to registration and obtaining customer opt in.ResponseRX reserves the right to pass carrier 10DLC fees on to you which you agree ResponseRX may collect from you using your authorized payment method. Client authorizes ResponseRX to act as its legal representative in the 10DLCregistration process when such representation is necessary to provide or enhance the Services.
You understand and agree that in order to use any texting or text-based products or features in or through the Services, you must maintain your A2P 10DLC registration by paying the one time registration fee and ongoing text (or, "campaign") fees for the duration of your use of any such Services. If you are entering into an online or self-serve contract for a small business, the registration fee and ongoing text fees may be combined in one line item on your contract shown as "Carrier Texting Fees".
Each party is liable for, and shall indemnify, defend and hold harmless the other party from and against any and all damages, liabilities, judgments, fees, fines, costs and expenses (including reasonable attorneys' fees) incurred by the non-breaching party arising from any claims, demands or legal actions made against it resulting from Client's breach of this Section 1.5.
1.6 Account Protection. If Client becomes aware that the security of Client's login information has been compromised or breached, Client must immediately deactivate such account or change the account's login credentials. Additionally, Client shall promptly deactivate the account or change the login credentials for any individual (e.g., former employee) that is no longer authorized by Client to access the Subscription Service.
1.7 Fair Use. ResponseRX's priority is to keep the Services available and running at optimal speed, which requires each customer to use the Services fairly and reasonably so as not to affect access or use by other customers. The Services include broad access to resources such as bandwidth, API requests, and storage, which are not unlimited (unless expressly stated as such in a Customer Agreement, Order Form, or other agreement).Overuse of these resources would affect the stability of the ResponseRX platform, including the Services, which is why we have this fair use clause ("Fair Use Policy" or "FUP"). Fair use will be considered the processing of 3 times the average number of requests or processed transactions per Location (as defined in a Customer Agreement, Order Form, or other written agreement) for other ResponseRX customers in the same or similar industry. If ResponseRX determines Client's use of the Services violates its Fair Use Policy, in its sole reasonable discretion, it may take unilateral action regarding Client's use of the Services, including limiting the frequency of access to the Services or limiting the number of processed requests through the Services to bring usage in line with this FUP. ResponseRX also reserves the right to invoice Client for use of the Services in violation of the FUP. Client understands, acknowledges, and agrees that ResponseRX will have no liability to Client or any of Client's users for enforcing this FUP, and enforcement will not affect Client's obligations under these terms, which includes the payment of fees for the Services.
1.8 Client's Restrictions on Use of Services. Client agrees not to do any of the following while using the Site, Services, or ResponseRX Content:
ResponseRX will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and Site and Services security issues, to the fullest extent of the law. ResponseRX may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. Client acknowledges that ResponseRX has no obligation to monitor Client's access to or use of the Site, Services, or ResponseRX Content or to review or edit any User Content, but has the right to do so for the purpose of operating the Site and Services, to ensure Client's compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body. ResponseRX reserves the right, at any time and without prior notice, to remove or disable access to any ResponseRX Content and any User Content that ResponseRX, in its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Site or Services.
2.1 Fees. Client shall pay ResponseRX the undisputed fees in the currency and as of the date set forth in each Order Form or Statement of Work. Client's payments under these Terms are due net-thirty (30) days from Client's receipt of ResponseRX's invoice unless agreed otherwise by the Parties in the applicable Order Form or Statement of Work. All fees are exclusive of applicable sales, excise, value-added, or use taxes. Except for income taxes levied on ResponseRX's net income, Client shall pay or reimburse ResponseRX for all national, federal, provincial, state, local, or other taxes and assessments of any jurisdiction, which are legally payable by Client for charges set, services performed or to be performed, or payments made or to be made hereunder. Client shall not be entitled to deduct the amount of any such taxes, duties, or assessments from payments made to ResponseRX under these Terms. This provision shall survive the termination of these Terms and shall be applicable regardless of the time frame in which the requirement of the payment of such taxes or assessments is asserted (e.g., a deficiency assessment by a taxing authority as a result of an audit after the termination of these Terms). Client will notify ResponseRX of any invoice dispute within thirty (30) days of receipt of invoice, at which time the parties will engage in good faith efforts to resolve the dispute.
