Snoball Terms of Service
THE FOLLOWING DESCRIBES THE TERMS AND CONDITIONS (THE “TERMS”) ON WHICH SNOBALL, INC. (“SNOBALL”) OFFERS YOU ACCESS TO ITS SERVICES. THE SERVICES ARE OFFERED SUBJECT TO YOUR ACCEPTANCE, WITHOUT MODIFICATION, OF ALL TERMS AND CONDITIONS SET FORTH HEREIN. THESE TERMS DO NOT ALTER IN ANY WAY THE TERMS OR CONDITIONS OF ANY OTHER AGREEMENT YOU MAY HAVE WITH SNOBALL, OR ITS SUBSIDIARIES OR AFFILIATES, FOR PRODUCTS, SERVICES, OR OTHERWISE.
SNOBALL MAY REFUSE ACCESS TO OR USE OF THE SERVICES FOR NONCOMPLIANCE WITH ANY PART OF THIS AGREEMENT. THIS AGREEMENT IS VOID WHERE PROHIBITED BY LAW, AND ANY RIGHTS TO ACCESS OR USE THE SERVICE ARE REVOKED IN SUCH JURISDICTIONS.
"You" as used herein means the natural person or entity that has agreed to be bound by this Agreement, including, without limitation, (i) an entity that subscribes to use the Services on a subscription or other basis (a "Company"); (ii) an individual employee or representative of a Company who accesses or uses the Services as an authorized user of a Company (an "Authorized User"); or (iii) an individual user that registers for access to the Services for personal use (an "Individual User").
- Services. Snoball partners with Best Company, a website at www.bestcompany.com (“Best Company Website") which allows customers to post a review of third-party products and services ("Review"), refer contacts to a company or sales rep ("Referral"), and/or provide an endorsement of a sales representative ("Endorsement"). Snoball provides its services to You through the Snoball platform at https://snoball.com, its subdomains, and any associated mobile or desktop applications ("Snoball") which includes its Collect application ("Collect Application"), the Referral Application ("Referral Application), and Best Rep iOS app ("Rep Application"), (collectively, the "Services").
- Scope of Access. The scope of your access to the Services may be determined or otherwise limited by the terms of the applicable Subscription Plan (as defined below) selected by or attributed to You, which Subscription Plan will be identified through such ordering process (including via a separate agreement and order form) as may be permitted by Snoball from time to time (an "Order"). Snoball may choose not to accept Orders at its sole and absolute discretion. For the avoidance of doubt, all Orders accepted by Snoball shall be subject to the terms and conditions of this Agreement unless otherwise specified in a separate written agreement executed between you and Snoball.
- Changes to the Agreement. Snoball reserves the right to modify or change this Agreement and its terms, as well as the fees and other amounts charged for the Services, at any time and in its sole discretion. Any modifications or changes will be effective immediately upon posting, unless otherwise specified in the updated Agreement. You waive any right You may have to receive specific notice of any modifications or changes, except as otherwise required by law. Your continued access to and use of the Services confirms your acceptance of this Agreement and any changes or modifications made to the Agreement. You should review this Agreement frequently and ensure you understand all terms, conditions, and policies applicable to your access to and use of the Services.
- Availability of Services. The availability of the Services may change from time to time and Snoball does not guarantee that any application or any of the Services will be available or remain available. Snoball reserves the right to modify or terminate any Services without notice for any reason.
- Access to the Services.
- (a) Service Subscriptions. The Services are offered on a subscription basis and in accordance with the service plan selected by You and identified in the Order (a "Subscription Plan"). Snoball may modify, terminate, or replace the Services or any Subscription Plan from time to time in our sole discretion and without prior notice. You should carefully review the scope and limitations of any Subscription Plan prior to placing an Order.
- (b) Authorized Users, and Individual Users. Subject to and conditioned upon Company's or Individual User's compliance with the terms and conditions of this Agreement, Snoball will provide to Company's Authorized Users or an Individual User access to and use of the Services, in accordance with Company's or Individual User's Subscription Plan and during Company's or Individual User's paid-up subscription period.
- (c) Limitations. The rights granted under Section 5(a) and Section 5(b) hereof are non-exclusive, non-transferable, non-sublicensable, and revocable (in accordance with the terms hereof). Snoball may suspend or terminate Your access to the Services or any component thereof if Snoball reasonably determines that You have violated any term or condition of this Agreement. Company will be liable to Snoball for any violation of the terms and conditions of this Agreement by any Authorized User. Individual User shall be liable to Snoball for any violation of the terms and conditions of this Agreement by such Individual User.
