Version 5.0: April 14, 2015
This is a legal agreement between you and Voxilate, Inc. ("Voxilate") stating the terms that govern your use of applications and services provided by Voxilate ("Services"), including, but not limited to the HeyTell Voice Messaging application ("HeyTell") and other software applications (collectively, "Applications") and the Voxilate Web site ("the Sites"). This agreement, together with all updates, additional terms, software licenses, and other rules and policies instituted by Voxilate collectively constitute the "Agreement" between you and Voxilate.
SCOPE OF LICENSE
Subject to the terms of this agreement, when you download any Voxilate application from any App Store or from any other authorized partner or from Voxilate directly or from Voxilate as part of beta or other pre-release program, Voxilate grants you a limited, non-transferable, personal, non-commercial, non-exclusive, non-sublicensable, non-assignable license to download and install the Voxilate Application on any device as authorized by your device manufacturer or carrier or other device that you own or control and as permitted in the usage Rules set forth in the relevant application store terms of service and/or carrier terms of service and/or other applicable terms of service.
This license does not allow you to use the Voxilate Application on any device authorized for use by carrier or device manufacturer, that you do not own or control. In cases where usage rules described herein are less restrictive than the contract you executed with your device manufacturer or carrier, the usage restrictions of the device manufacturer and/or carrier apply. You may not distribute or make the Voxilate Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Voxilate Application. You may not modify, decompile, reverse engineer, disassemble, create derivative works of, or attempt to derive the source code of the Voxilate Application, any updates, or any part thereof except to the extent permitted by law. Any attempt to do any of the aforementioned acts is a violation of the rights of Voxilate and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Voxilate that replace and/or supplement the original Voxilate Applications.
VOXILATE USER ACCOUNTS
Use of Voxilate Services requires a user account which is automatically created upon installation and first use of Voxilate Applications. Voxilate retains the right to remove the account or data stored within the account at any time and for any reason. Voxilate retains the right to access your account for support and maintenance purposes, and as instructed by you for account service inquiries. Voxilate Applications may store account data on the device upon which they are installed. You are responsible for backing up and securing data on your device; Voxilate is not responsible for loss of account information due to device loss, data loss, system malfunction, or application malfunction.
PRIVACY OF USER INFORMATION
SMS AND DATA CHARGES
Certain Voxilate Services and Applications, such as HeyTell may be available to users at no charge from Voxilate. However, your use of such Applications on your device may be subject to additional charges from your carrier or provider. For example, if you elect to receive SMS invites and alerts through HeyTell, you may be charged for such messages in accordance with your agreement or plan with your carrier or provider. In addition, your use of the Applications and Services may be subject to additional data charges under your agreement or plan with your carrier or provider.
YOU UNDERSTAND AND AGREE THAT ALTHOUGH SOME VOXILATE SERVICES, SUCH AS HEYTELL, MAY BE FREE, YOU MAY BE CHARGED FOR SMS INVITE MESSAGES TRANSMITTED THROUGH THE APP OR FOR BANDWIDTH USAGE IF YOU DO NOT HAVE AN UNLIMITED DATA PLAN.
By using the Voxilate Application and thereby consenting to this Agreement and the terms herein, you agree that at no time will you partake in, facilitate, or otherwise encourage any of the following actions:
- use of Voxilate Services by a person under age 13.
- use of Voxilate Services while operating a motor vehicle.
- use of Voxilate Services for emergency services, fleet management, dispatch, vehicle navigation or other critical operations where injury, death, or economic damage could result.
- use of Voxilate Services to facilitate or engage in criminal activity.
- use of Voxilate Services to transmit or share confidential or privileged information.
- fraudulent impersonation of another user or individual.
- abusing, harasssing, or stalking other users, verbal or otherwise.
- repeated unsolicited communication with other users, including but not limited to the use of Voxilate Services to create or transmit unauthorized commercial communications (spam).
- use of Voxilate Services to record individuals without their express consent.
- use of Voxilate Services for any illegal purpose, or in violation of any local, state, national, or international law
- use of Voxilate Services to distribute copyrighted content or to infringe upon the copyright or intellectual property of any third party.
- attempts to reverse engineer the Voxilate Application or its communication protocols without the express, written permission of Voxilate, Inc.
