Tatango Master Service Agreement

Revised July 18, 2019

We have made updates to our Master Service Agreement.  These updated terms are effective on July 18, 2019 for all customers agreeing to this Master Service Agreement for the first time, and September 1, 2019, for all customers who agreed to a version of our terms before July 18, 2019.

Please be aware that, by continuing to use our services after the effective date applicable to you, you are accepting these updated terms.

If you want to review our previous Master Service Agreement, then please click here.

 

IMPORTANT – ­READ CAREFULLY: This Master Service Agreement (this “MSA”) is binding and enforceable between you and Tatango, Inc., a Washington Corporation having its principal place of business at 2211 Elliott Avenue, Suite 200, Seattle, Washington 98121, for itself and its affiliates (“Tatango”). “You” and “Customer” refers to the entity or organization using the Platform and/or Services described in this MSA. By signing an order form to use the Platform and/or to receive Services, and by continuing to use the Platform, you are accepting and agreeing to be bound by this MSA. Further, by continuing to use the Platform after receiving notice of any update to the MSA, you agree to be bound by those new or modified provisions of the MSA.  You shall inform all employees, contractors, and agents that use the Platform on your behalf of the terms and conditions of this MSA and you are responsible for any authorized user’s actions.

 

1. DEFINITIONS

“Affiliate” shall mean, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” (or variants of it) shall mean the ability (whether directly or indirectly) to direct the affairs of another by means of ownership, contract, or otherwise.

“Applicable Law” shall mean any international, federal, state, or local statute, regulation, or ordinance, expressly including without limitation those relating to individual privacy or the distribution of mobile messages.

“Common Short Codes” or “CSCs” are five or six digit codes that can be used to address mobile messages. The CSC system is administered by the CTIA.

“Confidential Information” shall have the meaning set forth in Section 6.

“Credit Balance” shall mean the funds you have in your Tatango account that are available for new transaction and are not subject to pending transactions.

“Data” shall mean all data and other information stored by Customer on the Platform.

“Malicious Code” shall mean viruses, worms, time bombs, Trojan horses and other harmful or destructive code, files, scripts, agents, or programs.

Monthly Uptime Percentage" shall mean the difference between 100% and the percentage of Unavailable Time for the applicable month.

“Order Form” shall mean the ordering documents for Customer’s purchases of the Platform or Services from Tatango that are executed by the parties from time to time, which shall be governed by the terms of this MSA.

“Platform” shall mean Tatango’s mobile messaging platform.

“Service Credit” means a dollar credit, equal to 10% of your usage fees in the month in which the Unavailable Time (as defined below) occurred, that Tatango will credit back to an eligible Tatango account.

“Services” shall mean the implementation, integration, consulting, and/or similar services described in a Statement of Work and provided by Tatango employees and subcontractors in support of Customer’s use of the Platform.

“Start Date” shall mean the date on which Tatango shall make the Platform available to the Customer as set forth in an applicable Order Form.

“Statement of Work” or “SOW” shall mean the document describing the scope and schedule of Services, if any, to be performed by Tatango for Customer. An SOW may be a stand­alone document or incorporated into an Order Form and shall be governed by the terms of this MSA.

“Subscription Term” shall mean the subscription period set forth on an applicable Order Form.

“Unavailable Time” means the Platform is not available for use, as measured in continuous 5-minute increments. Unavailable Time does not include any unavailability resulting from any Exclusion (as defined below).

 

2. CHANGES TO THESE TERMS

Tatango may revise the terms of this MSA from time to time.  If we do, the revised terms will supersede prior revisions.  Unless we say otherwise, revisions will be effective upon the effective date indicated at the top of this MSA.  We will provide you with 30 days advance notice of any material revisions.  This notice will be provided in your Tatango account portal or via an email to the email address associated with your Tatango account.  We encourage you to check the effective date of this MSA whenever you visit Tatango’s website or log into your Tatango account.  Your continued access or use of the Platform or Services constitutes your acceptance of any revisions.  If you do not agree to the revisions, you should stop using the Platform and Services.

