Client Terms of Service

Last Updated: August 4, 2020

Prospect2 is a marketing automation Platform and related Services built specifically for compatibility with Tessitura powered arts and culture organizations (“Prospect2”) that is owned and operated by Lynch, Incorporated d/b/a L2 Interactive (“L2 Interactive”), an Illinois corporation. By entering into a Plan for the Prospect2 Platform and Services, you (“Client(s)”) are entering into a contract with L2 Interactive and agreeing to be bound by this Client Terms of Service (“Agreement”). Client and L2 Interactive may each be referred to as a “Party” and collectively referred to as the “Parties.”

L2 INTERACTIVE MAY, FROM TIME TO TIME, AND RESERVES THE RIGHT, IN ITS SOLE AND ABSOLUTE DISCRETION, TO MODIFY, LIMIT, CHANGE, DISCONTINUE, OR REPLACE THIS AGREEMENT. IN THE EVENT L2 INTERACTIVE MODIFIES, LIMITS, CHANGES, OR REPLACES THIS AGREEMENT, YOUR USE OF THE PROSPECT2 PLATFORM AND SERVICES AFTER SAID MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT CONSTITUTES YOUR MANIFESTATION OF ASSENT TO THE MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT. YOU ALSO AGREE THAT ANY THIRD-PARTY SUPPORTED PLATFORM’S TERMS MAY BE MODIFIED AT ANY TIME.

1. ActiveCampaign.

    1. Value-Added Reseller. L2 Interactive has partnered with ActiveCampaign (https://www.activecampaign.com/) as a value-added reseller to provide the Prospect2 Platform. L2 Interactive is considered a value-added reseller of ActiveCampaign, meaning that the Prospect2 Platform and Services are built on ActiveCampaign, but branded as Prospect2.

 

    1. ActiveCampaign Legal Terms. As an ActiveCampaign value-added reseller, L2 Interactive is required to notify our Clients that their use of ActiveCampaign, via the Prospect2 Platform, is subject to the ActiveCampaign Legal Terms. When entering a Prospect2 Plan with L2 Interactive, you are agreeing to all of ActiveCampaign’s Legal Terms. The ActiveCampaign Legal Terms are integrated into this Agreement. The ActiveCampaign Legal Terms include, but are not limited to, the following documents:

 

 

    1. Additional Terms. From time to time, ActiveCampaign may add features and create additional terms and policies to reflect the same. For a complete list of ActiveCampaign’s most updated Legal Terms, please visit ActiveCampaign’s website (https://www.activecampaign.com/legal).

 

    1. This Agreement Controls. There are certain aspects of the ActiveCampaign Legal Terms that are inapplicable to L2 Interactive’s Clients given our relationship as a value-added reseller of ActiveCampaign. For example, L2 Interactive Clients are not subject to ActiveCampaign’s Legal Terms regarding subscriptions and pricing. Rather, Clients are bound by this Agreement’s subscription terms. To the extent that any of ActiveCampaign’s Legal Terms conflict with this Agreement, this Agreement shall control.

 

2. Tessitura.

    1. About. Tessitura (https://www.tessituranetwork.com/) is a customer relationship management (“CRM”) database that holds the contact information and transaction history of people who have purchased from a Client.

 

    1. Integration. The Prospect2 Platform serves as an integration that links Tessitura and ActiveCampaign to facilitate marketing Automations.

 

    1. Tessitura License. Clients understand and agree that they must have an active account and license with Tessitura. However, in some circumstances, Clients may still be permitted to use the Prospect2 Platform and Services without having a license to Tessitura.

 

3. Definitions.

    1. “Account” means a Client’s password-protected access point to the Prospect2 Platform via web browser.

 

    1. “Authorized Users” means individuals who are authorized by Client to use the Platform and Services with varying levels of control and access specified by Client and who have been supplied user identifications and passwords by Client. Authorized Users may include the employees, consultants, contractors, agents, or other designees of Client, but shall not include any employee or agent of any L2 Interactive competitor. The number of Authorized Users permitted per Client is dependent upon which Plan the Client enrolls in with L2 Interactive.

 

    1. “Automation(s)” means a sequence of events to be followed when sending Automation Emails. This could involve membership renewal, VIP Unsubscribe, Pre and Post event emails, automated touch points, SMS, etc.

