Terms of Service
THIS AGREEMENT PROVIDES FOR THE SETTLEMENT OF DISPUTES BY ARBITRATION INSTEAD OF JURY TRIALS.
These Terms of Service for Responsive IP (this “Agreement”) is a legal agreement between you (“The Customer” or “you”) and Responsive IP regarding the Responsive IP Services (“Services”). The Services include the systems (including hardware, software, and equipment) by which Responsive IP provides VoIP services to Customers and other users. Your use of the Services constitutes your agreement to the terms of this Agreement and Responsive IP’s Acceptable Use Policy, and you acknowledge that Responsive IP would not agree to provide the Services without that assent.
You may only receive the Services if you are a Service subscriber in good standing with a valid, authorized payment method on file with Responsive IP. You understand that you must obtain your own Internet connection in order to use the Services. We do not control your Internet access or the quality of your Internet connection. WE ARE NOT RESPONSIBLE FOR ANY THIRD-PARTY PRODUCTS OR SERVICES, OR FOR PROBLEMS IN THE SERVICES CAUSED BY YOUR INTERNET CONNECTION OR THIRD-PARTY PRODUCTS OR SERVICES.
Additional Responsive IP Services can be purchased by users you designate as administrators through the Responsive IP user interface or portal or by calling Responsive IP Customer Support. You hereby authorize those users with administrative privileges to (i) add these Services to your Responsive IP account and (ii) commit you to pay for these Services in accordance with the terms of your order and this Agreement. You further authorize Responsive IP to obtain payment of your then-current statement balance from you each month from your credit card account.
You may designate one or more users to be an account administrator (“Administrator”) with full administrative control of your account from the Responsive IP user interface or portal. Upon creation of your account, the individual assigned to be the Administrator is the individual who entered into an agreement with Responsive IP through our online sign-up process or, if the agreement was not entered into online, the individual whose name is identified on your order form. The Administrator: (i) can make any changes to the account (e.g., service additions, service deletions, assignment of users, account cancellations, updates to credit cards, etc.); and (ii) is the authorized individual on your account with respect to porting of your telephone numbers to a carrier other than Responsive IP. The Administrator may assign one or more additional administrators to the account and may re-assign the “Administrator” status to another user. In the event that you wish to re-assign the Administrator designation on your account and the Administrator is unable to make the change, you must submit an email from the Administrator’s email address that is on file with Responsive IP or otherwise provide a written request via facsimile, on your letterhead and executed by an officer or owner of the company that you represent.
If you want Responsive IP to provide information on your account relating to a customer service record or call log details (other than through any available user interface), such a request may be made by the Administrator, but the information provided by Responsive IP will only be transmitted to the email address on file for the Administrator. The Administrator may designate one or more “Company Contacts” for the account. The Company Contact is the individual(s) who will receive all messages from Responsive IP concerning matters of general relevance to the account (notices of updates to the account, billing notices, maintenance alerts, etc.); such notices are typically provided through email. Responsive IP will initially assign the Administrator to be the Company Contact. A Company Contact may or may not be the Administrator of the account.
Responsive IP may adjust the components comprising a specific plan at any time. Responsive IP reserves the right, from time to time, to change the terms and modify service plans and features, provided that such changes are consistently applied in a manner and degree to similarly situated customers. Responsive IP will use commercially reasonable efforts to provide thirty days’ notice of such proposed changes. Responsive IP also reserves the right to increase pricing when there are government-sourced or regulated changes applicable to VoIP providers, which increase the cost of VoIP services, and to include/exclude certain international calling destinations at any time based on its commercial or legal judgment. All pricing is exclusive of taxes, fees, and other government charges.
Service Pricing and Changes
The customer agrees to pay Responsive IP the rates, fees, and other service charges agreed to in the parties’ Service Agreement, or as otherwise posted in your user portal, in accordance with the payment and billing terms more fully described below. In addition to all applicable usage-based (e.g., per-minute, per-call, per-text, per-number, and per-port charges), recurring, and one-time charges, Customer agrees to pay all applicable customs duties, sales, use, import or export, value-added, excise, federal, state, local, public utility, universal service or other similar taxes and fees.
