YesTrak | Your Answering Service in the Cloud | Phone Call Handling SystemYesTrak | Your Answering Service in the Cloud | Phone Call Handling SystemEffective as of September 12, 2013
These terms and conditions (these “Terms”) constitute a contract between you and ViziCall and govern the use of and access to the Services and the Site by you. By accepting these Terms, or by accessing or using the Services or the Site, you agree to be bound by these Terms. If you are entering into these Terms on behalf of an entity, you are agreeing to these Terms for such entity and representing to ViziCall that you have the authority to bind such entity and its affiliates to these Terms, in which case the term “you” shall refer to such entity and its affiliates.
1. ACCEPTANCE OF TERMS.
1.1. ViziCall makes the Site, including the Materials and the Services, available for your use subject to the Terms and any changes to the Terms that ViziCall may publish from time to time.
1.2. By using the Site or the Services, or by creating or maintaining an account for the Services for use by you or any other person, you agree to be bound by these Terms, unless we expressly agree in a writing signed by an authorized representative of ViziCall that different or additional terms apply.
1.3. These Terms are subject to change by ViziCall without prior notice at any time, effective upon posting on the Site, and your continued use of the Site and the Services after such posting will constitute acceptance by you of any such changes.
2. DEFINITIONS.The following terms have the respective meanings indicated below whenever used in these Terms with initial capital letters:
2.1. “Account” means the account (i) through which you use the Services, whether such account is registered to you or a Member who has provided you access to use such Member’s account, or (ii) that you create on behalf of another person who becomes a Member thereby.
2.2. “Materials” means all content, articles, information, text, files, software, graphics, music, photos, audio, video, messages, feedback, notes, suggestions, ideas, concepts, know-how, techniques, questions, comments, communications and other material displayed on or that can be downloaded from the Site.
2.3. “Member” means the named holder of a subscription or Account for the services.
2.4. “Member Content” means all Materials provided to ViziCall by or on behalf of a Member and/or posted by or on behalf of a Member on the Site (which, for the avoidance of doubt, shall include any Materials provided or posted through an Account to which a Member has granted you access).
2.5. “Services” means and services operated by ViziCall through the Site.
2.6. “Site” means www.yestrak.com.
2.7. “ViziCall” or “we” means ViziCall, LLC, a Delaware limited liability company.
2.8. “YesTrak Content” means all Materials provided by ViziCall and included on the Site.
3. ACCOUNTS; MEMBER SUBSCRIPTION.
3.1. You may use the Services only while you are (i) a paying Member who subscribes to the Services, or (ii) using the Services with the express permission of a paying Member who subscribes to the Services.
3.2. Unless otherwise specified by ViziCall or by another express agreement with ViziCall to the contrary, your right to access or use the Services terminates on the earlier of (i) the date on which any charge or fee, or other balance due under the Account, is past due and ViziCall determines, in its sole discretion, to terminate the Account or suspend the Services, or (ii) any other date upon which the related Member or ViziCall has the right to terminate the Account or suspend the Services as provided in these Terms or any other applicable agreement or policy.
3.3. You represent and warrant that you are at least eighteen (18) years of age or have the approval of your parent or guardian to register for or use the Services. If ViziCall becomes aware that you or a Member is under the age of eighteen (18) and not appropriately supervised, ViziCall may cancel the Account or otherwise restrict access to it.
3.4. You represent, to the extent you use any feature of the Services and you are not a Member, that you have the express permission of a Member to use that Member’s Account. Conversely, if you are creating or registering an Account on behalf of another person who will become a Member thereby, you hereby represent, warrant, and covenant that you have the express authority to register such person, create such Account, and bind such Member to these Terms (in its capacity as a Member) and the policies and requirements pertaining to the Services (including without limitation the authority to incur recurring payment card billing obligations on behalf of such Member), and you hereby indemnify ViziCall from any loss, damage, claim or expense (including reasonable attorney’s fees and expenses) arising out of or related to your failure to actually acquire such authority or such new Member’s dispute or denial of any such authority. ViziCall reserves the right to discontinue allowing persons who are not (or who do not become thereby) registered Members to create, use, or access Accounts or the Services, whether on an account by account basis or otherwise, in its sole discretion. ViziCall may establish other reasonable Account or Services registration or usage limits in its sole discretion. We further reserve the right to refuse the Services to any person for any reason, in our sole discretion. During registration, each Member must submit and maintain current and accurate Account and contact information, including a working email address and telephone number, and any inaccuracy therein shall be grounds for Account termination. We may distribute notices and other important information to members to such email addresses, by publication on the Site, by transmission through the Services, or by written communication sent by mail to the Member address on record. Regardless of method, each Member is responsible to assure that other users of the Account or the Services thereunder are notified accordingly and all such users shall be deemed to have received such notice when provided to the Member of record by reasonable means. Such notices, including any amendments to these Terms or to any policies, rules, or restrictions, shall be effective as against the Member and all other users of the Services upon such publication or distribution of such notice and such Member’s continued use of the Services.
