VoiceOnyx Terms of Service
VoiceOnyx Corp (“Company”) offers a Voice Over IP (“VoIP”) solution as defined herein that interfaces with various physical devices and software components (whether downloadable or online) (the “Platform”) made available for legitimate business purposes for the customer (“You” or “Your” (as appropriate)) to collaborate with Your internal and external constituents. The Platform provides You with the ability to access and use information, data, and other content (“Content”) in a variety of ways, as well as additional services, functionality, and resources made available through the Platform (“Services”).
This Agreement supersedes any prior agreement or proposal, oral or written, and any other communications between You and Company relating to Your use of the Platform or any Content or Services.
PLEASE CAREFULLY READ THIS AGREEMENT. BY ACCESSING OR USING THE PLATFORM, INCLUDING ANY CONTENT OR SERVICES, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THESE TERMS, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT.
- Services further Enumerated.
- “Service” or “Services” means that Company provides You with a Device, to be connected to Your own high speed broadband internet connection, and used in conjunction with Your own interface and telecommunications equipment (including physical cables, network equipment, and internet service provider (“ISP”) provided equipment) together with certain Features, to permit You to utilize Your high speed broadband internet access to obtain voice dialog between individuals using VoIP. In the event Company provides or is involved with the provisioning of Your internet connection, the provisioning of such connection is not covered under this Agreement.
- “Device” means a device supplied by Company that provides voice line access upon connection to Your own high speed broadband internet service. The term “Device” includes the hardware, software, and firmware associated with the supplied device, subject to a nontransferable, revocable license to use the firmware or software in object code form (without making any modification to it) strictly according the terms and conditions of this Agreement.
- “Features” means those particular features made available to You as part of Company’s service plan offerings. The Features to which You are entitled may depend upon the plan you select and the Device you use to access the Service. Company reserves the right to add, remove, or modify Features at its sole discretion without notice to You.
- Other Definitions. Terms used in this Agreement have the definitions given in this Agreement or, if not defined in this Agreement, have their plain English meaning as commonly interpreted in the United States.
- The term of this Agreement will be one (1) month from the date of Your first use of the Platform. The term of this Agreement will thereafter automatically renew for successive renewal periods of one (1) month until You notify Company that You do not wish to renew the Agreement prior to the end of the then-current period in accordance with the notice provisions set forth in Section 30. Such notice is effective on the last date of the month in which You provide notice to the Company that You do not wish to renew the Agreement.
- Modifications. Company reserves the right, at any time, to modify the Platform and any portion of the Content or Services, with or without notice to You, by making those modifications available on the Platform. Company also reserves the right, at any time, to modify the terms of this Agreement. Company will inform You of the presence of any changes to this Agreement by posting those changes on the Platform or by providing You with notice through the Platform. Any modifications will be effective 30 days following posting on the Platform or delivery of such notice through the Platform, except in the case of a legally required modification which will be effective upon posting. You may terminate this Agreement as set forth below if you object to any such modifications. However, You will be deemed to have agreed to any and all modifications through Your continued use of the Platform, Content, or Services following such notice period.
- Enhanced 911 Service. Company provides access to emergency calling services through Enhanced 911 (E911) service. Your access may differ depending on Your location or the device You are using, and emergency calling services work differently than You may have experienced using traditional wired or wireless telephones. It is strongly recommended that You have an alternative means for placing emergency calls available at all times. 911 service will not function in the event of an internet or power outage or if Your broadband, ISP, or Company Service is terminated. It is possible that network congestion may delay or prevent completion of a 911 call. 911 service may not be available if You are dialing from a number that is not a United States number. You agree to notify any employees, contractors, guests, or persons who may place calls using the Platform or may be present at the physical location where the Services may be used, of the limitations of E911 Service.
- Accounts. Subject to the terms of this Agreement, You may be permitted to access certain Content and Services through the Platform without establishing an account on the Platform. Some Features may require that You register as a user of the Platform (a “User”) and establish a user account on the Platform that is associated with your assigned Device use (an “Account”). Approval of Your request to establish and maintain any Account will be at the sole discretion of Company.
- Administrator Accounts. Upon Your request, Company may provide You with the ability to establish an Account on the Platform to act as an administrator (an “Administrator Account”). If You are permitted to establish an Administrator Account, You may be allowed to create or modify access to the Platform for Your Team members (each, a “Team Account”), and also to modify Your payment information. Any Administrator Account and all Team Accounts (all “Accounts”) will be subject to the terms of this Agreement, including payment of all applicable fees.
