Terms and Conditions
SUBSCRIPTION SERVICES AGREEMENT
This Subscription Services Agreement (“Agreement”) governs Customer’s use of the Service (as defined below). This Agreement is between the entity entering into this Agreement (“Customer”) and AVOXI, Inc. and/or its Affiliates (“AVOXI”). AVOXI and Customer may be referred to herein individually as a “Party” or jointly as the “Parties.”
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING ACCEPTANCE, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. THE CUSTOMER REPRESENTATIVE ENTERING INTO THIS AGREEMENT REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT AND ITS TERMS. IF CUSTOMER REPRESENTATIVE DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE TO THESE TERMS, CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
AVOXI and/or its Affiliates and licensors owns all versions of the AVOXI Subscription Services, related documentation, software and any pre-generally available updates, new versions and upgrades, if any (collectively, the “Service” or the “Services”), or has the right to license use of the Service, and is willing to grant to Customer a limited license to access and use such Service, on the following terms. “Subscription Services” means the hosted service which packages web-based access and the right-to-use the supported applications and associated reference, user and technical guides. Customer may not access the Service if it is AVOXI’s direct competitor, except with AVOXI’s prior written consent.
The Agreement is effective between Customer and AVOXI as of Customer’s acceptance or when the Customer begins using the Service, whichever comes first. AVOXI may change the terms of the Agreement from time to time.
The terms of this Agreement supersede any term and all terms associated with any Customer purchase order issued for the provision of the Service(s).
Subject to the terms of this Agreement and the Restrictions on Use set forth below, AVOXI grants to Customer a worldwide, non-exclusive, non-sub-licensable, and non-transferable limited license for End Users to access and use the Service in accordance with the terms of this Agreement. “End Users” means individuals (i) who are authorized by Customer to use and access the Service, and (ii) who have been assigned unique user identifications and passwords by Customer. Customer is responsible for End Users’ compliance with this Agreement.
The license granted hereunder shall commence on the purchase date of the Service by Customer and shall expire at the end of the period for which the Service is purchased. The Service may be cancelled anytime. The term is month to month, unless otherwise agreed upon. The terms of this Agreement will automatically renew on a calendar monthly basis. If Customer elects to cancel Service at any time prior to the end of a given term, Customer is still responsible for any unbilled charges and/or fees to the end of such month, all of which becomes immediately due and payable.
AVOXI provides the Services intended solely for business use, pursuant to the terms and conditions set forth in this Agreement. AVOXI may modify the Services upon thirty (30) days’ prior written notice, or earlier if required by any regulatory authority.
4. RESTRICTIONS ON USE.
1. Customer may use the Service only for lawful purposes and the Service may not be used in violation of any operating rule, policy or guideline set by AVOXI. Customer shall not use the Services, or permit any of the Services to be used directly or indirectly to transmit any inappropriate or disallowed content. AVOXI shall have the right not to accept, transmit or deliver any message or call that AVOXI or its network operator vendors reasonably believe, exercising reasonable discretion based on industry experience, contains inappropriate or disallowed content or that is, or could reasonably become, the subject of any legal, regulatory or other governmental proceeding or process, including without limitation any law enforcement proceeding, process or inquiry. Additionally, Customer agrees NOT to:
a. Modify, copy or create derivative works based on the Service;
b. Create Internet “links” to or reproduce any content forming part of the Service;
c. Decompile, disassemble, reverse engineer the Service or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Service;
d. Interfere with or disrupt the integrity or performance of the Service;
e. Send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material via the Service;
f. Send or store viruses or malicious code via the Service;
g. Attempt to gain unauthorized access to the Service or its related software, systems, platforms or networks;
h. Use any components provided with the Service, if applicable, separately from the Service;
i. Access the Service for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes;
j. Modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any Service;
k. Introduce malicious or foreign software into the source code of the AVOXI Service;
l. Release any feedback related to the Service to any third party without AVOXI’s prior written consent;
m. Perform any vulnerability scanning or penetration testing;
n. Use the Service for any purpose other than as specifically provided in this Agreement; or
o. Attempt to contact emergency services. Please see 9. EMERGENCY SERVICES below.
