Telestax Terms of Service

Last Updated: June 26, 2020

1. Key Definitions

In these terms of service (the “Terms of Service”), capitalized terms will have the following meaning:

a) “Telestax“, “we”, “us” or “our” refers collectively to Telestax, Inc., a Delaware corporation with its main offices at 9600 Escarpment Blvd, Suite 745 PMB 243, Austin, TC 78749, Unites States.

b) “Client”, “you” “your” refers to you as an individual and to the organization that you represent.

c) “Telestax Platform” refers to the underlying software platform and its hosting services offered by us to you and to which third party telecommunication applications can interface through APIs.

d) “Telestax APIs” refers to an application programming interface provided by us to you to interface telecommunication applications to the Telestax Platform.

e) “Telestax Application” refers to any software application that Telestax or one of our partners other than you developed on top of the Telestax Platform and that we make available to you.

f) “Client Application” will refer to any software application or service that you developed and interfaced to the Telestax Platform through the Telestax API.

g) “Bundled Carrier Services” refer to telecommunication services such as SMS termination that Telestax sources from third party carriers and bundles with certain Telestax Applications.

h) “Documentation” refers to the instruction manuals, guides, code samples, on-line help files and technical documentation made available by us to you, and as may be updated from time to time.

i) “Telestax Website” refers to the site located at http://www.telestax.com

j) “Support” refers to the services we render to you to get you setup on the Telestax Platform, to train you to use the Telestax APIs and support you along the way.

k) “Cloud Service” refers collectively to the Telestax Platform, the Telexstax APIs, the Telestax Applications and the Telestax Website.

l) “Consulting Services” refers to consulting and software development work that you may hire us to perform for you.

m) “Services” refers collectively to the Cloud Service, the Documentation, the Bundled Carrier Services, Consulting Services and Support.

n) “Order Form” refers to any order form that you and us execute in the context of these Terms of Service and that defines the pricing of the Services and the duration of the engagement

o) “Agreement” will refer collectively to the Terms of Service and the Order Form(s)

 

2. Introduction

Please read these Terms of Service carefully before using the Services. The Agreement governs your access to and use of the Services. By using the Services, you are agreeing to the terms and conditions of the Agreement. If you are using the Services on behalf of an organization, you are agreeing to the Agreement on behalf of that organization and representing that you have the authority to bind that organization to the Agreement. You may use the Services only if you have the legal power and capacity to form a contract with Telestax.

You may use the Services only in accordance with the Agreement. If you have negotiated a separate written signed Agreement with Telestax, that Agreement will control.  Otherwise, these Terms of Service will govern the use of the Services.  You should familiarize yourself with this document.

The Services will continue to evolve as we add and refine features and functionality. We may modify the Services, including additional services that will be offered, metered and invoiced, in general or with respect to you, from time to time without prior notice. We may delete any content or data from the Services to meet our regulatory obligations or protect you, other Telestax Clients, and/or the Services.

You may use the Services, on a non-exclusive basis, solely to:  (a) use the Documentation and Telestax APIs as needed to develop your Client Applications; (b) use and make the  Services available to End Users; (c) use the Services solely in connection with and as necessary for your activities pursuant to these Terms of Service; and (d) allow your affiliates to use the Services pursuant to this Section 2.

 

3. Accounts and Sub-Accounts

To use the Services other than the publicly available section of the Telestax Website, we will need to create an account on the Telestax Platform specifically for you (“Client Account”). To do so, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You may also request to create sub-accounts within each account (“Sub-Accounts”). You must keep that information true, accurate, current and complete after you create each account.

The Services allow you to white label components of the Services and resell the Services to your own enterprise customers (“Your Customers”). Sub-Accounts will be created for each of Your Customers. White labeling the Platform will make the Platform appear to Your Customers as if it were your product.

You are solely responsible for all use (whether or not authorized) of the Services under your Client Account(s) and any Sub-Accounts(s), including the quality and integrity of your Client Data and each Client Application (as defined below). You are also solely responsible for all acts and omissions of anyone who has access to or otherwise uses any Client Application (“End Users”). End Users might include employees of your organization and Your Customers’ employees.

You agree to take all reasonable precautions to prevent unauthorized access to or use of the Services and you will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use of your Client Account(s). You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for you and each End User to connect to, access, and use the Services.

