c. ARBITRATION NOTICE AND CLASS ACTION WAIVER. EXCEPT FOR CERTAIN TYPES OF DISPUTES DEFINED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BEWTEEN YOU AND US SHALL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
3. Our Services
b. Changes. We strive to continually improve our Services and offerings. You acknowledge that we may change our APIs from time to time, and that it is your responsibility to ensure that your use of our Services is compatible with then-current APIs for the Service. While we endeavor to avoid changes to our APIs that are not backward compatible, in the event that such a change is implemented we will use reasonable efforts to inform you of any material changes with notice whenever possible so that you can adjust your applications.
To access and use certain of our Services, you will need to create a membership account on the Site (an “Account”). You must provide accurate and complete information and keep your Account information updated. You are solely responsible for the activity that occurs on your Account, and for keeping your Account password secure; we will not be liable for losses caused by any unauthorized use of your Account by a third party. You may never use a third party’s account, registration information, or password on the Services without permission. You must notify us immediately of any change in your eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or unauthorized use of your Account. You should never publish, distribute or post login information for your Account. You have the ability to delete your Account by emailing firstname.lastname@example.org.
6. License; Ownership; and Intellectual Property.
i. resell any portion of the Services unless we otherwise specifically agree in a writing signed by our Chief Executive Officer in each instance;
iii. (A) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, except to the limited extent applicable laws specifically prohibit such reverse-engineering restrictions, (B) alter, modify, translate, or otherwise create derivative works of any part of the Services, or (C) copy, rent, lease, license, timeshare, distribute, or otherwise transfer any of the rights that you receive hereunder in any manner or medium; or
iv. use the Services in connection with any call types that would result in us incurring originating access charges, local exchange carrier “DIP” fees or other call types that may be subject to any reverse billing process, application or charge. In the event of a violation of this Section, Nexmo may (i) immediately suspend or terminate the Service, and (ii) charge you an additional $0.05 per minute of use or SMS, as applicable) for all inbound SMS and voice Services from and after the date of any violation, and you shall promptly reimburse any additional amounts NEXMO is required to pay a third party resulting therefrom.
c. Notices and Restrictions. The Services may contain Content specifically provided by us, our partners or our users that is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Services.
e. License to Your Public Website Submissions in Public Forums. The Site may contain certain features that allow you to publicly post comments, text, data, information, and other Content. Participation in these public forum areas of the Site is optional. By submitting any Content that is added, transmitted, submitted, distributed, or posted to the Site or displaying, publishing, or otherwise posting any content on the Site (“Website Submissions”), you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, and sublicensable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit Website Submissions in connection with the Site, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your Account or the Services. You also hereby do and shall grant each user of the Site and/or the Services a non-exclusive, perpetual license to access your Website Submissions through the Site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such Website Submissions as permitted through the functionality of the Site, including after your termination of your Account or the Services. For clarity, the foregoing license grants to us and our users does not affect your other ownership or license rights in your Website Submissions, including the right to grant additional licenses to your Website Submissions, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights. For the avoidance of doubt, you are not required to send us such public Website Submissions and you can always choose not to do so.
g. DMCA Copyright Policy. Our DMCA Policy contains more information for copyright owners or agents who believe that any User Content infringes upon their copyrights.
h. Telephone Numbers. You acknowledge and agree that the use of our Services or any of the telephone numbers that we provide in connection with use of the Services do not grant you any ownership or other rights in the number other than the limited, revocable use rights expressly set forth in this Agreement. You do not have the right to use those numbers indefinitely. You acknowledge and agree that telephone numbers we provision may be reclaimed by us or the applicable supplier from time to time during the Term, and may be re-assigned to other customers after the Term. You may not transfer or assign the numbers we provide to you unless otherwise mutually agreed in writing. Except as otherwise provided in this Agreement with respect to suspension or termination of the Services, we will endeavor to provide you with reasonable notice in the event of any such reclamation.
7. Fees and Payment.
c. Payment Method. Subject to Section 7(a) above, the terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. To change your payment method, go to your Nexmo dashboard.
d. Auto – Reload. Some of the Paid Services may accept recurring period charges as agreed to by you on the Site. By choosing such auto-reload payment plan, you acknowledge that such Services have a recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO YOUR NEXMO DASHBOARD.
e. Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. IF YOU HAVE REQUESTED AUTO-RELOAD PAYMENTS, YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE IN YOUR NEXMO DASHBOARD. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY USE OF PAID SERVICES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE CANCELLED AUTO-RELOAD OR TERMINATED YOUR PAID SERVICES AS SET FORTH ABOVE.
f. Free Trials and Other Promotions. Any free trial or other promotion that provides access to a Paid Service must only be used within the specified time of the trial. You must stop using a Paid Service before the end of the trial period in order to avoid being charged the non-promotional rate for that Paid Service. If you cancel prior to the end of the trial period and are inadvertently charged the non-promotional rate for a Paid Service, please contact us at email@example.com.