2. Customer will be responsible for maintaining the confidentiality of the passwords assigned to Customer. Customer will immediately notify AVOXI if it becomes aware that a password is lost, stolen, disclosed to an unauthorized third party, or otherwise compromised. Customer will be responsible for any and all activities under Customer’s account and/or using Customer passwords. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify AVOXI promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Service.
3. Customer is responsible for complying with all legal requirements, including applicable privacy laws and regulations, relating to the collection, use, processing and transfer of Customer Data. “Customer Data” means all electronic data or information submitted by Customer to the Service. Customer acknowledges and consents that the Service provided may require Customer Data to be transferred to a country outside of Customer’s country or the country where the Customer Data originated.
4. AVOXI will create individual user accounts for its employees and contractors, if applicable, that have a legitimate business need to access Customer account(s) and/or Customer Data.
5. CHARGES AND PAYMENT TERMS.
1. Charges and Fees. During the term of this Agreement, for each month of Service, Customer agrees to pay AVOXI the charges and fees according to the pricing as laid out at the time of purchase in the AVOXI website or the AVOXI online purchase portal and/or as agreed to in a quote executed by both Parties at the time of purchase. If Customer purchases an annual plan, then Customer may be eligible for a discount. All annual plans mandate payment in advance for the full term.
2. Payment Terms. AVOXI shall invoice Customer for services on a monthly basis commencing at the start of Service (unless Customer subscribes to an annual plan. See 5.1.). Customer agrees to pay each invoice in full without deduction or offset of any kind within 7 business days of invoice date. All payments shall be made in US dollars set forth on the invoice. All first time customer orders require prepayment. All online purchases require payment by credit card. Invoices are delivered to Customer by email only. Invoices are also available through our portal. For accounts set up with automatic credit card payments, the credit card will be charged for the amount of the invoice issued immediately when it is issued.
3. Billing Increments. Each call processed through the Service shall be billed in 60 second initial and 60 second successive increments unless noted differently on the applicable AVOXI rate schedule(s), as amended by AVOXI from time to time.
4. Cancellation Policy. If Customer cancels service prior to the expiration of the contract term, then Customer will be responsible for payment of the remaining monthly service fees for that month. Termination of the Agreement does not relieve Customer of its obligation to pay unpaid or accrued charges due. Customer is not eligible for a refund of any portion of unused Service fees due to early cancellation of Services.
5. Final Charges. Customer is responsible for and agrees to pay the full amount of the final month’s monthly recurring charges. Upon termination of Service, Customer will be issued a prorated credit equal to the remaining amount of the current month’s recurring charges. Customer will also be charged a final instance of the monthly recurring charges for the canceled services.
6. Credit Limit. Credit limits are set for each Customer account. Customer will receive multiple notifications if their account balance approaches their credit limit starting when their balance reaches eighty percent (80%) of their credit limit. Service will be suspended if the account balance reaches the credit limit. Notwithstanding payment terms, Customer acknowledges and agrees that they may have to make interim payments to avoid suspension of service in case the balance nears the credit limit prior to the monthly invoice being released.
a. Late Fees. AVOXI reserves the right to charge late payment fees which shall accrue interest at the rate of 1.5% of the unpaid balance of the service charges per month, or the maximum lawful rate under applicable law, whichever is less. Additionally, AVOXI will charge an administrative processing fee for late payments. The fee will be based on the amount of the invoice that is delinquent. Please see the below schedule:
b. Credit Card Charge-Back & Returned Payment Fees. AVOXI will charge Customer a $50.00 fee for all credit card charge-backs as well as for returned checks or any other bank returned payment.
c. The $4.99 Admin Services Fee is accessed on every AVOXI customer to cover costs for invoice preparation, account management services, and general payment processing expenses.
8. Rate Adjustment Schedule. AVOXI reserves the right to adjust charges for and/or delete Service offerings to specific locations with 5 days prior written notice to Customer. AVOXI may change or delete Service offerings to and in Mexico with 24 hours written notice.
