Terms of Service and Conditions Agreement

PATCH GENERAL TERMS OF SERVICE AGREEMENT

Last Updated: May 2025

Each time you access or use Patch’s services on any platform described in this Terms of Service Agreement you represent that you have read and understand the https://patchretention.com/privacy-policy and you are agreeing to the (a) terms and conditions of this Terms of Service Agreement, (b) and (b) represent and warrant to Patch that (i) this Agreement is binding and enforceable against You, (ii) to the extent an individual is accepting this Agreement on behalf of an entity, such individual has the right and authority to agree to all of the terms set forth herein on behalf of such entity, and (iii) You have read and understand Patch Retention’s Privacy Policy, the terms of which are incorporated herein by reference (the “Privacy Policy”), and agree to abide by the Privacy Policy.

Patch provides a services on its platforms (“Sites”), described herein, for the purposes of assisting its Clients retain Customers and market to potential Customers. You acknowledge and agree that your license to use Patch’s Site is automatically revoked upon your attempt to use the Site for any other purpose.

Definitions

“Account” means a Client Account or Client’s Customer Account.

“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such Party, whether through the ownership of voting securities, by contract or otherwise.

“Agreement” means this Terms of Service Agreement, consisting of the terms and conditions stated herein as well as all policies, addenda, exhibits, attachments and amendments (if any).

“Authorized Users” means one of Client’s employees, contractors, or other individual that is authorized to use the Client’s account on their behalf.

“Confidential Information” means all information provided or made available by the Disclosing Party to the Receiving Party in connection with this Agreement that is either identified as, or should reasonably be understood by the Receiving Party to be, proprietary or confidential, including, but it not limited to, non-public information regarding features, functionality and performance of the Site, the terms of this Agreement, Client’s Data, business plans, product plans, roadmaps, strategies, forecasts, projects and analyses, the results of any audit related to the Site (including but not limited to security audits), financial information and fee structures, business processes, methods and models, and technical Documentation, but does not include any information that the Receiving Party can demonstrate (i) was generally available to the public at the time of disclosure; (ii) was in its possession or known by it without restriction prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without the use of any Confidential Information of the Disclosing Party.

“Customer Account” means the account or instance within the Site created on behalf of the Client’s Customer.

“Client Account” means an entity or individual that creates an account and enters into this Agreement with Patch.

“Customer Data” means information submitted to or created in the Site by Client, and may include name, phone number, email address, address data, IP address, device identifiers, usage data (such as interactions between a user and Patch’s online system, website or email, used browser, used operating system, referrer URL).

“Data Processing Addendum” means Patch’s data processing addendum available at: https://patchretention.com/dpa which is incorporated by reference into, and forms part of, this Agreement.

“Disclosing Party” means a Party to this Agreement which may make Confidential Information available to the other Party.

“Documentation” means the then-current, generally available documentation detailing the functionalities of the Site made available by Patch.

“Equipment” means any equipment and ancillary services needed in order to connect to, access or otherwise use the Site, including modems, hardware, servers, software, operating systems, networking, web servers and the like.

“Fees” means dollar amounts due and payable to Patch by Client as compensation for use of the Site, including Subscription Charges and any other fees.

“Force Majeure Event” means a condition that is beyond a Party’s reasonable control, including but not limited to natural disasters, civil disturbances, epidemics, pandemics, quarantines, acts of terrorism or war, labor conditions, governmental actions, interruptions or failure of the internet or any utility service, failures in third party hosting services, and denial of service attacks.

“including” means including, without limitation.

“Laws” means all applicable local, state, federal, and international laws, rules, and regulations, or amendments thereto, including, but not limited to, the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act, Canada’s Anti-Spam Legislation (“CASL”), California Consumer Privacy Act (“CCPA”), General Data Protection Regulation (EU) and the United Kingdom General Data Protection (Collectively referred to as (“GDPR”), and Regulation Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA).

“Patch” means Patch Retention, Inc. a Utah Corporation.

“Parties” or “Party” means Client, Customer, and Patch.

“Privacy Notice” means Patch’s policy found at https:// https://patchretention.com/privacy-policy.

“Process” means any operation or set of operations which is performed on Customer’s Data or on sets of Customer’s Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, and destruction.

