Terms of Service

Terms of Service
BY ACCESSING OR USING OUR AUDIO AND WEB CONFERENCING SERVICES (THE “SERVICES”), WHETHER AS A PAID CUSTOMER OR FREE USER, ON BEHALF OF YOURSELF AND/OR YOUR COMPANY, YOU ARE AGREEING TO BE BOUND BY AND ACCEPT THESE TERMS OF SERVICE. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, DO NOT USE OUR SERVICES, INCLUDING WITHOUT LIMITATION, ANY OF OUR MOBILE APPLICATIONS. YOU ARE ENCOURAGED TO PRINT OR DOWNLOAD THESE TERMS OF SERVICE AND TO REGULARLY CHECK THIS WEBSITE TO OBTAIN TIMELY NOTICE OF ANY CHANGES TO TERMS OF SERVICE, WHICH MAY OCCUR FROM TIME TO TIME AND AT ANY TIME WITHOUT NOTICE.

Grant of License. Ecovate, Inc., d/b/a READYTALK, A PGI COMPANY (“READYTALK”) hereby grants to you (“You” or the “COMPANY”), during the term of the Services set forth on the Schedules attached hereto, a non-exclusive, non-transferable and non-sublicensable right to use the Services pursuant to the terms and conditions of this Agreement (the “License”).

1. READYTALK Obligations. READYTALK agrees to provide COMPANY with the Services as listed on schedules attached hereto and incorporated herein (the “Schedules” and collectively with these Terms of Service, this “Agreement”), during the term of this Agreement, and hereby grants to COMPANY a non-exclusive, non-transferable and non-sublicensable right to use the Services pursuant to the terms and conditions of this Agreement. COMPANY receives no right to modify or reproduce the Services or any software associated therewith. READYTALK reserves the right to vary the technical specifications of, and make changes, additions or replacements to, the Services where necessary for operational reasons or as required to comply with any applicable safety, statutory or legal requirement. READYTALK reserves the right to temporarily suspend the Services as necessary to conduct maintenance and upgrades to the Services. In the event of a conflict between any terms herein and in any Schedule, the terms of the Schedule for the particular Service shall control.

2. Company Obligations. COMPANY agrees to provide READYTALK with the Services as listed on the applicable Schedule. COMPANY is solely responsible for the acquisition, operation and maintenance of all hardware, equipment and software (not included with the Services) necessary for use of the Services, including, but not limited to, computers, telephones and related equipment and connections. COMPANY shall use the Services only for conferences or meetings in which COMPANY is an active participant and for its internal business purposes, and COMPANY shall not resell, sublicense or redistribute the Services to any third party or use the Services on a timeshare or service bureau basis or to operate a website or otherwise generate income from the Services. COMPANY agrees to ensure that each User (i) uses the Services pursuant to the terms and conditions of this Agreement and (ii) uses the Services only for lawful purposes. COMPANY shall not, and shall ensure that other Users do not, use the Services to (i) violate READYTALKs network security or any third party’s system or network security by any method, including unauthorized interference with any user, host, system or network or unauthorized access to, use of or monitoring of data, systems or networks or (ii) send, receive, store, distribute, transmit, post, upload or download any materials that are designed to violate READYTALKs network security or any third party’s system or network security.

3. Fee for Services. Any additional licenses purchased by COMPANY pursuant to the applicable Schedule will be invoiced to COMPANY in such manner as stated on an applicable Schedule, or if not therein provided, shall be invoiced at the end of each billing cycle, and, in all cases, and shall be due and payable thirty (30) days from the invoice date. READYTALK shall, at READYTALKs discretion, have the right to impose a late payment charge of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower, on any invoice not paid within said thirty (30) day period. READYTALK may suspend the Services, or any portion thereof, in the event that any invoice for Service Fees is delinquent. In the event of any failure by COMPANY to make full and timely payment to READYTALK pursuant to this Agreement, COMPANY shall be responsible for all costs and expenses (including legal fees) incurred by READYTALK and its affiliates and agents in collecting such amounts.