Undertaking any of the aforementioned actions may result in termination of your account. Voxilate reserves the right to remove any account for any reason at any time, with or without notification.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF VOXILATE SERVICES IS AT YOUR OWN RISK. YOU FURTHER AGREE THAT VOXILATE IS NOT RESPONSIBLE FOR ANY LOSS OF LIFE, PERSONAL INJURY, OR ECONOMIC DAMAGE RESULTING FROM THE USAGE OF VOXILATE APPLICATIONS OR SERVICES.
VOXILATE APPLICATIONS AND SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. VOXILATE DOES NOT WARRANT THAT THE OPERATION OF VOXILATE APPLICATIONS OR WEBSITE WILL MEET YOUR REQUIREMENTS, THAT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN VOXILATE APPLICATIONS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY VOXILATE, ITS EMPLOYEES, AGENTS OR AUTHORIZED REPRESENTATIVES, OR OTHER THIRD PARTIES, SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTY, SO ONE OR ALL OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
YOU UNDERSTAND THAT WHEN YOU DOWNLOAD FROM, OR OTHERWISE OBTAIN CONTENT OR SERVICES THROUGH THE SITES, VOXILATE APPLICATIONS AND SERVICES, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU UNDERSTAND THAT VOXILATE APPLICATIONS MAY NOT DELIVER ALL MESSAGES IN A TIMELY MANNER OR MESSAGES MAY BE LOST. YOU UNDERSTAND THAT LOCATION DATA MAY NOT BE ACCURATE.
YOU UNDERSTAND AND AGREE THAT VOXILATE APPLICATIONS ARE NOT INTENDED TO BE USED WHILE OPERATING A MOTOR VEHICLE, TO COMMUNICATE CONFIDENTIAL OR PRIVILEGED INFORMATION, FOR TIME-CRITICAL OR EMERGENCY SERVICES, OR FOR ANY OPERATION WHERE INJURY, DEATH OR ECONOMIC DAMAGE COULD OCCUR OR RESULT FROM SUCH OPERATION.
VOXILATE EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO OR REFERENCED BY THE SITE, VOXILATE SERVICES AND VOXILATE APPLICATIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL VOXILATE OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DISTRIBUTORS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE OR VIA VOXILATE APPLICATIONS OR VOXILATE SERVICES, INCLUDING BUT NOT LIMITED TO PHONE AND EMAIL, BE LIABLE TO ANY USER OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SITES, APPLICATIONS OR SERVICES, OR ANY INFORMATION CONTAINED THEREIN, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF VOXILATE HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. TO THE EXTENT APPLICABLE LAW IS INCONSISTENT WITH A PRECLUSION OF SUCH CLAIMS YOU AGREE THAT THE MAXIMUM VALUE OR ALL SUCH CLAIMS SHALL NOT EXCEED THE AMOUNTS YOU PAY TO VOXILATE OR $50, WHICHEVER IS GREATER.
You hereby acknowledge that the preceding paragraph shall apply to all content, products and services available through the Sites, Applications or Services. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states liability is limited to the fullest extent permitted by law.
This Agreement does not transfer from Voxilate to you any Voxilate or third-party intellectual property. Voxilate, HeyTell, Voxilate.com, HeyTell.com, VoxiTweet, Voxilate Translator, the Voxilate logo(s), the HeyTell logo(s), Voxilate Translator application designs, VoxiTweet application designs, and all other trademarks, service marks, graphics and logos used in connection with Voxilate Applications, Voxilate Services or the Sites are trademarks of Voxilate or Voxilate's licensors. Other trademarks, service marks, graphics and logos used in connection with the Sites, Voxilate Applications or Voxilate Services may be the trademarks of other third parties. Your use of the Applications or Services grants you no right or license to reproduce or otherwise use any Voxilate or third-party trademarks. Any and all Intellectual Property Rights (IP Rights) in Voxilate Applications, the Sites, Voxilate Promotional Materials and other Voxilate Services are and shall remain the exclusive property of Voxilate and/or licensed owners of the marks. Nothing in this Agreement is intended to transfer or vest any such IP Rights to you. You are only entitled to the limited use of the IP Rights granted to you in this Agreement.
