This Corporate Agreement “Agreement” is between you (“you” or “your” as an authorized user of the Service (as defined below), and FaxSIPit Services Inc. (“Company”), a Canadian corporation; as specified in the following paragraphs, and governs the terms and conditions of your use of the Service.
For purposes of this Corporate Agreement (Agreement), the “Service” includes any and all FaxSIPit services described in this Agreement which are provided by the Company to you either now or in the future. “Service” or “Services” are used throughout this Agreement to refer to the product or products or service or services purchased from the Company.
You are fully responsible for the contents of your transmissions through the Service. The Company simply acts as a passive conduit for you to send or receive information of your own choosing. By using the Services, you further confirm your acceptance of and agree to be bound by this Agreement.
Your Services are provided to you and you are legally a customer of FaxSIPit. You will receive your billing statements from FaxSIPit.
This Agreement includes the terms of this Customer Agreement together with any operating rules, policies, price schedules or other supplemental documents expressly incorporated herein by reference and published from time to time by the Company. This Agreement constitutes the entire agreement between the Company and you regarding the Services, and supersedes all prior oral and written communications and agreements between you and the Company regarding the subject matter of this Agreement. However, your use of any software provided by the Company related to the Services shall be pursuant to a separate agreement governing use by you of such software.
For Canadian Customers: Please note that when you place an order to purchase on the FaxSIPit Registration (as defined herein) website, it constitutes an offer to purchase and remains subject to the Company’s acceptance. Goods or services listed or described on the FaxSIPit Registration website constitute an invitation to make an offer to purchase.
1. FaxSIPit Services Description.
1.1 Your End Users
You agree that you are responsible for all individual End Users, including administrators as defined below, who access AND/OR USE THE SERVICE THROUGH YOUR CORPORATE ACCOUNT (“End Users”). Accordingly, the terms, conditions, restrictions and obligations of this Agreement applicable to you (excluding your payment obligations to the Company) shall be construed also to apply to all your End Users, and you shall be liable for any breach hereof by any of your End Users. You understand and agree that you will have the ability to access all your End Users’ account activity, including you altering the configuration of your End Users’ accounts. You will provide to your End Users all due notices and information regarding your ability to access, view and control your End Users’ use of the Service; and you will provide your End Users with sufficient written instruction to ensure your End Users use the Service in compliance with the terms, conditions, obligations and restrictions set forth herein.
1.2 Your Administrator
Once Member’s Portal Corporate account is activated, the Company will automatically send by email, a unique Corp ID and password to the individual designated by Member in the registration process as Member’s administrative contact (the “Administrator”). The Administrator can access Web-based administrative tool using the Corp ID and password at the Web site designated by the Company (the “Administrative tool”). Through the Administrative Tool, the Administrator can assign reassign or un-assign Service telephone numbers to Member’s Users. Member acknowledges and agrees that all Service telephone numbers assigned, reassigned or unassigned through the Administrative Tool shall be deemed to be active accounts for billing and all other purposes under this Agreement In order to remove a Service telephone number from Member’s account, and thereby avoid charges for that account, Member must send an email to firstname.lastname@example.org requesting the removal (deactivation) of said Service telephone number. If you begin the sign up process for the Portal Corporate service process but fail to complete the process, the Company may contact you in an effort to help you sign up for the services or other Company services that may be of interest. You hereby authorize the Company to make such contact, even if you ultimately determine not to sign up for the Service.
1.3 The Company offers the Services at its website www.faxsipit.com
The Services include, but are not limited to: (i) a personal geographical or toll-free telephone number (a “FaxSIPit Number”) that provides for the delivery and receipt of faxes to an email address or fax machine connected to a (ii) FaxSIPit SecureFax-ATA device; (iii) Various non email related services for the delivery or receipt and storage of faxes.
2. Service Usage Terms.
Our services are provided on a 12 month term and automatically renewed for the same period. The specific Service details will be defined on your quote to sign.
