Aben Terms of Service

Updated December 14, 2020

These Terms of Service (“Terms of Service“), together with our Acceptable Use Policy, Privacy Policy, Data Protection Addendum, any Service Order (as defined below) and, if applicable, our API Terms of Use, collectively constitute a binding agreement (the “Agreement“) between WhatsBusy , Inc. (“Aben“) and you or the legal entity you represent (“Customer” or “you“). The Agreement also applies if you purchase a right to use the Services (as defined below) pursuant to a Service Order entered into between you and a Aben-authorized agent, vendor, or reseller of the Services (an “Authorized Reseller“).

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES. BY CLICKING ON THE “CREATE ACCOUNT” BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH WHATSBUSY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE AGREEMENT. THE TERM “YOU” OR “USER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES.

BOUNDBY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.

1. DEFINITIONS. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.

  1. 1.1 “Access Protocols” means the passwords, keys, certificates, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Services.
  2. 1.2 “Authorized User” means any individual who is an employee of Customer or an affiliate, partner, service provider or such other person or entity as may be authorized by Customer to access the Services pursuant to Customer’s rights under this Agreement.
  3. 1.3 “Campaign” means the discount Offer or Offers described in Local Performance Marketing that may each be made available to Cardholders over one or more Offer Cycles.
  4. 1.4 “Campaign Budget” means the dollar amount of Rebates to be issued for a particular Campaign, as set forth in the LPM.
  5. 1.5 “Campaign Start Date” means the date identified as the “campaign start date” in the Local Performance Marketing.
  6. 1.6 “Cardholder” means a cardholder who is eligible to redeem Offers.
  7. 1.7 “Customer Data” means any data, information, programs, and other content provided or transmitted by Customer to the Software and hosted through the Services, including, without limitation, End Customer Data and Customer Marketing Content.
  8. 1.8 “Customer Marketing Content” means Customer’s trademarks, trade names, service marks, slogans, logos, other source identifiers, and marketing and promotional content provided by Customer to WhatsBusy inc DBA Aben in connection with the advertising, promotion, and sale of Customer’s products and services.
  9. 1.9 “Distributed Offers” means Offers distributed or otherwise presented by Publishers to Cardholders.
  10. 1.10 “Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise, whether in paper, electronic or other written form) regarding the Software that is made available by WhatsBusy inc DBA Aben to Customer online or in any other manner.
  11. 1.11End Customer Communications” means Customer’s communications with its customers, including emails, communications through websites and transactions, and similar opt-in communications.
  12. 1.12 “End Customer Data” means online data collected from Customer or an Authorized Reseller through the Software regarding Customer’s customers.
  13. 1.13 “Intellectual Property Rights” means any and all intellectual property, industrial property, and other proprietary rights throughout the world, including all rights in, to, or arising out of patents, patent applications, inventions (whether patentable or not), invention disclosures, trade secrets, know-how, proprietary information, works of authorship, copyrights, mask works, moral rights, trademarks, service marks, software, data, technology, layout designs and design rights, and all registrations, applications, renewals, extensions, or reissues of any of the foregoing.
  14. 1.14 “Offer Content” means all relevant content and materials necessary for a Publisher to market the Offer to its Cardholders, including the Offer Terms, images, trademarks, logos, store lists and other Offer text provided by Merchant to Aben.
  15. 1.15 “Offer Terms” means the terms and conditions of an Offer, including start date, end date, valid redemption channels, minimum spend requirements, discount amount and exclusions (such as outlets or department stores if applicable).
  16. 1.16 “Program” means the Local Performance Marketing program identified in an IO that Aben makes available to Publishers.
  17. 1.17 “Publisher” means a party which participates in a Program or for which Aben operates a Program.
  18. 1.18 “Rebate” means the total discounted amount of the Offer which is credited to a Cardholder by Aben, which may be provided as cash back, points, miles or other loyalty currency.
  19. 1.19 “Services” means the Software, Documentation, and any related services agreed by the parties in a Service Order.
  20. 1.20 “Service Order” means any online or written form or other communication provided by WhatsBusy inc DBA Aben evidencing the initial designation of the Service by the Customer and any subsequent orders to purchase the Services.
  21. 1.21 “Software” means the software-as-a-service application hosted on WhatsBusy inc DBA Aben’s servers or those of its hosting services providers, and accessed and used by Customer via the worldwide web, including all changes, corrections, bug fixes, enhancements, updates and other modifications to such software, whether made by or on behalf of WhatsBusy inc DBA Aben, Customer, or any third party.
  22. 1.22 “Style Guide” means a guide setting forth submission, specifications and requirements for Offers.

2. MODIFICATION TO THE AGREEMENT.
WhatsBusy inc DBA Aben may amend the Agreement from time to time due to changes to the Services, to account for developments under the law, or for any other reason. When material modifications are made, WhatsBusy inc DBA Aben may (and where required by law, will) send an email to you at the last email address you provided to us pursuant to the Agreement to provide an updated copy of the Agreement. WhatsBusy inc DBA Aben may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK WhatsBusy inc DBA Aben’S WEBSITE TO VIEW THE THEN-CURRENT TERMS.