4. Taxes, Fees and Surcharges. In addition to the Service Fees and any late payment charges related thereto, COMPANY shall pay all applicable fees, duties, tolls, administrative assessments, surcharges or taxes now or hereafter attributable to the Services and included on a READYTALK invoice. COMPANY is solely responsible for, and will properly remit, any taxes, fees or surcharges with respect to use of the Services. READYTALK asses a 3.95% monthly Telecommunications Surcharge on audio conferencing services to recover its costs associated with regulatory requirements and compliance and other costs imposed by its underlying telecommunications carriers. USF charges apply to the Telecommunications Surcharge. Additionally, READYTALK imposes a 5.6% Service Fee on all pre-tax charges. READYTALK will not provide advanced notice of any changes in the Telecommunications Surcharge or the Service Fee.

5. Confidential Information.

a. Neither party will disclose the Confidential Information (defined below) of the other party, other than to employees and contractors of such party who need to know such information to carry out the purposes of this Agreement or as required by law, and neither party will use the Confidential Information of the other party except for purposes of this Agreement. Each party shall protect the Confidential Information of the other party using at least the same care with which it protects its own Confidential Information of like nature, but at all times shall use at least reasonable care. Each party agrees to provide the other party notice of all legal requests for Confidential Information prior to disclosure.

b. For purposes of this Agreement, “Confidential Information” means the terms and conditions of this Agreement and all information communicated by one party to the other party in connection with the Services or performance of this Agreement which is (i) written information conspicuously marked as confidential, (ii) oral or visual information identified as confidential at the time of disclosure, or (iii) clearly by its nature confidential, including, but not limited to, trade secrets, financial information and COMPANY and business information. In addition, READYTALK’s “Confidential Information” shall include all documentation and software provided to COMPANY as part of the Services and all account numbers, passwords, personal identification numbers and any necessary conference codes provided to COMPANY in connection with the Services and shall also include any and all pricing information in connection with this Agreement. Notwithstanding the foregoing, “Confidential Information” shall not include information which the receiving party can demonstrate is (i) already known by the receiving party without any obligation of confidentiality, (ii) publicly known or that becomes publicly known through no unauthorized act of the receiving party, (iii) rightfully received from a third party without an obligation of confidentiality, or (iv) independently developed without use of the disclosing party’s Confidential Information.

c. Upon termination or expiration of this Agreement or at any time or from time to time, each party shall return or destroy all Confidential Information of the other party.

d. Except for materials already made public, neither party will distribute any news releases, articles, brochures, speeches or advertisements concerning this Agreement, nor use the other party’s name or trademarks (or any variation thereof), without the other party’s prior written consent.

6. Privacy and Security.

a. COMPANY agrees to promptly notify READYTALK of any unauthorized use of COMPANY’s account of which COMPANY becomes aware. Any COMPANY or other User information transmitted by COMPANY or any other User through or collected by READYTALK’s commercial website, located at www.ReadyTalkcom (but excluding, for the sake of clarity, any such information that is transmitted through the Services) shall be governed by READYTALK’s privacy policy available on READYTALK’s website located at www.ReadyTalk.com/privacy.php, which is incorporated herein.

b. Although READYTALK uses reasonable security safeguards with respect to the Services, READYTALK cannot guaranty the security or privacy of any transmissions or communications through the Services. COMPANY acknowledges that COMPANY is solely responsible for all content and information sent, received, stored, distributed, transmitted, posted, uploaded or downloaded using the Services. READYTALK reserves the right to delete any content or information sent, received, stored, distributed, transmitted, posted, uploaded or downloaded using the Services which violates any provision of this Agreement.

