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GoSolo Terms Of Service:|
THIS AGREEMENT CONTAINS THE TERMS OF SERVICE UNDER WHICH GO SOLO TECHNOLOGIES, INC. (REFERRED TO HEREIN AS "Provider") AGREES TO PROVIDE THE SERVICE (DEFINED BELOW) TO YOU (REFERRED TO HEREIN INTERCHANGABLY AS "YOU", "YOURS", AND "SUBSCRIBER").
1. ELIGIBILITY FOR SERVICE. Subscriber represents and warrants that he/she is at least eighteen (18) years of age and legally competent to enter into this Agreement.
2. LICENSE TO USE SERVICE. Effective upon acceptance of this Agreement, Provider grants Subscriber a personal, non-exclusive, non-transferable, revocable license to access and use the Service (as defined below), subject to the terms and conditions contained herein.
(a) Service Definition. The service provided hereunder allows Subscriber to perform various online messaging and communications functions (the "Service"). Unless otherwise stated, any new features added by Provider that augment or enhance the current Service shall also constitute the "Service" and shall be subject to these terms and conditions.
(b) Restrictions. Subscriber may not copy, modify, adapt, reproduce, translate, distribute, reverse engineer, de-compile or disassemble any aspect of the Service or its associated software.
3. ACCOUNT INFORMATION. Subscriber agrees to furnish Provider with true, accurate and complete data during Provider's account registration process, including without limitation, Subscriber's physical address, e-mail address, and billing information (collectively, the "Account Information"). Subscriber understands and agrees that he/she is under a continuing obligation to maintain the accuracy and completeness of the Account Information. Subscriber also understands and agrees that if he/she provides information that is, in any respect, inaccurate, incomplete, false or misleading, Provider may, in its sole discretion, suspend or terminate Subscriber's Account.
4. ACCOUNT ACTIVATION. Subscriber must choose a Service plan (a "Plan") from the menu of available Plans displayed during the registration process. Plans offered by Provider vary and may include, without limitation, bundled minutes of use and supplemental services such as web or audio conferencing. Provider reserves the right to discontinue any Service Plan upon thirty (30) days prior notice to Subscriber. After Plan selection, Subscriber's account will be created, but will not be activated until Provider has verified that Subscriber's Account Information is complete and accurate in all respects. Upon verification of Subscriber's Account Information, Subscriber's Account will be activated ("Activation Date") and Subscriber will be provided with a Toll-Free 8xx access number ("Access Number") and a preset secret personal identification number ("PIN") that may be used to access the Service.
5. AUTHORIZED USE. Subscriber may distribute his/her Access Number to anyone he/she chooses. However, anyone to whom Subscriber voluntarily provides his/her PIN will be able to use Subscriber's account and Subscriber understands and agrees that he/she will be financially responsible for all outstanding fees and charges relating to their use of the Service, whether or not such usage was expressly authorized.
6. UNAUTHORIZED USE. Subscriber is financially responsible for all charges incurred through the use of his/her Account by a third-party, even if the use thereof resulted from the negligence of Subscriber (e.g., lost or misplaced PIN). However, upon notification to Provider that Subscriber believes that his or her Account is being used in a fraudulent manner, Provider may, in its sole discretion, either cancel Subscriber's Account or issue Subscriber a new Access Number and/or PIN number. Provided that Subscriber has fully cooperated with Provider's investigation into any alleged fraudulent activity, Subscriber shall have no further liability therefore.
7. ACCOUNT CHARGES. The following applies with respect to charges to Subscriber's Account:
(a) Basic Account Charges. Subscriber will be charged the rates in effect under his/her service plan, as updated by Provider from time to time. Subscriber shall be required to pay all monthly subscription charges as stated by Provider, including applicable taxes, surcharges, assessments, government fees and charges for any special or enhanced services Subscriber uses. There may be additional fees if Subscriber requests a change in his/her service plan. There may also be additional fees if Subscriber accesses the Service from certain locations, or via cellular phone, or other wireless service; if Subscriber uses an internet service provider, online service provider, and/or wireless carrier to connect to the Service; if Subscriber places calls to or receives calls from certain locations, including without limitation pay phones, and areas within extended calling zones, or; if Subscriber receives SMS message notifications to his/her cellular phone. Subscriber is responsible for these fees and Subscriber is advised to check with his/her other service providers for details on how accessing the Service may affect his/her bill from that provider. In addition to the foregoing, service plans which support telephone services, including without limitation, out-bound dialing and long distance service are governed by applicable Federal regulations and by tariffs filed on file with the various regulatory bodies overseeing Provider's business operations in Subscriber's state of residence.