3. PROVISION OF SERVICES

  1. 3.1 Overview of Services. The Services include using the Software to retrieve customer information from End Customer Communications, viewing data available from the End Customer Communications, using the Software to send messages to end customers through email and SMS and/or MMS text messages, measure marketing, and engaging customers via myriad marketing channels. The Services shall also include any required, usual, appropriate or acceptable methods to perform activities related to the Services, including (a) carrying out the Services or the business of which the Services are a part, (b) carrying out any benefits, rights and obligations related to the Services, (c) maintaining records relating to the Services, and (d) complying with any legal or self-regulatory obligations related to the Services.
  2. 3.2 Local Performance Marketing. Any customer that participates in Aben’s Local Performance Marketing (LPM) agrees to the terms set forth in this agreement, effective as of the date inputted into the LPM interface and in consideration of your participation in a Program, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree to the following: 
    1. 3.21 Program Overview.  Through a Program, Aben supplies Publishers with offers (“Offers”) that are promoted by Aben or the Publishers to their Cardholders.  Offers may be cash-equivalent or may include rewards points or some other form of non-monetary award.  Offers may be provided by Customer for inclusion in a Program pursuant to the LPM interface. Each LPM shall describe one or more Campaigns and each Campaign may consist of one or more Offers.  Aben may present the Offers to some or all of the Publishers for the Program identified in the IO for such Publishers to make available to their Cardholders.  Aben will determine, in its sole discretion, whether an Offer has been redeemed by a Cardholder in accordance with the Offer Terms and Aben or the Publisher will fulfill properly redeemed Offers by issuing a Rebate to the Cardholder.  In the event of a conflict between the terms of an LPM and this Agreement, the LPM will control.
    2. 3.22 Offers.  You must provide Offers and Offer Content for each Campaign to us at least 30 business days prior to the Campaign Start Date, unless otherwise agreed upon by Aben.  You are solely responsible for ensuring that all Offers and Offer Content comply with (i) this Agreement and (ii) all applicable laws, rules, regulations, governmental permits, or other binding determinations of any governmental authorities (“Laws”).  We may provide you with a Style Guide in advance, as well as certain restrictions or guidelines set forth by the Publishers to whom the Offers will be distributed (“Program Restrictions“). Where we provide such Style Guide or Program Restrictions to you no less than 35 business days prior to the Campaign Start Date, all Offers and Offer Content shall comply with such Program Restrictions and Stye Guide. Aben may break up the duration of the Offers under a Campaign into several shorter Offer periods (e.g. 30, 60, or 90 day periods during which an Offer is valid for a one-year Campaign) and launch these short duration Offers multiple times during the term of the applicable Campaign (each, an “Offer Cycle“). Expected Offer Cycles my be set forth in the LPM, but may change as determined by Aben. Change may be made by Customer to Offer Content for any Offers prior to an Offer Cycle by updating the LPM interface to later than 30 business days prior to the first day of the Offer Cycle. Offers and Offer Content may not be changed by Customer at any point during an Offer Cycle or for any upcoming Offer cycle for which the Offer Content has already been distributed to Publishers. Offer Content may be, at Aben’s discretion, resized or reorganized in order to meet the creative requirements of a Publisher. 
    3. 3.23 Right to Delay, Reject, or Remove Offers.  Aben or a Publisher may, at any time, immediately and without prior notice: (i) reject Offers, or delay or remove Distributed Offers; and (ii) take other technical and legal steps to protect Aben, Publishers and Cardholders if we think your actions, the Offers or regulatory or legal developments may result in legal liabilities, reputational harm or are inconsistent with the letter or spirit of the Style Guide or Program Restrictions, or as may be requested by Publishers. Publication of an Offer shall not limit our right to remove an Offer or revise or reject any Offer thereafter.
    4. 3.24 Rebates.  If Aben determines that a purchase made by a Cardholder during a Campaign meets the applicable Offer Terms, Aben will issue a Rebate to the Cardholder.
    5. 3.25 Campaign Budget and Over-Redemption.  The LPM will identify the Campaign Budget.  If, at any point during the Campaign, Aben determines that a Campaign Budget may be exceeded, Aben may discontinue supplying Publishers with any of the Offers under such Campaign.  Customer shall reimburse Aben for the cost of all Rebates issued by Aben for a Campaign up to twenty five percent (25%) over the Campaign Budget.  If no Campaign Budget is identified in the LPM, Merchant shall reimburse Aben for the cost of all Rebates issued by Aben during the Campaign.
    6. 3.26 Non-Customer Funded Rebate.  Aben may increase the amount of an Offer (in addition to the Merchant-provided Offer amount) and Customer shall not be responsible for the portion of Rebates attributable to the increased amount. In addition, Aben may continue to supply Offers (and Publishers may continue to promote Offers) under a campaign for which the Campaign Budget has been exceeded, provided that Customer shall not be responsible for Rebates issued in excess of twenty five percent (25%) over the Campaign Budget, unless Customer provides written notice to Aben of Customer’s desire to terminate the Campaign for which the Campaign Budget has been exceeded. In such case, the termination shall not become effective until the expiration of any Offer Cycles then in effect or for which Offers have already been distributed to Publishers. With respect to Offers that are funded by Aben or the Publishers, the discount amount and other Offer Terms may be Modified by Aben. 
    7. 3.27 Licenses.  You hereby grant us and the Publishers, and us and their service providers providing services in connection with a Program, a non-exclusive, fully transferable, irrevocable, worldwide, royalty-free, fully paid-up right and license to use, reproduce, modify, distribute, perform, transmit, and display (i) the Offers and Offer Content on the Program and Publisher website(s), and in other materials or via other mediums for the purposes of distributing, promoting or otherwise making available the Offers to Publishers and Cardholders, and (ii) your trademarks, logos and service marks in sales and marketing materials related to the Offers or the Program.  If your Offers or Offer Content contain any third party trademarks, service marks, logos or other materials, you hereby represent and warrant that you have obtained all rights and necessary permissions with respect to such third party trademarks, service marks, logos or other materials to grant us the licenses set forth in this section.
    8. 3.28 Termination for Breach. Either party may terminate a Campaign or an IO immediately, by providing written notice of such termination, if the other party is in material breach of its obligations hereunder and such breach is not cured within 5 business days after receipt of written notice thereof from the non-breaching party. If, at the time of such termination, an Offer Cycle is in effect or Offers for the following Offer Cycle have already been distributed to Publishers, the termination shall not become effective with respect to the Offers in effect or distributed until after the end of the applicable Offer Cycle.

    9. 3.29 Termination for Convenience.  Either party may terminate an LPM or a Campaign upon thirty five (35) business days’ notice to the other party.  If, at the time of such termination, an Offer Cycle is in effect or Offers for the following Offer Cycle have already been distributed to Publishers, the termination shall not become effective with respect to the Offers in effect or distributed until after the end of the applicable Offer Cycle.  If no LPM or Campaign is in effect at the time, either party may terminate this Agreement upon written notice to the other party.
    10. 3.29 Effect of Termination.  Upon termination, with respect to Offer Cycles then-in effect or for which Offers have already been distributed to Publishers, the applicable Offers shall remain available for redemption by Cardholders, the license granted in this section shall continue until the expiration of any such Offers and Customer shall remain liable for Rebates with respect to such Offers.  After the effective date of termination, Aben will use commercially reasonable efforts to stop distributing Offers to the Publishers. You will not be responsible for Rebates issued by us for Offers that are distributed to Publishers after the effective date of termination.
  3. 3.3 Access. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, WhatsBusy inc DBA Aben grants Customer and its Authorized Users a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services during the Term (as defined below).
  4. 3.4 Restrictions. Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Software or Documentation or use the Services, other than the Authorized Users authorized under this Agreement; (b) modify, adapt, alter, translate, or create derivative works of the Software or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (e) bypass, delete, or disable any copy protection or security mechanisms of the Software; (f) use or demonstrate the Services in any other way that is in competition with WhatsBusy inc DBA Aben; (g) remove any notice of proprietary rights from the Services; (e) copy, modify, translate or otherwise create derivative works of any part of the Services; (h) use manual or automated software, devices, robots, spiders, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Services in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Services; (i) use the Services in a manner which interferes with or disrupts its integrity or performance; (j) use or allow the transmission of, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Services in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (k) use or copy the Software or Documentation, except as expressly allowed herein. WhatsBusy inc DBA Aben shall have the right, but not the obligation, to review and monitor all use of the Services to ensure compliance with the terms and conditions of this Agreement.
  5. 3.5 Authorization and Account Information. Customer represents and warrants that: (i) the information Customer provides in connection with Customer’s registration for the Services is accurate and complete; (ii) if Customer is registering for the Services as an individual, that Customer is at least 18 years of age and has the legal capacity to enter into this Agreement; and (iii) if registering for the Services as an entity or organization, (a) Customer is duly authorized to do business in the country or countries and state and local jurisdictions where it operates, (b) the individual accepting this Agreement and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of Customer, and (c) Customer’s employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind Customer to this Agreement and all transactions conducted under Customer’s account; and (iv) By use of this system, Customer hereby consents to card network (including Mastercard, Visa, AmericanExpress, and Discover Card, among others) review, analysis, and reporting of insights based on Customer’s aggregated store location transaction data and to card network providing WhatsBusy with such Customer Data.
  6. 3.6 Limitations on Use. The delivery of messages by means of the Software and Services may involve transmissions over various networks, and the messages (including Customer Marketing Content and other images and text contained therein) may need to be reformatted or otherwise revised by WhatsBusy inc DBA Aben to conform to the formatting or technical requirements of such networks in order for WhatsBusy inc DBA Aben to effectively provide the Services. Customer understands and agrees that messages exceeding maximum character limitations may be truncated, abbreviated, reduced or otherwise abruptly cut short and that Customer Marketing Content and other images and text may need to be reformatted or otherwise modified by WhatsBusy inc DBA Aben in order to effectively provide the Services. As a result, WhatsBusy inc DBA Aben may establish general practices and limits concerning the maximum number of messages or campaigns that may be distributed by Customer or the maximum size of any messages or campaigns that may be transmitted through the Services. Further, WhatsBusy inc DBA Aben will not materially alter any Customer Marketing Content without the prior written consent of Customer
  7. 3.7 Downtime. Customer acknowledges that Customer’s access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of WhatsBusy inc DBA Aben.
  8. 3.8 Service Orders. Each Service Order is hereby incorporated into this Agreement by reference and is subject to the terms and conditions of this Agreement; provided, however, that in the event of a conflict with the terms contained in any Service Order, the terms contained in the body of this Agreement shall control unless express reference to the superseded term in the Agreement is set forth in the Service Order. Any terms and conditions that may be contained in any acknowledgement, invoice, purchase order or other Customer-provided form are specifically null and void.

