CallingVault User Agreement
PLEASE READ CAREFULLY: BY CLICKING "I AGREE" OR OTHERWISE CREATING AN ACCOUNT WITH CallingVault Advisors, Inc., d/b/a “CALLING VAULT”, YOU ARE AGREEING TO ALL TERMS OF THIS CALLING VAULT END USER LICENSE AGREEMENT ("AGREEMENT"). YOUR AGREEMENT TO THESE TERMS WILL BE DEEMED TO BE AN AGREEMENT BETWEEN YOU AND CALLING VAULT AND YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND YOURSELF TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE CALLING VAULT SOFTWARE OR CALLING VAULT SERVICES OR ACCOUNTS IN ANY MANNER WHATSOEVER.
THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT GOVERN YOUR USE OF CALLING VAULT.
1.1 The following terms and expressions shall have the following meanings:
Additional Terms means the terms and conditions and policies applicable to your use of the Calling Vault Software, the Calling Vault Products and/or the CallingVault Website, in addition to this Agreement;
Affiliate means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with such entity;
Agreement means this CallingVault End User License Agreement, as may be renewed and/or amended by Calling Vault from time to time;
Applicable Laws means all applicable laws and regulations applicable to you or Calling Vault in each case for the time being in force in any jurisdiction;
Calling Vault Account or Account means a Calling Vault Account that is created, managed and used by You in accordance with the terms of this Agreement, and the account with a User ID (email address) and Password that is used to access the Calling Vault Software and Calling Vault Products and Services;
Content means any and all content consisting of text, sounds, pictures, photos, video and/or any type of information or communications;
Documentation means any documentation provided by Calling Vault for use with the Calling Vault Software and/or Calling Vault Products;
Effective Date means the date that Calling Vault accepts your request for an Account;
IP Rights means (i) patents, patent applications, designs, trade–marks, service marks and trade names (whether registered or unregistered), trade dress, copyright and related rights, database rights, knowhow, trade secrets and confidential information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognized in the future; and (iii) applications, extensions and renewals in relation to any such rights;
Password means a password that you select, which gives access to Your Account;
PBX means a private branch exchange owned or controlled by you;
Calling Vault means and refers to, depending on the context as it is used in this Agreement, CallingVault, Inc., d/b/a Calling Vault, Calling Vault Software, Products or Services provided or used in connection with this Agreement;
Calling Vault Brand Elements means trademarks, service marks, trade names, signs, logos, icons, slogans, banners, screen shots, trade dress, links and other brand features and IP Rights that belong to Calling Vault;
Calling Vault Products or Services means any and all Internet or other communications products or services made available to you by Calling Vault without limitation;
Calling Vault Software means the software distributed or used by Calling Vault or its third party partners for internet communication and related purposes, including without limitation, the Documentation, as well as any future versions, improvements, developments, programming fixes, updates and upgrades thereof;
Calling Vault Website means any and all elements, contents and the ‘look and feel’ of the website available under the URL, www.CallingVault.com, – among other URL’s –, from which website the Calling Vault Software can be accessed or downloaded;
Terms means collectively this Agreement, any revised or updated versions of this Agreement, and any other Additional Terms that You enter into with Calling Vault or any of its Affiliates in respect of the Calling Vault Software, Calling Vault Products and/or Calling Vault Website;
User means an Account User;
User Account means Your Account;
User ID refers to an identification code that you select, e.g., your email address, which in combination with the Password, gives access to an Account;
You or Your means the person entering into this Agreement.
1.2 References to the singular include the plural and vice versa, and references to one gender include the other gender.
1.3 Any phrase introduced by the expressions “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. Overview of the Calling Vault Software and Product
Calling Vault is an on-line service available for use in the fifty (50) United States; whereby a subscriber or user (“You”) visit the Calling Vault website / portal accessible via the Internet and sign-up to create a Calling Vault Account by which You will receive a unique telephone number (TN) with voicemail (VM), SMS and MMS capability. The telephone number assigned to Your Account will be a number to match the area code you choose during the subscription process whenever possible. This is a paid service where you will pay a fee for a payment interval determined by Calling Vault in order for you to receive and continue to use Calling Vault’s services. The services provided to you include the ability to a) send and receive calls through our PSTN. b) inbound voicemails from callers on the PSTN and/or callers on-net with Calling Vault’s systems; c) send and receive text messages via SMS or MMS from senders on the PSTN who have SMS or MMS message capability and; d) a stock or custom greeting message delivered to callers when their call has been connected to an active voicemail box. Voicemails, SMS and MMS messages will only be made available to you via Calling Vault’s website and mobile app. Calling Vault enables you to access messages intended for you without revealing your true identity and primary communications information.
