This Service Agreement (the “Agreement”), dated as of February 15th, 2017 (the “Effective Date”), is by and between Simple Phone Company a California Corporation with offices located at 200 Spectrum, 3rd Fl., Irvine, CA 92618 (“Provider”) and End User (“Customer”).
WHEREAS, Customer wishes to procure from Provider the services described herein, and Provider wishes to provide such services to Customer, each on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. E911 Policy
There are important 911 terms related to the Services (as defined herein), which can be found in the Provider’s E911 Policy here http://simplephonco.com/e911. It is imperative that Customer review and understand the E911 Policy. By activating the Services, Customer acknowledges that Customer has read, understood and agrees to the E911 Policy. If Customer is uncomfortable with the limitations of the E911 Policy, Customer should consider using an alternative means of access to traditional 911 or E911 services or discontinuing the Services.
2. Purchase of Services
Pursuant to this Agreement, Provider agrees to provide and Customer agrees to purchase the products and services (collectively, the “Services”) set forth in the sales order (“Sales Order”),attached hereto and made a part hereof.
3. Term and Automatic Renewal
The term will be specified in the Sales Order, and will be subject to the following:
A. Month to Month Plans
For month to month plans, Customer may cancel or terminate the Services with or without cause at any time by contacting us by phone, subject to any fees provided in this Agreement or in the Sales Order, and any additional agreements governing the products or services.
B. One Year and Two Year Plans
For One-Year and Two-Year plans, if Customer terminates the Services prior to the end of the then current term, Customer is responsible for all charges for any remaining time left in the term as if Customer remained a customer through the end of the then-current term, including, without limitation, outstanding charges, unbilled charges, taxes, and fees. No pro-rata refund will be provided.
4. Installation and Equipment
Customer shall provide Provider, at no cost to Provider, all permissions, consents or authorizations necessary to install, activate, maintain, inspect, alter, repair and replace the Services and any Provider equipment, including the right to access and enter Customer’s premises.
Customer understands and acknowledges that installation and delivery of the Services may require the use of certain Customer equipment and/or Provider equipment. Customer represents that it owns or otherwise has the right to use the Customer equipment in connection with the Services. Customer shall be fully responsible for the installation, maintenance, repair and operation of any Customer equipment and shall ensure the compatibility of any Customer equipment with Provider equipment. Customer will not (i) relocate, rearrange, repair, disconnect or otherwise modify the Service or any Provider equipment without Provider’s prior written consent; or (ii) create or allow any liens or other encumbrances to be placed on any Provider equipment. Customer will use commercially reasonable efforts to protect and maintain Provider equipment in a secure location at the Customer premises within conditions (including room temperature) that are customary and reasonable for such equipment, and shall be fully liable for all costs, charges or expenses associated with damage to or loss of Provider equipment beyond normal wear and tear.
Upon the termination of this Agreement or any Service, Customer shall securely pack, ship and return to Provider all Provider equipment at Customer’s expense. Provider may invoice Customer, and Customer shall pay, for the full replacement value of any Provider Equipment that has not been timely returned to Provider. If Customer has not returned Provider equipment within ten (10) days after the termination of the applicable Service, then upon not less than twenty four (24) hours’ prior notice, Customer will provide access to Provider and/or its agents during normal business hours for the retrieval and removal of Provider equipment from Customer premises and Provider may charge Customer’s selected method of payment, and Customer will pay and be liable for up to a one thousand dollar ($1,000) equipment return fee per Customer location.
As part of the Services installation process, system files on Customer equipment may be modified. Such modifications may disrupt the normal operations of Customer equipment, including the possible corruption or loss of data stored on computer(s). Customer understands and acknowledges that installation, use, inspection, alteration, maintenance, repair or removal of Provider equipment may result in an interruption to Services or damage to Customer equipment, software and loss of data. Customer covenants to back-up all existing computer files by copying them to another storage medium prior to the installation of Provider equipment and software. Customer acknowledges, understands and accepts the risks of not making such a backup, including the loss of some or all of Customer’s software or data, or damage to Customer equipment. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PROVIDER SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO, LOSS OF OR DESTRUCTION OF CUSTOMER’S EQUIPMENT, SOFTWARE OR DATA.
