IMPORTANT- READ CAREFULLY: CUSTOMER'S USE OF THIS WEBSITE AND INTERCALL'S SMALL BUSINESS SERVICES ARE CONDITIONED UPON CUSTOMER'S COMPLIANCE AND ACCEPTANCE OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT USE THE SMB SERVICES. CUSTOMER IS ENCOURAGED TO PRINT OR DOWNLOAD THESE TERMS AND CONDITIONS AND SAVE THEM FOR CUSTOMER'S RECORDS.
This Agreement (the "Agreement") is between the individual or legal entity using, purchasing or opening an account for SMB Services ("Customer") and the InterCall related entity which invoices Customer for the SMB Services ("InterCall"). Please read this Agreement carefully before installing, accessing, or otherwise using the SMB Services. By installing, accessing, or otherwise using SMB Services, Customer agrees to be bound by this Agreement. Please maintain a copy for Customer's records. InterCall reserves the right to reject the online registration of any Customer in InterCall's sole discretion.
This Agreement governs the purchase and use of InterCall's Small Business audio and web conferencing services and related products and services ("SMB Services"). InterCall may alter, expand, or reduce the features of the SMB Services from time to time without notice to Customer. Customer agrees that InterCall's obligation to provide SMB Services is conditioned upon Customer providing all information and assistance reasonably required to perform the SMB Services and Customer hereby agrees to timely provide all such information and assistance. InterCall reserves the right to reclaim any dial-in numbers at any time. Customer acknowledges that not all SMB Services can be guaranteed from all locations including, but not limited to via mobile telephones, pay phones or satellite phones due to various in-country, carrier or other restrictions. Existing InterCall customers are able to convert to SMB Services only if all owners under that customer's account are converted to SMB Services.
"Effective Date" means the date the SMB Services ordered by Customer are available for use by Customer.
"Payment Information" means valid debit card or credit card number with credit sufficient to pay the applicable Subscription Fees and other information required by InterCall to invoice and charge Customer for the SMB Services ordered by Customer.
"Registration Information" means information provided by Customer as part of the process of ordering SMB Services from InterCall, whether online or via other means, including but not limited to Payment Information and electronic acceptance of payment terms and this Agreement.
"Subscription Term" is the period of time beginning at the Effective Date and continuing for the length of time ordered by Customer during the registration process, including any applicable auto renewal periods.
"Named User" means the employee designated by Customer to use the SMB Services in accordance with this Agreement, including contractors, consultants or other individuals authorized by Customer to use the Service.
Termination of the Agreement
Either Customer or InterCall may terminate this Agreement or any Subscription at any time for convenience upon written notice to the other party. Such a termination shall be deemed a Termination For Convenience.
Written notice can be sent to firstname.lastname@example.org
Each Conference Plan, other than Pay As You Go Plans, is subject to a Fair Usage limit of a total of 10,000 minutes per Plan per month. If these limits are exceeded, InterCall may immediately terminate the Customer's use of the SMB Services. Should InterCall do so, then InterCall will reimburse Customer for any amounts prepaid by Customer for SMB Services not rendered, and such reimbursement shall be the only and entire obligation of InterCall, and the exclusive remedy of Customer, for such termination.
Termination For Cause
The SMB Services may be terminated by the non breaching party upon a material breach by the other party of a material provision of this Agreement or the relevant Subscription which breach is not cured within sixty (60) days after written notice or within ten (10) days after written notice if the breach is a payment breach. Such a termination shall be deemed a Termination For Cause.
Written notice can be sent to email@example.com
Effect of Termination
If Customer the Services for Cause: (a) Customer will pay for all SMB Services rendered up to the date of termination; (b), InterCall will reimburse Customer for any amounts prepaid by Customer for SMB Services not rendered; and (c) Customer shall be relieved of any future payments due under such Subscription. Notwithstanding the prior sentence, if a Customer has selected an Annual Subscription Term and has terminated the SMB Services for Convenience (or it has been terminated by InterCall for Cause), Customer shall be liable for 70% of any remaining monthly payments due to InterCall and InterCall has no obligation to reimburse such amounts if prepaid.
All use of SMB Services after termination shall be billed at standard rates.
