1. YOUR AGREEMENT WITH VOIPAY
1.1 VoiPay’s internet communication software applications (“Internet Communications Software”), other ‘VoiPay’ branded software applications (together the “VoiPay Software”), including any improvements, modifications, enhancements, fixes, updates, upgrades and future versions thereto (“Updates”) and whether made available for free or for a fee, (collectively the “Software”) is licensed (not sold) to you by VoiPay.
1.2 The features and products that are made available through the Software for free (excluding products or features available for free on a trial basis only) (“Free Products”) are provided to you by VoiPay.
1.3 Any additional products or features of the VoiPay Software, or other “VoiPay” branded products, that you pay for (including products or features which are available for free on a trial basis only) (“Paid For Products”) are provided to you by VoiPay.
1.5 “VoiPay’’ is a product from Orca Digital Limited, 10 Barley Mow Passage, London W4 4PH, UK;
“Products” means collectively the Free Products and Paid For Products;
“you” or “your” means you, the registered holder of the User Account (as described in paragraph 6.1) and licensee under these Terms.
1.6 Your agreement with VoiPay is made up of the terms and conditions set out in this document, together with any Additional Terms referred to in paragraph 14 (collectively the “Terms”). To the extent of any inconsistency between the Additional Terms and this document, this document shall take precedence.
2. ACCEPTANCE OF THE TERMS
2.1 In order to download and/or use the Software, Products and/or VoiPay Websites you must first accept these Terms. These Terms are accepted by you (a) when you click to accept or agree the Terms; or (b) when you download and/or use the Software, Products and/or VoiPay Websites. We advise you to print a copy of these Terms for your records. These Terms remain effective from the date of acceptance until terminated by you or VoiPay in accordance with paragraph 11.
2.2 You cannot accept these Terms if: (a) you are not lawfully entitled to use the Software, Products and/or VoiPay Websites in the country in which you are located or resident or (b) if you are not of legal age to form a binding agreement with VoiPay.
2.3 In some countries the Products may be provided to you by VoiPay’s local partner. If so, that local partner may ask you to accept its own terms of service (“local terms”). If there is any inconsistency between those local terms and these Terms, then the local terms shall govern to the extent of that inconsistency.
3. CHANGES TO THE TERMS
3.1 VoiPay may make changes to these Terms from time to time. VoiPay will publish the changes at here. Changes to any Additional Terms will be posted on the applicable VoiPay Website. The changes will be effective when published. Please review the Terms on a regular basis. You understand and agree that your express acceptance of the Terms or your use of the Software, Products and/or VoiPay Websites after the date of publication shall constitute your agreement to the updated Terms. If you do not agree with the amended Terms, you may terminate your relationship with VoiPay in accordance with paragraph 11 below.
4.1 Licence. Subject to your compliance with these Terms, you are granted a limited, non-exclusive, non-sublicensable, non-assignable, free of charge license to use the Software on a personal computer, mobile phone or other device; and personally use the Software through your individual VoiPay user account (as applicable) (“User Account”). For the avoidance of doubt, (a) IT administrators working on behalf of a company may use the VoiPay Software on personal computers or other devices used by personnel of such company; and (b) you are permitted to use the Software at a university or other educational institution, or at work. VoiPay reserves all rights not expressly granted to you under these Terms.
4.2 Restrictions. You may not and you agree not to.
(a) sub-license, sell, assign, rent, lease, export, import, distribute or transfer or otherwise grant rights to any third party in the Software;
(b) undertake, cause, permit or authorize the modification, creation of derivative works or improvements, translation, reverse engineering, decompiling, disassembling, decryption, emulation, hacking, discovery or attempted discovery of the source code or protocols of the Software or any part or features thereof (except to the extent permitted by law);
(c) remove, obscure or alter any copyright notices or other proprietary notices included in the Software;
(d) use the Software or cause the Software (or any part of it) to be used within or to provide commercial products or services to third parties. The foregoing shall not preclude you using the Software for your own business communications, subject to Section 4.1 above;
(e) use the Software except through your User Account.