Provider grants Customer a limited, personal, revocable, non-exclusive, non-sub-licensable, non-assignable, non-transferable, non-resellable license to use the software and hardware provided in conjunction with the Services during the term in strict accordance with this Agreement and solely for Customer’s own internal business use. In the event of any expiration or termination of the Services, all license rights granted herein or in connection with any software or hardware immediately terminate. Any IP Rights, as defined below, in the Services or in any technology used in the provision thereof are and shall remain the sole and exclusive property of Provider and its licensors. All rights not expressly granted herein are reserved and retained by Provider and its licensors, and no IP Rights or other rights or licenses are granted, transferred, or assigned to Customer, or any other party by implication, estoppel, or otherwise. Customer acknowledges that misuse of the Services may violate third party IP Rights in the software and/or hardware provided in conjunction with the Services. Customer may not use or disclose any IP Rights in the Services or any hardware or software related to the same except as expressly contemplated by this section.
6. IP Rights
Customer agrees that all rights, title and interest in and to all Intellectual Property in the Services, any software or hardware used in conjunction with the Services, and any materials provided in connection with the Services are owned exclusively by Provider or its licensors. Except as expressly provided herein, the limited license granted to Customer does not convey any ownership or other rights, express or implied, in the Services, any materials provided in connection with the Services, or in any Intellectual Property. “Intellectual Property” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (i) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (ii) copyrights and copyright registrations, and “moral” rights; (iii) the protection of trade and industrial secrets and confidential information; (iv) other proprietary rights relating to intangible property; (v) trademarks, trade names and service marks; and (vi) analogous rights to those set forth above. Customer represents, warrants, covenants and agrees that Customer shall not disclose or use any of the Intellectual Property in the Services, any software or hardware used in conjunction with the Services, or any marketing materials for any purpose following termination of the Services or the limited license granted thereunder to use the Services.
7. Services Changes and Support
Provider may, in its sole discretion, add, remove, or modify features or functions, and provide fixes, updates and upgrades to the Services without notification to Customer. Provider will provide maintenance and support as provided in this Agreement and to the extent such maintenance and support is required under applicable law. Such maintenance and support will only be provided in connection with use of the Services in the United States or Canada. Provider has no obligation to provide maintenance or support of Services used outside of the United States or Canada.
8. Directory Listing
No information provided by Customer will be published in a directory unless Customer requests such publication. If such publication is requested by Customer, Customer acknowledges and agrees that the information that Customer provides in connection with such request (i) may be used or reproduced by, or disclosed to, third-parties and otherwise made publicly available, (ii) Provider may not be able to have such information or listing removed, altered, updated, or corrected, and (iii) Customer may receive calls, messages, mailings, and other communications from third parties as a result of publication. Customer represents and warrants that all information provided by Customer for publication will be true, accurate, and up-to-date and that Customer shall promptly update any such information in the event that it changes or becomes inaccurate. Customer hereby authorizes and grants Provider a worldwide, irrevocable, non-exclusive, royalty-free, fully paid-up license to use, disclose, transmit, publish, or publicize, in any medium or technology now or hereafter available, all information that Customer provides in connection with such publication. Customer hereby releases, discharges, and holds harmless Provider from and against any and all liability relating to or arising from any publication or listing of information in connection with such publication and any third party’s use of the same.