4. USE OF THE SERVICES

  1. 4.1 IT Responsibilities of Customer. Customer shall be responsible for setting up and configuring the Software, including providing WhatsBusy inc DBA Aben with applicable configuration data to be used by the Software, including without limitation any Access Protocols that Customer provisions or causes to be provisioned to Customer’s employees, service providers, or other third parties authorized by Customer. Customer shall be responsible for obtaining and maintaining, at Customer’s expense, all of the necessary telecommunications, computer hardware, software, services and Internet connectivity required by Customer or any Authorized User to access the Software from the Internet.
  2. 4.2 Access Protocols. Customer is solely responsible for protecting and safeguarding any Access Protocols that have been provided to Customer or that are generated in connection with Customer’s use of the Services. Customer agrees not to disclose or make available any Access Protocols other than to its Authorized Users and shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Access Protocols and the Services. Customer is solely and fully responsible for any use of or access to the Services using Access Protocols, any Security Incident (as defined below) caused by Customer’s Authorized Users, and all activities that occur in connection with its Access Protocols and its use of the Services. Without limiting the foregoing, Customer is responsible for all charges and liabilities applicable to data and information transmitted to and stored under Customer’s account on the Services. In the event Customer believes the Access Protocols have been compromised, or there has been any unauthorized use or access of the Services under Customer’s account or any other known or suspected breach of security, Customer shall immediately notify WhatsBusy inc DBA Aben by email to success@joinaben.com, but in no event more than twenty four (24) hours following discovery of such breach. Although WhatsBusy inc DBA Aben is not obligated to monitor Customer’s Access Protocols, in the event WhatsBusy inc DBA Aben believes Customer’s Access Protocols have been compromised, or there has been any unauthorized use or access of the Services under Customer’s account or any other known or suspected breach of security, WhatsBusy inc DBA Aben may suspend Customer’s access to the Services, terminate the affected Access Protocols, or take any other action WhatsBusy inc DBA Aben reasonably deems appropriate to protect the integrity of the Software and the Services. For purposes of this Section 4.2, a “Security Incident” means unauthorized access to, use or disclosure of any data maintained by WhatsBusy inc DBA Aben.
  3. 4.3 Prohibited Activities. Customer may not, and shall not permit any of its employees, contractors or Authorized Users to use the Services (i) in violation of this Agreement; (ii) to infringe, misappropriate, or otherwise violate the Intellectual Property Rights of any third party or any rights of publicity or privacy; (iii) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control (including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control), unfair competition, anti-discrimination and/or false advertising); (iv) to store or transmit defamatory, libelous, unlawfully threatening, or unlawfully harassing data; (v) to store or transmit obscene, pornographic or indecent data in violation of applicable law; (vi) to introduce or propagate any unauthorized data, fraudulent messages or malicious content such as malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; (vii) to transmit any content that is designed to intentionally evade filters; (viii) to send any prohibited calls to life-line services, such as hospitals, fire, police, 911, or utility-related telephone numbers; (ix) for harvesting, or otherwise collecting, information about others without their consent; or (x) for misleading others as to the identity of the sender of messages or broadcasts by creating a false identity, impersonating the identity of someone/something else, or by providing contact details that do not belong to Customer. Customer may not attempt to discover, access, read, alter, destroy, or damage any programs, data or other information stored on or in connection with the Services by any other party. Customer may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Services. Customer may access the Services only through the interfaces and protocols provided or authorized by WhatsBusy inc DBA Aben. Customer may not access the Services through unauthorized means, such as unlicensed software clients. Customer may not compile or use the WhatsBusy inc DBA Aben provided materials or any other information obtained through the Services for the purpose of spamming, unsolicited contacting, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.
  4. 4.4 No Children’s Information. Customer agrees not to upload or incorporate into any customer lists, or otherwise provide to WhatsBusy inc DBA Aben any information about individuals that Customer knows or has reason to know are under the age of 13. If Customer discovers that it uploaded, incorporated into any customer lists, or otherwise provided to WhatsBusy inc DBA Aben any information about individuals that Customer knows or discovers are under the age of 13, Customer agrees to promptly remove such information from WhatsBusy inc DBA Aben’s systems and notify WhatsBusy inc DBA Aben of such occurrence.
  5. 4.5 Suspension, Limitation and Termination of Access. WhatsBusy inc DBA Aben shall be entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s access to the Services at any time in the event that WhatsBusy inc DBA Aben determines, in its reasonable discretion, that (i) the Services are being used by Customer, or its Authorized Users, in violation of applicable federal, state or local law or ordinance or this Agreement; (ii) the Services are being used by Customer in an unauthorized, inappropriate, or fraudulent manner; (iii) the use of the Services by Customer adversely affects WhatsBusy inc DBA Aben’s equipment or service to others; (iv) WhatsBusy inc DBA Aben is prohibited by an order of a court or other governmental agency from providing the Services; (v) there is a denial of service attack or any other event which WhatsBusy inc DBA Aben determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; (vi) there is a security incident or other disaster that impacts the Services or the security of Customer Data; or (vii) any amount due under this Agreement is not received by WhatsBusy inc DBA Aben within fifteen (15) days after it was due. Without limiting the generality of this Section, WhatsBusy inc DBA Aben shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer‘s right to use the Services pursuant to this Section 4.5.

