Last Updated May 17, 2012
Vidtel, Inc. (“Company,” “we,” “us”) welcomes you. We provide a variety of services (“Services”) which may be subscribed to by phone, through our website at www.vidtel.com (including any successor sites, the “Site”), and other means, and through our affiliates and partners. The Services provided by us and any equipment sold by us (“Equipment”) are governed by the terms and conditions contained in this Terms of Service (this “TOS”). This TOS governs the relationship between Company and you, the user of the Services and Equipment with respect to your subscription, use and/or purchase of the Services and Equipment. In addition, some Equipment that we may make available to you may have separate registration procedures and/or separate terms of service or similar legal agreements. When you purchase any Equipment from us, whether through the Site or otherwise, that do not have separate terms of service or similar legal agreements, this TOS will apply. In addition, we may offer the services of third party service partners, from time to time, that are governed by separate terms of service or similar legal agreements of the respective service partner.
Because this TOS contains legal obligations, please read this TOS carefully. It is important that you read carefully and understand the terms and conditions of this TOS. By clicking the “I Agree” or similar button at the time during or after you register with us or subscribe to the Services, or by actually accessing or using the Services and Equipment, you agree to be bound by this TOS. Ifyou do not agree to this TOS, you will not have the right to access or use the Services and Equipment and must click on the “I Do Not Agree” or similar button.
You represent that: (a) if you are entering into this TOS on behalf of your employer, or any other entity or person, you are duly authorized by your employer, such other entity or such person to enter into this TOS which will be binding upon both you individually and such employer, other entity or person (and “you” as used in this TOS shall refer to both), (b) you are of the legal age to form a binding contract with us, and (c) you are not a person barred from subscribing, using, accessing or purchasing the Services or Equipment under the laws of the United States or other applicable jurisdiction.
1. Acceptance of TOS; Changes to TOS. The Services and Equipment are made available by Company subject to this TOS. We reserve the right to update or make changes to this TOS from time to time in our sole discretion, which changes we may provide to you by any reasonable means, including without limitation, by posting the revised version of this TOS on the Site, which changes will become effective immediately upon your receipt thereof or posting on the Site, whichever occurs first. You can determine when this TOS was last revised by referring to the Last Updated date at the top of this TOS. Please be sure to return to this page periodically to ensure familiarity with the most current version of this TOS. You agree that your subscription, use, access and purchase of any Services and Equipment may be subject to any additional posted guidelines, rules, terms and conditions applicable to such Services and Equipment (collectively, “Policies”), which are hereby incorporated by reference into this TOS. In the event that any terms or conditions of such Policies contradict or are inconsistent with the terms and conditions of this TOS, such Policies will govern and prevail solely with respect to the specified Services or Equipment to which they apply. In the event that you are required to agree to this TOS after you have subscribed to the Services and you do not agree with this TOS after being prompted to agree to this TOS in order to continue to receive the Services, your Services will be terminated and you will be entitled to a refund of any prepaid unused services fees, less taxes, surcharges, regulatory recovery fees, and any amounts owing by you under your account.
2. Services. The Services include Vidtel’s video conferencing services and any other services that may be offered by Vidtel from time to time. You acknowledge and agree that the Services require that all software, hardware and equipment used by you to access and use the Services are configured correctly for the applicable Service to function properly.
3. Subscription Period. The “Subscription Period” for a Service, including trial periods, is the Service period you selected when you first subscribed to a Service, and commences on the date you activate the Service. At the end of the Subscription Period, your subscription to the Service will automatically renew on a month-to-month basis at the current fees offered for the Service, unless you notify us prior to the end of the Subscription Period that you do not wish to renew your subscription and that you wish to disconnect the Service or that you wish to renew your subscription for a longer Subscription Period. If you cancel your subscription and disconnect the Service prior to the end of the applicable Subscription Period, you will be responsible to pay all fees that would have been payable through the end of the Subscription Period, plus any applicable disconnection fee. If the current Subscription Period for your Service is month-to-month, you may terminate your Service by notifying us prior to the end of the monthly Subscription Period, and you will only be responsible to pay the monthly fees for the final monthly Subscription Period in which you terminate the Service.
