Voximplant Terms of Service
Voximplant Master Subscription Agreement
Updated: June 1, 2021
Please read these Terms of Service (“Agreement”) fully and carefully before using the Website and the Service (as described below). This Agreement sets forth the legally binding terms and conditions for use of the Website and the Service. BY REGISTERING FOR AND/OR USING THE SERVICE IN ANY MANNER, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT AND ALL OTHER OPERATING RULES, POLICIES AND PROCEDURES REFERENCED HEREIN, EACH OF WHICH IS INCORPORATED HEREIN BY THIS REFERENCE AND EACH OF WHICH MAY BE UPDATED FROM TIME TO TIME AS SET FORTH BELOW, TO THE EXCLUSION OF ALL OTHER TERMS. You may not use the Service if you do not unconditionally accept this Agreement. If you are accepting on behalf of an organization, you represent and warrant that you have the authority to do so; however, if your organization has entered into a separate contract with Voximplant covering its use of the Services, then that contract shall govern instead.
In these Terms of Service (“Agreement”), “Client” shall refer to you, unless you are accepting on behalf of a company in which case “Client” shall mean that organization; and both “Voximplant” and “Provider” shall refer to Voximplant Inc., a Delaware corporation d/b/a Voximplant with an address at 594 Broadway, Suite 701, New York City, New York 10012, United States of America. Provider and Client are each referred to in this Agreement as a “Party” and collectively as the “Parties.” In consideration of the terms and covenants set forth herein, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows.
Additional Terms and Policies. This Agreement incorporates the following additional policies:
- Provider Security Policy, https://voximplant.com/legal/information-security;
- Service Level Agreement, https://voximplant.com/legal/service-level-agreement.
You agree to incorporate the requirements of Voximplant’s Terms of Service and policies into your own products and policies and ensure that your customers adhere to our Terms of Service and policies. If you are accepting these Terms of Service on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these Terms of Service; (ii) you have read and understand the Terms of Service; and (iii) you agree, on behalf of the party that you represent, to these Terms of Service. If you do not have the legal authority to bind your employer or the applicable entity, please do not sign up for the Service (do not click on the “Sign Up” button).
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of an entity.
“Client Data” means any data that is provided by Client, an Affiliate of Client, User or Personnel (in each case, as such terms are defined herein) to Provider (including through the Service) or Processed (as defined herein) by Provider on behalf of Client, an Affiliate, User or Personnel, including any Personal Data.
“Client Systems” means any software, hardware, or systems of Client or its Affiliates or contractors.
“Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data (in each case, as defined below).
“Data Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data (as defined below) on behalf of the Controller (as defined above).
“Documentation” means any documentation related to the Service made available to Client or an Affiliate of Client (which will include any documentation made available by Provider to similarly situated customers).
“Fees” means the prices paid by Client for access to, and use of, the Service.
“Order Form” means each order form referencing this Agreement. Each Order Form will be incorporated into this Agreement upon mutual execution by the parties.
“Output” means any reports or other output of the Service.
“Personal Data” means any information that pertains to Personnel or Users, including but not limited to: (a) first and last name; (b) home or other physical address; (c) telephone number; (d) email address or online identifier associated with an individual; (e) information about an individual’s computer or mobile device or technology usage, including (for example) IP address, MAC address, unique device identifiers, unique identifiers set in cookies and any information passively captured about a person’s online activities, browsing, application or hotspot usage or device location; (f) social security number, passport number, driver’s license number, or similar identifier; (g) credit or debit card number; (h) employment, financial or health information; (i) “personal data” as defined by European law; and (j) any other information relating to an identified or identifiable individual that is combined with any of the foregoing. For the purposes of this Agreement, information about an individual in the business context is considered Personal Data. For example, business contact information is considered Personal Data.
“Personnel” means past and present employees, consultants, advisors, contractors and interns of Client or any Client Affiliate, including any candidates for any of the foregoing positions (whether or not hired).
“Process” or “Processing” means to collect, access, use, store, destroy, reproduce, disclose or otherwise handle or process data or information.
“Service” means the hosted or cloud-based solution provided to Client and/or Client Affiliates by or on behalf of Provider, as described in the applicable Order Form.
“Taxes” means any and all applicable local, federal, state and foreign taxes, fees, charges, telecommunications provider surcharges, withholding taxes or other similar taxes, including, but not limited to, VAT, GST, sales tax and/or use tax.
“Third Party Service Provider” means any of Provider’s contractors, subcontractors, authorized agents, vendors and third-party service providers granted access to Client Data or Client Systems in connection with this Agreement.
“User” means a past, present or prospective end-user or customer of products and services offered by Client or a Client Affiliate, whether such end-user or customer is an individual or entity.
“Website” means Provider’s official website with the following address: http://www.voximplant.com.
2. Provision of Service.
2.1. Subscription Term. Client will receive a subscription to the Service for the term specified in each Order Form (each, a “Subscription Term”). Client is not obligated to renew any Subscription Term, but provided that Client has not breached the Agreement, Provider will offer renewals to Client so long as it makes the Service generally available. All renewal Subscription Terms will be subject to this Agreement and shall be subject to Provider’s then current standard fees.
2.2. Access to Service. During each Subscription Term, Provider will provide the Service in accordance with this Agreement (including the descriptions in each Order Form and the Service Level Agreement, as defined below) and Client may access and use the Service for its business purposes worldwide.
