This Community Customer Terms agreement (this “Agreement”) is entered into by and between Community.com, Inc., a Delaware corporation (“Community”) and the applicable customer person or entity (“Customer”). This Agreement shall govern Customer’s access and use of the Service, and incorporates by reference all addenda and supplemental terms set forth in Section 10 below. Capitalized terms not defined inline shall have the meanings ascribed to such terms in Section 9 below. Customer hereby agrees to be bound by this Agreement as of the first date of Customer’s access or use of the Service or any portion thereof (the “Effective Date”). For existing Community customers on November 24th, 2021, these terms shall go into effect on December 24th, 2021 and replace the Leader Terms.
IF CUSTOMER IS LOCATED IN THE UNITED STATES OR CANADA, EXCEPT WHERE PROHIBITED BY LAW (WHICH MAY INCLUDED THE PROVINCE OF QUEBEC), CUSTOMER AGREES THAT DISPUTES BETWEEN THE PARTIES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND CUSTOMER WAIVES ALL RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. PLEASE CAREFULLY REVIEW SECTION 11.5 BELOW FOR ADDITIONAL DETAILS.
1. Service Rights & Restrictions
1.1 Grant of Rights. Subject to the terms and conditions of this Agreement, Community grants to Customer a revocable, non-exclusive right to access and use the Service as expressly permitted in this Agreement and any applicable Order Form, within the Territory, during the Subscription Term.
1.2 Community Leaders. Community Leaders must be approved by Community in writing (email sufficient) prior to being assigned a Community Number and/or sending any Customer Messages. Proposed Community Leaders may be rejected for platform safety or integrity purposes as determined by Community in its sole discretion. The number of authorized Community Leaders is limited by any restrictions stated in an Order Form. Customer is solely responsible and liable for acts and omissions of its Community Leaders in connection with this Agreement.
1.3 Authorized Users. Customer may permit Authorized Users to access and use the Service on its behalf. Usage is limited by any restrictions stated in an Order Form. Access credentials for the Service may not be shared by Customer except with Community’s prior written approval (email sufficient). Customer is solely responsible and liable for acts and omissions of its Authorized Users in connection with this Agreement.
1.4 Support. Community will use commercially reasonable efforts to make the Service available at all times, and to deliver all Customer Messages, excluding when the Service is unavailable due to (a) required system maintenance; and (b) causes outside of Community’s reasonable control, including without limitation nonperformance of third party wireless carriers, telecommunications networks, and other intermediary messaging platforms. Community will provide Customer with reasonable support services in accordance with Community’s standard practices.
1.5 Beta Features. Community may from time to time make Beta Features available to Customer to try at no additional cost (e.g., without limitation, Shopify integration). Use of any Beta Feature is optional. Beta Features are provided for testing purposes only, and Community does not make any commitment to provide Beta Features in any future versions of the Service. Notwithstanding any provision of this Agreement to the contrary, all Beta Features are provided “AS IS” without representations or warranty of any kind, and use of any Beta Feature is at Customer’s sole risk.
2. Messaging
2.1 Community Numbers. Community will provide each Community Leader with a Community Number for use during the Subscription Term (or during such shorter period of time as Customer may elect).
2.2 Customer Messages and Compliance Obligations. Subject to Section 1.3 above, only Customer, via its Community Leaders and their Authorized Users, will be able to send Customer Messages during the Subscription Term. Customer acknowledges and agrees that it may not have any access to messages received on Community Numbers unless and until the senders are fully registered Community Members. Customer is solely responsible and liable for: (a) publication, distribution, marketing and promotion of its Community Number(s), including without limitation advising in any communication that the Community Number(s) is issued by Community and messages sent to the Community Number are managed by Community; (b) composing and sending all Customer Messages, and all content therein (e.g., without limitation, photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection the Service); (c) deciding (i) when (i.e., within hours permitted by Applicable Laws), and (ii) to whom (e.g., without limitation, in compliance with the Federal Trade Commission (“FTC”) National Do Not Call Registry), Customer Messages are sent; and (d) ensuring all Customer Messages and the content therein do not (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) promote illegal activities, including, without limitation, in a manner that might be illegal or harmful to any person or entity; (d) distribute, share, or facilitate the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; (iv) contain any Restricted Data; or (v) violate or cause Community to violate any Applicable Laws. Without limiting the generality of the foregoing, Customer shall ensure that (if and to the extent required) all Customer Messages comply with applicable federal, provincial/state and municipal rules regarding political or election-related communications and FTC Endorsement Guidelines.