- Account IDs. You will be responsible for establishing and maintaining the user identification and password for each of Your Accounts, whether an Administrator Account or Team Account (the “Account ID”). Each Account is for Your personal use and all Account IDs are personal in nature. Each Account ID may be used only by You alone. You may not share or transfer Your Account or Account ID or provide a third party with the right to access your Account or Account ID. You are solely responsible for all use of, and charges incurred through, the Platform and all Content and Services through Your Account, whether that Account is an Administrator Account or a Team Account. In case You maintain an Administrator Account, You are responsible for the use of the Platform though each Team Account established under Your Administrator Account and for compliance by each Team member with the applicable terms of this Agreement. You will ensure the security and confidentiality of Your Account ID and will notify Company immediately if Your Account ID is lost, stolen, or otherwise compromised. You are fully responsible for all liabilities and damages incurred through the use of Your Account or under Your Account ID (whether lawful or unlawful) and any actions taken through Your Account or under Your Account ID will be deemed to have been lawfully completed by You.
- Account Information. In connection with establishing an Account, You will be asked to submit certain information about Yourself and, in the case of an Administrator Account, about Your Team (“Account Information”). You are solely responsible for the Account Information for Your Account and, in the case of an Administrator Account, all Team Accounts. You agree that: (a) all Account Information You provide (including, as applicable, for any members of Your Team) will be accurate, complete, and current; and (b) You will maintain and promptly update all Account Information as necessary to keep it accurate, complete, and current. You may not: (i) select or use an Account ID of another person with the intent to impersonate that person; and (ii) use an Account ID that Company, in its sole discretion, deems offensive. You acknowledge and understand that certain Account Information is used for the purpose of publishing your company’s information to various third-party, external, and public-facing sources to aid in making your phone number and contact number(s) more easily accessible on the internet or otherwise. Any inaccurate Account Information you provide may be published to these third-party sources resulting in incorrect information regarding your company becoming accessible, and said information may be difficult, if not impossible, to remove from the internet. Company implores you to verify the accuracy of your Account Information regularly. Note, however, that there may be times when your Account Information may be overridden in these third-party sources due to inter-carrier requirements or caller identification information existing with a prior carrier. For example, if you do not update your Account Information when porting a number to Company’s Platform, that number may retain the name as it existed with the prior carrier. In contrast, some instances exist whereby the caller identification name must match Your legal company name at least during the time when transferring a number from a prior carrier to Company. Company will use reasonable efforts to publish your Account Information as you wish it to appear once relieved of those external requirements.
- Account Confirmation. You are solely responsible for confirming the set-up and configuration of Your Account (and, in the case of an Administrator Account, for all Team Accounts) in all respects and for making all changes and updates thereto through this Agreement.
- To the Platform. You may access the Platform through the webpages located at www. voiceonyx.com, www.voiceonyxvault.com, or www.voiceonyxpresence.com (these webpages and any other websites operated by Company bearing this Agreement, each a “Site”) or using mobile and online applications provided by and on behalf of Company (each, an “Application,” and each Site and Application forming a part of the “Platform” for purposes of this Agreement). Subject to Your compliance with this Agreement, Company will permit You to access and use the Platform solely for lawful purposes and only in accordance with the terms of this Agreement. You are solely responsible for obtaining and maintaining all non-Company-provided equipment, facilities, and connectivity required to access or use the Platform and each Site or Application, in each case as necessary to meet Your operational and mission requirements based on Your particular circumstances.
- To Applications. Subject to Your compliance with this Agreement and any other terms and conditions accompanying each Application, Company may permit You to download and install Applications and operate those Applications solely for the purpose of using and accessing the Platform. You may install each Application only on computers, smart phones, tablets, or other applicable devices owned or controlled by You and used only for lawful purposes in accordance with this Agreement and any applicable terms and conditions accompanying the Application or otherwise provided to You by Company. Except as expressly set forth in the previous sentence, You are granted no licenses or other rights in or to any Application. You agree not to use, modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit or utilize any Application other than as expressly permitted in this Agreement or any other agreement You are required to agree to before being given access to any Application.
