eXtreme Answer, its parent, subsidiaries and affiliates (collectively “we”, “our”, “us”), provides our customers ("you") with a broad range of hosted and Internet-based telecommunications services, software and client-based applications, including toll-free, long-distance and local telephone services, and Voice-over-Internet Protocol (VOIP) communications, facsimile, voicemail, call-forwarding, call-processing, and call-waiting software, services, features and functionalities more fully described on www.extremeanswer.com or an affiliated website (the "Website”).. As used herein, the term “Service” refers collectively to all our hosted and Internet-based telecommunications services, as well as client-based software applications offered by us, as well as any documentation related thereto.
WE ARE WILLING TO PROVIDE YOU WITH ACCESS TO THE SERVICE ONLY ON THE CONDITION THAT YOU AGREE TO AND ACCEPT ALL OF THE TERMS AND CONDITIONS IN THIS TERMS OF USE AND END USER LICENSE AGREEMENT (“AGREEMENT”). WE RESERVE THE RIGHT AT OUR SOLE DISCRETION TO REFUSE OR DISCONTINUE SERVICE TO ANYONE FOR ANY REASON. WITH REGARD TO HOSTED SERVICES, WE RESERVE THE RIGHT TO CHANGE OR CANCEL THE SERVICE OR ITS PRICING AT ANY TIME WITHOUT PRIOR NOTICE; CHANGES TO THE SERVICE OR ITS PRICING WILL BE EFFECTIVE IMMEDIATELY WHEN POSTED TO THE WEBSITE. BY REGISTERING FOR OR USING THE SERVICE, YOU AGREE TO BE BOUND BY ALL OF OUR TERMS AND CONDITIONS OF USE AS SET FORTH HEREIN AND IN OUR PRIVACY POLICY AS CURRENTLY IN EFFECT OR AMENDED FROM TIME TO TIME (PRESENTLY AVAILABLE AT HTTP://WWW.EXTREMEANSWER.COM/PRIVACY-POLICY.ASP). WITH REGARD TO HOSTED SERVICES, WE MAY NOT SPECIFICALLY NOTIFY YOU OF ANY PROPOSED CHANGES TO THE SERVICE OR THEIR PRICING AND IT IS RECOMMENDED THAT YOU PERIODICALLY REVIEW THE WEBSITE. YOUR USE OF THE SERVICE AFTER SUCH CHANGES HAVE BEEN POSTED CONSTITUTES YOUR ACCEPTANCE OF ALL CHANGES.
IMPORTANT: The terms, conditions, and guidelines associated with the use and license of the Service are set forth in this Agreement. Please read this Agreement carefully before activating or using our Service or installing any related software. By registering for or using the Service, you agree to abide fully by and accept all of the terms, conditions, and guidelines set forth in this Agreement. Please note that we may change this Agreement at any time without notice, and such changes will be effective immediately upon the posting of such modified or amended Agreement on the Website at www.extremeanswer.com/tou.asp. Your use of the Service after such changes have been posted on the Website constitutes your acceptance of all changes. Please also note that, at any time, if we determine that you have abused or violated the letter, spirit, or intent of any of these terms, conditions, and guidelines, we reserve the right in our sole discretion to terminate or suspend your account immediately without notice, liability, or penalty or liability of any kind to us or any our suppliers and/or parent, subsidiary or affiliated companies. The Service is being offered only to natural persons age eighteen (18) years or older and legal entities whose authorized principals are age eighteen (18) years or older. By accepting the terms of this Agreement, you hereby represent and warrant that you are a natural person or authorized representative of a legal entity who is age 18 years or older.
USER RESPONSIBILITIES
In order to use the Service, you must, at your sole expense: (1) provide and be responsible for payment for all equipment necessary to establish a connection to the Internet and/or to the Publicly Switched Telephone Network (“PSTN”), as may be required by our Service; (2) provide for access to the Internet and/or PSTN and pay any Internet connection service fees associated with such access; (3) supply and pay for all phone service features required for your use of the Service; and (4) pay us for the Service.
