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These terms and conditions along with the terms and conditions contained in the Phnkey Order Form (collectively, the "Terms") govern the conditions under which you ("User") are permitted to access or use the information and data services (collectively, the "Services") provided by Phnkey. These Terms create a legally binding contractual agreement ("Agreement") enforceable between Phnkey and the User (person or entity) whose signature appears on the Phnkey Order Form. By using Phnkey, User agrees that the laws of the state of Kansas, without regard to its conflict of law principles, will govern all matters between User and Phnkey with respect to access and use of the Services provided by Phnkey.
1. Rights and Responsibilities.
1.1 User has full and sole responsibility for acquiring and maintaining any and all necessary equipment (e.g., phones, computers, and the like; collectively the "Equipment") required to access and use the Services provided by Phnkey. These Services include the collection and provision to User of User's performance data ("Data"). User has full and sole responsibility for putting in place and appropriately monitoring all necessary security measures with respect to property over which User exercises ownership, control, use or access under license, including User's Equipment, User's Phnkey account, passwords, files, any Data obtained as a result of this Agreement, any Confidential Information, and any and all uses of Data and Services obtained via its User account or its Equipment.
1.2 User has full and sole responsibility for use of its Data by User, by any User Customer (defined below) as well as any User agent, subcontractor, licensee, representative or other User affiliate (collectively, "User Affiliates" or "Affiliates"), and for the compliance of all User Customers and User Affiliates with the Terms of this Agreement. User, User Customers and Affiliates shall not themselves or via any third party, copy (except for the purpose of archiving User Data), or modify (in whole or in part), or create any derivative programs based on the Services, or on any software, information or documentation associated with the Services provided by Phnkey under this Agreement; or decompile, disassemble, or reverse engineer the Services, or any software, information or documentation associated with the Services provided by Phnkey under this Agreement; or transfer rights by distribution, lease, or other vehicle to the Services, or any software, information, data or documentation associated with the Services provided by Phnkey under this Agreement; or vary, delete, obscure or remove any notices of proprietary rights or any product identifications or labels.
1.3 During the term of Services as governed by the Phnkey Order Form and by this Agreement, User is permitted to utilize the telephone numbers assigned to it by Phnkey (collectively, "Phnkey Numbers") to track its own performance and for other call analytics, or to re-assign these Phnkey Numbers for the same limited use and purposes by any User Customer, such as its merchants or advertisers for inclusion in their websites or publications or other media. However, without prior written consent from Phnkey, User Customers do not have the right to re-assign their Phnkey Numbers or to utilize them in any form or manner except as explicitly stated in this Agreement. At all times, Phnkey Numbers remain the sole property of Phnkey and are assigned for use only under the Terms of this Agreement. Further, User's use of their Phnkey Numbers may also be limited by future changes in Phnkey's agreements with its various telephone carriers and vendors, changes to currently applicable law or regulations, or new guidelines recommended by local, regional, or Federal regulators.
1.4 If User elects to re-assign its Phnkey numbers to User Customers, it is responsible for use of the Phnkey Numbers by these User Customers and must execute a written contract with each User Customer--1) that does not include any representations or warranties on behalf of Phnkey and contains a No Warranty provision similar to the one in Section 6 below; 2) that contains a Limitation of Liability provision on behalf of Phnkey similar to the one in Section 7 below; 3) that contains a warranty from the User Customer that it is responsible for its use of the Services (including, if applicable, the optional call recording service described below) and that such use shall be in compliance with all relevant laws and regulations in its jurisdiction; and 4) that names Phnkey as an indemnified party and as a third party beneficiary of the indemnification provisions with the right to enforce the provisions against the User Customer.
1.5 To access and use the Services provided by Phnkey, User represents and warrants--1) that it has full power to enter into this Agreement; 2) that it currently has and will continue to have during the term of Services under this Agreement all necessary consents, licenses, and permissions for User to fully perform its obligations under this Agreement; 3) that this Agreement is a valid, legal binding contract between User and Phnkey enforceable according to its Terms; 4) that User shall use the Services only in compliance with all applicable laws and regulations; 5) that for the term of Services under this Agreement, User and User Customers will secure and maintain the right, by license, consent or permission as required under applicable law, necessary to transfer Personal Information (as defined in 3.3 below) to Phnkey as anticipated under this Agreement, and for any other use by Phnkey of such information for the purposes of this Agreement; and 6) that User has put in place all necessary procedures to protect the privacy of User Customers' Personal Information.
