Terms and Conditions

Terms & Conditions

Last Updated: January 6, 2025

Enzo Dialer (“Enzo,” “we,” “us,” or “our”) is committed to safeguarding the privacy of registered users of the Enzo Dialer platform. This Notice informs you how Enzo Dialer collects, uses, secures and shares your personal information when you use our platform and related services as a customer (“Services”).

If you do not feel comfortable with any part of this Notice, please immediately cease using our Service. This Notice may change from time to time. If we make a change to this Notice that we believe materially affects how we process your personal information or reduces your rights, we will provide you with notice.

Definitions

• "Affiliate" means any entity under the Customer’s control, whereas "control" means ownership of or the right to control greater than 50% of the voting interests of that entity.

• "Contractor" means an independent contractor or consultant that is not a Provider competitor.

• "Customer Data" means any information, call data, Subscriber List, recording, messages or other materials that are made available to us, submitted to, or sent to or received from Customer’s People via the Services by or on behalf of Customer, including, without limitation: (a) data or calls submitted, uploaded, imported to or sent via the Services by Customer and (b) data sent or provided to, by or about People (including calls, messages and logs thereof) that are exchanged using the Services.

• "Customer Properties" means the equipment, websites, apps, email applications, or telephony or messaging systems or other tools owned and/or operated by Customer (or for its benefit, including, without limitation, those systems and devices through which Customer’s agents and employees use the Services) and through which Customer uses the Services to communicate with People.

• "Dashboard" means the Provider's user interface for accessing, using, and administering the Services, which Customer may access via the internet.

• "Documentation" means technical user documentation provided with the Services, including, without limitation, onboarding documentation, launch guides, and FAQs, as revised from time to time.

• "Feedback" means suggestions, comments, questions, or other feedback relating to any Provider product or service.

• "Provider App" means any mobile application, browser web app, or desktop client software included in the applicable Service that the Provider makes available to you.

• "Provider Properties" means certain software, intellectual property, integrations, code, software development kits or other code or intellectual property provided by Provider for access through or deployment on Customer Properties and through which Provider provides its Services, but excluding any third-party properties, software, code or other assets over which Provider has no meaningful right of control.

• "Laws" means all applicable local, state, federal, and international laws, regulations, ordinances, rules, judgments, orders and conventions of a government, agency, court, or tribunal of competent jurisdiction, including, without limitation, those laws lines referenced in Section 2.3 above and any other then-applicable laws and guidelines related to marketing, telemarketing, data privacy and data transfer, communications, and the export of technical or personal data.

• "People" (in the singular, "Person") means Customer's contacts or potential customers with whom Customer communicates via the Provider Services.

• "Permitted User" means an employee or Contractor of Customer or its Affiliate who is authorized to access the Service.

• "Sensitive Personal Information" means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA"); or (iii) any other personal data of an EU citizen deemed to be in a "special category."

• "Services" means the functionality provided through the Provider’s proprietary Unified Communications-as-a-Service solution(s), including, but not limited to, the Dashboard, Provider application programming interfaces (APIs), Provider Properties, and Provider Apps, which, among other things, and depending on your particular Order Form, includes the ability to make and receive telephone calls to and from your People, and to organize, manage and respond to communications from your People.

• "Taxes" means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, activation fees, porting fees, early termination fees, regulatory compliance fees (“Regulatory Recovery Fees”) and government-mandated pass through fees such as, but not limited to, Universal Service Fund fees (“USF”) and e911 fees, but excludes taxes based on Provider’s income.

• "Third-Party Platform" means any software, software-as-a-service, data sources or other products or services not provided by Provider that are integrated with any Services.

1. Enzo Dialer Provider Services

1.1. Provision of Services. Each Service is provided on a subscription basis for an initial one-month term and in the designated quantities and rates designated on the Order Form. The customer will purchase and the Provider will provide the specific Services as specified in the applicable Order Form.

1.2. Access to Services. Customer may access and use the Services solely for its own benefit and in accordance with the Agreement, the Documentation and any restrictions designated in the applicable Order Form. Use of and access to the Services is permitted only by Permitted Users. If we provide Customer-specific URLs, Customer API keys or passwords to access the Services, Customer will require that all Permitted Users keep that access information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. The customer will be responsible for any and all actions taken using the Customer's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor) of Customer, then Customer will immediately notify their Provider account representative to facilitate the termination of such Permitted User's access to the Service.

