TERMS AND CONDITIONS
1. Acknowledgement and Acceptance of Terms and Conditions of Agreement. Any software or related products and/or services made available to Licensee shall be governed by the terms and conditions herein. By activating the software Licensee acknowledges receiving, reading and understanding this Agreement and accepts the terms and conditions herein. Licensee states and affirms that they are of legal age (18 years old or older) and that they have authority on behalf of any legal entity indicated on the first page of this Agreement as Licensee to sign this Agreement.
2. Software is for Commercial Use Only. The software and its related products and services are for commercial use only. Any residential or non-commercial uses are strictly prohibited.
3. 911 Functionality and Limitations of 911 Service. The software subject this Agreement is not designed to support 911 calling and location functionality. Dialing 911 through the software may get the Licensee to a 911 network, but will not provide the Licensee location. As such, THE LICENSEE SHALL AT ITS SOLE EXPENSE PLACE LABEL ON THE LICENSEE HEADSET AND ON THE COMPUTER MONITOR STATING THE FOLLOWING: “NOT FOR USE OF 911 CALLING”.
To the fullest extent permitted by applicable law Company will not be liable for any damages due to a delay or failure to provide 911 Dialing, or any interruption or degradation of voice quality of 911 calls, resulting from any cause, including, without limitation: failure to timely provide accurate physical address location; failure or defect in your broadband service, PBX or other equipment: failure of an incoming or outgoing communication; the inability of 911 calls to be connected, completed, or forwarded; an act or omission of a third party, including service outage or loss of power. Company is not responsible for the conduct of local 911 call centers or third parties who assist the company in routing 911 calls, including where data used by a third party to route 911 calls is incorrect or results in no or erroneous data transmitted to a 911 call center. You agree to indemnify Company, its officers, members, employees, affiliates, agents, and any other service provider who may provide 911 services to Company, from claims, losses, damages, fines, penalties, costs, and expenses, including, without limitation, attorneys’ fees, incurred or asserted by or on your behalf or any third party or user of our service, relating to 911 dialing. To the fullest extent permitted by applicable law, you agree to waive all future claims or causes of action arising from or relating to 911 dialing unless they arise from Company’s gross negligence, recklessness, or willful misconduct.
4. Grant of License and Restrictions. Subject to all the terms of this Agreement and timely payment of all fees, Company grants Licensee a nonsublicensable, nonexclusive, right to (i) use solely in and for the Application (as defined above) a product designated above in object code form only (“Product”) on servers located at the site designated (“Site”), and (ii) copy and distribute internally solely for use in the Application up to that number of object code copies of the end-user client portion of the Product specified in the Product and Fee Information section of this Agreement, strictly in accordance with the terms and procedures, and with any notices, Licensor may prescribe from time to time. Except for one copy solely for back-up purposes and except for the distributable portions mentioned above, Licensee may possess only the number of copies of any Product set forth above and may use each such copy on only one server and only in accordance with Company’s applicable user documentation. Company retains ownership of all Products and copies. Licensee will maintain the copyright notice and any other notices that appear on the Product on any copies and any media. Licensee will not (and will not allow any third party to) (i) reverse engineer, reduce to practice, or attempt to discover any source code or underlying ideas or algorithms of any Product (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use a Product for the benefit of any third party, or (iii) use any Product, or allow the transfer, transmission, export, or re-export of any Product or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency. All the limitations and restrictions on Products in this Agreement also apply to documentation.