g. Changes. You acknowledge that we reserve the right to change our fees from time to time, in our sole discretion. Your continued use of the Services after a price change becomes effective constitutes your agreement to pay the changed amount.
h. Taxes. Unless otherwise provided on the pricing page, all charges and fees for the Services are exclusive of any country, province, federal, state or local taxes, including without limitation, use, sales, value-added, privilege, or other taxes, levies, imports, duties, fees, surcharges, governmental assessments and withholdings (“Taxes”). You will be solely liable for and will pay upon demand all Taxes associated with your access to and use of the Services and shall not deduct any such amounts, or any other withholdings, set-offs or deductions, from amounts you owe us. Without limiting the foregoing, if either you or Nexmo (or its applicable affiliated entity) is compelled to pay any such Taxes or make such deductions or withholdings, then you shall pay Nexmo such additional amounts as are necessary to ensure receipt by Nexmo of the full amounts which Nexmo would have received but for such deductions, withholding and/or the payment of such Taxes. Subject to the foregoing terms, Nexmo shall remain responsible for its own income taxes. Upon our request, you will provide us with all information relevant to your payment or owing of all applicable Taxes.
i. Late Payments and Additional Carrier Charges you Incur. We may charge you for any fees and costs we incur from wireless carriers directly in relation to your use of the Services (e.g. interworking charges that your traffic generates in relation to ported numbers; fees for providing provisioning services in relation to our dedicated short code service; charges arising from calls made in violation of our Acceptable Use Policy). These charges will be deducted from your account the month after we have received an invoice from the applicable carrier or third party; if your account has insufficient credit, you shall pay all such amounts promptly upon written demand. If any payments owed from you are past due, then you shall pay interest thereon at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less, from the date such payment was due until the date paid.
8. Customer Obligations and Responsibilities.
c. Internet Connectivity. You are responsible for providing suitable hardware or communications equipment, and for all other infrastructure necessary to ensure your access to our Services. You are also responsible, at your own expense, for the provision and the regular monitoring of telecommunication and access infrastructure between your operations center and our platform.
b. Feedback. Your feedback, comments and suggestions for improvements to the Site, our solutions and proposed solutions, and other Services (“Feedback”) are welcome. We continually strive to improve our Services and provide you with a remarkable customer experience, and accordingly may seek to incorporate your Feedback into the Services. You acknowledge and agree that all Feedback is and shall be the sole and exclusive property of us and you shall and hereby do assign to us all right, title, and interest in and to all Feedback, including without limitation all worldwide moral and other proprietary and intellectual property rights therein, notwithstanding anything else, and you will execute documents and take such further acts as we may reasonably request to effectuate the foregoing ownership and rights.
10. Limited Warranty and Disclaimer.
a. Representations. Nexmo represents and warrants to you that it has the corporate power and authority to enter into this Agreement and perform its obligations hereunder. We will use commercially reasonable efforts to address faults reported with respect to our proprietary platform that are within our control in a timely manner. We may temporarily suspend the Services in order to undertake maintenance or upgrades. Except in the event of a force majeure, substantial or total outage of the Services or other matters beyond our reasonable control or that we cannot foresee, we will endeavor to give you five (5) days prior notice (on the Site or otherwise) of such suspensions.
b. Assumption of Risk. We have no special relationship with or fiduciary duty to you. You acknowledge and agree that we have no control over and have no duty to take any action regarding and shall have no liability for: (i) acts, faults or omissions of any third party telecommunications systems, networks or operators (including, without limitation, suspension or termination of our connections, or faults in or failures of their apparatus’ or network), (ii) which users gain access to the Services, (iii) what Content you access or receive via the Services, or (iv) how you may be affected by, interpret, rely upon, or use the Content. You release us from all liability for you having acquired or not acquired Content through the Services. We make no representations concerning any Content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, or legality or appropriateness of material or Content contained in or accessed through the Services.
d. No Responsibility for Third Party Information, Acts or Omissions. Similarly, we do not guarantee, warrant or accept responsibility for information provided by, or acts or omissions of, direct and indirect users of our Services. We do not verify or evaluate information or data provided by third parties through the Services, and neither we nor our suppliers make any guarantees or warranties, express or implied, about any of the information offered or provided, including, without limitation, warranties relating to accuracy, availability, or results of use. We also have no control over and we accept no liability in connection with the telephone numbers submitted for verification purposes on our customers’ websites. We prohibit use of our services to impersonate others and for other fraudulent purposes (see our Acceptable Use Policy) but we do not accept responsibility for third party actions. For example, if an end user has stolen, borrows, or has access to a phone and uses the relevant phone number for verification purposes through the Services, we are not responsible for such actions or any actions you may take based upon that information.
e. No Legal Advice. Information provided on our Site in for informational purposes only, is not exhaustive, and shall not be considered legal advice. We advise you to consult with your own independent legal counsel for any legal or regulatory advice.
