These Terms of Service were LAST UPDATED on February 1, 2018.
Please make sure to be familiar with this version!
Welcome and an important message
Hi! Welcome to Karix.io. We are excited that you are interested in using our Services.
Before getting started, we need to address some legal formalities with you. You will need to read and accept these Karix Terms of Service Terms of Service before you can start using our Services. In fact, we are relying on your acceptance of these Terms of Service when we are providing our Services to you. Please note that we will sometimes also refer to our Terms of Service as these “Terms”.
We want you to know that these Terms are very important as they will create binding obligations on you once you accept them. THEREFORE, WE ASK THAT YOU PLEASE CAREFULLY READ THESE TERMS IN THEIR ENTIRETY PRIOR TO CLICKING ON THE “ACCEPTED AND AGREED” (OR EQUIVALENT) BUTTON. We advise that you to consult with your own, independent legal counsel for any legal or regulatory advice related to these Terms and your access and use of the Services.
IF YOU DO NOT AGREE TO ANY OF THESE TERMS BELOW, THEN YOU MUST CLICK ON THE “CANCEL” (OR EQUIVALENT) BUTTON AND YOU SHOULD NOT USE OUR SERVICES.
If you are, or you represent, a governmental department or agency, then you must click on the “CANCEL” (or equivalent) button and may not use the Services.
Take these steps to use the Services
Read these Terms
Carefully read all of these Terms of Service.
If you have any questions about any of these Terms, let us know. You can contact us by sending an email to firstname.lastname@example.org.
Accept these Terms
When you are comfortable with all of these Terms and are ready to begin using the Services click on the “ACCEPTED AND AGREED” (or equivalent) button to agree to be bound by these Terms.
Create an Account
Create your Account and provide your Credit Card Information.
Start using the Services.
Some helpful tips
Certain important provisions we want to highlight to you
While all provisions within these Terms of Service are important and should be reviewed carefully, we would like to call your attention to a few of the terms to which you are agreeing even though they may be further down these Terms. These affect your rights. Please review these Sections in their entirety later in these Terms.
- AUTHORITY TO CHARGE YOUR CREDIT CARD (Section 6.8). You are granting us and our Payment Processor the authority to charge your Credit Car, including, in some circumstances, charging the Credit Card on a recurring basis without any further action or approval by you.
- LIMITED WARRANTIES (Section 12.2 and Section 12.3). We generally do not provide any warranties to you. This is true for our Services too. As a result, our liability to you will be limited.
- LIMITATIONS OF LIABILITY (Section 14). Even if we may have some potential liability to you, you are agreeing in advance that the types and amount of such liability will be limited.
- AGREEMENT TO ARBITRATE (Section 15.2). Except for certain types of disputes described below, you are agreeing to resolve any other disputes between you and us by binding, individual arbitration.
- WAIVER OF RIGHT TO JURY TRIAL (Section 15.5). You are waiving your right to have disputes and claims decided by a jury.
- CLASS ACTION WAIVER (Section 15.6). You are waiving your right to participate in class action lawsuits, class-wide arbitrations, and representative actions.
Some terminology with which you should be familiar
These Terms of Service use various capitalized terms throughout. The meanings for such capitalized terms can be found where those capitalized terms are found in quotes (“”) and they are used with such meanings wherever you see them in these Terms.
Here are some examples. The terms:
“Karix”, “we”, “us”, and “our” each means Karix Mobile, LLC. We are a Delaware (United States of America) limited liability company and our registered address is 1675 South State Street, Suite B, Dover, DE 19901 USA.
“Customer”, “you”, and “your” each means the individual or the business entity (for example, a corporation, limited liability company, partnership, proprietorship, or other legal entity) that is registering for an Account and will be using the Services. If you are registering for an Account, or using the Services, on behalf of a business entity, then you are accepting and agreeing to these Terms on behalf of such business entity and, by doing so, are representing and warranting to us that you have the authority to bind such business entity to these Terms and agree that we may presume that you have such authority.
“Services” means all of our platform services that we offer from time to time for customers to access and use under these Terms. The term “Services” includes (a) our (and/or our affiliates’) proprietary platforms, networks, systems, software, computer programs, applications, codes (including source codes, object codes, and program codes), other technology, features, functionality, application program interfaces (“API”), software development kits (“SDK”), user interfaces, user and technical documentation including online help files, and responses to frequently asked questions (“Documentation”), reports (including templates and formats), technical and operational support, websites, and portals, and (b) all enhancements, modifications, updates, upgrades, derivative works, or changes made to any and all of the things listed in clause (a).
“Usage Data” means any data, information, and other material in any format to which we have access through, or as a result of, your use of the Services. The term “Usage Data” includes all Account Data, the content of communications entered through or under, or sent to, your Account (including message bodies, audio and video recordings, images, and transcripts) (“Content”), message and call logs, billing and payment information, and any other data, information, and other material input or collected through the Services. For purposes of these Terms, all Usage Data will be deemed yours for which you are solely responsible, including if provided by for or on behalf of an End User.
“Law” means all applicable international, foreign, national, federal, state, and local laws, rules, regulations, directives, statements, and codes of practice, including any export/import laws, as amended from time to time. Any reference in these Terms to a specific Law will be deemed also to include any other analogous Law in that, or any other, jurisdiction.
“User” means any of your Representatives who use the Services on your behalf or through your Account, whether authorized or not.
“End User” means any Third Party (and its Representatives) that has access to, or utilizes, the Connected Applications, directly or indirectly, whether authorized or not.
“End Customer” means any individual (a) to which you transmit or intend to transmit Content or (b) who transmits Content to you. An End Customer will have a wireless, telephonic, computer, or other device (“Device”) capable of sending, receiving, and/or displaying Content sent by you.
“Representatives” means any and all officers, directors, employees, contractors, agents, and legal and financial advisors of an individual or business entity.
“Affiliate” means any individual or business entity directly or indirectly controlling, controlled by, or under common control with a party, where a business entity will be treated as being controlled by an individual or other business entity if that individual or other business entity has fifty percent (50%) or more of the votes in such business entity, is able to direct its affairs, and/or to control the composition of its board of directors or equivalent body.
“Third Party” means any individual or business entity other than you and us. The term “Third Parties” includes Affiliates, End Users, and End Customers.
Additional terms and conditions that will also apply to you
These Terms of Service include the following additional terms and conditions which apply to your use of the Services:
The Karix Acceptable Use Policy [add link] (“AUP”)
The additional terms referenced in Section 4.3 (“Supplemental Terms”)
Table of Contents
Although you should read these Terms of Service in their entirety, the following Table of Contents may be used for quick navigation to different provisions within these Terms.
Your Acceptance of these Terms of Service
Changes to these Terms of Service
Your Account and Right to Access and Use the Services
Your Responsibilities; Restrictions on Use of the Services
Fees, Taxes, and Payment Terms
Terms Period and Termination
Intellectual Property Rights; Your Suggestions
Representations and Warranties; Warranty Disclaimers
Limitations of Liability
Governing Law and Dispute Resolution (including Agreement to Arbitrate and Class Action Waiver)
Your Acceptance of these Terms of Service
These Terms of Service are legally binding on you.
These Terms of Service constitute a legally binding agreement by and between you and us effective as of the time you click the “ACCEPTED AND AGREED” (or equivalent) button (the “Effective Date”).
By clicking the “ACCEPTED AND AGREED” (or equivalent) button and/or using the Services, you are agreeing that you have read, understand, and agree to be bound by these Terms as they may be changed from time to time as described below.
We may refuse or revoke access to the Services.
