PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY
Active since: May 25, 2018
By using the Subscription Service or receiving the Consulting Services, or authorizing or permitting any User or End-Customer to access or use the Service or Website you are agreeing to this Agreement. We periodically update this Agreement and if you subscribe to our inside sales call center solution, we will let you know when we do through the Notification app in the Voiptime Cloud Service or by email. You can find archived versions of the Agreement here.
If you are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), you are agreeing to this Agreement for that Entity and representing to us that you have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms, “You,” “Your” shall refer to such Entity and its Affiliates. If you do not have such authority, or if you do not agree with this Agreement, you may not accept this Agreement nor may you access or use the Service or Website.
"Affiliates" means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Billable Users" means those types of Users (defined below) for which we charge you fees as set forth on our Pricing Page.
"Billing Period" means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Subscription Service for a one (1) year Initial Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
"Confidential Information" means all information provided by you or us ("Discloser") to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of the Order. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
"Contact" means a single individual (other than a User) whose Contact Information is stored by you in the Subscription Service.
"Contact Information" means the name, email address, phone number, online user name(s), telephone number, and similar information uploaded by you to the Subscription Service.
"Consulting Services" means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
"Customer Data" means all information that you submit or collect via the Subscription Service. Customer Data does not include Enrichment Data.
"Customer Materials" means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
"Enrichment Data" means the data we make available to you as part of the Subscription Service. Enrichment Data also includes information about Users, such as social media handles, avatars, and alternate email address, that we obtain from public or third party sources.
"Free Services" means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
"Maximum Contacts" means the maximum number of Contacts you are permitted to use with the Subscription Service as identified in your Order Form, plus any Contacts added as part of an upgrade.
"Order Form" or "Order" means the Voiptime Cloud-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services. Most Orders are completed through our online payment process or via in-app purchase. The purchase form may be referred to as a "Statement of Work" if you are purchasing only Consulting Services. “Pricing” means information, provided here https://voiptimecloud.com/pricing.
"Sensitive Information" means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as "Sensitive Personal Data".
"Subscription Fee" means the amount you pay for the Subscription Service.
"Subscription Service" means the web-based inside sales call center software, tools and platforms that you have subscribed to by an Order Form or that we otherwise make available to you, and developed, operated, and maintained by us, accessible via https://voiptimecloud.com/ or another designated URL, and any ancillary products and services, that we provide to you.
"Subscription Term" means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-Voiptime Cloud apps available from, for example, the following: our integrations products page, partner directory, links made available through the Subscription Service.
"Third-Party Sites" means third-party websites linked from within the Subscription Service, including Communications Services.
"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
"Voiptime Cloud", "we", "us" or "our" means the applicable contracting entity as specified in the 'Contracting Entity and Applicable Law' section of 'Miscellaneous'.
"Voiptime Cloud Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services, including Enrichment Data.
"You", "your" or "Customer" means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable billing statement, online subscription process, Order Form or Statement of Work as the customer.
"Your Data" means any personally identifiable data uploaded by you to the Subscription Service that would typically be provided in the normal course of using the Service, as well as all information generated by the Users during the use of the Service. Your Data includes, without limitation, any financial information of any nature or any other personally identifiable information that could be legally considered private or sensitive.
Provision of Service
- Registration. You must be 16 years or older to register, and must provide complete and accurate information during the registration process, including a valid credit card number that you are authorized to use if you are registering for a paid Subscription.
- Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement. We may also provide you access to use our Free Services at any time by activating them in your Voiptime Cloud account.
- Limits. The limits that apply to you will be specified in your Order Form, this Agreement or on our Pricing Page. You will be charged fees associated with all Billable Users. For additional limits and terms that apply to specific products, see the 'Subscription types' section below. On renewal, the current product usage limits on our Pricing Page will apply to your subscription, unless you and we otherwise agree.
- Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. We may make changes that materially reduce the functionality provided to you during the Subscription Term. We might provide some or all elements of the Subscription Service through third party service providers.
- Additional Features. You may subscribe to additional features of the Subscription Service by agreeing to a new Order Form. This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Voiptime Cloud account.
- Free Trial. Voiptime Cloud may make all or part of the Subscription Service available to you and your End Users on a trial basis free of charge (the “Free Trial”). The Free Trial shall begin when you submit a registration for the same to Subscription Service, and shall terminate on the earlier of (i) the Free Trial expiration date as specified by Voiptime Cloud upon receiving your registration, or (ii) the date you execute an Order Form for a Subscription under this Agreement. Unless you purchase a subscription to the applicable Subscription Service before the end of the free trial, all of your data in the Subscription Service may be permanently deleted at the end of the trial, and we will not recover it. If we include additional terms and conditions on the trial registration web page, those will apply as well. ACCESS TO THE SUBSCRIPTION SERVICE IS PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND DURING THE FREE TRIAL.
- Alpha/Beta Services. If we make alpha or beta access to some or all of the Subscription Service (the “Alpha/Beta Services”) available to you (i) the Alpha/Beta Services are provided “as is” and without warranty of any kind, (ii) we may suspend, limit, or terminate the Alpha/Beta Services for any reason at any time without notice, and (iii) we will not be liable to you for damages of any kind related to your use of the Alpha/Beta Services. If we inform you of additional terms and conditions that apply to your use of the Alpha/Beta Services, those will apply as well. We might require your participation to be confidential, and we might also require you to provide feedback to us about your use of the Alpha/Beta Services. You agree that we own all rights to use and incorporate your feedback into our services and products, without payment or attribution to you.
- Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned downtime for upgrades and maintenance.
You may purchase Consulting Services through an Order Form or Statement of Work. Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with the ‘Renewal Subscription Term’ section below. Unless otherwise agreed, all Consulting Services are performed remotely and will be delivered in English.
For Consulting Services performed on-site, you will reimburse us our reasonable cost for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice. If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If there is no Expiration Period or Delivery Period indicated, then it will be one hundred and eighty (180) days from purchase. If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.
We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
Subscription Types and Specific Requirements
- Subscription Types. We offer two types of subscriptions:
- Free Service Subscription – LeadManagement Cloud and all other products for which you do not pay us a Subscription Fee that we do not otherwise name in this ‘Subscription Types’ section.
- Full-Service Subscription – paid tariff plans of Voiptime Cloud inside sales solution (Voip SalesDialer, Voip PowerDialer, Voip CallCenter).
Fees and Payments
- Subscription Fees. Except as otherwise provided in an Order Form, Subscription Fees are set forth on the Base website. For our plans that have applicable User limits, you will be charged fees associated with all Billable Users. Use of Outbound calling feature is subject to additional charges, including applicable telecommunications service rates. Except as otherwise provided in the Order Forms, all Subscription Fees are quoted in United States currency; are based on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and Subscription Fees are non-refundable. Voiptime Cloud may modify the Subscription Fees on thirty (30) days’ email notice. In the event you upgrade your subscription, the Subscription Fees applicable to your new version of the Service will take effect immediately, with such increased fees calculated on a pro-rated basis, taking into account the number of days remaining in the then-current Subscription. If paying via payment method other than credit card, we will charge you at month end for remainder of your term. A valid credit card that you have the right to use is required for any paid Subscription, unless another form of payment was agreed upon in writing between the parties or in an Order Form. Unless otherwise provided in an Order Form, paid Subscriptions will be billed in advance on a monthly, 6 month, annual or other basis, starting on the Effective Date.
- Fee Adjustments at Renewal. Upon renewal, your subscription will be adjusted to match the number of Users actually assigned at the end of your then-current Subscription Term, provided that, if you purchased a product with included Users, then you’ll continue to have those Users included even if they are not assigned. For more detail on renewal pricing, see the ‘Term and Renewal’ section below.
- Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
- Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a Voiptime Cloud partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.
- Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
Use and Limitations of Use
- Ownership of Your Data. You retain all right, title and interest in and to all your Data. Voiptime Cloud shall not access your Data except to respond to service or technical problems, or at your request.
- Collection of Your Data. You are responsible for all activities that occur in your account and for your End User’s compliance with this Agreement. You shall, and shall cause your End Users to, comply with all local, state, federal or foreign law, treaty, regulation or convention applicable to You in connection with the use of the Voiptime Cloud Subscription Service, including without restriction, the CAN-SPAM Act of 2003 (U.S.A.), the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), the EU Data Protection Directive and other laws applicable to you related to privacy, publicity, data protection, electronic communications and anti-spamming laws. You are responsible for the collection, legality, protection and use of your Data that is stored on the System or used in connection with the Voiptime Cloud Subscription Service. Voiptime Cloud will not be responsible for any loss or disclosure of your Data (or any damages related thereto) resulting from you or your End Users’ failure to adequately secure their user identification and passwords or otherwise.
- No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
- Acceptable Use. You and your End Users will comply with our Acceptable Use Policy:
No SPAM Permitted
You may not use the Voiptime Cloud Services in any way (directly or indirectly) to send, transmit, handle, distribute or deliver: (a) unsolicited email ("spam" or "spamming") in violation of the CAN-SPAM Act (referenced below) or any other law; (b) email to an address obtained via Internet harvesting methods or any surreptitious methods (e.g., scraping or harvesting); (c) email to an address that is incomplete, inaccurate and/or not updated for all applicable opt-out notifications, using best efforts and best practices in the industry, or (d) commercial electronic messages in violation of Canada’s Anti-Spam Legislation (referenced below).
You must comply with all laws relating to telephone marketing, including without limitation those specifically referenced in the ‘Proper Usage of Voiptime Cloud Service’ section below. You must comply with all laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. If you use the Voiptime Cloud Service to place telephone calls, you must also comply with all applicable industry standards, including those applicable guidelines published by the CTIA and the Mobile Marketing Association. You are prohibited from using or permitting access to use the Voiptime Cloud Service to make emergency calls or to provide or seek emergency services.
Proper Usage of the Voiptime Cloud Service
In addition, and without limiting the other requirements in this Acceptable Use Policy, you may not (directly or indirectly) use the Voiptime Cloud Service with content, or in a manner that:
- is threatening, abusive, harassing, stalking, or defamatory;
- is deceptive, false, misleading or fraudulent;
- is invasive of another's privacy or otherwise violates another’s legal rights (such as rights of privacy and publicity);
- contains vulgar, obscene, indecent or unlawful material;
- infringes a third party's intellectual property right(s);
- publishes, posts, uploads, or otherwise distributes any software, music, videos, or other material protected by intellectual property laws (or by rights of privacy or publicity) unless you have all necessary rights and consents to do so;
- uploads files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another person's computer;
- downloads any file that you know, or reasonably should know, cannot be legally distributed in that way;
- falsifies or deletes any author attributions, legal or proprietary designations, labels of the origin or source of software, or other material contained in a file that is uploaded;
- restricts or inhibits any other user of the Voiptime Cloud Service from using and enjoying our website and/or the Voiptime Cloud Service;
- harvests or otherwise collects information about others, including e-mail addresses, without their consent;
- violates the usage standards or rules of an entity affected by your use, including without limitation any ISP, ESP, or news or user group (and including by way of example and not limitation circumventing or exceeding equipment use rights and restrictions and/or location and path identification detail);
- is legally actionable between private parties;
- is not a good faith use of the service, such as uploading Contacts in excess of your Contact tier, emailing those Contacts and then purging them shortly thereafter; and/or
- is in violation of any applicable local, state, national or international law or regulation, including all export laws and regulations and without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act) (15 U.S.C. § 7701 et seq.), the U.S Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227), the Do-Not-Call Implementation Act of 2003 (15 U.S.C. § 6152 et seq.; originally codified at § 6101 note), the Directive 2000/31/EC of the European Parliament and Council of 8 June 2000, on certain legal aspects of information society services, in particular, electronic commerce in the Internal Market ('Directive on Electronic Commerce'), along with the Directive 2002/58/EC of the European Parliament and Council of 12 July 2002, concerning the processing of personal data and the protection of privacy in the electronic communications sector ('Directive on Privacy and Electronic Communications'), regulations promulgated by the U.S. Securities Exchange Commission, any rules of national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, the Personal Information Protection and Electronic Documents Act (PIPEDA) (S.C. 2000, c. 5), Canada’s Anti-Spam Legislation (CASL) (S.C. 2010, c. 23), Japan’s Act on Regulation of Transmission of Specified Electronic Mail (Act No. 26 of April 17, 2002) and any regulations having the force of law or laws in force in your or your email recipient's country of residence.