 

4. Your Data

“Your Data” consists of data and other information made available to us or transmitted through the Telestax Platform, Telestax APIs and Telestax Applications by you, by Your Customers and by the End-Users through the use of the Services under these Terms of Service.

You acknowledge that you have read our “Privacy Policy” located at https://www.telestax.com/privacy-statement/  and understand that it sets forth how we will collect, store, use and disclose your Data including personal data. If you do not agree with our Privacy Policy, then you must stop using the Services immediately.

You represent and warrant that you have the right to i) upload and store your Data to the Telestax Platform and, ii) transmit your Data through the Services, and that such use does not violate or infringe any laws and on any rights of any third party. Under no circumstances will Telestax be liable in any way for any (a) of Your Data that is transmitted or viewed while using the Services, (b) errors or omissions in your Data, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Your Data. Although Telestax is not responsible for any Your Data, Telestax may delete any of Your Data, at any time without notice to you, if we become aware that it violates any provision of this Agreement, or any law.

 

5. Client Responsibilities and Restrictions

5.1 Your Responsibilities

You will: (a) be solely responsible for all use (whether or not authorized) of the Services and Documentation under your  account, including for the quality and integrity of Client Data and each Client Application; (b) use Services only in accordance with this Agreement, or other applicable terms relating to the use of the Services, and applicable laws; (c) be solely responsible for all acts, omissions and activities of your End Users, including their compliance with the Agreement; (d) do your best to prevent unauthorized access to or use of the Services and notify Telestax promptly of any such unauthorized access or use; (e) provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers; and (f) comply with the representations and warranties you make in Section 11 (Representations and Warranties) below.

5.2 Services Usage Restrictions

With regard to the Services, you agree that:  (a) you will not attempt to use the Services to access or allow access to Emergency Services (meaning, an official government-sponsored emergency telephone number such as 911 in North America, which is used to dispatch professional emergency responders) unless the Service is expressly approved by Telestax; (b)  you will ensure that the Services are used in accordance with all applicable law and third party rights, as well as these Terms of Service, as amended from time to time; (c) you will not use the Services in any manner that violates any applicable law; (d) You will not use the Services to create, train, or improve (directly or indirectly) a substantially similar product or service; (e) except as allowed by applicable law, you will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with the Services.

5.3 Suspension of Services

In addition to suspension of the Services for non-payment of fees as described in Section 8.4 (Suspension for Non-Payment), we may also suspend the Services immediately upon notice for cause if: (a) you violate (or give us reason to believe you have violated) any provision of these Terms of Service; (b) there is reason to believe the traffic created from your use of the Services is fraudulent or negatively impacting the operating capability of the Services; (c) we determine, in our sole discretion, that providing the Services is prohibited by applicable law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; or (d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if Client become the subject of bankruptcy or similar proceeding.

5.4 Changes to Services

The features and functions of the Services may change over time. It is your responsibility to ensure that calls or requests you make to the Services are compatible with our then-current Telestax APIs. Although we try to avoid making changes to the Services that are not backwards compatible, if any such changes become necessary, we will use reasonable efforts to let you know at least sixty (60) days prior to implementing those changes.

 

6. Service Level Agreement

6.1 “Unavailable Time” means that the Cloud Service is not available for use according to third party performance and monitoring services contracted by Telestax at its sole discretion (the “Monitoring Service”). The Monitoring Service (https://status.specific.restcomm.com/) reports if the Software is currently available; provided that service issues or outages relating to any Exclusions (Section 6.4) shall not be deemed as Unavailable Time.

6.2 “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of continuous 10 minute periods during the Service Month in which the Cloud Service was in a state of “Unavailable Time” as identified by the Monitoring Service.

6.3 Telestax will use commercially reasonable efforts to ensure that Monthly Uptime Percentage is equal or greater than 99.9%.