- To Content. You may be provided with access to a variety of Content through the Platform, including, text, audio, video, photographs, maps, illustrations, graphics, and other data, information and media. Unless otherwise noted on the Platform, all Content available through the Platform (“Platform Content”) is owned by Company and Company’s other third party providers. All Platform Content is provided for informational purposes only to educate you on the use and Features available within the Platform. Company may also provide custom voice recordings or menus that remain Company’s sole property. Subject to Your compliance with this Agreement, You may access the Platform Content solely for Your own personal purposes in connection with Your use of the Platform. You will not, and will not permit any third party to: (a) alter, modify, reproduce, or create derivative works of any Platform Content; (b) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any Platform Content; or (c) alter, obscure, or remove any copyright, trademark, or any other notices that are provided on or in connection with any Platform Content. Company has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Platform Content. Without limiting the foregoing, Company will not be held liable to You or any other third party for any Content, including Your Content (as defined below), under a Federal Law called the Communications Decency Act or CDA, 47 U.S.C. § 230. Except as set forth in this Agreement, You are granted no licenses or other rights in or to any Platform Content, or any IPR (as defined below) therein or related thereto. If You would like to use any Platform Content in a manner not permitted by this Agreement, please contact Company.
- To Third-Party Services. The Platform may provide You with the choice to access certain Services developed, provided, or maintained by other third party service providers (each, a “Third Party Service”). In addition to the terms of this Agreement, Your access to and use of any Third Party Service is also subject to any other agreement You may agree to before being given access to the Third Party Service (each, a “Third Party Service Agreement”). The terms of any Third Party Service Agreement (which may include payment of additional fees) will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement but will not apply to any other Services You may access through the Platform. Except as set forth in this Agreement, the terms of this Agreement and that Third Party Service Agreement. COMPANY TAKES NO RESPONSIBILITY FOR ANY THIRD PARTY SERVICE AND YOUR ACCESS TO AND USE OF ANY THIRD PARTY SERVICE IS SOLELY AS SPECIFIED IN EACH APPLICABLE THIRD PARTY AGREEMENT.
- To Mobile Services. The Services offered through the Platform may include certain messaging and communications services available through Your mobile telephone and other mobile device (“Mobile Services”). By accessing or using any Mobile Services, You consent to receiving messages including Content through any applicable mobile device You specify through the Platform (“Mobile Device”) and to providing Content from Your Mobile Device to other Users through the Platform. As to any Mobile Device You use in connection with any Mobile Services, You acknowledge that You are the authorized account holder for that Mobile Device. All Mobile Services and the messages and Content received, provided, transmitted, exchanged, or otherwise made available through the Mobile Services are subject to each applicable Third Party Service Agreement with the third-party service providers used by Company to deliver those Services.
- Fees. You agree to pay Company all fees applicable to Your access to the Platform and all Content and Services, including local, state, and federal taxes (“Fees”). All Fees will be as indicated through the Platform when you establish your Account or in any notice You receive from Company in connection with Your Account. It is Company’s intention to streamline the billing process for You as much as possible; therefore, Company makes every attempt to “bundle” Fees into one easy-to-understand rate for your convenience. You are entitled to receive a detailed breakdown of the Fees if you so wish by requesting it from Company. All Fees for each Account will be due and payable by You in advance of the initial period and each applicable renewal period under this Agreement. If You have specified credit card, debit card, automated clearing house (“ACH”), online payment account, mobile services account, or other payment method as an applicable payment mechanism under this Agreement, You grant Company the right to charge the applicable payment account You provided to Company for all Fees incurred under this Agreement. All Fees (except as stated in Section 9) will be non-refundable once paid to Company (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. Company may change any portion of the Fees by posting the changes to the Platform or otherwise providing notice to You of the change. Any such changes will take effect at the beginning of the next period of this Agreement. If Company requires use of collection agencies, attorneys, or courts of law for collection of Your account, You will be responsible for those expenses. You will be responsible for any and all use, sales, telecommunications, and other taxes imposed on the Services provided under this Agreement.
- Limited Money-Back Guarantee. If, within the first thirty (30) days of You using the Platform or Services, You wish to cancel Your use thereof, Company will refund the money you paid to Company for use of the Platform and Services, less any shipping costs and for usage that exceeds five hundred (500) minutes of VoIP call time.
- Company’s Termination Rights.
