Terms of Service Agreement

PLEASE READ THIS AGREEMENT, WHICH IS A LEGALLY BINDING CONTRACT, CAREFULLY BEFORE USING THIS SERVICE. BY USING THE SERVICE AND AGREEING TO THESE TERMS, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR COMPANY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S OR COMPANY’S BEHALF.

This agreement is between ReviewRail Inc., a Connecticut limited liability company (ReviewRail), and the reviewing consumer (Reviewer) or ReviewRail customer (collectively, Customer) agreeing to these terms. Specific payment terms for Customers are outlined in the sign-up page and billing terms (Billing Form(s)), which are incorporated herein by reference. For Reviewers submitting a review about a business, please see, in particular, Section 2(e) Privacy Policy.

1. SOFTWARE SERVICE. This agreement provides Customer access to and usage of ReviewRail’s internet-based software service (Service(s)) as specified on the applicable Billing Form(s). The Service provides a platform for sending emails and text messages to Customer’s consumer contacts in the U.S. who have used Customer’s goods or services, and who have provided prior express written consent to Customer for any text messages, which ask each consumer to write a review (regardless of whether the review is “negative” or “positive”) about the consumer’s experience with Customer’s goods or services. The Service also allows Customer to upload other reviews about Customer to the Service. YOU UNDERSTAND AND AGREE THAT REVIEWRAIL IS SOLELY PROVIDING THE SERVICE AS A SOFTWARE PLATFORM AND THAT YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND ANY ACTIVITY THROUGH YOUR ACCOUNT. WHEN USING THE SERVICE, YOU ARE SOLELY RESPONSIBLE FOR OBTAINING ANY NECESSARY CONSENT FOR COMMUNICATIONS TO CONSUMERS AND TO USE ANY UPLOADED REVIEWS AND FOR COMPLYING WITH ALL APPLICABLE LAWS AND ALL TERMS OF THIS AGREEMENT.

2. USE OF SERVICE.

a. Service Provider Use. If Customer has purchased a “service provider” account as indicated by the applicable Billing Form, then notwithstanding anything to the contrary contained in this agreement, Customer may use the Service as part of a service it provides to its customers. Customer must ensure that each of its customers has a services contract with Customer with terms no less protective of the Service and ReviewRail as the terms on Schedule A to this agreement. Customer further agrees with the terms in Schedule B identifying ReviewRail as a service provider for Customer.

b. Customer-Owned Data. All data, information, reviews, and content uploaded by Customer to the Service, and Customer’s names, logos, trademarks, copyrights, and other intellectual property (Customer Data), remain the property of Customer, as between ReviewRail and Customer. Customer grants ReviewRail the right and royalty-free, worldwide, perpetual, assignable, transferrable license to use, reproduce, and display the Customer Data solely for purposes of and related to performing services under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service. Customer represents and warrants that all Customer Data, including containing personal information of consumers, complies with all applicable laws, as defined below, and only identifies consumers in the U.S. who are at least 18 years old and who have, if applicable, provided recent prior express written consent to receive SMS Marketing, as defined below.

c. Contractor Access and Usage. Customer may allow its contractors to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.

d. Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account and must notify ReviewRail promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s technical documentation and applicable laws, including as outlined below. If Customer uploads Customer Data, including pre-existing or other reviews, to the Service, Customer is solely responsible for ensuring that it has authority to do so and that each reviewing consumer has consented to such use and has agreed to comply with terms consistent with the applicable provisions of Section 2(e) below.

e. Specific Terms for Reviewers. As part of the Service, Reviewers may provide positive or negative reviews or testimonials (Review Content) about third-party businesses (Business(es)). The Businesses will get a copy of the Review Content, and Businesses can manage and enhance their online reputations by publishing Review Content on their websites and their ReviewRail business page and by contacting Reviewers if requested. If a Business uses the referral function of ReviewRail, the Reviewer will get a unique referral link to track if they refer other people. Reviewers providing Review Content through ReviewRail understand and agree to the following terms:

