NOTICE: Effective January 7, 2016, we changed our name from InterCall, Inc. to West Unified Communications Services, Inc. (“West UC”).
IMPORTANT- READ CAREFULLY: CUSTOMER'S USE OF THIS WEBSITE AND THE SERVICES ARE CONDITIONED UPON CUSTOMER'S COMPLIANCE AND ACCEPTANCE OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES. CUSTOMER IS ENCOURAGED TO PRINT OR DOWNLOAD THESE TERMS AND CONDITIONS AND SAVE THEM FOR CUSTOMER'S RECORDS.
This Agreement (the "Agreement") is between the individual or legal entity using, purchasing or opening an account for Services ("Customer") and West Unified Communication Services, Inc. (formally known as InterCall, Inc.) or any of its subsidiaries which invoices Customer for the Services ("WestUC"). Please read this Agreement carefully before installing, accessing, or otherwise using the Services. By installing, accessing, or otherwise using Services, Customer agrees to be bound by this Agreement. Please maintain a copy for Customer's records. If Customer does not agree with the terms of this Agreement, do not use the Services.
This Agreement governs the purchase and use of audio, video and web conferencing services and related products and services of WestUC ("WestUC Services") and its third party suppliers ("Third Party Services") (the WestUC Services and Third Party Services are referred to collectively as the "Services"). WestUC may alter, expand, or reduce the features of the Services from time to time without notice to Customer. Customer agrees that WestUC's obligation to provide Services is conditioned upon Customer providing all information and assistance reasonably required to perform the Services and Customer hereby agrees to timely provide all such information and assistance. WestUC reserves the right to reclaim any dial-in numbers at any time. Customer acknowledges that not all Services can be guaranteed from all locations including, but not limited to via mobile telephones, pay phones or satellite phones due to various in-country, carrier or other restrictions.
The Term of this Agreement or any Order Form shall remain in effect until terminated in accordance with the provisions of this Agreement (the "Term").
Termination of the Agreement
Either Customer or WestUC may terminate this Agreement at any time for convenience upon written notice to the other party; provided that the term of each Order Form, if any, shall be governed by such Order Form and shall continue for the term of the Order Form notwithstanding any termination of this Agreement. The termination of any Order Form shall not otherwise effect the Term of this Agreement or any other Order Form. All termination and non-renewal notices must be sent in writing to WestUC via e-mail to [email protected] or via facsimile to (706) 634-4270.
Termination For Cause
This Agreement or any Order Form may be terminated by the non-breaching party upon a material breach by the other party of a material provision of this Agreement or the relevant Order Form and such breach is not cured within sixty (60) days after written notice or within ten (10) days after written notice if the breach is a payment breach.
Effect of Termination
The termination of any Order Form shall not otherwise effect the Term of this Agreement or any other Order Form. If Customer terminates any Order Form for cause: (a) Customer will pay for all Services rendered up to the date of termination; (b), WestUC will reimburse Customer for any amounts prepaid by Customer for Services not rendered; and (c) Customer shall be relieved of any future payments due under such Order Form. Otherwise, upon any termination of this Agreement or any Order Form, Customer shall pay for: (a) all Services rendered up to the date of termination; and (b) any minimum shortfall or future amounts due under this Agreement and any Order Form including the current renewal thereof, if applicable. All use of Services after termination shall be billed at standard rates.
Payments, Rates, Charges and Taxes
Payments and Charges
WestUC will invoice Customer electronically free of charge or via paper invoice for a fee. Customer agrees to make payment for all Services upon receipt of invoice, or such later date if specified on the invoice, to the location and in the manner directed on the invoice. Invoices not paid on a timely basis will be subject to interest or late fees in accordance with the WestUC finance policy applicable to Customer's location or the maximum legally allowable interest rate, whichever is lower. Customer may obtain the finance policy applicable to Customer's location by contacting [email protected]. Customer must notify WestUC of any disputed charges within thirty (30) days from the date of the invoice, otherwise Customer will be deemed to agree to such charges and WestUC will not be subject to making adjustments to charges or invoices. Customer acknowledges and agrees, that: (1) unless indicated otherwise, Services are charged by multiplying all inbound or outbound legs of all conferences by the applicable per minute rate; (2) Service rates specifically negotiated by Customer and agreed to by WestUC as indicated on WestUC's invoices to Customer shall be deemed "Negotiated Rates;" (3) Services that are not subject to Negotiated Rates, including conference legs to or from a location outside the host country and all taxes, fees, and surcharges, will be charged at WestUC's standard rates ("Standard Rates"); (4) Customer may obtain WestUC's Standard Rates through Customer's sales or account representative or in some cases through Customer's web account. For customers using the multimedia minute product, in order to obtain the blended multimedia rate for each leg of the conference, any meeting participant who dials into the call (rather than having the meeting call out to them) must have their audio and web connections synchronized during the meeting. Failure to do so will result in an audio and a web charge at customer's applicable charges for such services.
