PHYTTER - TERMS OF SERVICE
(Effective Date: January 2012)
As more particularly described in the Service and subject to Company’s right to modify and discontinue in its sole and absolute discretion, the Service includes the following: (i) calls between Registered Users (defined below) and (ii) calls between Registered Users and others who use a VOIP phone which the Company specifies and pre-approves.
EACH TIME YOU USE OR ACCESS THE SERVICE, YOU AGREE TO BE BOUND BY THESE TOS AND REPRESENT THAT YOU HAVE READ AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN AND AGREE TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY (OR CANNOT COMPLY WITH) THESE TOS, DO NOT USE OR ACCESS THE SERVICE. YOUR CONTINUED ACCESS AND USE OF THE SERVICE SHALL BE DEEMED TO CONSTITUTE YOUR AGREEMENT TO BE LEGALLY BOUND BY THESE TOS, AS THEY MAY BE AMENDED FROM TIME TO TIME. ANY REFERENCES HEREIN TO “YOU” AND “YOUR” REFER TO BOTH YOU AND SUCH PERSON AND ENTITY ON WHOSE BEHALF YOU ACT, IF ANY.
In some instances, both these TOS and separate terms of service, rules, policies or guidelines set forth additional conditions that may apply to a Service or product offered by the Company (“Additional Terms”). To the extent there is a conflict between the TOS and any Additional Terms, the Additional Terms will control unless the Company determines otherwise, in its sole and absolute discretion.
- Limitations. The license granted to you is subject to the following limitations. You shall not or permit any other person to:
- in whole or in part, (1) modify or create any derivative work of the Service, including Company Materials (defined below) or Software, or (2) copy, photocopy, reproduce, translate, disassemble, reverse engineer, decompile, or otherwise attempt to derive source code, underlying ideas, algorithms, structure, or organization of any Software;
- modify, alter or remove any copyright, patent, confidentiality, trademark and other notices, labels or legends in any Company Materials or Software;
- sell, grant a security interest in or transfer reproductions of any Company Materials or Software to other parties in any way not expressly authorized herein;
- assign, rent, lease, distribute or license any Company Materials or Software to others;
- exploit the Service, including any Company Materials or Software, or any of its parts for any commercial purpose;
- use any third-party software to modify the Software;
- create or maintain, under any circumstance, any unauthorized connections to the Service. All connections to the Service may only be made through methods and means expressly approved by the Company. Under no circumstances may you connect, or create tools that allow you or others to connect, to the proprietary interface or interfaces other than those expressly provided by the Company for public use; or
- if you access the Service from an SNS you shall comply with all terms of service, policies, rules and code of conduct applicable to such SNS.
- Utilization of Your Computer. The Software may utilize the processor and bandwidth of the computer (or other applicable device) you are utilizing, for the limited purpose of facilitating the communication between Software users. The Company will use its commercially reasonable efforts to protect the privacy and integrity of the computer resources (or other applicable device) you are utilizing and of your communication, however the Company cannot give any warranties in this respect. If your use of the Software is dependent upon the use of a processor and bandwidth owned or controlled by a third party, you acknowledge and agree that your license to use the Software is subject to you obtaining consent from the relevant third party for such use. You represent and warrant that by accepting these TOS and using the Software, you have obtained such consent.
- No Access to Emergency Services. The Software is not intended to support or carry emergency calls to any type of hospitals, law enforcement agencies, medical care unit or any other kind of emergency service.. There are important differences between traditional telephone services and the Software. You acknowledge and agree that: (i) the Company is not required to offer access to emergency services under any applicable local and/or national rules, regulations or law; (ii) it is your responsibility to purchase, separately from the Software, traditional wireless (mobile) or fixed line telephone services that offer access to emergency services, and (iii) the Software is not a replacement for your primary telephone service.
2. IP OWNERSHIP
- Service. The Company and/or its licensors retain exclusive right, title and interest (including all intellectual property rights) in and to all materials that are part of the Service (including past, present and future versions), including, without limitation: graphics; layout; text; images; audio and/or video; designs; advertising copy; logos; domain names; trade names and marks; and service marks; any and all copyrightable material; the “look and feel” of the Service; the compilation, assembly and arrangement of the materials of the Service; and all other materials or content made available on the Service (collectively, the “Company Materials”) and such Company Materials are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties.