You agree that you will not take any action to jeopardize, limit, or interfere with Voxilate's IP Rights in any way. Any unauthorized use of Voxilate's IP Rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including but not limited to copyright laws and trademark laws. All title and IP Rights in and to any third party content that is not contained in the Voxilate Application, but may be integrated with or accessed through the Voxilate Application, is the property of its respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
Voxilate respects the intellectual property rights of others and will respond to notices of alleged copyright infringement if they comply with applicable law and provide enough information to conduct an investigation. To provide a Digital Millennium Copyright Act ("DMCA") takedown notice to us, please include the following:
- Identification of the infringed work
- Identification of the alleged infringing material (including hyperlink to the material so that we may locate it for potential removal)
- Your name, address, telephone number, and email address
- Physical or electronic signature of the copyright owner or person authorized to act on behalf of the copyright owner
- A statement by you that you have a good faith belief that use of the material is not authorized by the copyright owner, its agent, or the law and that, under penalty of perjury, you are authorized to act on behalf of the copyright owner
Forward all such requests to:
Attn: Copyright Agent
427 N. Tatnall #87905
Wilmington, DE 19801
CHANGES TO THIS AGREEMENT
Voxilate reserves the right, in its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to Voxilate Services following the posting of any changes to this Agreement constitutes acceptance of those changes. Voxilate may also, in the future, offer new services and/or features. Such new features and/or services shall be subject to the terms and conditions of this Agreement.
EXPORTING THE APPLICATION
You may not use or otherwise export or re-export the Voxilate Applications except as authorized by United States law. In particular, but without limitation, Voxilate Applications may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using Voxilate Applications, you represent and warrant that you are not located in any such country or on any such list.
USE OF THE VOXILATE APPLICATIONS AND SERVICES
You also agree that you will not use Voxilate Applications or Services for any purposes prohibited by United States law or the laws of the State in which you reside. You understand and agree that YOU are solely responsible for being aware of and abiding by the laws of your jurisdiction and following them accordingly. You also agree that you will not use these Applications or Services for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons.
If you are a resident of a country other than the United States, you expressly agree with the foregoing and also agree that you will not use Voxilate Applications or Services for any purposes prohibited by any of the following: United States law; the country in which you are a resident; the country in which you are domiciled; or any applicable local jurisdictional laws.
You agree to indemnify and hold harmless Voxilate and its contractors, licensors, directors, officers, employees and agents from and against any and all claims and expenses, including attorneys' fees, arising out of your use of the Applications, Services or Sites, or your violation of this Agreement.
APPLICABLE LAW AND VENUE
Except to the extent applicable law, if any, provides otherwise, this Agreement and any access to or use of the Voxilate Sites, Applications or Services will be governed by the laws of the state of Delaware, U.S.A., without reference to its choice of law rules.
Any disputes that may arise concerning the formation, interpretation or performance of this Agreement, which are not amicably resolved or resolved by arbitration, shall be referred to the U.S. District Court for the District of Delaware (District Court) located in Wilmington Delaware, except in those cases where such contractual attribution of jurisdiction is not enforceable on the user as a consumer. If the District Court may not consider the dispute, all disputes shall be brought before the Delaware Superior Court, or the Delaware Court of Common Pleas each located in Wilmington Delaware.
Purpose. If you have a Dispute (as defined below) with Voxilate that cannot be resolved through an informal dispute resolution with Voxilate, you or Voxilate may elect to arbitrate that Dispute in accordance with the terms of this Arbitration Provision rather than litigate the Dispute in court. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury.
Definitions. The term Dispute means any dispute, claim, or controversy between you and Voxilate regarding any aspect of your relationship with Voxilate, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision (with the exception of the enforceability of the Class Action Waiver clause). Dispute is to be given the broadest possible meaning that will be enforced. As used in this Arbitration Provision, Voxilate means Voxilate and its parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents.
