BROADLY, INC. TERMS AND CONDITIONS

Date of Last Revision: June 28, 2017

BEFORE USING THE SERVICES (AS DEFINED BELOW), PLEASE READ THESE TERMS AND CONDITIONS (THESE “TERMS”).  THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER PAGE (WHETHER IN PHYSICAL OR ELECTRONIC FORM), MUTUALLY AGREED UPON BY THE ORGANIZATION IDENTIFIED THEREIN (“CUSTOMER”) AND BROADLY, INC. (“BROADLY”), PURSUANT TO WHICH THE CUSTOMER RECEIVES THE RIGHT TO ACCESS AND USE THE SERVICES.  THESE TERMS AND THE ORDER PAGE TOGETHER FORM A BINDING AGREEMENT BETWEEN CUSTOMER AND BROADLY, EFFECTIVE AS OF THE DATE SPECIFIED ON THE ORDER PAGE OR THE FIRST DATE (THE “EFFECTIVE DATE”) CUSTOMER CLICKS “PLACE ORDER” OR THE LIKE, AS APPLICABLE (THIS “AGREEMENT”).

BROADLY RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO CHANGE OR MODIFY PORTIONS OF THESE TERMS AT ANY TIME.  IF BROADLY DOES THIS, IT WILL POST THE CHANGES ON THIS PAGE AND WILL INDICATE AT THE TOP OF THIS PAGE THE DATE THESE TERMS WERE LAST REVISED. BROADLY WILL ALSO NOTIFY CUSTOMER, EITHER THROUGH THE SERVICES USER INTERFACE, IN AN EMAIL NOTIFICATION TO CUSTOMER OR THROUGH OTHER REASONABLE MEANS. ANY SUCH CHANGES WILL BECOME EFFECTIVE NO EARLIER THAN FOURTEEN (14) DAYS AFTER THEY ARE POSTED, EXCEPT THAT CHANGES ADDRESSING NEW FUNCTIONS OF THE SERVICES OR CHANGES MADE FOR LEGAL REASONS WILL BE EFFECTIVE IMMEDIATELY. CUSTOMER’S CONTINUED USE OF THE SERVICE AFTER THE DATE ANY SUCH CHANGES BECOME EFFECTIVE CONSTITUTES ITS ACCEPTANCE OF THE NEW TERMS.

1. Provisions Binding Authorized Users of Customer.

1.1 If you are an authorized user of Customer, you agree to the terms set forth in Sections 4, 5, 6, 10.2, 10.4 and 11, in each case as if you were Customer hereunder.

2. Services.

2.1 Subject to the terms and conditions of this Agreement, Broadly will provide the SaaS-based services set forth on the Order Page available through Broadly’s website at broadly.com and through its mobile applications and related services (the “Services”) and hereby grants Customer a non-exclusive right to access and use the Services and any software provided by Broadly in connection with the Services, as applicable, during the Term.  Customer is responsible for maintaining the confidentiality of its login, password and account and for all activities that occur under its login or account.  Customer understands that Broadly’s performance is dependent in part on Customer’s actions.  Accordingly, Customer will cooperate with Broadly in connection with the performance of this Agreement by making available such personnel, information, items and assistance as may be reasonably requested. Customer may not knowingly provide to any person or export or re-export or allow the export or re-export of the Services or any related software or anything related thereto or any direct product thereof in violation of any applicable laws or regulations.  Customer shall provide a publicly available privacy policy on its website, which shall include language relevant to the Services, as Broadly may reasonably request.

2.2 Customer understands that the operation of the Service, including Customer Content (as defined below), may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Broadly’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service.  Accordingly, Customer acknowledges that Customer bears sole responsibility for adequate security, protection and backup of Customer Content.  Broadly will have no liability to Customer for any unauthorized access or use of any of Customer Content, or any corruption, deletion, destruction or loss of any of Customer Content.

3. Payment of Fees.  Customer will be required to provide Broadly with information regarding its credit card or other payment instrument.  Customer represents and warrants to Broadly that such information is true and that it is authorized to use the payment instrument.  Customer will promptly update its account information with any changes (for example, a change in billing address or credit card expiration date) that may occur.  Customer will pay Broadly the fees for the Services on the schedule as set forth in the Order Page (“Fees”), and Customer hereby authorizes Broadly to bill its payment instrument in advance on a periodic basis in accordance with the terms of the Order Page until Customer terminates its account in accordance with the Term and Termination section herein, and Customer further agrees to pay such Fees.  Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower.  If Customer disputes any charges it must let Broadly know within sixty (60) days after the date that Broadly charges Customer.

4. Intellectual Property Rights.

4.1 Broadly owns and will retain all right, title and interest in and to the Services (excluding Customer Content) and any related software.

