IMPORTANT: Please read this Terms of Service Agreement before clicking the “accept” button, and/or using the Foo Monk, LLC (“
Instantly”) software-as-a-service product, application programming interface, or other services that accompany or are provided in connection with this Agreement. Subscriber should review Instantly’s
Technical Parameters Addendum, which is hereby incorporated by reference and may be updated from time-to-time in Instantly’s sole discretion (together with the Terms of Service Agreement, the “
Agreement”), in detail to understand the specific ways in which the Instantly Service reports certain data back to Subscriber, as well as certain dependencies on the functionality of the Instantly Service. By clicking the “Agree” button, and/or using the Instantly Service (as defined below) in any way, you and the entity that you represent (“
Subscriber”) is unconditionally consenting to be bound by and is becoming a party to this Agreement with Instantly and Subscriber represent and warrant that Subscriber has the authority to bind such entity to these terms. If Subscriber does not unconditionally agree to all of the terms of this Agreement, use of the Instantly Service is strictly prohibited.
Please note that Instantly may modify or amend this Agreement at any time. When Instantly modifies or amends this Agreement, Instantly will update the last updated date above, and Instantly may send an email to the last email address provided by Subscriber to Instantly.
Instantly may require Subscriber to provide consent to the updated Agreement in a specified manner before any further use of the Instantly Service is permitted. If Subscriber does not agree to any change(s) after receiving a notice of such change(s), Subscriber must stop using the Instantly Service. Otherwise, Subscriber’s continued use of the Instantly Service constitutes its acceptance of such change(s). Please regularly check this Agreement.
Section 12 (arbitration agreement) contains provisions that govern how to resolve disputes between Subscriber and Instantly. Among other things, section 12 (arbitration agreement) includes an agreement to arbitrate which requires, with limited exceptions, that all disputes between Subscriber and Instantly shall be resolved by binding and final arbitration. Section 12 also contains a class action and jury trial waiver. Please read section 12 (arbitration agreement) carefully.
If Subscriber purchases any feature or functionality of the Instantly Service for a term (the “
Initial Order Term”), then the subscription will be automatically renewed for additional periods of the same duration as the Initial Order Term at Instantly’s Then-Current fee for such features and functionality unless Subscriber opts out of the automatic renewal in accordance with Section 5.1(c) below.
TERMS AND CONDITIONS
1. Definitions. As used in this Agreement:
1.1 “
Applicable Data Protection Laws” means, all data protection and privacy laws and regulations of any jurisdiction directly applicable to Instantly’s Processing of the relevant Client Personal Data under the Agreement, such as, to the extent applicable, the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (“
CCPA”), and any U.S. state or national data protection laws as superseded, amended or replaced.
1.2 “Connected Account” means any third-party e-mail system or platform connected to, or integrated with, the Instantly Service by or on behalf of Subscriber. Thid-party email systems or platforms created by Instantly as part of its "Done-For-You Email Setup" shall be a "Connected Account" and shall be subject to the same terms and conditions as Connected Acccounts connected directly by Subscriber.
1.3 “Connected Account Data” means any data collected from, or provided by, any Connected Account.
1.4 “Instantly Platform” or “Platform” means (i) the cloud-based technology, including application programming interfaces (“API”) and (ii) the mobile applications used by Instantly to deliver the Instantly Service to Subscriber.
1.5 “Instantly Service” means the on-line service(s) made available through the https://instantly.ai website and the mobile application(s) available for download on third-party mobile application stores, delivered by Instantly to Subscriber using the Instantly Platform. The Instantly Service offers various features and functionality, including, but not limited to, the Instantly AI Tools, email management campaigns, and contact information findings for potential B2B leads.
1.6 “
Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent, patent rights, and industrial property rights; (e) other proprietary rights of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
1.7 “Performance Data” means any log files, metadata, telemetry data and other technical performance data automatically generated by the Instantly Service relating to the use, performance, efficacy, reliability and/or accuracy of the Instantly Service. For the avoidance of doubt, data related to the status of email validity and deliverability (e.g., bounced, invalid, valid, risky) for any email that is imported or added manually to the Instantly Service will be considered Performance Data.
1.8 “
Personal Data” has the meaning given in Applicable Data Protection Laws.
1.9 “
Processing” (including “Process”, “Processes”, “Processed”, and other variants of the term) means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, collation, recording, organization, storage, adaptation or alteration, retrieval, consultation, analysis, interpretation, compilation, aggregation, use, disclosure by transmission, dissemination, viewing, copying, deleting, or otherwise making available, alignment or combination, blocking or erasure, or destruction.
1.10 “Sending Policy " means the anti-spam policy.
1.11 “Subscriber Data” means any content, including email content, or newsletters, sent by Subscriber through the Instantly Service, including third-party content, Connected Account Data, and any other data uploaded or transmitted to the Instantly Service by Subscriber.
1.12 “Users” means Subscriber’s employees, representatives, consultants, contractors, or agents authorized by Subscriber to access the Instantly Service.
2. Onboarding and Connected Accounts.
2.1 Connected Accounts. In order to access many of the features and functions of the Instantly Service, Subscriber will need to link one (1) or more Connected Accounts to the Instantly Service. By granting Instantly access to any Connected Account, (i) Subscriber represents and warrants that it is entitled to disclose any log-in information provided by Subscriber in connection therewith (if applicable) and/or to grant Instantly access to such Connected Accounts, (ii) Subscriber represents and warrants that it is in good standing with respect to such Connected Accounts, and (iii) Subscriber acknowledges that Instantly may access any and all Connected Accounts and Connected Account Data in order to provide the Instantly Service and otherwise in accordance with the terms of this Agreement, including, as examples, to send test emails or troubleshoot in order to ensure the functionality of the Instantly Service. Subscriber further acknowledges and agrees that each Connected Account, including access to and use thereof and uptimes related thereto, is solely determined by the applicable provider of the relevant Connected Account. Instantly will have no liability for any unavailability of any Connected Account, or any third-party provider’s decision to discontinue, suspend or terminate any Connected Account.