You agree to provide us with accurate and complete registration information, inclusive of your legal name, email address, phone number, and mailing address, and agree to keep that information updated at all times. Failure to do so constitutes a breach of this Agreement.
Prohibition on Reselling the Service.
Your use of the Service is personal to you and you shall not sell, resell,
assign or transfer the Service without our express prior written consent and
authorization. You further agree that you shall only provide us with information
regarding a credit card for which you are the registered owner and, under no
circumstances shall you provide us with any billing or payment information (including
any credit card information) for any person or entity other than yourself. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN, IF YOU VIOLATE OR BREACH ANY TERM
OR CONDITION OF THIS PARAGRAPH, YOU SHALL BE LIABLE FOR ALL DAMAGES OF ANY KIND,
INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE,
AND CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM
LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF OR CONNECTED
TO YOUR BREACH OF THIS PARAGRAPH, INCLUDING ANY DAMAGES RESULTING FROM OUR SUSPENSION,
CANCELLATION, DISABLEMENT, TERMINATION OF THE SERVICE TO YOU AND/OR THE END-USER
CUSTOMER TO WHOM YOU MAY HAVE RESOLD THE SERVICES.
Passwords. By registering for the Service, you will select or receive a password.
It is solely your responsibility to keep your account information and password
secure. You may not disclose your password to anyone except persons that you
have authorized to use your account. You hereby assume all liability of any
kind arising out of or related to the use of the Service by such authorized
person(s). You hereby expressly release and indemnify us from, and hereby assume
all liability and damages of any kind arising out of or related to, all activities
conducted through your account on the Service by any persons, whether or not
such persons are authorized by you to use the Service. You agree to notify us
immediately of any unauthorized use of your account or any other breach of security
you know of or suspect.
PAYMENT AND FEES
You must give us a valid credit card number (Visa, MasterCard, Discover, American Express or any other issuer then-accepted by us) when the Service is activated. As described under “Prohibition on Reselling the Service,” you shall only provide us with information regarding a credit card for which you are the registered owner and, under no circumstances shall you provide us with any billing or payment information (including any credit card information) for any person or entity other than yourself.
We reserve the right to stop accepting credit cards from one or more issuers. If the card expires, you close your account, your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise us at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears) to your credit card, including but not limited to: activation fees, monthly Service fees, international usage charges, advanced feature charges, equipment purchases, disconnect fees and shipping and handling charges. We reserve the right to bill at more frequent intervals if the amount due at any time exceeds $10. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on our website
You must notify us in writing within 7 days after receiving your credit card statement if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address:
eXtreme Answer., P.O. Box 399, Belmont, CA 94002-0399
We accept payments only by credit card as described herein. Your subscription to or order of the Service authorizes us to charge the credit card account number on file with us, including any changed information given to us if the card expires or is replaced, or if you substitute a different card, for all charges incurred by you (or deemed incurred by you) under this Agreement. This authorization will remain valid until 30 days after we receive your written notice terminating our authority to charge your credit card, whereupon we may charge you the disconnect fee and any other outstanding charges and terminate the Service. We may terminate your Service at any time in our sole discretion, if any charge to your credit card on file with us is declined or reversed, your credit card expires and you have not provided us with a valid replacement credit card or in case of any other non-payment of account charges. Termination of Service for declined or expired card, reversed charges or non-payment leaves you FULLY LIABLE to us for ALL CHARGES ACCRUED BEFORE TERMINATION AND ALL ACCOUNT CHARGEBACKS and all costs incurred by us in collecting such amounts, such as (but not limited to) collection costs and banking and attorney's fees, and additional penalties.
The fees paid by you to us are only for the Service. You are responsible for all charges associated with your telephone, all telephony equipment, long distance charges and charges for connecting to the Internet and/or PSTN. You agree that any telephone or other communications mode charges incurred are your sole responsibility. You may be subject to other charges from your phone company in addition to the fees for the Service.