5. INTELLECTUAL PROPERTY

  1. 5.1 Ownership. Customer acknowledges and agrees that the Services (including the Software and Documentation) are protected by copyright and other laws relating to Intellectual Property Rights, and that the Services embody valuable confidential information of WhatsBusy inc DBA Aben and its suppliers, the development of which required the expenditure of considerable time and financial resources. All right, title, and interest in and to the Services, and all worldwide Intellectual Property Rights therein and associated therewith, are the exclusive property of WhatsBusy inc DBA Aben and its suppliers. All rights in and to the Services not expressly granted to Customer in this Agreement are reserved by WhatsBusy inc DBA Aben and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software. Customer shall not obscure, alter, or remove any notice of copyright, trademark, or other Intellectual Property Right designation appearing on or contained within the Services.
  2. 5.2 Continuous Development. Customer acknowledges that WhatsBusy inc DBA Aben may continually develop, deliver and provide to Customer ongoing innovation to the Software in the form of new features, functionality, and efficiencies. Accordingly, WhatsBusy inc DBA Aben reserves the right to modify the Services, or any Software, from time to time. Some modifications will be provided to Customer at no additional charge. In the event WhatsBusy inc DBA Aben adds additional functionality to a particular Service, WhatsBusy inc DBA Aben may condition the implementation of such modifications on Customer’s payment of additional fees, provided that Customer may continue to use the version of the Software that WhatsBusy inc DBA Aben makes generally available (without such features) without paying additional fees.
  3. 5.3 Feedback. In the event that Customer elects, in connection with any of the Services, to communicate to WhatsBusy inc DBA Aben, either directly or through an applicable Authorized Reseller, any comments and suggestions for improvements to the Services, whether written or oral (collectively, the “Feedback“), WhatsBusy inc DBA Aben, in its sole discretion, shall be entitled to use the Feedback without restriction, and such Feedback will not be treated as confidential to Customer. Customer hereby grants WhatsBusy inc DBA Aben, on behalf of itself and its Authorized Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into WhatsBusy inc DBA Aben products and services.

6. FEES AND EXPENSES; PAYMENTS

  1. 6.1 Fees Generally. In consideration for the Services, Customer will pay to WhatsBusy inc DBA Aben (or the applicable Authorized Reseller) the then-current fees set forth in the “Account” section of Customer’s account in the Software unless otherwise set forth in an applicable Service Order(s) (“Fees“). WhatsBusy inc DBA Aben shall be entitled to withhold performance and suspend or discontinue the Services until all amounts due are paid in full.
  2. 6.2 SMS and MMS Services. Customers who elect to use WhatsBusy inc DBA Aben’s SMS and/or MMS Services (“SMS/MMS Services“) will make advance payments that will be deposited into an account created for the Customer (“SMS/MMS Account“) and WhatsBusy inc DBA Aben shall debit Customer’s SMS/MMS Account for the SMS/MMS Services used each month. Advance payments made by Customer and deposited into an SMS/MMS Account must be used within twelve (12) months of the deposit date or they will be forfeited by the Customer.
  3. 6.3 LPM. Customer shall pay to Aben (i) the cost of all Rebates issued for a Campaign up to twenty five percent (25%) over the Campaign Budget; and (ii) the revenue share and additional fees set forth in the LPM (“Fees”), if any. Customer is solely responsible for paying, and shall pay, all applicable customs or importations, sales, use, withholding, excise, value-added or other taxes, duties, fees or charges levied, arising from or based upon the services performed by Aben, or any other government imposed taxes, but excluding taxes levied on Aben’s net income. In the event that Customer withholds or is obligated to withhold any tax or other amount of any kind based on the Rebates or Fees, then the amount of Rebates or Fees due shall be grossed up to an amount such that the difference between the new amount less the amount withheld equals the amount of Rebates or Fees otherwise due hereunder Rebates and Fees shall be paid as set forth in the LPM. We will keep records regarding Rebates issued by Aben and the Rebates and Fees dues under this Agreement will be based on those records, We will provide you with a monthly report setting forth in reasonable detail the calculated of the Rebates and Fees due. You must notify us of any dispute regarding such calculations within ten (10) business days after receiving our report, or the dispute will be waived. We reserve the right to invoice you for Rebates and Fees up to twelve (12) months from the original transaction date. There will not be any reversal or Rebates for any reason, including transactions that are later cancelled or goods returned that would result in the purchase not meeting the Offer Terms, and you shall be responsible for all Rebates issued by Aben in accordance with this agreement in connection with an LPM. 

  4. 6.4 Fee Increases. WhatsBusy inc DBA Aben or Authorized Reseller will provide Customer fourteen (14) days advance notice for any increase in fees. Any increases to the Fees shall apply at the beginning of the Customer’s following Term. Customer’s continued use of the Services after a Fee increase will constitute Customer’s agreement to the increase in Fees.
  5. 6.5 Billing, Invoicing, and Payment Terms. WhatsBusy inc DBA Aben will charge Customer the Fees for the Services in advance for each billing period on or after the first day of such billing period. All Fees for Services are due and payable in US Dollars and are non-refundable. If Customer is paying by credit card or eCheck, (a) Customer hereby irrevocably authorizes WhatsBusy inc DBA Aben, or if applicable, the Authorized Reseller, to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, (c) if Customer’s credit card is declined, WhatsBusy inc DBA Aben, or if applicable, the Authorized Reseller, will attempt to reach out to Customer for a new payment method, and (d) if Customer’s credit card expires, Customer hereby gives WhatsBusy inc DBA Aben, or if applicable, the Authorized Reseller, permission to submit the credit card charge with a later expiration date. If WhatsBusy inc DBA Aben or, if applicable, an Authorized Reseller, fail to resolve an issue with Customer resulting from a credit card decline or expiration, WhatsBusy inc DBA Aben may terminate the account due to non-payment. All billing disputes must be emailed to success@joinaben.com inc DBA Aben.com within fourteen (14) days of delivery of the billing statement or invoice, and disputes not made within that time are waived by Customer. Late payments, including those resulting from credit card declines, will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If WhatsBusy inc DBA Aben, or if applicable, the Authorized Reseller, must initiate a collections process to recover Fees due and payable hereunder, then WhatsBusy inc DBA Aben, or if applicable, the Authorized Reseller, shall be entitled to recover from Customer all costs associated with such collections efforts, including but not limited to reasonable attorneys’ fees. In the event WhatsBusy inc DBA Aben, or if applicable, the Authorized Reseller, delivers to Customer an invoice for any Fees or interest payments owed hereunder, such invoiced amounts shall be due within thirty (30) days of the date of such invoice.
  6. 6.6 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on WhatsBusy inc DBA Aben’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the delivery of the Services, or the licensing of the Software to Customer. To the extent that WhatsBusy inc DBA Aben charges any of the aforementioned taxes, they are calculated using the tax rates that apply based on the billing address provided by Customer. Such amounts are in addition to the Fees and will be billed to Customer’s authorized payment method. If Customer is exempt from payment of any such taxes, Customer must provide WhatsBusy inc DBA Aben with evidence of exemption. If Customer is not charged any of the aforementioned taxes by WhatsBusy inc DBA Aben, Customer is responsible for determining if taxes are payable, and if so, self-remitting such taxes to the appropriate tax authorities in Customer’s jurisdiction. Customer will make all payments of Fees to WhatsBusy inc DBA Aben free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of Fees to WhatsBusy inc DBA Aben will be Customer’s sole responsibility, and Customer will provide WhatsBusy inc DBA Aben with official receipts issued by the appropriate taxing authority, or such other evidence as WhatsBusy inc DBA Aben may reasonably request, to establish that such taxes have been paid. Customer shall indemnify, defend, and hold WhatsBusy inc DBA Aben harmless in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
  7. 6.7 Expenses. If pre-approved by Customer in a Service Order, Customer shall reimburse WhatsBusy inc DBA Aben for reasonable out-of-pocket expenses (including travel and living) incurred in performing its obligations for specific Services under such Service Order. All costs and expenses incurred by Customer in connection with this Agreement are the sole responsibility of Customer.
  8. 6.8 Audit. WhatsBusy inc DBA Aben may audit Customer’s records relating to its use of the Services to verify Customer’s compliance with the terms of this Agreement. WhatsBusy inc DBA Aben will give Customer at least ten (10) days’ advance notice of any such audit and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations. If any such audit should disclose any underpayment of Fees, Customer shall promptly pay WhatsBusy inc DBA Aben such underpaid amount, together with interest thereon, at the rate specified in Section 6.4. If the amount of such underpayment exceeds five percent (5%) of Fees actually paid during the audited period, Customer shall also pay WhatsBusy inc DBA Aben for WhatsBusy inc DBA Aben’s reasonable expenses associated with such audit.