- Trademark Notice. PHYTTER™ and the PHYTTER logo(s) are trademarks and service marks of the Company and/or its licensor(s). All rights are reserved. All other trademarks and service marks appearing in the Service are the property of their respective owners. All rights are reserved. Use of any of our trademarks, service marks or names as “metatags” for any purpose other than as expressly authorized in these TOS is strictly prohibited.
- Software. The Company and/or its licensors retain exclusive right, title and interest (including all intellectual property rights) in and to the entire content of the Service, including, without limitation, the Software, copies thereof, and all error corrections, bug-fixes, patches, updates, derivative works, improvements, modifications thereto (whether made by the Company, its licensors, you, or otherwise), any related documentation, and “applets” incorporated into the Software. The rights described in the foregoing sentence are the copyrighted work of the Company and/or its licensors and are protected by the copyright laws of the United States, international copyright treaties and conventions, and/or other applicable laws.
- Third Parties. The Software may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Any such third party software or technology that is incorporated in the Software falls under the scope of these TOS. Any and all other third party software or technology that may be distributed together with the Software will be subject to you explicitly accepting a license agreement with that third party. You acknowledge and agree that you will not enter into a contractual relationship with the Company regarding such third party software or technology and you will look solely to the applicable third party and not to the Company to enforce any of your rights.
- No Additional Rights. Only those licenses expressly set forth in these TOS are granted. No other licenses are granted under these TOS, whether by implication, estoppel, course of conduct, or otherwise. Nothing in these TOS is intended to transfer any of the right, title and interest (including all intellectual property rights) from the Company and/or its licensors to you or any third party. If you are ever inadvertently or erroneous held or deemed to be the owner of any such rights, you agree to assign and hereby irrevocably assign to the Company or its licensors, as the case may be, all such rights as of the effective date of these TOS, and agree to execute all documents to implement and confirm the letter and intent of the foregoing.
3. ACCOUNT REGISTRATION
By completing the Service registration process, you may establish a registered user account (“Account”) and become a registered user (“Registered User”), and access the Service. To create an Account, you must provide such information as may be requested during the registration process and any applicable form(s). You must provide truthful and accurate information during the Account registration process.
Notwithstanding anything to the contrary, Company may approve or reject your Account registration application for any reason or no reason in its sole and absolute discretion. All such decisions shall be final and under no circumstance shall Company be obligated to provide any information regarding its decision-making process. The Company will notify you via email of its approval of your registration to the Service and issue a single PHYTTER login ID. To obtain additional PHYTTER login IDs, you must submit additional Account registration applications.
You are solely responsible for all activity on your Account and for the security of your computer system. You may not reveal your Account password to other Registered User or permit others to access your Account. The Company will not ask you to reveal your password or ever initiate any contact with you by asking for your personal information. If you forget your password, we will send it to you after we confirm your identity.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in the Account, and you further acknowledge and agree that all rights in and to the Account are and shall be owned solely and exclusively by the Company. No rights conferred to you in connection with the Service (including any Company Materials) may be transferred or assigned by you (by operation of law or otherwise including at the time of cancellation of your Account) to any third party without the prior written consent of the Company.
- Service Fees and Charges. You may create an Account and use the Service by paying the applicable, point plan subscription fees, and/or such other Software-related use fees and charges which are more particularly described in the Service.
The Company may charges additional fees to access certain features of the Services or through authorized third party providers. Unless otherwise expressly agreed to in writing by the Company, all applicable fees and other charges are payable in advance and are non-refundable unless expressly provided otherwise in these TOS. The Company, in its sole and absolute discretion, may, from time to time, modify, amend, or supplement the Service fee terms and billing methods, and post those changes on the TOS page or elsewhere in the Service. Such modifications, amendments or supplements shall be effective immediately upon posting in the Service. If any change is unacceptable to you, you may cancel your Account at any time.
In addition to the foregoing, you hereby acknowledge and agree that you shall solely be responsible for and bear all telecommunication expenses, including, telephone charges, Internet connection charges and electricity charges, arising out of your use of the Services.
- Billing Methods. Subject to technical problems and revisions to payment policies which may be instituted by the Company at any time without notice, you may pay for any applicable Service fees and other charges by major credit card or such other methods expressly authorized in writing by the Company.