9. Taxes. In addition to all fees and charges due hereunder, Customer agrees to pay all use, excise, gross receipts, sales, withholding, VAT, and privileges taxes, and all duties, fees, surcharges or other taxes or similar governmental charges (other than general income or property tax), arising out of or related to the provision of the Services hereunder, whether the responsibility of or charged to AVOXI or to Customer (“Taxes”). AVOXI will invoice Customer for any Taxes which AVOXI is required to pay. Customer may provide AVOXI with a valid tax exemption certificate that exempts Customer, under applicable law, from taxes that would otherwise be due. In such case, AVOXI will not invoice Customer for such Taxes unless otherwise required to do so by a taxing authority.
10. Compliance Fee. Included in the pricing structure is an administrative cost recovery fee for worldwide tax and regulatory compliance. This is referred to as the INTFEE. The INTFEE charge of 21.1% applies to monthly subscriptions and to call traffic.
11. Billing Disputes. Customer shall notify AVOXI of any billing discrepancies in writing and in reasonable detail within 60 days of the date of invoice in question. Customer will be deemed to have waived billing disputes for which notice is received by AVOXI after such time. AVOXI shall respond to any notice of billing discrepancy within 30 days of receipt.
12. Governing Law and Dispute Resolution. A Party will provide written notice to the other Party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (the “Controversy”). The Parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 30 days of the sending of the written notice of the Controversy, it may be submitted to litigation or binding arbitration, in either state or federal court located in Atlanta, Georgia, U.S.A. and the laws of the state of Georgia, U.S.A. shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either Party from seeking immediate injunctive relief from any court having jurisdiction over the Parties and the subject matter of the Controversy.
13. Suspension of Service. AVOXI reserves the right to proactively suspend all or a portion of Service: (i) immediately, if Customer, in breach of this Agreement, engages in activities that, in AVOXI’s sole discretion (acting reasonably), may disrupt or damage AVOXI’s network or facilities or Services; (ii) immediately, if AVOXI detects any fraudulent use of the Services and/or robo-dialer or calling card traffic is detected, whether directly or indirectly; (iii) upon 24 hours’ notice to Customer, if Customer’s account is inactive (passes no billable calls for sixty (60) consecutive days); (iv) upon 24 hours’ notice to Customer, if AVOXI requests identifying or other documentation from Customer for legal or regulatory purposes and Customer fails to provide appropriate documentation within a reasonable time (in AVOXI’s sole discretion); or (v) upon 24 hours’ notice to Customer, in the event of late payment by Customer. AVOXI will not be required to resume service until Customer is current in all payments, including late fees and penalties, and has provided to AVOXI such additional assurance of Customer’s ability to pay for Service, including a fee for reinstating Service, as AVOXI may require in its sole discretion. If Customer fails to make such payment or rectify any of the conditions that caused the suspension within a reasonable period of time in AVOXI’s sole determination, AVOXI may cancel this Agreement with the same effect as if Customer had requested termination under Section 2.
14. 30 Day Service Guarantee. All Services include a 30 Day Service Guarantee. Customer may cancel Services any time in the first 30 days for any reason if they are not satisfied with their solution. AVOXI will refund the invoiced monthly recurring charge (“MRC”) per number or per seat to Customer if Customer cancels within the first 30 days citing the 30 Day Service Guarantee. If Customer cancels during the first 30 days, Customer will be responsible for returning any AVOXI-owned licenses and/or equipment, if applicable, in good working condition at their expense.
15. Adding Services. Additional Services can be purchased by Customer’s authorized users, who by Customer’s default authorization have the requisite binding authority to legally enter into the Agreement, through the AVOXI website, through the AVOXI online purchase portal or by calling their AVOXI account representative or customer service. Customer hereby authorizes those authorized users to (i) add Services to Customer’s AVOXI account; and (ii) commit Customer to pay for these Services on a recurring monthly basis. Customer further authorizes AVOXI to obtain payment of Customer’s then-current statement balance from Customer each month from Customer’s current payment method in the account. The ability to purchase additional Services may be restricted or unavailable.