CONTENT
You are solely responsible for all content, data, materials, or information
you transmit via the Service (collectively, "Content"). We provide
unfiltered services and do not control Content accessed, posted, recorded, or
otherwise transmitted or received via the Service and do not guarantee the accuracy,
integrity or quality of such Content. This means that Content is not routinely
reviewed before being transmitted through the Service, and we will have no liability
(and you expressly waive all of our liability) for any Content communicated,
accessed, retrieved, recorded, heard, posted, or otherwise transmitted or received
via the Service, regardless of where or how it originated,, whether or not arising
under the laws of copyright, patent, trade secret, defamation, privacy, obscenity,
or otherwise. Furthermore, we shall not be responsible for any unsolicited telephone
calls or faxes (e.g., telemarketing calls and fax spams) sent or received by
you through the Service.
PROHIBITED USES
As a user of the Service, you agree to use the Service only for lawful purposes. As stated above, you are prohibited from reselling the Service without our express prior written consent and users interested in reselling our products or services are encouraged to join our affiliate network by visiting http://www.extremeanswer.com/partners.asp. Use of the Service for transmission, distribution, retrieval, or storage of any information, data, or other material in violation of any applicable law or regulation is prohibited. You also agree not to use the Service to:
1. Use or transmit any material protected by copyright, trademark, trade secret,
patent, or other intellectual property right without proper authorization;
2. Threaten, harass, defame, embarrass, or distress any other person or group;
3. Transmit any unlawful, harmful, defamatory, pornographic, obscene, vulgar
or otherwise objectionable messages or material;
4. Transmit unsolicited fax or voice advertisements or solicitations ("fax/voice
spam") in violation of federal or state laws, including but not limited
to any "do not call" list restrictions;
5. Transmit any information in violation of the Patriot Act or which otherwise
may be deemed in furtherance of terrorist activity or in breach of the national
security of the United States or any other state or nation; or
6. Transmit any materials or information in any manner that violates applicable
law.
Furthermore, the Service and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, and all information, documents and materials on our website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") are and shall remain our exclusive property and nothing in this Agreement shall grant you the right or license to use any of such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You shall not tamper with in any way, reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software for the Service. We reserve the right to terminate the Service and/or revoke all of the licenses granted herein should you do, or attempt to do any of actions described in this paragraph, leaving you responsible for all charges and fees through the end of the current term, including without limitation all unbilled charges, all of which shall be immediately due and payable. You agree not to hack or disrupt the Service or to make any use of the Service that is inconsistent with its intended purpose or to attempt to do so.
If we, in our sole discretion, believe that you have violated the letter or spirit of any of the above restrictions or that you have otherwise violated any applicable law, we may forward the objectionable material, as well as your communications with us and all records of your using the Service, and your personally identifiable information, to the appropriate authorities for investigation and prosecution, and may immediately terminate your service without penalty or liability of any kind to us.
MODIFICATIONS TO SERVICE
With respect to hosted services, we reserve the right to modify, suspend, or
discontinue the Service from time to time with or without notice to you. We
shall not be liable to you or any third party if we exercise our right to modify,
suspend, or discontinue the Service.
SERVICE PARAMETERS
You agree that we, in our sole discretion, have the right to establish limits
which we deem reasonable on the number and/or size of messages or minutes of
usage which you deploy, send, receive and/or store as the case may be, in order
to prevent any negative impact on the use of the Service by others, and you
agree to comply with any such limits which we may establish at our sole discretion
from time to time. We assume no responsibility for the deletion or failure to
deliver or store voice, fax or other messages, or for failure to receive, place,
connect or forward any phone calls(s).
YOU FURTHER AGREE THAT SOME OR ALL OF THE SERVICES, INCLUDING ANY RELATED SOFTWARE, SHALL RESIDE ON THE HARD DISK ON YOUR COMPUTER AND MAY OPERATE UNOBTRUSIVELY IN THE BACKGROUND, PERFORMING LIVE UPDATES, DELIVERING ADDITIONAL REQUESTED SOFTWARE, COLLECTING AND TRANSMITTING NON-PERSONALLY IDENTIFIABLE INFORMATION RELATED TO THE DISPLAY AND TRACKING OF ADVERTISING, AND ANY VOLUNTEERED DEMOGRAPHIC INFORMATION ABOUT YOU TO EXTREME ANSWER OR TO OUR PARTNERS' SERVERS, WHENEVER YOUR WEB CONNECTION IS ACTIVE.