4.3 Third Party Technology. If you are using Software pre-loaded on, embedded in, combined, distributed or used with or downloaded onto third party products, hardware, software applications, programs or devices (“Third Party Technology”), you agree and acknowledge that: (a) you may be required to enter into a separate licence agreement with the relevant third party owner or licensor for the use of such Third Party Technology; (b) some Products and/or functionality may not be accessible through the Third Party Technology and (c) VoiPay cannot guarantee that the Software shall always be available on or in connection with such Third Party Technology.
5. USE OF THE SOFTWARE AND PRODUCTS AND VOIPAY WEBSITES
5.1 Equipment: In order to use the Software and the Products you will need an Internet broadband connection. You are responsible for providing all equipment required to access the Internet or enable communications such as headsets, microphones and webcams.
5.2 Use of Your Equipment: The Internet Communications Software may use the processing capabilities, memory and bandwidth of the computer (or other applicable device) you are using, for the limited purpose of facilitating the communication and establishing the connection between Internet Communications Software users. If your use of the Internet Communications Software is dependent upon the use of a processor and bandwidth owned or controlled by a third party, you acknowledge and agree that your licence to use the Internet Communications Software is subject to you obtaining consent from the relevant third party for such use. You represent and warrant that by accepting these Terms, you have obtained such consent.
5.3 Updates to the Software: You may be required to enter into an updated version of these Terms to be able to download or otherwise take advantage of any Updates. VoiPay has no obligation to make available any Updates. However, VoiPay may in its sole discretion require you to automatically download and install Updates from time to time in order to allow you to use the Software and you agree to accept such Updates subject to these Terms.
5.4 Suspension, technical improvement and maintenance: From time to time, VoiPay may need to perform maintenance on or upgrade the Software, Products or VoiPay Websites or the underlying infrastructure that enables you to use the Software, Products or VoiPay Websites. This may require VoiPay to temporarily suspend or limit your use of some or all of the Software, Products or VoiPay Websites until such time as this maintenance and/or upgrade can be completed. To the extent possible and unless an intervention is urgently required, VoiPay will publish the time and date of such suspension or limitation on the VoiPay Website in advance. You will not be entitled to claim damages for such suspension or limitation of the use of any Software, Product or VoiPay Website.
5.5 Content of Communications: VoiPay is not the source of, does not have any control over, does not monitor and takes no responsibility for the content of communications made using the Software. By using the Software, you agree that any content that you submit may be transmitted to the recipient of your communication. The content of communications is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. The content of communications may be protected by intellectual property rights, which are owned by third parties. You are responsible for the content you choose to communicate and access using the Software. In particular, you are responsible for ensuring that you do not submit material that is (i) copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner (ii) a falsehood or misrepresentation (iii) offensive, unlawful, defamatory, libellous, threatening, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; (iv) an advertisement or solicitation of business; or (v) impersonating another person. VoiPay reserves the right (but shall have no obligation) to decide whether any content that you use complies with these Terms. VoiPay may in its sole discretion remove such content and/or terminate these Terms and your User Account if you use any content that is in breach of these Terms.
5.6 Notice and Take-Down If VoiPay receives any notification that any material that you post, upload, edit, host, share and/or publish on the VoiPay Website or through the Software (excluding your private communications) (“User Submission”) is inappropriate, infringes any rights of any third party, or if VoiPay wishes to remove your User Submission for any reason whatsoever, VoiPay reserves the right to automatically remove such User Submission for any reason immediately or within such other timescales as may be decided from time to time by VoiPay in its sole discretion. The User Submission shall be taken down without any admission as to liability and without prejudice to any rights, remedies or defenses, all of which are expressly reserved. You acknowledge and agree that VoiPay is under no obligation to put back such User Submission at any time. If User Submissions infringe, or if you believe that User Submissions infringe any of your rights (including intellectual property rights) or are unlawful, please contact us immediately by following our notice and takedown procedure. VoiPay reserves the right to ask for verification of your identity and to seek further information to verify your complaint. You agree that you are solely responsible for the consequences resulting from your complaint (including but not limited to removal or blocking of the User Submission) and you acknowledge and agree that any complaint may be used in court proceedings. Any false, misleading or inaccurate information provided by you may result in civil and criminal liability.