1.3. Deployment of Provider Properties. Subject to all the terms and conditions of the Agreement, Provider grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Term to copy the Provider Properties in the form we provide on Customer Properties solely to support Customer's use of the Service and otherwise in accordance with the Documentation and the Agreement. In certain use-cases, Customer must implement Provider Properties on the Customer Properties to enable features of the Services. Customer will implement all Provider Properties in strict accordance with the Documentation and other instructions we provide. Customer acknowledges that any changes made to the Customer Properties after initial implementation of Provider Properties may cause the Services to cease working or to function improperly and that Provider will have no responsibility for the impact of any such Customer changes.

1.4. Contractors and Affiliates. Customer may permit its Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all the terms and conditions of the Agreement, and any use of the Services by such individuals is for Customer’s sole benefit.

1.5. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party without Provider’s prior express written consent; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain any proprietary source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law or open source license terms; (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services; or (f) publicly disseminate information regarding the performance of the Services.

1.6. Third-Party Carriers. Provider’s Services include your ability to make calls to and receive calls from your People. You understand and agree that these calling tools involve a significant number of third-party networks operated by third parties over which Provider has no control, including a regularly evolving set of wireless carriers, aggregators, and other platform operators, and you understand and agree that Provider shall not be liable for any acts, omissions, or errors caused by those third-party operators and networks.

1.7 Support. Customer and technical support for the Services may be contacted during normal business hours. Normal business hours are defined as 9 am to 5 pm Eastern Standard Time, Monday through Friday. Provider support staff will receive any support requests made on holidays or outside normal business hours on the following business day.

2. Customer Data and Duties

2.1. Rights in Customer Data. As between the parties, Customer will retain all rights, titles and interests (including any intellectual property rights) in and to the Customer Data as provided to Provider. Subject to the terms of the Agreement, Customer hereby grants to Provider a non-exclusive, worldwide, irrevocable, royalty-free right to use, copy, store, transmit, modify and display the Customer Data to provide the Services contemplated hereunder. You hereby permit Provider to alter and encode Your Data into other formats, store, process and transmit it via third parties to mobile devices and, optionally, any other devices and means of viewing agreed upon by You and Provider as necessary or appropriate for Provider to provide the Services. Customer also hereby grants Provider a revocable right to use Customer's name and logo on Provider’s website and in Provider promotional materials and to disclose Customer as a customer of Provider. Customer agrees to provide Provider notice of any revocation of this right and thirty (30) days for Provider to remove any reference to Customer on Provider’s website.

2.2. Storage of Customer Data. Provider does not provide an archiving service. Provider agrees only that it will not intentionally delete any Customer Data from any Service before termination of Customer's applicable Subscription Term. Provider expressly disclaims all other obligations with respect to storage.

2.3. Customer Duties.

a) In General. Customer is solely responsible for the accuracy, content and legality of all Customer Data and its use thereof. Customer represents and warrants to Provider that Customer has all necessary rights, consents, and permissions to collect, share, and use all Customer Data and make and receive all calls via the Services as contemplated in the Agreement (including granting Provider the rights in Section 2.1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) or any Laws. Customer will be fully responsible for any Customer Data submitted to or sent through the Services by any Person as if it were submitted by Customer. You understand and agree that Provider, at its sole discretion, may refuse, suspend, terminate any communications, campaign, or account that, in its reasonable opinion, is not in compliance with applicable Laws.

b) No Sensitive Personal Information. Customer agrees not to use the Services to collect, store, process, or transmit any Sensitive Personal Information. The customer acknowledges that the Provider is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. Provider will have no liability under the Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.

c) Compliance with Laws. The customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, Customer will not engage in any unsolicited communications, advertising, marketing, or other activities using the Services, including without limitation, any activities that violate Laws applicable to advertising, electronic communications, and telemarketing, including, but not limited to, Section 5 of the FTC Act (15 U.S.C. § 45), the CAN-SPAM Act (15 U.S.C. §§ 7701-7713), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108), the Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. § 310 et seq.), the Telephone Consumer Protection Act (47 U.S.C. § 227), the Federal Communications Commission regulations (47 C.F.R. § 64.1200 et seq.) and orders implementing the Telephone Consumer Protection Act, all federal and state Do Not Call and calling-time restriction laws and regulations.

d) KYC and Robocall Mitigation Cooperation.