- This Agreement may be terminated by Company at any time in Company’s sole discretion upon any material breach by You of this Agreement that remains uncured ten (10) business days after Company delivers written notice to You of such breach; provided, however, that lack of payment by the eighth day of the month when payment is due on the first day of the month affords Company the right to terminate Your service immediately. A material breach includes, but is not limited to, a failure to timely pay the Fees due under this Agreement and any failure of the breaching party to comply with a specific provision of this Agreement such that the non-breaching party is prevented from performing its obligations or receiving the benefits under the Agreement.
- This Agreement may also be terminated by Company due to the following:
- Company determines or reasonably believes that You provided information to Company prior to Your first use of the Platform that was or becomes incorrect, absent, or incomplete;
- Company determines or reasonably believes that You used fraudulent means to pay Fees due under this Agreement;
- Company determines or reasonably believes that You abused, threatened, or harassed (whether verbally, in writing or otherwise) any Company employee, contractor, agent, or representative;
- Company determines that the amount of technical support required to be provided to You by Company is excessive as determined in the sole discretion of Company.
- You have taken any action or engaged in any conduct which Company reasonably determines has impeded its ability to provide any Service contemplated by this Agreement.
- Your Termination Rights. You may terminate this Agreement at any time upon notice to Company in accordance with Section 30 or by deleting Your Account as may be permitted through the Platform; provided that any such termination by You shall become effective on the last date of the month in which You provide notice to the Company or delete Your Account.
- Effect. Termination of this Agreement will terminate all of Your Accounts on the Platform. Termination of any Administrator Account will terminate all accounts under that Administrator Account, including all Team members under that Account. In the event that the Company terminates this Agreement pursuant to Section 10, Company shall have no liability to You. Upon termination or expiration of this Agreement by Company, each of Your Accounts will be marked inactive for up to six (6) months and Your access to Content and Services will cease. Company may terminate all access to Your Accounts and delete any of Your Content held by Company at any time after termination or expiration of this Agreement. Upon expiration of this Agreement or termination of the Agreement by Company or You: (a) all rights and subscriptions granted to You under this Agreement will terminate; (b) You will immediately cease all use of and access to the Platform, including all Content and Services; (c) You will immediately delete any Applications You have downloaded or installed prior to termination; (d) all Fees then owed by You will become immediately due and payable; and (e) You will immediately either return to Company or, at Company’s discretion, destroy any Content of Company and any other information related to this Agreement in Your possession or control.
- Company’s Termination Rights.
- Suspension. Without limiting Company’s right to terminate this Agreement, Company may also suspend Your access to Your Account and the Platform or any Content or Services (including Your Content), with or without notice to You, upon any actual, threatened, or suspected breach of this Agreement or applicable Law or upon any other conduct deemed by Company, in its sole discretion, to be inappropriate or detrimental to the Platform, Company, or other User or third party. Any such suspension shall remain in place until You remedy any such noncompliance or other inappropriate or detrimental conduct. Any suspension shall not affect Your obligation to pay Company any Fees due under this Agreement. Furthermore, Company may require the payment of reconnect or other charges before restarting Your access to Your Account or the Platform or any Content or Services that were suspended.
- Platform Technology. The Platform, and the data, information, databases, software, hardware and other technology used by or on behalf of Company to operate the Platform, and the structure, organization, and underlying data, information and software code thereof (collectively, the “Technology”), constitute valuable trade secrets of Company. You will not, and will not permit any third party to: (1) access or attempt to access the Technology except as expressly provided in this Agreement; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Technology; (3) use automated scripts to collect information from or otherwise interact with the Technology; (4) alter, modify, reproduce, or create derivative works of the Technology; (5) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of Your rights to access or use the Technology or otherwise make the Technology available to any third party; (6) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (7) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; (8) monitor the availability, performance, or functionality of the Technology; or (9) interfere with the operation or hosting of the Technology.
- High Speed Broadband Service Required; Excluded Types of Broadband or Internet Compatibility.
- Customer to Supply Internet Service and Ensure Propriety of Use. The Service requires You to have high speed broadband internet service, which Company does not provide. Company also does not represent that Your use of Company’s Service will not constitute a violation of any broadband or internet service provider’s agreement to provide such services to You. It is Your duty to determine and ensure that Your purchase of Company’s Service, including use of its Device and Features, does not violate any applicable law, regulation, contract, or agreement to which Your are subject or a party. In addition, if Your high-speed internet connection is not within a reliable service area or if broadband provider places restrictions on using VoIP services, You are solely responsible for any violations of local laws and regulations or violations of ISP and broadband provider’s terms of service because of Your use of Company’s Service. Your shipment of a Device outside the United States for use in another country renders You solely responsible for determining and adhering to compliance with all applicable custom, regulatory, and other laws regarding the transport, distribution, and use of such Device and the Service. Company reserves the right to restrict from accessing the Platform any Device reasonably believed to be connected outside of the United States unless provided prior advanced notice.