16. Abuse Policy. Customer may use the Services only for lawful purposes and the Services may not be used in violation of any operating rule, policy, or guideline set by AVOXI. Dialer / robocalling is not allowed. Calling card usage and applications are not allowed. AVOXI will cooperate with law enforcement if criminal activity is suspected. AVOXI may immediately suspend or terminate the Services if AVOXI reasonably believes such Service is used by Customer or any of its end users in a manner that (i) restricts or inhibits any person, whether a user of AVOXI or otherwise, in its use or enjoyment of AVOXI service or any other systems, services or products, or (ii) if AVOXI believes the Services are being used in an unlawful manner.
Customer (and Customer’s End-Users) must obey these terms of service on all Services provided, including but not limited to:
a. Genius Unlimited Calling Plan.
i. AVOXI offers unlimited monthly calls for domestic calls (the United States and Canada).
ii. The Unlimited Plan includes a domestic (local / DID) number and is subject to terms and restrictions of the "Acceptable Fair Use Policy" of 3600 minutes per number per month, along with any other restrictions laid out in any carrier agreements, if applicable.
iii. If for any reason, AVOXI believes the unlimited service is being used for prohibited purposes and/or the call usage volume violates the Fair Use Policy, then AVOXI may suspend your unlimited services.
iv. Wherever reasonably possible, AVOXI will provide you with a written notice before taking any such action, and may allow a reasonable period to allow you to modify such use.
b. Calls Per Second. Unless Service is being used for Audio Conferencing access, if during any period Customer presents more than 5 calls per second, then AVOXI can with immediate effect and without advance notice, suspend Customer Service.
c. Setup of Ported Numbers. Customer will not port a phone number to AVOXI unless the phone number has been lawfully obtained. For ported numbers, Customer represents and warrants that Customer has all power and authority and has procured all rights and licenses necessary to use and text enable those phone numbers utilized for the Services without the consent of any third party.
d. Disallowed Content. Customer warrants that neither it nor its End-Users, if applicable, will order or port any phone number for the purposes of SPAM, abusive messaging, or in violation of applicable law and will not send, transmit or reply with any of the below disallowed content. Additionally, Customer acknowledges and agrees that AVOXI and its network operator providers reserve the right to block any and all of the following content:
- Payday Loans
- Short Term- High interest Loans
- Auto Loans
- Mortgage Loans
- Student Loans
- Debt Collection
- Work from Home Programs
- Risk Investment Opportunities
- Debt Consolidation
- Debt Reduction
- Credit Repair Programs
- Cannabis and Other Illegal Substances
- Fraud or Scam
- Deceptive Marketing
17. Rollover. Any unused allotment of any Service such as minutes or messages do not carryover to the next or future billing cycle; unused allotments of any Service are forfeited.
6. LEGAL COMPLIANCE; INDEMNIFICATION.
1. Licenses and Legal Compliance. Customer is solely responsible for complying with all rules, laws, and regulations regarding receipt and resale of the Services, if applicable, and for obtaining and maintaining all licenses, registrations, and approvals from any and all regulatory authorities required for its operation as a reseller of AVOXI’s Services, if applicable. Customer shall provide copies of all such licenses and registrations to AVOXI upon request and shall notify AVOXI within 24 hours of the revocation, suspension, or termination of any of them. Customer shall indemnify and hold AVOXI, its affiliates, directors, officers, employees, subsidiaries and suppliers harmless from all costs, fees, penalties, and damages, including without limitation, reasonable attorney’s fees, arising out of or resulting from Customer’s failure to comply with this paragraph. AVOXI may terminate this Agreement immediately at any time if Customer fails to comply with these requirements.
2. Resale of Service. Customer may resell the Services to its own customers to the extent allowed by law, rule, or regulation. Customer may resell the Services (including its sales agents and representatives) only under its own name or trade name, using its own logos or marks, and may not use AVOXI’s trademarks, service marks, or trade names without AVOXI’s express written authority. Purchasers of the Service upon resale by Customer are referred to throughout this Agreement as “End-User(s)”.
