The terms of the Platform Agreement (together with any Order Forms, exhibits, schedules or addenda thereto, the “Platform Agreement”), by and between Wunderkind and your employer or the entity for which you are acting as an agent or representative of (the “Company”), remain in effect. SMS is a Platform, as defined in the Platform Agreement, and the Content constitutes Services, as defined in the Platform Agreement. In the event of any conflict or inconsistencies between the Platform Agreement and these Terms, the Platform Agreement shall control unless expressly stated otherwise in these Terms. All capitalized terms used herein but not otherwise defined will have the meanings ascribed to them in the Platform Agreement.
Wunderkind reserves the right, in its sole discretion, to change, modify, add or remove portions of these Terms and/or the Policies. It is your responsibility to check these Terms and the Policies periodically for changes. Wunderkind will post a current copy of these Terms at www.wunderkind.co/terms/sms/. Your continued use of SMS following the posting of any changes will mean that you accept and agree to such changes. As long as you comply with these Terms, Wunderkind grants you a personal, non-exclusive, non-transferable, limited license to access and use SMS and the Content, subject to the terms and conditions below and in the Platform Agreement.
- Company represents, covenants and warrants that Company will use the SMS Platform only in compliance with the Acceptable Use Policy, located at www.wunderkind.co/terms/sms-aup/ (the “Acceptable Use Policy”), which is referenced and fully incorporated herein, and all applicable laws and regulations. Company hereby agrees to indemnify and hold Wunderkind harmless against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing. Wunderkind reserves the right to, in its sole discretion, modify or amend the Acceptable Use Policy as required.
- Company is responsible for (i) all actions taken by Company or its employees, contractors, agents or other individuals authorized by Company to access the SMS Platform (collectively, the “Users”) on the SMS Platform, including, without limitation, the Message content the Company and/or its Users provide, upload or deliver to the SMS Platform, and (ii) the Users’ compliance with this Order Form, including, without limitation, the Acceptable Use Policy, such that a User’s breach of this Order Form constitutes a breach by the Company. Wunderkind has no obligation to review Message content the Company and/or its Users provide, upload or deliver to the SMS Platform. Company shall (x) ensure that the user IDs, passwords and other access credentials for the SMS Platform are kept in strict confidence, and (y) implement and maintain all such administrative, physical and technical safeguards as may be necessary to prevent unauthorized users from gaining entry or access to the SMS Platform.
- Company will, immediately before the SMS Platform Date, maintain and make available on each Company website (i) a statement of Company’s terms and conditions of use for the Site(s) and (ii) a statement of the privacy practices of Company.
- Each statement of the terms and conditions required by this Section 4 must disclose that Company will send the Messages if any end user elects to receive marketing or promotional text messages, including such end user’s right to revoke her or his consent to receive such marketing or promotional text messages. For Company’s convenience, Wunderkind provides the following sample terms and conditions disclosure, but strongly encourages Company to work with its own counsel to ensure these disclosures accurately represent Company’s practices:
- Each statement of terms and conditions required by this Section 4 must also include (i) clauses requiring any disputes between Company and an end user to be resolved through arbitration and (ii) a class-action waiver by each end user of the Company.
- Each privacy statement required by this Section 4 must describe that Company and third-party partners may use information collected via the Site(s) to send marketing messages including, with the end user’s consent, marketing text messages. For Company’s convenience, Wunderkind provides the following sample privacy statement disclosure, but strongly encourages Company to work with its own counsel to ensure these disclosures accurately represent Company’s practices:
- You may elect to receive text messages from us. When you sign up to receive text messages, we will send you information about promotional offers and more These messages may use information automatically collected based on your actions while on our sites and may prompt messaging such as cart abandon messages. To the extent you voluntarily opt to have SMS notifications sent directly to your mobile phone, we receive and store the information you provide, including your telephone number or when you read a text message. You may opt out of receiving text messages at any time by texting “STOP” to our text messages.For more information about text messages, see our Terms and Conditions.
- Liability. The provision of the SMS Platform is experimental and shall not create any obligation for Wunderkind to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide or develop the SMS Platform either to Company or to any other party. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN EITHER THE AGREEMENT OR ANY ORDER FORMS (AS DEFINED IN THE AGREEMENT), Wunderkind’S CUMULATIVE LIABILITY FOR DAMAGES, IF ANY, FOR ALL CLAIMS OF ANY KIND ARISING IN CONNECTION WITH COMPLAINTS OF PERFORMANCE, BREACH OF THIS ORDER FORM, COMPANY’S USE OF THE SMS PLATFORM OR THE DELIVERY OF THE MESSAGES IS LIMITED TO $1,000. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN NO EVENT SHALL Wunderkind OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, OR SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF WORK PRODUCT, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, WHETHER IN TORT, CONTRACT, OR OTHERWISE. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN SHALL REMAIN FULLY EFFECTIVE EVEN IF THE REMEDIES AVAILABLE TO A PARTY FAIL OF THEIR ESSENTIAL PURPOSE OR ARE OTHERWISE HELD TO BE UNENFORCEABLE.