1. ACCESS AND USE OF THE SERVICES.
2. ORDERS, FEES AND PAYMENT.
2.1. Orders. You may order Services using our then-current ordering processes (“Order“). All Orders are effective on the earlier of (i) the date you submit your first Order, or (ii) the date on the signature block of the Order (“Effective Date“). Acceptance of your Order may be subject to our verification and credit approval process. 2.2. Fees and Payment.You agree to pay all applicable, undisputed fees for the Services as set forth on the invoice. You are responsible for all fees and charges imposed by your voice and data transmission providers related to your access and use of the Services. You are responsible for providing accurate and current billing, contact and payment information to us or any reseller. You agree that we may take steps to verify whether your payment method is valid, and charge your credit card or bill you for all amounts due for your use of the Services. You agree that your credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We will not agree to submit invoices via any customer procure-to-pay online portal and/or Electronic Data Interchange (EDI) portals. We reserve the right to update the price for Services at any time after your Initial Term, and price changes will be effective as of your next billing cycle. We will notify you of any price changes by publishing on our website, emailing, quoting or invoicing you. 2.3. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 7 days of the invoice date, and once resolved, you agree to pay those fees within 7 days. We may also suspend or terminate your Services if you do not pay undisputed fees, and you agree to reimburse us for all reasonable costs and expenses incurred in collecting delinquent amounts. 2.4. Taxes and Withholding. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, Universal Services Fund (USF) fees (if applicable to the Audio Services only) and similar taxes (collectively, “Taxes“) imposed by any government entity or collecting agency based on the Services, except those Taxes based on our net income, or Taxes for which you have provided an exemption certificate. We reserve the right to gross up the price for Services in any invoice, or require you to gross up your payment, if your withholding obligations prevent us from receiving the amount specified in the Order. Additionally, if you do not satisfy your Tax obligations, you agree that you will be required to reimburse us for any Taxes paid on your behalf, and we may take steps to collect Taxes we have paid on your behalf. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
3. TERM AND TERMINATION.
3.1. Term. Your initial term commitment (“Initial Term“) will be specified in your Order, or if no term is specified, your Initial Term will be 12 months from the Effective Date and will automatically renew for additional 12 month periods (“Renewal Terms“), unless either party provides notice of non-renewal 30 days before the current term expires. The term for additional Services you order will be coterminous with the term of your existing Services. 3.2. Termination for Convenience. Either party may terminate Services that are in a Renewal Term and your subscription will be terminated at the end of: (i) 30 days following receipt of your termination notice, or (ii) your current billing cycle, whichever is earlier. Terminating specific Services that are in a Renewal Term does not affect the term of any other Services still in effect. You must send your termination notice to: firstname.lastname@example.org or otherwise in accordance with the applicable Service Description. If we permit you to reinstate Services at any time after termination, you agree that you will be bound by the then-current Terms and the renewal date that was in effect as of the effective termination date. 3.3. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice, or (ii) if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business, and we may terminate immediately if you breach Section 1.2, 4 or 5. 3.4. Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all access and use of the terminated Services. Neither party will be liable for any damages resulting from termination of the Agreement, and termination will not affect any claim arising prior to the effective termination date. You agree to pay for any use of the Services past the date of expiration or termination. 3.5. Survival. The provisions of Sections 2 (Orders, Fees and Payment), 3.4 (Effect of Termination), 4 (Your Content and Accounts), 7 (Indemnification), 8 (Limitation on Liability), 9.6 (No Class Actions), and 9.11 (Notices) survive any termination of the Agreement.