3. Fax Storage.
While your account is active, fax messages received via your FaxSIPit Number will be stored by FaxSIPit for up to 30 days if the account is changed to inactive status. Regardless of your level of service, you acknowledge that the Company may cease offering this feature or change its practices and/or limitations concerning this feature at any time, including, without limitation, changing the maximum number of days that fax messages will be retained, the maximum number of messages stored at any one time and the maximum storage space allotted on the Company’s servers on your behalf. You further agree that the Company has no responsibility or liability whatsoever for any failure or malfunction of this feature, whether or not such failure prevents you from utilizing the feature, including but not limited to the storage or deletion of any faxes.
It is recognized that technical, financial, commercial, legal or other information (collectively the “Confidential Information”) may be disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) whether orally or in any other media form between Parties during the course of this Agreement. The Receiving Party shall not disclose the Confidential Information to any third party without the prior express written consent of the Disclosing Party, unless compelled by law or order of a court or regulatory body having jurisdiction. Any Confidential Information disclosed shall remain the property of the Disclosing Party. Notwithstanding the foregoing, where FaxSIPit is the Receiving Party, it may use Confidential Information received from you for the purposes of providing the FaxSIPit Services to you and may use or disclose such Information to relevant 3rd parties, who are under our confidentiality agreement, with respect to business operations or in any manner otherwise permitted or authorized by an applicable municipal, provincial/state or federal law.
5. Your Responsibilities.
You are fully responsible for the contents of your transmissions through the Service. The Company simply acts as a passive conduit for you to send and/or receive information of your own choosing. However, the Company reserves the right to take any action with respect to the Service that the Company deems necessary or appropriate in its sole discretion, if the Company believes you or your information may create liability for the Company, compromise or disrupt the Service for you or other customers, or cause the Company to lose (in whole or in part) the services of the Company’s ISPs or other suppliers. Your use of the Service is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities or false advertising). You agree: (1) to comply with all laws regarding the transmission of technical data exported from any country through the Service; (2) not to use the Service for any illegal purpose; (3) not to interfere with or disrupt networks connected to the Service; (4) to comply with all regulations, policies and procedures of networks connected to the Service; (5) not to use the Service to infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (6) not to use the Service or related software to knowingly transmit misleading or inaccurate caller identification information for any reason, including doing so with the intent to defraud, cause harm, or wrongfully obtain anything of value; and (7) not to transmit or upload through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. You further agree not to transmit or upload any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. You further agree not to use the Services to store (1) any protected health information. (as such term is used in the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191), or (2) any other type of information that imposes independent obligations upon the Company. The Service makes use of the Internet for you to send and receive information of your own choosing. As a result, your conduct is subject to Internet regulations, policies and procedures. You agree not to use or reference the Service for chain letters, junk fax or junk mail, spamming or any activity making use of distribution lists to any person who has not given specific permission to be included in such a process or on such list. You further agree not to attempt to gain unauthorized access to other computer systems. You shall not interfere with another customer’s use and enjoyment of the Service.
You must (a) obtain and pay for all equipment and third-party services (e.g., Internet access and email service) required for you to access and use the Service; (b) maintain the security of your PIN/password and other confidential information relating to your Service account; (c) immediately notify the Company of any unauthorized use of your account or any other breach of security known to you; and (d) be responsible for all charges resulting from use of the Service, including unauthorized use prior to your notifying the Company of such use and taking steps to prevent its further occurrence.
6. Unsolicited Fax Advertisement/Spam Drop-Box Policy.
Notwithstanding the above, the Company’s distribution of advertising to its customers is not considered unsolicited fax advertising based upon your acceptance of this Agreement.
At the Company’s option and without further notice, the Company may use technologies and procedures, such as filters, that may terminate the transmission of such unsolicited fax advertisements without delivering them.