1. Customer will fully, accurately, and timely cooperate with Provider’s requests for information to assist Provider in fulfilling its Know Your Customer (“KYC”) and Robocall Mitigation duties under applicable law. Customer will provide written updates within five business days whenever Customer’s responses to previously completed KYC forms have become inaccurate, such as, for example, if Customer’s contact information, state of incorporation, principal place of business, names or DBAs used on its calls, or other customer-identifying facts have changed. Customer will maintain with the Provider current contact information, including their title and personal email address and phone number, for its compliance-related personnel at all relevant times.

2. Customer will fully and timely respond to Provider’s requests concerning specific call(s) or traffic to enable Provider to respond to requests from the Industry Traceback Group, FCC, law enforcement, and/or other federal or state regulators; Customer acknowledges Provider may be restricted in what Provider can advise Customer about the basis for its requests, but will nevertheless provide timely, full and complete cooperation, information and assistance whenever Provider seeks information or documentation concerning Customer’s compliance with the Agreement and applicable law. Customer understands that traceback requests and other time-sensitive law-enforcement requests for information and documentation ordinarily require Customer to provide all reasonably accessible information to Provider in less than 24 hours, and commits to doing so.

e) Consent to Call.

1. Customer acknowledges that certain telephone calls can only be made with the consent of the called party and that the content and documented nature of such consent can vary based on, among other things, the content of the call (e.g., whether it’s a telemarketing call), who is calling (e.g., a for-profit or non-profit entity), and the type of phone service being used by the called party (e.g., a wireless service).

2. Customer represents and warrants that insofar as its calls with Provider’s Services require any form of consent or an applicable business relationship, it will have secured such consent or relationship before making calls to such persons, and provide such proof to Provider promptly upon Provider’s request for such documentation.

3. Customer represents and warrants that all lists of phone numbers used in connection with Provider’s Services (“Customer Calling List”) and all calls to be made or messages to be sent to the Customer Calling Lists are made with the requisite form of consent, and otherwise comply with all applicable state, local and federal laws.

f) Customer Identification.

1. Customer agrees that, on all calls it makes or receives with Provider’s Services, it will identify itself and, if applicable, its agents and/or any party on whose behalf it is called, with the names and contact information as required by applicable law.

2. Customer agrees that it will not use the Services to misrepresent its identity, the identity of any party on whose behalf its calls are made, or use any trademark, service mark, trade name, or DBA of any company or organization in a manner that is likely or intended to cause confusion about the owner or authorized user of such name.

g) Compliant Calls.

1. Customer shall not use Provider’s Services to make any prohibited calls to emergency services such as police, fire, and other law enforcement agencies, PSAPs (e.g., 911), and others such as hospitals and other healthcare facilities, physicians, and/or poison control centres.

2. Customer shall not make any unlawful calls that result in charges to such recipients, or to engage in one-ring scams prohibited by law.

3. Customer shall not use the Services in a manner that causes two or more lines of a multi-line business’s phone system to be used in a prohibited manner.

4. Customer shall not make any calls that violate federal or state time-of-day, holiday, or emergency restrictions.

5. Customer will provide all call-recording disclosures required under applicable law, and secure all necessary consents to record in states where all parties to the call must consent to the recording of such calls.

6. Customer shall only use the Services in a manner that complies with any applicable call-abandonment rules, including providing sufficient Customer staffing to field the requisite number of answered calls, and to provide any required disclosure on abandoned calls where such rules apply.

7. If a call recipient asks that its number(s) be added to Customer’s internal Do Not Call List (Internal DNC List), whether via Provider’s voice services or through other reasonable means, then Customer shall promptly and accurately add such number to its Internal DNC List, and train its employees and agents on the lawful procedures for maintaining Customer’s Internal DNC List. Customer understands that the Provider Services provide opt-out features relating to its DNC List and it is Customer’s responsibility to use such features in compliance with applicable laws.

h) Customer content and CPNI.

1. Customer is solely responsible for all Customer content, i.e., the content of your calls via the Services. Provider has no duty to Customer or any third party for Customer Content. Provider reserves the right, but not the duty, to pre-screen, refuse or remove any Customer Content from the Provider Services at Provider’s discretion without notice or liability to Customer or any other party. The customer owns any copyright or any other intellectual property rights it holds in Customer content. Customer hereby grants to Provider a non-exclusive, worldwide, royalty-free, sub-licensable, transferable, perpetual, irrevocable license to use, copy, modify, adapt, translate, publish, publicly perform, publicly display, reproduce, transfer, prepare derivative works of, and distribute Customer content, as is necessary or appropriate for Provider to provide its Services and exercise its rights under the Agreement. The customer represents and warrants that it has all necessary rights, licenses, consents, and permissions to grant such license and permit such use.

