Last Updated on Mar/22.
The following clauses define the Master Agreement of Services rendered by LinkedIP LLC
(‘LinkedIP') and end users (‘Customers’) of XCALLY software . The use of the services
constitute acceptance of this agreement. IF YOU DO NOT AGREE TO THESE TERMS OF USE,
YOU MAY NOT USE THE SERVICES.
1. Definitions
“Account” means the relationship established by LinkedIP and associated with Customer and
the Services provided to Customer under this Agreement.
“Account Information” means business contact information associated with the Account;
usage records of the Services; configuration data; and Customer’s call logs generated by
LinkedIP.
“Administrator” means the person(s) within Customer’s organization recognized by LinkedIP’s
systems as being vested with specific rights regarding the Services, who is (are) responsible for
the administration and management of Customer’s Accounts and has (have) access to specific
functionalities attached thereto.
“Affiliate” means any entity existing from time to time that directly or indirectly controls, is
controlled by, or is under common control with the subject entity.
“Agreement For Service” means the document that may be entered between Customer and
LinkedIP, from time to time, to set forth certain fees, the selected Plan, the Initial Term (as
defined below) and other material terms associated with this Agreement and executed by
Customer.
“Confidential Information” means any proprietary and/or confidential information disclosed, in
the course of and during the Term of the Agreement, by one Party (the “Disclosing Party”) to
another Party (the “Receiving Party”).
“Contact Center Suite” or "Software"mean the XCALLY software edition used in connection
with the Service, the volume of agent and administrator/supervisor licenses based on a volume
tier, and optional add-ons.
“Credit limit” means the amount of unsecured or secured credit that LinkedIP granta a client
and that MUST be paid in full during the next billing cycle. LinkedIP at its sole discretion
reserves the right to assign specific credit limit amounts and they may be subject of change
without prior notice.
“Customer” means, in the case of an individual accepting this Agreement on his or her own
behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a
company, corporation, governmental organization, or other legal entity, the company,
corporation, governmental organization, or other legal entity on behalf of which such individual
is accepting this Agreement, as well as any Affiliates of such company, corporation,
governmental organization, or other legal entity which have accepted a Proposal and signed an
Agreement For Service (‘AFS').
“Customer Data” means the data contained in Customer’s calls, facsimiles, messages,
voicemails, voice recordings, shared files, conferences, call meta-data, configuration data, or
other Customer communications transmitted or stored through the Services.
“DID or Phone Number” means the phone number provided to Customer by LinkedIP.
“Effective Date” means the date on which Customer first subscribes to any of the Services or
the date the Customer executes an Agreement For Service.
“Fees” means, collectively, Fixed Fees, Usage Fees (as defined below) and any and all other
applicable charges and fees. Fees are collected in USD.
“Include” and “Including” means including without limitation.
“Infrastructure Services” means the hardware, hosting and storage capacity needed to run the
Contact Center Suite software.
“Intellectual Property” means all intellectual property and technology, regardless of form,
including (a) published and unpublished works of authorship; (b) inventions and discoveries,
including business methods, compositions of matter, methods, and processes and new uses
for any of the preceding items; (c) words, names, symbols, devices, designs, and other
designations, and combinations of the preceding items, used to identify or distinguish a
business, good, group, product, or service or to indicate a form of certification; (d) information
that is not generally known or readily ascertainable through proper means, whether tangible or
intangible; and (e) computer programs, operating systems, applications, firmware and other
code, including all source code, object code, application programming interfaces, data files,
databases, protocols, specifications, and other documentation thereof.
“Law(s)”, “Applicable Laws” means any and all law, statute, regulation, rule, ordinance,
administrative guidance, treaty, convention, and/or court or administrative order or ruling of any
governing body with jurisdiction over the Services, the Customer and/or Customer’s use of the
Services.
“LinkedIP Self Care Portal” means the online portal through which the Administrator(s)
monitors usage and billing of the Account(s).
“Out of the box” means features included with the software.
“Plan” means, any combination of subscription fees including Contact Center Suite,
Infrastructure Services, Communication Services and Managed Professional Services fees for
the provision of Services made available to Customer. The features and applicable Fees, if any,
were listed on the Proposal sent to Customer and accepted by the execution of an Agreement
For Services document.
“Plan Term” means collectively, the Plan Initial Term and the Renewal Term.
“Professional Services Plan” means the subscription to a managed ongoing support hours
rendered monthly by professionals for specific solution support, changes, moves, adds,
integrations and training. It also relates to the Service Level Agreement and Response Times.
“Purchase” means an order for certain LinkedIP’s Services, including Plans and LinkedIP
Numbers, which is placed through the LinkedIP Dashboard or the Site.
“Self hosted” means software which hosting needs to be taken care of by an entity that could
be either LinkedIP or the Customer.
