1 – PURPOSE
These general terms and conditions of supply (“General Terms”) set out the terms and conditions according to which Interact LLC, a limited liability company registered in the State of Delaware, United States of America, including its Affiliates (herein collectively referred to as “Interact”), and owner of the website http://www.nimblevox.com (the “Interact Website”), may provide access to a customer (herein referred to as “Customer”) to certain software based hosted telecommunication services (“Services”), as more fully described at the Interact Website. Interact and the Customer will jointly be referred to as “Parties” in these General Terms.
2 – APPLICABILITY
2.1 Subject to Customer’s acceptance of and compliance with these General Terms, and with the payment requirements for the Services, Interact hereby grants Customer a limited, non-exclusive, non-transferable, revocable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of these General Terms.
2.2 Unless explicitly stated otherwise, any new features provided by Interact that augment or enhance the current Services shall also constitute “Services” and shall be subject to these General Terms. Customer may not, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the software or other intellectual property owned by Interact, or its licensors, related to the Services for any purpose whatsoever. Customer may not allow any unauthorized third party to access the Services for any purpose whatsoever. All rights not expressly granted under these General Terms are retained by Interact.
2.3 These General Terms shall always supersede any conflicting pre-printed and/or standard Customer terms of any purchase orders.
2.4 These General Terms may be supplemented or amended in Interact’s sole and absolute discretion from time to time, and such amended terms and conditions shall be effective immediately upon posting to the Interact Website. Customer’s continued use of the Services after such posting will constitute acceptance by Customer of such amendments. It is Customer’s responsibility to review these General Terms frequently and remain informed about any changes to them, so Interact encourages Customers to visit this page often. Except to the extent modified or amended, the other terms and conditions remain unaffected.
3 – SPECIFICATIONS
3.1 The scope of Services are set out in the descriptive material at the Interact Website.
3.2 Customer may write a software application or website (an “Application”) that interfaces with the Services. Customer acknowledges that Interact may change, deprecate or republish APIs for any Service or feature of a Service from time to time, and that it is Customer’s responsibility to ensure that calls or requests Customer makes to or via the Services are compatible with then-current APIs for the Services. Interact will attempt to inform Customer of any changes with reasonable notice so Customer can adjust Customer’s Application, but Interact is under no obligation to do so.
3.3 All information contained in Interact’s brochures and other similar materials are non-binding.
4 – AUTHORISED USE
4.1 Customer and any Applications that Customer may build, distribute, or otherwise create may make network calls or requests to the Services, or the platforms that make up the Services, or may receive phone calls via the Service, at any time that the Services are available, provided that those requests do not violate the terms of these General Terms.
4.2 Customer may not remove, obscure, or alter any notice of any Interact trademark, service mark or other intellectual property or proprietary right appearing on the Interact Website or contained within the platform that encompasses the Services.
4.3 Provided that Customer complies with the terms of these General Terms, Customer may use the Services to execute Applications owned or lawfully obtained by Customer. Customer is solely responsible for Applications, including any data, text, images or content contained therein.
4.4 Customer is personally responsible for all traffic originating from Applications using Customer account credentials to the Services. As such, Customer should protect Customer authentication keys and security credentials. Actions taken using Customer credentials shall be deemed to be actions taken by the Customer, with all consequences including service termination, civil and criminal penalties.
4.5 Interact may make available to Customer, for Customer installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation (the “Interact Properties”). Subject to Customer acceptance of these General Terms, on-going compliance with its terms and conditions with respect to the subject Services, and payment if and as required for Customer right to use the subject Services, Interact hereby grants to Customer, without the right to sublicense, a limited, non-exclusive, non-transferable license during the Term of these General Terms, under Interact’s intellectual property or proprietary rights in the Interact Properties, only to install, copy and use the Interact Properties solely in connection with and as necessary for Customer’s use of such Services and solely to the extent in compliance with all the terms and conditions of these General Terms.