2.1 Calling Vault and its employees and technology providers and consultants are not telecommunications carriers, and are not registered carriers, within the scope of this Agreement. Further, Calling Vault does not grant or provide to you any ownership rights in the TN assigned to Your Account. Once Your Account is terminated, the rights to use the TN assigned to Your Account revert immediately to Calling Vault and you are no longer permitted to use the TN for any purpose. In addition, Calling Vault cannot and does not provide You with any portability rights or capabilities with respect to the TN assigned to Your Account, and You agree that You will not at any time attempt to, or allow others on Your behalf to port, import or export the TN assigned to Your Account. If any of those options become available, it will be administered by Calling Vault only.
3. Emergency Calls and Quality of Communications
3.1 No Emergency Calls. Calling Vault does not provide or enable any emergency calls, including “911” calls, to any medical or healthcare providers, law enforcement officials or agencies, medical care unit or any type of emergency or similar services of any kind. Calling Vault does not provide standard communication services and is not offered or functions as a substitute for any traditional telephone or communication services, and should not be used as such. There may be important differences between customary communication services and the Calling Vault Software and Calling Vault Products. You need to make your own arrangements in order to obtain traditional communications in order to ensure that you are able to make use of any emergency or medical services. It is your responsibility to purchase, separately from the Calling Vault Software and the Calling Vault Products, traditional wireless or fixed line telephone other communications devices and services that will enable you to communicate with medical, law enforcement or other emergency relief entities.
3.2 Quality of Communications. Accessing and subscribing to Calling Vault enables you to communicate with other people without revealing your own primary telephone number. Calling Vault cannot guarantee that you will always be able to communicate with other people, nor can Calling Vault guarantee that you can communicate without disruptions, delays or communication-related flaws or that all your communications shall always be delivered to other people. These instances can be caused by issues outside the control of Calling Vault, including but not limited to Carrier issues, power outages, Internet issues, acts of God, etc.
4.1 Your Privacy. Calling Vault is committed to respecting the privacy and confidentiality of your personal data. Your personal data shall not be sold or transferred to advertising, marketing or market research organizations. However, Calling Vault reserves the right to provide your personal information in response to a valid issued subpoena, court order, or in response to any request by an official law enforcement bureau or agency.
5. Free Trial
5.1 Free Trial. If you have joined under a special introductory trial offer (for example, a discounted or free initial trial) (“Trial”), no Credit Card is necessary. However, all other Terms and Conditions contained in this “Terms and Conditions” document apply.
5.2 Free Trial Activation Pick your area code, number of choice, and enter required information, then download the Free CallingVault App through the App Store and begin using the service.
5.3 Free Trial Limitation Use of multiple Trials by you is prohibited. You agree that there is only one (1) introductory or trial offer (“Trial”) for use per member/computer/phone/email address, or any other identifiers. You further agree that at the end of the trial period, if you choose to become a Member, you will be required to enter your Credit Card information for your account to be activated at the current monthly membership fee.
5.4 Free Trial Expiration The Free Trial will terminate 10 days after it is activated or when usage reaches a pre-determined limit. You will be notified prior to expiration so you have the opportunity to keep your current CallingVault number and all other data affiliated with your CallingVault trial account.
6. Calling Vault Membership and Accounts
6.1 Permitted Use and Users of a Calling Vault Account.
6.1.1 The use of Calling Vault is restricted to persons eighteen (18) years of age or older. Only persons eighteen (18) years of age or older may open a Calling Vault Account. By opening a Calling Vault Account, You are certifying that you are eighteen (18) years of age or older.