5.7 Quality: VoiPay cannot guarantee that the Software, Products or VoiPay Websites will always function without disruptions, delay or errors. A number of factors may impact the quality of your communications and use of the Software, Products (depending on the Products used) or VoiPay Websites, and may result in the failure of your communications including but not limited to: your local network, firewall, your internet service provider, the public internet, the public switched telephone network and your power supply. VoiPay takes no responsibility for any disruption, interruption or delay caused by any failure of or inadequacy in any of these items or any other items over which we have no control.
5.8 Changes to Products: VoiPay is constantly improving the Software and Products and may also need to change technical features from time to time in order to comply with applicable regulations. Accordingly, you acknowledge and agree that the Products and functionality of the Software may vary from time to time. Technical requirements for use of Products and Software and feature descriptions are available on the VoiPay Website. If you do not agree with any changes to Software and Products you may terminate your relationship with VoiPay in accordance with paragraph 11. You may need to upgrade to a new version in order to enjoy the benefit of certain Products. In addition, you acknowledge and agree that certain Products may be subject to usage limits or geographical restrictions, which may vary from time to time. Please check the VoiPay Website for details of the most up-to-date usage restrictions that apply to the Products that you are using.
5.9 Unsolicited Ideas VoiPay does not consider or accept unsolicited proposals or ideas, including without limitation ideas for new products, technologies, promotions, product names, product feedback and product improvements (“Unsolicited Feedback”). If you send any Unsolicited Feedback to VoiPay through the VoiPay Website or otherwise, you acknowledge and agree that VoiPay shall not be under any obligation of confidentiality with respect to the Unsolicited Feedback.
5.10 Reports Certain parts of the VoiPay Websites or the Software may ask for written suggestions or problem reports such as using our contact form or problem report form (“Reports”). Please read carefully any specific terms, which govern those Reports. The Reports shall be deemed the property of VoiPay. VoiPay shall exclusively own all now known or hereafter existing rights to the Reports throughout the universe in perpetuity and shall be entitled to use the Reports for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Reports. Any Reports you send to VoiPay will not be treated as confidential and VoiPay shall not be liable for any disclosure of the Reports.
5.11 Linking You may link to the VoiPay Website from another website owned by you, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement by VoiPay where none exists. VoiPay provides a branded embeddable Flash player feature which you may incorporate into your own website for use. VoiPay may revoke the permission to link to the VoiPay Websites at any time at its sole discretion and will notify you in this respect.
5.12 Call Recording. VoiPay may monitor or record calls to meet regulatory obligations or otherwise.
6. YOUR OBLIGATIONS
6.1 User Account. Prior to your first use of the VoiPay Software, you will be asked to create a User Account and choose a user ID and password. We recommend that you choose a password that is hard to guess and consists of letters, numbers and symbols. You may only use the Software through your User Account. You are solely responsible and liable for all activities conducted through your User Account. To prevent unauthorized use, you shall keep your password confidential and shall not share it with any third party or use it to access third party websites or services. If you suspect that someone else knows your password, then you shall immediately change it in order to protect the security of your User Account. It is your responsibility to ensure that you do not respond to any unsolicited requests for credit card details, passwords or other data. VoiPay takes no responsibility for your failure to comply with the obligations in this paragraph 6.1.
6.2 Lawful Use: You must use the Software, Products and VoiPay Websites in accordance with the laws of where you are located. In some countries there are restrictions on the download and use of the Software, Products and/or VoiPay Websites. It is your responsibility to ensure that you are legally allowed to use the Software, Products and/or VoiPay Websites where you are located.