2.3 Custom Registration Terms. Upon written request by Customer or Sponsor, Community may enable customized terms for Customer’s Community Members to accept upon registration (or otherwise via the Service). This may include (a) obtaining Community Members’ consent(s) to collect and export certain data and/or (b) adding other customized or additional language to Community’s standard registration page templates. Community will review any such Customer request and may decline all or a portion of such request if Community, in its sole and absolute discretion, determines such request (or portion thereof) (i) is incompatible with the Service, its features or functionality; (ii) may cause harm to, or create potential liability for, Community, Customer (including its Leaders and Authorized Users), any Community Member or any third party, or (iii) for any other reason (or no reason). For avoidance of doubt, Community’s review and approval (or rejection) of any customized terms does not constitute legal or compliance advice to Customer or any third party. Customer (and/or Sponsor to the extent applicable) will be solely responsible and liable for any customized terms implemented via the Service and any and all claims arising therefrom.
2.4 System Messages. Customer acknowledges that Community may send System Messages on behalf of Community Leaders from their Community Numbers.
2.5 Restrictions. With respect to the Service, Customer will not (and will not permit others to): (a) disassemble, decompile, reverse-engineer (except as expressly authorized by law), copy, translate or make derivative works; (b) sell, resell, license (or sub-license), lease, assign, transfer, pledge, or share any of your rights under this Agreement with/to any other party, or use for the Service any commercial purpose without Community’s prior express written consent; (c) obscure, alter or remove any notice of any copyright, trademark, trade name, service mark, logo, or other intellectual property or proprietary right designation appearing on or contained within the Service; (d) conduct benchmarking, performance tests or other comparative analysis without prior written approval from Community in each instance; or (d) transmit or permit to be transmitted any Restricted Data or other content or data in violation of Applicable Laws, that infringes any intellectual property rights, or that otherwise violates this Agreement or the AUP (as defined in Section 10.1 below).
2.6 Account Suspension. Community may suspend or limit the use of the Service by Community Leaders as Community deems appropriate to prevent, investigate or otherwise address (a) any suspected misuse of the Service or violation of this Agreement, (b) any material risk to the security or performance of the Service or to Community or any other Community customer or business partner, or (c) any potential harm to any Community Member or to Community’s reputation or business. Community will promptly notify Customer of any suspension or limitation and will limit any suspension or limitation in time and scope as reasonably feasible under the circumstances.
2.7 Grant of Rights. Customer grants Community the non-exclusive right to reproduce, distribute, display, publish, and otherwise use Customer Messages and messages sent to Customer’s Community Numbers for the purpose of operating, providing and improving the Service. Customer acknowledges that: (i) Community Members may share Customer Messages publicly and Community Leaders have no expectation of privacy with respect to Customer Messages; and (ii) Community may collect, analyze and use Customer Messages and messages sent to Customer’s Community Numbers, including related information, on an aggregated, de-identified or anonymized basis together with the messages and information of others, including to improve, enhance, further develop and test the Service and Community’s technology, to create and refine algorithms and other machine learning methods and processes, to identify and predict patterns and trends, and to train and refine machine learning or analytical models or engines. Subject to further written agreement between the parties, Community may monetize Customer Messages, e.g. via third-party sales or other commercial integrations. Customer further grants to Community a non-exclusive license to host, copy, process, transmit and disclose all Customer Data as necessary to perform its obligations and exercise its rights hereunder.
3. IP Rights, Data and Privacy
3.1 Community IP. Except for the rights expressly granted herein, Community and its licensors retain all right, title and interest, including all intellectual property rights, in and to the Service and Customer’s Community Numbers. Any and all use of Community’s trademarks by Customer will inure to the benefit of Community and Customer will have no trademark rights in Community’s trademarks.
3.2 Customer IP. Except for the rights expressly granted herein, Customer and its licensors retain all right, title and interest, including all intellectual property rights, in and to the content of any Customer Messages. Any and all use of Customer’s trademarks by Community will inure to the benefit of Customer and Community will have no trademark rights in Customer’s trademarks.