2. As part of providing certain voice services included within the Services, the Provider may collect and maintain certain customer proprietary network information (“CPNI”), as defined by applicable law. CPNI includes the types of voice services the Customer may purchase or subscribe to, how the Customer uses those services, and billing information related to those services. The customer’s telephone number(s) assigned to it from the Provider, name, and address are not CPNI. Except as set forth in the Agreement, Provider does not sell, trade, or otherwise share Customer’s CPNI with anyone outside of Provider and those parties authorized to represent Provider to offer its services or to perform functions on Provider’s behalf related to Provider Services, except as the law may require or Customer may authorize. Notwithstanding the foregoing, Customer understands and agrees that Provider may also use or disclose Customer CPNI for legal or regulatory reasons, to investigate fraud or potential fraud, to protect Provider’s rights or property, to protect against the use of Provider Services in violation of the Agreement or to protect other Users.

i) Provider also prohibits the following uses of its Services (“Prohibited Usage”):

1. Call about, upload, post, message, email, transmit or otherwise make available any illegal contests or gambling, unsolicited or unauthorized advertising, promotional materials, “chain letters,” “pyramid schemes,” or any other form of unlawful solicitation;

2. Upload, post, transmit or otherwise communicate or make available any adult Content or Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements, or which violates the intellectual property rights of a third party;

3. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;

4. Call about, upload, post, text message, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any mobile telephone, mobile device, computer software or hardware or telecommunications equipment;

5. Using any equipment or software that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, in conjunction with your use of the Services;

6. Harvesting, or otherwise collecting information about others, without their consent;

7. Misleading others as to the identity of the sender of your calls or messages, by creating a misleading Caller ID or false identity, impersonating the identity of someone/something else or providing contact details at do not belong to you;

8. Transmitting, associating or publishing any unlawful, racist, harassing, libellous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind;

9. Transmitting any material that may infringe upon the intellectual property rights of third parties including trademarks, copyrights or other rights of publicity;

10. Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or y other harmful/deleterious programs;

11. Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means;

12. Interfering with another’s use and enjoyment of the Services; or

13. Engaging in any other activity that Provider believes could subject it to criminal liability or civil penalty/judgment.

Without limiting the foregoing, Provider shall have the right to remove or refuse Service on any of your Data or calls that violate the Agreement, including these Prohibited Usage terms, and/or applicable law.

Customer acknowledges and agrees that Provider may access, preserve, and disclose your Data if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with any subpoena or other legal process; (b) enforce the Agreement; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Provider, its users and the public.

2.4. Indemnification by Customer. Customer will indemnify, defend and hold harmless Provider from and against any and all losses, liabilities, claims, causes of action, demands, or damages of every kind brought by a third party, including all judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including expenses of litigation or arbitration, court or arbitration costs and attorneys' fees and other professional fees that Provider may incur as a result of such third-party claims, demands, or causes of action (collectively, "Losses") arising out of or in connection with any claim arising from or relating to (a) Customer’s alleged breach of or activities under the Agreement; or (b) Customer’s use of the Services or Assets. Customer’s indemnification obligations under this Section 2.4 shall apply regardless of who may be at fault or otherwise responsible under any statute, rule, or theory of law, including but not limited to theories of strict liability, including, but not limited to, claims relating to the Telephone Consumer Protection Act or similar state and federal laws, and even though the subject loss, damage, or injury may have been caused in whole or in part by the concurrent, active, or passive negligence of Provider or a defect in the Services. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim; (ii) the right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of Provider at Customer's expense. Notwithstanding the foregoing sentence, (a) Provider may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without Provider's prior written consent unless the settlement fully and unconditionally releases Provider and does not require Provider to pay any amount, take any action, or admit any liability. As noted below, Section 2.4 shall survive the termination of the Agreement.

2.5. Aggregated Anonymous Data. Notwithstanding any other term of the Agreement, Customer agrees that Provider may obtain and aggregate technical and other data about Customer's use of the Services that is non-personally identifiable with respect to Customer or its People ("Aggregated Anonymous Data"), and Provider may use the Aggregated Anonymous Data for any lawful business purpose during and after the term of the Agreement, although Provider agrees not to identify Customer as the source of any Aggregated Anonymous Data.