3. Recording. Certain Services provide functionality that allows Customer to record audio and data shared during sessions. Customer is solely responsible for complying with all applicable laws in the relevant jurisdictions while using recording functionality, including obtaining the required consent and maintaining proof of consent. AVOXI disclaims all liability for Customer's recording of audio or shared data, and Customer agrees to hold AVOXI harmless from damages or liabilities related to the recording of any audio or data. AVOXI may record or monitor some telephone calls, emails, chats, and any other communication between itself and Customer for training, for quality control and for trouble-shooting purposes. Additionally, AVOXI retains the right and Customer grants to AVOXI the right to record calls and to capture telephonic details and Customer's use of the Services for quality control, trouble-shooting and for AVOXI's lawful business purpose.
4. Fraudulent Calls. Customer is responsible for and Customer shall indemnify and hold AVOXI harmless from all costs, expenses, claims, or actions arising out of or resulting from fraudulent calls of any nature, which may comprise a portion of the Service.
5. Indemnification. Customer agrees to forever indemnify and hold AVOXI, its affiliates, directors, officers, employees, subsidiaries, suppliers and any third party provider or operator of facilities used in the provision of the Service harmless from and against any and all claims, demands, suits, actions, losses, damages, liabilities, assessments, payments, or penalties, including court costs and reasonable attorney’s fees, which arise out of the installation, hook-up, maintenance or provision of the Service hereunder, including the resale or provision of such the Service to any End-User or other third party by Customer, or arising out of a breach by Customer of its obligations or representations under this Agreement.
7. OTHER CUSTOMER OBLIGATIONS.
1. End-User Responsibility. If applicable, Customer shall be solely responsible for its End-Users, including solicitation, service, requests, creditworthiness, customer service, billing and collection, and shall indemnify and hold AVOXI harmless from all costs (including attorney’s fees) arising out of or resulting from these responsibilities.
2. End-User Collections. If applicable, neither Customer’s inability to collect from its End-Users, nor any agreement regarding billing adjustments granted End-Users, whether for adjustments for fraudulent charges, directory assistance or any other form of credit, shall relieve or absolve Customer to any extent of its obligation to pay AVOXI for the Services hereunder.
8. DISCLAIMERS AND LIMITATIONS OF LIABILITY AND EXCLUSIVE REMEDY.
1. AVOXI shall provide the Services in accordance with the terms and conditions of this Agreement. Customer agrees to notify AVOXI immediately upon interruption of Service and provide AVOXI with such information as may be necessary for AVOXI to restore the Service. THE SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. AVOXI, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT ANY SERVICE WILL SATISFY CUSTOMER’S REQUIREMENT, THAT ANY SERVICE IS WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SERVICE WILL BE UNINTERRUPTED. AVOXI DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, MADE WITH RESPECT TO THE SERVICE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
2. In no event shall either Party hereto be liable to the other Party or to any third parties for any indirect, special, incidental, consequential or exemplary losses or damages relating to or arising from the provision of the Services to be provided hereunder, or otherwise relating to the performance by either Party of its obligations hereunder, including, without limitation, damages based on loss of revenues, profits or business opportunities, loss of customers, loss of goodwill, or loss of profits arising in any manner from this Agreement, whether or not AVOXI or Customer has or should have had any knowledge, actual or constructive, that such damages might be incurred. AVOXI’S MAXIMUM LIABILITY UNDER OR RELATED TO THIS AGREEMENT AND CUSTOMER’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES FOR BREACH OF THIS AGREEMENT, SHALL BE LIMITED TO THE FEES RECEIVED BY AVOXI HEREUNDER BY CUSTOMER FOR THE PRIOR THREE MONTH PERIOD.
3. If a third party asserts a claim against AVOXI asserting that the Customer Data or Customer’s use of the Service in violation of this Agreement violates a third-party’s patent, trade secret or copyright rights, or otherwise harms the third party (“Claim”), Customer will, at its own expense: (i) defend or settle the Claim; and (ii) indemnify AVOXI for any damages finally awarded against AVOXI based on the Claim.