7. Limitation of Liability.

ALL SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND READYTALK SHALL NOT HAVE ANY LIABILITY TO ANY PARTY, INCLUDING BUT NOT LIMITED TO YOU, FOR THE CONTENT OF INFORMATION TRANSMITTED BY YOU THROUGH THE SERVICES OR ANY LOSS, DELAY, INTERRUPTION, OR INACCURACY OF SUCH COMMUNICATIONS. READYTALK DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR COVENANTS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT REGARDING THE SERVICES. WITHOUT LIMITING THE FOREGOING, READYTALK MAKES NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, AND ANY MATERIAL, AND/OR DATA DOWNLOADED, UPLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK. READYTALK ALSO DOES NOT MAKE ANY WARRANTY OR GUARANTEE FOR ANY PRODUCTS OR SERVICES PROVIDED BY VENDORS SUGGESTED BY READYTALK. NEITHER READYTALK NOR READYTALK’S SUPPLIERS SHALL IN ANY EVENT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT OR OTHER MONETARY LOSS; LOSS OR INTERRUPTION OF DATA, RECORDINGS, COMPUTER TIME OR VOICE TRANSMISSIONS; ALTERATION OR ERRONEOUS TRANSMISSION OF DATA; ACCURACY OF DATA; inability to use the services to contact emergency services; UNAUTHORIZED ACCESS TO OR USE OF VOICE OR DATA PROCESSED OR TRANSMITTED BY, TO OR THROUGH THE SERVICE; OR PROGRAM ERRORS) EVEN IF READYTALK IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. READYTALK SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM, OR DELAY IN PERFORMANCE OF, ITS OBLIGATIONS UNDER THIS AGREEMENT CAUSED BY REASONS BEYOND READYTALK’S CONTROL. IN NO EVENT SHALL READYTALK’S TOTAL LIABILITY TO YOU ARISING UNDER THIS AGREEMENT, WHETHER SUCH THEORY OF LIABILITY IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE CHARGES (CALCULATED ON A PRO-RATED BASIS FOR ADVANCED PAYMENTS OF ALL CHARGES) BY READYTALK TO YOU FOR THE PARTICULAR SERVICE PERFORMED BY READYTALK DURING THE ONE MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF EVENT, ACT OR OMISSION GIVING RISE TO THE LIABILITY. In the event some or all of the foregoing limitations in this Section 6 may not be effective in the applicable jurisdiction or to the extent the applicable law mandates a more extensive warranty, the applicable law will prevail over these terms.

8. Ownership of Intellectual Property.

a. The Services and all software, documentation, hardware and other materials used in provision of the Services or on READYTALKs website (collectively, the “READYTALK Materials”) are proprietary to and the property of READYTALK, and, as between the parties, all right, title and interest in and to the READYTALK Materials (including, but not limited to, patents, copyrights, trademarks, service marks, rights to logos, trade secrets and trade names, including without limitation third-party names, product names and brand names, and all other intellectual property and proprietary rights) remain in and shall be the exclusive property of READYTALK. Except as expressly set forth in this Agreement, READYTALK does not confer any right of ownership to the READYTALK Materials to COMPANY. COMPANY shall not, without READYTALK’s prior consent or as expressly authorized by this Agreement, copy, reproduce or provide in any fashion any READYTALK forms, computer software or concepts for the benefit of any third party. The obligations of this Section 10 are perpetual and survive termination of this Agreement.

b. Notwithstanding Section 9(a), COMPANY owns and retains all right, title and interest in and to the content of any archived files (sound and/or presentation content) created by COMPANY (the “COMPANY Materials”). COMPANY hereby grants READYTALK a license to use the COMPANY Materials to perform the Services or READYTALKs other obligations under this Agreement.

9. Representations and Warranties of COMPANY. COMPANY hereby warrants, represents and covenants to READYTALK as follows:

a. COMPANY is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.

b. COMPANY has full power and authority to enter into this Agreement; the execution, delivery and performance of this Agreement by COMPANY have been duly authorized by all necessary actions on the part of COMPANY; and this Agreement, when duly executed by READYTALK and COMPANY, will constitute a valid, binding and enforceable obligation of COMPANY, except as such enforceability may be affected by the application of the rights of creditors generally and the principles of equity.

c. During the term of this Agreement, any content or material COMPANY or any other User sends, receives, stores, distributes, transmits, posts, uploads or downloads in connection with the Services shall not in any way (i) violate any laws, rules or regulations, (ii) be obscene, indecent, immoral, defamatory, slanderous, libelous or harassing, (iii) infringe upon, violate or misappropriate any intellectual property or proprietary rights of any third party, including, without limitation, any copyright, trademark, trade secret or patent, (iv) violate any rights of publicity or privacy of any third party, or (v) damage READYTALK’s property or interfere with or disrupt READYTALK’s systems or other users. COMPANY is solely responsible for all content and information sent, received, stored, distributed, transmitted, posted, uploaded or downloaded using COMPANY’s account.

d. All information provided by COMPANY to READYTALK pursuant to or in connection with performance of this Agreement shall be accurate and complete.

e. Marketing – For the purpose of this Agreement, COMPANY shall grant to READYTALK a limited, non-exclusive, non-transferable, royalty-free license to use the trademarks, logo designs and trade names provided by COMPANY (collectively, the “COMPANY Marks”) subject to the terms of this Agreement unless expressly disallowed. Use of the COMPANY Marks by READYTALK is strictly limited to identifying COMPANY as a customer of READYTALK, A PGI COMPANY on READYTALK’s website and in READYTALK’s promotional materials – provided any such use has been pre-approved, not be unreasonably withheld, by COMPANY. READYTALK hereby acknowledges that validity of COMPANY’s ownership of the entire right, title and interest in and to the COMPANY Marks; that their use by READYTALK shall not create for READYTALK any right, title or interest in or to any of the COMPANY Marks.