 

3. ORDERS BY CUSTOMER AFFILIATES.

This MSA enables Customer, on behalf of itself or one or more of its Affiliates, and/or any of its Affiliates, on their own behalf, to execute Order Forms or SOWs with Tatango under the terms hereof. Each Order Form and/or SOW executed by a Customer Affiliate constitutes an independent contract between Tatango and the Customer Affiliate executing the Order Form and/or SOW (a “Participating Affiliate”). Customer agrees that execution of an Order Form or SOW by a Participating Affiliate shall represent such Participating Affiliate’s independent acceptance of, and agreement to be bound by, the terms and conditions of this MSA.

 

4. USE OF THE PLATFORM

4.1 Tatango Responsibilities. Tatango shall:

(a) provide reasonable assistance to you in receiving necessary third-party approvals for your mobile messaging campaign, and make the Platform available to you for your use in sending informational or marketing mobile messages;

(b) provide standard support regarding your use of the Platform at no additional charge and advise you in advance when additional fees will be assessed for non-standard support services;

(c) use commercially reasonable efforts to make the Platform available twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtime (for which Tatango shall make good faith efforts to give at least twenty-four (24) hours advanced notice); or (ii) any unavailability caused by a Force Majeure Event, as defined in Section 13.2.

(d) ensure that the Platform is designed to handle the opt-out keywords STOP, END, QUIT, UNSUBSCRIBE, and CANCEL.

4.2 Customer Responsibilities. Customer is responsible for all activities that occur in Customer’s account(s). Customer shall:

(a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Data;

(b) prevent unauthorized access to, or use of, the Platform, and notify Tatango promptly of any such unauthorized access or use of which Customer or any of its Affiliates become aware;

(c) maintain the security of its users’ account names and passwords by ensuring that a user login is only used by one person (a single login shared by multiple persons is not permitted) and promptly notifying Tatango of any actual or potential breach of security that may result in the transmission of unauthorized mobile messages or the theft of personally-identifiable information;

(d) comply with Applicable Law with respect to Data and Data privacy when using the Platform;

(e) comply with all relevant CTIA and carrier-specific rules imposed on the sending of informational and marketing mobile messages;

(f) comply with the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations, 47 C.F.R. § 64.1200 et seq. and 16 C.F.R. § 310, including all applicable requirements regarding obtaining prior express consent before sending mobile messages using the Platform;

(g) maintain terms and conditions and a privacy policy for end users subscribing to receive your mobile messages that include at least the following provisions:

(i) an express representation and warranty that the end user is supplying his or her own phone number, and not someone else’s, to Customer, and that the end user agrees to provide Customer with notice if he or she is no longer the primary user of that number;

(ii) a dispute resolution and/or jurisdiction provision expressly providing that the end user waives the right to any class action litigation and/or jury trials and expressly providing that the end user agrees to resolve all disputes via confidential arbitration;

(iii) an opt-out provision expressly providing that the end user agrees to opt-out of receiving any further mobile messages on the Tatango Platform via one or more explicitly designated methods, which, at a minimum, shall include the following: (a) any opt-out keywords that are universally recognized, including, but not limited to, STOP, UNSUBSCRIBE, CANCEL, END, or QUIT; and (b) one or more alternative opt-out methods, including, but not limited to, via a web-based portal, telephone number, and/or email address established by Customer for the purpose of opting-out end users.  The opt-out provision must also expressly stipulate that any opt-out method not expressly provided in Customer’s opt-out provision is unreasonable;

(iv) a provision expressly providing that your platform provider is a third-party beneficiary of Customer’s arbitration, class action, and jury waiver provisions; and

(v) an age restriction provision expressly providing that the end user may not receive mobile messages if the end user is under thirteen (13) years of age and that, if the end user is between the ages of thirteen (13) and eighteen (18) years of age, the end user must have his or her parent’s or legal guardian’s permission to register to receive mobile messages.

4.3 Use Guidelines. Customer shall not, and shall not permit any third party to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the Platform available to any third party except as permitted by this MSA; (b) send via, upload to, or store within the Platform any Malicious Code; (c) interfere with or disrupt the integrity or performance of the Platform or any parties’ or third parties’ data contained therein; or (d) attempt to gain unauthorized access to the Platform or its related systems or networks.

