Date Last Edited: 4/17/2020
1. Acceptance of Terms
By accessing, browning and/or using this site, you acknowledge and agree that you have read, understood and agree to abide by and comply with these Website Terms and Conditions. ProPhone reserves the right, in its sole discretion, to update or revise these Website Terms and Conditions and to post such updates to this site. Please check these Website Terms and Conditions periodically for changes. Your continued use of this site following the posting of any changes to the Website Terms and Conditions constitutes acceptance of those changes.
2. Use of this Site
ProPhone grants you a limited license to visit, browse, access and use this website in accordance with the Terms and Conditions of this Agreement.
2.1. The Website is offered and available to users who are 13 years of age or older and reside in the United States or any of its territories or possessions. By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all foregoing eligibility requirements. If you do not meet these requirements you must not access the website.
2.2. Except as expressly permitted by this Agreement, you may not download (other than page caching), modify, or alter this website, or any portion of it, except with the express written consent of ProPhone. This license specifically does not include: (1) any resale or commercial use by you of the website; (2) any derivative use of the website or its contents; (3) any use of data mining, robots, or similar data gathering and extraction tools; (4) any reproduction, duplication, copying, selling, reselling, re-posting or any exploitation of the website and its contents for any public or commercial purpose without the express written consent of ProPhone; (5) any use of, visits to, or other action that imposes an unreasonable or disproportionately large load on the website, or otherwise interferes with its proper functioning; and (6) mirroring of any material contained on the website on any other server.
2.3. Unless otherwise specified, the content provided in this site is for your personal and non-commercial use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services obtained from this website.
2.4. You may not attempt to gain unauthorized access to this site and/or any ProPhone computer systems or networks connected to this site, through hacking, password mining or any other means.
2.5. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available to you through this site.
2.6. You will ensure that your use, or the use of any third party through you, of this website and the services on this website does not interfere with, degrade, or adversely affect any ProPhone software, system, network or data or that of any other users of this website. You and anyone obtaining access to this website or this website’s services through you will not post or transmit any harassing, abusive, libelous, illegal, deceptive or otherwise offensive messages or information whatsoever.
2.7. You and anyone obtaining access to this website through you will not use this website or any contents thereof to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts.
2.8. You shall not use, nor permit others to use, this site in a manner or for a purpose contrary to these Website Terms and Conditions.
2.9.1. You are not authorized to use any product or service appearing on this website until and unless you have entered into the applicable user or license agreement pertaining to the product or service with ProPhone. ProPhonereserves the right to decline any request to obtain such products or services, in its sole discretion.
2.9.2. ProPhone prohibits the creation of and you agree that you will not create a user account for anyone other than yourself. You agree to notify us immediately of any unauthorized access to or use of your Registered User account(s) or of any other breach of security.
3. Geographic Restrictions
The owner of the Website is based in the State of Delaware in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
5. Third Party Information and Links
6. Intellectual Property Rights
The Website and its entire contents, features and functionality (including by not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers such material and are protected by the United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
No right, title or interest in or to the Website or any content on the Website is transferred to you, and all rights are not expressly granted are reserved by the Company.
7. Disclaimer of Warranties
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
8. Limitation of Liability
ProPhone assumes no responsibility for errors or omissions in the information which is referenced by or linked to this website. IN NO EVENT SHALL PROPHONE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, (INCLUDING WITHOUT LIMITATION, THOSE RESULTING FROM: (1) RELIANCE ON THE MATERIALS PRESENTED ON THIS SITE, (2) LOSS OF USE, DATA OR PROFITS, (3) DELAYS OR BUSINESS INTERRUPTIONS, (4) AND ANY THEORY OF LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE THIS SITE, WHETHER OR NOT PROPHONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
Upon reasonable request by ProPhone, you agree to defend, indemnify, and hold harmless ProPhone and its employees, contractors, officers, and directors from all liabilities, claims, and expenses (including attorney's fees) that arise from your use or misuse of this website, your non-compliance with these Website Terms and Conditions, or your violation of any third-party rights. ProPhone reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with ProPhone, at your expense, in asserting any available defences.