If you believe that you are in receipt of an unsolicited fax advertisement, please take the following two steps:
Step One: If the fax contains a telephone number, fax number or other contact information to “unsubscribe” from receipt of additional junk faxes, please do so; and
Step Two: Please go to the CTRC or FCC web page and complete the complaint form by inserting the required information and attaching a copy of the offending fax:
You hereby acknowledge and agree that the Company, as owner of all FaxSIPit Numbers, has any and all rights (but no obligation) to assert any and all legal claims available against any third party as a result of your receipt of any unsolicited fax advertisements, including but not limited to claims under the TCPA and similar laws of any other country, state or province, and, to the extent you do have any rights to bring any such claims, you hereby assign any and all such rights to the Company as consideration for its provision of the Service.
Because FaxSIPit Numbers may be reassigned to other customers in the event your account is canceled, and to ensure the best possible service for all customers, you are not permitted to “opt in” to receive on your FaxSIPit Number facsimile advertisements of the commercial availability or quality of any property, goods or services from persons with whom you have not established a business relationship.
b. Spam Drop-Box Policy. The Company does not permit its customers to use FaxSIPit Numbers as “drop-boxes” for responses to email or fax spam offers. If you believe you are in receipt of email or fax spam that uses a FaxSIPit Number as a “drop-box” for responses, please take the following two steps:
Step One: If the email or fax contains an email address, telephone number, fax number or other contact information to “unsubscribe” from receipt of additional messages, please do so.
Step Two: If you are still receiving spam faxes after you have unsubscribed please send us an email to email@example.com
The Company appreciates your assistance in enforcing and complying with these policies and looks forward to continuing to make your experience a positive one.
This Agreement shall commence on the date it is entered into by you and shall continue in full force and effect for a period of 12 months, and may only vary by a initialized addendum authorized by both parties as part of the agreement and thereafter this Agreement shall automatically renew for the same 12 month period or such a period as agreed upon in the addendum. Cancellation for this Agreement may only be done by written notice 30 days prior to end of agreement term.. FaxSIPit may terminate this Agreement without cause upon prior written notice. In addition, this Agreement may be terminated at any time by either party upon written notice if the other party (a) ceases to function as a going concern or to conduct operations in the normal course of business, or (b) has a petition filed by or against it under any state or federal bankruptcy or insolvency laws (or their foreign equivalents) which petition has not been dismissed or set aside within sixty (60) days of filing. The Company shall not be liable to you or any third party for termination of this Agreement or the Service. Upon termination of the Service or this Agreement, your right to use the Service immediately ceases. You shall have no right and the Company will have no obligation thereafter to forward any unread or unsent messages to you or any third party. You shall have no right and the Company will have no obligation after termination to refund any pre-paid amounts to you, except as otherwise provided herein. The Company reserves the right to refuse the Service to anyone who has cancelled any number of previous Service accounts.
8. Your Representations.
You represent and warrant that you are at least 18 years of age or, as applicable, the age of majority in the country, state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. You agree to be financially responsible for your use of the Service (as well as for use of your account by others, including, without limitation, minors living with you) and to comply with your responsibilities and obligations as stated in this Agreement.
9. Modifications to Customer Agreement.
The Company may automatically amend this Agreement at any time by (a) posting a revised Customer Agreement on the FaxSIPit Website, or (b) sending information regarding the amendment to the email address you provide to the Company. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE FaxSIPit WEBSITE TO OBTAIN TIMELY NOTICE OF SUCH AMENDMENTS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUED USE OF THE SERVICE AFTER SUCH AMENDMENTS HAVE BEEN POSTED OR INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO YOU. Otherwise, this Agreement may not be amended except in writing signed by both you and the Company.
10. Modifications to the Service.
The Company reserves the right to modify or discontinue the Service with or without notice to you. The Company shall not be liable to you or any third party should the Company exercise its right to modify or discontinue the Service.