4. High-Risk Activities. You hereby acknowledge that the Services are not designed or intended for access and/or use in or during high-risk activities,where the use or failure of the Services could lead to death, personal injury, or environmental damage,including without limitation, use in medical procedures and life support systems; control of aircraft, air traffic, aircraft navigation or aircraft communications; or the design, construction, operation or maintenance of any nuclear facility.
5. No Access to Emergency Services.
5.1. No Emergency Services. You understand and agree that the Services are not traditional phone services and are not intended to support, carry or enable any emergency calls (including 911 calls of any kind) to any emergency services of any kind to law enforcement agencies, medical facilities, hospitals, emergency service personnel or public safety services. In using the Services, you are solely responsible for arranging access to emergency services separately through traditional wireless or fixed line phone services that do provide access to Emergency Services.
5.2. No Company Liability. You understand and agree that Company will not be liable to you or any third party for any inability in accessing emergency services through the Services, or for any outages in Services.
6. Registration; Updating Your Information; Security.
6.1. Registration. You may be required to register with us in order to access all or a portion of the Services. You are agree to (a) provide true, accurate, current and complete information about yourself when you register or any other time you provide information to us, and (b) maintain and promptly update information about yourself to keep it true, accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, we reserve the right to immediately terminate this TOS, your use of the Services, and/or your account. As part of the registration process, you will be asked to select a username and password. We may refuse to grant you a username that is or may be construed as impersonating another person, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is being used by someone else, personally identifies you, is vulgar or otherwise offensive, may cause confusion, or for any other reason as determined by us in our sole discretion.
6.2. Responsibility for Your Account. Your username and password are for your individual use only, and not for use by any other person. You will be responsible for maintaining the confidentiality of your username and password and agree not to transfer, share, disclose or resell your username or password, or otherwise transfer, share or resell your access to the Services, to any third party. You agree to immediately notify Company of any unauthorized use of your username, password or account, or any other breach of security related to your account or the Services, and to ensure that you “log off” and exit from your account at the end of each session. We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations. You are entirely responsible for all activities TAKING PLACE through your account.
7. Certain Restrictions on Unreasonable Use. You understand and agree that certain restrictions may apply to “unlimited” subscriptions to the Services that are intended to be used for reasonable business use only. You agree that if your use of the Services is substantially greater than the reasonable amount of business use (as determined by us in our sole discretion) and you continue such use after notice from us, we shall have the right to immediately terminate or disconnect the Services.
8. Changes to the Services. We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the Services, with or without notice to you. You agree that any notices to you will deemed provided to you and effective on the date of posting to the Site at Service Changes, on the day of email or fax transmission to the email of fax account we have on file for your account, on the date of mailing to the postal address we have on file for your account, and upon receipt by you of such notice if we contact you in other ways. You agree that (a) Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services, in whole or in part, and (b) your continued use of the Services after such changes have been implemented will be deemed your acceptance of such changes. In the event that the applicable Service(s) are discontinued, you will be entitled to a refund of any prepaid unused services fees, less taxes, surcharges, regulatory recovery fees, and any amounts owing by you under your account. You may change your subscription to the Service at any time, subject to applicable change fees.
9. Charges, Billing and Payment.
9.1. Fees. Our service fees, overage fees and all other fees and charges applicable to the Services are published on our website atFees. Based on your Subscription Period, you will be charged, in advance, on a monthly or annual basis, the monthly or annual service fee and all other applicable monthly or annual charges for the Services for which you have subscribed. Regardless of your Subscription Period, you will be charged, on a monthly basis, any overage fees or other fees for prior months that were not already paid for such prior months. Your monthly service fees (and all other charges) will be due and payable on the day of each calendar month on which you subscribed to the Services. Your annual service fees will be due and payable on the anniversary of your subscription date. If your account has been set up for automatic payment, then such payment will be initiated on the date (or the next business day) on which your payment is due, and you hereby authorize us to collect from your payment method all outstanding fees and charges for your account. If any fees and charges are not paid by the due date, then Company may suspend, terminate or disconnect your Services, without notice to you, until all amounts due are paid. Additionally, any fees and charges that are not paid by the due date are subject to a late charge of one percent (1%), (or the maximum amount permitted by applicable law, whichever is lower) for each month, or fraction thereof, until the full amount due is paid in full. You are responsible to pay all fees and charges due for the entire Subscription Period for the applicable Service, and except as described in this TOS any suspension, termination or disconnection of the Service does not relieve you of the obligation to pay such fees.