f. No Emergency Services. Our Services are not intended for and may not be used (i) in connection with 911, E911, or other emergency, public safety or similar services (“Emergency Services”), or (ii) as a replacement for any primary phone services (e.g., landline or mobile phones) used to contact Emergency Services. You acknowledge that we and our suppliers have no responsibility to connect any 911 calls to any Public Safety Answering Point.
g. Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH ABOVE IN THIS SECTION 10, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY (E.G. AS TO LATENCY AND THROUGHPUT), AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WE, AND OUR SUPPLIERS, PARTNERS AND LICENSORS, AND EACH OF OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DO NOT WARRANT (AND HEREBY EXPRESSLY DISCLAM ALL WARRANTIES) THAT: (I) THE SERVICES (OR ANY MOBILE OPERATORS) WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED, (III) ANY CONTENT OR SOFTWARE AVAILABLE ON OR THROUGH THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (IV) THE CONTENT ON THE SITES OR SERVICES (OR ANY THIRD PARTY SITES OR SERVICES LINKED THERETO) IS ACCURATE, ERROR-FREE, OR COMPLETE, OR (V) THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICES IS SOLELY AT YOUR OWN RISK. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONTENT OF, COMMUNICATION BY, OR PRODUCT OR SERVICE ADVERTISED OR OFFERED BY, A THIRD PARTY THROUGH THE SERVICES, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTIES.
11. Suspensions and Terminations.
a. Term and Termination.
b. Effect of Suspension. Upon our suspension of your use of any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by you, notwithstanding the suspension, (ii) you remain liable for all fees, charges and any other obligations you have (or your Account has) incurred through the date of suspension with respect to the Services, and (iii) all of your rights with respect to the Services will be terminated during the period of the suspension.
12. Third Party Sites, Services, and Website Submissions
13. Limitation of Liability
NOTWITHSTANDING ANYTHIG ELSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE OR OUR PARTNERS, SUPPLIERS, LICENSORS, OR CONTENT PROVIDERS, OR ANY OF OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE UNDER ANY CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, LOST PROFITS, REVENUE, INCOME OR BUSINESS, DATA LOSS, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, RIGHTS OR SERVICES (HOWEVER ARISING AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); (II) ANY LIABILITY IN EXCESS OF (IN THE AGGREGATE) 10,000 EUR; OR (III) USE OF OR INABILITY TO USE THE SERVICES IN CONNECTION WITH EMERGENCY SERVICES.
14. Governing Law and Disputes
ARBITRATION CLAUSE AND CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
a. Good Faith efforts to resolve disputes. If either party intends to seek arbitration under this Agreement, the party seeking arbitration must first notify the other party of the dispute in writing at least thirty (30) days in advance of initiating the arbitration. The notice must describe the nature of the claim and the relief being sought. If you and we are unable to resolve our dispute within thirty (30) days, either party may then proceed to file a claim for arbitration in accordance with the following terms.
c. Equitable Relief. Notwithstanding the foregoing, we shall be entitled to enforce our intellectual property rights and seek equitable relief in any court of competent jurisdiction at any time.
d. Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with us.
d. Force Majeure. We shall not be liable for any delays or failures caused by occurrences beyond our reasonable control, including, without limitation, acts of God, natural disasters, flood, fire, accidents, decrees or restraints or other actions of governments, strikes or other labor disturbances, war, sabotage, outages of third party connections, utilities, or telecommunications networks, including, without limitation, carrier-related problems or issues, internet-access issues, shortage or unavailability of supplies, and other mechanical, electronic or communications failures or degradation.
e. Notices. You hereby authorize us to send notices to you relating to this Agreement (e.g., notices of breach and/or suspension and regarding our Services) via a notification message displayed on your account on the Services or via e-mail to the e-mail address you provide to us in your Account or otherwise on the Services, in addition to the other means and methods set forth in this Agreement. It is your responsibility to keep your e-mail address current, and you will be deemed to have received any e-mail sent to the last known e-mail address we have on record for you. Notices that we send to you via e-mail will be deemed effective upon our sending of the e-mail. Notices provided to us under this Agreement shall be sent to the attention of your account manager, with a copy sent to Nexmo’s General Counsel with respect to any legal matters) at:
217 Second Street, 4th Floor
San Francisco, CA 94105
h. Export and restricted users. By using the Services, you represent and warrant that (i) your use of the Services will not violate any embargoes, sanctions, trade restrictions or similar restrictions issued by any applicable governmental entity, (ii) you and your users have not been designated by the U.S. Government or any other government or agency as a prohibited or restricted party under any trade restrictions, export laws or the like (including, without limitation, the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List). You also will not use the Site or Services for any purpose prohibited by applicable law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. You may not use, export, re-export, import, or transfer any technology or data related to the Services except as authorized by both this Agreement and all applicable laws, rules and regulations.
i. Government Terms; Commercial Items. All software, technology, and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display, transfer or disclosure of the Services and accompanying documentation by any agency, department or other entity of any government, shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms herein or in a writing signed by an authorized signatory on behalf of Nexmo Inc. No other rights are granted.
217 Second Street, 4th Floor
San Francisco, CA 94105
Updated: April 17, 2017