Outsell Terms of Service and License (End User License Agreement)

Last Updated: January 23, 2024

Welcome to Outsell. Outsell Corporation, a Delaware corporation (“Outsell,” “we,” “us,” or similar) is proud to offer our proprietary technology-based service to analyze, manage, and maximize customer data and engage in digital marketing and related professional services (collectively, the “Services”).  

This Terms of Service and License (“Agreement”) is by and between you and Outsell and governs your access and use of the Services. “You” and similar terms refers to both: (i) the individual who is physically or technologically accessing or using the Services, as well as (ii) the organization, business, or entity on whose behalf the individual is accessing or using the Services (the “Customer”). By accessing or using the Services, and entering into this Agreement, the individual user represents and warrants that they are authorized to enter into this Agreement on behalf of themselves and such Customer.

This Agreement will be binding on the individual and/or the Customer, as applicable, upon the earliest of: (i) your execution, submission, or other acceptance of a Subscription (defined below), either electronically or in writing, or (ii) your installation, access, or use of the Services or any related documentation. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, ACCESS, OR USE THE SERVICES.

If you and Outsell are parties to a different agreement related to the Services dated prior to the “Last Updated” date above, you hereby agree that your access and use of the Services after the last version of this Agreement is posted and presented to you when you log in to your account or enter into a Subscription constitutes your acceptance of this Agreement in lieu of and superseding any prior terms and conditions related to your use of the Services.

You understand that we reserve the right to change or amend this Agreement from time to time. Except as otherwise required by law, all changes shall be immediately effective upon their posting to our website at outsell.com. You acknowledge and agree that your continued access and use of the Services following such changes shall be deemed acceptance by you of any new or amended provisions of this Agreement.

By accessing or using the Services, and/or authorizing the use of the Services by another individual, you represent and warrant that you are 18 years of age or older and otherwise meet all of the requirements contained herein to enter into this Agreement. Those who choose to access the Services from outside of the United States do so on their own initiative and at their own risk and are responsible for compliance with all applicable laws, rules, and regulations in their respective location in doing so.

  1. Services. The Services to which you are receiving access and a license to use pursuant to this Agreement will be identified in the corresponding purchase order, proposal and subscription agreement, statement of work, order form, invoice, online subscription choice, or similar (each, for the purposes of this Agreement, a “Subscription”). The scope of any license granted to you hereunder is limited to the software applications and related technology (such as, related APIs or connectors) identified in the Subscription as being licensed by Customer from Outsell (“Solutions”). Each Subscription, together with the terms and conditions herein, forms the agreement between the parties with respect to the Services. Any conflict between the terms of the Subscription and the terms of this Agreement, the terms of this Agreement will control, except as expressly amended by an individual Subscription by specific reference to the amended provision. Subscriptions may be modified or amended only by an amendment to the applicable Subscription, or a written change order executed by both parties, and such document shall become effective after execution by both parties. Changes to a Subscription may result in additional costs and fees. 
  2. License Grant. Outsell hereby grants to you, subject to all the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable (except as permitted by this Agreement), non-sub licensable license to access and use the Services specified in the Subscription via the Internet for the duration of the period set forth in the applicable Subscription, and to use the Services solely for Customer’s internal business purposes, for the purposes contemplated in the applicable Subscription, and for the number of persons Customer desires to have access to the Services (“Authorized Users”) identified in the Subscription. If contemplated by the applicable Subscription, Authorized Users may include a third-party business, entity, or organization that is a client, customer, vendor, or affiliate of Customer, and such third party’s employees or agents. For the purposes of this Agreement, an “affiliate” of a party means any corporation or other entity which controls, is controlled by, or is under common control with such party, wherever located in the world. Outsell retains the right to perform the same or similar type of services for third parties in Customer’s industry during the Term of this Agreement. Nothing in this Agreement shall be construed as granting you any exclusivity with respect to Outsell’s business, operations, or conduct.