2.2 Integrating Connected Accounts. Subscriber acknowledges and agrees that in order to properly onboard to the Instantly Service and make full use of features and functions of the Instantly Service, Subscriber will need to integrate or connect to Connected Accounts with the Instantly Service. Subscriber agrees that it shall limit any Connected Accounts connected through custom IMAP-SMTP (that are not from Google, Outlook, Office365 or Zoho) to a reasonable volume. Instantly’s plans currently offer up to a maximum of one hundred (100) Connected Accounts per workspace, and Subscriber agrees not to exceed such limitation. Instantly reserves the right, in its sole discretion, to take any necessary action to address any improper use to protect the quality and efficiency of the Instantly Service.
3. Support.3.1 Support. As part of the Instantly Service, Instantly will use reasonable efforts to properly route e-mails sent by Subscriber and its Users to the recipients’ electronic mailboxes. Please refer to the Technical Parameters Addendum to better understand the limitations on Instantly’s ability to properly route e-mails and document the proper routing of such emails. To this end, Instantly provides online automatic monitoring services, which are designed to enable Subscriber to update and modify mailing lists and emailing campaigns in real time. Subscriber may also subscribe to additional recommended services in order to improve the previously ordered Instantly Service. However, if Subscriber has any support-related questions or concerns relating to the Instantly Service, support will be provided in accordance with this Section 3.
3.2 Eligible Support Recipient. Subscriber will be responsible for appointing an administrator who will be in charge of collecting information and support requests from Users (“
Eligible Support Recipient”). The Eligible Support Recipient may create a support ticket by sending a request to
[email protected].
4. Subscriber’s Use of the Instantly Service.
4.1 Access Rights. Commencing as of the date that Subscriber purchases or orders the applicable Instantly Service, subject to the terms and conditions of this Agreement and Instantly’s approval of your use of the Instantly Service, Instantly hereby grants to Subscriber a non-sublicensable, non-transferable, non-exclusive right and license to access and use the features and functionality of the Instantly Service ordered by Subscriber solely for Subscriber’s internal business purposes and solely in accordance with the terms of this Agreement and applicable laws. Instantly has the right to refuse or limit your access to the Instantly Service. When accessing and using the API, Subscriber shall limit API calls to a reasonable volume and Instantly reserves the right, at its sole discretion, to take any necessary action to address improper use. Instantly expressly reserves the right, at any time during the Term of the Agreement, to adapt, arrange and/or modify any of the features or functionality of the Instantly Services (provided that any such modification does not materially adversely affect any material features or functionality of such Instantly Services) or any components granting access and use rights to the Instantly Service and the associated documentation, subject to any maintenance and support obligations herein.
4.2 Access and Security Guidelines. Each User will use his or her unique username and password or single sign on credentials to access the Platform pursuant to this Agreement (“Credentials”). Subscriber acknowledges and agrees that: (a) only Users are entitled to access the Platform with their unique Credentials; (b) it will provide to Instantly information and other assistance as necessary to enable Instantly to establish access to the Platform for the Users, and will verify all User requests for access to the Platform; (c) it will ensure that each unique Credentials will be used only by that User when accessing the Platform; (d) Subscriber is responsible for maintaining the confidentiality of all Users’ unique Credentials, and is solely responsible for all activities that occur under these User accounts; (e) Subscriber will notify Instantly promptly of any actual or suspected unauthorized use of any account, Credentials, or any other breach or suspected breach of this Agreement; and (f) both Subscriber and User shall only provide data, information or content is accurate, complete, and up-to-date.
If Subscriber utilizes Instantly’s Email Warmup Service, Subscriber may be exposed to the personal and contact information for other Instantly users from the Warmup pool. Subscriber is prohibited from sharing, storing, transferring or otherwise using this information for any purposes whatsoever.
Instantly reserves the right to suspend, disable or terminate any User’s access to the Platform that Instantly reasonably determines may have been used by an unauthorized third party.
The unique Credentials cannot be shared or used by more than one individual User to access the Platform.
4.3 Artificial Intelligence Tools. Subject to this Agreement, Instantly makes available to Subscriber certain artificial intelligence tools in connection with Subscriber’s use of the Platform (collectively, the “
Instantly AI Tools”). This Agreement shall apply in full to Subscriber’s use of the Instantly AI Tools. The Instantly AI Tools leverage third party large language models and artificial intelligence algorithms and platforms (“
Third-Party Services”) to generate suggested text, information, results, images, and other materials (collectively, the “
Output”) in response to the Subscriber’s prompts (“
Prompts”).
Instantly does not make any representations with respect to Third-Party Services or any Output provided in connection therewith. Such Third-Party Services are not under the control of Instantly and do not from part of the Platform. Instantly is not responsible for any Third-Party Services or Output generated thereby and Subscriber uses such Third-Party Services and Output at its own risk. As between the parties, each of the Prompts and Output are considered “Submitted Data” for the purposes of this Agreement, provided that: (i) such Prompts may be provided to Third-Party Services in order for Subscriber to access the Instantly AI tools, and such Third-Party Services may not be required to maintain the confidentiality of any Prompts or Output; and (ii) such Third-Party Services may retain certain rights to use or disclose the Prompts and Output, including to further train their algorithmic models, in the terms and conditions or policies governing the Third-Party Services (“
Third-Party Terms”).
