YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND IT AND THAT, BY USING THE MATERIALS, WEBSITE OR ANY WEBLEY SERVICES, YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE RIGHTS, REMEDIES AND LIABILITIES OF YOU AND WEBLEY.
1. Agreement. This is a legal agreement (the “Agreement”) by and between you (either one or more individuals and/or a single entity) and Webley, a division of Parus Holdings, Inc., (“Webley”) and is entered into upon, and includes, (a) the terms and conditions set forth herein (“Terms”) concerning the Webley Communications Services (“Services”) provided by Webley and any affiliate of Webley, and (b) the service plans described in our marketing materials establishing the applicable rates, features and other terms and conditions of your Service as they presently exist and may be changed by Webley from time to time (the “Service Plan”). This Agreement also pertains to the use of any Webley software, website, services and technology owned or licensed by Webley and provided by Webley to you, including all Service descriptions, software programs, related documentation and technical materials, if any, and updates that may be provided by Webley from time to time. When you execute a sales agreement, order form, work order, statement of work, or other similar or related forms (for purposes of this Agreement each shall be referred to as an “Order Form”), or activate Services or attempt to use any of the Services you accept this Agreement. If you do not agree to the terms of this Agreement, Webley is unwilling to license or provide the Service to you. In such event, you may not use any of the Services and you must destroy any printed or electronic materials provided to you by Webley or copied from the Webley website (“Website”). Use of the Website is governed by this Agreement and the Legal Disclaimer posted on the Website. The individual(s) or legal entity executing an Order Form or opening an Account for Services under this Agreement are referred to, individually and collectively, as “you,” “your,” “Customer,” or “Covered Party” in this Agreement, and Webley who executes the Order Form or provides the Services is referred to as “we,” “us,” “Webley” or “Business Associate” in this Agreement. Each Order Form must incorporate this Agreement by reference, shall govern and control in case of conflict with the Agreement, and in conjunction with this Agreement shall form a separate agreement between the parties that execute the applicable Order Form. Please read this Agreement carefully before executing an Order Form or installing, accessing, or otherwise using the Services. By executing an Order Form or installing, accessing, or otherwise using the Services you agree to be bound by this Agreement. Please maintain a copy of the entire Agreement for your records.
2. Provision of Service.
The Service, Materials (as defined in paragraph 14 below) and use of the Website is protected by various intellectual property laws and treaties. The Service, Materials and use of the Website are licensed and not sold. There are no implied licenses in this Agreement. We may decide not to provide Services to you for any lawful reason. We may alter, expand, or reduce the features of the Services from time to time without notice to you. We may request that you provide us with any information we reasonably require to determine whether you qualify under this Agreement for Services. Services in some areas are managed and provided under contract with Webley by independent affiliates with access to our network. We provide some Services under license from third parties, and some Services may not be available or may operate differently in certain affiliate markets.
3. Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
If you are a Covered Entity (as defined by HIPAA) and provide individually identifiable health information or PHI (each as defined by HIPAA) to us as a Business Associate (as defined by HIPAA), then the Business Associate Agreement set forth at http://webley.com/ legal/customer/hipaa-terms is incorporated by reference herein and made a part of this Agreement.
4. Governmental Agencies.
Use of the Services by the United States Government or other governmental agencies shall be as "restricted computer software" or "limited rights data" as set forth in 48 CFR 52.227-14, or as "commercial computer software" or "commercial computer software documentation" under DFARS 252.227-7202, or under such other similar applicable terms and conditions to prevent the transfer of rights in and to the technology to the government or such agency other than under normal commercial licensing terms and conditions. Contractor/ manufacturer information is available by contacting our Customer Care Center.
5. Export and Import Control Laws and Regulations.
You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Services and any related software. Without limiting the foregoing, you acknowledge that the Services and any related software are or may be an "encryption item" subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. You agree not to export or re-export the Services or any related software in any form in violation of the export laws of the United States or any foreign jurisdiction.
6. Credit Verification.
You must have and keep satisfactory credit to receive and continue to receive Services. We will verify your credit before agreeing to provide Services to you and we may verify your credit at any time while we provide Services to you. Credit verification may include a review of credit reports that we receive from commercially available credit bureaus. We may require guaranty of payment by an individual or entity approved by us. If at any time we determine, in our sole discretion, that payment for Services may not be made when due, we may suspend Services to you without notice and require that you provide payment on account or a guarantee of payment before we resume Services to you, and such other conditions as we may require.