“Pseudonymize” means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organizational measures to ensure that the personal data is not attributed to an identified or identifiable natural person.

“Receiving Party” means a Party to this Agreement which may receive Confidential Information from the other Party.

“Representatives” means the employees, Affiliates, consultants, contractors, subcontractors, agents, or advisors of a Party.

“Site” means the software-as-a-service application and technical support services owned or operated by Patch, including mobile applications, Software, websites or other properties. “Site” excludes Third-Party Site.

“Subscription Charges” means dollar amounts due and payable to Patch by Client under this Agreement as compensation for Client’s use of the Site.

“Subscription Plan” means the packaged Service plan(s) and the functionality and Site associated therewith.

“Subscription Term” means the time period during which Patch shall agree to provide and Client shall agree to purchase the Site as specified in the Sales Agreement or as agreed to by the Client.

“Taxes” means all taxes, levies, duties or similar assessments of any nature, including but not limited to, value-added, sales, use or withholding taxes, assessable by any jurisdiction.

“Territory” - Means North America including United States, United Kingdom, and European Union.

“Third-Party Site” including but not limited to cellular data services, internet access, and any other services necessary for the proper functioning of the Site.

“Usage Data” data and other information relating to Client’s use and Customer’s use of the Site, including, without limitation, information concerning Customer's Data and data derived therefrom. Terms of Service for Client.

1. Terms of Service for Client

As a Client, you are permitted to use Patch’s Site for Customer communication, retention, and marketing. You further agree that your use of Patch’s Site is governed by this Agreement.

1. Provision of Site

1.1. Access. Subject to the terms and conditions of the Agreement, Patch grants Client a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Site during the Term (as defined below). Client may permit its Authorized Users to use the Site provided that Client shall be responsible for each Authorized User’s compliance with the Agreement.

1.2. Restrictions. Client will not, and will not permit any Authorized User or other party to: (a) modify, adapt, alter, translate, or create derivative works of the Site; (b) sublicense, lease, rent, loan, distribute, or otherwise transfer the Site or Documentation to any third party; (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Site, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Patch); (d) bypass, delete, or disable any copy protection or security mechanisms of the Site; (e) use or demonstrate the Site in any other way that is in competition with Patch; (f) remove any notice of proprietary rights from the Site; (g) attempt to gain unauthorized access to, or disrupt the integrity, performance or security of the Site or the data contained therein; (h) use or copy the Site or Documentation, except as expressly allowed herein or (i) use the Site in violation of the Privacy Policy. Patch shall have the right, but not the obligation, to review and monitor all use of the Site to ensure compliance with the terms and conditions of this Agreement.

1.3. Downtime. Client acknowledges that access to and use of the Site may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Site for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of Patch.

1.4. Non-Patch Products and Services. Client may use the Site to interact with non-Patch products or services including webshop or e-commerce platforms (“Non-Patch Services”). If Client chooses to integrate the Services with any Non-Patch Services, Client will ensure that Client’s use of the integration does not conflict with the Non-Patch Services provider’s (“Provider”) terms and conditions.

Any acquisition by Client of such Non-Patch Services, and any exchange of data between Client and any Provider of Non-Patch Services is solely between Client and the applicable Provider. Patch does not warrant or support any Non-Patch Services, whether or not they are designated by Patch as “certified” or otherwise. Patch is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Patch Services or its Provider.

Further, some Non-Patch Services may require Client or Patch to provide certain Customer Data that Patch is processing on Client’s behalf back to the Provider. In these cases, Patch considers Client’s request to integrate with the Non-Patch Services as instruction to provide this data to the Provider according to the Provider’s terms and conditions. If Client does not want this data to be provided to the Provider, Client will immediately request the suspension of the integration with the respective Provider.