6.3 Prohibited Use: You may not:
(a) intercept or monitor, damage or modify any communication which is not intended for you;
(b) 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 Software, communication or protocols;
(c) send unsolicited communications (also referred to as ‘SPAM’ or ‘SPIT’) or any communication not permitted by applicable law or use the Software for the purposes of phishing or pharming or impersonating or misrepresenting affiliation with another person or entity;
(d) expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable in any way;
(e) use the Software or VoiPay Websites to cause or intend to cause embarrassment or distress to, or to threaten, harass or invade the privacy of, any third party; or
(f) use (including as part of your User ID and/or profile picture) any material or content that is subject to any third party proprietary rights, unless you have a licence or permission from the owner of such rights; or
(g) collect or harvest any personally identifiable information, including account names, from the VoiPay Website;
(h) impact or attempt to impact the availability of the Software for example, with a denial of service (DOS) or distributed denial of service (DDoS) attack;
(i) use or launch any automated system, including without limitation, robots, spiders or offline readers that access the VoiPay Website. Notwithstanding the foregoing, you agree that VoiPay grants to the operators of public search engines permission to use spiders to copy materials from the VoiPay Website for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. VoiPay reserves the right to revoke these exceptions at any time.
6.4 User Submissions Please exercise respect when participating in any features of the VoiPay Websites or Software such as Forums, Blogs, email functions, video hosting, sharing and/or publishing or any other function on the VoiPay Websites or of the VoiPay Software which allows you to post, upload, edit, host, share and/or publish content. You acknowledge and agree that: (i) by using the VoiPay Websites and/or Software you may be exposed to content that you may find offensive or indecent and you do so at your own risk; (ii) you are solely responsible for, and VoiPay has no responsibility to you or any third party for any User Submissions that you create, submit, post or publish on the VoiPay Websites or through the Software; (iii) VoiPay does not guarantee any confidentiality with respect to User Submissions, whether or not they are published (iv) VoiPay is not responsible for any User Submissions that you may have access to through your use of the VoiPay Websites or Software and all User Submissions are the responsibility of the person from whom such User Submissions originated. VoiPay does not endorse any User Submissions or any opinion, recommendation, or advice expressed therein, and expressly disclaims any and all liability in connection with User Submissions.
In connection with your User Submissions, you represent and warrant that you
(i) own or have the necessary licenses, rights, consents, and permissions to use and authorize VoiPay to use all copyrights, trade marks, trade secrets, patents and other intellectual property or proprietary rights in and to any and all User Submissions in accordance with these Terms; and
(ii) you have the written consent, release and /or permission of each and every identifiable individual person in the User Submission to use the name and/or likeness of each and every such individual in the User Submission, to enable inclusion and use thereof in the manner contemplated by these Terms. You shall not copy, post or use text, photos, pictures, music, sounds, images or any other content from any third party or source (“Third Party Content”) without specific permission from the owner. Such Third Party Content may be protected by intellectual property laws and the owners of the intellectual property rights in such content may object to its use. You must not use any Third Party Content without first obtaining the permission of the owner of the intellectual property rights in such content.
You may not submit or publish through the VoiPay Website or Software any User Submissions that are libelous, defamatory, pornographic, harassing, hateful, an invasion of privacy, obscene, abusive, illegal, racist, offensive, harmful to a minor or an infringement of any intellectual property rights or a trade secret of a third party, or would otherwise violate the rights of any third party or give rise to civil or criminal liability. Furthermore, you may not submit or publish User Submissions that contain falsehoods or mispresentations, solicit funds or services, contain advertising, promotional materials, junk mail, spam, chain letters or any form of solicitation, impersonate others or include programs that contain viruses or any other programs designed to impair the functionality of any computer. You agree not to solicit, for commercial purposes, any users of the VoiPay Website or Software with respect to their User Submissions. You agree not to circumvent, disable or otherwise interfere with the security related features of the VoiPay Website or Software or features that prevent or restrict the use of any content thereof.
