Terms of Service
This Agreement (“Agreement”) is entered into between Pomelo Group, LLC dBA Sendofy (“Sendofy”) and the company or legal entity utilizing the Sendofy services, referred to herein as “Customer”. By accessing or using the Sendofy services, Customer agrees to be bound by the terms and conditions of this Agreement. If Customer does not agree to this Agreement, they should not access or use the Sendofy services.
Sendofy is willing to grant access to its services, as defined below, to Customer on the condition that Customer accepts all the terms of this Agreement. By entering into this Agreement on behalf of the Customer, the person representing the Customer represents that they have the legal authority to bind the Customer to this Agreement. Customer and Sendofy may each also be referred to as a “Party”, and together, they are the “Parties”.
Please carefully read this Agreement before using the Sendofy services. This Agreement constitutes a legal and enforceable contract between Customer and Sendofy. By indicating consent electronically or accessing or using the Sendofy services, Customer agrees to the terms and conditions of this Agreement. If Customer does not agree to this Agreement, they should not indicate consent electronically and make no further use of the Sendofy services.
1. Sendofy Service
1.1 Access to the Service. During the Term and subject to Customer's compliance with the terms of this Agreement, Sendofy shall provide Customer with non-exclusive access to the Service and grants Customer the right to access and use the Service solely for its own business purposes.
1.2 Users. Access to the Service is made available to Users on a per-seat model, with each User having unique log-in credentials. Customer will ensure that Users maintain the confidentiality of their log-in credentials and will be responsible for Users' compliance with this Agreement.
1.3 Professional Services. Sendofy and Customer may additionally agree upon the provision by Sendofy of professional services relating to the implementation or other support of Customer's use of the Service, as set forth in a Statement of Work referencing this Agreement (“Professional Services”).
2. Billings and Payments
2.1 Subscription Fee and Deliverables. Customer shall pay a subscription fee for the Service, based on a per-deliverable basis. Deliverables may include quizzes, landing pages, videos, games, or other digital media or content.
2.2 Scope of Work Agreements. Additional payments may be tied to a scope of work agreement for specific deliverables outside those covered by the subscription.
2.3 eGift Retainer. At certain price tiers related to the subscriptions, the Customer shall provide an egift retainer that will be used to fulfill incentives. The egift retainer funds will be held in a virtual lockbox and drawn only when an online user (end user) completes an engagement assigned a microincentive.
2.4 Late Payment Fee. Late payments will incur a 5% per month service fee.
2.5 Billing Disputes. Customer agrees to notify Sendofy within 30 days of receipt of an invoice if it intends to dispute the amounts owed. After 30 days, all undisputed invoices will be deemed accepted.
2.6 Tax Obligations. Customer is solely responsible for payment of any taxes resulting from the use of the Service. If any taxes are required to be withheld, Customer shall pay an amount to Sendofy such that the net amount payable to Sendofy after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.
3. Intellectual Property Rights & Restrictions
3.1 Sendofy Intellectual Property. Sendofy shall retain all intellectual property rights in the Service, including any and all derivatives, changes, and improvements thereof.
3.2 Customer Contributions. Customer grants Sendofy a non-exclusive, perpetual, irrevocable, royalty-free license to any ideas, suggestions, feedback, or service improvements given by Customer pertaining to the Service.
3.3 Restrictions. Customer shall not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service. Customer shall not take any action to contest Sendofy‘s intellectual property rights or infringe them in any way. Customer shall not use the name, trademarks, trade-names, and logos of Sendofy except as specifically permitted hereunder.
4. Ownership of Inventory and eGift Retainer
4.1 Customer Content and Inventory Ownership. Any digital content or data provided by the Customer for the execution of the Services shall remain the Customer’s property, including any merchandise stored with Sendofy or a Sendofy approved warehouse and fulfillment provider.
4.2 Retained Ownership of Customer Merchandise. The ownership of merchandise held by Sendofy on behalf of the Customer shall remain with the Customer even if the merchandise or egift retainer are held by a third-party vendor. The Customer shall have the following options for disposition of merchandise or egift retainer in the event of subscription cancellation:
- Return of Merchandise: The Customer may choose to have the merchandise returned to them at their expense, following the terms outlined in this agreement.
- Donation to Charity: The Customer may opt to donate the merchandise to a charity of Sendofy’s choosing.
- Recycling or Disposal: In cases where merchandise cannot be donated, responsible recycling or disposal of the inventory will be undertaken.
4.3 eGift Retainer Return. Any egift retainer held by Sendofy on behalf of the Customer will be returned within 30 days of the subscription cancellation, subject to the terms outlined above.
4.4 Protection of Receiving Merchandise. To protect Sendofy and third-party logistics companies, all shipments to Sendofy or designated warehouses must include a packing slip with detailed descriptions and quantities of items in the box. Sendofy recommends that merchandise be easily stored without air conditioning, as such conditions cannot be guaranteed in all cases.
5.1 Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” shall mean any non-public information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, and is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure.
5.2 Mutual Nondisclosure. Both parties agree not to disclose, use, or exploit any Confidential Information of the other party for any purpose other than the performance of this Agreement. Each party shall take reasonable measures to prevent unauthorized disclosure or use of the other party’s Confidential Information.
- Confidential Information that was publicly known at the time of disclosure or has become publicly known through no fault of the Receiving Party.