  3. License Restrictions. You may not do any of the following, nor may you permit any Authorized User or any third party to do any of the following: (a) exceed the limited license rights granted in this Agreement including, without limitation, the sharing of passwords or other login credentials with those not given explicit rights to access and view the Services under this Agreement; (b) remove any proprietary notices, labels, or marks from the Services; (c) sell, transfer, lend, lease, license, or sublicense the Services; (d) copy, distribute, modify, or otherwise create derivative works of the Services, Solutions, or any content therein; (e) circumvent any digital rights management or copyright management protection associated with the Services; (f) translate, reverse engineer, decompile or disassemble the Services or the Solutions; (g) use any manual or automated software, bots, devices, scripts, robots, or other means to access, “scrape,” “crawl,” or “spider” any web pages or data contained in the Services; or (h) falsely state, impersonate, or otherwise misrepresent any information relevant to your use of the Services. During the term of the Agreement, Outsell may, in Outsell’s sole discretion, audit your, and your Authorized Users’, use of the Services to ensure compliance with this Agreement. 
  4. Authorized Users. Authorized Users shall be required to individually accept and agree to the terms of this Agreement (located at: http://www.outsell.com/outsell-user-service-agreement) and Outsell’s Privacy Policy (located at: https://www.outsell.com/privacy-policy/) which are in effect at the time of access. Outsell may deny access to any Authorized User who fails to agree to this Agreement or the Privacy Policy. You acknowledge that use of the Services is governed by Outsell’s Privacy Policy and you hereby consent to the collection, use, and disclosure of your personal information as described therein. 
  5. Accounts. Outsell shall issue to Customer, or shall authorize a Customer administrator to issue, a password for each Authorized User to use Customer’s account.  You are responsible for maintaining the confidentiality of all usernames and passwords and for ensuring that each username and password is used only by the appropriate Authorized User. Customer is solely responsible for any and all usage of the Services resulting from access through any Authorized User’s username and password. Customer shall promptly notify Outsell of any unauthorized use of Customer’s account (including each password of each user accessing the Services by means of Customer’s account) or any other breach of security known to Customer. 
  6. Your Responsibilities. Customer shall provide the materials, personnel, data, and information necessary for Outsell to perform the Services, in the manner and at the times specified in the applicable Subscription. You are solely responsible for your actions, and the actions of your Authorized Users, while using the Services. You and your Authorized Users shall: (a) abide by all local, state, national, and international laws and regulations applicable to your use of the Services, including without limitation all laws regarding the transmission of technical data via the Services; (b) use commercially reasonable efforts to prevent any viruses, corrupted files, or any other similar software or programs that may damage the operation of the Services, or result in any loss, disruption, or authorized access of hardware or data, from being introduced to the Services; (c) not transmit through the Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, hateful, or otherwise objectionable material of any kind or nature; (d) not transmit any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; and (e) not use the Services to communicate with any person in violation of any laws, including without limitation the Telephone Consumer Protection Act of 1991, the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003, Section 5 of the Federal Trade Commission Act, Canada’s Anti-Spam Legislation, the California Invasion of Privacy Act, the Federal Electronic Communications Privacy Act, and similar marketing and communication laws. You acknowledge and agree that Outsell may remove or disable any violating content transmitted via the Services without prior notice to you. 