1.6 Phnkey shall have no indemnity obligations to User or User Customers for any claim brought as a result of a breach by User or User Customers of the above representations, stipulations or warranties, and User shall indemnify Phnkey for any claim against Phnkey that arises out of such circumstances.
1.7 This Agreement does not assign or transfer any ownership of or rights of Phnkey or User, to any of their respective intellectual property rights, products or services, from one to the other. Nothing in this Agreement except the explicit licenses detailed in this Agreement shall be deemed a license under Phnkey's or User's patent rights or their respective other intellectual property rights. During the term of Services, all Data collected in connection with User that is specific and identifiable to User or User Customers or Affiliates (collectively, "User Data") will be the intellectual property of User; however, Phnkey reserves the non-exclusive right to use such User Data as needed and desirable in providing the Services to User and in the operation of Phnkey's business which may include the collection, analysis and reporting of User Data in an aggregated, non-personally identifiable form. User should know that Phnkey uses all Data collected as part of its operations, including User Data in an aggregated, non-personally identifiable form, in connection with its business, which involves but is not limited to, the improvement of existing Services and the creation, development, enhancement, production, and marketing of new products and services, any and all of which are the sole intellectual property of Phnkey.
2. Optional Call Recording Services.
2.1 Call recording is an optional service offered by Phnkey which User may elect (or not) on the Phnkey Order Form or via other communication received and accepted by Phnkey. The recording of calls may include the reporting, transcribing and archiving of personal and non-personal data associated with such calls (collectively, the "Call Recording Services"). User has the full and sole responsibility for determining if the use of Phnkey's Call Recording Services is appropriate and legal as pertains to User goals and strategies of implementation for use. All data and information resulting from use of the Call Recording Services shall be considered User Data under this Agreement.
2.2 User has full and sole responsibility for use of the Call Recording Services by User, User Customers or User Affiliates. If User elects to use Phnkey's Call Recording Services, User agrees--1) that calls to User assigned Phnkey Numbers may be recorded, transcribed and archived; 2) that User is solely responsible for notifying callers to these Phnkey Numbers, before any such use by User, User Customers or Affiliates, that every such call may be recorded, transcribed and archived (the "Call Recording Notice"), and for delivering this Call Recording Notice in a legally appropriate manner that ensures its compliance with all relevant federal and state laws and regulations; 3) that User represents and warrants that it and User Customers and Affiliates will acquire all necessary consents, approvals or permissions to use the Call Recording Services and will have put in place all necessary procedures to protect the privacy of all callers with respect to use of the Call Recording Services; and 4) that Phnkey makes no warranties in connection with use of the Call Recording Notice by User, User Customers or User Affiliates.
2.3 User has full and sole responsibility for and Phnkey has no liability whatsoever for the legality of recording, transcribing, and archiving of calls using the Call Recording Services, the legality of the language used in User's Call Recording Notice, or the legality of the use, retention and/or disclosure of User Data obtained by User, User Customers or Affiliates in connection with use of Phnkey's Call Recording Services. If User elects to offer any User Customers use of the Recorded Call Services, all of the responsibilities, obligations and warranties contained in this section must be included in the written contract with each User Customer.
3. Confidential Information.
3.1 Confidential Information consists of any non-public information of Phnkey or User, including but not limited to technical data, databases, documentation, rules and procedures, applications, business plans and methods, contracts, markets, services, finances and the like. For the purposes of this Agreement Confidential Information also includes any Personal Information (as defined below) that may be included in the Data delivered under this Agreement. Confidential Information does not include any information that either Phnkey or User can demonstrate--1) was already in their possession prior to this Agreement, 2) was independently developed by either without use of Confidential Information from the other, 3) was properly and legitimately revealed by a third party, 4) is now or becomes available in the public domain, 5) is required to be disclosed by law, regulation, court order or the like, or 6) relates to exigent circumstances involving individual or public health or safety.