3.3 Feedback. Customer, Community Leaders, and Authorized Users may, from time to time, provide Feedback to Community with respect to the Service. Any Feedback is given voluntarily, and Community may use, disclose, reproduce, modify, commercialize, license, distribute and exploit Feedback freely, in its sole discretion, without any restriction or obligation of any kind.
3.4 Privacy. Community’s collection, use, and disclosure of personal information in connection with the Service is described Community’s Privacy Policy (as defined in Section 10.5 below).
4.5 Security. Community shall implement and maintain administrative, physical and technical safeguards designed to protect Community's systems from attacks and any unauthorized intrusions and prevent any unauthorized collection, use or disclosure of or access to personal information, as described in the DPA (as defined in Section 10.6 below).
4. Invoicing & Payment
4.1 General. Customer will pay Community in U.S. dollars all fees specified in an Order Form, in the amounts and at the times specified therein. Payments will be made pursuant to Community’s payment instructions. Charges are exclusive of taxes. Billing shall start as of the date Customer first executes the applicable Order Form. Except as otherwise specified herein or in an Order Form, all fees are due 30 days from the date of Community’s invoice, all payment obligations hereunder are non-cancelable, and all fees paid hereunder are non-refundable. If payment is not received within 30 days following the due date, Community may, without limiting any of its other rights or remedies, suspend Customer’s access to the Service until overdue amounts are paid in full.
4.2 Additional Paid Features. The use of some Service features may require a payment or fee on a per order, per use, subscription, or other basis, including applicable taxes. To the extent such features include Additional Terms (defined below) provided by Community in conflict with this Agreement, such Additional Terms will control. Customer agrees to pay all payments due under this Agreement or any applicable Additional Terms. Unless stated otherwise, you will be charged at the time of purchase. ANY AND ALL PAYMENTS TO COMMUNITY ARE FINAL, NON-CANCELABLE, AND NON-REFUNDABLE. If Customer makes a payment card payment to Community, Customer agrees to provide Community’s third party payment processor with certain information in order to complete the transaction. Customer shall keep all such payment information current. Community may update Customer’s method of payment using information provided by third party payment service providers. Customer authorizes Community to continue to charge the applicable method of payment following any update to Customer’s payment Information.
4.3 Subscription and Free Trials. Community may offer certain Service features for which access and use is purchased or made available on a time-limited basis (each a “Subscription”). The fee for a Subscription will be charged at regular intervals based on the applicable subscription date as shown to Customer on checkout, starting at the time of purchase. THE SUBSCRIPTION WILL RENEW AUTOMATICALLY AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS AND UNTIL CUSTOMER CANCELS. The amount of the Subscription fee may vary according to various factors (e.g., number of Community Members, number of messages sent) as stated on the applicable rate card or otherwise negotiated. Customer’s Subscription may include a free trial period (“Free Trial”). At the start of each such Free Trial, Customer may be charged a nominal fee in order to ensure payment information is accurate. Thereafter, Customer will have access to the specified Service feature without payment for the period specified in the offer (subject to any Additional Terms, which may limit or condition use of the Service feature during the Free Trial). Customer may only cancel a subscription by contacting Community at accountservices@community.com. Unless Customer cancels Free Trial before the end of the Free Trial period, the Free Trial will automatically convert into a paid Subscription and Customer will be charged all applicable fees and taxes for such Subscription.
5. Term & Termination
5.1 Term of Agreement. Unless otherwise provided in an Order Form, this Agreement commences on the Effective Date and continues until all Subscription Terms have expired or been terminated. Except as otherwise herein or in an Order Form, a standard Subscription Term is 12-months and will not automatically renew.
5.2 Termination Rights. Either party may terminate this Agreement (including all related Order Forms) if the other party: (a) fails to cure any material breach of this Agreement within 30 days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within 60 days). Community may terminate this Agreement (including all related Order Forms) immediately upon written notice to Customer for any violation of Sections 2.2, 2.5 or the AUP.
5.3 Effects of Termination.
a) Immediately upon expiration or termination of this Agreement, Customer, Community Leaders and Authorized Users must cease all use of the Service.
b) Community is not obligated to delete copies of Customer Messages retained in Community’s databases or automated archives generated by Community; provided, however, that any retained Customer Messages will remain subject to this Agreement until are destroyed, or until archives no longer include copies of Customer Messages, as applicable. For avoidance of doubt, Community shall have no obligation or liability to Customer for compliance matters after the expiration or termination of the Agreement, e.g. without limitation with respect to opt-out notices received by Community from a Community Member (or an unregistered individual who texts a Community Number).
c) All accrued and unpaid payment obligations and those provisions that by their nature are intended to survive termination or expiration of this Agreement shall so survive.