5. Licensee Responsibilities.
a. You warrant that the Company software and services will be used only for commercial purposes, and this is a business-service transaction, versus a consumer-service transaction.
b. You must separately obtain and maintain an appropriate Internet service to have functioning telephone service. An appropriate Internet service has the reliability, capacity, and quality necessary to support voice services, as Companyspecifies.
c. You acknowledge and agree that the quality of your Company Hosted VoIP Service is very dependent upon the reliability, capacity, and quality of your Internet connection, and you accept ultimate responsibility for your Internet connection.
d. If your Internet service experiences an interruption or outage, your voice services will not function.
e. You are solely responsible for the security of your Hosted VoIP service, and you agree to take all necessary steps to reasonable prevent and avoid fraudulent use of your service, including but not limited to subscription fraud, cloning or network fraud, and employee or third-party theft.
f. You accept and agree to any and all liability and responsibility for any damages and losses to the Hosted VoIP service arising out of any malfunction or other issue with your network infrastructure.
g. You represent, warrant, and agree that you have read, understood and accepted the Limitations of 911 Service in this document.
h. Any and all telephony devices deployed to you (“Equipment”) in conjunction with our software and services are your property for all purposes including any and all personal property liabilities.
i. Outages due to Electrical, Internet or other General Failures. You acknowledge that Company’s software and services will not function in the absence of electrical power, access to the Internet or other general failures associated with the VOIP network. You acknowledge that the Services will not function if there is an interruption of your broadband or high-speed Internet access service.
j. Battery / Generator Backup Solutions. You acknowledge that battery backup is recommended with VoIP service.
k. You will not use Company software or services with any automated bulk or group dialing and delivery process.
l. You will not use Company software or services in conjunction with telemarketing activities.
6. Term, Fees and Payment.
Unless otherwise indicated, this Agreement is month-to-month with no term. The term of this Agreement (“Term”) begins on the date that the Licensee pays the license fee and continues monthly for the duration of Licensee’s use of Voice by EVO. At the end of each month, the Term is automatically renewed for the following month unless Licensee provides Company, prior to the end of the current Term, notification of intention to terminate this Agreement. Licensee agrees to pay the agreed license fee for the duration of the Term. Expiration of the Term does not alleviate Licensee of responsibility for paying all unpaid, accrued charges due hereunder.
Upon execution of this Agreement, Licensee shall pay Company the Initial License Fee set forth thereon. All payments shall be made inside the U.S., in U.S. dollars. The terms of all payments shall be net-thirty (30) calendar days from the date of invoice. Any payments more than thirty (30) calendar days overdue may, at Company’s discretion, bear a late payment fee of 3.5% per month, or, if lower, the maximum rate allowed by law. In addition, Licensee will pay all taxes (such as the VAT), shipping, duties, withholdings and the like, in addition to the stated monthly or annual fee stated above. With each payment, Licensee will include a calculation of such payment and all information relevant to such calculation. Licensee will maintain, and Company will be entitled to audit on reasonable notice, any records relevant to such payments; Company may audit such records on reasonable notice at Company’s cost (or if the audits reveal a 5% underpayment, at Licensee’s cost).
Licensee hereby acknowledges that all telephone numbers are purchased through Twilio and Licensee is responsible for they payment of all Twilio fees, including telephone number purchases and the usage charges thereof. These fees and charges are variable and entirely controlled by Licensee’s purchase of telephone numbers and the usage thereof. Licensee shall pay the monthly Twilio fee to Company in addition to the monthly license fees related to Voice by EVO.
Licensee further agrees to provide Company a credit card to be used to pay any and all Twilio fees in the event Licensee’s account becomes more than sixty (60) days past due and further consents to Company paying said with the credit card provided without notice to the Licensee.
7. Privacy. Company utilizes the public Internet and third party networks to provide voice and video communication services. Accordingly, Company cannot guarantee the security of voice and video communications of Licensee. Company is committed to respecting Licensee’s privacy. Once Licensee chooses to provide personally identifiable information, it will only be used in the context of the Licensee’s relationship with Company. Company will not sell, rent, or lease Licensee’s personally identifiable information to others. Unless required by law or subpoena or if Licensee’s prior permission is obtained, Company will only share the personal data of Licensee with business partners that are acting on Company’s behalf to complete the activities described herein. Such Company entities and/or national or international business partners are governed by Company’s privacy policies with respect to the use of this data. Upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, Company may disclose personally identifiable information.