10. Suggestions submitted by You
If you submit suggestions relating to this site or ProPhone’s business operations, you are, by submitting your suggestion, consenting to ProPhone’s use of your suggestion, and providing ProPhone with the worldwide, royalty-free rights to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your submitted information; and to publish any contact information you approve of in connection with your submitted information. You are also, by submitting the suggestion, warranting and representing that you own or otherwise control all of the rights to any information submitted by you to ProPhone through this site or otherwise, including, without limitation, all the rights necessary for you to provide, post, upload, input or submit your submitted information. No compensation will be paid with respect to the use of your submitted information. ProPhone is under no obligation to post or use any information you may provide and ProPhone may remove any such information at any time in its sole discretion.
11. Violation of Terms and Conditions of Use and Termination
Where feasible (in ProPhone’s sole discretion), ProPhone will advise you of any inappropriate behaviour on your part and any necessary corrective action. However, if this site or any ProPhone services are used in a way in which ProPhone, in its sole discretion, deems to violate these terms and conditions of use, ProPhone or its agent may take any responsible actions they deem appropriate. Such action may include, but is not limited to, temporary or permanent removal of content or filtering of Internet transmissions. ProPhone shall not be liable in any way for any such responsive actions. The above-described actions are not ProPhone exclusive remedies and ProPhone may take any other legal, equitable or technical action it deems appropriate.
ProPhone reserves the right to investigate suspected violations of these terms and conditions of use. You hereby authorize ProPhone to cooperate with (1) law enforcement authorities in the investigation of suspected criminal violations and (2) system administrators at Internet service providers, networks or computing facilities in order to enforce these terms and conditions of use.
Notwithstanding the foregoing, ProPhone reserves the right to revoke your authorization to visit, browse, access and use this website at any time without notice. All restrictions herein shall survive the termination of your right to visit, browse, access and use this website.
12. Governing Law and Jurisdiction
Except for the Arbitration Agreement, which is governed by the Federal Arbitration Act and except as may be prohibited by the law of the State in which you primarily reside, this Agreement is governed and interpreted pursuant to the laws of the State of Delaware, United States of America, notwithstanding any principles of conflicts of law. For all Disputes not subject to arbitration, You agree to submit to the personal and exclusive jurisdiction and venue of the courts located within the county of Wilmington, Delaware.
13. Changes to this Agreement
We reserve the right, at our sole and absolute discretion, to change, modify, add to, supplement or delete any of the terms and conditions of this Agreement at any time, effective with or without prior notice. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the ProPhone website or application. Your continued use of ProPhone following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
If you have any questions regarding this Agreement, please contact us at firstname.lastname@example.org or by mail the below address:
Dwelling Management, Inc. d/b/a Dwelling
199 N Harvard St. Apt N406
Allston, MA 02134
The following describes the terms on which Dwelling Management, Inc. (“ProPhone”) offers you access to this application.
1.1. “Application” means the software application that you can download by contacting ProPhone or through third party application stores (such as Apple iTunes or App Store or Google Play Store) that allows you to use the Services.
1.2. “Plans” mean the mobile phone number plans offered by ProPhone through the Application, entitling users to a toll-free or local number, a certain number of talk minutes and text messages, and other features offered by ProPhone in its sole discretion from time to time, as described on ProPhone's website.
1.3. “Provider” means the underlying third party telephone service provider with whom ProPhone arranges the telephone numbers and service offered to you through the Services.
1.4. “Services” has the meaning set forth in Section 2 below.
2.1. ProPhone will enable users, through the Application, to: (a) access descriptions of available Plans and pay for such Plans through ProPhone's third party payment provider; (b) select a mobile phone number (either toll-free or local) from a list of available phone numbers offered by the Provider; (c) utilize a certain number of talk minutes and text messages, voice mail, caller ID, and other features offered by ProPhone in the applicable Plan, subject to any limitations set by the Provider; and (d) integrate the Application with the user’s address book where such address book is on supported software (the “Services”). The Services are provided subject to this Agreement.
2.2 In order to use the Services, you must:
2.2.a. provide up-to-date, complete and accurate contact information, including your first and last name, your current billing address, your phone number and your valid email address;
2.2.b provide up-to-date, complete and accurate payment information as required by ProPhone or its third party payment processor (which may include a valid PayPal account or credit card information for a credit card that is valid and legally registered to you); and
2.2.c. be at all times in compliance with the terms and conditions of this Agreement and applicable law. You specifically agree that ProPhone may rely on the accuracy of the information provided by you to ProPhone, and that ProPhone will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to ProPhone.