 

    1. “Automation Email(s)” means an email similar to a Standard Campaign except it is deployed from an Automation.

 

    1. “Client Information” means all information and data submitted to the Prospect2 Platform by or on behalf of Client in connection with the creation and management of Client’s Account for the Platform and Services.

 

    1. “List” means a group of email address contacts who have opted into receiving communications from a Client.

 

    1. “Marketing Content” means Standard Campaign Emails, Automation Emails, and any other correspondence sent from Clients through the Prospect2 Platform.

 

    1. “Plan” means a monthly subscription for the Prospect2 Platform and Service that varies in pricing and deliverables depending upon the Client’s Plan (Silver, Gold, Platinum) and active contact level (i.e. number of valid email address contacts that are subscribed to at least one List, which starts at 2,500 contacts and can be as high as 1 million + contacts).

 

    1. “Platform” means the Prospect2 “Platform as a Service” (defined herein) that enables marketing automation integrated with Tessitura.

 

    1. “Platform as a Service” (“PaaS”) means a platform-based service that provides an application to setup marketing automation and integrations with Third-Party Supported Platforms.

 

    1. “Services” means access to the Platform and services, via a Client account, that are ordered by and paid for by Client under a Plan and made available by L2 Interactive, including user guides, documentation, help/training materials, and support provided by L2 Interactive, but expressly excluding any “Third-Party Supported Platform(s)” (as defined herein).

 

    1. “Service Start Date” means the date upon which a Client enters a Prospect2 Plan with L2 Interactive.

 

    1. “Standard Campaign Email(s)” means a broadcast email that can be sent to contacts by using the Send Now feature or it can be scheduled for a future date/time.

 

    1. “Third-Party Supported Platform(s)” means the third-party tools that may integrated with the Prospect2 Platform and Services, which include, but are not limited to, Tessitura, WordPress, DropBox, SurveyMonkey, Facebook, Twitter, YouTube, Vimeo, and other integrations as described on the Prospect2 website at www.prospect2.com/ and through the ActiveCampaign website at https://www.activecampaign.com/apps/. Note that these Third-Party Supported Platforms are subject to change at any time.

 

4. Prospect2 Platform and Services.

    1. License for Platform and Services. Our Prospect2 Platform and Services allows the Client and Authorized Users to create, post, store, and share marketing or other communications content, including email, text or SMS messages, photos, videos, software, and other materials, and review or messages boards (collectively “Marketing Content”). Except for the license you grant below, you retain all rights you may have in and to your Marketing Content, as between you and L2 Interactive. You hereby grant L2 interactive a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, adapt, publish, translate, distribute, and display your Marketing Content through the Prospect2 Platform to be sent to the recipients or audience designated by you or otherwise in accordance with the settings you specify in the Prospect2 Platform and Services. L2 Interactive will not use your Marketing Content for any purpose beyond facilitating your use of the Prospect2 Platform without first acquiring your permission.

 

    1. Updates and Functionalities. Client acknowledges that, from time to time, L2 Interactive may apply updates to the Platform and Services and that such updates may result in changes in the appearance and/or functionality of such Platform and Services (including the addition, modification, or removal of functionality, features, or content). Excluding the addition of wholly new products, L2 Interactive will provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Platform and Services (collectively, the “Updates”). Client acknowledges that the Platform and Services may interoperate with several Third-Party Supported Platforms, and that the Platform and Services are highly dependent on the availability of such Third-Party Supported Platforms. If at any time any Third-Party Supported Platforms cease to make their features or programs available to L2 Interactive on reasonable terms, L2 Interactive may cease to provide access to such features or programs to Client without entitling Client to refund, credit, or other compensation. In no way is L2 Interactive required to customize its Platform or Services for Client, and L2 Interactive does not represent or warrant that its Platform or Services will be compatible with Client’s systems.

 

    1. Support. Clients agree that by opening a support ticket in the Prospect2 Platform, they are granting L2 Interactive access to their Client Account for testing, loading templates, checking email addresses, testing automations, and other services necessary for providing support.