2.3. General Restrictions.
- Client (including its Affiliates and contractors, if any) will not: (i) use the Service except as permitted hereunder; (ii) decompile, disassemble, or reverse engineer the underlying software to the Service (unless this restriction is not permitted under applicable law); (iii) sell, rent, lease or use the Service for time sharing purposes; or (iv) remove any copyright or proprietary notices contained in the Service.
- Client accepts that the Service is provided for professional use only, and Client agrees that its use of the Service shall not include: (i) sending unsolicited marketing messages or broadcasts (i.e., spam); (ii) sending any prohibited calls to life-line services, such as hospitals, fire, police, 911, or utility-related telephone numbers; (iii) using strings of numbers, as it is unlawful to engage two or more lines of a multi-line business; (iv) harvesting, or otherwise collecting, information about others without their consent; (v) misleading others as to the identity of the sender of Client’s messages or broadcasts by creating a false identity, impersonating the identity of someone/something else, or by providing contact details that do not belong to Client; (vi) transmitting, associating, or publishing any unlawful, racist, harassing, defamatory, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic, or otherwise objectionable material of any kind; (vii) transmitting any material that may infringe upon the intellectual property rights of third parties, including trademarks, copyrights, and right of publicity; (viii) transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots, or any other harmful or deleterious programs; (ix) interfering with, or disrupting, networks connected to the Service or violating the regulations, policies, or procedures of such networks; (x) interfering with, or disrupting, networks connected to the Service or violating the regulations, policies, or procedures of such networks; (xi) interfering with another's use and enjoyment of the Service; (xii) engaging in any other activity that Provider reasonably believes could subject it (including, without limitation, its directors, officers, employees, contractors, partners, agents and other representatives) to criminal or civil liability.
- Client agrees to provide legal contact information in any outbound campaign within any voice broadcast’s initial greeting message. Client also agrees to provide its own sound files for all outbound voice broadcast campaigns. Provider will not be liable for any misuse of the Service by Client. Provider is not responsible for the views and opinions contained in any of Client’s messages or broadcasts. Client further agrees that Provider is, under no circumstances, responsible for the contents and/or accuracy of Client’s messages or broadcasts and that Provider will only transmit them on a basis of good faith that Client uses the Service in accordance with this Agreement.
2.4. Service Level Agreement. The Service is subject to the availability, service credit and other terms set forth in “SLA”.
2.5. Technical Support. Unless otherwise specified in the applicable Order Form, Provider will provide Client, at no additional charge, with technical support services for the Service on the same basis as it provides such services to similarly-situated customers.
2.6. Setup Services. Provider will perform implementation or customization services for the Service (“Setup Services”) as specified in an SOW. “SOW” means either (a) a description of such services in an Order Form or (b) a mutually executed statement of work that references this Agreement. Except as set forth in the relevant SOW, Client may modify or terminate any SOW with ten (10) days’ written notice to Provider. If Client terminates a SOW other than for Provider’s material breach, Client will pay Provider the fees due under the SOW for Setup Services satisfactorily completed in accordance with the SOW as of the effective date of termination.
2.7. Subcontractors. To the extent any Third Party Service Providers are authorized by Client, or to the extent any Third Party Service Providers have access to Client Data and/or Client Systems, Provider will (a) enter into a written agreement or Terms of Service that impose, at a minimum, at least materially-similar data privacy, protection and information security requirements on any such Third Party Service Providers as are imposed on Provider under this Agreement; (b) remain responsible for any such Third Party Service Provider’s actions with respect to the Client Data and/or Client Systems.
2.8. Disaster Recovery Plan. Provider will have in place a disaster recovery plan for business continuity and infrastructure redundancy (“DRP”) in the event of any event or circumstance that would reasonably be anticipated to materially and adversely affect the Service or continued operation of Provider as required under this Agreement (a “Disaster”). During the Term, Provider will (a) provide a copy of the DRP to Client upon written request and (b) periodically update and test the operability of the DRP. In event of any Disaster, Provider will implement the DRP and otherwise use all reasonable efforts to reinstate affected Service as quickly as possible.
2.9. Orders by Client Affiliates. Client’s Affiliates may execute their own Order Forms with Provider (“Affiliate Order Form”). Each Affiliate Order Form will be deemed to be a separate agreement between Client’s applicable Affiliate and Provider that incorporates all of the terms and conditions of this Agreement, other than this Section 2.9, as if such Affiliate were “Client” (“Affiliate Agreement”).
2.10. Service Availability. Client acknowledges and agrees that:
- The Service may or may not be available in all countries or regions of the world, may be available under different trademarks in different countries, and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries.
- Provider transmits messages initiated by Client or sent to Client by others through different routes, and the level of reliability and support for special features varies according to the route. Client is responsible for obtaining and maintaining all computer hardware, software, and communications equipment needed to access the Service and for paying all access charges (e.g., Internet Service Provider, telecommunications) incurred while using the Service.
- Provider only provides that the Service is processed correctly and further transmitted by Provider to the applicable network. Provider is not responsible for the final delivery of any communication initiated through the Service, as this is out of Provider’s control and is the responsibility of downstream communications carriers.
2.11. Provider transmits and receives text messages and voice broadcasts via other major telecommunications companies and mobile network operators, and thus Provider’ influence over the timing of the transmission of messages and broadcasts is only within the technical constraints imposed upon Provider. While Provider shall use commercially-reasonable efforts to transmit messages and broadcasts to the applicable network for final delivery to the designated recipients as fast as possible, Provider cannot commit to, and does not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transmission of messages and broadcasts across the public switched telephone network and/or Internet. Communications carriers assign text messages and voice broadcasts with a default lifetime and any message or broadcast that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. Provider is not liable for any loss incurred by the failure of a message or broadcast to be delivered, and Client acknowledges that damages for financial or other loss resulting from delivery failure cannot be claimed from Provider for any such non-deliveries. Furthermore, to the full extent permitted by law, Client agrees that message and broadcast contents are deemed to have zero value.