7. Changes to Agreement.
We may change this Agreement at any time without notice to you. Any changes to the Terms are effective when we provide you a notice of such changes. If you use our Services or make any payment to us on or after the effective date of the changes, you accept the changes. If you do not accept the changes, you may terminate Services, subject to the terms of termination set forth in Paragraph 22 below. For all purposes of this Agreement, “use” includes keeping the right to access our network by not terminating Services. You may not modify any of the terms of this Agreement.
8. Use of Services; Availability.
You must be at least 18 years old to subscribe to our Services. We may require you to provide proof of your age and identity. Services may not be used for any unlawful, fraudulent or abusive purpose, and by requesting Services, you agree that you will not use Services in any unlawful, fraudulent or abusive manner. You agree to be responsible for and not to: • use the Service in connection with chain letters, junk email, spamming, repetitive or unlawfully unsolicited messaging of any kind; • create false or forged identities, email addresses or headers, or otherwise attempt to mislead others about the identity or origin of any message; or • transmit through use of the Service any material (i) that violates or solicits the violation of any applicable local, state, national or international law, (ii) that may be deemed by Webley, in our sole discretion, to be libelous or offensive to another individual or organization, (iii) that may infringe upon privacy rights, such as specific addresses, phone numbers, Social Security numbers, credit card numbers, or otherwise; or (iv) that contains viruses, maleware, Trojan horses, worms, time bombs, cancel bots, or any other harmful or deleterious programs or executables; or (v) that may infringe the intellectual property or other rights of third parties, including trademarks, copyrights or rights of publicity.
You acknowledge and agree that we do not control nor monitor information or content submitted, posted, transmitted or made available through your use of the Services (your “Content”) nor guarantee the accuracy, integrity, security or quality of such Content. All Services are restricted to use by you only as the terms of your Service Plan allow; and you may not permit anyone else to use your Service. Certain Service Plans provide for unlimited inbound or outbound calls; if we regard the level of inbound or outbound call usage on any Service to be excessive, abusive or otherwise outside the intended use of the Service (as determined by us in our sole discretion), we may impose a usage surcharge and other restrictions and conditions, or terminate your Account without notice. You may not resell or license Services to anyone. Services are available within the operating range of our network as permitted by your Service Plan. You understand and accept that coverage and quality of Services may be affected by conditions beyond our reasonable control. We do not guarantee that there will be no loss of data, interruptions or delays in the provision or use of Services.
We use commercially reasonable efforts to protect your Account on the secure portion of our Website. We reevaluate our security system from time to time and take whatever measures we believe are reasonably necessary to enhance the privacy of our customer’s personal information. That's why you should maintain a unique password and security code. You yourself must provide your security code each time you visit your Website to access personal information. You alone are solely responsible for (i) taking all necessary and appropriate measures to protect the confidentiality of your password and security code, including changing them periodically and using passwords and security codes that are randomized combinations of letters and numbers rather that common words or simplistic combinations of letters and/or numbers, and (ii) for all uses of the Services in association with your Account whether or not authorized by you including unintended usage.
If required by your Service Plan, we will assign at least one phone number to you (“Number”) for use on and with our network in the use of Services. Your Number may include a toll free phone number, a local phone number, or both. We may change any phone number assigned to you as a Number by giving you prior notice. If we change a Number, we may change an assigned phone number from a toll free to a local phone number or vice-a-versa, or we may issue new local and/or toll free access phone number(s) as your Number and require you to use an assigned local phone number when you can make local, toll free calls. Failure to use a local phone number assigned to your Number when and as required will result in the addition of surcharges to the Per Minute Charges described below. We, and/or our suppliers, own all phone numbers and all rights thereto that are assigned to you. You do not own any access phone numbers assigned as your Number.
10. Activation and Setup Fees.
If you are provided with a Number pursuant to your Service Plan, you may be required to pay a non-refundable phone number activation fee when you activate a new Number or ask us to change a Number. Details on any applicable phone number activation fee are set out in your Service Plan or, alternatively, can be obtained by contacting us. Other activation or setup fees may be charged as set forth in your Service Plan.