9. EMERGENCY SERVICES.
Customer understands and agrees that the Services include an ‘over-the-top’ call-routing software solution that is integrated with, and is dependent upon, Customer’s underlying telephony system. AS SUCH, CALLS TO EMERGENCY SERVICES CANNOT BE MADE WITHIN THE SERVICES; THE SERVICES DO NOT SUPPORT EMERGENCY SERVICES, E911 OR 911. Customer is solely responsible for making sure its End-Users or agents, if applicable, and any other users of the Services are aware that calls will not successfully complete to emergency services through the Service. AVOXI STRONGLY RECOMMENDS AND CUSTOMER MUST ENSURE THAT CALLS TO EMERGENCY SERVICES ARE SECURED THROUGH ALTERNATIVE MEANS.
1. Termination for Default. Either Party may terminate this Agreement upon the other Party’s failure to cure any of the following within thirty (30) days following written notice thereof: (i) a material breach of such Party’s obligations hereunder; (ii) the insolvency, corporate reorganization, arrangement with creditors, receivership or dissolution of the other Party, (iii) the institution of bankruptcy proceedings by or against the other Party; (iv) a final order by a government entity with appropriate jurisdiction that a Service or the relationship hereunder is contrary to law or regulation.
2. Termination for Failure to Pay. AVOXI may terminate this Agreement if Customer fails to make any payment when due and fails to cure the default within 10 days after receipt of notice of such default.
3. Termination by Order. AVOXI may terminate Service immediately upon request or order of any court, government, or quasi-governmental agency.
4. Survival. No termination by AVOXI shall in any way relieve Customer of its obligations to pay for any unexpired portion of the then-current term. Upon termination of any license, Service or this Agreement, all rights and licenses granted herein will terminate and Customer shall cease accessing or using the Service. Sections 2, 4, 7, 10, 11, 12, 13 and 14 survive the termination of any Service license or this Agreement.
11. PROPRIETARY RIGHTS.
AVOXI and/or its Affiliates or licensors retain all rights, title and interest to the Services and all related intellectual property and proprietary rights. The Services and all third party software provided with the Service is protected by applicable copyright, trade secret, industrial and other intellectual property laws. AVOXI owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Service or made available to Customer as a result of the Service (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. AVOXI reserves any rights not expressly granted to Customer in this Agreement.
Additionally, AVOXI and/or its Affiliates owns any and all Customer feedback on the functionality and performance relating to the Service (the “Feedback”). Customer hereby assigns to AVOXI all rights, title and interest in the Feedback and all intellectual property therein. If requested by AVOXI, Customer agrees to execute such further instruments as AVOXI may reasonably request confirming AVOXI’s ownership interest in such Feedback.
1. “Confidential Information” shall mean any data or information in any form that is disclosed to either Party (the “Receiving Party”) by or on behalf of the other Party (the “Disclosing Party”) and that either (i) relates to Disclosing Party’s proprietary software, information technology, business plans, forecasts, customer information, marketing information, trade secrets and/or financial performance, (ii) contains or relates to competitively sensitive or secret business, marketing, or technical information to include software, of AVOXI or of Customer, including the terms of this Agreement, Customer Data, and Feedback, if applicable. Confidential Information shall not include information which is (i) generally known to the public or readily ascertainable from public sources (other than as a result of a breach of confidentiality hereunder), (ii) independently developed by the Receiving Party without reference to or reliance on any Confidential Information of the Disclosing Party, as demonstrated by written records of the Receiving Party, or (iii) obtained from an independent third party who created or acquired such information without reference to or reliance on Confidential Information.
2. Confidentiality. Each Party agrees to maintain the complete confidentiality of the Confidential Information of the other. Neither Party shall disclose or supply the Confidential Information of the other to any non-employee third party without the prior written approval of the other Party. Either Party may disclose portions of the Confidential Information of the other to governmental regulatory authorities if such disclosure is required by applicable laws, provided that when legally possible the Party required to make such disclosure notifies the other Party of the applicable request for disclosure before such disclosure occurs and assists the other Party, as is commercially reasonable, to obtain such protection as may be available to preserve the confidentiality of such Confidential Information.
