1. SERVICES. This Agreement controls the texting and voice services (the “Services”) that you purchase through IVL. By purchasing Services from IVL, IVL will supply you with a phone number to send or receive texts (SMS/MMS) and/or make incoming and outbound calls within the lower 48 states in the United States, Hawaii and Canada. You may also use an existing non-cellular phone number and delegate the “texting” services to IVL. This is known as “External Numbers” or “Hosted Numbers”. More information can be found on the Site.
2. SERVICES. By using the Services, you agree to any information listed on the Site in regard to pricing, use of the Services, and other information listed regarding the Services. This information may change. If pricing changes, you will be given notice prior to the pricing increase going into effect; provided however, that you may not be given notice if taxes, fees, or other expenses not controlled by IVL are increased and notice cannot be reasonably given. You agree and acknowledge that it is your responsibility to back up any data, such as text messages, that are stored as part of the Services.
3. GENERAL. This Agreement is a legal agreement between you (either an individual or by you on behalf of the entity for which you are using the Services) and IVL. This Agreement governs the use of the Services. This Agreement applies to updates, supplements, add-on components, and other changes to the Services that IVL may provide or make available to you unless IVL provides other terms with the update, supplement, add-on component, or other changes to the Services provided that such provisions of this Agreement not specifically amended thereby shall remain in full force and effect according to their terms. This Agreement also governs any product support services relating to the Services except as may be included in another agreement between you and IVL.
4. VIOLATIONS OF ACCEPTABLE USE. You agree and acknowledge that you will not use the Services to do any of the following:
a. Telemarketing, autodialing, auto-texting, or any type of “predictive dialing” or forwarding your phone number to a number or system that does such activities;
b. Exploit or harm any vulnerable population including, but not limited to, minors, those with intellectual disabilities where they cannot give informed consent, or elderly people who cannot give informed consent;
c. Any activity that is illegal under United States law, the laws of the state, city or county that you are using the Services in, or the laws under the country, state, city, or county of the county you are calling or texting;
d. Any action that infringes on the intellectual property rights of others.
e. Any recording of calls that are not allowed under the laws of any party to the call.
f. Any immoral or harassing activities, including, but not limited to, threatening others, libelous activities, committing fraud, any activities that violate local or state “hate laws”, or other objectionable actions.
g. Any actions that mislead the recipient of a call such as using a false caller id (phone number) or stating that you are someone or represent someone that you do not.
h. Violating anti-spamming, data protection, or privacy laws and regulations such as the CAN SPAM Act of 2003, the Children’s Online Privacy Protection Act, the Do-Not-Call Implementation Act, the Telephone Consumer Fraud & Abuse Prevention Act, or the Telephone Consumer Protection Act.
5. DRIVING WHILE USING THE SERVICES. You agree to follow all city and state laws regarding driving and using hands free devices.
6. FAIR USE. You agree and acknowledge that IVL’s Services are meant for normal, reasonable business use and consistent with the types and levels of usage by IVL’s typical customers, which is defined as the usage of at least 90% of IVL customers. IVL’s Services are designed for normal commercial use. If your organization uses more phone or text services than the typical business customer (such as, but not limited to, call centers, resellers, telemarketers, routing centers, reselling services, shared business lines), please contact IVL to discuss other options to receive Services. Excessive use may result in termination or additional charges.
8. SUBSCRIPTION SERVICES. The Services are a subscription service where the Services will be provided to you on a monthly or yearly basis based on the first day that you subscribe to the Services. By subscribing to the Services, you acknowledge that your Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. Your subscription will be automatically extended for successive monthly or yearly periods and your payment method will automatically be charged for each successive monthly or yearly period at the then-current subscription rate. To cancel the Services at any time, you must logon to your account and follow the cancellation procedures or call or email IVL and IVL will do it for you. IVL may submit monthly or yearly charges without further authorization from you until you provide notice that you have terminated this authorization or wish to change your payment method. You agree and acknowledge that IVL will bill your credit card on file prior both for the monthly or yearly Services fee and for any additional charges that you have accrued. Should your billing method fail at any time, the Services will be suspended until your billing information is updated. Upon notice to you, IVL reserves the right to increase your monthly or yearly billing amount should your usage of additional features increase at any time.