6. Limited Warranties
6.1 Authority. Each party represents and warrants to the other that: (a) it has the authority and possesses all requisite rights to enter into this Agreement and to perform all of its obligations hereunder; (b) its contracting entity duly, if applicable, is duly organized, validly existing and in good standing under the laws of the state of its organization; (c) its exercise of its rights and performance of its obligations hereunder will at all times comply with Applicable Laws; and (d) the individual executing this Agreement such party’s behalf has the authority to do so.
6.2 By Customer. Customer further represents, warrants, and covenants that: (a) it owns or otherwise has sufficient rights to the Customer Data to grant the rights and licenses set forth herein; (b) the posting and use of Customer Data on or through the Service does not and will not violate this Agreement or any Applicable Laws; (c) Customer will not upload or otherwise throughput via the Service any Restricted Data or other Customer Data containing sensitive or special categories of information as defined in applicable data protection and privacy laws, including without limitation the CCPA and California Privacy Rights Act; (d) the upload, posting or other submission of Customer Data to the Service does not and will not result in a breach of contract between Customer and any third party; (e) Customer will not knowingly collect personally identifiable information from children under thirteen (13) when using the Service; and (f) when using the Service, Customer will, and will cause Community Leaders and Authorized Users to: (i) comply and maintain appropriate records to demonstrate its compliance with this Agreement and Applicable Laws; (ii) ensure the content of all Customer Messages comply with this Agreement and Applicable Laws; (iii) with respect to Customer Data, send Customer Messages only to Community Members from whom Customer has obtained all necessary and legally required consent to do so in accordance with its obligations under Applicable Laws; (iv) promptly notify Community of all requests made by Community Members (or unregistered individuals who text a Community Number) to stop receiving Customer or System Messages from Community on behalf of Customer; and (v) verify any previously collected list of Community Members (or unregistered individuals who text a Community Number) has been collected such that any Customer Messages and System Messages can be sent to these recipients in accordance with Applicable Laws. Customer’s responsibilities as set forth in this Section 6.2 and this Agreement will remain the sole responsibility and liability of Customer notwithstanding that Community may offer templates, advice, guidance or suggestions relating to any of the matters that are Customer’s responsibility and notwithstanding that Community may be engaged to provide services related to such responsibilities of Customer.
6.3 No Implied Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS-AVAILABLE” BASIS. ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, ARE HEREBY EXPRESSLY DISCLAIMED BY COMMUNITY TO THE MAXIMUM EXTENT PERMITTED BY LAW. COMMUNITY DOES NOT WARRANT THAT THE SERVICE, OR ACCESS THERETO, WILL BE ERROR-FREE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, CURRENT OR UNINTERRUPTED OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. ACCESS TO AND USE OF THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF TELECOMMUNICATIONS NETWORKS, THE INTERNET, ELECTRONIC COMMUNICATIONS AND THIRD PARTY MATERIALS. COMMUNITY IS NOT RESPONSIBLE OR LIABLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE OR LOSS RESULTING FROM SUCH PROBLEMS.
7. Indemnification
7.1 Community Obligations. Community will defend or, at its option, settle any claim brought against Customer by an unaffiliated third party to the extent such claim alleges that the Service infringes or misappropriates any intellectual property right of any third party, and will pay the amount of any resulting adverse final judgment or approved settlement. In the event of a claim under the foregoing, Community may, in its sole discretion: (a) secure the right for Customer to continue using the Service; (b) replace the infringing portion of the Service; or (c) terminate this Agreement and refund to Customer on a pro rata basis the unused portion of any pre-paid fees. Notwithstanding the foregoing, Community shall have no obligation hereunder with respect to any claim attributable to (i) Customer’s use or combination of the Service with any other software or hardware not supported by Community; (ii) any modification of the Service by Customer; (iii) Customer’s use of any version of the Service other than the current version; or (iv) Customer’s breach of this Agreement, failure to use the Service in accordance with any documentation made available by Community, or Customer’s gross negligence or willful misconduct. This Section 7.1 states Community’s sole obligation, and Customer’s sole and exclusive remedy, in the event of any claim.