6.1.2 You are the only permitted user of Your Calling Vault Account.
6.1.3 A Calling Vault account may be used on the Calling Vault website and mobile app only.
6.1.4 You may not permit persons other than yourself to use Your Calling Vault Account or any services made available to you in connection with Calling Vault, including any telephone numbers, or any voicemail or text messaging services.
6.1.5 You are not permitted to sell, rent, license, lease, export, import, share, distribute or transfer, or grant any rights to, Your Calling Vault Account to any other person.
6.2 Termination of Service. Any violation of any of the foregoing provisions, 5.1.1, 5.1.2, 5.1.3, 5.1.4 or 5.1.5 shall result in an immediate termination of Your Account and suspension of all services by Calling Vault.
6.3 User Responsibilities. You shall be responsible for all usage of the Calling Vault Products and Calling Vault Software in connection with Your Account including without limitation, any acts and omissions that cause injury to person or property in connection with Your use of Calling Vault, or use by others notwithstanding that such other’s use is impermissible under this Agreement. You hereby agree to notify Calling Vault immediately as to any claim, complaint, notice, or the like, whether formal or informal, made against you or others that relate in any way to Calling Vault.
6.4 Reallocation and Deletion of Accounts. If an Account has been issued to You and such Account is deleted then You acknowledge that the traffic data (including call history and text message history) in respect of such Account will no longer be accessible to You, and You are therefore responsible for printing out the traffic data records if You deem this necessary.
6.5 Password and Email.
6.5.1 Allocation. You shall allocate a Password to each Account that you create, or you may invite Calling Vault to set up a Password for you. You shall allocate an email address to each Account that you create.
6.5.2 Restriction on sharing. You shall not share or exchange Passwords that are being used by you in connection with Calling Vault. You shall ensure that no third parties obtain Your Password.
6.5.3 Security. You shall take all necessary steps to ensure the security of your email address and Password to Your Account at all times. If you suspect that any Password has been disclosed or has become known to anyone other than yourself, then you shall ensure that such Password is immediately changed in order to protect Your Account. It is your responsibility to ensure that you do not respond to any unsolicited requests for credit card details, Passwords or other data. Neither Calling Vault nor its officers, employees or Affiliates may be held liable whether in contract, warranty, tort (including negligence), or any other form of liability for any claim, damage, or loss arising from or relating to any failure by You, to comply with this paragraph 6.6.3.
7. Fees and Payments
7.1 Service Fees. You agree to pay all applicable fees for the Services on the terms set forth on the invoice. Any and all payments you make for access to the Services are final and non-refundable. You are responsible for all fees and charges imposed by your voice and data transmission providers related to your access and use of the Services. You are responsible for providing accurate and current billing, contact and payment information to us or any reseller. You agree that we may take steps to verify whether your payment method is valid, charge your payment card or bill you for all amounts due for your use of the Services, and automatically update your payment card information using software designed to do so in the event your payment card on file is no longer valid. You agree that your credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We will not agree to submit invoices via any customer procure-to-pay online portal or Electronic Data Interchange (EDI) portals. We reserve the right to update the price for Services at any time after your Initial Term, and price changes will be effective as of your next billing cycle. We will notify you of any price changes by publishing on our website, emailing, quoting or invoicing you.
7.2 Taxes and Withholding You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, Universal Services Fund (USF) fees (if applicable to the Audio Services only) and similar taxes (collectively, “Taxes”) imposed by any government entity or collecting agency based on those Services, except those Taxes for which you have provided an exemption certificate. All appropriate taxes will be paid as part of your monthly membership payment and included on your monthly invoice payment confirmation.
7. License and Restrictions
7.1 License. Subject to Your compliance with the terms and conditions of this Agreement, Calling Vault hereby grants you a limited, non-exclusive, royalty-free, non-transferable license to use the Calling Vault Software solely for the communication services provided in connection with Calling Vault during the term of Your Account. Calling Vault reserves all rights in the Calling Vault Software not expressly granted to you in this Agreement.
7.2 Third Parties. The Calling Vault Software may be incorporated by Calling Vault alone 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 Calling Vault Software falls under the scope of this Agreement. Any and all other third party software or technology that may be distributed together with the Calling Vault 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 Calling Vault or its Affiliates regarding such third party software or technology and you will look solely to the applicable third party and not to Calling Vault or its Affiliates to enforce any of your rights.
