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Terms of Service

These Terms of Service (“Agreement“) are a legally binding agreement between the user (“User”, “Client”, or “you“) and Stealth Data, LLC, a Missouri Limited Liability Company with its principal office at 4700 Belleview Ave., Suite 100C, Kansas City, Missouri 64112, USA (“Stealth Data“ or “ID”) or collectively known as “Parties” “We” or “Us”.

Please make sure you fully understand the contents of this Agreement. If you have any doubts about any of your rights and obligations resulting from your acceptance of this Agreement, please consult us or obtain legal counsel.

IF YOU DO NOT AGREE WITH ANY PROVISION OF THIS AGREEMENT, YOU MAY NEITHER CONTINUE WITH THE PROCESS OF PLATFORM REGISTRATION NOR FURTHER USE THE SERVICES.

TERM AND TERMINATION.

1.1    The term (“Term”) of the Agreement shall begin on the Effective Date and continue until terminated by either Party if no Schedule is then in effect or scheduled to come into effect. The contract start date will be the same date as a signed Schedule, and automatic recurring payments will take place on the same day each month. This is a month–to–month contract with a 30–day notice of cancellation via email if not indicated otherwise is a signed Schdule. In the event that a payment cannot be completed automatically, you will be notified via email and from the date of the email notification will have 3 days to complete payment. Payments made after this 3-day period will be subject to an additional late payment fee of 10%.

1.2    If a Schedule is in effect or scheduled to come into effect, then either Party may immediately terminate this Agreement upon written notice that:

  • the other party is in material default of this Agreement or the affected Schedule and fails to cure such default within ten (10) business days of written notice from the other party giving notice of such default;
  • the other party petitions for relief under the Federal Bankruptcy Code or any involuntary petition is filed against the other party and is not dismissed within sixty (60) days;
  • relief under the Federal Bankruptcy Code is granted with respect to the other party as a debtor;
  • the other party makes a general assignment for the benefit of creditors;
  • the other party ceases doing business, assigns, or attempts to assign any portion of this
  • Agreement to an entity other than as provided; and/or 
  • for any reason, without cause, with ninety (90) days’ written notice.

SERVICES.

2.0.   ID. Stealth Data agrees to provide the following services to Client:

  • access to and use of a web-based, SaaS (Software-as-a-Service) model platform that allows Customer to identify their anonymous website visitors (“Client Data”), contact these identified website visitors through email or phone, manage list of identified website visitors and to utilize other tools through the Stealth Data platform (subject to the Subscription Plan purchased) such as an: automated email system, CRM matching, visitor URL identifier, lead prioritization system, customer performance & analytics dashboard, and URL flagging (the “Services”); &
  • Customer Service as described below.

The Services will be set forth in Schedule A to this Agreement and any other written schedules as annexed hereto, statements of work, order forms, work orders, or other documents executed by authorized representative(s) of each of the Parties and expressly made subject to this Agreement, including any amendments thereto (each, a “Schedule”). Such Schedules will describe the Services, the applicable fees, and any other terms agreed to by the Parties. The detailed scope of Services features available to you under your annual or monthly Subscription (“Subscription Plan”) is provided in said Schedule A.

2.1.    Agency. Client agrees that ID will act as its agent authorized to act on Client’s behalf with respect to any third party in connection with the Services being provided, and Client agrees to be bound by the terms and conditions of ID’s agreement with such third party to the extent those terms and conditions do not conflict with a Schedule or this Agreement. If a Schedule and this Agreement conflict, this Agreement controls. Client agrees that, during the term of this Agreement, (i) ID shall be the Client’s agent empowered to perform the Services on behalf of Client, (ii) ID is authorized to provide Client’s Data to third parties to the extent necessary to perform the Services, and (iii) Client shall abide by the terms of any third party agreements to which ID is a party and which have been executed to facilitate the terms of this Agreement. Client further agrees that Client shall not instruct ID to process or to take any other action with Client Data that Client knows or should reasonably know would violate an applicable law or any other published privacy policies or notice and disclosure statements under which such data was collected, including, without limitation Client’s privacy policies.