4.2 As between the parties, Customer Content (as defined below) will be owned by Customer. Customer will be solely responsible for the accuracy, quality, integrity and legality of Customer Content.  Customer hereby grants to Broadly a non-exclusive, worldwide license to copy, modify (including the right to create derivative works of), display and use Customer Content in connection with performing the Services. “Customer Content” means any material uploaded or supplied to Broadly by Customer, or accessed by Broadly from Customer, in the course of Customer’s receiving or using the Services, including without limitation, Customer’s information relating to actual or prospective customers of Customer, images, videos, text and data.  Broadly shall have the right to (a) use the Customer Content to contact and communicate with actual and prospective customers of Customer and (b) collect and analyze data and other information relating to the use and performance of various aspects of the Services and related systems and technologies to improve and enhance the Services (during and after the term of this Agreement) and for other development, diagnostic and corrective purposes in connection with the Services and other Broadly offerings, and for any other manner that is consistent with Broadly’s Privacy Policy, available at www.broadly.com/privacy, as amended from time to time.

5. Confidentiality; Restrictions.  Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business, including information that a reasonable person would understand to be confidential (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  The Service, including all related software, documentation, content (including the look and feel of any portion of the Service) is considered as Proprietary Information of Broadly. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein or otherwise to perform its obligations herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law.  Further, Customer will not, and will not permit any third party to (a) reverse engineer or otherwise attempt to discover the source code or underlying structure or algorithms of the Services or any related software (except to the extent such restrictions are contrary to applicable law), (b) modify or create derivative works based on the Services or such software, (c) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service, (d) harass any other users of the Service, (e) impose a disproportionate load on the Services, or (f) otherwise use the Services or such software outside of the scope permitted under this Agreement.

6. Apple-Enabled Software Applications.

Broadly offers software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”), among other platforms.  With respect to software that is made available for Customer’s use in connection with an Apple-branded product (such software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms, the following terms and conditions apply:

Broadly and Customer acknowledge that these Terms are concluded between Broadly and Customer only, and not with Apple, and that as between Broadly and Apple, Broadly, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.

Customer may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms.

Customer’s license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product that Customer own or control, as permitted by the Usage Rules set forth in the App Store Terms.

Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.

Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to Customer, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Broadly’s sole responsibility, to the extent it cannot be disclaimed under applicable law.

Broadly and Customer acknowledge that Broadly, not Apple, is responsible for addressing any claims of Customer or any third party relating to the Apple-Enabled Software or Customer’s possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Broadly and Apple, Broadly, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

Customer represent and warrant that (i) Customer are 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) Customer are not listed on any U.S. Government list of prohibited or restricted parties.

If Customer have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Broadly at support@broadly.com.

Broadly and Customer acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms with respect to the Apple-Enabled Software, and that, upon Customer’s acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against Customer with respect to the Apple-Enabled Software as a third party beneficiary thereof.

7. HIPAA Covered Entities. Customers that are regulated as Covered Entities or Business Associates under the Health Insurance Portability and Accountability Act and that intend to use the Services to create, receive, maintain, and/or transmit Protected Health Information  shall contact Broadly at support@broadly.com to enter into Business Associate Agreement with Broadly.  Customer intending to use the Services to create, receive, maintain, and/or transmit Protected Health Information shall first enter into a Business Associate Agreement with Broadly.

8. Term and Termination.

8.1 The term of this Agreement will commence on the Effective Date and will continue for the initial period of time set forth in the applicable Order Page (the “Initial Term”). Thereafter, the term of this Agreement will automatically renew for additional successive periods equal to the Initial Term, unless either party provides the other party with written notice of non-renewal at least twenty (20) days prior to the end of the then-current term.   If Customer cancels, previous charges will not be refunded, but Customer will receive the Services in accordance with Customer’s subscription plan until the end of the subscription term that Customer paid for.     

8.2 Either party may terminate this Agreement upon written notice to the other party if such other party materially breaches this Agreement (except for Customer’s non-payment of Fees) and does not cure such breach within thirty (30) days after receiving written notice of such breach.  Further, Broadly may immediately suspend access to the Services if Customer materially breaches this Agreement (except for Customer’s non-payment of Fees) until such breach is cured.  Such a suspension of Services shall not relieve Customer from its obligations to pay all amounts due under this Agreement.  Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.

8.3 If Customer fails to pay any Fees when due and does not cure such non-payment within ten (10) days of receipt of written notice from Broadly, Broadly may suspend access to the Services or terminate this Agreement.  Such a suspension of Services shall not relieve Customer from its obligations to pay all amounts due under this Agreement.

8.4 Termination or expiration of this Agreement shall not affect any rights or obligations of the parties, including the payment of amounts due, which have accrued up to the date of such termination or expiration.  Upon termination or expiration of this Agreement, the provisions of Sections, 4.2, 7, 8, 10 and 11 shall survive and shall continue in full force and effect in accordance with their terms.  Customer acknowledges that its relevant Customer Content is accessible through the Services at any time, and it is the Customer’s responsibility to download copies of Customer Content or other data regarding Customer prior to termination or expiration of this Agreement (and not Broadly’s responsibility to provide the same to Customer).