3.2 Phnkey and User agree that if in receipt of Confidential Information from the other, each will –1) take all reasonable steps to safeguard such Confidential Information, 2) use it only as expressly permitted under this Agreement, and 3) not cause the release of such Confidential Information to any third party, except as expressly permitted under this Agreement.
3.3 User agrees--1) that to facilitate the delivery of its services and the operation of its business, Phnkey has the non-exclusive right to use Confidential Information compiled in an aggregated form that does not specifically identify the User or disclose Personal Information (i.e., personally identifiable information or records), in reports on in measures related to its Services' performance to other Users or potential Users; 2) that User warrants that all Personal Information provided by Phnkey to User will be for marketing purposes only; and 3) that Phnkey and User retain all rights, including all intellectual property rights, to their respective Confidential Information.
3.4 User agrees--1) that any User Data that is archived will be governed by the currently-in-effect Phnkey data storage and deletion protocols with respect to maximum storage volume, maximum storage periods, automatic deletion procedures and the like; 2) that Phnkey may change its procedures for archiving User Data as needed and that notice of any such change shall be communicated to User via Phnkey's website or by email; 3) that User may access archived User Data for up to six months from the date of initial storage; 4) that Phnkey is not obligated (unless by applicable law or regulation) to retain archived User Data following expiration or termination of this Agreement; 5) that Phnkey may in its sole discretion decide that archived User Data should be maintained beyond the term of Services because of existing compliance or regulatory issues and should not be deleted until the issues are resolved; and 6) that Phnkey incurs no liability for disclosing any User Data to legal or other governmental authorities upon receipt of an appropriate request for such.
4. Payment of Fees.
User is fully responsible for paying all applicable fees to Phnkey for the Services elected in the Phnkey Order Form and for paying any additional fees for receipt of custom Services not contained in the Order Form. All fees are to be paid in United States currency. Phnkey has the right to require a cash deposit as security for delivery of its Services. At the end of the initial Term of Service or current period of renewal, and upon 30 days prior written notice to User, Phnkey has the right to change any and all applicable fees and to institute new fees. User is obligated to pay all fees due not later than 30 days after the preceding month; if payment is not received by this date, Services to User may be terminated immediately. Unpaid balances are charged a finance fee of 1.5% per month, or the maximum permitted by law, whichever is lower. User is responsible for all expenses for collection of unpaid fees.
5. Expiration/Termination.
5.1 The effective term of Services under this Agreement shall initially be for the time period specified in the Phnkey Order Form and subsequently shall be renewed for continuous periods of the same duration unless either Phnkey or User provides to the other a written notice of non-renewal that is received at least 30 days before the end of the current term.
5.2 Phnkey and User agree--1) that either may terminate this Agreement upon 30 days prior written notice if the other breaches any of the Terms of this Agreement, and that User will be liable for payment in full for the Services received up to and including the last day in which the Services are provided; and 2) that if there is a material adverse change in the financial profile of User during the term of Services, Phnkey has the right to immediately suspend the Services or to require pre-payment for the Services.
5.3 User agrees that upon termination or expiration of the Services under this Agreement--1) all rights of User to utilize Phnkey Numbers ceases immediately and absolutely and User is responsible for causing itself to cease and for causing all User Customers to cease use of Phnkey Numbers and for removing or cancelling any publications containing Phnkey Numbers, and 2) that Phnkey and User shall return to the other or destroy, with certification as to such destruction, the other's Confidential Information.
5.4 User agrees that all portions of this Agreement that by their nature should survive termination/expiration will do so, including rights to accrued fees, confidentiality obligations, indemnification, limitations of liability, and disclaimers of warranty.
6. No Warranty.
6.1 PHNKEY MAKES NO WARRANTY CONCERNING THE RESULTS THAT USER MAY OBTAIN FROM USE OF THE SERVICES, INCLUDING THE OPTIONAL CALL RECORDING SERVICES, WITH REPECT TO THE NUMBER OR VOLUME OF CALLS SUBSEQUENT TO ANY ADVERTISEMENT OR PROMOTION, THE PLACEMENT OR DELIVERY OF SUCH CALLS, OR THE AMOUNT, IF ANY, OF REVENUE TO BE EARNED BY USER UNDER THIS AGREEMENT. FURTHER, PHNKEY MAKES NO WARRANTY AND NO REPRESENTATIONS AS TO THE ACCURACY, SECURITY, USEFULNESS OR CONTENT OF USER DATA.
