By registering for, ordering or using Services, the Customer and you personally conclude a legally binding agreement with Whispir based on these Terms of Services - USA and any other terms specified by Whispir to apply to Customer or expressly accepted in a signed writing with Customer (“Agreement”). If Whispir has previously entered into a written agreement signed with ink on paper that by its express terms shall override these Terms of Service - USA, then the terms of that separate agreement shall take precedence over this Agreement to the extent that it conflicts with these Terms of Service -USA; any other terms suggested, proposed or communicated by Customer shall not apply and are hereby expressly rejected and excluded.
1.1 Whispir will provide the Services to the Customer in accordance with these Terms of Service - USA.
1.2 The Services to be provided will be those selected in the Application Forms completed to subscribe for the Services being either the Whispir Service or the API Service which incorporates the Application Program Interface capability in addition to the Whispir Service.
1.3 Whispir may change the terms of the Agreement or the Services from time to time and, if it does so, it will publish the most up-to-date terms or other changes on its website at https://whispir.io/terms/ (for API) and whispir.com.au/terms-of-service (for the Whispir Service). If the Customer continues to use the Services after a change has been published in this way, the Customer will be deemed to have agreed to the change, unless the Customer expressly objects to the change in writing and Whispir (a) agrees that Customer may continue on the previous agreement, (b) terminates the Agreement effective as of the next valid termination notice period, or © if the changes do not affect Customer materially, terminates the Agreement effective immediately and refunds Customer prepaid fees proportionally throughout the end of the then-current contract term. Whispir recommends that the Customer regularly checks for changes to the terms of this Agreement and to the Whispir Services.
This Agreement will commence on acceptance by the Customer of these terms and conditions in accordance with the Application Forms and will, on expiry continue for a further Term provided the Charges are paid in accordance with this agreement. If the Charges for any particular month are not paid, this Agreement may be terminated by Whispir 14 days after the Charges were due.
3.1 In this document unless expressed or implied to the contrary:
Acceptable Use Policy means the policy found at whispir.com.au/acceptable-use.
Access Information means a key, token, PIN, password and/or username which Whispir allocates to the Customer or Users for the purpose of accessing the Services.
Administrator means the person whose details are listed under the administrator section in the Application Form.
API Service is the Whispir Service but with the additional application programming interfaces capability which allows interfacing to Customer programs for uploading and downloading information directly into those systems as more particularly described at http://whispir.io.
Application Forms means the Services Application Forms in electronic or hard copy form completed as part of the process to subscribe for the Services.
Business Day means any day (except Saturday or Sunday or deemed public holidays in each state and territory in Australia) on which financial institutions are open for business in metropolitan areas.
Change Event means a change in law or regulation impacting on the manner in which Whispir provides the Services.
Charges means the charges for the Services agreed, for example, in the Application Forms, as amended from time to time.
Communities are the Whispir Community forums and other public areas on the Websites Customer’s Whispir account provides Customer access to.
Confidential Information means any information of a sensitive nature disclosed from one party to the other. Whispir’s Confidential information includes Whispir pricing, actual performance data, key performance metrics.
Customer means the entity identified as such on the Application Form.
Customer Data means all data, (including messages, mobile phone numbers, RSS feeds, web pages, web links, data feeds from internal and external systems and the identification of senders and recipients), information, text, drawings or other materials which are embodied in any electronic or tangible medium, and which are distributed by the Customer via the Services or are otherwise made available by the Customer to Whispir or which Whispir is required to generate, collect, process, archive, store and/or transmit under this Agreement.
Customer Material means any material (including any software, RSS feeds, websites and databases) generated by, or made available by a third party to the Customer and used by the Customer in conjunction with the Services and Software as supplied by Whispir under this Agreement.
Force Majeure means an event which renders a party unable to carry out the whole or any part of this Agreement for any reason beyond its control including but not limited to acts of God, acts of governments or governmental authorities, strikes or riots, acts of war or terrorism and any other causes of like nature.
Insolvency Event means if any (or more than one) of the following occur with respect to a party: (a) the party becomes insolvent or is otherwise unable to pay its debts as and when they fall due; (b) the party (or any third party) institutes any insolvency, receivership or bankruptcy proceedings with respect to the party, for the settlement of the party’s debts; © the party makes a general assignment for the benefit of creditors; or (d) the party ceases to conduct business.