4.6 The Interact Properties may include, without limitation:
4.7 Interact may make available under another license agreement, such as an open source agreement, additional content or software. Any such content or software will be clearly marked with such a license indicating the usage rights available for that content or software. For such content or software released pursuant to an open license, Interact encourages Customer to modify, alter, tamper with, repair and/or create derivative works consistent with such license. Such content or software may include:
4.8 Except as may be expressly authorized under these General Terms:
4.9 For purposes of these General Terms, Interact hereby grants to Customer a non-transferable, non-sublicenseable, non-exclusive license during the Term of these General Terms to display the trade names, trademarks, service marks, logos, domain names of Interact (each, an “Interact Mark”) for the purpose of promoting or advertising that Customer uses the Services. In return, Customer hereby grants Interact a non-transferable, non-sublicenseable, non-exclusive license during the Term of these General Terms to display Customer trade names, trademarks, service marks, logos, domain names and the like for the purpose of promoting or advertising that Customer uses the Services. In using Interact Marks, Customer may not:
(i) display an Interact Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Interact;
(ii) use Interact Marks to disparage Interact or its products or services; or
(iii) display an Interact Mark on a site that violates any law or regulation.
Notwithstanding the above, Interact may determine in its sole discretion whether its Interact Marks may be used in connection with Customer Applications. Furthermore, Interact may modify any Interact Marks provided to Customer at any time, and upon notice, Customer will use only the modified Interact Marks and not the old Interact Marks. Other than as specified in General Terms, Customer may not use any Interact Mark unless Customer obtains Interact’s prior written consent.
4.10 The rights granted by Interact in these General Terms with respect to the Interact Properties, the Interact Marks and the Services are nonexclusive, and Interact reserve the right to:
(i) act as a developer of products or services related to any of the products that Customer may develop in connection with the Interact Properties or via Customer use of the Services; and
(ii) appoint third parties as developers or systems integrators who may offer products or services which compete with Customer Applications.
4.11 Subject to Interact’s commercially reasonable efforts, and so long as Customer account remains in good standing, data generated by Customer’s use of the Services, such as audio recordings and call log entries, will remain available as outlined in Interact’s Data Retention Policy. The policy can be found at Interact’s Website.
4.12 Notwithstanding the above, and without limitation to any other provision of these General Terms, Interact shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur with respect to loss of data associated with Customer account and data therein.
5 – TERM, TERMINATION AND SUSPENSION
5.1 The term (“Term”) of these General Terms will commence once Customer accepts these General Terms as provided herein. The Agreement will remain in effect until terminated by Customer or Interact in accordance with this Section 5.
5.2 Customer may terminate these General Terms for any reason or no reason at all, at Customer’s convenience, by closing Customer’s account for any Services for which Interact provide an account closing mechanism.
5.3 Interact may suspend Customer’s right and license to use any or all Services or terminate these General Terms in their entirety (and, accordingly, cease providing all Services to Customer), for any reason or for no reason, at Interact’s discretion at any time by providing Customer not less than thirty (30) days’ advance notice in accordance with the notice provisions of these General Terms.
5.4 Interact may suspend Customer’s right and license to use the Services or terminate these General Terms in their entirety (and, accordingly, Customer’s right to use the Services), for cause effective as set forth below:
5.4.1 Immediately, upon Interact’s notice to Customer in accordance with the notice provisions set forth in these General Terms, if:
(i) Customer violates any provision of the Acceptable Use Policy or Interact has reason to believe that Customer has violated the Acceptable Use Policy;
(ii) there is an unusual spike or increase in Customer use of the Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Services;
(iii) Interact determines, in its sole discretion, that Interact’s provision of any of the Services to Customer is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or
(iv) subject to applicable law, upon Customer liquidation, commencement of dissolution proceedings, disposal of Customer assets, failure to continue Customer business, assignment for the benefit of creditors, or if Customer becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding.
5.4.2 Immediately, and without notice, if Customer is in default of any payment obligation with respect to any of the Services or if any payment mechanism Customer has provided to Interact is invalid or charges are refused for such payment mechanism.
5.4.3 Five (5) days following Interact’s provision of notice to Customer in accordance with the notice provisions set forth in these General Terms, if Customer breaches any other provision of these General Terms and fails, as determined by Interact, in its sole discretion, to cure such breach within such 5-day period.
5.5 Effect of Suspension or Termination.
5.5.1 Upon Interact’s suspension of Customer use of any Services, in whole or in part, for any reason:
(i) fees will continue to accrue for any Services that are still in use by Customer, notwithstanding the suspension;
(ii) Customer remains liable for all fees, charges and any other obligations Customer has incurred through the date of suspension with respect to the Services; and
(iii) all of Customer’s rights with respect to the Services shall be terminated during the period of the suspension.