Payments and Charges
InterCall will invoice Customer electronically free of charge or via paper invoice for a fee. Customer agrees to make payment via valid debit or credit card and further agrees that such debit or credit card may be charged on or about the date the invoice is issued to Customer without any further Customer consent. InterCall may also pre-authorize Customer's debit or credit card at the time the order is placed in order to ensure the validity of the card and availability of credit.
Customer must notify InterCall of any disputed charges within thirty (30) days from the date of the invoice, otherwise Customer will be deemed to agree to such charges and InterCall will not be subject to making adjustments to charges or invoices. Only one employee can be designated for each Named User Account. Named User Accounts may not be shared.
Per minute Services are charged by multiplying all inbound or outbound legs of all conferences by the applicable per minute rate. Customer should review http://www.intercall.com/smb/plans-pricing.php for additional charges and options applicable to the Services.
CUSTOMER ACKNOWLEDGES AND AGREES THAT STANDARD RATES ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT INTERCALL PROVIDING SPECIFIC NOTICE TO CUSTOMER BY INTERCALL POSTING NEW STANDARD RATES. CUSTOMER THEREFORE AGREES TO CHECK INTERCALL'S STANDARD RATES FROM TIME TO TIME AND IN EACH CASE PRIOR TO USING ANY SMB SERVICES SUBJECT TO STANDARD RATES. NEGOTIATED RATES ARE SUBJECT TO CHANGE AT ANY TIME ON THIRTY (30) DAYS PRIOR WRITTEN NOTICE TO CUSTOMER.
In the event charges due are not timely paid in full for any reason, InterCall shall have the right to suspend all or any portion of the SMB Services until such time as all charges and applicable interest amounts and/or late fees have been paid. Following such payment, InterCall may reinstate SMB Services only upon satisfactory assurance of Customer's ability to pay for SMB Services, including modified payment terms such as prepayment and/or accelerated invoicing. Such suspension shall not relieve Customer of any payment liability. Customer agrees to reimburse InterCall for any costs, expenses, or fees expended by InterCall in connection with any collection efforts against Customer, including reasonable internal and outside attorneys' fees.
Taxes, Fees and Surcharges
In addition to the rates for the SMB Services, Customer shall pay all applicable fees, duties, tolls, administrative assessments, surcharges, or taxes now or hereafter attributable to the SMB Services and included on Customer's invoice.
Subject to Customer's compliance with the terms and conditions of this Agreement, InterCall hereby grants Customer a non-exclusive license during the Subscription Term to use the SMB Services. Except as specifically set forth herein, InterCall or its suppliers retain all right, title, and interest, including all intellectual property rights, relating to or embodied in the SMB Services, including without limitation all technology, telephone numbers, web addresses, software, or systems relating to the SMB Services. Customer agrees not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of any software related to the SMB Services. Customer may not resell, distribute, make any commercial use of, use on a timeshare or service bureau basis, or use to operate a Web-site or otherwise generate income from the SMB Services or use the SMB Services for the development, production or marketing of a service or product substantially similar to the SMB Services.
Customer may not use the SMB Services in an attempt to, or in conjunction with any device, program or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. All rights not expressly granted by InterCall are hereby reserved. Customer agrees that it will not take any action to interfere with InterCall's ownership of or rights in the SMB Services. InterCall is under no obligation to provide Customer with any error corrections, updates, upgrades, bug fixes and/or enhancements. Customer agrees that (except as otherwise provided in this Agreement) it will not: (i) reproduce, republish, display, frame, download (except as expressly authorized herein), distribute, or transmit the SMB Services; (ii) redistribute, encumber, sell, rent, lease, loan, sublicense, assign, or otherwise transfer rights to the SMB Services; (iii) modify or create any derivative works based on the SMB Services, including customization, translation, or localization unless otherwise directed by InterCall; (iv) copy, reproduce, reuse in another product or service, modify, alter, or display in any manner any SMB Services or files, or parts thereof, included as part of the SMB Services; (v) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code of the SMB Services, or in any way ascertain, decipher, or obtain the communications protocols for accessing the SMB Services, or the underlying ideas or algorithms of the SMB Services; (vi) create or use any SMB Services other than that authorized by InterCall to access the SMB Services; (vii) attempt to gain unauthorized access to the SMB Services or to any account, application, platform, computer system or network associated with the SMB Services; (viii) use the SMB Services in any way that violates this Agreement, or any other agreements to which Customer is a party, or any law; (ix) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in or on the SMB Services or associated with the SMB Services; (x) post, transmit, redistribute, upload, or promote any materials that (a) violate or infringe in any way upon the rights of others, including without limitation copyrights and trademarks, (b) contain corrupted files, viruses, or any other similar SMB Services files the intent of which is to damage the operation of another's computer or the SMB Services, (c) are unlawful, threatening, harassing, abusive, defamatory or invasive of privacy or publicity rights, (d) contain any unsolicited advertising, promotional materials, or other forms of solicitation to other Customers, individuals or entities, (e) encourage conduct that would constitute a criminal offense, or (f) give rise to civil liability; or (xi) undertake any conduct that, in the judgment of InterCall, intentionally restricts or inhibits any other user from using or enjoying the SMB Services or the SMB Services. Customer will have sole responsibility for the adequate protection and backup of its data and/or equipment used with the SMB Services.