7.2 Customer Obligations. Customer will indemnify, defend and hold Community, including its respective directors, officers, employees, agents, successors, and assigns (“Community Indemnitee(s)”) harmless from and against any losses, damages, liabilities, debts, and expenses, including reasonable attorneys’ and experts’ fees that may be incurred by a Community Indemnitee in relation to any claim, demand, suit, inquiry, or cause of action relating to or arising from any (a) alleged use of the Service by Customer resulting in any alleged violation of this Agreement or Applicable Laws; (b) alleged breach of Customer’s representations, warranties, covenants or obligations in this Agreement; (c) Customer Data uploaded, transmitted or otherwise provided to the Service and Community’s use, transmission, access, disclosure, or other processing thereof; or (d) allegation that Customer used the Service, or otherwise caused Community, to send or receive Customer or System Messages in violation of any Applicable Laws.
7.3 Process. The applicable Indemnitee must provide the indemnifying party with (a) prompt written notice of the claim (failure to provide prompt notice does not affect the indemnifying party’s obligations except to the extent that the indemnifying party is actually prejudiced by the failure); (b) control over the defense and settlement of the claim, though the indemnifying party may not enter into any settlements on the applicable Indemnitee’s behalf that require the applicable Indemnitee to admit liability or pay money without the applicable Indemnitee’s written consent, such consent to settlements not to be unreasonably withheld; and (c) proper and full information and assistance to settle and/or defend the claim. Notwithstanding the foregoing, the applicable Indemnitee has the right to employ separate counsel and participate in the defense at its sole expense.
8. Limitation of Liability
8.1 No Indirect Damages. In no event will Community (including its directors, officers, employees, representatives, agents and suppliers) have any liability arising out of or related to this Agreement for any lost profits, revenue, goodwill, or indirect, special, cover, punitive, incidental or consequential damages, whether an action is in contract or tort and regardless of the theory of liability, even if Community has been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by applicable law.
8.2 Limit on Damages. Under no circumstances will Community’s (including its directors, officers, employees, representatives, agents and suppliers) aggregate, cumulative liability under this Agreement, whether in contract, tort or under any other theory of liability, exceed (a) the fees paid or payable by Customer to Community during the twelve-month period prior to the event(s) giving rise to the liability, or (b) $50,000, whichever is greater.
8.3 Acknowledgement. Customer acknowledges and agrees that all warranty disclaimers, limitations of remedies, exclusions of damages and limitations of liability in this Agreement are a material bargained-for basis of this Agreement and have been taken into account and relied upon by Community in offering the Service for use by Customer
9. Definitions
9.1 “Applicable Laws” means all applicable federal, provincial, state, and local laws, regulations, and rules that may govern Customer Messages, including, without limitation, the California Consumer Protection Act, California’s Invasion of Privacy Act, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2013, the Personal Information Protection and Electronic Documents Act, provincial privacy legislation, Canada’s Anti-Spam Legislation (“CASL”), and all laws in other jurisdictions similar to those identified above; and all applicable industry guidelines and best practices. For clarity, this also includes any telecommunication carrier rules on message content and restrictions to prevent spam-like behavior.
9.2 “Authorized Users” means individuals granted permission by a Community Leader to use the Service under Section 1.3 above.
9.3 “Beta Feature” means a new, experimental or temporary Service feature or functionality.
9.4 “Community Leader” means an individual or entity assigned a Community Number by Customer for use under its account. For clarity, Customer itself may be a Community Leader.
9.5 “Community Members” means the individuals who (i) have signed up to message with a Community Leader via the Service after texting its Community Number, and (ii) have not opted out.
9.6 “Customer Data” means all data, information and other materials uploaded, transmitted or otherwise provided to or through the Service by Licensee or its Authorized Users, but expressly excluding any Feedback.
9.7 “Community Number” means a unique telephone phone number or other communication account identifier issued by Community that is provisioned for use with the Service.
9.8 “Customer Messages” means all messages sent from Customer’s Community Numbers, other than System Messages.
9.9 “Effective Date” means the specified date on Customer’s initial Order Form.
9.10 “Feedback” means suggestions, comments, corrections, ideas, enhancement or feature requests or other information.
