Why is this important? The Salsa Platform Terms of Service are important because they govern your use of the Salsa Platform and your use of the Salsa Platform is conditioned on your acceptance of these terms. By accepting these terms, you will create a binding legal agreement between you and Salsa Labs, Inc. that imposes rights and responsibilities on you. Please read the terms carefully.
1.1 Who We Are. We are Salsa Labs, Inc. (“Salsa Labs”, “us”, or “we”), a Delaware corporation headquartered at 7200 Wisconsin Avenue, Suite 200, Bethesda, MD. 20814.
1.2 What We Do. We developed and provide a service called “Salsa,” which is delivered as hosted software-as-a-service platform we refer to as the “Salsa Platform” or simply as “Salsa.”
1.3. Who You Are. You are (1) an individual at least eighteen years of age who is creating an account with us to access or otherwise use the Salsa Platform pursuant to an Order Form (as that term is later defined in Section 13) (“Salsa account”); (2) an individual at least eighteen years of age representing a company, organization, or other entity that is authorized to accept this Agreement on behalf of that entity; or (3) a User (as that term is defined in Section 7) who is using the Salsa Platform through someone else’s Salsa account, but who has not executed an Order Form that describes the User’s applicable access or use of the Salsa Platform.
1.4. What This Agreement Is. The Salsa Platform Terms of Service (“this Agreement”) is a non-negotiable legal agreement between you and Salsa Labs that governs your use of the Salsa Platform and imposes legal rights and responsibilities related to any Order Form(s) that you may have executed with Salsa Labs, as well as your use of the Salsa Platform.
2.1. Acceptance Required. You are required to accept this Agreement in order to use or continue to use the Salsa Platform. This Agreement is also incorporated by reference into any Order Forms that you may have accepted, signed, electronically accepted, or otherwise executed with Salsa Labs; you must accept this Agreement even if you have already executed an Order Form.
2.2 How You Can Accept this Agreement. You accept this Agreement by (1) executing an Order Form (which expressly incorporates this Agreement); (2) clicking to accept these terms; or (3) by continuing to use the Salsa Platform after receiving notice of this Agreement, including by, but not limited to, using the Salsa Platform through your username and password or by interacting with the Salsa Platform using an API key.
2.3 What It Means When You Accept. By accepting this Agreement, you are agreeing that the services you have ordered from Salsa Labs or otherwise use through the Salsa Platform, including by way of a Node sub-account or a third-party application or other software, are subject to this Agreement. Your acceptance also creates a contractual relationship between you and Salsa Labs that makes the terms of this Agreement binding on you.
2.4 How You Can Reject this Agreement. You reject this Agreement by clicking to reject these terms or otherwise not accepting these terms in writing (or orally) when prompted.
2.5 What It Means When You Reject. By rejecting this Agreement, you are agreeing to stop accessing, interfacing with, or otherwise using the Salsa Platform, including by way of email, web browser, or API, and to stop receiving services that you may have received prior to rejecting this Agreement. Your rejection of this Agreement also voids all Order Forms that you have previously or concurrently executed with Salsa Labs.
3.3 Salsa Sync for Salesforce End User License Agreement. We have developed and provide a service called “Salsa Sync for Salesforce” that synchronizes data between the Salsa Platform and the Salesforce.com, Inc. (“Salesforce”) platform. In addition to the terms and conditions provided in this Agreement, your use of Salsa Sync for Salesforce, as well as the services that you receive through Salsa Sync for SalesforceSync for Salesforce End User License Agreement (http://www.salsalabs.com/salsa-sync-salesforce-end-user-license-agreement), which may be amended from time to time in Salsa Labs’ sole and complete discretion.
3.6 Agreement Changes. Salsa Labs reserves the right to make changes to the terms and conditions of this Agreement as needed. If we do make a change, you will be prompted to accept or reject the revised agreement in order to continue your use of the Salsa Platform.
4.1 Effective Date. This Agreement becomes effective as soon as you accept this Agreement or continue to access, interact with, or otherwise use the Salsa Platform after receiving notice of this Agreement (“ Effective Date”). In all cases, your continued use is subject to this Agreement’s terms. The Effective Date of this Agreement is different than the Service Period, which is governed by the applicable Order Form(s).
4.2 Term. This Agreement shall continue for the period specified on your Order Form until cancelled, terminated, or otherwise ended pursuant to this Agreement, and if no period was specified in your Order Form, this Agreement shall continue on a month-to-month basis until cancelled, terminated, or otherwise ended pursuant to this Agreement (“Initial Term”). However, certain provisions of this Agreement shall continue even after this Agreement ends.