  7. Data Sources. The Services described in the Subscription may require access by Outsell to the applications, systems, data, or databases of third parties with whom Customer has a direct contractual relationship and who provide Customer services or otherwise process information on Customer’s behalf (collectively, “Data Sources”). You are solely responsible for procuring for Outsell the right and permission for Outsell to access and connect with Data Sources on your behalf. Examples of Data Sources include Customer’s CRM provider, payroll provider, and marketing agency. Data Sources are independent from Outsell; Customer acknowledges and agrees that Outsell is not responsible or liable for the acts, omissions, or conduct of any Data Source. Customer represents and warrants, now and for the duration of this Agreement, that: (a) Customer owns all right, title, and interest in and to any information or data Outsell accesses or receives via a Data Source, including any consumer data (“Sourced Data”); (b) Customer is authorized by each Data Source to allow and authorize Outsell to access, use, transmit, download, copy, and process any Data Source information or systems, as contemplated by this Agreement; (c) Customer has all rights, permissions, and authority necessary, with respect to the Data Source, to itself engage in the conduct and actions Outsell will be engaging in as part of providing the Services; and (d) Outsell’s performance of its obligations hereunder will not violate any agreement between Customer and any Data Source or any applicable laws. Outsell may deny Customer access to Sourced Data, in whole or part, at any time, without notice, and with no further liability to Customer, if a Data Source terminates or withdraws the permissions necessary for Outsell to supply the Sourced Data to Customer. Customer shall indemnify, defend, and hold harmless Outsell, its affiliates, officers, directors, employees, agents, and contractors, from and against any and all losses, claims, liabilities, damages, and expenses (including attorneys’ fees) relating to or arising out of any claim by any Data Source that Outsell’s provision of the Services, or access or use of any Sourced Data retrieved or originating from such Data Source, infringes upon, misappropriates, or violates any intellectual property or proprietary right of such third party, violates any agreement between Customer and such Data Source, or otherwise violates applicable laws.
  8. Intellectual Property. 
    1. Excluding any Sourced Data or other data, materials, or information (including content) submitted or uploaded to the Services by you or your Authorized Users or transmitted by you or your Authorized Users using the Services (collectively, the “Customer Materials”), the Services, Solutions, and all technology or information related thereto, including all models, algorithms, and code used therein or in connection therewith (collectively, the “Outsell Materials”) are the sole and exclusive property of Outsell or its licensors. As between you and Outsell, Outsell owns all right, title, and interest, including Intellectual Property Rights, in and to the Outsell Materials. Nothing in this Agreement shall be construed as transferring or granting to you any ownership or similar right in or to any Outsell Materials or any Outsell products or software solutions. For the purposes of this Agreement, “Intellectual Property Rights” means intellectual property rights, including without limitation, all works of authorship, mask works, trademarks and service marks (together with any registrations or applications thereof), patents (together with any extensions, reexaminations and reissues of such patents, patents of addition, patent applications, divisions, continuations, continuations- in-part, and all subsequent filings in any country or jurisdiction claiming priority therefrom), copyrights, derivative works, trade secrets, trade dress, know-how, drawings, ideas, designs, concepts, techniques, methodologies, processes, inventions, research and development, and discoveries; including, but without limitation, any and all modifications, updates, derivatives, or variations thereof.
    2. As between the parties, Customer owns all right, title, and interest in and to all Customer Materials. Customer hereby grants Outsell a non-exclusive, royalty-free license during the Term to access, use, collect, reproduce, display, execute, compile, and otherwise process Customer Materials in connection with, and as required to provide, the Services. Customer also grants Outsell permission to identify Customer by name, trademark, or logo: (a) as contemplated by the Services and for the purposes of performing the Services; and (b) as a customer of Outsell in Outsell’s marketing materials. No other licenses, permissions, or rights are granted hereby. 
    3. Notwithstanding anything in this Agreement to the contrary, Customer agrees that Outsell may use Customer Materials to create De-Identified Data. “De-Identified Data” means data and information that is collected or created by Outsell in the course of providing the Services that does not identify any individual, or Customer, or any Authorized User. De-Identified Data may include data or information collected by Outsell when Customer or its Authorized Users access or use the Services, including technical data, performance data, statistical data, and connection data. As between Customer and Outsell, Outsell owns all right, title, and interest, including all Intellectual Property Rights, in and to the De-Identified Data and may use such data for any lawful purpose. This includes using De-Identified Data to conduct research, improve the Services, create or build new products, build and train proprietary algorithms or models, engage in data analytics, and otherwise exploit the data for Outsell’s commercial purposes.
