SPLICE SOFTWARE INCORPORATED - COMMUNICATION STUDIO
SERVICE AGREEMENT
TERMS AND CONDITIONS
The Communication Studio Messaging Service (the "Splice Service"), a call centre service provided by Splice Software Incorporated ("Splice Software") that dispatches pre-recorded voice messages to a contact list (the "Contact List") of subscribing contacts who have previously expressly consented to the receipt of such voice messages (the "Subscribing Contacts"), is subject to the terms and conditions (the "Terms of Use") contained in this service agreement (the "Service Agreement"). Any and all new features, changes, updates or improvements to the current Splice Service shall be subject to these Terms of Use, unless explicitly stated otherwise. If you are registering on behalf of a corporation, you warrant that you have the authority to bind the corporation. You also warrant that you are of legal age to enter into a contract. You confirm that you have entered into a rate plan contract (the "Rate Plan Contract") with Splice Software, which contract is expressly incorporated herein. You similarly confirm that you have read the Splice Software privacy policy that is found on the Splice Software website (the "Privacy Policy") and agree to be bound by the terms thereof, which contract is also expressly incorporated herein. The Rate Plan Contract and Privacy Policy, in conjunction with this Service Agreement, comprise the entire agreement between you and Splice Software relating to the provision of the Splice Service. If any provision of this Service Agreement conflicts with any provision of the Rate Plan Contract or the Privacy Policy, the provision contained in this Service Agreement shall govern and control.
(1) YOUR ACCEPTANCE OF THIS SERVICE AGREEMENT
Please read this Service Agreement carefully before using, or registering for, the Splice Service. This Service Agreement constitutes a valid and binding agreement between you and Splice Software. By using, or registering for, the Splice Service, you agree to be bound by the Terms of Use herein set forth. If you do not wish to be bound by these Terms of Use, you shall not access or use the Splice Service.
(2) MODIFICATION OF TERMS
Splice Software reserves the right to modify and restate the Terms of Use of this Service Agreement, and any modification shall be effective immediately upon being posted on the Splice Software website. Splice Software is not required to provide you with notification that any such modification has been made. You are solely responsible for reviewing these Terms of Use regularly. Your continued use of the Splice Service shall be deemed to be your conclusive acceptance of all modifications to this Service Agreement.
Unless explicitly stated otherwise, any new feature that augments or enhances the current Splice Service shall be subject to this Service Agreement. You understand and agree that the Splice Service is provided on an "as is" basis and that Splice Software assumes no responsibility for the timeliness, deletion or mis-delivery of, or the failure to store, any user communications or personalized information.
(3) PRIVACY POLICY
By using or registering for the Splice Service, you confirm that you have read the Splice Software privacy policy that is found on the Splice Software website (the "Privacy Policy") and that you find same to be acceptable and agree to be bound by the terms thereof. Splice Software does not accept any responsibility for accidental or inadvertent disclosure, unauthorized access or other disclosure as required by law, or as described in the Privacy Policy.
(4) REMOVE PHONE NUMBER
If any of your Subscribing Contacts do not wish to receive messages sent pursuant to the Splice Service, they may notify Splice Software and request the removal of their telephone number from the Contact List. Only those phone numbers which are currently maintained in the Splice Service Opt-Out system shall be removed in this way. Requests for the removal of numbers sent to Splice Software shall, to the best of Splice Software's ability, be forwarded to you. Upon being notified of such a request, you hereby agree to remove these numbers from any future files sent to Splice Software.
(5) REGISTRATION INFORMATION
You agree to provide Splice Software with accurate and complete information when registering for, or using, the Splice Service, and to update and maintain such information as is necessary, on a timely basis. Splice Software has the right to suspend, restrict or terminate your use of the Splice Service, and to refuse any future use of all, or portions, of the Splice Service if Splice Software has reasonable grounds to believe that you have failed to comply with any of these requirements.
(6) ACCOUNT SECURITY
When you register online for a Splice Software user account (a "Splice Account"), you are given a user name and password. You are solely responsible for protecting the confidentiality of your user name and password, and are fully responsible and liable for all activities that occur under your user name and password.