2.2 Late Payments. Client's failure to pay undisputed fees when due constitutes a material breach of these Terms. If payment is not made within thirty (30) days of when it is due, ResponseRX may, in its sole discretion, choose to do any or all of the following: (i) charge Client a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly; and/or (ii) suspend Client's access to the Subscription Service and/or the delivery of the Professional Services. ResponseRX's suspension or resumption of the Subscription Service or Professional Services does not limit or prevent ResponseRX from pursuing all other remedies available.
2.3 Auto Renew. If you have entered into an agreement for Services with ResponseRX, the agreement will auto renew in compliance with applicable law as further set forth herein. Unless otherwise noted in the Order Form or Statement of Work, any agreement for Services will auto renew for the same period of time as the initial term of the agreement unless written notice of non-renewal is provided to ResponseRX at least 90 days prior to the date of renewal.
3.1 Ownership; License; Retained Rights. ResponseRX owns all right, title, and interest in and to the Subscription Service, including, without limitation, all modifications, improvements, enhancements, integrations, upgrades, derivative works, and feedback (see below) related thereto and all intellectual property rights therein ("Rights"), and any and all Rights developed as part of the delivery and receipt of the Professional Services. ResponseRX grants Client a limited, revocable, royalty-free, non-exclusive, non-transferable license to use the Subscription Service, and any deliverables developed pursuant to the delivery of Professional Services hereunder in relation to Client's use of the Service, for the term of the applicable Order Form or Statement of Work. Any feedback, suggestions, or ideas provided by the client regarding the Services("Feedback") are hereby assigned to ResponseRX, and ResponseRX shall own all the rights, title and interest in and to such Feedback, including all intellectual property rights therein. The Client agrees that ResponseRX may use such Feedback without any restriction or obligation to provide compensation to the Client. All rights not expressly granted to Client hereunder are reserved by ResponseRX.
3.2 Restrictions. Unless otherwise permitted in writing by ResponseRX, Client may not, and may not permit any third party to, (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Subscription Service; (ii) use, evaluate or view the Subscription Service for the purpose of designing or creating a product or service competitive to ResponseRX's products or services; and/or (iii) resell or use the Subscription Service in a service bureau.
3.3 Data Collection, Ownership, and Use.
3.3.1 Client Data. During the term of this Agreement or any Order Form or Statement of Work, Client grants ResponseRX a limited, non-exclusive, royalty-free, revocable, world-wide license to use and disclose, as necessary to provide the Subscription Service and Professional Services, all information submitted by Client and Client's end users in connection with Client's use of the Subscription Service (e.g., Personal Data, submitted content, product information included in feeds, transaction detail information such as unit prices and cart values, and survey data) ("Client Data"). Client owns all Client Data. Nothing contained herein shall be construed as granting ResponseRX ownership in any Client Data. Client hereby gives ResponseRX a non-revocable, worldwide, royalty-free right to use aggregated or anonymized Client Data for internal evaluation purposes only;ResponseRX will never market or sell Client Data to any third party. Client understands, acknowledges, and agrees that ResponseRX may only be able to access its Client Data through managed services (or, "Managed Services") in order to provide the Services. In order for ResponseRX to perform the Managed Services, Client agrees to provide ResponseRX with login credentials to its CRM. Furthermore, the Managed Services process involves a member of the ResponseRX team logging into the CRM, downloading a report that will include Client Data, and then uploading said Client Data to the ResponseRX platform. If being utilized, the Managed Services will be performed weekly as a default,although Client can request that the timing be adjusted to as short as 48 hours upon reasonable request. All personnel are subject to in-depth, annual privacy and data security training and assessments.