“Services” means any and all of the services provided under this Agreement and/or made
available to Customer by LinkedIP from time to time pursuant to a Purchase or Order Form.
“Services Start Date” means the date Services are made available to Customer pursuant to an
Agreement For Service.
“Site” means the LinkedIP website, blog site, Help Center site, Self Care Portal along with the
XCALLY administration website.
“Support Plan” means the available level of software support in connection with the
provisioned Contact Center Suite.
“User” means an employee, consultant, contractor or any person using or accessing the
Services or Site via Customer’s Account.
“XCALLY Administration Portal” means the online portal through which the Administrator(s)
controls Service settings.
2. Description of the Service
XCALLY is a self-hosted OmniChannel Contact Center software suite that can be run on
premise or on the cloud. When purchased ‘As A Service’ LinkedIP bundles XCALLY along with
infrastructure, communication and professional services, from now on the Service. The service
is offered according to a previously selected software edition, add-ons, hosting infrastructure,
phone and/or toll free numbers, calling plans, software support and managed professional
services that were selected by Customer during the sales process.
Unless requested and stated in the Agreement For Service, costumer acknowledges and agrees that the Services do not support any emergency calls, including to any type of hospitals, law enforcement agencies, medical care units or any type of emergency service, such as 911 calls and/or services (collectively, “Emergency Services”) or premium, surcharged or special services of any kind, which may need to be obtained from a local telephone service provider. Furthermore, Customer acknowledges and agrees that it is Customer’s responsibility to inform Users and Administrators that access and/or calls to Emergency Services are not available using the Services.
3. Minimum Monthly Recurring Charges
LinkedIP may request to Customer a minimum purchase on the volumes of Users on the
Contact Center Suite, Infrastructure services, Communication Services and Managed
Professional Service package. If so, Customer agrees to commit to the specified minimum
Monthly Recurrent Charges.
4. Connection requirements
Customer understands, acknowledges, and agrees that: (i) Customer must have a high-quality,
high speed, and low latency internet connection to use the Services; and (ii) LinkedIP is not
providing an internet connection for Customer. LinkedIP does not control and is not
responsible for: (i) Customer's internet connection; (ii) the quality of Customer's internet
connection; (iii) any third party products and/or services related to Customer's internet
connection; or (iv) problems with the Services that are caused by or related to Customer's
internet connection. LinkedIP will not contact any of the internet providers and/or service or
product providers on Customer's behalf.
5. Acceptable Use Policy
Any and all access to and/or use of the Services by Customer, its Users and/or Administrators
is conditioned upon compliance with the following Acceptable Use Policy (“AUP”).
Customer shall not and will cause its Users and Administrators not to use the LinkedIP
Services to: a) circumvent or disable any technological features or security measures
implemented in the Services; b) violate any Law, published policy, or any applicable third-party
policy or requirement communicated or otherwise made available by LinkedIP; c) violate or
infringe upon LinkedIP’s or a third party’s Intellectual Property, publicity privacy, or other
tangible or intangible rights and/or use, without a valid license, any material or content that is
subject to third-party proprietary rights; d) transmit any illegal content; e) use the Services for
benchmarking or for any other purpose other than as necessary to use the Services Customer is authorized to use; f) stalk, harass, harm another individual, engage in spamming, phishing,
pharming or other unsolicited advertising, marketing or other activities in connection with any
unsolicited communications (commercial or otherwise) including unsolicited or unwanted
phone calls or voicemails; g) engage in a fraudulent activity to the prejudice of third-parties
otherwise use the Services to bypass phone identification systems; h) perform “robocalls” out
of compliance of the Telephone Consumer Protection Act of 1991, the Federal Trade
Commission and Telemarketing Sales Rule and FCC Robocall Mitigation Law of 2021.; i) use
any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that
are designed to distort, delete, damage, emulate or disassemble the Services; j) expose any
third party to material that is offensive, harmful to minors, indecent or otherwise objectionable
in any way, regardless of whether such activity is lawfully permitted; k) send any
communications, including email messages on behalf of, or purporting to originate on behalf of
LinkedIP; and l) trunk or forward Customer’s LinkedIP number to another phone number(s)
capable of handling multiple simultaneous calls, or to a private branch exchange (“PBX”) or a
key system. In addition to the above restrictions and in order to provide the best pricing,
support and Services, LinkedIP reserves the right to: (i) impose limits on Customer and/or its
Users’ and Administrators’ usage of the Services; (ii) charge Customer the applicable per
minute rate; (iii) or to terminate the Services, in each case (i) through (iii) notwithstanding
Customer’s purchase of an unlimited minute plan, if LinkedIP believes, in its sole reasonable
discretion, that Customer’s and/or its Users’ and/or Administrators’ usage, including the total
number of calls made and/or minutes used by Customer and/or its Users and/or
Administrators, is not consistent with normal, fair, and reasonable use of such Services.