Right to Opt Out. IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY VOXILATE IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU FIRST RECEIVE THIS AGREEMENT BY MAILING TO Voxilate Arbitration Opt-Out, 427 N Tatnall #87905, Wilmington, DE 19801. YOUR WRITTEN NOTIFICATION TO VOXILATE MUST INCLUDE YOUR NAME, ADDRESS AND VOXILATE ACCOUNT NUMBER OR USER NAME, AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH VOXILATE THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH VOXILATE OR THE DELIVERY OF SERVICES TO YOU BY VOXILATE. IF YOU HAVE PREVIOUSLY NOTIFIED VOXILATE OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or Voxilate elect to resolve your Dispute through arbitration pursuant to this Arbitration Provision, the party initiating the arbitration proceeding may initiate the arbitration proceeding with American Arbitration Association (AAA), 335 Madison Ave., Floor 10, New York, NY 10017-4605, 1-800-778-7879, www.adr.org under the Commercial Arbitration Rules of the AAA.
Arbitration Procedures. Because the Service(s) provided to you by Voxilate concerns interstate commerce, the Federal Arbitration Act (FAA), not state arbitration law, shall govern the arbitrability of all Disputes. However, applicable federal law or the law of the state where you receive the service from Voxilate may apply to and govern the substance of any Disputes. Any state statutes pertaining to arbitration shall not be applicable under this Arbitration Provision.
If there is a conflict between this Arbitration Provision and the rules of the arbitration organization chosen, this Arbitration Provision shall govern. If the arbitration organization that you select will not enforce this Arbitration Provision as written, it cannot serve as the arbitration organization to resolve your dispute with Voxilate. If this situation arises, the parties shall agree on a substitute arbitration organization. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will enforce this Arbitration Provision as written. If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern.
A single arbitrator will resolve the Dispute. You should know that participating in arbitration may result in limited discovery depending on the rules of the arbitration organization that is chosen to resolve the Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement. If an award granted by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party's notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA.
Class Action Waiver: ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED UNLESS THE STATUTE UNDER WHICH YOU ARE SUING PROVIDES OTHERWISE.
Location of Arbitration. The arbitration will take place in the Wilmington, Delaware, USA.
Payment of Arbitration Fees and Costs. VOXILATE WILL ADVANCE ALL ARBITRATION FILING FEES AND ARBITRATOR'S COSTS AND EXPENSES UPON YOUR WRITTEN REQUEST GIVEN PRIOR TO THE COMMENCEMENT OF THE ARBITRATION. YOU ARE RESPONSIBLE FOR ALL ADDITIONAL COSTS THAT YOU INCUR IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN VOXILATE'S FAVOR, YOU SHALL REIMBURSE VOXILATE FOR THE FEES AND COSTS ADVANCED TO YOU ONLY UP TO THE EXTENT AWARDABLE IN A JUDICIAL PROCEEDING. IF THE ARBITRATION PROCEEDING IS DETERMINED IN YOUR FAVOR, YOU WILL NOT BE REQUIRED TO REIMBURSE VOXILATE FOR ANY OF THE FEES AND COSTS ADVANCED BY VOXILATE. IF A PARTY ELECTS TO APPEAL AN AWARD TO A THREE-ARBITRATOR PANEL, THE PREVAILING PARTY IN THE APPEAL SHALL BE ENTITLED TO RECOVER ALL REASONABLE ATTORNEYS' FEES AND COSTS INCURRED IN THAT APPEAL. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARBITRATION PROVISION, VOXILATE WILL PAY ALL FEES AND COSTS THAT IT IS REQUIRED BY LAW TO PAY.
Severability. If any clause within this Arbitration Provision (other than the class action waiver clause) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision, and the remainder of this Arbitration Provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable, and the dispute will be decided by a court.
In the event this entire Arbitration Provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Arbitration Provision, you and Voxilate have each agreed to waive, to the fullest extent allowed by law, any trial by jury.
Exclusions from Arbitration. YOU AND VOXILATE AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY CLAIM FILED BY YOU OR BY VOXILATE THAT IS NOT AGGREGATED WITH THE CLAIM OF ANY OTHER SUBSCRIBER AND WHOSE AMOUNT IN CONTROVERSY IS PROPERLY WITHIN THE JURISDICTION OF A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS; (2) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY'S INTELLECTUAL PROPERTY RIGHTS; AND (3) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF SERVICE.
Continuation. This Arbitration Provision shall survive the termination of your membership with Voxilate.
Severability: If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Voxilate may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.