(a)
Responsible Use of Instantly AI Tools. Subscriber shall comply with all obligations and commitments in this Agreement with respect to Submitted Data in connection with Subscriber’s use of the Instantly AI Tools. Subscriber is solely responsible for the Prompts, its Outputs and its use thereof. Without limiting the disclaimers in Section 9.2 below, Subscriber is responsible for reviewing any Output prior to its use and exercising its own business and legal judgement as to its suitability for use. Without limiting the foregoing and Subscriber’s representations and warranties under this Agreement, Subscriber shall not use any Prompts or Output that: (a) infringes or misappropriates any third party’s intellectual property rights or other proprietary rights; (b) is deceptive, discriminatory, biased, unethical, defamatory, obscene, pornographic or illegal; (c) contains any viruses, worms or other malicious computer programming codes that may damage the Platform; (d) contains any personal information, such as financial, medical or other sensitive personal information such as government IDs, passport numbers or social security numbers; or (e) violates the Third-Party Terms. Instantly reserves the right to suspend or terminate Subscriber’s access to the Instantly AI Tools for any failure by Subscriber to comply with this Section. In addition to the foregoing, Subscriber’s obligations under this Agreement with respect to use of the Instantly Service, its representations and warranties and indemnification obligations, shall apply in full with respect to Subscriber’s use of the Instantly AI Tools. Subscriber acknowledges and agrees that, notwithstanding the automated suggestions provided by the Instantly AI Tools, it remains solely responsible for the content, legality, accuracy, and completeness of the Outputs, and any use thereof.
4.4 Restrictions. Subscriber shall not, and shall procure that its Users shall not: (a) allow any third party to access the Platform or Instantly Service except as expressly allowed herein; (b) modify, adapt, alter or translate the Platform or Instantly Service; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Platform or Instantly Service for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Platform or Instantly Service, except as permitted by law; (e) interfere in any manner with the operation of the Platform, the Instantly Service or the hardware and network used to operate the same, or attempt to probe, scan or test vulnerability of the Platform; (f) modify, copy or make derivative works based on any part of the Platform or Instantly Service; (g) access or use the Platform or Instantly Service to build a similar or competitive product or service or otherwise engage in competitive analysis or benchmarking; (h) attempt to access the Platform through any unapproved interface; (i) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Instantly or its licensors on the Platform or Instantly Service or any copies thereof; (j) send promotional emails on behalf of third parties; or (k) otherwise use the Platform or Instantly Service in any manner that exceeds the scope of use permitted under Section 4.1 or in a manner inconsistent with this Agreement (including the Technical Parameters Addendum and Sending Policy) or applicable law, including but not limited to the Telephone Consumer Protection Act (TCPA). Instantly reserves the right to suspend Subscriber’s access to the Platform and the Instantly Service for any failure, or suspected failure, to comply with the foregoing conditions.
4.5 Website Visitor ID Tool. Instantly's Website Visitor ID Tool allows users to collect certain information from visitors to Subscriber's website. Subcriber is solely responsible for ensuring such information is collected and used in compliance with all applicable laws and regulations. Subscriber is solely liable for its use of the information collected using Instantly's Website Visitor ID Tool. Certain jurisdictions require that visitors be provided notice and/or consent prior to their personal information being collected or processed and may impose other restrictions on the use of such data. Instantly is not responsible for obtaining any such consent or providing the appropriate notices. Subscriber shall be solely responsible for collecting any necessary consents, providing any necessary notices, and processing, storing or otherwise using any personal information collected using Instantly's Website Visitor ID Tool. In addition to complying with all applicable laws and regulations, Subscriber agrees to abide by Instantly's
Data Usage Agreement.
4.6 Done-For-You and Instantly VIP Service. The “Done-For-You” service and “Instantly VIP Service” (collectively, the “VIP Services”) are provided as optional services designed to assist Subscribers in setting up and managing their use of the Instantly Service, including launching initial campaigns. These services are intended as a convenience and are not a guarantee of results. By utilizing the VIP Services, Subscriber acknowledges and agrees to the following: (a) No Guarantee of Results. Instantly makes no promises or guarantees regarding the performance, success, or effectiveness of any campaigns launched through the VIP Services. Campaign outcomes depend on a variety of factors, including Subscriber's target audience, email content, and compliance with applicable laws. (b) Subscriber’s Responsibility for Compliance. Subscriber is solely responsible for ensuring that all campaigns, email content, and recipient lists comply with all applicable laws, regulations, and industry best practices, including anti-spam laws such as the CAN-SPAM Act or similar laws in other jurisdictions. Instantly is not responsible for reviewing or ensuring compliance with such laws on behalf of Subscriber. (c) Third-Party Claims or Lawsuits. Instantly is not liable for any claims, demands, damages, losses, or legal actions, including but not limited to those brought by recipients of emails sent as part of Subscriber’s campaigns, alleging violations of laws, regulations, or other rights. Subscriber agrees to indemnify and hold Instantly harmless against any such claims, including reasonable attorneys’ fees and costs incurred. (d) Campaign Management Limitations. While Instantly provides recommendations and assists in executing campaigns as part of the VIP Services, the Subscriber retains full ownership, control, and responsibility for all decisions regarding campaign content, recipient targeting, and email distribution. (e) Data and Account Integrity. Instantly will not be held responsible for the accuracy, integrity, or legality of Subscriber’s data or Connected Accounts, nor for any adverse consequences resulting from their use. (f) Subscriber Acknowledgment. Subscriber acknowledges that by engaging the VIP Services, they have reviewed and understood these disclaimers and limitations and agree that Instantly’s liability for these services shall be governed exclusively by the terms of this Agreement, including the limitations of liability in Section 11. By utilizing the VIP Services, Subscriber agrees to indemnify, defend, and hold Instantly harmless against any claims or liabilities arising from the use of such services. These disclaimers are in addition to, and not in lieu of, any other disclaimers and limitations contained in this Agreement.
5. Fees, Payment and Suspension of Instantly Service.
5.1 Subscriptions. Instantly offers various options and subscriptions plans to its clients, including free trials and paid plans. These options and plans, including relevant pricing, are available at https://instantly.ai/pricing. The pricing of these plans are in U.S. dollars and all payments will be made in U.S. dollars.