2.12. Downtime; Security. Client’s access to and use of the Service may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Service for any reason, including as a result of power outages, system failures or other interruptions; and Provider shall also be entitled, without any liability to Client, to suspend access to any portion or all of the Service at any time (a) for scheduled downtime to permit Provider to conduct maintenance or make modifications to the Service; (b) in the event of a denial of service attack or other attack on the Service or other event that Provider determines, in its sole discretion, may create a risk to the Service, to Client or to any other customers if the Service were not suspended; or (c) in the event that Provider determines that any of the Services are prohibited by applicable law or Provider otherwise determines that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). Provider shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Client may incur as a result of any Service Suspension. To the extent Provider is able, Provider will endeavor to provide Client notice of any Service Suspension and post updates regarding resumption of Services following any such suspension, but shall have no liability for the manner in which Provider may do so or if Provider fails to do so.
2.13. No Intentional Calls to Non-RBOC Areas. Client agrees that it will not purposely route calls to high-cost non-RBOC (Regional Bell Operating Company) areas for origination or termination of telecommunications traffic on or through the Service. Calls may be monitored and reported upon each billing cycle to ensure sound traffic patterns. Provider will address any excessive routing of high-cost calls by a Customer, and commercially reasonable penalties may be assessed to recover excess charges from Provider’s VoIP termination companies.
3. Provider Software; Intellectual Property.
3.1. To the extent Client receives Provider Software, this Section 3 applies. “Provider Software” means any software, agents, SDKs or other code made available by Provider to be used in connection with the Service, including any updates, upgrades or new releases. Except as otherwise specified, references to the “Service” include all Provider Software. Provider hereby grants Client a non-exclusive, royalty-free, non-sublicensable, terminable worldwide right to use, copy, distribute, publicly perform and display the Provider Software as reasonably necessary for Client’s use of the Service, which may include incorporating such Provider Software into Client’s relevant websites, products, services or other Client Systems. Provider grants all licenses under all of its applicable intellectual property rights necessary for Client to exercise its rights hereunder.
3.2. All materials on the Website, including, without limitation, the Website’s design, graphics, text, sounds, pictures, and other files and the selection and arrangement thereof (collectively, “Materials”), are the property of Voximplant and/or its licensors, and are subject to and protected by United States and international copyright and other intellectual property laws and rights. All rights to Materials not expressly granted in these Terms of Service are reserved to their respective copyright owners. The trademarks, service marks, trade names, trade dress and logos (collectively, “Marks”) contained or described at the Website are the sole property of Voximplant and/or its licensors. All rights to Marks not expressly granted in these Terms of Service reserved to their respective copyright owners and therefore, such Marks may not be copied, altered or otherwise used, in whole or in part, without the prior written authorization of Voximplant and/or its licensors, as applicable. In addition, all page headers, custom graphics, button icons and scripts are the property of Voximplant and may not be copied, imitated or otherwise used, in whole or in part, without the prior written authorization of Voximplant. Voximplant reserves the right to enforce its intellectual property rights to the fullest extent of the law.
4. Representations and Warranties.
4.1. Representations and Warranties. Each party represents and warrants to the other that it has the full right and power to enter into and perform under this Agreement, without any third-party consents or conflicts with any other agreement. Provider further represents and warrants that: (a) it will provide the Service in accordance with this Agreement (including the Service Level Agreement) and in material conformance with the Documentation and the descriptions in the applicable Order Form and any applicable SOW (the “Performance Warranty”); (b) the Service and Provider’s performance hereunder will comply at all times with all applicable laws, rules, regulations, and orders, including those relating to privacy and data protection (“Laws”); (c) the Service and any Output will not, to the best of Provider’s knowledge, contain or introduce into any Client Systems any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code, and use of the Service and any Output will not subject Client to any third party terms or conditions; (d) the Service does not and will not infringe, violate, or misappropriate any U.S.-registered patent, copyright or trademark; and (e) there are no pending or threatened claims pertaining to the Service or that would otherwise prevent Provider from fulfilling its obligations under the Agreement. Without limiting the foregoing, with respect to any Provider Software, Provider represents and warrants that except for any license keys or authorization codes disclosed to Client in the Documentation, the Provider Software will not contain any software disabling devices, time-out devices, counter devices or devices intended to collect data regarding usage of the Provider Software.
4.2. Remedy of Defects. If Client reports a breach of the Performance Warranty, Provider will, without charge, use commercially reasonable efforts to correct or repair the Service so that it conforms to the Performance Warranty. If Provider is unable to make the Service operate as warranted within ten (10) days after Client’s notice, then either party may terminate this Agreement and/or the applicable Order Form and Provider will refund to Client any prepaid fees for the terminated period and for the period in which the Service did not meet the warranty.
4.3. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY SOW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4.4. Client Representations and Warranties. Client represents and warrants that it will not use the Services or its App in a manner that violates these Terms of Service, any applicable law or third-party rights.