GENERAL TERMS
You acknowledge that your right to use the Service is subject to the following limitations:
1. Your rights to the Service granted under this Agreement are personal to you. As described more fully under “Prohibition on Reselling”, you may not sell, assign, or otherwise transfer or agree to transfer all or any portion of those rights without the prior written consent of us, which consent may be withheld for any reason in our absolute discretion. YOU ALSO MAY NOT RESELL THE SERVICE WITHOUT OUR EXPRESS PRIOR WRITTEN AUTHORIZATION.
2. You agree to use the Service only for lawful purposes. This means that you agree not to use the Service for transmitting or receiving any communication or material of any kind when, in our sole judgment, the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. We reserve the right to terminate your service immediately and without advance notice if we, in our sole discretion, believe that you have violated the above restrictions, leaving you responsible for all fees and charges to the end of the current monthly or annual term (as the case may be), including without limitation unbilled charges, all of which immediately become due and payable and may, in our sole discretion, be immediately charged to your credit card. You are liable for any and all use of the Service by yourself and by any person making use of the Service provided to you and agree to indemnify and hold us harmless against any and all liability for any such use. If we, in our sole discretion believe that you have violated the above restrictions, we may forward the objectionable material, as well as your communications with our and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding
We reserve the right to terminate, without any liability to us, accounts which remain inactive for over 90 days, or accounts which, in our sole judgment , are used for purposes that are illegal, violate the letter, spirit or intent of this Agreement, or which we deems inappropriate or detrimental to ourselves.
3. You acknowledge that the Service is intended for customary personal and
business use. The Service is not intended for dedicated telecommunications services
and in no case is the Service intended for intensive auto-dialing, continuous,
or extensive call forwarding, or telemarketing and/or fax solicitation. You
understand that such inappropriate use of the Service may result in immediate
cancellation of your account without any penalty or liability of any kind to
ourselves, and that you will not be entitled to any refund in case your account
is cancelled thereby.
4. You understand that we are limited in the depth of customer service that
we can provide to our customers. Accordingly, telephone-based technical support
may not be provided. We will provide email and other support resources on an
as-available basis. If you experience a problem with the Service, you can contact
support at http://www.extremeanswer.com/feedback/email-form.asp.
5. You understand that we may terminate your Service without any liability to
ourselves if your credit card, telephone number, facsimile number and/or email
address ceases functioning at any time and for any reason.
6. You agree to access the Service solely with the software provided to you
specifically by us. Upon subscription to the Service, we will grant you a personal,
nonexclusive, nontransferable, revocable license and right to use our software
only in conjunction with the Service and subject to the terms of this Agreement.
The license grant to you will terminate when your account terminates. You further
agree that you will not reverse engineer, decompile, or otherwise copy our software
(or attempt to do any of the foregoing) and that you will not disparage us,
the Service, or our software to any third party. Any attempt to use the Service
other than as provided herein shall be a breach of this Agreement and will subject
you to possible legal action and/or fees.
7. You acknowledge and agree that you are aware of and will fully abide by the
statutory and regulatory rules prohibiting unsolicited fax advertisements set
forth in the Telephone Consumer Protection Act of 1991, Federal Consumer Protection
Act 47 U.S.C. Paragraph 227, FCC's rules on unsolicited fax communications,
and in any applicable state statutes. Violations may subject you to statutory
fines and penalties, and compensatory damages. For further information, see
http://www.fcc.gov/cgb/consumerfacts/unwantedfaxes.html.
You agree to use the Service's Outbound fax function ONLY to send faxes to contacts
who have previously given you permission to be contacted by fax as required
by applicable federal, state and local law. You understand that the Service
MAY NOT be used for faxmail spamming campaigns. You expressly agree to fully
defend, indemnify, and hold us and our parent, subsidiaries, affiliates and
suppliers harmless from any complaints arising out of your use of the Service
in violation of any federal or state statutes or regulations. You understand
that inappropriate use of the Service may result in immediate cancellation of
your account by us, and that you will not be entitled to any refund in case
your account is cancelled thereby.