6.4 Exclusions: Notwithstanding anything to the contrary, no Unavailable Time shall be deemed to have occurred with respect to any unavailability, suspension or termination of the Cloud Service, or any other Cloud Service performance issues, that (i) are caused by factors outside of Telestax’s reasonable control, including, without limitation, any force majeure event, carrier related problems or issues, or Internet access or related problems beyond the demarcation point of Telestax or its direct hosting subcontractors (i.e beyond the point in the network where Telestax maintains access and control over the Telestax Services); (ii) result from any actions or inactions of Client or any third party (other than Telestax’s direct hosting subcontractor); (iii) result from Applications, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within Telestax’s direct control); or (iv) arise from Telestax’s suspension and termination of Client’s right to use the Services, (v) scheduled maintenance; or (vi) problems or issues related to alpha, beta or not otherwise generally available Cloud Service features or products (collectively, the “Exclusions”).  Apart from this, Unavailable Time will not be accounted for services which are down and not used by you.

 

7. Customer Support

Telestax will provide technical support to you, but will not support Your Customers or your End-Users directly. If Your Customers or your End-Users report issues to you, you will have to submit support tickets with us on their behalf. Your Customers and your End-Users cannot submit support tickets with us directly and we will not interface with them.

Tickets shall be submitted at https://www.telestax.com/support/. The Telestax Customer Support team is available 24/7 and will make commercially reasonable efforts to respond to your tickets within hours. Tickets that indicate an uptime issue for the Cloud Services shall be prioritized higher than other tickets.

 

8. Fees, Taxes, Payment Terms

8.1 Fees. You agree to pay fees in accordance with the rates set forth in the applicable Order Forms , including any future enhancements, additions, or changes to the pricing. Additionally, we will charge you, and you shall pay, in accordance with Section 8.3, any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or telecommunication provider as a result of your use of the Services.

8.2 Taxes.  You shall be responsible for and shall pay all Taxes imposed on or with respect to the Services that are the subject of this Agreement.

“Taxes” means any form of sales, federal, state, local, use, value added, GST, service tax, research & development tax, fees, charges, 911 taxes, franchise fees, other license or business and occupation taxes, universal service fund fees, telecommunications provider surcharges, excise, or other form of taxation and any fines, penalties, surcharges or interest, but excluding any taxes based solely on the net income of Telestax. If Client is required to withhold or deduct any portion of the payments due to Telestax, Client will increase the sum payable to Telestax by the amount necessary so that Telestax receives an amount equal to the sum it would have received had Client made no withholdings or deductions. To the extent any Applicable Taxes are imposed by law on Telestax, Telestax may add a surcharge to the price of the affected Services to recover the amount of such Applicable Taxes from Client.  The payment of any of the aforementioned taxes, except income tax, shall be the sole responsibility of Client, and Client agrees to indemnify and hold Telestax harmless from any liability therefor.

8.3 Payment Terms. At the beginning of each calendar month, we will invoice you for the fees you incurred in the prior calendar month. You will pay all of the undisputed fees hereunder within thirty (30) days of the date of receipt of the invoice. Unless you and Telestax agree otherwise in writing, all undisputed fees due pursuant to these Terms of Service are payable in United States dollars. Payment obligations cannot be canceled, and fees paid are non-refundable. If you are overdue on any payment of undisputed fees and fail to pay within ten (10) business days of a written notice of your overdue payment, then we may assess, and you must pay a late fee. The late fee will be either 1% per month, or the maximum amount allowable by applicable law, whichever is less. Following the notice of non-payment, we may also suspend the Services until you pay the undisputed fees due plus any late fees.

8.4 Suspension for Non-Payment. If we suspend the Services pursuant to Section 8.3, then we will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any such suspension.

8.5 Fee Disputes. If you are disputing any fees or Taxes, you must act reasonably and in good faith and you must cooperate diligently with Telestax to resolve the dispute. You must notify us in writing if you dispute any portion of any fees paid or payable by you pursuant to these Terms of Service. You must provide that written notice to us within fifteen (15) days of receipt of the invoice for the charge you want to dispute, and we will work together with you to resolve the dispute promptly.

 

9. Ownership

You acknowledge that Telestax retains all right, title and interest in and to i) the Services, ii) all Telestax  proprietary information and technology used by Telestax or provided to you in connection with the Services, iii) all anonymized or aggregated data resulting from use and operation of the Services (such as but not limited to volumes and frequencies) and that do not identify a natural person as the source of the information. You acknowledge that Telestax is protected by intellectual property rights owned by or licensed to Telestax.  Other than as expressly set forth in these Terms of Service, no license or other rights in the Services are granted to you.