5.5.2 upon termination of these General Terms for any reason:
(i) Customer remains liable for all fees, charges and any other obligations Customer has incurred through the date of termination with respect to the Services; and
(ii) all of Customer’s rights under these General Terms shall immediately terminate.
5.6 Following the suspension or termination of Customer’s right to use the Services by Interact or by Customer for any reason other than a termination for cause, Customer shall be entitled to take advantage of any post-termination assistance Interact may generally elect to make available with respect to the Services such as data retrieval arrangements. Interact may also endeavor to provide Customer with unique post-suspension or post-termination assistance, but Interact shall be under no obligation to do so. Customer’s right to take advantage of any such assistance, whether generally made available with respect to the Services or made available uniquely to Customer, shall be conditioned upon Customer acceptance of and compliance with any fees and terms Interact may specify for such assistance.
6.1 The Services are provided on a best-efforts basis. In addition to Interact’s right to terminate or suspend the use of Services to Customer as described herein, Customer acknowledges that:
(i) Customer’s access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and
(ii) Interact shall also be entitled, without any liability to Customer, to suspend access to any portion or all of the Services at any time, on a Services-wide basis:
(a) for scheduled downtime to permit Interact to conduct maintenance or make modifications to any Services;
(b) in the event of a denial of service attack or other attack on the Services or other event that Interact determines, in its sole discretion, may create a risk to the applicable Services, to Customer or to any of Interact’s other customers if the Services were not suspended; or
(c) in the event that Interact determines that any Services is prohibited by law or Interact otherwise determines that it is necessary or prudent to do so for legal or regulatory reasons;
(collectively, “Services Suspensions”).
Without limitation to any other provision in these General Terms, Interact shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur as a result of any Services Suspension. To the extent Interact is able, Interact will endeavor to provide Customer notice of any Services Suspension in accordance with the notice provisions set forth in these General Terms and to post updates regarding resumption of the availability of Services following any such Services Suspension, but shall have no liability for the manner in which Interact may do so or if Interact fails to do so.
6.2 Interact strives to keep information Customer provides to Interact secure, but cannot guarantee that Interact will be successful at doing so. Accordingly, without limitation to any other provision in these General Terms, Customer acknowledges that Customer bears sole responsibility for adequate security, protection and backup of Customer content including all audio recordings associated with Customer’s account. Interact strongly encourages Customer, where available and appropriate, to use encryption technology to protect Customer content from unauthorized access and to routinely archive Customer content. Interact will have no liability to Customer for any unauthorized access or use, corruption, deletion, destruction or loss of any of Customer content.
6.3 Customer agrees that it will not intentionally or knowingly take any steps to avoid or defeat the purpose of security measures associated with the Services or associated websites, including the public sharing of login information and/or passwords, attempts to compromise authentication protocol and malicious attacks on client portal (i.e. SQL injection, port scan, denial of service, etc.), reverse engineering of security measures, deconstruction or public sharing of proprietary code, or any other steps that would intentionally or knowingly use any means to avoid or defeat (or allow others to avoid or defeat) existing security measures associated with the Services or associated websites.
7.1 In its sole discretion, Interact shall determine whether Customer is eligible for a free trial subscription to its Services, which terms of the free trial are set forth at the Interact Website. Free trials are limited to one per Customer, and if Interact finds that Customer has created multiple free trial accounts, Interact reserves the right to suspend those accounts and take actions to prevent additional violations.
7.2 If Customer has subscribed to the full version of our Services, then Customer agrees to pay applicable fees (including any minimum subscription fees) as set forth at http://www.nimblevox.com/pricing. All payments of fees for the use of Interact’s Services will be pre-paid and are non-refundable. Access to the full version of our Services will not be made available until Interact receives payment of fees from Customer. If Customer does not use Interact’s Services for a period of 90 days, any remaining balance in Customer’s account will be forfeited. If Customer elects to use the Services again in the future, Customer will be required to prepay applicable fees before access to the Services will be made available for Customer use. Interact may increase or add new fees for any existing Services or Service’s features by giving Customer 30 days’ advance notice. All fees payable by Customer are exclusive of applicable taxes, including, without limitation, customs duties or levies, stamp duty, Goods and Services Tax and any value added, turnover, withholding or equivalent taxes levied on account of sales. Such taxes shall be payable in addition to the price. Customer will provide such information to Interact as reasonably required to determine whether Interact are obligated to collect any taxes from the Customer.