4.4. Service Commitment.  Tatango will make the Platform available 99.95% of the time each month. If Tatango’s Monthly Uptime Percentage is below 99.95% in a given calendar month, then you will be eligible to receive a Service Credit as described in Section 4.5 below. Measurement of the Monthly Uptime Percentage shall not include time when the platform is unavailable as a result of one of the Exclusions defined in Section 4.6 below.

4.5 Credit Request and Payment Procedures.  To receive a Service Credit, you must submit a request to Tatango as described in this Section 4.5. You must make the submission to Tatango Customer Support within thirty (30) days from the time you become eligible to receive the applicable Service Credit. Such submission must include: (a) “SLA Claim” as the subject of the ticket; (b) the dates and times of Unavailable Time for which a credit is being claimed; and (c) any documentation of the applicable outage. Each Service Credit will be applied to future amounts payable by you in connection with the applicable Tatango product. No refunds or cash value will be given. Service Credits may not be transferred or applied to any other Tatango account.  Providing Service Credit shall be Tatango’s sole and entire liability to you and your sole remedy with respect to Tatango’s failure to meet the Monthly Uptime Percentage.

Monthly Uptime Percentage Service Credit
<99.95% 10%

4.6 Exclusions.  Notwithstanding anything to the contrary, no Unavailable Time shall be deemed to have occurred with respect to any unavailability of the Platform that: (a) is caused by factors outside of Tatango’s reasonable control, including, without limitation, any Force Majeure Event, telecommunications provider-related problems or issues, or Internet access or related problems occurring beyond the point in the network where Tatango maintains access and control over the Platform; (b) result from any actions or inactions of you or any third party (other than Tatango’s agents and subcontractors); (c) result from any Customer application(s), equipment, software, or other technology and/or third party equipment, software, or other technology (except for equipment within Tatango’s direct control); (d) occurs during Tatango’s scheduled maintenance, for which Tatango will provide at least twenty-four (24) hours prior notice; or (e) relate to alpha, beta, or not otherwise generally available Tatango features or products (collectively, the “Exclusions”).

 

5. FEES AND PAYMENT

5.1 Subscription Fees. You agree to pay the Subscription Fees in accordance with the rates listed on your Order Form.  The Subscription Fees include one-time account setup and training fees as well as monthly recurring fees associated with obtaining necessary third-party resources, standard support services, and a license to use the Platform.  The monthly recurring Subscription Fees will remain fixed during the Subscription Term and subject to the rate listed on your Order Form unless you subscribe to additional products.

5.2 Variable Fees. Variable Fees change based upon the volume and type of mobile messages sent and received.  These include Tatango messaging credits, as well as carrier surcharges that occur during each calendar month.  To view the carrier surcharges that each carrier currently imposes, please visit http://help.tatango.com/en/articles/3097994-carrier-fees.  All variable fees will be paid through prepayments made by you on your Account.  You will not earn interest on any Credit Balance held by Tatango.  You shall not be entitled to a refund of an unused Credit Balance under any circumstances.

You are responsible for either (a) enabling auto-recharge on your Tatango account(s) or (b) ensuring that your Tatango account has a sufficient positive balance to cover the undisputed Variable Fees due.  If, for any reason, you have a negative balance on your Tatango account, then we reserve the right to suspend the Services.  This information is also available to you on your Billing Page in your Tatango account.

5.5 Payment Information. You will keep your contact information, billing information, and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your Tatango account. All payment obligations are non­cancelable and all amounts paid are non­refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.

5.6 Overdue Payments. Customer’s failure to timely pay any fees and expenses that are not the subject of a good faith dispute of which Customer notifies Tatango in a detailed writing (“Undisputed Fees”) shall constitute a material breach of the Agreement. If any amounts for which Customer is responsible are overdue, then Tatango may provide Customer with written notice of the same (a “Late Notice”). If Customer fails to pay all overdue amounts within ten (10) business days after Customer’s receipt of the Late Notice, then Tatango may, in addition to any of its other rights or remedies, suspend access to the Platform and/or its provision of Services until all overdue amounts are paid in full. If Customer fails to pay all overdue amounts within thirty (30) days after Customer’s receipt of the Late Notice, then Tatango: (a) may terminate the Agreement, including all outstanding Order Forms and SOWs; and (b) shall be entitled to recover from Customer (i) interest on all overdue amounts at the lower of a rate of 1.5% per month or the maximum rate permitted by law (“Interest”) and (ii) all fees and costs (including reasonable attorneys’ fees, court costs, and collection agency fees) incurred in seeking collection of such overdue amounts (“Collection Costs”).