2.6. Your Phone Numbers. Provider may offer the opportunity to enable you to use one or more phone numbers with the Services. When you use such a feature, you represent and warrant that (i) you will only use the Services for legal purposes and will comply with all applicable laws and regulations in connection with your use of the Services and any number you register or associate with your account, (ii) you have procured any and all necessary rights and licenses, and have the full power and authority, necessary to use any phone number you register or associate with your account, (iii) you will not use the services on a phone number that has been exchanged with, rented, or purchased from a third party unless you have received permission from the third party to do so.

3. Third-Party Platforms

The Services may support integrations with certain Third-Party Platforms. In order for the Services to communicate with such Third-Party Platforms, the Customer may be required to input credentials for the Services to access and receive relevant information from such Third-Party Platforms. By enabling the use of the Services with any Third-Party Platform, Customer authorizes Provider to access Customer's accounts with such Third-Party Platform. The customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that Provider has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform. Provider does not guarantee that the Services will maintain integrations with any Third-Party Platform and Provider may disable integrations of the Services with any Third-Party Platform at any time with or without notice to Customer. Customer acknowledges that the Agreement governs Customer's use of and access to the Services even if accessed through an integration with a Third-Party Platform.

4. Ownership

4.1. Provider Assets. Customer acknowledges that it is obtaining only a limited right to access and use the Services and that no ownership rights are being conveyed to Customer under the Agreement. Customer agrees that Provider (or, as applicable, its licensors or suppliers) retain all rights, titles and interests (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, and any and all related and underlying technology and documentation and any derivative works, modifications or improvements thereof, including as may incorporate Feedback (collectively, "Provider Assets"). Except as expressly set forth in the Agreement, no rights in any Provider Assets are granted to Customer. Further, Customer acknowledges that it has no right to obtain a copy of any of the Services, except for Provider Properties and the Provider Apps in the format provided by Provider and in accordance with the Agreement.

4.2. Feedback. Customer may submit Feedback to the Provider. Provider may freely use or disclose Feedback in connection with any of its products or services, and you irrevocably, non-exclusively license to us rights to exploit such Feedback.

5. Subscription Term, Fees & Payment

5.1. Term and Renewals. Unless otherwise specified on the applicable Order Form, the standard subscription term to the Service is one month (from the Effective Date), and each one-month Term will automatically renew for additional one-month renewal periods unless either party gives the other written notice of termination at least thirty (30) days prior to the expiration of the then-current Term. During the current term you are free to increase or add services by completing a new Order Form, a written request to Provider, or otherwise using additional Provider Services. The additional services will become part of the current subscription term and will be subject to the same automatic renewal as the current subscription term.

5.2. Credit Card.

a) You are required to always keep a credit card on file with Provider for payment purposes. Provider has the right to suspend or terminate your account and refuse all current or future uses of the Services (or any portion thereof), without notice, if you fail to keep an active credit card on file. You hereby authorize Provider to charge the credit card you keep on file.

b) By providing your credit card information and agreeing to purchase any Services, Customer hereby authorizes Provider (or its designee) to automatically charge your credit card that you keep on file, at least twice a month, during the Term for all fees and charges, per Sections 5.3 and 5.4 and in accordance with the applicable Order Form(s).

c) If payment is not successfully settled due to the expiration of a credit card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Provider and Provider may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the credit card once it has been updated by Customer (if applicable) or (iii) terminate the Agreement.

d) At any time, Customer may change its credit card information by promptly notifying its Provider account representative.

e) Upon any termination of the Term, Provider will charge Customer's credit card for any outstanding fees for Customer's use of the Services during the Term, after which Provider will not charge Customer's credit card for any additional fees.

5.3 Pre-Payment.

a) Provider is principally a prepaid service. You hereby authorize Provider, in its sole discretion, to apply all applicable charges and fees incurred under the Agreement to the credit card you keep on file with Provider. Prepaid service requires your account to always have sufficient funds. All Services, in the Provider’s sole discretion, may be immediately suspended without further notice at any time the account does not have sufficient funds.

b) At the inception of Services, you agree to deposit a fixed amount into your account to establish its initial prepaid value. Thereafter, as your use of the Services depletes its initial value through applicable Fees to the low-balance threshold (the default of which is $180.00), you agree that the credit card you keep on file with Provider may be charged to restore its account value above the low-balance threshold to a top-up value.

c) Subject to certain exceptions, all fees are due in advance on the first day of each month. Fees may include monthly recurring charges (“Service Fees”), and other non-recurring charges including, but not limited to, activation fees, porting fees, early termination fees, regulatory compliance fees (“Regulatory Recovery Fees”) and government-mandated pass-through fees. All payments, including payments paid in advance (your Provider Balance), are non-refundable.

