Reach Penguin Software Terms of Service

1. Agreement

These Reach Penguin Software Terms of Service ("Terms") are a binding agreement between AVAIRY Forensic Solutions, LLC ("AVAIRY," "we," "us," or "our"), which operates Reach Penguin, and the organization or person that subscribes to or uses Reach Penguin ("Customer," "you," or "your"). By signing an order form, clicking to accept, or accessing or using Reach Penguin, you agree to these Terms. If you are agreeing on behalf of an organization, you represent that you are authorized to bind it. These Terms, together with any order form, our Privacy Policy, and any Data Processing Agreement, form the entire agreement for Reach Penguin.

2. Definitions

• "Reach Penguin" / "Service" — AVAIRY's community-outreach and mass-communication software for sending and managing email, SMS/MMS, web, and social messages, and related features.
• "Customer Data" — data submitted to, or generated through, the Service by or for Customer, including contact lists, recipient information, message content, and engagement/analytics data.
• "Recipient" — a person to whom Customer sends messages through the Service.
• "Authorized Users" — Customer's personnel authorized to access the Service.
• "Order" — an order form, quote, or online signup describing the plan, fees, and term.

3. The service & license

Subject to these Terms and payment of applicable fees, AVAIRY grants Customer a non-exclusive, non-transferable, revocable right to access and use Reach Penguin during the subscription term for Customer's own outreach and communications. AVAIRY may update or modify the Service from time to time. Features identified as beta, pilot, or evaluation are provided "as is."

4. Orders, fees & payment

• Fees. Customer pays the fees stated in the applicable Order. Unless stated otherwise, fees are billed in advance and are non-refundable except as expressly provided.
• Usage charges. Message volume (emails, texts, MMS) and related usage may incur additional charges as described in the Order.
• Renewal. Subscriptions renew for successive terms unless either party gives notice of non-renewal before the end of the then-current term.
• Taxes. Fees are exclusive of taxes, which are Customer's responsibility (except taxes on AVAIRY's net income).
• Late payment. Overdue amounts may accrue interest, and AVAIRY may suspend the Service for non-payment after notice.

5. Customer responsibilities

Customer is responsible for its Authorized Users, its contact lists, its message content, and its use of the Service in compliance with law and these Terms. Customer will keep credentials secure, promptly report suspected unauthorized access, and provide accurate account and sender information.

6. Consent & acceptable use

Customer represents and warrants that, for every message it sends through the Service, it has the necessary consent and legal basis to contact each Recipient on the applicable channel. Customer will:

• Obtain and maintain records of Recipients' prior consent/opt-in as required by law and carrier rules;
• Honor opt-out requests promptly (including reply STOP for texts and unsubscribe for email), and not message Recipients who have opted out;
• Include required sender identification and, for email, a valid physical postal address and unsubscribe mechanism (CAN-SPAM);
• Not send unsolicited, deceptive, harassing, unlawful, or prohibited content (including content prohibited by carriers, such as certain regulated categories), or messages to purchased/harvested lists without consent;
• Not use the Service to breach security, transmit malware, or infringe third-party rights.

AVAIRY may suspend or remove messaging that violates these Terms, law, or carrier requirements, or that risks harm to the Service or its providers.

7. Messaging, A2P (10DLC) & email

Depending on the plan, message delivery may occur through GoHighLevel, Twilio, and/or Amazon Web Services (AWS), and is subject to carrier, CTIA, and provider requirements. For text messaging, Customer is responsible for any required A2P 10DLC brand and campaign registration attributable to Customer, message-content compliance, and consent/opt-out handling. For email, Customer is responsible for CAN-SPAM compliance and sender authentication as applicable. AVAIRY does not sell or share Recipients' mobile opt-in data with third parties for their own marketing.

8. Not an emergency alert system

Reach Penguin is a general communications tool and is not a guaranteed emergency notification, public-warning, or life-safety alerting system. Unless expressly contracted for that purpose with agreed service levels, Customer must not rely on the Service to deliver emergency or time-critical public alerts, and must maintain separate, appropriate emergency-alerting and 911 systems.