You agree to immediately notify Splice Software of any loss, compromise or unauthorized use of your user name and password, or any other breach of security. Splice Software shall not be liable for any loss or damage of any kind should you fail to comply with these requirements.
(7) CONSENT TO RECORD YOUR VOICE INPUTS
You agree that Splice Software may record the oral communications, utterances, conversations or commands (the "Voice Inputs") made by you during your use of the Splice Service. By using the Splice Service, you expressly grant to Splice Software the right to record and use your Voice Inputs, and consent to the use of such Voice Inputs pursuant to the Terms of Use. If you do not want your Voice Inputs recorded or used, you shall not use the Splice Service.
(8) RESTRICTION AND MODIFICATION OF SERVICE
You agree that Splice Software may limit your use of the Splice Service, including, without limitation, the frequency and duration for which you may access the Splice Service, and that Splice Software has no responsibility or liability for any unavailability, or limitation on use, of the Splice Service. In addition, Splice Software reserves the right, at any time, to limit access to, modify, change or discontinue your Splice Service, or any part thereof, with or without notice to you. You agree that Splice Software shall not be liable to you, or to any third party, for any modification, suspension or discontinuance of the Splice Service. You acknowledge and agree that Splice Software may establish general practices and limits, which may not be published, concerning the use of the Splice Service, including, without limitation, the maximum time that messages shall be retained, the maximum number of messages that may be sent from, or received by, a Splice Account, the length of messages sent and the maximum number of times a particular message shall be sent, and the maximum duration for which you may access the Splice Service, in a given period of time. You agree that Splice Software has no responsibility or liability for the deletion or failure to store any messages or other communications maintained or transmitted pursuant to the Splice Service. You acknowledge that Splice Software reserves the right to terminate any inactive or dormant Splice Accounts. You agree that Splice Software reserves the right to change these general practices and limits at any time, in Splice Software's sole discretion, with or without notice.
(9) YOUR CONDUCT
As a condition of your use of the Splice Service, you agree and warrant to Splice Software that you shall not use the Splice Service for any purpose that is unlawful or prohibited by this Service Agreement. You shall not use the Splice Service in any manner that could damage, impair, disable or overburden the Splice Service, interfere in any way with Splice Software's rights, interfere in any way with any other user of the Splice Service's use and enjoyment of the Splice Service, or otherwise infringe on any person's rights.
Specifically, you agree and warrant to Splice Software that:
(a) You will follow the letter and spirit of the terms of this Service Agreement and all applicable legislation and regulations relating thereto, including, without limitation, the Telecommunications Act (Canada) and the receipt of all applicable express consents thereunder;
(b) You will not use, or attempt to use, the Splice Service in connection with any commercial messages, junk messages, spamming, advertising or messages that are duplicative, unsolicited, or promotional in nature;
(c) You will not send, or attempt to send, messages to emergency lines, to any health care facility or similar establishment, to numbers assigned to radio common carrier services, to numbers outside of Canada, and, unless granted permission from the recipient, to any service for which the called party is charged for the call;
(d) You will not transmit, or attempt to transmit, any material that may infringe the contractual, fiduciary, intellectual property rights, or other rights of third parties, including trademark, copyright or the right of publicity;
(e) You will not impersonate, or attempt to impersonate, any other person, falsify contact information, or caller ID phone number displayed to recipients, misrepresent a relationship with any person or entity, including misrepresenting a relationship with Splice Software, or otherwise attempt to mislead others as to the identity of the sender or the origin of a message;
(f) You will not use, or attempt to use, the Splice Service to convey any information that may be considered unlawful, harassing, libelous, abusive, threatening, slanderous, obscene, hateful, offensive, harmful, vulgar, distasteful, defamatory, or otherwise offensive or objectionable or invasive of another person's privacy or intellectual property or any other proprietary rights, nor will it bring any person, product, business or undertaking into disrepute;
(g) Unless a signed reseller agreement is executed between you and Splice Software, you will not resell, or attempt to resell, the use of the Splice Service;
(h) You will not collect, or attempt to collect, or store information about Splice Software, the Splice Service or other Splice Software users, including contact information, without their express consent;
(i) You will not interfere, or attempt to interfere, with, or disrupt connections to, the Splice Service or violate the regulations, policies or procedures of such connections;
(j)