2. 2. Use of The Site

2.1 Client Consent; Intended Use of the Site. The intended is for Clients to use the Site for Customer communication, retention, and marketing. Client grants Patch all required disclosures and all required consents and/or authorizations, based on applicable Laws, prior to utilizing the Site; (b) all necessary rights, releases, and consents to allow Customer’s Data to be collected, used, and disclosed in the manner contemplated by this Agreement and to grant Patch the rights herein; and (c) use the Site to make or send communication only in compliance with all applicable Laws where the Customer resides, the terms of this Agreement (including the Acceptable Use Policy) and industry-specific best practices, including but not limited to Do Not Call rules and prohibitions. Patch reserves the right to suspend or terminate Client’s access to the Site or specific feature(s) of the Site if Patch believes, in its sole discretion, Client has violated this Section

2.2. Setup Responsibilities. Client shall be responsible for setting up and configuring the Site, including without limitation any provisioning of access to the Sites to its Authorized Users.  Client shall be responsible for obtaining and maintaining, at Client’s expense, all of the necessary telecommunications, computer hardware, software, services and Internet connectivity required by Client or any Authorized User to access the Site from the Internet. In the event that Patch assists or advises Client with any Site setup, configuration or support, in no event shall such assistance or advice be construed as legal advice.

2.3. Client Account. Client is solely responsible for protecting and safeguarding Client’s account and passwords and/or keys or other access protocols that have been provided to Client or that are generated in connection with Client’s use of the Site. Client shall use commercially reasonable efforts to prevent unauthorized access to or use of its account and the Site. Client is solely and fully responsible for all activities, including accrued charges, that occur in connection with its account and its use of the Site. In the event Client believes Client’s account or the Site have been compromised, including any unauthorized use or access of the Site or any other known or suspected breach of security, Client shall immediately notify Patch by email to info@patchretention.com, but in no event more than twenty-four (24) hours following discovery of such breach.

2.4. Suspension, Limitation and Termination of Access. Patch shall be entitled, without liability to Client, to immediately suspend, terminate or limit Client’s access to the Site at any time in the event that Patch determines, in its reasonable discretion, that (i) the Sites are being used by Client, or its Authorized Users, in violation of any applicable laws or regulations or this Agreement; (ii) the Sites are being used by Client in an unauthorized, inappropriate, or fraudulent manner; (iii) the use of the Site by Client adversely affects Patch’s equipment or service to others; (iv) Patch is prohibited by an order of a court or other governmental agency from providing the Site; (v) there is a denial of service attack or any other event which Patch determines, in its sole discretion, may create a risk to the Site or to any other customers if the Site were not suspended; (vi) there is a security incident or other disaster that impacts the Site or the security of the Site, Client’s account or Customer Data; or (vii) any amount due under this Agreement is not received by Patch within fifteen (15) days after it was due. Without limiting the generality of this Section, Patch shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer‘s right to use the Services pursuant to this Section 2.3.

2.5. Client’s Responsibilities Regarding Conduct. Client is responsible for their own conduct and for ensuring that they abide by the terms of this Agreement at all times in connection with their use of the Site. Client grants any rights, permissions or consents that are necessary for their lawful use of the Site and the Processing of their Usage Data by Patch.

2.6. Acceptable Use. In addition to complying with the other terms set forth in this Agreement, Client agrees to use Patch’s Site in accordance with all applicable laws, rules, regulations and these Terms at all times. The following is a non-exhaustive list of prohibited uses of the Site. You agree that you will not perform any of the following prohibited uses:

1. Impersonating or attempting to impersonate Patch or its employees, representatives, subsidiaries or divisions;
2. Misrepresenting your identity or affiliation with any person or entity;
3. Sending or attempting to send any advertising or promotional material, including but not limited to spam, junk mail, chain mail or any similar material;
4. Engaging in any conduct that restricts or inhibits any person’s use or enjoyment of the Site, or which, as determined in Patch’s sole discretion, may harm Patch or other Clients our Site or expose Patch to liability;
5. Using the Site in any manner that could disable, overburden, damage or impair the Site or interfere with another party’s use of the Site;
6. Using any robot, spider or other similar automatic technology, process or means to access or use the Site for any purpose, including monitoring or copying any of the material on this Site;
7. Using any manual process or means to monitor or copy any of the material of the Site or for any other unauthorized purpose;
8. Using any device, software, means or routine that interferes with the proper working of the Site, including but not limited to viruses, trojan horses, worms, logic bombs or other such materials;
9. Attempting to gain unauthorized access to, interfering with, damaging or disrupting any parts of the Site, the server(s) on which the Site is stored, or any server, computer or database connected to the Site;
10. Attempting to attack or attacking the Site via a denial-of-service attack or a distributed denial-of-service attack;
11. Otherwise attempting to interfere with the proper working of the Site;
12. Contacting Customers in a way that violates any applicable federal, state or local laws, or rules or regulations.
13. Using the Site in any way that violates any applicable federal, state or local laws, rules or regulations.