8. Export Compliance. Licensee agrees to comply with U. S. Export laws concerning the transmission of technical data and other regulated materials via the software and services. Licensee agrees to comply with applicable local, state and federal regulations governing the locality in which the software and services are used.
9. Force Majeure. Company shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of nature, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties of Company that may occur in spite of Company’s best efforts.
10. Termination. This Agreement and all licenses will terminate thirty days (ten in the case of non-payment and immediately in the case of a breach of Section 1) after notice of any breach by Licensee remaining uncured at the end of such notice period. Upon termination, or if a license ceases to be effective, Licensee shall immediately cease all use of all affected Products and return or destroy all copies of all affected Products and all portions thereof and so certify to Company. Except as otherwise expressly provided herein, the terms of the Agreement shall survive termination. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs. Licensee shall be responsible for and pay any and all attorneys fees and costs incurred by Company to collect any monies due under this Agreement and/or to enforce the Terms and Conditions of this Agreement.
11. Indemnification. Company shall hold Licensee harmless from liability to third parties resulting from infringement by a Product of any United States patent issued sixty (60) days or more before delivery of such Product or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to a Product or portions or components thereof (i) not supplied by Company, (ii) made in whole or in part in accordance to Licensee specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Licensee continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Licensee’s use of such Product is not strictly in accordance with this Agreement. Licensee will indemnify Company from all damages, settlements, attorneys’ fees and expenses related to (i) any claim of infringement or misappropriation excluded from Company’s indemnity obligation by the preceding sentence, or (ii) any other claim in connection with the Product or the use or distribution thereof.
12. Limited Warranty and Disclaimer. Company warrants for a period of one (1) year from Licensee’s first acquisition of a Product that such Product will materially conform to Company’s then currently stated application for such Product. This warranty covers only problems reported to Company during the warranty period. ANY LIABILITY OF COMPANY WITH RESPECT TO A PRODUCT OR THE PERFORMANCE THEREOF UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO PRODUCT REPLACEMENT OR, IF REPLACEMENT IS INADEQUATE AS A REMEDY OR, IN COMPANY’S OPINION, IMPRACTICAL, TO REFUND OF THE LICENSE FEE PAID FOR THE CURRENT LICENSE PERIOD. EXCEPT FOR THE FOREGOING, ALL PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, COMPANY DOES NOT WARRANT RESULTS OF USE OR THAT THE PRODUCTS ARE BUG FREE OR THAT THEIR USE WILL BE UNINTERRUPTED. During Warranty period, limited warranty coverage is for replacement service (software media) as well as e-mail and phone technical support.
13. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, COMPANY SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER WITH RESPECT TO THE APPLICABLE UNITS OF PRODUCT DURING THE LICENSE PERIOD IN WHICH THE CAUSE OF ACTION ACCRUED; OR (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
14. Press Release. Licensee consents to a press release, which may include the Licensee’s name and trademark. Each party will have the opportunity to review and edit the document prior to its release. Company will select the date of release, but we anticipate releasing the press release approximately six to eight weeks after the execution of this Agreement.
15. Miscellaneous. Neither the Agreement nor the licenses granted hereunder are assignable or transferable by Licensee without the prior written consent of Company; any attempt to do so shall be void. Company may assign this Agreement in whole or in part. Any notice, report, approval or consent required or permitted hereunder shall be in writing. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be construed pursuant to the laws of The United States of America Commonwealth of Pennsylvania without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Venue for any action relating to this Agreement shall be exclusively in the Commonwealth of Pennsylvania Court of Common Pleas, United States of America, and the parties hereto consent to the exclusive jurisdiction of such Court. Any waivers or amendments shall be effective only if made in writing and signed by the parties hereto. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Company in any action to enforce this Agreement will be entitled to recover its attorney’s fees, costs and litigation expenses incurred in connection with such action. Licensee represents that it is not a government agency and it is not acquiring the license pursuant to a government contract or with government funds.