Client also acknowledges and understands that Provider does not currently allow you to access any 911 or similar emergency services (no traditional 911, E911, 112 in the European Union or similar access to emergency services) unless (i) such services are expressly preapproved in writing, and (ii) Client uses Emergency Services strictly in accordance with the “Emergency Services Terms and Conditions” or enters such other agreement as Provider deems appropriate. The Service is not intended to replace any primary phone service, such as a traditional landline or mobile phone, that may be used to contact emergency services. The Service is not intended to replace any primary phone service, such as a traditional landline or mobile phone, that may be used to contact emergency services.
Client represents and warrants: (i) that Client is solely responsible for the development, operation, maintenance and legality of its App and Content, including without limitation, the accuracy, appropriateness and completeness of its Content; (ii) that Client has the necessary rights and licenses, consents, permissions, waivers and releases to develop, use, display and/or sell its App and its Content; (iii) that neither its App nor Content (a) violates, misappropriates or infringes any rights of ours or any third party, (b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that neither its App nor Content contains any harmful components; and (v) that Provider is not responsible to Client for indemnification or directly to any of its customers or clients if Client offers services (including its App(s)) based on the Service. Client also represents and warrants that Client is responsible for any charges incurred by its use of the App, no matter whether the App acted in error.
Client further agrees that it will have use of the telephone number(s) that are provided as part of the Service only until the end of the Term. Client understands and agrees that Provider is the customer of record for all telephone number(s) provided as part of the Service and, therefore, Provider has certain rights with respect to porting of the number(s) (“Porting” is causing or attempting to cause number(s) to be transferred, switched, or otherwise moved to any other service provider, telephone carrier, or any other person or entity). As the customer of record for the telephone number(s), Provider owns the telephone number(s) assigned to Client. Provider reserves the right to refuse to port any telephone number(s) in its sole discretion without any liability whatsoever.
If Client “ported in” any telephone number(s) in connection with its use of Service or Provider assigned you one or more toll free telephone numbers, Client may be entitled to “port out” a telephone number under non-U.S. law. Subject to applicable law, Client may “port out” such number(s) only if it satisfies the following requirements: (1) Client provides written notice to Provider of its intent to “port out” such number(s) no later than 30 days after providing Provider notice of its intent to terminate its use of the Service (the “Porting Notice Period”); (2) Client’s new telephone carrier provides Provider’s telephone carrier a duly executed porting request prior to the expiration of the Porting Notice Period; (3) Client has paid Provider for the Service provided to Client prior to the date Client provides Provider notice of its intent to terminate its use of the Service; and (4) Client has paid Provider any administrative fees associated with processing the port. Client hereby authorizes Provider to charge its account in the applicable amount for the administrative fees in subsection (4) above or to otherwise arrange to make this payment to Provider within the Porting Notice Period. Regardless of when the port out is complete, Client will continue to be responsible to pay all applicable account fees with respect to the telephone numbers until Client formally terminates use of the Services pursuant to these Terms of Service. If Client fails to satisfy any of the foregoing requirements, Provider remains the customer of record over the number(s) and Client is expressly prohibited from causing or attempting to cause such number(s) to be transferred to any other service provider, telephone carrier or any other person or entity. Provider also retains the right to reclaim the number(s) from Client after the number(s) are ported out in contravention with these requirements and authorizes Provider to charge Client’s account or take any other measures to collect the costs associated with causing the number(s) to be returned to Provider. Client understands and agrees that even if it satisfies the requirements set forth in this section, technical or procedural difficulties or interruptions may occur when attempting to port out these numbers and such difficulties or interruptions may prevent your new carrier from porting the numbers. Provider is not responsible for such technical or procedural difficulties or interruptions.
Client understands and agrees that following the termination of these Terms of Service for any reason, Client’s number(s) may be re-assigned to another customer. Client agrees that Provider will not be liable for damages (including, without limitation, consequential or special damages) arising out of any such re-assignment and Client hereby waives any claims with respect to any such re-assignment, whether based on contractual, tort or other grounds, even if Provider has been advised of the possibility of damages.
Client understands and agrees that Provider may need to change the telephone number(s) assigned to Client. Client agrees that Provider will not be liable for damages (including, without limitation, consequential or special damages) arising out of any such change in the telephone number(s) assigned to Client and Client hereby waives any claims with respect to any such change, whether based on contractual, tort or other grounds, even if Provider has been advised of the possibility of damages.
Client represents and warrants that it has read and understood these Terms of Service, and Client agrees to abide by all of their terms, where applicable, including as incorporated by reference herein. Client further agrees to abide by all applicable local, state, national, foreign and international laws and regulations and that you will be solely responsible for all acts or omissions that occur under Client’s account or password, including the content of Client’s transmissions through the Service.
Client represents and warrants that without Provider’s express written consent Client will not use, and will not authorize any third party to use, any Public Software (as defined below) in connection with the Service in any manner that requires, pursuant to the license applicable to such Public Software, that the Service be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients. “Public Software” means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (ii) The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the Apache License.
5. Compliance with Laws.
Client agrees to use the Service in accordance with all applicable guidelines, as well as all laws (including international, foreign, federal and state laws) that the Service may be subject to. In order to confirm Client’s compliance with such laws, so as to ensure that Provider itself is complying with national and international laws, Provider may, from time to time, periodically check the messages and broadcasts that Client sends.
Client represents and warrants that the owners of the phone numbers that Client initiates messages or broadcasts to, or through, the Service, have consented or otherwise opted-in to the receipt of such messages and broadcasts as required by any applicable law or regulation. Client agrees that Client will include clear opt-out/unsubscribe information in Client’s messages or broadcasts when required to do so by any applicable law or regulation, and that Client will otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to Client’s messages.
