Effective as of 12-06-2022
The terms below (as may be amended from time to time, “Terms of Use”) apply to the Services delivered to Customer by Say Technologies LLC when referenced in any applicable Schedule, Exhibit or Supplement and shall be incorporated into the applicable Agreement. In the event of any conflict, this Terms of Use shall prevail with respect to the Services described herein unless expressly stated otherwise. Capitalized terms used in this Terms of Use not defined herein shall have the same meanings given to them in the applicable Agreement.
- Say grants Customer the limited right to publish and distribute messages and other written content originating from the Customer that constitute corporate communications (collectively, “Content”) over Say’s Shareholder Messages platforms specified in the Schedule (“Shareholder Messages Service”).
- Customer may prepare and distribute Content directly through the Shareholder Messages Service. Content must be submitted through the Shareholder Messages Service and Say is not obligated to distribute or publish Content received by any other means. All Content are hosted on the Shareholder Messages Service indefinitely. The terms and conditions of the Agreement related to such Content shall survive as long as Customer’s Content are hosted on the Shareholder Messages Service. All Content submitted by Customer must contain a clearly identifiable source. The source indicates the entity or individual that is responsible for the Content and cannot be the name of an agency issuing Content on behalf of the Customer.
- Customer hereby grants Say and its affiliates a perpetual, non-exclusive, royalty-free, worldwide, sub-licensable right and license to use, distribute, redistribute, store and display any Content in connection with the provision of Shareholder Messages Services (a) in Say’s and its affiliates’ services, including Say’s and its affiliates’ hosted web pages; and (b) via third-party distribution channels.
- Customer represents and warrants that it (a) shall comply with the terms of the applicable Agreement (including Schedule(s) and the terms hereof), all laws, rules, regulations or other legal or fiduciary obligations while using the Shareholder Messages Services (including but not limited to all applicable securities laws, rules, and regulations); (b) has the legal right and authority to use, and to authorize Say to use, distribute, redistribute, transmit, store and display any content comprising the Content or other communications on its behalf to Customer’s requested recipients, (c) shall not transmit, or submit to Say for transmission, any communication that violates any law, rule, or regulation, including without limitation applicable email spam regulations, securities regulations, or export regulations, or otherwise does not constitute corporate communications, (d) shall not violate any third-party rights in using the Shareholder Messages Services, and (e) shall not use the Shareholder Messages Services in any way that damages Say’s property or interferes with or disrupts Say’s systems or other Shareholder Messages Service users. The Customer has consulted its own legal, accounting, regulatory, and tax advisors to the extent that it has deemed appropriate and the Customer is capable of evaluating, and is capable of understanding, and accepts the terms, risks, and conditions, of the transactions contemplated hereby. Customer agrees that it is solely responsible for the validity, accuracy and completeness of the Content. Customer acknowledges and agrees that Say does not and has no obligation to control or monitor Content nor guarantee the accuracy, integrity, security or quality of any Content. Customer is solely responsible for, and Say has no obligation with respect to, any required filings in accordance with applicable securities laws, rules and regulations, including, without limitation, any proxy solicitation rules.
- Say or any third party distribution partner has the right, but not the obligation, to refuse to publish or distribute or may take down and/or retract any Content that is defamatory, obscene, false, misleading, unlawful, exploitative, harmful, threatening, abusive, harassing, tortious, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable in Say’s or any third party distribution partner’s, as applicable, sole discretion (“Objectionable Content”).
- Customer further agrees not to use the Shareholder Messages Service to: a) disseminate any unsolicited or unauthorized advertising, promotional materials, Objectionable Content, spam, junk mail, chain letters, pyramid schemes, marketing, or any other content or communication that does not constitute Content; b) transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; c) transmit the same message multiple times; d) impersonate any person or entity, or company including, but not limited to, a Say director, officer or employee; or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity; e) send or transmit any file which contains viruses, worms or any other contaminating or destructive features, or that otherwise interferes with the proper working of the Shareholder Messages Service or any third party; or f) solicit personal information.
- Customer further agrees that the Shareholder Messages Service and Content may be subject to usage limits, including, for example, quantities and other limitations as specified in the applicable Agreement and/or Schedule(s).
- If Say determines that Customer has violated any provision of Sections 4, 5 or 6 above, Say may suspend or terminate access to the Shareholder Messages Service immediately without notice and without liability. Say may, in appropriate circumstances and if it is determined that Customer is a repeat copyright infringer, terminate Customer’s access to the Shareholder Messages Service. Additionally, Say may suspend or terminate access to the Shareholder Messages Service at any time if instructed to do so by any legal authority or regulator. Say shall make commercially reasonable efforts to notify Customer promptly of any such suspension or termination.
- Customer shall provide Say with the identity of authorized users entitled to publish Content by completing the required authorization forms. In addition, Customer shall promptly notify Say of any changes to authorized users. Customer shall remain the data controller/owner of such information about authorized users and Say shall only process such data in accordance with Customer’s instructions (as set out in the terms of the applicable Agreement, any Schedule(s), service description, product notes, Customer’s instructions) or as otherwise required by applicable law.
- Customer may not resell Say’s Shareholder Messages Service, whether as part of Customer’s commercial operations or otherwise.
- Customer may cancel or postpone any scheduled Content directly through the Shareholder Messages Service. Say disclaims any and all liability for any damage arising out of Customer’s cancellation or postponement of any such Content.
- In addition to the indemnification in the applicable Agreement, Customer agrees to defend, indemnify and hold harmless Say, its affiliates, any distribution partner, and their respective employees, officers, directors, third-party providers and other agents (“Say Indemnitees”), from any third party claims, demands, losses, costs, expenses, damages and liabilities (including reasonable attorneys’ fees) against such indemnified party arising from or relating to Say’s use, storage, publication, distribution, redistribution, or display of any Content provided by Customer, or otherwise arising from Customer’s use of the Shareholder Messages Service (except to the extent Say is required to indemnify the claim under the applicable Agreement) including but not limited to any infringement or alleged infringement of the Content of any third-party intellectual property right. Any limitations of liability and exclusions of damages set forth in the applicable Agreement shall not apply to Customer’s obligations under this Section 12. Each Say Indemnitee is a third party beneficiary of this Section 12 and may enforce it directly against Customer.
- If the applicable Schedule identifies a specific quantity of Content or other services to be included in the Fees, each Content or other service usage in excess of the specified quantity will incur an additional charge and/or be restricted in Say’s sole discretion.