You hereby grant to Telestax a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you and your End Users, relating to the Services.  Telestax shall not identify you as the source of any such feedback.

 

10. Confidentiality

During the term of this Agreement, both parties agree that (i) Confidential Information will be used only in accordance with the terms and conditions of this Agreement; (ii) each will use the same degree of care it utilizes to protect its own confidential information, but in no event less than reasonable care; and (iii) the Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement. Both parties agree that obligations of confidentiality will exist for a period of two (2) years following initial disclosure of the particular Confidential Information. “Confidential Information” means all information disclosed by either Telestax or Client (“Disclosing Party”) to the other party (“Recipient”) during the term of this Agreement that is either (i) marked confidential; or (ii) disclosed orally and described as confidential at the time of disclosure or within thirty (30) days following the oral disclosure; or (iii) would be understood by a reasonable person to be confidential, whether due to the nature of the information or the circumstances surrounding its disclosure.

Confidential Information will not include information which: (i) is or later becomes publicly available without breach of this Agreement, or is disclosed by the Disclosing Party without obligation of confidentiality; (ii) is known to the Recipient at the time of disclosure by the Disclosing Party; (iii) is independently developed by the Recipient without use of the Confidential Information; (iv) becomes lawfully known or available to the Recipient without restriction from a source having the lawful right to disclose the information; (v) is generally known or easily ascertainable by parties of ordinary skill in the business of the Recipient. The Recipient will not be prohibited from complying with disclosure mandated by applicable law if, where reasonably practicable and without breaching any legal or regulatory requirement, it gives the Disclosing Party advance notice of the disclosure requirement.

 

11. Representations and Warranties; Warranty Disclaimer

11.1 Representations and Warranties

11.1.1 Recordings and Communications Monitoring. You represent and warrant that if you record or monitor telephone calls, SMS messages, or other communications using the Services, then you will comply with all applicable laws prior to doing so and will secure all required  prior consents to record or monitor communications using the Services. We make no representations or warranties with respect to recording or monitoring of telephone calls, SMS messages, or other communications. You acknowledge that these representations, warranties, and obligations are essential to our ability to provide you with access to recording and monitoring features that are part of the Services, and you further agree to indemnify us and our affiliates in accordance with the terms of Section 12 (Mutual Indemnification) for claims arising out of or related to your acts or omissions in  connection with providing notice and obtaining consents regarding such recording or monitoring of telephone calls, SMS messages, or other communications using the Services.

11.1.2 Client Data. You represent and warrant that you have provided (and will continue to provide) adequate notices and have obtained (and will continue to obtain) the necessary permissions and consents to provide Client Data to us for use and disclosure pursuant to Section 4 (Your Data).

11.1.3 Services. We represent and warrant that the Services will perform materially in accordance with the applicable Documentation. Telestax’s sole obligation, and your sole and exclusive remedy, in the event of any failure by Telestax to comply with this Section 11.1.3 will be for you to terminate the Agreement as per Section 14.3 and to cease using the Services. Telestax shall not refund any of the Fees.

11.1.4 Export Controls. The Services may be subject to applicable export control and economic sanctions laws of the U.S. and other jurisdictions.  Telestax and You each agree to comply strictly with all domestic and international export laws and economic sanctions regulations, in the case of Telestax, in providing the Services, and, in the case of you, in receiving and using the Services respectively, and to the extent consistent with these Term, you will  obtain any necessary license or other authorization to export, re-export, or transfer the Services. These laws include restrictions on destinations, End Users, and end use. Without limitation, you may not transfer the Services without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). Telestax represents that Telestax is not named on a U.S. government exclusion list. You represent that you or any End User using the Services is not named on a U.S. government exclusion list, and you further warrant that you will immediately discontinue use of the Services if you or any End User using the Services becomes placed on any such list.

11.1.5 GDPR Processing of Personal Data.  As per Article 5 of the GDPR, Processing of Personal Data, we represent that the personal data is processed lawfully, fairly and in a transparent manner. It is collected for specified, explicit, and legitimate purposes.  It is adequate, relevant, and limited to what is necessary for the purposes for which it is being processed.  The information is accurate and kept up to date.  The information is kept in a form which permits identification of data subject for no longer than is necessary for the purpose of the data processed.  Further, Telestax processes the data in a manner that ensures appropriate security of the personal data.