3.3.2 ResponseRX Data. All data generated, stored, or collected by ResponseRX technologies which is not Client Data is owned by ResponseRX ("ResponseRX Data"). ResponseRX Data includes, but is not limited to, all review data posted to a ResponseRX microsite. Client shall have a limited, perpetual license to use such ResponseRX Data generated by the Subscription Service, subject to Section 3.3.3 of these Terms.
3.3.3 Third Party Data. Data generated by the Subscription Service may include data and content that is owned or licensed by a third party, and Client's use of such third party data and content is limited by such third party's applicable license terms and website terms of use.ResponseRX hereby disclaims responsibility and/or liability in full for Client's use of any such third party data and content under these Terms. Such third party data and content will be promptly destroyed, and Client shall otherwise no longer have access to such third party data and content, upon termination of these Terms or termination of the applicable Order Form or Statement of Work.
3.4 Privacy Policy; Personal Data; Security. The collection, use, and storage of Personal Data (as defined in the DPA) through ResponseRX's website is governed by ResponseRX's privacy policy located at[Privacy Policy URL] ("Privacy Policy"). If Client's use of the Subscription Service requires ResponseRX to process Personal Data, ResponseRX will process Personal Data subject to ResponseRX's Data Processing Addendum located at [DPA URL] ("DPA"). The Privacy Policy and DPA are incorporated into these Terms in their entirety.
During the term of this Agreement, ResponseRX shall maintain a security program materially in accordance with industry standards that is designed to: (i) ensure the security of Client Data; (ii) protect against threats or hazards to the security or integrity of Client Data; and(iii) prevent unauthorized access to Client Data. If either party believes that there has been a security breach involving Client Data, such party must promptly notify the other party, unless legally prohibited from doing so. Additionally, each party will reasonably assist the other party in mitigating any potential damage arising from any such security breach. As soon as reasonably practicable after any such security breach, ResponseRX shall conduct a root cause analysis and, upon request, will share the results of its analysis and its remediation plan with Client.
3.5 Confidential Information. "Confidential Information" means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary; or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself (for avoidance of doubt, neither party shall be required to identify information as confidential in order to avail itself of the protections set forth in this Section 3.5). The parties acknowledge that the Subscription Service and Professional Services, the terms of these Terms and any Order Form or Statement of Work, and any other proprietary or confidential information provided to the other party constitute valuable proprietary information and trade secrets of ResponseRX and the Client, respectively. Each party agrees to preserve the confidential nature of the other party's Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its use as permitted and in connection with these Terms, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party will have the right to seek an injunction to prevent any breach or continued breach of this section.The receiving party agrees to promptly report any breaches of this section to the disclosing party. Notwithstanding the foregoing, Confidential Information does not include any information which (i) is now, or becomes, through no actor failure to act on the part of the receiving party, generally known or available to the public without breach of these Terms by the receiving party;(ii) was independently developed, or otherwise acquired, by the receiving party without restriction as to use or disclosure before receiving such information from the disclosing party, as shown by the receiving party's files and records immediately prior to the time of disclosure; or (iii) is obtained by the receiving party without restriction as to use or disclosure by a third party authorized to make such disclosure.
3.6 Use of Artificial Intelligence. Some ResponseRX Services use artificial intelligence. By agreeing to these Terms, you agree to the use of artificial intelligence, where applicable. ResponseRX will process all data through artificial intelligence models according to its Privacy Policy, DPA, and data security policies. ResponseRX will not use your data, or that of your clients, customers, or end users, to train third-party artificial intelligence models. ResponseRX will apply the highest degree of ethics to all of its artificial intelligence features and functionality.
4.1 ResponseRX Warranty. ResponseRX represents and warrants that (i) it has all right, title, and interest necessary to provide the Subscription Service and Professional Services to Client under the terms set forth in these Terms and each Order Form or Statement of Work; (ii) the Subscription Service will perform materially in accordance with the terms of this Agreement; (iii) the functionality of the Subscription Service will not be materially decreased during the term of this Agreement; (iv) ResponseRX shall use industry standard virus protection designed to prevent any viruses, time bombs, or other disabling code from the Subscription Service; and (v) it shall comply with all laws applicable to it in its provision of the Subscription Service. Additionally, ResponseRX shall perform the Professional Services in a professional and workmanlike manner in accordance with applicable industry standards.