9. Acceptable Use Policy
Services may be used only for lawful, proper and appropriate purposes. Customer must use Services only in a manner that, in Provider’s sole discretion, is consistent with the purposes of such Services. Customer will not engage in any legal or illegal activity that either (i) harms Provider, the Services, or any user of the Services; or (ii) interferes with the the provision or use of the Services by Provider or any other user. Services may not be used for illegal, improper, and/or inappropriate purposes. Illegal purposes include, but are not limited to: (i) using any Services to violate any law, rule, or regulation, as further set forth below; or (ii) engaging in threatening, abusive, harassing, defamatory, libelous, deceptive or fraudulent behavior. Improper and/or inappropriate uses include, but are not limited to: (i) calling, messaging, storing, posting or transmitting harassing, threatening or abusive materials or information; (ii) posting or transmitting any information or software that contains a virus worm, cancelbot or other harmful component; (iii) conducting surveys, contests, pyramid schemes, or charity requests; (iv) mailbombing, flooding, overloading, attacking or otherwise interfering with a system or network; (v) sending unsolicited calls, messaging, e-mailings (including, without limitation, commercial advertising and informational announcements) if such unsolicited activities could reasonably be expected to or do in fact provoke complaints; (vi) falsifying information provided to Provider or to other users of the Services; (vii) use of any Services in violation or any trademark, copyright, or any other intellectual property protection law or provision, or AUP policy of any third party provider; (viii) use of any Services for the purposes of engaging in an activity in connection or conjunction with any pornographic and/or adult entertainment industry purpose, regardless of whether such activity is lawfully permitted; (ix) auto-dialing or predictive-dialing (sometimes referred to as “robo-dialing”); (x) continuous or extensive chat line or conference call participation; (xi) use of free conference calling or similar services that Provider in its sole discretion deems to participate in traffic stimulation practices or schemes that result in excessive charges; (xii) use of an open telephone line as a monitoring, intercom or similar service; (xiii) repetitive and/or continuous messaging or calling to the same destination or number if such activity could reasonably be expected to or in fact does provoke complaints; (xiv) long duration calls (defined as calls to the same number in excess of four continuous or cumulative hours within a 24 hour period) and/or calls placed to specific numbers / destinations for the purpose of generating charges or fees for or with a third party; (xv) use of call services which do not consist of uninterrupted live human voice dialog by and between natural human beings; (xvi) restricting or inhibiting any other user or any other person from using and enjoying the Services and/or the Internet; or (xvii) engaging in any of the foregoing activities by using the services of another provider or third party and channeling such activities through an account provided by Provider, or otherwise involving the products or services or any Provider account in any way with or without another provider or third party for the purpose of facilitating the foregoing activities.
Provider reserves the right, at its sole discretion, to determine if a product or service is being used for any of the foregoing purposes or activities. Violation of this section may result in civil or criminal liability, and Provider, in its sole discretion, in addition to any remedy that it may have at law or in equity, may immediately terminate permission for Customer to use the Services, or any portion of the Services. In addition, Provider may investigate incidents that are contrary to this section and provide requested information to third parties who have provided notice to Provider stating that they have been harmed by Customer’s failure to abide by this section. Provider may bring legal action to enjoin violations and/or collect damages caused by any violation of any part of this section.
Any violations or attempted violations of this section by Customer(or any third party on behalf of Customer) will constitute a material breach of all agreements between Customer and Provider. Provider’s failure to enforce this section in every instance in which it might have application does not amount to a waiver of Provider’s rights.
Customer represents and warrants that all use and usage of the Services will at all times comply with all applicable laws, including but not limited to the rules, policies and regulation of the Federal Communications Commission (“FCC”), and all laws relating to Do-Not-Call provisions; Telephone Consumer Protection Act (“TCPA”); unsolicited marketing; telemarketing; faxing; telemarketing; email marketing; spamming or phishing; data security or privacy; international communications; account or debt collection; recording of calls or conversations; export control; export of technical or personal data; end user, end-use, and destination restrictions imposed by the United States or foreign governments; consumer protection; pornography; trade practices; false advertising; unfair competition; anti-discrimination; harassment; defamation; intellectual property; or securities.