9.2. Government Surcharges; Regulatory Recovery Fees. Any applicable government surcharges which are required to be charged to you by state, federal or local taxing authorities will appear on your bill and will be charged to you monthly. Also, each Service may be subject to a monthly regulatory recovery fee, which is intended to offset certain costs incurred by us in complying with the requirements imposed by federal, state and local regulatory authorities. Regulatory recovery fees are not taxes or government surcharges that are required or assessed by any government taxing authority.
9.3. Changes in Fees. Company reserves the right to change the fees and charges for the Services from time to time, without advance notice to you. Any changes in prices or fees will be published on the Site at Fees. For Subscription Periods of one (1) year or more, the service fees will not be increased during the initial Subscription Period, but taxes, government surcharges and the regulatory recovery fee may be subject to increase at any time, including during the initial Subscription Period. The service fees effective upon any renewal of the applicable Subscription Period will be the then-current service fees for the Service.
9.4. Trial Subscriptions. If you elect to terminate a Service in within the applicable trial Subscription Period, you will be entitled to receive a refund of the service fees charged for such trial period, less any applicable taxes, government surcharges and regulatory recovery fees.
9.5. Disconnection by You. If you disconnect any Service before the end of the applicable Subscription Period, you will be responsible for all fees and charges (including overage fees) for the Service through the end of the Subscription Period, plus any applicable disconnection fee. Also, if you obtained any Service or Equipment rebate or other benefit that was conditioned on your maintaining the applicable Service for a specified period of time, and you disconnect the Service prior to the end of that time period, you will be responsible to pay Company the applicable recovery fee. If the disconnected Service is activated later, your account may be subject an activation fee.
9.6. Disconnection by Company. If we discontinue a Service generally, or suspend or terminate your Service and account without a stated reason, you will only be responsible for the fees and charges (including overage fees, taxes, government surcharges and regulatory recovery fees) that have accrued through the date of the disconnection of your Service. If we suspend, terminate or disconnect a Service for a stated reason, then you will be responsible for all fees and charges for the Service through the end of the Subscription Period, plus any applicable disconnection fee. “Stated reasons” include the following: (a) we have determined, in our sole discretion, that you have misused any Service, engaged in suspected fraudulent or illegal activity, engaged in other activity that adversely affects any Service, our network or other customer’s ability to use any Service; (b) you have failed to pay any amount due by the due date (including if your payment method expires or is declined and you have not provided us with a valid replacement of such payment method); or (c) otherwise breached this TOS. You understand that Company reserves the right to monitor all uses of the Services and your compliance with this TOS. If a Service is resumed after we have terminated or disconnected such Service for a stated reason, your account may be subject to an activation fee.
9.7. Payment of Fees Upon Termination or Disconnection. Upon any termination or disconnection of any Service, all amounts owing to Company will become immediately due and payable, and Company will immediately charge the payment method you have provided for all such amounts due. Company has the right to pursue collection for all unpaid amounts due and to report unpaid amounts to credit reporting agencies.
9.8. Credit Inquiries. By subscribing to any Service, you authorize us to review your credit history and to obtain a consumer or business credit report, both at the time you first subscribe to a Service and at any time during the applicable Subscription Period, for any purpose, including without limitation, to determine your initial qualification to open an account, your continued compliance with this TOS, and general customer base evaluation purposes not specifically associated with your account. You also authorize us to share credit information about you to credit reporting agencies.