Wherever reasonably possible, LinkedIP will provide Customer with a written notice before
taking any such action, and may allow a reasonable period to allow Customer to modify such
use. The restrictions contained in this Section 5 are not exhaustive or exclusive. LinkedIP may
impose additional restrictions upon notice or posting to the Site from time to time. LinkedIP
may suspend or terminate the Services and/or this Agreement in accordance with Section 13.2
if, in LinkedIP’s sole discretion, Customer’s, its Users’ and/or Administrator’s use of the
Services violates the terms of the AUP. Notwithstanding anything set forth in this Agreement
and in addition thereto, Customer’s use of the call recording functionality must comply with any
and all local laws and regulations including local notice requirements thereof.
6. Local Phone Numbers, Toll Free Numbers and International Numbers
6.1 Usage Rules.
As part of the Services, LinkedIP may make available LinkedIP or Affiliate's numbers (‘LinkedIP
Numbers’) to Customer in multiple countries. LinkedIP has agreements in place with regulated
providers of electronic communications which provide LinkedIP with phone numbers from
multiple cities, states and countries. The provision of LinkedIP Numbers is subject to the
numbering rules and regulatory practices applicable in the geographic region where Customer,
Users and/or Administrators have markets or are located as well as in the relevant country(ies)
and locations from which the LinkedIP Numbers were purchased. Such rules and regulatory
practices may change or be amended from time to time, and LinkedIP therefore reserves the
right to modify the terms hereunder to the extent necessary to comply with such changes or
amendments. Customer may purchase LinkedIP Numbers and assign them to an Account
subject to the allocation requirements displayed upon Customer’s subscription to any Services.
Customer shall use the LinkedIP Numbers in compliance with any and all applicable Law
including such applicable allocation requirements. LinkedIP reserves the right, in its sole discretion, to cancel the subscribed LinkedIP Numbers for any or no reason, including in the
event Customer, its Administrators and/or Users breach such applicable allocation
requirements without penalty and without prejudice to its rights to claim damages therefore.
6.2 Portability.
In using the Services, Customer may request an LinkedIP Number or may port its existing
numbers (“Existing Number”) into Customer’s Account subject to the terms and conditions
herein. In order to request the porting of an Existing Number into an Account, the Account
Administrator for the Account into which Customer wishes the Existing Number to be ported
must complete all steps listed requested by LinkedIP including the disclosing of account
information, credentials, PINs, and any other relevant service provider and/or third party from
time to time. Customer must provide accurate and detailed information to LinkedIP, any other
relevant service provider, and/or third party in order to port a number into an Account and
Customer represents and warrants that such information is and will be at all times accurate,
true and up-to-date. Customer acknowledges and agrees that as part of the porting process,
LinkedIP, any other relevant service provider and/or third party must, as part of its compliance
with applicable Laws and industry standards, follow certain processes and that therefore the
completion of any number porting request may be delayed for reasons outside of LinkedIP’s
control. LinkedIP must, by Law, comply with all valid porting requests. Phone numbers may be
ported-out of an Account in connection with acts or omissions of third parties and Customer
acknowledges that: (i) it may be difficult or impossible for LinkedIP to prevent such porting out
of numbers from an Account; (ii) LinkedIP may not be able to retrieve a phone number ported
out of an Account; and (iii) LinkedIP shall not be liable for any such porting out. Upon
termination or cancelation of an Account, all telephone numbers associated with the Account
may be released by LinkedIP if such numbers have not been ported to another provider prior to
such cancelation or termination. Customer acknowledges and agrees that it is solely
responsible for coordinating with its new third-party provider to port out any telephone
numbers prior to termination or cancellation of Customer’s Account and/or termination of this
Agreement.
7. Pricing and Invoicing
7.1 Trial.
LinkedIP may opt at its sole discretion to offer Customer a trial of the Services for a specific
period (‘Trial Period’). This Trial Period may be free of cost or may be offered with some costs
depending on specific business cases. During the Trial Period customer shall be permitted to
make outbound and inbound calls and enjoy out of the box integrations. At the end of the Trial
period, Customer may purchase additional products and services not included in the Trial by
customizing a Plan. No data migration or custom integrations are offered without a cost during
a trial.
7.2 Fixed Fees.
Customer may select a Plan on either a i) monthly basis, ii) monthly basis with committed term
or iii) an annual basis. Currency for fees will be USD. For Customers with billing address
outside of the United States a conversion to USD will be used. Unless otherwise provided for in
the relevant Proposal or Agreement For Services, the fees to be paid by Customer that are
associated with such Plan shall cover for Contact Center Suite and add-on fees, Infrastructure
fees, fixed Communication service fees, Software Support fees and Managed Support fees.