4.2 Client's Warranty. Client represents and warrants that (i) Client has any and all consents and authorizations as may be necessary for the Client to receive the Subscription Service and/or Professional Services; (ii) each of the sites where the Subscription Service is deployed contains a privacy policy that discloses the usage of third-party technology and the data collection and usage resulting from the Subscription Service (it being understood that this clause will not be deemed to require those privacy policies to expressly identify ResponseRX or any Subscription Service, unless otherwise required by law, rule, or regulation) and complies with all applicable privacy laws, rules, and regulations; (iii) Client's websites upon which the Subscription Service is deployed do not contain any material which is defamatory, promotes illegal activity, or contains hate speech; and (iv) Client has legally obtained necessary ownership or license rights to any Client Data, including Personal Data, and that Client has any waivers and/or opt-in agreements in place with authorized users and Client customers that are required by applicable law in relation to the communications to be sent to such users and customers by ResponseRX and the Subscription Service under these Terms.
4.3 Warranty Disclaimer. EXCEPT AS SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, ORAL, OR WRITTEN) WITH RESPECT TO THE SERVICES OR ANY SUPPORT RELATED THERETO, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING. ResponseRX DOES NOT WARRANT, OR OTHERWISE PROMISE, THAT THE USE OF ITS SERVICES WILL INCREASE CLIENT'S RANKING POSITIONS ON GOOGLE OR ANY OTHER SEARCH ENGINE.
4.4 Limitations of Liability. EXCEPT AS SET FORTH BELOW, THE LIMITATIONS OF LIABILITY IN SECTIONS 4.4.1 AND 4.4.2 WILL APPLY IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND ALSO APPLY REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH DAMAGES ARE SOUGHT. IN NO EVENT WILL THE LIMITATIONS APPLY TO THE AMOUNTS DUE FOR SERVICES UNDER THE TERMS. BOTH PARTIES SHALL USE REASONABLE EFFORTS TO MITIGATE THE DAMAGES FOR WHICH THE OTHER PARTY IS RESPONSIBLE. HOWEVER, IN NO EVENT WILL THE LIMITATIONS APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
4.4.1 No Special Damages. EXCEPT FOR CLAIMS ARISING OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY IS LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, OF ANY PARTY, INCLUDING THIRD PARTIES, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THE FOREGOING.
4.4.2 Liability Cap. EXCEPT FOR CLAIMS ARISING OUT OF A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, INDEMNITY OBLIGATIONS, DATA BREACHES, OR CLIENT'S OBLIGATION TO PAY UNDISPUTED FEES UNDER THESE TERMS, IN NO EVENT WILL THE TOTAL COLLECTIVE LIABILITY OF EITHER PARTY UNDER THESE TERMS EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY EITHER PARTY UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
4.4.3 Liability Cap for Data Breaches, Indemnity and Gross Negligence or Willful Misconduct. Notwithstanding the terms of Section4.4.2, the maximum liability of ResponseRX for any claims relating to data breaches, indemnification, or gross negligence or willful misconduct claims shall in no event exceed two times the fees paid or payable by either party under these Terms during the twelve (12) month period immediately preceding the date on which the claim arose.
4.4.4 Cumulative Liability. The caps provided in this clause are cumulative for all claims (not per incident) and apply collectively to each Client and its affiliates (not per affiliate).
4.4.5 Time During Which To Bring Claim. Except where a longer period is mandated by applicable law, any claim, action, or proceeding that the Client may have arising out of or relating to these Terms must be brought within twelve (12) months of the date on which the claim arose, or such claim will be deemed waived and permanently barred. This clause does not affect any non-waivable statutory rights the Client may have under the applicable law.