 

5. Client Responsibilities.

  1. Client Shall:
  1. Be over eighteen (18) years old;
  2. Be responsible for their own and Authorized Users’ compliance with this Agreement;
  3. Use commercial reasonable efforts to prevent unauthorized access to use of the Platform or Services, including keeping passwords and usernames confidential and not permitting any third party to access or use its – or any of its Authorized Users’ – user names, passwords, or Client Account for the Platform and Services;
  4. Be solely responsible and liable for all activity conducted through its Client Account in connection with the Platform and Services;
  5. Promptly notify L2 Interactive if Client becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Client’s (or any Authorized User’s) username, password, or Client Account;
  6. Use, or otherwise access in connection with Client’s use thereof, the Platform and Services only in accordance with applicable laws and government regulations; and
  7. Comply in all respects with all applicable terms of the Third-Party Supported Platforms that it accesses or subscribes to.

6. Client Prohibitions.

  1. Client Shall not:
  1. Make the Platform or Services available to anyone other than its Authorized Users;
  2. Sell, trade, or otherwise transfer the Platform or Services to another party;
  3. Use the Platform or Services to store or transmit any Marketing Content that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law, understanding that all Marketing Content will incorporate an artistic angle;
  4. Upload to, or transmit from, the Platform or Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component;
  5. Attempt to reverse engineer, de-compile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Platform or Services (including any mechanism used to restrict or control the functionality of the Platform or Services), any third-party use of the Platform or Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law);
  6. Utilizing L2 Interactive’s Structured Query Language (“SQL”) for any other purpose than in association with the Prospect2 Platform and Services;
  7. Attempt to gain unauthorized access to the Platform or Services or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Platform, Services, or the Third-Party Supported Platforms;
  8. Access the Platform or Services in order to build a similar or competitive product or service or copy any ideas, features, functions, or graphics of the Platform, Services, or the Third-Party Supported Platforms; or
  9. Authorize, permit, or encourage any Authorized User or third party to do any of the above.

b. Client agrees that L2 Interactive may temporarily suspend or terminate its access to the Platform or Services for a violation of the above prohibitions or for any abusive practices that degrade the performance of any Service for Client and/or other L2 Interactive Clients.

7. Third-Party Supported Platforms and Services.

Client’s use of Third-Party Supported Platforms and other third parties via third-party websites, platforms, or applications (collectively, the “Third-Party Services”) is governed solely by the terms and conditions of such Third-Party Services (and Client shall comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Services, is between Client and the relevant third party, and not L2 Interactive. L2 Interactive makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, correspondence or integration with, any such Third-Party Services or any contract entered into and any transactions completed by Client with any such third party. Further, Client acknowledges and agrees that, if Client integrates with a Third-Party Service, Client grants L2 Interactive permission to allow the provider of such Third-Party Service to access its Client Information solely to the extent required for the interoperation and integration of the Third-Party Service with the Platform and Services or as Client may otherwise authorize or direct.

8. Intellectual Property.

    1. Platform and Services. As between Client and L2 Interactive, L2 Interactive retains all right, title, and interest in and to the Platform and Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Prospect2 Platform or Services or any of L2 Interactive’s rights or interests therein or any other L2 Interactive intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services not expressly granted in this Agreement are reserved by L2 Interactive.

 

    1. Feedback. Client may from time to time provide suggestions, comments, or other feedback to L2 Interactive with respect to the Prospect2 Platform and Services (“Feedback”). Feedback, even if designated as confidential by Client, shall not create any confidentiality obligation for L2 Interactive. Client shall, and hereby does, grant to L2 Interactive a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.

 

    1. Client Information. Client hereby grants L2 Interactive a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 10.1) license, with right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, index Client Information for the purpose of providing and developing the Platform and Services to Client and supporting Client’s use of the Platform and Services. Subject only to the limited license expressly granted herein, Client and its Authorized Users shall retain all right, title and interest in and to, and all intellectual property rights in, the Client Information. Nothing in this Agreement will confer on L2 Interactive any right of ownership or interest in or to, or the intellectual property rights in the Client Information.

 

(i) Client is solely responsible for the Client Information submitted to the Platform. L2 Interactive may use the Client Information to provide the Prospect2 Platform and Services, as provided herein and as provided in L2 Interactive’s privacy policy, which is incorporated herein, published at https://www.prospect2.com/privacy-policy/ (the “Privacy Policy”) or as may be required by law.