For the avoidance of doubt, fees associated with SMSes, WhatsApp For Business API
messages, and calls (where applicable) shall not be included in the Fixed Fees. Fixed Fees may be updated by LinkedIP at any time, and LinkedIP will endeavor to provide notice of such
update prior to its implementation. Such updated Fixed Fees shall be effective on the first day
of the next Renewal Term.
7.3 Usage Fees.
The fees to be paid by Customer that are associated with inbound/outbound calls, where
applicable, shall be calculated by multiplying the per-minute rate applicable to such calls (“Per-
Minute Rates”) with the Chargeable Time (as defined below) (such fees, the “Usage Fees”).
Usage and the duration of calls shall be calculated as follows: (i) in full-minute increments; (ii)
calls shall be rounded up to the next full minute increment at the end of each call for invoicing
purposes; (iii) calls will be deemed to begin (A) for outbound calls when a connection to the
number Customer is trying to reach is established and recorded in LinkedIP’s system, and (B)
for incoming calls when a signal connection from the caller is recorded in LinkedIP’s system;
(iv) calls will be deemed to end when Customer or Customer’s correspondent have ended the
call or where the call has ended due to a technical malfunction, but a call shall not be deemed
ended until Customer’s signal of a call disconnect is recorded in the LinkedIP system; (such
calculation of the duration of calls as detailed in (i) through (iv) included, “Chargeable Time”).
LinkedIP may change the Per-Minute Rates at any time and will endeavor to provide notice of
such change prior to its implementation. Such change shall be effective on the first day of the
next Renewal Term. Customer may request the Per-Minute Rates currently applicable by
sending a request to support@linkedip.com. The Services shall be subject to the following
conditions: a) Outbound calls, conference calls, and calls to premium numbers (where
applicable) will incur Usage Fees; b) inbound calls on local numbers to Customer will incur in
Usage Fees regardless of the geographic region where are originated; c) all inbound calls on a
toll-free phone line shall incur Usage Fees; d) any internal calls or communications (including
calls, voicemail deposits and call transfers) between Users, or between a User and an
Administrator, shall be free of charge provided such calls have been made using the Services;
e) outbound calls for which LinkedIP receives answer supervision (i.e. connecting time)
including ring time, shall incur a minimum of one (1) minute of Chargeable Time (answer
supervision may also be generated by voicemail systems, private branch exchanges, and
interexchange switching equipment); f) calls forwarded to mobile phones or landlines shall be
deemed outbound calls and shall incur Usage Fees; g) calls received by Customer from a third
party using a local/toll-free phone line which call is subsequently forwarded or transferred shall
be deemed to be the same call; h) SMS shall be billed in segments of 160 characters each; I)
WhatsApp messages shall be charged according to WhatsApp For Business API policy of
charges which at at time of this agreement is to charge by sent/received message.
7.3.1 Deposit for Usage Fees.
At the sole discretion of LinkedIP it may be required that Customer prepays or deposits certain
amount of money to cover for estimated usage fees during the first billing cycle.
7.3.2 Credit Limit for Usage Fees.
Upon the evaluation of certain factors such as but not limited to payment history, credit
worthiness, references or the sole LinkedIP discretion, a Credit Limit will be assigned to
Customer. Credit Limit allows Customer to make and receive calls and messages without
having to prepay for its cost. Credit Limit will make Customer to increase its current balance
and such balance shall be paid at the closing of a billing cycle. Some Credit Limits require
Credit or Debit cards on file as a way to secure payment. Removal of such payment methods
may result in removal or decrease of the Credit Limit.
7.3.3 Collection of accrued balance.
in the cases of eventual changes to the average Usage Fees, or at the sole discretion of
LinkedIP, and at any time during the billing period, LinkedIP may withdraw from current payment methods any accrued balance. Failing to pay this balance once requested may lead
to the termination of this agreement.
7.4 Payment.
LinkedIP accepts payments by Wire Transfer, Zelle, ACH, Zelle, PayPal and Credit Card. By providing a valid credit or debit card information or any other approved payment method (“Payment Method”), Customer expressly: (i) authorizes LinkedIP and/or any other company or
individual acting in LinkedIP’s name to charge the Payment Method as follows: (x) monthly for
Usage Fees; at the billing frequency chosen and specified by Customer on the relevant Order
Form or Purchase, as applicable, for Fixed Fees (the “Billing Frequency”); and (y) for any and all
other fees in connection with the Services including recurring payments billed on a monthly or
annual basis and to continue attempting to charge and/or place holds on such Customer’s
Payment Method until such amounts are paid in full; (ii) agrees to update such Payment
Method from time to time as necessary; and (iii) acknowledges and agrees that LinkedIP shall
not be liable for any expired credit/debit card, insufficient funds or other charges Customer
incurred as a result of such attempts to charge, and/or place holds on, such Payment Method;
(iv) agrees to to keep a valid Payment Method is in Customer’s Account at all times. In the
event Customer selects a Plan that includes a predetermined allotment of services, unless
otherwise specifically provided as a part of such Plan, any unused allotment of such services
from one billing cycle will NOT carry over to any future billing cycle. Customer agrees that it
shall be responsible for any and all fees, if any, associated with wire transfers used for payment
of invoices to LinkedIP. All invoices shall be paid by Customer within five (5) days of the invoice
date.