We may refuse to offer the Services to any individual or business entity in our discretion. We may also change our eligibility requirements from time to time. You agree (a) not to use the Services if you do not have the full right, power, and authority to enter into these Terms and to perform your obligations under these Terms, (b) not to use the Services if either these Terms or the use of the Services is prohibited by, or would violate, any applicable Law, and (c) to notify us immediately of any change in your eligibility to use the Services. We may deny or revoke your access to, and use of, the Services in any such circumstances.
Government departments and agencies.
If you are a government department or agency, you may not create an Account or access or use the Services at this time. If you nevertheless access and use the Services in contravention of the foregoing prohibition, then, in addition to any other rights we may have, you agree that (a) any and all software, technology, and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to the United States Defense Federal Acquisition Regulations (DFAR) Section 227.7202 and the United States Federal Acquisition Regulations (FAR) Section 12.212, as applicable, (b) any use, modification, reproduction, release, performance, display, transfer, or disclosure of the Services and accompanying Documentation by any agency, department, or other entity of any government, will be governed solely by these Terms and will be prohibited except to the extent expressly permitted by these Terms or in a writing signed by an expressly authorized signatory on behalf of Karix Mobile, LLC, and (c) no other rights are granted.
Changes to these Terms of Service
These Terms of Service are subject to change.
Where you can find the latest version of these Terms of Service.
We will use reasonable efforts to provide you with advance notice of any material changes to these Terms. Nevertheless, it is your responsibility to check the then current version of these Terms of Service at the links above from time to time and to review and always to be familiar with the most recent version.
Stop using the Services if you do not agree to these Terms of Service.
If at any time you do not agree to any of the then-current Terms, you should immediately stop using the Services and terminate your Account. Your continued use of the Services following the effective date of any changes to these Terms will constitute your acceptance of, and agreement to, the revised Terms.
The ways these Terms of Service may change.
These Terms may not be changed other than by us as described in these Terms or by a separate writing that both expressly references these Terms and is executed by your authorized Representative and by our Chief Executive Officer. For clarity, no oral or written information or advice given by us or our other Representatives will create any obligation, liability, or warranty on us, or in any way increase the scope of the warranties in these Terms.
Your Account and Right to Access and Use the Services
You must create and maintain an Account to use the Services.
You must create an account (“Account”) and keep your Account in good-standing in order to continue to access and use the Services. Any suspension or termination of your Account will result in you being prohibited from accessing and using the Services. You may create sub-Accounts within your Account. Additional rules related to your Account and sub-Accounts may be found elsewhere within the Services and are incorporated herein by this reference.
Account registration and your Account Data.
You must complete the online registration form to create your Account. The registration form will ask you to input various information about you and to create a password (this information and password are “Account Data”). We will send a one-time password via SMS message to the telephone number you provide which you must then input into the registration form to verify the telephone number’s validity.
You may be required to provide additional information in connection with some Services (for example, you must submit your address for rental or purchase of some telephone numbers). Any such additional information is also “Account Data”.
You agree to provide true, accurate, and complete Account Data and to keep all Account Data up to date at all times.
You are responsible for your Account Credentials and all Account activity.
You are solely responsible for maintaining the security of your Account password and other log-in information (“Credentials”). You should not disclose your Credentials to anyone and should update your password from time to time.
You are solely responsible and liable for all activities that occur on your Account, including all communications and data that is entered through or under your Account, whether or not such activities, communications or data were authorized by you or undertaken by you. This includes the direct and indirect use of the Services through or under your Account by any Third Party (for example, End Users). You agree that we may and will act as though any such activities, communications, and data were authorized by you.
We will not be liable for any loss or damage related to any unauthorized access or use of your Account. You are solely responsible for maintaining the security of your Account. You agree to notify us immediately of any unauthorized access or use of your Account that you know or suspect.
You may delete your Account by removing your Credit Card information and ceasing to use the Services.
The scope of your right to access and use the Services.
Solely during the Terms Period and subject to your continuous, strict compliance with these Terms of Service (including the AUP), we grant to you a non-exclusive, non-transferable, non-sublicensable, limited right to: (a) use our then-available APIs, SDKs, and related Documentation to develop your software applications that will interface with our Services (the “Connected Applications”) in accordance with these Terms; and (b) access and use the Services and related Documentation in connection with the Connected Applications and in accordance with these Terms. The term “Connected Applications” specifically excludes our APIs, SDKs, Documentation, and any other parts of the Services.
The Services are offered only for your access and use, and not for resale or access or use by or on behalf of any Third Party except as otherwise expressly provided in these Terms.
Changes to our Services.
We may change or discontinue any parts or all of the Services from time to time, in our discretion, and with or without notice. This may include changing or removing different features and functionality of the Services we currently offer, including changing or discontinuing any of our APIs, SDKs, and Documentation.
You are responsible for making sure that your use of the Services is always compatible with the then-current version of the Services (including the then-current APIs and SDKs). While we generally try to avoid making changes to the Services that are not backward compatible, this may not always be the case. We will use reasonable efforts to provide you with notice prior to implementing material changes to the Services that are not backward compatible.
We may also impose limits and/or restrict your access to any parts or all of our Services from time to time, in our discretion, and with or without notice. Additional rules related to your use of the Services may be found elsewhere within the Services and are incorporated herein by this reference.
Support for the Services.
We will provide support for the Services by using reasonable efforts to address your questions related to the operation of the Services that you submit to us via email to email@example.com. Provided you are in compliance with these Terms, we will provide this support to you (and not to any End User, End Customer or any other Third Party) via email during our business hours [9:00am to 6:00pm (IST), Monday through Friday, except for India holidays]. We are not obligated to make any change, customization, or enhancement to the Services or to resolve any issue on any timeline, to your satisfaction, or at all.
Additional terms for some Services.
Some of our Services are subject to Supplemental Terms as set forth elsewhere in the Services or as you may be notified from time to time, which Supplemental Terms are in each case incorporated herein by this reference.
Our Affiliates may provide the Services.
You agree that (a) we may subcontract our obligations under these Terms (including the provision of the Services) to one or more of our Affiliates, which Affiliates may be located in different geographies globally, and (b) our and/or our Affiliates’ performance under these Terms may include the transfer of information and/or data (including Usage Data and Confidential Information) to different geographies globally.
Your Responsibilities; Restrictions on Use of the Services
All access and use of the Services must be in compliance with these Terms of Service.
You will ensure that all Users and Third Parties that access and use the Services through or under your Account comply with your obligations in these Terms of Service (including the AUP). You are solely responsible and liable if they do not. You also will (a) ensure that all End Users are legally bound to comply with terms and conditions related to any indirect access to, and use of, the Services at least as restrictive as those in these Terms, and (b) enforce such terms and conditions on behalf of us.
Your connection to the Services.
You are responsible for the acquisition, configuration, monitoring, maintenance, management, and security of your network systems, the Connected Applications, and connections necessary to access and use the Services.
Restrictions on your use of the Services.
In addition to other restrictions contained in these Terms, You will not, directly or indirectly (or authorize or allow any Third Party to):
Use the Services in any way that violates any applicable Law or these Terms (including the AUP).
Use the Services in any way that may cause damage to, or interfere with, the Services, our network systems, any Third Party’s network systems, our other customers or our reputation.
Use the services in any fraudulent or deceptive manner.
Alter, adjust or circumvent any part of the Services or attempt to gain unauthorized access to the Services.
Copy, modify, decipher, decompile, reverse engineer, disassemble, create derivative works of, or otherwise attempt to derive, our proprietary technology, source code, or any part of the Services, except to the limited extent applicable Law expressly and specifically prohibits any such restriction.