You will not attempt to gain unauthorized access to the Splice Service or other accounts, computer systems or networks connected to the Splice Service;
(k) You will not unlawfully promote or incite hatred (including any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any applicable law);
(l) You agree and Splice Software retains the right, at its sole discretion, to determine whether or not your conduct is consistent with the letter and spirit of the Service Agreement and Splice Software may terminate this Service Agreement if your conduct is found to be inconsistent with this Service Agreement; and
(m) You agree that the Splice Service shall only be used to communicate with Subscribing Contacts and shall not be used for any solicitation or telemarketing purposes other than those which my Subscribing Contacts shall have requested. Use of the Splice Service for unsolicited telemarketing shall, in Splice Software's sole discretion, result in termination of my Splice Account and this Service Agreement and no fees shall be refunded. Additionally, you shall be liable for any and all penalties and liabilities arising under applicable provincial and federal legislation, including, without limitation, the Telecommunications Act (Canada).
(10) NO SPAM AND CONSENT TO DAMAGES
Splice Software shall immediately terminate any Splice Account that it reasonably believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited messaging activities or is otherwise in breach of Section 9 hereof. Such activities can cause harm to Splice Software (and Splice Software's customer base) in numerous ways including, but not limited to, damaging: the Splice Software brand name, Splice Software's reputation for delivering relevant messages, Splice Software's reputation for privacy, Splice Software's ability to attract and retain customers, and other consumer, customer and business goals, activities, or relationships related to Splice Software.
Due to the fact that these and other damages are often difficult to quantify, if actual damages cannot be reasonably calculated, you agree to pay Splice Software liquidated damages as prescribed by law, but not less than $5.00 for each piece of spam, unsolicited message or message in breach of Section 9, hereof transmitted from or otherwise connected with your phone number or account.
(11) CONFIDENTIALITY
For purposes of this Service Agreement, "Confidential Information" shall mean any and all information not available to the general public, including but not limited to:
(a) any information that Splice Software designates as being confidential or which, under the circumstances surrounding disclosure of such information, ought to be treated as confidential;
(b) any information relating to the business and affairs of Splice Software;
(c) any information relating to ideas, concepts, know-how, techniques, trade secrets, software, hardware, source code, computer systems, computer programs, data, system documentation, designs, manuals, databases, formulae, discoveries, concepts, technology, inventions, drawing and specifications of Splice Software;
(d) any intellectual property of Splice Software;
(e) information concerning products, pricing, sales and marketing policies, techniques and concepts of Splice Software;
(f) lists of present and prospective customers of Splice Software and related information, including names and addresses; and
(g) any other materials or information relating to the property, ideas, concepts, personnel, business operations, financing or activities of Splice Software which are not generally known to the public or others engaged in similar businesses or activities;
and shall not include any information that is, or subsequently becomes, known to the public without a breach by you of any obligations owed to Splice Software under this Service Agreement, or which otherwise became known to you prior to Splice Software's disclosure of such information to you or from a source other than Splice Software, or information that is independently developed by you.
You hereby agree and acknowledge that:
(a) in the course of marketing or other presentations, business negotiations, discussions or transactions with Splice Software, you will have access to, and will be entrusted with, certain Confidential Information concerning Splice Software;
(b) Confidential Information includes, but may not be limited to, Confidential Information as defined herein;
(c) the disclosure of any Confidential Information to competitors of Splice Software, or to the general public, except in accordance with any authorized use, would be highly detrimental to the best interests of Splice Software;
(d) you may only disclose Confidential Information to your directors, officers, employees, agents or consultants on a "need to know" basis, and, prior to disclosing Confidential Information of Splice Software to your directors, officers, employees, agents or consultants, you will ensure that all such directors, officers, employees, agents or consultants shall have executed a confidentiality undertaking reflecting the provisions of this Service Agreement sufficient to ensure you comply with all of the provisions of this Service Agreement;
(e) the right to maintain the confidentiality of such Confidential Information, and the right to preserve its goodwill, constitute proprietary rights which Splice Software is entitled to protect; and
(f) the Confidential Information could be used to the detriment of Splice Software.