4.2.1 Continuing Past Initial Term. Upon the expiration of the Initial Term provided in your Order Form (or imputed to be month-to-month if no period was specified in your Order Form), this Agreement shall continue for successive periods (“Successive Terms”) equal to the Initial Term provided in the Order Form until cancelled, terminated, or otherwise ended pursuant to this Agreement.
4.3 Cancellation. See Your Order Form for applicable cancellation policies.
5.1 Services Offered. The complete list and descriptions for all services offered by Salsa Labs is posted on Salsa Labs’ website (https://www.salsalabs.com). Refer to your Order Form for the applicable Salsa Labs services made available to you under the terms of this Agreement.
5.2 Modification of Services. Salsa Labs reserves the right to modify its services from time to time upon thirty (30) calendar days’ notice to you (“Notice of Service Change Period”). Your continued use of the Salsa Platform after the Notice of Service Change Period constitutes your acceptance of the modification. If you cancel your Salsa account and stop accessing, interacting with, and otherwise using the Salsa Platform within the Notice of Service Change Period, this Agreement will terminate and you will not be considered in violation of this Agreement (on the basis of your cancellation); you will, however, remain liable for accrued fees as provided in Section 4.
5.3 Branding. Salsa Labs has the right to insert a brand at the bottom of each e-mail, webpage, or other communication or medium stored, generated, or transmitted by or through the Salsa Platform. A brand may include, but is not limited to, an image with a hyperlink to a Salsa Labs webpage, a tagline or other short statement indicating that Salsa Labs provides the services that distributed a given communication (e.g., “Empowered by Salsa Labs”), or a Salsa Labs logo.
6.1 Illegal or Tortious Conduct or Content. The Salsa Platform may only be used for lawful purposes. You therefore cannot post, transmit, promote, distribute, store, or otherwise use the Salsa Platform or content on or through the Salsa Platform that could subject you or Salsa Labs to any liability, including civil, administrative, or criminal liability. Likewise, you may not use the Salsa Platform in any way that would violate any applicable law or regulation, including laws that govern the distribution of e-mail.
6.1.1 Examples. Examples of conduct or content that violate this provision include, but are not limited to, planning, advertising, or promoting any illegal activity; using false statements to obtain, or attempt to obtain, account information or other private information from other persons, including other Salsa Platform users; and posting content that defames, abuses, or threatens harm to another person.
6.2 Objectionable Conduct or Content. You cannot transmit, store, or facilitate the distribution of content using the Salsa Platform that is objectionable to a reasonable person or would otherwise be contrary to commonly accepted community standards. The determination of whether your conduct or content is objectionable or otherwise contrary to commonly accepted community standards shall be made by Salsa Labs, in its sole and absolute discretion, or by any appropriate court or administrative agency with the authority to make such determinations.
6.2.1 Examples. Examples of conduct or content that violate this provision include, but are not limited to, posting content that is pornographic, lewd, vulgar, or otherwise obscene; posting content that is racially or ethnically offensive; and harassing, abusing, threatening, or stalking any other person, whether or not such conduct constitutes a crime or is subject to civil liability.
6.3 Infringement of the Intellectual Property of Others. You cannot use information, materials, or other content that are protected by copyright, trademark, trade secret, non-disclosure or confidentiality agreements, or other intellectual property protections without the express written consent of the owner.
6.4 Spam. You may send bulk e-mail and faxes, but YOU MAY NOT SEND UNSOLICITED COMMUNICATIONS (“SPAM”) TO ANY RECIPIENT THAT HAS NOT AFFIRMATIVELY OPTED-IN TO RECEIVING SUCH COMMUNICATIONS FROM YOU. In addition to the requirements and limitations provided by this Agreement, you must also comply with all applicable laws and regulations governing the transmission of e-mail, which expressly includes the CAN-SPAM Act of 2003.
6.4.1 Audit Trail. You must maintain an audit trail for how you obtained each e-mail address that you or your Users entered into the Salsa Platform and how each e-mail addressee affirmatively opted-in to receiving e-mail from you (“Audit Information”). You must provide all Audit Information requested by Salsa Labs within ten (10) calendar days from the date of Salsa Labs’ request notification.
6.4.2 Unsubscribe Link. You must include a link in each e-mail sent through the Salsa Platform that provides an automatic and functional method for a recipient to unsubscribe from your List.
