Terms of Service
These Terms of Service (the “TOS”) constitute the entire agreement between Voifinity, (“Voifinity”) and you on behalf of yourself and any entity that you represent (“You”/ “Your”), as the user of Voifinity’s voice and advanced communications services, collaboration services, and any associated software and hardware or web-accessible portals, plans offered in the Voifinity portal. These TOS applicable and refers to any publications, notices, or agreements mentioning Voifinity plans or services.
Important 911 terms related to Your VoIP services:
By activating the Voifinity Plan Services, You acknowledge that You have read, understood and agree to these terms and conditions.
If You are uncomfortable with the limitations of the Voifinity 911 service, You should consider using an alternative means of access to E911 services or discontinuing the Plan Services.
By subscribing to or using Plan Services, including those services, features or functionality provided by means of mobile applications, or by downloading installing, or using any associated software or hardware, You agree to these TOS. If You do not wish to accept these TOS, do not subscribe to or use any Plan Services or associated software or hardware.
When You accept these TOS by signing up for, subscribing to, downloading and installing any Voifinity software or using the Voifinity Plan Services, You represent and warrant that: (i) You possesses the legal right and capacity to enter into the agreement with Voifinity and to perform all of Your obligations thereunder; (ii) You are of legal age to enter into this Agreement; (iii) You have full power and authority to execute and deliver any agreement documents and to perform all of Your obligations thereunder; (v) if You accept on behalf of an organization, You are informing Voifinity that You are authorized to bind that organization, and references to “You” in these TOS expressly includes without limitation the entity You represent; and (iv) You shall be bound by the agreement.
Any capitalized terms set forth below not otherwise defined have the meanings set forth in Section 26 (“Definitions”) below.
1. Operation and Limitations of the Voifinity 911 Service
- Voifinity Provides Access to Emergency Calling Services (911).
Voifinity provides access to emergency calling services, allowing most Voifinity Office users to access 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 wireline or wireless telephones. It is strongly recommended that You have an alternative means for placing emergency calls available at all times.
Voifinity Office users using IP Desk Phones or 911-Enabled Softphones can dial 911 directly from their IP Desk Phones or 911-Enabled Softphone. EMERGENCY CALLS CANNOT BE PLACED THROUGH SOFTPHONES THAT ARE NOT 911-ENABLED. For purposes of these Online Terms “IP Desk Phone” means a telephony hardware device that uses VoIP to place and transmit; “911-Enabled Softphone” means a softphone for which the Voifinity 911 Service is supported as identified in a pop-up notification within the Softphone application.
Calls to 911 placed through the Voifinity Mobile Application on a smartphone are automatically routed to the native dialer on the smartphone, and the call will be handled by Your wireless service provider if wireless service is available. If Your wireless service is unavailable, the 911 call cannot be placed. The Voifinity Mobile Application cannot place emergency calls over Wi-Fi access. Emergency dialing is not available through the Voifinity Mobile Application on tablets or other mobile devices without a native phone dialer and a wireless service plan.
- How it Works.
When a Voifinity Office user dials 911 on an IP Desk Phone or 911-Enabled Softphone, the Voifinity phone number and the Registered Address You have provided is sent to the local emergency center serving Your location. Your “Registered Address” is the address of the physical location where You will use Your Plan Services. In some areas, emergency operators have access to this information; however, in areas where only basic 911 service is available, the emergency operator answering the call may not be able to see Your Voifinity telephone number or Your Registered Address. You should always be prepared to provide the emergency operator with Your Voifinity telephone number and Registered Address in case the call is dropped or disconnected. If You are unable to speak, the emergency operator may not be able to send help to Your location and/or call You back should the call be disconnected. Voifinity does not control whether or not the emergency operator receives Your telephone number and Registered Address.
Emergency dialing with Your Plan Service works differently than emergency dialing over traditional phone service. In some cases, 911 calls dialed from Your Voifinity Office device cannot be directed to the local emergency response center, and are instead directed to a National Emergency Call Center (the “NECC”). That might happen if there is a problem validating a Registered Address, if the Registered Address is an international location, or if the Registered Address is in an area that is not covered by the landline 911 network. 911 calls that are directed to the NECC may not include Your Voifinity telephone number or Your registered address. Trained operators at the NECC will request Your name, location, and telephone number and attempt to reach emergency responders in Your local area. Until You give the operator Your phone number, and location, he/she may not be able to call You back or dispatch help to Your location if the call is dropped or disconnected.
- Service limitations.
Voifinity 911 service will not function in the event of an Internet or power outage, if You do not have cellular service (on the Voifinity Mobile Application), or if Your broadband, ISP, or Voifinity Office service is terminated. The Voifinity Mobile Application cannot send emergency calls over Wi-Fi access. It is possible that network congestion may delay or prevent completion of a 911 call. Voifinity 911 service may not be available if You are dialing from a Voifinity number that is not a Canadian or United States number.
- Registering Your Location.
You agree to register with Voifinity immediately, upon activation of Your Account, the address of the physical location where You will use the Voifinity Office Service for each Digital Line, including each IP Desk Phone and each 911-Enabled Softphone. This is Your Registered Address. You agree that You will accurately register each individual line through the Account Admin Portal or the Customer Portal for the applicable End User. You and Your End Users shall use the Plan Services at the Registered Address provided for the applicable Digital Line. If You or Your End Users move a registered device, You agree to immediately update the Registered Address with the new physical location of the device with Voifinity through the Admin Portal or in Your account settings. You acknowledge that if You do not update the Registered Address, any 911 calls made from the device may be sent to the wrong emergency response center and will not transmit Your current location information to emergency responders, delaying emergency assistance to You. It may take up to several hours for the address update to take effect. Customers with more than one line or extension are solely responsible for ensuring that an accurate and up-to-date Registered Address is maintained for each IP Desk Phone and each 911-Enabled Softphone, and that their End Users are aware of how the Registered Address can be changed.
- Text-to-911 Services.
In some areas, emergency operators are able to receive text messages sent to 911. In areas where it is available, Your Office Service allows Emergency SMS messages, also known as Text-to-911, only through the Voifinity Mobile Application. Texts to 911 by Voifinity Office users relying on the Voifinity Office Mobile Application are automatically directed to the native dialer on the mobile phone, allowing You to send the text through Your wireless service provider, if available. If wireless service is unavailable, the text cannot be sent. Text-to-911 is not available on tablets or other mobile devices without a native phone dialer and a wireless service subscription.
- Notification of Employees, Guests, or Other Users.
You agree to notify any employees, contractors, guests, or persons who may place calls using the Office Services or may be present at the physical location where the Office Services may be used, of the limitations of Voifinity 911 Service from Your Voifinity Office IP phone, other equipment or the Voifinity 911-Enabled Softphone. You agree to affix a sticker warning that 911 services may be limited or unavailable in a readily visible place on each piece of equipment that might be used to access or use the Office Services. You and Your End Users should always have an alternative means for placing 911 calls and/or sending text messages to 911.
- Disclaimer of Liability for Emergency Call Response.
You acknowledge and agree that Your use, and use by Your employees and/or guests or other third parties, of Voifinity’s 911 Services and Text-to-911 Services are subject to the limitations described herein.
The availability of certain features, such as transmission of a Registered Address or Your Voifinity telephone number, depends on whether local emergency response centers support those features, and are factors outside of Voifinity’s control. Voifinity relies on third parties to assist us in routing 911 calls and text messages to local emergency response centers and to the NECC. Voifinity does not have control over local emergency response centers, the NECC, emergency responders, or other third parties. Voifinity disclaims all responsibility for the conduct of local emergency response centers, the NECC and all other third parties involved in the provision of emergency response services. Accordingly, to the extent permitted by applicable Law, You hereby release, discharge, and hold harmless Voifinity from and against any and all liability relating to or arising from any acts or omissions of such third parties or other third parties involved in the handling of or response to any emergency or 911 call. You agree to indemnify and hold harmless Voifinity, and any third-party provider(s) from any and all third party claims, losses, damages, fines, or penalties arising out of: (i) Your provision to Voifinity of incorrect information, including physical addresses, or Your failure to update Your Registered Address; (ii) Your failure to properly notify any person who may place calls using the Office Services of the 911 limitations; or (iii) the absence, failure, or outage of emergency service dialing using the Office Services for any reason; and (iv) the inability of any user of the Office Services to be able to dial 911 or access emergency service personnel for any reason.
2. Plan Subscription
- Purchase of Plan Services
Pursuant to these TOS, You are purchasing a subscription for the Plan Services set forth in Your initial Order, and agreeing to use and pay for the same as set forth in these TOS for the entire period in the initial Order (the “Initial Term”), and any Renewal Terms, as applicable. You agree to be financially responsible for Your use of the Plan Services, including the authorized or unauthorized use of Your Account. In order to use the Plan Services, You must have properly configured and working Internet service or broadband connection as set forth in Section 4.A (IP Network Sufficiency). Voifinity does not provide any access to the Internet.
- Ordering Services
Customer may order Services by executing an Order in the format provided by Voifinity and submitting electronically on the Voifinity website or, for subsequent Orders, via the Account Management portal. The Order will identify the Services requested by Customer together with: (i) the price for each Service; (ii) scheduled Start Date; (iii) and products leased, licensed or sold to Customer, if any. An Order will become binding when it is executed by the Customer and accepted by Voifinity. Voifinity may accept an Order by commencing performance of the requested Services. The Services will begin on the Start Date. Customer may purchase additional Services, software, and equipment through Orders via the Account management Portal.
- Account Registration
Upon signing up for the Plan Services and at subsequent times as requested by Voifinity, You or Your End Users may be required to provide certain information, including but not limited to, name, address, phone number, email address in order to begin using or to update the Plan Services, activate features, or add or modify any individual lines, extension or additional products or services (e.g., activating an Account or End User or provisioning a device) (“Registration Information”). You hereby grant to Voifinity permission and a perpetual, worldwide, royalty-free, fully paid-up, non-exclusive, non-transferable right and license to copy, reproduce, store, record, disclose, transmit, display, access, and use Registration Information in connection with the activation, provision, support, improvement, administration, or management of Your Plan Services, as set forth in these TOS or otherwise permitted by Law. You represent and warrant that all Registration Information provided to Voifinity by or on behalf of You or any End User will be true, accurate, current, and complete, and that You will promptly confirm, update, or supplement Registration Information on file upon Voifinity’s request or in the event that such Registration Information changes.
- Account Administrators
The End User(s) You designate as Account Administrator(s) of Your Plan Services will have rights to set or modify the settings or preferences of other End Users of Your Account. You are responsible for all acts and omissions of Your Account Administrators, and any other End Users, including without limitation any changes or purchases such individuals may make to Your Account.
- Purchase of Additional Digital Lines
Your Plan Services may include Digital Lines as set forth in the applicable Order. Account Administrators may purchase additional Digital Lines for the applicable Account at any time by placing an Order for the Digital Lines through the Account’s Admin Portal or by contacting the Voifinity account representative for that Account. Each additional Digital Line added to Your Account is subject to the terms of these TOS. The Term of the additional Digital Lines will run conterminously with the Term of Your initial purchase (either monthly or annually renewed, as applicable).
- Term and Automatic Renewal
Your license to the Plan Services is provided for the Initial Term and any subsequent Renewal Terms.
The Initial Term for all service plans will renew automatically for successive terms of the same length (each, a “Renewal Term”) without further action by or notice to You; if You wish to cancel or terminate your Voifinity services, You must notify Voifinity customer service of your intent not to renewal at least thirty (30) days before the end of the Initial Term or then-current Renewal Term. The term of any recurring Services added to the Account after the initial Order is submitted will start on the Start Date of the subsequent Order, will run coterminously with the then-current Term of any preexisting Services, and will be billed on the same billing cycles as the preexisting Services.The Initial Term together with any Renewal Terms are collectively the “Term”.
All IP Desk phones and/or equipment related to IP Desk phones, including but not limited to, handsets, headsets, software installed on or related to those devices, and any other product directly related to IP devices, shall be provided to the Voifinity customer by either Voifinity or a third-party vendor. The terms and conditions that govern any equipment, including but not limited to, purchases, warranties, returns, exchanges and claims, can be found at the web page entitled “Terms and Conditions of Sale of Hardware at https://www.Voifinity.com/legal/hardware-tos.html. These terms and conditions may be updated at any time with or without notice to You.
Customer may purchase or rent equipment from Voifinity for use with the Services. The terms and conditions that govern any such transaction can be found at:
- (i) Purchase: https://www.voifinity.com/legal/Voifinity-hardware-terms-conditions.html
- (ii) Rental. https://www.voifinity.com/legal/lease-rental.html
3. Customer Security Policy
The Services must be used in accordance with Voifinity’s Acceptable Use Policy, available at https://www.voifinity.com/legal/customer-security-policy.html.
4. Service Requirements and Limitations
- IP Network Sufficiency
You acknowledge and agree that: (i) the Plan Services require a properly-configured, high performance, enterprise-grade broadband IP network and connection; (ii) use of the Plan Services with any lesser network, services, or connection may result in partial or complete unavailability, interruption, or underperformance of the Plan Services or other services utilizing the same network, services, or connection; and (iii) 3G, LTE or 4G networks are not recommended for use with the Plan Services. Accordingly, You agree to provide and maintain, at Your cost, an IP network, services, and connection meeting the foregoing standard and all equipment necessary for the Plan Services to connect to and use such network, services, and connection. Voifinity is not liable for any unavailability, interruption, or underperformance of the Plan Services related to Your IP network or connection.
IMPORTANT INFORMATION: If You IP network or connection fails, Your Plan Services will also fail. Your Plan Services may cease to function if there is a power cut or failure. These failures may be caused by reasons outside of Voifinity’s control.
- Caller ID Display Limitations and Compliance
You acknowledge and agree that the disclosure and/or display of information related to the origination of calls, messages, and other communications (including without limitation “Caller ID” information) may be subject to legal requirements, including without limitation those related to the accurate display of such information or the enforcement of certain privacy instructions, settings, etc. You agree to comply with all such applicable Laws and implementing regulations, including without limitation the Truth in Caller ID Act. Voifinity has no obligation to disclose, display, or transmit any such information for or in connection with any Customer Communication. You agree to indemnify and hold harmless Voifinity from any and all third party claims, losses, damages, fines, or penalties arising out of Your breach of this Section.
- Operator Assisted Calling, 311, 511 and other X11 Calling
Voifinity does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900, or calling card calls). Your Plan Service may not support 211, 311, 411, 511, and/or other N11 calling (except as otherwise provided in these TOS) in one or more service areas.
- Voice-to-Text and Text-to-Voice
You acknowledge and agree that: (i) any and all Voice/Text Features are provided merely as a convenience and may not accurately transcribe voice content, articulate text messages, or perform such functionality for all voice content or text messages or for the entirety of voice content or text messages; (ii) neither You nor any End User may rely on any Voice/Text Feature to perform such accurate transcription or articulation; and (iii) You and all End Users shall be responsible for reviewing and/or listening to the original content of any Customer Communication or other media as necessary or appropriate to prevent You, any End User, or any other party from incurring any cost, expense, liability, loss, damage, or harm.
- Use of Third Party Devices
Voifinity does not guarantee or make any representation or warranty that any IP Desk Phones and/or other equipment related to IP Desk Phones which are not purchased through or supplied by Voifinity or its designated third-party vendor will work or be compatible with the Plan Services or support the Plan Services’ full performance or quality of service potential or range of features and functionalities.
- Use of Mobile Application
The Voifinity Mobile Application can be configured to make or receive calls on Your 3G, LTE, or 4G network using Your data service, and may result in additional data usage fees from Your mobile service provider. You can disable 3G/LTE/4G calling by configuring the Mobile Application to make/receive calls only over a wi-fi connection. Configuring the Mobile Application to disable VoIP calling will result in Voifinity making/receiving calls using Your voice connection from Your mobile service provider; this may result in additional voice minute usage fees from Your mobile service provider.
5. Use Policies
Customer and its End Users may use the Services only in compliance with this Agreement, applicable Law, and the Use Policies referenced below, which are incorporated into and form part of this Agreement. Customer may not use, or permit the use of the Services, to interfere with the use of Voifinity’s service by others or with the operation of the Voifinity Network. Customer may not resell the Services. Customer must ensure that its End Users comply with the Use Policies. Any breach of this Section (Use Policies) will be deemed a material breach of this Agreement.
Voifinity may update the Use Policies from time to time, and will provide notice to Customer at the email address on file with the Account. Such updates will become effective thirty (30) days after such notice to Customer.
- High Risk Use
YOU ACKNOWLEDGE THAT THE PLAN SERVICES ARE NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. YOU REPRESENT AND WARRANT THAT YOU AND YOUR END USERS WILL NOT USE THE PLAN SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT.
- Acceptable Use
NEITHER YOU NOR ANY OF YOUR END USERS SHALL USE THE PLAN SERVICES FOR ANY ILLEGAL, FRAUDULENT, IMPROPER, OR ABUSIVE PURPOSE OR IN ANY WAY THAT INTERFERES WITH VOIFINITY’S ABILITY TO PROVIDE HIGH QUALITY SERVICES TO OTHER CUSTOMERS, PREVENTS OR RESTRICTS OTHER CUSTOMERS FROM USING THE SERVICES, OR DAMAGES ANY VOIFINITY’S OR OTHER CUSTOMERS’ PROPERTY.
A breach of obligations in this Section 5 (Use Policies) constitutes a material breach of these TOS, such that Voifinity may suspend service, terminate the Agreement immediately, or take any other action Voifinity deems necessary to provide the Plan Services to you and others; to protect you, the Plan Services, and the Voifinity networks; and to enforce the terms of this Section.
Neither You nor any End User may use or allow use of the Plan Services in any of the following ways:
- (i) Illegal or inappropriate behavior. Using the Plan Services in any manner that is in violation of applicable Law, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious, or invasive of another’s privacy.
- (ii) Distracted driving. You are responsible for the safe use of the Plan Services for any End User accessing Your account. You shall require the End Users of Your Plan Services to become familiar and comply with all local laws before using a wireless device and mobile applications while operating a motor vehicle. Never text or use text-based messaging while driving. For more information see www.nhtsa.gov (click on “Driving Safety” then on “Distracted Driving”).
- (iii) Spamming. Sending messages or advertisements, including email, voicemail, SMS, or faxes, without the consent of the recipient or otherwise in violation of applicable Law.
- (iv) Blasting. Intentionally engaging in blasting or broadcasting bulk communications, advertisements, or messages, including without limitation through email, voicemail, SMS, facsimile, or internet facsimile, except where expressly permitted herein.
- (v) Harvesting information. Harvesting or otherwise collecting information about others, including email addresses, without their consent or in breach of applicable data protection or privacy laws.
- (vi) Auto-dialing. Performing 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, or in an excessive or otherwise abusive manner.
- (vii) Transmitting viruses. Negligently, recklessly, knowingly, or intentionally transmitting any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous.
- (viii) ID spoofing. Creating a false Caller ID identity (“ID spoofing”) or forged email/SMS addresses or headers, or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the Plan Services.
- (ix) Infringement of rights. Transmitting any material that may infringe, misappropriate, or otherwise violate the Intellectual Property rights, rights of privacy, personality, or publicity or other rights of Voifinity or third parties, including but not limited to the display or use of any Voifinity Mark in any manner that violates Voifinity’s then-current policies on its trademark and logo usage or without Voifinity’s express prior written permission, or display or use of any Third-Party Mark without the prior written permission of the third party that owns any such Third-Party Mark.
- (x) Derivative Works. Undertaking, directing, attempting, causing, permitting, or authorizing the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Plan Services or any other software or hardware provided by Voifinity and used in conjunction with the Plan Services.
- (xi) Illegal communications. Transmitting any communication that would violate any applicable Law, or using the Plan Services to facilitate any illegal activity.
- (xii) Excessive usage. Utilizing the Plan Services in excess of what, in Voifinity’s reasonable discretion, would be expected of normal business use.
- (xiii) Interfering with another customer’s use of the Plan Services. Using the Plan Services in any way that interferes with, disrupts, prevents or restricts other customers’ and third parties’ use and enjoyment of the services.
- (xiv) Network Interference. Interfering with, or disrupting, networks or systems connected to the Plan Services.
- (xv) Avoiding compliance. Using or employing methods and/or devices that are designed or likely to take advantage of, bypass, exploit, or otherwise avoid compliance with the Agreement or applicable Law.
- (xvi) Granting rights to third parties with respect to the Plan Services. Selling; reselling; distributing; leasing; exporting; importing; or otherwise granting or purporting to grant rights to third parties with respect to the Plan Services, and any software or hardware used in conjunction with the Plan Services or any part thereof without Voifinity’s prior written consent.
- (xvii) Unauthorized usage. Undertaking, directing, attempting, causing, permitting, or authorizing the copying, modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Plan Services or any software and hardware used in conjunction with the Plan Services, or part thereof.
- (xviii) Circumvention of security measures. Defeating, disabling, or circumventing any security mechanism related to the Plan Services.
- (xix) Interception. Intercepting, capturing, sniffing, monitoring, modifying, emulating, decrypting, or redirecting, any communication or data for any purpose, including, without limitation, by causing any product to connect to any computer server or other device not authorized by Voifinity or in any manner not authorized in advance in writing by Voifinity.