9. Plans Fees, and Payments.

    1. Pricing Schedule. L2 shall provide Client with a separate Pricing Schedule that articulates the available Prospect2 Plans, as well as the pricing and features included in each Plan. The Pricing Schedule is hereby incorporated into this Agreement as Addendum A.

 

    1. Plans. Prospect2 features three different subscription Plans for Clients, which varies in pricing and deliverables depending upon the Client’s Plan (Silver, Gold, Platinum) and active contact level (i.e. number of valid email address contacts that are subscribed to at least one List, which starts at 2,500 contacts and can be as high as 1 million + contacts). Plans can either be monthly or yearly subscriptions, as specified on the Pricing Schedule. Clients are responsible for and able to move between Plans according to their needs and budget.

 

    1. Support and Training. All Plans include training and support from L2 Interactive as described in the Plan Comparison Chart (Addendum B) and Onboarding Overview Guide (Addendum C), which is incorporated into this Agreement. Relevant pricing for various levels of training and support is incorporated into the Pricing Schedule and Plan Comparison Chart.

 

    1. Fees. Client shall pay all Fees as and when described in their Pricing Schedule (Addendum A).

 

    1. Invoicing. L2 Interactive shall electronically invoice the Client for the subscription Plan Fees in the US Dollars via payment link in an email. Invoices will be issued toward the beginning of the month. Unless otherwise stated, all invoices shall be payable upon presentation and prior to any commencement of the Platform and/or Services. Client shall make payments to L2 Interactive via the entity and email address set forth in the Client’s Account and any subsequent invoice, either via check, wire, or automated clearing house (“ACH”). It is the Client’s responsibility to ensure that all contact information, including email address, is accurate to ensure that all invoices are received.

 

    1. One-Time Purchases. Some features to the Prospect2 Platform and Services, such as SMS credits, templates, consulting, support, or training, may be offered as a standalone, non-subscription product. We will charge you via your payment method at the time of such purchases as one-time purchases.

 

    1. Late Payment. If any amounts invoiced hereunder as Fees or otherwise are not received by L2 Interactive by the due date, then at L2 Interactive’s discretion, such charges may accrue late interest at the rate of 12% per month or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, upon 30 days' written notice to Client provided after the due date, L2 Interactive may suspend Client’s access to the Platform or Services if L2 Interactive has not received the amounts invoiced hereunder at the expiration of such 30-day period.

 

    1. Taxes and Withholdings. Client is responsible for paying all taxes, assessments, charges, fees, and levies that may be levied or based upon Client’s subscription to the Platform and Services, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority. If L2 Interactive has the legal obligation to pay or collect Taxes for which Client is responsible, the appropriate amount shall be invoiced to and paid by Client, unless Client provides L2 Interactive with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

    1. Third-Party Payment Processor. Payment for Prospect2 Plans may be processed through third-party payment processor, Stripe. By utilizing Stripe, Clients agree that they may be subject to their Separate Terms of Use found here.

 

10. Confidential Information and Security Requirements.

    1. Confidential Information. Each Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care consistent with industry standards) and will not disclose or use any Confidential Information (as defined below) of the other Party for any purpose outside of the scope of this Agreement, and each Party shall limit access to Confidential Information to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving Party containing protections no less stringent than those herein.

 

(i) In this Agreement, “Confidential Information” means all information, data, and financial information relating to the business, commercial strategies, pricing, personnel, Clients, products, platforms, or services of each Party. Confidential Information includes (i) Each party’s proprietary system offerings, including the Platform and/or Services, along with documentation and plans related thereto; (ii) Passwords, authorization keys, or codes use to access or operate such system offerings; (iii) Any results or statistics collected through use of the system offerings; or (iv) Any business information that is either marked physically or identified orally as “confidential” or “proprietary.”

(ii) Confidential Information excludes any information that (a) was lawfully in the receiving party’s possession before receiving it from the disclosing party; (b) is provided in good faith to the receiving party by a third party without restriction on use or disclosure and without breaching any rights of the disclosing party; (c) is or becomes generally known or available to, or accessible by, the public through no act or omission of the receiving party; or (d) was or is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. In the event that the receiving party or any representative of the receiving party becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the receiving party will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.