3. Notification Obligation. If Receiving Party becomes aware of any unauthorized use or disclosure of Confidential Information, then Receiving Party will promptly and fully notify Disclosing Party of all facts known to it concerning such unauthorized use or disclosure. In addition, if Receiving Party or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of the Confidential Information, Receiving Party will, to the extent legally possible, not disclose the Confidential Information without providing Disclosing Party with commercially reasonable advance prior written notice to allow Disclosing Party to seek a protective order or other appropriate remedy. In any event, Receiving Party will exercise its commercially reasonable efforts to preserve the confidentiality of the Confidential Information, including, without limitation, cooperating with Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
13. INTELLECTUAL PROPERTY AND PUBLICITY.
Neither Customer nor AVOXI is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or other form of intellectual property of the other Party or its affiliates without the express prior written authorization of the other Party. Notwithstanding the foregoing, Customer agrees that AVOXI may identify Customer using its name, trademarks and/or logos in its marketing collateral, presentations and websites, provided that Customer may revoke such right with written notice to AVOXI at any time.
1. Rights Not Exclusive. No right or remedy of either Party provided hereby shall be exclusive of any other right or remedy.
2. No Waiver. No failure of either Party to exercise any of its rights under any provision of this Agreement or waiver of any breach of the terms of this Agreement by the other Party shall be construed as a waiver of such rights or of any other breach of the same or any other provision hereof.
3. Notices. All notices, requests and other communications required or permitted to be given or delivered hereunder to either Party shall be in writing, and shall be personally delivered, or emailed to the Customer email address on record and to email@example.com for notices sent to AVOXI, or sent by certified or registered mail, postage prepaid and addressed, or by an overnight courier such as Federal Express to such Party at the address of record. All notices, requests and other communications shall be deemed to have been given upon delivery as evidenced by the return receipt or delivery records of the courier.
4. Entire Agreement and Modifications. This Agreement is the entire understanding between Customer and AVOXI and replaces any prior or contemporaneous communication, agreement or understanding of any kind, oral or written, concerning this subject matter. AVOXI reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on Customer’s use of the Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as “Additional Terms”) will be effective immediately and incorporated into this Agreement. Customer acknowledges and agrees that its continued use of the Service following will be deemed to constitute its acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.
5. Assignment. This Agreement may not be assigned by Customer without the express written consent of AVOXI, provided that either Party may assign all of its rights and its obligations hereunder to any successor in interest to all or substantially all of its business or assets without such consent. This Agreement shall be binding upon and shall inure to the benefit of each Party’s permitted successors and assigns.
6. Independent Contractors. AVOXI and Customer shall not be construed to have a relationship of partnership, agency or otherwise by the terms or existence of this Agreement. Each Party shall be solely responsible for the actions of its own officers, employees, and agents.
7. Employees. Each Party agrees during the term of this Agreement and for 1 year thereafter not to hire or solicit for hire any employees or former employees of the other Party.
8. Severability. If any provision of this Agreement should be held to be invalid, illegal or unenforceable, then such provision shall be construed in such a way as to make such provision enforceable, or this Agreement shall be construed as if such provision had never been contained herein, and such invalidity, illegality or unenforceability shall not affect any other provision hereof.
9. Headings. The headings contained in this Agreement are for convenience only and shall be ignored when interpreting this Agreement and shall not be construed to alter or change any provision hereof.
10. Choice of Law. This Agreement shall be governed by the laws of the State of Georgia without regard to its choice of law rules. With respect to any dispute arising out of or related to the content of this Agreement, Customer consents to the jurisdiction of the state and federal courts residing in Cobb County, Georgia, and agrees that such courts shall be the sole venue for resolution of any dispute arising hereunder.
11. Force Majeure. Neither Party shall be in default by reason of any failure in the performance of this Agreement (other than a failure to make payment when due or to comply with restrictions upon the use of any Confidential Information or trade secrets) if such failure arises out of any act, event or circumstance beyond the reasonable control of such Party, whether or not otherwise foreseeable. The Party so affected will resume performance as soon as reasonably possible.
12. Anti-Bribery. Each Party represents that in the execution of this Agreement and in the performance of its obligations under this Agreement it has complied and will comply with all applicable anti-bribery Laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act.