3.5. You are responsible for providing the equipment and services, if any, and configuring the same correctly, as necessary for your access to the Services. ViziCall is not responsible for any telephone or internet connection charges, surcharges, taxes, or other amounts incurred in accessing the Services, for which you accept all responsibility. If ViziCall specifies, at any time, any particular system requirements or hardware specifications for use of the Services, you will be responsible to provide the same or to cease your use of the Services.
3.6. You hereby acknowledge and agree that Member Content shall not contain any contact information, including, but not limited to, phone numbers, URLs or email addresses, and no such contact information will allowed to be posted publicly anywhere on the Site unless we expressly agree in advance documented by a writing signed by an authorized representative of ViziCall.
4. PRICE AND PAYMENT; CANCELLATION OR TERMINATION OF SERVICE.
4.1. Each Member will be billed according to such Member’s chosen Services and billing plan, as described on the applicable page(s) of the Site. Services plans are billed as follows: plan recurring charges and other base fees are billed in advance; usage charges are billed in per minute increments in arrears following the end of the billing cycle. ViziCall reserves the right to withdraw or modify Services or billing plans at any time or from time to time effective at the end of any billing cycle and upon thirty (30) days’ written notice. No refunds for unused time or capacity, or for partial periods of usage prior to effective Account cancellation, shall be given. The Member agrees to pay all fees and per minute usage charges applied to the Member’s Account in accordance herewith or with the applicable Services plan selected by the Member, and to comply with applicable billing terms in effect at the time the fee or charge becomes payable (including without limitation, as applicable, that payments will be charged to the Member’s payment card). Member hereby authorizes periodic charges (e.g., monthly) without further authorization from you to be applied to the Member’s payment card, according to such plan(s) until cancelled as provided below. Billing disputes must be submitted within thirty (30) days of the applicable billing date or are deemed waived. Payments to ViziCall are nonrefundable. Time is of the essence for payments hereunder, and any past due amounts shall bear interest at the lower of 1.5% per month or the highest rate allowed by applicable law. Each Member is responsible for any costs or expenses (including legal or collection agent fees and expenses) of collecting any past due amounts from such Member for such Member’s Account. Unpaid bills may be sent to third party collections. Member payment obligations are not contingent upon collection of any amounts from any users or third parties.
4.2. A Member may cancel an Account at any time by logging in to their account and clicking the ‘Process Cancellation’ button contained in the Billing Section. No other forms of cancellation will be accepted. There will be no refund or prorating of fees upon cancellation by Member, and any amounts due must be paid in full before the cancellation may occur.
4.3. ViziCall may in its sole discretion, without refund, terminate an Account or suspend access to the Services immediately without notice, if you or a Member whose account you are using, or any other user of that Account, fails to (i) pay all amounts when due, or (ii) comply with these Terms, thereby terminating these Terms (except for terms which by their nature should survive) and all obligations of ViziCall hereunder or with respect to the Services. The Member shall be responsible for any balance due on the Account.
4.4. For clarification and without limitation to any other billing method practiced by ViziCall, ViziCall bills, and Members must pay, for all minutes of usage for each call from the instant a call is initiated by, or connected to, the ViziCall network to the instant all parties to such call are disconnected (subject to minimum call durations, billing increments, and duration rounding practices used by ViziCall or its carriers), in accordance with ViziCall or industry standard practices, notwithstanding any call transfer, disconnection by one party, or other event.
