Blast Companies - Voice broadcasting, e-mail marketing, IVR and Text messaging solutions

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STANDARD TERMS & SERVICE AGREEMENT THESE STANDARD TERMS & SERVICE AGREEMENT are made and entered into as of the Effective Date (as defined below), by Blast Companies, LLC ("Blast Companies"), a Missouri limited liability company, with offices located at 117 Timber Meadows Drive, O'Fallon, MO 63366 and the person or entity listed below as the Client ("Client"). The following terms and conditions (the "Terms of Service") shall be deemed to be incorporated into any Service Order agreed to by Blast Companies and the Client (each such Service Order, together with these Terms of Service and the Terms of Use, shall be herein referred to as the "Agreement"). Recitals: A. Blast Companies is in the business of providing automated telephone and electronic broadcast messaging and other telephone-based interactive voice response services ("Services"). B. Client desires to purchase those Services for use in legally compliant ways NOW THEREFORE, in consideration of the premises herein contained and the benefits to be derived from the mutual observance of the covenants hereinafter set forth, the parties, intending to be legally bound, hereto agree as follows. 1. DEFINITIONS." As used herein the terms set forth in this Section 1 shall have the meaning set forth below: 1.1 "Agreement"" shall have the meaning set forth in the preamble. 1.2 "Applicable Law"" means any statute, law, ordinance, decree, order, injunction, rule, directive, or regulation of any Governmental Authority, including without limitation any of the foregoing that relates to (a) contacting Recipients (such as those concerning telemarketing and the telephonic or electronic use, posting, or transmission of content, including the Message and use of the Service, and including "Do-Not-Call" laws promulgated by Governmental Authority, the Telephone Consumer Protection Act, Fair Debt Collection Practices Act, and the Telemarketing Sales Rule); (b) the use or disclosure of confidential information; (c) false or misleading advertising; (d) the misuse of trademarks, servicemarks, intellectual property, or other proprietary information; and (e) the distribution of obscene, offensive, indecent, or profane materials. 1.3 "Blast Companies"" shall have the meaning set forth in the preamble. 1.4 "Client"" shall have the meaning set forth in the preamble. 1.5 "Commitment Term"" shall mean the period during which the Client must obtain the Minimum Commitment (if any) required under any Service Order, which period shall be expressed as a specific time period on the applicable Service Order. 1.6 "Due Date"" shall have the meaning set forth in Section 3. 1.7 "Effective Date"" shall have the meaning set forth in the preamble. 1.8 "Governmental Authority"" means any (a) nation, state, county, city, town, borough, village, district or other jurisdiction; (b) federal, state, local, municipal, foreign or other government; (c) governmental or quasi-governmental body of any nature (including any agency, branch, department, board, commission, court, tribunal or other entity exercising governmental or quasi-governmental powers); (d) body exercising, or entitled or purporting to exercise, any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power; (e) any regulatory or self-regulatory authority compliance with which is required by Applicable Law; or (f) an official of any of the foregoing. 1.9 "Message"" means the message (regardless of the medium of storage) that is transmitted by the Service in connection with any Service Order. 1.10 "Minimum Commitment"" shall mean the minimum amount that the Client will be obligated to pay to Blast Companies during the Commitment Term, with such Minimum Commitment to be expressed as an amount of U.S. Dollars on the applicable Service Order. 1.11 "Party"" means either Blast Companies or Client, separately, and "parties" means Blast Companies and Client, collectively. 1.12 "Recipient"" means any United States telephone number to which a Message is to be sent in connection with any Service Order. 1.13 "Service"" shall have the meaning set forth in the Recitals. 1.14 "Service Order"" means the Client's written order for Services which shall not contain any terms or conditions inconsistent with these Terms of Service or the Terms of Use, but shall contain at least the following information: (a) description of Services subject to the Service Order; (b) requested delivery date; (c) applicable price; (d) list of Recipients; and (e) the Client's order number. 1.15 "Term"" shall mean the period between the Effective Date and ending upon the Termination Date. 1.16 "Termination Date"" shall mean the date upon which the Agreement is terminated pursuant to Sections 4 or 5. 1.17 "Terms of Service"" shall have the meaning set forth in the preamble. 1.18 "Terms of Use"" means the written Terms of Use prepared by Blast Companies and provided to the Client in accordance with Section 16; provided, however, that Blast Companies may amend or modify such terms of use, from time to time, by providing written notice of such amendment to Client in accordance with Section 16. 2. OBLIGATIONS. 