2.2.    Consumer Communication. Client shall take commercially reasonable steps to address any communication initiated by a consumer, consumer advocacy group, anti-spam advocacy group, or internet service provider (ISP) arising out of the Services. Client must promptly notify ID of such request and provide ID with a written summary (email to suffice) of the communication with the consumer. If such communication concerns an email address provided as a part of the Services, and the consumer so requests, Client shall unsubscribe the consumer as soon as practicable from receiving commercial email from Client (at most, within ten (10) business days) and shall inform the consumer of the same. Client must use commercially reasonable efforts to honor all known consumer opt-outs.

2.3.   Your Account. In order to use the Service, you must create an individual account in the Stealth Data platform (“Account”). The Account may be accessed only with the use of your login credentials. You are responsible for keeping your login credentials confidential. You are also responsible for any use of your Account, especially for any activity of other users of your Account (“Users”).

2.4    Applicable Federal/State Laws and regulations Compliance & Consequence of Failure to Comply. Clients are required to remain compliant with all applicable federal and state laws/regulations regarding consumer protection, data privacy/security, and sales/marketing restrictions. Failure to comply with the aforementioned with all applicable federal and state laws/regulations is violation of these terms of service and upon discovery will result in your subscription being terminated immediately. Specifically, it is a violation of these terms of service by not being compliant with the Telephone Consumer Protection Act (TCPA), Can-Spam Act, Telemarketing Sales Rule (TSR), and, if applicable, the California Consumer Privacy Act (CCPA), Nevada Privacy Law, Virginia Consumer Data Protection Act (CDPA), and the EU General Data Protection Regulations (GDPR).

2.5    CAN-SPAM ACT Compliance & Consequence of Failure to Comply. The CAN-SPAM Act is a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations. Failure to comply with this law is a violation of these terms of service and upon discovery will result in your subscription being terminated immediately. Despite its name, the CAN-SPAM Act doesn’t apply just to bulk email. It covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” including email that promotes content on commercial websites. The law makes no exception for business-to-business email. That means all email, for example, a message to former customers announcing a new product line must comply with the law.

Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $43,792, so non-compliance can be costly. But following the law isn’t complicated. Here’s a rundown of CAN-SPAM’s main requirements:

      1. Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.
      2. Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.
      3. Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.
      4. Tell recipients where you’re located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.
      5. Tell recipients how to opt-out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt-out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests.
      6. Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.
      7. Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.

One last thing: It’s important to keep in mind that the Can-Spam Act is complex. Therefore, it’s usually in your best interest to contact legal counsel in the event that you have questions or may have fallen out of compliance.

2.6     Telephone Consumer Protection Act Compliance (TCPA) & Consequence of Failure to Comply. If you’re not already familiar, TCPA stands for Telephone Consumer Protection Act and was signed into law in 1991. Failure to comply with this law is a violation of these terms of service and upon discovery will result in your subscription being terminated immediately. The act was designed to reduce the number of telemarketing calls received by consumers. It included a “do-not-call” (DNC) list, though it wasn’t until 2003 that the FTC established a centralized list, as well as other provisions related to telemarketing calls, auto-dialed calls, prerecorded messages, text messages, and unsolicited faxes. In October of 2013, the TCPA was updated to require express written consent for auto-dialed calls, prerecorded calls, and text messages sent to wireless numbers. The update also requires written consent for prerecorded calls that are made to residential numbers. 

TCPA Compliance Checklist:

  1. Do not call residences before 8am or after 9pm, local time;
  2. Keep a DNC list specific to your business or organization and honor it for 5 years;
  3. Honor the National DNC Registry;
  4. Provide your name, the name of your company, and a phone number or address where the consumer can reach your company;
  5. Without prior written consent, do not use artificial voices or recordings when contacting residences;
  6. Do not use auto-dialers, artificial voices, or recordings when contacting hospitals and other healthcare facilities, mobile phones, or other numbers where the recipient pays for the call;
  7. If using a prerecorded message, include an opt-out function that will put the consumer on the DNC at their request;
  8. Disconnect a call if no one has picked up after 15 seconds or 4 rings, whichever is sooner;
  9. The abandonment rate for calls answered by a live person cannot exceed 3% in a 30-day period for a single calling campaign (If the campaign lasts longer than 30 days, the counter simply resets at the start of the following period);
  10. Check regulatory updates at least once a week, either through a newsletter subscription or legal counsel.