• External Websites and Public Content. If Reviewer posts on third-party websites, which is voluntary, Reviewer agrees to comply with the respective third-party terms of service and privacy policies. Reviewer should carefully consider what information to post publicly. Neither ReviewRail nor the Business can remove or modify reviews that are publicly posted on third-party platforms. Reviewers whose information is protected by HIPAA Privacy Laws further understand that external review sites are not covered by HIPAA laws and information submitted to such external review sites will not be protected by HIPAA.
• Reviewer’s Representations and Warranties. Reviewer represents and warrants that: (i) Reviewer is at least 18 and legally qualified to enter into and form contracts; (ii) Reviewer owns or otherwise controls all rights to the Review Content; (iii) the Review Content is a truthful, accurate, and non-misleading reflection of Reviewer’s personal opinion, beliefs, and experience with the Business; and (iv) use of the Review Content by ReviewRail or the Business will not violate these Terms or any applicable law or cause any unlawful injury.
• Review Content Guidelines. Reviewers should follow the following guidelines: (i) Think about the kind of information you would like to know about the business (e.g., Would you recommend the business to a friend? Did it meet or exceed your expectations? Would you go back for further services?); (ii) Be objective and specific about your experience; and (iii) Keep your comments brief and informative (ideally, between 100 to 250 words), and do not include sensitive or private information that you do not want to be available publicly on the internet.
• License and Release. In exchange for the right to use the Service and any other valuable consideration, Reviewer grants ReviewRail and the Business with a nonexclusive, royalty-free, perpetual, fully paid-up, worldwide, irrevocable, sublicensable, assignable, and transferable, right to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display Review Content, including Reviewer’s name, throughout the world in any media. Reviewer understands that Review Content may be used and exploited for any commercial purpose, including advertising and marketing, and may be edited, modified, and combined with other works. Reviewer releases ReviewRail and the Business from any and all liabilities, losses, damages, expenses, claims, settlements, or judgments of any kind, whether known or unknown, including invasion of privacy, right of publicity, defamation, and attorney’s fees, which Reviewer, or Reviewer’s heirs or assigns, may have, arising from or related to Review Content or Reviewer’s conduct. Reviewer agrees that Reviewer has no further right to any further consideration and that this release is binding upon Reviewer’s heirs and assigns.
• Defense and Indemnity. Reviewer shall defend and indemnify ReviewRail and the Business for all claims arising from or related to Review Content, Reviewer’s conduct, or violation of Reviewer’s representations and warranties. The Business has the right, but not the obligation, to monitor, edit, or remove Review Content. ReviewRail and the Business take no responsibility and assume no liability for any Review Content posted by you or a third party.
• Arbitration of Claims. Reviewer shall resolve all disputes arising out of or related to these Terms (including the enforceability of this provision), the Service, or ReviewRail by binding arbitration in Fairfield County, Connecticut before a single arbitrator; for the purposes of this arbitration provision, the Business(es) is considered a third-party beneficiary. Reviewer waives any right to join claims with others or otherwise proceed in a class action. Reviewer acknowledges that, without this provision, Reviewer would have had the right to sue in court with a jury or participate in a class action. The arbitration shall be administered by the American Arbitration Association (“AAA”), pursuant to its rules, available at www.adr.org, and the prevailing party as determined by the arbitrator shall be entitled to receive its reasonable attorney’s fees and costs. The arbitration may be conducted by phone, video, or written submission. This clause shall not preclude the parties from seeking an injunction or other provisional remedies in aid of arbitration or from filing a small claims action in Fairfield County, Connecticut.
• Disclaimers and Limits of Liability. To the fullest extent permitted by law, ReviewRail disclaims any and all warranties, express or implied, including any implied warranties of merchantability and fitness for a particular purpose. Operation of the Service may not be interrupted or error free. ReviewRail shall not be liable for any indirect, special, consequential, punitive, or exemplary damages, attorney’s fees, lost profits, or loss or damage to data. ReviewRail shall not be liable to Reviewers for any conduct by Businesses or any other third parties. 
• Questions. Please contact support@reviewrail.com for any questions.

e. Compliance with Applicable Laws, Including Obtaining Prior Written Express Consent for SMS Marketing.