Responsibility for Customer's Accounts
Customer is responsible for maintaining the confidentiality of Customer's accounts, owner numbers, conference codes, passwords and personal identification numbers used in conjunction with the SMB Services and for all uses of the SMB Services in association with Customer's accounts whether or not authorized by Customer. InterCall does not sell products or SMB Services for children. Customer will not allow children under 18 to use the SMB Services without the involvement of a parent or guardian. Customer agrees to immediately notify InterCall of any unauthorized use of Customer's account of which Customer becomes aware. Customer is solely responsible for updating and maintaining its Registration Information. InterCall reserves the right to terminate SMB Services if Customer fails to provide, update or maintain complete and current Payment and Registration Information.
Responsibility for Communications
Customer is the sole owner of content and solely responsible for the content of all communications (visual, written or audible) using Customer's accounts. Although InterCall is not responsible for any such communications, InterCall may suspend or immediately terminate Customer's SMB Services upon any determined use of which InterCall is made aware. Use of conference recording or taping any use of the by Customer may subject Customer to laws or regulations and Customer is solely responsible for and obligated to provide any required notification to participants prior to commencement of said recording or taping. Customer acknowledges and agrees that InterCall has not and is not expected to provide Customer with any analysis, interpretation or advice regarding Customer's compliance with the above and does not control Customer's content nor guarantee the accuracy, integrity, security or quality of Customer's content.
Privacy and Data Use
ALL SMB SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND WITHOUT ANY WARRANTY. CUSTOMER UNDERSTANDS AND AGREES THAT INTERCALL'S SMB SERVICES AND THE WEBSITE ARE PROVIDED "AS IS" AND "AS AVAILABLE." INTERCALL AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. INTERCALL MAKES NO WARRANTY OR REPRESENTATION REGARDING ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH INTERCALL'S SERVICE REPRESENTATIVES OR WEBSITES, OR THAT THE SMB SERVICES WILL MEET ANY OF CUSTOMER'S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SMB SERVICES AND WEBSITE ARE AT CUSTOMER'S SOLE RISK. INTERCALL IS NOT LIABLE FOR ACTS OR OMISSIONS OF OTHER SERVICE PROVIDERS, FOR INFORMATION OR CONTENT OF COMMUNICATIONS, THIRD PARTY SMB SERVICES, EQUIPMENT FAILURE OR MODIFICATION, OR CAUSES BEYOND INTERCALL'S REASONABLE CONTROL.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL INTERCALL, OR ITS SUPPLIERS OR THEIR AFFILIATES, BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER OR LOSS OF GOODWILL, DATA OR PROFITS, OR COST OF COVER ARISING OUT OF, OR RESULTING FROM THE SMB SERVICES, THIS AGREEMENT OR ANY ORDER FORM REGARDLESS OF THE LEGAL THEORY OF RECOVERY, EVEN IF INTERCALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID, CUSTOMER AGREES THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY CUSTOMER IN REASONABLE RELIANCE, UP TO THE LESSER OF THE AMOUNT OF A REFUND OF THE PRICE THAT CUSTOMER ACTUALLY PAID FOR THE SMB SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY) OR ONE HUNDRED DOLLARS (US $100).
