These Terms of Service apply to all users of Phonevite Services (as defined below). Phonevite Services include all aspects of Phonevite, including but not limited to the website, and all products, software and services offered via the Phonevite website (including the Embeddable Voice Player and other applications), telephone, or other medium through which services are offered to or accessed by users (together, the "Phonevite Service").
Phonevite reserves the right, at its sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of these Terms of Service at any time, including without limitation access policies, the availability of any feature of the Phonevite Service, hours of availability, content, data, software or equipment needed to access Phonevite Services, effective with or without prior notice. Although we may attempt to notify you when material changes are made to these Terms of Service, you should periodically review the most up-to-date version at https://www.phonevite.com/company/terms. IF YOU CANNOT COMPLY WITH CHANGES TO THESE TERMS OF SERVICE, OR SUCH CHANGES ARE UNACCEPTABLE TO YOU, YOU MUST TERMINATE, AND IMMEDIATELY STOP USING THE IFONOCLAST SERVICE. Your continued use of any aspect of the Phonevite Service following any revision to this Terms of Service constitutes your complete and irrevocable acceptance of any and all such changes.
You agree, as a condition of your use of the Phonevite Service, to provide Phonevite with accurate and complete information when registering for or using the Phonevite Service, and to update and maintain such information.
The Phonevite Service is available only to individuals eighteen (18) years of age and older. If you are between the ages of thirteen (13) and eighteen (18), your parent or guardian must complete the registration process, in which case the parent or guardian will take full responsibility for all obligations under these Terms of Service. By agreeing to these Terms of Service during user registration, you represent that you are at least eighteen (18) years of age and are either accepting the Terms of Service on behalf of yourself or on behalf of your child. You may not transfer, sell, or share your account with anyone, unless you are a parent or guardian, in which case you may permit one child to use your account instead of yourself. You are liable for all activities conducted through your account.
The Children's Online Privacy Protection Act, 15 U.S.C § 6501 et seq. imposes rules regarding the collection of personal information from children. The Phonevite Service is not directed at children under the age of thirteen (13). If you are under the age of thirteen (13) you may not create an account and must not provide any personal information to Phonevite.
Phonevite has the right, in its sole and absolute discretion and without providing notice to you, to suspend, restrict or terminate your use of the Phonevite Service and/or your account, and to refuse any future use of all or any portion or portions of the Phonevite Service at any time for any reason. Any advance payment you may have been made may not be refunded if you violate these Terms of Service.
When you sign up, you will establish an email address as the user ID and a password of your choice. You are responsible for protecting the confidentiality of your user ID and password, and you shall accept responsibility for all activities that occur under your user ID.
You agree to: (1) exit from your account when you conclude each session, and (2) immediately notify Phonevite of any loss, compromise or unauthorized use of your user ID and password or any other breach of security. You may notify Phonevite by sending an e-mail to firstname.lastname@example.org.
You agree and consent that Phonevite may record or monitor oral or voice communications, utterances, and conversations or commands made by you during the use of the Phonevite Service as permitted by 18 U.S.C. § 2511 et seq., Cal. Penal Code § 632 et seq., and other state laws that regulate call monitoring and recording.
Phonevite is under no obligation to monitor or record its Services for accuracy, completeness, or quality. You understand that recordings may or may not resemble that which you intend to record and that Phonevite is under no obligation to ensure that recordings will successfully represent that which you intend to record. You agree that all recordings or monitoring become part of the Content (hereinafter defined) of the Phonevite Service.
You agree that Phonevite may limit your use of the Phonevite Service, including without limitation the frequency and duration for which you may access the Phonevite Service, and that Phonevite has no responsibility or liability for any unavailability or limitation on use of the Phonevite Service.
In addition, Phonevite reserves the right at any time to limit access to, modify, change, suspend or discontinue the Phonevite Service, or any part thereof, without notice to you.
You agree that Phonevite shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Phonevite Service.