7.5 Taxes.
Unless specified in the Proposal and the Agreement For Service the Fees are exclusive of
applicable taxes and surcharges required under Applicable Laws, including communication
fees, surcharges, costs/disbursements, charges, regulatory assessments, or any other duties,
levies, registration fees or taxes which shall be charged additionally. The invoiced amount and/
or amounts charged to the Payment Method may hence fluctuate from month to month and
Customer agrees to pay any and all fees and/or taxes due.
From time to time the governing telecommunication law may deploy new taxation methods,
surcharges, fees or charges from now on Regulatory Fees. LinkedIP would do its best effort to
absorb any new regulatory fees to not alter Customer pricing. In the event this is not possible
LinkedIP will notify Customer of the charge of such new fees.
7.6 Late Fees.
Pursuant to the local governing commercial law, any balance remaining outstanding on any
invoice after thirty (30) days of the invoice date may be automatically increased by the greater
of the legal interest rate applicable. LinkedIP may, in its sole discretion, suspend Customer’s
access to the Services and/or terminate this Agreement in whole or in part, in accordance with
Section 13.2 without any liability whatsoever and without prejudice to its right to claim all
amounts due by Customer to LinkedIP, as the case may be.
7.7 Managed Support fees.
In the case Customer requires assistance with changes, moves, additions, monitoring, system administration, OS management, integrations, backups, and any other similar activity, LinkedIP will gladly offer hands-on help through Professional Services. Professional Services are offered on a per hour basis. Professional Services are rendered after the prepayment of five (5) hour block or through monthly plans under a term. Unless specified differently in the Agreement For Service (AFS) or Order Form, professional services will be billed at a rate of $150/hr. For information on monthly plans please contact our sales team.
8. Refund Policy
Unless agreed differently and specified on the Agreement For Service, all prepaid fees,
particularly fees related to Managed Professional Services, as well as other payments by
Customer under these terms are non-refundable and non-creditable.
9. Software
9.1. Non-Exclusive License.
If Software is provided by LinkedIP in connection with Service(s), LinkedIP grants to Customer
a personal, limited, revocable, non-exclusive, non-assignable and non-transferable license to
use the Software in object code form only, solely for the purpose of using the Service. This
license will permit such use by Customer or Customer Affiliates and any of its employees,
contractors (but only within the scope of their employment or services with Customer)
authorized by Customer to use the Service, provided that Customer shall be responsible for all
uses of the Service as provided in this Agreement. This license commences upon LinkedIP’s
acceptance of the Agreement For Service for the Service and terminates immediately upon the
expiration or termination of the applicable Service or this Agreement for any reason. Customer
shall return or destroy all Software and any related written material, together with any copies if
applicable, in its possession or under its control promptly upon the expiration or termination of
the applicable Service or this Agreement for any reason. Any attempt to sublicense, assign or
transfer any of the rights, duties or obligations under this license other than as set forth in this
Agreement is void and may result in termination by LinkedIP of this Agreement and the license.
No other licenses or rights to the Software are granted or implied.
9.2. Software Upgrades and Modifications.
LinkedIP reserves the right to upgrade the Software or discontinue support for earlier versions
of the Software at any time, provided that such upgrade will not materially alter the features
and/or functionality of the Service. Customer agrees to implement promptly all fixes, updates,
upgrades and replacements of Software and Third Party Software as directed by LinkedIP or
by the third party providers of Third-Party Software. LinkedIP shall not be liable for inoperability
of the Services due to failure of Customer to timely implement the required changes.
9.3. End User Licenses.
Certain Software LinkedIP provides to Customer may contain third-party software ("Third-Party
Software"), including open source software. Use of such Third-Party Software may be
governed by separate copyright notices and license provisions, which may be found or
identified in documentation or on other media delivered with the Third-Party Software or as
otherwise provided to Customer, and which are incorporated by reference into this license.
Notwithstanding any other terms in this Section 9, such provisions shall govern the use of
Third-Party Software. Customer agrees to comply with the terms and conditions of all end user
license agreements accompanying any Software (including Third-Party Software) or plug-ins to
such Software distributed in connection with the Service. All end user licenses shall
immediately terminate on the date that the Service expires or this Agreement is terminated.