- Confidential Information known to the Receiving Party without restriction at the time of disclosure.
- Confidential Information disclosed with the prior written approval of the Disclosing Party.
- Confidential Information independently developed by the Receiving Party without use of the Confidential Information.
- Confidential Information obtained from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party.
- Confidential Information disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
5.4 Judicial or Criminal Proceedings. Either party may disclose the Confidential Information of the other party as required by law or in response to a valid order or subpoena of a court or government agency, provided that the disclosing party promptly notifies the other party of such disclosure and cooperates with any efforts to protect the confidentiality of the disclosed information.
6.1 Term. This Agreement shall commence on the Effective Date and shall remain in effect for as long as there is a valid Order Form in effect or until terminated as provided herein (the “Term”). Each Order Form will automatically renew at then-current pricing for successive 12-month terms unless written notice of non-renewal is given by either party at least 60 days prior to the end of the then-current Subscription Term.
6.2 Termination for Breach. Either party may terminate this Agreement for the other party’s material breach, if the breaching party does not cure such breach within 30 days after receipt of written notice specifying in detail the nature of the breach, effective upon the expiration of such 30-day period.
6.3 Effect of Termination. Upon termination or expiration of this Agreement, Customer will immediately cease use of the Service. This Agreement shall terminate and be of no further force or effect, except for provisions that expressly survive termination or expiration as specified in Sections 5 (Nondisclosure), 7 (Indemnification), 8 (Limitation of Liability), and 9 (Miscellaneous).
7.1 Customer’s Indemnities. Customer shall defend, indemnify, and hold harmless Sendofy and its officers, directors, consultants, employees, successors, and permitted assigns from and against any third-party claim, suit, or proceeding and all resulting damages, costs, losses, awards, and reasonable attorneys’ fees arising out of or relating to (a) the use or display of any Customer Content; (b) Customer’s breach of its warranties under this Agreement; (c) Customer’s use of the Service in any manner that violates this Agreement or applicable laws, rules, or regulations; or (d) any harm suffered or alleged to be suffered by any third party caused by or in connection with items sent by Customer via the Service.
7.2 Sendofy’s Indemnities. Sendofy shall defend, indemnify, and hold harmless Customer and its officers, directors, consultants, employees, successors, and permitted assigns from and against any claim arising out of or relating to an allegation that the Service infringes any intellectual property right of a third party.
8. Limitation of Liability
8.1 Exclusion of Damages. In no event will Sendofy be liable for any indirect, incidental, consequential, special, punitive, or exemplary damages, including lost profits, loss of use, loss of data, cost of procurement of substitute goods or services, however caused, and on any theory of liability, whether for breach of contract, tort (including negligence and strict liability), or otherwise, whether or not Sendofy has been advised of the possibility of such damages.
8.2 Maximum Aggregate Liability. Sendofy’s maximum aggregate liability under, arising out of, or relating to this Agreement or the Service shall not exceed the total amount of fees paid by Customer to Sendofy during the twelve (12) months preceding the date the liability first arises.
9.1 Amendments. These terms may be amended by Sendofy from time to time in its sole discretion. In the event of such an amendment, Sendofy will notify Customer of such update via email and provide Customer 30 days to object to such amendment. If Customer does not object within such period, the amended terms will be effective with respect to Customer upon the end thereof. If Customer does object, the terms in effect immediately prior to such amendment will remain in effect until the end of the then-current Subscription Term, and the amended terms will go into effect upon the beginning of the next Subscription Term if the agreement is renewed pursuant to the terms of the Order Form.
9.2 Governing Law. This Agreement is governed by the laws of the State of Texas, without regards to its conflict of laws principles, and any dispute arising from this Agreement shall be brought exclusively before the state and federal courts in Dallas County, Texas, and each party irrevocably submits to the jurisdiction of such courts.
9.3 Class Action Waiver. Both parties agree that all claims brought against the other must be brought in such party’s individual capacity and not as a plaintiff or class member in any purported class action, collective action, private attorney general action, or other representative proceeding, except to the extent such restriction is prohibited by applicable law.
9.4 Assignment. Neither party may transfer or assign its rights or obligations under this Agreement to any third party without the prior written approval of the other party, except for an assignment to an affiliated company or to a successor in connection with a merger, acquisition, reorganization, or sale of substantially all of its assets or voting securities. Any purported assignment contrary to this section shall be void.
9.5 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when sent by email.
9.6 Relationship of Parties. The parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other party. Neither party shall hold itself out as an agent of the other party. This Agreement will not be construed to create or imply any partnership, agency, joint venture, or formal business entity of any kind.
9.7 Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties, and the remaining provisions of the Agreement will remain in full force and effect.
9.8 Force Majeure. Except for payment obligations under this Agreement, neither party shall be liable for any loss, damage, or penalty resulting from such party’s failure to perform its obligations hereunder when such failure is due to events beyond its reasonable control, such as, without limitation, flood, earthquake, fire, acts of God, military insurrection, civil riot, or labor strikes.
9.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com), or other transmission method, and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
9.10 Publicity. Either party may issue publicity or general marketing communications concerning its involvement with the other party, subject to such other party’s prior written/verbal approval, which shall not be unreasonably withheld or denied. Customer hereby approves the display by Sendofy of Customer’s name and logo on its website and in marketing materials, subject to Customer’s right to revoke such approval upon written notice to Sendofy.