2.3You acknowledge that the relationship between ProPhone and the Provider is that of independent contractors; nothing in this Agreement shall imply that the ProPhone and the Provider are employees or agents of each other. ProPhone expressly disclaims any representation that it has any supervision, control or direction over the Provider, or that it can guarantee anything on behalf of the Provider. ProPhone's sole responsibility under this Agreement is to provide users with the descriptions of Plans, and to use commercially reasonable efforts to arrange the provision of the Services and to fulfil the terms of the applicable purchased Plan through the Provider. ALTHOUGH ProPhone WILL MAKE REASONABLE EFFORTS TO OBTAIN ALL ASPECTS OF THE PLAN FROM PROVIDER AND TO RESOLVE ANY ISSUES WITH THE PROVIDER, ONLY THE APPLICATION IS UNDER ProPhone's DIRECT CONTROL, AND ProPhone IS THEREFORE NOT RESPONSIBLE FOR, AND DOES NOT WARRANT, THE AVAILABILITY, SUITABILITY, QUALITY, TIMELINESS, CONDITION, OR ANY OTHER ASPECT OF THE SERVICES, AND YOU AGREE TO ACCEPT THE SERVICES “AS-IS”. ALL ACTS UNDERTAKEN BY YOU PURSUANT TO THE SERVICES IS AT YOUR OWN RISK, AND ALL GUARANTEES AND REPRESENTATIONS MADE BY PROVIDER ARE THEIR RESPONSIBILITY, NOT THOSE OF ProPhone.
2.4 ProPhone will provide the Plans in accordance with its policies described on its website, which may change from time to time. It is your responsibility to ensure that you are capable of entering into the Plans and that the Plans are appropriate for your needs, and that the Provider and its policies associated with delivering Services in accordance with the Plans are acceptable to you; ProPhone will not be liable for any inability to supply Services in accordance with the Plans, in a timely manner or at all, arising from incorrect information provided by you or any other cause beyond ProPhone's reasonable control (which includes the acts or omissions of you or the Provider).
2.5 The mobile phone number and all other features provided to you through the Services are provided on the understanding that the number and such features are personal to you, and you are solely responsible for any usage made by or through you of such number and features. ProPhone is not responsible or liable in any way for any use of the Services (authorized or unauthorized) by any party accessing the Services using your mobile phone number or your mobile device, and you accept all responsibility for such use of the Services and any consequences resulting from such use of the Services.
2.6 ProPhone reserves the right to change, suspend or discontinue the Services that it offers at any time, including the availability of any feature or content, account access, or any promotion offered by ProPhone. ProPhone may, acting reasonably, also impose limits on the Services and/or terminate or restrict your access to any Application features or parts or all of the Services without liability. Where feasible, ProPhone will provide you with advance notice of such changes, limitations or discontinuance; however, you acknowledge that such notice may not be feasible in all circumstances, and that ProPhone shall have no liability whatsoever for its failure to provide such notice to you.
2.7 In providing the Services, ProPhone is only responsible for the Application. You are solely responsible for the selection, implementation, installation, maintenance and performance of any and all other equipment, software and services used in conjunction with the Services, including without limitation your mobile device and cellular service provider. ProPhone is specifically not responsible for any compatibility issues, communication lags or downtime respecting any such computers, networks, mobile devices, cellular networks, Provider issues, or ISPs.
3.2. You agree that ProPhone may also process and combine portions of your specific data and/or personal information obtained through the Application and Services with other information into an aggregate form, such that the resulting information no longer personally identifies any individual or discloses specific your confidential information. Such resulting information is used to obtain an overall picture of ProPhone's products, services, customer sectors and/or usage patterns, and ProPhone may disclose this anonymized, aggregate information to third parties, in its sole discretion.
3.3. You acknowledge and agree that ProPhone cannot guarantee data integrity, and that it is solely your responsibility to back up (where applicable) any of your information and data that you obtain or use in conjunction with the Services.