You must pay, by each invoice due date, all charges for Services provided to your Account, including all Subscriptions and Numbers associated with your Account that our records indicate no matter who actually uses a Subscription or Number at the time such Services are provided. These charges include, but are not limited to, recurring monthly service charges (“Monthly Service Charges”), applicable per minute local and long-distance toll charges, per call charges, surcharges, optional features you select at an extra cost, and taxes and other regulatory related charges. Local, long distance and international call charges, as applicable, are calculated by (i) multiplying the length of each call (in seconds) and the applicable per minute fee charged for the destination you are calling during that particular call as set forth in your Service Plan (“Per Minute Charges”), or (ii) multiplying the number of calls by the charge per call as set forth in your Service Plan (“Per Call Charge”). All charges will be denominated in U.S. currency unless otherwise provided by your Service Plan.
For Services with Per Minute Charges, you will be invoiced for completed calls made to or from your Number (or through other phone numbers that, at your instruction, are associated with the Number, such as ‘Follow-Me Numbers’) from the time such calls access our system (by dialing the Number) until all access to our system and use of Services made with respect to such call is discontinued. Webley reserves the right to change Per Minute Charges at any time. You will be charged the applicable Per Minute Charge for the destination you are calling that is in effect at the time you place the call. For a current list of Per Minute Charges and optional charges, see your Service Plan, our Website or contact us. If your access Number is called from a pay phone in the United States or Canada, you will be charged a pay phone surcharge per call.
For Services with Per Call Charges, you will be invoiced for calls as provided in your Service Plan.
Invoicing cycles are approximately 30 days in length. Invoicing cycles and dates may change from time to time. Charges for Services are invoiced at the end of the billing cycle. Monthly Service Charges are billed one billing cycle in advance and Per Minute Charges and Per Call Charges are billed at the end of each billing cycle in arrears. You may be charged for Services incurred during a prior billing cycle if you were not charged for those Services previously. Your financial obligations and liabilities for Services are unconditional and are unaffected by whether they are invoiced or not. Invoices, at our sole option, may be sent to you in electronic format via email, as an email attachment or by regular mail or may be made available to you via your password and security code access to the Website.
If you have authorized payment for Services by credit card or by debiting a bank account, no additional notice or consent is required before we charge the credit card or debit the bank account for all amounts (including any late charges, taxes or other regulatory related charges) due to us or billed by us on behalf of a third party as provided by a Service Plan. You must promptly notify us of any change in your invoicing address or of the credit card or bank account used for payment. We reserve the right to require payment by money order, cashier’s check or other secured form of payment. If we take action to obtain payment beyond the invoicing of you for charges for Services, you must pay our costs and expenses of collection, including attorneys’ fees, costs and expenses, the fees of any collection agency and court costs. If we act as an invoicing agent for a third party service provider, payments received are first applied to amounts due and owing to us and any remaining amounts are applied to sums due and owing to the third party service provider. We may charge an additional fee for any check or other negotiable instrument endorsed by you and returned unpaid by a financial institution for any reason or for attempted credit or debit card payments that are declined. For a list of the current fees described in this section, see your Service Plan or contact us.
14. ACH Payments.
If you have authorized payment for Services by Automated Clearing House (“ACH”), you authorize us to debit your savings or checking account on a recurring periodic basis for all applicable fees, which may include, but are not limited to, (i) Monthly Service Charges, (ii) Per Minute Charges, (iii) Per Call Charges, (iv) cancellation charges, (v) other applicable charges and fees, and (vi) any other financial obligations or liabilities for your Service. We will continue to debit your account each month until you cancel your Service as provided by your Agreement. In the event that a debit from your account is refused for any reason, we will charge your account a fee. If a debit from your account is refused or if you revoke this authorization, we will no longer provide the Service(s) to you, unless you provide an alternative method of payment upon terms acceptable to us. We reserve the right at any time to discontinue the availability of this ACH payment option. We will retain the routing number and account information provided by you for future ACH transactions. We will use commercially reasonable efforts to provide timely subscriber notification and confirmation of ACH transactions, as stipulated by National Automated Clearing House Association (NACHA) guidelines. If you select the ACH payment option, you represent and agree to the following: you are 18 years of age or older; you are the authorized account holder of the checking/savings account you provide to us; you understand and agree that your use of our Services is governed by the Terms and that you have read and agreed to the Terms of your Service Plan and Order Form(s).
15. Late Payment Charges.
Payment is past due if we do not receive payment by the due date shown on your invoice. Any payment for Services not made when due accrues late charges until paid at the rate of 1.5% per month or the highest rate allowed by law. Late charges are prorated daily for each day that payment is past due, but are not compounded monthly. Acceptance of late or partial payments (even if marked “paid in full”) does not waive our right to collect all amounts that you owe us.