You covenant and agree with Splice Software that, save with the prior written consent of Splice Software, you shall not, directly or indirectly, disclose, reveal, publish or transfer any Confidential Information to any person, nor shall you use the same for any purpose. You acknowledge and agree that Splice Software shall suffer irreparable harm in the event that any of your obligations contained in this Service Agreement are breached and that monetary damages shall be inadequate to compensate Splice Software for the breach. Accordingly, you acknowledge and agree that, in the event of a breach, or threatened breach, by you of any of the provisions of this Service Agreement, Splice Software, in addition to, and not in limitation of, any other rights, remedies or damages available to it at law or in equity, shall be entitled to an interim injunction, interlocutory injunction and permanent injunction in order to prevent or to restrain any such breach by you. You undertake that you have taken, and shall in future take, appropriate precautions to safeguard all Confidential Information received by you, and you agree not to use the Confidential Information for any purpose, other than as authorized by Splice Software. You agree that all right, title and interest in any Confidential Information disclosed to you by Splice Software shall be, and shall remain, the exclusive property of Splice Software. You agree to return to Splice Software all Confidential Information in your possession, or under your control, at the request of Splice Software. You and Splice Software hereby acknowledge that you have both carefully considered the provisions of this Service Agreement and, having done so, agree that the restrictions set forth in this Service Agreement are fair and reasonable and are reasonably required for the protection of the interests of Splice Software and its business, officers, directors and employees.
(12) RECIPIENT ACCEPTANCE OF THE Splice Service
Certain clients have the right to purchase, or make available the use of, the Splice Service on behalf of groups, teams, clubs, leagues, classes or others within their organization, company, school or association, and to make the Splice Service available for use by leaders, coaches, teachers, employees, managers or others. You acknowledge and agree that any group, sub-group or person who uses the Splice Service under your Splice Account, or under your sponsorship or purchase of the Splice Service, shall be informed of, and abide by, this Service Agreement.
(13) NO RESPONSIBILITY FOR CONTENT
Splice Software does not guarantee the accuracy, integrity, quality or appropriateness of any messages, communications, information, data, text, music, sound, or other materials ("Content"), whether publicly posted, or privately transmitted, pursuant to the Splice Service. You hereby acknowledge that the Splice Service is a passive conduit for the distribution and transmission of your information. You acknowledge that Splice Software has no obligation to screen, preview, or monitor such Content and, moreover, you agree that it is solely your responsibility to evaluate the accuracy, usefulness, completeness or appropriateness of any Content that you send, receive, access, post or otherwise transmit through the Splice Service, including Content that may be offensive, indecent or objectionable. Under no circumstances shall Splice Software be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content sent, accessed, posted or otherwise transmitted via the Splice Service.
(14) SERVICE FEES
You agree to pay the amounts set forth in the Rate Plan Contract (the "Service Fees") in exchange for the calls that are to be sent to your Subscribing Contacts using the Splice Service during the period set forth in the Rate Plan Contract. The Service Fees payable shall be payable under either a pay-as-you-go per individual campaign service plan (the "Pay-As-You-Go Plan") or a fixed-term, fixed-number of calls service plan (the "Fixed Plan"). The type of plan applicable shall be as set forth in the Rate Plan Contract. The number of purchased calls under a Pay-As-You-Go Plan shall be as set forth in the Rate Plan Contract. The length of the term and the number of purchased calls per term under a Fixed Plan shall also be as set forth in the Rate Plan Contract.