8. BUSINESS ACCOUNTS. If Subscriber's Account is a Qualified Business Account, charges for services provided under this Agreement will be accumulated, identified by Subscriber ID, and billed to Subscriber's sponsoring organization. Terms of payment may vary depending on the terms our agreement with your sponsoring organization. However, if payment due hereunder is not made by the Subscriber's sponsoring organization within thirty (30) days after the invoice date, late charges of one and one-half percent (1.5%) per month shall be due and payable with respect to such payment. Provider may, in its sole discretion, and without notice to the Subscriber, suspend or terminate Subscriber's Account.
9. PERSONAL ACCOUNTS. Subscriber will be billed monthly for all charges incurred in connection with his/her Account, except as otherwise provided herein. Subscriber's billing cycle will begin on his/her Activation Date (the "Billing Date"). Subscriber understands and agrees that his/her statement will be delivered electronically over the Internet and deposited into the message store in his/her Account. Subscriber will not receive a manual or paper bill. Provider accepts VISA, Master, Discovery, and American Express. Provider may, in its sole discretion, change the form of acceptable payment at any time upon thirty (30) days prior notice to Subscriber. Subscriber authorizes Provider to charge purchases made online to the credit card account supplied to Provider when his/her Account was activated, or the card that Provider has on file with Provider at the time charges are incurred by Subscriber. If Provider does not receive payment from Subscriber's credit card issuer or its agents, Subscriber agrees to pay all outstanding fees and charges relating to his/her use of the Services upon written demand by Provider. Provider is not responsible for any charges or expenses (e.g., exceeding credit card limits, etc.) resulting from charges billed by Provider. Subscriber must promptly notify Provider of changes to: (i) the account number or expiration date of his/her designated credit card; or (ii) his/her billing address. Subscriber is also responsible for notifying Provider if his/her credit card is lost or stolen. All charges are considered valid unless disputed in writing within sixty (60) days of the billing date. If Subscriber fails to notify Provider of a dispute within such period, Subscriber shall have irrevocably waived the right to dispute any such charge. Subscriber must pay all charges on time until the dispute is resolved. If the dispute is resolved in Subscriber's favor, Provider will refund the disputed amounts to Subscriber. Balances that remain unpaid more than thirty (30) days after billing will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. In addition to the foregoing, Provider may, in its sole discretion, and without notice to the Subscriber, suspend or terminate Subscriber's Account for late payment or non-payment.
10. ACCEPTABLE USE POLICY. It is the responsibility of Subscriber to use the Service in accordance with all applicable local, state, federal and foreign laws and regulations, including but not limited to, laws and regulations pertaining to telemarketing, facsimile advertising, commercial e-mail and personal data privacy. SUBSCRIBER ACKNOWLEDGES THAT THE ADVERTISING OF GOODS, SERVICES OR REAL PROPERTY BY THE TRANSMISSION OF UNSOLICITED FACSIMILES, VOICE MESSAGES OR EMAILS MAY BE IN VIOLATION OF STATE AND FEDERAL LAWS AND REGULATIONS AND MAY SUBJECT THE ADVERTISER TO PENALTIES. Subscriber also agrees to comply with Provider's Acceptable Use Policy ("AUP"), set forth herein below, as amended from time to time during the term of this Agreement. Compliance with this section requires, among other things, that all messages sent by Subscriber or through the Service, in whatever medium, contain the name and contact information for Subscriber, and that Subscriber shall comply with any "do not send" or "do not call" request.