- Disclaimer of Liability and Warranties. Company does not warrant that its Services will be compatible with all broadband services, and Company expressly disclaims any express or implied warranties regarding the compatibility of our service with any particular broadband service. Company also does not warrant that Your use of Company’s Service will not constitute a violation of any broadband or internet service provider’s agreement to provide such services to You.
- Feature Acknowledgements. You acknowledge that use of Features available to you is optional and you are opting you use Features on Your own free will. You further acknowledge that certain Features rely on You or Your Team entering information accurately into the Platform (e.g., enabling call forwarding, Online Presence and Listing Distribution, voicemail to email, etc.). By using certain Features that communicate outside the Platform, You acknowledge that You may be subjecting Yourself to third-party fees and costs (such as cellular telephone or data charges, ISP bandwidth charges, etc.). Moreover, You are responsible for protecting the privacy and confidentiality of Your Content, and You acknowledge that certain Features may reduce the protection of Your Content by allowing Your Content to exit the Platform (e.g., sending facsimiles to email, forwarding voice messages to email, sending voicemail transcriptions to email, etc.). Company is in no way responsible for your election to use any Feature.
- Ownership. Company retains all right, title, and interest, including, without limitation, all IPR (as defined below), in and to the Technology and any additions, improvements, updates, and modifications thereto. You receive no ownership interest in or to the Technology and You are not granted any right or license to use the Technology itself, apart from Your ability to access the Platform, under this Agreement. The Company name, logo, and all product and service names associated with the Platform are trademarks of Company and its providers and You are granted no right or license to use them. For purposes of this Agreement, “IPR” means all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information, or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
- Customer Legal Compliance. You represent and warrant that all use and usage of Your account(s) and the Services will at all times comply with all applicable laws, including but not limited to the rules, policies, and regulation of the Federal Communications Commission (“FCC”), and all laws relating to Do-Not-Call provisions; unsolicited marketing; telemarketing; faxing; “robo-dialing”; email marketing; spamming or phishing; data security or privacy; international communications; account or debt collection; recording of calls or conversations; export control; export of technical or personal data; end user, end-use, and destination restrictions imposed by the United States or foreign governments; consumer protection; pornography; trade practices; false advertising; unfair competition; anti-discrimination; harassment; defamation; intellectual property; or securities.
- Unsolicited Advertisements and TCPA Compliance. Certain communication practices, including without limitation, the placing of unsolicited calls; the placing of commercial messages; the sending of unsolicited facsimile, internet facsimile, SMS, or other messages; and the use of certain automated telephone equipment to place certain calls – is regulated in the United States by the Federal Telephone Consumer Protection Act of 1991 (also known as the “TCPA”) (available at http://www.fcc.gov/document/
telephone-consumer-protection-act-1991), the Junk Fax Prevention Act of 2005, and under a number of similar state, municipal or local laws, regulations, codes, ordinances and rules. You agree, represent, and warrant that:
- You are the creator of the content of, and are solely responsible for determining the destination(s) and recipient(s) of, all outbound communications made using the Platform (“Customer Communication”);
- All content, communications, files, information, data, and other content provided for transmission through Your account or the Platform will be provided solely for lawful purposes, and in no event shall any Customer Communication or any content thereof be in violation of the TCPA, Junk Fax Prevention Act, or any other law; and
- No unsolicited advertisements, commercial messages, solicitations, marketing or promotional materials, or commercial messages or content will be transmitted or distributed in the form of facsimiles or internet facsimiles through the Platform.
At Company’s sole option and without further notice, Company may use technologies and procedures, including without limitation, filters, that may block or terminate such unsolicited advertisements without delivering them.
You agree to indemnify and hold harmless Company and any third-party provider(s) from any and all third-party claims, losses, damages, fines, or penalties arising: (i) out of Your violation or alleged violation of the TCPA or Junk Fax Prevention Act or any similar regulation or legislation; or (ii) otherwise related to any voicemail, text, and/or fax spam, solicitations, or commercial messages that You may send and/or receive using the Platform.
