Last Updated: September 18, 2013
Zingaya, Inc., a Delaware corporation, d/b/a VoxImplant (“Voxlmplant,” “we” or “us”) enables its users (“they”, “their”, “you” or “your”), via its website (http://www.voximplant.com) (the “Website”), its API, its services or other means, to build Voice and Messaging Applications, using their existing web development skills (collectively, the “VoxImplant Cloud”).
Your use of the website and the VoxImplant Cloud (the “Service” or “Services”) is subject to the terms and conditions set forth in these Terms of Service (the “Terms of Service”).
The VoxImplant Cloud is meant for those who are at least eighteen (18) years of age. Use of the VoxImplant Cloud by anyone under the age of 18 is a violation of the Terms of Service. If you are under the age of 18, and are not an emancipated minor, you must have the consent of a parent, or legal guardian to use or access the VoxImplant Cloud.
You agree to incorporate VoxImplant’s policies into your own products and policies and ensure that your customers adhere to our 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 put a check mark next to the “I AGREE” checkbox and click on the SUBMIT button or use the VoxImplant Cloud.
Updates to Terms of Service; Integration. We may, in our sole discretion, modify the Terms of Service with or without notice to you. The “Last Updated” date at the top the Terms of Service will indicate when the latest modifications were made. By putting a check mark next to the “I AGREE” checkbox and clicking on the “SUBMIT” button or continuing to access and use the Website or the VoxImplant Cloud after the Terms of Service are modified, you agree to such modifications. Therefore, you should review the Terms of Service prior to each use of the Website and/or the VoxImplant Cloud.
Unless explicitly stated otherwise, any new features provided by VoxImplant that augment or enhance the VoxImplant Cloud shall be subject to these Terms of Service.
Intellectual Property. You acknowledge that all materials at the Website and the VoxImplant Cloud, including, without limitation, the Website’s and the VoxImplant Cloud’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. VoxImplant authorizes you to view and download the Materials only for personal, non-commercial use, provided that you keep intact all copyright and other proprietary notices contained in the original Materials. Except as expressly authorized by the Terms of Service, you may not copy, reproduce, distribute, republish, download, perform, display, post, transmit, exploit, create derivative works or otherwise use any of the Materials in any form or by any means, without the prior written authorization of VoxImplant or the respective copyright owner. In an absence of a written agreement, you may not modify or adapt the Materials in any way or otherwise use them for any public or commercial purposes. The trademarks, service marks, trade names, trade dress and logos (collectively, “Marks”) contained or described at the Website and/or the VoxImplant Cloud are the sole property of VoxImplant and/or its licensors and may not be copied, altered or otherwise used, in whole or in part, without the prior written authorization of VoxImplant and/or its licensors. 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. In the event you use an open source version of the VoxImplant Cloud, you are not allowed to use any of the Marks in such open source offering. VoxImplant reserves the right to enforce its intellectual property rights to the fullest extent of the law.
You may not, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Website or the VoxImplant Cloud for any purpose whatsoever.
You may write a software application or website (an “App”) that interfaces with the VoxImplant Cloud, and hereby acknowledge that VoxImplant may change, deprecate or republish the VoxImplant Cloud (including any APIs) or feature of the VoxImplant Cloud from time to time, and that it is your responsibility to ensure that calls or requests you make to or via the VoxImplant Cloud are compatible with then-current VoxImplant Cloud. We will attempt to inform you of any changes with reasonable notice so that you can adjust your App, but we are under no obligation to do so.
Provided that you comply with these Terms of Service, you may use the VoxImplant Cloud to execute Apps owned or lawfully obtained by you, and you are solely responsible for such Apps, including any data, text, images or content contained therein. You are personally responsible for all traffic originating from your Apps or using your account credentials to the VoxImplant Cloud. Therefore, you should protect your authentication keys and security credentials. Any action taken with your credentials are deemed to be actions taken by you, with all consequences including service termination, civil and criminal penalties.
For the avoidance of doubt, your use of the Website and the VoxImplant Cloud is solely and exclusively under the limited license granted herein and you will not obtain any ownership interest therein through these Terms of Service or otherwise. All trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with any aspect of the VoxImplant Cloud are either the property of VoxImplant or its affiliates or licensors. VoxImplant retains the right to immediately rescind and terminate the limited license granted hereunder at any point, for any reason or for no reason at all, in each case without any liability whatsoever. Upon termination of these Terms of Service, the license shall also terminate and all rights shall revert to VoxImplant without the taking of action on the part of either party. All rights not expressly granted herein by VoxImplant to you are fully reserved by VoxImplant, its advertisers and licensors.