2.1 Duties." In connection with each Service Order, (a) the Client shall, in accordance with the Terms of Use, (i) create and record one or more Messages and (ii) deliver a list of proposed Recipients to Blast Companies (which list shall be stored on electronic media acceptable to Blast Companies), and (b) Blast Companies will use reasonable efforts to deliver the Message to each of the Recipients, under the terms of the applicable Service Order and the Terms of Use. 2.2 Service Orders & Pricing." The specific pricing, terms, requirements and description of each broadcast, campaign, job or program, shall be covered under a separate Service Order, which by way of reference herein and mutual endorsement by Client and Blast Companies shall, together with these Terms of Service and the Terms of Use, constitute a separate Agreement. Client is obligated to meet the specific terms of each such Agreement. All Service Orders shall be subject to and governed by the provisions contained herein. No additional or different terms and conditions appearing on the face or reverse side of any Service Order shall become part of the terms and conditions of the Parties' Agreement, unless such additional or different terms are expressly agreed to in writing by each of the Parties. Unless the Blast Companies specifically agrees to a separate writing that makes specific reference to these Terms of Service, no additional or different terms and conditions appearing on the face or reverse side of any invoice, order, acknowledgment, or other document shall become part of this Agreement. 2.3 Adjustments to Prices and Quantities." Client acknowledges that Blast Companies may adjust it prices for the Services during the Term by amending the Terms of Use. No such price adjustment shall apply to any previously executed Service Order, unless such Service Order was executed more than thirty (30) days in advance of the date for the provision of the Services contemplated thereunder, in which case Blast Companies may adjust prices for Service therein upon thirty (30) days advanced written notice to the Client. In addition to the price adjustments contemplated above, the Parties agree that the prices shall be equitably adjusted to compensate Blast Companies for additional costs that it may incur as a result of unforeseen circumstances that increase the cost to Blast Companies to provide the Services, including taxes or additional costs incurred by Blast Companies in providing the Services. 2.4 Acceptance of Service Orders." The purchase by the Client and the provision by Blast Companies of any Services shall be governed by a Service Order executed by the Client and delivered to Blast Companies (with such delivery to occur in a manner consistent with the Terms of Use). Upon receipt of any such Service Order, Blast Companies will acknowledge receipt, verification of information, and terms thereof. Such acknowledgment shall be communicated to the Client (in accord with the Terms of Use) within five (5) business days of receipt of Service Order. Blast Companies reserves the right to accept or reject any Service Order in its sole and absolute discretion. 3. TERMS OF PAYMENT. 3.1 Prepayments." During the Service Term, Blast Companies will invoice Client at the beginning of each month for Service usage to be delivered during the upcoming month. Client shall promptly pay any amounts due and acknowledges that the Services shall be 100% prepaid and Blast Companies shall have no obligation to provide any Services in advance of payment. 3.2 Invoices." For any amounts that have not been prepaid (including any amounts due pursuant to Section 6), Blast Companies shall have the right to invoice Client for the costs associated with such Services. Such amounts shall be paid promptly, but in every event within 30 days of invoice date ("Due Date"). Amounts unpaid after the Due Date shall bear interest at the rate of one and one half percent (1 1/2%) per month (or the highest rate permitted by law, if less). In the event Client fails to make timely payment, Client will be responsible for all reasonable expenses (including attorneys' fees) incurred by Blast Companies in collecting such amounts. Blast Companies reserves the right to suspend performance of its obligations hereunder (or under any other agreement with Client) in the event Client fails to abide by this Section 3 or if Client breaches any of its other representations, warranties, covenants or obligations hereunder. Service re-establishment charges may be applicable in the event of Service suspension. Blast Companies reserves the right to require special payment terms for larger broadcasts or other campaigns where warranted by financial risks and other considerations. 4. TERM, RENEWAL AND TERMINATION. 4.1 Effect." These Terms of Service will enter into force upon signature hereof by all Parties and shall be effective as of the Effective Date. 4.2 Term." These Terms of Service shall be effective during the period between the Effective Date and the (1st) first anniversary thereof, subject to prior termination pursuant to Section 5. Thereafter, these Terms of Service shall automatically be renewed for additional successive periods of one (1) year each, unless terminated (a) pursuant to Section 5 or (b) as of the end of the initial or any subsequent period by either Party upon six (6) months' prior notice in writing. 5. EARLY TERMINATION. 5.1 Immediate Termination." Either Party may terminate these Terms of Service, effective immediately, without liability for said termination, upon written notice to the other Party, if any of the following events occur: (a) the other files a voluntary petition in bankruptcy; (b) the other is adjudged bankrupt; (c) a court assumes jurisdiction of the assets of the other under a federal reorganization act; (d) a trustee or receiver is appointed by a court for all or a substantial portion of the assets of the other; (e) the other becomes insolvent or suspends its business; or (f) the other makes an assignment of its assets for the benefit of its creditors except as required in the ordinary course of business. 