11. Disclaimer of Warranties and Limitation of Liability.
ALL COMPANY SOFTWARE AND THE SERVICE IS/ARE PROVIDED “AS IS,” AND NEITHER THE COMPANY NOR ANY OF ITS AFFILIATES, LICENSORS OR SERVICE PROVIDERS MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO YOU REGARDING THE USABILITY, CONDITION OR OPERATION THEREOF. THE COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF COMPANY SOFTWARE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE COMPANY SOFTWARE OR THE SERVICE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. THE COMPANY AND EACH OF ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY.
b. YOUR USE OF ALL COMPANY SOFTWARE AND THE SERVICE IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING, UPLOADING, AND/OR USE OF FILES OR OTHER MATERIAL (INCLUDING COMPANY SOFTWARE) OBTAINED EITHER DIRECTLY OR INDIRECTLY FROM THE COMPANY OR ITS AFFILIATES, OR LOSS RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, DATA OR FILES UPLOADED, HOSTED OR TRANSMITTED VIA THE LARGE FILE SEND FEATURE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. IN ADDITION, YOU AGREE THAT NEITHER THE COMPANY NOR ANY OF ITS AFFILIATES, LICENSORS OR SERVICE PROVIDERS WILL BE LIABLE FOR DAMAGES, WHETHER DIRECT OR INDIRECT (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES), ARISING OUT OF YOUR USE OF OR INABILITY TO USE COMPANY SOFTWARE OR THE SERVICE, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT THERETO, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF THE COMPANY OR ANY SUCH AFFILIATE, LICENSOR OR SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE ENTIRE LIABILITY OF THE COMPANY AND ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF COMPANY SOFTWARE AND THE SERVICE OR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE SOFTWARE OR THE SERVICE IN THE THREE (3) MONTHS PRECEDING THE DATE OF YOUR CLAIM OR (II) U.S. $3000.00. YOU HEREBY RELEASE THE COMPANY AND EACH OF ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED OR LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.
c. NEITHER THE COMPANY NOR ANY OF ITS AFFILIATES, LICENSORS OR SERVICE PROVIDERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY COMMUNICATIONS DIFFICULTIES OUTSIDE OF THE COMPANY’S OR ANY SUCH AFFILIATE.S, LICENSOR’S OR SERVICE PROVIDER’S CONTROL WHICH COULD LEAD TO THE INTERRUPTION OF DATA DELIVERY SERVICE TO YOUR EMAIL ADDRESS, PAGER, TELEPHONE OR ANY OTHER RECEIVING DEVICES OR THIRD-PARTY DATA STORAGE AND/OR DELIVERY SERVICES.
d. YOU WILL NOT RELY ON ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, MADE BY ANY PERSON OTHER THAN AN AUTHORIZED OFFICER OF THE COMPANY, IN EVALUATING THE SERVICES OR ANY OTHER SERVICES OF THE COMPANY OR ITS AFFILIATES.
a. Pricing Plans:
You agree to pay all charges for your use of the Service in accordance with the pricing plan you were offered and agreed to upon when registering for the Service. All sales are final. The Company reserves the right to charge value-added taxes (“VAT”), sales or other taxes on the Service as it deems appropriate and the Company reserves the right to change prices or institute new charges for access to or use of the Service, including a Discounted Service.
The Company may amend your pricing plan, including any charges thereto, at any time either by (a) posting pricing plan changes on the FaxSIPit portal, or (b) sending information regarding the pricing plan changes to the email address you provided to the Company. You are responsible for regularly reviewing such pricing information. Continued use of the Service, or non-termination of your Company account, after changes are either posted or emailed to you constitutes your acceptance of the prices as modified.
If you have questions regarding any charges that have been applied to your account, you must contact the Company’s Customer Service Department within thirty (30) days of the charge date. Failure to do so will waive your ability to dispute such charges. Failure to use your account will not be deemed a basis for refusing to pay any charges.
b. Payment for the Service:
Your activation fee, hardware costs, license fees and monthly or annual service fees, as applicable, are payable in advance and are COMPLETELY NON-REFUNDABLE. You agree that for monthly subscriptions, the Company may submit charges for your monthly service fee each month, and for annual subscriptions, the Company may submit charges for your annual service fee annually, in each case, without further authorization from or notice to you, until you provide prior notice (in accordance with the Company’s verification procedures, as may be established by the Company from time to time in its sole discretion) that you have terminated this authorization or wish to change your designated card(s). Such notice will not affect charges submitted before the Company reasonably could act on your notice. You agree that the Company may (at its option) accumulate Service fees incurred during your monthly billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and that the Company may delay obtaining authorization from your card issuer until submission of the accumulated charge(s). This means that accumulated Service fee charges may appear on the statement you receive from your card issuer.