2.7. Equipment. Client shall be responsible for obtaining, maintaining and securing any Equipment used to access the Site.

3. Confidentiality

3.1. Protection of Confidential Information. Except at otherwise expressly permitted in the Terms, the Receiving Party agrees (i) to protect the confidentiality of Confidential Information using at least the same degree of care and discretion as it uses with its own Confidential Information, but in no event less than a reasonable degree of care; and (ii) not to disclose (except in performance of the services or digital products or as otherwise permitted by the Terms) to any third person any such Confidential Information without the express prior written consent of each party (as the disclosing party). The Receiving Party may disclose Confidential Information to Representatives on a strict need to know basis and only to those who are obligated to maintain the confidentiality of such Confidential Information under terms that are at least as protective as the terms set forth herein.

3.2. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent legally required in connection with any legal or regulatory proceeding, provided, however, that in such event the Receiving Party will, when permitted by law, provide advance notice to the Disclosing Party.

3.3. Exceptions. The confidentiality obligations set forth in this section will not apply to any information that: (a) is or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) the Receiving Party can prove, by clear and convincing evidence, was already known to the Receiving Party without restriction at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly (to the extent legally permitted) notifies the Disclosing Party in writing of such required disclosure and reasonably cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

3.4. Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

 

4. Data Protection, Usage and Feedback

4.1. Data Policy. Patch shall implement and maintain technical, organizational, and physical measures designed to protect the confidentiality, integrity and availability of Client's Data in Patch’s possession, custody or control. The Parties agree to the terms of Patch’s Data Processing Addendum which is incorporated into this Agreement.

4.2. Data Processing Addendum. Client understands that through its use of Patch’s Site it consents to the collection and use of this information (as set forth in the Privacy Policy). Additionally, to the extent applicable, the parties agree that Patch's Data Processing Addendum (“Data Processing Addendum” or “DPA”) (currently available at https://patchretention.com/dpa,  governs in the event Patch Processes any Covered Data as Client's Processor or Service Provider (as those terms are defined in the DPA) in connection with this Agreement.

4.3. Usage Data. Notwithstanding anything to the contrary, Patch shall have the right, where permitted by law, to collect, aggregate, and analyze pseudonymize Usage Data. Notwithstanding anything to the contrary herein, Client agrees that Patch may use pseudonymized data for any lawful business purpose during or after the Subscription Term including without limitation to develop and improve our Site to create and distribute reports and other materials. Patch will not distribute pseudonymized data in a manner that personally identifies the Client of Client’s Customers, or that would otherwise violate applicable laws.

4.4. Data Protection Policy. Patch maintains a Data Protection Policy designed, in its discretion, to secure Patch systems from unauthorized access, use, or disclosure.

4.5. Archiving Service. Patch does not provide an archiving service. Patch may delete Client’s data one (“1”) business day after the termination of Client’s Account. Additionally, Client understands and agrees that following termination, Patch may delete all of their Data in Patch’ possession.

4.6 Customer Opt In. It is the Client’s responsibility to collect the Customer opt in to use the Customer’s data for marketing and retention purposes. It is the Client's responsibility to ensure that TCPA, and other email and texting laws are upheld and that opt-ins are receive. It is explicitly NOT PATCH's responsibility. 

5. Fees/Purchases

5.1. Calculation of Subscription Charges. Patch will provide you with a quote after we determine your needs. This price does not include taxes or other fees that you may be charged. Client may execute a Sales Agreement by working directly with a Patch Party. Client shall pay Patch for the Site in accordance with the terms of the Sales Agreement. Subscription Charges are billed in advance and are nonrefundable unless otherwise stated herein. Unless otherwise agreed upon in writing, the Subscription Charges for a renewal of the Subscription Term or for any additional subscriptions purchased by Client shall be calculated according to the Sales Agreement. The Subscription shall automatically renew unless the client notifies Patch according to the Sales Agreement to cancel.