  1. Security Requirements. L2 Interactive has implemented technical and organizational security measures consistent with the prevailing industry standards. However, L2 Interactive cannot guarantee that unauthorized third parties will never be able to defeat those measures and expressly denies any responsibility for damages, monetary or otherwise, resulting from unauthorized third party access to Client’s account or use, alteration, or disclosure of the Client Information.

11. Term and Termination.

    1. Term of Agreement. This Agreement shall commence on the Plan start date (the “Effective Date”) and shall continue in effect until the Plan expires or this Agreement has been terminated (the “Term”).

 

    1. Term of Plans. The Term of each Plan shall start on the Service Start Date specified and shall continue for the Term specified. Except as expressly stated otherwise, all Plans shall automatically renew for subsequent one-month renewal periods, unless a Party gives the other Party written notice of non-renewal at least 30 days prior to the end of the then-current term. Upon renewal of a Plan, L2 Interactive reserves the right to increase the Fees for the Platform or Services by providing Client written notice thereof (which notice may be provided by email) at least 30 days prior to the end of the then-current term.

 

    1. Termination. L2 Interactive reserves the right, without notice and in our sole discretion, to terminate your right to access or use the Prospect2 Platform and Services. You may terminate this Agreement for cause (i) upon 30 days' written notice to L2 Interactive. No refund shall be issued in the event of termination.

 

    1. Effects of Termination. Upon termination of this Agreement for any reason, Client’s Plan will automatically terminate and: (i) Client will immediately cease all use of the Prospect2 Platform and Services; (ii) Client will have no further access to its Client Account provided by L2 Interactive; and (iii) Client will pay L2 Interactive all unpaid Fees owing to L2 Interactive. Client understands that upon termination of this Agreement their access to ActiveCampaign will also be terminated. In no event will termination relieve Client of its obligation to pay any amounts and Fees payable to L2 Interactive for the period prior to the date of termination and other obligations that survive termination of this Agreement.

 

    1. Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive, and such other provisions that expressly or by their nature are intended to survive termination shall survive the expiration or termination of this Agreement.

 

12. Warranties and Warranty Disclaimer.

    1. Mutual Warranties. Each of L2 Interactive and Client represents and warrants that it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement and that doing so is not in conflict with any other agreement.

 

    1. L2 Interactive Warranties. L2 Interactive warrants that the Prospect2 Platform and Services will perform and be available pursuant to ActiveCampaign’s Service Level Agreement (https://www.activecampaign.com/legal/service-level-agreement). To determine if ActiveCampaign is experiencing outages, you can visit the status page (http://status.activecampaign.com/). (i) the Platform and Services will materially perform in accordance with the applicable documentation and the functionality of the Prospect2 Platform and Services will not be materially decreased during the term of the applicable Plan; and (ii) the Prospect2 Platform and Services do not knowingly contain any malicious code or viruses.

 

    1. Disclaimer. SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO CLIENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, L2 INTERACTIVE EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, L2 INTERACTIVE SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT, THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS, OR THAT THE PROSPECT2 SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, L2 INTERACTIVE DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM L2 INTERACTIVE OR ELSEWHERE NOR ANY COURSE OF DEALING WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PROSPECT2 PLATFORM AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.L2 INTERACTIVE DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE PROSPECT2 PLATFORM AND SERVICES, INCLUDING CLIENT INFORMATION, AND ANY CONTENT, SERVICES, OR PLATFORMS PROVIDED BY THIRD PARTIES. L2 INTERACTIVE DOES NOT CONTROL OR VET CLIENT INFORMATION AND IS NOT RESPONSIBLE FOR WHAT CLIENTS POST, TRANSMIT, OR SHARE ON OR THROUGH THE PROSPECT2 PLATFORM OR SERVICES. L2 INTERACTIVE IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY THIRD-PARTY SUPPORTED PLATFORMS ASSOCIATED WITH OR UTILIZED IN CONNECTION WITH THE PROSPECT2 PLATFORM AND SERVICES, INCLUDING THE FAILURE OF ANY SUCH THIRD-PARTY SUPPORTED PLATFORMS. L2 INTERACTIVE EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PROSPECT2 PLATFORM AND SERVICES OR THE INFORMATION CONTAINED THEREIN AS WELL AS YOUR CLIENT ACCOUNT AND CLIENT INFORMATION.