(a) Illegal Use of the Account. Illegal use of the Service includes, but is not limited to: (i) publishing, encouraging, distributing or disseminating defamatory, infringing or other unlawful material or information; (ii) threatening, harassing, stalking, abusing, or otherwise violating the legal rights of others; (iii) intercepting or attempting to intercept faxes, voice mail, electronic mail or any other communication that may be deemed a privileged communication; (iv) using the Service to engage in the transmission of un-solicited bulk e-mail, voice messaging, or fax in violation of any applicable local, state, federal and foreign laws and regulations, and; (v) acting or failing to act, in your use of the Service, in any other manner that is contrary to applicable local, state, federal and foreign laws and regulations. Provider reserves the right, in the event of illegal account use, to terminate your Account immediately without notice or exigent circumstances.
(b) Excessive or Improper Use. The following constitute improper uses of the Service: (i) calling patterns and usage that considerably exceed what is considered usual and normal for similar subscriber groups by industry standards; (ii) calling usage that considerably exceeds your established history of usage; (iii) use of Phone Chat Rooms; (iv) calls to 900 or 976 numbers; (v) use for dialing into an ISP or any type of data transmission; (vi) using the Service for call centers, and; (vii) using the Service in any other way that adversely affects the availability of its' resources to other subscribers. Subscribers whose use constitutes, in Provider's sole discretion, a violation of this policy may have their Service suspended, termination or may be subject to additional charges.
(c) Storage Space Limitations. The amount of e-mail, fax, and voice-mail storage space per subscriber is determined by your Service plan. If you exceed your designated storage space limitation, some e-mail, fax-mail, or voice-mail messages may not be processed due to space constraints or outbound message limitations. However, if additional unallocated storage space is available on the Service, Provider will use commercially reasonable efforts to temporarily allocate a portion of such additional storage space to your Account to satisfy excess storage space requirements. Subscriber will be charged for all additional storage space allocated to his/her Account in accordance with then current rates for such additional storage space. Subscriber further understands and agrees that Provider is not responsible or liable for the deletion or failure to store messages or other information in excess of Subscriber's designated storage space limitation.
(d) Improper Use of Facsimile Functionality. Subscriber agrees to comply with the following rules regarding the use of facsimile services offered by Provider: (i) Distributing the same document through Providerís facsimile services to more than one hundred different recipients in a 24 hour period is prohibited in all instances.
11. INTELLECTUAL PROPERTY RIGHTS. All programs, services, processes, patents, designs, software, the look and feel, technologies, trademarks, service marks, trade names, inventions and materials comprising the Service are wholly owned by Provider, including without limitation all telephone numbers used in connection with or provided as part of the Service.
(a) NO WARRANTY. THE SERVICE IS PROVIDED "AS IS" AND PROVIDER MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO YOU REGARDING THE USABILITY, CONDITION OR OPERATION THEREOF. PROVIDER DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT PROVIDER SOFTWARE OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. PROVIDER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
(b) LIMITATION OF LIABILITY. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. YOU AGREE THAT PROVIDER WILL NOT BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE SERVICE, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT THERETO, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDER'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SERVICE OR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE SERVICE. YOU HEREBY RELEASE PROVIDER FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED OR LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.
(c) THIRD PARTIES. DISCLAIMER OF ACTIONS CAUSED BY AND/OR UNDER THE CONTROL OF THIRD PARTIES. PROVIDER DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM OUR NETWORK OPERATIONS CENTER, OTHER PORTIONS OF THE INTERNET, OR THE PUBLIC SWITCHED TELEPHONE NETWORK ("PSTN") OWNED AND/OR CONTROLLED BY PROVIDER'S CARRIERS WHICH CONNECT TO THE PSTN. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES AND TELEPHONE SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS CAUSED BY THESE THIRD PARTIES CAN PRODUCE SITUATIONS IN WHICH PROVIDER'S CONNECTIONS TO THE INTERNET, OR TO THE PSTN (OR PORTIONS THEREOF) MAY BE IMPAIRED OR DISRUPTED. ALTHOUGH PROVIDER WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, PROVIDER CANNOT GUARANTEE THAT THEY WILL NOT OCCUR. ACCORDINGLY, PROVIDER DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
(d) Basis of the Bargain; Failure of Essential Purpose. Subscriber acknowledges that Provider has set its rates, fees and service charges, and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
13. INDEMNIFICATION. You shall indemnify and hold Provider harmless from any claims, damages or penalties (including, without limitation, reasonable attorney's fees) arising out of (i) your use of the Service or (ii) your violation of any applicable local, state, federal and foreign laws and regulations respecting the Service.