- (xx) Unauthorized repair. Allowing any service provider or other third party – with the sole exception of Voifinity’s authorized maintenance providers acting with Voifinity’s express, prior authorization – to use or execute any software commands that facilitate the maintenance or repair of any software or hardware used in conjunction with the Plan Services.
- (xxi) Unauthorized Access. Gaining access to or using (or attempting to gain access or use) any device, system, network, account, or plan in any unauthorized manner (including without limitation through password mining).
- (xxii) Trunking. Engaging in or to allowing trunking or forwarding of Your Voifinity 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.
- (xxiii) Traffic Pumping. Engaging on or allowing traffic pumping or access stimulation of calls through Your Plan Services or the Voifinity systems.
- (xxiv) Using any Voifinity Mark without consent. Displaying or using any Voifinity Mark in any manner in violation of the applicable Voifinity Party’s then-current policies on its trade mark and logo usage or without the applicable Voifinity Party’s express, prior written permission, to be granted or denied in that Voifinity Party’s sole discretion.
- (xxv) Using any Third Party Mark without consent. Displaying or using any Third Party Mark without the prior, written consent of the third party that owns the Third Party Mark.
- (xxvi) Protected Health Information. If You qualify as a “covered entity,” “business associate,” or “subcontractor” under HIPAA or are otherwise subject to HIPAA: (1) transmitting, receiving, or storing protected health information (“PHI”) on a non-temporary basis, transmitting or receiving PHI; or otherwise using the Plan Services without the Voifinity HIPAA Conduit setting being active and in effect.
- Customer Legal Compliance
You represent and warrant that all use and Usage of the Plan Services, and Your Account(s), will at all times comply with all applicable Laws, including but not limited to the rules, policies and regulations of the Federal Communications Commission (“FCC”) or the Canadian Radio-Television and Telecommunications Commission (“CRTC”), as applicable, and all Laws relating to Do-Not-Call provisions; unsolicited marketing; telemarketing; faxing; 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, Canada, 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 – are 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, and in Canada by the CRTC pursuant to Canada’s Anti-Spam Law (“CASL”) (available at http://laws-lois.justice.gc.ca/eng/acts/E-1.6/index.html).
You agree, represent and warrant that:
- i). 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 Your Plan Services (“Customer Communication”);
- ii). All content, communications, files, information, data, and other content provided for transmission through Your Office Plan, and Account, or the Plan Services 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, CASL, or any other Law; and
- iii). 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 Plan Services.
At Voifinity’s sole option and without further notice, Voifinity 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 Voifinity, 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, Junk Fax Prevention Act, CASL, 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 Plan Services.
- Export Restrictions
You acknowledge and agree that the software and/or hardware used in conjunction with the Plan Services may be subject to Canada, United States 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 End 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 Voifinity 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 Plan Services and Voifinity software and/or hardware will not be Used or accessed from any Embargoed Area.
- Recording Conversations or Calls
Certain features of the Plan Services may allow You or users of the Plan Services 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, province to province, and country to country. You should consult with an attorney prior to recording any communication, as some jurisdictions may require the prior consent of all parties to a recorded communication. You represent, covenant, and warrant that You will review all applicable Laws before You use or allow use of the Plan Services to record any 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 call recording Laws may be subject to criminal or civil penalties.
Voifinity expressly disclaims all liability with respect to Your recording of telephone conversations. You agree to indemnify and hold harmless Voifinity, 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. Voifinity expressly disclaims all liability and all warranties with respect to recording of conversations and/or calls.
6. Number Policies
The provision, use, and publication of numbers used in conjunction with the Services are governed by Voifinity’s Numbering Policies, available at https://www.voifinity.com/legal/policies/numbering-policy.html.
7. Plan Credits,Charges and Taxes
Please note that all prices, Taxes, surcharges, and fees are subject to change at any time, except to the extent such charges are set by agreement between You and Voifinity for a specified term. You are responsible for paying all charges for Your Account, including but not limited to toll -free, local, long distance, international minutes, additional feature charges, 411 and operator assisted charges, directory assistance charges, and for all Taxes, surcharges, and fees imposed on Your Account or us as a result of Your use of the Plan Service. Customers with a past due balance on previous or multiple accounts will be charged the full balance, including but not limited to any Taxes or Fees as defined in this TOS, any late fees, service change fees, and fees for chargebacks or returned checks, upon opening a new account or updating their credit card information on file.
All prices are identified in US dollars on the website or Account Management portal. Additional charges may result if Customer activates additional features, exceeds usage thresholds, or purchases additional Services or equipment. Customer will be liable for all charges resulting from use of the Services on its Account.
Recurring charges for the Services begin on the Start Date, and will continue for the Term. Recurring charges (such as charges for Digital Lines, product licenses, minute bundles, and equipment rental fees) will, once incurred, remain in effect for the then-current Term. Voifinity will provide notice of any proposed increase in such charges no later than thirty (30) days before the end of the Initial Term or then-current Renewal Term, and any such increase will be effective on the first day of the next Renewal Term. Administrative Fees that Voifinity is entitled to pass on to its customers as a surcharge pursuant to applicable Law may be increased on thirty (30) days’ written notice.
Outbound calling rates will be applied based on the rate in effect at the time of use. Customer may locate the currently effective rates in the Account Management portal.
- Charges and Plan Credits
Voifinity offers several different plan options for Plan Service. You may change Your Plan Service plan at any time; In addition, certain plans may entitle You to receive discounts on equipment used in connection with Voifinity Plan Service. If You receive any equipment discounts associated with a Plan Service plan and subsequently change that plan to one that does not offer those equipment discounts, You agree to reimburse Voifinity, and hereby authorize Voifinity to charge Your credit card on file, or invoice You, as applicable, for such equipment discounts.
- Service Availability
You acknowledge and agree that the products or services, including without limitation the Plan Services, may not be available one hundred percent (100%) of the time. Credit allowances for interruption of the Plan Services may only be provided on a case-by-case basis at the sole discretion of Voifinity and shall be Your sole remedy for any Plan Services interruptions or other issues with the Plan Services.
- Plan Credits and Minutes
Voifinity offers several different plans for its products and services. Some of the plans provide for a fixed number of monthly usage minutes (“Plan Credits“). If You exceed Your monthly Plan Credits during the course of a Service month, You may purchase additional Plan Credits as needed. Voifinity may also provide You certain bonus credit minutes and/or other promotional incentives upon fulfillment of the applicable promotion requirements. All of the Plan Credits are quoted in terms of domestic minute usage, and may be referred to on the Voifinity website or by a Voifinity Customer Service representative as “minutes”. As explained below, international calling may be charged at a different rate than domestic calling, and a Plan Credit “minute” therefore will not entitle You to a minute of international calling (“International Minutes”).
- Metered Calling Plans
Voifinity offers several monthly metered plans for some of its products and services. Each metered calling plan provides You with a toll-free or local telephone number and a fixed number of Plan Credits each month for a monthly fee, excluding Taxes, surcharges, and fees. When You exhaust Your initial paid allotment of Plan Credits for Your metered plan, unless You advise Voifinity otherwise in writing, Voifinity will automatically bill Your Account for the smallest available bundle of Plan Credits for the applicable service. Additional minute usage will be debited at the applicable per minute rate(s) for Your metered plan. However, in some limited instances, calls placed under a metered plan may not be counted against Your monthly allotment (e.g., calls made via a local phone number to leave or check voicemail or configure a system and calls answered on the Voifinity Softphone). Please check the details of Your metered plan to determine which calls (if any) are not counted against Your monthly minute allotment. For international calling, international rates will apply.
- Unlimited Plan
Voifinity offers unlimited monthly plans for some of its products and services. “Unlimited” does not refer to types prohibited by these TOS, including trunking, access stimulation, reselling of the Plan Services, etc. All unlimited plans are subject to fair usage and the terms and restrictions of these TOS. If, for any reason, Voifinity believes that Your usage of the unlimited plan and services violates these TOS, then Voifinity may, in its sole discretion with or without notice, either terminate Your unlimited plan, suspend the Plan Services, or immediately convert Your unlimited plan to a metered plan, as set forth above.
- Value, Ownership, and Expiration of Credits or Minutes
In no event shall any Toll-Free Minute, International Minute Credit, Billing Credit, Plan Credit, or any other type of credit or minute issued to You or applied to an Account (collectively “Account Credits”) have any monetary value or be exchangeable or exchanged for cash. Account Credits may be applied to only the Account for which they were purchased and/or provided, and may not be sold, transferred, assigned, or applied to any other Account, account, plan, or customer. Credited Toll-Free Minutes not applied to Usage of the applicable Account during the monthly billing cycle for which they are credited shall expire at the end of such cycle and shall in no event be available for application to Usage occurring during (or “roll over” to) any other period. Other Account Credits shall expire according to the terms of their purchase or provision.
From time to time in its sole discretion, Voifinity may offer promotions or discounts. Any promotion or discount codes must be provided to Voifinity upon purchase of the Plan Services. You are not entitled to a subsequent credit for any promotions or discounts if You do not request the promotion or discount credit at the time of Account creation or change of service. Promotions and/or discounts may not be used cumulatively or retroactively.
8. Billing and Payment
All Services and equipment must be purchased via valid credit or debit card at the time of purchase. By providing a valid credit or debit card, Customer is expressly authorizing all Services and equipment charges and fees to be charged to such payment card. Recurring charges are billed to the credit or debit card associated with your Account monthly in advance for those Services and equipment in the following month. Credit and debit card payments are subject to the approval of the card issuer, and Voifinity will not be liable in any way if a card issuer refuses to accept a credit or debit card for any reason. Customer is responsible for any credit card chargeback or similar fees for refused or rejected payments that Voifinity is entitled to charge under this Agreement. If the payment card associated with Customer’s Account is declined or fails for any reason, Voifinity will send Customer a notice using the contact information associated with Customer’s Account. Voifinity may continue to attempt charging Customer’s payment card for outstanding charges and additional fees along with any other rights and remedies available to Voifinity under this Agreement, at law or in equity.
Unless otherwise stated at the time of purchase or on the billing statement, payment is due in full, without deduction or set-off, within thirty (30) days of the date on the billing statement. Any payment not made when due may be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month; or (ii) the highest rate allowed by Law. Voifinity’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly)) will not waive, limit, or prejudice in any way Voifinity’s rights to collect any amount due. Voifinity may terminate the Services and this Agreement for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
- Plan Services Fees
The initial Order sets forth the base recurring fees for the Plan Services and the number of minutes of inbound Usage of any toll-free number(s) assigned to an Account, if any, that are included in the Plan Services Fees for each monthly billing cycle. Any applicable initiation charges, monthly recurring charges, support charges, Taxes, and other fees are billed in full in advance. Termination, Usage, international minutes, equipment return fees and transfer charges, if any, are billed in arrears. Upon termination of Your Account for any reason, all unused Account Credits shall expire in their entirety on the termination date. No refund, transfer or proration shall be made of any unused Account Credits.
- Taxes and Fees
All fees for Services advertised or otherwise listed on the Voifinity website are exclusive of any Taxes. You agree to pay all Taxes and similar liabilities that may now or hereafter be levied on the Plan Services and related software or hardware by any federal, state, provincial, local, or international law or regulation, as well as any administrative and recovery fees and charges levied on the Plan Services by Voifinity, whether or not mandated by law or regulation. Should Voifinity pay or be required to pay such liabilities (including any Taxes that were due but not charged or previously collected), You agree that Voifinity may charge Your credit card on file or invoice You, as applicable, for such payments upon receipt of an invoice and showing of indebtedness to Voifinity.
- Billing for Mid-Year Transactions
In the event that any purchase, transaction, or event involving or resulting in an annually-incurred Plan Services amount occurs subsequent to the beginning of an annual billing cycle, Voifinity may at that time bill You a pro-rated amount for the remainder of the then-current cycle and thereafter bill You conterminously with each subsequent cycle.
- Late Fees
You agree and acknowledge that time is of the essence for payment of all fees and charges. Any fees or charges not paid when due shall incur interest at a rate of the lesser of: (i) eighteen percent (18%) per annum; or (ii) the highest rate allowed by Law. Voifinity’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as “Paid in Full,” “Accord and Satisfaction,” or similarly)) shall not waive, limit, or prejudice in any way Voifinity’s rights to collect any amount due. Voifinity may terminate the Plan Services these TOS for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
- Form of Payment
All fees and charges are payable to Voifinity by check, ACH, Wire or credit card or debit card. You agree to be liable for a processing fee in the amount of the lesser of: (i) fifty dollars ($50.00); or (ii) the highest amount allowed by Law for any credit card chargeback or check or other payment returned for nonpayment.
When You subscribe to Plan Services, You will provide us with a payment method, such as a valid credit card or information for invoicing (if You are pre-approved by Voifinity in its sole discretion to be billed via invoice, and Voifinity reserves the right to revoke such approval and switch You to credit card billing in its sole discretion), and, if applicable, authorize us to collect from the payment method provided. Any authorization to charge a provided credit card will remain valid until thirty (30) days after You withdraw the authorization, or immediately upon provision of a replacement valid credit card. Upon termination of this Agreement, we will charge You any fees and any other outstanding charges and disconnect Your service. You agree to advise and notify us of any changes to Your payment method, such as credit card account number or expiration date changes. If the credit card or other payment method on Your Account is declined or fails for any reason, Voifinity will use reasonable efforts to contact You and advise You of the failed billing attempts. Notwithstanding the foregoing, Voifinity reserves the right to disconnect Your Service and terminate Your Account if Your payment method is declined or fails for any reason, or if You withdraw authorization to charge a valid credit and do not provide an alternative payment method, and Voifinity reserves the right to continue to attempt charging Your credit card for any outstanding Service charges and additional fees and pursue any other legal remedies available to Voifinity.
- Billing Disputes
You will waive the right to dispute any billed amount if You do not dispute such amount within thirty (30) days of the date of its billing. If You fail to provide a written statement explaining in reasonable detail Your reasons for disputing the charge within such time period, You hereby irrevocably waive any objection and further recourse with regard to such charges. In the event that You timely dispute a billed amount and Voifinity confirms that You were over-billed, Voifinity shall credit the applicable Account in the amount of the over-billing (“Billing Credits”). Billing Credits shall be Voifinity’s sole and exclusive obligation and Your sole and exclusive remedy with respect to any erroneous billing.
Notwithstanding the foregoing, if You request that Your bank or credit card company perform a chargeback or decline to process a check without first contacting Voifinity to dispute the charge, and Voifinity subsequently determines that the charges at issue are not erroneous, Voifinity reserves the right to terminate Your Account immediately and take any available legal action.
You are solely liable for any transactions or usage on Your Account, whether by You, any End User, or any other user of Your Plan Services, and in no event shall Voifinity be liable for any unauthorized use of Your Account.
If a Customer reasonably and in good faith disputes any portion of Voifinity’s charges, it must provide written notice to Voifinity within thirty (30) days of the billing date, identifying the reason for the dispute and the amount being disputed. Customer’s dispute as to any portion of the billing statement will not excuse Customer’s obligation to timely pay the undisputed portion of the billing statement. Upon resolution, Customer must pay any unpaid amounts within thirty (30) days. Any amounts that are found to be in error resulting in an overpayment by the Customer will be applied as a billing credit against future charges. Customer will be reimbursed any such outstanding billing credits at the expiration or termination of this Agreement.
9. Data Privacy, Access, and Retention
- Data Privacy
The Parties acknowledge and agree that: (i) Voifinity’s role with respect to any personal identifiable information You or Your End Users transmit, receive, and/or store through the Plan (“Customer Personal Data”) is governed by the Voifinity Privacy Notice.
- Disclaimer of Data Storage Responsibilities
You acknowledge and agree that: (i) neither Voifinity nor any Voifinity affiliated entity or third-party service provider shall have any obligation to store, retain, back-up, or ensure the availability of any stored Customer Communications, Customer Personal Data or Account Data; (ii) to the extent that You wish to retain any Customer Communications, Customer Personal Information or Account Data or other information relating to Your Plan Services or Your Account(s), You shall ensure that such information is downloaded, saved, and/or backed-up outside of Your Plan Services or Account(s), as necessary or appropriate for Your and/or the End Users’ purposes; (iii) You shall not rely on Your Plan Services or Account(s) as a repository for or means by which to retain, store, or back-up Customer Communications, Customer Information Data or Account Data or any other data, information, or materials; (iv) Voifinity may delete or purge any and all copies and versions of any stored Customer Communications, Customer Personal Information or Account Data or other data at any time, without notice, including without limitation after You delete any such information from an Account or after termination of the TOS or closure of an Account; and (v) Voifinity may, in its sole discretion and option and without notice, implement reasonable limits as to the size or duration of storage of Customer Communications, Customer Personal Information or Account Data.
- Access to Data
You and Your End Users can obtain any stored Customer Communications, Customer Personal Information or Account Data with Your login credentials in the relevant Voifinity Administrative or Customer Portal. You acknowledge and agree that, notwithstanding anything to the contrary in these TOS, Neither Voifinity nor any Voifinity affiliates nor third-party service provider: (i) shall have no obligation to access, view, listen to, watch, or review any stored Customer Communications, Customer Personal Information or to perform any task or undertake any role that would entail or require any of the foregoing; (ii) may not have access to stored Customer Communications, Customer Personal Information or Account Data, or such access may be incomplete, limited, restricted, or subject to certain conditions; and (iii) Voifinity, its affiliates and third-party service providers’ shall have the right to limit, restrict, condition, or eliminate the ability of any party to access any stored Customer Communications, Customer Personal Information or Account Data in its sole discretion and without notice.
You acknowledge and agree that the Plan Services do not include the performance of any of the following tasks or work by Voifinity, and in no event shall Voifinity be obligated under these TOS to perform any of the following tasks or work: (i) the investigation, access, correction, alteration, gathering, compilation, review, verification, or production of any Account Data, Customer Communications, or any other records, documents, information, or evidence related to You or Your Plan Services or transmitted, received, or stored through an Account; (ii) the provision of legal or other counsel; or (iii) the provision of assistance, cooperation, or information beyond that which is directly and specifically related to Voifinity’s fulfillment of its obligations under these TOS or pursuant to applicable law.
For the avoidance of doubt, except as provided herein or required by Law, Voifinity is not obligated to: (i) determine, prove, or disprove any fact or claim; (ii) pursue or defend against any claim, allegation, action, lawsuit, demand, or proceeding; (iii) substantiate any party’s compliance with any Law or Legal Process; (iv) respond to or comply with any request or demand; (v) identify any party; or (vi) conduct any surveillance.
- Export of Data
You acknowledge and agree that: (i) any stored Customer Communications, stored Customer Personal Information or Account Data, or other information or materials that You export will not be under Voifinity’s control and will not be subject to or protected by Voifinity’s security controls; (ii) linking or integrating Your Plan Services or Accounts(s) to or with any external service, environment, account or repository (including without Dropbox, Box, Google Drive™, and OneDrive®) constitutes such exportation and Voifinity shall have no responsibility for, and makes no representation or warranty regarding, the security, privacy, or functionality of any such linked or integrated external service, environment, account or repository. You and Your End Users, as applicable, shall comply with all applicable Law relating to the use, disclosure, access, or export of data from Your Account(s).
You hereby release, discharge, and hold harmless Voifinity from and against any and all liability relating to or arising from its acts or omissions in accordance with this Section entitled “Treatment of Customer Communications, Content, and Account Data.”
10. Voifinity and HIPAA
- No Storage of Personal Health Information.
You acknowledge and agree that the use of Plan Services are not designed, intended, or recommended for use as a repository or means by which to store “protected health information,” as defined under the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and similar legislation in other jurisdictions, and the regulations promulgated pursuant thereto (such laws and regulations, “HIPAA”; such information, “PHI”) on a non-temporary basis, and You represent and warrant that neither Your Plan Services nor any ancillary product or service that is a part thereof will be used for such purpose. VOIFINITY SPECIFICALLY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT YOUR PLAN SERVICES, THE ACCOUNT(S), OR THE PRODUCTS (OR THE USE OF ANY OF THE FOREGOING BY ANY PARTY) COMPLIES OR WILL COMPLY WITH HIPAA OR ANY OTHER LAW OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA OR ANY OTHER LAW.
You hereby release, discharge, and hold harmless Voifinity from and against any and all liability relating to or arising from its acts or omissions in accordance with this Section entitled “Voifinity and HIPAA.”
11. Account Disputes
- Account Disputes
The Account owner shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Plan Services with Voifinity. If no legal entity is provided upon sign-up, the Account owner shall be the owner of the credit card used to open the Account. Subsequent changes to ownership must be supported by appropriate legal documentation.
You agree that in no event shall Voifinity be obligated to – and in no event shall You request that Voifinity – participate in or act as the arbiter, adjudicator, or intermediary with respect to any claim or dispute relating to the ownership or control of, or rights relating to, Your Plan Services, any Account, any numbers assigned to an Account, or any Account Data or other information related to an Account or Your Plan Services (“Account Ownership Disputes”). In the event of any Account Ownership Dispute, Voifinity is authorized to take any course of action that it deems to be appropriate, including without limitation declining to take any action.
- Access to Account Data or Customer Communications
As permitted or required by Law, Voifinity may access, monitor, use or disclose Your Account Data, Customer Communications, and/or Customer Personal Information for the purposes including but not limited to
You agree to release, discharge, and hold harmless Voifinity from and against any and all liability relating to or arising from their acts or omissions related to any Account Ownership Dispute or in seeking to comply with any Law or any Legal Process.