10. Warranties
10.1 LinkedIP Warranties.
LinkedIP will provide the Services using a commercially reasonable level of care and will
materially comply with applicable Laws. To the extent permissible by applicable Law, LinkedIP will pass through to Customer the relevant and applicable warranties it receives from its third-
party suppliers where applicable.
10.2 Customer Warranties.
Customer represents and warrants that it will and will cause its Users and/or Administrators to
use the Services in compliance with all applicable Laws and this Agreement. Customer
acknowledges that the Services include ringtones and music that are made available to
Customer under a license that requires that the name of its author be mentioned. Customer
therefore represents and warrants that it will add, as part of the services that it offers, the
information that LinkedIP shall provide Customer with, and in particular display the name of the
tunes’ authors, and more generally that Customer will comply with the terms of this license.
10.3 Disclaimer.
TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT THE SERVICES
ARE BEING PROVIDED “AS IS” AND “AS AVAILABLE,” AND EXCEPT FOR THE WARRANTIES
EXPRESSLY SET FORTH IN THIS AGREEMENT, LINKEDIP MAKES NO OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY
WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER
WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. IN
THE EVENT LinkedIP MAY NOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF LAW,
THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST
EXTENT PERMITTED BY LAW. LINKEDIP FURTHER DOES NOT REPRESENT OR WARRANT
THAT THE SITE OR ANY PORTION OF THE SERVICES WILL ALWAYS BE AVAILABLE,
ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, CONTINUOUS, ERROR-FREE OR WILL
OPERATE WITHOUT PACKET LOSS, NOR DOES LINKEIP WARRANT ANY CONNECTION TO
OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH
THE SERVICES. CUSTOMER ALSO ACKNOWLEDGES AND AGREES THAT LinkedIP CANNOT
GUARANTEE THAT IP BASED COMMUNICATIONS ARE COMPLETELY SECURE, ERROR OR
VIRUS-FREE.
11. Indemnification
Customer agrees to indemnify, defend and hold harmless LinkedIP and its Affiliates (“LinkedIP
Parties”) for, from and against any and all losses, liabilities, damages, claims (including any and
all reasonable attorneys’ fees,) as incurred, arising out of or in connection with: (i) any breach or
alleged breach of this Agreement by Customer, Users and/or Administrators; (ii) Customer’s,
Users’ and/or Administrators’ violation of any Law and/or the rights of a third-party; (iii)
Customer’s, Users’ and/or Administrators’ failure to promptly install any updates, upgrades or
patches of any software provided by LinkedIP; and (iv) claims relating to the Customer Data
and/or claims relating to any data transferred by Customer to third parties’ applications.
Further, Customer shall indemnify and hold harmless LinkedIP Parties against all damages,
costs, and legal fees awarded against LinkedIP Parties by a court of competent jurisdiction in
connection with such claims, or agreed to in a written settlement agreement approved in
writing by LinkedIP.
12. Limitations of Liability
IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF LINKEDIP OR ITS AFFILIATES EXCEED
THE TOTAL AMOUNTS PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE (12)
MONTHS PRIOR TO THE CLAIM GIVING RISE TO SUCH DAMAGES OR ONE HUNDRED DOLLARS ($100) IF FOR A FREE TRIAL. IN NO EVENT SHALL LINKEDIP OR ITS AFFILIATES
BE LIABLE FOR: (I) ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY,
REPUTATIONAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND SUCH AS LOSS OF DATA
OR PROFIT, OR BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, HARM TO
THE IMAGE OR REPUTATION, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER
CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY
OTHER THEORY OF LIABILITY EVEN IF LINKEDIP OR ITS AFFILIATES HAVE BEEN NOTIFIED
ORALLY OR IN WRITING OF THE POSSIBILITY OF SUCH DAMAGES. ANY CLAIM OR CAUSE
OF ACTION RESULTING FROM CUSTOMER’S USE OF THE SITE AND THE SERVICES MUST
BE PROVIDED OFFICIALLY IN WRITING TO LINKEDIP BY REGISTERED MAIL WITH RECEIPT
ACKNOWLEDGEMENT ADDRESSED TO ITS HEAD OFFICE WITHIN ONE (1) YEAR AFTER
THE CLAIM OR CAUSE OF ACTION HAS ARISEN OR IT SHALL BE DEEMED WAIVED BY
CUSTOMER.