6.4.3 Examples. Examples of conduct or content that violate this provision include, but are not limited to, purchasing or otherwise obtaining lists of e-mail address that contain recipients that have not affirmatively opted-in to receiving communications from you; adding recipients to your List that you merely believe may want to receive communications from you; adding recipients from public voter files without first having each individual recipient opt-in to your List via a communication sent from another e-mail service; and adding recipients from email lists that you have purchased or otherwise obtained without first having each individual recipient opt-in to your List via a communication sent from another e-mail service.
6.5 Violation of System or Network Integrity. You cannot use the Salsa Platform or any other service, software, or hardware in a way that compromises the security of the Salsa Platform or unreasonably disrupts the normal use or operation of the Salsa Platform.
6.5.1 Protection of Access to the Salsa Platform. You must protect all usernames, passwords, and all other login or access information usable to access any part of the Salsa Platform (“Access Credentials”) using at least the degree of diligence and care that a reasonably prudent business would use to protect access to its own confidential information or mission-critical resources.
6.5.2 Non-disclosure of Access Credentials. You may not disclose Access Credentials to any third-party without Salsa Labs’ express written consent and you cannot allow any person other than your employees or other authorized agents to view or access areas of the Salsa Platform protected by any Access Credentials. You must immediately notify Salsa Labs if you believe that any of your Access Credentials may have been compromised or that the Salsa Platform has become otherwise available to unauthorized third parties.
6.5.3 Access Limited to You and Your Organization. You are not permitted to allow access to the Salsa Platform to any individual or entity outside of the organization associated with your Salsa account or related organizations managed through any Nodes established under your Salsa account unless Salsa Labs first agrees in writing to the specific access.
6.5.4 Examples. Examples of conduct or content that violate this provision include, but are not limited to, sending spam unless done in compliance with Section 6.4 above; substantially interfering with the operation of the Salsa Platform through the improper use of network or database access, commands, or queries; substantially interfering with the service of any Internet user, Salsa Platform user, host, or network by intentionally, recklessly, or negligently overloading a system or network through a technique such as mailbombing, flooding, or any broadcast or “denial of service” attack; uploading or transmitting viruses, malware, or other harmful software using the Salsa Platform; accessing or using data, systems, or networks, including attempts to probe, scan, or test the vulnerability of a system or network, without the express authorization of the owner of that data, system, or network; breaching the security or authentication measures of any system or network without the express authorization of the owner of that system or network; monitoring data or traffic on any system or network without the express authorization of the owner of that system or network; providing false information to Salsa Labs or other Salsa Platform users in connection with your use of the Salsa Platform; and using software that allows you to remain logged in to the Salsa Platform even while you are not actively using the Salsa Platform.
6.6 PCI Compliance. You and all third-party vendors or products that you use to process payment card transactions, including donation and/or contribution transactions, must comply with the PCI DSS and accept the limitations that compliance with the PCI imposes on the operation of the Salsa Platform, donation and contribution processing, and the data that are available to you related to such transactions.
7.1 Access Must Comply With This Agreement. You may only give or otherwise facilitate access to the Salsa Platform as provided in this Agreement, including as provided in the Acceptable Use Policy described in Section 6 above.
7.2 Terms Apply to All Users. The terms of this Agreement apply to you and each of your Users, except that the Payment Terms described in Section 8 do not apply to Users unless otherwise provided in this Agreement or an applicable Order Form. In all cases, you are responsible for the use of the Salsa Platform by your Users.
7.3 Use Indicates Authorization. Salsa Labs will consider anyone using your Salsa account, using the services provided to you through the Salsa Platform, or otherwise interfacing with the Salsa Platform through or on behalf of your Salsa account to be your authorized Users. We are not required to verify any User’s authorization beyond authenticating their Access Credentials.
7.4 Authorized Support Users. Only those Users designated in, or otherwise provided for by, an applicable Order Form may contact Salsa Labs for customer support.
7.5 Access Limited to You and Your Organization. You are not permitted to allow any individual or entity outside of your organization, or related organizations managed through any Nodes established under the applicable Salsa account, unless Salsa Labs first agrees to the specific access in writing.
8.1 Startup Fee. The Startup Fee is based on your selected Service Level and is due as provided in the applicable Order Form. We are not obligated to perform under this Agreement unless and until that fee is paid in full. The execution of new or revised Order Forms may provide additional Startup Fees, each payable before Salsa Labs will perform the corresponding new or revised service.