5. EFFECT OF TERMINATION.
5.1. Effective immediately upon termination: (i) the Account will be terminated and you will no longer have access to the Services; (ii) all of your outstanding usage charges will be billed; (iii) all of the terms and conditions agreed to by you when signing or assenting to these Terms shall survive and shall remain in full force and effect; and (iv) ViziCall will have no further obligations to you in respect of the Site, the Services or otherwise except as specifically set for in these Terms.
5.2. For a period of thirty (30) days after effective termination date, ViziCall will store and allow Member to download all stored phone call recordings or protected health information (collectively, the “PHI”) from ViziCall’s servers. Following this thirty (30) day time period, ViziCall shall destroy all PHI, and retain no copies, unless ViziCall otherwise requires the PHI for its proper management or administration, or is precluded from destroying the PHI by law.
6. ACCOUNT RULES AND REQUIREMENT; ACCEPTABLE USE POLICIES.
6.1. When an Account is registered, the registrant will select a password (or, for multi-user accounts, multiple passwords may be selected). All users agree to keep their respective passwords secret, and any person who registers an Account on behalf of any other person, or any Member who allows use of the Services by other users under its Account, shall cause such persons to, and to agree to, keep all applicable respective passwords secret. You will be held liable for all Account use or misuse under your password, and Member Account holders are responsible for all activities under the Account under any password (including, with respect to each of the foregoing, any civil or criminal liability therefore). If you feel there may have been a breach in security, such as the unauthorized disclosure or use of any phone number or password, you must promptly notify ViziCall, and we strongly recommend that you change passwords. ViziCall is not liable for any loss or damage arising from your failure to comply with this section or any unauthorized Account usage.
6.2. When creating an Account for, using, or accessing the Services, you agree, and each Member shall cause all other users of such Member’s Account to agree, to abide by all of ViziCall’s use policies in effect from time to time, including the Privacy Policy published on the Site, any policies distributed by email, or any amendments thereto, which policies include, without limitation, the following: you, and each Member or other user of the Account (i) shall (a) abide by all applicable laws, rules, and regulations relating to the use, posting, transmission, distribution, capture, download, and/or recording of voice, content, software or other matter; (b) conform all usage to applicable rules, laws, and regulations pertaining to or regulating the use of telephone networks, telemarketing, do-not-call requests or lists, pre-recorded messages and other automated voice broadcasts, automated dialers, call or voice recording or surveillance, text, SMS, and other messages, and electronic mail (including anti-spamming laws) (for each of which you take sole responsibility for compliance); and (c) provide us with accurate and legally compliant user telephone numbers and contact information, caller ID, ANI and other Services user information (which you represent and warrant to be accurate and compliant); and (ii) shall not (nor allow any person to) (a) use the Services in any manner which violates the rights of any person or is illegal, fraudulent, deceptive (including without limitation any spoofing of caller ID information or similar practices likely to deceive any other party contacted through the Services), harassing, threatening, harmful, libelous, defamatory, abusive, slanderous, hateful, sexually, racially or ethnically objectionable, vulgar, pornographic, obscene, invasive of privacy, or otherwise objectionable or unlawful; (b) attempt to gain unauthorized access to any account, the ViziCall network, or any related components; (c) use or access the Services by mobile telephone while operating a motor vehicle to the extent prohibited by any competent jurisdiction (when such usage is permitted, we strongly recommend use of a hands-free telephone); (d) interfere with another’s use and enjoyment of any ViziCall services; (e) upload, post, or otherwise transmit through the Site any viruses or other harmful, disruptive, or destructive files; (f) create a false identity; and (g) disrupt or interfere with the security of, or otherwise cause harm to, the Site, the Services, YesTrak Content, Member Content, Materials, system resources, accounts, passwords, servers, or networks connected to or accessible through the Site or any affiliated or linked web sites. Any Member or user who uses the Services for telemarketing or similarly regulated purposes is directly and solely responsible for compliance with applicable laws, including without limitation for filing, subscribing, or holding appropriate regulatory compliance documentation as required by competent jurisdictions and/or the purchase of access to any do-not-call lists and the like, and hereby indemnifies and holds harmless ViziCall and its owners, officers, employees, and other agents from and against any claim, liability, loss, cost, or expense (including attorneys’ fees and expenses) arising out of or related to such use of the Services or any failure to comply with applicable legal requirements with respect thereto.