Sell, resell, transfer, license, sublicense, rent, lease, timeshare, offer as a service bureau, or otherwise allow any Third Party to access or use, the Services unless expressly permitted in these Terms.
Make the Services available to any Third Party as a stand-alone offering.
Transmit any worms, viruses, or other code of a destructive or malicious nature.
Provide your Account passwords or other log-in information to any Third Party.
Other requirements for your use of the Services.
You agree that you will:
Ensure that all Usage Data (including the Content) complies with applicable Law and these Terms, including Laws governing the protection of personally identifiable information and Laws governing the protection of Usage Data.
Provide all Usage Data (including the Content) to the Services in such applicable format, and subject to all size restrictions, as we may require from time to time. We may amend the formats and size restrictions required from time to time.
Promptly provide us with any information we reasonably request to investigate and resolve problems relating to your Account.
Your responsibility for the Connected Applications.
You are solely responsible and liable for the Connected Applications, including for their compliance with all Laws and for any infringement of any Intellectual Property Rights or other right of any Third Party.
The Services, including any software we may provide in connection with the Services, may be subject to applicable United States export control Laws and economic sanctions regulations as well as analogous Laws of other jurisdictions (“Export Law”). As part of your obligations to comply with all applicable Laws generally, you agree to comply with all Export Law applicable to such software and the Services. Without limiting the prior sentence:
You will not transfer such software or other aspects of the Services to any Third Party in violation of any Export Law, including any Third Party (“Restricted Third Party”) (a) on any United States exclusion list (for example, the United States Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the United States Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List) or analogous list for any other jurisdiction (“Exclusion Lists”), or (b) in a country (“Embargoed Country”) subject to a United States embargo (for example, Cuba, Iran, North Korea, Sudan, Syria and the Crimea region of the Ukraine) or an analogous embargo by any other jurisdiction.
You will not permit any Third Party to access or use the Services in violation of any Export Law, including any Restricted Third Party.
You will obtain any necessary license or other authorization to export, re-export, or transfer such software or other aspects of the Services, but only to the extent the export, re-export, or transfer of such software or other aspects of the Services is expressly permitted by these Terms.
You represent and warrant that none of you, the Users, or the End Users is on any Exclusion List or is in any Embargoed Country.
You will immediately discontinue use of such software and the Services if you become placed on any Exclusion List or under the control of or an agent for any entity placed on any Exclusion List. You will also immediately discontinue any End User’s indirect use of such software and the Services if they become placed on any Exclusion List or under the control of, or an agent for, any entity placed on any Exclusion List.
European Union (“EU”) Data Laws.
You should not rely on our compliance-related information.
We may provide, or make available to you, information to you from time to time regarding matters related to compliance with applicable Laws, uses of the Services and other matters. This information may be oral or written, including within the Documentation, on our website or otherwise within the Services, or disclosed in connection with providing support. You acknowledge and agree that (a) such information is provided only for informational purposes and is based solely upon our prior experiences in providing the Services generally, (b) we do not represent or warrant the accuracy or completeness of such information, (c) your use of, or reliance upon, such information or any errors therein or omissions therefrom will not in any way (i) relieve you of your obligations hereunder, including those set forth in Section 5, Section 12.1, and Section 13, or (ii) create any liability for us whatsoever to you or any Third Party relating thereto or resulting therefrom.
Fees, Taxes, and Payment Terms
Our fees and your Rate Card.
You agree to pay the fees for using the Services that are set forth in your then-current rate card (your “Rate Card”). Unless we agree in writing otherwise or we post different rates within your Account from time to time, your Rate Card will be our then-current standard fee schedule found at [link]. You agree that we may change the fees on your Rate Card in our discretion from time to time and that your continued use of the Services after a change in fees becomes effective constitutes your agreement to pay the changed fees. All fees for the Services are stated and payable in United States Dollars.
Discretionary free use of the Services.
We may, at our sole option, as an introduction to the Services or otherwise, credit your Account for an amount determined by us to enable you to use the Services without cost to you up to such credited amount. If at any time your Account does not have a sufficient credit balance, you will no longer be able to use the Trial Services.
Except as otherwise stated in your Rate Card, all fees are exclusive of all taxes and other similar charges (“Taxes”). To be clear, the term “Taxes” includes sales tax, use tax, value-added tax (VAT), goods and services tax (GST), and all other taxes (excluding any tax that is based on our income) or other charge of any kind or nature that is levied or imposed by any governmental authority or regulatory body in connection with the Services or these Terms of Service. You will be solely responsible for, and will pay on demand, all Taxes. We may calculate Taxes based on the Account Data you provide.
Your Pre-Pay Account and types of pre-payments.
Unless we configure your Account to operate on a post-pay basis (a “Post-Pay Account”), your Account will operate on a pre-pay basis (a “Pre-Pay Account”) and you must pre-pay for all fees in advance. You may configure your Pre-Pay Account in order to pre-pay fees in fixed amounts either, as elected by you, (a) on a one-time, manual basis (a “One-Time Payment”) from time to time, or (b) automatically (an “Auto-Reload Payment”) on a recurring schedule (for example, weekly, bi-weekly or monthly) or upon your Account’s credit balance decreasing to an established threshold.
How your Pre-Pay Account balances are calculated.
We will credit your Pre-Pay Account balance for any One-Time Payments and any Auto-Reload Payments we receive. We will deduct from (charge) your Pre-Pay Account balance (a) the applicable fees in your Rate Card as you use the Services, (b) all associated Taxes, (c) any other amounts for which you are responsible under these Terms, and (d) any amounts previously credited to your Pre-Pay Account balance, but which were later dishonored, refused, disputed, or charged-back by the issuer of the Credit Card as well as any associated costs and fees. We will make a record of such deductions/payments available to you within the Services. If at any time your Pre-Pay Account does not have a sufficient credit balance, you will not be able to access or use the Services until you pre-pay additional amounts as necessary. If for any reason your Pre-Pay Account balance is negative, then such negative amount will be immediately due and you will promptly initiate a sufficient One-Time Payment (a “Deficit Balance Amount”) to cover such deficit and hereby authorize us to charge your Credit Card for such One-Time Payment in the amount of the Deficit Balance Amount whether or not you have configured such payment in your Account.
You must pay via Credit Card using our outside Payment Processor.
All fees must be paid by credit card. We may use a Third Party payment processor (“Payment Processor”) to facilitate your payments. Your payments that the Payment Processor processes will be subject to that Payment Processor’s then-current terms and conditions which are in addition to these Terms. We are not responsible for any acts or omissions of the Payment Processor.
Credit Card Information requirements.
You agree to provide within your Account all true, accurate, current, and complete information (your “Credit Card Information”) related to a valid credit card owned by you (the “Credit Card”) necessary for us or the Payment Processor to charge and collect amounts against such Credit Card as set forth in these Terms. All Credit Card Information is also “Account Data”. You further agree to update your Credit Card Information within your Account immediately from time to time throughout the Terms Period in the event of any changes. You acknowledge that we and the Payment Processor will act based on the prior Credit Card Information until the updated Credit Card Information becomes effective, which may take an additional amount of time after you input the updated information in your Account. You authorize us to transmit your Credit Card Information to the Payment Processor, which may store such information in order to facilitate payments. You agree that you are solely responsible for any and all fees charged to you by the issuer of the Credit Card including membership and over-the-credit-limit fees.
YOUR CONTINUING AUTHORIZATION TO CHARGE YOUR CREDIT CARD.