TCPA Exceptions include:

  1.  Calls that are manually dialed do not fall under TCPA regulations;
  2. Calls made by a tax-exempt nonprofit;
  3. “Urgent” calls, such as prescription notifications or appointment reminders made by “covered entities” (See HIPAA for definition of covered entities);
  4. Emergency calls;
  5. Commercial calls that don’t include advertisements or other solicitations that would constitute telemarketing; and
  6. Calls that are not made for a commercial purpose.

One last thing: It’s important to keep in mind that the TCPA is complex legislation that remains subjective, despite clarification by the FCC. Therefore, it’s usually in your best interest to contact legal counsel in the event that you have questions or may have fallen out of compliance. With new cases passing through litigation every day, new guidance is constantly coming out about how to handle telemarketing calls. To protect yourself and your business, we encourage you to stay informed at all times.

2.7    Telemarketing Sales Rule (TSR) & Consequence of Failure to Comply. The Telemarketing Sales Rule (TSR) requires telemarketers to make specific disclosures of material information; prohibits misrepresentations; sets limits on the times telemarketers may call consumers; prohibits calls to a consumer who has asked not to be called again; and sets payment restrictions for the sale of certain goods and services. Failure to comply with this law is a violation of these terms of service and upon discovery will result in your subscription being terminated immediately. The Telemarketing Sales Rule, in effect since December 31, 1995, was revised in January 2003. It enforces a law Congress passed to fight fraudulent activities carried out by telephone and to give consumers added privacy protections. Companies that violate the Rule are subject to fines of up to $11,000 per violation. The Federal Trade Commission defines telemarketing as any plan, program or campaign to induce the purchase of goods, services, or a charitable contribution over the telephone. The FTC’s Telemarketing Sales Rule prohibits misrepresentations and requires telemarketers to give you certain disclosures. It also gives you the power to stop unwanted telemarketing calls. The Rule requires specific disclosures.

For outbound calls, the following prompt (before any sales pitch is given) clear and conspicuous oral disclosures:

  1. The seller’s identity;
  2. That the purpose of the call is to sell;
  3. The nature of the goods or services offered; &
  4. That no payment or purchase is necessary to win if a prize promotion is offered.

For all transactions, whether they involve inbound or outbound calls, the following clear and conspicuous written or oral disclosures:

  1. The cost and quantity of the goods or services offered;
  2. Any material restrictions, limitations, or conditions;
  3. Any “no-refund” policy; if a refund policy is mentioned, the material terms and conditions of the refund policy must be disclosed;
  4. Prize promotion disclosures: the odds of winning, or if the odds can’t be calculated, the factors that determine the odds; that no purchase/no payment is necessary to win; a statement of no purchase/no payment method of entry; and any material restrictions or limitations on any offered prize.

A telemarketer cannot:

  1. Call again once you’ve asked them not to or if your phone number is on the National Do Not Call Registry;
  2. Call you before 8:00 a.m. or after 9:00 p.m.;
  3. Withdraw money from your checking account without your express, verifiable authorization;
  4. Misrepresent the offer or the goods or services offered or make any false statement to get you to pay, no matter what method of payment you use; &
  5. Seek payment for credit repair, recovery room or advance fee loan/credit services until these services have been delivered.

Exceptions to the Rule:

  1. Calls placed by consumers in response to general media advertising if the advertising does not relate to: investment opportunities; credit repair services; recovery services; or loans or other extensions of credit, the granting of which is represented to be guaranteed or highly likely;
  2. Calls placed by consumers in response to direct mail advertising if the advertising discloses all the material information required by the Rule;
  3. Catalog sales;
  4. Calls initiated by the consumer that are not made in response to any solicitation;
  5. Calls involving sales that are not completed, and payment (or authorization of payment) is not required, until after a face-to-face sales presentation;
  6. Business-to-business calls (unless nondurable office or cleaning supplies are being offered);
  7. Sales of pay-per-call services and sales of franchises.