7.3 Third Party Provider. You acknowledge and agree that Calling Vault provides telecommunications through a third party provider and these services provided will be billed to Calling Vault for the sole purpose of connectivity and management. All taxes will be paid to said provider for usage and are included in your plan.
7.4 Lawful purposes. You will use the Calling Vault Software solely for lawful purposes. In this respect You shall not, (and You shall ensure that others You know shall not) without limitation (a) intercept or monitor, damage or modify any communication which is not intended for You; (b) use any type of spider, virus, worm, Trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the Calling Vault Software or the communications; (c) send any unsolicited communication not permitted by applicable law or use the Calling Vault Software for the purposes of phishing or pharming or impersonating another person; (d) use or expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable in any way; (e) use the Calling Vault Software to cause or intend to cause embarrassment or distress to, or to threaten, harass or invade the privacy of, any third party; (f) use (including as part of the user name of an Account) any material or content that is subject to any third party proprietary rights, unless You have a license or permission from the owner of such rights; or (g) impact or attempt to impact the availability of the Calling Vault Software for example, with a denial of service (DOS) or distributed denial of service (DOS) attack.
7.5 Restrictions. You have no right to and shall not (and shall ensure that others you know shall not): (a) copy or modify the Calling Vault Software, except to the extent expressly permitted by applicable law; (b) transfer, license, sublicense, lease, lend, rent or otherwise distribute the Calling Vault Software. You acknowledge and agree that portions of the Calling Vault Software, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets or other intellectual property of Calling Vault and its licensors and partners. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer the Calling Vault Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
7.6 Jurisdiction Restrictions. If the law of your country prohibits you from downloading or using the Calling Vault Software because the Calling Vault Software is not allowed in the country or countries in which you are located, please do not use it.
7.7 If, for any reason, Calling Vault Software is downloaded, installed and used on various products, applications or programs that are made available by third parties, Calling Vault cannot guarantee that the Calling Vault Software shall always be available on the product, application or program onto which you initially downloaded and installed it.
8. Intellectual Property (“IP”) Rights
8.1 Ownership. The Calling Vault Software is subject to a limited license to you in accordance with this Agreement. The Calling Vault Software is protected by applicable intellectual property laws, including, but not limited to, copyright, trademark, trade dress or other laws and international treaties. You shall not delete or in any manner alter the copyright, trademark, and other proprietary rights, notices or markings appearing on the Calling Vault Software. All IP Rights in and to any third party content that is not contained in the Calling Vault Software, but may be accessed through use of the Calling Vault Software, is the property of the respective owner of such IP Rights and may be protected by applicable copyright or other intellectual property laws and treaties.
8.2 Calling Vault Brand Elements. Nothing in this Agreement will give you any right to use the Calling Vault Brand Elements. Calling Vault does not allow third parties to use the Calling Vault Brand Elements unless they have received prior written permissions from Calling Vault or if use falls within extremely limited exceptions. If you want to use any of the Calling Vault Brand Elements, You must obtain Calling Vault’s prior written permission before you use them.
9.1 Content of Communications. The content of the communications distributed by the use of the Calling Vault Software is entirely the responsibility of the person from whom such content originated. You understand, therefore, that by using the Calling Vault Software, You may be exposed to content that is offensive, harmful to minors, indecent or otherwise objectionable, and that You use the Calling Vault Software at Your own risk.
9.1.1 You acknowledge and agree that You are solely responsible for any Content that You upload, submit, post, transmit or display through the Calling Vault Software and/or the Calling Vault Website (“Use” or “Used”) and that Calling Vault is not responsible to You or any third party for any Content that is Used by You or any other Calling Vault Software user.
9.2 Third Party IP Rights. You agree that you shall not Use Calling Vault or any Content that is subject to any third party IP Rights.
9.3 License. You hereby grant to Calling Vault a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub licensable and transferable license to reproduce, modify and publish any Content that you use on any publicly accessible areas of the Calling Vault Website.