8.2 Monthly Service Fee. The Monthly Service Fee is calculated based on your Service Level and is due on the first day of the Billing Period. If your Billing Period is for a period of two or more months, all Monthly Service Fees for that Billing Period are due on the first day of the Billing Period. However, if the number of your Supporters or Users exceeds the number of Supporters or Users associated with your current Service Level at any time during a given Billing Period, you may be charged an additional fee corresponding to a higher Service Level based on the higher number of Supporters or Users associated with your Salsa account during that Billing Period.
8.3 Additional Service Fee. You must pay all fees and costs associated with any Additional Services, costs incurred by us on your behalf or on account of your or your Users use of the Salsa Platform, or other charges to you that accrue within a given Billing Period but are not covered by the Monthly Service Fee (“Additional Service Fee”). Additional Service Fees are due on the first day of the Billing Period immediately following the Billing Period in which the given Additional Service Fee accrues.
8.4 Late Fees. If you fail to pay your Startup Fee, Monthly Service Fee, or Additional Service Fee within ten (10) calendar days of the date provided in or through Agreement, Salsa Labs may impose a late fee in the amount of five percent (5%) of the given fee that is late per month or partial month that the given fee remains unpaid past its original applicable due date, beginning on the tenth calendar day following the original applicable due date.
9.1 Confidentiality. You warrant that you will use at least the degree of diligence and care to protect Salsa Labs’ Confidential Information obtained pursuant to or as a result of this Agreement that a reasonably prudent business would use to protect its own Confidential Information of the same type. Notwithstanding the foregoing, you must at all times comply with applicable state and federal laws and regulations governing the protection of information such as Confidential Information.
9.1.1 No Unauthorized Use or Disclosure. You may not use, disseminate, or disclose Salsa Labs’ Confidential Information to any third-party, for any purpose other than performing the obligations or receiving the benefits as provided by this Agreement unless required by law, permitted by this Agreement, or permitted by Salsa Labs’ express written consent.
9.1.2 Ownership. Salsa Labs’ Confidential Information shall remain the sole property of Salsa Labs regardless of your use or knowledge of its Confidential Information. You have no interest in or right to Salsa Labs’ Confidential Information except as provided in this Agreement.
9.2 Intellectual Property. You warrant that you have and will continue to have sufficient right to (1) use content you upload to or use with the Salsa Platform, and (2) grant any rights and/or licenses necessary for your use of the Salsa Platform. Your warranty specifically applies to your use of the Salsa Platform as well as the use of your Users.
9.3 Uptime Warranty. We take pride in our ability to provide continuous service and access to the Salsa Platform. We therefore warrant that the services we provide to you under this Agreement will be available for at least 99.9% of each month based on 730 service-hours per month.
9.3.1 Downtime Credit. If you experience an unplanned interruption in service (“Downtime”) of more than 0.73 hours during any given month, Salsa Labs will credit your next Monthly Service Fee by (Downtime hours / 730 hours) * (Monthly Service Fee), up to a maximum Downtime credit in any one month period equal to your regular Monthly Service Fee. This credit is your sole and exclusive remedy for Downtime; you may not recover any compensation for Downtime other than through this credit.
9.3.2 Downtime Exclusions. Downtime does not include interruptions in service resulting from circumstances beyond our control, including, but not limited to, Internet or network outages outside of the Salsa Platform, failure of your software or hardware, or any other circumstance that would prevent you, your Users, or third parties from accessing the Salsa Platform or content stored, used, or transmitted by the Salsa Platform that is due to a failure of a service, product or resource not under the control of Salsa Labs. Downtime also does not include suspensions of service and other time related to enforcement actions taken by Salsa Labs pursuant to Section 10.
9.3.3 Credit Procedure. To receive a credit for Downtime, you must (1) document the Downtime in writing, including the approximate date, time, and extent of the Downtime; and (2) receive verification from Salsa Labs that the Downtime occurred and the extent to which it occurred.
9.4 Data Backup. Salsa Labs will backup data you have stored on the Salsa Platform on a regular basis. Although we make reasonable efforts to ensure your data is backed up and available for restoration, we do not guarantee that your data will be backed up or recoverable. It is your responsibility to back up your data, including your List data, to ensure recoverability.
9.5 Export Limitations. You warrant, expressly and by virtue of continuing to use the Salsa Platform, that you will comply with all domestic and international export laws, regulations, and other controls that apply to the distribution, development, users, and use of the Salsa Platform, including the U.S Department of Commerce’s Export Administration Regulations, sanctions programs administered by the U.S. Treasury Department’s Office of Foreign Assets Control, and all other applicable laws, regulations, and protocols that impose restrictions on distribution, destinations, development, users, and end-use related to products and services.