- (d) Rights of Company. Company shall be responsible for determining the scope and level of each Authorized User's access to the Services; subject, however, to the scope and limitations of the rights granted under Section 5(b). Company may, at any time and in its sole discretion, revoke or limit the access of any Authorized User to the Services. If, at any time, Company ceases to classify an individual as an Authorized User hereunder, all rights of such person to access or use the Services shall immediately cease.
- Registration/Your Account. In order to use the Services, You must register for an account with Snoball ("Account"). You will not be able to access the Services without an Account. You must provide true, accurate, current, and complete information as prompted by the applicable registration or login form, and you are responsible for keeping such information up to date. You are responsible and liable for all activities conducted through your Account, regardless of who conducts those activities. You are responsible for maintaining the confidentiality of any user IDs, passwords and other credentials associated with your Account, and shall immediately notify Snoball of any actual or suspected unauthorized access to or use of your Account or any associated user IDs, passwords, and other credentials. You will cooperate fully with Snoball and take all actions that Snoball reasonably deems necessary to maintain or enhance the security of the Services, Snoball's computing systems and networks, and your access to the Services. Snoball is not and shall not be deemed liable for any loss or damage to You arising from your (or, if you are a Company, your Authorized Users') failure to comply with this Section 6.
Content From Users.
- (a) User Content. You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Content and other information, materials, or content that you (or, if you are a Company, that any of your Authorized Users) upload, import, input, or post to or otherwise in connection with the Services. Without limiting the generality of the foregoing, You shall not (nor, if you are a Company, shall You permit any Authorized User to) upload, import, input, or post any User Content or other information, materials or content that (i) infringes the intellectual property rights, rights of privacy or publicity, or other proprietary rights of any third party, (ii) violates any applicable law, (iii) is, or is likely to be considered, immoral, libelous, tortuous, defamatory, threatening, vulgar, or obscene or harmful to minors, or (iv) contains any malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code. You acknowledge and agree that Snoball does not, nor is it obligated to, monitor or police any communications or data, information, materials, or content (including User Content) integrated or imported into, transmitted through, or posted in connection with the Services and Snoball will not be responsible for such data, information, materials, or content (including User Content). Notwithstanding the foregoing, however, Snoball may, at its option and in its sole discretion, remove or delete from the Services any data, information, materials, or content (including any User Content) that Snoball determines violates the terms of this Agreement. For purposes of this Agreement, "User Content" shall mean any data, materials, trademarks, logos, tradenames, or information that You upload, import, input or post (or if you are a Company, that any Authorized User uploads, imports, inputs, or posts), including verbally or in audio or visual format, into, through, or in connection with the Services.
- (b) Content Transmitted Through the Services. The Services include certain features that enable users to post content to a public profile and message contacts ("User Messaging"). Any opinions, recommendations, offers, advice, or other information disseminated through User Messaging or verbally through the Services are those of the respective user, and Snoball shall have no responsibility or liability with respect to the same. All User Messaging and other communication accomplished through the Services shall constitute User Content hereunder and is subject to the requirements and restrictions set forth in Section 7(a) hereof.
- (c) Marketing Content. The Services include features that enable users to create promotional and/or marketing content using information from Reviews gathered by Snoball (“Marketing Content”). Any opinions, recommendations, offers, advice, or other information disseminated through or along with Marketing Content are those of the respective user, and Snoball shall have no responsibility or liability with respect to the same. All Marketing Content shall constitute User Content hereunder and is subject to the requirements and restrictions set forth in Section 7(a) hereof.
- (d) Limited License to User Content. Snoball respects the ownership rights you may have in your User Content. You do, however, hereby agree to grant snoball a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid-up, and fully sublicensable right (including any moral rights) and license to use, store, copy, distribute, publicly perform, communicate to the public, host, stream, publicly display, modify, and create derivative works of any User Content to operate, secure, and improve the Services and to make the Services available to Companies, Authorized Users, and Individual Users. You represent and warrant to Snoball that you have all rights necessary to grant the rights and licenses granted to Snoball under this Agreement.
- User Obligations. You are responsible for your (or in the case of a Company, your Authorized Users') use of the Services and compliance with this Agreement, and for all User Content (including, without limitation, User Messaging). You agree to (i) obtain all third-party consents or approvals that may be necessary for the collection, use, transmission, and uploading of User Content or other content sent to or by means of the Services by you or on your behalf (or, in the case of a Company, by or on behalf of your Authorized Users), and (ii) comply with all applicable laws and regulations with respect to your access to or use of the Services, including without limitation those pertaining to privacy, data security, and publicity.