Customer agrees to indemnify and hold harmless Provider, and any third-party provider(s) from any and all third party claims, losses, damages, fines, or penalties arising: (i) out of Customer’s violation or alleged violation of any applicable law; or (ii) otherwise related to any voicemail, text, and/or fax spam, solicitations, or commercial messages that Customer may send and/or receive using the Services.
Certain features of the Services may allow Customer or users of the Services to record calls or other communications. The notification and consent requirements relating to the recording of calls, and/or other communications may vary from state to state, and country to country. Customer should consult with an attorney prior to recording any call as some states or countries may require callers or users to obtain the prior consent of all parties to a recorded call, or other communication before the caller may record the call. Customer represents, covenants, and warrants that Customer will review all applicable laws before Customer uses or allows use of the Services to record any calls or other communications and will at all times comply with all applicable laws. Customer agrees to inform all users that they are obligated to comply with all laws relating to their use of the call recording feature, if any.
Provider expressly disclaims all liability with respect to Customer’s recording of telephone conversations. Customer agrees to indemnify and hold harmless Provider, and any third-party provider(s) from any and all third party claims, losses, damages, fines, or penalties arising out of Customer’s violation or alleged violation of any call recording laws. Provider expressly disclaims all liability and all warranties with respect to recording of conversations and/or calls.
10. Account Suspension and Termination
Provider may at any time, and without additional notice to Customer, terminate, modify, suspend, disconnect, discontinue, or block access to some or all of the features of the Services if: (i) Provider determines that Customer has materially breached this Agreement; (ii) Provider is ordered by law enforcement or other government agencies to suspend or terminate the Services; (iii) Customer bring any legal action or proceeding against Provider; (iv) Customer files a petition in bankruptcy or if a petition in bankruptcy is filed against Customer and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over any of Customer’s relevant property; (v) Provider determines that such action is necessary to protect Provider or other users or to prevent fraud.
If Provider terminates or suspends Customer’s right to use the Services for one of the reasons set forth in this section, Customer shall not be entitled to any refund or pro ration of any pre-paid amounts or other amounts paid prior to the termination or suspension date.
11. Charges to Customer Account
Prices, taxes , surcharges, and fees are subject to change at any time. Customer is responsible for paying all charges for Customer’s account, and for all taxes, surcharges, and fees imposed on Customer or us as a result of Customer’s use of the Services. Customer hereby authorizes Provider to charge Customer’s credit card on file for all charges incurred by Customer in connection with Customer’s use of the Services.
12. Service Level Agreement
Customer’s use of the Services will be governed by the Service Level Agreement, attached hereto and made a part hereof (“SLA”).
13. Billing and Payment
The Sales Order sets forth the base recurring fees for the Services purchased by Customer. Any applicable initiation charges, usage, monthly recurring charges, support charges, taxes, and other fees are billed in full in advance. Other fees and charges, if any, are billed in arrears. Upon termination of Customer’s account for any reason, no refunds or prorations shall be made.
Customer agrees to pay all taxes and similar liabilities that may now or hereafter be levied on the Services by any federal, state, local, or international law or regulation. Should Provider pay or be required to pay such liabilities (including any taxes that were due but not charged or previously collected), Customer agrees that Provider may charge Customer’s credit card on file or invoice Customer, as applicable, for such payments upon receipt of an invoice and showing of indebtedness to Provider.
Customer agrees and acknowledges that time is of the essence for payment of all fees and charges. Any fees or charges not paid when due may incur interest at a rate of the lesser of: (i) eighteen percent (18%) per annum; or (ii) the highest rate allowed by law. Provider’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as “Paid in Full,” “Accord and Satisfaction,” or similarly)) shall not waive, limit, or prejudice in any way Provider’s rights to collect any amount due. Provider may suspend or terminate the Services for non-payment if any fees or charges are not paid within sixty (60) days of the due date.