12. Customer Support and Feedback
If You have a customer support issue, You may visit http://success.Voifinity.com or open a case with Voifinity Global Customer Care (“Customer Care”) at http://success.Voifinity.com/RCContactSupp. Any End User contacting Customer Care may be required to provide certain verifying information (e.g., the answer to a security question on file) to receive support from Customer Care, and Customer Care may limit the level of support that it will provide or scope of information that it will disclose or confirm to any inquiring End User based on the scope of his or her Account rights or permissions.
- Basic Customer Support Services
Voifinity will make basic customer support available to its customers via its call center, which will be available to attempt to resolve technical issues with and answer questions regarding the implementation or use of the Plan Services. Basic customer support services shall not include, and Voifinity shall have no obligation hereunder to perform, any of the following: (i) on-site support; (ii) implementation of any software or hardware; (iii) configuration of any device; (iv) dedicated representative support; or (v) network or third party equipment support.
For clarity, any customer with more than one hundred (100) employees shall be responsible to provide Help Desk support to End Users. Helpdesk support (hereinafter “Helpdesk”) means the logging of calls, managing End User’s relations and answering initial inquiries including technical questions about the Plan Services that require an explanation of a feature, function, error message, installation or system administration. The Helpdesk support will be responsible to take and evaluate a reported technical issue, resolve any issue within its control, and when unable to fix the problem, may route the issue to Voifinity. Helpdesk will act as the interface between Voifinity and the End Users. Voifinity may require customer’s Helpdesk support personnel to complete a series of training courses on Voifinity’s products.
- Premium Customer Support Services
Additional premium customer support services are available to customers who have at least two hundred fifty (100) employees, at an additional cost and subject to additional terms and conditions related to Voifinity’s professional services. Please contact your sales representative or Customer Care to inquire about implementation services or premium support services.
- Customer Support Surveys and Feedback
From time to time, Voifinity may send its customers surveys, comment cards, customer satisfaction forms, or other requests to provide feedback. You hereby grant Voifinity, its licensors, and suppliers a perpetual, unlimited, worldwide fully-paid up, royalty free license to use all feedback, answers, ideas, comments, or other information You provide to Voifinity in response to any such requests.
- i) Customer must provide all first-tier support to Customer’s End Users. Voifinity may require Customer’s Helpdesk support personnel to complete a series of training courses on Voifinity’s Services. Such training will be provided online by Voifinity at no cost.
- ii) Voifinity will make second-tier remote support available to Customer’s Helpdesk personnel and/or Account Administrators via Voifinity Customer Care call center, which will be available 24/7, to attempt to resolve technical issues with, and answer questions regarding the use of the Services. Onsite and implementation services are not included in the Voifinity Customer Care support.
- iii) Customer may open a case with Voifinity Customer Care at https://success.Voifinity.com/RCContactSupp. Any individual contacting Customer Care on behalf of Customer must be authorized to do so on behalf of the Account, and will be required to follow Voifinity’s authentication protocol.
Voifinity may provide any of the Services hereunder through any of its Affiliates or subcontractors, provided that Voifinity will bear the same degree of responsibility for acts and omissions for those subcontractors acting on Voifinity’s behalf in the performance of its obligations under this Agreement as it would bear if such acts and omissions were performed by Voifinity directly.
13. Additional Terms and Conditions for Voifinity Global Office
If You have subscribed to Voifinity’s Global Office (“VGO”), this section sets forth additional terms and conditions concerning VGO.
Additional updates or notices related to Your services in VGO countries are available at http://www.Voifinity.com/legal/policies/global-office-countries.html.
- Registered Address Required.
A Registered Address is required in most jurisdictions. You and Your End Users shall use the Plan Services at the Registered Address provided for the relevant Digital Line.
- Emergency Service Limitations.
Voifinity provides access to emergency calling services in many, but not all, countries in which VGO is available, allowing most Voifinity Office Users to access Emergency Services (911 in the United States and Canada, 999/112 in the United Kingdom and throughout the European Union, 999/995/993 in Singapore, and any other applicable Emergency Services number). Your access may differ depending on Your location or the device You are using, and it works differently than You may have experienced using traditional wireline or wireless telephones. Access to emergency calling services in VGO countries, where available, is subject to the limitations set forth in Section 1 (Operation and Limitations of the Voifinity 911 Service) above. It is strongly recommended that You have an alternative means for placing emergency calls available at all times.
- Disclaimer of Liability for Emergency Services in VGO Countries.
You represent and warrant that You have made available and will maintain at all times traditional landline and/or mobile network telephone services that will enable users of Your Plan Services to call 911/112/999 and/or any other applicable Emergency Services number. You represent and warrant that You will not use the Plan Services in environments requiring fail-safe performance or in which the failure of the Plan Services could lead directly to death, personal injury, or severe physical or environmental damage.
Accordingly, You agree that Voifinity shall not be responsible or liable for—and agree to fully, finally, and forever release, discharge, indemnify, and hold harmless Voifinity from and against any claim based on, resulting from, or relating to—any acts or omissions related to the handling of, or not handling of, or response, or lack of response, to any emergency call or other communication in connection with the VGO service.
- ACCORDINGLY, YOU AGREE THAT VOIFINITY SHALL NOT BE RESPONSIBLE OR LIABLE FOR- AND AGREE TO FULLY, FINALLY, AND FOREVER RELEASE, DISCHARGE, INDEMNIFY, AND HOLD HARMLESS VOIFINITY FROM AND AGAINST ANY CLAIM BASED ON, RESULTING FROM, OR RELATING TO- ANY ACTS OR OMISSIONS RELATED TO THE HANDLING OF, OR NOT HANDLING OF, OR RESPONSE, OR LACK OF RESPONSE, TO ANY EMERGENCY CALL OR OTHER COMMUNICATION IN CONNECTION WITH THE VGO SERVICE.
- VGO Service Provided in Connection with Home Country Service.
Voifinity will provide VGO Service to You only in connection with Your Plan Service in the Home Country. You represent and warrant that: (i) You have a presence in the Home Country and will continue to have a presence in the Home Country throughout the term of these TOS; and (ii) that Your purchase of Voifinity Service is in connection with Your subscription to Plan Services in the Home Country. Voifinity may immediately terminate Your VGO Service if You no long have any lines or Plan Service in the Home Country.
You acknowledge and agree that all billing for the VGO service will be done in the Home Country using the Home Country’s currency. Customer agrees, at all times during the term of these TOS, to provide a billing address located in the Home Country.
You acknowledge and agree that all documentation, licenses, and services in connection with Voifinity Service will be provided only in English and governed by the Law of the Home Country.
- Relationships with Local Providers.
In connection with the provision of the Global Office Services, Voifinity relies on local providers to supply certain regulated communication services to you, for example (i) for the provision of local telephone numbers within local jurisdictions, (ii) to enable you to place local calls within local jurisdictions, and (iii) to enable You to receive calls from non-Voifinity numbers on Your Global Office telephone number, by connecting with the local public switched telephone network. You hereby appoint Voifinity as your agent and attorney, and such appointment is coupled with an interest and is irrevocable, to conclude and enter into agreements with Local Partners on your behalf to obtain such services from the local provider.
Compliance with the terms of this Agreement is essential to legally obtaining Global Office services. You represent and warrant at all times that you shall not do or omit to do anything which may cause Voifinity to breach or violate any applicable Law, or otherwise expose Voifinity to liability.
14. Service and Promotional Communications and Publications
- Erroneous Product Information
In its marketing, advertising, offering, and sale of the Plan Services, Voifinity attempts to describe the Plan Services as accurately as possible. Nevertheless, Voifinity does not warrant that any such information about Plan Services, including related software and hardware, is accurate, complete, reliable, current, or error-free. It is possible that such may be inaccurate or out-of-date, such as listing erroneous or out-of-date pricing information or referring to services or features that are no longer available. Such information is provided only for customers’ convenience and is not part of these TOS, any agreement for the purchase of Plan Services, or any other agreement with Voifinity.
- Voifinity Communications
You agree that Voifinity may send, or have sent, to You, Account Administrators, contacts, and/or End Users Service Communications, and Marketing Communications. Voifinity shall not send Marketing Communications to You or Your End Users without providing prior notification and the right to opt out. You hereby consent to Voifinity’s distribution of Service and Marketing Communications in accordance with this Sub-Section 14(B) entitled “Voifinity Communications”. In the event that You or any End User provides Voifinity with any feedback, answers, ideas, comments, or other information in connection with any of the foregoing communications, You hereby grant Voifinity a perpetual, irrevocable, unlimited, worldwide, fully-paid up, royalty free right and license to use the same.
- Directory Listing Service
You acknowledge and agree that in the event that You subscribe to the Voifinity directory listing service, the information that You provide in connection with such subscription (i) may be used or reproduced by, or disclosed to, third-parties and otherwise made publicly available, (ii) Voifinity may not be able to have such information or listing removed, altered, updated, or corrected, and (iii) You and End Users may receive calls, messages, mailings, and other communications from third parties as a result of Your participation in the Voifinity directory listing service.
You represent and warrant that all information provided by You or any End User related to any subscription to the Voifinity directory listing service will be true, accurate, and up-to-date and that You shall promptly update any such information in the event that it changes or becomes inaccurate. You hereby authorize and grant Voifinity a worldwide, irrevocable, non-exclusive, royalty-free, fully paid-up license to use, disclose, transmit, publish, or publicize, in any medium or technology now or hereafter available, all information that You provide in connection with subscribing to, participating in, or using the Voifinity directory listing service. You hereby release, discharge, and hold harmless Voifinity from and against any and all liability relating to or arising from any publication or listing of information in connection with Your subscription to the Voifinity directory listing service and any third party’s use of the same.
15. Copyright Infringement
Pursuant to the Digital Millennium Copyright Act of 1998 (17 U.S.C. § 512) (the “DMCA”) upon good faith belief that copyrighted content transmitted via Voifinity is infringed, the copyright owner or its agent may send Voifinity a notice requesting removal of the infringing content or blocking access to it. Also, the DMCA allows a party against whom a notice of copyright infringement has been filed to submit a counter-notice. Notices and counter-notices must meet the then-current statutory requirements implemented by the DMCA. Notices and counter-notices may be sent to Voifinity’s registered copyright agent at our email address: legal@Voifinity.com
The notice must include: (i) an electronic or physical signature of the owner (or person authorized to act on behalf of the owner) of the copyrighted work; (ii) a description of the copyrighted work that is claimed to have been infringed upon; (iii) information reasonably sufficient to permit Voifinity to locate the copyrighted work; (iv) address, telephone number, and e-mail address of the owner of the copyrighted work; (v) a statement by the owner of the copyrighted work or its agent asserting good-faith belief that the use in question is not authorized by the copyright owner, its agent, or the Law; and (vi) a statement by the owner of the copyrighted work or its agent, made under penalty of perjury, that the foregoing information in the notice is accurate and affirming ownership of the copyright or authorized to act on the copyright owner’s behalf.
Any notice or counter-notice must be truthful and must be submitted under penalty of perjury. A false notice or counter-notice may give rise to personal liability. Parties should seek the advice of legal counsel before submitting a notice or counter-notice. Upon receipt of the notice, Voifinity may make a good faith attempt to transmit the notice to the party who has transmitted or received the allegedly infringing copyrighted work, and to transmit any counter-notification to the complaining party. Voifinity may, at its sole discretion, suspend, terminate, or disconnect ’s access to and use of the Plan Services or Account if it is deemed that such party has engaged in more than one instance of copyright infringement.
16. End User License and Restrictions.
- Limited License
- 1. Subject to, and conditional upon Customer’s compliance with, the terms of this Agreement, Voifinity grants to Customer and its End User, a limited, personal, revocable, non-exclusive, non-transferable (other than as permitted under this Agreement), non-sublicensable license to use any software provided or made available by Voifinity to the Customer as part of the Services (“Software”) to the extent reasonably required to use the Services as permitted by this Agreement, only for the duration that Customer is entitled to use the Services and subject to the Customer being current on its payment obligations.
- 2. Customer will not, and will not allow its End Users, to:
- a) Sublicense, resell, distribute or assign its right under the license granted under this Agreement to any other person or entity;
- b) modify, adapt or create derivative works of the Software or any associated documentation;
- c) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software;
- d) use the Software for infringement analysis, benchmarking, or for any purpose other than as necessary to use the Services Customer is authorized to use;
- e) create any competing Software or Services; or
- f) remove any copyright or other proprietary or confidential notices on any Software or Services.
17. Intellectual Property
Any IP Rights in the Plan Services or in any technology used in the provision thereof are and shall remain the sole and exclusive property of Voifinity and its licensors. All rights not expressly granted herein are reserved and retained by Voifinity and its licensors, and no IP Rights or other rights or licenses are granted, transferred, or assigned to You, any End User, or any other party by implication, estoppel, or otherwise. You acknowledge that misuse of the Plan Services may violate third party IP Rights in the software and/or hardware provided in conjunction with the Plan Services. You may not use or disclose any Intellectual Property or IP Rights in the Plan Services or any hardware or software related to the same except as expressly contemplated by this section.
- IP Rights
- Voifinity’s Rights
Except as expressly provided in this Agreement, the limited license granted to Customer under Section 7(A) (Limited License) does not convey any ownership or other rights or licenses, express or implied, in the Services, any related materials, or in any Intellectual Property and no IP Rights or other rights or licenses are granted, transferred, or assigned to Customer, any End User, or any other party by implication, estoppel, or otherwise. All rights not expressly granted herein are reserved and retained by Voifinity and its licensors. The Software and Services may comprise or incorporate services, software, technology or products developed or provided by third parties, including open source software or code. Customer acknowledges that misuse of Voifinity Services may violate third-party IP Rights.
- Customer Rights
As between Voifinity and Customer, Customer retains title to all IP Rights that are owned by the Customer or its suppliers. To the extent reasonably required or desirable for the provision of the Services, Customer grants to Voifinity a limited, personal, non-exclusive, royalty-free, license to use Customer’s IP Rights in the same. Customer must provide (and is solely responsible for providing) all required notices and obtaining all licenses, consents, authorizations or other approvals related to the use, reproduction, transmission, or receipt of any Customer Content that includes personal or Confidential Information or incorporates any third-party IP rights.
- Use of Marks
Neither Party may use or display the other Party’s trademarks, service mark or logos in any manner without such Party’s prior written consent.
- Use and Disclosure of Intellectual Property.
You represent, warrant, covenant and agree that You shall not disclose or use any of the Intellectual Property in the Plan Services, any software or hardware used in conjunction with the Plan Services, or any marketing materials for any purpose following termination of the Plan Services or the limited license granted thereunder to use the Plan Services. You further represent and warrant that neither You nor any End User shall reverse engineer, disassemble or decompile any prototypes, software or other tangible object which embody Voifinity’s Intellectual Property.
- New Versions of the Software
Voifinity, in its sole discretion, reserves the right to add, remove, or modify features or functions, and to provide fixes, updates and upgrades to the Plan Services without notification to you. You acknowledge and agree that Voifinity has no obligation to make available to You any subsequent versions of the Plan Services; provided, however, Voifinity shall make available to You any such features, functions, fixes, updates and upgrades and subsequent versions of the Plan Services that Voifinity makes generally available at no additional charge to customers who subscribe to the same edition of the Plan Services purchased by You. In addition, You and Voifinity acknowledge that no third-party has any obligation whatsoever to furnish maintenance or support services with respect to the Plan Services and that Voifinity is solely responsible for the provision of maintenance and support as provided in these TOS and to the extent such maintenance and support is required under applicable Law.
- Publicity Rights
You agree that Voifinity may identify You as a user of the Plan Services in its business deals, press releases, marketing materials, electronic, printed, and broadcast advertising, newsletters, mailings, tradeshows, other promotional materials, on Voifinity’s website, or any other third-party website where Voifinity or its designated agents may promote the Services. You hereby grant Voifinity and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.
18. Data Protection
- Data Privacy
Voifinity respects Customer’s privacy and will only use the information provided by Customer to Voifinity or collected in the provision of the Services in accordance with: (a) the Privacy Notice available at https://www.voifinity.com/legal/privacy-notice.html, which is incorporated by reference. Voifinity may update the Privacy Notice and the Data Protection Agreement from time to time, and will provide notice of such update to Customer at the email address on file with the Account. Such updates will be effective thirty (30) days after such notice to Customer.
- Data Security
Voifinity will take commercially reasonable precautions, including, without limitation, technical (e.g., firewalls and data encryption), administrative and physical measures, to help safeguard Customer’s Account, Account Data, and Customer Content against unauthorized use, disclosure, or modification.
Customer must protect all End Points using industry-standard security measures. Customer is solely responsible to keep all user identifications and passwords secure. Customer must monitor use of the Services for possible unlawful or fraudulent use. Customer must notify Voifinity immediately if Customer becomes aware or has reason to believe that the Services are being used fraudulently or without authorization by any End User or third party. Failure to notify Voifinity may result in the suspension or termination of the Services and additional charges to Customer resulting from such use. Voifinity will not be liable for any charges resulting from unauthorized use of Customer’s Account.
- Software Changes
Voifinity may from time to time push software updates and patches directly to Customer’s device(s) for installation and Customer will not prevent Voifinity from doing so. Customer must implement promptly all fixes, updates, upgrades and replacements of software and third-party software that may be provided by Voifinity. Voifinity will not be liable for inoperability of the Services or any other Services failures due to failure of Customer to timely implement the required changes.
19. Change in Service and TOS
- Service Changes
You understand and agree that Voifinity may make upgrades or changes to the Services which will not materially diminish the functionality of the Services without prior notice to You. In the event that a change to the Services would, in Voifinity’s reasonable discretion and judgment, permanently and materially diminish or impair the functionality of the Services (a “Change”), and such Change is unacceptable to You, You may terminate the Services without penalty within thirty (30) days of becoming aware of the Change by calling Voifinity at +1 732 227 8440. Any use of the Services after the such date will be deemed Your acceptance of the Change.
- Future Changes to these TOS
We may change the terms of these TOS from time to time upon delivery of electronic or written notices to You. Voifinity generally provides written notice of changes to Your account, including these TOS and any other legal agreements, via email, electronic notice on the Voifinity Website or Your Account Page, or on Your billing statements, or as otherwise required by applicable Law. You agree to carefully read and review each such e-mail notice, electronic notice, and billing statement from Voifinity fully regarding any such notices of changes to Your Account.
Subject to applicable Law, the modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of these TOS and become binding on You on the later of the date they are posted on the Voifinity website (www.voifinity.com) or as otherwise indicated in the notice to You. You agree that You are solely responsible for: (i) making sure that Your registered email account is current and functional: (ii) checking Your registered email account regularly; (iii) checking the Voifinity Website and Your Account page regularly; and (iv) making sure that Voifinity communications are not blocked or rendered undeliverable by You, Your computer, any software installed on Your computer, Your Internet service provider, or for any other reason.
Continued use of the Plan Services will constitute Your acceptance of the modified terms. If the terms of these TOS are amended and You do not wish to accept the modified terms, You may terminate these TOS as provided for in Section 20 entitled “Termination”.
- Promotional Services
You acknowledge and agree that in the event that Voifinity offers or provides You discounts or promotional services for Your Plan Services or an Account, Voifinity may terminate or modify the scope of such promotional services at any time without notice, unless Voifinity specifically agrees otherwise in writing in connection with its provision of the discounts or promotional services.
- Termination for Cause
Either Party may terminate this Agreement and any Services purchased hereunder in whole or part by giving written notice to the other Party if the other Party: i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of such notice; ii) at the written recommendation of a government or regulatory agency following a change in either applicable Law or the Services; or iii) upon the commencement by or against the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings or an assignment for the benefit of creditors.
- Effect of Termination
- i) If Customer terminates the Services, a portion of the Services, or this Agreement in its entirety due to Voifinity’s material breach under Section 20(A) (Termination for Cause), Customer will not be liable for any fees or charges for terminated Services for any period subsequent to the effective date of such termination (except those arising from continued usage before the Services are disconnected), and Voifinity will provide Customer a pro-rata refund of all any prepaid and unused fees or charges paid by Customer for terminated Services.
- ii) If this Agreement or any Services are terminated for any reason other than as a result of a material breach by Voifinity or as set forth in Section 14(K) (Regulatory and Legal Changes) the Customer must, to the extent permitted by applicable Law and without limiting any other right or remedy of Voifinity, pay within thirty (30) days of such termination all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services for the remainder of the then-current Term plus related Taxes and fees.
- Monthly Plan Customers.
For monthly plan customers, You may cancel or terminate Your use of the Plan Services with or without cause at any time by calling customer service at +1 732 227 8440, subject to the restrictions and fees provided in these TOS, and any additional agreements governing the products or services.
- Annual Plan Customers.
For annual plan customers, You are purchasing the Plan Service for the full length of the applicable Term. You have thirty (30) days from the date of purchase for a prorated refund. After thirty (30) days, if You terminate the Plan Services prior to the end of Your Term, subject to applicable Law, You are responsible for all charges for any remaining time left on the Term as if You remained a customer through the end of the then-current Term, including, without limitation, outstanding charges, unbilled charges, Taxes, and fees, including any applicable disconnection fee. In addition, You will not be entitled to a refund for any unused portion of prepaid Term charges.