9. Third Party Websites. The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Broadly has no control over such sites and resources and Broadly is not responsible for and does not endorse such sites and resources.  Customer further acknowledges and agrees that Broadly will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource.   Any dealings Customer has with third parties found while using the Service are between Customer and the third party, and Customer agrees that Broadly is not liable for any loss or claim that Customer may have against any such third party.

10. Warranties; Indemnity; Disclaimer.

10.1 Broadly represents and warrants that (a) it will perform the Services in a professional and workmanlike manner and (b) the Services will conform in all material respects to the description of the Services set forth in the Order Page.

10.2 Customer represents and warrants to Broadly that it has all rights in the Customer Content necessary to grant Broadly the rights granted herein, including for Broadly to communicate with actual and prospective customers of Customer where such consent is required by any relevant law pertaining to communication by email, SMS, phone or other means, and that Customer will not use the Services to:

a) email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) Customer does not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Company or its users to any harm or liability of any type;

b) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or

c) violate any applicable local, state, national or international law, or any regulations having the force of law;

d) impersonate any person or entity, or falsely state or otherwise misrepresent Customer’s affiliation with a person or entity;

e) solicit personal information from anyone under the age of 18;

f) harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;

g) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;

h) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or

i) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.

10.3 Customer agrees to indemnify and hold Broadly and its affiliates and their officers, employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to Customer’s (or any of its users’ or customers’) use of the Service, any Customer Content, Customer’s connection to the Service, Customer’s violation of these Terms or Customer’s (or any of its users’ or customers’) violation of any rights of another. Notwithstanding the foregoing, Customer will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any gross negligence or willful misconduct of such Indemnitee.

10.4 EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 10.1, BROADLY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE.

11. Limitation of Liability.  EXCEPT FOR LIABILITY ARISING FROM ANY INDEMNIFICATION OBLIGATIONS HEREUNDER OR EITHER PARTY’S BREACH OF SECTION 4.2, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR (A) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE DELAY OR INABILITY TO USE THE SERVICES (INCLUDING LOST PROFITS);  (B) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; OR (C) ANY OTHER DAMAGES IN EXCESS OF THE TOTAL AMOUNT PAID (AND PAYABLE) TO BROADLY IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF THE CLAIM, IN EACH CASE WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.  THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

12. Disputes.  Notwithstanding the provisions of the introductory section above, if Broadly changes this Section 12 after the date Customer first accepted these Terms (or accepted any subsequent changes to these Terms), Customer may reject any such change by sending Broadly written notice within 30 days of the date such change became effective, as indicated in the “Date of Last Revision” date above or in the date of Broadly’s email to Customer notifying Customer of such change. By rejecting any change, Customer is agreeing that it will arbitrate any dispute between Customer and Broadly in accordance with the provisions of this section as of the date Customer first accepted these Terms (or accepted any subsequent changes to these Terms).  In the event of a dispute, the parties will first attempt in good faith to resolve such dispute by negotiation and consultation between themselves.  In the event that such dispute is not resolved on an informal basis within twenty (20) days, except at otherwise set forth in this Agreement, both parties waive their right to bring a claim before any court and may exclusively submit to arbitration, held in English, in San Francisco, CA, by a sole arbitrator in accordance with the regulations of the American Arbitration Association.  The award of the arbitrator shall be final and binding upon both parties and may be entered as a judgment in any court of competent jurisdiction.  It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within one hundred twenty (120) days from the date the arbitrator is appointed. The arbitrator may extend this time limit in the interest of justice. Each party will be responsible for its attorneys’ fees and other expenses in connection with the arbitration; provided that the parties will share equally in the fees and expenses of the arbitrator. Notwithstanding the dispute resolution procedures set forth above, in the event of an actual or threatened breach hereunder, the aggrieved party may seek equitable relief (including restraining orders, specific performance or other injunctive relief) in any court or other forum, without first submitting to any dispute resolution procedures hereunder.

13. Notice for California Users. Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. Customer may contact Broadly, Inc., at 1500 Broadway, Oakland, CA 94612

14. General.  This Agreement shall be governed by the laws of the State of California without regard to principles governing choice of law.  The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  For all purposes under this Agreement each party shall be and act as an independent contractor and shall not bind nor attempt to bind the other to any contract.  Broadly will be solely responsible for its income taxes in connection with this Agreement and Customer will be responsible for sales, use and similar taxes, if any. Without limiting anything herein, and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions and power failures. Neither party shall have the right to assign this Agreement, except that either party may assign its rights and obligations without consent to a successor to substantially all its relevant assets or business.  No change or modification to (except as provided in the introductory section above) or waiver of any provision of this Agreement will be effective unless in writing signed by both parties.  Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile or major overnight delivery courier service to the address specified in the Order Page (for Customer) or in the Service (for Broadly), or such other address as may be properly specified by written notice hereunder.  In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated so that this Agreement shall otherwise remain in full force and effect and enforceable.