- Rewards and Referral Compensation. Using the Services, You can set a reward for receiving a qualified referral and/or for when a qualified referral becomes a customer ("Payout"). You are solely responsible for providing the Payout to the customer using a Payment Method (defined below) through the Services. You are responsible for providing accurate information when processing a Payout. Snoball is not liable or responsible for any error in a Payout denomination or any other information provided by You.
- Payment Method. In order to provide a Payout or use other Services, as described below, You will be required to place a credit card or other payment method ("Payment Method") on file through your Account. When You initiate a Payout to a customer or are charged for other Services, You authorize Snoball's third-party service providers to process the payment using your selected Payment Method. You shall be solely responsible for managing the Payment Methods in your Account. You represent and warrant to Snoball that You are the account holder or an authorized user of all Payment Methods in your Account. In the event that a Payment Method no longer processes, or Snoball believes that You are not authorized to incur charges using a Payment Method, Snoball may immediately suspend your Account.
- Access Eligibility. You must be at least eighteen (18) years of age to set up an Account and to use the Services. The Services are available only to individuals who can form legally binding contracts under applicable law. Snoball reserves the right to refuse access to or use of the Services to anyone not complying with this Agreement, at any time, in its sole discretion.
- Electronic Communications. When You send e-mails to Snoball or use the Services, You are communicating with Snoball electronically. By registering your Account, You agree that Snoball may send e-mails to You and You consent to receive e-mails or other electronic communications from Snoball.
- Collect Application.
The Collect Application allows Companies to have Snoball generate customer Reviews of the Company's products or services to be posted on the Company's profile listed on BestCompany.com.
The Referral Application allows Companies to have Snoball request and generate referrals from the Company's customers ("Referrals").
In each of the Collect Application and the Referral Application, the Services may include the generation of Reviews and Referrals through email, sms, or phone solicitations of Company's customers subject to the following:
- (a) Customer Information. In order to use the Collect Application and/or the Referral Application, You will be required to upload information about your customers to Snoball ("Customer Information"). Customer Information may include customer names, locations, e-mail addresses, and telephone numbers. Snoball agrees that it will only use Customer Information in order to provide the Services, which may include contacting and communicating with customers via phone, text, and/or email technology in order to generate Reviews of your products and services or Referrals. By submitting Customer Information to Snoball, You consent to have Snoball use the Customer Information in connection with the Services.
- (b) Integrations. If your Subscription Plan includes the option to integrate with third-party applications, including without limitation, CRM, email, task management, messaging, or other application, (a "Third Party App"), data from that Third Party App ("App Data") may be ingested by Snoball's platform in association with your User Account. By accepting this Agreement, including by accessing or using the Services in any manner, You consent to Snoball's receipt, storage, processing, and sharing of App Data as part of our provision of the Services. Any Third Party App integrations will continue until you revoke access via the Services to the applicable Third Party App. For purposes of this Agreement, all data, records, information, or other materials made available or accessible through the Services by means of a Third Party App integration, including App Data, shall be considered User Content hereunder. You agree and acknowledge that any Third Party App with which the Services is integrated is a third party service not owned or controlled by Snoball, and Snoball shall have no responsibility, obligation, or liability with respect to the same.
(c) Telemarketing Compliance. Snoball covenants and agrees that in pursuing Reviews and Referrals via phone or SMS to comply with all applicable telemarketing laws, regulations and rules, including without limitation the Telephone Consumer Protection Act (47 USC § 227) ("TCPA"), the Telemarketing & Consumer Fraud and Abuse Protection Act (15 USC § 6101 et seq.) and the Telemarketing Sales Rules promulgated by the Federal Trade Commission. You will be responsible for uploading Customer Information to the Collect Application where the applicable customer has provided You with Prior Express Written Consent to receive commercial telephone calls (including voice calls, artificial voice calls, pre-recorded calls, text messages, and/or autodialed calls) from You, and third parties designated by You. "Prior Express Written Consent" shall have the meaning set forth in the TCPA, as amended from time to time. You shall retain the records of each customer's Prior Express Written Consent ("Consent Records") for a minimum of five (5) years following the creation of the Consent Records and shall provide such Consent Records to Snoball upon request. You shall indemnify, defend and hold Snoball harmless from and against any and all losses, damages, fines, liabilities, penalties and claims brought against or assessed to Snoball that arise from, relate to or concern your failure to obtain Prior Express Written Consent or to maintain adequate Consent Records.
You certify that any information, including any Customer Information provided to Snoball through the Services or otherwise was acquired in accordance with all applicable message requirements (the "Governing Rules"), including but not limited to federal, provincial, state, and local laws, regulations, and rules governing SMS messages, including the TCPA and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission's Telemarketing Sales Rule, the CAN-SPAM Act of 2003, the Personal Information Protection and Electronic Documents Act, provincial privacy legislation, and all state and local equivalents.
