Last updated: October 16, 2017
These Terms of Service are intended to be a legally binding commitment (“Agreement”). This Agreement governs (i) your use of Shoutpoint’s website, (ii) any Shoutpoint service that is ordered through Shoutpoint’s website, and (iii) services ordered pursuant to a mutually executed Service Order (defined below) that references this Agreement.
In order to be eligible to use Shoutpoint’s Services and to access any such Services (defined below), you must review and accept the terms of this Agreement by executing a Service Order or other document referencing these Terms of Service, by accepting a pop-up or other prompt informing you of these Terms of Service, or by any other mechanism provided from time to time.
This Agreement sets forth the terms and conditions by which Shoutpoint, Inc. (“Company”) shall provide, and Customer accepts, the Services. If any term or condition set forth herein only applies to a Service not ordered by Customer, then such provisions shall have no application to Customer.
The specific quantity, type and rate for services to be provided hereunder shall either be (i) set forth on the Company’s website, or (ii) set forth in one or more service orders submitted by Customer and accepted by Company (a “Service Order”). Upon proper execution of Service Orders by both Customer and Company, each Service Order shall be automatically incorporated into this Agreement.
This Agreement specifically does not govern any Company services that are the subject of a separate written and mutually executed agreement, unless this Agreement is expressly incorporated by reference therein.
Certain important definitions are provided below. Other defined terms are established elsewhere in the Agreement and are noted by being capitalized, in quotations marks and/or underlined.
“Company Technology” means Company’s proprietary technology, including the Services, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, trade secrets and any related intellectual property rights throughout the world (whether owned by Company or licensed to Company from a third party) and also including any derivatives, improvements, enhancements or extensions of the foregoing conceived, reduced to practice, or developed during the term of this Agreement that are not uniquely applicable to Customer.
“Customer” means the individual accepting this Agreement or the entity represented by such individual.
“Customer Data” means all data that (i) Customer inputs into Company’s software for use of any Service hereunder, or (ii) is derived from Customer’s use of any Service hereunder, with the specific exception of purely diagnostic data, which Company may utilize in order to maintain, monitor, support and/or improve Company’s network and its Services.
“Customer Equipment” means the Customer’s computer hardware, not including stored data, and other tangible equipment; including, without limitation, one or more computer servers if provided by Customer or provided to Customer on a dedicated basis by Company.
“End User” means each employee, contractor, agent, client, or other person accessing the Company network or using the Services by or through Customer, or with Customer’s log-in information, whether authorized or not.
“Initial Term” is defined in Section 1.B.
“Services” means the specific services provided by Company to a Customer pursuant to this Agreement; including, without limitation, all underlying software, APIs, programs, telecommunications, functions and features, and future upgrades thereof.
“Service Activation Date” means the earlier of: (i) the date on which the Company notifies Customer that the Services are ready for use; or (ii) Customer’s first use of any Service.
The term for each Service will commence on the Service Activation Date and shall continue through expiration of the last effective Service Order, if any, or earlier termination in accordance herewith. Unless stated otherwise in the applicable Service Order, the initial Term shall month-to-month (the “Initial Term”).
C. Renewal Term
The term of each Service Order that specifies a specific term (i.e., not month-to-month) will renew automatically for subsequent terms equal in length to the Initial Term not to exceed one (1) year (each a “Renewal Term”) unless either party notifies the other in writing not less than thirty (30) calendar days prior to the end of the Initial Term (or Renewal Term, as applicable), that it wishes to terminate such Service. The termination of any individual Service or Service Order will not affect Customer’s obligations to accept and pay for all other contracted Services.
B. Fee Adjustments
In the event that circumstances outside the control of the Company cause a material increase in the Company’s cost to provide the Services, the Company may increase its prices immediately upon prior notice to the Customer. If any change in fees causes a material and adverse effect to the terms of the Services provided to the Customer, then within ten (10) calendar days from the date of the foregoing notice from Company, Customer must provide written notice to Company that it rejects the changed fees. Within ten (10) calendar days thereafter, Company shall elect either to continue to provide the Services under the prior terms or terminate the applicable Service Order and/or the provision of Services hereunder, which decision shall be effective ten (10) calendar days after notice of same to Customer.
C. Payment Terms
Unless established otherwise in an applicable Service Order, all Services provided hereunder shall be prepaid.
D. Late Payments
All late payments shall incur a penalty of five percent (5%) of the late amount and shall incur interest at the rate of ten percent (10%) per annum or, if lower, the highest rate allowed by applicable law. For Services that must be prepaid, all Services shall cease when Customer’s account balance reaches zero (0). For all non-prepaid Services, Company will notify Customer on the first occasion each calendar year that the account becomes delinquent and Customer shall have three (3) days to cure the payment default. In all other instances, Company may immediately terminate this Agreement and cease all Services provided hereunder and under any Service Order.