3.4. You acknowledge and agree that ProPhone will exercise no control over your use of the Services, and that you are solely responsible for complying with the provisions of this Agreement and all applicable laws respecting your use of the Services. ProPhone reserves the right to revoke service for any abusive conduct or fraudulent use of the Services and to cease the Services, temporarily or permanently, in the event that your use of the Services or the provision of the Services constitutes, in ProPhone's reasonable judgment, a threat to ProPhone's or any third party’s computer systems, networks, files, materials or other data.
3.5. You acknowledge that, due to the nature of the Services, information or data uploaded to the Services may be transmitted and pass through or be hosted on servers residing in jurisdictions other than United States, over which ProPhone has no direct control. By using the Services, you acknowledges that information and data may become, during the period that they are hosted on such servers, subject to the laws of the jurisdiction in which those servers reside and/or to the terms of agreements respecting the hosting of data on such servers. Although ProPhone has made reasonable efforts to verify that its agreements with Provider and other server providers are reasonably protective of your data, you acknowledge that ProPhone has no liability for any acts or omissions of third parties in relation to such servers and the data stored on them. You therefore hereby release ProPhone from all liability for any governmental or third party action taken in such jurisdictions with respect to such data (including your information, data, and any results, such as metrics and analytic reports, based on such data) and/or the servers on which such data resides.
4.1. The ProPhone Standard plan has a threshold of one thousand (1,000) text messages every month which will be considered normal business use. ProPhone Standard plan isn't meant to be used for mass texting, SMS marketing and drip campaigns. In the event that you exceed the threshold, ProPhone in its sole discretion, may assess an additional usage charge of 0.01¢ text message or the current overage rate for every text message in excess of the threshold. Where possible, ProPhone will provide a notice of your usage in excess of the normal use.
4.2. The ProPhone Standard plan has a threshold of one thousand (1,000) minutes every month which will be considered normal business use. In the event that you exceed the threshold, ProPhone in its sole discretion, may assess an additional usage charge of 0.03¢ per minute for every call in excess of the threshold. Where possible, ProPhone will provide a notice of your usage in excess of the normal use.
4.3. An individual ProPhone account can be used on the web and 2 mobile devices. In the event that you exceed the number of devices allowed, ProPhone may may assess an upgrade to a team plan with per-user pricing.
5.1. You agree that:
5.1.a. you will not permit anyone other than your authorized representative or designate to obtain access to the Services through your ProPhone account, and will only use the Services in accordance with this Agreement and applicable law;
5.1.b. you will ensure that any information that is provided to ProPhone pursuant to this Agreement is true, accurate, current and complete;
5.1.c. you will be solely responsible for all activities with respect to the Services undertaken by you;
5.1.d you will not resell or bundle the Services to provide to a third party as part of your own commercial offering;
5.1.e. you represent and warrant that you have the right and the authority to enter into this Agreement, to use the Services;
5.1.f. you will ensure that your use of the Services does not interfere with, degrade, or adversely affect any software, system, network or data used by any person including ProPhone and other users of the Services (including by ensuring that you do not upload any viruses or other harmful code in using the Services or by placing an undue burden upon the CPUs, servers or other resources used to provide the Services);
5.1.g. you will not in any way use the Services to commit or attempt to commit a crime or facilitate the commission of any crime or other illegal or tortious acts, including any infringement of intellectual property rights, any fraudulent activities, any deceptive impersonation, or any activities that violate any third party’s privacy rights;
5.1.h. you will not interfere with or in any manner compromise any of ProPhone’s security measures;
5.1.i. you will not alter, modify, delete, or otherwise interfere with or in any manner compromise any content, data and/or features accessible through the Application or Services, including, without limitation, the content delivery and display functionality of the Application; and
5.1.j. you will cooperate with ProPhone and provide information requested by ProPhone to assist ProPhone and/or relevant authorities in investigating or determining whether there has been a breach of this Agreement or applicable law. Without limiting the foregoing, you agree not to violate any applicable laws, the rights of others, or the operational and security mechanisms of the Services.
5.2. The Services will be subject to the usage policies as provided to you by ProPhone from time to time, including in electronic form by posting on ProPhone's website. Such policies may include limitations on data storage space, and equipment and/or software requirements. You are solely responsible for compliance with such policies.
5.3. You are solely responsible for the selection, implementation, installation, maintenance and performance of any and all devices, equipment, software and services used in conjunction with using the Services (except for ProPhone's computer systems and networks.