5.2. Payment and Billing. Unless otherwise expressly set forth in this Agreement or a Sales Agreement, all Subscription Charges are due in full upon commencement of the Subscription Term. Unless a substitute payment mechanism has been agreed to by Patch. If Client fails to pay its Fees within five (14) days of Patch’s notice to Client that payment is delinquent, or if Client does not update payment information upon Patch’s request, in addition to Patch’s other remedies, Patch may suspend access to and use of the Site by Client. Client agrees to promptly update its Client Account information, including payment information, with any changes that may occur (for example, a change in billing address or credit card expiration date).

5.3. Taxes. Unless otherwise stated in another agreement, Patch’s charges do not include any Taxes. Client is responsible for paying Taxes assessed in connection with Client’s subscription to the Site. Patch will invoice Client for such Taxes if Patch believes that Patch has a legal obligation to do so, and Client agrees to pay such Taxes if so invoiced. Patch agrees to exempt Client from any Taxes for which Client provides to Patch a tax exemption certificate; provided, however, that no such exemption shall be extended to Client following written notice to Patch from a taxing authority of appropriate jurisdiction that Client does not qualify for the claimed exemption.

5.4. Billing Disputes. If Client believes that Patch has billed Client incorrectly, Client must contact Patch no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Patch’s Client support department at info@patchretention.com.

5.5. Upgrades. If Client chooses to upgrade its Subscription Plan during a Subscription Term, any incremental Subscription Charges associated with such upgrade will be charged in accordance with the Subscription Charges that exist between Client and Patch during the applicable Subscription Term. The Subscription Term for the plan upgrade shall be coterminous with the then-current Subscription Term. In any subsequent Subscription Term, Client’s Subscription Charges will reflect any such upgrades. Any discount provided to Client is applicable only to the initial Subscription Term detailed in the Sales Agreement and will not be applied to any subsequent Subscription Terms.

5.6. Downgrades. Patch will not provide Client refund for any downgrades to its Subscription Plan. If Client desires to downgrade its Subscription Plan for a subsequent Subscription Term, Client must provide Patch with thirty (30) days written notice prior to the end of Client’s then-current Subscription Term. No credits or refunds will be issued for usage that is less than the purchased number of subscriptions.

5.7. Refunds. Patch does not offer refunds on any purchases for Site.

5.8. Third Party Payment Processor. Client will choose the third party payment processor when Client pays the Fee for Site. Client may make purchases using the Stripe a third-party payment processor. The following payment method(s) are accepted by the third party payment processors: American Express, bank transfer, check, Discover, MasterCard, and Visa. Patch is not liable for the collection, use, sharing or security of your billing information by these third party payment processors. Client authorizes Patch to automatically charge Client’s selected payment method for Subscription Charges on or after the starting date of each subsequent Subscription Term unless Client’s subscription to the Site terminates as set forth in Section 6.2 below.

5.9. Expenses. If pre-approved by Client in a Service Order, Client shall reimburse Patch for reasonable out-of-pocket expenses (including travel and living) incurred in performing its obligations for specific Site under such Service Order. All costs and expenses incurred by Client in connection with this Agreement are the sole responsibility of Customer.

6. Term and Termination

6.1. Term. Subject to termination provisions below, Patch shall provide the Site to Client as long as they keep using the Site. Client may request termination of their Account by submitting such request for termination by notifying Patch at info@Patchretention.com. 

6.2. Data Export. Patch will not make any Data available to Client after the termination of their Account.

6.3. Suspension and Other Remedial Action. In addition to any other remedies that may be available, Patch reserves the right to take that remedial action it deems necessary without liability to Patch, including the immediate suspension or termination of a Client’s Accounts, upon notice to them should Client in Patch’s sole discretion, to prevent disruption to the Site or harm to others. Patch will use commercially reasonable efforts to provide Client with advance notice of terminations and suspensions when practicable, but if Patch determines that the actions of a Client endangers the operation of the Site or pose a threat of imminent harm to others, Patch may suspend access to the Site without notice. Patch reserves the right to notify Client and/or the administrator associated with the Client Account with respect to a Client’s violation of the terms of this Agreement.

7. Intellectual Property Rights

7.1. Patch’s Rights. All rights in the Sites are the property of Patch or third parties. All rights reserved. Unless specified otherwise, Patch owns and retains all intellectual property rights in and to (i) the Site (excluding only the Client and Customer Data) and all trademarks, logos and service marks utilized by Patch in connection with the delivery of the Site; (ii) all improvements, enhancements or modifications of the Site; and (iii) any Software, applications, inventions or other technology developed in connection with supporting the Site.