You acknowledge and agree that Phonevite may establish general practices and limits, which may not be published, concerning the use of the Phonevite Service, including without limitation the maximum time that messages will be retained, the maximum number of messages that may be sent from or received by an account on the Phonevite Service, the length of message sent and the maximum number of times, and the maximum duration for which you may access the Phonevite Service, in a given period of time.
You agree that Phonevite has no responsibility or liability for the deletion or failure to store any Content, including messages and other communications maintained or transmitted by the Phonevite Service. You acknowledge that Phonevite reserves the right to terminate any inactive or dormant account(s). You agree that Phonevite reserves the right to change these general practices and limits at any time, in its sole discretion, without notice to you.
You may not use the Phonevite Service in any manner that could damage, impair, disable or overburden the Phonevite Service, interfere in any way with Phonevite's rights, interfere in any way with any other user's use and enjoyment of the Phonevite Service, or otherwise infringe any person's rights.
Specifically, you agree and warrant to Phonevite that:
As part of the Phonevite Service, Phonevite may offer you access to communications, media and commerce services. Phonevite does not guarantee the accuracy, integrity, quality or appropriateness of any messages, communications, information, data, text, music, sound, or other materials ("Content"), whether publicly posted or privately transmitted through the Phonevite Service.
You acknowledge that the Phonevite Service simply acts as a passive conduit for the distribution and transmission of information and that Phonevite has no obligation to screen, preview, or monitor any Content, Published Content (as defined below) or otherwise.
By using the Phonevite Service, you agree that it is solely YOUR RESPONSIBILITY to evaluate the accuracy, usefulness, completeness, or appropriateness of any Content that you send, receive, access, post, or otherwise transmit through the Phonevite Service, including Content that may be offensive, indecent or objectionable.
Under no circumstances will Phonevite be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content; loss, destruction or degradation of any Content; or for any loss or damage of any kind incurred as a result of the use of any Content stored, sent, accessed, posted or otherwise transmitted via the Phonevite Service.
If you post or publish your Content and make it available to others through any aspect of the Phonevite Service, including the Embeddable Voice Player, links, permission levels or other explicitly authorized means Phonevite may designate (such Content, the "Published Content"), the following restrictions and conditions apply:
If you are a copyright owner or an agent thereof and believe that any Published Content or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):
DMCA notices should be emailed to email@example.com. You acknowledge that if you fail to comply with all of the above requirements, your DMCA notice may not be valid.
Phonevite will immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited messaging activities, such as illegal telemarketing.
Phonevite retains sole responsibility and discretion for calculating losses; because these and other damages are often difficult to quantify, if actual damages cannot be reasonably calculated by Phonevite, then you agree to pay Phonevite liquidated damages of $10.00 for each piece of spam or unsolicited message transmitted from or otherwise connected with your Phonevite account; otherwise, you agree to pay Phonevite's actual damages, to the extent such actual damages can be reasonably calculated by Phonevite.
As a part of your use of Phonevite Services, you agree to comply with the rules and regulations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. and its regulations at 47 C.F.R. § 64.1200 including, but not limited to, the national "Do-Not-Call" list rules and regulations. Specifically, you agree that you will not make automatic telephone dialing system calls ("ATDS") or prerecorded advertisement or telemarketing calls to cell phones or other numbers for which the called party is charged without prior express written consent in violation of the TCPA. You agree that you will not make prerecorded calls to residential lines without prior express written consent in violation of the TCPA.
You further agree to comply with the rules and regulations of the Telemarketing Sales Rule ("TSR"), 16 C.F.R. § 310 et seq., and all additional state telemarketing and "Do-Not-Call" list rules and regulations. You represent and warrant that your use of the Phonevite Service will not cause Phonevite to violate these or other similar laws.