9.4 Removal of Content. Calling Vault reserves the right (but shall have no obligation) to decide whether any Content that You Use complies with this Agreement and any Additional Terms. Calling Vault may in its sole discretion remove such Content and/or terminate this Agreement and any Account belonging to you, if you Use any Content that is in breach of this Agreement and/or any Additional Terms at any time and without prior notice to You.
10. Term and Termination
10.1 Term. This Agreement will be effective as of the date upon which you accept these terms (“Effective Date”) and will remain effective until terminated by either Calling Vault or You as set out below. Any Additional Terms will also be effective as of the date upon which they are accepted by you, and will remain effective until terminated by either Calling Vault or You as set out below and/or in the applicable terms.
10.2 Termination by You. You may terminate this Agreement and your membership at any time by cancelling your membership subscription through the CallingVault Support Portal. When you cancel automatic renewal on a monthly Membership, your Membership will continue through the rest of the current month. At the end of that period, your Membership will not renew automatically, and you will lose the benefits of Membership.
10.3 Termination or Suspension by Calling Vault. Without limiting other remedies, Calling Vault or its Affiliates may terminate this Agreement and any Additional Terms with immediate effect, and may limit, suspend, or terminate your use of the Calling Vault, Calling Vault Products, Calling Vault Software and the Calling Vault Website, and take technical and legal steps to keep You off the Calling Vault Website and remove any hosted content posted by You, if we learn that You are (i) in breach of this Agreement by any means including, but not limited to; creating problems for others, jeopardizing the Calling Vault reputation or public trust, acting inconsistently with Calling Vault’s policies; (ii) infringing any third party’s IP Rights; (iii) engaging in fraudulent, immoral or illegal activities or for any other similar reasons.
10.4 Consequences of Termination.
10.4.1 Calling Vault shall effect such termination by preventing access to Your Calling Vault Accounts, Calling Vault Products, Calling Vault Software, CallingVault App and the Calling Vault Website. If you have provided Calling Vault with a valid email address, Calling Vault may in its sole discretion provide notice to you by email of such termination.
10.4.2 Upon termination of this Agreement and any Additional Terms: (a) all licenses and rights to use the Calling Vault Software, Calling Vault Products, Services and Accounts, shall immediately terminate; (b) You will immediately cease any and all use of the Calling Vault Software, Calling Vault Products, Services and Accounts; and (c) You will immediately remove any and all Calling Vault Software that may exist from all devices, hard drives, networks and other storage media and destroy all copies of any and all Calling Vault Software in Your possession or under Your control.
11. New Versions, Upgrades
11.1 New Versions. Calling Vault reserves the right to change this Agreement at any time by publishing one or more revised Agreements or Additional Terms on the Calling Vault Website. The revised Agreements shall become effective upon publication and notification. Your express acceptance or your continued use of Calling Vault upon notification shall constitute your acceptance to be bound by the terms and conditions of a revised Agreement or Additional Terms. You can find the latest version of this Agreement at [http://www.callingvault.com]. Calling Vault reserves the right to change any of the Additional Terms from time to time and such changes shall become effective either within thirty (30) days of publication of the revised version on the Calling Vault Website (unless You expressly accept the revised terms earlier by clicking on the accept or agree button if this option is made available), or within the timeframe set out in the applicable Additional Terms if different.
11.2 New Versions of Calling Vault Software. CallingVault, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Calling Vault Software. Calling Vault has no obligation to make available to you any subsequent versions of the Calling Vault Software. You may have to enter into a renewed version of this Agreement, in the event you want to download, install or use a new version of the Calling Vault Software.
12. Disclaimer of Warranties and Limitation of Liability
12.1 CALLING VAULT SOFTWARE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CALLING VAULT, ITS LICENSORS AND AFFILIATES HEREBY DISCLAIM ALL WARRANTIES, CONDITIONS, CLAIMS OR REPRESENTATIONS WITH RESPECT TO CALLING VAULT SOFTWARE, PRODUCTS AND SERVICES WHETHER EXPRESS, IMPLIED OR STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT, COMPATIBILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. CALLING VAULT FURTHER DOES NOT REPRESENT OR WARRANT THAT CALLING VAULT SOFTWARE, PRODUCTS AND SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ERROR-FREE OR FREE OF VIRUSES, NOR DOES CALLING VAULT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF COMMUNICATIONS MADE THROUGH THE CALLING VAULT SOFTWARE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CALLING VAULT OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH CALLING VAULT IS TO IMMEDIATELY DEINSTALL AND CEASE USE OF SUCH CALLING VAULT SOFTWARE.