9.6 International Law. You warrant that your use of the Salsa Platform will comply with all applicable data protection, privacy, and technology laws and regulations effective in the countries in which you are sending any form of communication through the Salsa Platform, including e-mail, instant messaging, SMS, MMS, and fax transmissions. It is your responsibility to know what the rules are in the countries in which you operate and to follow them accordingly. Notwithstanding this general requirement, you specifically make the following warranties:
9.6.1 European Economic Area and the United Kingdom. You expressly warrant compliance with the United Kingdom’s Data Protection Act, the Privacy and Electronic Communications Directive, and all related regulations with respect to your Users and Supporters who reside in the EEA or the United Kingdom.
9.6.2 Australia. You expressly warrant compliance with Australia’s Spam Act of 2003, the Telecommunications Act of 1997, the Australian eMarketing Code of Practice, the Internet Industry Spam Code of Practice, and all related regulations with respect to your Users and Supporters who reside in Australia.
9.6.3 Canada. You expressly warrant compliance with Canada’s Fighting Internet and Wireless Spam Act, Personal Information Protection and Electronic Documents Act, and all related regulations with respect to your Users and Supporters who reside in Canada.
9.7 Authorized Agent. If you accept this Agreement on behalf of someone else or an organization, you warrant that you are authorized to bind that person or organization to this Agreement.
10.1 Enforcement by Salsa Labs. We may enforce the terms of this Agreement at our sole, reasonable, and good faith discretion and reserve the right to make the determination with that discretion as to whether your conduct or content violates this Agreement, including whether your conduct or content violates the Acceptable Use Policy. Our decision to enforce or not enforce this Agreement shall not constitute acquiescence as to any your conduct, content, or other use of the Salsa Platform, or the conduct, content, or other use by your Users. We retain the right to enforce this Agreement whether or not we have enforced this Agreement as to a given violation in the past and Salsa Labs’ election of one or more remedies does not require the exclusion of other remedies, whether provided by this Agreement, at law, or in equity.
10.2 Enforcement Actions. We may immediately take any or all of the following actions if we reasonably believe you or your Users have violated or are violating any part of this Agreement, including the Payment Terms or the Acceptable Use Policy:
10.2.1 Suspend Access. Salsa Labs may suspend your access to and operation of the Salsa Platform, except that in the case of a failure to comply with the Payment Terms, Salsa Labs has the option to either
10.2.1.1. Impose late fees pursuant the Payment Terms and continue to provide access to the Salsa Platform; or
10.2.1.2. Suspend your access to and operation of the Salsa Platform, but only if you fail to cure the violation (along with any imposed late fees) within forty-five (45) days from the date the given fee came due.
10.2.2 Remove Content, Terminate Distribution. Salsa Labs may remove any content and terminate the distribution of any communications associated with any violation that violates the Acceptable Use Policy.
10.2.3 Additional Fees. Salsa Labs may impose additional fees on you for any costs, penalties, or liabilities incurred by Salsa Labs as a result of your violation.
10.2.4 Terminate Agreement. Salsa Labs may immediately terminate this Agreement for material breach of this Agreement if:
10.2.4.1. You fail to cure your violation within ten (10) calendar days from your receipt of a Notice of Enforcement described below, except that where the only ground for termination is your failure to comply with the Payment Terms, Salsa Labs may only terminate the Agreement if your account with Salsa Labs becomes forty-five (45) days or more overdue; or
10.2.4.2. You or your Users have repeatedly violated the Acceptable Use Policy.
10.3 Notice of Enforcement. Salsa Labs will provide you with a notification by email or other writing of all enforcements actions taken pursuant to this section within ten (10) calendar days of the applicable action. Salsa Labs may also notify you of violations of this Agreement, including material breaches of this Agreement.
10.4 Fees Upon Termination. In the event that this Agreement is terminated for any reason, you will remain liable for payments for all Startup Fees, Monthly Service Fees, Additional Service Fee, Late Fees, and all other fees and costs that accrued in the Billing Period in which the termination occurred on a pro-rated basis up to the date of termination, as well as all other outstanding fees and costs owed to Salsa Labs that may have accrued in prior Billing Periods.
10.5 Restoration of Content and/or Access to the Salsa Platform. Except as provided below, Salsa Labs may, in its sole and complete discretion, restore content and/or access to the Salsa Platform removed or suspended pursuant to this section, but we are not required to do so.