5.7 Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Services, unless Customer provides Tatango with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

6. PROPRIETARY RIGHTS

6.1 Restrictions. Customer shall not, and shall not permit any third party to: (a) modify, copy, or create derivative works based on the Platform; (b) frame or mirror any content forming part of the Platform, other than on Customer’s own intranets or otherwise for its own internal business purposes; (c) reverse engineer, de­compile, disassemble, or otherwise attempt to discover the source code of the Platform; or (d) access the Platform in order to (i) build a competitive product or service or (ii) copy any ideas, features, functions, or graphics of the Platform.

6.2 Tatango’s Intellectual Property. Subject to the limited rights expressly granted hereunder, Tatango reserves all rights, title, and interest in and to the Platform and the Services, including all related patent, copyright, trademark, and other intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. In addition, Tatango shall own all rights, title, and interest, including all intellectual property rights, in and to any improvements to the Platform, including without limitation those relating to any new Tatango, Inc. programs, upgrades, modifications, refinements, or enhancements (collectively, “Improvements”) developed by or for Tatango in connection with providing the Platform to Customer, even when such Improvements result from Customer’s request. To the extent, if any, that ownership in such Improvements does not automatically vest in Tatango by virtue of the Agreement or otherwise, Customer hereby transfers and assigns to Tatango all rights, title, and interest that Customer may have in and to such Improvements.

6.3 Customer’s Intellectual Property. As between Tatango and Customer, Customer exclusively owns all rights, title, and interest in and to all Data. In addition, all content created by, or by Tatango for, Customer during performance of the Services (the “Work Product”), shall be the sole and exclusive property of Customer. Tatango agrees that it will not use the same Work Product created for Customer under this Agreement for another Tatango customer; provided, however, that nothing in the preceding sentence shall be interpreted to preclude Tatango from using the same functionality, format, code, design, concepts, workflows, integrations, or other ideas represented in the Work Product. For all other deliverables described in a Statement of Work that are not deemed Work Product, Tatango hereby grants Customer a worldwide, non­exclusive, non­transferable, royalty-free license to use such other deliverables during an applicable Subscription Term.

6.4 Publicity; Trademarks. Neither party may issue press releases or any other public announcement of any kind relating to the Agreement without the other party’s prior written consent. Tatango may use the Customer’s names, trademarks, and other logos (collectively the “Marks”) in connection with its authorized provision of the Platform and solely to the extent Customer has uploaded or incorporated such Marks into the form of communication to be delivered, and has initiated the distribution of the same, through its use of the Platform. Except as set forth herein, neither party may use the Marks of the other party without its prior written consent.

 

7. CONFIDENTIALITY

7.1 Definition of Confidential Information. “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that: (a) if disclosed orally is designated as confidential at the time of disclosure; (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”; or (c) reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include, without limitation, the terms and conditions of the Agreement (including pricing and other terms reflected in all Order Forms and SOWs), the Data, business, and marketing plans, technology and technical information, financial information, business strategies, practices, procedures, methodologies, know­how, product designs, and business processes. Confidential Information (except for Data) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party by the Receiving Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without use of the Confidential Information of the Disclosing Party; or (iv) is rightfully received from a third party not known by the Receiving Party to be subject to an obligation owed to the Disclosing Party.

7.2 Confidentiality. The Receiving Party shall use practices consistent with generally accepted industry standards to protect the security of Confidential Information it receives from the Disclosing Party and to prevent the disclosure or use of any such Confidential Information for any purpose other than to fulfill the purpose of the Agreement. Notwithstanding the foregoing: (a) the Receiving Party may disclose such Confidential Information to its employees and contractors, as well as those of its Affiliates, who have a need to know such information for purposes relating to the Agreement, and hereby certifies that prior to disclosure it will cause such employees and contractors to agree to be bound by terms and conditions of confidentiality substantially similar to those in this MSA; and (b) each party may disclose the existence and terms of the Agreement: (i) in confidence, to a potential purchaser of or successor to any portion of such party’s business; (ii) to its attorneys, accountants, and other advisors having a need to know the same; and (iii) if necessary to enforce its rights under the Agreement, provided that the Receiving Party uses reasonable efforts to limit such disclosure and to obtain confidential treatment of, or a protective order governing, the terms of the Agreement.