8. As described more fully under “Payment and Fees”, you agree that all information that you have provided to us regarding billing and payment, including any credit card authorization information, is accurate and correct with respect to you. Under no circumstances shall you provide us with any billing or payment information (including any credit card information) for any person or entity other than yourself.
9(A). Monthly Service: For monthly subscribers, the Service is offered on a monthly basis for a term which begins on the date that we activate your Service and ends on the day before the same date in the following month. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give us written notice of non-renewal at least ten (10) days before the end of the monthly term in which the notice is given. YOU ARE PURCHASING AND RENEWING THE SERVICE FOR FULL MONTHLY TERMS, MEANING THAT IF YOU ATTEMPT TO TERMINATE SERVICE PRIOR TO THE END OF A MONTHLY TERM, YOU WILL BE RESPONSIBLE FOR THE FULL AMOUNT OF ALL CHARGES AND FEES OF ANY KIND RELATED TO YOUR ACCOUNT UNTIL THE END OF THE THEN-CURRENT MONTHLY TERM, INCLUDING WITHOUT LIMITATION UNBILLED CHARGES, ALL OF WHICH IMMEDIATELY BECOME DUE AND PAYABLE. EXPIRATION OF THE TERM OR TERMINATION OF SERVICE DOES NOT EXCUSE THE CUSTOMER FROM PAYING ALL UNPAID, ACCRUED CHARGES DUE IN RELATION TO THE AGREEMENT.
9.(B). Annual Service: For annual subscribers, the service is offered on an annual basis for a term which begins on the date that we activate your Service and ends on the day before the same date in the following year. Subsequent terms of this Agreement automatically renew for 12 month terms on an annual basis without further action by you unless you give us written notice of non-renewal at least thirty (30) days before the end of the then-current annual term in which the notice is given. YOU ARE PURCHASING AND RENEWING THE SERVICE FOR A FULL 12-MONTH TERM, MEANING THAT IF YOU ATTEMPT TO TERMINATE SERVICE PRIOR TO THE END OF THE CURRENT ANNUAL TERM, YOU WILL BE RESPONSIBLE FOR THE FULL AMOUNT OF ALL CHARGES AND FEES OF ANY KIND RELATED TO YOUR ACCOUNT UNTIL THE END OF THE THEN-CURRENT 12 MONTH TERM, INCLUDING WITHOUT LIMITATION UNBILLED CHARGES, ALL OF WHICH IMMEDIATELY BECOME DUE AND PAYABLE. UNDER NO CIRCUMSTANCES SHALL EXPIRATION OF THE TERM OR TERMINATION OF SERVICE (INCLUDING EARLY TERMINATION) EXCUSE YOU FROM PAYING ALL UNPAID, ACCRUED CHARGES DUE IN RELATION TO THE AGREEMENT FOR AND THROUGH THE ENTIRE 12 MONTH TERM.
10. You acknowledge and understand that the Service does not function in the event of power failure and may not be fully operational and functional 24 hours a day / seven days a week. You also acknowledge and understand that the Service requires a fully functional connection to the Internet and/or PSTN (which we do not provide) and that, accordingly, in the event of an outage of, or termination of service with or by, your Internet service provider ("ISP") and/or broadband provider or your phone company, the Service will not function, but that you will continue to be billed for the Service unless and until you or we terminate the Service in accordance with this Agreement. Should there be an interruption in the power supply or ISP or phone company outage, the Service will not function until power is restored or the ISP outage is cured. A power failure or disruption may require you to reset or reconfigure equipment prior to utilizing the Service. Should we suspend or terminate your Service, the Service will not function until such time as we restore your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement). We make no guarantee of any kind regarding the Service or its continued and/or uninterrupted operation and functionality and, by using the Service, you (1) acknowledge and agree that the Service may not be fully operational and functional 24 hours a day / seven days a week, (2) assume all risk of loss and damage of any kind related thereto, and (3) understand and agree that we may plead this Agreement as a full and complete defense thereof.