E. Taxes; Surcharges
Unless otherwise stated in an applicable Service Order, all fees charged for Services are exclusive of applicable taxes, regulatory surcharges (e.g., directory assistance, operator assistance, pay phones, etc.) and similar taxes or regulatory fees now in force, enacted or imposed in the future on the transaction or use or delivery of the Services, all of which Customer will be responsible for and will pay in full, except for taxes solely based on Company’s net income. For customers who remit taxes and surcharges directly to taxing authorities, Shoutpoint will accept a resale certificate in lieu of tax payment.
Company may require a Customer deposit (“Deposit”) to secure Customer’s financial obligations under this Agreement; including, without limitation the payment of all fees, penalties, interest, indemnification obligations, and similar amounts. If a Deposit is required, it shall be set forth in the applicable Service Order and the payment of such Deposit shall be a condition precedent to Company’s obligations hereunder.
Company agrees that, if in the course of accessing and using the Services, it is necessary for Customer to use certain items of Company Technology, then Customer is hereby granted a limited, nonexclusive, personal, royalty-free license, during the term of this Agreement, to use the Company Technology solely for purposes of accessing and using the Services. Customer shall have no right to use the Company Technology for any purpose other than accessing and using the Services in accordance with this Agreement. Customer agrees that, if in the course of providing the Services and any related customer support, it is necessary for Company to access certain items of Customer Data, then Company is hereby granted a limited, nonexclusive, personal, royalty-free license, during the term of this Agreement, to access the Customer Data solely for such purpose. Company shall have no right to access or use the Customer Data for any purpose other than providing the Services and related customer support in accordance with this Agreement.
B. End Users; Security
Customer shall be completely liable for each End User’s use and/or misuse of the Services. No End User shall be a third party beneficiary of this Agreement and Company owes no obligations to Customer’s clients. Customer is solely responsible for maintaining the confidentiality of its password and account information, and all actions of persons using such password and account information. Customer is solely responsible for the security, privacy, and protection of its network, hardware, software, firmware, and other similar items. Customer shall configure its systems in order to provide the maximum possible security and accountability. Company is not liable for any damage caused by such system configurations, regardless of whether such configurations have been requested, approved or authorized by Company. Customer shall promptly notify Company in writing of any instance that Customer discovers that this Agreement has been violated, including, without limitation, if anyone accesses the Services through Customer’s account but without authorization. If Company notifies Customer of any violation of this Agreement or any unauthorized use of Customer’s account, Customer shall promptly investigate such report and resolve such violation.
C. AWARENESS OF CERTAIN LAWS
PRIOR TO ACCESSING THE COMPANY NETWORK OR USING ANY OF THE SERVICES, CUSTOMER (INCLUDING, WITHOUT LIMITATION, EACH END USER) IS, AND SHALL REMAIN, AWARE OF THE LEGALITIES OF ALL INTENDED USES OF THE SERVICES. WITHOUT IN ANY WAY LIMITING THE GENERAL NATURE OF THE REPRESENTATIONS AND WARRANTIES SET FORTH BELOW, THE COVENANT IN THE PRECEDING SENTENCE OR THE COVENANTS CONTAINED IN SECTION 6.A. ABOVE, CUSTOMER, FOR ITSELF AND EACH END USER, AGREES THAT IT IS AWARE OF THE LAWS AND REGULATIONS CONTAINED ON THE FOLLOWING WEBSITES OR OTHERWISE REFERENCED BELOW, INCLUDING, WITHOUT LIMITATION:
http://www.donotcall.gov (DO NOT CALL REGISTRY, AS WELL AS ANY APPLICABLE STATE DO NOT CALL REGISTRY OR RELATED RESTRICTIONS)
http://www.ftc.gov (FEDERAL TRADE COMMISSION AND TELEMARKETING SALES RULE)
http://www.fcc.gov (FEDERAL COMMUNICATIONS COMMISSION AND THE TELEPHONE CONSUMER PROTECTION ACT)
APPLICABLE FEDERAL AND STATE VOICE RECORDING LAWS. IF CUSTOMER OR ANY CUSTOMER PARTY UTILIZES ANY OF THE SERVICE’S CALL RECORDING FEATURES, THEN IN ADDITION TO ANY OTHER LEGAL REQUIREMENTS, CUSTOMER SHALL, AND SHALL CAUSE EACH END USER TO, COMPLY WITH ALL APPLICABLE LAWS CONCERNING THE RECORDING OF CONVERSATIONS WHERE THERE IS A REASONABLE EXPECTATION OF PRIVACY BY ANY PARTY.
APPLICABLE FEDERAL AND STATE PRIVACY LAWS. CUSTOMER, FOR ITSELF AND EACH END USER, SHALL COMPLY WITH ALL FEDERAL AND STATE LAWS RELATING TO THE MAINTENANCE, SECURITY AND USE OF A PERSON’S PRIVATE INFORMATION; INCLUDING, WITHOUT LIMITATION, PERSONALLY IDENTIFIABLE INFORMATION.
UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE LEGAL THEORY, WILL COMPANY’S LIABILITY TO CUSTOMER FOR DIRECT DAMAGES, COSTS OR OTHER LIABILITIES EXCEED THE CUMULATIVE AMOUNT OF FEES PAID BY CUSTOMER HEREUNDER DURING THE (THREE) 3-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE SUCH CLAIM AROSE. THE PARTIES ACKNOWLEDGE THAT COMPANY HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Any affected Company Party shall, promptly after receipt of notice of any investigation, claim, threat thereof, or the commencement of any action against such Company Party in respect of which indemnity may be sought, notify the Customer of the same; provided that the failure of a Company Party to notify the Customer shall not relieve the Customer from any liability which it may have to an Company Party on account of the indemnity agreement contained in the prior paragraph, unless the Customer was materially prejudiced by such failure, and in no event shall relieve the Customer from any other liability which it may have to such Company Party. If any such claim or action shall be brought against a Company Party, it shall notify the Customer thereof and the Customer shall be entitled to participate therein and to assume the defense thereof with counsel reasonably satisfactory to the Company Party. If the Customer assumes the defense thereof, it may not agree to any settlement of any such claim or action as the result of which any remedy or relief shall be applied to or against the Company Party (even if Customer is paying it), without the prior written consent of the Company Party, which may be given or withheld in such Company Party’s sole discretion. In any action hereunder as to which the Customer has assumed the defense thereof with counsel reasonably satisfactory to the Company Party, the Company Party shall continue to be entitled to participate in the defense thereof, with separate counsel of its own choice, and the Customer shall continue to be obligated hereunder to reimburse the Company Party for the costs of such separate counsel. If any Company Party employs such separate counsel it will not enter into any settlement agreement which is not approved by the Customer, in Customer’s reasonable discretion.
Sections 2 (to the extent that all such fees have not been paid upon termination), 3, 4, 5, 7, 8, 9 and 10 shall survive the expiration or earlier termination of this Agreement.
Customer agrees that, during the term of this Agreement, Company may publicly refer to Customer, orally and in writing, as a customer of Company.
C. Government Regulations
Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
D. No Third Party Beneficiaries
Company and Customer agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement; including, but not limited to, the insurance providers for either party and End Users.
Notwithstanding any other provision of this Agreement, all questions and disputes with respect to the rights and obligations of the parties arising under the Agreement shall be resolved by arbitration in accordance with this paragraph and the Commercial Arbitration Rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. The parties agree that class action and representative action procedures shall not be asserted, nor will they apply, in any arbitration pursuant to this Agreement or the Services. The parties shall only submit their own individual claims in arbitration and will not week to represent the interests of any other person. The parties agree that each will not assert class action or representative action claims against the other in arbitration or otherwise.
The parties may agree on a single arbitrator. If they cannot agree on a single arbitrator within five (5) days of demand for arbitration, then there shall be three (3) arbitrators; one named by each party within three (3) days of the deadline for selecting a single arbitrator, and a third chosen by the two party-appointed arbitrators. Prior to the commencement of hearings, each of the arbitrators appointed shall provide an oath or undertaking of impartiality. The arbitrators shall be selected from a panel of persons who have been members of the California state bar for at least ten (10) years and have extensive experience in business law or business litigation. The arbitration shall take place in Orange County, California applying the internal laws of the State of California. The United States Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute and as set forth in the following sentence. The arbitrators shall award to the prevailing party, if any, as determined by the arbitrators, all of its costs and fees. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and reasonable attorneys’ fees.
F. Severability; Waiver
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to applicable law, then the remaining provisions of this Agreement will remain in full force and effect. No delay in declaring a breach of this Agreement or pursuing any available remedy shall constitute a waiver of any breach or any provision hereof. All waivers must be in writing and signed by the waiving party. The waiver of any breach of this Agreement will not constitute a waiver of any subsequent breach, and will not act to amend or negate the rights of the waiving party.
Upon the prior written notice to Company, Customer may assign this Agreement in whole as part of a corporate reorganization,consolidation, merger, or sale of substantially all of its assets provided the assignee’s financial condition and credit rating is comparable to or better than that of Customer and (as would be reasonably determined) the proposed assignee is not one of the Company’s competitors. Customer may not otherwise assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Company, and any attempted assignment or delegation without such consent will be void. Company may assign this Agreement in whole or part as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Company also may delegate the performance of certain Services to third parties, including Company’s’ wholly owned subsidiaries, provided Company controls the delivery of such Services to Customer and remains responsible to Customer for the delivery of such Services. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the Service Order or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered or delivery is refused.
I. Relationship of Parties
Company and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Company and Customer. Neither Company nor Customer has the power or authority to bind the other or incur obligations on the other party’s behalf.
J. Entire Agreement; Amendments