5.2 Termination Upon Notice and Cure." Either Party may terminate these Terms of Service for a material breach or default of the any Agreement by the other, provided that such termination may be made only following the expiration of a thirty (30) day period during which the other Party has failed to cure such breach after having been given written notice of such breach. 5.3 Termination for Convenience." Either Party may terminate these Terms of Service for any reason or for no reason at all upon thirty (30) days advanced written notice to the other Party; provided, however, that termination under this Section 5.3 shall only be available if the terminating Party has performed all of its obligations under any of the outstanding Agreements. 6. MINIMUM COMMITMENT." If the Service Order specifies a Minimum Commitment, Client shall be obligated to meet or exceed the Minimum Commitment during the Commitment Term. If the Minimum Commitment has not been obtained by the end of the Commitment Term, then the Client shall pay to Blast Companies an amount equal to the difference between the amount paid by the Client to Blast Companies during the Commitment Term and the amount of the Minimum Commitment. Client acknowledges that Blast Companies will not be able to recover certain fixed costs as a result of the Client's failure to achieve the Minimum Commitment and, as a result thereof, Client and Blast Companies hereby agree that the amount to be paid pursuant to this Section 6 shall represent and be liquidated damages payable to Blast Companies as a fair and reasonable sum to recompense Blast Companies in light of Client's failure to achieve the Minimum Commitment and Blast Companies' costs incurred, labor and services performed, and the loss of its bargain, all of which are difficult to ascertain. These liquidated damages shall constitute Blast Companies' sole and exclusive remedy with respect to the Client's failure to achieve the Minimum Commitment (but not with respect to any other claim or right that Blast Companies may otherwise have under any Agreement). 7. WARRANTY; LIMITATION OF LIABILITY. 7.1 Warranty." Subject to the limitation of liability provision contained herein, Blast Companies warrants that the Services provided shall conform to the Terms of Use. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE HEREBY EXCLUDED. Client's exclusive remedy for breaches of this warranty shall be a pro rata refund of any fees received by Blast Compaies with representing undelivered Messages or the extension of the Term until all Messages are delivered. The foregoing shall constitute the Client's sole remedy for all claims arising out of the Agreements, including claims alleging (a) that Blast Companies has failed to deliver a Message in accordance with the schedule provided in any Agreement, (b) that Blast Companies fails to deliver the specified number of Messages indicated in the Agreement, or (c) any failure of Blast Companies to perform its obligations hereunder or any other failure, technical or otherwise, of the Message to be delivered as provided in the Agreement. 7.2 CLAIMS." Upon the full or partial completion of any Services, Client shall promptly contact Blast Companies in the event of any problem with the delivery of such Services. All claims for any cause whatsoever, whether based in contract, tort, negligence, strict liability, other tort or otherwise against Blast Companies shall be deemed waived within ten (10) business days after the provision of the Services (in whole or substantial part). Failure to act in accordance with this Section both in manner and within the time periods specified, shall be an unconditional waiver of the claim. 7.3 Limitation of Liability." IN NO EVENT SHALL BLAST COMPANIES BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), SPECIAL OR PUNITIVE DAMAGES FOR ANY CLAIM HEREUNDER RESULTING FROM ANY CAUSE WHATSOEVER, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE REGARDLESS OF WHETHER BLAST COMPANIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BLAST COMPANIES' LIABILITY HEREUNDER EXCEED THE AMOUNT PAID FOR THE SERVICES WHICH GAVE RISE TO THE CLAIM. The foregoing limitation shall survive notwithstanding failure of essential purpose of an exclusive or limited remedy. Blast Companies shall not be liable for, and CLIENT assumes all responsibility for and shall indemnify and hold harmless Blast Companies, its members, managers, employees and agents against any claim, suits, actions, expenses, costs, including attorneys' fees, damages and liabilities, including those involving personal injury and property damages, resulting from the delivery of the Message to the Recipients. 8. FORCE MAJEURE." Either Party shall be excused from performance hereunder (except as to payment for Services rendered and except to the extent expressly provided for herein), if and to the extent performance is prevented or delayed by any cause reasonably beyond its control, such as, and not by way of limitation, fire, floods, windstorms, explosions, strikes, work stoppages, labor disputes, riots, acts of God, sabotage, acts of a public enemy, wars, intervention by Governmental Authority (including regulatory intervention), electrical, telephone or other utility outages, and unavailability of necessary facilities. 