Some of the company and product names, logos, brands, and other trademarks featured or referred to within the Website and the VoxImplant Cloud may not be owned by us, and are the property of their respective trademark holders. These trademark holders are not affiliated with, nor do they sponsor or endorse, VoxImplant, Zingaya, Inc., the VoxImplant Cloud, our products and services, or the Website.
Subject to your acceptance of and compliance with these Terms of Service, ongoing compliance with these Terms of Service, and payment if and as required for your right to use the Website and/or the VoxImplant Cloud, VoxImplant hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the term of these Terms of Service in and under our intellectual property rights in the Website and the VoxImplant Cloud, only to use solely in connection with and as necessary for your use of the VoxImplant Cloud, and solely in accordance with these Terms and Conditions.
Term. The term (“Term”) of these Terms of Service will commence your acceptance of these Terms of Service and will remain in effect until terminated by you or VoxImplant. You may terminate these Terms of Service for any reason or no reason at all. We may immediately suspend your right and license to use any or all Services or terminate these Terms of Service in its entirety for any reason or for no reason, at our discretion, without any liability whatsoever.
Furthermore, VoxImplant may suspend your right and license to use the Service or terminate these Terms of Service for cause effective as set forth below:
Immediately upon our notice to you if (i) you violate any provision of these Terms of Service or we have reason to believe that you have violated these Terms of Service, (ii) there is an unusual spike or increase in your use of the Services for which there is reason to believe such traffic or use is fraudulent and/or negatively impacting the operating capability of the Service; (iii) we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (iv) you become the subject of a voluntary or involuntary bankruptcy or similar proceeding, or make an assignment for the benefit of creditors; and
Immediately and without notice if you are in default of any payment obligation with respect to any of the Services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism.
Upon our suspension of your use of any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by you; (ii) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the Services; and (iii) all of your rights with respect to the Services shall be terminated during the period of the suspension.
Upon termination of these Terms of Service for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; and (ii) all of your rights under these Terms of Service shall immediately terminate.
Notwithstanding such termination or suspension, you will continue to be subject to the “Intellectual Property,” “Fees,” “Content,” “Representations and Warranties,” “Disclaimers and Limitations of Liability,” “Indemnification,” “Applicable Law and Jurisdiction” and “Use of the VoxImplant Cloud” 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 or the VoxImplant Cloud.
Downtime; Security. Your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any of the Services; (b) in the event of a denial of service attack or other attack on the Services or other event that we determine, in our sole discretion, may create a risk to the Services, to you or to any of our other customers if the Services were not suspended; or (c) in the event that we determine that any of the Services is prohibited by applicable law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). VoxImplant shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you notice of any Service Suspension and to post updates regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
We strive to keep information you provide to us secure, but cannot guarantee that we will be successful at doing so. You acknowledge that you bear sole responsibility for adequate security, protection and backup of your data or content including all audio recordings associated with your account. VoxImplant will have no liability to you for any unauthorized access or use, corruption, deletion, destruction or loss of any of your data or content.
Fees. Free Services are limited to one per person, and if we find that you have created multiple free trial accounts, we reserve the right to suspend those accounts and take actions to prevent additional violations. Free Services come with the amount of services set forth here. We may provide notice to you of reaching 60% and 80% of the amount of services offered under our free plan, but may shut off your account without notice upon reaching the maximum amount of services under the free plan.
To the extent the Services are made available for a fee, you agree to pay all applicable fees. Our current fee schedule for our priced plans are set forth here: http://voximplant.com/pricing/. You agree to pay any carrier costs, such as fees for porting your existing telephone numbers into or out of the Services. We may increase or add new fees for any of the existing Services by giving you 10 days’ advance notice. All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect VAT (and/or similar taxes) from you. You are responsible for any charges imposed on VoxImplant by a carrier related to government fees for telecommunications, including but not limited to, Universal Service Fund fees, if applicable.