You hereby authorize us and the Payment Processor to so charge your Credit Card during the Terms Period for all One-Time Payments (including any Deficit Balance Amounts) and all Auto-Reload Payments from time to time (collectively these are all “Chargeable Amounts”). If you configure your Account for Auto-Reload Payments, you agree that we or the Payment Processor will continue to charge your Credit Card for such amounts until you cancel such Auto-Reload Payments within your Account. Such cancelation will not affect Auto-Reload Payment charges submitted before we or the Payment Processor could reasonably act. Further, you authorize the issuer of the Credit Card to accept and process such Chargeable Amounts against your Credit Card. You agree that sufficient credit amounts representing the total Chargeable Amounts must be available on your Credit Card on the day the respective charge is initiated. If sufficient credit is not available upon presentation of such charge, then you will be in default under these Terms and we may take such action to collect amounts due as we deem appropriate and consistent with these Terms including resubmitting the charges to the Credit Card. Without limiting the foregoing, at any time or from time to time, you agree to cooperate with us and the Payment Processor to execute and deliver any further instruments or documents and to take all such further action as we or the Payment Processor may reasonably request in order to evidence or effectuate the payment of the Chargeable Amounts. Your authorization will remain in full force and effect throughout these Term.
Your payment terms for a Post-Pay Account.
You will only able to obtain a Post-Pay Account if we execute a separate written agreement with you authorizing such Post-Pay Account. The terms of invoicing and payment and will be set forth in such separate agreement.
Provisions applicable to both Pre-Pay Accounts and Post-Pay Accounts.
Payment obligations cannot be canceled.
All charges for the Services will be calculated by reference to data recorded by us.
Any filtered or blocked Content will be subject to applicable fees.
You may not offset any amounts against amounts payable to us for any reason.
You may not withhold or deduct any amounts, including Taxes, from any amounts payable to us unless you are legally required to do so. If you are legally required to do so, then you will pay to us such amounts as are necessary to make the net amounts remaining after any required withholding or deduction equal to the stated amounts payable on the invoice.
Our acceptance of any partial payment of an invoice will not waive our right to claim any further payment for that portion of the invoice not paid by you.
Any amounts not paid when due may, at our discretion, bear simple interest computed on a daily basis for each day that the payment is delinquent, at the lesser of (a) one and one-half percent (1.5%) per month or (b) the maximum rate permitted by applicable Law.
You will pay all costs of collection (including without limitation attorneys’ fees) and related bank charges.
You will be charged for all messages as follows: (a) for each mobile terminated message upon submission of the message to the Services; and (b) for each mobile originated message, upon receipt of the message by the Services.
Any messages consisting of more than applicable maximum number of characters will be automatically split and concatenated by the Services and we will charge you for each resulting part as a separate message.
We do not provide refunds.
All amounts paid to us (including any Chargeable Amounts) are non-refundable, even if unused at the time of termination of these Terms. Any fees for Services that are charged based on a period of time (for example, monthly rental of a telephone number) will be charged (including by debiting your pre-paid Account balance) initially on a prorated basis for the first applicable billing period and thereafter for the full billing period without proration if the applicable Services are active at any time during such billing period.
Here is how you can dispute your charges.
You may dispute any amount for which we charge you (including by debiting your Pre-Pay Account balance) only by sending a notice with reasonable detail supporting your dispute to us at firstname.lastname@example.org within thirty (30) days after the date we charged your Account for the disputed amount. If you do not dispute amounts as required above, then you agree that you have accepted those amounts as valid and waive any further right to dispute those amounts. We and you will work in good faith to resolve the dispute promptly. If we and you cannot resolve such dispute within thirty (30) days after the date of your notice, then the matter may be presented by either you or us each for arbitration pursuant to Section 15.2. While any amount is in dispute, it will remain chargeable (including by debiting your Pre-Pay Account balance) or payable until we and you agree, or the arbitration process concludes, otherwise.
We may suspend your Account in various circumstances.
We may, without terminating these Terms of Service, immediately suspend your Account (including access to, and use of, any parts or all of the Services) for as long as we deem necessary based on various circumstances. This does not limit our rights to terminate these Terms however. We will not have any liability to you or any Third Party (including any of your End Users) arising from these suspensions. We will use reasonable efforts to notify you of a suspension, except if the suspension is for an insufficient credit balance or payment default or if we are not legally permitted to provide notice. Suspension notices may not be in advance. Reasons for suspensions include:
Your Pre-Pay Account does not have a sufficient credit balance.
You are in payment default regarding your Post-Pay Account.
You violate (or we suspect that you have violated) these Terms (including the AUP).
We believe that your use of the Services is fraudulent or may harm the performance of the Services.
We are complying with a legal order, instruction, or request (for example, a court order or a regulatory instruction).
We are complying with a request from a telecommunication carrier or other communication supplier.
We will have no obligation to reactivate your Account (including reactivating your access to, and use of, any of the suspended parts of the Services) at all or on any particular timeline after the reason for suspension no longer exists.
Suspension will not stop charges to your Account.
We will continue to charge you for fees that apply during any suspension. You will be responsible for payment of such fees. We or the Payment Processor will continue to process Auto-Reload Payments during any suspension.
Terms Period and Termination
These Terms of Service will be effective during the Terms Period.
These Terms of Service commence on the Effective Date will remain in effect until terminated as permitted in these Terms (the “Terms Period”).
You or we may terminate these Terms for our convenience.
You may terminate these Terms for any or no reason and at any time by terminating your Account. We may terminate these Terms for any or no reason and at any time by giving you not less than thirty (30) days’ notice.
You or we may terminate these Terms for cause.
Either you or we may terminate these Terms if the other party violates any of these Terms and fails to fix such violation within five (5) days of receiving notice from the non-violating party describing the alleged breach. No subsequent notice is required.
Here are some other circumstances in which we may terminate these Terms.
We may terminate these Terms immediately for cause and without notice to you if we believe there is an occurrence of any of the following circumstances:
These Terms or your use of the Services is prohibited by or violates any applicable Law.
We are prohibited from providing any part or all of the Services by applicable Law.
A government agency or department with proper jurisdiction indicates that we are not permitted to provide any part or all of the Services.
Subject to applicable Law, upon your making of a general assignment for the benefit of creditors, insolvency, liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business in the ordinary course, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy, insolvency, or similar proceeding.
You have a change of control.
Your unauthorized or fraudulent use of the Services.
Your use of the Services is causing or may cause damage to, or interfere with, the Services, our network systems, any Third Party’s network systems, our other customers or our reputation.
It has become impractical or unfeasible for any legal or regulatory reason for us to provide any part or all of the Services.
Your Credit Card is invalid or our charges are refused by the issuer of the Credit Card.
Your Account has been inactive for at least ninety (90) days.
What happens upon a termination of these Terms?
When these Terms terminate, the rights and obligations and other provisions under these Terms (except as described below), including the Terms Period and your Account (including your right to access and use the Services), will terminate automatically. This means that you must stop using the Services. Nevertheless, the following provisions will survive the termination of these Terms: (a) your payment obligations, including for all fees accrued the date of termination; (b) Sections 6, 8, 9, 11, 12 (other than Section 12.1), 13, 14, 15, and 16; and (c) any other provision of these Terms that by its context or nature that must survive to fulfill its essential purpose.
Intellectual Property Rights; Your Suggestions
Use of Marks.
You may not use our name, logo or other trademarks or service marks (“Marks”) without our prior written consent in each case.
You agree (a) that we may publicly refer to you, orally and in writing, as a customer of ours, and (b) to be listed as our customer on our website including the use of your Marks there and in other marketing collateral, in connection with which you hereby grant to us a non-exclusive license to use your Marks.