13. Terms, Auto-renewal, Suspension and Termination
13.1 Term.
This Agreement will commence on the Effective Date and shall continue until the expiration of
the last Purchase, the expiration of the applicable Agreement For Service, or unless terminated
earlier in accordance with the terms herein (the “Term”). Access to the Plan shall start on the
date Customer places a Purchase or the Services Start Date, as applicable, and will continue
for the duration set forth in the Purchase or in the Agreement For Service, as applicable (the
“Plan Initial Term”, also referred to as “Agreement For Service Term"). Thereafter, the Plan Initial
Term shall automatically renew for additional periods of the same duration (each, a “Renewal
Term”) unless either Customer provides a written notice of non-renewal to the other Party no
less than sixty (60) days prior to the end of the Plan Initial Term or the then current Renewal
Term. If Customer engages in a Month-To-Month term service, this agreement may be
terminated with thirty (30) days prior to the next billing cycle. For the avoidance of doubt, in
the event Customer chooses to add additional Users, Add-ons and/orNumbers during the Plan
Initial Term or Renewal Term, the term applicable to such additional Users will co-terminate
with the Plan Initial Term or with the Renewal Term, as applicable.
13.2 Auto-renewal.
Unless specified and for the cases this Agreement is executed for a term of over 1 year, this Agreement will auto-renew for the same term unless Customer explicitly express its wish to not renew. A notice of Termination should be received by LinkedIP no longer than 30 days before the agreement's term renewal date.
13.3 Suspension.
LinkedIP may suspend Users’ and/or Administrators’ use of any Service if such use is
determined by LinkedIP, in its sole but reasonable discretion, to be (i) in violation of the terms of
the Agreement (including in case of non-payment on the due date) or of the Applicable Laws or
any policy provided or made available to Customer in writing; (ii) resulting in a degradation of
the Service; (iii) otherwise damaging or likely to damage the rights or property of LinkedIP or
third parties, until such violation, degradation, or damage has been remedied. Except in the
event legally prohibited or commercially unfeasible, LinkedIP will use reasonable endeavors to
provide Customer with prior notice before any suspension detailing the causes and the
expected duration of such suspension. LinkedIP reserves the right, in its sole but reasonable
discretion, to delete, remove or block access to, all or part of any Customer Data that may
violate or infringe the Applicable Laws, the Permissible Use Policy, or any third-party rights, or
otherwise expose or potentially expose LinkedIP to civil or criminal liability. Suspension will not
relieve Customer of its obligation to pay the Fees and the costs associated with the
reactivation of the Services. LinkedIP shall not be responsible for any damages arising from the
Service suspension under this Section 13.2. During the suspension period, Customer and
LinkedIP will use their best endeavors to minimize any inconvenience caused by such
suspension of the Services.
13.4 Termination.
Customer may terminate this Agreement and any Services purchased hereunder in whole or
part by giving written notice to the other Party if the other Party: (i) breaches any material term
of this Agreement and fails to cure such breach within thirty (30) days after receipt of such
notice; (ii) subject to applicable Laws, upon the commencement by or against the other Party
of insolvency, receivership or bankruptcy proceedings; (iii) following the written
recommendation of a government or regulatory agency following a change in either applicable
Law. LinkedIP may terminate this Agreement, Purchase, and/or any Agreement For Service at
any time and for any reason without any liability whatsoever. In the event such termination does
not result from a breach by Customer of its obligations hereunder, LinkedIP shall refund
Customer a pro-rata portion of any unused prepaid Fees covering the remainder of the Plan
Initial Term or Renewal Term, as applicable, from the effective date of such termination.
13.5 Effects of Termination. Upon termination of this Agreement Customer must pay to
LinkedIP immediately and without further notice, and in any case no later than one (1) day
thereof, any accrued fees (such as Usage Fees), charges, including any outstanding Fees. If
Customer is engaged under a term agreement other than month to month, and if Customer
terminates an Agreement For Service or all or any of the Service(s), Customer shall pay 100%
of the remaining contracted monthly recurring charges and Usage Fees as of the date of
termination through the end of the service term as prescribed in the Agreement For Service
and its effective date. Upon termination or expiration of this Agreement for whatever reason,
Customer shall immediately cease to have access to and use of the Services.
13.6 Readjustment of Credit Limit. LinkedIP may update Customer Credit Limit to zero once
a termination request has been known. In such case Customer should prepay for the
estimated Usage Fees for the remaining time of the service.
14. Governing Law
This Agreement shall be governed in all respects by the laws of the Uniform Commercial Code
of the State of Florida in the United States where LinkedIP is incorporated. In the event of any
dispute, claim, question or disagreement (the “Dispute”) arising from or relating to these Terms
of Use or breach thereof, the Parties shall use their best efforts to settle the Dispute by normal
business discussions. Should the Dispute remain unresolved thirty (30) days after notice of the
Dispute was provided by one Party to the other, the Parties may take further legal action to
resolve the Dispute. These Terms of Use, the Agreement, the Services and/or the Site and any
Dispute resulting therefrom, shall be subject to the exclusive jurisdiction of the State of Florida
Commercial Arbitration with offices in Naples, FL. The illegality, invalidity or un-enforceability of
any provision of these Terms of Use will not affect the legality, validity or enforceability of any
other provision.