We may specify the manner in which you will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by you under these Terms of Service will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, You shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, You shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
If you have any dispute with regards to fees associated with your account, please contact us at email@example.com within 90 days of the date of the activity that generated such dispute, and we will attempt to resolve the matter. Any and all refunds issued to resolve such a dispute shall be issued as credits to your account, but in no event shall there be any cash refunds. Disputes older than 90 days shall not be entitled to any refunds or credits.
Third Party Sites. Links at the Website or via the VoxImplant Cloud to third party websites are provided only as a convenience to you. If you use these links, you will leave the Website and potentially the VoxImplant Cloud. VoxImplant does not control or endorse any such third party websites. You agree that the VoxImplant (together with its parent, subsidiaries, affiliates ,and their respective directors, stockholders, employees, consultants, affiliates, successors, assigns, agents and other representatives, the “VoxImplant Parties”), will not be responsible or liable for any content, goods or services provided on or through these outside websites or for your use or inability to use such websites. You will use these links at your own risk. You are advised that other websites on the Internet, including third party websites linked from this Website or the VoxImplant Cloud, 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. VoxImplant 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.
Use of VoxImplant Cloud. You may be required to establish an account at this Website in order to take advantage of certain features of this Website or the VoxImplant Cloud. If so, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Website or the VoxImplant Cloud; and (b) as permitted, maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information that is false, inaccurate or outdated, or VoxImplant has reasonable grounds to suspect that such information is false, inaccurate or outdated, VoxImplant has the right to suspend or terminate your account and prohibit any and all current or future use of the Website and VoxImplant Cloud (or any portion thereof) by you.
You may be prompted to create a username and password to use certain features of the Website or participate in the VoxImplant Cloud. If so, you are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. Your account is meant to be private and you shall not share accounts, use another member’s account, nor allow others to use your account for any reason. You agree to: (a) immediately notify VoxImplant of any unauthorized use of your password or account or any other breach of security; and (b) ensure that you exit from your account at the end of each session. You agree to be responsible for all charges resulting from the use of your account at the Website or via the VoxImplant Cloud, including charges resulting from unauthorized use of your account prior to your taking steps to prevent such occurrence by changing your password and notifying VoxImplant. The VoxImplant Parties cannot and will not be liable for any loss or damage arising from your failure to comply with these requirements.
You agree to use the Website and VoxImplant Cloud only for lawful purposes and without violation of any third-party rights. You are responsible for your use of and communications and content you post via the VoxImplant Cloud. You agree not to use the Services to offer any hardware or hardware/software combination of services for any unlawful purposes or in violation of any third-party rights. You agree not to post on or transmit through this Website or the VoxImplant Cloud any unlawful, infringing, threatening, harassing, defamatory, vulgar, obscene, profane, indecent, offensive, hateful or otherwise objectionable material of any kind, including any material that encourages criminal conduct or conduct that would give rise to civil liability, infringes others’ intellectual property rights or otherwise violates any applicable local, state, national or international law. You agree not to use this Website or VoxImplant Cloud in any manner that interferes with its normal operation or with any other user’s use and enjoyment of the Website or the VoxImplant Cloud.
You may not do any of the following while accessing or using the VoxImplant Cloud: (i) access, tamper with, or use non-public areas of the VoxImplant Cloud, our computer systems, or the technical delivery systems of our providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the VoxImplant Cloud by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by us (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate written agreement with us; (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; or (v) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the VoxImplant Cloud or Website, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on the VoxImplant Cloud or Website.
Additionally, the following list gives examples of illegal, abusive, interfering or otherwise unacceptable or inappropriate behavior while using the Website or the VoxImplant Cloud.
Attempting to bypass or break any security mechanism on any of the Services or using the Services in any other manner that poses a security or service risk to VoxImplant, to any user of our Services, or to any of our or their respective customers.
Testing or reverse-engineering the Services in order to find limitations, vulnerabilities or evade filtering capabilities.
Using the Services in any manner that may subject VoxImplant or any third party to liability, damages or danger.
Using the Services in any manner that violates any applicable third party policies or requirements that VoxImplant has communicated to the customer.
Using the Services in any manner that violates the Mobile Marketing Association guidelines and/or best practices, carrier guidelines, or any other industry standards.
Engaging in fraud with respect to your account, including using any caller ID functionality of the Services to misrepresent the identity of a caller.