5.4. You agree to promptly and accurately report to ProPhone any actual or apparent errors, problems, nonconformities or other difficulties in Services, along with any other information reasonably requested by ProPhone to aid in resolving such errors, problems, nonconformities or other difficulties, and hereby consent to the collection, processing, transmission and disclosure of such information by ProPhone for the purposes of ProPhone's internal use to improve the Services or other ProPhone products or services.
5.6. You specifically acknowledge that neither the Application nor the Services are developed, or licensed for use in any inherently dangerous, time-sensitive or mission critical purposes. You agree that ProPhone shall not be liable for any claims or damages arising from such use if you use the Application or Services for such purposes. You agree to hold ProPhone harmless from any claims for losses, costs, damages, or liability arising out of or in connection with the use of the Application or Services for such purposes.
6. The Application
6.1 ProPhone hereby grants you a personal, non-exclusive, revocable, non-transferable license to use the Application on supported mobile devices, solely for the purposes of using the Services. This license does not imply any rights to future upgrades or updates to, or versions of, any portion of the Application. However, if ProPhone does provide you with any Application upgrades, updates or versions, such updates, upgrades and versions shall be subject to the terms and conditions of this Agreement or such agreement, if any, which accompanies such upgrades, updates or versions. Such Application upgrades, updates and versions may be subject to additional payments.
6.2. You shall not:
6.2.a. copy, reproduce, modify, enhance, improve, alter, reverse engineer, disassemble, deconstruct, translate, decrypt, reverse compile or convert into human readable form the Application or any part thereof;
6.2.b. remove, deface, cover or otherwise obscure any proprietary rights notice or identification on the Application (including without limitation any copyright notice or other notice of intellectual property ownership);
6.2.c. use the Application in any way inconsistent with the use parameters for the Services;
6.2.d. attempt to hack the Software or any communication initiated by the Application or to defeat or overcome any encryption and/or other technical protection methods implemented by ProPhone with respect to the Application and/or data and/or content transmitted, processed or stored by ProPhone or other users of the Services;
6.2.e. use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, packet-sniffer, Trojan-horse routing, trap door, time bomb or any other codes or instructions that are designed to be used to provide a means of surreptitious or unauthorized access to the Services or that are designed to monitor, distort, delete, damage or disassemble the Application or its ability to communicate and perform the Services; or
6.2.f. authorize, permit or otherwise acquiesce in any other party engaging in any of the activities set forth in (a) – (e) above, or attempting to do so.
7.1. Support and maintenance respecting the Application and Services will be in accordance with ProPhone's standard support policies posted on its website, and may be subject to additional fees, as set forth therein. If the support you request is not listed on ProPhone's website, then ProPhone will make reasonable efforts to assist you or direct you to the Provider, in its sole discretion, but shall have no obligation to provide such support.
8. Fees for Services and Taxes
Information on the current fees for users who are registered for the Services can be found in the billing section of Your account. From time to time, we may offer a free trial of the Service, in our sole discretion. A valid credit card is required for paying accounts. If you sign up for a recurring (eg. monthly or annual) paid account, and you don’t cancel that account before the end of any provided trial period, you will be billed starting on the first day following the trial period. If you cancel prior to the processing of your first invoice (i.e. up to and including the last day of your free trial), your access to the Services will terminate, and your credit card will not be charged.
8.1. You agree to pay all applicable fees in connection with the Services, as set forth in ProPhone's standard price list, or as otherwise expressly agreed upon in writing between you and ProPhone.
8.2. Fees are quoted and payable in US dollars, and are based on the Plan purchased and not actual usage. Payment obligations are non-cancellable and fees paid are non-refundable. ProPhone reserves the right to modify such fees, upon reasonable notice, upon sixty (60) days’ written notice to you, and reserves the right to modify its standard price list at any time.
8.3. If you are paying by credit card, you authorize ProPhone or its third party payment processor to automatically charge your credit card for any and all fees incurred by you for Services. If your credit card is rejected for any reason, you will be responsible for any fees and charges associated with such rejection. The foregoing shall not limit ProPhone’s ability to exercise any rights available to it in law or equity respecting the collection of any amounts payable hereunder, and you shall also be responsible for paying for all reasonable fees and costs incurred by ProPhone, including legal fees, in collecting any overdue amounts or enforcing any provision of this Agreement.