9. TAXES AND OTHER CHARGES." If, during the Term, there shall be imposed or levied, by any Governmental Authority, any excise, sales or use tax, or any other tax, fee, impost, contribution, duty or levy, upon the provision of the Services by Blast Companies to Client hereunder, then the amount of any such new or additional tax, impost, duty, levy, contribution or excise by whatever name called plus interest and penalty, if any, shall be added to the price of the Services and Client shall pay the same to Blast Companies together with any other amounts payable pursuant to any Agreement. 10. INDEMNIFICATION." Client agrees to indemnify, hold harmless, and defend Blast Companies, its managers, members, affiliates, agents, content providers and service providers, against any and all claims, liabilities, penalties, fines, assessments, damages, losses, costs and expenses (including, but not limited to, attorneys' fees and disbursements) arising from or relating to (a) the use of Services in any manner which violates the terms of the Agreement, or otherwise violates any Applicable Law, (b) any claims made by third-parties arising from use of the Service, including without limitation any and all third-party claims arising from or related to any failure, delay, or interruption to the Service, (c) the delivery of any Message to the Recipients, and (d) any other violation of the terms of this Agreement. 11. INSURANCE." Client shall maintain, throughout the Term, the insurance policies described in this 11. 11.1 Contractual Liability; Additional Insureds." All insurance shall include contractual liability insurance covering Client's obligations to indemnify Blast Companies as required by the Agreements (including pursuant to Section 10 of these Terms and Conditions). All insurance shall name Blast Companies, its officers, managers, members, and employees as additional insureds, with a cross liability clause in effect on behalf of each of such entities. 11.2 Types of Insurance." During the Term, Client shall maintain at its sole expense Commercial General Liability insurance coverage including products and completed operations, contractual liability, bodily injury and property damage. This coverage shall include a waiver of subrogation, and shall be primarily for the benefit of Blast Companies, on an occurrence basis with limits of $1,000,000.00 per occurrence and in the aggregate and with a deductible of no more than $10,000.00. 11.3 Certificates of Insurance." Client shall deliver upon 10 days of written request from Blast Companies, Certificates of Insurance in form and substance satisfactory to Blast Companies evidencing the required coverages with limits not less than those specified in this Section 11. Further, all policies and Certificates of Insurance shall expressly provide that no less than 30 days' prior written notice shall be given Blast Companies in the event of alteration, cancellation, non-renewal or expiration of the coverage contained in such policy or evidenced by such Certificate of Insurance. Blast Companies shall be under no obligation to provide any Services in advance of the receipt of such Certificates of Insurance. 11.4 General Requirements." All insurance coverage procured by Client shall be provided by insurance companies having policyholder ratings no lower than "A" and financial ratings not lower than "VIII" in the Best's insurance Guide, latest edition in effect as of the date of this Agreement. 12. CONTENT OF MESSAGE." All contents of Messages are the sole responsibility of Client. Blast Companies reserves the right to reject or cancel any Message in its sole discretion; provided, however that Blast Companies shall not have any obligation to review any Message in advance of distribution pursuant to the Services. Blast Companies has no obligation to approve, endorse, or review or the content of any Message or any Recipient list. 13. NO LEGAL ADVICE." Client acknowledges that Client is not relying upon Blast Companies with respect to any legal advice in connection with any Services rendered by Blast Companies pursuant to this Agreement. Client will ensure that the Services requested in any Service Order order will comply with all Applicable Laws. 14. COMPLIANCE WITH APPLICABLE LAWS." Client agrees to and warrants that it shall abide by all Applicable Laws with respect to the preparation and delivery of the Message, contact of Recipients, and Client's use of the Services. Without limiting the foregoing, Client agrees not to post, transmit, link, or promote, or allow to be posted, transmitted, linked, or promoted, any illegal, harassing, threatening, libelous, defamatory, slanderous, hateful, racially or ethnically objectionable, pornographic, obscene, offensive, profane, indecent, or otherwise objectionable or unlawful matter, and Client agrees that the Services will not be used in any manner that constitutes infringement or dilution of another party's intellectual property. Client further agrees not to use the Service, or permit the Service to be used, in any manner that abuses or otherwise threatens the operation or integrity of Blast Companies' network. 15. INDEPENDENT CONTRACTORS. 15.1 Disclaimer of Intent to Become Partners." Blast Companies and Client shall not by virtue of any Agreement be deemed partners or joint venturers. It is expressly understood that each of the Parties is acting as an independent contractor. 