10.5.1 Good Faith Belief of Non-infringement. In the event that the content and/or access was removed or suspended based on our good-faith belief that your content or conduct improperly infringed on the intellectual property rights of others, Salsa Labs will restore your content and/or access to the Salsa Platform within ten (10) to fourteen (14) business of receiving a written notice from you (as described by section 512(g)(3) of the Digital Millennium Copyright Act (“DMCA”)) stating that you in good faith belief your content or conduct did not and does not improperly infringe on the intellectual property rights of others (“Notice of Non-infringement”), but only if we have not received notice from a Third-party Claimant (as that term is defined below) that the Third-party Claimant has filed a lawsuit to restrain you from using allegedly infringing content or engaging in the allegedly infringing conduct (“Notice of Legal Action”).
10.5.2 Notice to Third-party Claimants. Salsa Labs will provide a copy of your Notice of Non-infringement to any third party that may notify Salsa Labs under section 512(c)(3) of the DMCA that your content or conduct improperly infringes on the intellectual property rights of others (“Third-party Claimant”).
10.6 Force Majeure. If we fail to perform under this Agreement due to a qualifying condition beyond our control, we will not be in breach of contract so long as we took reasonable steps to minimize the non-compliant performance or non-performance and notify you of the condition and our resulting non-compliant performance or non-performance.
10.6.1 Qualifying Condition. Qualifying conditions may include, but are not limited to, acts of God (including fire, flood, earthquake, storm, floods, hurricane, or other natural disaster); war; terrorist activities; governmental restrictions, sanctions, or embargos; strikes, lockouts, or other labor disputes; interruptions in power, Internet, or telephone service; or damage to our facilities, servers, or resources.
10.6.2 No Termination Permitted. Neither you nor Salsa Labs may terminate this Agreement due to the occurrence of one or more of the qualifying conditions described above unless further performance of this Agreement is objectively impossible or commercially impracticable as a result of those conditions. Mere increases (or decreases) in prices or costs, however, are insufficient to warrant termination of this Agreement.
11.1 Arbitration. All controversies, claims, and disputes arising out of or related to this Agreement or any breach thereof shall be submitted to binding arbitration in the Delaware in accordance with the rules of the American Arbitration Association (AAA) and subject to the substantive law of theDelaware where AAA rules do not apply (except as to choice-of-law principles).
11.2 Awards. Awards resulting from the arbitration required under this section may be entered as judgments in any court having jurisdiction.
11.3 Costs. The losing party in the arbitration shall bear the costs of the arbitration unless no losing party is designated, in which case you and Salsa Labs shall bear the costs in equal measures. Costs that are divided in equal measure when no losing party is designated shall not include the costs of attorney fees incurred by you or Salsa Labs, which shall be borne by the party incurring those fees.
12.1 You Indemnify Us. You will indemnify Salsa Labs and any contractors, agents, employees, officers, directors, shareholders, and affiliates that we may use to provide your Service Level for any losses, liabilities, damages, expenses, and costs, including reasonable attorney fees, resulting from any claim or demand by third parties arising out of or related to any negligent or otherwise wrongful act committed by you or on your behalf, including breach of this Agreement and any violation of international laws or regulations related to your use of the Salsa Platform.
12.2 We Indemnify You. Salsa Labs will indemnify you for any losses, damages, or costs, including reasonable attorney fees, resulting from any claim or demand by third parties arising out of our gross negligence or willful misconduct.
12.3 Procedures. The party seeking indemnification shall (1) notify the indemnifying party in writing of any claim or demand from a third party arising out of or related to any negligent or otherwise wrongful performance of this Agreement (“Claim”) as soon as practicable; (2) give the indemnifying party the opportunity and fully authority to defend, settle, or participate in the defense or settlement of a given Claim; (3) provide the indemnifying party all reasonably requested assistance related to the indemnifying party’s defense or settlement of a Claim (at the indemnifying party’s full expense).
12.3.1 Compliance with Procedures Not Requirement for Indemnification. The failure of a party to notify the indemnifying party of a Claim; to give the indemnifying party the opportunity to defend, settle, or participate in a Claim; or to provide the indemnifying party with requested assistance shall not relieve the indemnifying party of the indemnifying party’s indemnification obligations except to the extent that the indemnifying party can demonstrate undue prejudice attributable to such failure.
12.3.2 Settlement Limitation. If the indemnifying party settles a Claim, the indemnifying party shall not settle in a way that imposes any obligation or liability on the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld.