4. YOUR Content AND ACCOUNTS.
4.1. Your Content. You retain all rights to your Content and we do not own or license your Content. You grant us a non-exclusive, worldwide, royalty-free, license to use, modify, reproduce and distribute your Content, only as required to provide the Services to which you have subscribed, and you warrant that (i) you have the right to grant us the license, and (ii) none of your Content infringes on the rights of any third party. Each party agrees to apply reasonable technical, organizational and administrative security measures to keep Content protected in accordance with industry standards. We will not view, access or process any of your Content, except: (x) as directed or instructed by you or your users, or (y) as required to comply with our policies, applicable law, or governmental request. You agree to comply with all legal duties applicable to you as a data controller by virtue of the submission of your Content within the Services. If your Content is subject to EU data protection laws and is processed by us as a data processor acting on your behalf (in your capacity as data controller), we will use and process your Content as you instruct in order to provide the Services and fulfill our obligations under the Agreement. Notwithstanding anything to the contrary, this Section 4.1 expresses the entirety of our obligations with respect to your Content. Content means any of your, or your users’ or recipients’ files, documents, recordings, and other information that is uploaded to your Service account for storage, or used, presented or shared with third parties in connection with the Service. 4.2. Your Accounts. You are solely responsible for (i) all use of the Services by you and your users, (ii) obtaining consent from your users to the collection, use, processing and transfer of Content, and (iii) providing notices or obtaining consent as legally required in connection with the Services. We are not liable for any loss that you may incur if a third party uses your password or account. We may suspend the Services or terminate the Agreement if you, your users, or attendees are using the Services in a manner that is likely to cause harm to us. You agree to notify us immediately and terminate any unauthorized access to the Services or other security breach.
5. COMPLIANCE WITH LAWS.
In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to privacy and data protection laws and regulations. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Services. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
WE WARRANT THAT THE SERVICES WILL CONFORM TO THE SERVICE DESCRIPTIONS UNDER NORMAL USE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) OUR SERVICES WILL MEET YOUR REQUIREMENTS, OR (iii) ALL ERRORS OR DEFECTS WILL BE CORRECTED. USE OF THE SERVICES IS AT YOUR SOLE RISK. OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT OUR SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICES, OR TO TERMINATE THE NON-CONFORMING SERVICES OR THE APPLICABLE ORDER, AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FROM THE PERIOD OF NON-CONFORMANCE THROUGH THE END OF THE REMAINING TERM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN THOSE JURISDICTIONS.
7.1. Indemnification by Us. Subject to Sections 7.2 and 7.3, we will indemnify and defend you against any third party Infringement Claim, and pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to the Infringement Claim. Infringement Claim means any third party claim, suit or proceeding brought against you based on an allegation that the Services, when used in accordance with the Agreement and the applicable documentation, infringes upon any patent, copyright or violates any trade secret rights of any third party. THE FOREGOING STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM. 7.2. Infringement Cures. If your use of any of the Services is, or in our opinion is likely to be, enjoined as a result of an Infringement Claim, we will, at our sole option and expense, either (i) procure for you the right to continue using the Services at no additional charge, or (ii) replace or modify the Services to make their use non-infringing without a material reduction in functionality. If we believe that options (i) and (ii) are not commercially reasonable, we may, upon written notice to you, cancel your access to the Services and refund any prepaid but unused Fees. 7.3. Limitation. We assume no liability, and will have no liability, for any Infringement Claim based on (i) your access to or use of the Services following notice of an Infringement Claim; (ii) any modification of the Services by you or at your direction; (iii) your combination of the Services with third party programs, services, or other materials; or (iv) any trademark or copyright infringement involving any marking or branding applied at your request or not provided by us. 7.4. Indemnification by Customer. You will indemnify and defend us against any third party claim resulting from a breach ofSection 1.2 or 4, or alleging that any of your Content infringes upon any patent or copyright, or violates trade secret or privacy rights of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. 7.5. General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the indemnifying party in defending the claim. The indemnifying party will reimburse the other party for reasonable expenses incurred in providing any cooperation or assistance. The indemnifying party will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring the indemnified party to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) the other party may join in the defense with its own counsel at its own expense.
8. LIMITATION ON LIABILITY.
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. EXCEPT FOR (a) A PARTY’S INDEMNIFICATION OBLIGATIONS (b) YOUR BREACH OF SECTIONS 1.2 OR 4, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DOES NOT LIMIT YOUR OBLIGATIONS TO PAY ANY UNDISPUTED FEES AND OTHER AMOUNTS DUE UNDER ANY ORDER.