Intellectual Property means all rights in relation to patents, copyright, registered designs, registered and unregistered trademarks, trade secrets, knowhow and confidential information and all other intellectual property as defined in article 2 of the Convention establishing the World Intellectual Property Organization of July 1967, including any right to register those rights, whether created before or after the date of this Agreement, whether existing in Australia or any other country and in all cases for the duration of those rights. Intellectual property includes software, documentation, rich message templates, message templates, SDK’s, API’s, frameworks, web pages, mobile web pages, source code and/or binary code that are provided by Whispir.
Message means an SMS (Short Message Service) or MMS (Multimedia Message Service) message or a Push Notification sent via a mobile phone network or a rich message sent by an email and/or mobile phone network or an email sent via an email network or a pager message sent via a paging network or a voice message or a fax sent via a telecommunications network via the Services or any IP based transfer of information using the Internet or any IP based network.
Personal Information means has the meaning given to that term in the relevant Privacy Laws.
Personnel include officers, employees, contractors, consultants, representatives, agents, legal advisers and accountants.
Platform Events means billing events triggered via the Whispir API such as: create contact, delete contact, send mobile message (SMS, MMS, Push), publish message (Rich message), send email, send voice message, request limit increase, request limit decrease.
Privacy Laws means laws that protect personally identifiable information of individual persons.
Privacy Statement means the public web pages that set out Whispir’s privacy policies displayed at whispir.com.au/privacy-policy.
Rich Messages means tailored messages in the form of an individual web page and/or web application, constructed from the message content, digital media, data and code constructed on a per recipient basis. Rich messages are typically accessed via a URL contained within an SMS, Push notification, Email, Chat, IM, Web, OTT or similar messages and notifications.
Rich Message Templates means templates that are created for the purpose of developing, saving and utilizing Rich Messages.
Services means the subscription services selected by the Customer as indicated in the Application Forms(being either the Whispir Service or the API Service) and described in the service offering found at whispir.com.au/features (as may be updated from time to time).
Software means the software utilized in the provision of the Services including Whispir iOS, Android, Windows phone applications (or similar), Rich Messages and Rich Message Templates and for API services any software development kits or sample code more particularly described at http://www.whispir.io and https://github.com/whispir
Supported Browsers and Apps means the list of browsers and applications as defined at whispir.com.au/browser-and-app-support
Taxes means a tax, levy, duty, charge, deduction or withholding, however described, imposed by a law or government agency, together with any related interest, penalty, fine or other charge, other than sales, use or income tax.
Term means the period determined in accordance with clause 2.
User means the Customer’s Personnel, those of another employer, or any other person or application who the Customer has authorized to use the Services in accordance with the requirements of this Agreement including those denoted users, mobile users, profile users, contacts, apps, or applications within the Application Form and the Services
Whispir means Whispir Inc with registered offices at 312 Arizona Ave, Santa Monica, CA 90401, USA.
Websites means the website hosted on whispir.com and associated domains: whispir.biz, whispir.cn, whispir.com.au, whispir.co.uk, whispir.info, whispir.net, whispir.org, whispir.us, whispir.co, whispir.de, whispir.mobi, whispir.co.nz, whispir.asia,whispir.sg, whispir.co.id, whispir.my, whispir.ph, whs.pr, whispir.io, whspr.io, whispir.it, openwhispir.org, openwhispir.com
Whispir Service means the software based service which enables customers to create, orchestrate and communicate to people using cross-channel methods as more particularly described at our editions.
4.1 In order to trial the services, new Customers may be provided with the Services free of charge for the first 30 days commencing on the date of acceptance of Application Form.
4.2 For that 30 day period, the Customer may receive the Services for up to one User. Following the expiry of that 30 day period, the Customer may elect to continue receiving the Services by paying the relevant Charges for the next month in accordance with Whispir's standard Charges specified on the Application Form (as may be updated from time to time). If the Customer elects not to continue to receive the Services, this Agreement will terminate and be of no further force or effect.
4.3 During the 30 day period referred to, the Services will be provided by Whispir on an "as delivered" basis meaning:
(a) Whispir will not be liable to the Customer for any failure to provide the Services; and
(b) The service levels will not apply and the Customer will not be entitled to any compensation if the Services are not provided in accordance with those service levels.
5.1 Whispir will use its best endeavors to provide the Customer with the selected Services in accordance with the terms of this Agreement.