7.2. Feedback. In the event that Client or its Authorized Users provide any comments or suggestions in connection with the Site, whether written or oral (collectively, the “Feedback”), Patch, in its sole discretion, shall be entitled to use the Feedback without restriction, and such Feedback will not be treated as confidential to Client. Client hereby grants Patch, on behalf of itself and its Authorized Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Patch products and services.

7.3. Aggregated Data. Patch may collect and derive from Client Data aggregated data that does not identify Client, any third-party entity or any natural persons, and use and disclose such aggregated data for Patch’s legitimate business purposes, which may include but is not limited to Site improvement, service and product development, research and marketing.

7.4. Infringement. If you are aware of a potential infringement of our intellectual property, please contact Patch at info@Patchretention.com.  If you believe in good faith that any aspect of our Site infringes on your intellectual property rights, you or your agent may send us a written notice of such infringement titled “Infringement of Intellectual Property Rights.”

8. Representations, Warranties, and Disclaimers

8.1. Mutual Representations and Warranties. Each Party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

8.2. Patch Representations and Warranties. Patch represents and warrants that the Site will perform materially in accordance with the Agreement. Patch will use commercially reasonable efforts to correct any reported non-conformity. With that said, the Site may become unavailable in whole or in part at any time without notice. The Site may rely on third parties to provide services to Patch, such as data hosting or processing vendors, and the Site could unexpectedly malfunction or become unavailable as a result.

8.3. Client’s Representations and Warranties. Client represents and warrants that it is entitled to transfer the Client's and Customer’s Data to Patch so that Patch and its authorized third party service providers may lawfully use, Process, and transfer the Client’s and Customer’s Data in accordance with this Agreement on Client’s behalf. Client agrees to comply with all applicable laws in its use of the Site.

8.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SITE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SITE WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, VIRUS-FREE OR FREE FROM HARMFUL COMPONENTS; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE. PATCH DOES NOT WARRANT THAT IT WILL REVIEW THE CLIENT OR CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CLIENT OR CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. PATCH SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD PARTY PLATFORMS, THIRD PARTY MESSAGING APPLICATIONS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF PATCH.

9. Limitation of Liability

9.1. Exclusion of Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) SHALL EITHER PARTY TO THIS AGREEMENT, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA , BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

9.2. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, PATCH’S AGGREGATE LIABILITY TO CLIENT, ITS AFFILIATES, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY CLIENT DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CLIENT ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF PATCH WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. PATCH HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CLIENT WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT. THE FOREGOING LIMITATIONS IN THIS SECTION 11.2 SHALL NOT APPLY TO CLAIMS OR DAMAGES ARISING FROM (1) THE INDEMNIFICATION OBLIGATIONS HEREIN, OR (2) CLIENT’S NON-PAYMENT OF UNDISPUTED FEES DUE AND PAYABLE.

9.3. Limitation of Liability in the Aggregate. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN APPLIES IN AGGREGATE TO ANY AND ALL CLAIMS BY CLIENTS AND ITS AFFILIATES, AND SHALL NOT BE CUMULATIVE.

9.4. Jurisdiction-specific Exclusions. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for a Party’s own fraud, willful injury to the person or property of another, or violation of law which means that some of the above limitations may not apply to Client. IN THESE JURISDICTIONS, PATCH’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

9.5. The provisions of this Section 10 allocate the risk between the Parties under this Agreement and the Parties have relied on these limitations in determining whether to enter into this Agreement.

10. Indemnification.

10.1. By Patch. Patch will defend at its expense any suit brought against Client, and will pay any settlement Patch makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Site infringe or misappropriate any Intellectual Property Rights in the U.S., Canada, European Union member countries, the United Kingdom, Australia, or New Zealand. If any portion of the Site becomes, or in Patch’s opinion is likely to become, the subject of a claim of infringement, Patch may, at Patch’s option: (a) procure for Client the right to continue using the Site; (b) replace or modify the Site to be non-infringing without materially impairing the functionality of the Site; or (c) terminate this Agreement and refund to Client the pro-rated portion of any prepaid fees attributable to any unused Site, and upon such termination, Client will immediately cease all use of the Site. Notwithstanding the foregoing, Patch shall have no obligation under this Section or otherwise with respect to any infringement claim based upon (v) the Client or Customer Data (w) any use of the Site not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Site in combination with other products, equipment, software or data not supplied by Patch; (y) any modification of the Site by any person other than Patch; (z) modification of the Site based upon specifications furnished by Client (any of the foregoing circumstances under clauses (v) through (z) will be collectively referred to as a “Customer Indemnity Responsibility”). This Section 11.1 states the sole and exclusive remedy of Client and the entire liability of Patch, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for third party claims and actions described in this Section 11.1.