6.3. Any violation of ViziCall policies by you or anyone using your Account will be grounds for termination of the Account, at ViziCall’s sole discretion, and you may be reported to appropriate law-enforcement agencies. ViziCall shall not be liable for any injury or damage suffered by or during use of the Services.
7. BUSINESS ASSOCIATE AGREEMENT PURSUANT TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPAA) OF 1996.
7.1. Pursuant to the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”) and in compliance with the Standards for Privacy of Individually Identifiable Health Information at 45 C. F. R. part 160, subpart A and part 164, subpart E, as amended from time to time (“Privacy Rule”), you hereby agree to (i) allow ViziCall access to your Protected Health Information (“PHI”) to conduct its Services; (ii) provide ViziCall in writing with any restrictions to the use or disclosure of any PHI and any changes in, or revocation of permission by any particular patient’s use or disclosure of PHI, if such changes affect ViziCall permitted or required uses and disclosures of such PHI; and (iii) request ViziCall to use or disclose PHI in any manner that would not be permissible under the Privacy Rule.
7.2. You also hereby allow ViziCall to (i) use and disclose PHI to perform all functions, activities, or services for, to, or on your behalf for which ViziCall has been retained, provided that such uses or disclosures would not violate the Privacy Rule; (ii) use PHI for ViziCall’s proper management and administration or to carry out its legal responsibilities; (iii) disclose PHI for ViziCall’s proper management and administration or to carry out its legal responsibilities, provided such disclosures are required by law, or ViziCall obtains reasonable assurances from the recipient that the PHI will remain confidential and will only be used or further disclosed as required by law or for the purpose for which it was disclosed by ViziCall, and the recipient notifies ViziCall of any instances of which it is aware that the confidentiality of the PHI has been breached; and (iv) use or disclose PHI as otherwise required by law.
7.3. ViziCall agrees to (i) not use or further disclose PHI other than as permitted or required by these Terms or as required by law; (ii) use appropriate safeguards to prevent the unauthorized use or disclosure of PHI; (iii) report to you any use or disclosure of PHI not otherwise permitted by these Terms of which ViziCall becomes aware; (iv) ensure that any agent, including a subcontractor, to whom ViziCall agrees to the same restrictions and conditions regarding PHI applicable to ViziCall under these Terms; (v) provide, upon your written request, copies of PHI which is maintained by ViziCall within ten (10) business days of receiving the written request; (vi) make, within thirty (30) days of receipt of a written request by you to amend the PHI, those amendments to PHI maintained by ViziCall required by the Privacy Rule; (vii) provide you (within thirty (30) days of receipt of a written request by you), pursuant to a patient’s request, with an accounting of disclosures of PHI made by ViziCall for which you are obligated to provide an accounting to the patient under the Privacy Rule; and (viii) make its internal practices, books, and records relating to its use and disclosure of PHI available to the Secretary of the US Department of Health and Human Services (“HHS Secretary”) upon proper request of the HHS Secretary (ViziCall shall notify you of any request received) and solely for the HHS Secretary’s purpose of determining your compliance with the Privacy Rules.
8. SERVICE AVAILABILITY AND GUARANTEE; MODIFICATIONS.
8.1. ViziCall guarantees that the calling network component of the Services will be available 99% of the time (the “Services Guarantee”), except for and subject to (i) scheduled maintenance outages of which we provide notice on the Site or by email, and (ii) regular backup and maintenance performed (without further notice) between 12 a.m. and 5 a.m. Central Time Zone. Other than the Services Guarantee, we make no guarantee as to the continuous availability of the Services or any specific feature of the Services. If the calling network component of the Services is unavailable, other than the maintenance and backup described above, more than 1% in any preceding ninety (90) day period, we will, upon request from the registered Member holding the Account, credit to the Account one minute of time for every minute of unavailability in excess of 1%, provided, however, that such credit cannot exceed the current monthly minimum service commitment level for that Account. This shall be your sole remedy for our failure to fulfill the Services Guarantee. You hereby waive all claims for damages for Services unavailability, scheduled or unscheduled, other than claims under the Services Guarantee, and indemnify ViziCall for any similar claims made by any other users on your Account.