11. You agree to notify us immediately, in writing and by calling our customer support line, if your “Virtual Calling Card” (“VCC”) is stolen or misappropriated from you or if you become aware at any time that your Service is being stolen, misappropriated or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the VCC theft or fraudulent use of Service. Failure to do so in a timely manner may result in the termination of your Service and additional charges to you. Until such time that we receive notice of the VCC theft or fraudulent use, you will be liable for all use of the Service and/or VCC stolen or misappropriated from you and any and all stolen Service or fraudulent use of the Service.
12. As described more fully under “Prohibited Uses,” we reserve the right to suspend or discontinue providing the Service generally, or to terminate your Service, at any time in our sole discretion. If we discontinue providing the Service generally, or terminate your Service in our discretion without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. If your Service is terminated for any stated reason, including without limitation violation of this Agreement, or because of any improper use of the Service (such as, but not limited to, your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate any of our acceptable use policies or of a third party provider to which we are subject), you will be responsible for all charges to the end of the current term, including without limitation unbilled charges, all of which immediately become due and payable.
13. You are responsible for, and shall pay, any applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you shall provide us with an original certificate that satisfies applicable legal requirement attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.
14. You acknowledge and understand that the Service is not a telephone service. Important distinctions (some, but not necessarily all, of which are described in this Agreement) exist between telephone service and the enhanced telecommunications service offering we provide. The Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal, State or Provincial telecommunications regulatory agencies.
15. No 911 Or 0+ Calling; May Not Support X11 Calling And Other Calling. Our Service does not support 911 calling or 0+ calling (including without limitation collect, third party billing or calling card calling). Our Service also may not support 311, 411, 511 and/or other x11 services in one or more (or all) service areas. Furthermore, our Service is currently not supported in all geographic areas and we acknowledge and, by using the Service, you agree that there are some geographic areas where you may not be able to place or receive calls, receive or send faxes or otherwise use and enjoy all of the telecommunications functionalities that we offer.
SOFTWARE LICENSE, RESTRICTIONS.
You are permitted to use our software solely on one computer at a time in object-code, machine-readable form, and solely for your own personal use. You may make a reasonable number of copies of our software solely for backup or archival purposes, provided that you reproduce all copyright and other proprietary notices that are on the original copy(s) of our software. You may not use, copy, modify, or transfer our software, or any copy thereof, in whole or in part, except as expressly provided for in this Agreement. You may not reverse engineer, disassemble, decompile, or translate our software, or otherwise attempt to derive the source code of our software, except to the extent allowed under any applicable law. Any attempt to transfer our software, or any of the rights, duties or obligations hereunder is void. You may not rent, lease, loan, resell, or distribute the software, in whole or in part.
Restricted Rights. Our software is provided with restricted rights. Our software is a "commercial item" as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government End Users acquire our software with only those rights set forth herein. THE SOFTWARE IS PROTECTED BY UNITED STATES COPYRIGHT LAW AND INTERNATIONAL TREATY. UNAUTHORIZED REPRODUCTION OR DISTRIBUTION IS SUBJECT TO CIVIL AND CRIMINAL PENALTIES.
Export Law. Our software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that you have the responsibility to obtain such licenses to export, re-export or import as may be required. By using our software, you agree to strictly comply with all of the United States and other applicable country laws and regulations when either exporting or re-exporting or importing this software or any underlying information or technology. Further, you acknowledge that you are not a national of Cuba, Iran, Iraq, Libya, North Korea, Sudan or Syria or any other country that may from time to time be subject to U.S. Treasury Department embargo restrictions or a party that is listed in the U.S. Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals.
No Ownership; License Grant Only. Our software is licensed, not sold, to you for use only under the terms of this Agreement, and we reserve all rights not expressly granted to you. You own the media, if any, on which our software is recorded, but we retains ownership of all copies of the software itself.
