Terms of Service

THESE TERMS OF SERVICE (“AGREEMENT”) GOVERN YOUR ACQUISITION AND USE OF SENDBIRD’S SERVICES.

IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.

YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT BY CLICKING A CHECK BOX OR BUTTON, OR BY ACCESSING THE SENDBIRD SERVICES. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SENDBIRD SERVICES.

• 1. Definitions

  1.1 Defined Terms

  “Call” means a voice or voice & video conversation using the SendBird Services (defined below).

  “Call Data” means the data related to a Call such as Call history, Call transaction dates, and other Call metadata, but in no event shall Call Data include Personal Data or the actual transcript or recording of a Call.

  “Chat Monthly Active User” or “Chat MAU” means any user that has connected through the SendBird Services at least once within a calendar month or access to a user account via an API (Application Programming Interface) call at least once within a calendar month.

  “Customer Data” means data or content contained in the Messages or data streams published by Customer or its users to the SendBird Services and any Call Data.

  “Customer Products” means any websites, applications, or other technology used to interface with the SendBird Platform, accessible to End Users which are owned and operated by the Customer or at the direction of the Customer or under license from the Customer.

  “Customer Service” means the features, products, and services that Customer makes available on or through the Customer Products.

  “End User Data” means any data or information of any End User that is provided to or obtained by any Party in the performance of its obligations under this Agreement, including but not limited to, all lists of End Users, former End Users, and all information relating to and identified with such End Users.

  “End User” means any subscriber, person or entity that uses the SendBird Services through the Customer Products to access, use, interact with, view or otherwise consume a Customer Service.

  “Fees” means the amounts in US Dollars that Customer is obligated to pay SendBird for the provision of the SendBird Services.

  “Intellectual Property Rights” means all (i) copyrights (including, without limitation, the right to reproduce, distribute copies of, display and perform the copyrighted work and to prepare derivative works), copyright registrations and applications, trademark rights (including, without limitation, registrations and applications), patent rights, trade names, mask-work rights, trade secrets, moral rights, author’s rights, privacy rights, publicity rights, algorithms, rights in packaging, goodwill and other proprietary rights, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or any other state, country or jurisdiction; (ii) intangible legal rights or interests evidenced by or embodied in any idea, design, concept, technique, invention, discovery, enhancement or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; and (iii) all derivatives of any of the foregoing.

  “Message” means data originating from or destined for delivery to an End User participating in a stream of communication such as (but not limited to) a conversation, chat room or comment thread that is sent or received through the SendBird Services.

  “Metadata” means the data and information about the Customer Data and Call Data, objects and processes and data structure such as tables, fields, data types, indexes, etc., including without limitation the definition of the data model and the method of display in the system or user interface  along with the reports, schedules, file size CPU time disk reads, disk writes, and rows processed. By definition, Metadata does not contain Personal Data.

  “Order Form(s)” means the form evidencing an order for the SendBird Platform and SendBird Services submitted online or in written or electronic form, specifying, among other things, the Effective Date, the applicable Fees, the billing period, and other charges, each such Order Form is automatically incorporated into and becomes a part of this Agreement.

  “SendBird Dashboard” means the section of the SendBird website to which access is restricted, allowing the Customer to configure account settings, access and view information about their Usage of the SendBird Services.

  “SendBird Platform” means SendBird’s communications platform, also known as the SendBird Cloud, used by SendBird to provide the SendBird Services, for the transmission of text, rich messages, voice, video and other data (in website, application, and other formats), including the SendBird Software and any APIs to such platform.

  “SendBird Proprietary Materials” means (i) SendBird Services, SendBird’s SDK’s, API’s and Services Documentation; (ii) any content (other than Customer Service or Customer Products or any derivative works thereof) embodied in or used in connection with the implementation, operation, maintenance, or hosting of the SendBird Services; and (iii) all Intellectual Property Rights embodied therein and all derivative works, improvements, updates, modifications, or translations thereof.

  “SendBird Services” means SendBird’s services provided under this Agreement.

  “Service Period” means a calendar month.