8.2. ViziCall reserves the right, in its sole discretion, to change, modify, suspend, or discontinue, temporarily or permanently, any aspect of the Services, the Site and/or the Materials (or any part thereof) at any time with or without notice, including, without limitation, the availability of any feature of the Services, database or content, hours of availability, or equipment needed to access the Services. This includes, but is not limited to, the right to revoke, edit, remove, rearrange, or change the placement of any Member Content. You agree that ViziCall shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site, the Services or any Materials. We may also impose limits on certain features or restrict your access to parts or all of the Services without notice or liability. We do not guaranty that the Services may be accessed from all locations or with all equipment or types of communications access. We do not recommend, and do not support, use of the Services in mission critical situations or on mission critical equipment.
8.3. As between you and ViziCall, we own all local and toll-free numbers we provide as part of the Services and reserve the right to reallocate them at our discretion. While we will use reasonable efforts, we cannot promise that you or any Member will be able to maintain or keep any specific inbound telephone or toll-free number that we provide you. You acknowledge that if the Services is suspended or terminated due to your non-payment or breach of these Terms, that you may not be able to obtain the same local or toll-free numbers should you reactivate the Services.
9. USE OF YESTRAK TECHNOLOGY AND CONTENT.
9.1. The software, hardware, and other technologies which ViziCall uses to deliver the Services (the “YesTrak Technologies”) contain confidential and proprietary information, trade secrets, and other property rights belonging to ViziCall and its licensors. All rights to the YesTrak Technologies and all property rights related to the Services, including without limitation all patents (registered or unregistered), trade secrets (including diagrams, drawings, processes, production methods, information, data, computer software, and formulas), copyrights (whether registered or unregistered), domain names and subdomains, end-user and consumer information, work product resulting from custom implementation services, contract rights, including all derivative works thereof and all other intellectual property rights (in each case whether produced by ViziCall, you, or otherwise), shall remain exclusively the property of ViziCall and its applicable licensors. Each Member’s (and your and any other authorized user’s for the Account of such Member) rights to the YesTrak Technologies are limited to a non-exclusive and non-transferable runtime right solely during the term of the applicable Account subscription and solely for the purpose of using the Services. All Services are hosted by ViziCall and no software code will be provided to you. You may not use packet sniffers or other network or IP tracing technologies on the Services or with the YesTrak Technologies except for the specific purpose of optimizing your network for use of the Services in accordance with the Services documentation provided by ViziCall.
9.2. The Site also contains the copyrighted material, trademarks, and other proprietary information of ViziCall. The Services, Member Content, YesTrak Content and all other Materials on the Site, as well as their selection and arrangement, are protected by copyright, trademark, patent, and/or other intellectual property laws, and any unauthorized use of the Services, Member Content, YesTrak Content or any other Materials on this Site may violate such laws and these Terms. Except as expressly provided herein, ViziCall and its licensors and suppliers do not grant any express or implied rights to use the Services, Member Content, YesTrak Content and/or any other Materials on this Site. You hereby agree not to copy, republish, frame, download, transmit, modify, rent, lease, loan, sell, assign, distribute, license, sublicense, reverse engineer, create derivative works from or otherwise attempt to deduce the source code, design or data transmission of the YesTrak Technologies, the Site, the Services, Member Content, YesTrak Content or any other Materials on this Site or their selection and arrangement, except as expressly authorized herein. In addition, you agree not to use any data mining, robots, or similar data gathering and extraction methods in connection with the Site.
9.3. Opinions, advice, statements, offers, or other information or content made available through the Site or the Services, but not directly by ViziCall, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. VIZICALL DOES NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY MATERIALS OR OTHER INFORMATION ON THE SITE, OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY THAT APPEARS ON THE SITE. UNDER NO CIRCUMSTANCES WILL VIZICALL OR ITS SUBSIDIARIES, PARENTS, AFFILIATES, MANAGERS, SHAREHOLDERS, OFFICERS, DIRECTORS, AGENTS, RESELLERS, SALES AFFILIATES, LICENSORS, LICENSEES, OTHER PARTNERS, OR EMPLOYEES, BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE SITE OR TRANSMITTED TO OR BY ANY THIRD PARTY.