  9. Fees. You shall make payments in the amounts indicated in the Subscription in consideration for the Services provided by Outsell. Unless otherwise specified in the Subscription, you shall pay any invoices issued by Outsell within thirty (30) days of receipt of such invoice. You shall be responsible for any taxes applicable to the use or delivery of the Services, or as otherwise applicable to you in this Agreement; provided however, in no event shall you be responsible for any taxes based on the net income of Outsell. If there is a dispute regarding any invoice rendered or amount paid or to be paid, the party disputing such invoice (“Disputing party”) shall notify the other party in writing thereof, and the parties shall use their best efforts to resolve such dispute expeditiously. In no event shall a dispute waive, cancel, or suspend any party’s obligations under this Agreement. If the Disputing party notifies the other in writing of a disputed invoice or payment, and there is a good faith basis for such dispute, the time for paying the disputed portion of the invoice shall be extended by a period of time equal to the time between the Disputing party’s receipt of such notice and the resolution of such dispute.
  10. Confidentiality.
    1. “Confidential Information” as used in this Agreement will mean any and all non-public information (including, but not limited to Customer Materials and Outsell Materials) disclosed by one party or its agents or representatives (“Disclosing party”) to the other party or its agents or representatives (“Receiving party”) whether intentionally or unintentionally, or otherwise viewed, heard, accessed, or obtained in any way, during the term of this Agreement. Confidential Information does not include any information (a) in the public domain at or subsequent to the time it was communicated to the Receiving party through no fault of the Receiving party; (b) rightfully in the Receiving party’s possession free of any obligation of confidence at or subsequent to the time it was communicated to the Receiving party; or (c) that was or is independently developed by Receiving party, as established by documentary evidence, without using any Confidential Information. 
    2. The Receiving party will not disseminate, or in any way disclose, Confidential Information to any person, organization, entity, or business, except for those employees, agents, contractors, professional advisors, and investors who need to know the information and are, either by virtue of a written agreement or the nature of engagement, bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving party will use Confidential Information solely for performing its rights or obligations under this Agreement. Each party will treat all Confidential Information of the other party with the same degree of care as it accords to its own Confidential Information, and each party represents that it exercises reasonable care to protect its own Confidential Information. The Receiving party will immediately give notice to the Disclosing party of the date of, and circumstances involved in, any loss of or unauthorized use or disclosure of any Confidential Information. The Receiving party will assist the Disclosing party in remedying any such unauthorized use or disclosure of the Confidential Information, including by securing the return of the Confidential Information from the party to whom the Confidential Information was disclosed. 
    3. Upon request by the Disclosing party or otherwise upon termination or expiration of this Agreement, the Receiving party shall return or destroy all of the Confidential Information of the other party, including all copies thereof in any media. 
    4. In the event that the Receiving party is required by law, regulation or court order to disclose any of the Disclosing party’s Confidential Information, the Receiving party will promptly notify the Disclosing party in writing prior to making any such disclosure in order to facilitate the Disclosing party’s seeking a protective order or other appropriate remedy from the proper authority. 
    5. Due to the unique confidential, proprietary, and valuable nature of the Confidential Information, the Receiving party acknowledges and agrees that in the event the Receiving party fails to comply with its obligations hereunder, that monetary damages may be inadequate to compensate the Disclosing party. Accordingly, the Receiving party agrees that the Disclosing party shall, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement.
  11. Term. The term of this Agreement shall commence upon the effective date of the applicable Subscription and shall continue according to the terms of the applicable Subscription. If the Subscription provides for automatic renewal of the Services, Outsell may adjust the fees for any subsequent renewal terms for the Services described in the Subscription by notice in advance of renewal. 
  12. Termination. 
    1. Either party may terminate this Agreement:  (a) upon ninety (90) days’ prior written notice after expiration of the Subscription’s initial term; (b) if the other party is in material breach or default of any obligation hereunder and has not cured such breach or default within thirty (30) days of receiving written notice thereof; or (c) if the other party becomes insolvent, or files as a debtor  under any bankruptcy, insolvency or liquidation law, whether domestic or foreign, or such a filing is made against such party and such involuntary filing is not dismissed within sixty (60) days of commencement thereof. Upon termination or expiration of this Agreement, Customer shall pay all charges and out-of-pocket expenses that are due and have been accrued through the date of termination or expiration.  