7.3 Interact may specify the manner in which Customer will pay any fees, and any such payments shall be subject to Interact’s general accounts receivable policies from time to time in effect. All amounts payable by Customer under these General Terms will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, Customer shall notify Interact and shall pay such additional amounts to Interact as necessary to ensure that the net amount that Interact receives, after such deduction and withholding, equals the amount Interact would have received if no such deduction or withholding had been required. Additionally, Customer shall provide Interact with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
7.4 Should Customer have any dispute as to fees associated with Customer’s account, please contact Interact at firstname.lastname@example.org within 30 days of the date of the activity that generated such dispute, and Interact will attempt to resolve the matter. Any and all refunds issued to resolve such a dispute shall be issued as credits to Customer account, but in no event shall there be any cash refunds. Disputes older than 30 days shall not be entitled to any refunds or credits.
7.5 Unless otherwise specified in the Agreement, all prices are expressed and all payments shall be effected in United States Dollars.
7.6 Payments shall be made to the bank account of Interact specified in any invoice. All invoices shall be payable in advance by cleared funds to Interact’s account. Interact may, at its sole option; assign any receivables without the prior written consent of the Customer.
7.8 If the Customer does not pay any amount due to Interact, Interact may, in addition to any other rights it may have, charge interest on the overdue amount at the rate of 4% per annum in excess of the interest rate for the time being prescribed by LIBOR (3 month term) calculated from the date of invoice to the actual date of full and final payment. Any payment by the Customer shall be credited first against any interest so accrued and the balance of payment (if any) shall be applied in reduction of the outstanding balance of the Contract Price.
7.9 Interact reserves the right to: (a) require reasonable credit assurances and reasonable credit limits for purchases made by the Customer under these General Terms; and (b) suspend delivery of Services if any payment is overdue and/or if the credit limit established is exceeded and/or in the event of material adverse effect on the Customer’s overall creditworthiness.
8.1 As between Interact and Customer, Interact owns all patent, copyright, trademark, trade secret and other intellectual property rights that may exist (i) in the Services, the Interact equipment and network that may be utilized to provide the Services, (ii) any software or hardware provided by Interact to Customer to facilitate Customer’s utilization of the Services, (iii) any domain names provided by Interact in connection with the provision of the Services, and (iv) any information, data, trends, analyses, metadata or other data which may be derived from any of the foregoing that is derived or created by Interact by reference to the Services, Interact’s network and Customer’s usage of the Services.
8.2 Other than the limited use and access rights and licenses expressly set forth in these General Terms, Interact reserves all right, title and interest (including all intellectual property and proprietary rights) in and to:
(i) the Services;
(ii) the Interact Properties;
(iii) the Interact Marks; and
(iv) any other technology and software that Interact provides or uses to provide the Services and the Interact Properties. Customer does not, by virtue of these General Terms or otherwise, acquire any ownership interest or rights in the Services, the Interact Properties, the Interact Marks, or such other technology and software, except for the limited use and access rights described in these General Terms.
8.3 Interact may, at its discretion, offer certain Software Development Kits, tools, application samples, or documentation under an open source license. Any such products will be marked with copyright details, and those copyrights will apply to those and only those documents. Interact reserves all rights to any documents, tools, services, technologies and the like not designated with an open license.
8.4 Other than the rights and interests expressly set forth in these General Terms and excluding any and all works derived from Interact Properties, Customer reserves all right, title and interest (including all intellectual property and proprietary rights) in and to:
(i) content and data Customer may send to Interact or use as part of Customer’s use of any Services (“Customer Content”); and
(ii) Customer’s Applications.
8.5 In the event Customer elects, in connection with any of the Services, to communicate to Interact suggestions for improvements to the Services, the Interact Properties or the Interact Marks (collectively, “Feedback”), Interact shall own all right, title, and interest in and to the same, even if Customer has designated the Feedback as confidential, and Interact shall be entitled to use the Feedback without restriction. Furthermore, any other content or information Customer posts or provides to Interact via comments, forums, emails and the like (collectively, “Communications”) shall be considered the property of Interact. Customer hereby irrevocably assigns all right, title and interest in and to the Feedback and Communications to Interact and agrees to provide Interact such assistance as Interact may require to document, perfect, and maintain Interact’s rights to the Feedback and Communications.