10. Your Compliance and Indemnification.

a. You acknowledge that READYTALK has no control over the content of information published, posted, uploaded, exchanged, recorded or otherwise transmitted through the Services (whether visual, written or audible) and that READYTALK does not examine the use to which you put the Services or the nature of the information you or your users send or receive. You shall comply with and agree it is solely your responsibility to ensure the Services are used in accordance with all applicable foreign, federal, state/provincial and local laws relating to use of the Services under this Agreement (including without limitation, export and control laws and regulations and laws relating to the use of VoIP-based services). Without limiting the foregoing, you agree that the use of the Services is subject to U.S. and local export control laws and regulations. You represent that you are not a citizen of an embargoed country or a prohibited end user under applicable U.S. or local export and anti-terrorism laws, regulations and lists. You are responsible: (i) for any and all activities that may occur under your account, including without limitation, ensuring no content published, posted, uploaded, exchanged, recorded or otherwise transmitted through the Services infringes any third party’s intellectual property rights or is unlawful, threatening, abusive, harassing, libelous, deceptive, fraudulent, invasive of another’s privacy, vulgar, obscene or otherwise contains objectionable material of any kind or nature; and (ii) to maintain the confidentiality and security of your Host ID and/or access numbers, keys and passwords/passcodes. You agree to notify READYTALK immediately if there has been an unauthorized use of any Host ID and/or access numbers, keys and/or passwords/passcodes or any other breach of security and you shall be liable for fraudulent charges until such time as you have notified READYTALK to suspend any compromised Host IDs, access numbers, keys and/or passwords/passcodes. You acknowledge that READYTALK may from time to time monitor bridge activity relating to the Services for quality assurance and fraud detection and may further gather system data. Further, and notwithstanding confidentiality provisions herein, READYTALK may disclose information about your use of Services to satisfy any law, regulation, government agency request, court order, search warrant, subpoena or other legal process.

b. You acknowledge that READYTALK does not provide traditional telephone service, and the services are not intended to support or carry any emergency calls to any emergency services of any kind. You need to make additional arrangements in order to access emergency services. Additionally, use of conference recording or taping any use of the Services may subject you to laws or regulations. You acknowledge and agree that you may not record or tape any Web, video or telephone conversation in connection with the services unless you are in compliance with all laws relating to the recording of communications and protecting the privacy of communication for all parties to the conversation. READYTALK has not and is not expected to provide you with any analysis, interpretation or advice regarding your compliance with the above, and you are solely responsible and obligated to provide any required notifications to participants prior to commencement of conferences.

c. You shall indemnify, defend and hold READYTALK, its officers, directors, employees, affiliates and its suppliers harmless from any claims, losses, damages, penalties or costs (including without limitation reasonable attorneys’ or expert witness fees) arising out of your (or any individual or entity accessing the Services through you or your account): (i) use of the Services; (ii) violation or alleged violation of any applicable laws or regulations with respect to the Services; or (iii) infringement of any intellectual property rights of any third party. The obligations contained in this paragraph shall survive any termination or suspension of the Services contemplated herein, the expiration or termination of this Agreement and final payment.