(a)
Free trials: Free trials are non-paid access of the Instantly Service subject to use restrictions (maximum limits to the number of daily and monthly emails and support ticket requests, restriction on API calls, etc.). Restrictions for such trials are set forth at https://instantly.ai/pricing. Subscriber may at any time terminate Subscriber’s free trial or upgrade to a paid plan.
(b)
Paid plans (“Email warm-up”, “Email outreach”, & “B2B Contact Data Tool”): These paid plans have lower use restriction limits than the self-service free subscriptions. Premium features may also be added to these plans. Subscriber’s paid subscription shall be due and payable either on a monthly or yearly basis in advance from the date of Subscriber’s first paid subscription and will be automatically renewed thereafter on the same basis, subject to the full payment in advance of the fees due. Subscriber may not re-subscribe to the same paid monthly plan within twenty-one (21) days for the same account. Subscriber may at any time terminate Subscriber’s paid self-service plan and Subscriber will have the right to continue to access and use the Instantly Service through the end of the subscription plan for which Subscriber has paid. However, Instantly shall not reimburse Subscriber for any unused Fees paid for a started month or year, even on a pro rata basis. It is Subscriber’s responsibility to anticipate the termination of the plan to make it effective at the most convenient time.
(c) Automatic Renewal. Under a paid plan, the subscription will continue and automatically renew at Company’s then-current price for such Subscription until terminated in accordance with this Agreement. The frequency at which the subscription renews (i.e., monthly, annually, etc.) will be designated at the time at Subscriber signs up for the subscription. By subscribing, Subscriber authorizes Instantly to charge the payment method designated in their account now, and again at the beginning of any subsequent subscription period. Upon renewal of the subscription, if Instantly does not receive payment, (i) Subscriber shall pay all amounts due on their account upon demand and/or (ii) Subscriber agrees that Instantly may either terminate or suspend the subscription and continue to attempt to charge the designated payment method until payment is received (upon receipt of payment, the subscription will be activated and for purposes of automatic renewal, Subscriber’s new subscription commitment period will begin as of the day payment was received).
5.2 Fees. Subscriber will pay Instantly the fees for the Instantly Service upon checkout, and thereafter, at such intervals in accordance with Subscriber’s selected plan at checkout (“
Fees”). Fees for plans listed above do not include the cost of equipment and Internet access enabling use of the Instantly Service, the costs of which shall be borne by Subscriber. All Fees are due in advance of each Subscription Term. Payment may be made by credit card or direct debit. Subscriber authorizes Instantly to charge the credit card or bank account Subscriber provides to Instantly for any and all costs and amounts that Subscriber owes Instantly for the Instantly Service, at the time such amounts are due. Subscriber shall maintain complete, accurate and up-to-date Subscriber billing and contact information. In the event Subscriber exceeds number of transactions for which applicable Fees have been paid, Subscriber will be invoiced for such overage in accordance with the then-current overage fee rates in arrears. Instantly may increase the applicable Fees upon the commencement of any Renewal Order Term (as defined below).
5.3 Third-Party Service Provider. Instantly uses Stripe, Inc. and its affiliates as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (“Third-Party Service Provider”). If Subscriber makes a purchase on the Instantly Service, Subscriber will be required to provide its payment details and any additional information required to complete Subscriber’s order directly to our Third-Party Service Provider. Subscriber agrees to be bound by Stripe’s Privacy Policy (currently accessible at
https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/ssa) and hereby consent and authorize Instantly and Stripe to share any information and payment instructions Subscriber provides with one or more Third-Party Service Provider(s) to the minimum extent required to complete the transactions. Please note that online payment transactions may be subject to validation checks by Instantly’s Third-Party Service Provider and Subscriber’s card issuer, and Instantly is not responsible if Subscriber’s card issuer declines to authorize payment for any reason. For Subscriber’s protection, Instantly’s Third-Party Service Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud and Subscriber authorizes Third-Party Service Provider to verify and authenticate Subscriber’s payment information. Subscriber’s card issuer may charge Subscriber an online handling fee or processing fee. Instantly is not responsible for this. In some jurisdictions, our Third-Party Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
5.4 Taxes and Invoicing. All Fees owed by Subscriber in connection with this Agreement are exclusive of, and Subscriber shall pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Subscriber in connection with this Agreement, except for employment taxes and taxes based on Instantly’s income. If Subscriber believes that Instantly has incorrectly billed Subscriber, Subscriber must notify Instantly no later than sixty (60) days after the due date on the first invoice in which the issue appeared.
5.5 Late Payments. In the event of any delay in payment, Instantly will have the right to recover interest on late payments at a monthly rate of 1.5% (or the highest permitted by applicable law, if lower), any collections fees, and other amounts as allowed by law. Instantly reserves the right (in addition to any other rights or remedies Instantly may have), upon written notice, to discontinue the Instantly Service and immediately suspend Subscriber’s access to the Instantly Service if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Subscriber agrees to pay all Fees associated with Subscriber’s paid plan, even in the event that any of Subscriber’s emails may be blocked by a third party or may otherwise not reach their recipient, as intended by Subscriber. To better understand the limits of the Instantly Service and how the Instantly Service are reported back to Subscriber, please review the Technical Parameters Addendum.