Unless the parties have a separately executed agreement to the contrary, you understand and agree that Responsive IP can prospectively change the rates and charges for its Services, and you agree to pay the then-applicable rates and charges for the Services you use in accordance with this Agreement. Responsive IP will publish applicable rates and rate changes via your portal, by emailing rate decks to your Company Contact email address, or through other commercially reasonable means. Responsive IP will use commercially reasonable means to provide you with prior notice of any rate changes, but Customer acknowledges and agrees that it is responsible to review the then-applicable rates before using any Responsive IP Service and to pay all then-applicable fees and charges based on your usage of the Services.
Responsive IP reserves the right to change any of the other non-price terms of these Terms of Service, but only on a prospective basis after providing notice to you. Responsive IP will provide Customer with thirty days advance notice of any such changes that would have a materially adverse effect on you and post the revised Terms on its website. Changes will become effective on the next business day following the 30-day notice period, and unless Customer has objected to any changes by delivering written notice to Responsive IP, Customer agrees to be bound by any changes after such 30-day notice period. The customer is solely responsible for regularly checking the Responsive IP website and keeping its contact information current.
Billing and Payment
Responsive IP is principally a prepaid service. Customer hereby authorizes Responsive IP to apply all applicable charges and fees incurred under this Agreement to the credit card Customer associates with this Agreement. Prepaid service requires the Customer’s account to always have sufficient funds. All Services will be subject to immediate suspension without further notice at any time the account does not have sufficient funds.
At the inception of the Service, the Customer agrees to deposit a fixed amount into its Responsive IP account to establish its initial prepaid value. Thereafter, as Customer’s use of the Services depletes its initial value through applicable Fees to the low-balance threshold (the default of which is $100.00), Customer agrees that its credit card may be charged to restore its account value above the low-balance threshold to a top-up value that Customer can define in the user interface.
Except for usage-based fees, all fees are due in advance on the first day of each billing period. Fees may include monthly recurring charges (“Service Fees”), and other non-recurring charges including, but not limited to, activation fees, porting fees, early termination fees, regulatory compliance fees (“Regulatory Recovery Fees”), and government-mandated pass-through fees such as, but not limited to, Universal Service Fund fees (“USF”) and e911 fees (“Fees”). All usage-based charges, Fees, and any other non-recurring charges are due and payable on the first day of each billing period following the month they were incurred. The customer agrees to pay for all equipment and set-up fees at the time Services are ordered. All payments, including payments paid in advance (your Responsive IP Balance), are non-refundable.
Failure to pay in full will result in immediate account suspension and Responsive IP shall have no liability for such suspension. Responsive IP will assess an additional 1.5% per month (or the highest amount allowed by law, whichever is higher) late charge if your payment is more than thirty (30) days past due. The customer is responsible and liable for any and all fees, including reasonable attorney and collection fees and costs, that Responsive IP may incur in its efforts to collect any outstanding balances. The customer also agrees to pay any outstanding balances if you cancel the Services. Customer further understands and agrees that Responsive IP and its agents may use automated telephone dialing equipment or an artificial or prerecorded voice message to contact Customer in connection with this Agreement or Responsive IP’s Services, and that Responsive IP may contact Customer at any telephone number Customer provides to Responsive IP, even if that number is a cellular telephone number.
During any period of suspension for non-payment, Services will be unavailable until the account balance is paid in full. If Services are terminated for non-payment or otherwise, Customer understands and agrees that no Services will be provided, and its assigned telephone numbers will be reclaimed immediately and no longer available to Customer.