4.5 Client's Indemnity. Client shall indemnify, defend, and hold harmless ResponseRX, its officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys' fees), resulting from any judgment or proceeding, or any settlement terms, from a third party's claim that arises out of a third party's claim that Client's website on which the Subscription Service is provided or any application Client develops infringes any intellectual property rights.
4.6 ResponseRX Indemnity. ResponseRX shall indemnify, defend, and hold harmless Client, Client's officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys' fees), resulting from any judgment or proceeding, or any settlement terms, from a third party's claim that the Subscription Service, as provided by ResponseRX to Client within the scope of these Terms, infringe any intellectual property rights. ResponseRX has no obligation to indemnify Client for a claim of infringement to the extent it arises from:(i) infringing matter supplied or developed solely by Client; (ii) unauthorized modifications or uses of the Subscription Service; or (iii) Client's acts or omissions not in accordance with the terms of this Agreement. If Client's use of the Subscription Service is enjoined or is likely to be enjoined due to a third party claim of infringement for which ResponseRX is required to indemnify Client under these Terms, then ResponseRX may, at its sole cost and expense and within its sole discretion, do one of the following: (x) procure for Client the right to continue using the Subscription Service; (y) replace or modify the enjoined Subscription Service to make it non-infringing but functionally equivalent; or (z) terminate the enjoined Subscription Service and return any fees paid for enjoined Subscription Service not yet rendered.
4.6.1 The indemnification obligations set forth in this Section 4.6 are ResponseRX's sole and exclusive obligations with respect to any infringement claims.
4.7 Indemnification Conditions. The indemnification obligations contained in these Terms are conditioned upon: (a) prompt notice by the indemnitee to the indemnitor of any claim, action, or demand for which indemnity is claimed (failure to meet this condition does not exempt indemnitor of its indemnification obligation, except to the extent that failure has materially prejudiced the indemnitor's ability to defend the claim); (b)sole control of the defense and settlement by the indemnitor; and (c) reasonable cooperation by the indemnitee in the defense as the indemnitor may request. The indemnitee has the right to participate in the defense against the indemnified claims with counsel of its choice and at its own expense but may not confess judgment, admit liability, or take any other actions prejudicial to the defense. Further, the indemnitee may not settle an indemnified claim unless the indemnitor has declined to defend.
4.8 Proportional Liability. Each indemnitor's liability to pay or reimburse any indemnified claim is limited to the extent of the indemnitor's proportional contribution. Neither party has any liability to the extent that any losses in conjunction with indemnified claims are attributable to acts or omissions of the other party or its indemnities.
5.1 Term. These Terms commence on the Effective Date of the first Order Form or Statement of Work and shall remain effective as long as any Order Form or Statement of Work referring to these Terms remains in effect.Except as specifically set forth to the contrary in these Terms, all payment obligations under any and all Order Forms or Statements of Work arson-cancellable and all payments made are non-refundable.
5.2 Termination for Breach. In addition to any other remedies it may have, if either party breaches any of the material terms or conditions of these Terms and fails to cure such breach within thirty (30) days after written notice from the non-breaching party, the non-breaching party may terminate these Terms or a specific Order Form or Statement of Work upon written notice. Upon termination of these Terms or an Order Form or Statement of Work due to Client's material breach, Client will pay for the Subscription Service and Professional Services that have been rendered through the termination date plus all other charges that would have been due under the remaining term of each affected Order Form or Statement of Work. Upon termination of these Terms or an Order Form or Statement of Work due solely to a breach by ResponseRX, ResponseRX shall refund a pro rata portion of any fees paid for services not yet rendered as of the date of termination.