Client further agrees that any individuals requesting Do-Not-Call (“DNC”) status shall be immediately placed on Client’s DNC accounts list and Client further agrees that Client will not initiate any further messages or broadcasts to any individuals after they request DNC status.
Client agrees to familiarize itself with and abide by all applicable local, state, national, foreign and international laws and regulations pertaining to Client’s use of the Service. Client is solely responsible for all acts or omissions that occur under Client’s account, including, without limitation, the content of the messages and broadcasts that Client create and initiate through the Service, the Telephone Consumer Protection Act (TCPA), Federal Trade Commission and Federal Communications Commission rules, the National DNC list registry rules, and various state laws, rules, and regulations place restrictions on certain types of phone calls and text messages. Without limiting the foregoing, Client agrees to familiarize itself with the legal requirements triggered by any messages, calls, broadcasts, and campaigns transmitted through the Service by visiting the following websites:
- Federal Trade Commission, http://www.ftc.gov
- Federal Communications Commission, http://www.fcc.gov
- National Do Not Call (DNC) Registry, http://www.donotcall.gov
Provider is in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy, and it is not intended to replace Client’s responsibility to familiarize itself with and abide by the legal requirements pertaining to Client’s messages, broadcasts, and campaigns prior to using the Service. Client shall be ultimately responsible to make Client’s own informed decisions regarding Client’s messages, broadcasts, and campaigns.
6. Payment; Taxes.
6.1. Payment. Client will pay the fees specified in the applicable Order Form or SOW. All payments are due in U.S. Dollars within fifteen (15) days of Client’s receipt of an invoice which is not disputed in good faith by Client. Client may withhold amounts disputed in good faith while the parties attempt to resolve the dispute, and this will not constitute a breach. All reimbursable expenses shall be set forth in a SOW or otherwise pre-approved in writing by Client.
6.2. Taxes. In case in accordance with the legislation of a foreign jurisdiction Client has to withhold any taxes or duties withheld in such foreign jurisdiction from Provider as the recipient of income, including, in particular, VAT and income (profit) tax withheld at source and any other similar taxes that may replace or complement the existing ones, the amount to be paid to the Licensor shall be increased in such a manner so that the net amount received by Provider after withholding or payment of the said taxes would be equal to the amount indicated in an Order Form, SOW or an invoice hereto.
6.3. Unless otherwise stated, all Fees exclude any applicable Taxes, including any related interest and/or penalties, and other government duties, as well as any other costs, such as transaction costs or bank transfer fees. In the event that Taxes are (or will be) applicable to the Service set out in this Agreement, such Taxes shall be added to the Fees. Client shall be responsible for and pay all Taxes as well as any other costs imposed on or with respect to the Services that are subject to this Agreement.
6.4. Taxes shall be deducted from Client's account at the end of each calendar month or by close of business at next working day the latest. Total amount of Taxes due will be calculated based on Client’s billing address and type of Service being consumed during a reference month. Client shall receive a breakdown report with applicable Taxes review on a monthly basis.
6.5. To assure that there are sufficient funds to cover tax obligations due, Provider may reserve a certain amount for future Taxes payment purposesafter each transaction. The amount to be reserved shall be calculated based on the applicable tax rate at the place of Client’s official registration (tax residency) and transaction type.
6.6. Provider shall credit back Client’s account with the difference between a final amount of Taxes due and a reserved amount if a reserved amount surpasses Client’s actual tax liabilities and keep reserved an amount equal to such taxes payable only.
7. Term and Termination.
7.1. Term. This Agreement starts on the Effective Date and will continue until expiration or termination of all Subscription Terms (the “Term”) unless earlier terminated as provided herein.
7.2. Termination. Client may terminate this Agreement, SOW, and/or any Order Form at any time for convenience by giving Provider sixty (60) days’ written notice; provided, however, that unless otherwise agreed in writing between the parties, the obligations under any outstanding SOW and/or Order Form shall continue until the end of the term set forth in such SOW and/or Order Form. Provider may also terminate this Agreement (including all Order Forms and SOWs) for any reason (e.g., terminate based on Client’s failure to pay fees due hereunder (which are not disputed in good faith)) or no reason at all. Provider may immediately suspend Client’s right and license to use any or all Services or terminate this Agreement (including all Order Forms and SOWs) in its entirety for any reason or for no reason, at Provider’s discretion, without any liability whatsoever.
7.3. Effect of Termination. Upon any termination or expiration of this Agreement: (a) all provisions will survive except Section 2.2, 4.1 and Client’s right to access and use the Service (b) each party (as recipient) will return the other party’s Confidential Information or securely destroy it and certify destruction.
7.4. Updates to Terms of Service. Integration. Provider may, in its sole discretion, modify the Terms of Service with or without notice to Client. The “Last Updated” date at the top the Terms of Service will indicate when the latest modifications were made. By clicking on the “Sign Up” button or continuing to access and use the Website or the Service after the Terms of Service are modified, Client agrees to such modifications. Therefore, Client should review the Terms of Service prior to each use of Service.
In addition, when using the Service, Client shall be subject to any posted guidelines or policies applicable to such services or features or that may be posted from time to time (“Additional Terms and Policies”). All such Additional Terms and Policies are hereby incorporated by reference into these Terms of Service.
Unless explicitly stated otherwise, any new features provided by Provider that augment or enhance the Service shall be subject to these Terms of Service.