Your activation fee, usage charges, and monthly or annual Service fees, as applicable, must be made by the credit card(s) designated by you for the Company’s use and transactions. If the payment method for your Service account is by credit card and payment is not received by the Company from the card issuer or its agent or affiliate, you agree to pay all amounts due upon demand by the Company. Each time you use the Service, or allow or cause the Service to be used, you agree and reaffirm that the Company is authorized to charge your designated card(s). Your card issuer’s agreement governs your use of your designated card in connection with payment for the Service, and you must refer to such agreement (not this Agreement) with respect to your rights and liabilities as a cardholder.
c. Pre-Paid Discounts: If you subscribed to the Service pursuant to a special offer granting a pre-paid discount for a fixed number of months, your pre-paid fees are payable in advance and are COMPLETELY NON-REFUNDABLE. In addition, your initial monthly service fee for the month immediately following your pre-paid period will be PRE-AUTHORIZED AGAINST YOUR CREDIT CARD LIMIT and will be immediately charged to your credit or debit card, without further authorization from you, upon the expiration of such pre-paid period, unless you cancelled your membership.
d. Notification of Changed Billing Information. If your credit card is declined your account may become inactive, in such case you must update your credit card information with the Company by giving Notice as described in section 19 of this Agreement. If you will not do that within sixty (60) days your account and all your faxes may be removed without recovery option.
e. Usage and/or Account Credit Balances. The Company may, from time to time, award you a credit applied to your Service usage and/ or account balance, which is a non-refundable credit. Service usage and/ or account credit balances have no cash value. Usage and/or Account credit balances will expire on the earlier of (i) termination of your account or (ii) 30 days after they are issued, and are subject to any additional terms associated with the credit offer.
f. Late Fees. If payment is not received by FaxSIPit on or before the Due Date, interest charges of 1% per month or 12% on an annual basis will be applied to all charges not paid as of the Due Date. The late payment charge rate is subject to change from time to time by FaxSIPit. A service charge of $20.00 will be applied to all insufficient fund payments. Or the maximum amount permitted under and subject to applicable law, may be charged to your account each time full payment of your outstanding balance is not received by the payment due date. You agree that the Company may submit charges for late fees without further authorization from or notice to you, until you provide prior notice (in accordance with the Company’s verification procedures, as may be established by the Company from time to time in its sole discretion) that you have terminated or canceled your Service, or wish to change your designated card(s). Such notice will not affect charges submitted before the Company reasonably could act on your notice.
13. Termination for Non-Payment.
The Company reserves the right to suspend or terminate your account and associated Service without notice upon rejection of any credit or debit card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to the Company when the Company believes you are liable for the charge. Such rights are in addition to and not in lieu of any other legal rights or remedies available to the Company.
All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising any portion of the Service are wholly owned by the Company, its affiliates and/or its licensors and service providers except where expressly stated otherwise. You may not use the Company’s or its affiliates, trademarks, trade names, patents, copyrights or other intellectual property rights without the Company’s prior written permission.