Customer shall indemnify, defend and hold InterCall, its suppliers, their affiliates and their officers, directors, employees (the "InterCall Indemnitees") harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys' fees, which arise out of or relate to: (1) Customer's use of the SMB Services (including without limitation, any person accessing the SMB Services using Customer's account); (2) any fraud, misuse, manipulation, or actual or alleged violation of this Agreement, any Subscription or any applicable law, rule or regulation by Customer or any person accessing the SMB Services using Customer's account; (3) any determined use by Customer or any person accessing the SMB Services using Customer's account; and/or (4) any actual or alleged infringement or violation by Customer or any person accessing the SMB Services using Customer's account of any intellectual property or privacy or other right of any person or entity.
InterCall and Customer agree to use commercially reasonable efforts to protect from unauthorized disclosure Confidential Information of the other party. Confidential Information shall mean information that derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and marked as Confidential ("Confidential Information"). The parties agree that Confidential Information may be disclosed to employees, affiliates, suppliers or advisors on a need-to-know basis and who agree to be bound by confidentiality terms and conditions at least as stringent as those herein. This confidentiality obligation shall not apply to any information (i) independently developed by a party, (ii) generally available to the public other than by a party's breach of this Agreement, (iii) already known by a party at time of disclosure to that party, or (iv) rightfully received from a third party without restriction on disclosure or an obligation of confidentiality running directly or indirectly to the other party. Nothing shall prevent or prohibit the receiving party from providing access to Confidential Information as may be required by law, rule or regulation provided that the receiving party gives as much notice as is reasonably practical and provides reasonable assistance to the disclosing party in challenging the disclosure so required by law, rule or regulation. Notwithstanding the foregoing, the parties acknowledge that Recipient shall not be required to return to Discloser or destroy those copies of Information residing on Recipient's backup, disaster recovery or business continuity systems and the obligations hereunder with respect to such Information shall survive until such Information is destroyed.
Use of the SMB Services by the United States Government or other governmental agencies shall be as "restricted computer software" or "limited rights data" as set forth in 48 CFR 52.227-14, or as "commercial computer software" or "commercial computer software documentation" under DFARS 252.227-7202, or under such other similar applicable terms and conditions to prevent the transfer of rights in and to the technology to the government or such agency other than under normal commercial licensing terms and conditions. Contractor/manufacturer is InterCall, Inc., 8420 W. Bryn Mawr Ave., Suite 400, Chicago, IL 60631.
Export and Import Control Laws and Regulations
Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the SMB Services and any related software. Without limiting the foregoing, Customer acknowledges that the SMB Services and any related software are or may be an "encryption item" subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. Customer agrees not to export or re-export the SMB Services or any related software in any form in violation of the export laws of the United States or any foreign jurisdiction.
Message delivery Services
If Customer uses SMB Services to send fax, email, phone, text, SMS, or other messages ("Messages") to any recipients (the "Recipients") as a condition for using such SMB Services, Customer represents and warrants that a) that Customer will not make any automated outdials to induce the purchase of goods or SMB Services or to solicit a charitable contribution; and (b) Customer has the legal right to send all Messages to the Recipients (including obtaining any required consents from the Recipients) and the content timing and purpose of all Messages, campaigns and programs are in compliance with all applicable laws, rules and regulations including those with respect to timing, content, do not call lists and: the following laws of the United Sates: TCPA 47 USC 227; CANSPAM Pub. L. No. 108-187; and TSR 16 CFR 310; the following laws of Canada: the Canadian Radio-television and Telecommunications Commission concerning telemarketing and unsolicited faxes, Personal Information Protection and Electronic Documents Act; and from the following laws of the United Kingdom: the UK Privacy and Electronic Communications Regulations 2003. Customer further acknowledges that Customer is the sender of all Messages and InterCall is acting at Customer's direction as the broadcaster of the Messages. InterCall does not provide content and Customer shall be solely responsible for all content of the Messages and for providing any list of names, numbers or addresses for InterCall to utilize in sending Messages.
If any part of this Agreement is determined to be invalid or unenforceable, then such invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the allocation of risks, and the remainder of the Agreement will continue in effect. If any provision(s) is found to be contrary to law, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. InterCall's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless agreed to by InterCall in a non-electronic writing manually signed by a duly authorized representative of InterCall. If there is any law, rule, regulation or policy that causes InterCall to be regulated or that causes the Agreement or SMB Services to be in conflict with such law, rule, regulation or policy, InterCall may terminate or modify the affected SMB Services without liability.