10.2. By Client. Client will indemnify, defend and hold Patch, its officers, directors, affiliates, subsidiaries, licensors, agents and employees (each a “Patch Party”) harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs arising out of or relating to: (a) a Client Indemnity Responsibility; (b) Cliient’s breach or alleged breach of any representation, warranty or obligation under the Agreement, or any violation of law; or (c) the use, transmission, access, disclosure, or other processing of Client or Customer Data.

10.3. Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

10.4 Opt-Ins and Data Responsibility 

To the extent permitted by law, and subject to any and all applicable laws pertaining to sovereign immunity and maximum liability, you agree to defend, indemnify, and hold Patch Retention and its affiliates and their respective directors, officers, employees, agents, and representatives harmless from and against any third-party suit, proceeding, assertion against any damages, judgments, liability, costs, and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your breach of this Agreement, your unauthorized use or misuse of the Patch Retention Programs or any unauthorized combination of the Patch Retention with any hardware, software, products, data or other materials not specified or provided by Patch Retention. Specifically Patch will in no way be held liable for judgments, costs, fines, or expenses related to SMS, MMS, texting, email or SPAM laws in the United States nor any other region in which the company does business. 

Client is solely responsible for the accuracy, quality, integrity, reliability, and appropriateness of the Customer Data and the means by which customer acquired such customer data and received opt-ins. 

Client must ensure that all recipients have provided legally sufficient consent to receive communications from you. 

Client agrees to indemnify and hold harmless Patch Retention from any claim arising from GDPR, TCPA, CCPA or other laws, rules, and regulations, any violation of law or third-party rights. 

10.5 - Limitation of Liability

The Client acknowledges and agrees that in no event shall Patch Retention or any of Patch Retention’s officers, directors, employees, shareholders, agents, or representatives be liable to the Merchant or any other party for any special, indirect, incidental, exemplary, punitive, or consequential damages or loss of goodwill in any way, whether such liability is based on contract, tort, negligence, strict liability, products liability or otherwise arising from or relating to this agreement or resulting from the use or inability to use the services or the performance or non-performance of any equipment, including the failure of essential purpose, even if Patch Retention has been notified of the possibility or likelihood of such damages occurring. The Customer agrees that Patch Retention’s liability hereunder for damages, regardless of the form of action, will not exceed the total amount actually paid by the Customer hereunder for the services and equipment giving rise to the damages.

Notwithstanding the above, the liability of the Customer may be increased to include Patch Retention’s costs of collection of fees or any other amounts due hereunder, including without limitation reasonable attorneys’ fees and court costs. The parties agree that the amounts stated herein are fair under the circumstances.

Patch Retention has no liability of any kind to You or any other person relating to any Third Party Content, including, without limitation, mistake, misstatement of law, omission, falsehood, defamation, obscenity, pornography, profanity, opinion, representation, and any other content contained in the Third Party Content or for any loss or damage of any kind incurred as a result of the use of any Third Party Content. Statements of opinion and commentary in Third Party Content are those of the third party and, unless Patch Retention expressly states in writing to the contrary, Patch Retention neither endorses nor adopts as its belief any such statements. Patch Retention may provide information in articles Patch Retention posts or links to through the Website only for educational and general informational purposes and not as professional advice. Patch Retention has made no attempt to verify any information contained in any such articles.

Client represents that it has obtained all legally required consents to send text messages through Patch. Client agrees to indemnify, defend, and hold Patch Retention harmless from any claims, damages, or expenses arising out of using Patch Retention in violation of any applicable law, including but not limited to the TCPA. 