d) Your failure to pay in full, at Provider’s sole discretion, may result in immediate account suspension and Provider shall have no liability for such suspension. The provider will assess an additional 1.5% per month (or the highest amount allowed by law, whichever is higher) late charge if your payment is more than thirty (30) days past due. You are responsible and liable for any and all fees, including reasonable attorneys’ and collection fees and costs, that Provider may incur in its efforts to collect any outstanding balances. You also agree to pay any outstanding balances if you cancel the Services. You further understand and agree that Provider and its agents may use automated telephone dialing equipment or an artificial or prerecorded voice message to contact you in connection with the Agreement or Provider’s Services and that Provider may contact you at any telephone number you provide to Provider even if that number is a cellular telephone number.

5.4 Fees and Charges.

a) All fees are as set forth in the applicable Order Form and will be paid by the Customer. Except as expressly set forth below in Sections 7 (Limited Warranty) and 9 (Indemnification), all fees are non-refundable. The customer is responsible for paying all Taxes. All Taxes are excluded from any fees set forth in the applicable Order Form.

b) If at any time after execution of the Agreement, a Network Operator or other Third-Party changes the Third-Party Charges on Provisioned Phone Numbers then Provider, at its discretion, may pass through such fees (“Pass-Through Charges”) to you at cost. Such Pass-Through Charges will be applied to your account on the 15th day of every month. Payment for such charges will be due within 30 days after they are applied to your account.

c) You may incur additional charges that are not, or cannot be, calculated as part of the prepaid charges, including, but not limited to, certain usage-based charges and other non-recurring charges. You will be billed monthly for such charges. Payment for such charges will be due within 30 days after they are applied to your account.

5.5. Suspension of Service.

a) If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including any termination rights), Provider reserves the right to suspend Customer's access to the Services without liability to Customer until such amounts are paid in full. Provider also reserves the right to suspend Customer's access to the Services without liability to Provider if Customer's use of the Services is in violation of the Agreement.

b) During any period of suspension for non-payment, Services will be unavailable until the account balance is paid in full. If Services are terminated for reason of non-payment or otherwise, you understand and agree that no Services will be provided and any Provider-assigned telephone numbers can be reclaimed immediately and no longer available to you.

6. Term and Termination

6.1. Term.

6.2. Termination for Cause. Either party may terminate the Agreement (including all Order Forms) if the other party (a) fails to cure any material breach of the Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

6.3. Effect of Termination. Upon any expiration or termination of the Agreement, Customer will immediately cease all use of and access to all Services (including any and all related Provider Assets) and delete (or, at Provider's request, return) any and all copies of the Documentation, any Provider passwords or access codes and any other Provider Confidential Information in its possession. Provided the Agreement was not terminated for Customer's breach, Customer may retain and use internal copies of all reports exported from any Service before termination. Customer acknowledges that following termination it will have no further access to any Customer Data input into any Service that Provider may delete any such data as may have been stored by Provider at any time.

6.4. Survival. The following Sections will survive any expiration or termination of the Agreement: 1.6 (General Restrictions), 2 (Customer Data and Duties), 4 (Ownership), 5.2 (Credit Card), 5.3 (Pre-Payment), 5.4 (Fees and Charges), 6 (Term and Termination), 7 (Warranty Disclaimer), 8 (Limitation of Remedies and Damages), 9 (Indemnification for Infringement Claims), 10 (Confidential Information) and 12 (General Terms).

7. Warranty Disclaimer

WITHOUT LIMITING OUR EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, PROVIDER HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. EXCEPT FOR OUR EXPRESS WARRANTIES SET FORTH IN THE Agreement, THE SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

8. Limitation of Remedies and Damages

8.1. INDIRECT DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL PROVIDER BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF PROVIDER HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION 8.1 SHALL NOT LIMIT (A) EITHER PARTY’S LIABILITY ARISING FROM SUCH PARTY’S BREACH OF SECTION 10 (CONFIDENTIAL INFORMATION); OR (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO the Agreement.

8.2. DIRECT DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL PROVIDER BE LIABLE TO CUSTOMER FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM AT ISSUE. THIS SECTION 8.2 SHALL NOT LIMIT (A) EITHER PARTY’S LIABILITY ARISING FROM SUCH PARTY’S BREACH OF SECTION 10 (CONFIDENTIALITY); OR (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO the Agreement. THE PROVISIONS OF THIS SECTION 8 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.