9. DECLINED CREDIT CARD. Should any charge to your credit card be declined, you will be contacted to update your credit card information. No additional Services will be provided until your credit card information is updated and your new credit card charge is approved.
10. PHONE NUMBER. You may either be issued a phone number by IVL or you may port your existing telephone number to use the Services. If the Services are terminated, provided that your account balance has been paid in full, you may port the phone number used as part of the Services to another telephone or texting provider.
11. TERMINATION. Either IVL or you may terminate this Agreement at any time. If you terminate this Agreement, you will not receive a refund for any Services already purchased, but you will be able to use the Services through the end of the period that they have been paid for.
12. RESERVATION OF RIGHTS/OTHER RESTRICTIONS. The software that supports the Services are protected by copyright and other intellectual property laws and treaties. IVL or its suppliers own the title, copyright, and other intellectual property rights in the software. IVL reserves all rights to the underlying software and is only granting you the right to use the Services. Reverse engineering, decompiling, or disassembling the underlying software is prohibited, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
13. RESALE. Reselling, renting, leasing, lending and/or providing commercial services using the Services is prohibited without a separate reseller agreement.
14. RIGHTS AND OBLIGATIONS. IVL, in its sole discretion, may provide you with product support services related to the Services. Use of any such support services is governed by IVL’s policies and programs described in the user manual, in online documentation, on IVL’s support webpage, and/or in other IVL’s provided materials. Any services or software IVL may provide you as part of support services are governed by this Agreement, unless separate terms are incorporated into such support services provided that such provisions of this Agreement not specifically amended thereby shall remain in full force and effect according to their terms. This Agreement does not obligate IVL to provide any support services or to support any software provided as part of those services.
15. CONSENT TO DATA. You agree that IVL and its affiliates may collect and use technical information gathered as part of the support services provided to you, if any, related to the Services. IVL may use this information to improve our products, to provide customized services or technologies to you, and to conduct market research provided that IVL will not disclose this information in a form that personally identifies you.
16. EXPORT RESTRICTIONS. You acknowledge that the Services and the use of any underlying software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Services, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. You agree that neither the Services, including the underlying software, will be exported, directly, or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws. Further, by using these Services, including the underlying software, you agree that (1) you are not a citizen, national, or resident of, and are not under control of, the government of Cuba, Iran, Sudan, Libya, North Korea, Syria, nor any country to which the United States has prohibited export, (2) you will not download or otherwise export or re-export the Services, including the underlying software, directly or indirectly, to the above mentioned countries nor to citizens, nationals or residents of those countries, (3) you are not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotics Traffickers, nor are you listed on the United States Department of Commerce Table of Denial Orders, (4) you will not download or otherwise export or re-export the underlying software, directly or indirectly, to persons on the above mentioned lists and (5) you will not use the Services, including the underlying software, for, and will not allow the Services, including the underlying software, to be used for, any purposes prohibited by United States law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction, the violation of any telecommunication laws, or the violation of any copyright or intellectual property laws.
17. USE AND RESTRICTIONS. The Services may be accessed and used only by individuals who can form legally binding contracts under applicable laws, who are 18 years of age or older, and who are not barred from using the Services under applicable laws. You acknowledge and agree that IVL, in its sole discretion and without notice or any further obligation to you, may temporarily suspend or permanently discontinue and refuse any and all current and future, access to or use of the Services and/or the purchase of any Services. The Services may be viewed by anyone 13 and older, but only those 18 and older may purchase Services.
20. AVAILABILITY. While it is IVL’s objective to make the Services accessible 24 hours per day, 7 days per week, the Services may be unavailable at any time for any reason including, without limitation, routine maintenance.