6. Ownership; Content; and Data.
6.1 Instantly Platform and Technology. Subscriber acknowledges that Instantly retains all right, title and interest in and to the Instantly Platform, including all algorithms, AI, language and visual models and improvements thereto, Integration Tools and all software and all Instantly proprietary information and technology used by Instantly or provided to Subscriber in connection with the Instantly Service (the “
Instantly Technology”), and that the Instantly Technology is protected by Intellectual Property Rights owned by or licensed to Instantly. Without limiting the generality of the foregoing, the “INSTANTLY” name, and all other trademarks and service marks of Instantly are owned by Instantly. Subscriber shall not have any right to use the Trademarks without Instantly’s prior written consent. All content on https://instantly.ai and otherwise available on the Instantly Service, including graphics, logos, page headers, icons, and service names, are the property of Instantly and its affiliates. Other trademarks that appear on https://instantly.ai or throughout the Instantly Service is the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Instantly. Other than as expressly set forth in this Agreement, no license or other rights in the Instantly Technology are granted to the Subscriber. Subscriber hereby grants Instantly a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Instantly Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Users, relating to the Instantly Service. Instantly shall not identify Subscriber as the source of any such feedback.
6.2 Responsibility for Subscriber Data. Subscriber is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Subscriber Data, including lead lists from third parties.
Subscriber will obtain all third party licenses, consents and permissions needed for Instantly to receive, use and Process the Subscriber Data to provide the Instantly Service. Without limiting the foregoing, Subscriber will be solely responsible for (i) providing all appropriate privacy notices to all third parties (including all Users); and (ii) obtaining from all third parties (including all Users) all necessary consents and rights for Instantly to receive, use and Process the Subscriber Data submitted by or on behalf of Subscriber or Users for the purposes set forth in this Agreement, including all consents required in accordance with all Applicable Data Protection Laws. Subscriber represents and warrants that the Subscriber Data will not: infringe, misappropriate or violate any intellectual property, proprietary, or other right of any third party; contain any virus or program designed to cause damage, intercept or misappropriate any system or Personal Data in a fraudulent manner; contain any unlawful, bullying, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature or any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable laws or regulations; contain any sensitive Personal Data, including social security number, individually identifiable health or health insurance information, bank account information or credit card information; be false, misleading or inaccurate; or, be in breach of the Sending Policy. In the event of any breach by Subscriber of this Section 6.2, including the Sending Policy, or if Instantly suspects or has reason to believe that Subscriber is in breach hereof, then Instantly may, without any further obligation liability to Subscriber, suspend and/or terminate this Agreement (or limit Subscriber’s sending capabilities or rights) immediately upon written notice and close Subscriber’s master account.
6.3 License to Subscriber Data. Subscriber retains all right, title and interest in and to the Subscriber Data. Subscriber hereby grants to Instantly a non-exclusive, worldwide, royalty-free and fully paid-up license to: (a) access and use Subscriber Data to provide the Instantly Service to Subscriber; and (b) derive from Subscriber Data and use de-identified, aggregated and/or anonymized data to improve the Instantly Service;
provided, that, the license grant in subpart (b) shall be perpetual and irrevocable. Subscriber represents and warrants that it has all necessary rights to grant Instantly the foregoing licenses. Without limiting the generality of the foregoing, Subscriber acknowledges and agrees that the foregoing license includes the right for Instantly to verify all emails uploaded to the Instantly Service in an effort to provide high-quality deliverability standards, lower bounce rates, and maintain a high deliverability reputation for our customers. Email addresses that are detected as invalid will be blocked by the Instantly Service and the applicable User will not be able to send emails to the invalid address via the Instantly Service. Further, Subscriber acknowledges and agrees that Personal Data of Users submitted to or through the Instantly Service will be used in accordance with the privacy policy set forth at https://instantly.ai/privacy.
6.4 Performance Data. Instantly retains all right, title and interest in and to the Performance Data, and may use Performance Data for any lawful purpose.
6.5 Data Processing Agreement. In the event Subscriber provides to Instantly or enables Instantly to Process any Personal Data that is subject to Applicable Data Protection Laws, Subscriber agrees that the terms and conditions of the
Data Processing Addendum, applies and is hereby incorporated into this Agreement. Instantly and Subscriber shall comply with their respective obligations under the DPA. Any Subscriber Personal Data (as defined in the DPA) that is subject to Applicable Data Protection Laws shall be governed by the DPA and shall not be Confidential Information (defined herein). In the event of a conflict between any provision of the DPA and this Agreement, the provision providing the higher level of privacy or data protection shall govern.
7. CONFIDENTIALITY.
7.1 Definition. Each Party (“Receiving Party”) acknowledges that it may receive from the other Party (“Disclosing Party”) confidential information relating to the Disclosing Party and such confidential information includes, but is not limited to, technical, business, marketing and financial information, and any other information that could reasonably be considered confidential or proprietary (“Confidential Information”). The terms of this Agreement, the Instantly Technology, and all technical information relating thereto shall be considered Confidential Information of Instantly.
7.2 Exceptions. Confidential Information does not include information that:
(a) is or becomes generally available to the public other than through a wrongful act of the Receiving Party;
(b) is or becomes available to the Receiving Party on a non-confidential basis from a source that is entitled to disclose it to the Receiving Party; or
(c) is independently developed by the Receiving Party, its employees or third party contractors without access to or use of the Disclosing Party’s Confidential Information.
7.3 Obligations. During and after the Term of this Agreement, the Receiving Party shall: (i) not use (except for performance of this Agreement) or disclose Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party (except for disclosure to Instantly’s employees, subcontractors, and Representatives solely as necessary for performance of the Instantly Service and Platform); and (ii) take no less than the same measures that it takes with its own Confidential Information, and in any case no less than reasonable measures, to maintain the Confidential Information of the Disclosing Party in confidence. “Representatives” means a Party’s attorneys, consultants, and subcontractors who have a need to know and who have signed confidentiality agreements containing, or are otherwise bound by, confidentiality obligations at least as restrictive as those contained herein.
7.4 Lawful Disclosure. Either party may disclose Confidential Information to the extent required by law, provided that the Receiving Party gives the Disclosing Party reasonable advance notice of such required disclosure and cooperates with the Disclosing Party so that the Disclosing Party has the opportunity to obtain appropriate confidential treatment for such Confidential Information.