9. Indemnification for Infringement Claims

9.1. Indemnification by Provider. We will defend, indemnify, and hold you harmless from and against all claims, demands, actions, and suits (“Claim”) brought against you by a third party and any damages, liabilities, losses, settlements, judgments, costs and expenses (including, without limitation, reasonable attorney’s fees and costs) (“Losses”) related thereto alleging the Provider Services as provided hereunder infringes or misappropriates a third party copyright, trade secret, or patent (“Infringement Claim”).

9.2. Infringement Options. If your use of the Provider Services has become, or in Provider’s opinion is likely to become, the subject of any Infringement Claim, Provider may at its option and expense: (a) procure for you the right to continue using the Provider Services as set forth herein; (b) modify the Provider Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms and refund you any unused pre-paid fees. This Section 9.2 states your exclusive remedy, for any Claim by a third party alleging that the Provider Services as permitted hereunder infringes or misappropriates a third-party copyright, trade secret, trademark or patent.

9.3. Limitations. Provider will have no liability or obligation with respect to any (a) Claim and any Losses related thereto arising out of your use of the Provider Services in breach of the Agreement or (b) Infringement Claim and any Losses related thereto arising out of the combination, operation, or use of the Provider Services with other applications, portions of applications, products, or services where the Provider Services would not by themselves, and without modification, be infringing.

10. Confidential Information

10.1 Confidentiality. Each party (as "Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Provider Assets, performance information relating to any Service, and the terms and conditions of the Agreement will be deemed Confidential Information of Provider without any marking or further designation required. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under the Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Provider, Subcontractors), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 10 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 10. The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in writing in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

10.2 Service Provider. You agree that (1) you, and not Provider, are responsible for complying with the California Consumer Privacy Act of 2018 (Cal. Civ. Code § 1798.100 et seq.) ("CCPA") and similar laws; (2) Provider is a "service provider" under CCPA and processes Personal Information on your behalf, acting under your direction when you disclose to Provider Personal Information of consumers who are your communication recipients; and (3) you and your Data are not subject to General Data Protection Regulation or any similar law or regulation that prohibits collection, distribution, processing and storage of the data you provide Provider as contemplated under the Agreement, and that if you are, you will enter into a separate written agreement with Provider detailing its rights and duties as a data processor. ‎With respect to the CCPA, Provider and you hereby agree that Provider is a service provider to you with ‎respect to the Personal Information. Provider is prohibited from (a) selling any Personal Information, and (b) retaining, using, ‎or disclosing Personal Information for any purpose other than for the specific purpose of performing the Services, which, for ‎the avoidance of doubt, also prohibits Provider from retaining, using, or disclosing Personal Information outside of its direct ‎business relationship with you or for any other commercial purpose; provided, however, that Provider and you agree that Provider may use Personal Information as permitted by the CCPA. ‎"Personal Information" means any information that Provider has ‎collected, accessed, received, used, disclosed, stored, transmitted, retained or otherwise processed on behalf of you pursuant to Provider's provision of Services to you under the Agreement and that constitutes "personal information," ‎under the CCPA. To the extent you cannot use the Services to directly perform such actions and provide such information, ‎Provider will promptly take actions and provide information as you may request to help you ‎fulfill requests of consumers to exercise their rights under the CCPA, including, ‎without limitation, verifiable consumer requests to access, delete, opt out of the sale of, or receive information about the ‎processing of, Personal Information pertaining to them. ‎This assistance will be provided to you at Provider's then-current fees.

11. Emergency Service Not Provided by Default

Customer understands and agrees that the Provider does not and is not required to provide 911-related services that connect a user to emergency services personnel or a public safety answering point (“PSAP“), pursuant to applicable regulatory requirements. Absent a separate written agreement with Provider, Provider’s Services are provisioned as non-interconnected VoIP services and therefore do not permit the dialing of “911” or any other emergency telephone numbers. Customer understands and agrees that Provider is not a replacement for Customer’s and Customer’s employees’ and contractors’ primary telephone service. CUSTOMER ACKNOWLEDGES AND AGREES THAT PROVIDER’S SERVICES DO NOT INCLUDE EMERGENCY DIALING SERVICES. SUBSCRIBER UNDERSTANDS AND AGREES THAT ADDITIONAL ARRANGEMENTS WITH A THIRD-PARTY CARRIER MUST BE MADE BY CUSTOMER ACCESS EMERGENCY SERVICE.