  “Services Documentation” means collectively, written guides and guidelines that describe the SendBird Services, the operating instructions, getting started guides, user manuals, and help files, in written or electronic form, made available to Customer by download or on SendBird’s website, and that are intended for use in connection with the SendBird Services.

  “SLA” means the service level agreement signed between SendBird and the customer.

  “Software”” means the hosted software solution called SENDBIRD that is intended to provide a whole-stack chat & messaging feature for applications and delivered to Customer hereunder.

  “Support” means SendBird’s technical support provided to its Customers described at sendbird.com/pricing, as such may be updated from time to time.

  “Telephone Consumer Protection Act” or “TCPA” means the Telephone Consumer Protection Act of 1991 (TCPA).

  “Trademarks” means all common law or registered trademark, service mark, trade name and trade dress rights and similar or related rights arising under any of the laws of the United States or any other country or jurisdiction, whether now existing or hereafter adopted or acquired.

  “Usage” means the volume of data, number of Chat Monthly Active Users the Customer has processed or registered through the SendBird Service and the volume of data stored in the SendBird Cloud during a Service Period.

• 2. Licenses

  2.1 Licenses to SendBird Software, Platform, Services and Services Documentation

  During the Term and subject to the terms of this Agreement, SendBird grants to Customer and Customer accepts from SendBird a non-exclusive, non-transferable limited license and right to access the SendBird Software, Platform and Services for the transmission of, and data relating to, Messages and Calls as described in the Services Documentation.

  2.2 Customer License to SendBird

  Customer grants to SendBird a non-exclusive, non-transferable, worldwide, perpetual, irrevocable, royalty-free license to collect, analyze and use the (i) Customer Data and Call Data for the sole purpose of delivering the Services to Customer and transmitting Messages and Calls to and from End Users, and (ii) Metadata, including the generation of reports, for internal use. SendBird may distribute De-identified Metadata in aggregate, non-personally identifiable form that cannot be used to identify Customer, any third party or individual End Users. Customer grants to SendBird a non-exclusive, worldwide, perpetual, irrevocable, sublicensable, royalty-free right and license to use and incorporate into the SendBird Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of the SendBird Services.

  2.3 Customer Data

  Other than to the limited extent provided herein, Customer will have control over any and all Customer Data which Customer or End Users upload through the Customer Service. Customer hereby grants to SendBird a non-exclusive, royalty-free, worldwide license during the Term of this Agreement to reproduce, distribute, publicly perform, publicly display and digitally perform the Customer Data and Call Data solely for providing the SendBird Services to Customer and End Users. Additionally, Customer understands that the technical processing and transmission of the SendBird Services, including any Customer Data and Calls provided by Customer, may involve (i) transmissions over various third party networks, and (ii) changes to conform and adapt to technical requirements of connecting networks or devices, and Customer consents to such transmission and changes.

  Customer and SendBird acknowledge that Customer Data may from time to time include personally identifiable information (“Personal Data”) to the extent Customer or End Users upload Personal Data through the Customer Service. Customer agrees that, as with all Customer Data and Call Data, the uploading of Personal Data is exclusively within the control of Customer or End Users, as applicable. Any Personal Data uploaded as part of the Customer Data is subject to the terms of SendBird’s Privacy Policy, incorporated herein by reference and made part of this Agreement. With respect to Personal Data only, the terms of this Agreement will control in the event of a conflict between the terms of the Privacy Policy and this Agreement.

  2.4 Use of Trademarks

  Each party shall strictly comply with all standards with respect to the other party’s trademarks which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more marks of the other party. All uses of the other party’s marks shall inure to the benefit of the party owning such mark. Notwithstanding the foregoing, SendBird may identify Customer by name, with or without use of the Customer’s trademark, in general promotional lists of SendBird’s customers without Customer’s prior consent.