VIOLATION OF THIS AGREEMENT
In the event of any actual, threatened, or potential violation of the letter, spirit, or intent of any of the terms or conditions of this Agreement as determined by us in our sole discretion, we reserve the right to suspend or terminate, either temporarily or permanently, any or all services provided to you by us, to block any prohibited activity, or to take any other actions deemed appropriate by us in our sole discretion and without prior notice. With respect to abuse of the limits established from time to time by us on the number and/or size of messages which you send, receive and/or store while using the Service, or the number and/or length of calls you place or receive while using the Service, we also reserve the right to charge abusers, including any users of our free or unlimited plans, at Pro-Plan rates as then in effect. Users who violate this Agreement may additionally incur criminal and/or civil liability. We may refer violators to civil or criminal authorities for prosecution, and will cooperate fully with applicable government authorities in connection its investigations of any suspected civil or criminal violations.
INDEMNITY
YOU AGREE TO INDEMNIFY AND HOLD US AND EACH OF OUR RESPECTIVE PARENT, SUBSIDIARIES, AFFILIATES, TELECOMMUNICATIONS PROVIDERS, SERVICE PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING ATTORNEYS' FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF THE USE, SUSPENSION, DISABLEMENT, CANCELLATION, OR TERMINATION OF YOUR ACCOUNT ON THE SERVICE, ANY CONTENT POSTED, RECORDED, TRANSMITTED, OR RELAYED TO OR THROUGH THE SERVICE, YOUR VIOLATION OF THIS AGREEMENT, OR YOUR VIOLATION OF ANY THIRD PARTY RIGHTS.
DISCLAIMER OF WARRANTIES
THE SERVICE AND SOFTWARE ARE EACH PROVIDED BY US ON AN "AS IS" BASIS. NEITHER WE NOR OUR SUBSIDIARIES, PARENT, PARTNERS, PROVIDERS, OR AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION AND FUNCTIONALITY OF THE SERVICE AND/OR THE SOFTWARE OR ANY CONTENT TRANSMITTED OR MADE AVAILABLE BY OR THROUGH THE SERVICE AND/OR SOFTWARE. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHERMORE, WE DO NOT WARRANT THAT USE OF THE SERVICE AND/OR SOFTWARE WILL BE UNINTERRUPTED, AVAILABLE AT ANY TIME OR FROM ANY LOCATION, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE AND/OR SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
LIMITATION OF LIABILITY
IN NO EVENT WILL WE OR ANY OF OUR RESPECTIVE PARENT, SUBSIDIARIES, AFFILIATES, SUPPLIERS, SERVICE PROVIDERS, OR OTHER THIRD PARTIES AFFILIATED THEREWITH BE LIABLE FOR ANY DAMAGES WHATSOEVER INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, SUSPENSION, CANCELLATION, DISABLEMENT, TERMINATION, OR THE RESULTS OF USE OF THE SERVICE, ANY WEB SITES LINKED TO THE SERVICE, THE MATERIALS OR INFORMATION CONTAINED AT ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY TOGETHER WITH THAT OF ANY OF OUR RESPECTIVE SUPPLIERS, SERVICE PROVIDERS, OR OTHER THIRD PARTIES AFFILIATED THEREWITH, ARISING FROM OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM, (E.G. CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, MALPRACTICE, FRAUD OR ANY OTHER LEGAL THEORY)) IS LIMITED TO FIFTY DOLLARS ($50). APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
By way of example only, we shall not be liable for any delay or failure to provide the Service, including 0+ dialing or 911 dialing, at any time or from time to time, or any interruption or degradation of voice or fax quality that is caused by any of the following:
1.) act or omission of ourselves, an underlying carrier, service provider, vendor or other third party;
2.) equipment, network or facility failure;
3.) equipment, network or facility upgrade or modification;
4.) force majeure events such as (but not limited to) acts of God; strikes; fire; war; riot; government actions;
5.) equipment, network or facility shortage;
6.) equipment or facility relocation;
7.) service, equipment, network or facility failure caused by the loss of power to you or us;
8) outage of your phone company, ISP or broadband service provider, or ourselves or our underlying carrier;
9) act or omission of ourselves, you or any person using the Service; or
10) any other cause, including without limitation a failure of or defect in any device, the failure of an incoming or outgoing communication, the inability of communications (including but not limited to without limitation 0+ or 911 dialing) to be connected or completed, or degradation of voice or fax quality.