- Export Restrictions. You acknowledge and agree that the software and/or hardware used in conjunction with the Platform may be subject to United States, Canada, and other foreign laws and regulations governing the export, re-export, and/or transfer of software by physical or electronic means. You agree, represent, covenant, and warrant that: (i) neither You nor any User (nor any entity or person that controls You or any end user): (a) is located in an Embargoed Area or listed on any Export Control List or (b) will export or re-export any Company software or hardware into any Embargoed Area or to any person, entity, or organization on any Export Control List, or to any person, entity, or organization subject to economic sanctions due to ownership or control by any such person, entity, or organization, without prior authorization by license, license exception, or license exemption; and (ii) the Platform and Company software and/or hardware will not be used or accessed from any Embargoed Area.
- Recording Conversations or Calls. Certain features of the Platform may allow You or users of the Platform to record calls or other communications. The notification and consent requirements relating to the recording of calls, and/or other communications may vary from state to state, and country to country. You should consult with an attorney prior to recording any call as some states or countries may require callers or users to obtain the prior consent of all parties to a recorded call, or other communication before the caller or user may record the call, or other communication. You represent, covenant, and warrant that You will review all applicable laws before You use or allow use of the Platform to record any calls or other communications and will at all times comply with all applicable laws. You agree to inform all users of Your account that they are obligated to comply with all laws relating to their use of the call recording feature. Violations of the call recording laws may be subject to criminal or civil penalties. Company expressly disclaims all liability with respect to Your recording of telephone conversations. You agree to indemnify and hold harmless Company and any third-party provider(s) from any and all third party claims, losses, damages, fines, or penalties arising out of Your violation or alleged violation of any call recording laws. Company expressly disclaims all liability and all warranties with respect to recording of conversations and/or calls.
- Prohibited Use of the Platform. Neither You nor any user of the Platform may use or allow use of the Platform in any of the following ways:
- in any manner or for any purpose that is fraudulent, malicious, deceptive, dishonest, abusive, obscene, threatening, harassing, tortious, improper, defamatory, libelous, slanderous, or in violation of any law;
- to intentionally send or transmit unsolicited or “junk” or “spam” advertisements, communications, or messages (commercial or otherwise) without consent, including without limitation through email, voicemail, SMS, facsimile, or internet facsimile;
- to harvest or otherwise collect information about others including, without limitation, email addresses or personally identifiable information, without their consent;
- to intentionally engage in blasting or broadcasting bulk communications, advertisements, or messages (e.g., sending hundreds of messages simultaneously) including, without limitation, through email, voicemail, SMS, facsimile, or internet facsimile;
- to perform auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls) in violation of applicable law;
- to transmit any communication that would violate any applicable law, including but not limited to the TCPA, the Junk Fax Prevention Act of 2005, the rules governing the Do Not Call Registry, and the Canadian Unsolicited Telecommunications Rules;
- to intentionally transmit or store any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs or materials that may be harmful or dangerous;
- to transmit misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value, including by creating a false Caller ID identity or forged email/SMS address or header or by otherwise attempting to mislead others as to the identity of the sender or the origin of any outbound Customer Communication;
- to infringe, misappropriate, or otherwise violate the foreign or domestic IP Right or proprietary right of any party, including without limitation by transmitting or storing any material that might infringe, misappropriate, or otherwise violate any such right;
- to violate the right of privacy, personality, or publicity of any party, including without limitation by transmitting or storing any material that might violate any such right;
- to violate any law regarding the transmission of technical data or information or software through the Platform;
- in any manner that interferes with Company’s ability to provide high quality products or services to other customers;
- to store PHI; or if You qualify as a “covered entity,” “business associate,” or “subcontractor” under HIPAA (or similar terms under similar legislation in other jurisdictions) or are otherwise subject to HIPAA, to transmit, receive, or store PHI without first discussing your HIPAA requirements and, if needed, entering into a business associate agreement with Company.
A breach of obligations in this Section constitutes a material breach of this Agreement, such that Company may suspend service, terminate this Agreement immediately, or take any other action Company deems necessary to enforce the terms of this Section.