Credit Balances: Any credit balances associated with your account shall become inactive and unavailable for use if there has been no activity on your account for 180 days. “Activity” refers to any transactions or usage of our services by you using the credited amount. If your credit balance becomes inactive, Responsive IP reserves the right to forfeit the unused credits, and you shall have no claim, right, or interest in such forfeited credits. You are responsible for ensuring that your account remains active by regularly engaging in relevant transactions and activities.
Contract Termination for Convenience
In addition to Responsive IP’s right to suspend or terminate Service in accordance with the terms of this Agreement and Responsive IP’s Acceptable Use Policy, either party may terminate this Agreement at any time without penalty, provided that it sends written notice of such termination to the other party at least 30 days prior to the effective date of such termination.
Billing Calculations and Increments
Responsive IP calculates billable call duration from when we receive the initial “INVITE” packet to when we receive the final “BYE” packet. All usage is billed in the time increments identified in your user portal and in accordance with the type of traffic at issue, with usage measurement beginning upon the initiation of the first “INVITE” packet.
If, in any monthly billing cycle, 20% or more of Customer’s completed calls to Responsive IP’s Toll-Free Service are equal to or less than 60 seconds in length, or if more than 20% of Customer’s total Toll-Free Service call attempts do not complete, then Customer agrees to pay Responsive IP a surcharge as prescribed in the Customer portal for each such call that exceeds the applicable allowance threshold, in addition to all other charges and fees otherwise due for such calls.
The customer understands and agrees that it is solely responsible for assigning a valid, 10-digit caller identification number associated with each outbound call in connection with its use of the Services. Responsive IP reserves the right, and Customer agrees to pay Responsive IP, a surcharge as prescribed in the Customer portal for each such outbound call made by Customer for which it has failed to assign a valid, 10-digit caller identification number.
Actual and Fraudulent Use
Customers shall be responsible for the costs incurred by all inbound and outbound call traffic regardless of their source, authorization, or scope (“Actual Use”). Should Customer’s equipment be breached by an unauthorized third party, Customer shall be responsible for all costs, fees, and other charges associated with the unauthorized traffic.
The customer agrees to bear the risk of loss and assume all liability arising from prohibited, unauthorized, or fraudulent usage of Services under your Responsive IP account. Any such prohibited, unauthorized, or fraudulent use by you is a material breach of the Agreement by Customer. The customer is solely responsible for securing all credentials used to access the Services, including those used by telephones or softphones and those used by end-users or administrators, as well as the media access control (MAC) address of telephones used by you or your End Users. You acknowledge that placing telephones on a publicly accessible IP address or a publicly accessible network will subject you and your End Users to a higher level of risk for fraudulent activity. Customer shall not be excused from paying for Services or any portion thereof on the basis that fraudulent usage or calls occurred. If we discover fraudulent usage, you consent to Responsive IP taking actions it deems reasonably necessary (including blocking access to particular calling numbers or geographic areas), without notice to you, to prevent such usage from taking place. Customer acknowledges and agrees that it is solely responsible for all charges incurred in connection with the use of the Services associated with Customer’s account, whether authorized, unauthorized, fraudulent, or otherwise, and that Responsive IP: (a) has no duty to investigate the authenticity of usage charged to Customer’s account, (b) has no duty to take action to prevent fraudulent usage from occurring in connection with your account, and (c) is not liable for any fraudulent usage billed to Customer’s account.
Customer shall be fully liable and responsible for any and all extraneous third-party costs directly incurred by its use of the Responsive IP Network. Such charges may include tariffs, toll-free access charges, payphone surcharges, charges associated with free conference call services, chat lines, premium rate numbers (such as 1-900 numbers), SMS campaign violation fees, SMS S.H.A.F.T. Violations, etc. Upon receiving any third-party costs, Responsive IP shall provide the customer notice that a third-party cost has been incurred, along with any supporting evidence validating the pass-through charge.