13.1.1 Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SALSA PLATFORM AND ALL SERVICES PERFORMED BY SALSA LABS ARE PROVIDED “AS IS” AND SALSA LABS AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. SALSA LABS, ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS, DOES NOT WARRANT THAT THE SALSA PLATFORM OR ANY OTHER SERVICES PROVIDED BY SALSA LABS WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SALSA PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. THE PARTIES ACKNOWLEDGE AND AGREE THAT SALSA LABS IS NOT OBLIGATED TO OBTAIN ANY REGULATORY APPROVALS THAT MAY BE NECESSARY UNDER THIS AGREEMENT.
13.1.2 Limitations of Liability. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, IN NO EVENT WILL SALSA LABS OR ITS LICENSORS AND SUPPLIERS BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SALSA LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF SALSA LABS TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO SALSA LABS BY YOU UNDER SECTION 8 DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
13.1.3 Essential Basis. You acknowledge and understand that the disclaimers, exclusions and limitations of liability set forth in this Section 13 form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of this Agreement would be substantially different.
14.1.1 Billing Period. The Billing Period is the period specified in a given Order Form for the periodicity of payment related to that Order Form.
14.1.2 Confidential Information. Confidential Information includes any information created, developed, produced, or made known to one party (“the Receiving Party”) by the other party or its agents (“the Disclosing Party”), or otherwise through the Receiving Party’s relationship with the Disclosing Party, that (1) the Disclosing Party designates or otherwise identifies as confidential or proprietary as described below, or (2) is automatically deemed confidential or proprietary because the nature of the information is such that the Receiving Party should reasonably understand that the Disclosing Party desires or would desire to protect the information from unrestricted disclosure or use. Confidential Information includes information created, developed, produced, or made known to the Receiving Party prior to or after the execution of this Agreement, but not information created, developed, produced, or made known after the termination or expiration of this Agreement. Notwithstanding this definition, Confidential Information shall not include information that falls within the definition of Non-confidential Information provided below even if the information would otherwise meet the definition of Confidential Information.
220.127.116.11. Designated Confidential or Proprietary Information. Confidential Information includes any information that the Disclosing Party (1) marks proprietary, confidential, or with some other marking of like import; (2) identifies in writing at the time of transmittal to or receipt by either party as being proprietary or confidential; or (3) if orally or visually disclosed, identifies as proprietary or confidential either at the time of disclosure or in writing within thirty (30) days of such disclosure.
18.104.22.168. Confidential or Proprietary Information by Nature. Certain kinds of information are to be automatically considered Confidential Information even if the information is not marked or otherwise designated as confidential or proprietary, and regardless of how the information was transmitted or otherwise disclosed. Such types of Confidential Information include, but are not limited to, mailing or supporter lists; individual user, member, donor, constituent, or activist information; customer or potential customer information; financial information; business information, including methods, practices, suppliers, plans, and strategies; legal advice; sales and marketing data or plans; trade secrets, information on proprietary software, firmware, hardware, documentation, scientific information, technical information, and economic information, including, but not limited to, patterns, plans, compilations, program devices, formulae, designs, prototypes, methods, techniques, process, procedures, programs, or codes; notes, test results, development, or any other data, methods, or systems developed by the Receiving Party that pertain to or were based on Confidential Information; and any other information that is not generally known to the public but that is created, developed, produced, or made known to the Receiving Party through its relationship with the Disclosing Party.
14.1.3 List. A List is a database of information about your Supporters. List data may include contact information, descriptive attributes (preferences, demographics, custom subscriber fields), transactional data (derived through the use of the Salsa Platform), and any other data about Supporters, but only includes data that are stored and accessible on the Salsa Platform and does not include data that are merely transmitted through the Salsa Platform to third-party recipients like payment processors. List data should not include data protected by the PCI DSS.
14.1.4 Non-confidential Information. Notwithstanding the definition of Confidential Information provided above, information shall not be considered Confidential Information where that information, as formatted, categorized, or organized, was or is (1) in the public domain at the time of disclosure to the Receiving Party or thereafter enters the public domain through no fault of the Receiving Party, its employees, or its authorized agents; (2) rightfully disclosed to the Receiving Party by a third party and not in violation of the proprietary or other rights of any other party; (3) independently developed or owned by the Receiving Party; or (4) software code in either object code or source code form that is or becomes properly licensed to either the Disclosing Party or the Receiving Party pursuant to the GNU General Public License or the GNU Lesser General Public License (LGPL), but only to the extent the given software code is made available under the LGPL and not proprietary, non-licensed, and/or confidential software code that is merely linked to or programmatically inherited using the LGPL-covered software code.