Subscription Term, Termination, Suspension
- Initial Subscription Term. The initial subscription term shall begin on the effective date of your subscription and expire at the end of the period selected during the subscription process ("Initial Subscription Term").
- Renewal Subscription Term. Unless one of us gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for the shorter of the Initial Subscription Term or one year ("Renewal Subscription Term"). The Renewal Subscription Term will be on the current terms and conditions of this Agreement, and subject to the renewal pricing provided for in your Order Form or, if not specified in the Order Form, on our standard pricing available on our Pricing Page. See the ‘Limits’ section above for the applicability of product usage limits on renewal. To prevent renewal of the subscription, the required notice must be provided within the timeframe as specified in the ‘Subscription Types’ section below.
- No Early Termination; No Refunds. The Subscription Term will end on the expiration date and the subscription cannot be cancelled early. We do not provide refunds if you decide to stop using the Voiptime Cloud subscription during your Subscription Term.
- Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
- Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the Voiptime Cloud email send service that results in excessive bounce-backs, SPAM notices or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review, edit and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the Acceptable use policy, provided that, we have no duty to prescreen, control, monitor or edit your Customer Data or Customer Materials.
- Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
- Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
- VoIP Termination. Voiptime Cloud may disable the phone numbers provided to you for the use of VoIP service if, in Voiptime Cloud’s sole discretion, such numbers are substantially underused for thirty (30) days, or if Your Subscription is otherwise suspended, terminated or cancelled.
- Effect of Termination or Expiration. Upon termination or expiration of this Agreement, you will stop all use of the affected Subscription Service and Voiptime Cloud Content, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data (unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable subscription as specified in the ‘Retrieval of Customer Data’ section above. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
General Legal Terms
- Aggregate Data. We may monitor use of the Subscription Service by all of our customers and use the data gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you.
- Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States. Voiptime Cloud will comply with the U.S.-EU Safe Harbor Framework and the U.S.-Swiss Safe Harbor Framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of personal information from European Union member countries. In addition, for the purposes of Article 26(2) of Directive 95/46/EC, customers located in the European Union or the European Economic Area may enter into a Data Processing Agreement that includes the Standard Contractual Clauses adopted by the European Commission in order to further provide adequate safeguards with respect to the data processed under this Agreement. You acknowledge in all cases that Voiptime Cloud acts as the processor of Customer Data and you remain controller of Customer Data for applicable European Union data protection regulations.
Voiptime Cloud’s Proprietary Rights
This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Voiptime Cloud Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us. Our trademarks include but are not limited to Voiptime Cloud, LeadManagement Cloud, Voip SalesDialer, Voip PowerDialer, Voip CallCenter (that we may update any time without notice to you), and you may not use any of these without our prior written permission.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Subscription Service (unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) Enrichment Data may be made available to you based on Customer Data, but we will not use your Customer Data to enrich data for other parties. The Enrichment Data we provide may be provided from or through third party service providers or public sources.