7.5 Ownership. All Confidential Information disclosed by Disclosing Party shall remain the property of the Disclosing Party. The Disclosing Party reserves all rights in its Confidential Information. Nothing in this Agreement or the disclosures envisaged by this Agreement shall (except for the limited use right above) operate to transfer, or operate as a grant of any Intellectual Property Rights in the Confidential Information.
8. Term and Termination.
8.1 Term. The term of this Agreement will commence on the Effective Date and continue until terminated in accordance with the terms of this Agreement (the “
Term”). Each subscription will have an initial term of one (1) year or one (1) month, as dictated by the plan that Subscriber purchases (the “
Initial Order Term”), and will automatically renew for successive terms of the same period as the Initial Order Term (each, a “
Renewal Order Term” and collectively with the Initial Order Term, the “
Order Term”), unless either party provides no less than thirty (30) days written notice of its intent to terminate the Order prior to the end of the then-current term. The term of each subscription will be as set forth in the applicable subscription plan and will automatically renew for successive terms of the same duration, in accordance with the terms and conditions of the subscription plan.
8.2 Termination. Either party may terminate this Agreement or specific subscription plan upon written notice if the other party materially breaches the Agreement or the terms of the subscription plan and does not cure such breach within thirty (30) days after written notice of such breach. Further, either party may terminate this Agreement if the other party is declared insolvent, admits its inability to pay its debts when due, or files for, or otherwise undergoes, bankruptcy. Upon the expiration or termination of this Agreement or specific subscription plan for any reason any amounts owed to Instantly under this Agreement will become immediately due and payable. Sections 1, and 6-12 will survive the termination of this Agreement.
9. Instantly Warranties and Disclaimer. 9.1 Limited Warranty. Instantly represents and warrants that the Instantly Service will be performed in a professional and workmanlike manner. Subscriber must report any deficiencies in the performance of the above warranty to Instantly in writing within thirty (30) days of the non-conformance. Furthermore, Subscriber and Users acknowledge and agree that Instantly does not control the transfer of any data (including Subscriber Data) via the internet, and cannot and will not be held responsible for delays or delivery problems arising from the internet or other outside connection issues. In the event Subscriber makes any reports as described above, and Instantly determines, in the exercise of its sole and reasonable discretion, that there was any deficiency in the Instantly Service, Subscriber’s exclusive remedy, and Instantly’s entire liability, will be the re-performance of the Instantly Service and if Subscriber fails to re-perform the Services as warranted, Subscriber’s sole and exclusive remedy shall be to terminate this Agreement and receive a refund of any pre-paid but unearned Fees, prorated on a monthly basis for the remainder of the Order Term of the applicable subscription.
9.2 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THEINSTANTLY SERVICE, INSTANTLY PLATFORM AND DOCUMENTATION ARE PROVIDED
“AS IS” AND
“AS AVAILABLE” AND (B) INSTANTLYAND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OFLAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OFMERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT THERE IS ADISRUPTION OF THE INSTANTLY SERVICE, INSTANTLY DOES NOT GUARANTEE ANY MINIMUMSERVICE UPTIME DURING THE RECOVERY PROCESS. FURTHERMORE, INSTANTLY DOES NOTGUARANTEE A MINIMUM UPTIME OF THE INSTANTLY SERVICES AT ANY POINT OFSUBSCRIBER’S USE OF THE INSTANTLY SERVICES, NOR DOES INSTANTLY GUARANTEE THATALL EMAILS WILL BE PROCESSED AND DELIVERED BY INSTANTLY. WITHOUT LIMITINGTHE GENERALITY OF THE FOREGOING DISCLAIMERS, INSTANTLY REFERS SUBSCRIBER ANDUSERS TO THE TECHNICAL PARAMETERS ADDENDUM WITH RESPECT TO SPECIFIC LIMITATIONSON THE PERFORMANCE OF THE INSTANTLY SERVICE AND THE OUTPUT DELIVERED TOSUBSCRIBER OR USERS.
9.3 Connected Accounts. Subscriber acknowledges that Instantly has no control over, or other ability or obligation with respect to the maintenance, upkeep, status or support of any Connected Accounts or other component thereof, including the accuracy, timeliness, reliability, or completeness of any Connected Account Data. Instantly will have no liability with respect to any acts, omissions, reliance, delays, errors or other liabilities arising from or related to any downtime, unavailability, inaccuracies or failures of any Connected Accounts.
9.4 Third-party service providers. The Instantly Service, Instantly Platform and Documentation (including correspondence with Instantly's customer support team) may include links to or the information of third-party service providers that Instantly believes may be of interest to its Subscribers. These references are not an endorsement or recommendation – implied or otherwise – of any of the listed companies or information. Each company listed is independent from Instantly and is not under the control of Instantly. Instantly accepts no responsibility for and disclaims any liability from the actions of the listed companies or reliance on any information from or about such companies. Subscribers should make their own independent evaluation before conducting business with any such company or relying on any such information.