16. Disputed Charges.
You must raise any dispute that you have about any charges invoiced to you within 15 days of the date of the invoice, and, if you do not, you thereby accept the invoice and waived any disputes or defenses related thereto. You may notify us of any dispute by emailing or calling our Customer Care Center at email@example.com or 877-7-WEBLEY. Calls to our sales or general business offices are not notice of a dispute or basis of any other defense. You do not have to pay amoiunts properly disputed in good faith while we investigate them; however, you must pay amounts not so disputed by the due date. If other disputed invoice procedures are described on the invoice that you receive from us, then you must follow them.
17. Trademark, Copyright and Other Intellectual Property.
All service marks, logos, trade names, trade dress and trademarks of Webley (collectively, the “Marks”) are and shall remain the exclusive property of Webley and nothing in this Agreement shall grant you the license to use the Marks. All intellectual property rights in the Website and any computer software or hardware, or printed or electronically delivered materials you may receive from us (collectively, the “Materials”), including without limitation all audio, images and text linked or otherwise incorporated into the Materials are owned exclusively by Webley (or licensed by Webley) and are protected by United States copyright laws and international copyright treaty provisions. Webley (or its licensors) retain all worldwide rights in the Materials and its Marks, including without limitation ownership and proprietary rights. Except as specifically set forth herein, Webley and its suppliers retain all right, title, and interest, including all intellectual property rights, trade secrets and Confidential Information relating to or embodied in the Services, including without limitation all technology, telephone numbers, web addresses, software, or systems relating to the Services. You may not reverse engineer, decompile or disassemble any computer software provided to you and you may not reproduce or distribute printed copies of the Website or any other user documentation provided to you in any format. The restrictions contained herein apply equally to any modifications, changes or updates that may be periodically provided to you by Webley. Any violation of the terms set forth herein is expressly prohibited by law and may result in severe civil and criminal penalties.
This Agreement will continue so long as the Services are installed, accessed, or otherwise used (your “Account”). Each Order Form may specify its duration (each an “Order Form Term”) and/or each Order Form may further specify one or more subscriptions purchased for end users (“Subscribers” or a “Subscriber”) under the Order Form (each a “Subscription”). Each Subscription will specify its duration (each a “Subscription Term”). All Subscriptions begin as set forth in the Order Form or if not addressed therein, the earlier of: (a) thirty (30) days from provisioning of your system access; or (b) go live of the applicable Subscription Service. Your Account with us may contain multiple Order Forms and Multiple Subscriptions. For the avoidance of doubt, you agree to pay for all usage of Services prior to the start of the Subscription Term on a pay as you go basis.
All Order Forms and Subscriptions shall automatically renew for monthly periods unless the Order Form and related Subscriptions are for an initial Subscription Term of one year or more, in which case such Subscription Terms shall automatically renew for yearly periods subject to either party terminating the specific Order Form or Subscription in writing at least one hundred and twenty (120) days prior to the expiration of the applicable Order Form or Subscription, which termination will be effective at the expiration of the applicable Order Form or Subscription.
20. Termination of Order Form or Subscription For Cause.
Any Order Form or Subscription may be terminated immediately by the non breaching party upon a material breach by the other party of a material provision of this Agreement, the relevant Order Form or the relevant Subscription, and such breach must be cured within ten (10) days after written notice, if the breach is a payment breach, or sixty (60) days after written notice for any other material breach.
21. Effect of Termination.
The termination of any Order Form or any Subscription shall not otherwise affect the Term of this Agreement or any other Order Form or Subscription. If you terminate any Order Form or Subscription for cause: (a) you will pay for all Services rendered up to the date of termination; (b) we will reimburse you for any amounts prepaid by you for Services not rendered; and (c) you shall be relieved of any future payments due under such Order Form or Subscription. Otherwise, upon any termination of this Agreement, any Order Form or any Subscription, as applicable, you agree to pay for: (a) all Services rendered up to the date of termination; and (b) the lesser of (i) any early termination fee, or (ii) any future amounts due under this Agreement, the Order Form or the Subscription for the entire Order Form Term or Subscription Term, as applicable, including the current renewal thereof, if applicable. The parties agree and acknowledge that we have made pricing concessions based on the provisions agreed to herein and that any shortfall payments due are a fair approximation of the damages that would be caused to us and do not constitute a penalty.