7.3 Compelled Disclosure. If the Receiving Party is requested to, or subject to a legal obligation to, disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with notice of the same as early as reasonably practical (if legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

7.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek immediate injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate. Customer acknowledges that Tatango is unable to guarantee absolute security of Data or Confidential Information and that Tatango has no liability to Customer for any unauthorized access or use of such Data or Information by a third party, or the corruption, deletion, destruction, or loss of any such Data or Information, unless Tatango’s security practices are below generally accepted industry standards.

7.5 Survival. Notwithstanding the expiration or termination of this MSA for any reason, the obligations of confidentiality and non­use set forth in this Section shall extend for a period of five (5) years after such expiration or termination, except with respect to either party’s trade secrets or to audit reports and findings belonging to Tatango’s third party data centers, all of which shall be held in confidence indefinitely.

 

8. WARRANTIES & DISCLAIMERS

8.1 Mutual Warranties. Each party represents and warrants that: (a) it has the legal power to enter into the Agreement; (b) the signatory hereto has the authority to bind the applicable organization; and (c) when executed and delivered, the Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with its terms.

8.2 Tatango Warranties. Tatango represents and warrants that: (a) the functionality of the Platform will not be materially decreased during the Term; (b) it will utilize software and other security means designed to prevent the Platform from containing or transmitting Malicious Code; (c) it owns or otherwise has sufficient rights in the Platform to grant to Customer the rights to use the Platform granted herein; and (d) the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards.

8.3 Customer Warranties. Customer represents and warrants that: (a) the Data does not and will not infringe on any copyright, patent, trade secret, or other proprietary right held by any third party and was not and will not be gathered or used by Customer in a manner that violates Applicable Law; (b) it will not use the Platform in a manner that violates Applicable Law; and (c) it will not upload to or send through the Platform any social security numbers, passport numbers, financial account numbers, credit card information (as contemplated by the Payment Card Industry Data Security Standards), or any health information (as protected by the Health Insurance Portability and Accountability Act or the Health Information Technology for Economic and Clinical Health Act).

8.4 Disclaimer. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, TATANGO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES AND PLATFORM, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TATANGO DOES NOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY RECEIVING THE SERVICES OR USING THE PLATFORM. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE PLATFORM, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY TATANGO.

8.5 TCPA/CTIA Compliance Disclaimer.  As an experienced leader in the mobile messaging industry, Tatango prioritize compliance with laws, regulations, and voluntary guidelines.  During the course of your contract, Tatango may provide template messages, disclosures, model Mobile Messaging Terms and Conditions/Privacy Policy, as well as ongoing educational information in order to help you understand applicable CTIA and wireless-carrier-message-content requirements and mandated disclosures, as well as federal and state laws that may be applicable to your use of Tatango’s services. These materials are offered for informational and educational purposes only, and neither Tatango, nor any outside counsel it may work with, are providing you legal advice.  By providing these informational and educational materials, no party is creating an attorney-client relationship.  You expressly represent and warranty that you will take no action in reliance on the information provided by Tatango, understand and agree that such services are expressly excluded from the scope of Tatango’s indemnification obligations, and that neither Tatango nor its agents shall have any liability with respect to actions taken or not taken based on these materials.  Tatango encourages you to seek the advice of an attorney to ensure that your mobile messaging campaign is fully compliant with all applicable federal and state laws and regulations because you are solely responsible for the messages you send through Tatango’s services.