11.1.6 California Consumer Privacy Act (CCPA). Telestax represents that it does not sell your personal information, or the personal information of your end users.  Telestax represents that it does not process your personal data for any commercial purpose, other than providing the Services.  Telestax represents that it does not retain, use or disclose your personal information outside of the scope of the agreement we have with you.

11.2 Disclaimer of Damages

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR AN ORDER FORM, IN NO EVENT WILL TELESTAX BE LIABLE TO CLIENT OR ITS AFFILIATES FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION: ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, INFRINGEMENT OR OTHERWISE; OR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, REGULATORY NON-COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF TELESTAX HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR THESE DAMAGES WILL BE LIMITED AND EXCLUDED EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

 

12. Mutual Indemnification

12.1 Indemnification by Telestax. We will defend you from and against all claims, demands, suits or proceedings made or brought against you by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (“Infringement Claim”), and will indemnify you from any damages, attorney fees, and costs finally awarded against you as a result of, or for amounts you pay to settle an Infringement Claim under a settlement for which Telestax has given its written approval.

12.2 Infringement Options. If your use of the Services has become, or in Telestax’s opinion is likely to become, the subject of any Infringement Claim, Telestax may at its option and expense: (a) procure for you the right to continue using the Services as set forth herein; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate this Agreement and refund you any unused pre-paid fees. This Section 12.2 states your exclusive remedy for any Infringement Claim by a third party.

12.3 Limitations. Telestax will have no liability or obligation with respect to any Infringement Claim and a court award of damages  (a) arising out of your use of the Services in breach of these Terms of Service, (b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves, and without modification, be infringing, or (c) arising from Services for which there is no charge.

12.4 Indemnification by You. You will defend Telestax, its officers, directors, employees,  and affiliates (“Telestax Indemnified Parties”)  from and against any claim, demand, suit or proceeding made or brought against a Telestax Indemnified Party by a  third party alleging or arising out of (a) your or any of your End Users’ breach of these Terms of Service or your obligations under Section 5, or breach of your representations or warranties under Section 11 of these Terms of Service; (b) your or any of your End Users’ use of the Services or any activities under these Terms of Service; or (c) your  Client Application, including, without limitation, any intellectual property claims for infringement or misappropriation relating to each Client Application (collectively, “Client Indemnifiable Claims”) and will indemnify Telestax from any damages, attorney fees, and costs finally awarded against Telestax Indemnified Parties as a result of, or for amounts paid by Telestax Indemnified Parties to settle a Client Indemnifiable Claim under a settlement for which you have  given your written approval.

12.5 Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Infringement Claim or Client Indemnifiable Claim, as applicable (collectively referred to as a “Claim”), provided, however, that the failure to give such prompt notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (b) the Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party’s consent in connection with any act or forbearance required by the Indemnified Party, which consent will not be unreasonably withheld); and (c) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 12 admitting liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent.

 

13. Limitation of Liability; Emergency Services

13.1 INDIRECT CONSEQUENTIAL AND RELATED DAMAGES. EXCEPT FOR DAMAGES ARISING FROM BREACH OF YOUR OBLIGATIONS UNDER SECTION 5 (CLIENT RESPONSIBILITIES, RESTRICTIONS AND REQUIREMENTS), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.  THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

13.2 LIMITATION OF LIABILITY. EXCEPT FOR DAMAGES ARISING FROM BREACH OF YOUR OBLIGATIONS UNDER SECTION 5  AND EXCEPT FOR AMOUNTS PAYABLE UNDER A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 OF THESE TERMS OF SERVICE,  IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE EXCEED FOR ANY YEAR THE GREATER OF (A) US$1,000,000 OR (B) THE AMOUNTS PAID OR PAYABLE BY CLIENT HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.  THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT, AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 8 ABOVE.