Customer’s responsibility to comply with all applicable laws requires Customer to comply with, where relevant, all federal, state, local, and foreign statutes, laws, ordinances, rules, and regulations, including but not limited to the Telephone Consumer Protection Act, 47 U.S.C. §227, as amended, and its implementing regulations and applicable F.C.C. rulings and orders (collectively, TCPA); the CAN-SPAM Act of 2003; the Federal Trade Commission Act and related rules, regulations, and guidelines; intellectual property and privacy laws, including the California Consumer Privacy Act, Civil Code §1798.100 et seq. and related amendments, regulations, and guidelines (collectively, CCPA); the United Kingdom Data Protection Act of 1998 (as amended); the General Data Protection Regulation (GDPR) (EU) 2016/679 as amended and adopted by the UK and member states of the EU, and all related directives, acts, or regulations; and applicable terms of service. In addition, with respect to any use of the Service for calls, faxes, texts, SMS, MMS, or social media messages, or any communication covered by the TCPA (collectively, SMS Marketing) to consumers, Customer represents and warrants the following:

• Valid Consent. Customer will not upload Customer Data or otherwise use the Service to engage in SMS Marketing except to contact consumers (Consenting User(s)) who have provided Customer with “prior express written consent” (Valid Consent), as that phrase is defined in the TCPA, to be contacted via SMS Marketing by Customer and ReviewRail. The language to be used by Customer to obtain Valid Consent from Consenting Users (Consent Disclosure) must include Customer’s name, state consent is not a condition of purchase if applicable, and include any other requirements under applicable laws. Customer shall obtain Valid Consent by requiring consumers to check a box next to the Consent Disclosure, which shall be in a clear and conspicuous location, font, and format, or other equivalent means of obtaining Valid Consent.
• Consent Records. Customer shall maintain records (Consent Records) of the Valid Consent obtained from each Consenting User, including if applicable the date and time stamp of when Valid Consent was obtained, the IP address, registration source, and email address of each Consenting User, the applicable privacy policy, terms of service, agreement to arbitration, and Consent Disclosure associated with each such Valid Consent, and such other information and/or documentation that is reasonably necessary to prove in a regulatory or judicial proceeding that Customer secured legally sufficient Valid Consent from the Consenting User to be contacted via SMS Marketing through the Service by and on behalf of Customer and any licensees of Customer Data. Customer shall maintain Consent Records at its expense and shall provide same to ReviewRail within 2 business days of ReviewRail’s request.
• Suppression List. Customer shall maintain, pursuant to commercially reasonable standards and as required by any applicable laws, records of, and shall promptly comply with, any unsubscribe, opt-out, deletion, or do not call request (Unsubscribe) received by Customer relating to any Customer Data. To the extent that Customer receives any Unsubscribe, Customer shall maintain and update its list (Suppression List) with each Unsubscribe and provide ReviewRail with any information necessary for ReviewRail to obtain and review the Suppression List in real time or, if real time access is not feasible, Customer shall provide ReviewRail with the Suppression List within 2 business days of receiving any Unsubscribe. To the extent that ReviewRail provides any suppression list or consumer request to Customer in connection with the Service, Customer shall promptly respond and regularly scrub its database(s) against such list no fewer than every 7 days and shall not include any such individuals as part of Customer Data.
• Emails. Customer will not upload Customer Data or otherwise use the Service to engage in email marketing except to contact consumers with whom Customer has a recent direct relationship and who have not opted out of receiving communications from or on behalf of Customer.
• Arbitration. Customer will maintain compliant terms of service, which obtain consent to arbitration of disputes and waiver of class actions (including for claims relating to communications) and a compliant privacy policy, and Customer will not upload Customer Data or otherwise use the Service in relation to any consumer who has not consented to the foregoing terms of service, arbitration provision with a class action waiver, and privacy policy.
• Review Gating. Customer will adhere to the terms of service of Google, Facebook, Yelp, and all major review sites. In particular, Customer will not use the Service for “review gating” where customers with a positive experience are sent to review sites and customers with a negative experience are sent to an internal form. Customer understands that ReviewRail displays third-party review links to Reviewers, whether they have a positive or negative experience, and Reviewers have the opportunity to post reviews publicly online (with feedback requests following). If ReviewRail suspects a Customer of “review gating,” ReviewRail reserves the right to provide 30 days for Customer to comply and to suspend or terminate Customer’s account.