14. COPYRIGHT AND TRADEMARK NOTICES. The trademarks, logos, and service marks (collectively, the "Trademarks") displayed on Provider's web sites, including without limitation, the site located at the URL http://www.gosolo.com (and any successor or replacement thereof) (collectively, the "Site") are registered and common law Trademarks of Provider and others. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site without the written permission of Provider or such third party that may own the Trademarks displayed on the Site. Subscriber's use of the Trademarks displayed on the Site, or any other content on the Site, is strictly prohibited. Subscribers are also advised that Provider will aggressively enforce its intellectual property rights to the fullest extent of the law.
15. AMENDMENT. Provider may in its sole discretion modify the terms and conditions of this Agreement by posting an updated version of this Agreement on its Site. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes have been posted to Provider's Site shall constitute your consent to such changes. Should you object to any changes to the terms or conditions of this Agreement or become dissatisfied with the Service in any way, your only recourse is to immediately cancel Your Account pursuant to Section 17 hereof.
16. TERM. This Agreement shall continue in full force and effect from your Activation Date, until earlier cancelled by you or terminated by Provider.
(a) Provider. Provider may in its sole discretion suspend, terminate or modify Subscriber's service with or without notice. Without limiting the generality of the foregoing, the following reasons may initiate such action: (i) Subscriber fails to pay all charges when due; (ii) Subscriber ceases to function as a going concern or ceases to conduct operations in the normal course of business, becomes insolvent, files or has filed against it a petition under the insolvency laws of an applicable jurisdiction and such petition is not dismissed within sixty (60) days, (iii) Subscriber breaches any part of this Agreement; (iv) Subscriber's use of the Service constitutes, in Provider's sole discretion, a violation of Provider's AUP in Section 10 above.
(b) Subscriber. Subscriber may cancel his/her Account at any time by contacting Provider's Customer Care center using the toll-free number shown on Subscribers' bill. Cancellations submitted by e-mail and fax cannot be accepted for security reasons; cancellation requests received by Customer Care representatives by telephone are effective immediately.
(c) Cancellation/Billing. Upon cancellation, Subscriber's access to his/her Account and all Account Information related thereto, including, but not limited to, his/her address book, call history and message stores will be terminated. Subscriber will then be billed immediately for any usage fees through the date of cancellation. No partial-month refunds or credits shall be paid to Subscriber on account of a cancellation prior to the end of any billing cycle.
(d) Subscriber's Rights to Message Files. Upon any termination in accordance with either of the foregoing subsections, Provider may immediately deactivate Subscriber's account, delete all Account Information and message files in Subscriber's account, and reassign Access Codes associated with the terminated Account. Thereafter, Subscriber shall have no right towards, and Provider shall have no obligation thereafter to retain, deliver, store, forward, any unread or unsent communications or other forms of data stored as a part of the Service to Subscriber or any third party. Further, Provider shall on no account be liable to Subscriber or any third party should it choose to suspend, modify, or terminate Subscriber's Account pursuant to this Section 17.
(e) Survivability of Key Provisions. The obligations of the Parties under this Agreement, which by their nature would continue beyond the termination, cancellation, or expiration of this Agreement, including, without limitation, Sections 7, 8, 9, 12, 13, 17, 18, 19 and 20, shall survive the termination, cancellation, or expiration of this Agreement.
18. DISPUTE RESOLUTION
(a) Good Faith; Commercially Reasonable Efforts. The Parties will act in good faith and use commercially reasonable efforts to promptly resolve any claim, dispute, controversy or disagreement (each a "Dispute") between the Parties or any of their prospective subsidiaries, affiliates, successors or assigns under or related to this Agreement or any document executed pursuant to this Agreement or any of the transactions contemplated hereby.