8.4. In addition to any other rights and remedies available to ProPhone, ProPhone shall be entitled to charge interest on all outstanding amounts at the lesser of 1.5% per month or the maximum rate permitted by law, such interest commencing as of the due date for such payment.
8.5. You are responsible for, and shall pay all taxes relating to this Agreement, excluding any taxes based on the net income of ProPhone. Unless otherwise indicated, all amounts payable by you under this Agreement are exclusive of any tax, duty, levy, or similar government charge that may be assessed by any jurisdiction, whether based on gross revenue, the delivery, possession or use of the Services or Software, the execution of this Agreement or otherwise. If you are required to withhold any taxes from payments owed under this Agreement, the amount of payment due shall automatically be increased to offset such tax, so that the amount actually remitted to ProPhone shall equal the amount invoiced or otherwise due. you shall promptly furnish ProPhone with copies of all official receipts evidencing payment of taxes due under or in relation to this Agreement to the appropriate taxing authority.
9. Privacy and Confidentiality
9.2. Additionally, by submitting personal information to ProPhone pursuant to this Agreement, including without limitation your name, address, e-mail address and telephone number, you consent to the collection, processing, transmission and disclosure of such information by ProPhone for the purposes of ProPhone's provision of the Services and ProPhone's internal use, and specifically the purposes for which such information has been requested, such as billing requirements, subject to the data collection provisions set forth in Section 3 above. You specifically agree that ProPhone may disclose your name, address, e-mail address and/or other pertinent information to Provider to the limited extent necessary to provide you with the Services. Additionally, by agreeing to this Agreement, you are also providing your express consent to communications by ProPhone (including e-mail and text communications, both marketing and informational) respecting the products and services of ProPhone.
10. Intellectual Property Rights
10.1. You are responsible for complying with all applicable intellectual property laws in your use of the Services, and agree to indemnify, defend and hold ProPhone harmless from any and all claims that arise as a result of your non-compliance with intellectual property laws and/or your infringement of any intellectual property rights.
10.2. You acknowledge that, subject to Section 10 below, the Application is owned by ProPhone, and the underlying service is owned by Provider, who retain all right, title and interest therein, and is protected by Canadian, U.S. and international copyright laws. In addition, other intellectual property laws (including patent laws) and treaties may protect the Application and Services. It is therefore your responsibility to fully comply with such laws in using and handling the Services and Application. Nothing herein shall be construed as constituting a sale of the Application or any portion thereof to you.
10.3. You do not acquire any intellectual property or other proprietary rights under this Agreement, including without limitation any right, title or interest in and to patents, copyrights, trade-marks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the Application, the Services, or any part thereof. Your only rights to the Application, the Services and any part thereof shall be those rights expressly licensed or granted to you under this Agreement. Any rights not expressly granted under this Agreement are reserved.
11. Third Party Software
11.1. The underlying services enabling ProPhone to provide you with the Services are provided by the Provider, and subject to the following terms: https://www.twilio.com/legal/tos. To the extent that such terms relate to the Provider’s parameters in relation to the Services – such as their limitation of liability, indemnity obligations related to the use of the Services, disclaimer of Provider responsibility, and storage of data – such terms will apply to your usage of the Services, and shall be deemed incorporated herein.
12. Disclaimer of Warranties
THE APPLICATION AND SERVICES ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. USE OF THE APPLICATION AND SERVICES IS SOLELY AT YOUR OWN RISK. Some jurisdictions do not allow the exclusion of certain warranties, so the above limitations or exclusions may not apply to you.
13. Limitation of Liability
13.1. The only type of damages that can be recovered against ProPhone arising from or related to this Agreement including without limitation in relation to the provision of the Services, shall be your direct damages, if any, to the extent arising from the gross negligence or wilful misconduct of ProPhone. In no event shall the aggregate liability of ProPhone exceed the amount paid by you for the portion of the Services that gave rise to the claim. ProPhone SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, TIMELINESS OR CONTINUED AVAILABILITY OF THE APPLICATION OR SERVICES. Without limiting the foregoing, your only right with respect to any problems or dissatisfaction with the Services or Application is to cease use of the Services and Application.