5.2 The Whispir API Services utilize services provided by Mashery Inc (an Intel company) and where the API Services been selected in the Application Form, it is a condition of receiving the API Services that the Customer also agrees to the Mashery Inc terms and conditions as part of the subscription process, which are available at http://www.mashery.com/terms and http://www.mashery.com/privacy or from Mashery Inc. or Whispir on request.
5.3 The provision of the Services relies on third party services that may be affected by a range of factors including technical problems and telecommunications network coverage and availability issues which are beyond Whispir's control and Whispir will not be liable for any breach of this Agreement or other failure resulting from factors beyond its control. These include:
(a) Messages may not be successfully terminated, or terminated in a timely manner, on an end-user's handset (including Messages sent to handsets with end users subscribed to international telecommunications carriers);
(b) Messages may not be received where the recipient's mobile phone memory is full; and
(c) In some circumstances, it may not be possible to track the status of all Messages.
(d) Use of the services from browsers or applications that are not Supported Browsers and Apps
5.4 Whispir is not responsible for third party services relied up on by the Customer to access the Services.
6.1 The Customer may order additional or new Services or change the type of Services to be provided by submitting a new Application Form. Users and profile users may also be added at any time and Customer will be automatically moved to the associated edition according to Customer's user numbers and/or feature use.
6.2 Any new Application Forms submitted by the Customer will supersede any prior Application Form.
6.3 Within the Term, the Customer may not reduce the level of services provided by Whispir to the extent that any less than those requested in the Application Form are provided.
7.1 Whispir will use all reasonable endeavors to provide the Service but cannot be responsible for factors beyond its control including the following circumstances:
(a) if a service level is not met by Whispir due to Force Majeure;
(b) disruption caused by disconnection and/or reconnection of the Service due to non-payment of any Charges;
(c) unavailability due to failure of Customer owned and/or maintained equipment and/or infrastructure, including Customer Material;
(d) where the Customer provides inaccurate or incomplete information which causes a Service failure;
(e) failure of the Internet or other telecommunications networks or any other third party service used by the Customer in conjunction with the Services; and/or
(f) where the Customer, its employees, agents and subcontractors do not utilize the Services in accordance with directions and instructions published by Whispir at http://whispir.com/acceptable-use.
7.2 Where a Service failure occurs (including in any of the circumstances described above), Whispir will use its best endeavors to restore the Service. In the event that Whispir is unable to restore the Service within 21 days, the Customer may immediately terminate this Agreement. Where the Customer terminates this Agreement, the Customer must pay any Charges for the Services which have been provided in accordance with this Agreement up to and including the date of failure.
7.3 Whispir is not responsible for any third party content offered or made available or accessible by the Service and is not liable for any loss suffered or incurred by the Customer's reliance on or use of such third party content offered or made available or accessible using the Service.
8.1 Whispir will provide the Services to Users nominated by the Customer.
8.2 The Customer must ensure that all User information provided by the Customer is accurate and is kept up-to-date. Whispir is not responsible for the accuracy of User information provided by the Customer.
8.3 The Customer agrees to pay all fees and costs relating to Users that the Customer nominates to have access to the Services, including those who are not in the Customer's employment.
8.4 The Customer agrees to pay all fees and costs where the addition of new Users results in the need to upgrade to the next Edition with the associated charges set out at in the Application Form.
8.5 The Customer must ensure that the Customer's Access Information and the Access Information of Users is not disclosed to a third party or compromised in any way.
8.6 The Customer may specify end users as "Administrators" through the administrative console of the Services. Administrators may have the ability to access, disclose, restrict or remove Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts for their end users. Whispir responsibilities do not extend to Customer's internal management or administration of the Services. Customer are responsible for: (i) maintaining the confidentiality of passwords of Customer's account and any Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators' use of the Services complies with this Agreement.
9.1 Whispir will charge the Customer the Charges set out on the Application Form.
9.2 Whispir API software charges are calculated based on Platform Events. Platform Events include: create contact, delete contact, send mobile message (SMS, MMS, Push), publish message (Rich message), send email, send voice message, request limit increase, request limit decrease. Whispir will charge the Customer the Charges set out in the Application Form.
10.1 The Customer must pay for the Services in advance or in arrears in accordance with the terms set out in the Application Form.