22. How You Can Terminate.
You may terminate Services at any time by giving us notice either in writing addressed, U.S. postage prepaid, to Customer Service Department, 2603 Camino Ramon, 2nd Floor, San Ramon, CA 94583-9126, by faxing the Customer Service Department at 888-785-3894, or by calling the Customer Service Department at 877-7-WEBLEY (877-793-2539). All written notices of termination (whether by mail or fax) must contain in legible form your name, access Number or Account number, as applicable, and the date of the notice. No termination notices may be sent by email and any such attempted notice shall be null and void. We may terminate Services at any time, with or without notice, as permitted by this Agreement. We may suspend or deactivate any Number or Service Account before you receive notice of termination (if we give any notice) without liability to you. Termination by either you or us may be with or without cause as permitted by this Agreement. We may terminate or suspend Services to you without liability (i) if you breach any provision of this Agreement or (ii) if you fail to pay any amounts due us. If you promptly cure the breach, we may, but are not obligated to, reactivate Services to you. If we choose to reactivate Services to you, we may impose a reactivation fee and such restrictions and conditions as we may determine. You must pay all charges for Services provided before termination of a Number or Service Account. If Services are terminated before the end of your current billing cycle, the Monthly Service Charge is not prorated to the date of termination. Your Service Plan may provide for early termination fees in certain cases where your term is one year or longer.
We may initially require a deposit from you in order to establish, or thereafter may require you to establish a deposit as a condition to the continued provision of Services by us. If we require a deposit, we will hold the deposit as a partial guarantee of payment for Services. We may change the deposit amount at any time to reflect revised estimated monthly charges based upon your usage and other fees and charges. A deposit may not be used to pay any invoice (unless it is used, at our option, to pay a final invoice) or delay payment. We will not pay any interest on the deposit unless required to do so by law. We may mix deposits with our other funds as permitted by applicable law. If Services are terminated for any reason, we may, without notice to you, apply your deposit toward payment of outstanding charges and any excess deposit will be returned to you at your last known address within 75 days after termination of Services. If the U.S. Postal Service cannot deliver the deposit money to you and returns it to us, we will hold it for you for one year from the date of return and we may charge a monthly servicing fee against the deposit balance. Any money held during this one-year period will not accrue interest for your benefit. You will forfeit any remaining portion of the deposit after the one-year period.
24. Taxes and Regulatory Related Charges.
We may invoice you for taxes, regulatory related obligations and other charges levied by federal, state or local authorities, or foreign governments on Services, or mandated to be paid in proportion to receipts from Services provided, (except for taxes based on our net income), if we pay these taxes or other regulatory related charges. Taxes, regulatory related charges and charges not directly paid by us are not invoiced to you, but payment to the taxing or levying authority of any applicable taxes, regulatory related charges and charges due from you are your responsibility. If you claim any tax exemption, you must provide us with a valid tax-exempt document. Any tax exemption applies only from the date we receive a valid tax-exempt document.
25. Interruption of Services.
We may give credit for a continuous interruption of Services for more than 24 hours on a case-by-case basis. Interruptions caused by your negligent or willful actions, or by failure of equipment or service not provided by us, or by causes beyond our reasonable control, do not qualify for credit. We may provide you with an airtime credit of one minute for a call that is disconnected because of transmission limitations caused by conditions beyond our reasonable control and that you redial within one minute of disconnection. You must notify our Customer Call Center by email or phone within 24 hours of the disconnection to request credit at firstname.lastname@example.org or 877-7-WEBLEY.
26. Certain Pay-Per-Call Services.
We reserve the right to refuse the completion of calls from your Number or use of your Service to 900, 976 and similar numbers used for pay-per-call services.
27. International Calling.
Your Service Plan may limit or prohibit international destinations that you can call or from which you can receive calls. You should see our Website, email or call our Customer Care Center for information about international destinations that cannot be called using the Services and for applicable Per Minute Charges or Per Call Charges for destinations that can be called using the Services.