Responsive IP shall make all reasonable efforts to mitigate the Customer’s costs using customary negotiations and business practices. Once Responsive IP concludes its mitigation efforts, Responsive IP may immediately recover the pass-through cost by charging the payment method on file. In cases where the customer was not violating these Terms of Service and was otherwise in good standing, Responsive IP may make flexible interest-free payment methods available.
Restricted SMS & MMS Content
The customer shall not send, or permit its users to send, SMS or MMS messages pertaining to the following categories:
- High-risk financial services (such as payday loans, Short term high-interest loans, third-party auto loans, third-party mortgage loans, student loans, cryptocurrency, etc.).
- Debt collection or forgiveness (such as third-party debt collection, debt consolidation, debt reduction, credit repair programs, etc)
- Third-party lead generation services (such as Companies that buy, sell, or share consumer information.)
- “Get rich quick” schemes (such as work-from-home programs, risk investment opportunities, pyramid schemes, etc)
- Illegal substances (such as Cannabis, CBD, prescription drugs, etc)
- Gambling (such as casino apps, gambling websites, etc)
- “S.H.A.F.T” Messages (messages that pertain to Sex, Hate, Alcohol, Firearms, or Tobacco
The customer understands that this provision is a material term of this agreement, and violation of this provision may result in a $10,000 per message fine.
Suggestions and Custom Development
If Customer makes any suggestions regarding improvements, changes, or new features or functions relating to the Responsive IP Services (collectively, “Suggestions”), Customer irrevocably assigns to Responsive IP all rights, titles, and interest in and to the Suggestions.
If Customer chooses to engage Responsive IP to develop or create any improvements, changes, or new features or functions relating to the Responsive IP Services or how Customer uses or integrates the Responsive IP Services in Customer’s environment (“Custom Work Product”), Customer may do so in writing and, if Responsive IP accepts in writing, Customer agrees to pay Responsive IP for the time reasonably incurred in developing that Custom Work Product at Responsive IP’s hourly development rate of $250/hour. All rights, title, and interest in and to (a) the Custom Work Product and (b) all works, inventions, and other subject matter incorporating, based on, or derived from any Custom Work Product, including all customizations, enhancements, improvements, and other modifications thereof, in each case by whomsoever made and including all intellectual property rights therein, are and will remain with Responsive IP.
The Responsive IP Network is able to deliver the address, name, and phone number of your office to Emergency Services upon dialing 911. Enhanced 911, or E911, service is disabled by default and must be enabled by Responsive IP Support. The customer agrees to provide thirty (30) days’ notice to Responsive IP if it intends to use the Responsive IP Network for 911.
Emergency Services – 911 Dialing
Non-Availability of Traditional 911 or E911 Dialing Service.
At Responsive IP, the 911 dialing service operates differently than traditional 911 service. You agree to inform any business invitees, guests, and other third persons who may be present at the physical location where you utilize the Services of the non-availability of traditional 911 or E911 dialing from your Responsive IP Services and equipment. The physical location where you utilize the Service must be the actual physical street address where your calling equipment—and thus where you would expect emergency personnel to come if you called 911—not a P.O. box, mail drop, or similar address.
Description of 911-Type Dialing Capabilities – Activation Required.
Responsive IP offers 911-type dialing service in certain areas within the U.S. (but may not offer such service in certain areas of the U.S. or non-U.S. locations) that differs from traditional 911 services. When you dial 911, your call is routed from the Responsive IP network to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the address that you listed at the time of activation. If you make changes to your 911 address using the Responsive IP online user interface, your call may be routed to a different PSAP or local emergency service personnel, who may ask you to provide your location and other information.
Calls dialed by handset extensions included in your account with Responsive IP will be routed from the Responsive IP network to the PSAP or local emergency service personnel designated for the address that you listed at the time of activation. In the event that your equipment is used in multiple locations, or in the event that one or more items of equipment are used in multiple locations, end users designated as administrators on your account may, at your option, create additional service locations and associate your equipment with specific locations for the purposes of routing calls to the local PSAPs for such locations. Individual end users may assign and reassign their current location on an as-needed basis, provided, however, that your system administrator has previously activated that functionality. It is your sole responsibility to make any necessary or appropriate changes and to ensure that all business invitees, household residents, guests, and other third persons who may be present at the physical location(s) where you utilize the Services are aware of this option. For any Responsive IP extensions assigned to a non-US 911 location (subject to applicable local law), calls placed to 911 will be routed to a US-based call center that may not be able to offer local emergency assistance to the caller.