11. 11. Miscellaneous

11.1. Marketing. Client agrees that Patch may refer to Client by name, logo and trademark in Patch’s marketing materials and website. Client acknowledges and agrees that Patch does not certify or endorse, and has no obligation to certify or endorse, any of Client’s products, services, or content.

11.2. Governing Law; Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of Utah without regard to its conflict of laws provisions, and Client’s consent to the personal jurisdiction and venue of the state or federal courts located in Utah County, Utah. The application of the United Nations Convention on Contracts for the International Sale of Goods, The Uniform Commercial Code, or Incoterms are expressly excluded. Client may not bring any suit or action against Patch for any reason whatsoever more than one (1) year after the cause of action accrued.

11.3. Arbitration. Any dispute arising out of or in any way relating to this Agreement shall be resolved according to Utah law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and pursuant to the then existing arbitration rules at JAMS. If the Parties cannot agree upon selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be Utah County, Utah unless otherwise agreed upon by the Parties. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The Parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth herein is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the portions of this section mandating arbitration shall be deemed null and void in their entirety and the Parties shall be deemed to have not agreed to arbitrate disputes. Client may opt out and not be bound by the arbitration and class action waiver provisions by sending written notice to Patch within thirty (30) days of the Effective Date of this Agreement. Written notice should be sent to the address shown below. If Client opts out of arbitration, Patch will also not be bound to arbitrate. Notwithstanding the foregoing, either Party shall be entitled to seek injunctive relief as set forth in the Confidentiality section above to stop unauthorized use of any Confidential Information or the Site or infringement of a Party’s intellectual property rights. Disputes, claims, or controversies concerning either Party’s intellectual property rights or claims of piracy or unauthorized use of the Site shall not be subject to arbitration. The Parties further agree that the prevailing Party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.

11.4. Legal Notices. Patch may provide general notices related to the Site that are applicable to Client via email or notification within the Site and such notices shall be deemed to satisfy any legal requirement that notice be made in writing. Legal notices to Patch shall be sent to:

Patch Retention, Inc.
Attn: Legal Department

P.O. Box 376

Kaysville, UT 84036

If Email: info@patchretention.com 

11.5. Severability; No Waiver. In the event that any provision of this Agreement is found to be invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and remain enforceable between the Parties. No waiver of any provision of this Agreement shall be deemed a further or continuing waiver of such provision or any other provision, and a Party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

11.6. Assignment. Neither this Agreement nor any of the rights or licenses granted hereunder may be transferred or assigned by either Party without the other Party’s express prior written consent. Patch may freely assign or delegate its rights and obligations hereunder without notice to you. Patch and you are not in a legal partnership, agency relationship, or employment relationship. When Patch provides the Site or any related services to you, it is solely as an information service provider.

11.7. Force Majeure. Neither Party shall be liable for delayed or inadequate performance of its obligations hereunder to the extent caused by a Force Majeure Event. The Party experiencing such Force Majeure Event shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof); provided, however, that the Party experiencing such Force Majeure Event shall promptly notify the other Party of such event and shall make reasonable efforts to mitigate the effects of the Force Majeure Event.

11.8. Relationship of the Parties. The Parties are and shall be independent contractors with respect to Site provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties, and Client does not have any authority of any kind to bind Patch in any respect whatsoever. There are no third party beneficiaries to this Agreement. Without limiting this section, Client is not a third party beneficiaries to the rights under this Agreement.

11.9. Use by Affiliates and Extension of Rights. Client may extend its rights, benefits and protections provided herein to its Affiliates provided that Client remains responsible for and liable for such Affiliate’s use of the Site and compliance with this Agreement.

11.10. Entire Agreement. This Agreement, including all attachments, policies, exhibits, addendums, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter.

11.11. Updating this Agreement. Patch reserves the right to update or modify this Agreement from time to time as its business evolves by posting an updated version of this Agreement on its website. If, in Patch’s sole discretion, it believes that the modifications being made are material, Patch will notify Client prior to the change taking effect. By continuing to utilize the Site after the effective date of any update to this Agreement, Client will be deemed to have accepted such update.

Privacy Policy: https://patchretention.com/privacy-policy

Data Protection Policy: https://patchretention.com/data-protection-policy

Copyright Agent
c/o Patch Retention, Inc.
PO Box 376
Kaysville, Utah 84037

By phone – (888) 605-4429

By email – info@patchretention.com