11. Term and Termination.

a. Services shall commence upon the Service Commencement Date as agreed upon by the parties, in writing, and shall continue, unless different terms are specified by the parties in a Schedule, for a minimum term of twelve (12) months ("Initial Term"), with renewal terms continuing indefinitely thereafter at lengths equal to the Initial Term (each a "Renewal Term"). Without limiting the foregoing, if the term of any Services described in a Schedule extends beyond the expiration or termination of this Agreement, the terms of this Agreement shall apply to such Services even after expiration or termination of the Agreement. Either party may terminate this Agreement at the end of a term by providing written notice to the other party of such termination at least sixty (60) days prior to the end of such term or as the parties otherwise agree, in writing.

b. Promotional Term; Free Trial Term. If you use Services pursuant to a promotional offer granting free Services and/or a free trial for Services, which may include without limitation the waiver of certain fees and/or other charges as defined by a particular promotional offer ("Free Services"), you will receive use of the Free Services solely for a limited period of time and all use of all Free Services shall be subject to the terms herein and any and all other restrictions, limitations and conditions identified or communicated to you with the specific Free Services offer, including without limitation, you are and will remain liable for all charges not otherwise designated as specifically and expressly waived pursuant to the applicable promotional offer. Notwithstanding any other provision in this Agreement, all Free Services are provided solely as an accommodation to you, and READYTALK reserves the right, at all times and in its sole discretion, to terminate or modify any Free Services at any time without notice, including without limitation for any abuse of the Free Services and/or your failure to pay fees and charges not otherwise designated as specifically and expressly waived pursuant to the applicable promotional offer. TO THE EXTENT YOU SIGN UP TO PAY FOR SERVICES BY CREDIT OR DEBIT CARDS, YOU ACKNOWLEDGE AND AGREE THAT AS A CONDITION TO RECEIVE ANY FREE SERVICES, A FEE AND/OR CHARGE, AS APPLICABLE, WILL BE PRE-AUTHORIZED AGAINST YOUR CREDIT CARD OR DEBIT CARD LIMIT (MEANING THE AMOUNTS PRE-AUTHORIZED WILL NOT BE CONSIDERED AVAILABLE CREDIT OR DEBIT FUNDS IN SUCH ACCOUNT) AND, UNLESS THE PARTIES EXPRESSLY AGREE OTHERWISE, WILL BE IMMEDIATELY CHARGED TO YOUR CREDIT OR DEBIT CARD, WITHOUT FURTHER AUTHORIZATION FROM YOU, UPON THE EXPIRATION OF THE FREE SERVICES PERIOD, UNLESS YOU TERMINATE SERVICES IN ACCORDANCE WITH THE TERMS OF THE SPECIFIC PROMOTION AND/OR THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT AND NOTWITHSTANDING ANY OTHER PROVISION HEREIN, IN THE EVENT ANY PROMOTION HAS RATES AND/OR FEES NOT IMPLEMENTED UNTIL AFTER THE END DATE FOR FREE SERVICES ("RATE IMPLEMENTATION DATE") AND READYTALK AGREES TO MAKE AVAILABLE ANY FREE SERVICES TO YOU PRIOR TO SUCH RATE IMPLEMENTATION DATE, UNLESS THE PARTIES OTHERWISE EXPRESSLY AGREE IN WRITING, YOUR INITIAL APPLICABLE TERM FOR SERVICES SHALL BE EXTENDED BY THE LENGTH OF THE FREE SERVICES PERIOD; PROVIDED, HOWEVER, IF SUCH FREE SERVICES PERIOD WOULD RESULT IN YOUR INITIAL APPLICABLE TERM ENDING IN THE MIDDLE OF A BILLING CYCLE, THEN SUCH TERM SHALL BE EXTENDED TO THE LAST DAY OF SUCH BILLING CYCLE.

c. Termination for Cause. Either party may terminate this Agreement at any time in the event that the other party breaches any provision of this Agreement in any material respect and fails to cure such breach within thirty (30) days after receipt of written notice of such breach. Notwithstanding the foregoing, READYTALK may terminate this Agreement and/or suspend the provision of Services immediately: (i) for illegal, fraudulent, improper or abusive use of the Services; (ii) if deemed reasonably necessary by READYTALK to prevent interruption or disruption to READYTALK’s network, its business or other customers; (iii) if any portion of an invoice not reasonably disputed in good faith as herein provided remains unpaid when due (including without limitation any minimum commitments); or (iv) for breach, not subject to cure. All terminations by READYTALK shall be effective as of the date designated in the termination notice, and READYTALK shall not be liable to you or any third party should READYTALK exercise its right to discontinue Services, in whole or in part, or terminate this Agreement pursuant to this Section 13(c).

d. Effect of Termination. In the event of any termination, you remain responsible for any and all fees and charges due and incurred through the termination effective date and will not be entitled to any partial month credits or refunds of any kind, including without limitation if you elect to not use the Services prior to the termination effective date.