PRICE CHANGES. CUSTOMER ACKNOWLEDGES AND AGREES THAT STANDARD RATES ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT WEST PROVIDING SPECIFIC NOTICE TO CUSTOMER BY WEST POSTING NEW STANDARD RATES. CUSTOMER THEREFORE AGREES TO CHECK WEST'S STANDARD RATES FROM TIME TO TIME AND IN EACH CASE PRIOR TO USING ANY SERVICES SUBJECT TO STANDARD RATES. NEGOTIATED RATES FOR ANY SERVICE, FEATURE OR FEE (INCLUDING WAIVERS THEREOF) ARE SUBJECT TO CHANGE AT ANY TIME ON THIRTY (30) DAYS PRIOR WRITTEN NOTICE TO CUSTOMER OR AT ANY TIME AS TO A SPECIFIC SERVICE WITHOUT PRIOR NOTICE TO CUSTOMER IN THE EVENT SUCH SERVICE REMAINS DORMANT (I.E.,IS NOT USED) FOR A PERIOD OF TWELVE MONTHS OR LONGER. CUSTOMER AGREES THAT EITHER OR BOTH OF NEGOTIATED RATES AND STANDARD RATES MAY BE INCREASED BY WEST BY 15% (ROUNDED UP TO THE NEXT FULL CENT) EACH YEAR WITHOUT PRIOR NOTICE TO CUSTOMER. IN LIGHT OF THE PRICE CHANGING POLICIES HEREIN, CUSTOMER THEREFORE AGREES TO CAREFULLY REVIEW EACH INVOICE PRIOR TO MAKING PAYMENT AND TO NOTIFY WEST OF ANY RATE DISPUTES WITHIN THIRTY (30) DAYS FROM THE DATE OF THE INVOICE, OTHERWISE CUSTOMER WILL BE DEEMED TO AGREE TO SUCH RATES AND TO HAVE WAIVED ANY RIGHTS TO DISPUTE THEM IF NOT RAISED WITHIN THIRTY (30) DAYS FROM THE DATE OF THE INVOICE.
In the event charges due are not timely paid in full for any reason, WestUC shall have the right to suspend all or any portion of the Services until such time as all charges and applicable interest amounts and/or late fees have been paid. In addition, if any outstanding invoice has not been paid in full within 60 days of the date due, WestUC may (i) increase the per minute or per use charge for any service by up to 15% (rounded up to the next full cent) beginning with Customer’s usage on the 61st day in which the invoice was due; and (ii) charges and features that may have been waived in the past will no longer be waived, both of which may be done without any further notice. The new rates, if applied by WestUC, will continue in effect until a written agreement expressly lowering such rate is executed by an authorized representative of each party. This rate increase is in addition to any and all other rate increases allowed pursuant to these terms and conditions. Following such payment, WestUC may reinstate Services only upon satisfactory assurance of Customer's ability to pay for Services, including modified payment terms such as prepayment and/or accelerated invoicing. Such suspension shall not relieve Customer of any payment liability. Customer agrees to reimburse WestUC for any costs, expenses, or fees expended by WestUC in connection with any collection efforts against Customer, including reasonable internal and outside attorneys' fees.
Taxes, Fees and Surcharges
In addition to the rates for the Services, Customer shall pay all applicable fees, duties, tolls, administrative assessments, surcharges, or taxes (collectively “Taxes”) now or hereafter attributable to the Services and included on Customer's invoice. In the event Customer is required by law to make any deductions or to withhold from Customer’s payment to WestUC, Customer shall pay WestUC such additional amounts so that the net amount WestUC receives from Customer is equal to the full amount for the charges which WestUC would have received from Customer had such withholding not been made and in such case, Customer shall pay the applicable tax authorities any such required deduction or withholding. For Services provided under this Agreement, WestUC will assess any applicable Taxes based on the geographic location of the billing address of the Billing Contact Owner Name in the WestUC billing system. In the event WestUC does not have an address for the Billing Contact Owner Name, then WestUC will assess Taxes based on the geographic location provided at the Account level in the WestUC billing system.