    2. Upon termination or expiration of this Agreement, the rights and licenses granted to you hereunder immediately terminate and you and your Authorized Users shall cease all use of the Services. Upon termination or expiration of this Agreement, the rights and licenses granted to Outsell hereunder with respect to the Customer Materials immediately terminate. The parties’ respective obligations hereunder which by their nature would continue beyond the termination or expiration of this Agreement shall survive – for example, those sections of this Agreement titled, “Confidentiality,” “Intellectual Property,” “Limitations of Liability” and “Indemnification.” 
  13. Warranties. Outsell represents and warrants that the Solutions will perform in accordance with their documentation and the terms of the applicable Subscription. Outsell’s sole obligation and your sole remedy with respect to a breach of this warranty will be a re-performance of the nonconforming Services under such Subscription.  You represent and warrant that: (a) your, and your Authorized Users’, use of the Services and all Solutions shall comply with all applicable laws, rules, and regulations, including all laws relating to or concerning the privacy of personal information of individuals; (b) your use of the Services will not conflict with any other agreement to which you are a party; and (c) you have obtained all necessary consents and permissions, and have in place all appropriate agreements, to allow you to grant the licenses and rights set forth herein, including without limitation with respect to Customer Materials. 
  14. Warranty Disclaimer.   EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED FOR IN THIS AGREEMENT, ALL SERVICES, AND ALL SOLUTIONS AND OTHER MATERIALS, ARE PROVIDED “AS IS”, AND OUTSELL HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO SUCH SERVICES, SOLUTIONS, AND OTHER MATERIALS, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, FREEDOM FROM INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. OUTSELL HEREBY EXPRESS DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES REGARDING THE PERFORMANCE OR FUNCTIONALITY OF ANY THIRD-PARTY SOFTWARE.  
  15. Limitations of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS), REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID (OR OWING BUT UNPAID) TO OUTSELL BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM PURSUANT TO THE SUBSCRIPTION TO WHICH THE CLAIM RELATES. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY TO A PARTY’S: INDEMNIFICATION OBLIGATIONS HEREIN, VIOLATION OF THE LICENSE LIMITATIONS OR RESTRICTIONS HEREUNDER, OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS. 
  16. Indemnification.
    1. Outsell will indemnify, defend, and hold harmless Customer and its affiliates, entities, directors, officers, employees, and agents from and against any and all damages payable to any third party in any suit or cause of action alleging the Services, or Customer’s use of the Services, infringes upon the copyright or any other intellectual property right of any third party arising under the laws of the United States. In the event Customer is unable to use a portion of the Services due to such allegation, Outsell may, at its option, procure Customer the right to continue to use such Service, or replace or modify such Service so that it becomes non-infringing. If neither option is available, Outsell may terminate this Agreement or the applicable Subscription and refund all fees paid for such Service. This section details Customer’s sole and exclusive remedy with respect to any claim related to intellectual property infringement. The foregoing obligations of Outsell do not apply to the extent that the infringing Service, or portions or components thereof, or modifications thereto, were not supplied or directed by Outsell, or were combined with other products, services, processes, or materials not supplied or directed by Outsell (where the alleged infringement relates to such combination). 
    2. Customer will indemnify and hold harmless Outsell and its affiliates, directors, officers, employees, and agents from and against any and all claims, losses, damages, suits, fees, judgments, costs and expenses, including reasonable attorneys’ fees brought or asserted by any third party arising out of or relating to: (a) the Customer Materials, including any allegation that Outsell’s processing or use of Customer Materials infringes on any third-party intellectual property, proprietary, or privacy right; or (b) Customer’s violation of applicable laws, rules, or regulations.  
  17. Notices.  Notices permitted or required to be given hereunder will be deemed sufficient if given by e-mail, or registered or certified mail, postage prepaid, return receipt requested, addressed to the respective addresses of the parties in the Subscription. Notices so given will be effective upon the earlier to occur of (a) receipt by the party to which notice is given, or (b) if sent by registered or certified mail, the fifth (5th) business day following the date such notice was posted, whichever occurs first.  