You understand and agree that Voifinity may at any time, and without additional notice to You, terminate, modify, suspend, disconnect, discontinue, or block access to some or all of the features of the Plan Services if :
- i). Voifinity determines or reasonably suspects that You have materially breached these TOS;
- ii). Voifinity determines that You have created or caused to be created multiple free accounts;
- iii). Voifinity determines that You have used a fraudulent credit card to pay for Service charges on Your Account;
- iv). Voifinity determines that You have verbally insulted, abused, or harassed any of its employees, contractors, agents, or other representatives;
- v). You did not or will not reasonably comply or cooperate with any applicable Law or regulation, or Voifinity is made aware of allegations of the same;
- vi). Voifinity is ordered by law enforcement or other government agencies to suspend or terminate Service to Your Account;
- vii). You bring any legal action or proceeding, including without limitation in any court, regulatory, or administrative body, arbitral body, or mediator, against Voifinity, or participate in any class action lawsuit against Voifinity;
- viii). Except to the extent prohibited by applicable Law, You file a petition in bankruptcy or if a petition in bankruptcy is filed against You and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over any of Your relevant property;
- ix). Voifinity determines that such action is necessary to protect, maintain, or improve the Services; to prevent fraud or misrepresentation by affirmative acts and/or omissions; to protect Voifinity, its customers, or other third parties affiliated with Voifinity; or for any other good cause;
- x). You violate applicable Law; or
- xi). As otherwise contemplated by these TOS.
Upon any termination or suspension of Your Account, Voifinity may immediately deactivate or delete Your Account and all related information and files in Your Account and/or restrict any further access to such files, information, or the Plan Services.
Voifinity shall not be liable to You or any third party for any reason for terminating or suspending Your use or access to the Plan Services.If You or Voifinity terminate or suspend Your right to use the Services, You shall not be entitled to any refund or pro ration of any pre-paid amounts, Account Credits, or other amounts paid to Voifinity prior to the termination or suspension date.
- 30-Day Cancellation for New Purchases
Customer may cancel any services purchased under this Agreement with written notice to Voifinity within thirty (30) days of the date in which the purchase becomes effective. In the event of a timely cancellation, Customer shall not owe any fees or charges for the services being canceled in respect of any period subsequent to the date of such written notice (except those arising from continued Usage), and shall be entitled to a pro-rata refund of any prepaid and unused fees for the services subject to the cancellation. All purchases are final after 30 days.
A.Disclaimer of Warranties
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PLAN SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND VOIFINITY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. SPECIFICALLY AND WITHOUT LIMITING THE FOREGOING IN ANY WAY, VOIFINITY SPECIFICALLY DISCLAIMS ANY WARRANTY: (i) THAT ANY PRODUCT WILL MEET ANY PARTICULAR REQUIREMENTS; (ii) THAT ANY PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN ANY PRODUCT WILL BE CORRECTED; OR (iii) RELATING TO THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF YOUR OFFICE PLAN, ANY ACCOUNT, OR ANY PRODUCT OR ANY CUSTOMER COMMUNICATIONS, DATA, INFORMATION, OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF ANY OF THE FOREGOING. THE PARTIES AGREE, AND IT IS THEIR INTENTION, THAT IN NO EVENT SHALL ANY WARRANTY PROVIDED BY LAW APPLY UNLESS REQUIRED TO APPLY BY APPLICABLE STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. TO THE EXTENT THAT Voifinity CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT VOIFINITY CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
- Voifinity Warranty
Voifinity will provide the Services using a commercially reasonable level of skill and care, in material compliance with all applicable Laws and otherwise subject to the terms of this Agreement. To the extent permitted by Law, Voifinity shall pass through to Customer any and all warranties Voifinity receives in connection with equipment provided to Customer.
- Customer Warranty
Customer’s and its End Users’ use of the Services must at all times comply with all applicable Laws and this Agreement.
22. Limitation of Liability
- Consequential Damages
IN NO EVENT SHALL VOIFINITY BE LIABLE TO YOU OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT, COVER, OR SUBSTITUTION GOODS OR SERVICES; LOSS OF USE, DATA, EQUIPMENT, PRODUCTS, BUSINESS OPPORTUNITIES, OR PROFITS; INTERRUPTION OF BUSINESS; TRANSACTIONS ENTERED INTO OR NOT ENTERED INTO; OR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, REPUTATIONAL, OR PUNITIVE DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF Voifinity HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF – OR COULD HAVE FORESEEN — SUCH COSTS, LOSSES, OR DAMAGES.
- Direct Damages
EXCEPT AS SET FORTH BELOW, VOIFNITY’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED THE PLAN SERVICES FEES PAYABLE HEREUNDER DURING THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE DATE OF THE EVENT(S) GIVING RISE TO THE LIABILITY. THE LIMITATION OF LIABILITY SET FORTH IN THIS SUB-SECTION DOES NOT APPLY TO: (i) LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (ii) YOUR LIABILITY ARISING FROM YOUR ACTUAL OR ALLEGED BREACH OF SECTIONS 1 (OPERATION AND LIMITATIONS OF THE Voifinity 911 SERVICE), 5 (USE POLICIES), 6 (NUMBER POLICIES), OR 3 (CUSTOMER SECURITY POLICY) OF THESE TOS.
EXCEPT AS SET FORTH HEREIN, THE TOTAL CUMULATIVE LIABILITY OF THE PARTIES UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE PREVIOUS SIX (6) MONTHS. LIMITATIONS UNDER THIS SECTION 22(B) (DIRECT DAMAGES) WILL NOT APPLY TO: I) CUSTOMER PAYMENT OBLIGATIONS; II) EITHER PARTY’S LIABILITY FOR INFRINGEMENT OF THE OTHER PARTY’S IP RIGHTS; III) EITHER PARTY’S LIABILITY RESULTING FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR CRIMINAL MISCONDUCT; OR IV) CUSTOMER’S LIABILITY RESULTING FROM USE OF THE SERVICES IN BREACH OF THE ACCEPTABLE USE POLICY OR EMERGENCY SERVICES POLICY.
NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED OR EXCLUDED PURSUANT TO APPLICABLE LAW.
- Scope and Exceptions
THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 22.B. (Direct Damages):
- i). SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW,
- ii). SHALL NOT DISCLAIM, LIMIT, OR CAP CUSTOMER’S OBLIGATION TO PAY ANY FEES OR CHARGES OR OTHER AMOUNT OWED TO Voifinity OR ANY DAMAGES TO WHICH Voifinity IS ENTITLED UNDER APPLICABLE LAW FOR INFRINGEMENT OF IP RIGHTS,
- iii). REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES, AND
- iv). SHALL SURVIVE TERMINATION OR EXPIRATION OF THE PLAN SERVICES AND APPLY IN ANY AND ALL CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION IN THE EVENT OF ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY PROVIDED HEREIN.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
- Excluded Damages
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND; (2) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (3) LOSS OF USE, LOSS OR CORRUPTION OF DATA; OR (4) LOSS OF BUSINESS OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW.
The limitations of liability contained in this Section 10 (Limitation of Liability) will survive termination or expiration of this Agreement and apply in any and all circumstances (except as expressly set forth above), including without limitation in the event of any failure of the essential purpose of any limited warranty or available remedy provided herein.
To the maximum extent permitted by applicable Law, You shall indemnify and hold harmless, individually and collectively, Voifinity, its affiliates, agents, resellers, and other providers who furnish goods and services to You in connection with the Services, and their officers, directors, managers, employees, and shareholders (the “Indemnified Parties“) from and against any and all liability, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys’ fees and dispute resolution expenses) arising from or related to: (i) the use of or reliance upon the Plan Services by You or any third party acting with Your permission, knowledge, authority or direction; (ii) a breach of these TOS by You, or any End User; (iii) any negligent acts, omissions to act or willful misconduct by You or any third party acting with Your permission, knowledge, authority or direction; (iv) the inability to use the Plan Services or failure or outage of the Plan Services for any reason, including but not limited to those related to calling, “911” or other emergency responders; (v) the use of the Plan Services in connection with a violation of any applicable law, code, regulation, or ordinance; or (vi) the misappropriation, breach, violation, or infringement of any right, title or interest of any third party, including but not limited to, contractual rights, Intellectual Property rights, rights of privacy, and rights of publicity and personality.
- Indemnification Obligations
Customer agrees to indemnify and defend Voifinity and its Affiliates at Customer’s expense, from and against any and all third-party claims, arising out of or in connection with: i) material violation of applicable Law by the Customer or its End Users in connection with the use of the Services; ii) use of the Services in a manner not authorized by this Agreement; iii) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of Voifinity, or iv) claims relating to Customer Content. Further, Customer will indemnify and hold harmless Voifinity against all damages, costs, and legal fees finally awarded against Voifinity by a court of competent jurisdiction in connection with such third-party claim, or agreed to in a written settlement agreement approved in writing by the Customer.
- Defense and Indemnification Procedures
Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from which it seeks such indemnification or defense (the “Indemnifying Party”) with the following: (i) prompt written notice of the third-party claim, (ii) sole control over the defense and settlement of the third-party claim, and (iii) reasonable information, cooperation, and assistance in connection with the defense and settlement of the third-party claim. The Indemnified Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Party will have the right to participate at its own expense in the defense of such third-party claim, including any related settlement negotiations. No such claim may be settled or compromised by the Indemnifying Party without the Indemnified Party’s express written consent (which such consent may not be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise includes a full and complete release of all claims and actions against the Indemnified Party by each party bringing such third-party claim.
24. Dispute Resolution
- Good Faith Attempt to Settle Disputes
In the event of any dispute or claim arising out of or relating to the Agreement (a “Dispute”), each Party will appoint a duly authorized representative which will confer with the other Party before either Party brings legal action, to make a reasonable and good faith effort to settle or otherwise resolve such Dispute.
- Equitable Relief
Any breach of either Party’s IP Rights will cause that Party irreparable harm for which monetary damages will be inadequate and such Party may, in addition to other remedies available at Law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement, in additional to any other relief to which such Party may be entitled under applicable Law.
Except for actions for nonpayment or liability arising from Section 23 (Indemnification), no claim, suit, action or proceeding relating to this Agreement may be brought by either Party more than two (2) years after the cause of action has accrued. Any actions, lawsuits, or proceedings must be conducted solely on an individual basis and the Parties expressly waive any right to bring any action, lawsuit or proceeding as a class or collective action, private attorney general action or in any other capacity acting in a representative capacity.
25. General Terms
- Relationship of the Parties
The Parties’ relationship under these TOS is that of independent contractors. Nothing in these TOS shall constitute or create any employment, partnership, association, joint venture, agency, or fiduciary relationship between the Parties. Neither Party shall have the authority to bind or obligate the other Party in any way.
Notices to You shall be effective on the date sent to Your registered electronic mail address when sent by email or, at Voifinity’s option, three (3) days following the date deposited in regular United States Mail, postage prepaid, and addressed to Your current address on Your Account. You are responsible for notifying Voifinity of any changes in Your contact information or address through Your Account settings page or by contacting customer service at +1 732 227 8440.
Written notice to Voifinity shall be effective when directed to Voifinity’s Legal Department and received at Voifinity’s then-current address as posted on Voifinity’s Website. Your notice must specify Your name, Account information, and security verification question and answer. All notices from You to Voifinity must be made in writing.
- Force Majeure
Excluding either Party’s payment obligations under the Agreement, neither Party shall be responsible or liable for any failure to perform or delay in performing to the extent resulting from any event or circumstance that is beyond that Party’s reasonable control, including without limitation any act of God; national emergency; riot; war; terrorism; governmental act or direction; Laws; breach, delay, act, or omission of any supplier, carrier, contractor, subcontractor, or business partner; failure, outage, or unavailability of third party network(s) or system(s); fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; criminal acts of third parties, earthquake; storm; hurricane; flood, fire, or other natural disaster; or strike or labor disturbance (each a “Force Majeure”). In the event that a Force Majeure prevents a Party’s performance for more than forty-five (45) consecutive days, either Party may terminate the particular agreement document(s) impacted.
- Third Party Beneficiaries
Nothing in these TOS, express or implied, is intended to or shall confer upon any person or entity other than the Parties themselves any right, benefit, claim, or remedy as a third party beneficiary or by any other nature whatsoever under or by reason of these TOS.
- Choice of Law
These TOS and Your use of the Plan Services shall be governed by and construed under the laws of the State of California and the United States without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these TOS or Your sign up or use of the Plan Services.
- Dispute Resolution and Optional Arbitration
In the event of any dispute, claim, question, or disagreement between You and Voifinity (“Dispute”), You and Voifinity shall first use reasonable best efforts to settle the dispute, claim, question, or disagreement. To this end, You and an authorized member of Voifinity’s legal department (or other representative of Voifinity designated by the legal department) shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither You nor Voifinity shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.
Notwithstanding the adjudication requirement above, for any Disputes involving ten thousand dollars ($10,000) or less, either party may choose to resolve such Dispute through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution provider mutually agreed upon by the parties, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision shall be final and legally binding.
In the event of any litigation (including arbitration) between You and Voifinity, the non-prevailing party shall reimburse the prevailing party for all reasonable and documented attorneys’ fees, costs, and expenses relating to the Dispute.
Some jurisdictions may place limits on governing law, venue, and/or dispute resolution provisions, so certain of the foregoing requirements in this section may not apply to You.
- Equitable Relief
You agree that any breach of Voifinity’s IP Rights will cause Voifinity irreparable harm for which monetary damages will be inadequate and Voifinity may, in addition to other remedies available at Law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement.
- Class Action Waiver.
Any actions, lawsuits, or shall be conducted solely on an individual basis and the Parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or in any other proceeding in which any party acts or proposes to act in a representative capacity
In no event shall any failure or delay by Voifinity to: (i) assert or exercise any right; (ii) demand fulfillment or performance of any obligation; or (iii) avail itself of any remedy under these TOS, in whole or in part, be deemed a waiver of any right or remedy under these TOS on such occasion or any other occasion. Except as otherwise expressly stated in these TOS or an agreement document duly executed by both Voifinity and You, all rights and remedies stated in these TOS are cumulative and in addition to any other rights and remedies available under these TOS, any agreement document, at Law, or in equity.
These TOS, including the documents incorporated herein, constitutes the entire agreement between You and Voifinity with respect to the Plan Services and supersedes all prior or contemporaneous understandings regarding such subject matter.
If any part of these TOS is held invalid or unenforceable, that portion shall be construed to reflect the parties’ original intent, and the remaining portions shall remain in full force and effect.
The failure of Voifinity to exercise or enforce any right or provision of these TOS shall not constitute a waiver of such right or any other provision.
The section titles in these TOS are for convenience only and have no legal or contractual effect.
This electronic document and any other electronic documents, policies, and guidelines incorporated herein will be: (i) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents; and iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation, or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
Either party may assign these TOS and any of its rights and obligations hereunder with the other party’s prior written consent (which such consent shall not be unreasonably withheld), except that Voifinity may, without notice, assign the TOS and all of Voifinity’s rights and obligations hereunder to: (i) an affiliate; or (ii) Voifinity’s successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets, or the transfer or disposition of more than fifty percent (50%) of a Voifinity’s voting control or assets. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, these TOS shall be binding on and inure to the benefit of the parties, their successors, permitted assigns, and legal representatives.
If any provision or portion of the Agreement is determined to be invalid, unlawful, illegal, void, or unenforceable, in whole or in part, then (i) that provision or portion shall be construed in such a manner as to render the provision or portion enforceable and, to the extent possible, to reflect the Parties’ original intent and (ii) the remaining provisions and portions of the Agreement shall remain in full force and effect.
The following provisions of these TOS will survive termination or expiration of these TOS for the maximum term allowed by Law: (i) Your payment obligations; (ii) terms relating to intellectual property ownership, customer representations, confidentiality, storage of user information, publicity rights, non-disparagement, indemnification, warranty disclaimers, limitations of liability, dispute resolution and arbitration, and choice of law; and (iii) all provisions that are intended by their nature to survive termination of this agreement.
The parties confirm that it is their express wish that the TOS, as well as any other documents relation to this TOS, including notices, schedules and authorizations, have been and shall be drawn up in the English language. Les parties aux présentes confirment leur volonté expresse que cette convention, de même que tous les documents s’y rattachant, y compris tous avis, annexes et autorisations s’y rattachant, soient rédigés en langue anglaise seulement.
All dollar amounts are expressed in Canadian dollars for Canadian customers and in United States dollars for American customers, or as agreed by the parties.
- Electronic Signature and Counterparts
This Agreement may be executed electronically and in separate counterparts each of which when taken together will constitute one in the same original. Each Party agrees that an Electronic Signature, whether digital or encrypted, is intended to authenticate this Agreement and to have the same force and effect as manual signatures.
Each Party represents and warrants that: (a) it possesses the legal right and capacity to enter into the Agreement and to perform all of its obligations thereunder; (b) the individual executing an Electronic Signature regarding the Agreement on that Party’s behalf has full power and authority to execute and deliver the same; and (c) the Agreement will be a binding obligation of that Party.
- Order of Precedence
In the event of any conflict between the documents comprising this Agreement, precedence will be given to the documents in the following descending order: (i) the applicable Order; (ii) Use Policies and Privacy Notice incorporated by reference in this Agreement; (iii) the main body of this Agreement; (iv) the applicable Service Attachment; and (v) and any other document expressly referred to in this Agreement which governs the Services.
Except as otherwise provided, this Agreement may only be modified by a written amendment (provided electronically or otherwise) executed by authorized representatives of both Parties. In no event will handwritten changes to any terms or conditions, including in the applicable Order, be effective. Notwithstanding the foregoing, Voifinity may update this Agreement or any of its Policies from time to time, and will provide notice to Customer at the email address on file with the Account. Such updates will become effective thirty (30) days after such notice to Customer. In the event that any such update would be of material detriment to Customer and is not required by Law, Customer must inform Voifinity of its objection within ten (10) days of receiving the notice provided under this provision. If the Parties, negotiating in good faith cannot reach agreement within thirty (30) days, Customer may terminate the portion of the Services affected by the change without penalty by written notice to Voifinity. Any use of the Services after the effective date will be deemed Customer’s acceptance of the change.
- Internal Customer Activities
Voifinity does not have any obligation to assist in or otherwise mediate in the event of any dispute between Customer representatives or Customer and any third party with respect to ownership or control of any Account or Account Data. All information within Voifinity’s records regarding the ownership or control of an Account or Account Data, Services ordered, and numbers assigned to an Account will be definitive and controlling for purposes of administering the Account. In the event of any such dispute, Voifinity may take any course of action that it deems appropriate based on the information available, which include declining to take any course of action.
Voifinity may access your Account and related data as required to provide the Services. However, Voifinity has no obligation to access your Account, Account Data or any Customer Content for any other purposes. Services do not include or consist of any investigation, review, verification, production, compilation, modification, or other similar services for any Account Data or Customer Content. Services do not include the provision of any legal, accounting or other professional services.
- Headings, Interpretation
The headings, section titles, and captions used in the Agreement are for convenience of reference only and will have no legal effect. All defined terms include related grammatical forms, and, whenever the context may require, the singular form of nouns and pronouns include the plural, and vice versa. The Parties agree that this Agreement will be deemed to have been jointly and equally drafted by them, and that the provisions of this Agreement therefore should not be construed against a Party or Parties on the grounds that the Party or Parties drafted or was more responsible for drafting the provision(s).
Each Party represents that in the execution of this Agreement and in the performance of its obligations under this Agreement it has complied and will comply with all applicable anti-bribery Laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and similar applicable Laws.
- Export Control
Any services, products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export Laws and regulations. Customer will not use distribute, transfer, or transmit the services, products, software, or technical information (even if incorporated into other products) except in compliance with U.S. and other applicable export regulations.
- Regulatory and Legal Changes
In the event of any change in Law, regulation or industry change that would prohibit or otherwise materially interfere with Voifinity’s ability to provide Services under this Agreement, Voifinity may terminate the affected Services or this Agreement or otherwise modify the terms thereof.
- Entire Agreement
The Agreement, together with any exhibits, Orders, and Attachments, each of which is expressly incorporated into this Agreement with this reference, constitutes the entire agreement between the Parties and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise, regarding such subject.
All capitalized terms used in these TOS shall be defined in accordance with the following definitions or as otherwise defined herein.
- 1). “Account” means the numbered account established with Voifinity and associated with Customer and the Services provided to Customer under this Agreement. For billing and convenience purposes, multiple services, Digital Lines, or End Users may be included in a single billing account, and/or a single Customer may have multiple billing accounts encompassing different geographic locations, business units, or other designations as requested by Customer and accepted by Voifinity.
- 2) “Account Administrator” means the person(s) who have been granted authority by Customer to set up, amend, or otherwise control settings and/or make additional purchases for the Account via the Account Management portal. Account Administrators may have varying levels of Account rights, skills, or permissions.
- 3) “Account Data” means: any business contact information provided with the Account; Voifinity-generated logs of calling or other metadata developed or collected in the provision of the Services; configuration data; and records of Digital Lines and any Services purchased under this Agreement.
- 4) “Administrative Fees” means any administrative recovery fees, 911 cost recovery fees and the like separately charged by Voifinity to Customer.