You also acknowledge and agree that we make no representation, and do not purport to offer any enhancements, with respect to processing of Caller ID information from incoming callers. We will attempt to display and log caller's Caller ID information as it is provided to us by the telecommunications network provider(s), but we make no representations of any kind that such attempts shall be successful. WE EXPRESSLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO BLOCKING OUT CALLER ID INFORMATION IF IT IS PRESENTED TO US AS UNBLOCKED, OR UNBLOCKING SUCH INFORMATION IF IT IS PRESENTED AS BLOCKED, OR IF IT IS OTHERWISE UNAVAILABLE TO US. YOU EXPRESSLY AGREE TO FULLY INDEMNIFY AND HOLD US HARMLESS FROM AND AGAINST ANY LIABILITIES OF ANY KIND PERTAINING TO INAPPROPRIATE OR UNAUTHORIZED USE OF THE CALLER ID INFORMATION, AS WELL AS ANY FAILURE BY US, PARENT, SUBSIDIARIES, AFFILIATES OR OUR SUPPLIERS TO BLOCK OUT CALLER ID INFORMATION, IF IT IS PRESENTED TO US AS UNBLOCKED, OR UNBLOCKING SUCH INFORMATION IF IT IS PRESENTED AS BLOCKED, OR IF THE CALLER ID OR CALLER ID BLOCKING INFORMATION IS OTHERWISE UNAVAILABLE TO US.
TERMINATION
Either you or we may terminate your account at any time. This is your sole and exclusive remedy with respect to any dissatisfaction with the Service, the terms and conditions set forth in the Agreement as may be updated from time to time, or any of our other policies and practices now in effect or that may be adopted or modified in the future. You may terminate your account by delivering a letter by United States mail to: eXtreme Answer, P.O. Box 399, Belmont, CA 94002-0399, Attn: Account Administrator. Your account termination will take effect within a reasonable amount of time after our receipt of your termination notice. We reserve the right to restrict access to the Service and/or our software to any user (including you) if we reasonably believe that you have breached this Agreement in any way, and may at any time, in our sole discretion, with or without notice and with or without cause, immediately deny access to the Service and/or our software and may remove all account information, voice and fax mail boxes and their contents, and any other content. PLEASE NOTE THAT MONTHLY, BIANNUAL, AND ANNUAL SUBSCRIPTION PAYMENTS FOR THE SERVICE ARE NON-REFUNDABLE AND WILL NOT BE PRORATED REGARDLESS OF USAGE.
GENERAL
This Agreement shall be governed by and construed in accordance with the laws of the state of California as it is applied to contracts entered into exclusively by residents of the state of California. You also consent to the exclusive jurisdiction of the state and federal courts in San Mateo County, California, and you further consent to the exercise of personal jurisdiction of the courts therein. If any provision(s) of the Agreement is found to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Our failure in any instance to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. You and we agree that any cause of action arising out of or related to this Agreement or the Service and/or our software must commence within one (1) year after the events giving rise to the cause of action first arose; otherwise, such cause of action is permanently barred. The section titles in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance. These terms and conditions constitute the entire agreement between you and us with respect to the subject matter herein and supersede in their entirety any and all prior or contemporaneous oral or written agreements. You may not assign this agreement to any other party.
MANDATORY ARBITRATION
Any dispute or claim between you and us arising out of or relating to the Service provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in San Mateo County, California and shall be conducted in English. The arbitrator's decision shall follow the plain meaning of the relevant documents, and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. YOU (CUSTOMER) ACKNOWLEDGE THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
BY CLICKING ON THE "ACCEPT" BUTTON DURING THE SIGNUP PROCESS, OR OTHERWISE USING THE SERVICE YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS.
*eXtreme Answer™ is operated by and is a trademark of RingCentral, Inc. RingCentral®
is the registered trademark of RingCentral, Inc.