  2.5 Licenses Restrictions

  Except as specifically provided in this Agreement, the license grant under this Agreement does not permit Customer (directly or indirectly, in whole or in part) to and Customer shall not:
  (a) reverse engineer or attempt to derive the source code from or create derivative works of the SendBird Platform, or any portion thereof;
  (b) sublicense or distribute the SendBird Platform or SendBird Services or rent, electronically distribute, timeshare, or market SendBird Proprietary Materials,
  (c) access, use, or copy any portion of the SendBird Platform or SendBird Services to directly or indirectly develop, promote or support any product or service that is competitive with the SendBird Services or SendBird Platform,
  (d) remove any identification, patent, trademark, copyright, or other notice from the SendBird Platform or SendBird Services;
  (e) interfere with or disrupt the integrity or performance of the SendBird Platform or SendBird Services or third-party data contained therein;
  (f) attempt to gain unauthorized access to the SendBird Platform or SendBird Services, including access to other SendBird customer’s data;
  (g) disclose or publish, without SendBird’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the SendBird Services;
  (h) use the SendBird Platform and SendBird Services including the transmission of Customer Data, in any manner that violates any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign;
  (i) use, reproduce, distribute, or permit others to use, reproduce, or distribute any SendBird Proprietary Materials for any purpose other than as specified in this Agreement; or (j) utilize SendBird’s sandbox environment for commercial use, use in an app store or app marketplace, or in a manner that is noncompliant with the restrictions set forth by SendBird as noted in the SendBird Dashboard.

  2.6 Reservation of Rights

  Customer acknowledges and agrees that except for the rights and licenses expressly granted to Customer in this Agreement, SendBird shall retain all right, title and interest in and to the SendBird Proprietary Materials and any derivatives, modifications or improvements of the foregoing; and, nothing contained in this Agreement shall be construed as conferring upon Customer by implication, operation of law, estoppel, or otherwise, any other license or right.

• 3. Certain Rights and Obligations of SendBird

  3.1 Certain Rights and Obligations of SendBird

  a. Delivery of SendBird Services. Subject to the terms and conditions of this Agreement, including the payment of all applicable Fees as set forth in Section 5 below, SendBird shall provide to Customer the SendBird Services in accordance with the SLA signed by the Customer and SendBird, as applicable, and Support, as applicable.

  b. Suspension / Deactivation of an End User Account. SendBird reserves the right, but not the obligation, to suspend or deactivate, or to require Customer to suspend or deactivate, an End User’s account and access to the SendBird Services at any time for any reasonable cause, including the malicious use of the SendBird Services, or use of the SendBird Services to facilitate illegal activity.

  c. Suspension / Deactivation of Customer. SendBird reserves the right to (i) suspend a Customer’s account and access to the SendBird Services if continued operation of the Customer Service threatens the stability or performance of the SendBird Services or SendBird Platform, or if the Customer Service is not implemented in accordance with the Services Documentation, or (ii) deactivate Customer’s account and access to the SendBird Services if Customer uses the SendBird Services to facilitate illegal activity.

  d. Availability. Subject to the terms and conditions of this Agreement, SendBird will use diligent efforts to make the SendBird Platform and SendBird Services available.

• 4. Certain Rights and Obligations of Customer

  4.1 Certain Rights and Obligations of Customer

  a. Customer’s Service Responsibility. Except for the express obligations of SendBird set forth in this Agreement, Customer is solely responsible for all activities required by or otherwise related to the development, production, delivery, updating and promotion of the Customer Service. Customer is solely responsible for all customer service issues relating to Customer Services, including functionality, warranty, and technical and End User support.

  b. Compliance. Customer shall comply with all applicable laws in the performance of its obligations hereunder, and shall ensure that each of the following complies with all applicable law: (i) the Customer Services and all related features and functionality; (ii) the terms and conditions applicable to the Customer Services; (iii) the fees and charges applied to or in connection with any Customer Service; (iv) and all materials related to the Customer Services, including, without limitation, all marketing and informational materials and disclosures.

  c. Notification of End User Misconduct. Customer shall promptly notify SendBird (i) regarding any End User that engages in (or that Customer reasonably believes has engaged in) activity that is illegal, fraudulent, malicious, or violates any rights of any third party or the terms of this Agreement, and (ii) if Customer becomes aware of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of security related to the SendBird Services.

  d. Proper Implementation. Customer shall promptly fix any bugs in Customer Service or software that causes the SendBird Services to be accessed in a way that is not consistent with the Services Documentation, or is otherwise detrimental to the performance of the SendBird Platform or SendBird Services.

  e. Content Notices. Customer is responsible for processing and handling notices it receives from any third party claiming that Customer’s or its End User’s content in connection with the SendBird Platform and SendBird Services violates such party’s rights including without limitation, notices pursuant to the Digital Millennium Copyright Act. SendBird reserves the right to block any Customer Data and Customer account that violates the terms of Sections 2.4 and 4.1.