13.3 EMERGENCY SERVICES DISCLAIMER. NEITHER TELESTAX NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CLIENT WILL HOLD TELESTAX HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE SERVICES TO CONTACT EMERGENCY SERVICES, AS DEFINED IN SECTION 5.2  THE TELESTAX SERVICES SHOULD NOT BE USED FOR CONTACTING EMERGENCY SERVICES, UNLESS THE TELESTAX SERVICE IS EXPRESSLY APPROVED IN WRITING FOR THIS PURPOSE IN CONNECTION WITH YOUR USE OF THE APPROVED PRODUCT.

THE PROVISIONS OF THIS SECTION 13 ALLOCATE THE RISKS PURSUANT TO THESE TERMS OF SERVICE BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS OF SERVICE.

 

14. Term and Termination

14.1 Term. The Agreement becomes effective on the earlier of (i) the day you start using the Services, and (ii) the effective date of the first Order Form executed by the Parties.  This Agreement will continue until terminated in accordance with Section 14.3 (“Termination”).

14.2 Auto-renew. Order Forms automatically renew by one (1) year increments unless specifically stated otherwise in the Order Forms. Either party may give written notice to the other of its intention not to renew at least sixty (60) days before the commencement of the next renewal term.

14.3 Termination. Either party may terminate the Agreement and close your Client Account(s) for any reason upon thirty (30) days written notice to the other party. Notwithstanding the preceding sentence, if there is an Order Form(s) in effect, then this Agreement will not terminate until such Order Form(s) have expired or been terminated.

Neither Party can terminate an Order Form for convenience unless it is specifically stated as such in the applicable Order Form.

Telestax, at its sole discretion, may terminate the Agreement and close your Client Account(s) in the event you commit any material breach of the terms of the Agreement and fail to remedy that breach within ten (10) days after Telestax provides written notice of that breach to you.

You may also terminate the Agreement in the event we commit a material breach of these Terms of Service and fail to remedy that breach within ten (10) days after providing written notice of that breach to us.

14.4 Survival. Upon termination of the Agreement, your payment obligations, the terms of this Section 14, and the terms of the following Sections will survive (i.e. still apply): Section 4 (Your Data), Section 8 (Fees, Taxes, Payment Terms), Section 9 (Ownership), Section 10 (Confidentiality), Section 12 (Mutual Indemnification), Section 13 (Limitation of Liability; Emergency Services) and Section 15 (General).

 

15. General

15.1 Compliance with Laws. You will comply with the applicable law relating to your respective activities pursuant to these Terms of Service. Telestax will provide the Services in accordance with laws  applicable to Telestax’s provision of the Services to its Clients generally (i.e. without regard for Client’s particular use of the Services), and subject to Client’s use of the Services in accordance with this Agreement, the Documentation and  applicable Order Form (if any).

15.2 Waiver, Amendment, Order of Precedence. The delay or failure of either party to exercise any rights under these Terms of Service will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorized representative of the party against whom such waiver is sought to be enforced. Order Forms may be amended or modified only in writing, signed by the parties, which writing makes specific reference to these Terms of Service or the applicable Order Form. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (except as otherwise expressly set forth in an applicable Order Form): (1) the Order Forms, starting with the most recent Order Form, (2) the Terms of Service  and (3) the Documentation.

15.3 Assignment. Neither party may assign the Agreement or assign its rights or delegate its obligations thereunder, in whole or in part, except (a) (to the extent in connection with a bona fide sale of one of the parties or substantially all of its assets to a third party with ten (10) days’ prior notice to the other party, or (b) with the other party’s prior express written consent. In connection with any such proposed or actual assignment or delegation by one of the parties, the assigning party shall provide such information and documentation concerning the assignee or delegee as the other party reasonably requests. Any attempt by either party to assign, delegate, or transfer this Agreement without complying with 15.3 (a) or 15.3 (b) shall be void. Subject to this Section 15.3, these Terms of Services will be binding on both you and Telestax and each of our successors and assigns.

15.4 Relationship. You and Telestax are independent contractors.  Nothing in these Terms of Service or related to Telestax’s performance of any Order Form is intended to create or shall be construed as creating an employment  or agency relationship, or a partnership, joint venture, or franchise. You and Telestax will be solely responsible for the supervision, direction control, payment, liability, claims, damages and debts for all of our respective employees and agents.  This shall include applicable taxes, deductions, other payments and benefits, and our respective labor costs and expenses attributable to said employees and agents that arise during the performance of these Terms of Service.