15. Force Majeure
Excluding either Party’s payment obligations under the Agreement, neither Party will be
responsible or liable for any failure to perform or delay in performing to the extent resulting
from any event or circumstance that is beyond that Party’s reasonable control, including any
act of God; national emergency; third-party telecommunications networks; riot; war; terrorism;
governmental act or direction; change in Laws; fiber, cable, or wire cut; power outage or
reduction; rebellion; revolution; insurrection; earthquake; storm; hurricane; flood, fire, or other
natural disaster; strike or labor disturbance; or other cause, whether similar or dissimilar to the
foregoing, not resulting from the actions or inactions of such Party. Only the material or geographical part of the Agreement affected by the event of Force Majeure shall be suspended
during such event. During the suspension period, the Parties will use commercially reasonable
efforts to limit the duration and mitigate the consequences of such event. If the Force Majeure
event lasts for more than thirty (30) days, the Parties undertake to negotiate in good faith a
contract adjustment. If, following such thirty (30) day period, it becomes impossible to continue
the performance of the Agreement, each Party will be entitled to terminate the Agreement by
sending a written notice to the other Party.
16. Notices
Except where otherwise expressly stated in the Agreement, all notices or other
communications must be in English and are deemed to have been fully given when made in
writing and delivered in person, upon delivered email, confirmed facsimile, or five days after
deposit with a reputable overnight courier service, and addressed as follows: to LinkedIP LLC,
Legal Department, 2645 Executive Park Drive, Weston, FL 33331 with a copy emailed
to info@linkedip.com, and to Customer at either the physical address or email address
associated with the Customer’s Account. Customer is solely responsible for the accuracy and
completeness of Customer’s physical address and email address and must immediately
update such addresses on the Site upon any change. Customer acknowledges and agrees that
all electronic notices have the full force and effect of paper notices.
17. Amendments
Except as otherwise provided, this Agreement may only be modified by a written amendment
(provided electronically or otherwise) executed by authorized representatives of both Parties. In
no event will handwritten changes to any terms or conditions, including in the applicable
Agreement For Service be effective. Notwithstanding anything set forth in this Agreement,
LinkedIP may update the terms of this Agreement or any of its policies from time to time, and
will provide notice to Customer at the email address associated with the Customer’s Account
or when possible via a pop-up on the Site, as decided by LinkedIP in its sole discretion. Such
updates will become effective ten (10) days after such notice to Customer (such date, the
“Updated Date”). In the event that any such update would be of material detriment to
Customer and is not required by Law, Customer must inform LinkedIP of Customer’s objection
in writing (which shall include Customer’s reason behind such objection) within ten (10) days of
receiving the notice provided under this provision. If the Parties, negotiating in good faith
cannot reach an agreement within thirty (30) days following the receipt of Customer’s objection,
Customer may terminate the portion of the Services affected by the change without penalty by
written notice to LinkedIP. Any use of the Services after the Updated Date will be deemed
Customer’s acceptance of such updates to the terms of this Agreement and/or policies, as
applicable.
18. General Provisions
Customer and LinkedIP are independent contractors and this Agreement will not establish any
relationship of partnership, joint venture, employment, franchise or agency between Customer
and LinkedIP. LinkedIP’s failure or delay in exercising any right herein will not operate as a
waiver thereof, nor will any single or partial exercise thereof preclude any other or future
exercise thereof or the exercise of any other right herein. This Agreement, together with any
Agreement For Service, Purchases, exhibits and/or schedules, each of which is expressly
incorporated into this Agreement with this reference, constitutes the entire agreement between
the Parties and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements,
whether oral, written, or otherwise, regarding such subject matter. In the event of any conflict
between the terms of this Agreement and the terms of an Agreement For Service, the terms of
the Agreement For Service shall prevail. Sections 3, 4, 5, 7, 8, 10, 11, 12, 14, 15, 17, and 18
included shall survive termination of this Agreement. LinkedIP reserves the right to refuse to
provide the Services at its sole discretion to any Customer. Customer may not assign or
transfer any of its rights or obligations under this Agreement, in whole or in part, without
LinkedIP’s prior written consent. Notwithstanding the foregoing, each Customer may assign
this Agreement to (i) its Affiliates, and (ii) an entity in which the Customer may be merged or
consolidated, or which purchases all or substantially all assets or equity interest of the
assigning party. The assignee or transferee will assume all of the rights and obligations of the
assignor or transferor under the Agreement and will be deemed the signatory of the Agreement
without any further changes or amendment.
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