21. CHANGE IN THE SERVICES, ITS CONTENTS, AND ITS FEATURES. IVL reserves the right, at any time in our sole discretion, to modify, suspend, or discontinue the Services or any service, content, or feature offered through the Services, with or without notice; change the equipment and/or programs necessary to access the Services, charge fees in connection with the use of the Services; modify and/or waive any fees charged in connection with the Services; and/or offer opportunities, such as discounts on some Services, to some or all users of the Services. IVL may discontinue disseminating any portion of information or category of information, including the products offered through the Site. You agree that IVL shall not be liable to you or to any third party should any of the foregoing occur with respect to the Services. Further, IVL may request additional information at any time by you to update or enhance the Services and/or to order Services.
23. COPYRIGHT AND TRADEMARKS. The Services is owned and controlled by IVL and unless otherwise agreed in writing, all materials on our Services, including text, menus, graphics, information, content, images, illustrations, designs, icons, photographs, video clips, sounds, music, artwork, computer code, and other materials, and the copyrights, trademarks, trade dress, and/or other intellectual property rights in such materials (collectively, the “Content”), are owned, controlled, and/or licensed by IVL. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING OF THESE SERVICES OR ANY OF THE PAGES IN THE SERVICES WITHOUT THE EXPRESS WRITTEN PERMISSION OF IVL IS STRICTLY PROHIBITED. You may not download or copy any Content without permission from IVL unless such permission is explicitly granted on the Services. Any permitted downloads or permitted copies of the Content are for your personal use only. No right, title, or interest in any downloaded or copied Content is transferred to you as a result of any such downloading or copying. You may not reproduce (except as noted above or on the Services), publish, transmit, distribute, display, perform, alter, modify, create derivative works from, sell, exploit, or otherwise use any of the Content or the Services for any public or commercial purpose. IVL also owns a copyright in the selection, coordination, arrangement, and enhancement of such content, as well as in the content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the Content, in whole or in part. You may not upload or republish the Services’ Content on any Internet, Intranet, or Extranet Services or incorporate the information in any other database or compilation. IVL does not permit use of any data mining, robots, scraping, or similar data-gathering or extraction methods. Certain trademarks, trade names, service marks, and logos used or displayed on these Services are registered and unregistered trademarks, trade names, and service marks of IVL and its affiliates. Other trademarks, trade names, and service marks used or displayed on these Services are the registered and unregistered trademarks, trade names, and service marks of third parties. Nothing contained on the Services grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to you to use any such trademarks, trade names, service marks, or logos displayed on such Services. Trademarks that are located on the Services shall not be deemed to be in the public domain but rather the exclusive property of IVL, unless such trademark is under license from the trademark owner thereof in which case such license is for the exclusive benefit and use of IVL, unless otherwise stated.
24. COPYRIGHT AND TRADEMARK COMPLAINTS. IVL respects the intellectual property rights of others. IVL is committed to complying with copyright and related laws, including the Digital Millennium Copyright Act (DMCA), and IVL requires all users of the Services to comply with these laws. Accordingly, you may not upload, post, store any material or content on, disseminate any material or content over, or otherwise transmit to or place on the Services in any manner material that constitutes an infringement of third party intellectual property rights, including but not limited to, rights granted by copyright law. You may not post, modify, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. When IVL receives proper Notification of Alleged Copyright Infringement, IVL promptly removes or disables access to the allegedly infringing material upon conclusion the material infringes upon another rights and terminates the accounts of repeat infringers as described herein in accordance with the Digital Millennium Copyright Act. If you believe that any material on the Services infringes upon any copyright that you own or control, please contact info at voiceelements.com to report infringement of your copyright. IVL may, at its sole discretion, terminate users who are deemed by IVL to have committed copyright infringement, whether or not there is any repeat infringement.