15. Rules Regarding FaxSIPit Numbers.
YOU UNDERSTAND AND AGREE THAT YOU WILL HAVE USE OF THE FaxSIPit NUMBER(S) PROVIDED AS PART OF THE SERVICES ONLY UNTIL THE END OF THE TERM OF YOUR AGREEMENT OR UNTIL THE COMPANY NO LONGER PROVIDES YOU WITH SERVICES, UNLESS YOU DECIDE TO PORT THEM OUT. THE COMPANY IS GRANTING YOU THE REVOCABLE PERMISSION TO USE SUCH FaxSIPit NUMBER(S) IN ACCORDANCE WITH THIS AGREEMENT FOR THE LENGTH OF THE TERM OF THE AGREEMENT. YOU UNDERSTAND THAT THE COMPANY IS THE CUSTOMER OF RECORD OF ALL FaxSIPit NUMBER(S) PROVIDED AS PART OF THE SERVICES AND, THEREFORE, THE COMPANY HAS CERTAIN RIGHTS WITH RESPECT SUCH FaxSIPit NUMBER(S), INCLUDING WITHOUT LIMITATION CERTAIN RIGHTS RELATING TO PORTING OF SUCH FaxSIPit NUMBER(S) (“PORTING” IS CAUSING OR ATTEMPTING TO CAUSE NUMBER(S) TO BE TRANSFERRED, SWITCHED OR OTHERWISE MOVED TO ANY OTHER SERVICE PROVIDER, TELEPHONE CARRIER OR ANY OTHER PERSON OR ENTITY). AS THE CUSTOMER OF RECORD FOR ALL FaxSIPit NUMBER(S), THE COMPANY HAS THE DIRECT RELATIONSHIP WITH THE TELEPHONE COMPANY THAT PROVIDES THE UNDERLYING TELECOMMUNICATIONS THAT SUPPORT THE SERVICES YOU RECEIVE FROM THE COMPANY.
a. Reassignment of Telephone Numbers
YOU UNDERSTAND AND AGREE THAT FOLLOWING THE TERMINATION OF YOUR SERVICE FOR ANY REASON, THE FaxSIPit NUMBER(S) ASSIGNED TO YOU MAY BE IMMEDIATELY RE-ASSIGNED TO ANOTHER CUSTOMER, UNLESS YOU CHOOSE TO PORT THEM OUT. YOU AGREE THAT THE COMPANY WILL NOT BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF ANY SUCH RE-ASSIGNMENT AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT TO ANY SUCH RE-ASSIGNMENT, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. YOU FURTHER UNDERSTAND AND AGREE THAT THE COMPANY MAY FROM TIME TO TIME NEED TO CHANGE THE FaxSIPit Number ASSIGNED TO YOU (WHETHER DUE TO AN AREA CODE SPLIT OR ANY OTHER REASON WHETHER OUTSIDE OR WITHIN THE COMPANY’S CONTROL). YOU AGREE THAT THE COMPANY WILL NOT BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF ANY SUCH CHANGE IN THE FaxSIPit Number ASSIGNED TO YOU, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT TO ANY SUCH CHANGE, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
b. No Right to Charge Third Party Services to FaxSIPit Numbers
YOU AGREE THAT YOU ARE NOT AUTHORIZED TO CHARGE SERVICES PROVIDED TO YOU OR AT YOUR REQUEST TO THE FaxSIPit Number ASSIGNED TO YOU BY THE COMPANY AND THAT YOU WILL NOT REQUEST OR OTHERWISE CAUSE ANY THIRD-PARTY SERVICE PROVIDER TO CHARGE ANY SUCH SERVICES TO SUCH NUMBER. ANY SUCH CHARGES WILL GIVE THE COMPANY THE RIGHT TO IMMEDIATELY TERMINATE OR SUSPEND YOUR FaxSIPit ACCOUNT WITHOUT NOTICE.
You agree to indemnify the Company and each of its Affiliates, licensors and service providers from and against any and all liabilities, expenses (including attorneys’ fees) and damages arising out of claims based upon use of the Service, including but not limited to any violation of this Agreement by you or any other person using your account, the use of any tools provided by the Company in connection with the Service, any claim of libel, defamation, violation of rights of privacy or publicity, any loss of service by other customers, any infringement of intellectual property or other rights of any third parties, and any violation of any laws or regulations, including but not limited to any violation of any laws or regulations prohibiting transmission of unsolicited fax advertisements as set forth in this agreement.
17. No Resale Of The Service.
You are prohibited from selling, reselling, renting or leasing the use of the Service.
18. Participation In Promotions Of Advertisers.
You may correspond with or participate in promotions of advertisers showing their products via the Service. Any such correspondence or participation, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between you and the advertiser. The Company assumes no liability, obligation or responsibility for any part of any such correspondence or promotion.