When you provide credit card or other payment information to the Company, you represent to the Company that you are the authorized user of such credit card that is used to pay the fees and charges applicable to the subject Account. As the Account holder, you are responsible for all fees and charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your Account, including your family or friends. This means that, unless your Account or payment information is obtained unlawfully or fraudulently by someone other than those authorized by you to use your Account, you will be responsible for all usage and purchases on your Account.
Any dispute arising between you and any third party payment provider (including a credit card company) shall be resolved directly between you and such third party provider. Under no circumstances shall Company be liable for any obligations incurred by you to such third party provider in connection with the use of the Service. You agree to indemnify, defend and hold harmless Company, its licensors, affiliates, employees, officers, and directors from all claims for liabilities, losses and expenses, including reasonable attorneys’ fees, from third parties arising from such dispute.
- Termination of Account. You have the right to terminate or cancel your Account at any time. You understand and agree that unless otherwise expressly provided for in these TOS, the cessation of the use of the Service by canceling your Account is your sole right and remedy with respect to any dispute, including, but not limited to, any related to, or arising out of: (i) any term of these TOS or the Company’s enforcement or application of these TOS, (ii) the Company Materials and other content available through the Service, (iii) your ability to access and/or use the Service and/or (iv) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods.
You may cancel your Account by delivering an email notice to email@example.com. The Company reserves the right to collect accrued and unpaid fees and charges and costs owed by you. The Account cancellation shall become effective upon Company’s receipt of the authorized cancellation request. Company reserves the right to collect accrued fees and charges and costs incurred by Company before Account the cancellation becomes effective. In addition, you are responsible for any fees, charges and costs incurred to third-party vendors or content providers before your cancellation.
- Refund Policy. All Service fees and/or charges incurred by a Registered User are non-refundable except in the limited circumstances described below and subject to the further limitations set forth below:
- If the Registered User who incurred the subject fees and/or charges can prove that the Registered User has been victimized by identity theft. Notwithstanding anything to the contrary, Company may reject your refund request if, in its reasonable judgment, it does not agree with your claim that an identity theft or crime has occurred. All such decisions shall be final and under no circumstance shall Company be obligated to provide any information regarding its decision-making process.
- If you terminate or cancel your Account as a result of Company’s material and verifiable breach of these TOS.
- Temporary interruptions in the availability of the Service for more than 24 hours; provided, however, such interruptions are not due to regular maintenance of the Service or caused by the Registered User.
All refund requests are subject to Company’s verification of the identity of the Registered User making the subject request and be made on a pro-rata basis where applicable.
Notwithstanding the foregoing, under no circumstances shall Company refund any of the following fees and/or charges:
- Any prepaid points or credits which are not acquired directly from the Company.
- PHYTTER Softphone fee.
- Expiration of Points. Subject to Company’s right to terminate or cancel your Account and the no-refund policy described above, the points purchased when you purchase a PHYTTER plan are not subject to an expiration date. Moreover, if you do not use any points you purchase for more than one (1) year, Company will automatically void and delete all remaining points balance.
- Number Portability. Company does not support in-bound or out-bound phone number portability. Specifically, you may not use a third party-issued phone number as part of the Service nor transfer a phone number issued by the Company as part of the Service to a third party under any circumstance.
- Terms of Service. The Company may, from time to time, modify, amend, or supplement these TOS and post those changes on the TOS page. Such modifications or supplements shall be effective immediately upon posting in the Service. You are responsible for periodically checking the Service for changes to the TOS. If you do not agree to be bound by (or cannot comply with) the TOS as modified or supplemented, you agree that your sole remedy is to cease using the Service by canceling your Account. Your continued use of the Service constitutes your agreement to be bound by the modified TOS.
- Service. The Company reserves the exclusive right and may, at any time and without notice and liability to you, modify, supplement, suspend or discontinue (collectively, “Changes”) the Service, whether temporarily or permanently, in whole or in part. Any such Change shall be effective immediately upon notice by posting on the Service or these TOS, or by any other method of notice the Company deems appropriate. Any access or use of the Service after such notice of Change, constitutes acceptance by you of such Change. Temporary interruptions in the availability of the Service may occur from time to time as normal events. You agree that neither the Company nor any of its affiliates, licensors, agents, or employees is liable to you or any third party for any revision, supplement, suspension, or discontinuation of the Service, and termination of any license. The Service may include technical inaccuracies, typographical errors or may enable you to access or download harmful or malicious code introduced onto the Internet by third parties. The Service is made available internationally and may contain references to products, programs and services of the Company /or its licensors that are not available in your location. Such references do not imply that the Company or its licensors intend to make available such products, programs or services in your location.