You agree to comply with the anti-solicitation provisions of the Federal Telephone Consumer Protection Act of 1991, and any amendments thereto, at 47 U.S.C. § 227, the Federal Communications Commission's implementing regulations, at 47 CFR §6 64.1200 et seq., and any other similar laws. You agree not to violate these, or any other applicable anti-solicitation laws, and
You agree that it is your responsibility to abide by any federal and state laws applicable to your use of Phonevite Services. You understand and agree that Phonevite will not be held responsible for damages to you or any third party incurred due to your failure to abide by state or federal laws.
If you are using the Phonevite Service in Canada, you agree to comply with all Canadian telecommunications or privacy laws and rules including rules and orders issued by the Canadian Radio-television and Telecommunications Commission, any National Do Not Call Registry or Unsolicited Telecommunications Rules, the federal Personal Information Protection and Electronic Documents Act or any substantially similar provincial law which may be applicable.
Phonevite calls and delivers messages to phone numbers within the contiguous forty eight (48) states and Hawaii and charges the rates published on its web site(s), plus any applicable taxes, fees and surcharges as mandated by law. Phonevite may add or modify the rates or service fees at any time without providing notice to you. The current rates are listed on the Phonevite web site. All rates are provided in U.S. dollar amounts.
Phonevite charges you on a prepaid basis debiting your credit card or bank account as authorized by you. At your request, Phonevite may automatically charge a preset amount when your account balance falls under a specified threshold. After a preset amount is charged to your account at your request, if you do not use the Phonevite service for thirty (30) consecutive days thereafter, you agree that any amount remaining on your account shall be non-refundable.
At Phonevite's sole discretion, Phonevite call credits expire after three hundred sixty (365) days of inactivity or upon exhaustion of the call credits. Inactivity is defined to mean that User has neither purchased an additional prepaid amount, nor initiated a broadcast.
Phonevite may make your personally identifiable information available to its employees and third parties with whom it contracts in respect of the Phonevite Service. In addition, Phonevite may provide aggregate statistics, unique identifiers, demographic, and other anonymous information about its users to advertisers, Service Providers (hereinafter defined), and other third parties. You acknowledge and agree that Phonevite may make such uses of information you provide or Phonevite collects.
Phonevite is committed to protecting your privacy, but does not guarantee your communications, contact information and other identifiable information will never be disclosed. You acknowledge and agree that Phonevite may disclose any information or Content as described herein, or if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to: (1) comply with any legal process; (2) respond to claims of a violation of the rights of third parties; or (3) protect the rights, property, or safety of Phonevite, its users or the public. Phonevite does not accept any responsibility for accidental or inadvertent disclosure, unauthorized access or other disclosure as required by law or described herein.
The Phonevite Service may provide you with opportunities to be transferred or linked to third party providers ("Service Providers") of products, services, advertisements or Content that may be accessible through and operate with the Phonevite Service. Phonevite provides these links for your convenience only. Phonevite does not endorse and is not responsible or liable for any Content, data, advertising, products or services available or unavailable from, or through, such Service Providers.
Phonevite is not directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with your use or reliance on any Content, data, advertisement, goods or services on, available or unavailable from, or through any such Service Providers. Your dealings with, or participation in promotions of Service Providers, and any other terms, conditions, representations or warranties associated with such dealings, are between you and such Service Providers exclusively and is at your own risk. You agree that Phonevite is not responsible for the accessibility or unavailability of Service Providers or for your interaction and dealings with them.
Linking to Phonevite's web site is strictly prohibited without written consent from Phonevite.
Phonevite disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information or material displayed in its site(s). Phonevite disclaims any responsibility for the deletion, failure to store, misdelivery, or untimely delivery of any information, communication or material. Phonevite disclaims any responsibility for any harm resulting from downloading or accessing any information or material on the Internet through its site(s).