(b) Demand for Arbitration. Except for Disputes relating to issues of proprietary rights, including but not limited to, intellectual property and confidentiality, and except that either Party may seek injunctive or other equitable relief from a court, all Disputes hereunder will be governed exclusively and finally by arbitration. Arbitration will be conducted in Pinellas County, Florida, under the rules and procedures of the American Arbitration Association ("AAA"). The parties will request that AAA appoint a single arbitrator possessing knowledge of the subject matter hereof; however the arbitration will proceed even if such a person is unavailable. Any demand for arbitration shall include detail sufficient to establish the nature of the dispute (including the claims asserted and the material issues with respect thereto) and shall be delivered to the other party concurrent with delivery to AAA. Discovery from the other party shall be limited to requests for production of documents and to depositions. No additional formal discovery (e.g., interrogatories or requests for admissions) shall be permitted except by mutual consent or as approved by the arbitrator for good cause shown. Any award by the arbitrator shall be subject to all dollar and other limitations set forth in this Agreement. Any award by the arbitrators will be accompanied by a written opinion setting forth the findings of fact and conclusions of law relied upon in reaching the decision. The award rendered by the arbitrator will be final, binding and non-appealable; and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
19. GENERAL PROVISIONS
(a) Assignment. This Agreement shall be binding upon, and shall inure to the benefit of, Provider and its successors and assigns, and Subscriber and Subscriber's legal representatives, heirs, legatees and distributes, but neither this Agreement nor any rights or duties hereunder shall be assignable, encumbered or pledged by Subscriber.
(b) Notice. Provider may provide notice to you by: (i) email addressed to your email account, or (ii) by U.S. Mail, First Class, postage prepaid, to the last mailing address provided by you. All notices to you shall be deemed effective on the first calendar day following the date of electronic mailing or on the fifth calendar day following the date of first-class mailing.
(c) No Waiver. The waiver by either party of a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach thereof.
(d) Headings. The headings of paragraphs in this Agreement are for convenience only; they form no part of this Agreement and shall not affect its interpretation.
(e) Severability. In any provision of this Agreement shall be or become illegal or unenforceable in whole or part for any reason whatsoever, the remaining provisions shall nevertheless be deemed, valid, binding and subsisting. If any provision of this Agreement shall be deemed to be void, illegal, or unenforceable as written, then in such event, a court of competent jurisdiction shall be entitled to rewrite such provision so as to give it coverage and effect to the fullest extent permitted by law.
(f) Governing Law; Attorneys' Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without reference to conflict of law principles thereof. In any action to enforce this Agreement the prevailing Party will be entitled to costs and reasonable attorneys' fees.
(g) Choice of Forum. The parties consent to the jurisdiction of the federal and state courts located within the State of Florida for any action (i) to compel arbitration; (ii) to enforce the award of the arbitrator; or (iii) at any time prior to the qualification and appointment of the arbitrator, for temporary, interim or provisional equitable remedies, and each of the parties waives any objection to venue laid therein. The parties further consent to service of process in any such action by registered mail, return receipt requested, or by any other means permitted by law.
(h) Entire Agreement. This Agreement, including all other agreements incorporated herein by reference, supersedes any and all prior written or oral agreements between Subscriber and Provider and constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and no modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless in writing and signed by both parties hereto.
20. GOSOLO REFERRAL PROGRAMS
The GoSolo Refer-A-Friend email referral program allows users to send a preformatted email to their friends, family and business associates that contains a referral link (embedded with the referee's GoSolo number for tracking) back to the GoSolo Refer-A-Friend web page. This marketing page may contain special promotional service discounts and/or trial offers. Referrals are tracked to referees through the special Refer-A-Friend email link and may result in compensation or account credits if the referral subscribes to the GoSolo service, as determined by GoSolo. GoSolo is solely responsible for determining the validity of any and all referral claims. Terms and conditions for how compensation and/or account credits will be distributed include, but are not limited to, verification of referral accounts status as active for one calendar month and the referee's account being in good standing. The Refer-A-Friend program is void where prohibited.
21. DISCLOSURE OF CUSTOMER INFORMATION
If you become a GoSolo user because you are a member of a sponsoring organization
(e.g., you are an independent agent selling the products of a sponsoring organization),
you hereby agree that GoSolo may disclose to your sponsoring organization information
about your use of GoSolo Services. This information may include your name
and data about your specific use of the Service(s), including call detail records,
voicemails and billing data. If you are not affiliated with a sponsoring
organization when you become a customer or if you leave a sponsoring organization
but remain a customer, we will not share your proprietary information with any
third party unless required to do so by a subpoena, court order or other legal
Version 1.4.5 Updated: 06.24.2009