- 5) “Account Management portal” means the online portal through which Account Administrators control settings and/or make additional purchases for the Account.
- 6) “Affiliate(s)” means a person or entity that is controlled by a Party hereto, controls a Party hereto, or is under common control with a Party hereto, and “control” means beneficial ownership of great than fifty percent (50%) of an entity’s then-outstanding voting securities or ownership interests.
- 7) “Confidential Information” means any information disclosed by or on behalf of the Disclosing Party) to the Receiving Party that should reasonably be considered as confidential given the nature of the information and the circumstances surrounding its disclosure.
- 8). “Customer Content” means the content of calls, facsimiles, SMS messages, voicemails, voice recordings, shared files, conferences or other communications transmitted or stored through the Services.
- 9) “Digital Line” means a phone number assigned to an End User or a specifically designated location (e.g., conference room) and the associated voice service for inbound and outbound calling that permits an End User generally to make and receive calls to and from the public switched telephone network as well as to and from other extensions within the same Account.
- 10) “Disclosing Party” means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed by such Party’s agents, including but not limited to, its Affiliates, officers, directors, employees and attorneys.
- 11) “Dispute” has the meaning set forth in Section 24(A) (Good Faith Attempt to Settle Disputes).
- 12) “Effective Date” means the date of execution of the initial Order.
- 13) “Electronic Signature” means an electronic sound, symbol, or process, including clicking a digital button to accept, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.
- 14) “End Point” means an application or device through which any End-User might access and/or use any of the Services, including without limitation IP Desk Phones, Desktop Clients, Web Clients, Mobile Applications, and Software Integrations.
- 15) “End User” means an individual user to whom Customer makes the Services available, and may be a natural person, and may include but is not limited to Customer’s employees, consultants, clients, external users, invitees, contractors and agents.
- 16) “Helpdesk” means first-tier support provided to End Users by Customer.
- 17) “Indemnifying Party” and “Indemnified Party” have the meanings set forth in Section 23(B) (Defense and Indemnification Procedures).
- 18) “Initial Term” has the meaning set forth in Section 2(A) (Services Term).
- 19) “Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (a) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (b) copyrights and copyright registrations, and “moral” rights; (c) the protection of trade and industrial secrets and Confidential Information; (d) other proprietary rights relating to intangible property; (e) trademarks, trade names and service marks; (f) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (g) analogous rights to those set forth above; and (h) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).
- 20). “Law” means any law, statute, regulation, rule, ordinance, administrative guidance, treaty or convention, or court or administrative order or ruling of any governing Federal, State, local or non-U.S. governmental body with jurisdiction over the Services.
- 21). “Order(s)” means a request or order for Service describing the type and quantity of Services required by Customer and submitted and accepted by the Parties in accordance with Section 2(A) (Ordering Services). The Order may be presented and executed on the Voifinity website or via the Account Management portal.
- 22). “Receiving Party” means the Party or its agents, including, but not limited to its Affiliates, officers, directors, employees and attorneys receiving Confidential Information.
- 23) “Renewal Term” has the meaning set forth in Section 2(F) (Services Term).
- 24) “Voifinity Customer Care” means Voifinity’s Customer support operations, available at https://success.Voifinity.com/RCContactSupp.
- 25). “Voifinity Network” means the network and supporting facilities between and among the Voifinity points of presence (“PoP(s)”), up to and including the interconnection point between the Voifinity’s network and facilities, and the public Internet, private IP networks, and the Public Switched Telephone Network (PSTN). The Voifinity Network does not include the public Internet, a Customer’s own private network, or the PSTN.
- 26). “Service(s)” means all services provided under this Agreement, and set forth in one or more Order(s).
- 27). “Start Date” means the date so identified in the relevant Order or the date on which Customer orders Services via the website or the Account Management portal.
- 28). “Taxes” means any and all federal, state, local, municipal, foreign and other taxes and fees charged or collected from Customers, including but not limited to any Universal Service Fund, TRS and 911 taxes and fees.
- 29). “Term” means the Initial Term plus any Renewal Terms.
- 30). “Use Policy” refers to any of the policies identified in Section 4(B) (Use Policies).
- 31). “Embargoed Area” means a country or region that is subject to a Canadian, United States, United Nations, or European Union embargo or economic sanctions, including without limitations destinations designated by Foreign Affairs, Trade and Development Canada, the United States Government in Country Group E or Part 746 of the Export Administration Regulations (15 CFR Part 730-774), or otherwise subject to territorial sanctions under regulations administered by the Foreign Affairs, Trade and Development Canada, the United States Department of the Treasury, Office of Foreign Assets Control, or other governmental authorities with jurisdiction.
32) “Text-to-911” means the ability to send SMS messages to 911.
End User License Agreement and Terms of Service for Voifinity Contact Center™
Last Updated: May 26, 2018
This End User License Agreement and Terms of Service (“Agreement”) contain the terms and conditions upon which Voifinity provides Voifinity Contact Center (“Contact Center”) to customers (“Customer”). The Agreement further includes all Service Contracts between Voifinity and the Customer. To the extent there is any conflict between the Service Contract and this Agreement, the applicable terms of the Service Contract shall govern.
The Customer’s license to, and the terms governing Customer’s use of, the Contact Center are further subject to the general Voifinity End User License Agreement and Terms of Service (the “General EULA,” available at http://www.Voifinity.com/legal/eulatos.html), the terms of which are incorporated herein by reference, with Contact Center deemed a “Service” therein and any software provided in connection therewith deemed an “Application.” To the extent there is any conflict between the terms of the General EULA and this Agreement, the applicable terms of this Agreement shall govern.
Any capitalized terms not defined herein will have the same meaning as in the General EULA.
- 1.1. “Applicable Laws” means any applicable foreign, federal, state, local, or other law (statutory, common or otherwise), constitution, treaty, convention, ordinance, equitable principle, code, edict, decree, rule, order, requirement, regulation, guidance, executive order, or other similar authority issued, enacted, adopted, promulgated, implemented, applied, or otherwise put into legal effect by or under the authority of any governmental entity.
- 1.2. “Contact Center” has the meaning set forth in the preamble to this Agreement.
- 1.3. “Contact Center Materials” means any Documentation, support materials, knowledge base articles, instructions, marketing materials, or other materials provided in connection with Contact Center, regardless of form.
- 1.4. “Customer” has the meaning set forth in the preamble to this Agreement.
- 1.5. “Customer Data” means information provided by Customer to Voifinity, including without limitation agent names, phone numbers, text messages, email addresses, skills, and work performance metrics. It shall also be defined as the contact history, which is a record of the transactions processed by Voifinity. Items in contact history may include automatic number identification, caller identification, point of contact information, the contents of any recorded call and other miscellaneous information from contact types such as chat, text, e-mail, or other work items.
- 1.6. “Documentation” means documentation and similar materials concerning Contact Center that Voifinity distributes generally to End Users licensed in connection with their subscriptions to Contact Center, including without limitation, manuals, descriptions, user and/or installation instructions, diagrams, printouts, listings, flowcharts and training materials, together with any modifications and updates of such materials.
- 1.7. “End User” means any Person that uses Customer’s subscription to Contact Center.
- 1.8. “General EULA” has the meaning set forth in the Preamble to this Agreement.
- 1.9. “Intellectual Property” means mean all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with (a) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (b) copyrights and copyright registrations, and “moral” rights; (c) the protection of trade and industrial secrets and confidential information; (d) other proprietary rights relating to intangible property; (e) trademarks, trade names and service marks; (f) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (g) analogous rights to those set forth above; and (h) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).
- 1.10. “Marks” means United States and foreign trademarks, service marks, copyrights, patents, trade dress, logos, and product and service names.
- 1.11. “Party” or “Parties” means Voifinity and/or Customer, as the case may be.
- 1.12. “Person” means any natural person or legal entity, regardless of form.
- 1.13. “Representatives” means, with respect to any Person, the officers, directors, employees, users, subcontractors, and agents of such Person.
- 1.14. “Voifinity Marks” means Marks of Voifinity.
- 1.15. “Service Contract” includes any single, multiple, or a combination of any Voifinity written agreement(s) governing Customer’s subscription to Contact Center.
- 1.16. “Services” means products and related services listed on any Service Contract relating to Contact Center, with the exception of equipment. These items may include but are not limited to, service for Contact Center, Telecom Carrier Services, Long Distance, Inbound Voice, Chat, Text and Email, Automatic Call Distribution (“ACD”), IVR, inStudio, Workforce and Quality Management, Outbound Dialer, Customer Survey and Reporting.
- 1.17. “Service Term” means the time period specified in the Service Contract or, if there is no Service Contract, the Term as defined in the General EULA.
- 1.18. “Third Party Marks” means Marks of any third party.
2. Compliance with Laws.
- 2.1. Customer shall be solely responsible for complying with all Applicable Laws of the country or territory in which Customer uses Contact Center. In addition, Customer shall be solely responsible for all actions and omissions related to compliance with local, state, federal and international consumer protection and marketing laws, regulations, guidelines and industry standards including, but not limited to, the Federal Telephone Consumer Protection Act of 1991, Telemarketing Sales Rule, Do Not Call Registry, Mobile Marketing Best Practices, and Common Short Code Acceptable Use Policy. If Customer receives any notice or becomes aware of any violation of any law, statute, rule, regulation or ordinance by its subscription to Contact Center or the use thereof, Customer shall promptly notify Voifinity of such notice or violation.
- 2.2. Voifinity may amend all or any part of this Agreement to be in compliance with regulatory, legal, or service provider changes that affect Contact Center. Any such modifications and/or amendments to this Agreement shall become effective upon publication on Voifinity’s website at http://www.Voifinity.com/legal/eulatos.html. Customer’s continued use of Contact Center following any such modification and/or amendment shall be deemed acknowledgment thereof and consent thereto.
3. Limited License.
- 3.1. Subject to the terms and conditions of this Agreement and effective only during the Service Term, Voifinity grants to Customer a limited, personal, revocable, non-sublicensable, non-assignable, non-transferable, non-resellable, and non- exclusive right and license to use Contact Center and any Contact Center Materials provided in connection therewith solely to operate Contact Center strictly in accordance with this Agreement. For the avoidance of doubt, nothing in this Agreement or in the Service Contract shall be construed to grant to Customer any right to reproduce, market, or distribute Contact Center or any of its documentation, or to use the same for any purpose other than its internal business purposes and by it and its Representatives.
- 3.2. Customer shall not: (i) attempt to reverse engineer, decompile, disassemble, or otherwise translate or modify Intellectual Property in Contact Center or any Contact Center Materials in any manner; (ii) market, sell, assign, license, sublicense or otherwise transfer, transmit, or convey such Intellectual Property; (iii) defeat, disable, or circumvent any protection mechanism related to Contact Center; (iv) allow any service provider or other third party, with the exception of Voifinity’s authorized maintenance providers who are acting solely on behalf of and for the benefit of Customer, to use or execute any software commands that facilitate the maintenance or repair of any product; or (v) permit or encourage any third party to do any of the foregoing.
- 3.3. During the Service Term and after termination of the Services for any reason, Customer shall not use any of the Intellectual Property in Contact Center or any Contact Center Materials for any use or purpose, except as expressly permitted under the Agreement to operate Contact Center during the Service Term, and Customer shall not disclose any of such Intellectual Property to any other person or entity.
- 3.4. All of Customer’s use of Contact Center and any Contact Center Materials is subject to any restrictions in this Agreement with respect to the number of seats, concurrent users, and unique accounts, use in a designated location, use in a designated environment, and use on designated hardware or other designated equipment.
- 3.5. Customer agrees not to sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to Contact Center, the Contact Center Materials, or any part thereof without Voifinity’s prior written consent, to be granted or denied in Voifinity’s sole discretion.
- 3.6. Voifinity may immediately terminate any license granted to Customer if Customer uses Contact Center or any Contact Center Materials for any illegal purpose or in any way contrary to any law or regulation or in violation of this Agreement, tampers with or modifies Contact Center or any Contact Center Materials without Voifinity’s prior authorization, or if Customer uses Contact Center other than for the intended use or purpose.
4. New Versions of Contact Center.
Voifinity, in its sole discretion, reserves the right to add, remove, or modify features or functions, or to provide fixes, updates and upgrades, to Contact Center. Customer acknowledges and agrees that Voifinity has no obligation to make available to Customer any subsequent versions of Contact Center. Customer also agrees that it may have to enter into a renewed version of this Agreement if Customer wants to download, install, or use a new version of Contact Center.
5. NO 911 SERVICES OFFERED WITH CONTACT CENTER.
CONTACT CENTER DOES NOT PROVIDE 911 OR E911 SERVICES TO CUSTOMERS.
6. Customer’s Responsibilities.
- 6.1. Customer is solely responsible for any and all activities that occur with its subscription to Contact Center by its End Users, anyone using its subscription on Customer’s behalf with or without Customer’s permission, or by third parties due to acts or omissions of any of the foregoing Persons.
- 6.2. In addition to any of Customer’s responsibilities set forth in the General EULA, Customer agrees to do all of the following:
- 6.2.1. Abide by all Applicable Laws in its use of Contact Center, including but not limited to those regarding online behavior, acceptable content, and the transmission of equipment and information under applicable export laws;
- 6.2.2. Not upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of Contact Center or another’s computer, system, or network;
- 6.2.3. Not use Contact Center for illegal purposes;
- 6.2.4. Not interfere or disrupt networks connected to Contact Center;
- 6.2.5. Not post, promote, or transmit through Contact Center any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable material of any kind or nature;
- 6.2.6. Not to transmit or post through Contact Center any material that encourages conduct that could constitute a criminal offense or give rise to civil liability;
- 6.2.7. Not interfere with another user’s use and enjoyment of Contact Center or other Voifinity services;
- 6.2.8. Not use the Contact Center to send unsolicited commercial e-mail (“UCE”) to any person (UCE includes any e-mail that is sent to a person whom Customer has no prior business relationship or who has not consented to receiving the communication, and any other e-mail communication that violates any Applicable Law prohibiting the transmission of spam);
- 6.2.9. Promptly notify Voifinity in the event Customer learns of any violation of the foregoing or any use policy set forth in this Agreement in connection with Customer’s subscription to Contact Center.
7. Acceptable Use.
- 7.1. Customer’s and its End Users’ use of Contact Center is governed by the use policies set forth in the General EULA, and Voifinity may avail itself of remedies therein for non-compliance.
- 7.2. In addition, Customer and its End Users shall not use Contact Center in any of the following ways (Voifinity may avail itself of any remedies set forth in the General EULA for violation of its use policies):
- 7.2.1. In any way that violates Applicable Law (including, but not limited to, laws prohibiting transmission of unsolicited e-mail or fax advertisements or laws on obtaining third-party consent for call recording);
- 7.2.2. To infringe the rights of others;
- 7.2.3. To interfere with other users, agents, services, or equipment of Contact Center;
- 7.2.4. To send unsolicited commercial e-mail in violation of Applicable Laws;
- 7.2.5. To transmit any unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, indecent, or otherwise objectionable communications or material of any kind or nature;
- 7.2.6. To transmit any material that encourages conduct that could constitute a criminal offense under Applicable Law; or
- 7.2.7. To violate the Intellectual Property of others
8. Proprietary Rights.
- 8.1. Customer Data. As between Voifinity and Customer, all title and Intellectual Property rights in and to the Customer Data is owned exclusively by Customer. Customer hereby grants a royalty-free, fully paid-up, worldwide, limited, non-assignable, non- sublicenseable right and license to Voifinity and its affiliates and subcontractors to copy, duplicate, transmit, process, and use Customer Data to provide services to Customer in connection with Customer’s subscription to Contact Center.
- 8.2. Voifinity’s Intellectual Property Rights
- 8.2.1. Customer agrees that all rights, title and interest in and to all Intellectual Property in Contact Center and any Contact Center Materials are owned exclusively by Voifinity or its licensors. Except as provided in this Agreement, the limited license granted to Customer does not convey any rights in the Contact Center or any Contact Center Materials, express or implied, or ownership in the Contact Center, any Contact Center Materials, or any of Voifinity’s or its licensors’ Intellectual Property.
- 8.2.2. Customer hereby grants Voifinity a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into the Contact Center or any Contact Center Materials any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Representatives relating to Contact Center.
- 8.2.3. Customer agrees not to display or use the Voifinity Marks in any manner without Voifinity’s express prior written permission, to be granted or denied in Voifinity’s sole discretion. Any use of Voifinity Marks will be governed by Voifinity’s then-current policies on its trademark and logo usage. Third Party Marks are the property of such third parties. Customer is not permitted to use these Third Party Marks without the prior written consent of such third party that owns the Third Party Marks.
- 8.2.4. Any rights not expressly granted herein are reserved by Voifinity or its licensors.
9. Theft of Services; Notice to Voifinity.
Customer is responsible for monitoring Customer’s use of Contact Center for possible unlawful or fraudulent usage. Customer shall notify Voifinity immediately if Customer becomes aware or has reason to believe that its services through Contact Center are being stolen or fraudulently used. Customer acknowledges and agrees that Customer’s failure to notify Voifinity may result in the termination of Services and additional charges to Customer. Voifinity shall not be liable for any damages whatsoever resulting from fraudulent or unauthorized use of Customer’s account. Customer shall be liable for all use of Contact Center through its subscription, including any and all stolen Services or fraudulent use of Contact Center.
10. Data Storage and Management.
Storage and management of Customer-owned data for use with Contact Center will be provided by Voifinity at a rate specified in the Service Contract or, if no rate is listed or Customer is not under a Service Contract, at Voifinity’s then-current data storage and management rates. Voifinity may destroy all Customer stored data thirty (30) days after the deactivation of Customer’s subscription to Contact Center or the termination or expiration of the Agreement.
11. Additional Terms for SMS Usage.
- 11.1. SMS usage may be subject to fees and charges imposed by third-party wireless service providers under contractual mobile plans. Text messaging and wireless service are not available in all areas.
- 11.2. Customers who send text messages to “opt-in” lists must have a method of confirming or verifying subscriptions and be able to show evidence of subscriptions for users who complain about unsolicited text messages. Customer is also required to process opt-out requests within one (1) business day.
- 11.3. Customer will not initiate an outbound text message unless it has received consent. Examples of permissible situations where Customer may properly send an outbound text message include, but are not limited to:
- 11.3.1. Customer sends a text message to patron while on a call with patron’s consent;
- 11.3.2. Customer sends a text message in response to patron’s text message; or
- 11.3.3. Customer sends a text message through the IVR in response to patron’s consent.
1. Limited License
Voifinity (“Voifinity”) grants you a limited license to access and make personal, non-commercial use of our website (the “Site”) and the content displayed on it. Any other redistribution, retransmission, copying, or publication of any content from this Site is strictly prohibited without the express written consent of Voifinity. Our grant of this limited license does not include, without limitation: (1) any right of resale or commercial use of the Site or any of its content; (2) the collection and use of any service or product listings or descriptions; (3) making derivative uses of the Site or any of its contents; or (4) use of any data mining, “spiders,” “robots,” “wanderers,” “crawlers,” “scrapers,” or similar data gathering and extraction methods; (5) any access, or attempt to access, any materials or information on this Site through any means not purposely made available by Voifinity, including but not limited to bypassing the navigational structure of the Site. Except as noted above, Voifinity does not grant to you any right or license by implication, estoppel, or otherwise in or under any copyright, trademark, service mark, registered trademark, or proprietary right of Voifinity or any third party. See the Copyright and Trademarks and Service Marks sections below for further information.
2. Additional Agreements
Because the Site serves a number of functions, including registration for and access to Voifinity’s Plan Services, your use of the Site also may be governed by other agreements; the terms and conditions of those agreements are in addition to the terms set forth herein. In the event that the Site terms contradict terms set forth in a specific agreement for the use of Voifinity’s Plan Services, the agreement shall control.
All content, copyrighted materials, and copyrightable materials on this Site, including, without limitation, scripts, codes, icons, buttons, scripts, designs, text, graphics, images, pictures, sound files and other files, page layouts, page headers, and the selection and arrangement thereof (“Materials”) are Copyright © Voifinity and/or its affiliates ALL RIGHTS RESERVED. Except as stated herein, the Materials may not be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of Voifinity or affiliated copyright owner.
4. Trademarks and Service Marks
All marks and logos featured in this Site are either trademarks, service marks, or registered trademarks of Voifinity or its affiliates. These trademarks, service marks, and registered trademarks may not be copied, imitated, or used, in whole or in part, without the prior written permission of Voifinity or its affiliates. Voifinity or its affiliates trademarks, service marks, and trade dress may not be used in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits Voifinity or its affiliates.
All other trademarks, service marks, registered trademarks, product and service names and company names or logos that appear on the Site that do not belong to Voifinity or its affiliates are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Voifinity.
5. Framing and Linking
You may not frame, enclose, or otherwise use any Voifinity or Voifinity affiliate trademark, logo, design, image, page layout, or other proprietary information displayed on this Site without the prior written permission of Voifinity or its affiliates. See Sections 3 (Copyright) and Section 4 (Trademarks and Service Marks) above for further information.