THE PRODUCTS AND SERVICES PROVIDED BY IFONOCLAST, AND ALL MATERIALS AND INFORMATION INCLUDED IN IFONOCLAST PRODUCTS AND SERVICES ARE PROVIDED "AS IS," WITH NO WARRANTIES OR REPRESENTATIONS WHATSOEVER. IFONOCLAST AND ITS LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. IFONOCLAST AND ITS LICENSORS DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE IFONOCLAST SERVICES. IFONOCLAST AND ITS LICENSORS DISCLAIM, ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE IFONOCLAST SERVICE. IFONOCLAST AND ITS LICENSORS DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE IFONOCLAST SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED BY THE IFONOCLAST SERVICE, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS PROVIDED IN THE IFONOCLAST SERVICE.
YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE IFONOCLAST SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
UNDER NO CIRCUMSTANCES SHALL IFONOCLAST OR ITS LICENSORS OR AFFILIATES, OR ANY OF THEIR EMPLOYEES, DIRECTORS, OFFICERS OR AGENTS (COLLECTIVELY referred to as .IFONOCLAST. for the purposes of this Limitation of Liability and the Indemnification hereunder) BE LIABLE TO ANY USER ON ACCOUNT OF THAT USER'S USE OR MISUSE OF OR RELIANCE ON THE IFONOCLAST SERVICE. ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF IFONOCLAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE IFONOCLAST SERVICE, FROM INABILITY TO USE THE IFONOCLAST SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE IFONOCLAST SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE IFONOCLAST SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE IFONOCLAST SERVICE, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE IFONOCLAST SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE IFONOCLAST SERVICE. THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE IFONOCLAST SERVICE OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE IFONOCLAST SERVICE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION OF LIABILITY IS DETERMINED TO BE UNENFORCEABLE OR INVALID FOR ANY REASON, THE AGGREGATE LIABILITY OF IFONOCLAST UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED THE DOLLAR AMOUNT WHICH YOU PAID TO IFONOCLAST FOR USE OF THE IFONOCLAST SERVICE.
Without limiting the foregoing, under no circumstances shall Phonevite be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS IFONOCLAST FROM AND AGAINST ALL LOSSES, LIABILITIES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS' FEES RESULTING FROM OR ARISING OUT OF ANY CONTENT YOU TRANSMIT THROUGH THE IFONOCLAST SERVICE, YOUR USE OF THE IFONOCLAST SERVICE, YOUR VIOLATION OF THE TERMS OF SERVICE OR USER AGREEMENT OR ANY HARM YOU MAY CAUSE TO ANYONE IN CONNECTION WITH SAME. YOU AGREE THAT IFONOCLAST RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU.
You acknowledge and agree that the Phonevite Service and any necessary software used in connection with the Phonevite Service is the property of Phonevite and contains proprietary and confidential information that are protected by applicable intellectual property and other laws.
You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Phonevite Service or other users is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
You agree not to, modify, reformat, copy, display, distribute, transmit, publish, license, create derivative works from, transfer or sell any information, products or services obtained from the Phonevite Service, except as set forth herein.
Phonevite, the Phonevite logo and other Phonevite logos, product and service names may be trademarks, service marks or other intellectual property of Phonevite (the " Phonevite Marks"). You agree not to display or use the Phonevite Marks in any manner without the prior, express written permission of Phonevite.
The laws of the State of California, excluding its conflicts-of-law rules, govern this Terms of Service and your account. You expressly agree that exclusive jurisdiction for any claim or dispute with Phonevite, arising out of or relating in any way to your account or your use of the Phonevite Service resides in the federal and state courts within the jurisdiction of the United States District Court for the Central District of California, and you further agree and expressly consent to the exercise of personal jurisdiction in such courts in connection with any such dispute including any claim involving Phonevite or its affiliates, subsidiaries, employees, contractors, officers, directors, vendors and content providers.
If for any reason a court of competent jurisdiction finds any provision or portion of the Terms of Service to be invalid or unenforceable, the remainder of the Terms of Service will continue in full force and effect.
These Terms of Service, the User Agreement and any document referenced herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Terms of Service, User Agreement or other document referenced herein will be effective only if in writing and signed by Phonevite.