- Software. The Company and/or its licensors may deploy or provide patches, updates, upgrades, error corrections, bug-fixes, modifications and additional features or functions to any Software that must be installed for you to continue accessing the Service. The Company and/or its licensors may upgrade or update the Software remotely, including, without limitation, the Software residing on the your machine, without your knowledge or consent, and you hereby grant to the Company and its licensors your consent to deploy and apply such patches, updates, upgrades, error corrections, bug-fixes, and modifications, and additional features or functions to the Software. The Company has no obligation to make available to you any subsequent versions of the Software. You may have to enter into a renewed version of these TOS, in the event you want to download, install or use a new version of the Software.
5. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE, SOFTWARE, AND THE INTERNET IS AT YOUR SOLE RISK. THE SERVICE, SOFTWARE, THIRD-PARTY SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTIBILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY PROVIDES THE SERVICE ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT TIMES OR LOCATIONS OF YOUR CHOOSING, OR THAT THE COMPANY WILL HAVE ADEQUATE CAPACITY FOR THE SERVICE AS A WHOLE OR IN ANY SPECIFIC GEOGRAPHIC AREA.
EXCEPT AS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY THE COMPANY, THE COMPANY DOES NOT PROVIDE CONNECTIONS TO EMERGENCY SERVICES AS PART OF THE SERVICE. YOU SHOULD BE AWARE THAT FURTHER DISCLAIMERS OF LIABILITY APPLY IN THE TOS, TO THE EXTENT THAT LIMITED EMERGENCY CALLING IS PROVIDED. THE COMPANY SHALL NOT BE LIABLE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES OR LOSS HAS BEEN NOTIFIED TO THE COMPANY) FOR ANY CLAIM, DAMAGE, OR LOSS, ARISING FROM OR RELATING THERETO: (A) YOUR INABILITY TO USE THE SERVICE TO CONTACT EMERGENCY SERVICES, OR (B) YOUR FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES.
6. LIMITATIONS OF LIABILITIES
YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH THE COMPANY OR ITS LICENSORS IS TO STOP USING THE SERVICE, AND TO CANCEL YOUR ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL THE COMPANY, ITS LICENSORS OR ITS AFFILIATES BE LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON THE SERVICE OR USE OF THE SOFTWARE. MOREOVER, IN NO CASE SHALL THE COMPANY’S OR ITS LICENSORS', AFFILIATES’, EMPLOYEES', OFFICERS', OR DIRECTORS' (COLLECTIVELY, “COMPANY AFFILIATES”) LIABILITY TO YOU EXCEED THE AMOUNT THAT YOU PAID TO THE COMPANY FOR THE SERVICE. FURTHERMORE, IN NO CASE SHALL THE COMPANY, ITS LICENSORS OR AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF PROFITS, DATA, USE, GOODWILL, BUSINESS INTERRUPTION, OR OTHER INTANGIBLE LOSS) ARISING FROM YOUR USE OF THE SERVICE, ANY SOFTWARE, THE INTERNET OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF OR USERSHIP, WHETHER BASED ON WARRANTY, PRODUCT LIABILITY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT THE COMPANY OR ANY COMPANY AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, THE COMPANY’S AND COMPANY AFFILIATES' LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. THE COMPANY DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD PARTY PRODUCT OR SERVICE OFFERED THROUGH THE SERVICE AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
7. LINKS WITH OTHER SITES
For the convenience of our registered users, the Service may provide certain links to websites provided by third parties. The Company is not responsible for the content of any other website linked to or from the Service. If you link to another website, you leave the Service and you do so entirely at your own risk. The Company provides links from the Service to other sites solely as a convenience to you and in no way should this be interpreted as a referral or endorsement of any content, sponsor or owner of any other website. THE COMPANY DISCLAIMS ALL WARRANTIES, CONDITIONS OR OTHER TERMS EXPRESS OR IMPLIED AS TO ANY SUCH LINKED WEBSITE, INCLUDING, WITHOUT LIMITATION, AS TO ACCURACY, OWNERSHIP, VALIDITY OR LEGALITY OF ANY CONTENT OF A LINKED WEBSITE.