You acknowledge and agree that (a) 911 dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Services, and 911 dialing will not function until power is restored, and you may have to reset or reconfigure equipment prior to utilizing the Services or 911 dialing; (b) service outages or suspension or termination of service by your broadband provider and/or ISP will prevent all Services, including 911 dialing, from functioning; (c) service outages due to suspension of your account as a result of billing issues will prevent all Services, including 911 dialing, from functioning; (d) if there is a service outage for any reason, such outage will prevent all Service, including 911 dialing; and (e) Responsive IP’s liability is limited for any Services outage and/or inability to dial 911 from your line or to access emergency service personnel.
Possibility of Network Congestion and/or Reduced Speed for Routing or Answering 911:
You acknowledge and agree that (a) network congestion and/or reduced speed in the routing of a 911 communication made utilizing your equipment may be greater than that experienced when using traditional 911 dialing over traditional public telephone networks; (b) 911 dialing from your equipment will be routed to the general telephone number for the local emergency service provider (which may not be answered outside business hours) and may not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider’s facilities when such calls are routed using traditional 911 dialing; and (c) the general telephone number for the local emergency service provider may produce a busy signal or may take longer to answer, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.
Automated Number Identification:
Technical limitations may make it impossible for the PSAP and the local emergency personnel to identify your phone number when you dial 911. The local emergency operators answering the call may not see your telephone number or your registered address. The emergency center may not be equipped to receive, capture, or retain your telephone number and registered address, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may be unable to call you back or dispatch help if the call is dropped or disconnected, or if you cannot speak. Responsive IP’s system is configured to send the automated number identification information; however, one or more telephone companies that route the traffic to the PSAP, and the PSAP itself, may not be able to receive the information and pass it along. You acknowledge and agree that PSAP and emergency personnel may or may not be able to identify your phone number in order to call you back if (a) the call is unable to be completed; (b) the call is dropped or disconnected; c) you are unable to speak to tell the dispatcher the location of your phone number and/or (d) the Service is not operational for any reason.
Limitation of Liability and Indemnification Related to 911 Services:
Responsive IP relies on third parties for the forwarding of information underlying such routing. Responsive IP and its third-party provider(s) disclaim any and all liability in the event such forwarded information or routing is incorrect. Responsive IP and its officers, directors, or employees may not be held liable for any claim, damage, loss, or other cause of action, and you hereby waive any and all claims, damages, loss, or causes of action, arising from or relating to Responsive IP’s 911 dialing. You further agree to defend, indemnify, and hold harmless Responsive IP, its officers, directors, employees, affiliates, agents, and its third-party provider(s) from any and all third-party claims, losses, damages, fines, penalties, costs, and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or resulting from (a) your failure to correctly activate 911 calls; (b) your provision to Responsive IP of incorrect information in connection with your 911 calling or service; (c) misrouted 911 or E911 calls; or (d) the absence, failure, or outage of the Services, including 911 dialing and/or the inability of any user of your Service to be able to dial 911 or to access emergency service personnel.
The customer agrees to the following:
During the term of this Agreement, Customer grants Responsive IP and its agents authority to initiate porting requests on its behalf as Responsive IP determines is reasonably necessary for the provision of the Services. Responsive IP may place Customer’s phone numbers with a new peer without further notice to Customer, provided, however, that Responsive IP will not place Customer’s phone numbers or otherwise enter into any agreement with any peer or other person that would directly result in Customer’s loss of its phone numbers.