• 5. Fees and Payment

  5.1 Fees

  a. SendBird Fees. As compensation for its services under this Agreement, Customer shall pay to SendBird the amounts set forth on the SendBird website (sendbird.com/pricing) unless otherwise agreed in an Order Form, and Customer shall pay to SendBird any applicable Support fees as ordered by Customer in an Order Form. Customer agrees to pay the applicable fees including any Usage fees. There will be no refunds or credits for partial months of service, upgrades, downgrades, or unused months. Fees listed do not include any applicable sales, use, excise or VAT taxes. Customer shall be responsible for payment of all such taxes (excluding taxes based on SendBird’s net income), fees, duties and charges, and any related penalties and interest, arising from the payment of such fees or the delivery or use of the SendBird Services.

  b. Upgrades, Downgrades, Cancellations. Prepaid package upgrades, downgrades, or cancellations must be processed within the SendBird Administrative Portal. To ensure upgrades, downgrades, or cancellations are processed for an upcoming Service Period, requests must be submitted before the end of the current month (using Pacific Standard Time) to avoid billing of fees for the next month. Customer’s requested upgrades, downgrades and cancellations shall constitute an Order Form once confirmed by SendBird.

  c. Payment by Credit Card or ACH. Customer must maintain a payment method on file within the SendBird Dashboard. Customer authorizes SendBird to charge your payment method on file for all services purchased including Usage fees. Customer authorizes SendBird to use a third party to process payments and consents to the disclosure of your payment information to such third party.

  d. Billing Correspondence. SendBird will send billing correspondence to the email address entered as billing contact by Customer in the SendBird Dashboard.

  e. Payment Disputes. In the event of a good faith dispute as to the calculation of a charge, Customer shall promptly give written notice to SendBird stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by SendBird of such partial payment shall not constitute a waiver of payment in full by SendBird of the disputed amount. Customer agrees to pay all costs and expenses of whatever nature, including reasonable attorneys’ fees, incurred by or on behalf of SendBird in connection with the collection of any unpaid amounts due to SendBird hereunder.

  f. Timely Payment; Suspension of Service. Any undisputed amount due to SendBird under this Agreement and not paid within 30 days of invoice due date may be subject to a finance charge payable by Customer which is equal to one and one-half percent (1.5%) or the highest rate allowable by law, whichever is less, determined and compounded daily from the date such amount is due until the date such amount is paid. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle SendBird to suspend Customer access to the SendBird Platform and SendBird Services without notice at SendBird’s sole discretion.

• 6. Warranties and Disclaimers

  6.1 SendBird Obligations

  a. With respect to SendBird Services, SendBird shall provide the SendBird Services and SendBird Platform in substantial conformance to the specifications set forth in the applicable Services Documentation, as may be amended from time to time at SendBird’s sole discretion.

  c. The preceding obligation will not apply if: (i) any products, services, or deliverables provided by SendBird hereunder are used in material variation with this Agreement or the Services Documentation; (ii) any products, services, or deliverables licensed hereunder or any part thereof have been modified without the prior written consent of SendBird; or (iii) a defect in any products, services, or deliverables provided hereunder has been caused by any of Customer’s equipment, software or third party software. In addition, the preceding obligation does not apply to downtime, service interruption or other related issues covered by SendBird’s SLA (the “SLA Obligations”). Customer’s sole and exclusive remedies for SendBird’s failure to meet an SLA Obligation is described in the applicable SLA.

  d. In the event Customer discovers that the SendBird Services provided by SendBird hereunder, as applicable, are not in conformance with the obligations set forth in this Section 6.1 and reports such non-conformity to SendBird, SendBird will, at SendBird’s discretion, (i) exercise commercially reasonable efforts to correct the non-conformity at no additional charge to Customer, or (ii) refund Customer any prepaid fees covering the remainder of the then-current term dating from the Customer’s notice of such non-conformance. THE REMEDY STATED IN THIS PARAGRAPH AND THE REMEDY STATED IN SENDBIRD’S SLA, AS APPLICABLE, CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SENDBIRD’S ENTIRE LIABILITY UNDER SECTIONS 6.1 OF THIS AGREEMENT.