You agree to defend, indemnify and hold harmless the Company and its licensors, affiliates, employees, officers, and directors from all claims for liabilities, losses and expenses, including reasonable attorneys' fees and costs, from third parties arising from: (a) any breach of these TOS, or any applicable rules, laws or regulations, whether or not referenced herein, (b) in connection with your use of the Service or Software, (c) violation of any rights of any third party, (d) use or misuse of the Software, or (e) communication spread by means of the Software. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, you shall have no further obligation to provide indemnification to the Company in that matter. The obligations set forth herein shall survive termination of these TOS.
9. GOVERNING LAW
The Service is operated and controlled from Interush, Inc. in the State of California, U.S.A. It can be accessed from various countries of the world. The laws of the State of California, without regard to conflicts of law provisions, will apply to all matters arising out of or in connection with the Service and your connection to and use of the Service. By accessing or using the Service, you submit and consent to the exclusive jurisdiction of state and federal courts located in the State of California with respect to any dispute or cause of action arising out of or in connection with these TOS and/or your use of the Service.
10. INJUNCTIVE RELIEF
You acknowledge that the rights granted and obligations made hereunder to the Company are of a unique and irreplaceable nature, the loss of which shall irreparably harm the Company and which cannot be replaced by monetary damages alone so that the Company shall be entitled to injunctive or other equitably relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for money damages (if any).
11. VOID WHERE PROHIBITED
The information provided through the Service is not intended for distribution to or use by any person in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject the Company to any registration requirement within such jurisdiction or country. The Company makes no representation or warranty that any material on the Service or Software is lawful in every jurisdiction from which such content can be accessed, or is available for use in all jurisdictions. If you access or use the Service or the Software from a jurisdiction outside the State of California you are responsible for compliance with all applicable local laws. THE SERVICE IS INTENDED FOR USE BY PERSONS OVER THE AGE OF 13. BY USING THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU ARE 13 OR OLDER, AND THAT YOU AGREE TO AND TO ABIDE BY ALL OF THE TERMS AND CONDITIONS OF THESE TOS.
12. COMPLAINTS, NOTICE AND CONTACT INFORMATION
The Company takes claims of infringement of intellectual property rights and violation of rights of privacy or publicity very seriously. If you believe that any of the material that is or was in our Service infringes or has infringed any rights, including copyrights or trademarks, owned by you, or by an owner for which you are authorized to act, please contact us at firstname.lastname@example.org.
In the event the Company decides, in its sole and absolute discretion, to give notice to a Registered User regarding the termination of the licenses granted herein, termination of an Account, revisions to payment policies, or any Changes, it may do so via email, telephone call, posting in the Service or these TOS, or such other method of notice the Company deems appropriate. Where Company decides to give such notice, any access or use of the Service after delivery of such notice constitutes acceptance by you of the noticed action.
The Software may be subject to international rules that govern the export of software. You shall comply with all applicable international and national laws that apply to the Software as well as end-user, end-use and destination restrictions issued by national governments. This software is controlled under ECCN 5D992.b.1 of the Export Administration Regulations (“EAR”) per CCATS # G047973 and thus may not be exported or re exported to or downloaded by any person in any countries controlled for anti terrorism reasons under the EAR, which include Iran, North Korea, Cuba, Syria and Sudan. EAR 742.15(a), Title 15 Code of Federal Regulations. Moreover, the software may not be exported or re exported to or downloaded by any person or entity subject to US sanctions regardless of location. The Company is making this software available to you for download only on the condition that you certify that you are not such a person or entity and that the download is not otherwise in violation of United States export control and sanctions regulations. The Software and related documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the Software or related documentation by or on behalf of the United States Government is subject to restrictions as set forth in this Agreement.
If you have any questions, complaints, or comments regarding these TOS, or have other questions or suggestions about our Service or Software, please contact us via e-mail at email@example.com.
© 2012 Interush, Inc. All rights reserved.