  18. Insurance. Outsell will, at its own cost and expense, obtain and maintain liability insurance, with, at minimum, the following coverages: commercial general liability insurance, including contractual liability, in the amount of $1,000,000 per occurrence and $2,000,000 in aggregate; workers compensation in the amount required by law; cyber liability insurance in the amount of $1,000,000 per occurrence and $3,000,000 in aggregate; and a fidelity bond/crime coverage in the amount of $500,000.   
  19. Applicable Law; Venue. This Agreement shall be governed by the laws of the State of Minnesota.  Any action arising in connection with this Agreement will be brought in the federal and/or state courts located in Hennepin County, Minnesota. 
  20. Independent Contractor. Outsell shall act at all times as an independent contractor and shall be responsible for any and all social security, unemployment, workers’ compensation and other withholding taxes for any and all of its employees.
  21. Force Majeure. Each party’s performance may be subject to interruption and delay due to causes beyond the reasonable control of such party including without limitation, strikes, labor unrest, riots, power outages, inclement weather and acts of God. In the event of such interruption or delays, the period of performance shall be extended for a period of time equal to the interruption or delay. If such a force majeure event extends for more than thirty (30) consecutive days, either party may terminate this Agreement and any applicable Subscriptions hereunder by delivering written notice to the other party. 
  22. Export Laws; Government Entities. The Services and all related technical data are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations and may be subject to export or import regulations of other countries. You shall not use, export, re-export, or provide access to the Services in any form in violation of any applicable export or import laws of any jurisdiction. The Services are commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are the US Government or any contractor therefor, you shall receive only those rights with respect to the Services as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
  23. Entire Agreement. This Agreement, including all Subscriptions, as well as Outsell’s Privacy Policy (located at: https://www.outsell.com/privacy-policy/), which is hereby incorporated by reference, constitute the “Agreement” between the parties and are the entire agreement between Outsell and Customer regarding this subject matter, and supersede and replace all prior and contemporaneous communications or agreements with respect to the Services and the subject matter hereof and thereof.  
  24. Miscellaneous.  Outsell may freely assign this Agreement, following which Outsell will give Customer prompt subsequent written notice of the same. Customer may not assign or transfer its rights or obligations under this Agreement, in whole or part, without the express written consent of Outsell, which shall not be unreasonably withheld, except that Customer may assign this Agreement in whole to a successor entity by way of merger, corporate reorganization, sale of substantially all assets, or similar transaction if such successor entity assumes all rights and obligations under this Agreement and upon reasonable, written notice to Outsell. If any provision of this Agreement proves to be or becomes invalid or unenforceable under any applicable law, then such provision shall be deemed modified to the extent necessary in order to render such provision valid and enforceable in the manner that best advances the spirit of this Agreement; if such provision may not be so saved, it shall be severed and the remainder of this Agreement shall remain in full force and effect. No waiver of any provision of this Agreement or the breach thereof shall be effective unless made in writing and signed by an authorized representative of the waiving party. 
  25. Contact Information. You can contact us regarding this Agreement using the information below: 
    Outsell Corporation
    650 3rd Ave S. Suite 1600
    Minneapolis, MN 55402
    Phone: (866) 560-2122 
    Email: info@outsell.com 
  26. Specific Services Terms. The following are terms that may only be applicable depending upon the specific Services procured. These terms, to the extent they apply, are incorporated into the Agreement. 
    1. SMS Text Message Campaign Terms and Conditions. The terms and conditions of this SMS Text Message Campaign Agreement (for the purposes of this section, referred to as the “Agreement”) is effective as of date of the Effective Date (as defined in the Subscription) and is by and between Outsell Corporation (“Outsell”), on behalf of itself and its affiliates, and the Customer (for the purposes of this section, the “Dealer”). Outsell and Dealer shall be collectively referred to herein as the “Parties.” For good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows.
      • Outsell provides services that enable Dealer to send informational SMS text messages to Dealer’s customers (the “Services”) using technologies, which may include TruVideo, Inc.’s (“TruVideo”) proprietary video and texting communications platform (the “Marketing Delivery Platform”).