10. Indemnity.
10.1 By Instantly. Instantly will defend at its expense any claim, action, suit, or investigation brought by a third party (“
Claim”) against Subscriber, and will pay any settlement Instantly makes or approves, or any damages, losses, costs, and expenses (“
Losses”) incurred by Subscriber in connection with such Claim, insofar as such Claim alleges that the Platform or the Instantly Service infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Platform or Instantly Service becomes, or in Instantly’s opinion is likely to become, the subject of a claim of infringement (“
Infringing Technology”), Instantly may, at Instantly’s option: (a) procure for Subscriber the right to continue using the Infringing Technology; (b) replace the Infringing Technology with non-infringing software or Instantly Service which do not materially impair the functionality of the Platform or Instantly Service; (c) modify the Infringing Technology so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Subscriber will immediately cease all use of the Instantly Technology. Notwithstanding the foregoing, Instantly will have no obligation under this section or otherwise with respect to any infringement claim based upon: (i) any use of the Platform or Instantly Service not in accordance with this Agreement or applicable laws, rules, or regulations; (ii) any use of the Platform or Instantly Service in combination with other products, equipment, software or data not supplied by Instantly; or (iii) any modification of the Platform or Instantly Service by any person other than Instantly or its authorized agents (collectively, the “
Exclusions” and each, an “
Exclusion”). This section states the sole and exclusive remedy of Subscriber and the entire liability of Instantly, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
10.2 By Subscriber. Subscriber will defend at its expense any Claim brought against Instantly, and will pay any Losses incurred by Instantly in connection with such Claim, to the extent arising out of or relating to: (a) an Exclusion, or (b) Subscriber’s breach or alleged breach of Sections 4.4, 6.2, 6.3 or 6.5. This section states the sole and exclusive remedy of Instantly and the entire liability of Subscriber, or any of its officers, directors, employees, shareholders, contractors or representatives, for the claims and actions described herein.
10.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party promptly notifying the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party having sole control of the defense or settlement of any claim or suit; and (c) the indemnified party cooperating with the indemnifying party to facilitate the settlement or defense of any claim or suit.
11. Limitation of Liability.
11.1 Types of Damages. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR LOST DATA OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE LOSSES OR DAMAGES HOWSOEVER ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH THE INSTANTLY TECHNOLOGY, WHETHER UNDER CONTRACT, TORT OR OTHERWISE, WHETHER FORESEEABLE OR NOT AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY ARISE, OCCUR OR RESULT. IN NO EVENT SHALL INSTANTLY BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
11.2 Amount of Damages. EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY FOR ANY DAMAGES SUSTAINED IN CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY SUBSCRIBER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11.3 Basis of the Bargain. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN INSTANTLY AND SUBSCRIBER. INSTANTLY’S FEES FOR THE SERVICES REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
11.4 Exclusions. THESE LIMITATIONS OF LIABILITY DO NOT APPLY TO: (A) A BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS; OR (B) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.
12. ARBITRATION AGREEMENT. PLEASE READ THIS SECTION (THE “ARBITRATION AGREEMENT”) CAREFULLY. IT IS PART OF SUBSCRIBER’S CONTRACT WITH INSTANTLY AND REQUIRES SUBSCRIBER TO ARBITRATE CERTAIN CLAIMS AND DISPUTES WITH INSTANTLY AND LIMITS THE MANNER IN WHICH SUBSCRIBER CAN SEEK RELIEF FROM INSTANTLY. THIS ARBITRATION AGREEMENT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. 12.1 Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, Subscriber and Instantly agree that any dispute, claim, or disagreements arising out of or relating in any way to Subscriber’s access to or use of the Instantly Service, any communications Subscriber receives in connection with the Instantly Service, any products sold or distributed through the Instantly Service, or this Agreement and any prior versions of this Agreement to which Subscriber agreed , including claims and disputes that arose between Subscriber and us before the effective date of this Agreement (each, a “
Dispute”) will be resolved by binding arbitration as set forth below, rather than in court, except that: (i) Subscriber and Instantly may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) Subscriber or Instantly may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
12.2 Informal Dispute Resolution. Should a Dispute arise between Subscriber and Instantly, Instantly is committed to working with Subscriber to reach a reasonable resolution. Subscriber and Instantly agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome. Subscriber and Instantly therefore agree that, before either party commences arbitration against the other to resolve a Dispute (or initiates an action in small claims court if a party so elects), that party will try to resolve the Dispute informally by participating in a telephone or videoconference, (“
Informal Dispute Resolution Conference”). If Subscriber is represented by counsel, Subscriber’s counsel may participate in the Informal Dispute Resolution Conference, but Subscriber will also participate in the Informal Dispute Resolution Conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“
Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Instantly that Subscriber intends to initiate an Informal Dispute Resolution Conference should be sent by email to
[email protected] or regular mail to our offices located at 30 North Gould Street, Suite R, Sheridan, WY 82801.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree otherwise; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.
In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration.
The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
12.3 Waiver of Jury Trial. YOU AND INSTANTLY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. Subscriber and Instantly are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 12.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
12.4 Waiver of Class and Other Non-Individualized Relief. YOU AND INSTANTLY AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 12.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 12.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), Subscriber and Instantly agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Wyoming. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent Subscriber or Instantly from participating in a class-wide settlement of claims.
12.5 Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings.
If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of Subscriber’s Notice, Subscriber and Instantly agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“
AAA”), in accordance with the Consumer Arbitration Rules (the “
AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
Unless Subscriber and Instantly otherwise agree, or the Batch Arbitration process discussed in Section 12.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where Subscriber resides. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Subscriber’s responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
Subscriber and Instantly agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
12.6 Arbitrator. The arbitrator will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of receiving written notice of the arbitration from the AAA, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 12.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
12.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 12.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 12.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 12.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 12.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 12.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon Subscriber and Instantly. Judgment on the arbitration award may be entered in any court having jurisdiction.
12.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If Subscriber or Instantly need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
12.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, Subscriber and Instantly agree that in the event that there are fifty (50) or more individual Requests of a substantially similar nature filed against Instantly by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“
Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“
Administrative Arbitrator”).
In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Instantly.Subscriber and Instantly agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
12.10 30-Day Right to Opt Out. Subscriber has the right to opt out of this Arbitration Agreement by sending written notice of Subscriber’s decision to opt out to: 30 North Gould Street, Suite R, Sheridan, WY 82801, within thirty (30) days after agreeing to or becoming subject to this Arbitration Agreement. Subscriber’s notice must include Subscriber’s name and address, the email address associated with Subscriber’s Account (if Subscriber has one), and an unequivocal statement that Subscriber wants to opt out of this Arbitration Agreement. If Subscriber opts out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to Subscriber. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that Subscriber may currently have, or may enter in the future, with Instantly.