We own the Services.
As between you and us, we exclusively own and retain all right, title, and interest in and to the Services and our Marks, including for both, all copyright rights, moral rights, trademarks, patent rights (including applications and disclosures), know-how, inventions, rights of priority, trade secret rights, and any other intellectual property and/or proprietary rights recognized in any country or jurisdiction in the world (all of which are “Intellectual Property Rights”). You agree that these Terms of Service do not grant you any Intellectual Property Rights or license in or to the Services or Marks, except the limited right to use the Services as permitted in Section 3.4 and subject to these Terms. You agree that the Services (including their look and feel) are protected by copyright and other Laws. We reserve all rights.
You own the Connected Applications.
As between you and us, you exclusively own and retain all right, title, and interest in and to the Connected Applications, Usage Data and your Marks, except for the rights you grant to us in these Terms.
What happens with your Suggestions?
Our customers have a lot of good ideas. We welcome your comments, feedback, and suggestions regarding us, our current and prospective Services, as well as other potential services and solutions (all of this is your “Suggestions”). By providing us with your Suggestions, you agree that:
We have no obligation to keep your Suggestions confidential and are free to disclose your Suggestions as we wish.
We will be the sole and exclusive owner of your Suggestions and you will and hereby do assign to us all right, title, and interest in and to your Suggestions, including all Intellectual Property Rights and other rights.
If for any other reason, ownership of all right, title, and interest in and to your Suggestions will not vest solely and exclusively with us, then you hereby irrevocably and exclusively license to us the right to use, profit from, and exploit your Suggestions in any way and for any purpose we wish.
You will execute such documents and take such further actions as we may request to effectuate the preceding assignment and license.
You are not entitled to any compensation, reimbursement, or credit from us under any circumstance for (or resulting from) your Suggestions, the preceding assignment, or the preceding license.
You are granting us a license to use the Usage Data.
You hereby grant to us a world-wide, perpetual, transferrable, sub-licensable, royalty free, fully paid-up, license to use, reproduce, modify, distribute, perform, store, and otherwise utilize all Usage Data in connection with performing the Services. You agree that we may sub-license our rights to our Affiliates and to our Third Party service providers (through multiple tiers) such as telecommunications carriers and aggregators. You represent and warrant to us that you have all permissions, releases, rights, or licenses required to grant such license and sub-license rights to us without infringing or violating any applicable Law or any rights of any Third Party.
We may store, filter, and monitor your Usage Data.
You agree that we may do any of the following at any time, in our discretion, and without (a) any obligation on our part to do so, (b) any notice to you, (c) any need to obtain any further consent from you, and (d) any liability to you or any Third Party:
Store and preserve any Usage Data (including Content) within the Services and delete any Usage Data previously stored within the Services. Except as required by applicable Law, we will not have any obligation to store any Usage Data at all or for any particular time period or to delete any Usage Data at all or on any particular schedule.
Filter, block (refuse to transmit), edit, or modify any Usage Data (including Content) for any reason, including:
To enforce compliance with applicable Law, with a legal order, with these Terms of Service (including the AUP), and with our agreements with any of our licensors or suppliers.
If we believe such Usage Data may cause us to incur liability or may cause damage to, or interfere with, the Services, our network systems, any Third Party’s network systems, our other customers or our reputation.
Decide whether Usage Data (including Content) is inappropriate or violates these Terms (including the AUP).
Monitor and audit your use of the Services, including accessing, reading, preserving, and disclosing any Usage Data (including Content), whether stored in the Services or otherwise, as we believe is necessary in connection with:
Satisfying any applicable Law, legal process, or governmental or agency request.
Investigating, or assisting with any investigation of, any potential violation of these Terms, including reporting information to Law enforcement authorities.
Enforcing these Terms or our agreements with Third Parties.
Detecting, preventing, or otherwise addressing fraud, security, or technical issues.
Protecting our and Third Parties’ rights, property or safety.
Responding to claims that Usage Data violates the rights of Third Parties.
Responding to support requests.
We will not have any obligation to, will assume no responsibility for, will not have any liability whatsoever for damages, losses, or other consequences relating to, any such storage, preservation, deletion, filtering, blocking, editing, modifying, deciding, monitoring, or auditing. We will not have any obligation to read, proofread, or correct any Usage Data and will not have any responsibility for the accuracy, completeness, or correctness of any Usage Data.
Transfer of Usage Data to Third Parties.
You agree that, in connection with providing the Services, we may transfer Usage Data (including Content) unencrypted, over various Third Party networks, including those of telecommunications carriers and aggregators.
Treatment of Usage Data following termination.
Within thirty (30) days following termination of these Terms, upon your written request and provided that you have paid all amounts due to us, we will provide you with a copy of the Usage Data that we then possess in a format chosen by us. You further agrees that we will not be liable to you or to any Third Party for any deletion of Usage Data after such thirty (30) day period. This provision is subject to any contrary provision of applicable Law.
Aggregate and anonymized Usage Data.
Notwithstanding the provisions elsewhere herein, in order to maintain, provide, and improve the Services, you agree that we may use, reproduce, analyze, publicize, or otherwise exploit Aggregate Data in any way, in our sole discretion. “Aggregate Data” refers to Usage Data with the following removed: personally identifiable information of individuals, the names and addresses of you and any of your End Users.
What information is protected as Confidential Information?
“Confidential Information” refers to all information and data, whether tangible, oral or otherwise, that either you or we (“Discloser”) discloses to the other party (“Recipient”) that is either (a) labeled or designated as proprietary or confidential or (b) by the nature of the information or data or the circumstances surrounding its disclosure, should reasonably be understood to be proprietary and confidential. Our Confidential Information includes the Documentation, all technology incorporated into, and used by, the Services, and the non-public features of the Services. As between the Discloser and the Recipient, the Discloser exclusively owns and retains all right, title, and interest in and to the Discloser’s Confidential Information.
What information is not protected as Confidential Information?
Even if some information and data otherwise meets the above definition of Confidential Information, it will nevertheless be excluded from the definition of “Confidential Information” if such information or data: (a) was known by the Recipient without any obligation of confidentiality prior to disclosure by the Discloser; (b) is publicly available through no fault of the Recipient; (c) is disclosed to the Recipient by a Third Party legally entitled to make such disclosure without violation of any obligation of confidentiality; or (d) is independently developed by the Recipient without reference to any Confidential Information of the Discloser.
Restrictions on use and disclosure of Confidential Information
Except as otherwise permitted under these Terms of Service or to perform the activities contemplated by these Terms, the Recipient agrees not to use Confidential Information for any purpose and not to disclose Confidential Information to any Third Party. We may use and disclose to Third Parties your Confidential Information in connection with providing the Services.
The Recipient also agrees: (a) to take all reasonable steps necessary to protect the Confidential Information (at least as stringently as it takes to protect its own Confidential Information) from unauthorized use and disclosure; (b) to notify the Discloser promptly in the event the Recipient learns of any unauthorized use or disclosure of any Confidential Information and to cooperate to remedy such occurrence to the extent reasonably possible; (c) upon Discloser’s request or upon termination of these Terms, the Recipient will promptly either return all copies of the Discloser’s Confidential Information to the Discloser or certify, in writing, that the Recipient has destroyed all copies of the Discloser’s Confidential Information; and (d) that its obligations under this Section 11 will survive the termination of these Terms for the maximum period allowed by Law.
Nevertheless, the Recipient may disclose Confidential Information:
To its Representatives who are bound in writing to treat such Confidential Information in accordance with these Terms and who have a “need to know” such Confidential Information in order to carry out the Recipient’s obligations under these Terms. The Recipient will be liable to the Discloser in connection with any failure of the Recipient’s Representatives to comply with the terms and conditions of this Section 11.