7.5. Furthermore, Provider may suspend Client’s right and license to use the Service or terminate this Agreement (including all Order Forms and SOWs) for cause effective as set forth below:
Immediately upon Provider’s notice to Client if (i) Client violates any provision of these Terms of Service or Provider has reason to believe that Client has violated these Terms of Service, (ii) there is an unusual spike or increase in Client’s use of the Service for which there is reason to believe such traffic or use is fraudulent and/or negatively impacting the operating capability of the Service; (iii) Provider determines, in its sole discretion, that its provision of the Service to Client is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (iv) Client becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding, or makes an assignment for the benefit of creditors; and
Immediately and without notice if Client is in default of any payment obligation with respect to the Service or if any payment mechanism Client has provided to Provider is invalid or charges are refused for such payment mechanism.
Upon Provider’s suspension of Client’s use of any Services, in whole or in part, for any reason: (i) fees will continue to accrue for the Service that is still in use by Client; (ii) Client remains liable for all fees, charges and any other obligations Client has incurred through the date of suspension with respect to the Service; and (iii) all of Client’s rights with respect to the Service shall be terminated during the period of the suspension.
Upon termination of these Terms of Service for any reason: (i) Client remains liable for all fees, charges and any other obligations Client has incurred through the date of termination with respect to the Service; and (ii) all of Client’s rights under these Terms of Service shall immediately terminate.
Notwithstanding such termination or suspension, Client will continue to be subject to all provisions which by their nature are intended to survive including, without limitation, the “Definitions,” “Provider Software; Intellectual Property,” “Client Representations and Warranties,” “Payment; Taxes,” “Term and Termination,” “Disclaimers and Limitations of Liability, “Confidential Information,” “Indemnification,” “Miscellaneous” sections of these Terms of Service.
Except as otherwise expressly stated in these Terms of Service, you agree that Voximplant shall not be liable to you or to any third party for any modification, suspension or discontinuation of the Website, the Service or the Voximplant Cloud.
8. Independent Contractor. Insurance. Provider is an independent contractor of Client and not an employee, partner, agent or joint venture partner. Provider is solely responsible and liable for its own taxes, insurance premiums and employment benefits. No Provider employee is eligible for any benefits (including equity compensation, health insurance or retirement benefits) provided by Client to its employees. Provider will not make any commitment binding on Client or represent that it has authority to do so. Provider will maintain general commercial liability, workers compensation, employer’s liability and any other insurance required by law or reasonably appropriate to operation of its business as determined in Provider’s discretion.
9. Client Data and Client Systems
9.2. Security Program. Provider represents and warrants that it has implemented and shall maintain a commercially-reasonable information security program (which shall include policies and processes) designed to ensure the security, processing, integrity, confidentiality and privacy of the systems storing and processing Client Data. Without limiting the foregoing, Provider will comply with its Provider Security Policy attached, which is deemed included in this Section 9.
9.3. Notification of Security Breach. In the event of a Security Breach (as defined below) of Provider impacting the Service, Provider will, to the extent permissible by applicable Laws notify the Client Security POC listed in the Order Form as soon as reasonably possible after becoming aware of such Breach. To the extent permissible by applicable Laws, such notice will (i) describe the breach, the status of Provider’s investigation, and, if applicable, the potential number of persons affected, and (ii) include a detailed description of the incident, the type of Personal Data that was the subject of the Security Breach, and any other information that Client may reasonably request concerning users of the Service or the details of the Security Breach. Provider will not communicate with any third party regarding any Security Breach except as (a) required by applicable law (with prompt written notice to Client); or (b) specified by Client. Provider agrees to act promptly, at its own expense to investigate the incident and to identify, prevent and mitigate the effects of any such Security Breach, and to carry out any recovery necessary, in its reasonable judgement, to remedy the impact, including providing notification to all individuals affected by such Security Breach if Provider is obligated to do so under applicable law (with prompt written notice to Client). Client may communicate with Provider regarding any such Security Breach as specified in the applicable Order Form. For the purposes of this sub-section, the term “Security Breach” means a reasonably suspected or confirmed exposure that could lead to unauthorized or inappropriate collection, use, access, disclosure or modification of any data that is provided (either directly or indirectly) by or through a user of the Service. In the event of a Security Breach Provider will reasonably cooperate with Client to the extent permissible by applicable Laws so that Client may determine its legal obligations with respect to notifying its Users, Personnel, impacted individuals, regulators, and/or law enforcement, if any. Provider shall provide Client any documentation reasonably necessary to make such communication(s).
9.4. Handling of International Data Transfers. The parties agree that Data Processing Agreement shall apply if Provider will Process Personal Data about individuals located in the foreign countries that Client provides to Provider through the Service (for international data transfers of Personal Data about individuals located in the European Union Standard Contractual Clauses attached to Data Processing Agreement shall additionally apply).
Provider agrees that it will operate as a Data Processor for Client and will only Process such Personal Data as necessary for the limited and specified purposes identified in this Agreement and/or any related SOW or Order Form.
Provider represents and warrants that that it will maintain its Privacy Shield certification during the term of the Agreement.
9.5. Access to Client Systems and Facilities. Provider may access any Client Systems or Client facilities (to the extent permitted by Client in its discretion) only to provide the Service. Any access is limited to the time periods and Personnel specified by Client and is subject to Client’s security and other policies. Other access is expressly prohibited.
9.6. Deletion and Return of Client Data. Upon Client’s request at any time, unless prohibited by Laws, Provider will provide all information, reasonable cooperation and assistance to Client to orderly return or transfer, or securely delete or destroy (as applicable) any or all Client Data and Client Confidential Information in its possession or control, including without limitation specific Client Data or Client Confidential Information as may be requested by Client. In the event Client requests that Provider delete or destroy Client Data and Client Confidential Information, Provider shall provide a written certification regarding such deletion or destruction upon request by Client. In addition, during the Term and for three (3) months thereafter, at Client’s request, Provider will provide a file of all Client Data in a standard format requested by Client.