The Amended Telemarketing Sales Rule also includes provisions related to predictive auto dialers and advance consent marketing. For further information, see www.ftc.gov. One last thing: It’s important to keep in mind that the Telemarketing Sales Rule is complex. Therefore, it’s usually in your best interest to contact legal counsel in the event that you have questions or may have fallen out of compliance.

2.8    Email Spam or Abuse Reporting by Client’s customers. In order to remain compliant with the CAN-SPAM Act, if Client receives two (2) or more spam or abuse complaints from their customers for every ten-thousand (10,000) contacts via email, Stealth Data reserves the right to:

      1. Upon discovery, configure and deploy Client on their own dedicated IP address without notice at an additional cost to Client one-hundred ($100) per month. However, Stealth Data is not required to setup Client a dedicated IP address and reserves the exclusive right to terminate our email service entirely to Client, even if said Client has a dedicated IP address;
      2. Terminate Client’s ability to utilize the Stealth Data email automation system; or
      3. Remove and terminate Client’s subscription to the entire Stealth Data platform immediately.

2.9.    Monthly Allowed Client Emails Sends Correspond with Client’s Subscription Plan. The number of unique visitors promised in Client’s Subscription Plan corresponds with the number of emails that the Client is entitled to send out each and every month.

PRICING AND PAYMENT.

3.1.    Pricing. Client agrees to pay ID for its Services in accordance with the pricing set forth in each applicable Schedule. Unless otherwise specified, all fees are inclusive of applicable taxes.

3.2.   Payment. Access to the Service is provided to you after we have received the applicable subscription fee, calculated on the basis of the Subscription Plan, Pricing Option and Number of Unique Identified Website Visitors you have chosen (pre-paid subscription).

You may pay for the Service using a credit card. You hereby agree to pay fees in the form of a recurring payment, under which the subscription fee is processed automatically based on the Subscription Plan, Pricing Option and Number of Unique Identified Website Visitors you have chosen. The recurring payment is initiated on the first day after the expiration date of the previous subscription (“recurring payment date”). If the recurring is unsuccessful at that point, we will retry to complete the payment transaction in the following days and, if the completion of the transaction is unsuccessful, we will assume that the Service is terminated. In the event that the credit card you provided us expires or any credit card information changes or becomes out of date, in order to procure continuity and avoid Service interruptions, you hereby authorize us to obtain or determine updated or replacement information, in particular expiration dates or credit card number, and to continue billing on the same terms using the updated or replacement information. We are not responsible for any fees charged by payment services providers.

We will issue an invoice for the Service within 30 days of receipt of each payment. You expressly agree to receive invoices from us by electronic means of communication. For settlement purposes it is assumed that a month has 30 days, a year has 360 days and two years have 720 days.

PROPRIETARY RIGHTS.

4.1.   ID Intellectual Property. This Agreement does not convey to Client any ownership rights, licensed rights, or other rights of any sort to ID’s rights, title and interest (including without limitation all intellectual property rights) in any data, technology, infrastructure, methods or know-how in providing its Services.

4.2.   Client Intellectual Property. Client represents that it has legally obtained the right to distribute Client Data to ID for the uses permitted in this Agreement and warrants that in doing so, ID Client owns and retains all right, title and interest (including without limitation all intellectual property rights) in and to Client Data and any updates or modifications to the foregoing, unless expressly provided for otherwise in a Schedule.

4.3.   Other Intellectual Property Rights. Nothing in this Agreement shall affect or modify either Party’s ownership rights in any pre-existing or future works, trademarks, copyrights or technologies developed or created by either Party.

STEALTH DATA/CLIENT RESPONSIBILITIES.