9. ADDITIONAL TERMS.
9.1. Services Trial. If you are using the Services on a trial or promotional basis (“Trial Period“), your Trial Period will terminate (i) at the end of the Trial Period stated in your Order, or (ii) if no date is specified, 30 days after your initial access to the Services. Following expiration of the Trial Period, the Services may automatically continue unless you provide notice of cancellation to us, and you are responsible for payment of the applicable Fees set forth in the Order. During the Trial Period, to the extent permitted by law, we provide the Services “AS IS” and without warranty or indemnity, and all other terms otherwise apply. We may modify or discontinue any trials or promotions at any time without notice. 9.2. Third Party Features. The Services may be linked to third party sites or applications (“Third Party Services“). We are not responsible for and do not endorse Third Party Services. You have sole discretion whether to purchase or connect to any Third Party Services and your use is governed solely by the terms for those Third Party Services. 9.3. Beta Services. We may offer you access to beta services that are being provided prior to general release, but we do not make any guarantees that these services will be made generally available (“Beta Services“). You understand and agree that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at your sole risk. We have no obligation to provide technical support and we may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to you. These Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If you are using Beta Services, you agree to receive related correspondence and updates from us, and acknowledge that opting out may result in cancellation of your access to the Beta Services. If you provide feedback (“Feedback“) about the Beta Service, you agree that we own any Feedback that you share with us. For the Beta Services only, these Terms supersede any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict. 9.4. Copyright. If you believe that our Services have been used in a way that constitutes copyright infringement, you should notify us in writing at: Astervox Sdn Bhd, Unit 2B-10-3, 10th floor, Plaza Sentral, Jalan Stesen Sentral 5, 50470 Kuala Lumpur, Malaysia, and provide us with all of the following information, as required by the Digital Millennium Copyright Act: (i) a statement that you have identified content in the Services that infringes the copyright of a third party for whom you are authorized to act; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a specific description of where the allegedly infringing material is located in the Services, including a URL or exact description of the content’s location; (iv) your name, address, telephone number, and e-mail address; (v) a statement that you have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use); (vi) a statement that, under penalty of perjury, the information in your notice is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; and (vii) your electronic or scanned physical signature. We reserve the right to delete or disable allegedly infringing content, to terminate the accounts of users who are repeat infringers, and to forward the information in the copyright-infringement notice to the user who allegedly provided the infringing content. 9.5. No Class Actions. You may only resolve disputes with us on an individual basis and you will not bring a claim in a class, consolidated, or representative action. 9.6. Security Emergencies. If we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities, we may temporarily suspend the Services and we will take action to promptly resolve any security issues. We will notify you of any suspension or other action taken for security reasons. 9.7. High-Risk Use. You understand that the Services (i) are not designed or intended for use during high-risk activities, and (ii) do not allow and should not be used for calls to emergency services numbers (e.g., 911 (U.S.), or 999 and 112 (UK)). WE ARE NOT A “DIAL-TONE” PROVIDER. IN THE EVENT OF AN EMERGENCY WHILE USING ANY SERVICES, HANG UP AND DIAL YOUR LOCAL EMERGENCY NUMBER. YOU MUST UTILIZE THE TELEPHONE SERVICE PROVIDED BY YOUR LOCAL CARRIER TO MAKE AN EMERGENCY CALL. 9.8. Recording. Certain Services provide functionality that allows you to record audio and data shared during sessions. You are solely responsible for complying with all applicable laws in the relevant jurisdictions while using recording functionality. We disclaim all liability for your recording of audio or shared data, and you agree to hold us harmless from damages or liabilities related to the recording of any audio or data. 9.9. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which shall not be unreasonably withheld, except that either party may assign the Agreement as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns. 9.10. Notices. Notices must be sent by personal delivery, overnight courier or registered mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at the address for your applicable contracting entity, with a copy to our Unit 2B-10-3, 10th floor, Plaza Sentral, Jalan Stesen Sentral 5, 50470 Kuala Lumpur, Malaysia and we will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting. 9.11. Entire Agreement; Order of Precedence. The Agreement, including your Order and related invoices for Services ordered, these Terms, Service Descriptions, sets forth the entire agreement between us relating to the Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, these Terms and the Service Descriptions, the conflict will be resolved in that order, but only for the specific Services described in the applicable Order. Nothing contained in any document submitted by you will add to or otherwise modify the Agreement. We may update the Terms from time to time, which will be identified by the last updated date, and may be reviewed at Terms of Service. Your continued access to and use of the Service constitutes your acceptance of the then-current Terms. 9.12. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third party beneficiary. Our authorized distributors do not have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. Unless otherwise specified, remedies are cumulative. The Agreement may be agreed to online, or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g. natural disasters; terrorist activities, activities of third party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist. 9.13. Contracting Party, Choice of Law and Location for Resolving Disputes. The contracting entity, contact information, and governing law for your use of the Services is Kuala Lumpur Malaysia