Using your account to engage in fraudulent activity with respect to third parties or otherwise using your account to bypass phone identification systems such as those by classified advertising websites.
Using any of the VoxImplant Properties or VoxImplant Marks other than as expressly permitted.
Transmitting any material that may infringe the intellectual property rights or other rights of third parties, including but not limited to trademark, copyright or rights of publicity or otherwise violating, infringing, or misappropriating the rights of any third party.
Engaging in spamming or other unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.
Using the Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls or voice mail.
Offering services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 services.
Promoting or engaging in illegal activities.
Engaging in activities or transmitting through the Services any information that may be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age.
Harvesting or otherwise collecting information about others, including email addresses or phone numbers, from VoxImplant’s website without their express consent.
Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call using Your account.
Violating or facilitating the violation of any U.S. federal or state, or foreign law regarding the transmission of technical data or software, or the recording of telephone calls.
Interfering with or disrupting networks connected to the Services or violating the regulations, policies or procedures of such networks.
Improperly engaging in activity for which the United States Federal Communications Commission has restricted or regulated with regard to proper use of the public telephony network.
Using the Services, or a component of the Services, in a manner not authorized by VoxImplant.
You further agree that you will not access this Website or the VoxImplant Cloud by any means except through the interface provided by VoxImplant for access to the Website and the VoxImplant Cloud, and that you will follow all carrier guidelines. Creating or maintaining any link from another website to any page at the Website without the prior authorization of VoxImplant is prohibited. Running or displaying this Website, the VoxImplant Cloud, or any information or material displayed at the Website in frames or through similar means on another website or application without the prior authorization of VoxImplant is prohibited. Any permitted links to this Website must comply with all applicable laws, rule and regulations.
VoxImplant makes no representation that Materials contained at the Website or products or services described or offered at the Website or the VoxImplant Cloud are accurate, appropriate or available for use in jurisdictions outside the United States, or that these Terms of Service comply with the laws of any other country. Visitors who use the Website or the VoxImplant Cloud and reside outside the United States do so on their own initiative and are responsible for compliance with all laws, if and to the extent local laws are applicable. You agree that you will not access this Website or the VoxImplant Cloud from any territory where its contents are illegal, and that you, and not the VoxImplant Parties, are responsible for compliance with applicable local laws.
Content. All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such content. You acknowledge that all Content accessed by you using the Website and/or the VoxImplant Cloud is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. You retain any rights you may hold to any Content you submit, post or display on or through the VoxImplant Cloud.
For purposes of these Terms of Service, the term “Content” includes, without limitation, any content, location information, videos, audio clips, comments, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on the Website or through the VoxImplant Cloud.
Representations and Warranties. You represent and warrant that you will not use the Services or your App in a manner that violates these Terms of Service or any applicable law.
You also acknowledge and understand that VoxImplant does not currently allow you to access any 911 or similar emergency services (no traditional 911, E911, or similar access to emergency services). The Services are not intended to replace any primary phone service, such as a traditional landline or mobile phone, that may be used to contact emergency services.
You represent and warrant: (i) that you are solely responsible for the development, operation, maintenance and legality of your App and Content, including without limitation, the accuracy, appropriateness and completeness of your Content; (ii) that you have the necessary rights and licenses, consents, permissions, waivers and releases to develop, use, display and/or sell your App and your Content; (iii) that neither your App nor Content (a) violates, misappropriates or infringes any rights of us 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 your App nor Content contains any harmful components; and (v) that VoxImplant is not responsible to you for indemnification or directly to any of your customers or clients if you offer services (including your App(s)) based on the VoxImplant Cloud. You also represent and warrant that you are responsible for any charges incurred by your use of the App, no matter whether the App acted in error.
You further understand and agree that you will have use of the telephone number(s) that are provided as part of the Services only until the end of the Term. You understand and agree that VoxImplant is the customer of record for all telephone number(s) provided as part of the Services and, therefore, VoxImplant 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), VoxImplant owns the telephone number(s) assigned to you. VoxImplant reserves the right to refuse to port any telephone number(s) in its sole discretion without any liability whatsoever.