f. ReviewRail Support. ReviewRail will provide customer support for the Service under the terms of ReviewRail’s Customer Support Policy (Support), which is located at www.reviewrail.com/support. Except as otherwise provided in the Support Policy, ReviewRail shall use reasonable commercial efforts to make the Service available 99% of the time, except for (i) planned downtime; or (ii) downtime caused by circumstances beyond ReviewRail’s reasonable control. Customer shall promptly report any issues with the Service to ReviewRail; and ReviewRail shall use reasonable efforts to respond to Customer within commercially accepted timeframes within business hours.

g. 15-Day Trial Version. If Customer has registered for a trial use of the Service, Customer may access the Service for a 15-day time period (unless extended by ReviewRail in writing). The Service is provided AS IS, with no warranty during this time period. All Customer Data will be deleted after the trial period, unless Customer converts its account to a paid service. During any trial or other period, and notwithstanding any other provision of this agreement, Customer is still responsible for its obligations, representations, and warranties, including in Sections 2, 5, and 9 of this agreement.

3. DISCLAIMERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REVIEWRAIL DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE SERVICE MAY, FROM TIME TO TIME, BE UNAVAILABLE, INCLUDING DUE TO PLANNED OR UNPLANNED DOWNTIME, THIRD-PARTY ACTIONS, OR FACTORS BEYOND REVIEWRAIL’S REASONABLE CONTROL. WHILE REVIEWRAIL TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, REVIEWRAIL DOES NOT GUARANTEE THAT THE SERVICE IS 100% SECURE OR CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED. REVIEWRAIL SHALL NOT BE LIABLE FOR ANY LOSS, INTERRUPTION, OR DELAY IN THE SERVICE, DATA SECURITY, OR LOSS OF CUSTOMER DATA; REVIEWRAIL SHALL NOT BE LIABLE FOR ANY LOSS, DELETION, OR FAILURE TO STORE ANY DATA. REVIEWRAIL DISCLAIMS ALL LIABILITY REGARDING CLAIMS ARISING OUT OF OR RELATED TO ANY TYPE OF REFERRAL PROGRAM USED BY CUSTOMER WITH THIS SERVICE. THE SERVICE MAY RELY UPON THIRD PARTIES FOR TECHNICAL FUNCTIONS; NONETHELESS, REVIEWRAIL SHALL NOT BE LIABLE TO CUSTOMER FOR ANY THIRD-PARTY ACTIONS, PLATFORMS, OR CONDUCT.  

4. PAYMENT. Customer must pay all fees as specified on the Billing Form(s), but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT, and other taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement. ReviewRail may temporarily suspend or terminate, or both, the Service if Customer’s payment on any invoice is more than 10 days past due.  Unpaid fees are subject to a charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, whichever is lower, plus all expenses of collection, including attorney’s fees and court costs. If Customer disputes any issue(s) relating to fees, Customer must promptly notify ReviewRail in writing of the dispute, and submit any evidence supporting Customer’s position, within 30 days after the dispute arose. In any action or proceeding to enforce rights under this agreement, including to recover outstanding fees, the prevailing party will be entitled to recover reasonable costs and attorney’s fees.

5. MUTUAL CONFIDENTIALITY.

a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). ReviewRail’s Confidential Information includes without limitation the proprietary functions, features, and content of the Service (including without limitation the Service user interface design and layout, customer lists, software code, scripts, and pricing information).

b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will promptly provide Discloser with advance notice to seek a protective order.