8.6 During and after the Term, with respect to any of the Services that Customer elects to use, Customer will not assert, nor will Customer authorize, assist, or encourage any third party to assert, against Interact or any of Interact’s affiliates, customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of Interact), sub licensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
9.1 Customer represents and warrants that Customer will not use the Interact Website (including Interact’s forums and comments sections), Services, Interact Properties, Interact Marks, Customer Applications or Customer Content in a manner that violates the Acceptable Use Policy. To this effect, Interact asks that Customer takes reasonable precautions to promote best practices. Although Interact does not assume the duty or obligation to monitor any materials created, posted or uploaded by Customer or any third parties, Interact reserves the right, in its sole and absolute discretion, to monitor any and all materials posted or uploaded by Customer or any third parties at any time without prior notice to ensure that they conform to any usage guidelines or policies (including Interact’s Acceptable Use Policy) relating to Interact’s Website or the Services.
9.2 Customer also acknowledges and understands that Interact does NOT currently allow Customers to access any 911 or similar emergency services (no traditional 911, E911, or similar access to emergency services). The Services are not intended to replace any primary phone service, such as a traditional landline or mobile phone that may be used to contact emergency services.
9.3 Customer represents and warrants:
(i) that Customer is solely responsible for the development, operation, and maintenance of Customer Applications and for Customer Content, including without limitation, the accuracy, appropriateness and completeness of Customer Content and all product-related materials and descriptions;
(ii) that Customer has the necessary rights and licenses, consents, permissions, waivers and releases to use and display Customer Applications and Customer Content;
(iii) that neither Customer Applications nor Customer Content:
(a) violates, misappropriates or infringes any rights of use of any third party,
(b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or
(c) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
(iv) that neither Customer Applications nor Customer Content contains any harmful components; and
(v) to the extent to which Customer uses any of the Interact Marks, that Customer will conduct Customer business in a professional manner and in a way that reflects favorably on the goodwill and reputation of Interact.
Customer also represents and warrants that Customer is responsible for any charges incurred by virtue of Customer’s use of the Applications, no matter whether the Applications acted in error.
9.4 Customer further acknowledges that Customer understands that Customer may use any phone number (including any previously-provisioned direct inward toll-free numbers or vanity numbers) assigned or ported in to Customer account and Interact shall not interfere with Customer’s right to port that number away so long as Customer’s account is in good standing and that Customer provides appropriate supporting documentation in accordance with common industry standards for porting such number away from Interact; provided, however, that if Customer’s account has closed, suspended or lapsed for any other reason (including termination of these General Terms) and Customer has not reactivated Customer account or rectified such status within thirty (30) days after the earliest to occur of such event, then at the end of such thirty (30)-day period Interact will immediately assume ownership of any phone numbers and reserves the right to give any of those numbers to other customers, and Customer portability rights will be lost. During such thirty (30)-day period, Customer shall retain the exclusive right to port phone numbers associated with Customer’s account away from Interact.
9.6 Customer represents and warrants that without Interact’s express written consent Customer will not use, and will not authorize any third party to use, any Public Software (as defined below) in connection with the Services in any manner that requires, pursuant to the license applicable to such Public Software, that any Interact Properties or Services be:
(a) disclosed or distributed in source code form,
(b) made available free of charge to recipients, or
(c) modifiable without restriction by recipients.
With respect to any Feedback or Communications, Customer represents and warrants that such Feedback and Communications, in whole or in part, contributed by or through Customer,
(i) is legally distributable by Customer, either because Customer owns the copyright or because Customer has fully complied with any copyright terms associated with the software or content,
(ii) contains no third party software or any software that may be considered Public Software, and
(iii) does not violate, misappropriate or infringe any intellectual property rights of any third party.
“Public Software” means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following:
(i) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License,
(ii) the Artistic License (e.g., PERL),
(iii) the Mozilla Public License,
(iv) the Netscape Public License,
(v) the Sun Community Source License (SCSL),
(vi) the Sun Industry Standards License (SISL),
(vii) the BSD License and
(viii) the Apache License.