Subject to Customer's compliance with the terms and conditions of this Agreement, WestUC hereby grants Customer a non-exclusive license during the applicable Term to use the Services. Except as specifically set forth herein, WestUC or its suppliers retain all right, title, and interest, including all intellectual property rights, relating to or embodied in the Services, including without limitation all technology, telephone numbers, web addresses, software, or systems relating to the Services. Customer agrees not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of any software related to the Services. Customer agrees that use of Third Party Services such as Microsoft Live Meeting and WebEx is subject to the license agreement of such provider. Other than using the Services for conferences or meetings in which Customer are an active participant, Customer may not resell the Services or otherwise generate income from the Services.
Responsibility for Customer's Accounts
Customer is responsible for maintaining the confidentiality of Customer's accounts, owner numbers, conference codes, passwords and personal identification numbers used in conjunction with the Services and for all uses of the Services in association with Customer's accounts whether or not authorized by Customer. WestUC does not sell products or services for children. Customer will not allow children under 18 to use the Services without the involvement of a parent or guardian. Customer agrees to immediately notify WestUC of any unauthorized use of Customer's account of which Customer become aware.
Responsibility for Communications
Customer is the sole owner of content and solely responsible for the content of all communications (visual, written or audible) using Customer's accounts. Customer shall comply with all laws while using the Services; shall not transmit any communication that violates any law, court order, or regulation; shall not violate any third party rights in using the Services; and shall not use the Services in any way that damages WestUC's property or interferes with or disrupts WestUC's system or other users. Although WestUC is not responsible for any such communications, WestUC may suspend any such communications of which WestUC is made aware. Use of conference recording or taping any use of the Services by Customer may subject Customer to laws or regulations and Customer is solely responsible for and obligated to provide any required notification to participants prior to commencement of said conference. Customer acknowledges and agrees that WestUC has not and is not expected to provide Customer with any analysis, interpretation or advice regarding Customer's compliance with the above and does not control Customer's content nor guarantee the accuracy, integrity, security or quality of Customer's content.
Privacy and Data Use
ALL SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND WITHOUT ANY WARRANTY. CUSTOMER UNDERSTANDS AND AGREES THAT WEST'S SERVICES AND THE WEBSITE ARE PROVIDED "AS IS" AND "AS AVAILABLE". WEST AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WEST MAKES NO WARRANTY OR REPRESENTATION REGARDING ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH WEST'S SERVICES OR WEBSITES, OR THAT THE SERVICES WILL MEET ANY OF CUSTOMER'S REQUIREMENTS, OR BE UNITERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF THE SERVICES AND WEBSITE ARE AT CUSTOMER'S SOLE RISK. WEST IS NOT LIABLE FOR ACTS OR OMISSIONS OF OTHER SERVICE PROVIDERS, FOR INFORMATION OR CONTENT OF COMMUNICATIONS, THIRD PARTY SERVICES, EQUIPMENT FAILURE OR MODIFICATION, OR CAUSES BEYOND WEST'S REASONABLE CONTROL.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WEST, OR ITS SUPPLIERS OR THEIR AFFILIATES, BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL ORINCIDENTAL DAMAGES WHATSOEVER OR LOSS OF GOODWILL, DATA OR PROFITS, OR COST OF COVER ARISING OUT OF, OR RESULTING FROM THE SERVICES, THIS AGREEMENT OR ANY ORDER FORM REGARDLESS OF THE LEGAL THEORY OF RECOVERY, EVEN IF WEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID, CUSTOMER AGREES THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY CUSTOMER IN REASONABLE RELIANCE, UP TO THE LESSER OF THE AMOUNT OF A REFUND OF THE PRICE THAT CUSTOMER ACTUALLY PAID FOR THE SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY) OR ONE THOUSAND DOLLARS (US$1,000).