 

13. Indemnification.

    1. To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless L2 Interactive, our parent, subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “L2 Interactive Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs (“Claims“) arising out of or related to (a) your access to or use of our Prospect2 Platform and Services; (b) your content or feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights) including, but not limited to, your use of the Prospect2 Platform and Services and your Marketing Content, Client Information, and Standard Campaign Emails; or (e) your conduct in connection with our Prospect2 Platform and Services. To the extent that any Claims are brought against you related to ActiveCampaign and/or any of the Third-Party Supported Platforms integrated with the Prospect2 Platform and Services, please refer to the terms of ActiveCampaign and/or that Third-Party Supported Platform, which shall be the controlling agreement regarding any such Claims.

 

    1. You agree to promptly notify the L2 Interactive Parties of any third-party Claims related to the Prospect2 Platform and Services. L2 Interactive Parties will give you sole control of the defense against such Claims and you agree to pay all fees, costs, and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). L2 Interactive shall provide you - at your own expense and at L2 Interactive’s sole discretion - with non-Confidential Information and assistance reasonably requested by you to handle the defense or settlement of the Claim. While you have control over the settlement of any Claims, you shall not accept any settlement that (i) imposes any obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent. You also agree that the terms of any settlement shall remain confidential. To the extent that any Claims are brought against you related to ActiveCampaign and/or any of the Third-Party Supported Platforms integrated with the Prospect2 Platform and Services, please refer to the terms of ActiveCampaign and/or that Third-Party Supported Platform, which shall be the controlling agreement regarding the defense and/or settlement of any such Claims.

 

    1. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in any written agreement between you and L2 Interactive or the other L2 Interactive Parties.

 

14. Limitation of Liability.

EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL L2 INTERACTIVE'S AGGREGATE LIABILITY TO CLIENT FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CLIENT FOR THE PROSPECT2 PLATFORM AND SERVICES SUBJECT TO THE CLAIM DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE, AS PRO-RATED BASED UPON THE FEES FOR THE THEN CURRENT TERM.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL L2 INTERACTIVE, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL L2 INTERACTIVE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PROSPECT2 PLATFORM OR SERVICES OR CLIENT’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.

THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF L2 INTERACTIVE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING OR RESTRICTING THE LIABILITY OF L2 INTERACTIVE FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF L2 INTERACTIVE, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT OF L2 INTERACTIVE OR ITS EMPLOYEES; OR (III) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.

CLIENT AGREES THAT CLIENT WILL ONLY BE ABLE TO PURSUE CLAIMS AGAINST L2 INTERACTIVE ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND CLIENT WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. CLIENT FURTHER AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR CLIENT’S USE OF L2 INTERACTIVE’S PROSPECT2 PLATFORM AND SERVICES MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

15. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations hereunder, whether by merger, sale of assets, change of control, operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, L2 Interactive may assign this Agreement in its entirety (including all Authorization Forms), without consent of Client, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its shares or assets.

16. Relationship of the Parties. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither Party has any authority of any kind to bind the other in any respect.

17. Publicity. Client agrees that, pursuant to Client’s prior permission and authorization, L2 Interactive may ask to use Client’s name and logo and may ask to disclose that Client is a Client of the Prospect2 Platform and Services in L2 Interactive advertising, press, promotion, and similar public disclosures, including at trade shows and similar events. In the event that Client provides permission to L2 Interactive’s use of Client’s name and logo, Client hereby grants L2 Interactive a non-exclusive license during the Term to list Client’s name and display Client’s logo as a L2 Interactive Client on L2 Interactive’s Prospect2 website. Prior to using Client’s name and/or logo for any of the above purposes, L2 Interactive will allow Client to review the proposed use prior to it being publicized.

18. Force Majeure. Except for payment obligations, neither Party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; and any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.

19. Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or interference against the Party drafting this Agreement in construing or interpreting the provisions hereof.

20. Integration. L2 Interactive hereby incorporates the ActiveCampaign’s Legal Terms; Prospect2 Pricing Schedule (Addendum A); Prospect2 Plan Comparison Chart (Addendum B); Prospect2 Onboarding Overview Guide (Addendum C); Prospect2 Privacy Policy, and Prospect2 Acceptable Use Policy into this Agreement.