Subject to the restrictions in these Website TOU, including without limitation those in Section 1 (Limited License) above, Voifinity grants to you a limited, non exclusive right to create a hypertext link (“link”) to the home page of this Site so long as your link does not portray Voifinity, its affiliates, or any of their Services in a false, misleading, or otherwise defamatory manner. You may not use a Voifinity or Voifinity affiliate design, logo, or other proprietary graphic, trademark, or registered trademark to link to this Site without the express written permission of Voifinity. Voifinity reserves the right, at all times in its sole discretion, to terminate your rights to create a link to the Site homepage.
6. Third-Party Links
Voifinity’s Privacy Notice provides information on how and why we collect, use and share your personal information when you visit the Site.. The Privacy Notice is available at https://www.Voifinity.com/legal/privacy-notice.html.
8. Additional Licenses
The Plan Services may comprise or incorporate services, software or products developed or provided by third parties, including open source software or code. Use of such third party services, software and products shall be governed by the terms and conditions issued by the relevant third party and, in connection with Your use of the Plan Services, you agree to comply with all such third party terms and conditions in full. Voifinity may update the third party services, software and products used in connection with the provision of the Plan Services from time to time in its sole discretion. The Plan Services may also be licensed under certain third party patents, which are available here:Licensed Patents
9. Digital Millennium Copyright Act
Pursuant to the Digital Millennium Copyright Act of 1998 (17 U.S.C. § 512) (the “DMCA”) upon good faith belief that copyrighted content transmitted via Voifinity is infringed, the copyright owner or its agent may send Voifinity a notice requesting removal of the infringing content or blocking access to it. Also, the DMCA allows a party against whom a notice of copyright infringement has been filed to submit a counter-notice. Notices and counter-notices must meet the then-current statutory requirements implemented by the DMCA. Notices and counter-notices may be sent to Voifinity’s registered copyright agent at our email address:legal@Voifinity.com
The notice must include: (i) an electronic or physical signature of the owner (or person authorized to act on behalf of the owner) of the copyrighted work; (ii) a description of the copyrighted work that is claimed to have been infringed upon; (iii) information reasonably sufficient to permit Voifinity to locate the copyrighted work; (iv) address, telephone number, and e-mail address of the owner of the copyrighted work; (v) a statement by the owner of the copyrighted work or its agent asserting good-faith belief that the use in question is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by the owner of the copyrighted work or its agent, made under penalty of perjury, that the foregoing information in the notice is accurate and affirming ownership of the copyright or authorized to act on the copyright owner’s behalf.
Any notice or counter-notice must be truthful and must be submitted under penalty of perjury. A false notice or counter-notice may give rise to personal liability. Parties should seek the advice of legal counsel before submitting a notice or counter-notice. Upon receipt of the notice, Voifinity may make a good faith attempt to transmit the notice to the party who has transmitted or received the allegedly infringing copyrighted work, and to transmit any counter-notification to the complaining party. Voifinity may, at its sole discretion, suspend, terminate, or disconnect ’s access to any use of the Plan Services or Customer account if it is deemed that such party has engaged in one or more instance of copyright infringement.
10. Governing Law, Venue, and Dispute Resolution
The laws of the state of California, U.S.A., excluding its conflicts-of-law rules, govern this Agreement and your use of the Voifinity Services. You agree that any disputes between you and Voifinity shall be adjudicated in the state and federal courts of the State of California, U.S.A. Venue for all claims and disputes between you and Voifinity shall be the appropriate courts located in the City and County of San Francisco, California. You hereby consent to venue and personal jurisdiction in such courts with respect to such claims or disputes and irrevocably waive any right that such party may have to assert that such forum is not convenient or that any such court lacks jurisdiction.
Notwithstanding the adjudication requirement above, for any dispute involving $10,000 or less, the party requesting relief may choose to resolve the dispute through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution service mutually agreed on by the parties, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction.
Some jurisdictions may place limits on governing law, venue, and/or dispute resolution provisions, so certain of the foregoing requirements in this section may not apply to you.
If any portion of these terms and conditions is determined to be unenforceable under applicable law, that portion shall be construed as nearly as possible to reflect the original intentions of the parties. All remaining terms set forth herein shall continue to have full force and effect.
12. Disclaimers and Limitation of Liability
ACCESS TO THIS SITE IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND VOIFINITY DOES NOT GUARANTEE THAT THE SITE WILL BE ACCURATE, COMPLETE, OR FREE OF COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS. VOIFINITY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY SIMILAR WARRANTY, WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF OR ANY OTHER COUNTRY. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM VOIFINITY, ITS EMPLOYEES, OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS AND CONDITIONS. SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU.
IN NO EVENT SHALL VOIFINITY BE LIABLE TO YOU OR ANY THIRD PARTY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER ARISING UNDER CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY. VOIFINITY’S TOTAL LIABILITY FOR ANY AND ALL DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED AND CAPPED IN THEIR ENTIRETY AT ONE THOUSAND DOLLARS ($1,000.00) DOLLARS. THE LIMITATION OF LIABILITY REFLECTS THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY IN ANY AND ALL CIRCUMSTANCES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
13. Third-Party Rights
The provisions of the Disclaimers and Limitation of Liability section above are for the benefit of Voifinity and its officers, directors, employees, agents, licensors, suppliers, and any third-party information providers to the Site. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf.
14. Enforceability and Admissibility
This electronic document and any other electronic documents, policies, and guidelines incorporated herein will be: (i) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents; and (iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
15. Waiver, Modification, and Assignment
Any failure by Voifinity to insist upon or enforce strict performance of any provision of these Website TOU shall not be construed as a waiver of any provision or right thereof. Neither the course of conduct between Voifinity and a user of this Site nor the course of trade practice shall act to modify any provision of these Website TOU. Voifinity may assign its rights and duties under these TOU to any party at any time without notice to you.
Voifinity and its worldwide subsidiaries are committed to protecting your privacy. This Privacy Notice (“Notice”), (“Voifinity”, “us”, “we”, “our”) explains our privacy practices and provides information on how and why we collect, use and share your personal data through our interaction with you and through our products and services and. when you visit our international websites, available at www.voifinity.com, and its sub-domains (“Website“), our desktop, IP desk phone, and mobile applications (“App“) or use our unified cloud communications and collaboration platform (“Services“). The policy also describes your choices regarding use, access, deletion and correction of your personal information.
Voifinity’s Privacy Notice applies to Customers (including Customer’s End Users) and Users (all other individuals who use the Voifinity products or website) provide directly to us when they use our Website, Apps, or Services.
We recommend that you read this Notice in full to ensure you are fully informed. However, if you only want to access a particular section of this Notice, then you can click on the relevant link below to jump to that section.
1. INFORMATION WE COLLECT
Information which you provide to us
We collect information which you provide directly to us when you use our Website, Apps or Services. The types of personal information we may collect directly from you include email addresses, postal addresses, phone numbers, employee names, usernames, information about the type of service required, marketing preferences, job titles, credit card payment information, transactional information (including Services purchased), as well as any communications, inquiries, contact or other information you choose to provide during your use of the Services.
When you provide personal information we will only use this information for the specific reason for which it is provided. If you believe that one of your contacts has provided us with your personal information and you would like to request that it be removed from our database, please contact us at legal@Voifinity.com.
Information we collect automatically when you visit our Website or Apps or use our Services
When you visit our Website, or use our Apps or Services, we may collect certain information automatically from your device. In some countries, including in the European Economic Area, this information may be considered personal data under applicable data protection laws:
Usage information – We keep track of your activity in relation to the Website, Apps or Services, the configuration of their computers, and performance metrics related to their use of the Website, Apps or Services. For example, when you use our Services, we may collect:
- 1.1 Traffic data about the communications that take place through our platform (such as calls, team chat, video conferencing, SMS,) to enable us to transmit those communications effectively and efficiently;
- 1.2. Network Monitoring data to enable us to maintain the security and agility of our internal networks;
- 1.3. Log data about you when they use the Services, Website or Apps including Internet Protocol (“IP“) address, Internet Service Provider (“ISP“), browser type, referring/exit pages, the files viewed on our site (e.g., HTML pages, graphics, etc.), operating system, date/time stamp, and/or clickstream data to analyze trends in the aggregate and administer the site;
- 1.4. Device data about any device including mobile phone number and other information related to mobile devices like operating system and model if you use our Services via our Apps. For other devices information collected by cookies and other similar technologies. We use various technologies to collect information which may include saving cookies to your computers;
- 1.5. Call Detail Records of data record produced by a telephone call or other telecommunications transactions. The record contains various attributes of the call, such as time, duration, completion status, source number and destination number;
- 1.6. Metadata, which is data created about other data which can include size, formatting, other characteristics of a data item;
- 1.7. Emails/Communications with us; and
- 1.8. Billing data, which includes any payment data.
Cookies and other similar technologies – We use various technologies to collect information which may include cookies when you visit our Website, or use our Apps or Services. Please see the Voifinity Cookies Notice for further information.
Information we collect from third parties
We may collect the names, e-mail addresses, postal addresses and city of residence of individuals from third parties to market our products / services to these individuals. This collection of information and marketing is always carried out in compliance with applicable law.
We may receive personal information about you from other sources, including publicly available databases or third parties from whom we have purchased data, and combine this data with information we already have about you, in accordance with applicable laws. This helps us to update, expand and analyze our records, identify new customers, and provide products and services that may be of interest to you.
We may collect personal information about you from other applications you may use if you choose to integrate Voifinity Apps or Services with other Apps or Services.
2. INFORMATION WE USE
We may use the information we collect from you for a range of purposes, including to:
2.1 Administer, operate, protect and maintain the Website, Apps or Services;
2.2 Process and complete transactions, and send related information, including transaction confirmations and invoices;
2.3 Manage and improve your use of the Website, Apps or Services;
2.4 Prepare and provide you testimonials regarding the Website, Apps and / or Services;
2.5 To help deliver our Website, Apps, or Services to Customers for service and support;
2.6 Investigate and prevent fraudulent activities, unauthorized access to the Website, Apps or Services, and other illegal activities; and
2.7 For any other purposes about which we notify and receive your consent from you;
2.8 To help personalize your experience and retarget you for advertising purposes;
2.9 Respond to inquiries and requests and to provide you with information and access to resources that you have requested;
2.10 Analyze and aggregate your and use of the Website, Apps or Services for trend monitoring, marketing advertising purposes; and
2.11 Send you technical alerts, updates, security notifications, and administrative communications.
We and our third-party marketing service providers may also use the information Customers send to us for our marketing purposes, if this is in accordance with your marketing preferences and applicable law. However, you may opt out of our marketing.
Legal basis for processing personal information (EEA only)
If you are from the European Economic Area (EEA), our legal basis for collecting and using the personal information described above will depend on the personal information concerned and the specific context in which we collect it.
However, we will normally collect personal information from you only where we have your consent to do so, where we need the personal information to perform a contract with you, or where the processing is in our legitimate interests and not overridden by your data protection interests or fundamental rights and freedoms. In some cases, we may also have a legal obligation to collect the personal information in question.
If we ask you to provide personal information to comply with a legal requirement or enter into a contract with you, we will make this clear at the relevant time and advise you whether the provision of your personal information is mandatory or not (as well as of the possible consequences if you do not provide your personal information).
Similarly, if we collect and use your personal information in reliance on our or a third party’s legitimate interests and those interests are not already listed above (see “Information We Use” section), we will make clear to you at the relevant time what those legitimate interests are.
If you have questions about or need further information concerning the legal basis on which we collect and use your personal information, please contact us using the contact details provided under the “Contact Us” section below.
3. SHARING AND DISCLOSURE OF INFORMATION TO THIRD PARTIES
We may share and disclose your information we collect with the following third parties:
- Voifinity or any of its worldwide affiliates consistent with this Notice for data processing;
- Business partners, contractors, vendors, and authorized third party agents, to:
- Operate, deliver, improve and customize our Services
- Provide support and technical services;
- Send marketing and other communications related to business;
- Enforce our acceptable use policy;
- Law enforcement agencies, regulatory or governmental bodies, or other third parties in order to respond to legal process, comply with any legal obligation; protect or defend our rights, interests or property or that of third parties; prevent or investigate wrongdoing in connection with the Website, Apps or our Services;
- Any third parties in connection with prospective or actual, sale, merger, acquisition, financing or reorganization of our business.
4. YOUR PRIVACY RIGHTS
Update and access to your information
Where we process personal information collected via our Website or Apps or via our Services for our own account management, billing or marketing purposes and where required by applicable law, we provide individuals with the opportunity to access, review, modify, and delete any such personal information that we process.
Your Privacy Rights as an EEA Person
In addition, if you are from the EEA, you may have broader rights to access and delete your personal information, to object to or restrict processing of your personal information, or request portability of your personal information.
To make such requests, you can send an email to legal@Voifinity.com or write to us at the mailing address in the “Contact Us” section below. We will consider and handle all requests in accordance with applicable laws.
If we have collected and processed your personal information with your consent, then you can withdraw your consent at any time. Withdrawing your consent will not affect the lawfulness of any processing we conducted prior to your withdrawal, nor will it affect processing of your personal information conducted in reliance on lawful processing grounds other than consent.
You also have the right to complain to your local data protection authority at any time.
In general, when processing personal information to provide our Services, we do so only on behalf of our EEA Customers and in accordance with their instructions. This means that if you wish to access, review, modify or delete any personal information we process on behalf of a Voifinity Customer, under applicable EEA law or otherwise, you should contact that Customer with your request. We will then help them to fulfill that request in accordance with their instructions.
Your Privacy Rights as a California Resident
If you are a California resident and receive Voifinity Services or visit our Website or Apps solely as a private individual—in other words, not as the member or representative of a company or other organization—you may have the right to receive a free, yearly accounting of:
- (1) information identifying each third party company to whom we may have disclosed, within the past year, personal information pertaining to you for our direct marketing purposes; and
- (2) a description of the categories of personal information disclosed.
If you are a California resident who qualifies to receive such an accounting and would like to make one, please email legal@Voifinity.com
5. UNSUBSCRIBE FROM OUR MAILING LIST
You may at any time ask us to remove you from our mailing list by sending us an email at unsubscribe@Voifinity.com or by visiting https://go.Voifinity.com/unsubscribepage.html, or by clicking “Unsubscribe” in any e-mail communications or push notification we send you. We will remove you from our mailing list in accordance with applicable laws.
To request that your phone number be removed from future sales calls, please email unsubscribe@Voifinity.com.
6. THIRD-PARTY SITES
This Notice does not apply to, nor are we responsible for, the privacy, information or other practices of any third parties, including any third party operating any site or service to which the Website links including but not limited to social media sites. The inclusion of a link on the Website does not imply our endorsement of the linked site or service.
7. BLOGS AND FORUMS
Our Website offers publicly accessible blogs or community forums. You should be aware that any information you provide in these areas is public and may be read, collected, and used by others who access them and may remain on the public forum indefinitely. To request removal of your personal information from our blog or community forum, contact us at legal@Voifinity.com. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. We encourage all Users to exercise caution when providing personal information in blogs and community forums.
Keeping your information secure is important to us. We maintain a variety of appropriate technical and organizational safeguards to protect your personal information both during transmission and once it is received. Voifinity has no control over or responsibility for the security or privacy policies or practices of other sites on the Internet you might visit, interact with, or from which you might buy products or Services, even if you visit them using links from our Website.
Please note that no website, mobile app or service is completely secure and so, while we endeavor to protect our Customers’ information using the measures described above, we cannot guarantee that unauthorized access, hacking, data loss or a data breach will not occur.
9. DATA RETENTION
We will retain your personal information for no longer than is necessary to fulfill the purposes for which the information was originally collected unless a longer retention period is required or permitted by law, for legal, tax or regulatory reasons, or other legitimate and lawful business purposes.
Where we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it.
10. INTERNATIONAL DATA TRANSFERS
Your personal information may be transferred to, and processed in, countries other than the country in which you are resident. Specifically, information collected outside the United States, including in the European Economic Area (“EEA“), may be transferred to and stored on our servers in the United States, Switzerland, and Netherlands, and potentially in other countries where our group companies and third party service providers and partners operate. These countries may have data protection laws that are different to the laws in your country (and in some cases, may not be as protective).
However, we have taken appropriate safeguards to ensure that your personal information will remain protected in accordance with this Notice and applicable laws. For example, in respect of personal information originating from the EU and Switzerland, Voifinity has self-certified to the EU-U.S. and Swiss-U.S. Privacy Shield Frameworks. Please click here to view our Privacy Shield Notice.
11. CHILDREN’S PRIVACY
Voifinity does not provide products or services that are designed for use by children under the age of 16, or knowingly collect personal information from or about children under the age of 16. If you believe that a child under the age of 16 has disclosed personal information to Voifinity, please contact legal@Voifinity.com.
12. CHANGES TO NOTICE
If we change our Notice, we will post those changes on this page in addition to updating the “Last Updated” date at the top of this webpage. If we make changes, we will notify you more directly, for example by posting a notification or message on the Website or by emailing you prior to such changes taking effect. We encourage you to review this Notice regularly to stay informed of the latest modifications.
13. CONTACT US
If you have any questions, comments or concerns about this Notice, please e-mail us at legal@Voifinity.com.
We, Voifinity, are committed to protecting your privacy. This Notice sets out the privacy principles we follow with respect to transfers of personal data from the European Economic Area (“EEA”) and Switzerland to the United States, including personal data we receive from individuals residing in the EEA and Switzerland who visit our web and mobile sites or apps and/or who use any of our services or otherwise interact with us (“you”).
We adhere to the EU-US and Swiss-US Privacy Shield Frameworks as administered by the US Department of Commerce regarding the collection, use and retention of personal data from European Union member countries and Switzerland. Voifinity certified adherence to and commits to apply the Privacy Shield Principles of Notice, Choice, Accountability for Onward Transfer, Security, Data Integrity and Purpose Limitation, Access, and Recourse, Enforcement, and Liability.
For purposes of enforcing compliance with the Privacy Shield, we are subject to the investigatory and enforcement authority of the US Federal Trade Commission.
For more information about the Privacy Shield, see the US Department of Commerce’s Privacy Shield website located at: https://www.privacyshield.gov. To review our certification on the Privacy Shield list, see the US Department of Commerce’s Privacy Shield self-certification list located at: https://www.privacyshield.gov/list.
1. Types of personal data we collect and use
Our online privacy notice located at https://www.Voifinity.com/legal/privacy-notice.html describes the categories of personal data we may receive in the United States, as well as the purposes for which we use that personal data. We will only process personal data in ways that are compatible with the purpose we collected it for, or for the purposes you later authorize. Before we use your personal data for a purpose that is materially different from the purpose we collected it for or that you later authorized, we will provide you with the opportunity to opt-out. We maintain reasonable procedures to help ensure that personal data we collect and use is reliable for its intended use, accurate, complete, and current.
2. Data transfers to third parties.
2.1 Agents, consultants and service providers: We may share your personal data with our contractors and service providers who process personal data on our behalf to perform certain business-related functions. These companies include database service providers, backup and disaster recovery service providers, and others. When we engage another company to perform such functions, we may provide them with information, including personal data, in connection with their performance of such functions. If we have received your personal data in the United States and subsequently transfer that information to a third party agent or service provider for processing, and such third party agent or service provider processes your personal data in a manner inconsistent with the Privacy Shield Principles, we remain responsible and liable under the Privacy Shield Principles unless we can prove we are not responsible for the event giving rise to the damage.
2.2 Our Group Companies: We may also share your personal data with our parent companies, subsidiaries and/or affiliates for purposes consistent with this Notice.
2.3 Business Partners: We also provide information to our business partners such as to fulfill product and information requests, and to provide customers and prospective customers with information about us and our products and services.
2.4 Business Transfers: As we develop our business, we might sell or buy businesses or assets. In the event of a corporate sale, merger, reorganization, dissolution or similar event, personal data may be part of the transferred assets.
2.5 Disclosures for National Security or Law Enforcement: Under certain circumstances, we may be required to disclose your personal data in response to valid requests by public authorities, including to meet national security or law enforcement requirements.
2.6 Legal Requirements: We may disclose your personal data if required to do so by law in order to (for example) respond to a subpoena or request from law enforcement, a court or a government agency ,or in the good faith belief that such action is necessary (a) to comply with a legal obligation, (b) to protect or defend our rights, interests or property or that of third parties, (c) to prevent or investigate possible wrongdoing in connection with the Services, (d) to act in urgent circumstances to protect the personal safety of Users of the Services or the public; or (e) to protect against legal liability.
We maintain reasonable and appropriate security measures to protect personal data from loss, misuse, unauthorized access, disclosure, alteration, or destruction in accordance with the Privacy Shield.
4. Access rights
In general, when processing personal data to provide our services, we do so only on behalf of our customers and in accordance with their instructions. This means that if you wish to access any personal data we process on behalf of a Voifinity customer and request that we correct, amend, delete it if it is inaccurate or processed in violation of Privacy Shield, you should contact that customer with your request. We will then help them to fulfil that request in accordance with their instructions.
Where we process personal data collected via our website or app or via our services for our own account management, billing or marketing purposes, you may have the right to access personal data that we hold about you and request that we correct, amend, delete it if it is inaccurate or processed in violation of Privacy Shield. These access rights may not apply in some cases, including where providing access is unreasonably burdensome or expensive under the circumstances or where it would violate the rights of someone other than the individual requesting access. If you would like to request access to, correction, amendment, or deletion of your personal data, you can submit a written request to the contact information provided below. We may request specific information from you to confirm your identity. In some circumstances we may charge a reasonable fee for access to your information.