9.9. Billing Disputes. If you wish to dispute any fees or charges for any Service, you must submit a written notice of the disputed fee or charge to us, within thirty (30) days after the date of your bill containing such fee or charge, to: 1298 Kifer Road, Suite 508, Sunnyvale, CA, 94086 or at email@example.com. If you fail to provide such written notice within the thirty (30) day period, all fees and charges will be deemed accepted by you and you will waive any right to further dispute such fees and charges.
10. Term and Termination. This TOS is effective on the date you first subscribe to any Service (or purchase any Equipment) on the latest termination date of any Service you have subscribed to, unless earlier terminated by you or Company. Company, in its sole discretion, may terminate this TOS, any Service and your account, or suspend any Service for a stated reason or for no reason. Upon any termination of this TOS, your right to access or use the Services will immediately cease. You agree that Company shall not be liable to you or any third party for any termination of this TOS and any termination or cancellation any Services. The Sections intended to survive after the expiration or termination of this TOS, including Sections 6, 9, 10, 13, 14, 15, 16, 17, 21, 22, 23, 24, 25, and 27 shall survive any expiration or termination of this TOS.
11. License to Access and Use Services; Use Outside of the United States. Subject to your compliance with this TOS, and solely for so long as you are permitted by Company to access and use the Services in its sole discretion, Company grants to you a limited, revocable, non-exclusive, non-transferable right to access the use the Services from the United States for your individual or internal business use only, provided that you do not exceed the equipment, seat or other limitations of your subscription for the Services. Unless expressly granted to you in this TOS, Company and its licensors reserve and retain all rights related to the Services (including all intellectual property rights related thereto). Even though it is possible to access and use the Services outside of the United States, the Services are offered to users only within the United States, and supported only within the United States. If you use the Services outside of the United States, you are solely liable and responsible for complying with all applicable laws and regulations which govern your use of the Services, including the terms and restrictions of the local Internet service provider used to access the Services.
12. Equipment. We may offer for sale or lease to you equipment manufactured by third parties that you may use to access and use the Services. The manufacturer, and not Company, will be responsible for all repairs of such equipment and all warranties for such equipment, if any, will be provided directly from the manufacturer and passed directly to you.
12.1. Use Restrictions. You agree to use and access the Services and Equipment for lawful and appropriate purposes as determined by Company in its sole discretion, only in a manner that does not violate any third party’s rights or applicable law. You agree not to, nor allow others to: (a) sublicense, transfer, share, lend (via a service bureau or otherwise), distribute or resell to any third party your right to access or use the Services (or any portion thereof); (b)adapt, alter, modify, create derivative works, de-compile, translate, disassemble, or reverse engineer the Services or any component thereof, including without limitation, the source code and any other underlying technologies, software or algorithms of the Services; (c) ship, divert, transfer, export or re-export the Services or any component thereof outside of the United States, or use the Services or use it in any manner prohibited by any export control laws, restrictions, or regulations administered by the United States Commerce Department’s Bureau of Export Administration, the United States Department of Treasury’s Office of Foreign Assets Control or any other applicable government agency; (d) use any data mining features, robots, spiders or similar data gathering and extraction tools in your use of the Services to retrieve, index, “scrape,” “data mine,” or in any way gather content or data from the Services or otherwise circumvent the navigational structure or presentation of the Services; (e) circumvent, disable, override or otherwise interfere with any security-related features of the Services, or any other features that prevent or restrict use, copying, data mining or otherwise or enforce the limitations on the use of the Services; (f) to use the Services to transmit illegal, fraudulent, indecent, obscene, vulgar, improper, defamatory, abusive, harassing, hateful or deceptive Content; (g) use the Services for purposes of blasting faxes or voicemails; sending bulk unsolicited Content; operating a call center; continuous call forwarding or conferencing; auto-dialing; or telemarketing (including charitable or political purposes); or (h) in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Services, or any networks or security systems of Company or its service providers. Although Company is not responsible or liable for any Content that you transmit in using the Services, Company reserves the right to take any action it deems necessary or appropriate in its sole discretion, with respect to any such Content, at any time and without notice to you. As used herein, “Content” means messages, data, information, materials, images, audio files, video files and any other content that you transmit through the use of any Service.