9.4. Any and all information you post to the Site or provide in connection with the Services must be accurate, current and complete and pertain to you. You agree that you will not provide inaccurate, misleading or false information to ViziCall or allow any such information to be published on the Site. If accurate information provided to ViziCall subsequently becomes inaccurate, misleading or false, you will promptly notify ViziCall of such change.
9.5. You may submit only Member Content to the Site that is (a) owned by you, (b) submitted with the express written permission of the owner or within the scope of the license to such content, or (c) in the public domain. You are prohibited from posting or transmitting to or from this Site any unlawful, threatening, harassing, libelous, offensive, defamatory, obscene, or pornographic materials, or other materials that would violate any law or the rights of others, including, without limitation, laws against copyright infringement, and rights of privacy and publicity. Violation of these restrictions may result in denial of or limitations on access by you to this Site.
9.6. By providing any Member Content to ViziCall, you automatically grant, and you represent and warrant that you have the right to grant, to ViziCall, its affiliates, licensees and successors, a royalty-free, irrevocable and non-exclusive right (including any moral rights) and license (as well as consent) to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, communicate to the public, perform and display such Member Content (in whole or in part and with or without the use of your name) worldwide and/or to incorporate such Member Content in other works in any form, media, or technology now known or later developed, for the full term of all copyrights, trademarks and other intellectual and proprietary rights that may exist in such Member Content. You further represent and warrant that public posting and use of your Member Content by ViziCall will not infringe or violate the rights of any third party. ViziCall has no obligation to retain Member Content and you agree that ViziCall shall not be liable for any failure to store Member Content.
9.7. ViziCall reserves the right, in its sole discretion, to delete or remove Member Content from the Site and to restrict, suspend, or terminate your access to all or part of the Site, at any time without prior notice or liability. ViziCall may, but is not obligated to, monitor or review any areas on the Site where users transmit or post Member Content, and the substance of any Member Content. To the maximum extent permitted by law, ViziCall will have no liability related to Member Content. ViziCall disclaims all liability with respect to the misuse, loss, modification, or unavailability of any Member Content or the Services.
10. TRADEMARKS. The brand names, slogans, trademarks, service marks, designs, and logos used on the Site or in conjunction with the Services, including without limitation ViziCall.com (collectively, the “Marks”) are the trademarks of ViziCall and its licensors. You may not copy, display or use the Marks in any manner except as may be automatically displayed by the Services or the Site or as may be provided in a separate express written agreement with ViziCall. You may not alter any Marks or logos or any other ViziCall materials, and you hereby agree that all goodwill and other intangible rights which accrue by use or display of any Marks or other materials shall accrue solely to the benefit of ViziCall. You further agree not to use any domain name, trademark, trade name, service mark, logo, or other materials confusingly similar to the Marks, and not to use the Marks in any disparaging manner. You agree not to challenge the validity of, or ViziCall’s ownership of, any ViziCall trademark, trade name, service mark, or other proprietary right.
11. INDEMNIFICATION. You agree to indemnify and hold harmless ViziCall, and its subsidiaries, parents, affiliates, managers, shareholders, officers, directors, agents, resellers, sales affiliates, licensees, other partners, employees and licensors (each, an “Indemnified Party”), from all claims, demands, liabilities, losses, damages and expenses (including without limitation reasonable legal fees and expenses), made by you and/or any third party arising from or in connection with (i) your use of the Services, any other user’s use of your Account, or your or their conduct while using the Services, (ii) your violation of these Terms, (iii) your violation of any rights of another, including without limitation any violation of applicable law or any tort committed while using the Site or the Services, (iv) content you submit, post to, or transmit through the Site (including, without limitation, any Member Content or computer viruses), (v) your connection to the Site, or (vi) the actions of any employee, partner, representative or agent of yours.
12. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, VIZICALL DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, THE ACCOUNT, THE YESTRAK TECHNOLOGIES, THE SITE, OR ANY OTHER SERVICE OR MATERIALS PROVIDED BY VIZICALL. VIZICALL MAKES NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICE. THE SERVICE IS PERFORMED AND THE YESTRAK TECHNOLOGIES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EACH OF WHICH IS HEREBY DISCLAIMED). YOU ARE SOLELY RESPONSIBLE FOR THE BACKUP OF ANY DATA WHICH YOU MAY REQUIRE BE STORED IN RESPECT OF THE SERVICE. IN PARTICULAR, EXCEPT AS PROVIDED UNDER THE SERVICE GUARANTEE, VIZICALL DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE IS BORNE BY YOU. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT AND THE SERVICE WOULD NOT BE AVAILABLE WITHOUT IT. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF AN IMPLIED WARRANTY, SO PORTIONS OF THIS DISCLAIMER MAY NOT APPLY TO YOU AND YOU MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY JURISDICTION. FURTHER, VIZICALL DISCLAIMS ANY RESPONSIBILITY FOR THE ACCURACY, CONTENT, OR AVAILABILITY OF INFORMATION AVAILABLE THROUGH THE SERVICE, AND VIZICALL SHALL NOT BE HELD RESPONSIBLE FOR THE ACCURACY, LEGALITY, OR DECENCY OF MATERIAL CONTAINED IN THIRD-PARTY SITES OR THROUGH THIRD-PARTY SERVICES (INCLUDING ANY SERVICE OR CONTENT REACHED THROUGH THE SERVICE OR THE SITE) AND YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST US WITH RESPECT THERETO.
13. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (TORT, CONTRACT, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE) SHALL AN INDEMNIFIED PARTY BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES THAT RESULT IN ANY WAY FROM ANY USE OF THE SITE, THE ACCOUNT OR THE SERVICE BY ANY PARTY OR YOUR INABILITY TO USE THE SITE OR THE SERVICE (EXCEPT WITH RESPECT TO THE SERVICE GUARANTEE) OR YOUR RELIANCE ON OR USE OF INFORMATION OR SERVICES PROVIDED ON OR THROUGH THE SERVICE OR THE SITE OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER SUCH DAMAGES ARE DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS, EVEN IF ANY INDEMNIFIED PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IF, NOTWITHSTANDING THE FOREGOING, AN INDEMNIFIED PARTY IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (TORT, CONTRACT, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE), SUCH INDEMNIFIED PARTY’S LIABILITY TO YOU WILL BE LIMITED TO THE AMOUNT PAID BY YOU (OR THE APPLICABLE MEMBER AND LIMITED TO A SINGLE-USER ACCOUNT) FOR THE SERVICE SUBSCRIPTION IN THE LAST THREE (3) MOST RECENTLY PAID MONTHS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
14. PERSONAL INFORMATION AND PRIVACY.
14.1. Except as otherwise expressly set forth herein, your personal information will be handled in accordance with our Privacy Policy. In any case, you understand and agree that ViziCall may disclose information about you if we have a good faith belief that we are required to do so by law or legal process, to respond to claims, or to protect the rights, property, or safety of ViziCall or others.
14.2. You agree not to disclose any personal information or data obtained through the Services regarding any other Member or user of the Site (the “User Data”) to any third party for any reason whatsoever without the prior consent of such Member or other user of the Site, unless revealing such User Data is necessary to comply with any applicable laws, rules or regulations.
15. JURISDICTION. All matters relating to these Terms shall be governed by the statutes and laws of the State of Nevada, without regard to the conflicts of laws principles thereof. You and ViziCall also agree and hereby submit to the exclusive personal jurisdiction and venue of the Courts within the City of Henderson and State of Nevada with respect to such matters.
16. MISCELLANEOUS.
16.1. These Terms (including the Privacy Policy) and the other rules, guidelines, licenses and disclaimers posted on the Site constitute the entire agreement between ViziCall and you with respect to your use of the Site. If for any reason a court of competent jurisdiction finds any provision of these Terms, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties as reflected by that provision, and the remainder of these Terms shall continue in full force and effect. Any failure by ViziCall to enforce or exercise any provision of these Terms or related right shall not constitute a waiver of that right or provision.
16.2. ViziCall shall not be deemed in breach of these Terms, nor for any breach of any implied warranty or other obligation, for any failure in performance arising in connection with circumstances beyond its reasonable control, including, without limitation, fire, flood, storm, strike, lockout or other labor trouble, riot, war, rebellion, accident, or other acts of third parties.
16.3. Your right to use the Services and access the Account is not transferable and may not be sold, sublicensed, rented, or timeshared, unless expressly permitted in another agreement with ViziCall. ViziCall may assign this Agreement, in whole or in part, at any time with or without notice to you.
These Terms were last updated on April 16, 2015.