5. Your choices
You may choose to change personal data or cancel an account by contacting us using the contact details below. You can also unsubscribe from our marketing communications by following the instructions or unsubscribe mechanism in the e-mail message.
6. Questions or complaints
You can direct any questions or complaints about the use or disclosure of your personal data to us at legal@Voifinity.com. We will investigate and attempt to resolve any complaints or disputes regarding the use or disclosure of personal data within 45 days of receiving your complaint.
7. Binding arbitration
You may have the option to select binding arbitration for the resolution of your complaint under certain circumstances, provided you have taken the following steps: 7.1 raised your complaint directly with us and provided us the opportunity to resolve the issue; 7.2 made use of the independent dispute resolution mechanism identified above; 7.3 raised the issue through the relevant data protection authority and allowed the US Department of Commerce an opportunity to resolve the complaint at no cost to you. To find out more about the Privacy Shield’s binding arbitration scheme please see www.privacyshield.gov/article?id=My-Rights-under-Privacy-Shield.
8. How to contact us
If you have any questions regarding this Notice or if you need to request access to or update, change or remove personal data that we control, you can do so by contacting us at legal@Voifinity.com
9. Changes to this Notice
We reserve the right to amend this Notice from time to time consistent with the Privacy Shield’s requirements.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE VOIFINITY API, THE VOIFINITY SDK, OR ANY MATERIAL RELATING THERETO.
BY DOWNLOADING, INSTALLING, OR USING THE VOIFINITY API, THE VOIFINITY SDK, OR ANY MATERIAL RELATING THERETO, YOU AGREE TO ABIDE BY AND COMPLY WITH THIS AGREEMENT, AND YOU AFFIRM THAT YOU EITHER ARE OVER THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE, ARE AN EMANCIPATED MINOR, OR POSSESS LEGAL PARENTAL OR GUARDIAN CONSENT, AND THAT YOU ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS, AND WARRANTIES SET FORTH IN THIS AGREEMENT.
- 1.1. “Account Access” means the access, utilization, or modification of a Subscriber’s account, Account Data, or Service by a Voifinity Application.
- 1.2. “Account Data” means data relating to a Subscriber that is stored or obtained through the Service. Account Data includes, without limitation, account login credentials, account configurations, Service usage data, voicemails, faxes, SMS messages, call recordings, and call routing rules.
- 1.3. “Affiliate” means, with respect to a subject entity, any other entity that, directly or indirectly, controls, is controlled by, or is under common control with the subject entity.
- 1.4. “Components” means software, components, computers, hardware, networks, and other infrastructure.
- 1.5. “Confidential Information” means all information disclosed by or on behalf Voifinity to Licensee in tangible or intangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information or the circumstances under which it was disclosed. Confidential Information may include, without limitation, proprietary information, technical data, trade secrets, know-how, source code, binary executables, documentation, research, product plans, customer lists and information, marketing research, financial information, and other business information. Account Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information other than Account Data shall not include information that (i) was already known to Licensee at the time of disclosure by or on behalf of Voifinity without an obligation of confidentiality; (ii) was or is obtained by Licensee from a third party not known by Licensee to be under an obligation of confidentiality with respect to such information; (iii) is or becomes generally available to the public other than by violation of this Agreement; or (iv) was or is independently developed by Licensee without use of Confidential Information.
- 1.6. “End Users” are users of a Voifinity Application.
- 1.7. “EULA” means the Voifinity End User License Agreement and Terms of Service, available at https://www.Voifinity.com/legal/eulatos.html, as it may be updated or amended from time to time.
- 1.8. “Intellectual Property Rights” means patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other intellectual property and/or proprietary rights anywhere in the world.
- 1.9. “Internal Use” means the use of the Voifinity API in connection with Licensee’s subscription to the Service for Licensee’s internal business purposes in accordance with the Terms and not for use by any unaffiliated third party.
- 1.10. “Privacy Notice” means the Voifinity Privacy Notice, available at https://www.Voifinity.com/legal/privacy-notice.html, as it may be updated from time to time.
- 1.11. “Publishing” means the making of a Voifinity Application available to any Subscriber other than Licensee or for any purpose other than for use by Licensee for its Internal Use
- 1.12. “Voifinity API” means the application programming interface and any accompanying or related documentation, source code, executable applications, and other materials made available by Voifinity to Licensee.
- 1.13. “Voifinity Application” means a web or other software service or application developed by Licensee that utilizes or interacts with the Voifinity API.
- 1.14. “Voifinity Marks” means Voifinity® and Voifinity’s other product and service names, trademarks, service marks, branding, and logos made available for use in connection with the Voifinity API pursuant to this Agreement.
- 1.15. “Voifinity SDK” means the software development kit provided by Voifinity to allow a Voifinity Application to interoperate with Voifinity and its services, including without limitation Voifinity SDK Sample Code.
- 1.16. “Voifinity SDK Sample Code” means any sample computer source code (a) provided by Voifinity to assist Licensee in developing and testing Voifinity Applications and (b) that has been explicitly designated by Voifinity in such source code as sample code that may be utilized by Licensee for the purposes set forth in (a). For the avoidance of doubt, Voifinity SDK Sample Code does not include any source code provided by Voifinity to interface with the Voifinity API that has not been designated as set forth in (b).
- 1.17. “Services” has the meaning set forth in the EULA.
- 1.18. “Spam” means bulk or unwanted communications.
- 1.19. “Subscriber” means any individual or entity that subscribes to the Service.
- 1.20. “Subscriber Components” means any Components in Subscriber’s possession, custody, or control.
- 1.21. “Subscriber’s Access Consent” has the meaning set forth in Section 7.14.
2. Authorization and License
- 2.1. This Agreement governs, and sets the conditions for, Licensee’s rights to use and access the Voifinity API and the Voifinity SDK for the purpose of developing, implementing, marketing, offering to sell, selling, supporting, maintaining, and operating Voifinity Applications, including without limitation for using Voifinity Applications for Internal Use and for Publishing Voifinity Applications.
- 2.2. Subject to the terms and conditions of this Agreement, Voifinity grants to Licensee a limited, non exclusive, non transferable, non sublicensable, worldwide, revocable right and license during the Term to:
- 2.2.1. Use and make calls to the Voifinity API to develop, implement, and distribute Voifinity Applications solely for use by Subscribers in connection with the Services;
- 2.2.2. Use, reproduce, distribute, and transmit Account Data to the extent necessary for a Voifinity Applications to interoperate with the Services in accordance with this Agreement; and
- 2.2.3. Use and display the Voifinity Marks only to identify that the Account Data originates from the Services and to show that the Voifinity Application interoperates with the Services.
- 2.3. Licensee’s and its End Users’ use of the Service in connection with the Voifinity API, and all data relating thereto, shall be governed by the terms of the EULA.
- 2.4. Licensee hereby grants to Voifinity a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to incorporate into the Service or the Voifinity API or otherwise use any suggestions, enhancement requests, recommendations, or other feedback Voifinity receives from Licensee.
- 2.5. If Voifinity believes, in its sole discretion, that Licensee has violated or attempted to violate any term, condition or the spirit of this Agreement or the EULA, the license afforded Licensee pursuant to this Agreement may be temporarily or permanently revoked, with or without notice to Licensee.
- Voifinity currently provides the Voifinity API at no charge to Licensee. Voifinity reserves the right to change its pricing policies for the Voifinity API at any time in its sole discretion. Voifinity shall provide Licensee reasonable prior written notice of such changes.
4. Voifinity’s Rights of Control Over the Voifinity API
- 4.1. Voifinity may limit or suspend Licensee’s usage of or access to the Voifinity API if, in Voifinity’s reasonable discretion, Licensee or Licensee’s Voifinity Applications are adversely affecting the performance or operation of the Services. Voifinity shall use commercially reasonable efforts to provide notice to Licensee of any such actions as soon as reasonably practical.
- 4.2. API Modifications
- 4.2.1. Voifinity may modify, amend, change, or deprecate all or part of the Voifinity API or the Voifinity SDK in its sole discretion at any time (an “API Modification”). Voifinity shall use commercially reasonable efforts to provide prior notice to Licensee of any such actions as soon as reasonably practical. Licensee shall, within thirty (30) days from the date of first notice of any API Modification(s) (or such shorter period of time specified in the notice of the API Modification(s)) (the “Conformance Period”) comply with such modification(s) by (i) implementing and using the most current version of the Voifinity API, (ii) making any changes to Voifinity Applications that may be required as a result of such API Modification, (iii) using commercially reasonable efforts to stop distribution of all prior versions of the Voifinity Applications, and (iv) using commercially reasonable efforts to upgrade all prior versions of the Voifinity Applications then in use to the most recent version.
- 4.2.2. Licensee acknowledges that an API Modification may have a material adverse effect on Voifinity Applications, including but not limited to causing Voifinity Applications not to operate as designed. Voifinity shall have no liability of any kind to Licensee or any user of Licensee’s Voifinity Applications with respect to such API Modifications or any adverse effects resulting from such API Modifications. Licensee’s continued access to or use of the Voifinity API following the Conformance Period shall constitute binding acceptance of the API Modifications at issue.
5. Voifinity Software Development Kit
- 5.1. Voifinity licenses the Voifinity SDK to you pursuant to the MIT license, the terms of which may be found here.
6. Voifinity’s Review of Voifinity Applications
- 6.1. In its sole discretion at any time, Voifinity may perform, at its sole cost, a security review of any of Licensee’s Voifinity Applications to ensure that the Voifinity Application complies with this Agreement, the EULA, or any other agreement between Voifinity and Licensee and that the Voifinity Application does not threaten the security, integrity, or performance of the Services or any Voifinity Components (a “Security Review”). Voifinity shall provide Licensee reasonable prior written notice of any Security Review. Licensee shall provide Voifinity, at no charge, full user-level access to the Voifinity Application and shall reasonably cooperate with Voifinity in the Security Review. Voifinity may perform the Security Review itself or through third parties on Voifinity’s behalf (and such third parties shall treat all information obtained through the Security Review as Confidential Information under this Agreement).
- 6.2. A Security Review may include, without limitation, any or all of the following steps:
- 6.2.1. The Licensee’s completion of a questionnaire;
- 6.2.2. Meetings or discussions at a reasonable time and place with Licensee’s developers;
- 6.2.3. Technical security testing by Voifinity of the Voifinity Application; and
- 6.2.4. To the extent the Voifinity Application uses Components other than Voifinity Components, Voifinity may perform penetration testing, remote application-level security testing, network-level security testing, and vulnerability threat assessments on such Components.
- 6.3. In performing the Security Review, Voifinity shall use commercially reasonable efforts to ensure its review does not cause any material adverse effect on any of Licensee’s Components supporting the Voifinity Application. Notwithstanding the foregoing, Voifinity shall not be liable for any adverse effects on such Components that could not have been avoided or foreseen through commercially reasonable efforts.
- 6.4. Voifinity shall inform Licensee of any issues discovered during the Security Review in writing and in reasonable detail. Voifinity may immediately revoke the license afforded Licensee pursuant to this Agreement if it discovers any such issues, and Licensee shall promptly cease distribution, support, and operation of the applicable Voifinity Application.
- 6.5. A Security Review by Voifinity shall not be deemed a warranty or certification of the applicable Voifinity Application, nor shall it limit Licensee’s liability for the breach of, or waive Licensee’s compliance with, any provision of this Agreement.
- 6.6. Licensee shall treat the occurrence of, results of, and any communications in connection with a Security Review as Confidential Information. For the avoidance of doubt, Licensee shall not use such information in any marketing or advertising of its Voifinity Applications.
7. Licensee’s Responsibilities
- 7.1. Licensee may not access or use the Voifinity API for any purposes if it is a direct competitor of Voifinity.
- 7.2. End Users shall be Subscribers to Services. Licensee must use best efforts to ensure that Voifinity Applications do not permit End Users who are not Subscribers to access or use the Services. In the event Licensee discovers that an End User is not a Subscriber, Licensee shall use best efforts to prevent that End User from using the Voifinity Application.
- 7.3. With respect to the Voifinity Applications, Licensee acknowledges and agrees that Voifinity has no obligations, responsibilities, or liabilities to End Users.
- 7.4. Licensee must comply with the restrictions set forth in this Agreement and the EULA in all uses of the Voifinity API, Account Data, and the Services. Licensee must also comply with the restrictions set forth in this Agreement and the Voifinity’s then-current trademark and branding guidelines in all uses of the Voifinity Marks.
- 7.5. Licensee’s Voifinity Application must not be intended to or designed to facilitate a violation of the EULA or this Agreement by End Users, including without limitation the use policies set forth in the EULA. In the event Voifinity reasonably believes Licensee’s Voifinity Application violates this Section 7.5, Licensee shall, promptly upon written notice and at Licensee’s sole cost, modify and redistribute the Voifinity Application and use its best efforts to disable or otherwise prevent End Users from using prior versions of the Voifinity Application that violate this Section 7.5. In no event will Licensee encourage its End Users to violate, or instruct its End Users on how to violate, the EULA or this Agreement.
- 7.6. In order to use and access the Voifinity API, Licensee must obtain API credentials (a“Token”) by becoming a Subscriber. Licensee may not share its Token, shall keep such Token and all login information secure, and shall use it as Licensee’s sole means of accessing the Voifinity API.
- 7.7. Licensee’s Voifinity Applications shall not substantially replicate products or services offered by Voifinity, including, without limitation, functions or clients on platforms (such as iOS or Android) where Voifinity offers its own client or a substantially similar function. By way of example only, Licensee may not develop a Voifinity Application for use on an iPhone that permits an End User to make general phone calls to the public switched telephone network because doing so would substantially replicate Voifinity’s mobile application for the iPhone. Licensee agrees that Voifinity may develop and publish applications that are similar to or otherwise compete with Licensee’s applications.
- 7.8. Voifinity Applications may not use or access the Voifinity API or the Services in order to monitor the availability, performance, or functionality of the Voifinity API or Services or for any similar benchmarking or competitive purposes.
- 7.9. Voifinity Applications shall not, in any manner, display any form of advertising that uses Account Data.
- 7.10. Licensee shall not, under any circumstances, through a Voifinity Application or otherwise, repackage or resell the Services, Voifinity API, or Account Data.
- 7.11. Licensee is not permitted to use the Voifinity API, Services, or Account Data in any manner that does or could potentially undermine the security or performance of the Service, the Voifinity API, Account Data, or the Services. In addition, Licensee shall not, and shall not attempt to, interfere with, modify or disable any features, functionality or security controls of the Services or the Voifinity API; defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Services or the Voifinity API; or reverse engineer, decompile, disassemble, or derive source code, underlying ideas, algorithms, structure, or organizational form from the Services or the Voifinity API.
- 7.12. Licensee acknowledges and agrees that Licensee is solely responsible, and that Voifinity has no responsibility or liability of any kind, for (a) the content, development, operation, sale, support, or maintenance of Voifinity Applications; or (b) Licensee’s inability to continue providing Voifinity Applications (in whole or part) due to the termination or expiration of this Agreement. Without limiting the foregoing, Licensee will be solely responsible for (i) the installation, operation, maintenance, and support of its Voifinity Applications; (ii) creating and displaying information and content on, through or within its Voifinity Applications; (iii) ensuring that its Voifinity Applications do not violate or infringe the Intellectual Property Rights of any third party; (iv) ensuring that Voifinity Applications are not offensive, profane, obscene, libelous or otherwise illegal; (v) ensuring that its Voifinity Applications do not contain or introduce Malicious Software into the Services, the Voifinity API, any Account Data or other data stored or transmitted using the Service, or Subscriber Components; (vi) ensuring that its Voifinity Applications are not designed to or utilized for the purpose of sending Spam to any Voifinity Subscribers or others; and (vii) transitioning End Users off a Voifinity Application when that Voifinity application is no longer available for any reason.
- 7.13. Licensee will respect and comply with the technical and policy-implemented limitations of the Voifinity API and the restrictions of this Agreement in designing and implementing Voifinity Applications.
- 7.14. Prior to accessing any Subscriber’s account or Account Data or otherwise utilizing a Subscriber’s Services, Licensee shall disclose in writing and reasonable detail to the Subscriber (a) that the Voifinity Application will have Account Access; (b) the nature of the Account Access, including without limitation how the Service will be used and what Account Data will be accessed or modified by the Voifinity Application; and (c) where, if applicable, Account Data may be stored, transmitted, or accessed outside of Voifinity Components. The Subscriber must provide express consent prior to any Account Access, and such consent shall be limited to the scope of what is disclosed in the previous sentence (the “Subscriber’s Access Consent”). Licensee shall promptly cease any Account Access upon the Subscriber’s withdrawal of the Subscriber’s Access Consent.
- 7.15. In no event shall Licensee or the Voifinity Application engage in Account Access or transmit, store, or access Account Data outside the scope of the Subscriber’s Access Consent.
- 7.16. Sections 7.14 to 7.15 shall not apply to the extent (and only to the extent) that Licensee uses a Voifinity Application solely with its own subscription to the Services. Licensee’s consent to such Account Access shall be deemed given in such cases.
8. Licensee’s Representations, Warranties, and Covenants
- 8.1. Licensee represents and warrants that its Voifinity Applications are not intended, designed, or marketed for use in environments requiring fail-safe performance (e.g., emergency medical care, hazardous activities) or in which the failure of the Voifinity Applications, the Voifinity API, or the Services could lead to death, personal injury, or severe physical or environmental damage. Licensee acknowledges and agrees that the Voifinity API and the Services are designed and intended for general business use only and not for the foregoing purposes.
- 8.2. Licensee represents and warrants that it has notified all users or its Voifinity Applications that their Account Data will be received from Voifinity and described in reasonable detail how Licensee will use this Account Data. Licensee further represents and warrants that it has notified users that Voifinity is not responsible for the privacy, security or integrity of such data.
- 8.3. Licensee further represents and warrants that to the extent Licensee’s Voifinity Applications store, process, or transmit Account Data, neither Licensee nor Licensee’s Voifinity Application will, without appropriate prior user consent or to the extent required by applicable law, (i) modify the content of Account Data in a manner that adversely affects the integrity of Account Data, (ii) discloses Account Data to any third party, or (iii) use Account Data for any purpose other than providing the Voifinity Application functionality to users of such Voifinity Application. Licensee shall maintain and handle all Account Data in accordance with privacy and security measures reasonably adequate to preserve its confidentiality and security and all applicable privacy laws and regulations, and in no event less protective than the measures and policies set forth in the Privacy Notice.
- 8.4. Licensee represents, warrants and covenants that:
- 8.4.1. Its Voifinity Applications and Licensee Marks, the use of such Voifinity Applications by its users, and the activities with respect to such Voifinity Applications and Licensee Marks undertaken by Voifinity in accordance with the terms of this Agreement, do not and will not violate, misappropriate, or infringe the Intellectual Property Rights of any person or entity;
- 8.4.2. Licensee and Licensee’s Voifinity Application will comply with all applicable foreign and domestic laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits and other permissions necessary to develop, implement and Publish its Voifinity Applications;
- 8.4.3. Its Voifinity Applications do not and will not contain or introduce Malicious Software into the Services, the Voifinity API, any Account Data or other data stored or transmitted using the Services, or any Subscriber Components, and Licensee shall promptly take all actions necessary to remove and remediate such Malicious Software;
- 8.4.4. Licensee shall implement at least industry best practices to ensure the security of its Voifinity Applications;
- 8.4.5. Its Voifinity Applications do not contain any security vulnerabilities, and Licensee shall promptly take all actions necessary to remediate any security vulnerabilities;
- 8.4.6. Licensee shall use best efforts to protect the confidentiality and integrity of Account Data in Licensee’s possession, custody, or control, including without limitation implementing at least industry standard physical and technical security safeguards, policies, and procedures;
- 8.4.7. Licensee shall not knowingly attempt to circumvent any security measures implemented by Voifinity;
- 8.4.8. Its Voifinity Applications are not designed to facilitate the sending of Spam;
- 8.4.9. Its Voifinity Applications shall not degrade the performance of or materially adversely affect the operation of the Services or Subscribers’ use and enjoyment of the Services;
- 8.4.10. The Voifinity Application shall not be designed to violate, or intended to facilitate the violation of, the EULA or this Agreement, including without limitation the use policies set forth in the EULA; and
- 8.4.11. It has all right, power, and authority to grant the licenses granted to Voifinity herein.
- 9.1. Subject to the limited licenses expressly provided in this Agreement, nothing in this Agreement transfers or assigns to Voifinity any of Licensee’s Intellectual Property Rights in its Voifinity Applications or Licensee’s Marks or other technology
- 9.2. Nothing in this Agreement transfers or assigns to Licensee any of Voifinity’s Intellectual Property Rights in the Services, the Voifinity API, the Voifinity SDK, the Voifinity Marks, Voifinity’s other technology, or Voifinity’s or Subscribers’ respective Intellectual Property Rights in any Account Data.
- 10.1. Voifinity is not obligated to provide any support to Licensee for the Voifinity API or Licensee’s Voifinity Application (or its interoperation with the Voifinity API).
- 10.2. Licensee is solely responsible for providing all support and technical assistance to its End Users with respect to Licensee’s Voifinity Application. Licensee agrees to use commercially reasonable efforts to provide support to its End Users.