13.2. Directory Listings. We reserve the right to establish and make available a directory of the phone numbers that we assign to you for the applicable Service. You may opt out of being listed in such directory.
14. Company’s Proprietary Rights. The content, information and materials made available by Company through the Services, and the underlying technology and software comprising the Services, are and shall remain the exclusive property of Company and its licensors and suppliers, and are protected by copyright, trademark, patent, and/or other proprietary rights and laws. All trademarks and service marks appearing within the Services not owned by Company are the property of their respective owners. The trade names, trademarks and service marks owned by Company, whether registered or unregistered, may not be used without our written consent or in any manner that is likely to cause confusion.
15. Disclaimers of Warranties; Limitation of Liability.
15.1. Disclaimers. THE SERVICES AND EQUIPMENT ARE PROVIDED TO YOU “AS IS” AND YOUR USE THEREOF IS AT YOUR SOLE RISK. COMPANY DOES NOT WARRANT THAT: (A) THE SERVICES OR EQUIPMENT (OR THE RESULTS OBTAINED FROM THE USE THEREOF) WILL BE TIMELY, ERROR-FREE, SECURE OR UNINTERRUPTED; (B) THE SERVICES OR EQUIPMENT WILL MEET YOUR REQUIREMENTS; OR (C) ANY ERRORS OR MALFUNCTIONS IN THE SERVICES OR EQUIPMENT WILL BE CORRECTED. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, INTERRUPTIONS, DELAYS AND FAILURES OF THE SERVICES. Company: (I) DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND TITLE WITH RESPECT TO THE SERVICES AND EQUIPMENT, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND (II) SHALL NOT BE LIABLE IN THE EVENT OF ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR ANY PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION TRANSMITTED THROUGH THE SERVICES, ANY INTERRUPTION, SUSPENSION OR CESSATION OF ACCESS TO THE SERVICES, ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED THROUGH THE SERVICES BY ANY THIRD PARTY, AND ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR MATERIALS POSTED, EMAILED, DOWNLOADED, UPLOADED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES.
15.2. Limitation of Liability. Company WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER THEORY, INCLUDING WITHOUT LIMITATION, DAMAGES FOR COST OF SUBSTITUTE PROCUREMENT, LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SERVICES or EQUIPMENT OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, OR COST OF RECOVERY OR OTHER DAMAGES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. IN PARTICULAR, AND WITHOUT LIMITATION, Company WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE services, including accessing 911 or emergency services, OR FROM ANY AND ALL CONTENT, MATERIALS, PRODUCTS AND SERVICES TRANSMITTED OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE services IS TO STOP USING THE Services. UNDER NO CIRCUMSTANCES SHALL COMPANY BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ANY CAUSES BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OR OTHER NETWORK (including without limitation phone network or other telecommunications network) FAILURES OR “BROWNOUTS”, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, NON-PERFORMANCE OF THIRD PARTIES, OR LOSS OF OR FLUCTUATIONS IN HEAT, LIGHT, OR AIR CONDITIONING. NOTWITHSTANDING ANYTHING ELSE IN THIS TOS, COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOS, THE SERVICES OR EQUIPMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER THEORY, SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO COMPANY DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH COMPANY RECEIVES NOTICE OF A CLAIM FROM YOU.
15.3. Jurisdictional Limitations. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU
16. Governing Law; Dispute Resolution.
16.1. Governing Law; Venue. This TOS and all matters arising out of or relating to this TOS, the Services and Equipment will be governed by the internal laws of the State of California, United States, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of Company and you. This TOS will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded.