5.1.   Prohibited Uses of Services. Client shall not use ID’s Services to send or facilitate:

  • advertising for adult entertainment, i.e., pornography;
  • any advertisements, material, call, or emails not compliant with all applicable federal and state laws/regulations regarding consumer protection, data privacy/security, and sales/marketing restrictions;
  • advertising for illegal gambling;
  • advertising for any other product or service that is illegal in the country or locality in which it is sent or received, including without limitation to discriminate on the basis of race, gender, religion, or sexual orientation;
  • determining employment eligibility;
  • determining credit eligibility;
  • determining health care eligibility; or
  • determining insurance eligibility underwriting and pricing. Client further agrees that it shall not attempt to re–identify or otherwise reverse engineer the data it receives in connection with the implementation of this Agreement, whether to derive personal information or otherwise from information provided by ID.

5.2.    Data Security. Where ID delivers data to Client, Client shall protect any data and information provided by ID from unauthorized access, loss and misuse, such efforts including, but not limited to, the encryption of stored information behind a secured server network and organizational, contractual, technological and managerial safeguards. Client shall promptly (and in all cases within 24 hours) notify ID of any access or acquisition of ID’s data or information, and to cooperate in any investigation concerning such access of acquisition.

CONFIDENTIALITY.

6.1.   Confidential Information. Pursuant to this Agreement, the Parties may disclose to one another certain confidential or proprietary information (“Confidential Information”), including, without limitation: (i) customer data, email/mailing lists, business and marketing plans/strategies, pricing information, capabilities, software details/specifications, presentations, login credentials, and performance reports. Confidential Information shall also include the terms of service of this Agreement and any other materials marked or reasonably considered “confidential” or “proprietary.”

6.2.  Obligations. Each Party receiving Confidential Information shall:

  1. hold the disclosing Party’s Confidential Information in strict confidence;
  2. except as required by Law, not disclose such Confidential Information to any third party or use it for any purpose other than as specifically authorized by the disclosing Party and/or to effect the purpose of this Agreement; and
  3. employ all commercially reasonable steps to protect the disclosing Party‘s Confidential Information from unauthorized or inadvertent disclosure, including those steps that it takes to protect its own proprietary information.

Client acknowledges that the sharing of certain Confidential Information with third parties is necessary and will occur in order to provide the Services contemplated herein. Any Party discovering unauthorized disclosure of Confidential Information will, as soon as reasonably practical, report to the other Party such unauthorized disclosure or access and take all commercially reasonable measures to prevent any further unauthorized disclosure or access.

6.3.   Injunctive Relief. The Parties acknowledge that a Party‘s breach of Section 6.1 and 6.2 may result in irreparable harm and significant injury to the other Party and its customers, and/or partners that may be difficult to ascertain.

6.4.    Without limitation, the non–breaching Party will have the right to seek, in addition to any other remedies that may be available, an immediate injunction in the event of any breach of Section 6.1 or 6.2 without posting bond.

WARRANTIES.

7.1   Each Party represents and warrants to the other that:

  1. it has full power and authority to enter into and perform the Agreement;
  2. the execution and delivery of the Agreement have been duly authorized;
  3. the Agreement does not violate any law, statute, or regulation and does not breach any other agreement or covenant to which it is a party or is bound;
  4. its Confidential Information has been legally obtained;
  5. the provision of its Confidential Information to the other does not violate any laws or agreements with third parties;
  6. Client is authorized to perform under this Agreement; and
  7. it will otherwise comply with all applicable laws, rules, regulations, guidelines and principles.

EXCEPT AS STATED IN THIS SECTION 7 OR IN A SCHEDULE, THERE ARE NO OTHER WARRANTIES HEREUNDER, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR, WITH RESPECT TO DATA PRODUCTS, ACCURACY, COMPLETENESS, OR CURRENTNESS.

LIMITATION OF LIABILITY.

8.1   NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF INCOME, REVENUE, PROFITS, OR GOODWILL, BUT NOT INCLUDING ANY FEES PAYABLE HEREUNDER), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

8.2   ID’S AGGREGATE LIABILITY TO CLIENT FOR DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THIS AGREEMENT OR ANY APPLICABLE AMENDMENT SHALL BE LIMITED

8.3   TO THE AMOUNT PAID TO VDI BY CLIENT PURSUANT TO THE TERMS OF THIS AGREEMENT.

8.4   These limitations shall not apply to a Party’s indemnification obligations and other damages resulting from a Party’s gross negligence or intentional misconduct. For purposes of this Agreement, “gross negligence” shall mean the intentional failure to perform a manifest duty in reckless disregard of the consequences. Each party shall have a duty to mitigate damages for which the other party is responsible.