If for any reason Snoball suspects that any Governing Rules were not followed, You may be asked to provide an explanation and information, including the method of collecting phone numbers and a signed guarantee that all the people on your customer list agreed to receive text messages from You. Snoball reserves the right to take any appropriate action in the case of non-compliance, including cancellation of your account, lead partnership and any other business relationships.
You hereby represent that you are aware of the applicable requirements imposed by the TCPA and Cellular Telecommunications and Internet Association ("CTIA") rules, including the requirement to obtain prior express written consent from a customer before You, or Snoball on your behalf, can send the customer text messages, and such consent must be unambiguous (i.e., the customer must receive a clear and conspicuous legal disclosure).
For further information regarding the legalities of text messages transmitted through the Services, please refer to the following:
Federal Trade Commission,http://www.ftc.gov
Federal Communications Commission, http://www.fcc.gov
- (d) CAN-SPAM Compliance. Snoball covenants and agrees that in pursuing Reviews via email to comply with all federal and state laws, rules, and regulations including, but not limited to, the CAN-SPAM Act of 2003, as amended from time to time ("CAN-SPAM Act") which shall include providing a clear and conspicuous explanation of how the recipient can opt out of receiving emails from Snoball. You will be responsible for uploading Customer Information where the applicable customer has provided You with consent to receive commercial emails from You, and third parties designated by You. You further agree not to upload any Customer Information where the applicable customer has opted out of receiving emails from You, and You will remove Customer Information which has been uploaded to the Collect Application upon receiving any opt out request from the applicable customer. You shall indemnify, defend and hold Snoball harmless from and against any and all losses, damages, fines, liabilities, penalties and claims brought against or assessed to Snoball that arise from, relate to or concern your failure to remove Customer Information where a customer has opted out of commercial emails from You.
- (e) Customer Deletion and Opt-Out Requests. You will be required to contact Snoball directly to delete any Customer Information uploaded to the Collect Application. You shall indemnify, defend and hold Snoball harmless from and against any and all losses, damages, fines, liabilities, penalties and claims brought against or assessed to Snoball that arise from, relate to or concern your failure to delete customer information.
- Rep Application.
The Rep Application allows sales or support reps who have a registered Account as an Individual User or an Authorized User to solicit endorsements and/or referrals from customers:
- (a) Customer Contacts. You agree to only send messages to customers with whom you have an existing business relationship or contacts who have opted-in to receive marketing communications from You. As a user of the Rep Application, You may not use harvested, purchased, rented, or borrowed contact information to send unsolicited requests for endorsements or referrals.
- (b) Compliance with Laws. You represent and warrant that your use of the Rep Application will comply with all applicable laws and regulations. If You are subject to specific laws and regulations and you use the Rep Application, we won't be liable if the Rep Application does not meet those requirements. You may not use the Rep Application for any unlawful or discriminatory activities, including acts prohibited by the TCPA, CAN-SPAM Act, Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce. You shall indemnify, defend and hold Snoball harmless from and against any and all losses, damages, fines, liabilities, penalties and claims brought against or assessed to Snoball that arise from, relate to or concern your failure to comply with applicable laws or regulations.
- Term and Termination.
- (a) Term. This Agreement shall remain in full force and effect while You have an active Subscription Plan and are using the Services. The term of your Subscription Plan (the "Initial Term") commences on the date You begin using the Services and continues for the period identified in your Subscription Plan and/or Order, unless terminated sooner as provided herein.
- (b) Renewal. Upon expiration of the Initial Term, your Subscription Plan shall automatically renew for an additional term of the same length as identified in your Subscription Plan and/or Order unless You provide Snoball with written notice of nonrenewal at [email protected] at least sixty (60) days prior to the end of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term"), or unless sooner terminated as provided herein. If the Term is renewed for any Renewal Term pursuant to this section, the terms and conditions of this Agreement during each such Renewal Term shall be the same as the terms and conditions in effect immediately prior to such renewal, subject to any change in the fees payable under your Subscription Plan during the applicable Renewal Term. If You provide timely notice of your intent not to renew your Subscription Plan, your Subscription Plan and this Agreement shall terminate on the expiration of the then-current Term.