- Prohibited Acts. You represent, warrant, covenant, and agree that neither You nor any end user shall do any of the following during the term of this Agreement:
- transmit, upload, distribute in any way, or store any corrupted file or material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs or materials that may be harmful or dangerous or may damage the operation of the Platform or another party’s computers, devices, equipment, systems, or networks;
- take advantage of, bypass, exploit, or otherwise avoid Your obligations or the provisions, restrictions, and prohibitions set forth in this Section (or attempt to do so);
- interfere with or disrupt networks or systems connected to the Platform;
- sell; resell; distribute; lease; export; import; or otherwise grant or purport to grant rights to third parties with respect to the Platform, and any software or hardware used in conjunction with the Platform or any part thereof without Company’s prior written consent;
- display or use any Company Mark in any manner in violation of Company’s then-current policies on its trademark and logo usage or without Company’s express, prior written permission, to be granted or denied in Company’s sole discretion;
- undertake, direct, attempt, cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Platform or any software and hardware used in conjunction with the Platform, or part thereof;
- defeat, disable, or circumvent any protection mechanism related to the Platform;
- intercept, capture, sniff, monitor, modify, emulate, decrypt, or redirect any communication or data used by Company for any purpose, including without limitation by causing the any product to connect to any computer server or other device not authorized by Company or in any manner not authorized in advance in writing by Company;
- allow any service provider or other third party to use or execute any software commands that facilitate the maintenance or repair of any software or hardware used in conjunction with the Platform;
- gain access to or use (or attempt to gain access or use) any device, system, network, account, or plan in any unauthorized manner (including without limitation through password mining);
- engage in or to allow trunking or forwarding of Your telephone or facsimile number to (an)other number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system; or
- violate or take any action to jeopardize, limit, or interfere with Company’s IPR including, without limitation, Company’s IPR in the software and hardware used in conjunction with the Platform.
- Prohibited Acts. You represent, warrant, covenant, and agree that neither You nor any end user shall do any of the following during the term of this Agreement:
A breach of obligations in this Section constitutes a material breach of this Agreement, as applicable, such that Company may suspend service, terminate this Agreement immediately, or take any other action Company deems necessary to enforce the terms of this Section.
- Representations and Warranties.
- Authority. You represent and warrant to Company that: (a) You have the legal right and authority to enter into this Agreement; (b) this Agreement forms a binding legal obligation on Your behalf; and (c) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement.
- Compliance with Laws. You acknowledge that (a) the Platform is provided as a tool for use in assisting You in Your internal and external communication efforts and that You remain solely responsible for all organization and management of Your communications and use of the Platform; (b) the Platform is a general purpose service and is not specifically designed to facilitate compliance with any specific Law; and (c) You will access and use the Platform in compliance with all Laws applicable to You, Your Content, and any other Platform Content You may access through the Platform. Company is not responsible for notifying You of any such Law, enabling Your compliance with any such Law, or for Your failure to comply. You represent and warrant to Company that Your Content, Your Services, and Your use of and access to the Platform, including any Platform Content, will comply with all applicable Laws and will not cause Company itself or any other User to violate any applicable Laws, including, without limitation, the Health Insurance Portability and Accountability Act of 1996 or the Health Information Technology for Economic and Clinical Health (HITECH) Act (enacted as part of the American Recovery and Reinvestment Act of 2009).
- No Additional Warranties. THE PLATFORM, CONTENT, AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.’ COMPANY AND ITS PROVIDERS DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, ADEQUACY, OR CURRENCY OF THE PLATFORM OR ANY CONTENT OR SERVICES AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED IN THE PLATFORM CONTENT OR OTHER DATA, INFORMATION, OR CONTENT THAT MAY BE PROVIDED THROUGH THE PLATFORM. COMPANY AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PLATFORM, CONTENT, SERVICES, AND OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS EMPLOYEES, PROVIDERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION.
- Indemnity. You hereby agree to indemnify, defend, and hold harmless Company and its officers, directors, shareholders, affiliates, employees, agents, contractors, assigns, Users, customers, providers, licensees, and successors in interest (“Indemnified Parties”) from any and against all claims, losses, liabilities, damages, fees, expenses, and costs (including reasonable attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any and against all claim or allegation against any Indemnified Party arising in any manner from: (1) Your access to or use of the Platform including any Content or Services; (2) the access to or use of the Platform, including any Content or Services, by Your Team Members; (3) Your content or any access to or use thereof; (4) any access to or use of Your Content by any other users; (5) Your collection, use, and disclosure of any User Information; and (6) Your breach of any provision of this Agreement, including any representation or warranty. Company will provide You with notice of any such claim or allegation, and Company will have the right to participate in the defense of any such claim at its expense.