INDEMNIFICATION.

9.1   Each Party (“Indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party, including its parent, subsidiaries, affiliates and each of their respective officers, directors, agents, employees, members, Clients and its Representatives (“Indemnified Party”) from and against any third­ party claim, action, or liability (including damages, costs, expenses, and reasonable attorneys’ fees) that may arise against the Indemnified Party as the result of:

  1. injuries or property damage caused by the Indemnifying Party’s representatives;
  2. the Indemnifying Party’s failure to comply with all applicable laws, rules, guidelines, principles and regulations; and
  3. the misappropriation or misuse of the Indemnified Party’s Confidential Information by the Indemnifying Party.

MISCELLANEOUS.

10.1.  Applicable Law; Jurisdiction; Venue; and Attorney’s Fees. This Agreement is governed by Missouri law without regard to its choice of law rules. Any dispute between the Parties shall be resolved exclusively in the state or federal courts located in Kansas City, Missouri, to which jurisdiction both parties irrevocably submit. The prevailing party in any action arising out of or relating to this Agreement shall be entitled to reimbursement by the non-prevailing party of its reasonable attorney’s fees and costs through appeal.

10.2.   Conflicting Provisions. In the event of conflicting provisions between this Agreement and any Schedule, the terms of this Agreement shall control and resolve the conflict, unless specifically stated otherwise in the Schedule.

10.3.   Modification, Severance, and Waiver. The Agreement and any Schedule may only be amended in writing. If any one or more of the provisions of this Agreement or a Schedule shall for any reason be held to be invalid or unenforceable, the same shall not affect any of the other portions thereof. Failure or delay by either Party in exercising any right hereunder shall not be a waiver of such right.

10.4.   Assignment. Neither Party may assign its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed.

10.5.   No Third Party Beneficiaries. Except as expressly set forth herein, there are no intended third party beneficiaries to this Agreement.

10.6.   Force Majeure. If performance of any obligation hereunder is prevented or interfered with by reason of fire, casualty or accident, strike or labor disputes, war or violence, law, proclamation, regulation, or requirement of a government agency, or another act or condition beyond the reasonable control of a Party, that Party upon giving prompt notice to the other Party shall be excused from such performance during such occurrence.

10.7.   Notices. Except for communications made in the normal course of the Services, any notice or other communication required hereunder shall be made in writing and sent to the address first set forth above with respect to the recipient of such notice by certified United States mail, return receipt requested, or by a nationwide courier delivery service.

10.8.   Survival of Terms. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including all provisions with respect to confidentiality, limitation on liabilities, and indemnification, shall survive any termination or expiration of this Agreement and continue in full force and effect.

10.9.   Counterparts. This Agreement and any Schedule may be executed in any number of counterparts, including via the exchange of .pdf or facsimile copies or by electronic signature authentication program, each of which may be executed by less than all of the parties hereto and shall be enforceable with respect to the parties actually executing such counterparts.

10.10.   Entire Agreement. The Agreement, together with the Schedules, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the Parties. No terms or conditions of either Party’s invoice, purchase order or other administrative document (unless signed by authorized representatives of both Parties and expressly referencing that it amends this Agreement) will be effective as a modification of the terms and conditions of this Agreement or a Schedule, regardless of the other Party’s failure to object to such form.

PRIVACY POLICY:

11.1   Use of the Services is also governed by our Privacy Policy, the provisions of which are adopted herein by reference so when we refer to this Agreement we also refer to the Privacy Policy.

REFUND POLICY:

12.1   Use of the Services is also governed by our Refund Policy, the provisions of which are adopted herein by reference so when we refer to this Agreement we also refer to the Refund Policy.

CONTACT INFORMATION:

13.1   We are always available to be reached by e-mail at [email protected].