9.7 Customer represents and warrants that:
(i) the information Customer provides in connection with Customer registration for the Services is accurate and complete;
(ii) Customer is duly authorized to do business in the jurisdiction where Customer operates; and
(iii) Customer is an authorized representative of Customer entity duly authorized to access the Services and to legally bind Customer to these General Terms and all transactions conducted under Customer’s account.
9.8 INTERACT PROPERTIES, THE NEWNET MARKS, AND/OR SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY INTERACT OR ITS LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS.” INTERACT AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, INTERACT AND ITS LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. INTERACT AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA CUSTOMER STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. INTERACT AND ITS LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM INTERACT OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
9.9 In addition to the foregoing, Interact specifically disclaims all liability, and Customer shall be solely responsible for the development, operation, and maintenance of Customer Applications and for all materials that appear on or within Customer Applications and Customer agrees that Customer shall, without limitation, be solely responsible for:
9.9.1 the technical operation of Customer Applications and all related equipment;
9.9.2 the accuracy and appropriateness of any materials posted on or within Customer Applications (including, among other things, any product-related materials);
9.9.3 ensuring that any materials posted on Customer’s site or within Customer Applications do not violate Interact’s Acceptable Use Policy, are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
9.9.5 any of Customer users’ or customers’ claims relating to Customer Applications or any Services utilized in connection with Customer Applications.
9.10 NEITHER INTERACT NOR ANY OF ITS LICENSORS SHALL BE LIABLE TO CUSTOMER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF INTERACT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THESE GENERAL TERMS, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER CONTENT. IN ANY CASE, INTERACT’S AGGREGATE LIABILITY UNDER THESE GENERAL TERMS SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO INTERACT HEREUNDER FOR THE SERVICES DURING THE PRECEDING TWELVE (12) MONTHS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS.
10.1 Customer agrees to indemnify, defend and hold Interact, its affiliates and licensors, each of its and their business partners (including third party sellers on websites operated by or on behalf of Interact) and each of Interact’s and its respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorney’s fees), arising out of or in connection with any claim arising out of:
(i) Customer’s use of the Services, Interact Properties and/or Interact Marks in a manner not authorized by these General Terms, and/or in violation of the applicable restrictions, the Acceptable Use Policy, and/or applicable law,
(ii) Customer Applications, Customer Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Customer Applications and/or Customer Content,
(iii) Customer’s violation of any term or condition of these General Terms or any applicable additional policies, including without limitation, Customer representations and warranties, or
(iv) Customer’s or Customer employees’ or personnel’s negligence or willful misconduct.
10.2 Interact agrees to promptly notify Customer of any claim subject to indemnification; provided that Interact’s failure to promptly notify Customer shall not affect Customer’s obligations hereunder except to the extent that Interact’s failure to promptly notify Customer materially delays or significantly prejudices Customer’s ability to defend the claim. At Interact’s option, Customer will have the right to defend against any such claim with counsel of Customer’s own choosing (subject to Interact’s written consent) and to settle such claim as Customer deems appropriate, provided that Customer shall not enter into any settlement without our prior written consent and provided that Interact may, at any time, elect to take over control of the defense and settlement of the claim.
11.1 Notwithstanding anything to the contrary, Interact may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Interact’s or any third party’s intellectual property and/or proprietary rights. Any dispute hereunder shall be adjudicated in any state or federal court in Cook County, Illinois, United States of America and Customer consents to exclusive jurisdiction and venue in such courts. Customer further acknowledges that Interact’s rights in the Interact Properties and the Interact Marks are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
11.2 By using the Services, Customer agrees that the laws of the State of Illinois, without regard to principles of conflicts of laws, will govern these General Terms and any dispute of any sort that might arise between Customer and Interact.
12.1 Notices made by Interact under these General Terms for Customer or Customer account specifically (e.g., notices of breach and/or suspension) will be provided to Customer via a notification message displayed on Customer’s account page or via the email address provided to Interact in Customer registration for the Services or in any updated email address Customer provides to us in accordance with standard account information update procedures Interact may provide from time to time. It is Customer’s responsibility to keep Customer email addresses current and Customer will be deemed to have received any email sent to any such email address, upon Interact sending of the email, whether or not Customer actually receives the email.