Customers agree that Provider, its officers, directors, employees, shareholders, affiliates and agents will not be liable for, and will defend and indemnify Provider and its officers, directors, employees, shareholders, affiliates and agents from, any claim, damage, or loss arising from, or relating to, Customer’s or its employee’s or contractor’s use or attempted use of Provider’s services or any other service provided hereunder to contact a PSAP or any other emergency services personnel. Customer specifically waives, to the maximum extent permitted by law, any and all such claims or causes of action, arising from or relating to Provider’s services or any other service provided hereunder to contact a PSAP or other emergency Services personnel.

12. General Terms

12.1. Assignment. the Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Customer may not assign the Agreement without Provider’s advance written consent, except that either party may assign the Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign the Agreement except as expressly authorized under this Section 12.1 will be null and void. At its sole discretion, the Provider is free to assign its rights and duties under the Agreement.

12.2. Severability. If any provision of the Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that the Agreement will otherwise remain in effect.

12.3. Agreement to Arbitrate; Governing Law.

Before bringing a formal legal action arising out of or relating to the Agreement, the parties agree to attempt to resolve any disputes arising out of the Agreement through informal dispute resolution means.

a) Agreement to Arbitrate. If a dispute cannot be resolved informally, the parties hereby agree to resolve any dispute relating to the Agreement or the Provider Services by binding arbitration in Los Angeles, California, or in another location that we have both agreed to. This applies to all claims under any legal theory unless the claim fits in one of the exceptions below. It also applies even after you have stopped using your Provider Services. If we have a dispute about whether the Agreement to arbitrate can be enforced or applies to our dispute, the parties agree that the arbitrator will decide that issue. The parties understand and agree that they are giving up the right to have a judge and/or jury resolve any controversy or claim arising out of or relating to the Agreement or the Provider Services.

b) Exceptions to Agreement to Arbitrate. The parties agree that either party may seek available judicial relief or remedies to resolve disputes relating to either party’s intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents).

Further, either party can bring a claim in small claims court either in Los Angeles, California, or the county where Customer maintains its principal place of business, or some other place we both agree on, if it qualifies to be brought in that court. In addition, if either party brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other party can ask a court to force the parties to go to arbitration to resolve the claim (i.e., compel arbitration). Either party may also ask a court to halt a court proceeding while an arbitration proceeding is pending.

c) Arbitration Procedure. Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this Section 12 conflicts with the Rules, the language of this Section 12 applies. Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 12 does not alter in any way the statute of limitations that would apply to any claims asserted by either party. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of New York and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify the Agreement. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.

d) Class Action Waiver. Both parties agree that any claims or controversies between us must be brought against each other on an individual basis only. Thus, neither party can or will bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). Further, the arbitrator’s decision or award in one party’s case can only impact the person or entity that brought the claim, not other Provider customers, and cannot be used to decide other disputes with other customers. If a court decides that this Section 12.3 (Class Action Waiver) is not enforceable or valid, then the entire Section 12 (Agreement to Arbitrate) will be null and void, but the rest of the Agreement will still apply.

e) Governing Law and Venue. The enforceability and interpretation of Section 12.3 (Agreement to Arbitrate) will be determined by the Federal Arbitration Act. Apart from Section 12.3, the Agreement will be governed by and interpreted according to the laws of the State of New York without regard to its conflicts-of-laws rules and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 12.3 (Agreement to Arbitrate), any legal suit, action or proceeding arising out of or related to these Terms or the Provider Services shall be instituted in either the state or federal courts of New York and we each consent to the personal jurisdiction of these courts.

12.4. Notice. Any notice or communication required or permitted under the Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.

12.5. Amendments; Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of the Agreement will be binding, unless executed in writing by a duly authorized representative of each party to the Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under the Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived.

12.6. Entire Agreement. the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of the Agreement.

12.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under the Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of the Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, pandemic, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

12.8. Subcontractors. Provider may use the services of subcontractors and permit them to exercise the rights granted to Provider to provide the Services under the Agreement, provided that Provider remains responsible for (i) compliance of any such subcontractor with the terms of the Agreement and (ii) for the overall performance of the Services as required under the Agreement.

12.9. Independent Contractors. The parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.

12.10. Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country, (ii) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

12.11. Construction. Both parties to the Agreement will be considered the Agreement’s author and agree that these terms result from negotiations between the parties. Any ambiguities that exist shall not be construed against either party.

12.12. Counterparts. the Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together will be considered one and the same agreement.