"Customer" means the individual accepting the terms of this Agreement or the entity such individual represents, as applicable.
"Customer Data" means data and other information made available to Damnlist through the use of the Damnlist Services under this Agreement, including call records, SMS records, and SMS message content, Email content and email messages, social media content
"Emergency Services" means services that allow a user to connect with emergency services personnel or public safety answering points.
"End User" means an end user of a Customer Application.
"Rate Schedule" means the schedule of fees located at Damnlist.com/pricing, as such may be updated from time to time.
"SLA" means the service level agreement located at Damnlist.com/sla, as such may be updated from time to time.
2. Customer Program and Services
2.1 Provision of Services. Damnlist will make the Damnlist Services available to Customer in accordance with the SLA and, as applicable. Subject to the terms and conditions of this Agreement, Damnlist grants Customer a non-exclusive, revocable right to:
Use Damnlist to store information about client data.
Use Damnlist to send email and sms notifications only to people that agree for a service within the Customer organization.
Use the Damnlist Properties solely in connection with and as necessary for Customer's activities hereunder.
2.2 Data Storage. Customer acknowledges that, unless expressly agreed otherwise in a writing signed by Customer and Damnlist, data storage is not guaranteed by Damnlist and agrees that Damnlist shall not have any liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to the loss or deletion of Customer Data.
2.3 Use of Damnlist Services. Customer will be solely responsible for all use (whether or not authorized) of the Damnlist Services under its account, including for the quality and integrity of Customer Data and each Customer Application. Customer will ensure that it has a written agreement with each End User ("End User Agreement") that enables Damnlist to use all Customer Data as necessary to provide the Services and that protects Damnlist's rights to the same extent as the terms of this Agreement. The End User Agreement must include terms concerning restrictions on use, protection of proprietary rights, disclaimer of warranties and limitations of liability. Damnlist agrees that, subject to the foregoing requirements, the End User Agreement need not specifically refer to Damnlist. Customer will promptly notify Damnlist if it becomes aware of any breach of the terms of the End User Agreement that may affect Damnlist. Customer will take all reasonable precautions to prevent unauthorized access to or use of the Damnlist Services and notify Damnlist promptly of any such unauthorized access or use.
Except as expressly provided in Section 2.1 (Provision of Services), Customer will not transfer, resell, lease, license or otherwise make available the Damnlist Services to third parties. In any event according to Damnlist API, Customer will not offer the Damnlist Services on a standalone basis. Customer will not use the Damnlist Services to access or allow access to Emergency Services. Customer will ensure that the Damnlist Services provided hereunder are used in accordance with all applicable laws, regulations and third party rights, as well as the terms of this Agreement. Customer will ensure that Damnlist is entitled to use the Customer Data as needed to provide the Damnlist Services and will not use the Damnlist Services in any manner that violates any data protection statute, regulation, order or similar law. Except as allowed by applicable law, with respect to any software provided to Customer hereunder, Customer will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive the source code of such software.
All phone numbers, email account used in Damnlist services are temporary and are property of Damnlist. Damnlist reserves the right to revoke or replae any communication channel such as email or phone number from Customer's account.
2.5 Changes to Service. Customer acknowledges that the features and functions of the Damnlist Services, including the Damnlist APIs, and the terms of the SLA may change over time. It is Customer's responsibility to ensure that services or requests Customer makes to the Damnlist Services are compatible with then-current Damnlist APIs. Although Damnlist endeavors to avoid changes to the Damnlist APIs that are not backwards compatible, if any such changes become necessary, Damnlist will use reasonable efforts to notify Customer at least 30 days prior to implementation and to provide information required for Customer to continue to use the Services.
3.1 Customer can use a service for free with unlimited number of lists and unlimited number of client record and up to 200 Megabytes of storage. Free service exlude email and sms functionality. Customer can upgrade his account to use excluded services and bigger storage. If customer decide to upgrade account to premium account, monthly fee will be defined. User will pay monthly fee in a subscription model by connecting Paypal or Credit Card to the system. The service will be automatically renew in the end of each monthly period. Customer will be able to cancel the service any time before the renewing period. If customer cancel the service before the renewing date it will not be charged for next subscription period. The services will be converted to Free version and all tasks will be suspended.
3.2 Net of Taxes. Unless otherwise stated in the Monthly Schedule, all applicable federal, state or local taxes and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees and surcharges, whether charged to or against Damnlist, will be payable by Customer. Customer will not withhold any taxes from any amounts due to Damnlist.