9. Customer data & privacy

• Ownership. As between the parties, Customer owns Customer Data, including its contact lists. Customer grants AVAIRY the rights to process Customer Data to provide and support the Service.
• Roles. For Customer Data, Customer is the controller and AVAIRY is a processor / service provider acting on Customer's documented instructions. Where required, the parties will enter a Data Processing Agreement, which governs in case of conflict on data-protection matters.
• Return/deletion. On termination, AVAIRY will make Customer Data available for export for a limited period and then delete or de-identify it in the ordinary course, except as required by law.

10. Subprocessors

AVAIRY uses subprocessors to provide the Service, which may include GoHighLevel, Twilio, Amazon Web Services, Cloudflare, and payment processors, as described in our Privacy Policy. AVAIRY remains responsible for subprocessors' performance of the applicable obligations.

11. Deliverability & availability

AVAIRY will use commercially reasonable efforts to make the Service available and to transmit Customer's messages. AVAIRY does not guarantee that any message will be delivered, accepted by carriers or mailbox providers, or placed in an inbox, as delivery depends on factors outside AVAIRY's control (including carrier filtering, spam rules, Recipient settings, and third-party outages). Unless an Order states a specific service-level commitment, the Service is provided without a guaranteed uptime or delivery rate.

12. Intellectual property; feedback

AVAIRY and its licensors own all rights in the Service, including software and documentation. No rights are granted except as expressly stated. If Customer provides feedback or suggestions, AVAIRY may use them without restriction or obligation.

13. Confidentiality

Each party will protect the other's non-public information disclosed in connection with the Service using at least reasonable care, and will use it only to perform under these Terms, except for information that is public, independently developed, or required to be disclosed by law.

14. Warranties & disclaimers

Except as expressly stated in an Order, the service is provided "as is" and "as available," and AVAIRY disclaims all warranties, express or implied, including merchantability, fitness for a particular purpose, non-infringement, and any warranty regarding message deliverability, engagement, accuracy, or uptime.

15. Limitation of liability

To the fullest extent permitted by law, neither party will be liable for indirect, incidental, special, consequential, exemplary, or punitive damages, or for lost profits, revenue, or data. AVAIRY's total aggregate liability arising out of or relating to the service will not exceed the fees paid by Customer for the service in the twelve (12) months preceding the event giving rise to the claim.

16. Indemnification

Customer will defend and indemnify AVAIRY against third-party claims arising from Customer Data, Customer's contact lists, Customer's message content, Customer's failure to obtain required consent, or Customer's use of the Service in violation of these Terms or law (including TCPA, CAN-SPAM, and carrier rules). AVAIRY will defend Customer against third-party claims that the Service, as provided by AVAIRY, infringes intellectual-property rights, subject to customary exclusions and remedies.

17. Term & termination

These Terms apply for the subscription term stated in the Order and any renewals. Either party may terminate for a material breach not cured within thirty (30) days of notice. AVAIRY may suspend the Service for non-payment, security risk, or unlawful or abusive messaging. On termination, Customer's right to use the Service ends and the data provisions above apply. Fees owed through the effective date of termination remain payable.

18. Governing law & disputes

These Terms are governed by the laws of the State of Ohio, without regard to conflict-of-laws rules. The state and federal courts located in Ohio have exclusive jurisdiction, and the parties consent to venue there.

19. General

Neither party may assign these Terms without the other's consent, except to a successor in a merger or asset sale. Neither party is liable for delays caused by events beyond its reasonable control. If any provision is unenforceable, the rest remains in effect. These Terms, the Order, the Privacy Policy, and any DPA are the entire agreement for Reach Penguin and supersede prior discussions.

20. Contact

AVAIRY Forensic Solutions, LLC · 121 North Leavitt Road #116, Amherst, OH 44001 · [email protected] · +1.440.597.4600