Responsive IP and its agents are authorized to initiate changes to telephone service for the purpose of obtaining service records, initiating or terminating ports, or making changes to the ways in which Customer’s telephone numbers are routed to the extent necessary for the provision of the Services.
Customer agrees to release Responsive IP from damages of any kind, including, without limitation, direct, consequential, and exemplary or punitive damages, in the event that either a terminating or servicing peer or a third party experiences technical difficulties that result in any or all of the following:
- Service Interruption
- Delays in porting
- Delays in service
Lost Telephone Numbers:
Responsive IP shall use commercially reasonable efforts, no less than commonly accepted industry standards, to ensure that the Responsive IP communications Service has a Monthly Uptime Percentage of 99.9% each calendar month. In any month it does not meet this requirement, the Customer will be eligible to receive Service Credit as defined below.
“Downtime”: The bundle of Responsive IP Services subscribed to by the Customer is inaccessible or impaired to the extent of being effectively inaccessible. Reachability is calculated using server monitoring software based on ping tests, SIP tests, and other applicable tests. The following classes of downtime, outages, and instances of unavailability are excluded from the definition of “Downtime”:
“Emergency Downtime”: Temporary unavailability due to Responsive IP addressing immediate vulnerabilities.
“Peer Outage”: Downtime experienced by connected entities in the Public Switched Telephone Network (PSTN) that impacts the serviceability of Responsive IP Telephone Numbers.
“Scheduled Downtime”: Downtime notified to Customer five (5) days in advance.
“Monthly Uptime Percentage”: The total number of minutes in the calendar month minus the number of minutes of Downtime suffered from all Downtime Periods in the calendar month, divided by the total number of minutes in the calendar month.
“Service Credit”: Credit added to the Customer’s account as compensation for downtime, provided according to the following schedule:
One-week Credit: Seven (7) days of Services added if the Monthly Uptime Percentage is between 97.0% and 99.89%.
Two-week Credit: Fourteen (14) days of Services added if the Monthly Uptime Percentage is between 97.0% and 95.0%.
One-month Credit: Thirty (30) days of Services added if the Monthly Uptime Percentage is less than 95.0%.
Customer Must Request Service Credit:
To receive Service Credits, Customer must promptly notify Responsive IP of the Service-affecting condition and notify Responsive IP in writing within thirty (30) days from the time Customer becomes eligible for a Service Credit.
Maximum Service Credit: The aggregate maximum number of Service Credits Customer can claim for any and all Downtime Periods occurring in a single calendar month shall not exceed thirty days of Services. Service Credits cannot be exchanged for or converted to monetary compensation.
Uptime SLA Exclusions:
The Uptime SLA does not apply to non-communications Services provided by Responsive IP or any issues that are:
(i) caused by factors outside of Responsive IP’s reasonable control;
(ii) a result of Customer’s or third parties actions or inactions;
(iii) related to international calling services; or
(iv) caused by Customer’s equipment and/or third-party equipment, not within the primary control of Responsive IP. This SLA constitutes Customer’s sole and exclusive remedy for any failure by Responsive IP to provide the Services due to Downtime.
International Calling Coverage:
Due to the nature of international tariffs, laws, and technical capacities of many international locations, not all international numbers are reachable from the Responsive IP network. This includes the following examples:
The called number is involved in a military conflict with another party.
The called number is under economic sanctions by the United States or United Nations.
The called number is located in an area with high fraud risks that expose Responsive IP to significant risks.
The called number belongs to a satellite phone or is associated with a cruise ship.
The called number uses infrastructure that is not reachable from the United States.
Other similar examples are not listed here.
Reverse Engineering and Use Restrictions:
The Responsive IP infrastructure consists of Data Centers, Public Cloud Providers, and other third-party services and connections, which collectively provide high availability for VoIP Services. This infrastructure is highly confidential and proprietary to Responsive IP.
Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer agrees not to (i) reverse engineer, decompile, disassemble, or otherwise attempt to derive techniques, processes, algorithms, know-how, or other information from the Services or permit or induce another to attempt or perform the foregoing; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make the Services available; or (iii) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other rights of any person or that violates any applicable law.
Apart from publicly available terms and conditions, Responsive IP and Customer agree that the rates, fees, and other charges offered, charged, and/or paid under this Agreement; Responsive IP’s network, software, and service delivery platform; Customer’s usage under this Agreement; and any other non-public information and data exchanged between the parties under this Agreement are confidential and proprietary. The parties agree that such confidential information will not be disclosed, either directly or indirectly, by any means, to any third party without the prior express written permission of the other party during the term of this Agreement or at any time during the 3-year period following the end of the term.
You will take all reasonable measures to avoid disclosure, dissemination, or unauthorized use of Responsive IP’s confidential information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. Furthermore, you agree to solely use Responsive IP’s confidential information in connection with your use of Responsive IP’s Services and your performance of this Agreement.
In the event disclosure is mandated by court order, subpoena, a governmental authority, or under law, the party who receives such demand must give prompt written notice to the other party prior to any such disclosure and cooperate fully in obtaining any protective order or other form of confidentiality protection.
The parties agree that Responsive IP may bring suit in court to enjoin infringement or other misuse of its intellectual property rights. With that sole exception, any controversies or disputes between the parties, whether arising out of or relating to this Agreement or otherwise, shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such the selection of an arbitrator, each party agrees to submit the selection of an arbitrator to the rules of the AAA. The arbitration shall take place in or near Dover, Delaware. The rules of discovery under the State of Delaware shall apply. The arbitrator shall be bound by the laws of the State of Delaware in their ruling. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be enforced in any competent court of law.
Waiver of Jury Trial:
The parties understand and agree that they are waiving their right to a trial by jury in light of their agreement to arbitrate any disputes between them. However, if, for any reason, a claim proceeds in court rather than in arbitration, the parties agree to waive any right to a jury trial.
Limitation of Liability:
EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT OR FOR LIABILITY DIRECTLY CAUSED BY RESPONSIVE IP’S RECKLESS OR INTENTIONAL MISCONDUCT, RESPONSIVE IP WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, DATA, OR PATENT INFRINGEMENT OR VIOLATION OF ANY OTHER INTELLECTUAL PROPERTY RIGHT, EVEN IF CUSTOMER CLAIMS TO HOLD SUCH RIGHTS), EVEN IF RESPONSIVE IP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, BY ENTERING INTO THIS AGREEMENT, YOU AGREE THAT RESPONSIVE IP WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES TO YOU OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES, (II) ANY CLAIM, DEMAND, OR SUIT BY CUSTOMER ALLEGING THAT THE RESPONSIVE IP SERVICES, IN WHOLE OR IN PART, INFRINGE OR OTHERWISE VIOLATE ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT IN WHICH YOU CLAIM AN INTEREST (III) RESPONSIVE IP’S DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR (IV) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY OF YOUR DATA OR OTHER DATA.
RESPONSIVE IP’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RESPONSIVE IP’S SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INTELLECTUAL PROPERTY INFRINGEMENT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL OF THE AMOUNT YOU ACTUALLY PAID RESPONSIVE IP UNDER THIS AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PARTIES ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION, THAT THESE PROVISIONS REFLECT AN ALLOCATION OF THE RISK BETWEEN THE PARTIES, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE PARTIES’ BARGAIN.
EXCEPT TO THE EXTENT EXPRESSLY PROVIDED HEREIN: RESPONSIVE IP DOES NOT WARRANT THE SERVICES HEREUNDER OR THE ACCURACY OR CORRECTNESS OF THE RESULTS OF THE SERVICES, AND RESPONSIVE IP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF: (1) MERCHANTABILITY, (2) FITNESS FOR A PARTICULAR PURPOSE, (3) EFFORT TO ACHIEVE PURPOSE, (4) QUALITY, (5) ACCURACY, (6) NON-INFRINGEMENT, (7) TITLE, (8) MARKETABILITY, (9) PROFITABILITY, (10) SUITABILITY, AND/OR (11) ANY TYPE ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. THE RESPONSIVE IP SERVICES AND ANY MATERIALS, SOFTWARE, OR EQUIPMENT ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW.