9.11 “Order Form” means an order form for the Service that has been signed by the parties.
9.12 “Restricted Data” means (i) protected health information regulated by the Health Insurance Portability and Accountability Act (HIPAA) or medical information governed by state healthcare privacy laws; (ii) Social Security numbers, driver’s license numbers or other government-issued identification numbers; (iii) financial information, banking account numbers or passwords, or information regulated by the Gramm-Leach-Bliley Act; (iv) payment card data regulated by the Payment Card Industry Data Security Standards; (v) biometric data regulated by biometric privacy laws; (vi) online account passwords, mother’s maiden name or date of birth, (vii) criminal history, (viii) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation or other information that constitutes “special categories of data” regulated by the GDPR (except as expressly permitted by the AUP rules regarding Prohibited Member Info); or (ix) Personal Information of children under 13 years of age regulated by COPPA or under the age requiring parental consent for purposes of applicable privacy laws.
9.13 “Service” means Community’s messaging platform (including its iOS and web applications), any related documentation, and any updates and enhancements made to the foregoing by or for Community.
9.14 "Sponsor" means, if applicable, a third party that has a relationship with Customer and Community, and such third party elects, in a written agreement with Community, to assume payment for Customer’s account, in whole or in part. This may include but is not limited to such third party's affiliates, even if such affiliate does not assume payment for Customer’s account.
9.15 “System Messages” means: (i) the reply message sent to each person the first time they message a Community Number; (ii) the confirmation message sent to each new Community Member upon signing up to receive Customer Messages; (iii) the reminder message sent the next day to each person who sent a message to a Community Number if they have not yet signed up to receive Customer Messages (if enabled in the Community Leader’s account settings); (iv) the reply message sent in response to any “HELP” or “STOP” message; and (v) similar messages that Community determines are necessary or appropriate for compliance with applicable laws, rules, regulations, or to administer, manage, or otherwise enable the functionality of the Service. For clarity, any System Message which is modified at Customer’s request shall be deemed a Customer Message, even if Customer’s proposed modifications were reviewed and approved by Community.
9.16 “Territory” means the United States, Canada, and any other country or territory as may be designated by Community in its sole discretion. Nothing in this Agreement (including in any addenda or supplemental terms) signifies that Community offers or plans to offer the Service in any particular country or territory, even when such country/territory or its laws are explicitly named or otherwise referenced.
9.17 “Third Party Materials” means any and all third party owned or operated hardware, software or other materials used in connection with the Service, including without limitation modems, leased circuits, processors, servers and other communications hardware and software (e.g., “firmware,” “freeware,” “open source” or otherwise).
10. Incorporated Addenda and Supplemental Terms
The following addenda and supplemental terms are hereby incorporated into the Agreement (each as may be updated from time to time by Community) and shall apply to Customer, its Community Leaders and their respective Authorized Users:
- AUP. Customer’s access and use of the Service shall at all times comply with Community’s Acceptable Use Policy (“AUP”) located at: https://community.com/legal/aup. Any account, content, or message that violates the Acceptable Use Policy, as interpreted by Community, may be removed, blocked, or otherwise restricted.
- EAA. Any and all exports of data or information from the Service by Customer, if applicable, shall be subject to Community’s standard Export Authorization Agreement (“EAA”) located at: https://community.com/legal/export-authorization-addendum. Community further reserves the right to decline any data export Community deems inconsistent with the AUP.
- Data Import Addendum. Any and all imports of Customer Data or other provision of information into the Service by Customer, if applicable, shall be subject to Community’s standard “Data Import Addendum” located at: https://community.com/legal/import-addendum. Without limiting the foregoing, Customer agrees to provide personal data to Community, if applicable, only via processes and procedures designated by Community in writing.
- Shopify Beta Addendum. Customer’s use of Community’s Shopify integration (a Beta Feature), if applicable, shall be subject to Community’s “Shopify Beta Addendum” located at https://community.com/legal/shopify-addendum.
- Privacy Policy. Community’s collection, use, and disclosure of personal information in connection with the Service is described in Community’s “Privacy Policy” located at https://community.com/privacy-policy.
- DPA. Community’s processing of data in connection with the Service (including by its subprocessors) and Community’s information security policies, processes and administrative and technical controls are described in Community’s Data Processing Addendum (“DPA”) located at https://community.com/legal/data-protection-addendum.