13. Third Party Code. The Service may contain third party software which is delivered to Customer as part of the Service and may not be taken out of the Service or used separately from the Service and for which additional terms may be included in separate documentation.
14. Third Party Websites. The Service may contain hyperlinks to websites controlled by parties other than AVOXI. AVOXI is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them.
15. Singular and Plural. Reference to the singular includes a reference to the plural and vice versa.
15. USE AND PROTECTION OF CUSTOMER PROPRIETARY NETWORK INFORMATION (“CPNI”).
1. AVOXI will protect the confidentiality of Customer CPNI in accordance with applicable laws, rules, and regulations. AVOXI may access, use, and disclose Customer CPNI as permitted or required by applicable laws, rules, and regulations or this Agreement.
2. Provided that Customer is served by at least one dedicated AVOXI representative under the Agreement (that can be reached by Customer by means other than calling through a call center) and as permitted or required by applicable law, AVOXI may provide Customer CPNI (including, without restriction, call detail) to representatives authorized by Customer (“Authorized Customer Representatives” as defined below) in accordance with the following:
3. AVOXI may provide Customer CPNI to Authorized Customer Representatives via any means authorized by AVOXI that is not prohibited by applicable laws, rules, or regulations, including, without restriction: to the Customer’s email address(es) of record (if any) or other email addresses furnished by Authorized Customer Representatives, to the Customer’s telephone number(s) of record or other telephone numbers provided by Authorized Customer Representatives, to the Customer‘s postal (US Mail) address(es) of record or to other postal addresses furnished by Authorized Customer Representatives.
4. Authorized Customer Representatives include Customer employees, Customer agents, or Customer contractors, other than AVOXI, who have existing relationships on behalf of Customer with AVOXI customer service, account, or other AVOXI representatives and all other persons authorized in a written notice(s) (including email) from Customer to AVOXI. Authorized Customer Representatives shall remain such until Customer notifies AVOXI in writing that they are no longer Authorized Customer Representatives as described below. Customer agrees and will cause Authorized Customer Representatives, to abide by reasonable authentication and password procedures developed by AVOXI in connection with the disclosure of Customer CPNI to Authorized Customer Representatives.
5. Customer’s notices of authorization or deauthorization must be sent to Customer’s service or account manager, and must contain the following information:
– the name, title, postal address, email address, and telephone number of the person authorized or deauthorized
– that the person is being authorized, or is no longer authorized, (as applicable) to access CPNI
– the full corporate name of the Customer whose CPNI (and whose affiliates’ CPNI) the person can access (or can no longer access, if applicable)
6. During the term of the Agreement, Customer will at all times have designated, below or in separate writing sent to the service manager or account manager, up to three representatives (“CPNI Authorizers”) with the power to authorize Customer representatives to access CPNI under this Agreement. Additions or removals of CPNI Authorizers will be effective within a reasonable period after AVOXI has received signed writing of the change, including the affected person(s)’ name, title, postal address, email address and telephone number.
16. CONSENT TO USE CPNI FOR LAWFUL PURPOSES.
AVOXI acknowledges that it has a duty, and Customer has a right, under federal and/or state law to protect the confidentiality of Customer’s CPNI. CPNI includes information relating to the quantity, technical configuration, type, destination, location, and amount of use of the telecommunications services Customer purchases from AVOXI, as well as related local and toll billing information, made available to AVOXI solely by virtue of Customer’s relationship with AVOXI. With Customer consent, AVOXI may share Customer CPNI and other Confidential Information among its Affiliates and with agents and partners so that all may use this information to offer Customer the full range of Services offered by AVOXI and its Affiliates. Customer consents to AVOXI using and disclosing Customer CPNI and Confidential Information as described above. Customer may refuse CPNI consent by notifying AVOXI in writing of Customer’s decision to withhold Customer’s consent. Customer’s consent or refusal to consent will remain valid until Customer otherwise advises AVOXI, and in either case, will not affect AVOXI’s provision of service to Customer.
17. EMAIL MARKETING CONSENT.
Last Updated: October 25, 2020