As required by applicable Law or as required or requested in connection with any legal proceeding or by any legal or governmental authority, so long as the Recipient, if legally permitted, first gives the Discloser prompt notice of such requirement or request.
If the Discloser so consents to in writing.
The Discloser may seek injunctive relief.
The Recipient agrees that any threatened or actual breach of this Section 11 may cause the Discloser irreparable harm for which money damages alone may not be a sufficient remedy. As a result, the Recipient agrees that in the event of any threatened or actual breach of this Section 11 by the Recipient, the Discloser will be entitled to seek injunctive relief or other similar remedy, in addition to any other remedies available, from a court of competent jurisdiction without having to prove actual damage or having to post a bond or other security.
Representations and Warranties; Warranty Disclaimers
Your representations and warranties.
You represent and warrant to us that:
You have the full right, power, and authority to enter into these Terms of Service and to perform your obligations under these Terms.
Your entering into these Terms by clicking the “ACCEPTED AND AGREED” (or equivalent) button and/or using the Services and the performance of your obligations under these Terms do not and will not violate any other agreement to which you are a party.
These Terms will constitute your legal, valid, and binding obligation.
You have all permissions, releases, rights, and licenses required to allow us to perform our obligations under these Terms, including providing the Services.
All Usage Data is, and will be at all times, true, accurate, and complete.
All access and use of the Services, and the Usage Data, will at all times comply with applicable Law and these Terms (including the AUP).
Without limiting your general obligations to comply with Laws, you are aware of, understand, and will comply with (a) the United States: (i) Telephone Consumer Protection Act; (ii) CAN SPAM Act of 2003; (iii) Electronic Communications Privacy Act; and (iv) Do-Not-Call Implementation Act; and (b) the Laws in jurisdictions relevant to you that are analogous to the Laws referenced in clause (a).
The Usage Data and the Connected Applications (including any use of the Usage Data and the Connected Applications) do not, and will not, violate or infringe any Intellectual Property Right, right of privacy or publicity, or any other personal right of any Third Party.
WE ARE DISCLAIMING WARRANTIES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, (a) THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT ANY OTHER WARRANTY OF ANY KIND WHATSOEVER, AND (b) SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
HERE ARE SOME CLARIFICATIONS ABOUT OUR WARRANTY DISCLAIMERS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU UNDERSTAND AND AGREE THAT:
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, WE MAKE NO REPRESENTATIONS OR WARRANTIES (a) REGARDING THE QUALITY (FOR EXAMPLE, AS TO LATENCY, THROUGHPUT, OR DELIVERABILITY), RELIABILITY, TIMELINESS, ORITY OF THE SERVICES, (b) THAT THE SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE FROM UNAUTHORIZED ACCESS OR THAT DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED, (C) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR (d) THAT THE CONTENT WILL BE KEPT CONFIDENTIAL AFTER BEING SENT FROM THE SERVICES OR THAT ALL OR ANY CONTENT WILL BE DELIVERED OR RECEIVED BY END CUSTOMERS.
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK.
WE HAVE NO OBLIGATION TO INDEMNIFY OR DEFEND YOU OR ANY THIRD PARTY AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
THE TECHNICAL PROCESSING AND TRANSMISSION OF ELECTRONIC COMMUNICATIONS IS ESSENTIAL TO YOUR USE OF THE SERVICES.
WE MAY INTERCEPT AND STORE USAGE DATA AND OTHER ELECTRONIC COMMUNICATIONS TO AND FROM YOU, YOUR END USERS, AND THIRD PARTY SUPPLIERS.
SUCH INTERCEPTION AND STORAGE WILL INVOLVE TRANSMISSION OVER THE INTERNET AND OVER VARIOUS NETWORKS THAT ARE NOT OWNED, OPERATED, OR CONTROLLED BY US.
CHANGES TO USAGE DATA MAY OCCUR IN ORDER TO CONFORM AND ADAPT USAGE DATA TO THE TECHNICAL REQUIREMENTS OF CONNECTING NETWORKS AND/OR DEVICES.
WHEN COMMUNICATED ACROSS THE INTERNET, NETWORK FACILITIES, AND TELEPHONE OR OTHER ELECTRONIC MEANS, ELECTRONIC COMMUNICATIONS MAY BE ACCESSED BY UNAUTHORIZED PARTIES.
WE ARE NOT RESPONSIBLE FOR ANY DELAY, LOSS, ALTERATION, OR INTERCEPTION OF ELECTRONIC COMMUNICATIONS AND/OR USAGE DATA.
YOUR DECISION TO USE THE SERVICES IS NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES OR MADE IN RELIANCE ON ANY ORAL OR WRITTEN STATEMENTS MADE BY US REGARDING FUTURE FUNCTIONALITY OR FEATURES.
IN PERFORMING ITS OBLIGATIONS PURSUANT TO THESE TERMS, WE MAY USE INFORMATION FURNISHED BY YOU WITHOUT ANY INDEPENDENT INVESTIGATION OR VERIFICATION, AND THAT WE WILL BE ENTITLED TO RELY UPON THE ACCURACY AND COMPLETENESS OF SUCH INFORMATION.
THE WARRANTY DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
THE FOREGOING WARRANTY DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT ANY DISCLAIMER IN THIS SECTION 12 CONFLICTS WITH APPLICABLE LAW, (a) THE SCOPE OF ANY APPLICABLE DISCLAIMER WILL BE THE MAXIMUM PERMITTED UNDER THAT LAW AND (b) THE SCOPE AND DURATION OF THE WARRANTY TO WHICH THE DISCLAIMER APPLIES WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
Your indemnification obligations.
You, at your own expense, will indemnify, defend (if and as requested by us), and hold harmless each of us, our affiliates, and our and their respective employees, representatives, agents, officers, and directors (“Indemnified Parties”) against any claims, losses, liabilities, costs, expenses, or damages (including direct, incidental, special, exemplary, punitive, indirect and consequential damages, and including any fines, penalties, and attorney’s fees and costs) incurred by reason of any Third Party claim, demand, lawsuit, or action (including governmental investigations and enforcement actions) arising out of, based on, or relating to: (a) your or any End Users’ activities under these Terms of Service, including your and any End Users’ access to, and use of, the Services; (b) your or any End Users’ violation of any provision of these Terms (including the AUP); (c) your or any End Users’ violation of any applicable Law; (d) any Usage Data; (e) the Connected Applications, including their infringement upon any Intellectual Property Rights or other right of any Third Party (“Claims”).
We, or any of the Indemnified Parties, will promptly notify you of any Claim. Other than Karix Controlled Claims: (a) we will permit you to assume and control the defense of the Claim; (b) we will nevertheless have the right to employ separate counsel at your expense and participate in the defense of Claims; (c) you will have the authority to defend, compromise, settle, or otherwise dispose of the Claims; provided that you will not agree to any disposition or settlement of a Claim that admits liability or imposes duties of performance on any of the Indemnified Parties without our prior written consent; (d) you agree not to publicize the settlement of any Claim without first obtaining our written permission; and (e) if we determine that you have not timely responded to a Claim, then we may assume and control the defense of the Claim (such assumption and control of defense will include our sole authority to compromise, settle, or otherwise dispose of such Claims) at your sole expense. You will be liable to us for all of our costs (including reasonable attorney’s fees and costs) related to establishing successfully and enforcing our right to indemnification under these Terms.