13.2. EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ProPhone BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE APPLICATION OR SERVICES, EVEN IF ProPhone HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; IN SUCH JURISDICTIONS, THE ABOVE LIMITATIONS OR EXCLUSIONS SHALL APPLY TO YOU TO THE MAXIMUM EXTENT PERMISSIBLE BY SUCH JURISDICTIONS.
14.11 You agree to indemnify, defend and hold harmless ProPhone, its parents, subsidiaries, affiliates, officers and employees, including costs and attorneys' fees, from any claim or demand made by any third party (including Provider) due to or arising out of: (a) your use or misuse of the Services and/or Application, (b) any breach of this Agreement by you, or (c) your violation of any third-party rights or any applicable laws.
15.1. Either party may terminate this Agreement for any reason upon thirty (30) days’ written notice to the other party. Additionally, ProPhone may terminate this Agreement and/or immediately cease to provide the Services without any liability whatsoever if ProPhone is prevented from providing any portion or all of any Services due to the acts or omissions of you or any third party, or by any law, regulation, requirement or ruling issued in any form whatsoever by judicial or other governmental body. Nothing herein shall be construed to require ProPhone to seek a waiver of any law, rule, regulation, or restriction, or seek judicial review or appeal of any court order. Upon any termination of this Agreement for any reason (whether by you or by ProPhone), you must cease all use of the Services and Application.
15.2. ProPhone reserves the right, in its sole and complete discretion, to revoke or decline your request to use the Services at any time with or without cause, for any reason or no reason. Without limiting other remedies, ProPhone may limit your activity, warn Provider and other affected third parties of your actions, issue a warning, and refuse to provide Services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) ProPhone is unable to verify or authenticate any information you provide; or (c) ProPhone believes that your actions may cause financial loss or legal liability for you, Provider, other third parties or ProPhone.
15.3. ProPhone reserves the right to investigate suspected violations of this Agreement. You hereby authorize ProPhone to cooperate with: (a) law enforcement authorities in the investigation of suspected criminal violations and (b) authorized persons carrying out civil legal processes in order to enforce the terms and conditions of this Agreement.
15.4. The above-described actions are not ProPhone exclusive remedies and ProPhone may take any other legal, equitable or technical action it deems appropriate in the circumstances. ProPhone will not be liable for any damage caused by the termination of this Agreement.
15.5. Termination of this Agreement for any reason shall not affect your payment obligation for any fees accruing hereunder or payments owing prior to the date of termination. Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement, shall do so.
16. Third Party Application Stores
16.1. If you have obtained the Application through a third party application store (the “Third Party App Store”), you are subject to all terms and conditions imposed by such third parties in relation to your download of the Application and/or use of the Services, as applicable. Such Third Party App Store may impose additional restrictions, or may have additional rights, in relation to your use of the Application; it is solely your responsibility to ensure that you are aware of the terms and conditions imposed by the Third Party App Store from which you downloaded the Application, and to comply with such terms and conditions. To the limited extent that this Agreement is less restrictive than the usage rules or terms and conditions for software downloaded from a Third Party App Store, or is in direct conflict with, the Third Party App Store terms of service or like agreement as they relate to your obligations to the Third Party App Store and ProPhone, the usage rules of the Third Party App Store shall apply.
16.2. Although the Application may be made available to you through Third Party App Stores, you acknowledge that this Agreement is concluded solely between you and ProPhone, and not with the Third Party App Store, and the Third Party App Store shall have no responsibility whatsoever respecting the Services or Application (including, without limitation, in relation to the sale, distribution or use thereof, the performance or non-performance thereof, the intellectual property rights therein and/or infringement thereof, or in relation to addressing any claims or liability in relation to the foregoing). Nothing herein shall obligate the Third Party App Store to offer you any warranty respecting the Application or Services, and to the extent that any warranty is applicable, the Third Party App Store’s sole obligation will be to refund you the purchase price of the Application upon your notification of a failure covered by warranty to the Third Party App Store.
16.3. Each Third Party App Store from whom you have downloaded the Application is a third party beneficiary of this Agreement, and, upon your acceptance of the terms and conditions of this Agreement, such Third Party App Store will have the right (and you will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
17. General Provisions
If you have any questions regarding this Agreement, or if you have any questions, complaints, claims or other legal concerns relating to ProPhone or its business, please contact ProPhone at: email@example.com