3.3 The right to use free service can be revoke any time.
4. Ownership And Confidentiality
4.1 Ownership Rights. As between the parties, Damnlist exclusively owns and reserves all right, title and interest in and to the Damnlist Services, Damnlist Properties and Damnlist's Confidential Information. As between the parties, Customer exclusively owns and reserves all right, title and interest in and to the Customer Data, Customer Applications and Customer's Confidential Information.
4.2 Confidentiality. Definition."Confidential Information" means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. "Confidential Information" does not include any information which: (i) is publicly available through no fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of disclosing party's rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information
Use and Disclosure. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party's prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.
4.4 Injunctive Relief. The Parties expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section and that, in the event of an actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section.
Damnlist HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD PARTY EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE. Damnlist'S SERVICES AND PROPERTIES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
6. Exclusion of Damages; Limitation Of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL Damnlist BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF Damnlist HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL Damnlist BE LIABLE TO CUSTOMER FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER DURING THE TWELVE MONTHS PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
THE Damnlist SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. NEITHER Damnlist NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD Damnlist HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE Damnlist SERVICES TO CONTACT EMERGENCY SERVICES.
THE Damnlist SERVICES ARE NOT INTENDED TO SUPPORT ANY TYPE OF STALKING SERVICES. Damnlist IMPLEMENT RANGE OF TOOLS TO PROTECT PEOPLE FROM STALKING.
7.1 Term. The term of this Agreement will commence on the date this Agreement is accepted by Customer and continue for a period of twelve months. This Agreement will automatically renew for additional one-year terms unless either party provides notice of non-renewal no less than 60 days prior to the end of a renewal term.**
7.2 Termination. Either party may terminate this Agreement for any reason upon 180 days written notice to the other party. Either party may also terminate this Agreement in the event the other party commits any material breach of this Agreement and fails to remedy such breach within 5 days after written notice of such breach. Damnlist may also suspend the Damnlist Services immediately upon notice for cause if: (a) Customer violates (or gives Damnlist reason to believe it has violated) any provision of the Damnlist Acceptable Use Policy; (b) there is an unusual spike or increase in Customer's use of the Damnlist Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Damnlist Services; (c) Damnlist determines, in its sole discretion, that its provision of any of the Damnlist Services is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (d) subject to applicable law, upon Customer's liquidation, commencement of dissolution proceedings, disposal of Customer assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if Customer become the subject of bankruptcy or similar proceeding.**
7.3 Survival. Upon termination or expiration of this Agreement, Customer's payment obligations, the terms of this Section 7.3 and the terms of the following Sections will survive: Section 2.2 (Data Storage), Section 2.3 (Use of Damnlist Services), Section 2.4 (Restrictions), Section 4 (Ownership and Confidentiality), Section 5 (Disclaimer), Section 6 (Exclusion of Damages; Limitation of Liability), Section 8 (Indemnification; Disputes) and Section 9 (General).**
8. Indemnification; Disputes
8.1 Indemnification by Customer. Customer will defend, indemnify and hold Damnlist harmless against any actual or threatened claim, loss, liability, proceeding, third-party discovery demand, governmental investigation or enforcement action arising out of or relating to Customer's activities under this Agreement or Customer's acts or omissions in connection with the provision of the Customer Application, including without limitation, any intellectual property claims relating to the Customer Application and any violation by Customer or its End Users of the terms of Section 2.4 (Restrictions) ("Claim"). Damnlist will cooperate as fully as reasonably required in the defense of any Claim, at Customer's expense. Damnlist reserves the right, at Customer's expense, to retain separate counsel for Damnlist or, if Customer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any matter in which Customer is a named party and that is otherwise subject to indemnification under this Section. Customer will pay all costs, reasonable attorneys' fees and any settlement amounts or damages awarded against Damnlist in connection with any Claim. Customer will also be liable to Damnlist for any costs and attorneys' fees Damnlist incurs to successfully establish or enforce its right to indemnification under this Section.
8.2 Governing Law. Except as provided in Section 8.3, this Agreement will be governed by the laws of Great Britain, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
9.1 Assignment. Customer will not assign or otherwise transfer this Agreement, in whole or in part, without Damnlist's prior written consent. Any attempted assignment, delegation, or transfer in violation hereof will be null and void.