15.2 No Agency." Nothing contained herein shall create an agency whereby Client may bind Blast Companies. Without limiting the generality of the foregoing, Client shall not, by virtue of any Agreement, have the right to (a) enter into contracts or commitments on behalf of or in the name of Blast Companies; (b) sign Blast Companies' name to any commercial paper, contract or other instrument; (c) contract any debt or enter into any agreement, either express or implied, binding Blast Companies to the payment of money; (d) receive or make payment for or on behalf of Blast Companies; or (e) make promises or representations on behalf of Blast Companies. 16. NOTICES." All notices, requests, demands, claims, and other communications hereunder will be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given if (and then two business days after) it is sent by registered or certified mail, return receipt requested, postage prepaid, and addressed to the intended recipient at their respective addresses (which, for Blast Companies shall be the address set forth above and, for the Client, shall be the address set forth below the Client's signature). Either Party may send any notice, request, demand, claim, or other communication hereunder to the intended recipient at the address described above using any other means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the intended recipient. Any Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other Party notice in the manner herein set forth. 17. MISCELLANEOUS. 17.1 Entire Agreement." These Terms of Service, the Terms of Use, and the Service Orders will serve as the entire agreement between the Parties, which (together) supersede all prior agreements between the Parties with respect to its subject matter and constitute a complete and exclusive statement of the terms of the agreement between the Parties with respect to its subject matter. This Agreement may not be amended except by a written agreement executed by the Party to be charged with the amendment.. 17.2 Arbitration." In the event of a dispute, both parties agree to abide by binding arbitration conducted pursuant to the rules of the American Arbitration Association to be conducted in St. Louis County, Missouri. 17.3 Survival." The provisions of Sections 7, 9, and 10 shall survive termination of these Terms of Service. 17.4 Waiver." Neither the failure nor any delay by any Party in exercising any right, power, or privilege under any Agreement or the documents referred to in any Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by law, no claim or right arising out of any Agreement or the documents referred to in any Agreement can be discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the other Party; no waiver that may be given by a Party will be applicable except in the specific instance for which it is given; and no notice to or demand on one Party will be deemed to be a waiver of any obligation of such Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in any Agreement or the documents referred to in any Agreement. 17.5 Jurisdiction; Service of Process." Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, any Agreement shall be brought against either of the Parties in the courts of the State of Missouri, County of St. Louis, or, if it has or can acquire jurisdiction, in the United States District Court for the Eastern District of Missouri, and each of the Parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. Process in any action or proceeding referred to in the preceding sentence may be served on any Party anywhere in the world. 17.6 Severability." If any provision in any Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of such Agreement shall continue in full force and effect. 17.7 Headings; Construction." The headings of the sections of these Terms of Service are inserted for convenience only, and shall not be deemed to constitute a part of these Terms of Service. All references to "Section" or "Sections" refer to the corresponding Section or Sections of these Terms of Service. All words used in any Agreement will be construed to be of such gender or number as the circumstances require. Unless otherwise expressly provided, the word "including" does not limit the preceding words or terms. 17.8 Counterparts." These Terms of Service and any Service Order may be executed in one or more counterparts, each of which will be deemed to be an original copy of an agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. These Terms of Service and any Service Order may be executed by facsimile signature, which shall be enforceable and binding upon the Party delivering such facsimile signature. 17.9 Governing Law." This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Missouri, U.S.A., without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Missouri, U.S.A. In the event of any dispute under this Agreement, the prevailing party shall be entitled to recover its attorneys' fees and court costs from the other party. 17.10 Binding Effect." Client may not assign any of its rights under any Agreement without the prior consent of Blast Companies, which may be withheld in its sole discretion. Blast Companies may assign its rights and obligations under any Agreement upon prior written notice to the Client. Subject to the preceding sentence, the Agreements will apply to, be binding in all respects upon, and inure to the benefit of the successors, heirs, and permitted assigns of the Parties. Nothing expressed or referred to in this Agreement will be construed to give any person or entity other than the Parties to the Agreements any legal or equitable right, remedy, or claim under or with respect to the Agreements or any provision of the Agreements. The Agreements and all of their respective provisions and conditions are for the sole and exclusive benefit of the Parties to this Agreement and their successors, heirs, and permitted assigns.