- Third Party Terms and Disclosures. Customer’s use of certain Service features and functionality are subject to Third Party Terms and Disclosures located at https://community.com/legal/third-party-disclosures.
- Additional Terms. Community may from time to time incorporate herein additional policies, terms, or other addenda (“Additional Terms”) to enable new Service features and functionality (including Beta features). Use of any such features or functionality are expressly conditioned on Customer’s acceptance of any applicable Additional Terms. Notice of Additional Terms and subsequent use of the corresponding features/functionality by Customer shall constitute acceptance.
11. Miscellaneous
11.1 Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party; provided, that Community may assign this Agreement without consent: (a) to an affiliate; (b) to an acquirer or the surviving entity in connection with any merger, consolidation, or sale of all or substantially all of its stock or assets; or (c) in connection with any transaction or series of transactions resulting in a change of control of Community. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, this Agreement will be binding on each party and its respective successors and permitted assigns.
11.2 Confidentiality. Each party shall keep confidential and not disclose the terms of this Agreement except as follows: (a) to its attorneys, directors and representatives on a “need-to-know” basis (but in all cases only to the extent such party is subject to restrictions relating to use of data at least as restrictive as those applicable to the party pursuant to this Agreement); (b) to enforce its rights hereunder; or (c) as required by applicable laws, rules, regulations and orders of any governmental authority or a court order upon advance written notice provided as soon as reasonably practicable to the other party (if such notice is permitted).
11.3 Force Majeure. No failure, delay or default in performance of any obligation of a party (other than a payment obligation) shall constitute an event of default or breach of this Agreement to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; epidemic, pandemic or quarantine; earthquake, tornado or other natural disaster; failure or diminishment of power or telecommunications or data networks or services; distributed denial of service (DDoS) or other cyberattacks; or refusal of a license by a government agency. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
11.4 Entire Agreement. This Agreement sets forth the entire agreement between the parties concerning the subject matter hereof and supersedes all prior written or oral commitments, arrangements, or understandings with respect thereto. In the event of a conflict between this Agreement and any applicable click-through terms agreed to by Customer, a Community Leader, or an Authorized User, this Agreement will control.
11.5 Arbitration. All disputes arising out of or related to this Agreement or any aspect of the relationship between Community and Customer (including any communications between the parties), whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. Customer acknowledges and agrees that it is waiving its right to trial by a jury. Such disputes include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. All such matters will be decided by an arbitrator and not by a court or judge. Customer agrees that any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted and Customer is agreeing to give up the ability to participate in a class action. The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by Community or the Customer that an in-person hearing is appropriate. Any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel and other relevant circumstances. If the parties are unable to agree on a location, the AAA or the arbitrator will determine the location. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Customer may opt out of this arbitration provision by emailing Community at accountservices@community.com with Customer first name, last name, phone number, and address within 30 days of accepting this Agreement, with a statement that Customer declines this arbitration provision. Notwithstanding any of the foregoing, nothing in these Terms will prevent a party from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against either party.
11.6 Notices. All notices must be in writing and sent: (a) if to Customer, to the email address set forth in the initial Order Form; and (b) if to Community, to 1507 7th Street, #536, Santa Monica, CA 90401, Attn: General Counsel. Notice will be treated as given on receipt, as confirmed by written or electronic means. Either party may update its address as described in this paragraph. Customer service inquiries may be made via email at accountservices@community.com.
11.7 Other. No amendment or modification to this Agreement will be valid or binding unless made in writing and signed by both parties. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement. Each party will bear its own costs and expenses unless otherwise expressly provided for in this Agreement. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together constitute one agreement. Signatures delivered via electronic delivery (e.g., DocuSign) will be deemed to bind each party as if they were original signatures. If any provision of this Agreement is found to be unenforceable, invalid or otherwise contrary to law, it and any related provisions are to be interpreted to best accomplish the unenforceable provision’s essential purpose, and all other provisions in this Agreement will continue in full force and effect. There are no third-party beneficiaries to this Agreement. A party’s failure to enforce any provision of this Agreement will not constitute a waiver.
11.8 Publicity. Community may identify/include Customer and/or its Community Leaders (including their respective social media posts featuring their use of the Service) on Community’s websites/applications and in any presentations, marketing materials, customer lists, directories, case studies and other marketing-related activities.
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