(15) BILLING
You may purchase Splice Software call credits for your Splice Account ("Splice Credits") using a credit card. Under the Pay-As-You-Go Plan, the Service Fees shall be paid online before you wish the calls to occur and shall be paid using either your existing Splice Credits or by using a credit card. Under the Fixed Plan, the Service Fees for the initial fixed term shall be charged to your credit card on the date on which your Splice Account is created, and shall thereafter automatically be charged to your credit card upon any extension of the current term as provided for in Section 16 hereunder.
If, for any reason, payment for the Service Fees is not successfully effected through your credit card and payment for any Splice Service becomes past due, the outstanding Service Fees will bear interest at a rate of 18% per annum from such due date until paid. If you do not pay Splice Software any Service Fees payable hereunder, Splice Software may terminate this Service Agreement without further notice, and, in such case, with the exception of the obligations contained in Sections 17, 18 and 19 of this Service Agreement, your and Splice Software's obligations hereunder, if any, shall immediately terminate.
(16) TERM AND TERMINATION AND SATISFACTION GUARANTEE
The term of this Service Agreement shall be as set forth in your Rate Plan Contract. If you have selected the Fixed Rate Plan, after termination of the initial term agreed to under the Rate Plan Contract, this Service Agreement shall automatically extend for a subsequent term of the same length unless you provide notice, in writing, to Splice Software, five (5) business days prior to the termination of the current term. If this Service Agreement is extended in this manner, any unused calls shall be credited to your subsequent term. Splice Software reserves the right to terminate this Service Agreement if Splice Software, in its sole discretion, believes that this Splice Service is being used for a purpose that is unlawful or prohibited by these terms, conditions, and notices. Any such termination of this Service Agreement shall not relieve you of any amount owing, or other liability otherwise accruing, hereunder prior to the time that such termination becomes effective.
(17) LIABILITY DISCLAIMER
YOU AGREE THAT:
The SPLICE Services are provided with no warranties whatsoever. You acknowledge and agree that Splice SOFTWARE shall not be held liable for any unsuccessful calls which occur as a result of incorrect contact information having been supplied by You. Additionally, You acknowledge that Splice SOFTWARE does not represent or warrant that the SPLICE Services shall (i) meet Your requirements; (ii) shall be error free; or (iii) SHALL be fit for any particular purpose. You expressly waive all warranties or conditions not specifically set forth in this SERVICE Agreement including, but not limited to, implied warranties or conditions of merchantable quality and fitness for a particular purpose and those arising by statute or otherwise in course of dealing or usage of trade.
(18) LIMITATION OF LIABILITY
Notwithstanding anything else in this SERVICE Agreement, the aggregate liability of Splice SOFTWARE to You in any way relating out or related to this Agreement shall be limited to direct damages and to $1000. In no event shall Splice SOFTWARE be liable for special, consequential or indirect damages, even if it is given notice of same, including lost profits, loss of revenue or failure to realize expected saving. These limitations apply in respect of all causes of action, whether for breach of contract, tort (including negligence) or otherwise. Splice SOFTWARE shall not be liable for any failure to perform due to causes beyond its reasonable control.
(19) INDEMNIFICATION
YOU SHALL PROTECT, INDEMNIFY AND SAVE HARMLESS SPLICE SOFTWARE, AND ITS EMPLOYEES, AGENTS, REPRESENTATIVES, INVITEES AND SUBCONTRACTORS, AND, AT SPLICE SOFTWARE'S REQUEST, INVESTIGATE AND DEFEND SUCH ENTITIES FROM AND AGAINST ALL CLAIMS, DEMANDS AND CAUSES OF ACTION, OF EVERY KIND AND CHARACTER, WITHOUT LIMITATION, ARISING IN FAVOUR OF OR MADE BY THIRD PARTIES, ON ACCOUNT OF BODILY INJURY, DEATH OR DAMAGE TO OR LOSS OF THEIR PROPERTY RESULTING FROM ANY NEGLIGENT ACT OR WILLFUL MISCONDUCT OF YOU.