  6.2 Customer Obligations

  a. Customer shall ensure that at all times during the term of this Agreement, Customer’s installation, configuration, and use of SendBird Services shall (i) conform to specifications set forth in the applicable Services Documentation, (ii) comply with all applicable laws and regulations, including without limitation the TCPA, and (iii) comply with all license and use restrictions with respect to any third party software used by, or incorporated into, the SendBird Services.

  b. Customer hereby represents and warrants that, prior to transmitting End User Data and Call Data using the SendBird Services, it will provide all reasonably necessary disclosures and/or obtain all reasonably necessary consents from each End User regarding the intended disclosures and uses of the End User Data.

  c. Customer shall maintain and adhere to all commercially reasonable security measures to protect Customer Service and the data contained therein from unauthorized control, tampering, or any other unauthorized access, including, without limitation, compliance with applicable laws.

  6.3 Disclaimers

  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND SERVICES PROVIDED HEREUNDER BY SENDBIRD ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES. SENDBIRD MAKES NO REPRESENTATION OR WARRANTY THAT THE SENDBIRD SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE. THIS DISCLAIMER OF WARRANTY EXTENDS TO CUSTOMER AND END USERS OF CUSTOMER’S PRODUCTS AND SERVICES AND IS IN LIEU OF ALL WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND INCLUDES A DISCLAIMER OF THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

• 7. Indemnification and Limitation of Liability

  7.1 Indemnification

  a. Customer will defend SENDBIRD, its officers, directors, employees, and the successors and assigns of the foregoing from and against any and all claims by an unaffiliated third party directly or indirectly arising from or related to (i) facts that, if true would constitute a breach of this Agreement by Customer, (ii) Customer’s or its End Users’ access to, use, misuse or illegal use of the SendBird Service, Customer Data or End User Data, or (iii) the violation or infringement by the Customer Service or the Customer Products of such third party’s U.S. Intellectual Property Rights. SendBird reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case Customer agrees to cooperate with any reasonable requests to assist SendBird’s defense of such matter.

  b. Sendbird will defend Customer, its officers, directors, employees, and the successors and assigns of the foregoing from and against any and all claims by an unaffiliated third party directly or indirectly arising from or related to the violation or infringement by the SendBird Service or SendBird Platform of such third party’s Intellectual Property Rights.

  7.2 Limitation of Liability

  IN NO EVENT WILL SENDBIRD BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (II) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID OR PAYABLE TO SENDBIRD HEREUNDER DURING THE SIX MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

• 8. Term, Termination, and Effects

  8.1 Term and Termination

  a. This Agreement shall commence on the Effective Date and unless otherwise indicated on an Order Form shall continue until on a month-to-month basis until terminated as set forth herein.

  b. SendBird may terminate this Agreement, without cause, upon providing Customer with thirty (30) days prior written notice.

  c. Notwithstanding the foregoing, SendBird reserves the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any free, trial, or beta versions with or without notice.

  8.2 Effects of Termination

  Upon expiration or termination of this Agreement, all licenses granted to the SendBird Services and the Services Documentation shall expire. SendBird shall discontinue the provision of the SendBird Services, and Customer shall immediately pay any outstanding invoices for services rendered through the date of termination.

• 9. Copyright

  9.1 Copyright Infringement

  In accordance with the Digital Millennium Copyright Act (the DMCA), as it relates to online service providers, SendBird, reserves the right to delete or disable digital content a third party alleges to be infringing, and to terminate the accounts of repeat alleged infringers. To review our complete Copyright Dispute Policy and learn how to report potentially infringing content, visit sendbird.com/dmca. To learn more about the DMCA, visit copyright.gov/legislation/dmca.pdf.