A “Karix Controlled Claim” is a Claim that includes allegations relating to our Services or our Intellectual Property Rights for which we elect to assume and control the defense (such assumption and control of defense will include our sole authority to compromise, settle, or otherwise dispose of those Claims).
Limitations of Liability
YOU MAY ONLY RECOVER YOUR ACUTAL DIRECT DAMAGES.
IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY TYPE OF INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE OR THE SERVICES, INCLUDING LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS/SERVICES, LOSS OF TECHNOLOGY, RIGHTS, OR SERVICES, LOSS OF DATA, OR INTERRUPTION OR LOSS OF USE OF THE SERVICES. FOR CLARITY, YOU MAY ONLY SEEK TO RECOVER ACTUAL, DIRECT DAMAGES AGAINST US.
THERE IS A LIMIT ON THE AMOUNT OF DAMAGES YOU MAY RECOVER.
OUR CUMULATIVE AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY TYPE OF INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, OR CONSEQUENTIAL UNDER THESE TERMS, FOR ANY DAMAGES, COSTS, OR OTHERWISE, WILL NOT EXCEED THE FEE AMOUNTS PAID BY YOU TO US DURING THE SIX (6) MONTH PERIOD ENDING ON THE DATE THE EVENT GIVING RISE TO THE LIABILITY OCCURRED.
THESE LIMITATIONS ARE ESSENTIAL TO OUR WILLINGNESS TO OFFER THE SERVICES TO YOU. YOU ARE ASSUMINIG THE RISK.
YOU AND WE EACH HAVE AGREED TO THESE TERMS WITH DUE REGARD FOR THE BUSINESS AND LEGAL RISKS ASSOCIATED WITH THE MATTERS DESCRIBED IN THESE TERMS. YOU AGREE THAT THE FEES HAVE BEEN SET, AND THESE TERMS ENTERED INTO, IN RELIANCE UPON THE LIMITATIONS OF LIABILITY, REMEDIES AND DAMAGES, AND THE DISCLAIMERS OF WARRANTIES SET FORTH IN THESE TERMS, AND THAT ALL SUCH LIMITATIONS AND DISCLAIMERS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US.
CLARIFICATIONS FOR THE LIMITAIONS OF LIABILITY.
YOU SPECIFICALLY UNDERSTAND AND AGREE THAT WE WILL NOT BE LIABLE FOR: (a) ACTS OR OMISSIONS OF ANY THIRD PARTY (INCLUDING WITHOUT LIMITATION ANY TELECOMMUNICATIONS CARRIER); (b) ANY CONTENT PROVIDED BY OR THROUGH YOUR ACCOUNT OR FROM AN END CUSTOMER OR DEVICE; (c) FOR USE OF OR INABILITY TO USE THE SERVICES IN CONNECTION WITH EMERGNECY SERVICES; OR (d) ANY CAUSES BEYOND OUR REASONABLE CONTROL.
THE LIABILITIES LIMITED BY THIS SECTION 14 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF WE ARE ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
FOR THE AVOIDANCE OF DOUBT, OUR LIABILITY LIMITS AND OTHER RIGHTS SET FORTH IN THIS SECTION 14 APPLY LIKEWISE TO OUR AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, AGENTS, SPONSORS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AND OTHER REPRESENTATIVES.
THE LIMITATIONS OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
THE FOREGOING LIMITATIONS OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT ANY LIMITATION IN THIS SECTION 14 CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND AMOUNT OF ANY APPLICABLE LIMITATION WILL BE THE MAXIMUM PERMITTED UNDER THAT LAW.
Governing Law and Dispute Resolution (including Agreement to Arbitrate and Class Action Waiver)
The Laws of the State of Delaware, USA, will govern these Terms of Service.
Except as otherwise expressly provided otherwise in these Terms, these Terms of Service will be governed solely by, and construed solely in accordance with, the Laws of the State of Delaware, United States of America, without reference to: (a) any conflicts of law principles, including to the extent that they would apply the substantive Laws of another jurisdiction to your or our rights or duties; (b) the United Nations Convention on Contracts for the International Sale of Goods; or (c) other international Laws. These Terms are made in the English language only and any translations of these Terms into any other language will have no effect. All proceedings related to These Terms will be conducted only in the English language.
Dispute resolution process including AGREEMENT TO ARBITRATE.
From time to time either you or we may have a dispute with, or claim against, the other party (a “Dispute”). Except for Disputes described in Section 15.3 and Section 15.4, you and we each will seek to resolve all other Disputes only as follows:
Either you or we may give notice of a Dispute to the other party. You and we each will promptly seek to resolve such Dispute through consultation and negotiation in good faith, including escalation to appropriate management personnel.
If the Dispute is not resolved through consultation and negotiation within thirty (30) days from the date the notice is delivered, then either (a) you and we both may continue the consultation and negotiation process until an agreed resolution, or (b) any time thereafter either you or we may submit the Dispute to binding arbitration as described in Section 15.2.4 and notify the other party of the submission to arbitration.
Except for Disputes described in Section 15.3 and Section 15.4, YOU AND WE EACH AGREE THAT BINDING ARBITRATION, AND NOT THE COURT SYSTEM OR ANY OTHER FORMAL DISPUTE RESOLUTION PROCESS, WILL BE THE ONLY MEANS OF RESOLVING A DISPUTE THAT YOU AND WE CANNOT RESOLVE BY CONSULTATION AND NEGOTIATION.
You and we each agree to submit Disputes to binding arbitration as follows:
You must send notice of any arbitration to us at c/o Capitol Services, Inc., 1675 South State Street, Suite B, Dover, Delaware 19901 USA.
The arbitration will be conducted by a single arbitrator (“Arbitrator”) under the Federal Arbitration Act and before the American Arbitration Association (“AAA”) in accordance with the AAA’s then current International Arbitration Rules (“Rules”). The arbitration will take place in Atlanta, Georgia, United States of America, or such other location as you and we may mutually agree. These Terms will supersede any conflicting terms in the Rules.
The Arbitrator will be appointed by your and our mutual agreement. However, if you and we cannot agree upon the Arbitrator within thirty (30) days of notice of arbitration, the AAA will appoint the Arbitrator.
You may find the Rules and other related information at www.adr.org or by calling the AAA at +1 800-778-7879.
The administrative cost of the arbitration and the Arbitrator’s fee will be shared equally by you and us.
The arbitrator will have no authority or power to amend, modify, or in any other way change any of these Terms.
The arbitration proceedings will be confidential and private and neither you nor we may disclose the existence, content (including without limitation all materials and information created or provided) or results of any arbitration proceedings. Any materials submitted in connection with arbitration proceedings will not be admissible in any other proceeding, provided, however, that this confidentiality provision will not prevent a petition to vacate or enforce an arbitral award, and will not bar disclosures strictly required by Law.
The decisions, findings, and awards by the Arbitrator will be final and binding upon you and us. However, either you or we may petition a court of competent jurisdiction to vacate the Arbitrator’s award or decision on the grounds of the Arbitrator’s failure to abide by the provisions of these Terms.
Judgment on any finding or any award rendered by the Arbitrator may be entered in any court of competent jurisdiction. These Terms are subject to the operation of the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
This agreement to arbitrate will survive the termination of these Terms.
The right to seek equitable relief.
Notwithstanding Section 15.2, you and we each retain the right to initiate proceedings in court of competent jurisdiction, without having to prove actual damage or having to post a bond or other security, to:
Obtain interim measures of protection prior to or pending arbitration.
Seek injunctive relief or other similar remedy to protect the unauthorized use or disclosure of Confidential Information as described in Section 11.