 

9. INDEMNIFICATION

Customer will defend, indemnify, and hold Tatango harmless against any actual or threatened claim, loss, liability, proceeding, third-party discovery demand, governmental investigation, or enforcement action arising out of or relating to Customer’s activities under this MSA or Customer’s acts or omissions in connection with Customer’s use of the Platform, including, but not limited to, any claim that arises under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations, 47 C.F.R. § 64.1200 et seq., and 16 C.F.R. § 310 (“Claim”). Tatango and its affiliates will cooperate as fully as reasonably required in the defense of any Claim, at Customer’s expense. Tatango reserves the right, at Customer’s expense, to retain separate counsel for itself in connection with any Claim or, if Customer has not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which Customer is a named party and that is otherwise subject to indemnification under this Section 9 (Indemnification). Customer will pay all costs, reasonable attorneys’ fees, and any settlement amounts or damages awarded against Tatango in connection with any Claim, including damages that are awarded under a theory of strict liability. Customer will also be liable to Tatango for any costs and attorneys’ fees it incurs to successfully establish or enforce its right to indemnification under this Section.

 

10. LIABILITY LIMITATIONS

10.1 LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AGGREGATE SUBSCRIPTION FEES PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL CUSTOMER’S LIABILITY TO TATANGO BE LESS THAN THE SUM OF ALL OUTSTANDING FEES AND EXPENSES OWED BY CUSTOMER OR ANY CUSTOMER AFFILIATE PLUS ALL INTEREST AND COLLECTION COSTS ASSOCIATED THEREWITH. NOTWITHSTANDING THE FOREGOING, CUSTOMER’S EXCLUSIVE REMEDY, AND TATANGO’S ENTIRE LIABILITY, FOR ANY BREACH OF THE WARRANTIES IN SECTION 7.2(D) IS LIMITED TO RE­PERFORMANCE OF THE SERVICES. IF TATANGO IS UNABLE TO RE­PERFORM THE SERVICES AS WARRANTED WITHIN THIRTY (30) DAYS OF RECEIPT OF WRITTEN NOTICE OF BREACH, CUSTOMER SHALL BE ENTITLED TO RECOVER THE SUBSCRIPTION FEES PAID TO TATANGO FOR THE DEFICIENT SERVICES.10.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES OF ANY KIND OR NATURE HOWEVER CAUSED (INCLUDING BUT NOT LIMITED TO LOST PROFITS AND LOSS OF GOODWILL), WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3 NO LIABILITY FOR CARRIER-RELATED ISSUES.  IN NO EVENT SHALL TATANGO HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES OF ANY KIND OR NATURE THAT ARISE OUT OF ACTION OR INACTION ON THE PART OF ANY TELECOMMUNICATIONS CARRIER, INCLUDING, BUT NOT LIMITED TO, A CARRIER’S FAILURE OR REFUSAL TO DELIVER YOUR MOBILE MESSAGES.

 

11. DISPUTE RESOLUTION

11.1 Exclusive Dispute Resolution Mechanism. The parties shall resolve any and all disputes, controversies, or claims arising out of or relating to this MSA, or the breach, termination, or invalidity hereof (each, a “Dispute”), under the provisions of Sections 11.1 through 11.4.  The procedures set forth in Sections 11.1 through 11.4 shall be the exclusive mechanism for resolving any Dispute that may arise from time to time, and Sections 11.1 through 11.4, are express conditions precedent to binding arbitration of the Dispute.

11.2 Negotiations.  A party shall send written notice to the other party of any Dispute (“Dispute Notice”).  The parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves, including at least one negotiation session attended by each party’s Chief Operations Officer, his/her designee, or a party’s representative with sufficient authority to negotiate and settle the Dispute on behalf of the corresponding party.  If the parties cannot resolve any Dispute via the negotiation process for any reason, including, but not limited to, the failure of either party to agree to any settlement, within thirty (30) calendar days after the negotiations under this Section started, either Party may commence binding arbitration in accordance with the provisions of the following Section 11.3.

11.3 Arbitration. If the negotiations mentioned in the previous Section 11.2 do not resolve the Dispute, the parties agree to submit the Dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect.  Except as otherwise provided herein, the arbitrator shall apply the internal substantive laws of the State of Washington, without regard to its conflict of law rules.  The venue of any such arbitration shall be in Pierce County, Washington.  Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five (5) years’ experience in that capacity and who has knowledge of and experience with the subject matter of the Dispute.  If the parties do not agree on an arbitrator within thirty (30) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement.  In the event of a dispute, arbitrator shall decide the enforceability and interpretation of these Sections 11.1 through 11.4 in accordance with the Federal Arbitration Act (“FAA”).  The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court.  The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in Section 10 of the FAA.  The prevailing party (as adjudged by the arbitrator) shall be entitled to an award of all costs and expenses incurred in connection with such proceeding, including but not limited to reasonable attorneys’ fees and expert witness fees. The parties agree to arbitrate solely on an individual basis, and that these Sections 11.1 through 11.4, nor any other provision of this MSA, permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding.  Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration, or the papers, documents, or evidence related thereto, without the prior written consent of both parties, unless to protect or pursue a legal right.  If for any reason a Dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial.