Except as otherwise expressly provided herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise. Customer acknowledges that InterCall is an independent contractor, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. This Agreement is for the sole benefit of InterCall and its affiliates and Customer and is not intended to, nor shall it be construed to, create any right or confer any benefit on any other party. The parties do not intend that this Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to this Agreement. The parties confirm that they wish to have this Agreement written in English only. Les Parties aux presentes confirment leur volonte que cette Convention soit redigee en langue anglaise seulement. Customer authorizes InterCall's monitoring including recording of calls for the purposes of quality assurance and Customer further consent to InterCall's use of automatic dialing equipment to contact Customer. InterCall's performance of the SMB Services is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of InterCall's right to comply with governmental, judicial and law enforcement requests or requirements relating to Customer's use of InterCall's Website, the SMB Services or information provided to or gathered by InterCall with respect to such use. Customer may not assign this Agreement to any other person or entity without InterCall's prior written approval, but nothing restricts InterCall's ability to assign this Agreement or subcontract the SMB Services hereunder.
Governing Law; Exclusive Forum; Jurisdiction
If Customer is incorporated or registered in, or if not incorporated or registered, resides in Europe, the Middle East or Africa, this Agreement shall be governed and construed by the laws of England and Customer irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts sitting in England with respect to any dispute, controversy or claim arising out of or relating to this Agreement or any SMB Services provided by InterCall. If Customer is incorporated or registered in, or if not incorporated or registered, resides in Asia, Australia, New Zealand or the Indo - Pacific region, this Agreement shall be governed and construed by the laws of Singapore and Customer irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts sitting in Singapore with respect to any dispute, controversy or claim arising out of or relating to this Agreement or any SMB Services provided by InterCall. If Customer is incorporated or registered in, or if not incorporated or registered, resides in North, Central or South America or any other region of the world not mentioned above, this Agreement shall be governed and construed by the laws of Nebraska USA and Customer irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts sitting in Omaha, Nebraska USA with respect to any dispute, controversy or claim arising out of or relating to this Agreement or any SMB Services provided by InterCall.
Customer agrees to service of process by mail directed to Customer's billing address. Customer waive all defenses including but not limited to sovereign immunity, lack of personal jurisdiction and forum non conveniens and expressly waive any right to bring suit or have any action heard in Customer's local courts. Customer agrees that any claim or cause of action arising out of or related to this Agreement must be commenced by Customer within one (1) year after the cause of action arose.
InterCall will not be responsible for delays and/or defaults in its performance due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing; acts of terrorism, wars, hostilities, revolutions, riots, civil commotion, national emergency, fire or explosion, flood, force of nature, embargoes, accidents, acts of God, or stability or availability of the Internet, the elements; telecommunication system failure; technology attacks, epidemic; quarantine; viruses; strike; lockouts; disputes with workmen or their labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or request of any governmental authority; or any other cause beyond InterCall's control, whether or not similar to the foregoing.
This Agreement in constitutes the entire agreement between InterCall and Customer with respect to the SMB Services and supersedes all prior or contemporaneous communications and proposals, representations, promises, or agreements, whether electronic, oral, or non-electronic, between InterCall and Customer regarding them. Customer agrees that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that Customer may now or later provide to InterCall, will have no effect and that this Agreement is the only contract between InterCall and Customer regarding the SMB Services and may only be amended as set forth herein. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. A printed version of this Agreement and of any notice given to Customer in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Notices from InterCall to Customer under this Agreement may be sent by mail, email, fax or other electronic media and will be considered given upon delivery to the physical address, fax number, email address or other contact information provided by Customer for billing or account management purposes. Notices to InterCall must be sent to the address mentioned in InterCall's invoice to Customer with a courtesy copy to 8420 W. Bryn Mawr Ave., Suite 400, Chicago, Illinois 60631, Attn: Legal Department; Fax: 706-902-3961; Email: firstname.lastname@example.org. All notices shall be in English.
InterCall may, at any time, amend the provisions of this Agreement. Any amendment proposed by Customer may only be accepted by InterCall in a non-electronic writing manually signed by authorized representatives of the parties. Notwithstanding anything in this Section to the contrary, if InterCall posts amended terms on its Website, such terms will automatically become effective ten (10) days after they are posted on the Website. By using the SMB Services after such revised terms are posted, Customer agrees to be bound by any such amended provisions. Therefore, Customer agrees to periodically visit the Website to examine the then-current Agreement.
Revised November 18, 2010