- (c) Termination. Snoball, in its sole discretion, may terminate this Agreement or your rights to use any of the Services at any time, without cause. You may terminate your Subscription Plan at any time, without cause, by providing at least sixty (60) days' prior written notice to Snoball at [email protected]. As consideration for the right to terminate this Agreement, You shall, upon notice of termination, pay to Snoball a termination fee in an amount equal to seventy-five percent (75%) of the remaining fees due under your Subscription Plan through the then current Term ("Termination Fee"). The parties intend the Termination Fee to be liquidated damages constituting compensation, and not a penalty. The parties acknowledge and agree that damages resulting from termination pursuant to this section would be impossible or very difficult to accurately estimate, and that the Termination Fee is a reasonable estimate of the anticipated or actual harm that may arise from such termination. Your payment of the Termination Fee is your sole liability and entire obligation and Snoball's exclusive remedy for any termination by you under this section.
- (d) Effect of Termination. Upon termination of this Agreement, You will not be able to continue to use the Services and You will remain liable for any accrued charges and amounts which become due for payment before or after termination. You understand that termination of this Agreement and the Account You have created with Snoball may involve deletion of Your Account information from Snoball's databases. Snoball will not have any liability whatsoever to You for any termination of Your Account or related deletion of Your information.
- Ownership of Services and Content. You acknowledge that all the intellectual property rights in the Collect Application, Referral Application, Rep Application, and other Services, and their content are owned by Snoball or its third-party licensors. You agree not to: (a) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the Services, or related content, or the content's underlying text, software, graphics, photos, sounds, music, videos, or interactive features; or (b) rent, lease, loan, or sell access to the Services.
Violation of this Agreement or Law. Any use of the Services in violation of this Agreement or in violation of all applicable laws and regulations may result in, among other consequences, termination or suspension of Your Account and rights to use the Services.
- Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. SNOBALL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SNOBALL MAKES NO PROMISES REGARDING RESULTS OF USING THE SERVICES AND SNOBALL MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR VIRUS FREE. USE OF THE SERVICES SHALL BE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE, OR DATA THAT RESULTS FROM THE USE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, SO SUCH DISCLAIMERS AND EXCLUSIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. YOU AGREE THAT SNOBALL, ITS OWNERS, OFFICERS, AND EMPLOYEES SHALL IN NO WAY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER LOSS OR DAMAGE WHATSOEVER OR FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF INFORMATION, OR OTHER LOSS ARISING OUT OF OR CAUSED BY YOUR USE OF OR INABILITY TO USE THE SERVICES.
- Indemnification. You agree to indemnify and hold harmless Snoball, its officers, directors, employees, third party licensors, and affiliates, from and against any losses, damages, fines and expenses (including attorney's fees and costs) arising out of or relating to any claims that You have used the Services in violation of another party's rights, in violation of any law, in violations of any provisions of this Agreement, or any other claim related to Your use of the Services.
- Governing Law and Venue. YOUR USE OF THE COLLECT APPLICATION, THE OTHER SNOBALL FOR BUSINESS SERVICES, AND THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF UTAH WHERE PERMITTED. SHOULD A DISPUTE ARISE CONCERNING THIS AGREEMENT OR THE BREACH OF THIS AGREEMENT BY ANY PARTY, SUCH DISPUTE SHALL BE BROUGHT IN A COURT OF COMPETENT JURISDICTION IN SALT LAKE CITY, UTAH. TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BRING, JOIN OR PARTICIPATE IN ANY CLASS ACTION LAWSUIT AS TO ANY CLAIM, DISPUTE OR CONTROVERSY THAT YOU MAY HAVE AGAINST SNOBALL. YOU AGREE TO THE ENTRY OF INJUNCTIVE RELIEF TO STOP SUCH A LAWSUIT OR TO REMOVE YOU AS A PARTICIPANT IN THE SUIT.
- Attorneys' Fees. In the event that Snoball must bring legal action in order to enforce this Agreement or You bring legal action against Snoball, and if Snoball prevails, You shall pay Snowball's costs of litigation, including reasonable attorneys' fees and court costs.
- Assignment. This Agreement and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Snoball without restriction.
- Notice and Service of Process.
All notices, requests, claims, demands and other communications to Snoball shall be in writing and shall be given
(and shall be deemed to have been duly given upon receipt) by delivery in person or by registered or certified mail
(email is not considered a valid method of communication for service of process to Snoball). You shall send notices
to Snoball as follows:
1064 S N County Blvd #300
Pleasant Grove, UT 84062
Snoball is authorized to send any notices to You under this Agreement to the mailing address, facsimile number and/or e-mail address associated with your Account, as such information may be updated by You from time to time. In the event that You do not have a valid mailing address, facsimile number and/or e-mail address associated with your Account, You agree that service of process through the Secretary of State where You reside (of if a Company, where the Company is organized), shall be deemed effective service of process.
- Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, war, terrorism, governmental act, failures of common carriers (including Internet service providers), acts of God, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.