9.7. Rights to Client Data and Output. Client owns all right, title and interest (including all intellectual property rights) in and to the Client Data. Client will also own all Output, except to the extent incorporating any templates or pre-existing materials of Provider, and Client may use the Output for any purpose. Provider will handle Output according to the same terms and conditions herein as for Client Data.
9.8. Data Collection. Provider and the Service will not collect any data or other information from Users or Personnel, any of Client’s websites, products, services or other Client Systems, except as reasonably necessary to provide the Service or as otherwise reasonably contemplated by the Agreement (including, without limitation, the applicable Order Form or SOW).
9.9. Third Party Sites. Links on the Website or via the Service to third party websites are provided only as a convenience to Client. If Client uses these links, Client will leave the Website and potentially the Service. Provider does not control or endorse any such third-party websites. Client agrees that Provider (together with its parent, subsidiaries, affiliates, and their respective directors, stockholders, employees, consultants, affiliates, successors, assigns, agents and other representatives), will not be responsible or liable for any content, goods or services provided on or through these outside websites or for Client’s use or inability to use such websites. Client will use these links at its own risk. Client is advised that other websites on the Internet, including third party websites linked from this Website or the Service, might contain material or information: that some people may find offensive or inappropriate; that is inaccurate, untrue, misleading or deceptive; or that is defamatory, libelous, infringing of others’ rights or otherwise unlawful. Provider expressly disclaims any responsibility for the content, legality, decency or accuracy of any information, and for any products and services, that appear on any third-party website.
10. Records and Audit. Provider will maintain (for three (3) years after this Agreement ends) complete and accurate records relating to its provision of the Service, including fees charged hereunder and its compliance with Section 9 (Client Data and Client Systems). Client or any third party designated by Client may audit such records during regular business hours, with reasonable advance written notice and subject to reasonable confidentiality procedures. Client may not audit Provider more than once annually unless (a) Provider has experienced a Security Breach within the prior twelve (12) months; (b) an audit reveals noncompliance; or (c) is needed to satisfy Client’s own legal compliance obligations or (if applicable) obligations as a publicly-traded company. In addition, upon request by Client, Provider will provide to Client, without charge, copies of any third-party audit or compliance reports issued with respect to Provider or the Service.
11. Disclaimers and Limitations of Liability. CLIENT’S USE OF THE WEBSITE AND THE SERVICE IS AT CLIENT’S SOLE RISK. THE WEBSITE, THE SERVICE AND THE MATERIALS CONTAINED HEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, PROVIDER OR ITS AFFILIATE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER MAKES NO WARRANTY THAT: (I) THE WEBSITE OR THE SERVICE WILL MEET CLIENT’S REQUIREMENTS; (II) THE WEBSITE AND THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE WEBSITE OR THE SERVICE WILL MEET CLIENT’S EXPECTATIONS OR NEEDS; AND (V) ANY ERRORS IN THE WEBSITE OR THE SERVICE WILL BE CORRECTED.
PROVIDER AND ITS AFFILIATES SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE WEBSITE OR THE SERVICE, INCLUDING ANY LIABILITY: (I) AS A PUBLISHER OF INFORMATION; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION; (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF YOUR TRANSMISSIONS OR DATA; (IV) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; OR (V) FOR ANY OTHER MATTER RELATING TO THIS WEBSITE, THE SERVICE OR ANY THIRD PARTY WEBSITE. TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PROVIDER AND CLIENT. THE PRODUCTS, INFORMATION AND SERVICES OFFERED ON AND THROUGH THE WEBSITE AND SERVICE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF PROVIDER AND ITS AFFILIATES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR ANY PRODUCT, INFORMATION OR SERVICE PURCHASED BY YOU FROM PROVIDER VIA THIS WEBSITE OR THE SERVICE.
THE WEBSITE AND THE SERVICE DOES NOT AND IS NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES UNLESS OTHERWISE ALLOWED AND AGREED IN THE EMERGENCY SERVICES TERMS AND CONDITIONS. “EMERGENCY SERVICES SHALL MEAN SERVICES THAT ALLOW A USER TO CONNECT WITH EMERGENCY SERVICES PERSONNEL OR PUBLIC SAFETY ANSWERING POINTS SUCH AS 911 OR E911 SERVICES PROVIDER AND ITS AFFILIATES SHALL NOT BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO YOUR INABILITY (OR YOUR USERS’ INABILITY) TO USE THE SERVICE TO CONTACT ANY EMERGENCY SERVICES, OR CLIENT’S FAILURE (OR CLIENT’S USERS’ FAILURE) TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES. ) ”
12. Confidential Information. “Confidential Information” means information disclosed by one party to the other that is marked as confidential or proprietary or that ought reasonably to be understood as confidential or proprietary. All Client Data and Output is deemed Client’s Confidential Information. Confidential Information excludes information that the recipient already lawfully knew (as demonstrated by records in existence at the time of disclosure), that becomes public through no fault of the recipient, that was independently developed by the recipient (as demonstrated by records in existence at the time of disclosure) or that was rightfully obtained by recipient from a third party. The recipient agrees not to disclose Confidential Information except to its Affiliates, employees and agents who need to know it and have agreed in writing to keep it confidential. Only those parties may use the Confidential Information, and only to exercise the recipient’s rights and fulfill its obligations under this Agreement, while using at least a reasonable degree of care to protect it. The recipient may also disclose Confidential Information to the extent required by law after providing reasonable notice (to the extent permissible by Applicable Laws) to the discloser and cooperating (at the disclosing party’s sole cost and expense) to obtain confidential treatment. Unauthorized disclosure of Confidential Information may cause harm not compensable by damages, and the disclosing party may seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information.