21. Amendment. No amendment, supplement, restatement, or termination of any provision of this Agreement shall be valid unless it is in writing and signed by each Party to this Agreement at the time of the amendment, supplement, restatement, or termination.

22. Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.

23. Notices. For purposes of service messages or notices about the Prospect2 Platform and Services, L2 Interactive may place a banner notice across the Prospect2 Platform, Services, or website to alert Client. Alternatively, notice may consist of an email from L2 Interactive to an email address associated with Client’s Account, even if L2 Interactive has other contact information. For communication about Client’s Account and services associated with L2 Interactive, L2 Interactive may contact Client or its Authorized Users through its Client Account or through other means including email, mobile number, telephone, or delivery services such as the postal service. Client acknowledges and agrees that L2 Interactive shall have no liability associated with or arising from Client’s failure to maintain accurate contact or other information, including, but not limited to, Client’s failure to receive critical information about the Prospect2 Platform and Services. Notices to L2 Interactive must be delivered by email to hello@prospect2.com with a duplicate copy sent via registered mail to the following address: L2 Interactive, 956 S. Bartlett Road, Suite 183, Bartlett, Illinois 60103; Attention: Legal.

24. Reporting Abuse. If you think anyone using the Prospect2 Platform or Services is violating this Agreement, please notify us immediately at hello@prospect2.com. Upon receipt of an abuse notification, L2 Interactive will work with ActiveCampaign to identify the issue.

25. Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all Parties to this Agreement, except that any provision that does not give rights or benefits to particular Parties may be waived in writing, signed only by those Parties who have rights under, or hold the benefit of, the provision being waived if those Parties promptly send a copy of the executed waiver to all other Parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.

26. Governing Law, Jurisdiction and Venue. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the State of Illinois. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Cook County, Illinois, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in Cook County, Illinois, such personal jurisdiction shall be nonexclusive.

27. Binding Arbitration. It is the intention of the Parties to use their reasonable best efforts to informally resolve, where possible, any dispute, claim, demand or controversy arising out of the performance of this Agreement by mutual negotiation and cooperation, a period of which shall be no less than five (5) business days from first notice of any such dispute. In the event the Parties are unable to informally resolve any such dispute, including relating to this Agreement, the Parties agree to arbitrate any controversy, claim or dispute between them arising out of or in any way related to this Agreement and any disputes upon termination of the relationship, including claims for violation of any local, state or federal law, statute, regulation or ordinance or common law. The arbitration will be conducted in Cook County, Illinois, by a single neutral arbitrator and in accordance with the Judicial Arbitration and Mediation Services’ (“JAMS”) then current Employment Arbitration Rules & Procedures. Notwithstanding the provision in the preceding or subsequent paragraph with respect to applicable substantive law, the arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). The arbitrator shall have the power to enter any award that could be entered by a judge of the trial court of the State of Illinois, and only such power, and shall follow the law. In the event the arbitrator does not follow the law, the arbitrator will have exceeded the scope of his or her authority and the parties may, at their option, file a motion to vacate the award in court. The parties agree to abide by and perform any award rendered by the arbitrator. Judgment on the award may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to costs and attorneys’ fees.

28. Entire Agreement. The terms of this Agreement, together with any and all other terms incorporated by reference, including, without limitation, L2 Interactive’s Prospect2 Privacy Policy and ActiveCampaign’s Legal Terms, constitute the entire agreement between the Parties with respect to the subject matter thereof and supersede any prior or inconsistent agreements, negotiations, representations, and promises, written or oral, with respect to the subject matter and is binding upon the Parties and their permitted successors and assigns. In the event of any conflict between this Agreement and the terms of another agreement, the provisions of this Agreement shall prevail.

29. Non-Exclusivity. Client acknowledges that the rights granted to it under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict L2 Interactive’s right to license, sell, or otherwise make available the Prospect2 Platform or Services to any third party or perform any services for any third party.

30. Authority to Sign. Client represents and warrants that the execution of this Agreement has been duly authorized and signed by a person who meets statutory or other binding approval to sign on behalf of Client’s business organization.