10.2 Whispir's records are sufficient evidence of the amount payable unless shown to be incorrect.
11.1 If the Customer does not pay any amount invoiced by the due date, then Whispir may charge a late payment fee of 5% per month of the unpaid amount from the due date until the date of payment in full or the maximum amount permissible by applicable law, whichever is less.
11.2 The late payment fee may be charged each and every month (in increments of 30 days) once an account is overdue. Late payment fees will be applied to accounts with arrears balances greater 30 days overdue.
12.1 Subject to this clause 12, the Customer is responsible for payment of any Taxes which may arise as a result of or in connection with this Agreement in accordance with the applicable statute or legislation.
12.2 If the Customer is required by law to make any deduction or withholding on account of any Taxes from payments due under this Agreement, the Customer must increase the payment due so that, after deducting or withholding such Tax, Whispir receives an amount equal to the amount it would have received had no deduction or withholding been made.
13.1 The Customer must:
(a) ensure that any content sent using the Services conforms to applicable Marketing, Mobile Marketing, Spam and Telecommunications legislation and professional codes of practice, including, without limitation, the US CAN SPAM Act, the US TCPA, corresponding U.S. state law and other Privacy Laws and other laws;
(b) not resell or make the Service available to any third party without Whispir's consent;
(c) at its own expense procure and maintain any hardware, software or facilities and maintain at their own expense all licenses, permissions and approvals necessary for Whispir to legally supply its services into the Customer's premises;
(d) comply with any reasonable request issued by an engineer of Whispir pertaining to the correction of any issue with the Service;
(e) comply with any of Whispir's general network policies (including the Acceptable Use Policy published at whispir.com.au/acceptable-use) Data Retention Policy published at whispir.com.au/data-retention-policy) that may be introduced from time to time and published on the Whispir websites;
(f) be ultimately responsible for the identification and reporting to Whispir of any issue as soon as possible; and
(g) ensure that it does not perform system load or stress tests or security scans against the Services without obtaining express written approval from and co-ordination with Whispir prior to each instance of such a test or scan being conducted (as this may affect the Services).
14.1 The Customer must ensure that the Customer (and anyone the Customer authorizes to use the Service, such as Personnel and Users) does not use the Services to send, receive or transmit any Messages that:
(a) represent (by act or omission, unless accurate) that Whispir's its network suppliers or any other person created, endorses, has reviewed, or is in any way involved in the production of the Customer Data;
(b) utilize the 000, 111, 999 or similar emergency call services;
(c) affects the availability of the Service or causes interference to the normal operation of a telecommunications network or equipment; or
(d) result in the sending of a "virus", "worm" or "trojan" or similar program;
(e) tamper with, hinder the operation of or make unauthorized modifications to the Services.
14.2 The Customer must report any Services problems to the Whispir help desk within twenty-four (24) hours of becoming aware of such fault or problem. If the Customer or a third party interferes with the Services, Whispir will not be liable for any damage to, or the costs and expenses of rectifying, the Services. Any costs and expenses incurred by Whispir to remedy and damage or cost to rectify the Services must be borne by the Customer.
14.3 Customer's Whispir account provides Customer access to the Whispir Communities - forums and other public areas on the Websites. By accessing the Communities, Customer acknowledges that Customer is solely liable and responsible for how Customer uses the Communities, as well as any damages that may result from the disclosure of Customer's User Content. Customer also acknowledges that it is possible that Customer will be exposed to User Content from others that Customer may consider offensive, indecent, or otherwise objectionable. Views expressed on the Communities do not necessarily reflect Whispir’s views. Whispir does not endorse User Content posted by Customer or others. Certain User Content from others may be incorrectly labelled, rated, or categorized. Customer's use of the Communities is subject to these Terms and our Community Guidelines at https://whispir.com/community-guidelines.
14.4 Customer grants Whispir a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, User Content (in whole or in part) for the purposes of operating and providing the Services to Customer. Please remember that other users may search for, see, use, modify and reproduce any of Customer's User Content that Customer submits to any Forum or other “public” areas of the Websites. Customer warrants that the holder of any worldwide intellectual property right, including moral rights, in Customer's User Content, has completely and effectively waived all such rights and validly and irrevocably granted to Customer the right to grant the license stated above. Customer agrees that Customer, not Whispir, is responsible for all of Customer's User Content.