12.2 EMERGENCY SERVICES. THE CALLING VAULT SOFTWARE AND THE CALLING VAULT PRODUCTS AND SERVICES DO NOT AND ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. NEITHER CALLING VAULT NOR ITS OFFICERS, EMPLOYEES OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO YOUR INABILITY TO USE THE CALLING VAULT SOFTWARE OR THE CALLING VAULT PRODUCTS OR SERVICES TO CONTACT EMERGENCY SERVICES, AND YOUR FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES IN ACCORDANCE WITH PARAGRAPH 3.1. ABOVE.
12.3 CONTENT. CALLING VAULT DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE CALLING VAULT SOFTWARE, PRODUCTS OR SERVICES. NEITHER CALLING VAULT NOR ITS OFFICERS, EMPLOYEES OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO ALL SUCH CONTENT.
12.4 INTELLECTUAL PROPERTY (“IP”) CLAIMS. CALLING VAULT WILL HAVE NO OBLIGATION TO DEFEND OR INDEMNIFY YOU FROM OR AGAINST ANY THIRD PARTY CLAIMS ALLEGING THAT YOUR USE OF CALLING VAULT OR EXERCISE OF ANY RIGHTS GRANTED HEREIN INFRINGES ANY IP RIGHTS. IN THE EVENT THAT A CLAIM IS MADE, OR IN CALLING VAULT’S REASONABLE OPINION IS LIKELY TO BE MADE, AGAINST CALLING VAULT, YOU OR ANY THIRD PARTY ALLEGING THAT THE SOFTWARE OR ANY USE THEREOF INFRINGES ANY THIRD PARTY IP RIGHT, CALLING VAULT MAY, IN ITS SOLE DISCRETION, PROVIDE YOU WITH A DIFFERENT VERSION OF THE SOFTWARE (IN WHICH EVENT YOU WILL IMPLEMENT THAT VERSION AND CEASE ALL USE AND DISTRIBUTION OF ANY PRIOR VERSIONS) OR TERMINATE THIS AGREEMENT AND ALL RIGHTS AND OBLIGATIONS HEREUNDER.
12.5 Utilization of Your Device. The Calling Vault Software may utilize the processor and bandwidth of the devices You are utilizing, for the limited purpose of using Calling Vault. Calling Vault will use its commercially reasonable efforts to protect the privacy and integrity of the resources of such devices. However, Calling Vault cannot give any warranties in this respect.
12.6 Force Majeure. You acknowledge and understand that if Calling Vault is unable to provide the Calling Vault Software, Products or Services as a result of a force majeure event Calling Vault will not be in breach of any of its obligations towards You under this Agreement. A force majeure event means any event beyond the control of Calling Vault. In the event Calling Vault is affected by a force majeure event, it shall notify You as soon as reasonably practicable of the estimated extent and duration of its inability to perform or delay in performing its obligations. CALLING VAULT SHALL NOT HAVE ANY LIABILITY TO YOU WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR FAILING TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT TO THE EXTENT THAT SUCH FAILURE IS AS A RESULT OF A FORCE MAJEURE EVENT.
12.7 LIMITATION OF LIABILITY.
12.7.1 IN NO EVENT SHALL CALLING VAULT, ITS AFFILIATES OR ITS LICENSORS BE LIABLE, HOWSOEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; ANY LOSS OF INCOME, BUSINESS, SALES, PROFITS (WHETHER ACTUAL OR ANTICIPATED), LOSS OF OR CORRUPTION TO DATA, INTERRUPTION OF BUSINESS, OR FOR THE USE OR PERFORMANCE OF CALLING VAULT.