- Limitation on Liability. COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE PLATFORM, CONTENT OR SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR CONTENT, OPPORTUNITY, REVENUES, PROFITS, OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT, GOODS, OR SERVICES. COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL CONTENT AND SERVICES PROVIDED UNDER THIS AGREEMENT OR THROUGH THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $10 OR, IN THE CASE THAT YOU HAVE PAID FEES TO COMPANY TO ACCESS THE PLATFORM OR ANY CONTENT OR SERVICES, THE AMOUNTS PAID BY YOU TO COMPANY IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO ANY LIABILITY. YOU AGREE THAT COMPANY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, COMPANY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- Best Efforts. The Service is provided on a best efforts basis. The Service may be affected by other events beyond Company’s control, such as power outages, internet service provider or broadband service, maintenance, or signal fluctuations or disruptions. Company will use its best efforts and act in good faith to provide the Service with minimum disruptions to its use or access.
- Disputes. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section. If any Dispute cannot be resolved through negotiations between the parties within five (5) days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration rules of the American Arbitration Association (“AAA”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within thirty (30) days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Company in Orange County, Florida U.S.A. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues, or accountings presented or pleaded to the arbitrator. The award of the arbitrators will require payment of the costs, fees, and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
- Governing Law and Venue. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Florida U.S.A. as such laws apply to contracts between Florida residents performed entirely within Florida without regard to the conflict of laws provisions thereof. Subject to Section 28 (Disputes), each party will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal court in the District of Florida, U.S.A. or in state court in Orange County, Florida U.S.A., and You irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts by Company.
- Notices. Unless otherwise specified in this Agreement, any notices required or allowed under this Agreement will be provided to Company by postal mail to the address for Company listed on the Platform. Company may provide You with any notices required or allowed under this Agreement by sending You an email to any email address You provide to Company in connection with Your Account, provided that in the case of any notice applicable both to You and other Users of the Platform, Company may instead provide such notice by posting on the Platform. Notices provided to Company will be deemed given when actually received by Company. Notice provided to You will be deemed given 24 hours after posting to the Platform or sending via e-mail, unless (as to e-mail) the sending party is notified that the e-mail address is invalid.
- Linked Sites. The Platform may contain links to third-party sites or Content that are not under the control of Company. If you access a third-party site or Content from the Platform, then you do so at your own risk and Company is not responsible for any content on any linked site or content. You may establish a link to the Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by Company or any group or individual affiliated with Company. You may not use on your site any Platform Content or marks appearing on the Platform in establishing the link. You may not frame or otherwise incorporate into another site the content or other materials on the Platform without prior written consent.
- Additional Terms. Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Platform, including all Content and Services, and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Platform, including all Content and Services. The terms and conditions governing service provided by Company pursuant to this Agreement may be modified by the Company at any time in its sole discretion and Company shall have no obligation to notify You of such modification of any terms and conditions except by posting such modifications in the Terms and Conditions posted on Company’s website. All waivers by Company under this Agreement must be in writing or later acknowledged by Company in writing. Any waiver or failure by Company to enforce any provision of this Agreement on one occasion will not be deemed a waiver by Company of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with applicable Law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the applicable Law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees, and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger, consolidation, or other operation of law) without the prior written approval of Company. Any assignment in violation of the foregoing will be null and void. Company may assign this Agreement to any party that assumes Company’s obligations hereunder. The parties hereto are independent parties, not agents, employees, or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. Any reference herein to “including” will mean “including, without limitation.” Upon request from Company, You agree to provide Company with such documentation or records with respect to Your activities under this Agreement as may be reasonably requested for Company to verify Your compliance with the terms of this Agreement and all applicable Laws. The following Sections survive any expiration or termination of this Agreement: 2 (Other Definitions), 10 (Termination and Effect), 15 (Ownership), 22 (Representations and Warranties), 23 (Disclaimers), 24 (Indemnity), 25 (Limitation on Liability), 27 (Data Privacy), 28 (Disputes), 29 (Governing Law and Venue), 30 (Notices) and 32 (Additional Terms).
- Representations and Warranties.
Last Updated: July 12, 2019