13. Mutual Use of Logos and Trademarks. Each party hereby grants the other party, the non-exclusive, non-transferrable, worldwide, royalty-free right and license to use and display the granting party's officially designated trademark and logo on such party's website and in other print or electronic publications or promotions. Any such use and display shall be effected in accordance with any and all commercially-reasonable trademark usage and display guidelines furnished by the granting party. Upon the granting party’s request, the other party shall provide samples of the other party’s use of the granting party’s marks. Should the granting party reasonably find objectionable any use of its marks by the other party, the granting party shall have the right to revoke, with respect to the objectionable use, the rights granted to the other party under this Agreement to use such marks, and such other party shall cease using the marks in the manner found objectionable by the granting party. The granting party retains all right, title and interest in its marks, and all use of such marks by the other party will inure to the granting party’s benefit.
14. Indemnification. Client will indemnify, defend and hold harmless Provider and its Affiliates (including its and their respective directors, officers, employees and agents) from and against any Claims arising from or relating to: (a) any infringement or alleged infringement by Client Data of any U.S.-registered patent, trademark or copyright, (b) any failure to comply with Laws, or (c) any personal injury or property damage caused by the gross negligence or willful misconduct of Client (including its employees, agents and subcontractors). Provider reserves the right to assume, at its sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and Client agrees to fully cooperate with Provider in the defense of any such claim, action, settlement or compromise negotiations, as requested by Provider. The indemnifying party may not settle a Claim without the indemnified party’s prior written consent (not to be unreasonably withheld) if the settlement requires the indemnified party to admit any liability or take any action or refrain from taking any action (other than ceasing use of infringing materials).
15.1. General. Neither party may assign this Agreement without the other party’s prior written consent, except that either party without such consent may assign this Agreement to an Affiliate or any other entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of such party’s voting securities or assets. Non-permitted assignments are void. Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than fees due hereunder) caused by reasons beyond its reasonable control, including acts of God, war, terrorism, strikes, communications or internet failures or unavailability, power failure, failure of suppliers, fires, floods, earthquakes, governmental restrictions, any court order, compliance with any law, regulation, order of any governmental authority, or any other force majeure event. Any notice or consent under this Agreement will be in writing to the addresses specified below. If any provision is found to be unenforceable, it (and related provisions) will be interpreted to best accomplish the parties’ intended purpose. In this Agreement, “including” means “including without limitation” (and similar terms will be construed without limitation) and headings are for convenience only and will not affect interpretation. Amendments must be in writing and signed by both parties. Waivers must be signed by the waiving party and one waiver will not imply any future waiver. This Agreement is non-exclusive; nothing herein prohibits Provider from creating or offering the Service or entering into any similar agreement with any other party. This Agreement (which includes all Order Forms, Exhibits and SOWs) together with any existing nondisclosure or confidentiality agreement with Client is the parties’ entire agreement regarding its subject matter and supersedes and cancels all previous agreements and communications (written or oral) relating to its subject matter.
These Terms of Service constitute the entire and only Terms of Service between Provider and each user of the Website or the Service with respect to the subject matter of these Terms of Service.
If any provision of these Terms of Service be deemed unlawful, void or for any reason unenforceable by a court of competent jurisdiction, the validity and enforceability of any remaining provisions will not be affected.
The failure of the Provider’s Affiliates to insist upon strict adherence to any term of these Terms of Service shall not constitute a waiver of such term and shall not be considered a waiver or limit of that party’s right thereafter to insist upon strict adherence to that term or any other term contained in these Terms of Service.
No action arising out of this Terms of Service or Client’s use of the Service, regardless of form or the basis of the claim, may be brought by Client more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).
15.2. Procedure for Notifying the Company of Copyright Infringement. Those who believe that their copyrighted work has been infringed or are aware of other infringing material, should contact Provider’s Copyright Agent at the address listed below and provide us with the following information:
- An electronic or physical signature of a person authorized to act on behalf of the owner of the copyrighted work that has allegedly been infringed;
- Identification of the copyrighted work claimed to have been infringed;
- Information describing where the allegedly infringing material is located on the Website;
- Your address, telephone number, and email address;
- A written 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;
- A statement by you that the above information in your notification is accurate and that, under penalty of perjury, you are the copyright owner or authorized to act on the copyright owner’s behalf.
The foregoing information may be emailed to email@example.com or mailed to Provider’s Copyright Agent at the following address: Copyright Agent: Voximplant Inc., 594 Broadway, Suite 701, New York City, New York 10012, United States of America
Following receipt of the information listed above, Provider will remove or disable access to the infringing material and take reasonable steps to notify a party responsible for posting said material. The posting of infringing copyrighted material may result in the termination of party privileges of said responsible party.
15.3. Applicable Law and Jurisdiction. This Agreement will be deemed to have been made in, and will be construed pursuant to the laws of, the State of New York and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any suit or proceeding arising out of or relating to this Agreement must be commenced in a federal court in the Southern District of New York or in a state court in New York, NY, and each party irrevocably submits to the jurisdiction and venue of such courts.