All fees and charges are payable to Provider by credit card, check, or PayPal. Provider does not accept payment by any other method unless previously agreed to in writing. Customer agrees to be liable for a processing fee in the amount of the lesser of: (i) thirty-five dollars ($35.00); or (ii) the highest amount allowed by law for any credit card chargeback or check or other payment returned for nonpayment.
When Customer purchases the Services, Customer will provide Provider with a payment method, such as a valid credit card or information for invoicing, and, if applicable, authorize Provider to collect from the payment method provided. Any authorization to charge a provided credit card will remain valid until thirty (30) days after Customer withdraws the authorization, or immediately upon provision of a replacement valid credit card. Upon termination of this Agreement, Provider will charge Customer any fees and any other outstanding charges and disconnect the Services. Customer agrees to advise and notify Provider of any changes to Customer’s payment method, such as credit card account number or expiration date changes. If the credit card or other payment method on Customer’s account is declined or fails for any reason, Provider will use reasonable efforts to contact Customer and advise Customer of the failed billing attempts. Notwithstanding the foregoing, Provider reserves the right to disconnect the Services and terminate the Agreement if Customer’s payment method is declined or fails for any reason, or if Customer withdraws authorization to charge a valid credit and does not provide an alternative payment method, and Provider reserves the right to continue to attempt charging Customer’s credit card for any outstanding service charges and additional fees and pursue any other legal remedies available to Provider.
14. Returns and Refunds
Provider offers a full refund on Sales Orders if such refund request is received within thirty (30) days of shipping receipt. In the event of a warranty claim, Customer will pay for the cost of shipping to Provider, and Provider will pay for return shipping to Customer. Expedited shipping is available for an additional fee.
15. Access to Customer Data
As permitted or required by law, Provider may access, monitor, use or disclose details regarding Customer’s account usage or personal information to: (i) respond to legal process; (ii) protect Provider rights, including to enforce this Agreement; (iii) respond to emergencies; (iv) initiate, render, bill, and collect for Services purchased by Customer.
“Confidential Information” means all nonpublic information relating to a party or its affiliates that is confidential or proprietary in nature, even if not so marked, labeled or identified, given the nature of the information or the circumstances surrounding its disclosure. Confidential Information includes, without limitation, all nonpublic information relating to (i) a party’s or its affiliates’ technology, customers, employees, business plans, agreements, finances and other business affairs, (ii) Provider’s platform, and (iii) the terms of any Sales Order. Confidential Information does not include any information that (i) has become publicly available without breach of this Agreement, (ii) was known to the party receiving Confidential Information under this Agreement (the “Receiving Party”) at the time of its receipt from the Party disclosing the Confidential Information (the “Disclosing Party”) or its affiliates as shown by documentation reasonably acceptable to Disclosing Party, (iii) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (iv) was independently developed by the Receiving Party without use of any Confidential Information as shown by documentation reasonably acceptable to Disclosing Party.
Each Party agrees to hold Confidential Information in strict confidence and shall protect such Confidential Information no less than that with which it protects its own confidential or proprietary information of a similar nature. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose unrelated to the Services. Each Party may disclose the Confidential Information of the other Party only to its and its affiliates’ directors, officers, advisors, employees and other legal, business or financial partners or representatives who have a need to know such information; provided that all such persons are subject to written confidentiality agreements which contain provisions which are no less restrictive than the provisions of this section.
If the Receiving Party is legally compelled to disclose Confidential Information of the Disclosing Party, subject to applicable laws, the Receiving Party must provide the Disclosing Party with prompt written notice of such legal requirement in order to allow the Disclosing Party to seek a protective order or other appropriate remedy.
Upon the termination or expiration of this Agreement, or at any time upon the request of the Disclosing Party, the Receiving Party shall, at the Disclosing Party’s option, return or destroy (and certify as to such destruction) all Confidential Information of the Disclosing Party in its control or possession, other than copies which the Receiving Party may be required to maintain under applicable law or regulation.