12.7.2 CALLING VAULT’S AGGREGATE LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE COST OF YOUR SUBSCRIPTION.
12.7.3 THE LIMITATIONS ON CALLING VAULT’S LIABILITY ABOVE SHALL APPLY WHETHER OR NOT CALLING VAULT, ITS EMPLOYEES, LICENSORS OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING THEREFROM.
13. Warranty and Indemnity
13.1 Warranty. You represent and warrant that (i) You are eighteen (18) years of age or older; (ii) You are authorized to enter into and comply with the Terms; (iii) You shall comply with Your obligations under the Terms; and (iv) You shall comply with all Applicable Laws that may apply to the use of Calling Vault.
13.2 Indemnification. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD CALLING VAULT AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, IN CONNECTION WITH OR ARISING OUT OF ANY BREACH BY YOU OF THE WARRANTIES, REPRESENTATIONS, OBLIGATIONS OR TERMS OF THIS AGREEMENT.
14. Additional Terms
14.1 In addition to this Agreement, You have to comply with any Additional Terms when using Calling Vault, the Calling Vault Products and the Calling Vault Website. We expect you to read and comply with these Additional Terms carefully, all of which are made part of this Agreement:
14.2 Your Privacy. Calling Vault is committed to respecting the privacy and confidentiality of your personal data. Your personal data shall not be sold or transferred to advertising, marketing or market research organizations. However, Calling Vault reserves the right to provide your personal information in response to a valid issued subpoena, court order, or in response to any request by an official law enforcement bureau or agency.
15. Confidential Information
15.1 For the purposes of this Agreement, “Confidential Information” means any documentation, any business or technical information of Calling Vault, and any other information that a reasonable person would recognize is confidential or proprietary to Calling Vault. You will hold the Confidential Information in strict confidence including, without limitation, taking such steps to protect and preserve the confidentiality thereof as you take to preserve and protect the confidentiality of your own confidential information. You will use the Confidential Information only to exercise the rights expressly granted by Calling Vault to you under this Agreement.
15.2 Your obligations with respect to the Confidential Information do not apply to information that you can clearly establish by written evidence: (i) is or becomes publicly known through no fault of Your own; (ii) is rightfully obtained by You from a third party without obligation of confidentiality; (iii) is independently developed by You without any access to Confidential Information; (iv) is approved in writing for release by an authorized representative of Calling Vault, or (v) is required to be disclosed as a matter of law or judicial action; provided that You provide Calling Vault with prior notice of such requirement of disclosure and use all reasonable efforts to obtain a protective order.
15.3 Upon request of Calling Vault or in any event promptly upon expiry or earlier termination, all Confidential Information made available hereunder, including copies thereof, shall be returned or, if directed or permitted by Calling Vault, destroyed, unless You are otherwise allowed to retain such Confidential Information, and You shall certify that You do not retain such Confidential Information.
16.1 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between you and Calling Vault with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter. Nothing in this clause shall exclude or restrict the liability of either you or Calling Vault arising out of fraud or fraudulent misrepresentation.
16.2 Partial Invalidity. If any provision of this Agreement, or any part of a provision, is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity or enforceability of the remainder of the Terms (including the remainder of the term which contains the relevant provision) shall not be affected.
16.3 No Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided by the Terms or by law shall not constitute a waiver of that right, power or remedy. If Calling Vault waives a breach of any provision of this Agreement shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
16.4 Assignment. You are not allowed to assign this Agreement or any rights hereunder. Calling Vault is allowed at its sole discretion to assign this Agreement or any rights hereunder to any third party, without giving prior notice.
16.5 Applicable Law and Competent Court. This Agreement shall be governed by and interpreted in accordance with the laws of the state of New Jersey, U.S.A., and shall be subject to the exclusive jurisdiction of the courts thereof notwithstanding conflict of laws principles.
16.6 Language. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version, the English language version shall prevail.
16.7 Survival. The terms of paragraphs 1, 3, 4, 5, 6.3, 6.4, 6.5, 6.6, 6.7, 7, 8, 9, 11, 12, 13, 14 and 15 of this Agreement, and any other provision of the Additional Terms which is expressed to survive or operate in the event of termination, shall survive termination of this Agreement and the applicable Additional Terms for whatever reason.