19. Notices; Consent.
Notices given by FaxSIPit to you will be given by email, by a general posting on the FaxSIPit Portal. In any matter requiring the Company’s prior consent, such consent will be considered given only if made in writing by an authorized representative of the Company. Notices given by you to the Company must be given by email or by conventional mail (subject, however, to the Company’s verification procedures, as may be established by the Company from time to time in its sole discretion, and which may include the requirement that you contact the Company by phone so as to confirm that any such notice was in fact sent by you). Notices to the Company by conventional mail must be sent to FaxSIPit Services, Inc., 1150 Station St #225, Vancouver, BC, V6A 4C7, Canada
20. Force Majeure
Each Party shall be relieved from the performance of its obligations under the FaxSIPit Agreement if, and for so long as, it is unable to perform such obligations due to circumstances beyond its reasonable control, including, but not limited to, power surges or failures, acts of God, acts or omissions of any common carrier, labor disputes, regulatory restrictions, changes in law or regulation, or other acts of governmental authority. An event of force majeure shall not in any way be an acceptable excuse for a failure to pay or a delay by customer in paying any amount when due under the FaxSIPit Agreement and customer’s payment obligations under the FaxSIPit Agreement shall remain unaffected by any such event.
In no event will either FaxSIPit, any supplier of services to FaxSIPit or any landlord or licensor of FaxSIPit where FaxSIPit equipment or facilities are located, be liable in any manner or upon any basis to customer for any loss or damages, whether direct or indirect, incidental, special or consequential, resulting from an interruption in the Services provided by FaxSIPit to the Customer, caused by or attributable to, directly or indirectly, fire or other perils or factors beyond the reasonable control of FaxSIPit and any of its suppliers, landlords or licensees.
21. AGREEMENT TO ARBITRATE ALL DISPUTES
a. You and the Company agree that all disputes and claims between you and the Company shall be settled by binding arbitration instead of in courts of general jurisdiction. This agreement to arbitrate is intended to be broadly interpreted and includes, but is not limited to any dispute, claim or controversy arising out of or relating in any way to the Services, the Company software, the Company’s websites, the Agreement or any aspect of the relationship between you and the Company. You agree that, by agreeing to the Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Company are each waiving the right to a trial by jury or to participate in a class action. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against the Company on your behalf. This arbitration provision shall survive termination of this Agreement and the termination of your account.
b. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to the Company should be addressed to: FaxSIPit Services Inc. ATTN: Legal Department, 1150 Station St #225, Vancouver, BC V6A 4C7 Canada (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If the Company and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or the Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by the Company or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or the Company is entitled. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after the Company receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000.
c. For USA Customers the arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by the Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org. The arbitrator is bound by the terms of the Agreement.
For all other countries the arbitration will be governed by international commercial arbitration, subject to any agreement which is in force between Canada and any other state or states and which applies in British Columbia, as is stated under:
All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. Unless the Company and you agree otherwise, any arbitration hearings will take place by video or telephone conference. If your claim is for US$10,000 or less, the Company agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of the Agreement.
e. YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Company agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
22. No Waiver
The failure of either party at any time to require performance by either party of any provision, condition or covenant in the FaxSIPit Agreement shall in no way affect its right thereafter to enforce the provision, condition or covenant, nor shall the waiver by either party of any breach of any provision, condition or covenant in the FaxSIPit Agreement shall not be taken or held to be a waiver of any future breach of the same provision, condition or covenant.
The FaxSIPit Agreement shall be binding upon and inure to the benefit of the Parties hereto, their respective heirs, successors, assigns, and legal representative of any type whatsoever.
24. Language of Agreement
FaxSIPit and you confirm that they wish to have the FaxSIPit Agreement written in English only.
25. Unenforceable Provisions
The provisions of the FaxSIPit Agreement are severable. If a provision in the Agreement is found to be unenforceable, the Agreement will be deemed amended to the minimum extent necessary to make the Agreement fully enforceable so long as the Agreement as amended is consistent with the Parties’ original interest and expectations.
Except as provided for in the Agreement, the Agreement may be amended only with the written consent of both Parties.