THE SERVICES, MATERIALS AND USE OF THE WEBSITE ARE PROVIDED “AS IS.” WEBLEY MAKES NO WARRANTY TO YOU OR ANY OTHER PERSON OR ENTITY, WHETHER EXPRESS OR IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, TITLE, NONINFRINGEMENT, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR A PARTICULAR PURPOSE AS TO THE SERVICES, MATERIALS, WEBSITE AND THE USE THEREOF UNDER THIS AGREEMENT OR OTHERWISE. WEBLEY DOES NOT WARRANT THAT THE SERVICES, MATERIALS, WEBSITE AND THE USE THEREOF ARE COMPLETELY ERROR FREE OR WILL OPERATE WITHOUT PACKET LOSS OR INTERRUPTION, NOR DOES WEBLEY WARRANT ANY CONNECTION TO OR ANY TRANSMISSION OVER THE INTERNET OR OTHER TELECOMMUNICATIONS NETWORK. WEBLEY MAKES NO REPRESENTATION OR WARRANTY EXPRESS OR IMPLIED AS TO THE QUALITY OF A CALL, OR AS TO ANY OTHER MATTER, ALL SUCH WARRANTIES HEREBY BEING EXPRESSLY EXCLUDED AND DISCLAIMED. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICES, MATERIALS, WEBSITE AND THE USE THEREOF. WEBLEY DOES NOT WARRANT THAT THE SERVICES, MATERIALS, WEBSITE AND THE USE THEREOF ARE FREE FROM VIRUSES, MALWARE, WORMS, TROJAN HORSES OR OTHER CODE THAT IS CONTAMINATING OR DESTRUCTIVE BY NATURE AND YOU ARE RESPONSIBLE FOR IMPLEMENTING AND MAINTAINING SUFFICIENT PROCEDURES TO SATISFY YOUR PARTICULAR REQUIREMENTS FOR ACCURACY OF DATA INPUT AND OUTPUT AS WELL AS PROTECTION FROM SUCH VIRUSES, MALWARE, WORMS, TROJAN HORSES OR OTHER CODE THAT MAY CONTAMINATE OR DESTROY YOUR SYSTEM OR DATA. WE DO NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTY OF ANY KIND ON OUR BEHALF AND YOU MAY NOT RELY ON ANY STATEMENT OF WARRANTY OR REPRESENTATION BY ANY PERSON AS A WARRANTY OR REPRESENTATION BY WEBLEY. THIS PARAGRAPH SURVIVES TERMINATION OF THIS AGREEMENT.
29. Other Sites.
Any links available on the Website that enable you to leave the Website are not under the control of Webley and Webley is not responsible for the content of any linked site or any link contained in a linked site, or any changes or updates to such sites. It is up to you to take precautions to ensure that whatever you select for your use is free of viruses, malware worms, Trojan horses and other items of a destructive or contaminating nature. Additionally, other marks that appear on the Website may be marks of third parties that are not affiliated with Webley. Webley and its affiliates do not control the content of third party websites.
30. Limitation of Liability.
In no event shall Webley or its suppliers be responsible for any consequential, special, punitive or other damages, including, without limitation, lost revenue or profits, in any way arising out of or related to the Services or this Agreement, even if Webley has been advised of the possibility of such damages. In any and all events Webley’s and its suppliers’ total, aggregate liability to you for any matter arising out of the Services or this Agreement shall not exceed the fees actually received by Webley from you in the immediately preceding twelve (12) month period.
We each acknowledge that each of us may share with the other certain confidential information, trade secrets, and other proprietary information, including, but not limited to, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, technology, software source documents and formulae related to the current, future and proposed products, documents and services of such party, and further includes, without limitation, any information of a party concerning research, experimental work, development, design details and specifications, engineering information, financial information, procurement requirements, purchasing, manufacturing, licensing, sales or service activities, customer and prospect or pipeline lists, business forecasts, sales, merchandising, and marketing plans and information, clearly identified as confidential (or in the case of intangible disclosures, reasonably understood by the disclosing party to be confidential) when delivered to the other party (the “Confidential Information”). The receiving party shall not disclose Confidential Information of the disclosing party to any third party or use it for any purpose unrelated to, and only during the terms of, this Agreement. Each of us agrees to protect any such Confidential Information by using the same degree of care that the party uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information. Notwithstanding anything to the contrary herein, we may use your name and trademarks in a list of customers, or in connection with written sales or promotional materials. This Paragraph imposes no obligation upon either party with respect to Confidential Information which (a) was in such party’s possession before receipt from the other party, (b) is or becomes a matter of public knowledge through no fault of the receiving party, (c) is rightfully received by the receiving party from a third party without a duty of confidentiality, (d) is independently developed by the receiving party, (e) is disclosed under operation of law, or (f) is disclosed by the receiving party with the disclosing party’s duly written prior approval. Each party hereby acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to the disclosing party that may be difficult to ascertain. Accordingly, each party agrees that the disclosing party will have the right to seek immediate injunctive relief (including a temporary restraining order) to enforce obligations under this Agreement in addition to any other rights and remedies it might have, to the extent permitted by law.