12.2 For notices made by Customer to Interact under these General Terms and for questions regarding these General Terms or the Services, Customer may contact Interact as follows: by US Postal Mail at Interact LLC, 1455 West Shure Drive, Arlington Heights, IL 60004, or by contacting Interact at email@example.com.
13.1 If Customer has available funds in Customer’s account, Customer may send SMS text messages to SMS-enabled numbers worldwide – see the Interact Website for full details of the functionality and destinations available to Customer. The use of SMS is governed by the terms herein, including Interact’s Acceptable Use Policy.
13.2 The charges payable for sending SMS consist of a per-message rate as set out at http://www.nimblevox.com/pricing.
13.3 Each SMS message has a limit of 160 characters. If Customer types a longer message it will be broken down into several SMS messages and Customer will be charged accordingly for each message sent. If Customer types a character that is not supported by the GSM character set, the format of the SMS may be converted to Unicode, which is subject to a 70 character limit per message.
13.4 Customer may send SMS messages to more than one person at a time (subject to any restrictions on the overall number of concurrent messages that may be imposed by Interact or its partners from time-to-time); however please note Customer will be charged for each SMS sent. Customer agrees not to send any unsolicited SMS and/or SMS containing commercial material or material over which Customer does not have rights of dissemination.
13.5 If Interact cannot (for whatever reason) send Customer SMS, its status will be shown as “pending”. Interact will continue to try and send the message for up to 24 hours and if Interact cannot properly send the message within this timeframe then the SMS charge will be refunded to Customer’s account balance automatically.
13.6 Customer acknowledges that in connection with Customer’s use of SMS, including the use by Customer’s customers and subscribers (“End-Users”), Interact may receive domain names, End-User names, addresses, passwords, telephone and device numbers, the content of messages, data files and other data and information provided by End-Users or in connection with SMS (collectively “User Information”). Interact exercises no control whatsoever over any information, text, data, color or black and white images, moving and still images, and sound recordings (collectively “Mobile Content”) or User Information, including the content of messages, information that may be transmitted and/or generated using SMS. Interact’s responsibilities are limited to storing the User Information and transmitting the User Information. Interact has no obligation and undertakes no responsibility to review User Information to determine whether any such User Information may violate any applicable law or regulation, or create liability to, or on the part of, any third party. Customer is solely responsible for the content of all User Information and transmissions thereof and use of SMS. Without prejudice to the foregoing, Interact reserves the right to monitor Customer and End-Users’ use of SMS for purposes of verifying compliance with the terms and conditions of these General Terms and all terms herein provided, however, that Interact disclaims any obligation to monitor, filter, or edit Customer or End-User’s Mobile Content.
14.1 Responsibility. If Customer authorizes assists, encourages or facilitates another person or entity to take any action related to the subject matter of these General Terms, Customer shall be deemed to have taken the action itself.
14.2 Severability. If any portion of these General Terms is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of these General Terms will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from these General Terms, and the rest of the General Terms shall remain in full force and effect.
14.3 Waivers. No failure or delay on the part of Interact in exercising its rights under these General Terms is deemed to be a waiver of its rights unless expressly made in writing by Interact waiving its rights.
14.4 Successors and Assigns. These General Terms will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
14.5 Compliance. In carrying out its respective obligations under these General Terms, each Party agrees to comply with all applicable laws and regulations of the Territory and of any other applicable country, including any country of export. Each Party agrees not to pay, promise to pay, or authorize the payment of any money or anything of value, whether directly or indirectly, to any person (whether a government official or private individual) for the purpose of illegally or improperly inducing any foreign official or any foreign political party or official thereof to make an award decision or illegally or improperly to assist either Party in obtaining or retaining business, or to take any other action favorable to either Party in connection with the award of a license. Any Party that fails to comply with this clause must indemnify the other Party from and against any claim, loss, damage, liability, expense, and cost, of whatsoever nature arising out of or related to, or connected with the Party’s failure to comply.
14.6 Roadmaps. Any product roadmaps provided to Customer in connection with these General Terms are indicative only. Any information referred to in a roadmap is not intended to imply a binding commitment. The roadmaps represent reasonable time and feature estimates, based on Interact’s current internal plans for the development and supply of these products or services for commercial use, and also upon Interact’s current understanding of existing standards, technologies and market situations. These roadmaps may therefore change in the future. Final product or services deployments may include different features and different timelines.