9.2 Amendment. Damnlist may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. Damnlist will notify Customer not less than 10 days prior to the effective date of any such amendment and Customer's continued use of the Damnlist Services following the effective date of any such amendment may be relied upon by Damnlist as Customer's consent to any such amendment. Damnlist's failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of the Agreement.
9.3 For Customers that reside in Germany, the following shall apply for amendments and modifications of this Agreement: Damnlist may amend or modify this Agreement from time to time, in which case the new Agreement will supersede prior versions. Damnlist will notify Customer via e-mail not less than 30 days prior to the effective date of any such amendment or modification and will inform Customer about the intended amendments or modifications. If Customer does not object to the amendment or modification within 30 days from aforementioned notice, such non-objection may be relied upon by Damnlist as Customer's consent to any such amendment. Damnlist will inform the Customer about its right to object and the consequences of non-objection with the aforementioned notice.
9.4 Waiver. Any waiver of any breach or default by either party will not constitute a waiver of any other right or any subsequent breach or default. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.5 Relationship. Each party is an independent contractor in the performance of each and every part of this Agreement. Each party will be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of its activities, or those of its employees or agents, in the performance of this Agreement. Customer does not have the authority to commit Damnlist in any way and will not attempt to do so or imply that it has the right to do so.
9.6 Unenforceability.In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect.
9.7 Notices. Any notice required or permitted to be given hereunder will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, by email with proof of receipt, or by overnight delivery. Damnlist may use Customer's current address, as provided by Customer in connection with billing and payment activities. Damnlist's current address may be found on its website.
9.8 Other Terms. This Agreement supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by Damnlist, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof, except pursuant to an amendment to this Agreement in accordance with 9.2 above. 9.9
Force Majeure. A party is not liable under this Agreement for non-performance caused by events or conditions beyond that party's control (each, a "Force Majeure Event") if the party makes reasonable efforts to perform. Either party may terminate this Agreement on written notice to the other party if the Force Majeure Event continues more than 30 days.
9.10 Government Terms. Damnlist provides the Damnlist Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Damnlist Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Damnlist Services were developed fully at private expense. For Customers who reside in the European Union only:
A. EC Data Protection Agreement. If Customer desires to enter into an EC Data Protection Agreement with Damnlist, Customer may do so by following this link after entering into this Agreement. B.
Customer will ensure that its End User Agreement enables Damnlist to use all Customer Data as necessary to provide the Services.
C. The primary characteristics of the Services, as agreed upon between Customer and Damnlist will remain available to Customers during the Term of this Agreement.
D. For Customers who reside in Germany, the following shall apply in relation to Warranties.
Damnlist warrants that for a period of 12 months from that date on which Customer enters into this Agreement, the Services will materially comply with the specifications as agreed upon between Customer and Damnlist;
Any and all further warranties are excluded.
E. Despite Section 3.4 above, Customers will have a reasonable period from the date of any charge to dispute such charge.
F. The following shall apply in relation to the limitation of liability:
The Parties shall only be fully liable for intent and gross negligence as well as damages caused by injury to life, body or health;
In an event of slight negligence, the Parties shall be liable only for breaches of a material contractual obligation (cardinal duty). A "cardinal duty" in the sense of this provision is an obligation whose fulfillment makes the processing of this Agreement possible in the first place and on the fulfillment of which the other Party may therefore generally rely;
In any of the above mentioned cases, the Parties shall not be liable for any lack of commercial success, lost profits and indirect damages
Liability in accordance with the above clauses shall be limited to the typical, foreseeable damages: and
Except where otherwise stated in this Agreement, the Parties shall not be liable for any loss or damage or any costs, expenses or other claims including without limitation loss of profit, business, revenue, goodwill or anticipated savings, loss of any data or information and/or special or indirect loss or consequential loss or otherwise which arise out of or in connection with this Agreement
G. Damnlist may amend or modify this Agreement from time to time, in which case the new Agreement will supersede prior versions. Damnlist will notify Customer via e-mail not less than 30 days prior to the effective date of any such amendment or modification and will inform Customer about the intended amendments or modifications. If Customer does not object to the amendment or modification within 30 days from aforementioned notice, such non-objection may be relied upon by Damnlist as Customer's consent to any such amendment. Damnlist will inform the Customer about its right to object and the consequences of non-objection with the aforementioned notice.