16.2. Good Faith Efforts to Resolve Dispute. In the event that any dispute arises between you and Company in any way related to this TOS, Services or Equipment, which may include the interpretation, construction, coverage, scope, performance, non-performance, breach, termination, validity or enforceability of this TOS (“Dispute”), you and Company will make bona fide efforts to settle such Dispute amicably by good faith consultation and discussions. If you and Company are unable to resolve such Dispute after good faith consultation and discussions for thirty (30) days, then either you or Company may submit the Dispute to arbitration in accordance with Section 16.3below by providing fifteen (15) days prior written notice to the other party prior to initiating arbitration proceedings.
16.3. Arbitration. Any Dispute that cannot be settled through negotiation by the parties pursuant to Section 16.1 above shall be resolved by binding arbitration administered by the American Arbitration Association (the “AAA”) in accordance with its then-prevailing Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”), as modified by this TOS. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. Such arbitration shall be presided over by a sole arbitrator, either in person in the City of Sunnyvale, California, United States, or via telephone or teleconference. The arbitrator will be mutually agreed upon by the parties, no later than fifteen (15) days after the initiation of arbitration, or, in the absence of such agreement, each party shall select an arbitrator and such two arbitrators shall select a third arbitrator who shall arbitrate the Dispute. Such arbitration shall be conducted on an expedited basis and in confidence. The arbitrator shall be acquainted with the VoIP telecommunications industry andshall determine all issues regarding such dispute, including without limitation, procedure, discovery, arbitrability and waiver. The parties shall instruct the arbitrator to render his or her decision no later than ninety (90) days after submission of the Dispute, which decision shall be in writing and shall specify the factual and legal bases for the award. The arbitration of such issues, including the determination of any amount of damages suffered by any party hereto, shall be final and binding upon all parties. The arbitrator shall have the authority to grant specific performance but shall not have the power to award damages in excess of the limitations set forth in this Agreement. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. Except as otherwise set forth in this Agreement, the cost of any arbitration hereunder and all fees involved including reasonable attorneys’ fees incurred by the party determined by the arbitrator to be the prevailing party, shall be paid by the party determined by the arbitrator not to be the prevailing party, or otherwise allocated in an equitable manner as determined by the arbitrator. In addition to any rights and remedies otherwise available, either party, before or during arbitration, may apply to a court having jurisdiction for a temporary restraining order, preliminary injunction or other interim or conservatory relief, where such relief is necessary to protect its interests pending completion of the arbitration proceedings without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator.
16.4. Waiver of Jury Trial and Class Actions. You agree that by entering into this TOS, you hereby waive any right to a trial by jury. You and Company hereby agree that the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. You and Company agree that you and Company may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Unless you and Company agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. Despite any other provision in this agreement to the contrary, including Section 22, if this specific waiver of class actions right, or any portion thereof, is found to be unenforceable: (a) the entirety of Sections 16.2and 16.3regarding dispute resolution and binding arbitration provision shall be null and void, (b) all Disputes shall be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, United States, except that either you or Company may seek injunctive relief in any court of competent jurisdiction, and (c) you and Company hereby irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts.
16.5. Time Limitations to Bring Claims Against Company. You must contact us within one (1) year of the date of the occurrence of the event or facts giving rise to a claim against Company (except for billing disputes which are subject to the limitations in Section 9.9of this TOS), or you waive the right to pursue a claim against Company based upon such event or facts.
17. Indemnity. You agree to defend, indemnify and hold harmless Company its employees, officers, directors, shareholders, affiliates, agents, representatives, licensors, suppliers and service providers, from and against all claims, losses, costs and expenses (including attorneys fees) arising out of (a) your and any third party’s use of, or activities in connection with, the Services, including any failures or outages of the Services and any Content you transmit through the Services; or (b) any violation of this TOS by you.
18. Compliance with Applicable Law. In using the Services and Equipment, you agree to comply with all applicable federal, state, local and international laws and regulations, including export and import laws, regulations, orders or other restrictions administered by the United States Commerce Department’s Bureau of Export Administration, the United States Department of Treasury’s Office of Foreign Assets Control or any other applicable government agency. You understand that use of the Services and transfer, posting and uploading of software, technology, and other technical data via the Services may be subject to the export and import laws of the United States and other countries.