YOU HEREBY AGREE TO HOLD HARMLESS, INDEMNIFY, AND DEFEND RESPONSIVE IP, ITS OFFICERS, DIRECTORS, AND EMPLOYEES, FROM AND AGAINST ANY CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS, FINES, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) ARISING OUT OF OR RELATING TO ANY THIRD-PARTY CLAIM RELATING TO YOUR USE OF THE RESPONSIVE IP SERVICES OR YOUR BREACH OF THIS AGREEMENT, INCLUDING ANY CLAIM THAT YOU HAVE VIOLATED ANY TERM OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE FOLLOWING SECTION (“COMPLIANCE WITH LAWS”).
Compliance with Laws and Prohibited Use
You agree that you shall only use the Services in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights and restrictions concerning call recording, call monitoring, call interception, and/or direct marketing or telemarketing. Responsive IP may provide you with guidelines regarding compliance with applicable regulation(s); however, you are solely responsible for ensuring that your use of the Services is in compliance with such regulations. You may only use the Services for your own use. You may not use the Services in any way to provide, or as part of, any commercial service or application or in any way interfere with the users, services, or equipment of the network. In addition to any other remedies available in equity or law to Responsive IP, failure to comply with any of the terms and conditions in this Section shall result in immediate termination of the Services.
Any use of the Services or any other action in violation of this section that causes a disruption in the Responsive IP network integrity, or in Responsive IP’s determination threatens or compromises the security of Responsive IP, its vendors, its other customers, or the Services, whether directly or indirectly, is strictly prohibited and permits Responsive IP to suspend or terminate the Services without prior notice at the sole discretion of Responsive IP. Furthermore, it permits Responsive IP to disclose any information, including Customer’s confidential information, to necessary authorities or third parties. Responsive IP shall have the right, in its sole and reasonably exercised discretion, not to accept, transmit, or deliver any messages or content that it reasonably believes contain inappropriate content or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including a law enforcement proceeding, process, or inquiry. Any use found to be inconsistent with the restrictions of this Section may result in the termination of the Services without prejudice to any other Responsive IP rights or remedies.
This Agreement shall be construed in accordance with the laws of the State of Delaware, without regard to its conflict-of-laws provision.
During the course of the Agreement, Customer may make service requests to Responsive IP via e-mail, ticket submission, or phone call. The parties further agree that Customer may make certain changes to the Services it subscribes to via Responsive IP’s user interface, including the addition or deletion of users and the addition or deletion of telephone numbers.
This Agreement, together with the parties’ Service Agreement and any attachments and addenda thereto, contains the entire agreement between the parties, and there are no other oral promises or conditions with respect to the parties. This agreement supersedes any other written or oral agreements between the parties.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable.
The failure of either party to enforce a provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to enforce those provisions in the future.
All provisions that logically ought to survive termination of this Agreement shall survive, including, without limitation, the sections relating to confidentiality, arbitration, indemnification, and limitations of liability.
In the event that either of the parties (or any successor) resorts to legal action, including arbitration, to enforce, defend, or interpret any of the terms or provisions of this Agreement, the prevailing party shall be entitled to an award of reasonable attorney’s fees if otherwise provided by law and if the arbitrator determines such an award is warranted. Additionally, when attorney’s fees are awarded by the arbitrator, the prevailing party shall be entitled to recover post-judgment attorney’s fees incurred in enforcing a judgment against the non-prevailing party. This provision is intended to be severable from the rest of the Agreement, shall survive any judgment rendered in connection with the legal action, and shall not merge into any such judgment.