e. Effect of Termination for Free Services. In addition to and without limiting any other rights or remedies READYTALK has herein or otherwise identified or communicated to you with the specific Free Services offer, if READYTALK determines, in its sole discretion and whether or not it has conducted an audit, that you have violated any conditions of and/or limitations on the Free Services or any associated software, READYTALK reserves the right to immediately terminate the Free Services and to charge and to collect from you the amount you would have been required to pay for the Free Services as a retail customer (applying then-current list rates and/or Standard Charges, as applicable) during the period of your non-compliance. You agree to pay this amount to READYTALK, plus the cost of conducting any associated audits by READYTALK that in the sole discretion of READYTALK reveal non-compliance.

12. General.

a. Assignment. This Agreement shall be binding upon and inure to the benefit of each party and its permitted successors, legal representatives and authorized assigns. READYTALK may assign its rights and obligations under this Agreement to an entity that either now or in the future controls, is controlled by or is under common control with READYTALK or as a consequence of merger, acquisition, change of control or asset sale.  Customer may not assign its rights and obligations under this Agreement without the written consent of READYTALK, which shall not be unreasonably withheld. You may not assign your rights and obligations under this Agreement without READYTALK’s written consent.

b. Notices. Notices to you for billing or account management purposes will be addressed to the address provided to READYTALK. Notifications to READYTALK shall be addressed to: Ecovate, Inc. d/b/a ReadyTalk, Attn: Legal Services Department, 3280 Peachtree Road NE, Suite 1000, Atlanta, GA 30305-2422 USA. Any notice required or permitted to be given under this Agreement must be written in English and shall be deemed given and effective upon delivery if sent by personal delivery or by facsimile transmission (with confirmation of successful delivery), two (2) days after deposit with a nationally-recognized overnight delivery service or five (5) days after posting if sent by certified United States mail, return receipt requested, with postage pre-paid and addressed as above-provided or to such other addresses as may be designated by notice from one party to the other. You hereby grant READYTALK express consent to contact all individual account holders and moderators to communicate information regarding READYTALK’s services and products, including without limitation, upgrades, enhancements, end-of-life, modifications and/or other feature changes. Without limiting the foregoing, you grant READYTALK express consent to periodically contact you and/or to forward to the e-mail address(es) related to your account on file information regarding READYTALK’s services and products, including without limitation, upgrades, enhancements, end-of-life, modifications and/or other feature changes and/or various promotional and advertising materials regarding other READYTALK’s products, services, marketing plan and other business related items.

c. Severability. If any provision of this Agreement shall be held by a court to be invalid, illegal or unenforceable in any respect, such provision shall be severed or modified as may best preserve the intent of the original provision and the allocation of risk, and the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.

d. Amendments, Waivers, Remedies. This Agreement, or any of its provisions, may not be amended, supplemented or modified, and no provision hereof may be waived, unless such amendment, supplement, modification or waiver is in writing and signed by the party against whom enforcement of any of the foregoing is sought, and any such waiver will not be deemed a waiver of any subsequent failures or of any other obligations, agreements or conditions contained herein.

e. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

f. Independent Contractors. The parties’ relationship to each other shall be that of independent contractor, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other party, (ii) constitute the parties as partners, joint venturers, co-owners, agents, franchisee or franchisor or otherwise, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. Neither party is an employee, partner of, or joint venturer with the other party, nor is either party entitled to employee benefits from the other party. All financial and other obligations associated with each party’s business are the sole responsibility of such party.

g. Survival of Provisions. The provisions of this Agreement relating to Service Rates and Charges, Taxes, Fees and Surcharges, Confidential Information, Privacy and Security, Limitation of Liability, Ownership of Intellectual Property, Representations and Warranties, Indemnification, Term and Termination and General shall survive expiration and termination of this Agreement.

h. Captions/Section Headings. Captions/section headings in this Agreement are for convenience only and shall not be considered in the interpretation of this Agreement.

i. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado applicable to agreements made and to be performed therein, without giving effect to conflicts or choice of law principles.

j. Entire Agreement. This Agreement and any documents, exhibits and attachments referenced herein contain the entire agreement between the parties concerning the subject matter hereof, and any representations or agreements, oral or otherwise, not embodied herein are superseded by the terms hereof (including any prior versions of the Terms of Service) and shall be of no force or effect.


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