6.5 Your Information: From time to time, VoiPay may request information from you for the purpose of supplying the Software or Products to you. You shall ensure that any such information is complete, up-to-date and accurate.
6.6 No Reselling. The Software and Products are for your individual use. You shall not resell or commercialise the Software and/or Products to any third party.
6.7 Export Restrictions: The Software may be subject to international rules that govern the export of software. You shall comply with all applicable international and national laws that apply to the Software as well as end-user, end-use, destination restrictions issued by national governments or similar bodies, and restrictions on embargoed nations.
7. PROPRIETARY RIGHTS
7.1 The Software, Products and VoiPay Websites contain proprietary and confidential information that is protected by intellectual property laws and treaties.
7.2 The content and compilation of content included on the VoiPay Websites, (excluding User Submissions) such as sounds, text, graphics, logos, icons, images, audio clips, digital downloads and software, are the property of VoiPay Limited, its affiliates or licensors and are protected by United States and international copyright laws. Such copyright protected content cannot be reproduced without VoiPay’s express permission.
7.3 VoiPay and/or its licensors retain exclusive ownership of the Software, Products and VoiPay Websites and all intellectual property therein (whether or not registered and anywhere in the world). You will not take any action to jeopardize, limit or interfere with VoiPay’s intellectual property rights in the Software, Products and/or VoiPay Websites.
7.4 VoiPay associated trademarks and logos are trademarks of Orca Digital Limited. Orca Digital Limited has registered and filed applications to register its trademarks in many countries worldwide. VoiPay’s trademarks and trade dress may not be used in connection with any product or service that is not VoiPay’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits VoiPay. All other trademarks not owned by VoiPay or any of its related companies that appear on this site are the property of their respective owners. You are not permitted to and shall not register any trade name, trademark, logo, domain name or any other name or sign that incorporates any of VoiPay’s intellectual property (in whole or part) or that is confusingly similar thereto.
8.1 Calling premium rate services with VoiPay Credit:
(i) Premium rate services: The charges payable for calling premium rate services consist of a per-minute rate clearly displayed.
(ii) VoiPay may change the rates for calling services and premium rate numbers at any time without notice to you. The new rate will apply to your next purchase after the new rates have been published. Please check the latest rates before you make your call. If you do not accept the new rates, do not make your call.
(iii) The duration of a call shall be based on one-minute increments. Fractions of minutes will be rounded up to the next minute. The connection fee, where applicable, will be charged at the beginning of the call. Fractional usage charges will billed in increments that are rounded up, for example a charge of 1.1 credit will be charged at 1 credit. During the call, charges incurred will be deducted automatically from the VoiPay Credit balance in your User Account.
8.2 Charges for other Paid For Products: The charges for other Paid For Products will be confirmed to you before you complete a purchase from VoiPay. VoiPay may change the charges payable for the purchase of such Products at any time without any notice to you. You can choose whether or not to accept the new charges prior to completing your next purchase of the applicable Product. The new charges will apply to your next purchase after the new charges have been published.
8.3 Promotional Offers: From time to time, VoiPay may offer Paid-For Products for free for a trial period. VoiPay reserves the right to charge you for such Products (at the normal rate) in the event that VoiPay determines (in its reasonable discretion) that you are abusing the terms of the offer, including if you are using any service, proxy or other devices or anonymous IP address that prevents us from locating you.
8.4 Tax: 20% VAT generally applies if you are located in the EU. VoiPay reserves the right to apply VAT at the appropriate rate as per VAT rules applicable at the time of purchase. Other local taxes may apply in certain countries. When you purchase credots depending on the country, local VAT or other taxes may apply.