15.1 To the extent that the Customer has access to and uses the Software as part of the Services, Whispir grants the Customer a non-assignable, non-transferable, non-sublicensable, revocable, non-exclusive license for the Term to use the Software for the purpose of accessing the Service. In relation to the API Service, this includes utilization of the application programming interfaces available under that service and any software development kits (SDKs) provided for use with the Service. Use of any of our SDKs and associated documentation that is made available via the Websites or the Services) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software. These license terms may be posted with the Software downloads or at the Website page where the Software can be accessed. Customer will not use, download or install any Software that is accompanied by or includes a license agreement unless Customer agrees to the terms of such license agreement.
15.2 The Customer must not (except with Whispir's prior written consent):
(a) use the Software for any purpose other than accessing the Service;
(b) translate, reverse engineer, modify, adapt, create derivative works, decompile, merge, separate or disassemble any part of the Software;
(c) transfer, sub-license or otherwise dispose of the Customer's rights in the Software; or
(d) make the Software available to any other person (other than the Customer's Users).
15.3 Except as specifically set out in this clause, the Customer does not obtain any other rights with regard to the Intellectual Property owned by or licensed to Whispir.
15.4 For Rich Messages subject to the terms and conditions of this Agreement;
Whispir grants and the Customer hereby accepts a non-exclusive, worldwide, non-transferable, non-sub licensable limited license for the Term to use, copy, modify, and create derivative works of any the Rich Messages and Rich Message Templates based on those provided by Whispir and to send Rich Messages based on those works to end users.
16.1 The Customer is solely responsible for obtaining, maintaining and using any Customer Material used to access and/or use the Services and ensuring that such Customer Material and any person's use of that Customer Material;
(a) is lawful;
(b) complies with the terms of any license under which the Customer Material is provided; and
(c) does not disrupt the proper functioning of the Services for the Customer or any other person
17.1 The Customer is responsible for keeping all Access Information secure and protected from unauthorized use.
17.2 The Customer agrees that Whispir is entitled to treat any access by the use of the Customer's Access Information as access with the Customer's authority and Whispir is not required to verify that authority.
17.3 The Customer must notify Whispir immediately if the Customer becomes aware of any access to the Customer's Access Information by unauthorized persons or any unauthorized access to information intended for the Customer or any other loss or theft of the Access Information.
18.1 A party will not disclose the other party's Confidential Information unless:
(a) the other party consents in writing; or
(b) in the event that disclosure is required by law or as required by the listing rules of any stock exchange where the Customer's or Whispir's securities are listed or quoted; or
(c) in the event that disclosure is required in connection with legal proceedings relating to this Agreement.
18.2 Upon termination of this Agreement, a party who has received Confidential Information from the other under this Agreement must, on the request of the other party, deliver to that party within a reasonable time frame all documents or other materials containing or referring to that information which are in its possession, power or control or in the possession, power or control of persons who have received Confidential Information from it.
18.3 The obligations in this clause with regard to Confidential Information survive for as long as that information is of a confidential nature.
19.1 Whispir will comply with its Privacy Statement found at http://whispir.com/privacy-policy. Whispir will only collect, use and disclose the Customer's Personal Information as required to perform obligations and exercise rights under this Agreement and applicable law.
19.2 Customer must at all times comply with Privacy Laws.
19.3 The Customer will retain all Intellectual Property Rights in the Customer Data. Whispir shall not use the Customer Data except to provide the Services and to provide Rich Messages in accordance with clause 15.4. Nothing in this clause 19.3 removes or limits the obligations of confidentiality under clause 18 and no lien or other right arises in relation to Customer Data.
20.1 Each party warrants to the other that it is duly authorized to enter into and perform this Agreement.
20.2 Whispir does not warrant that the Services and Software will operate free from defects, bugs or errors. It is the Customer's responsibility to ensure that the Software is compatible with any hardware, software, accessories or services supplied by third parties.
20.3 Except as set forth in clause 20.1 of these Terms of Service - USA, Whispir does not extend any express warranties or representations. Whispir hereby expressly disclaims any implied representation and warranty, including, without limitation, any implied warranty of merchantability, professional and workmanlike service provisioning, fitness for a particular purpose, non-infringement and Title.
21.1 Each party (indemnifying party) indemnifies the other party (indemnified party) from and against any losses, damage, costs or expenses (including legal fees, costs of investigation and expenses on a solicitor client basis) or liabilities that the indemnified party sustains or incurs in connection with any:
(a) any breach of the Acceptable Use Policy; or
(b) any claim by any third person against the indemnified party arising in connection with the infringement of that third person's rights in Intellectual Property arising as a consequence of the provision of Intellectual Property to the indemnified party under this Agreement by the indemnifying party.