- 10.3. Licensee acknowledges and agrees that with respect to the Voifinity Applications, Voifinity will not provide support or technical assistance to Licensee’s End Users, and Licensee shall not represent to its End Users that Voifinity is available to provide such support.
11. No Service Level Agreement
- 11.1. Voifinity shall use commercially reasonable efforts to ensure the availability of the Voifinity API to Licensee. Notwithstanding the foregoing, Voifinity does not guarantee any uptime, availability, performance, or integrity of the Voifinity API. Moreover, Voifinity shall not be liable to Licensee or its End Users for the unavailability of the Voifinity API or the failure of the Voifinity API to perform in accordance with its specifications. Licensee shall not represent to its End Users any availability or performance levels with respect to the Voifinity API or the Services.
- 11.2. Voifinity is not required to provide any prior notice to Licensee or its End Users of planned or unplanned downtime of the Voifinity API.
- 11.3. In the event of any failure of the Service for the Licensee or an End User, such failure will be governed by the terms of the EULA with the Licensee or End User (as applicable).
- 12.1. Licensee may, from time to time, gain access to Confidential Information. Licensee may use Confidential Information only to the extent necessary to exercise its rights under this Agreement and for no other purpose. Licensee may not disclose Confidential Information to a third party without Voifinity’s prior express written consent. Without limiting any other obligation of Licensee under this Agreement, Licensee agrees that it will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that Licensee would use to protect its own confidential and proprietary information of a similar nature, but in no event less than a reasonable degree of care.
- 12.2. In event Licensee receives a subpoena or other form of compulsory process requiring or purporting to require disclosure Confidential Information, Licensee shall first (a) promptly notify Voifinity in writing, (b) reasonably cooperate with Voifinity (at Voifinity’s sole expense) in the event Voifinity chooses to seek a protective order or other remedy to prevent or limit disclosure of Confidential Information (a “Protective Order”), and (c) not disclose any Confidential Information until Voifinity has chosen in its sole discretion to waive compliance with this Section 12 as to such Confidential Information or has been granted or denied a Protective Order. In the event Licensee must disclose Confidential Information after complying with this Section 12.2, Licensee shall disclose such information only to the extent legally required.
13. Disclaimer of Warranties
- 13.1. THE Voifinity API SERVICES ARE INTENDED FOR GENERAL BUSINESS USE ONLY. THEY ARE NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE OR RESALE AS EQUIPMENT OR SERVICES IN ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE (E.G., EMERGENCY MEDICAL CARE, HAZARDOUS ACTIVITIES) OR IN WHICH THE FAILURE OF THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. Voifinity SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES OR SERVICES.
- 13.2. TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES, THE VOIFINITY API, THE VOIFINITY SDK, ALL SERVER AND NETWORK COMPONENTS, WEB SERVICES, SOFTWARE, AND DOCUMENTATION, ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. VOIFINITY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LICENSEE ACKNOWLEDGES THAT VOIFINITY DOES NOT WARRANT THAT THE SERVICE OR VOIFINITY API, OR THE VOIFINITY SDK WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, OR THAT ANY DEFECT IN THE VOIFINITY API WILL BE CORRECTED. IN ADDITION, VOIFINITY MAKES NO WARRANTIES THAT THE VOIFINITY API OR VOIFINITY SDK SHALL NOT CAUSE DISRUPTIONS, ERRORS, LOSS OF DATA, LOSS OF USE, OR OTHER PROBLEMS WITH YOUR VOIFINITY APPLICATION OR ANY COMPUTER ON WHICH THE VOIFINITY APPLICATION IS INSTALLED OR USED.VOIFINITY IS NOT RESPONSIBLE FOR ANY DAMAGES OR HARM ARISING FROM YOUR USE OF THE VOIFINITY APPLICATION. NO INFORMATION OR ADVICE OBTAINED BY LICENSEE, ITS END USERS, OR OTHER THIRD PARTIES FROM VOIFINITY OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
14. Limitation of Liability
- 14.1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) WILL VOIFINITY, ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS, RESELLERS, OR SUPPLIERS BE LIABLE TO LICENSEE, ITS END USERS, OR ANY OTHER THIRD PARTIES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, OR ANY OTHER LOSS INCURRED BY LICENSEE, ITS END USERS, OR ANY OTHER THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER VOIFINITY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
- 14.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, VOIFINITY’S AGGREGATE LIABILITY TO LICENSEE, ITS END USERS, OR ANY OTHER THIRD PARTY ARISING OUT OR RELATING TO THIS AGREEMENT SHALL IN NO EVENT EXCEED FIVE HUNDRED U.S. DOLLARS ($500.00). ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE EVENTS GIVING RISE TO THE CLAIM.
- 14.3. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Licensee. IN THESE JURISDICTIONS, VOIFINITY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Section 14 will survive termination or expiration of this Agreement and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
- 15.1. Licensee will indemnify and hold Voifinity, its Affiliates, and their respective officers, directors, employees, agents, subcontractors, and resellers harmless against any claim brought by a third party (including, without limitation, Licensee’s End Users) against Voifinity arising from or relating to (i) any breach of this Agreement by Licensee or those acting on its behalf, (ii) any violation of law or regulation by Licensee or the Voifinity Application, (iii) Licensee’s gross negligence, recklessness, or willful misconduct, and (iv) any use of Licensee’s Voifinity Application, the Voifinity API, or the Voifinity SDK (but, for the avoidance of doubt, not Subscribers’ use of the Services independent of Licensee’s Voifinity Application).
- 16.1. Voifinity may identify Licensee as a user of the Voifinity API in its business deals; press releases; investor relations; reports required to be filed under applicable securities laws and regulations; marketing materials; electronic, printed, and broadcast advertising; newsletters; mailings; trade shows; other promotional materials; on Voifinity’s website; or any other third-party website where Voifinity or its designated agents may promote the Services or the Voifinity API. Licensee hereby grants Voifinity, its Affiliates, and their respective agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Licensee’s name, trademarks, service marks, designs, logos, and symbols in connection with such purposes.
17. Term and Termination
- 17.1. This Agreement shall commence on the Effective Date and will remain in effect until terminated pursuant to this Section 17.
- 17.2. Either party may terminate this Agreement at any time, for any reason or for no reason, including, but not limited to, if Licensee violates any provision of this Agreement.
- 17.3. Any termination or expiration of this Agreement shall also terminate the licenses granted hereunder.
- 17.4. Upon termination or expiration of this, Licensee shall immediately cease:
- 17.4.1. All use of the Voifinity API;
- 17.4.2. Developing, testing, using, marketing, offering to sell, selling, distributing, promoting, or supporting Voifinity Applications; provided, however, the foregoing shall not prevent Licensee from engaging in these activities for successor products and services that do not use the Voifinity API; and
- 17.4.3. Using, and either return to Voifinity or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Licensee’s possession, custody, or control, and, upon request by Voifinity, shall certify in writing that such actions have occurred.
- 17.5. Sections 2.4, 7.12, 8.4.6, 9, 12, 13, 14, 15, 17.4, 17.5, and 18 shall survive termination or expiration of this Agreement.
- 18.1. Voifinity may change the terms of this Agreement from time to time upon delivery of electronic or written notice to Licensee. The modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of this Agreement.
- 18.2. Voifinity may assign this Agreement and any of its rights and obligations hereunder at any time. Licensee may not transfer or assign this Agreement or any of its rights or obligations under this Agreement. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties, their successors, permitted assigns, and legal representatives.
- 18.3. A Party’s failure to enforce any provision of this Agreement does not constitute a waiver of that provision or of any other provisions of this Agreement.
- 18.4. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the parties’ original intent, and the remaining portions shall remain in full force and effect.
- 18.5. Nothing in this Agreement shall be deemed or construed to constitute or create employment, partnership, association, joint venture, agency, or fiduciary relationship between the parties.
- 18.6. All notices to be provided under this Agreement shall be governed by the notice provisions of the EULA.
- 18.7. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or Licensee’s use of the Voifinity API.
- 18.8. Any claim, question, or disagreement between Licensee and Voifinity, its Affiliates, or their respective officers, directors, employees, agents, subcontractors, or resellers arising from or relating to this Agreement (a “Dispute”) shall be adjudicated exclusively in the Superior Court of California, County of San Mateo for state court cases or the United States District Court of the Northern District of California for federal court cases. Each Party agrees to submit to the exclusive jurisdiction of such courts with respect to any Disputes and agrees not to bring any Disputes in any other court or adjudicative body. Each Party hereby consents to venue and personal jurisdiction in such courts with respect to such Disputes and irrevocably waives any right that it may have to assert that such forum is not convenient or that any such court lacks jurisdiction.
- 18.9. In the event of any litigation (including arbitration) concerning a Dispute, the non-prevailing party shall reimburse the prevailing party for all reasonable and documented attorneys’ fees, costs, and expenses relating to the Dispute.
- 18.10. There are no third-party beneficiaries to this Agreement.
- 18.11. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
- 18.12. This Agreement constitutes the entire agreement among the Parties with respect to the subject matter of this Agreement.
Copyright (c) 2014-2018 Voifinity
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
- This Website contains the terms and conditions pursuant to which You may purchase/license certain products offered by Voifinity, including IP Desk phones and equipment related to IP Desk phones, such as handsets, headsets, and related software installed on those devices.
2. The purchase/license of Products shipped will be fulfilled by Voifinity or by a designated affiliate for sales outside of the US and Canada, and will be subject to the Voifinity Terms and Conditions of Sale of Hardware.
Voifinity’s Phone Lease Program and Rental Agreement (“Rental Agreement”) is available to those customers who have entered into a written contract for the purchase of Voifinity Office Services (hereafter, the Voifinity Office Plan Purchase Agreement) with a minimum Initial Term of at least twenty-four (24) months and a Renewal Term of at least twelve (12) months. For clarification, the Rental Agreement must be conterminous with the Voifinity Office Plan Purchase Agreement and for an Initial Term of at least twenty-four (24) months, and the customer must enter into the Rental Agreement at the same time as the Start Date of the Voifinity Office Plan Purchase Agreement. This Phone Rental/Lease Program is offered and available to United States Residents only.
This Rental Agreement, when entered into, will form part of the Voifinity Office Plan Purchase Agreement, the terms of which are incorporated herein by reference, including, without limitation, all defined terms.
Any capitalized terms not defined herein will have the same meaning as in the Voifinity Office Plan Purchase Agreement, as applicable.
1. Rental Services
This Rental Agreement is for the rental of certain telephone hardware (each a “Rental Device”) from Voifinity (collectively, the “Rental Services”). Voifinity charges a recurring monthly fee for each Rental Device (collectively, the “Rental Fees”). As a part of your recurring bill from Voifinity, you agree to pay the Rental Fees for all Rental Devices, using the same payment method and payment period as your payments for Voifinity Office Services, as defined in your Voifinity Office Plan Purchase Agreement. Voifinity will pro-rate the Rental Fees for any equipment that is rented, for the initial period from the start of the rental period until the end of then-current billing period for the Office Services, and the start of the rental will begin on the date a Rental Device is recorded as delivered by a designated courier (the “Rental Start Date”).
The Rental Services with respect to a Rental Device shall commence on the Rental Start Date and terminate upon the earliest to occur of (a) either Party delivers written notice of termination of this Agreement to the other Party at least thirty (30) days prior to the applicable termination date (with such termination date being at the end of the Office Services billing period in which the end of such 30 day period occurs, (b) the termination of the Voifinity Office Plan Purchase Agreement. Notwithstanding the above, at any time within thirty (30) days after the Rental Start Date, you may terminate the Rental Services with respect to a Rental Device immediately upon written notice from you to Voifinity, without paying any Rental Fees for such Rental Device.
Upon any termination of the Rental Agreement or Rental Services, you agree to return or purchase a Rental Device (including all accessories and materials that were provided with the primary hardware device) consistent with Voifinity’s written instructions and in accordance with the Return or Purchase Rights section of this Rental Agreement, and that Rental Device will no longer be considered a Rental Device upon the completion of a return or purchase. If you do not return a Rental Device (subject to Voifinity’s inspection and acceptance of the returned Rental Device in its reasonable discretion) within thirty (30) following the termination of the Rental Services for such Rental Device, you will be deemed to have purchased that device at a purchase price equal to (1) during the first 12 months after you received the Rental Device, 100% of the Rental Device’s then-current Voifinity list price shown on Voifinity’s website, or (2) after such 12 month period, 80% of such list price, and you agree to pay the applicable purchase price.
If you wish to upgrade a Rental Device, the replacement of the current Rental Device shall be deemed a termination of the Rental Services with respect to the current Rental Device and be subject to the termination provisions hereof, including the return or purchase provisions for the Rental Device set forth in the Return or Purchase Rights section of this Rental Agreement; provided that the Rental Services for the current Rental Device shall be deemed to terminate, and the Rental Services of the replacement Rental Device shall commence, on the date the replacement Rental Device is recorded as delivered by a designated courier.
The Rental Fees for the Rental Services do not include additional services you may select, taxes, fees, international usage, and other additional services. Sales tax varies by jurisdiction of purchase or rental and may be calculated based on full retail price or Voifinity cost price, as determined by the tax law in the jurisdiction of purchase or rental.
2. Rental Devices Ownership; Damage and Loss
Voifinity is and will remain the owner of each Rental Device unless title is conveyed to you in writing following Voifinity’s confirmation to you of its receipt of your payment in full of the purchase price for the Rental Device. You will not grant any third party any right to use, possess, or control any Rental Device, sublease any Rental Device, attempt to dispose of any Rental Device, grant any interest or right in a Rental Device to any third party, or otherwise do anything that undermines Voifinity’s ownership of each Rental Device. Voifinity may, without notifying you, assign Voifinity’s interest in any Rental Device, and in that event, Voifinity’s assignee will have all of Voifinity’s rights in the Rental Device under this Agreement, but none of Voifinity’s obligations. You agree not to assert against Voifinity’s assignee any claims, offsets, or defenses you may have against Voifinity. Upon Voifinity’s request, you will execute and deliver to Voifinity any documents or forms for protecting Voifinity’s ownership and interest in each Rental Device, including finance statements under the Uniform Commercial Code.
Upon receipt of each Rental Device, you will examine each Rental Device, and unless you notify Voifinity within five business days of your receipt of a Rental Device to any issue with a Rental Device, each Rental Device is deemed to be in good working order at the time of receipt. In the event that any Rental Device delivered to you is stolen, lost, damaged, or transferred to any third party, regardless of the circumstances or cause, you will immediately notify Voifinity in writing and pay Voifinity a purchase price equal to (1) during the first 12 months after you received the Rental Device, 100% of the Rental Device’s then-current Voifinity list price shown on Voifinity’s website, or (2) after such 12 month period, 80% of such list price. This obligation does not apply to any damage to a Rental Device that is covered by the manufacturer’s warranty.
3. Rental Device Usage
You will ensure that: (a) each Rental Device will only be used in a careful and proper manner and in accordance with the written instructions provided with it by Voifinity, as may be updated by Voifinity or the manufacturer of the Rental Device from time to time; (b) each Rental Device will be used with due care and will not be defaced, modified, or used or operated in any manner or for any purpose in violation of any federal, state, or local law or regulation; (c) each Rental Device must remain within the United States and may not be exported or re-exported to any country contrary to U.S. export laws; (d) any regulatory or certification markers affixed to a Rental Device may not be removed, defaced, or otherwise obstructed; and (e) each Rental Device will only be repaired subject to Voifinity’s express written authorization and in accordance with Voifinity’s instructions and requirements.
4.Return or Purchase Rights
When you return a Rental Device, you agree to return a fully functional and non-damaged Rental Device to Voifinity, at your risk and cost, and you agree that, to the extent that you do not do so, you will be obligated to pay Voifinity a thirty-five dollar ($35.00) re-stocking fee. You agree to pay all shipping and handling charges related to any Rental Device and related hardware returns.
All Rental Devices and related hardware must be fully functional, include all components, manuals, peripheral devices, and all other accessories that were originally shipped with the Rental Device. At our discretion, we may decline your return or charge you an additional fee of thirty dollars ($30) for each missing item or for each item that we determine is damaged or not in good working condition.
Before returning any Rental Device or hardware that has data in its memory, please transfer all files you wish to retain to another file source. Once the hardware is returned, your files cannot be recovered and you release us of any liability for any lost, damaged, or destroyed files, data, or other information.
You may purchase a Rental Device at any time following 12 months from the date you received the Rental Device. You agree to purchase the Rental Device for 80% of the Rental Device’s then-current Voifinity list price shown on Voifinity’s web.
If you are obligated to return or purchase a Rental Device subject to this Return or Purchase Rights section of this Rental Agreement, and you have not returned a Rental Device or you have defaulted in any obligation to pay the purchase price due for a Rental Device to be purchased, Voifinity may, in addition to those remedies available at law, in equity, or as otherwise set forth in this Agreement, take possession of any or all Rental Devices without demand, notice, or legal process, wherever each Rental Device may be located, and you hereby waive any and all damages occasioned by that taking of possession.
5. Warranty Disclaimer
EACH RENTAL DEVICE AND ANY TELEPHONE HARDWARE PURCHASED IN CONNECTION WITH THIS RENTAL AGREEMENT IS PROVIDED “AS IS” AND “AS AVAILABLE” AND Voifinity MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY SIMILAR WARRANTY, WHETHER SAID WARRANTY ARISES UNDER PROVISIONS OF ANY LAW OF THE UNITED STATES OR ANY STATE THEREOF OR ANY COUNTRY. Voifinity MAKES NO REPRESENTATIONS OR WARRANTIES THAT ANY RENTAL DEVICE WILL BE DELIVERED TO YOU BY A PARTICULAR DATE OR IS FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS (INCLUDING PATENT AND TRADE SECRET RIGHTS). THE ENTIRE RISK ASSOCIATED WITH THE USE OF ANY RENTAL DEVICE SHALL BE BORNE SOLELY BY YOU.
SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT Voifinity CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
6. General Terms
You authorize us to collect any payment owed by you hereunder from your payment method, as provided in your Voifinity® Office Plan Purchase Agreement. This Rental Agreement, which is subject to and incorporates by reference the Voifinity® Office Plan Purchase Agreement constitutes the complete, final, and exclusive embodiment of the entire agreement between you and the Company regarding the Rental Services. In signing the Agreement, the undersigned represents to Voifinity that the undersigned has full power and authority to perform all of its obligations hereunder. This Rental Agreement is the binding obligation of the undersigned, enforceable against the undersigned in accordance with its terms.
Voifinity may, in its discretion, update or change the terms and conditions of this Rental Agreement, and the version of this Rental Agreement applicable to each Rental Device, is the version of this Rental Agreement then in effect at the start of the rental for that Rental Device, including the start of the rental for an upgrade Rental Device. This Phone Rental/Lease Program is offered and available to United States residents only. Customer must agree to a Service Commitment Period for Voifinity Office Services with an Initial Term of at least 24 months to be eligible to participate in the Phone Rental/Lease Program.
Voifinity Virtual Patent Marking:
This website is provided to satisfy the virtual patent marking provisions of various jurisdictions including the virtual patent marking and notice provisions of 35 U.S.C. §287(a).
The following list of Voifinity services and associated U.S. Patents may not be all inclusive, and other Voifinity services not listed here may be protected by one or more patents. Additional patents are issued or pending in the United States and elsewhere.
This information is subject to change without notice.
|U.S. Patent No.||8,848,689|
|U.S. Patent No.||9,264,457|
|U.S. Patent No.||9,219,772|
|U.S. Patent No.||8,582,733|
|U.S. Patent No.||8,606,938|
|U.S. Patent No.||9,026,636|
|U.S. Patent No.||9,331,977|
|U.S. Patent No.||8,483,367|
|U.S. Patent No.||8,867,710|
|U.S. Patent No.||8,467,514|
|U.S. Patent No.||8,817,963|
|U.S. Patent No.||8,285,267|
|U.S. Patent No.||8,335,498|
|U.S. Patent No.||8,600,363|
|U.S. Patent No.||9,131,054|
|U.S. Patent No.||9,002,350|
|U.S. Patent No.||8,831,597|
|U.S. Patent No.||9,215,317|
|U.S. Patent No.||8,134,727|
|U.S. Patent No.||8,384,942|
|U.S. Patent No.||8,780,400|
|U.S. Patent No.||9,059,953|
|U.S. Patent No.||8,305,622|
|U.S. Patent No.||8,611,879|
|U.S. Patent No.||8,934,883|
|U.S. Patent No.||9,294,985|
|U.S. Patent No.||8,787,367|
|U.S. Patent No.||8,355,496|
|U.S. Patent No.||8,891,737|
|U.S. Patent No.||8,275,110|
|U.S. Patent No.||8,681,968|
|U.S. Patent No.||8,885,809|
|U.S. Patent No.||8,862,180|
|U.S. Patent No.||9,473,873|
|U.S. Patent No.||9,455,942|
|U.S. Patent No.||8,588,744|
|U.S. Patent No.||9,008,625|
|U.S. Patent No.||9,037,747|
|U.S. Patent No.||9,104,879|
Open Source Licenses:
Voifinity services may also be governed by the additional terms of certain software licenses, which are available here:
- I. JSON Framework License
- II. KissXML License
- III. Global IP Solutions iLBC Public License
- IV. libSRTP License
- V.Vovida Software License