14.1.5 Order Form. The Order Form is a separate contract from this Agreement in which you selected your Service Level (or if you are a User, was otherwise set); accepted that your Order Form contract would be governed by this Agreement and incorporated this Agreement into your Order Form terms and conditions; and indicated your initial List size, first date of service, and Billing Period. Your Service Level may be supplemented by the execution of additional Order Forms.
14.1.6 PCI DSS. The Payment Card Industry Data Security Standard is a standard promulgated by the PCI Security Standards Counsel that provides a set of security requirements for payment card processing. The PCI is currently available, as of the Effective Date, through a link at the following URL: http://www.pcisecuritystandards.org.
14.1.7 Salsa Platform. The Salsa Platform is the system of tools, methods, hardware, software, security, and services that Salsa Labs uses to provide your Service Level, including, but not limited to, Salsa Market, the application program interfaces (“APIs”) that Salsa Labs has developed to allow third-party programs to interact with the Salsa Platform, the storage capacity to hold Lists and other content, and the computer servers and software that publish web pages, deliver e-mail, and otherwise provide services related to this Agreement.
14.1.8 Service Period. The Service Period is the period specified in the applicable Order Form in which Salsa Labs will provide your Service Level. The period is usually described through the Term Start Date, Term End Date, and Initial Service Period listed in the Order Form.
14.1.9 Supporter. Supporters are individuals or entities that subscribe—pursuant to the Acceptable Use Policy—to receive communications, goods, or services from you, or otherwise support you, through the Salsa Platform. Supporters include, but are not limited to, your subscribers, donors, contacts, and other affiliates.
14.2 Notices. All notices to you described in this Agreement will be deemed effective when sent to the email address you provided on your Order Form. Any notice to us will be deemed effected when delivered to the physical address listed on our website (http://www.salsalabs.com) for our corporate office, Attention: Legal Department.
14.3 Entire Agreement. This Agreement constitutes the entire agreement between you and Salsa Labs regarding your use of the Salsa Platform and specifically includes all of the terms incorporated herein as well as all applicable Order Forms. This Agreement supersedes all prior proposals, agreements, and other communications between you and Salsa Labs, both oral and written, to the extent that the prior communications relate to the subject matter of this Agreement. By accepting this Agreement, you affirm that you fully understand this Agreement and believe it is fair and reasonable.
14.4 Survivability. All provisions that by their sense, context, or effect the parties intend to survive the termination of this Agreement shall survive the termination of this Agreement for any reason, including the confidentiality provisions set forth in this Agreement.
14.5 Severability. If a court finds that any provision or provisions of this Agreement are invalid or otherwise unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. A court may reform any provision deemed invalid or unenforceable in order to affect this Agreement’s expressed intentions.
14.6 Governing Law. The laws of the Delaware shall govern this Agreement except as to choice-of-law principles, which shall be governed by this Agreement.
14.7 Legal Representation. Each party has had the opportunity to seek advice from independent legal counsel.
14.8 License to Salsa Labs. You grant to Salsa Labs a non-exclusive, world-wide, royalty-free license to reproduce, distribute, and otherwise use the following in our marketing materials: your name; the name of any organization related to your Salsa account; your trademarks, service marks, and other indicia of ownership; and e-mails, web pages, and other communications stored, generated, or transmitted by the Salsa Platform (collectively, “Licensed Information”). This grant includes reproductions, distributions, and uses of Licensed Information in print and electronic forms, as well as making Licensed Information available on the Internet for viewing or downloading, but does not include the right for Salsa Labs to reproduce, distribute, or otherwise use your Lists except as provided by this Agreement. You retain such ownership interests in Licensed Information, subject to this license, as you would otherwise hold.
14.9 Assignment and Delegation. You may not assign your rights or delegate your duties under this Agreement without our prior written approval. Salsa Labs may assign its rights and delegate its duties under this Agreement to such successors in business, successors in interest, or licensees as Salsa Labs may deem appropriate.
14.10 Third-party Beneficiaries. No company or person shall be a third-party beneficiary to this Agreement.
14.11 Independent Contractor. Salsa Labs is an independent contractor for you. This Agreement does not in any way create a joint venture, nor does it make you and Salsa Labs partners or create a principal-agent relationship between us. Salsa Labs is specifically responsible for the payment of all appropriate taxes and fees arising out of our performance of this Agreement and the receipt of your payments. Salsa Labs shall not represent itself as your agent or act in any other manner inconsistent with its status as an independent contractor for you without your prior written approval.