6.2 EXCEPT AS EXPLICITLY STATED IN THIS AGREEMENT, PHNKEY SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND PHNKEY MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. FURTHER, PHNKEY MAKES NO WARRANTY THAT ACCESS TO THE PHNKEY WEBSITE OR USE OF PHNKEY SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE.
6.3 PHNKEY HAS THE RIGHT IN ITS SOLE DISCRETION TO REMOVE ANY USER DATA FROM ITS SERVERS AT ANY TIME FOR ANY REASON.
7. Limitation of Liability.
PHNKEY SHALL NOT BE LIABLE TO ANY USER OR ANY THIRD PARTY FOR ANY SUBJECT MATTER OF THIS AGREEMENT ON ANY THEORY OF LIABILITY (I.E., CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER), FOR ANY SPECIAL, INCIDENTIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND, OR ANY LOSSES OR DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, OR CORRUPTION OR LOSS OF DATA, OR LOSS OF PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, WHETHER OR NOT PHNKEY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. IN ANY EVENT, PHNKEY'S TOTAL LIABILITY TO USER OR ANY THIRD PARTY WILL BE LIMITED TO THE TOTAL FEES USER PAID PHNKEY IN THE YEAR IN WHICH THE LOSS FIRST ARISES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE BY ANY LIMITED REMEDY. HOWEVER, ANY FAILURE OF USER OR USER CUSTOMERS OR AFFILIATES TO COMPLY WITH APPLICABLE LAWS OR REGULATIONS SHALL NOT BE COVERED BY THE FOREGOING LIMITATION OF LIABILITY.
8. Indemnification.
User agrees to indemnify and hold harmless Phnkey, its employees, officers, directors, members, representatives and agents, all other Users, other suppliers and any related third parties, against and with respect to any and all third party claims, suits, actions, proceedings (formal and informal), investigations, judgments, deficiencies, damages, settlements, liabilities, and legal and other expenses (including reasonable legal fees and expenses of attorneys chosen by Phnkey) as and when incurred, arising out of or based on any act or omission, or alleged act or alleged omission by User in connection with the breach by User of any Terms of this Agreement.
9. Regulatory Matters.
User agrees--1) that it may not remove or export from User's jurisdiction or cause to be removed or exported the Services provided to User under this Agreement in any manner that violates any export control laws or regulations; 2) that if ever Phenkey's right to assign Phnkey Numbers or provide the Services to User under this Agreement are changed by regulations of any government agency such as the U.S. Federal Trade Commission, the U.s. Federal Communications Commission, or by any state utility commission, Phnkey has the right to alter, suspend, or terminate this Agreement immediately upon written notice to User and to require that User suspend or remove any advertising materialswhich include Phnkey Numbers; and 3) that Phnkey will have no liability whatsoever to User because of such a change, suspension, or termination of Services.
10. General Provisions.
10.1 The Terms of this Agreement shall be governed by the law of the United States, and the State of Kansas without regard to its conflict of law provisions. Any legal action for or arising out of the Terms of this Agreement, or User's access to or use of the Phnkey Website shall be filed exclusively in the Kansas State Court located in Olathe, Kansas or the United States District Court for the District of Kansas at Kansas City, Kansas, as applicable under prevailing rules of subject matter jurisdiction. User and Phnkey hereby consent to the exclusive jurisdiction of the courts described in the previous sentence. User irrevocably waives any claim or defense that such forum is not convenient or proper, and consents to service of process by any means authorized by Kansas Law. Phnkey will disclose any information regarding access to or use of the Services provided under this Agreement, including Personal Information pertaining to User, without User's permission when required to do so by law, or in the good faith belief that such action is necessary to investigate or protect against harmful activities to Phnkey, Users, or others.
10.2 If any clause or provision of this Agreement is found to be invalid or unenforceable, it shall be deemed deleted and the remaining provisions shall not be affected by that deletion and shall remain in full force and enforceable. This Agreement and the Phnkey Order Form are the complete and exclusive statement of the mutual understanding of Phnkey and the User and these documents supersede and cancel any and all previous oral or written agreements, communications or understandings relating to this Agreement and the Phnkey Order Form.