(20) FORCE MAJEURE
If either party to this Service Agreement is prevented or delayed in the performance of any of its obligations hereunder by force majeure, and if such party gives written notice thereof to the other party, as soon as possible after the occurrence of a force majeure event, specifying the matters constituting force majeure, together with such evidence as it reasonably can give and specifying the period for which it is estimated that such prevention or delay will continue, then the party in question shall be excused from the performance, or the punctual performance, as the case may be, as from the date of such notice for so long as such cause of prevention or delay shall continue. Notwithstanding the foregoing, in the event that any such causes should continue for a period of twelve (12) months, the other party shall have the right to terminate this Service Agreement by giving notice to the other party.
(21) SURVIVAL OF TERMS
The terms of Sections 17, 18 and 19 hereunder shall survive any termination or expiry of this Service Agreement.
(22) NOTICE
Any notice, request, direction or other communication required or permitted to be given to Splice under this Service Agreement shall be in writing, and shall be effectively given and made if delivered personally, sent by prepaid courier service, sent by registered mail, or sent by electronic mail, to Splice Software at the following address: Splice Software Incorporated, 204, 4702 1st Street SW, Calgary, Alberta T2G 0A2 (info@splicesoftware.com). Unless otherwise herein provided, any notice, request, direction or other communication by Splice to you shall be effectively given if delivered personally, sent by prepaid courier service, sent by registered mail, or sent by electronic mail to you at the address or electronic mail address set forth in the Rate Plan Contract. If the notice is not delivered during the regular business hours of the addressee, then such notice shall be deemed given and received on the day following such delivery.
(23) SEVERABILITY AND WAIVER
If any of the provisions contained in this Service Agreement are found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not be in any way affected or impaired thereby. Any failure by Splice Software to exercise any rights or enforce any of the terms of this Service Agreement shall not constitute a waiver of such rights or terms.
(24) HEADINGS
Headings contained herein are included solely for convenience, are not intended to be full or accurate descriptions of the content thereof and shall not be considered part of this Service Agreement.
(25) LANGUAGE
In this Service Agreement, words importing the singular include the plural and vice versa and words importing gender include all genders.
(26) ENTIRE AGREEMENT
The terms and conditions of this Service Agreement, the Privacy Policy and the Rate Plan Contract constitute the entire agreement between you and Splice Software with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
(27) CURRENCY
All references to money and currency mean lawful money of Canada (unless expressed to be in some other currency) and all amounts to be paid or calculated pursuant to this Service Agreement are to be paid or calculated in lawful money of Canada.
(28) APPLICABLE LAW
This Service Agreement shall be governed by, and construed in accordance with, the laws of Alberta without giving effect to the conflict of laws. Any legal proceedings arising out of or relating to this Service Agreement will be subject to the exclusive jurisdiction of the courts of the Province of Alberta.
(29) ASSIGNMENT
You may not assign this Service Agreement without the written consent of Splice Software. In the event that Splice Software agrees to an assignment, the assignee shall, in writing, agree to perform all of your covenants and obligations hereunder to the extent and as if the assignee had originally executed this Service Agreement. Splice Software may assign this Service Agreement without your consent and without notice to you.
(30) RELATIONSHIP
This Service Agreement does not, and shall not be construed to, create a partnership or agency relationship whatsoever as between Splice Software and you.
(31) TIME
Time shall be of the essence of this Service Agreement.
(32) FURTHER ASSURANCES
Splice Software and you shall, from time to time and at all times hereafter at the reasonable request and sole cost of the other and without further consideration, do or perform or cause to be done or performed all such further acts and things, execute and deliver or cause to be executed and delivered all such further and other deeds, documents and other writings and generally give or cause to be given all such further and other assurances as shall be reasonably required in order to ensure and give full force and effect to the provisions and intent, purpose and meaning of this Service Agreement.
(33) LANGUAGE
The original English version of this Service Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Service Agreement, the English language version shall prevail.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS SERVICE AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS OF USE AND GRANT TO SPLICE SOFTWARE THE RIGHTS SET FORTH HEREIN.
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