Seek injunctive relief or other similar remedy to enforce or protect, or otherwise regarding the validity or scope of, Intellectual Property Rights.
Enforce any decision of the Arbitrator, including the final award.
Exceptions from arbitration.
Notwithstanding Section 15.2, either you or we may initiate proceedings in court to resolve Disputes relating to:
Intellectual Property Rights.
Violations of the AUP.
Indemnification Claims as provided in Section 13.
Collection efforts for amounts due under these Terms.
Matters that qualify to be brought in a small claims court either in your country of your principal place of business (or, if you are an individual, your country of residence) or Fulton County, Georgia, United States of America, if such court’s requirements are met.
Compelling the other party to arbitrate.
Matters that qualify to be brought in court as provided in Section 15.3.
Without limitation, Disputes relating to whether a particular Dispute is subject to arbitration or the enforceability of the arbitration provisions in these Terms are not excepted from mandatory arbitration.
Courts and WAIVER OF RIGHT TO A JURY TRIAL.
Except for Disputes subject to mandatory arbitration under these Terms, you expressly and irrevocably consent to jurisdiction and venue in the state and federal courts located in Fulton County, Georgia, United States of America, and the Northern District of Georgia, Atlanta Division, United States of America, as the exclusive jurisdictions and venues for any and all matters arising out of or pertaining to these Terms.
YOU AND WE EACH ACKNOWLEDGE AND AGREE THAT ANY DISPUTE THAT MAY ARISE UNDER THESE TERMS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE YOU AND WE EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT, OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES.
CLASS ACTION WAIVER.
YOU AND WE EACH AGREE THAT EACH MAY BRING DISPUTES OR CLAIMS AGAINST THE OTHER PARTY ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN A PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY ARE NOT ALLOWED, NOR IS COMBINING INDIVIDUAL PROCEEDINGS WITHOUT BOTH YOUR AND OUR CONSENT. ADDITIONALLY, NO ARBITRATOR OR JUDGE MAY CONSOLIDATE MORE THAN ONE PARTY’S DISPUTES OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING WITHOUT BOTH YOUR AND OUR CONSENT. THE DECISION, JUDGMENT AND AWARD IN PARTY’S CASE CAN ONLY IMPACT THE PARTY THAT BROUGHT THE DISPUTE OR CLAIM, NOT OTHER THIRD PARTIES (INCLUDING OUR OTHER CUSTOMERS), AND CANNOT BE USED TO DECIDE OTHER DISPUTES WITH THIRD PARTIES (INCLUDING OUR OTHER CUSTOMERS).
In the event that any of the provisions of this Section 15.6 are held by a court of competent jurisdiction to be invalid or otherwise unenforceable in any respect, then Section 15.6 will be deemed null and void and with effect, but the remaining provisions of these Terms will continue in full force and effect.
The prevailing party in any action or proceeding (including arbitration and court proceedings) to enforce these Terms will be entitled to recover its reasonable attorney’s fees and costs.
Any remedies expressly set forth in these Terms, including our rights to suspend the Services or to terminate these Terms or the Services (or any part thereof), are in addition to, and not in lieu of, any other remedies available to either you or us each.
Limitation on Actions.
Neither you nor we may bring any action arising out of, or relating to, these Terms and/or the Services, regardless of form, more than one (1) year after the cause of such action arose and was known, or reasonably should have been known, by the party bringing such action. You and we each waive any applicable statutes of limitations in favor of this Section 15.9.
Any notice required or permitted to be provided under these Terms of Service, must be provided in writing as follows:
If to you, either by posting the notice within your Account, by sending the notice to your designated contact email address on record in your Account or the Services, or by sending you the notice via the Services. Such notices will be deemed received by you twenty-four (24) hours after they are posted or sent. It is your responsibility to keep your contact email address current and you will be deemed to have received any notice sent to the last known email address that we have on record for you.
If to us, by sending the notice to each of email@example.com, firstname.lastname@example.org, and, if there is an email address identified in the applicable provision of these Terms, also to such email address. Such notices will be deemed received by us twenty-four (24) hours after they are sent.
No oral or written information or advice given by us or our Representatives will create any obligation, liability, or warranty on us, or in any way increase the scope of the warranties in these Terms, unless otherwise agreed in a writing signed by our Chief Executive Officer.
The terms and conditions stated in these Terms supersede any different terms and conditions contained in Customer’s purchase order(s) or any other Customer document that may be accepted by Supplier for Customer’s convenience, even if executed by you and us; we hereby object to the terms and conditions of such Customer documents to the extent they add to or modify the terms and conditions set forth in these Terms.
The Section, sub-Section and other headings appearing in these Terms are inserted only as a matter of convenience and in no way define, govern, limit, modify, or construe the scope or extent of the provisions of these Terms to which they may relate. Such headings are not part of these Terms and will not be given any legal effect.
These Terms are personal to you. You may not assign, sub-license, or otherwise transfer these Terms (or any of your rights or obligations under these Terms) without our prior written consent. We may, without your consent, assign, and otherwise transfer these Terms to any of our Affiliates or to any entity acquiring all or substantially all of our assets. Any prohibited assignment or transfer will be null and void. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of your and our respective successors and permitted assigns.
No Third Party Beneficiaries.
Except for those rights expressly conferred on the Indemnified Parties set forth in Section 13, nothing in these Terms will be enforceable by any party other than you and us, and no Third Party beneficiary rights are conferred on any Third Party.
To the extent permitted by applicable Law, you and we each hereby waive any provision of Law that would render any clause of these Terms invalid or otherwise unenforceable in any respect. Except as otherwise expressly set forth in these Terms, in the event that a provision of these Terms is held by a court of competent jurisdiction to be invalid or otherwise unenforceable in any respect, then such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable Law, and the remaining provisions of these Terms will continue in full force and effect.
No waiver of any provision of these Terms or any right, power, privilege, or remedy of ours under these Terms will be effective, except pursuant to a written instrument signed by our authorized signatory, and any such waiver will be effective only in the specific instance and for the specific purpose stated in such writing. No failure or delay on our part in exercising any right, power, privilege, or remedy arising hereunder will operate as a waiver thereof; nor will any single or partial exercise of any right, power, privilege, or remedy preclude any other or future exercise thereof or the exercise of any other right, power, privilege, or remedy.
You and we are independent contractors. Nothing contained in these Terms will be construed to create a partnership, agency, joint venture, or employer/employee relationship between you and us. Neither you nor we have the authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other party or to bind the other party in any way. You and we each will be responsible for wages, taxes, withholding, insurance, hours, and conditions of employment of its personnel during the Terms Period.
Neither you nor we will be liable for any delay or failure to perform per the terms of these Terms (other than obligations to pay money) caused by acts of God or other causes beyond the performing party’s reasonable control and without such party’s fault or negligence. In such event, either you or we may suspend these Terms in whole or in part for the duration of the delaying cause. You and we each will resume performance under these Terms promptly after the delaying cause ceases. No payment obligations will be excused by a force majeure event.
Construction and Interpretation.
You and we each agree that these Terms were negotiated at arms’ length with access to legal counsel, and that no term or provision herein will be construed favorably or unfavorably as to either you or us each based upon authorship. Singular terms will be construed as plural, and vice versa. Whenever used in these Terms, the terms “including”, “for example”, and their equivalents will be read to mean “including without limitation”, “for example without limitation”, or with a similar meaning as the context requires. As between you and us, your responsibilities set forth in these Terms are yours solely irrespective of whether any Third Party has any responsibility related to such matters. Any grammatical form or variation of a defined term herein will have the same meaning as that of such term.