6. REVIEWRAIL PROPERTY.

a. Intellectual Property and Reservation of Rights. The Service, including software, workflow processes, user interface, designs, applications, inventions, improvements, modifications, data, data organization structure, scripts, layers of capabilities, methods of doing business, algorithms, know-how, source codes, tags, links, pixels, underlying technology, and any other technologies provided by ReviewRail as part of the Service or developed in connection with or using the Service, are the proprietary property of ReviewRail and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with ReviewRail and its licensors. Between ReviewRail and Customer, ReviewRail owns all rights, title, and interest in the foregoing items, along with ReviewRail’s name, logos, trademarks, trade names, service marks, copyrights, URLs, slogans, and other intellectual property (collectively, ReviewRail’s IP). Except for the limited license described in this agreement, Customer does not have, nor will it claim, any right, title, or interest in ReviewRail’s IP. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software, defined below. ReviewRail reserves all rights unless expressly granted in this agreement.

b. Restrictions on Customer. Customer may not (i) sell, resell, rent, sublicense, gift, transfer, or lease the Service or use it in a service provider capacity (provided, however, that an agency that is a service provider may have limited resale rights if and as previously authorized by ReviewRail); (ii) use the Service to store or transmit infringing, unsolicited marketing content, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or related systems or networks; (v) reverse engineer the Service or the Software, defined below, or scrape, decompile, alter, modify, conceal, eliminate, or render inoperable any part of the Service; (vi) access the Service or use the Software, defined below, to build a competitive service or product, or copy any feature, function, or graphic for competitive purpose; or (vii) violate any terms of this agreement or applicable laws as defined above.

c. Software License. All software or code provided by ReviewRail as part of the Service (Software) are licensed to Customer as follows: subject to Customer’s compliance with this agreement and all applicable laws, ReviewRail grants Customer a revocable, non-exclusive, non-transferable, limited license during the term of this agreement, to use such Software, solely in connection with the Service and the purpose of this agreement on behalf of the identified Customer only.

d. Anonymized Data. During and after the term of this agreement, ReviewRail may use and owns all anonymized data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support, and other business purposes.

7. TERM AND TERMINATION.

a. Term. This agreement continues until all orders have terminated as provided in the applicable Billing Form(s).

b.  Termination or Suspension for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured. In addition, in the event that Customer breaches its obligations in Sections 2, 4, 5, 6, and/or 9, ReviewRail may, in its sole and absolute discretion, terminate this agreement and/or Customer’s account without any further notice to Customer. ReviewRail may temporarily suspend the Service or remove the applicable Customer Data, or both, without prior notice, if it in good faith believes that, as part of using the Service, Customer has violated a law, Sections 2, 4, 5, 6, and/or 9 of this agreement, or the ReviewRail Acceptable Use Policy https://www.reviewrail.app/policy/privacy-policy. ReviewRail will attempt to provide notice to Customer of termination or suspension. No refunds or credits of any kind will be provided. If ReviewRail in good faith believes that such violation has not been cured or remedied, ReviewRail may permanently terminate the Service for the applicable Customer, including by revoking access to Software. If there is a termination or suspension for Customer’s material breach, Customer shall still be obligated to pay ReviewRail all amounts due under the applicable Billing Form(s), notwithstanding any revocation of access.

c. Return of Customer Data. Except for a termination for Customer’s material breach as outlined above, within 60 days after termination, upon request ReviewRail will make the Service available for Customer to export Customer Data. After such 60-day period, ReviewRail may destroy Customer Data. Customer is solely responsible for making any necessary copies of and securing Customer Data.

d. Return of ReviewRail Property. Upon termination of this agreement for any reason, Customer must pay ReviewRail for any unpaid amounts, destroy or return all property of ReviewRail, including without limitation its Software, and cease using its account. Upon ReviewRail’s request, Customer will promptly confirm in writing its compliance with this destruction or return requirement.