22.1 Whispir will not be liable for any delay or failure to provide the Service if the delay is due to Force Majeure.
22.2 To the full extent permitted by law, a party will not be liable to the other party in respect of any claim for any loss of profit, data, goodwill or business, for any interruption to business, for any failure to realize anticipated savings or for any consequential, indirect, exemplary, special, punitive or incidental damages.
22.3 To the full extent permitted by law, Whispir excludes:
(a) any liability arising in relation to the introduction or distribution, by reply or otherwise, of any Message by a third party which is distributed via the Services; and
(b) all representations, warranties, terms and conditions, whether express or implied (and including those implied by statute, custom, law or otherwise), except as expressly set out in this Agreement.
22.4 If statutory provisions apply to imply and term or condition into this Agreement, notwithstanding any other provision of this Agreement, to the extent to which Whispir is entitled to do so, Whispir limits its liability in respect of any claim for breach of such a provision to, at the option, of, the re-supply of the service again or the payment of the cost of having the Service supplied again.
22.5 Regardless of any other provision of this Agreement, and to the extent permitted by law, the total aggregate liability of Whispir to the Customer arising under or in relation to this Agreement will not exceed the total amount paid by the Customer to Whispir under this Agreement in the 6 month period immediately preceding the most recent claim.
22.6 Customer's sole and exclusive remedy arising out of or relating to any warranty or representation, implied or express, or any dissatisfaction with the Services shall be Customer's right to terminate this Agreement for cause, effective immediately, and subject to a refund of prepaid fees on a prorated basis for time periods following the date when Whispir receives Customer's express request to cure if Whispir is in material breach at this point and fails to reasonably cure and address Customer's request within 30 days of receiving Customer's request to cure.
22.7 The Customer acknowledges and agrees that the limitations and exclusions of liability set out in this clause 22 apply to all claims whether arising under contract (including under any warranty or indemnity or any other breach, actual or anticipatory including repudiation), in equity, in restitution, negligence or any other tort, strict liability, under statute or otherwise at all.
23.1 Either party may terminate this Agreement at any time upon 30 days prior written notice.
23.2 If the Customer wishes to terminate this Agreement, it must be done so in writing to firstname.lastname@example.org. Upon receipt of the Termination Request, the Customer will receive an automated email response from Whispir to confirm receipt of cancelation and the commencement of the 30-day notice period and that the customer acknowledges any Early Termination Charges will be calculated and charged in the final invoice. Whispir will only acknowledge and action Termination Requests emailed to email@example.com. Failure to adhere to this process will result in the Agreement continuing for the agreed Term. In the event the Customer does not receive a confirmation of their Termination Request from Whispir, they are advised to contact their Account Manager directly.
23.3 In the event of termination of this Agreement by the Customer, all Charges will be calculated and payable up to the end of the Term in accordance with this Agreement, unless Customer terminates for material breach and Whispir fails to cure such breach in accordance with clause 22.6 of these Terms of Service - USA.
23.4 Whispir may terminate this Agreement by giving the Customer 14 day's written notice or suspend the Service immediately:
(a) if the Customer fails to pay the Charges on time;
(b) if the Customer breaches any of these terms and conditions;
(c) if the Customer suffers an Insolvency Event;
(d) in the event the Customer breaches clauses 14, 18 or 19;
(e) in the event that a Change Event occurs and suspension is necessary to ensure compliance with any notice, direction, declaration, order, directive, judgment, code or standard the subject of the Change Event; or
(f) in the event of an emergency or whenever Whispir considers it necessary or reasonable in order to safeguard provision of the Services to emergency and other essential services.
23.5 If this Agreement is terminated for any reason:
(a) the Customer will no longer be able to use the Service;
(b) where applicable the Customer will forfeit any included messages or unused credits (issued as part of the free trial); and
(c) the Customer will be liable for any accrued or unpaid fees for Services provided in accordance with this Agreement.
23.6 Any expiration or termination of this Agreement does not affect the rights and obligations of the parties under clause 18 and clause 21.
23.7 The termination of this Agreement for any reason will not prejudice any rights which have accrued to either party prior to the date of termination.