26. LIMITED WARRANTY FOR SERVICES ACQUIRED IN THE UNITED STATES AND CANADA. IVL warrants that the Services will perform substantially in accordance with the descriptions on the Site provided that no modifications have been made by you to the Services. Some states and/or jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the Services, including without limitation any additional services that you subscribe to are not covered by any warranty or condition, express, implied, or statutory. IVL does not provide any warranty for Services that has been modified.
27. LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by IVL, YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES OR OTHER DAMAGES, if the Services does not meet IVL’s Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you if state law specifically grants you other rights.
28. YOUR EXCLUSIVE REMEDY. IVL’s entire liability and your exclusive remedy for any breach of this Limited Warranty or for any other breach of this Agreement or for any other liability relating to the Services shall be, at IVL’s option from time to time exercised subject to applicable law, (a) return of the amount paid (if any) for the Services while such Services did not meet the Limited Warranty, or (b) replacement of the Services, that does not meet this Limited Warranty provided that such Services has not been modified by you. You will receive the remedy elected by IVL without charge, except that you are responsible for any expenses you may incur. This Limited Warranty is void if failure of the Services has resulted from accident, abuse, misapplication, abnormal use, modification, change in files, and/or a virus. Outside the United States or Canada, neither these remedies nor any product support services offered by IVL are available.
29. DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, IVL and its suppliers provide the Services and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Services, and the provision of or failure to provide support or other services, information, software, and related content through the Services or otherwise arising out of the use of the Services. THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION, OR NON-INFRINGEMENT WITH REGARD TO THE SERVICES.
30. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL IVL OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SERVICES, AND RELATED CONTENT THROUGH THE SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF IVL OR ANY SUPPLIER, AND EVEN IF IVL OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
31. LIMITATION OF LIABILITY AND REMEDIES. NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF IVL AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY HEREUNDER (EXCEPT FOR ANY REMEDY OF REPAIR OR REPLACEMENT ELECTED BY IVL WITH RESPECT TO ANY BREACH OF THE LIMITED WARRANTY) SHALL BE LIMITED TO THE GREATER OF THE ACTUAL DAMAGES YOU INCUR IN REASONABLE RELIANCE ON THE SERVICES UP TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES OR $500.00USD. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS (INCLUDING SECTIONS 29, 30, 31, 32, 33 AND 33) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
32. APPLICABLE LAW. By using the Services, you agree that the laws of the State of Colorado, without regard to principles of conflict of laws, will govern any disputes between you and IVL. You agree not to commence or prosecute any action in connection therewith other than in the state and federal courts located in Denver, Colorado, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of Colorado.
33. ELECTRONIC COMMUNICATIONS. If you provide an email address to IVL, you consent to receive electronic communications from IVL, including but not limited to, information about the Services, updates to such Services, and email newsletters.
34. PHONE OR SMS COMMUNICATIONS. If you provide a phone number to IVL, you consent to receive phone calls or texts from IVL regarding the Services and waive any rights under applicable Do Not Call Registry federal and state laws.
35. INDEMNIFICATION. You agree to indemnify IVL and its officers, directors, employees, agents, distributors, and affiliates from and against any and all third party claims, demands, liabilities, costs, or expenses, including reasonable attorney’s fees, that arise from your use or misuse of these Services.
36. ENTIRE AGREEMENT; SEVERABILITY. This Agreement (including any addendum or amendment to this Agreement which is included with the Services) is the entire agreement between you and IVL relating to the Services and any support services. This Agreement supersedes all prior or contemporaneous oral or written communications, proposals, and representations with respect to the Services or any other subject matter covered by this Agreement. To the extent the terms of any IVL policies or programs for support services conflict with the terms of this Agreement, the terms of this Agreement shall control unless the parties otherwise agree in writing. If any provision of this Agreement is held to be void, invalid, unenforceable, or illegal, the other provisions shall continue in full force and effect
37. WAIVER. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, covenant, or agreement contained herein or therein and in any documents delivered in connection herewith or therewith. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.