7. CUSTOMER DATA AND RESPONSIBILITIES

  1. 7.1 Customer Data. The Customer Data hosted by WhatsBusy inc DBA Aben as part of the Services, and all worldwide Intellectual Property Rights therein, is, as between WhatsBusy inc DBA Aben and Customer, the exclusive property of Customer. Customer grants WhatsBusy inc DBA Aben a non-exclusive, sublicensable, transferable, worldwide, royalty-free and fully paid license to use the Customer Data as necessary for purposes of providing the Services and enabling the operation of the Software. Customer warrants that Customer is the owner or legal custodian of, or otherwise has the right to provide to WhatsBusy inc DBA Aben, Customer Data transmitted via the Services and has the full authority to transmit and store the Customer Data through the Services. Notwithstanding anything to the contrary herein, WhatsBusy inc DBA Aben, as a part of the Services, shall have the right to collect and analyze aggregated data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (“Aggregated Data“), and WhatsBusy inc DBA Aben shall be free (during and after the term of this Agreement) to (a) use Aggregated Data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other WhatsBusy inc DBA Aben offerings, and (b) disclose Aggregated Data solely in aggregate or other de-identified form in connection with its business.
  2. 7.2 End Customer Data. In connection with WhatsBusy inc DBA Aben’s performance of the Services, WhatsBusy inc DBA Aben may collect End Customer Data. Customer acknowledges that such End Customer Data may include non-personal information and Customer Personal Data (as defined in the Data Protection Addendum) of Customer’s customers as well as data relating to End Customer Communications. WhatsBusy inc DBA Aben will not retain, use or disclose such End Customer Data for any purpose other than to provide the Services to Customer, to improve the Services generally, or as otherwise directed by Customer, provided, however, that WhatsBusy inc DBA Aben may create and derive from processing related to the Services anonymized and/or aggregated data that does not identify any Customer or End Customer, and use, publicize or share with third parties such data for WhatsBusy inc DBA Aben’s legitimate business purposes. If Customer cancels its account with WhatsBusy inc DBA Aben or becomes inactive due to unpaid past-due amounts, WhatsBusy inc DBA Aben may delete all End Customer Data after a period of two (2) months. WhatsBusy inc DBA Aben will provide Customer with self-service functionality that enables Customer to export, correct, and delete End Customer Data associated with a specific email address. Customer acknowledges and agrees that if Customer requires further assistance in addition to the self-service functionality described in this Section 7.2 Customer shall reimburse WhatsBusy inc DBA Aben for such assistance at WhatsBusy inc DBA Aben’s then-current professional services rates, which shall be made available to Customer upon request. Customer agrees that it may be necessary for WhatsBusy inc DBA Aben to access End Customer Data to respond to Customer’s request for assistance with any technical problems and/or queries, and all such access will be logged by the Services. Customer shall hold WhatsBusy inc DBA Aben, its subcontractors, suppliers and licensors harmless from any and all data protection claims relating to such access. WhatsBusy inc DBA Aben may transfer End Customer Data to its successor or acquirer in a merger, acquisition or other consolidation, including without limitation the sale of all or substantially all of WhatsBusy inc DBA Aben’s stock or assets or business to which this Agreement applies.
  3. 7.3 Customer Personal Data. WhatsBusy inc DBA Aben shall collect, use, disclose and otherwise process Customer Personal Data, and safeguard the privacy, confidentiality and security of Customer Personal Data in accordance with the requirements set forth in the Data Protection Addendum, which is hereby incorporated into this Agreement by reference.
  4. 7.4 Customer Responsibilities for Data and Security. Customer and its Authorized Users shall have access to the Customer Data and shall be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other Access Protocols required in order to access the Software. Customer shall have the ability to export Customer Data out of the Software and is encouraged to make its own back-ups of the Customer Data. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data, and for the adequate security, protection and backup of Customer’s Data on Customer’s equipment. Customer understands that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions and other causes, which might result in Customer restoring files that are no longer usable. WhatsBusy inc DBA Aben will have no liability to Customer for any unauthorized access to, or use, alteration, corruption, deletion, destruction or loss of any Customer Data on Customer’s equipment.
  5. 7.5 Compliance with Applicable Laws.
    1.  
    2. (a) General. With respect to End Customer Communications and Customer Marketing Content, Customer shall be responsible for compliance with all applicable United States Federal and State, local, and foreign laws and regulations, including but not limited to (i) any applicable laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property, and the sending of electronic marketing messages, including the Telephone Consumer Protection Act (the “TCPA“), the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM“), the Children’s Online Privacy Protection Act, and the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HIPAA“), and the sending of SMS and/or MMS text messages (including but not limited to the TCPA, Federal Trade Commission and Federal Communications Commission rules, the National DNC list registry rules, and various state laws, rules, and regulations that place restrictions on certain types of phone calls and text messages); and (ii) laws and regulations that apply to commerce, including the Federal Trade Commission Act, Fair Credit Reporting Act, and Equal Credit Opportunity Act.
    3. (b) Responsibility for Messages. For the avoidance of doubt, Customer is solely responsible for the information or content submitted, posted, transmitted or made available through Customer’s use of the Services. Customer shall comply with all applicable laws and regulations relating to the sending of emails and/or text messages (“Messages“) and the protection and privacy of End Customer Data. Customer acknowledges and agrees that WhatsBusy inc DBA Aben does not control nor does it monitor Customer’s Messages nor guarantees the accuracy, integrity, security or quality of such Messages. Customer represents and warrants that: (a) Customer is solely responsible for Messages; (b) Customer has the legal right to use and send all Messages; (c) the timing and purpose of all Messages, campaigns and programs are in compliance with all applicable laws, rules and regulations; and (d) WhatsBusy inc DBA Aben’s use of the Messages as directed for the purpose of delivering the Services shall not violate the rights of any third party or any laws, rules or regulations. With respect to email communications sent on Customer’s behalf, WhatsBusy inc DBA Aben and/or its respective affiliates or third-party service providers shall be an initiator but not a sender for purposes of CAN-SPAM and Customer shall be deemed the sender of such messages and shall be solely responsible for complying with Customer’s obligations as a sender. With respect to text message communications sent on Customer’s behalf, WhatsBusy inc DBA Aben and/or its respective affiliates or third party service providers shall be a provider but not a maker or initiator for purposes of the TCPA and Customer shall be deemed the maker or initiator of such messages and shall be solely responsible for complying with Customer’s obligations as a maker or initiator. Customer agrees to only send permission-based Messages in connection with its use of the Services. “Permission-based” means that all recipients must have opted-in to receive Messages from Customer.
    4. (c) Consent. In addition, Customer represents and warrants that Customer has obtained and/or will obtain prior express consent to contact each wireless phone number Customer has delivered to and/or will deliver to WhatsBusy inc DBA Aben (the “Recipient“) in connection with the provision of any Services and the intended Recipient is the current subscriber to, or the non-subscriber customary user of, the wireless phone number. If the Messages are initiated to induce the purchase of goods or services or to solicit a charitable contribution (“Solicitations“), Customer represents and warrants that: (a) Customer has incorporated an interactive opt-out mechanism; and (b) Customer has, unless an exemption applies, obtained from the Recipient of any Solicitation, an express written agreement that meets the requirements set forth in Section 310.4(b)(1)(v)(A) of the FTC’s Telemarketing Sales Rule and Section 64.1200(f)(8) of the FCC’s Telephone Consumer Protection Act Rules. Upon request, Customer shall provide reasonable proof of compliance with the provisions set forth in this Section and WhatsBusy inc DBA Aben shall have no obligation to provide Services where WhatsBusy inc DBA Aben reasonably believes that Customer has not so complied.

8. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS

  1. 8.1 Mutual Representations and Warranties. WhatsBusy inc DBA Aben and Customer each represents and warrants that: (i) it has full corporate right, power, and authority to enter into this Agreement; (ii) the execution of this Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or is otherwise bound; (iii) it shall comply with all applicable federal, state, local, and foreign laws and regulations.
  2. 8.2 Customer Representations and Warranties. Customer represents and warrants that: (i) Customer is the owner or legal custodian of, or otherwise has the right to provide to WhatsBusy inc DBA Aben, all Customer Data and End Customer Data, and has the full authority to transmit and store the Customer Data and End Customer Data through the Services; (ii) no Customer on-line coupon or similar marketing offer, deal or advertisement to market Customer’s products and services (each, an “Offer“) will violate any applicable laws or regulations or contain WhatsBusy inc DBA Aben’s name, trademarks, or other branding and, upon claim by a customer, whether on the WhatsBusy inc DBA Aben website or a third party partner website or otherwise, will be available for redemption by such customer; (iii) Customer will comply with any Offer terms and conditions as set forth therein and in any other advertising or marketing terms, and will at all times honor the terms of any Offer offered or otherwise promoted via the Services; (iv) Customer is solely responsible for Customer Data and End Customer Data, and for the security thereof; (v) Customer has all necessary rights and licenses, consents, permissions, waivers, and releases to use the Customer Data and End Customer Data to enable WhatsBusy inc DBA Aben to use and disclose the same to Customer as intended by the parties under this Agreement and the terms of any applicable Service Orders; (vi) Customer has a legally sufficient privacy policy that is made available to customers prior to their provision of any Customer Personal Data to Customer or WhatsBusy inc DBA Aben; (vii) that use by WhatsBusy inc DBA Aben of Customer Data and End Customer Data (a) will not infringe, misappropriate, or otherwise violate the Intellectual Property Rights or other rights of any third party, (b) will not constitute defamation, invasion of privacy or publicity, or otherwise violate any similar rights of any third party, and (c) will not be used in any illegal activity or promote illegal activities, including, without limitation, in a manner that might be illegal or harmful to any person or entity; and (viii) it will not distribute, share, or facilitate the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
  3. 8.3 Limited Warranty. WhatsBusy inc DBA Aben warrants solely to Customer that the Software, when used in accordance with the terms of this Agreement, will function substantially in accordance with the Documentation during the term of this Agreement. The foregoing warranty shall not apply to performance issues of the Software or Services resulting from (i) content provided by or passed through Customer or third parties in connection with the Services (including Customer Data and End Customer Data); (ii) Customer’s data structures, operating environment, equipment or other technology; (iii) the use or combination of the Software or the Services with any other software or hardware not supported by WhatsBusy inc DBA Aben; (iv) causes external to the Software or Services, such as problems with the hardware, network or other infrastructure with which the Software or Services are used; (v) unauthorized or improper use of the Software or Services; (vi) any modification of the Software or Services by Customer or its Authorized Users; or (vii) third party components incorporated into the Services, including open source software. Provided that Customer notifies WhatsBusy inc DBA Aben in writing of any breach of the foregoing warranty during the term of this Agreement, WhatsBusy inc DBA Aben shall, as Customer’s sole and exclusive remedy, use commercially reasonable efforts to correct such non-conformance.
  4. 8.4 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8.3 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.3 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING THE SOFTWARE AND DOCUMENTATION) ARE PROVIDED “AS IS,” AND WhatsBusy inc DBA Aben MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY WhatsBusy inc DBA Aben, AND ANY OFFERS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WhatsBusy inc DBA Aben DOES NOT WARRANT THAT THE SOFTWARE OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION OR DOWNTIME OR BE ERROR FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
  5. 8.5 Authorized Reseller Warranties. Notwithstanding anything in this Agreement to the contrary, the warranties provided by WhatsBusy inc DBA Aben hereunder with respect to the Software or the Services may not be extended, supplemented or modified by an Authorized Reseller, and if an Authorized Reseller makes any additional warranty, representation or commitment regarding the Software or the Services (or modifies an existing warranty, representation or commitment granted by WhatsBusy inc DBA Aben regarding the Software or the Services), the Authorized Reseller shall be solely responsible for any such additional warranties, representations or commitments or modifications.

9. LIMITATION OF LIABILITY

  1. 9.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WhatsBusy inc DBA Aben, NOR ANY OF ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, VENDORS, SUPPLIERS OR RESELLERS, NOR ANY OF ITS THIRD PARTY PARTNERS, BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM CUSTOMER’S OR ANY OTHER THIRD PARTY’S USE OF OR INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES WHETHER OR NOT WhatsBusy inc DBA Aben HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF WhatsBusy inc DBA Aben, ITS LICENSORS, VENDORS AND RESELLERS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES PAID BY CUSTOMER FOR THE SERVICE FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER, LESS ANY DAMAGES PREVIOUSLY PAID BY WhatsBusy inc DBA Aben TO YOU IN THAT SIX (6) MONTH PERIOD.
  2. 9.2 Partner Services. Furthermore and notwithstanding anything herein to the contrary, Customer acknowledges and agrees that: (i) any Services (“Partner Services“) provided by, through or in partnership with an Authorized Reseller or any other third-party partner of WhatsBusy inc DBA Aben (“Partners“) ARE PROVIDED TO CUSTOMER “AS IS,” WITHOUT WARRANTY OF ANY KIND. WhatsBusy inc DBA Aben HEREBY DISCLAIMS ON BEHALF OF THE PARTNERS ALL OTHER WARRANTIES WITH RESPECT TO SUCH PARTNER SERVICES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NO PARTNER SHALL HAVE ANY LIABILITY TO CUSTOMER OTHER THAN AS MAY BE SET FORTH IN THE PARTNER’S STANDARD TERMS AND CONDITIONS FOR THE PARTNER SERVICES, (ii) each Partner is hereby granted a limited license to use any content supplied by Customer in connection with the Partner Services (“Partner Marketing Content“), with the right to sublicense to its partners in connection with the operation of the Partner Services, provided that Partner and its publisher partners shall not provide any third party with access to Partner Marketing Content nor use Partner Marketing Content for its or their own commercial benefit beyond the provision of the Partner Services; (iii) at Customer’s request, reasonable efforts will be used by the Partners to remove from publication any Customer Marketing Content, but in no event will a Partner or its publisher partners have any liability if such Customer Marketing Content nonetheless continues to be published; (iv) Customer will cooperate to provide WhatsBusy inc DBA Aben with all information reasonably required by a Partner to provide any Partner Services; (v) each Partner is an intended third party beneficiary of this Section 9.3; and (vi) the terms and conditions of all Partner Services shall be subject to the Partner’s standard end user terms and conditions for such Services.
  3. 9.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the Fees have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