15.5 Severability. Except as described in Section 15.8, if any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid or unenforceable for any reason, but would be valid and enforceable if appropriately modified, then that provision will apply with the minimal modification necessary to make it valid and enforceable if appropriately modified. If such provision cannot be so modified, the Parties agree that such invalidity will not affect the validity of the remaining provisions of these Terms of Service.  In either event, the rest of these Terms of Service will continue in full force and effect with said modification or elimination of such provision.

15.6 Notices. Except as otherwise expressly set forth in the Agreement, all notices given to the Parties under the Agreement will be in writing, will be in English and will be given by nationally recognized overnight courier service, certified mail (return receipt requested), or personal delivery, if to you at the address indicated on the applicable Order Form, and if to us at:

Telestax, Inc.
9600 Escarpment Blvd
Ste 745 PMB 243
Austin, TX 78749
United States

With a copy e-mailed to legal@telestax.com.

15.7 Force Majeure. With the exception of the payments due as outlined in Section 8.3 (Payment Terms), neither party will be liable for nonperformance, failure, default or delays caused by acts of God, communicable diseases, wars, civil or military authority, riots, strikes, fires, floods, hurricanes, earthquakes and other natural disasters, action or inaction of government, governmental restrictions, terrorist acts, or other causes beyond its reasonable control that are not attributable to the negligence of such party.  No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms of Service.  The party affected by such an event shall take all reasonable restrictions to minimize the consequences of such event.

15.8 Governing Law, Arbitration and Mediation. The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the State of Delaware, United States of America without giving effect to the conflicts of law’s provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the state or federal courts of competent jurisdiction located in Delaware, US, and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue. In the event the Uniform Computer Information Transactions Act (UCITA) or any similar federal or state laws or regulations are enacted, it will not apply to this Agreement, and the governing law will remain as if such law or regulation had not been enacted. The parties also agree that if a dispute arises from or relates to this contract or the breach thereof, each party agrees to give the other a written description of any problem(s) that may arise and to make a good faith effort to amicably resolve any such problem before commencing any proceeding. If the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  Claims shall be heard by a single arbitrator. The place of arbitration shall be the State of Delaware, USA, or another location mutually agreeable to the parties. The arbitration shall be governed by the laws of the State of Delaware. In making determinations regarding the scope of exchange of electronic information, the arbitrator(s) and the parties agree to be guided by The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. The arbitrator(s) shall not award consequential damages in any arbitration initiated under this section. Each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration. The prevailing Party shall be entitled to an award of its reasonable attorneys’ fees.  The award of the arbitrators shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. Notwithstanding any language to the contrary in the contract documents, the parties hereby agree: that the Underlying Award may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules (“Appellate Rules”); that the Underlying Award rendered by the arbitrator(s) shall, at a minimum, be a reasoned award; and that the Underlying Award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired.  Appeals must be initiated within thirty (30) days of receipt of an Underlying Award, as defined by Rule A-3 of the Appellate Rules, by filing a Notice of Appeal with any AAA office.  Following the appeal process the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof.

15.9  Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT.

15.10 Publicity. Telestax may identify you as a customer in Product promotional material. You may request that Telestax cease identifying you at any time by submitting an email to sales@telestax.com. Requests may take 30 days to process.

15.11 Entire Agreement. Except as provided in these Terms of Service and any exhibits or addenda or other terms incorporated by reference into these Terms of Service, these Terms of Service supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by Telestax, its agents or employees will create a warranty or in any way increase the scope of the warranties or obligations under these Terms of Service. Any purchase order document or similar document provided by you shall be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon shall be void and have no effect with regard to these Terms of Service between you and Telestax and be non-binding against Telestax even if signed by Telestax after the date you accept these Terms.

 

16. Modifications to the Terms of Services

We may revise these Terms of Service from time to time and the most current version will always be posted on our website. We will notify you of any change (for example via email to the email address associated with your account or by a notification when you sign in or by some other method). By continuing to access or use the Services after revisions become effective, you are agreeing to be bound by the revised Terms of Service. If you do not agree to the new Terms of Service, simply do not use the Services after the change is effective, in which case the change will not apply to you.