Customer hereby grant Provider and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Customer name, trademarks, service marks, designs, logos, and symbols in connection with advertising the fact that Customer uses Provider’s products and services.
To the maximum extent permitted by applicable law, Customer agrees to defend, indemnify and hold harmless, Provider, its affiliates, agents, and other providers who furnish goods and services to Customer in connection with the Services, and all of their respective officers, directors, employees, and agents (the “Indemnified Parties”) from and against any and all liability, claims, losses, damages, fines, penalties, and expenses (including reasonable attorneys’ fees) arising from or related to: (i) Customer’s use, or the use by any third party acting with Customer’s permission, of the Services; (ii) a breach of this Agreement by Customer or by any third party using the Services with Customer permission; (iii) any negligent acts, omissions to act or willful misconduct by Customer or any third party acting with Customer’s permission; (iv) the inability to use the Services for any reason, including but not limited to those related to calling, “911” or other emergency responders; or (v) the use of the Services in connection with a violation of any applicable law.
18. Fair Use Policy
We reserve the right to monitor usage of all customers to enforce the fair use of our network and ensure the highest quality of phone service. Customers with excessive usage or possible fraud may be subject to suspension of account or service until reviewed with customer support. Unusually high international charges and usage may also trigger service suspension.
While a number of devices on an account is an unmetered feature, we require customers to carry a 50/50 minimum number of devices to number of account billed lines. Customers who add devices and usage outside of this measure may be subject to adding additional lines to billing plan.
19. Disclaimers and Limitation on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. WITHOUT LIMITING THE FOREGOING IN ANY WAY, PROVIDER SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL MEET ANY PARTICULAR REQUIREMENTS AND THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. TO THE EXTENT THAT PROVIDER CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR LOSS OF USE, DATA, EQUIPMENT, PRODUCTS, BUSINESS OPPORTUNITIES, OR PROFITS; INTERRUPTION OF BUSINESS; TRANSACTIONS ENTERED INTO OR NOT ENTERED INTO; OR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF PROVIDER HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF – OR COULD HAVE FORESEEN — SUCH COSTS, LOSSES, OR DAMAGES.
PROVIDER’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED THE SERVICES FEES PAYABLE HEREUNDER DURING THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE DATE OF THE EVENT(S) GIVING RISE TO THE LIABILITY. THE LIMITATION OF LIABILITY SET FORTH IN THIS SUB-SECTION DOES NOT APPLY TO PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
A. Relationship of the Parties. The relationship of the parties is that of independent contractors. Nothing in this Agreement shall constitute or create any employment, partnership, association, joint venture, agency, or fiduciary relationship between us. Neither party shall have the authority to bind or obligate the other in any way.
B. Notices. Notices shall be effective on the date sent Provider’s electronic mail address or to the registered electronic mail address of Customer when sent by email or three (3) days following the date deposited in regular United States Mail, postage prepaid, and addressed to Provider’s address or Customer’s current address on Customer’s account. Customer is responsible for notifying Provider of any changes in Customer’s contact information or address.
C. Force Majeure. Provider shall not be responsible or liable for any failure to perform or delay in performing to the extent resulting from any event or circumstance that is beyond Provider’s reasonable control, including without limitation any act of God; national emergency; riot; war; terrorism; governmental act or direction; laws; breach, delay, act, or omission of any supplier, carrier, contractor, subcontractor, or business partner; failure, outage, or unavailability of third party network(s) or system(s); fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; criminal acts of third parties, earthquake; storm; hurricane; flood, fire, or other natural disaster; or strike or labor disturbance (each a “Force Majeure”). In the event that a Force Majeure prevents Provider’s performance for more than thirty (30) consecutive days, Customer may terminate this Agreement.
D. Choice of Law and Venue. All matters arising from or related to this Agreement and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction).
Any legal suit, action or proceeding arising out of, or related to, this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the County of Orange, although Provider retains the right to bring any suit, action or proceeding against Customer for breach of this Agreement in Customer’s country of residence or any other relevant country. Customer waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts.