Customer shall indemnify, defend and hold WestUC, its suppliers, their affiliates and their officers, directors, employees (the "WestUC Indemnitees") harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys' fees, which arise out of or relate to: (1) Customer's use of the Services (including without limitation, any person accessing the Services using Customer's account); (2) any actual or alleged violation of this Agreement, any Order Form or any applicable law, rule or regulation by Customer or any person accessing the Services using Customer's account; (3) or any actual or alleged infringement or violation by Customer or any person accessing the Services using Customer's account of any intellectual property or privacy or other right of any person or entity.
WestUC and Customer agree to use commercially reasonable efforts to protect from unauthorized disclosure Confidential Information of the other party. Confidential Information shall mean information that derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and marked as Confidential ("Confidential Information"). The parties agree that Confidential Information may be disclosed to employees, affiliates, suppliers or advisors on a need-to-know basis and who agree to be bound by confidentiality terms and conditions at least as stringent as those herein. This confidentiality obligation shall not apply to any information (i) independently developed by a party, (ii) generally available to the public other than by a party's breach of this Agreement, (iii) already known by a party at time of disclosure to that party, or (iv) rightfully received from a third party without restriction on disclosure or an obligation of confidentiality running directly or indirectly to the other party. Nothing shall prevent or prohibit the receiving party from providing access to Confidential Information as may be required by law, rule or regulation. Notwithstanding the foregoing, the parties acknowledge that Recipient shall not be required to return to Discloser or destroy those copies of Information residing on Recipient's backup, disaster recovery or business continuity systems and the obligations hereunder with respect to such Information shall survive until such Information is destroyed.
Use of the Services by the United States Government or other governmental agencies shall be as "restricted computer software" or "limited rights data" as set forth in 48 CFR 52.227-14, or as "commercial computer software" or "commercial computer software documentation" under DFARS 252.227-7202, or under such other similar applicable terms and conditions to prevent the transfer of rights in and to the technology to the government or such agency other than under normal commercial licensing terms and conditions. Contractor/manufacturer is West Unified Communications Services, Inc. 8420 W. Bryn Mawr Ave., Suite 1100, Chicago, IL 60631.
Export and Import Control Laws and Regulations
Customer acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Services and any related software. Without limiting the foregoing, Customer acknowledges that the Services and any related software are or may be an "encryption item" subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. Customer agrees not to export or re-export the Services or any related software in any form in violation of the export laws of the United States or any foreign jurisdiction.
Message delivery Services
If Customer uses Services to send fax, email, phone, text, SMS, or other messages ("Messages") to any recipients (the "Recipients") as a condition for using such Services, Customer represents and warrants that a) that Customer will not make any automated outdials to induce the purchase of goods or services or to solicit a charitable contribution; and (b) Customer has the legal right to send all Messages to the Recipients (including obtaining any required consents from the Recipients) and the content timing and purpose of all Messages, campaigns and programs are in compliance with all applicable laws, rules and regulations including those with respect to timing, content, do not call lists and: the following laws of the United States: TCPA 47 USC 227; CANSPAM Pub. L. No. 108-187; and TSR 16 CFR 310; the following laws of Canada: the Canadian Radio-television and Telecommunications Commission concerning telemarketing and unsolicited faxes, Personal Information Protection and Electronic Documents Act; and from the following laws of the United Kingdom: the UK Privacy and Electronic Communications Regulations 2003. Customer further acknowledges that Customer is the sender of all Messages and WestUC is acting at Customer's direction as the broadcaster of the Messages. WestUC does not provide content and Customer shall be solely responsible for all content of the Messages and for providing any list of names, numbers or addresses for WestUC to utilize in sending Messages.
If any part of this Agreement is determined to be invalid or unenforceable, then such invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the allocation of risks, and the remainder of the Agreement will continue in effect. If any provision(s) is found to be contrary to law, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. WestUC's failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision unless agreed to by WestUC in a non-electronic writing manually signed by a duly authorized representative of WestUC. If there is any law, rule, regulation or policy that causes WestUC to be regulated or that causes the Agreement or Services to be in conflict with such law, rule, regulation or policy, WestUC may terminate or modify the affected Services without liability.