• 10. General Terms

  10.1 Confidential Information

  Definition. Confidential Information means any data or information, oral or written, treated as confidential that relates to either party’s (or, if either party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present, or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, Services Documentation (in whatever form or media provided), inventions, processes, plans, financial information, End User data, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information if: (i) it was already known to the receiving party prior to the Effective Date of this Agreement, as established by documentary evidence; (ii) it is in or has entered the public domain through no breach of this Agreement or other wrongful act of the receiving party; (iii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) it has been approved for release by written authorization of the owner of the Confidential Information; or, (v) it has been independently developed by a party without access to or use of the Confidential Information of the other party.

  Each Party acknowledges and agrees that, from time to time, it may receive Confidential Information from the other Party. The Party that receives Confidential Information (the Receiving Party) hereby agrees (i) to hold the other Party’s (the Disclosing Party) Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to divulge any such Confidential Information or any information derived therefrom to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as contemplated hereunder, (iv) not to copy or reverse engineer any such Confidential Information, and (v) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate need to know and shall be bound in writing to comply with confidentiality obligations at least as restrictive as the Receiving Party’s confidentiality obligations in this Agreement.

  10.2 Entire Agreement; Severability

  This Agreement, and any other references, appendices, exhibits or attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the parties concerning such subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing (aside from an Order Form) that Customer may provide to SendBird or use in connection with the procurement of SendBird Services will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of SendBird to object to such terms, provisions or conditions. In the event of any conflict or inconsistency among the following documents, the order of preference shall be: (1) the applicable Order Form, (2) this Agreement, (3) pricing per the SendBird website (sendbird.com/pricing). If any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this Agreement.

  10.3 Waivers

  The waiver by either Party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.

  10.4 Compliance with Export Controls and OFAC Regulations

  The SendBird Platform and SendBird Proprietary Materials are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). Customer agrees that it will not import, export, re-export, transfer or otherwise use the SendBird Platform or SendBird Proprietary Materials in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the SendBird Platform and SendBird Proprietary Materials, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer will not engage in activity that would cause SendBird to be violation of these laws and regulations, and will indemnify SendBird for any fines, penalties or other liabilities incurred by SendBird for Customer’s failure to comply with this provision.

  10.5 Relationship of the Parties

  The Parties shall perform all of their duties under this Agreement as independent contractors, and nothing in this Agreement shall be construed to give either Party the power to direct or control the activities of the other Party, or to constitute the Parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. The Parties understand and agree that neither Party grants the other Party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other Party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other Party, or to transfer, release, or waive any right, title or interest of such other Party.

  10.6 Assignment

  Neither this Agreement nor any rights hereunder may be transferred or assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.  Notwithstanding the foregoing, SendBird may assign or transfer this Agreement or any rights or obligations hereunder without Customer’s consent to a third party acquirer of all, or substantially all, of the assets or business of SendBird, whether by sale, merger, or otherwise. Except as provided in this section, any attempts by either Party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other Party shall be null and void.

  10.7 Force Majeure

  Neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, natural disasters, war, acts of terrorism, strikes, revolutions, lack or failure of transportation facilities, lack or failure of public utilities, laws or governmental regulations or other causes that are beyond the reasonable control of such Party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than ten (10) days, the Parties hereto shall consult with each other to determine whether this Agreement should be modified or terminated.

  10.8 Survival

  Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to confidentiality, Intellectual Property, limitation of liabilities, and indemnification shall survive any termination or expiration of this Agreement and continue in full force and effect in perpetuity.

  10.9 Governing Law; Arbitration

  This Agreement shall be governed by and construed under the laws of the State of California and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods, and the parties consent to exclusive jurisdiction and venue of the State or Federal Courts located in San Francisco County, California.

  10.10 Notices

  Any notice required or permitted to be given hereunder will be deemed to have been delivered and given for all purposes: (i) on the delivery date, if delivered by hand courier to the Party to whom such notice is directed; (ii) two (2) Business Days after deposit with a commercial overnight carrier; (iii) five (5) Business Days when mailed by United States mail; (iv) upon completion of transmission, if sent via facsimile with a confirmation of successful transmission; and (v) the first business day after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim). Suspension-related notices to Customer shall be sent to the account holder designated in the SendBird Dashboard.