      • Dealer agrees that Outsell may enter into a Reseller and Distribution Agreement with, and utilize TruVideo’s services, including its Marketing Delivery Platform , in order to provide the Services. Dealer also agrees that, to provide the Services, Outsell may, among other things, grant to the Dealer limited, use-based, sublicenses of the Marketing Delivery Platform. Dealer shall comply with the applicable provisions in the Reseller and Distribution Agreement, a redacted copy of which has been provided by Outsell to the Dealer.
      • Outsell hereby grants to the Dealer a personal, non-exclusive, non-transferable, fully- paid-up, royalty- free right and license to use the Marketing Delivery Platform solely and exclusively and in connection with the Services, in accordance with, and subject to, the terms of this Agreement.
      • Except as may otherwise be permitted herein, Dealer shall not, at any time: (i) modify or translate the Marketing Delivery Platform and/or its related source code, intellectual property, development methodologies, design features, or other intellectual property comprising the same; (ii) reverse engineer, de-compile or disassemble the same; (iii) export or use the algorithms thereof with another product; or (iv) remove or obscure any proprietary rights notices or labels thereon.
      • Dealer is responsible for ensuring that its use of the Services complies with all applicable laws, including any law relating to the sending of informational or promotional SMS text messages. Dealer is solely responsible for identifying the recipients of any SMS text messages sent through the Services. As such, Dealer represents and warrants that it has all necessary authorizations, consents, and rights to send SMS text messages to any recipients through the Services and that its use of the Services complies with all applicable laws. For avoidance of doubt, Outsell will facilitate opt-outs from any messages it sends on Dealer’s behalf in compliance with applicable laws.
      • Dealer acknowledges TruVideo shall remain the sole owner of the Marketing Delivery Platform (except to the extent that such Marketing Delivery Platform incorporates or otherwise utilizes pre-existing or independently-existing intellectual property of Outsell or other third-party licensors and nothing in this Agreement is intended to change the legal rights of either TruVideo or Outsell or third- party licensors to the ownership of their intellectual property). The parties agree that generally available enhancements to the Marketing Delivery Platform that are not otherwise Outsell property are the property of TruVideo and will be available in the Marketing Delivery Platform.
      • Dealer shall defend, indemnify, and hold harmless Outsell and TruVideo, and their respective officers, directors, employees, agents and representatives (collectively, “Indemnified Parties”), from and against any and all damages, liabilities, claims, costs, charges, lawsuits, proceedings, judgments and expenses (including interest, penalties and reasonable attorneys’ fees) incurred by any such Indemnified Party as a result of third party claims against any of them that arise out of or result from (i) any breach by Dealer of any of its representations, warranties, or obligations contained in this Agreement, (ii) Dealer’s failure to comply with, or violation of, applicable laws in connection with Dealer’s use of the Services, or (iii) Dealer’s failure to obtain appropriate authorization or consent from any recipient of an SMS text message sent using the service prior to the sending of such SMS text message. The foregoing indemnification obligation is subject to the Indemnified Party: (a) giving Dealer prompt written notice of any such claim; (b) allowing Dealer to control the defense and settlement of such claim; (c) not entering into any settlement or compromise of such claim without Dealer’s prior written consent; and (d) providing all reasonable assistance requested by Dealer in the defense or settlement of such claim, at Dealer’s expense.
      • This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same Agreement and shall become effective when one or more counterparts have been signed by the Parties hereto delivered to the other.
    2. Live Chat Administration. If you have licensed the Live Chat Administration service, your license for this service is limited to use by the number of licensed Authorized Users and solely with the individual website indicated in your agreement to purchase such services. You are not allowed to copy chat code to any other websites and will be billed (at then current rates) for any additional unauthorized chat buttons. Additional chat buttons can be purchased by contacting the program administrator. You are responsible for placing and maintaining the Live Chat button on your web server provider; and maintaining (keeping current) and updating all routing contacts for live chat transcripts and CRM routing systems, and cancellation of Live Chat button on your website when applicable.