You agree to indemnify, hold harmless, and defend us, our directors, officers, affiliates, agents, against any and all claims, suits and actions brought against us, and all resulting liabilities, damages, losses, and costs awarded by a court or included as part of a final settlement, as well as reasonable litigation-related costs and expenses (including, but not limited to, reasonable attorneys’ fees and disbursements), arising from or relating to (a) the marketing, promotion or use of the Service in any manner which violates any applicable law, rule, or regulation or (b) claims brought against us by your customers, clients or patients. We shall (i) promptly notify you in writing of any such claim, (ii) reasonably cooperate with you in connection with, and tender sole control over, the defense or settlement of the claim, and (ii) have the right to provide for its separate defense at our own expense.
You agree to submit to binding arbitration any and all differences or disputes related to or arising out of this Agreement or the Services that may be brought by either you or us against the other. This arbitration will be conducted in accordance with the rules of the American Arbitration Association. Any arbitration shall be initiated in the Chicago office of the American Arbitration Association. Any award entered in any such arbitration shall be final and binding, and may be entered and enforced in any court of competent jurisdiction. Each party to the dispute will share equally the fees and expenses of the arbitrator and such arbitration.
This Agreement shall be governed and construed in accordance with the laws of the State of Illinois without regard to conflicts of law principles. You agree, in any legal action or proceeding between you and Webley for any purpose concerning this Agreement, to submit to the exclusive jurisdiction of Illinois and you expressly waive all defenses to jurisdiction and agree to service of process upon your person anywhere in the world. Any cause of action or claim you may have with respect to the Service, Materials or the Website must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
35. Waiver of Class Actions.
You agree that all claims between you and Webley related to this Agreement will be resolved individually through arbitration and that you will not consolidate or seek judicial treatment for any claim, unless previously agreed to in writing by both you and us. This waiver applies to this Agreement as amended or modified.
You may obtain our current address for written notice or change your current postal or email address for written notice by emailing or calling our Customer Care Center. Written notice to you will be sent to your last known address or email address in our invoicing records. Written notice is deemed delivered 3 days after deposit in the U.S. mail, postage prepaid, and properly addressed, or upon returned receipt if sent “overnight delivery” by a nationally recognized courier, or upon the sending of an electronic mail message to your email address then on file with us. Unless otherwise required by this Agreement or Applicable Laws (as defined below), (a) you may notify us by emailing or calling our Customer Care Center; and (b) we may notify you by emailing you, by leaving you a message on the voicemail account, if any, associated with your Number or Service, or by sending you a letter, postage prepaid, by regular U.S. mail or by “overnight delivery” by a nationally recognized courier to your last known address. Either you or we may change notice addresses by giving notice as provided in this section.
If either you or we do not enforce any right or remedy available under this Agreement, that failure is not a waiver of the right or remedy in any such case or for any other similar or dissimilar breach or failure by the other party. Our waiver of any requirement in any one instance is not a general waiver of that requirement and does not amend this Agreement. Neither the course of conduct between you and us, nor trade practice, will act to modify any provision of this Agreement. Neither party shall have any liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slowdown or any other condition beyond the control of such party. If any part of this Agreement is held invalid or unenforceable, then such part of this Agreement shall be interpreted consistent with Applicable Laws as nearly as possible to reflect the original intentions of the parties and the rest of this Agreement shall remain in full force and effect. Paragraph headings are for descriptive purposes only and should not be used to interpret this Agreement. You may not assign this Agreement to any other person or entity without our prior written approval. This Agreement (including any links to our Website, referenced documents and attachments) makes up the entire agreement between you and us and replaces all prior written or spoken agreements, representations, promises or understandings between you and us. The provisions of this Agreement that are contemplated to be enforceable after the termination of this Agreement survive termination of this Agreement, including, without limitation, Paragraphs 1-5, 9, 11, 13-17, 21-25, and 27-36. This Agreement is subject to any applicable federal or state laws (collectively, “Applicable Laws”). If there is a conflict, Applicable Laws control over the Service Plan and the Terms, and the Service Plan controls over the Terms. Changes to Applicable Laws are effective as provided in the Applicable Laws.