19. Notice for California Residents. Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Services, please send an e-mail to firstname.lastname@example.org. You may also contact us by writing to 1298 Kifer Road, Suite 508, Sunnyvale, CA, 94086, or by calling us 1-877-MY-VIDTEL (1-877-698-4383). California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
20. Claims of Copyright Infringement.
20.1. DMCA. The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under United States copyright law. If you believe in good faith that materials transmitted through the Services infringe your copyright, you (or your agent) may send Company a notice requesting that Company remove the material or block access to it. Please provide the following information: (i) a electronic or physical signature of the owner (or person authorized to act on behalf of the owner) of the copyrighted work; (ii) a description of the copyrighted work that you claim has been infringed upon and sufficient information for Company to locate such copyrighted work; (iii) information reasonably sufficient to permit us to locate the copyrighted work; (iv) your address, telephone number, and e-mail address; (v) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
20.2. Counternotices. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send Company a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices should be sent to our DMCA agent: 1298 Kifer Road, Suite 508, Sunnyvale, CA 94086 or at email@example.com. We suggest that you consult your legal advisor before filing a notice or counter-notice.
20.3. Termination of Account. Company shall have the right to suspend, terminate or disconnect all Services for any account engaged in suspected repeated copyright infringement. Company shall have the right to transmit the notification to the user of the Service transmitting or receiving the allegedly infringing material, and to transmit any counter-notification to the complaining party.
21. Entire Agreement; Amendments; Waiver. This TOS (which incorporates by reference the Policies) constitutes the entire agreement between you and Company relating to any and all Products and Services provided by Company, directly or indirectly, and supersedes any and all prior or contemporaneous written or oral agreements between you and Company relating to the Products and Services. This TOS may not be amended, supplemented or modified in any manner by any terms which may be included within any documents exchanged by the parties, including without limitation, purchase orders, purchase documents, specifications and notations on checks and negotiable instruments. No amendment or waiver of this Agreement will be binding on Company unless set forth in a writing expressly identifying this TOS and signed by an officer of Company and you. Either your or Company’s failure to exercise any right or provision of these TOS shall not constitute a waiver of such right or provision.
22. No Credits. You acknowledge and agree that the Services may not be available 100% of the time. We do not automatically provide any credit allowance for interruption of the Services.
23. Severability. If any provision of this TOS is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this TOS and will not affect the validity and enforceability of any remaining provision.
24. Notices. You authorize Company to send you notices and information regarding the Services via email or regular mail, in Company’s discretion, to the most current email address and postal address provided by you, and you hereby authorize Company to send you notices and information via email and regular mail. You agree to promptly update your account information whenever your personal or billing information changes (including, for example, your name, address, email address, postal address, telephone number, and credit/debit card number and expiration date or other payment method information). The Site may also provide notices of changes to this TOS or other matters by displaying such notices or by providing links to such notices. Without limitation, you agree that a printed version of this TOS and of any notice given in electronic form shall be admissible in arbitration, judicial or administrative proceedings based upon or relating to this TOS to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You agree that any notices sent to you to the most current email address or postal address provided by you will be deemed sufficient notice and you waive any rights to assert failure of notice.
25. Assignment. You may not assign, transfer or sublicense any or all of your rights or obligations under this TOS without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this TOS, or relating to the Services or Equipment, without restriction.
26. No Third Party Beneficiaries. Nothing in this TOS will be construed to confer upon any third party other than the parties hereto any third party beneficiary right of action whatsoever.
27. English Language; Captions and Headings. Only the most current English language version of this TOS is binding. In the event of inconsistency or discrepancy between the English language version and any other language version of this TOS, the most current English language version shall control and prevail. Any caption, heading or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
28. Contact Us. If you have any questions regarding the meaning of application of this TOS, or any questions, comments or feedback about the Services, please direct such questions to firstname.lastname@example.org. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us. You understand and agree that we may freely use any comments, questions, ideas, suggestions and feedback regarding the Services provided by you.