At the time of any auto renewal, and unless you have entered into an agreement with ResponseRX prior to April 1, 2024 and/or have entered into an agreement which specifically changes the Innovation Fee applicable to your contract for or use of the Services, ResponseRX will apply an 8% fee on all recurring Services fees to cover product innovations, enhanced services, and inflation ("Innovation Fee"). The Innovation Fee shall apply automatically upon any auto renewal of this Agreement and apply to all Services covered by this Agreement at the time of the auto renewal. The Innovation Fee will be applied to the Services fees including any additional fees incurred during the term. The Innovation Fee will be included in the annual invoice to Client due according to the payment terms set forth above or as otherwise specifically stated in the Order Form or Statement of Work.
Stripe Terms of Service: Client agrees to be bound by Stripe Terms of Service located at: https://stripe.com/ssa. The Stripe Terms of Service may be modified periodically by Stripe in its sole discretion.
No PCI DSS Liability: Client understands, acknowledges,and agrees that all payment transactions processed through ResponseRX Payments are done through a third-party payment processor which is Level 1 PCI DSS compliant. Since ResponseRX does not store any payment card information, it is not subject to PCI DSS and, as a result, ResponseRX shall be released from any and all liability or claims related to or arising out of PCI DSS.
No Refunds of Payment Fees; Client Liability to Its Customers for Refunds: ResponseRX will not refund any Payment Fees upon are fund, chargeback, or other reversal of a transaction. The amount of the refund transaction will be sent to Client's customer directly, but Client shall remain liable to ResponseRX for the Payment Fees which ResponseRX will deduct from Client's payment account for the original transaction. Client agrees to indemnify ResponseRX against any claims related to or arising out of any claims by Client's customer related to the amount of any refund, chargeback, or similar issue. In the event Client's payment account does not contain the funds required to process the refund or cover the Payment Fees, Client gives ResponseRX the right to debit Client's bank account directly to cover the shortfall.
Right to Cancel or Adjust Pricing: ResponseRX reserves the right to terminate Client's access to and use of Payments if ResponseRX, in its sole discretion, determines that Client poses too great of a risk to continue using the Payments service. In addition, ResponseRX reserves the right to modify the Payment Fees, upon written notice (for which an email will suffice), in its sole discretion, if ResponseRX determines that different Payment Fees are required to cover the risk posed by Client's use of the Payments service.
Hardware/Terminals: Client may be provided with hardware(i.e., a "terminal") to assist with point of sale purchases using the Payments service. Client will at all times be responsible for maintaining the terminal and will, upon termination of the Payments service or upon reasonable request from ResponseRX, return all terminals in good condition and good working order.
Disputes: For disputed transactions (including allegedly fraudulent transactions), Client is responsible for providing evidence of the relevant transaction(s), through the tools provided by ResponseRX. ResponseRX is not responsible for providing the evidence, nor is it or will it be liable to Client for lost disputes or any and all losses or damages arising out of or related to a lost dispute.
8.1 Independent Contractors. In performing under these Terms, each party is acting as an independent contractor, and in no way are the parties to be construed as partners, joint ventures, or agents of one another in any respect.
8.2 Subcontractors. If ResponseRX subcontracts any portion of the Professional Services to a third party, ResponseRX (i) shall require such subcontractor to comply with the material terms and conditions of these Terms and (ii) remains responsible for any acts or omissions of its subcontractors as if such acts or omissions were performed by ResponseRX.
8.3 Export. Client may not export or re-export any software included within the Subscription Service, either directly or indirectly, without receiving ResponseRX's written consent and any required license from the applicable governmental agency.
8.4 Force Majeure. Neither party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the parties' respective control, including without limitation acts of God, civil commotion, Third Party Sites, strikes, terrorism, failure of third party networks or the public Internet, power outages, industry-wide labor disputes or governmental demands or restrictions.
8.5 Assignment. Either party may assign these Terms in connection with (i) a merger where the contracting entity does not survive such merger, or (ii) the sale of all or substantially all of the contracting entity's assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under the Terms without obtaining the other party's prior written consent. Any assignment in contravention of this subsection is void.
8.6 Travel & Expense Reimbursement. Each applicable Order Form or Statement of Work will set forth any reasonable and necessary travel expenses that will need to be incurred in performance of the Professional Services under these Terms.