11.4 If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

12. SUBSCRIPTION TERM AND RENEWAL

12.1 Term of MSA. This MSA commences on the Effective Date and continues until the termination or expiration of all Subscription Terms specified in all Order Forms and/or of the terms specified in all SOWs (the “Subscription Term”).

12.2 Renewal Subscription Term. Unless one of us gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for the shorter of the Initial Subscription Term or one (1) year. Written notice of non­renewal must be provided five (5) business days in advance of the end of the Subscription Term. The Renewal Subscription Term will be on the current terms and conditions of this Agreement, and subject to the renewal pricing provided for in your Order Form. If your Order Form does not specify a renewal pricing rate, please email sales@tatango.com. Should you decide not to renew, you may send the notice of non­renewal by email to billing@tatango.com.

12.3 End of Subscription Term. The Subscription Term will end on the expiration date and cannot be canceled before its expiration.

 

13. GENERAL PROVISIONS

13.1 Relationship of the Parties; Third Party Beneficiaries. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Unless otherwise provided in an Addendum, there are no third-party beneficiaries to the Agreement.

13.2 Force Majeure. Neither party is responsible for delays or failures to perform its responsibilities under the Agreement due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of government, flood, fire, earthquakes, tornadoes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems, Malicious Code, denial of service attacks, and inability to obtain energy (each a “Force Majeure Event”); provided, however, that it will resume performance as soon as reasonably practicable.

13.3 Notices. Any notice, request, approval or written consent required under the Agreement shall be given in writing to the receiving party by certified mail or by email.  If sent via certified mail, such writing shall be addressed to Tatango at the address set forth on the first page hereof or, if to Customer, to such address as Customer may furnish to Tatango on an Order Form. If sent via email, notices to Tatango shall be sent to legal@tatango.com. Notices to you via email will be sent to the e-mail address(es) on record in your user profile.  You must keep all of your account information current.

13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under the Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

13.5 Severability. Any provision of the Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without (a) invalidating the remaining provisions hereof, if the essential provisions of the Agreement for each party remain valid, binding, and enforceable; or (b) affecting the validity or enforceability of such provisions in any other jurisdiction.

13.6 Assignment. Neither party may assign the Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld, conditioned, or delayed). Notwithstanding the foregoing, either party may assign the Agreement in its entirety (including all Order Forms and SOWs), without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to affect an assignment in breach of this Section shall be void. Subject to the foregoing, the Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

13.7 Entire Agreement. The Agreement, as defined herein, constitutes the entire agreement between the parties with respect to the subject matter set forth in the Order Forms and SOWs executed by the parties during the Term, and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. To the extent there is any conflict or inconsistency between the provisions in the body of this MSA and any Addendum, Exhibit, Order Form, or SOW, the terms of this MSA shall prevail unless expressly stated otherwise in such Addendum, Exhibit, Order Form, or SOW. The language used in this MSA shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this MSA. In the event of any asserted ambiguous term or condition herein, the parties agree that the principle that ambiguities shall be construed against the drafter shall not be employed. Each party represents and warrants that, in deciding to execute the Agreement, it has not relied and should not rely on any understandings, representations, inducements, warranties, or promises, whether written or oral and/or whether express or implied, regarding the Agreement, the matters referenced in the Agreement, or any other matters not referenced in the Agreement.

13.8 Counterparts. This MSA may be executed in counterparts, which taken together shall form one legal instrument. Delivery of an executed counterpart signature page of this MSA by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this MSA.

13.9 Survival. Section 5 (Fees and Payments), Section 7 (Confidentiality), Section 9 (Indemnification), Section 10 (Liability Limitations), Section 11 (Dispute Resolution) and Section 13 (General Provisions) shall survive the termination or expiration of this MSA.