8. LIABILITY LIMIT.

a. EXCLUSION OF INDIRECT AND OTHER DAMAGES. To the maximum extent permitted by law, ReviewRail is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement or the Service (including, without limitation, costs of delay; loss of data, records, or information; or lost profits, revenue, or anticipated cost savings), even if it knows of the possibility of such damage or loss, including for third-party conduct, viruses, hacking, threats, or data security or privacy issues. ReviewRail shall not be liable for any action or inaction of Customer or any third party.

b. TOTAL LIMIT ON LIABILITY. ReviewRail’s total liability, including for its directors, officers, employees, agents, successors, and assigns, arising out of or related to this agreement or the Service (whether in contract, tort, or other legal theory) does not exceed the amount paid by Customer to ReviewRail within the 12-month period prior to the event that gave rise to the liability.

9. REPRESENTATIONS, WARRANTIES, DEFENSE, AND INDEMNITY.

a. Customer’s Representations and Warranties. Customer represents and warrants that: (i) Customer has all necessary rights and authority to enter into this agreement and to grant ReviewRail the licenses granted herein (including to use any Customer Data); (ii) the execution of this agreement by Customer, use of the Service (including uploading of any Customer Data), and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which Customer is a party or by which it is otherwise bound; and (iii) Customer's products, services, Customer Data, and use of the Service shall at all times comply with the terms of this Agreement and all applicable laws. Moreover, Customer represents and warrants that Customer is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required. Customer warrants that it shall implement all necessary and adequate compliance controls and measures to ensure it fully complies with this agreement and all applicable laws prior to and as a condition of using ReviewRail’s Service; and Customer assumes all responsibility for the foregoing and shall rely solely upon its own counsel and consultants in complying with applicable laws. For clarity, Customer represents and warrants that it will comply with, and is solely responsible for complying with, all applicable laws, including but not limited to the TCPA and CAN-SPAM, regardless of whether ReviewRail sends content on behalf of Customer; and Customer represents and warrants that it has Valid Consent in the form of prior express written consent for each consumer uploaded to the Service for SMS Marketing.

b. ReviewRail’s Representations and Warranties. ReviewRail represents and warrants that, subject to Sections 3, 8, and 9: (i) ReviewRail has all necessary rights and authority to enter into this Agreement; and (ii) ReviewRail’s Service does not knowingly infringe on the intellectual property rights of any third party.

c. Defense and Indemnity of Third-Party Claims by ReviewRail. Subject to Sections 3, 8, and 9, ReviewRail will defend or settle any third-party claim against Customer to the extent that such claim alleges that ReviewRail technology used to provide the Service violates a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies ReviewRail of the claim in writing, cooperates with ReviewRail in the defense, and allows ReviewRail to solely control the defense or settlement of the claim. ReviewRail will pay reasonable infringement claim defense costs incurred as part of its obligations above subject to the terms of this agreement. If such a claim appears likely, then ReviewRail may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If ReviewRail determines that none of these are reasonably available, then ReviewRail may terminate the Service and refund any prepaid and unused fees. ReviewRail has no obligation for any claim arising from: ReviewRail’s compliance with Customer’s specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; use of Customer Data, Customer conduct, or Customer’s account; or technology or aspects not provided by ReviewRail. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND REVIEWRAIL’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.

d. Defense and Indemnity of Third-Party Claims by Customer. If a third-party Claim, defined below, against ReviewRail or any of its directors, officers, licensees, employees, agents, successors, and/or assigns (collectively referred to as ReviewRail) that relates to or arises from (i) Customer’s violation of this agreement and/or any applicable law(s), including without limitation any allegation that a communication using Customer Data was made without Valid Consent or that otherwise relates to or arises from Customer Data, Consent Disclosures, or Suppression Lists; (ii) Customer’s conduct, omissions, or account; or (iii) any allegation that any part of the Customer Data infringes or violates that party’s patent, copyright, or other right, Customer will defend, indemnify, and hold harmless ReviewRail against that Claim at Customer’s expense and pay all costs, damages, and attorney’s fees, including that a court finally awards or that are included in a settlement, provided that ReviewRail: promptly notifies Customer in writing of the claim; and allows Customer to control, and cooperates with Customer in, the defense and any related settlement. “Claim(s)” includes all claims, actions, losses, liability, damages, costs, investigations, lawsuits, settlements, costs, fees, and expenses (including reasonable attorney's fees and court costs). Nothing in this Section shall limit any other remedy available to ReviewRail. These obligations shall survive any termination of the agreement.