8.7 Notice and Delivery. Except as otherwise provided herein, all notices, statements, and other documents, and all approvals or consents that any party is required or desires to give to any other party will be given in writing and will be served in person, by express mail, by certified mail, by overnight delivery, by facsimile, or by electronic mail at the respective addresses set forth below, or at such other addresses as may be designated by such party.
If to ResponseRX: ResponseRX, 220 E. Forsyth St., Suite B, Jacksonville, FL 32202 - ATTN: ResponseRX Customer Care Email:hello@responserx.com
If to Client: To the contact information stated in the Order Form or Statement of Work.
Notices to Client will be addressed to the contact designated in writing by Client to ResponseRX for Client's relevant account, and in the case of billing-related notices, to the relevant contact designated by Client.
8.8 Compliance with Laws and Regulations. Each party shall in good faith perform its obligations hereunder in a manner that complies with all applicable laws, regulations, ordinances, and codes, including identifying and procuring required permits, certificates, approvals, and inspections. If either party receives any notice, summons, or complaint regarding its noncompliance with any such laws, regulations, ordinances, or codes, it shall promptly notify the other party of such matter.
8.9 Governing Law and Jurisdiction. These Terms and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed by the laws of the State of California, without giving effect to principles of conflicts of law. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules of any jurisdiction, will not apply to the Terms. Any disputes, actions, claims, or causes of action arising out of or in connection with the Terms shall be subject to the exclusive jurisdiction of the state or federal courts in Santa Clara County, California.
If Client's Order Form or Statement of Work is with ResponseRX Australia Pty Ltd or ResponseRX NZ Pty Ltd, the Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed exclusively by, and construed in accordance with, the laws of New South Wales, Australia, and the parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales.
If Client's Order Form or Statement of Work is with ResponseRX UK Limited, this Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the English courts.
8.10 Entire Understanding; Order of Precedence. These Terms represent the parties' entire understanding relating to the Subscription Services and Professional Services, and supersede any prior or contemporaneous, conflicting or additional, communications. Any conflict between these Terms, any addendum or attachment and any Order Form or Statement of Work shall be resolved in favor of the Order Form or Statement of Work followed by the addendum or attachment over the Terms. These Terms or an Order Form may be executed by electronic signature. Except as otherwise provided in an Order Form or Statement of Work or other agreement of the parties, these Terms may only be amended by a duly executed agreement between ResponseRX and Client. If any provision of the Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
8.11 Severability; Waiver. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
8.12 Survival. All sections of these Terms that by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
ResponseRX will from time to time make certain Services available for free use for a period of time. This Section 9, the "Free Trial Terms," will apply to your use of designated Services which may be offered to you as a part of a specific program or initiative to provide the Services free of charge (a "Free Trial"). The designated Services will be set forth on a specific page, notification, or popup on our website or by email ("Free Trial Offer"). By choosing to take advantage of the Free Trial, you expressly agree to be bound by these Free Trial Terms. Any and all Free Trials of designated Services shall be only for your internal, non-commercial use. Your Free Trial of a Service may or may not include all of the features included in a Service, at ResponseRX's sole discretion. Your Free Trial will start on the date that you either accept these Free Trial Terms or the date on which you are provided access to the designated Services, whichever is earlier ("Free Trial Start Date"). The Free Trial shall be for 30 days unless otherwise stated in the Free Trial Offer and your usage of the Services may be limited by the Free Trial Offer. ResponseRX is entitled to terminate your access to the Services at the end of the Free Trial Period without notice and without liability unless you have entered into an agreement with ResponseRX for paid usage of the Service prior to the end of the Free Trial. If you are in breach of these Free Trial Terms, in its sole discretion, ResponseRX may terminate your access to the Services immediately, without notice and without liability. In the event of any conflict between these Free Trial Terms and the general Terms & Conditions (as set forth in Sections1-8 above), these Free Trial Terms shall control.