12.11 Invalidity, Expiration. Except as provided in Section 12.4 (Waiver of Class or Other Non-Individualized Relief), if any Section or part of any Section of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific Section or part(s) of Section shall be of no force and effect and shall be severed, and the remainder of the Arbitration Agreement shall continue in full force and effect. Subscriber and Instantly further agree that any Dispute as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, Subscriber and Instantly agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
12.12 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Instantly makes any future material change to this Arbitration Agreement, Instantly will provide written notice to Subscriber. Unless Subscriber rejects the change within thirty (30) days of such change become effective by writing to Instantly at 30 North Gould Street, Suite R, Sheridan, WY 82801, Subscriber’s continued use of the Instantly Service, including the acceptance of products and services offered on the Instantly Service following the posting of changes to this Arbitration Agreement, constitutes Subscriber’s acceptance of any such changes. Changes to this Arbitration Agreement do not provide Subscriber with a new opportunity to opt out of the Arbitration Agreement if Subscriber has previously agreed to a version of this Agreement and did not validly opt out of arbitration. If Subscriber rejects any change or update to this Arbitration Agreement, and Subscriber was bound by an existing agreement to arbitrate, Disputes arising out of or relating in any way to Subscriber’s access to or use of the Instantly Service, any communications Subscriber receives, any products sold or distributed through the Instantly Service or this Agreement, the provisions of this Arbitration Agreement as of the date Subscriber first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Instantly will continue to honor any valid opt outs of the Arbitration Agreement that Subscriber made to a prior version of this Agreement.
13. General Provisions.
13.1 Publicity and Non-Disparagement. Instantly shall have the right to use Subscriber’s name and pre-approved logo on Instantly’s website and in marketing materials solely to identify Subscriber as a client of Instantly. Neither party hereto will disparage the other party, in any oral, written, or other forms of communication.
13.2 Relationship Between the Parties. Instantly is an independent contractor; nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the parties. Subscriber will not have, and will not represent to any third party that it has, any authority to act on behalf of Instantly. Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes. Each party will maintain appropriate worker’s compensation insurance for its employees as well as general liability insurance.
13.3 Injunctive Relief. Subscriber acknowledges that the Platform and the Instantly Service contain valuable Intellectual Property Rights and proprietary information of Instantly, that any actual or threatened breach of this Agreement will constitute immediate, irreparable harm to Instantly for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If Subscriber continues to use the Platform or the Instantly Service after its right to do so has terminated or expired, Instantly will be entitled to immediate injunctive relief without the requirement of posting bond.
13.4 Export and Import Laws. Subscriber agrees not to use, export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Instantly, or any products utilizing such data, in violation of the United States export laws or regulations. Further, each Party agrees to comply with all relevant export laws and regulations of the United States and the country or territory in which the Instantly Service is provided (“
Export Laws”) to assure that neither any deliverable, if any, nor any direct product thereof is (1) exported, directly or indirectly, in violation of Export Laws or (2) intended to be used for any purposes prohibited by the Export Laws, including without limitation nuclear, chemical, or biological weapons proliferation. Subscriber further represents that (i) Subscriber is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) Subscriber is not listed on any U.S. Government list of prohibited or restricted parties. Subscriber acknowledges and agrees that products, services or technology provided by Instantly are subject to the export control laws and regulations of the United States, agrees to comply with these laws and regulations, and agrees that it shall not, without prior U.S. government authorization, export, re-export, or transfer Instantly products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
13.5 Assignment. Neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party, and any assignment or transfer in derogation of the foregoing shall be null and void, provided, however that either party shall have the right to assign the Agreement, without the prior written consent of the other party, to the successor entity in the event of merger, corporate reorganization or a sale of all or substantially all of such party’s assets to which this Agreement relates. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns.
13.6 Notices. All notices required or permitted under this Agreement must be delivered in writing, if to Instantly, by emailing
[email protected] and if to Subscriber by emailing the email address used to register an account for purposes of purchasing a subscription, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party: at the party’s address provided as part of the registration process (with respect to Subscriber) or to Registered Agents, Inc., 30 N Gould St Ste R, Sheridan, Wyoming, 82801 (with respect to Instantly), by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
13.7 Governing Law. The Agreement is governed by the laws of the State of Wyoming, without regard to its conflicts of laws or provisions and this Agreement shall not be governed or affected by any version of the Uniform Computer Information Transactions Act enacted in any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement not subject to binding arbitration as outlined in Section 12 above, will be brought in a state or federal court in the County of Sheridan, Wyoming and each Party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. Notwithstanding the foregoing, nothing shall prevent either Party from seeking relief in any court of competent jurisdiction for any misuse or misappropriating of such Party’s Intellectual Property Rights or Confidential Information.
13.8 Waivers; Severability. Any waivers shall be effective only if made in writing signed by representatives authorized to bind the parties. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision or portion of any provision of this Agreement is unenforceable, such provision or portion such provision will be interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and all remaining provisions or portions of such provision will continue in full force and effect.
13.9 Construction. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
13.10 Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outages any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
13.11 Entire Agreement; Amendment. This Agreement, including the Sending Policy and the Technical Parameters Addendum, constitutes the complete agreement between the Parties and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. To the extent that a conflict arises between the terms and conditions of the Sending Policy, Technical Parameters Addendum, or this Agreement, the conflict will be resolved in order of precedence as follows: (1) the terms set forth in this Agreement, (2) the Technical Paraments Addendum, and then the (3) Sending Policy. It is expressly agreed that the terms and conditions of this Agreement supersede the terms any of Subscriber’s purchase order.