10. GOVERNING LAW AND FORUM. This agreement is governed by the laws of the State of Connecticut (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement, provided that arbitration provisions are governed by the Federal Arbitration Act and related federal laws. Subject to Section 2(e), any suit or legal proceeding must be exclusively brought in the federal or state courts for Fairfield County, Connecticut; and Customer submits to this provision and waives objections for personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorney’s fees and costs from the other party.

11. OTHER TERMS.

a. Entire Agreement and Changes. This agreement and the applicable Billing Form(s) constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by ReviewRail. No waiver is effective unless the party waiving the right signs a waiver in writing. REVIEWRAIL RESERVES THE RIGHT TO UPDATE THE SERVICE AT ANY TIME WITHOUT NOTICE TO CUSTOMER AND TO UPDATE THIS AGREEMENT AT ANY TIME UPON NOTICE TO CUSTOMER. Any notices due under this agreement shall be in writing, which may be via email to the contact of record. If any provision of this agreement or application thereof is held invalid, the invalidity shall not affect other provisions of the agreement that can be given effect without the invalid provisions, and to this end the provisions of this agreement are declared to be severable.

b. No Assignment. Customer may not assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned by ReviewRail, without the consent of Customer, as part of a merger, or sale of substantially all the assets, of ReviewRail.

c. Third Party Services. Customer understands some data within the Service may be sourced from third-party services (including without limitation, Google, Yelp, or Facebook and any third parties with whom ReviewRail integrates) and if any of those third-party services are permanently unavailable to ReviewRail (other than as a result of the act or omission of Customer), then ReviewRail will make reasonable commercial efforts to substitute such third-party services with substantially equivalent service. No refunds or credits of any kind will be provided. ReviewRail does not control third parties, who may each have their own terms and privacy policies.

d. Independent Contractors. The parties are independent contractors with respect to each other. This agreement does not create any agency, employer, partner, or joint venturer relationship.

e. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.

f. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights or Confidential Information could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

g. No Additional Terms. ReviewRail rejects additional or conflicting terms of any Customer form-purchasing document.

h. Order of Precedence. If there is a direct inconsistency between this agreement and an order, the order prevails.

i. Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the intellectual property and confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply. Without limiting any other provisions of this agreement, and except as stated above, Sections 3 to 6 and 8 to 11 shall expressly survive any termination.

j. Feedback. By submitting ideas, suggestions, or feedback to ReviewRail regarding the Service, Customer agrees that such items submitted do not contain confidential or proprietary information, and Customer hereby grants ReviewRail an irrevocable, unlimited, royalty-free, and fully-paid perpetual license to use such items for any business or commercial purpose.

Schedule A

1. Subscriber is granted only a nonexclusive right to use and access the Service up to the capacity purchased.

2. Except for the rights expressly granted to the Subscriber, Company and its suppliers retain all of its intellectual property rights in the Service and underlying software, and no rights, title, or interest to the underlying Software are transferred to the Subscriber.

3. Subscriber may not reverse engineer or use the Service in a service provider capacity.

4. Neither Company nor its suppliers are liable to the Subscriber for any indirect, consequential, incidental, or special damages arising out of the use of the Service, regardless of the theory of liability (including negligence and strict liability).