10. CONFIDENTIALITY

  1. 10.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party“) may provide the other party (the “Receiving Party“) with certain information regarding the Disclosing Party’s business, technology, products, or services, or other confidential or proprietary information (collectively, “Confidential Information“) in whatever form (written, oral or visual) that is furnished or made available to the Receiving Party by or on behalf of the Disclosing Party that (a) if in tangible form, the Disclosing Party has labeled in writing as proprietary or confidential, (b) if in oral or visual form, the Disclosing Party has identified as proprietary or confidential at the time of disclosure, or (c) is of a character that is commonly and reasonably regarded as confidential and/or proprietary. For the avoidance of doubt, the Software, Documentation, and all enhancements and improvements thereto, will be considered Confidential Information of WhatsBusy inc DBA Aben.
  2. 10.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except for exercising its rights and performing its obligations under this Agreement. The Receiving Party will limit access to the Confidential Information to its employees and contractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and, upon request, the Receiving Party shall provide to the Disclosing Party written notice certifying compliance with this sentence, unless prohibited by applicable law.
  3. 10.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that: (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) the Receiving Party can prove, by clear and convincing evidence, was already known to the Receiving Party without restriction at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

11. INDEMNIFICATION

  1. 11.1 By WhatsBusy inc DBA Aben. WhatsBusy inc DBA Aben will defend at its expense any suit brought against Customer, and will pay any settlement WhatsBusy inc DBA Aben makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Software infringes or misappropriates any U.S. Intellectual Property Rights. If any portion of the Software becomes, or in WhatsBusy inc DBA Aben’s opinion is likely to become, the subject of a claim of infringement, WhatsBusy inc DBA Aben may, at WhatsBusy inc DBA Aben’s option: (a) procure for Customer the right to continue using the Software; (b) replace the Software with non-infringing software which does not materially impair the functionality of the Software; (c) modify the Software so that it becomes non-infringing; or (d) terminate this Agreement and refund to Customer the pro-rated portion of any prepaid fees attributable to any unused Services, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, WhatsBusy inc DBA Aben shall have no obligation under this Section or otherwise with respect to any infringement claim based upon (v) the Customer Data (w) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Services in combination with other products, equipment, software or data not supplied by WhatsBusy inc DBA Aben; (y) any modification of the Software by any person other than WhatsBusy inc DBA Aben or its authorized agents; (z) modification of the Software based upon specifications furnished by Customer (any of the foregoing circumstances under clauses (v) through (z) will be collectively referred to as a “Customer Indemnity Responsibility“). This Section 11.1 states the sole and exclusive remedy of Customer and the entire liability of WhatsBusy inc DBA Aben, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for third party claims and actions described in this Section 11.1.
  2. 11.2 By Customer. Customer will indemnify, defend and hold WhatsBusy inc DBA Aben, its officers, directors, affiliates, subsidiaries, licensors, agents and employees (each a “WhatsBusy inc DBA Aben Party“) harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs arising out of or relating to: (a) a Customer Indemnity Responsibility; or (b) Customer’s breach or alleged breach of any representation, warranty or obligation under the Agreement, or any violation of law; (c) claims relating to the Offers or the fulfillment thereof (including claims by purchasers or other Customers of the Offers on the Service relating to Customer’s products or services); or (iv) the use, transmission, access, disclosure, or other processing of Customer Data.
  3. 11.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

12. TERM AND TERMINATION

  1. 12.1 Term. Unless otherwise specified on an applicable Service Order, this Agreement commences on Customer’s registration for an account, and shall continue in effect for thirty (30) days (the “Initial Term“). Thereafter, and unless otherwise specified in a Service Order, this Agreement and each applicable Service Order shall automatically renew for successive thirty (30) day terms (each a “Renewal Term“), unless either party provides notice to the other of its intention not to renew at least fifteen (15) days prior to expiration of the Initial Term or the then-current Renewal Term. Notification of such non-renewal from Customer to WhatsBusy inc DBA Aben must be emailed to success@joinaben.com, which must be confirmed by WhatsBusy inc DBA Aben. If Customer chooses not to renew, Customer must fully notify WhatsBusy inc DBA Aben in writing at least fifteen (15) days prior to the expiration of the Initial Term or the then-current Renewal Term, in which case, Customer will continue to have access to the Services and be billed until the end of the then current term. Customer shall not receive a refund for any unused portion of the Term. In the case Customer fails to fully notify WhatsBusy inc DBA Aben of its intent not to renew within this time, the Renewal Term will commence at the end of the then-current term and Customer is responsible for the payment of Fees for the Services rendered for that Renewal Term. Customer shall not in any event be entitled to any refund of any Fees previously paid to WhatsBusy inc DBA Aben for Services. The Initial Term and all Renewal Terms will collectively be referred to as the “Term“.
  2. 12.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. WhatsBusy inc DBA Aben may terminate this Agreement at any time without cause and without notice. In addition, WhatsBusy inc DBA Aben may terminate this Agreement upon written notice to Customer (or upon written notice provided to an Authorized Reseller and then passed along by an Authorized Reseller to a Customer) if (a) Customer becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors or (b) in the event of non-payment in accordance with Section 6.4. Upon a termination by WhatsBusy inc DBA Aben without cause, Customer may be entitled to a pro-rata refund of any pre-paid and unused Fees advanced to WhatsBusy inc DBA Aben.
  3. 12.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate (except that all payment obligations accrued prior to termination or expiration shall survive); and (b) within thirty (30) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in Section 10.2. All liabilities accrued under this Agreement prior to the effective date of termination and the following Sections will survive expiration or termination of this Agreement for any reason: 1, 2, 3.3, 3.4, 3.5, 4.3, 4.5, 5, 6, 7.4, 7.5, 8.4, 8.5, 9, 10, 11, 12.3, 12.4, 13 and 14.
  4. 12.4 Data Deletion, Preservation, Retrieval or Transfer.
    1.  
    2. (a) In the event of a temporary suspension of Customer’s access to Services, (i) WhatsBusy inc DBA Aben will not take any action to intentionally erase or delete Customer Data stored on the Services; and (ii) applicable Fees will continue to accrue. In the event Customer becomes inactive due to past-due amounts, Customer agrees that WhatsBusy inc DBA Aben may delete all End Customer Data after a period of sixty (60) days. In the event of the expiration or earlier termination of this Agreement, Customer may, upon reasonable notice to WhatsBusy inc DBA Aben, elect to retrieve Customer Data using the self-service tools WhatsBusy inc DBA Aben makes available to Customer. If this Agreement is terminated for any reason other than Customer’s breach, WhatsBusy inc DBA Aben will not take any action to intentionally erase or delete Customer Data stored on the Services for a period of sixty (60) days, after which WhatsBusy inc DBA Aben may delete the End Customer Data. If this Agreement is terminated on account of Customer’s breach or alleged breach of these this Agreement, WhatsBusy inc DBA Aben will not take any action to intentionally erase or delete Customer Data stored on the Services for a period of fifteen (15) days, or for sixty (60) days with respect to customer Communications as discussed above, after which WhatsBusy inc DBA Aben may delete End Customer Data, unless required by applicable law. In each case, Customer’s post-termination retrieval or transfer of Customer Data will be conditioned on WhatsBusy inc DBA Aben’s receipt of all applicable Fees for the period following termination, payment in full of any other amounts owed, and Customer’s compliance with such reasonable terms and conditions as WhatsBusy inc DBA Aben may establish with respect to such retrieval or transfer. In addition, if Customer utilizes the professional services of WhatsBusy inc DBA Aben to assist Customer in connection with such retrieval or transfer, Customer will be responsible for WhatsBusy inc DBA Aben’s then current charges for such professional services. In the event that WhatsBusy inc DBA Aben does not receive all such Fees and amounts due within the applicable time periods described above, or in the event that Customer fails to notify WhatsBusy inc DBA Aben of Customer’s election with respect to the retrieval or transfer of Customer Data within such period, WhatsBusy inc DBA Aben shall have no obligation to continue to store Customer Data or permit Customer to retrieve or transfer the same.
    3. (b) WhatsBusy inc DBA Aben will respond to requests to transfer or delete End Customer Data only to the extent such requests are addressed to WhatsBusy inc DBA Aben from an email address from the email domain that is the same as the domain associated with Customer’s WhatsBusy inc DBA Aben account. To the extent the request does not originate from the specific email address associated with Customer’s WhatsBusy inc DBA Aben account (the “Authorized Email“), WhatsBusy inc DBA Aben will notify Customer of the request at the Authorized Email, and WhatsBusy inc DBA Aben will deem such request valid unless it receives a response within 5 business days from the Authorized Email objecting to the request. WhatsBusy inc DBA Aben will deem valid any request addressed to WhatsBusy inc DBA Aben from the Authorized Email, and Customer is solely responsible for the validity of all requests or communications addressed to WhatsBusy inc DBA Aben from the Authorized Email.