E. Arbitration, Class Action Waiver, and Limitation on Time to Bring a Claim. Any disputes arising out of or related to this Agreement will be subject to FINAL AND BINDING ARBITRATION as set forth in this section, and may only be resolved through an individual arbitration governed by the Federal Arbitration Act, to the maximum extent permitted by applicable law. The only exceptions to this agreement to arbitrate disputes are claims of infringement or misappropriation of Provider’s intellectual property or proprietary rights. CUSTOMER UNDERSTANDS THAT CUSTOMER IS GIVING UP CUSTOMER’S RIGHT TO GO TO COURT in connection with any dispute (subject to the exceptions listed in this subsection), and that Customer’s rights will be determined by a NEUTRAL ARBITRATOR OR ARBITRATION PANEL, NOT A JUDGE OR JURY. If the parties are unable to resolve a dispute by informal means, the arbitration of disputes will be administered by the American Arbitration Association (AAA), in accordance with its Commercial Arbitration Rules.
CUSTOMER ACKNOWLEDGES THAT NEITHER PARTY WILL BRING OR PARTICIPATE IN ANY CLASS ACTION OR OTHER CLASS PROCEEDING IN CONNECTION WITH ANY DISPUTE WITH THE OTHER PARTY. FURTHER, NEITHER PARTY AGREES TO CLASS ARBITRATION OR ANY ARBITRATION WHERE A PERSON BRINGS A DISPUTE AS A REPRESENTATIVE OF OTHER PERSON(S).
Regardless of any statute or law to the contrary, and to the maximum extent permitted by applicable law, any dispute must be filed within one (1) year after the date in which the incident giving rise to the dispute occurred. Failure to file an arbitration claim as described above within the applicable limitations period constitutes a waiver of such claim and serves as complete bar to any claim based on any dispute.
F. Equitable Relief. Customer agrees that any breach of Provider’s IP Rights will cause Provider irreparable harm for which monetary damages will be inadequate and Provider may, in addition to other remedies available at law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement.
G. Consumer Notice. The following specific consumer rights notice is hereby provided under California Civil Code Section 1789.3 to California customers and users of the Services: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at (916) 445-1254.
H. No Waiver. In no event shall any failure or delay by a party to assert or exercise any right be deemed a waiver of any right or remedy under this Agreement. Except as otherwise expressly stated in this Agreement, all rights and remedies stated herein are cumulative and in addition to any other rights and remedies available to Provider, at law or in equity.
J. Assignment. Either party may assign this Agreement and any of its rights and obligations hereunder with the other party’s prior written consent (which such consent shall not be unreasonably withheld), except that Provider may, without notice, assign the Agreement and all of Provider’s rights and obligations hereunder to: (i) an affiliate; or (ii) Provider’s successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets, or the transfer or disposition of more than fifty percent (50%) of Provider’s voting control or assets. Any purported transfer or assignment in violation of this section is void. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of the parties, their successors, permitted assigns, and legal representatives.
K. Severability. If any provision or portion of this Agreement is determined to be invalid, unlawful, illegal, void, or unenforceable, in whole or in part, then (i) that provision or portion shall be construed in such a manner as to render the provision or portion enforceable and, to the extent possible, to reflect the parties’ original intent and (ii) the remaining provisions and portions of the Agreement shall remain in full force and effect.
L. Survival. The following provisions of this Agreement will survive termination or expiration of the Agreement for the maximum term allowed by law: (i) Customer payment obligations; (ii) terms relating to intellectual property ownership, publicity rights, indemnification, warranty disclaimers, limitations of liability, dispute resolution and arbitration, and choice of law; and (iii) all provisions that are intended by their nature to survive termination of this agreement.
M. Amendments. No amendment to the terms of this Agreement will be binding on the parties unless reduced to writing and signed by both parties.
N. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.