Except as otherwise expressly provided herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise. Customer acknowledges that WestUC is an independent contractor, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. This Agreement is for the sole benefit of WestUC and its affiliates and Customer and is not intended to, nor shall it be construed to, create any right or confer any benefit on any other party. The parties do not intend that this Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to this Agreement. The parties confirm that they wish to have this Agreement written in English only. Les Parties aux présentes confirment leur volonté que cette Convention soit rédigée en langue anglaise seulement. Customer authorizes WestUC's monitoring including recording of calls for the purposes of quality assurance and Customer further consent to WestUC's use of automatic dialing equipment to contact Customer. WestUC's performance of the Services is subject to existing laws and legal process, and nothing contained in this Agreement or any Order Form is in derogation of WestUC's right to comply with governmental, judicial and law enforcement requests or requirements relating to Customer's use of WestUC's Website, the Services or information provided to or gathered by WestUC with respect to such use. Customer may not assign this Agreement or any Order Form to any other person or entity without WestUC's prior written approval, but nothing restricts WestUC's ability to assign this Agreement or any Order Form or subcontract the Services hereunder.
Governing Law; Exclusive Forum; Jurisdiction
If Customer is incorporated or registered in, or if not incorporated or registered, resides in Europe, the Middle East or Africa, this Agreement shall be governed and construed by the laws of England and Customer irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts sitting in England with respect to any dispute, controversy or claim arising out of or relating to this Agreement or any Services provided by WestUC. If Customer is incorporated or registered in, or if not incorporated or registered, resides in Asia, Australia, New Zealand or the Indo – Pacific region, this Agreement shall be governed and construed by the laws of Singapore and Customer irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts sitting in Singapore with respect to any dispute, controversy or claim arising out of or relating to this Agreement or any Services provided by WestUC. If Customer is incorporated or registered in, or if not incorporated or registered, resides in North, Central or South America or any other region of the world not mentioned above, this Agreement shall be governed and construed by the laws of Delaware USA and Customer irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts sitting in Omaha, Nebraska USA with respect to any dispute, controversy or claim arising out of or relating to this Agreement or any Services provided by WestUC.
Customer agrees to service of process by mail directed to Customer's billing address. Customer waive all defenses including but not limited to sovereign immunity, lack of personal jurisdiction and forum non conveniens and expressly waive any right to bring suit or have any action heard in Customer's local courts. Customer agrees that any claim or cause of action arising out of or related to this Agreement must be commenced by Customer within one (1) year after the cause of action arose.
WestUC will not be responsible for delays and/or defaults in its performance due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing; acts of terrorism, wars, hostilities, revolutions, riots, civil commotion, national emergency, fire or explosion, flood, force of nature, embargoes, accidents, acts of God, or stability or availability of the Internet, the elements; telecommunication system failure; technology attacks, epidemic; quarantine; viruses; strike; lockouts; disputes with workmen or their labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or request of any governmental authority; or any other cause beyond WestUC's control, whether or not similar to the foregoing.
This Agreement in addition to Order Forms, if any, executed by the parties (each an "Order Form") constitute the entire agreement between WestUC and Customer with respect to the Services and supersedes all prior or contemporaneous communications and proposals, representations, promises, or agreements, whether electronic, oral, or non-electronic, between WestUC and Customer regarding them. Customer agrees that any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that Customer may now or later provide to WestUC, will have no effect and that this Agreement is the only contract between WestUC and Customer regarding the Services and may only be amended as set forth herein. The application of the United Nations Convention on the International Sale of Goods is hereby expressly excluded. A printed version of this Agreement and of any notice given to Customer in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Notices from WestUC to Customer under this Agreement may be sent by mail, email, fax or other electronic media and will be considered given upon delivery to the physical address, fax number, email address or other contact information provided by Customer for billing or account management purposes. Notices to WestUC must be sent to the address mentioned in WestUC's invoice to Customer with a courtesy copy to 8420 W. Bryn Mawr Ave., Suite 1100, Chicago, Illinois 60631, Attn: Legal Department; Fax: 706.902.3961; Email: [email protected]. All notices shall be in English.
WestUC may, at any time, amend the provisions of this Agreement. Any amendment proposed by Customer may only be accepted by WestUC in a non-electronic writing manually signed by authorized representatives of the parties. Notwithstanding anything in this Section to the contrary, if WestUC posts amended terms on its Website, such terms will automatically become effective ten (10) days after they are posted on the Website. By using the Services after such revised terms are posted, Customer agrees to be bound by any such amended provisions. Therefore, Customer agrees to periodically visit the Website to examine the then-current Agreement.
Effective February 1, 2016