5. Subscriber must comply with applicable export control laws.

Schedule B

This Privacy Addendum sets forth terms and conditions relating to compliance with the California Consumer Privacy Act, California Civil Code §1798.100, et seq. (CCPA) and similar privacy laws in the United States (collectively with the CCPA, Privacy Law(s)) in connection with the Services provided pursuant to the agreement. This Privacy Addendum is hereby attached to and incorporated into the agreement by reference.

1.  Recitals.

a. Each party is solely responsible for its own compliance with all Privacy Laws; and the execution of this Privacy Addendum is for convenience only.

b. Each party may, from time to time and as a necessary part of the Service, have access to and/or process the Personal Information, as defined below, of consumers.

c. Now, therefore, in consideration of the mutual covenants and agreements in this Privacy Addendum and the agreement, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree as follows:

2.  Personal Information.

As used herein, Personal Information means and includes information that is part of Customer Data provided to ReviewRail that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household, that may be (1) disclosed by Customer to ReviewRail appurtenant to the Services, (2) accessed or processed at any time by ReviewRail in connection with or related to performance of the Service, or (3) derived or inferred by ReviewRail from such information. Personal Information includes, without limitation, the types of data and other information identified in Section 1798.140(o) of the CCPA, or such similar data outlined in any other applicable Privacy Laws.

3.  Business Purpose. The parties, and each of them, acknowledge and agree that any Personal Information disclosed by Customer to ReviewRail is disclosed for a Business Purpose only. As used herein Business Purpose means reasonable and necessary access to and/or processing of Personal Information for either Customer’s or ReviewRail’s operational purpose, consistent with Section 1798.140(d) of the CCPA.

4.  Service Provider. The parties, and each of them, acknowledge and agree that, with respect to its access to and/or processing of Personal Information disclosed by Customer, ReviewRail is acting solely as a “service provider” as defined in Section 1798.140(v) of the CCPA.

5.  Security Requirements. The parties, and each of them and their employees, approved subcontractors, and agents shall adopt and follow reasonable data security protocols including, if required, an incident response plan, and network connections in relation to Personal Information.

6.  Prohibited Conduct.

a. ReviewRail shall not sell any Personal Information, or portion thereof;

b. ReviewRail shall not copy, retain, use, or disclose Personal Information for any purpose other than that which is reasonable and necessary to perform the Service (which may include any necessary legal and security purposes); and

c. Customer shall not rely on ReviewRail for Customer’s compliance with Privacy Laws as Customer is solely responsible for Customer’s own compliance with all Privacy Laws.

7.  Consumer Requests.

If Customer receives any consumer request under the CCPA or other Privacy Laws impacting ReviewRail or the Service, including a request that Customer and its service providers delete Personal Information, Customer shall forward the request to ReviewRail (which may be by email to ReviewRail’s contact of record) within 10 business days. If Customer forwards a request for ReviewRail to delete Personal Information, ReviewRail will delete that Personal Information except as authorized by applicable laws. If ReviewRail receives a verified consumer request under the CCPA or other Privacy Laws impacting Customer, including a request that Customer provide access to Personal Information, ReviewRail shall forward the request to Customer (which may be by email to Customer’s contact of record) within 10 business days. If ReviewRail forwards a request for Customer to provide access to or information about Personal Information or privacy practices, Customer shall respond to the request pursuant to the requirements of the CCPA and/or analogous Privacy Laws.

8. General Provisions.

a. If any provision of this Privacy Addendum is held invalid or unenforceable, the remaining provisions shall remain in effect.

b. This Privacy Addendum is binding upon successors and assigns of the parties, as permitted under the agreement or any modification thereof.

c. A waiver by either party of any term or condition of this Privacy Addendum in one or more instances shall not constitute a permanent waiver of the term or condition or any other provision of the Privacy Addendum or a general waiver.

d. This Privacy Addendum shall be subject to and governed by the dispute resolution, choice of law, forum selection, and indemnification provisions of the agreement.

e. In the event of an actual or perceived conflict between this Privacy Addendum and the agreement, this Privacy Addendum shall govern as to all matters concerning processing of Personal Information, and the agreement shall govern as to all other matters.