If you “ported in” any telephone number(s) in connection with your use of Services, VoxImplant assigned you one or more toll free telephone numbers, you may be entitled to “port out” a telephone number under non-U.S. law. Subject to applicable law, you may “port out” such number(s) only if you satisfy the following requirements: (1) you provide written notice to VoxImplant of your intent to “port out” such number(s) no later than 30 days after providing VoxImplant notice of your intent to terminate your use of the Services (the “Porting Notice Period”); (2) your new telephone carrier provides VoxImplant’s telephone carrier a duly executed porting request prior to the expiration of the Porting Notice Period; (3) you have paid VoxImplant for all Services provided to you prior to the date you provide VoxImplant notice of your intent to terminate your use of the Services; and (4) you have paid VoxImplant any administrative fees associated with processing the port. You hereby authorize VoxImplant to charge your account in the applicable amount for the administrative fees in subsection (4) above or to otherwise arrange to make this payment to VoxImplant within the Porting Notice Period. Regardless of when the port out is complete, you will continue to be responsible to pay all applicable account fees with respect to the telephone numbers until you formally terminate use of the Services pursuant to these Terms of Service. If you fail to satisfy any of the foregoing requirements, VoxImplant remains the customer of record over the number(s) and you are 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. VoxImplant also retains the right to reclaim the number(s) from you after the number(s) are ported out in contravention with these requirements and authorize VoxImplant to charge your account or take any other measures to collect the costs associated with causing the number(s) to be returned to VoxImplant. You understand and agree that even if you satisfy 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. VoxImplant is not responsible for such technical or procedural difficulties or interruptions.
You understand and agree that following the termination of these Terms of Service for any reason, your number(s) may be re-assigned to another customer. You agree that VoxImplant will not be liable for damages (including, without limitation, consequential or special damages) arising out of any such re-assignment and you hereby waive any claims with respect to any such re-assignment, whether based on contractual, tort or other grounds, even if VoxImplant has been advised of the possibility of damages.
You understand and agree that VoxImplant may need to change the telephone number(s) assigned to you. You agree that VoxImplant 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 you and you hereby waive any claims with respect to any such change, whether based on contractual, tort or other grounds, even if VoxImplant has been advised of the possibility of damages.
You represent and warrant that you have read and understood these Terms of Service, and you agree to abide by their terms, where applicable, including as incorporated by reference herein. You further agree 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 Your account or password, including the content of your transmissions through the Service.
You represent and warrant that without VoxImplant’s express written consent you will not use, and will not authorize any third party to use, any Public Software (as defined below) in connection with the Services in any manner that requires, pursuant to the license applicable to such Public Software, that any of the Services 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.
Disclaimers and Limitations of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE WEBSITE AND THE VOXIMPLANT CLOUD IS AT YOUR SOLE RISK. THE WEBSITE, THE VOXIMPLANT CLOUD 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, THE VOXIMPLANT PARTIES EXPRESSLY DISCLAIM 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, THE VOXIMPLANT PARTIES MAKE NO WARRANTY THAT: (I) THE WEBSITE OR VOXIMPLANT CLOUD WILL MEET YOUR REQUIREMENTS; (II) THE WEBSITE AND VOXIMPLANT CLOUD 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 VOXIMPLANT CLOUD WILL MEET YOUR EXPECTATIONS OR NEEDS; AND (V) ANY ERRORS IN THE WEBSITE OR VOXIMPLANT CLOUD WILL BE CORRECTED.
THE VOXIMPLANT PARTIES 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 VOXIMPLANT CLOUD, 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 VOXIMPLANT CLOUD OR ANY THIRD PARTY WEBSITE. 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 VOXIMPLANT AND YOU. THE PRODUCTS, INFORMATION AND SERVICES OFFERED ON AND THROUGH THE WEBSITE AND THE VOXIMPLANT CLOUD WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF THE VOXIMPLANT PARTIES 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 VOXIMPLANT VIA THIS WEBSITE OR THE VOXIMPLANT CLOUD.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.
THE WEBSITE AND THE VOXIMPLANT CLOUD DOES NOT AND IS NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. “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.” THE VOXIMPLANT PARTIES 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 VOXIMPLANT OR ITS SERVICES TO CONTACT ANY EMERGENCY SERVICES, OR YOUR FAILURE (OR YOUR USERS’ FAILURE) TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES.