24.1 The Customer must not assign any of the Customer's rights or obligations under this Agreement without prior written consent by Whispir. Whispir may novate, or assign any or all of its rights and obligations under, this Agreement on 30 days written notice and without the Customer's consent.
24.2 Waiver of a breach of this Agreement, or of any rights created by or arising upon default under this Agreement can only be effected in writing and must be signed by the party granting the waiver. A breach of this Agreement is not waived by a failure to exercise, a delay in exercising, or a partial exercise of, any remedy available under this Agreement or in law or equity.
24.3 This Agreement constitutes the entire Agreement between the Customer and Whispir in respect of the Services and supersedes any prior agreement, written or otherwise, between the parties to the exclusion of any other terms.
24.4 The obligations of confidentiality under clause 18, the relevant payment and security obligations under clauses 9, 15, 19, the indemnity obligations in clause 21, the liability limitations in clause 22 as well as clauses 23 through 25 shall survive the expiration or termination of this Agreement.
24.5 Whispir may subcontract any of its obligations under this Agreement to a third party without notice to the Customer and without the Customer's consent.
(a) Both parties agree that, during the Term either party may publicly refer to the other, orally and in writing, as a customer/vendor of the other and may publish the other's name and/or logo on its website or promotional materials.
(b) Where applicable, Customer consents to the inclusion of Whispir's customary "Whispir powered" badge, with a link to Whispir's website, on Customer's contact portal or within branded versions of Messenger app for iOS and Android.
(c) Customer consents to the inclusion of Customer's logo on Whispir's website. In addition, Customer shall participate in press releases, case studies and other promotional activities as reasonably requested by Whispir. Any other reference to either party by the other requires the written consent of the party being referred to.
24.7 All notices, consents, requests and other communications required or permitted to be given under this Agreement must be:
(a) in writing addressed to the nominated Whispir contact if sent by the Customer or to the nominated Customer contact if sent by Whispir; and
(b) where such notice is delivered by hand, dispatched by courier or dispatched by facsimile transmission, facsimile, or other electronic means, such notice shall be deemed to have been received on the day of dispatch and if dispatched by mail shall be deemed to have been received at the expiry of 2 Business Days from such dispatch.
24.8 If a provision in this document is held to be illegal, invalid, void, voidable or unenforceable, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable.
24.9 If it is not possible to read down a provision as required in this clause, that provision is severable without affecting the validity or enforceability of the remaining part of that provision or the other provisions in this document.
24.10 If a party consists of more than one person, this document binds them jointly and each of them severally.
24.11 In this document:
(a) a reference to this or other document includes the document as varied or replaced regardless of any change in the identity of the parties;
(b) headings and sub-headings are inserted for ease of reference only and do not affect the interpretation of this document; and
(c) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning.
25.1 This Agreement and any dispute arising out of or in connection with this Agreement (“Dispute”) will be governed as to all matters, including, but not limited to the validity, construction and performance of this Agreement, by and under the laws of the State of California, United States of America, without giving effect to conflicts of law principles thereof.
25.2 Except as provided in clause 25.3, all Disputes shall be finally resolved by binding arbitration before three (3) arbitrators pursuant to the rules (“Rules”) and under the auspices of the American Arbitration Association. In accordance with the Rules, each party shall select one arbitrator and the two arbitrators so selected shall select the third arbitrator. The arbitrators shall be knowledgeable in the chosen law and the online marketing services industry. At either party’s request, the arbitrators shall give a written opinion stating the factual basis and legal reasoning for their decision. The arbitrators shall have the authority to determine issues of arbitrability and to award compensatory damages, but they shall not award punitive or exemplary damages. The parties, their representatives, and any other participants shall hold the existence, content, and result of arbitration in confidence. The arbitration proceedings shall be conducted in the English language and take place in San Francisco, California, or any other place on which all three arbitrators agree unanimously.
25.3 Either party may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief). Also, the provisions of this clause 25.3 may be enforced by any court of competent jurisdiction.
25.4 If it is necessary for either party to retain the services of an attorney or attorneys to enforce the terms of this Agreement or to file an action to enforce any of the terms, conditions or rights contained herein, or to defend any action, then the prevailing party in any such action will be entitled to recover from the other party its reasonable fees for attorneys and expert witnesses, plus such court costs and expenses as may be fixed by any arbitration panel or court of competent jurisdiction.