13. DIGITAL MILLENNIUM COPYRIGHT ACT; TAKE DOWN NOTICE AND PROCEDURES

It is WhatsBusy inc DBA Aben’s policy to respond to notices alleging that any material uploaded by users of the Services or the Software infringes another person’s copyright. If you believe any material accessible on or from the WhatsBusy inc DBA Aben website or the Services infringes your copyright, you may request removal of those materials (or access thereto) from this website by contacting the WhatsBusy inc DBA Aben copyright agent (identified below) and providing the following information:

  1. (a) Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (URL) of an authorized version of the work.
  2. (b) Identification of the material that you believe to be infringing and its location. Please describe the material and provide us with its URL or any other pertinent information that will allow us to locate the material.
  3. (c) Your name, address, telephone number and (if available) email address.
  4. (d) A statement that you have a good faith belief that the use of the materials is not authorized by the copyright owner, its agent, or the law.
  5. (e) A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
  6. (f) A signature or the electronic equivalent from the copyright holder or authorized representative.
    Our agent for copyright issues relating to the WhatsBusy inc DBA Aben website or Services is:
  7. Aben Legal
    WhatsBusy Inc
  8. 12 Water Mark Way
    The Woodlands, Texas 77381
    Phone: 415-797-4210
    Email: info@whatsbusy.com
    For all email submissions please include the subject line: DMCA Takedown
    Request.

WhatsBusy inc DBA Aben has adopted a policy of terminating, in appropriate circumstances, accounts of users of the Services or Software who are deemed to have repeatedly uploaded content that infringes the intellectual property rights of others.

14. MISCELLANEOUS

14.1 Marketing. Customer agrees that WhatsBusy inc DBA Aben may refer to Customer by name and trademark in WhatsBusy inc DBA Aben’s marketing materials and website. Customer acknowledges and agrees that WhatsBusy inc DBA Aben does not certify or endorse, and has no obligation to certify or endorse, any of Customer’s products, services, or content.

14.2 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Texas, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts located in Montgomery County, Texas for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer may not bring any suit or action against WhatsBusy inc DBA Aben for any reason whatsoever more than one (1) year after the cause of action accrued.

14.3 Export. Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from WhatsBusy inc DBA Aben, or any products utilizing such data, in violation of the United States export laws or regulations.

14.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

14.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

14.6 Remedies. Customer acknowledges that the Services contain valuable trade secrets and proprietary information of WhatsBusy inc DBA Aben, and that any actual or threatened breach by Customer of its obligations with respect to Intellectual Property Rights of WhatsBusy inc DBA Aben will constitute immediate, irreparable harm to WhatsBusy inc DBA Aben for which monetary damages would be an inadequate remedy. In such case, WhatsBusy inc DBA Aben will be entitled to seek immediate injunctive relief without the requirement of posting bond.

14.7 No Assignment. Customer may not assign its rights or delegate any obligations hereunder without the express prior written consent of WhatsBusy inc DBA Aben. Any assignment by Customer without the prior written consent of WhatsBusy inc DBA Aben shall be null and void. WhatsBusy inc DBA Aben may assign its rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in this Agreement. This Agreement shall inure to the benefit of each party’s permitted successors and assigns.

14.8 Force Majeure. Without limiting any other provision in the Agreement, WhatsBusy inc DBA Aben, or any WhatsBusy inc DBA Aben Party, is not responsible or liable to any Customer for delay or failure to perform its obligations hereunder in the event that any of WhatsBusy inc DBA Aben or WhatsBusy inc DBA Aben Parties’ operations or activities are affected by any cause or event beyond the sole and reasonable control of the applicable WhatsBusy inc DBA Aben Party (as determined by such party in its sole discretion), including, without limitation, by reason of any acts of God, equipment failure, threatened or actual terrorist acts, air raid, act of public enemy, war (declared or undeclared), civil disturbance, insurrection, riot, epidemic, pandemic, fire, explosion, earthquake, flood, hurricane, unusually severe weather, blackout, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slowdown, any law, rule, regulation, action, order, or request adopted, taken, or made by any governmental or quasi-governmental entity (whether or not such governmental act proves to be invalid), or any other cause, whether or not specifically mentioned above.

14.9 Independent Contractors. Customer’s relationship to WhatsBusy inc DBA Aben is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.

14.10 Notices. Where WhatsBusy inc DBA Aben requires you provide an email address, you are responsible for providing WhatsBusy inc DBA Aben with your most current email address. In the event that the last email address you provided to WhatsBusy inc DBA Aben is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, WhatsBusy inc DBA Aben’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to WhatsBusy inc DBA Aben at the following email address: legal@joinaben.com. Notice shall be deemed to have been duly given on the first business day following successful email transmission to WhatsBusy inc DBA Aben.

14.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

14.12 Entire Agreement. This Agreement, any applicable Service Orders, our Acceptable Use PolicyPrivacy PolicyData Protection Addendum and, if applicable, our API Terms of Use constitute the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and WhatsBusy inc DBA Aben.

14.13 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Services, please contact us at info@joinaben.com. We will do our best to address your concern.

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