Indemnification. You agree to indemnify, defend and hold harmless the VoxImplant Parties against all claims, demands, causes of action, losses, expenses, damages and costs (including any reasonable attorneys’ fees), resulting or arising from or relating to (i) your use of or conduct at the Website or VoxImplant Cloud, (ii) any activity related to your account by you or any other person, (iii) any material that you submit to, post on or transmit through the Website or the VoxImplant Cloud, (iv) your breach of these Terms of Service (including all other policies and provisions incorporated herein by reference), (v) your infringement or violation of any rights of another, (vi) any liability arising out of or in connection with your App(s), or (vii) termination of your access to the Website, Services and/or the VoxImplant Cloud. We reserve the right to assume, at our sole expense, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.
Applicable Law and Jurisdiction. Your use of the Website, the Services and the VoxImplant Cloud is governed by and will be enforced under the laws of the State of Delaware without regard to its conflict of law provisions. You agree to submit to the personal and exclusive jurisdiction of the courts located within the State of Delaware. You agree that printed copies of any and all agreements and/or notices in electronic form are admissible in any legal or regulatory proceedings. TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, IN ANY CLAIM, ACTION OR PROCEEDING TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THE AGREEMENT INCLUDING, WITHOUT LIMITATION, RELATING TO YOUR USE OF OUR SERVICES, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
YOU AND VOXIMPLANT BOTH AGREE TO RESOLVE DISPUTES ONLY BY ARBITRATION. THERE’S NO JUDGE OR JURY IN ARBITRATION, AND THE PROCEDURES MAY BE DIFFERENT, BUT AN ARBITRATOR CAN AWARD YOU THE SAME DAMAGES AND RELIEF, AND MUST HONOR THE SAME TERMS IN THESE TERMS OF SERVICE, AS A COURT WOULD. IF THE LAW ALLOWS FOR AN AWARD OF ATTORNEYS’ FEES, AN ARBITRATOR CAN AWARD THOSE TOO. YOU AND VOXIMPLANT ALSO BOTH AGREE THAT:
THE FEDERAL ARBITRATION ACT APPLIES TO THESE TERMS OF SERVICE. ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THESE TERMS OF SERVICE OR FROM ANY SERVICES YOU RECEIVE FROM US WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). YOU CAN ALSO BRING ANY ISSUES YOU MAY HAVE TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL GOVERNMENT AGENCIES, AND IF THE LAW ALLOWS, THEY CAN SEEK RELIEF AGAINST US FOR YOU.
THESE TERMS OF SERVICE DOESN’T ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA PROCEDURES OR RULES WOULD. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS OF SERVICE, THE ARBITRATOR MAY AWARD MONEY OR INJUNCTIVE 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. NO CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL THEORIES OF LIABILITY OR PRAYERS FOR RELIEF MAY BE MAINTAINED IN ANY ARBITRATION HELD UNDER THESE TERMS OF SERVICE.
IF EITHER YOU OR VOXIMPLANT INTENDS TO SEEK ARBITRATION UNDER THESE TERMS OF SERVICE, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. NOTICE TO VOXIMPLANT SHOULD BE SENT AS REQUIRED BY THESE TERMS OF SERVICE. THE NOTICE MUST DESCRIBE THE NATURE OF THE CLAIM AND THE RELIEF BEING SOUGHT. IF YOU AND VOXIMPLANT ARE UNABLE TO RESOLVE OUR DISPUTE WITHIN 30 DAYS, EITHER PARTY MAY THEN PROCEED TO FILE A CLAIM FOR ARBITRATION.
AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CAN’T BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.
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 our 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 firstname.lastname@example.org or mailed to our Copyright Agent at the following address:
Copyright Agent: Zingaya, Inc.
2225 East Bayshore Road, Palo Alto, CA 94303-3220
Following receipt of the information listed above, we will remove or disable access to the infringing material and take reasonable steps to notify the member responsible for posting said material. The posting of infringing copyrighted material may result in the termination of member privileges of said responsible member.
Miscellaneous. These Terms of Service constitute the entire and only Terms of Service between VoxImplant and each user of the Website or the VoxImplant Cloud 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 VoxImplant Parties 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 your use of the VoxImplant Cloud, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).
Customer Service. If you have any comments or questions regarding these Terms of Service, or wish to report any violation of these Terms of Service, you may email us at email@example.com.