We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
Customer’s Proprietary Rights
As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as permitted by this Agreement. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
- Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as Your Data. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party.
- Protection and Compelled Disclosure. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
You grant us the right to add your name and company logo to our customer list and website.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you; (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
Warranties and Disclaimers
- Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
- Functionality Warranty. Voiptime Cloud warrants that the Subscription Service will operate in substantial conformity with the then current version of the applicable documentation provided by Voiptime Cloud.
- Security Warranty. Voiptime Cloud or its licensors or hosting providers have implemented commercially reasonable efforts to ensure that Your Data will be maintained accurately and safeguarded as well as technical and physical controls to protect Your Data against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Voiptime Cloud, whether by accident or otherwise.
- Services Warranty. Voiptime Cloud warrants that it will perform the Service related to each Deliverable in a competent and workmanlike manner and in accordance with applicable industry standards for similar types of services.
- Remedy. Voiptime Cloud shall, as your sole and exclusive remedy and Voiptime Cloud’s sole and exclusive liability for a breach of the warranties set forth in Section 'Warranties and Disclaimers' hereunder, (i) use commercially reasonable efforts at its own expense to cause the Subscription Service to comply with the Functionality and Security warranties, and reperform any portion of the Services that are not provided in compliance with the Services warranty, provided in each case that such noncompliance is promptly brought to Voiptime Cloud’s attention in writing in reasonable detail. No warranty claim may be made more than thirty (30) days after performance or acceptance, as applicable.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUBSCRIPTION SERVICE AND CONSULTING SERVICES ARE PROVIDED “AS-IS,” AND VOIPTIME CLOUD DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. Voiptime Cloud does not warrant that the Services or the functions contained in the Subscription Service will meet your requirements or that the operation of the Subscription Service will be uninterrupted or error-free. Further, Voiptime Cloud does not warrant that all errors in the Subscription Service can or will be corrected. Voiptime Cloud will not be responsible for any loss of Your Data or inability to perform certain tasks resulting from Your decision to downgrade your Subscription.
Limitation of Liability
- Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
- Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
- Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
- Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at https://voiptimecloud.com/terms-of-service and we will let you via email or in-app notification. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically. If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Contracting Entity and Applicable Law. Your physical address determines which Voiptime Cloud entity you are contracting with for the Subscription and Consulting Services. For this Agreement, “located in” means your shipping or physical address. You are contracting with Voiptime, Inc. and this Agreement is governed by the laws of the Commonwealth of Massachusetts, U.S.A. without reference to conflicts of law principles. For contracts with Voiptime Cloud, Inc., both parties consent to the exclusive jurisdiction and venue of the courts in Boston, Massachusetts, U.S.A. for all disputes arising out of or relating to the use of the Subscription Service or the Consulting Services.
- Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
- Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
- Compliance with Laws. We will comply with all U.S. state and federal laws, with all E.U. Regulations (where applicable) in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws. You must comply with all laws related to the recording of phone calls and ensure all proper consent to record is obtained prior to making any such recording. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Subscription Service or Consulting Services to prohibited countries or individuals or permit use of the Subscription Service or Consulting Services by prohibited countries or individuals.
- Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
- Notices. Notice will be sent to the contact address set forth herein, or by email to email@example.com and will be deemed delivered as of the date of actual receipt. To you: your address as provided in our Voiptime Cloud Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
- Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
- No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
- Survival. The following sections shall survive the expiration or termination of this Agreement: 'Definitions', ‘Fees and Payments’, ‘Voiptime Cloud’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, 'Confidentiality', ‘Publicity’, ‘Indemnification’, ‘Disclaimers’, ‘Limitations of Liability’, ‘Subscription Term, Termination, Suspension’, and ‘Miscellaneous’.
- Precedence. In the event of a conflict between the terms of this Agreement and an Order, the terms of the Order shall control, but only as to that Order.