8.5 Third Party Charges: Using the Software on mobile applications will use some of the data allowance available on the data package to which you have subscribed with your mobile network operator. Out-of-country usage may lead to significantly higher costs than regular usage, and you are solely responsible for keeping yourself informed and paying for possible roaming and other applicable charges levied by your mobile network operator.
9.1 VoiPay Credit. You can pay for select Paid-For Products using VoiPay Credit. You can purchase VoiPay Credit using any payment method made available to you by VoiPay from time to time. The VoiPay Credit that you purchase will be credited to your User Account at the time of purchase (or if you are using a VoiPay Credit voucher, at the time you redeem that voucher).
9.2 Inactive VoiPay Credit. If you do not use your VoiPay Credit for a period of 30 days, (including VoiPay Credit that has been allocated to you by a VoiPay Manager administrator) VoiPay it shall expire 30 days from the date of purchase. You are not permitted to use any VoiPay Credit on or after the date of its expiry.
9.3 Other payment methods. VoiPay does not guarantee that you will be able to use your VoiPay Credit balance to purchase all Products. Where VoiPay Credit cannot be used to pay for a Product, VoiPay will make another payment method available to you. VoiPay reserves the right to remove or amend the available payment methods at its sole discretion.
10. REFUND POLICY
10.1 Withdrawal Right and Refund Request:
(i) Non-Refundable Purchases: No refunds shall be given for (a) deactivated VoiPay Credit (see paragraph 9.2); (b) Paid-For Products (including VoiPay Credit) that are paid for and allocated to your User Account; (c) Products purchased via a third party partner of VoiPay. Please contact the partner directly, who may decide in its sole discretion whether or not to pay a refund; (d) Products (including VoiPay Credit) that are not directly acquired online from VoiPay (e.g. vouchers or pre-paid cards) or that are paid for in cash using 3rd party payment methods (such as a cash payment wallet).
(ii) Charged in Error. If you believe that VoiPay has charged you in error, you must contact VoiPay within 90 days of such charge. No refunds will be given for any charges, which are more than 90 days old.
10.2 VoiPay reserves the right to refuse a refund request if it reasonably believes (a) that you are trying to unfairly exploit this refund policy, for example, by making repetitive refund requests in respect of the same Product; (b) if you are in breach of these Terms or (c) if VoiPay reasonably suspects that you are using our Products or Software fraudulently or that your User Account is being used by a third party fraudulently.
10.3 Refund payments will be made in the same form as you initially made payment.
10.4 This refund policy does not affect your statutory rights.
11. ENDING YOUR RELATIONSHIP WITH VOIPAY
11.1 You may terminate your relationship with VoiPay at any time and without recourse to the courts by requesting closure of your User Account, ceasing to use the Software, Products and/or VoiPay Websites and cancelling any recurring payments.
11.2 VoiPay may terminate its relationship with you, or may terminate or suspend your use of the Software, User Account(s), Products or VoiPay Websites at any time and without recourse to the courts:
(a) if you are in breach of these Terms;
(b) if VoiPay reasonably suspects that you are using the Software, the Products and/or VoiPay Websites to break the law or infringe third party rights;
(c) if VoiPay reasonably suspects that you are trying to unfairly exploit or misuse the refund policy, or any of our policies.
(d) if VoiPay reasonably suspects that you are using our Products, Software and/or VoiPay Websites fraudulently or that your User Account is being used by a third party fraudulently;
(e) if you have purchased VoiPay Credit from an unauthorised reseller;
(f) in respect of a particular Product, on thirty (30) days notice if VoiPay decides to cease offering that Product;
(g) immediately, if required due to a change in laws/regulation by a regulator or authority with a lawful mandate, or by any of VoiPay’s partners;
(h) on thirty (30) days notice if VoiPay decides to cease offering the Software to users in your jurisdiction generally.
11.3 VoiPay shall effect such termination by preventing your access to your User Account, the Software, Products and/or VoiPay Websites (as applicable). We reserve the right to cancel User Accounts that have been inactive for more than one (1) year.
11.4 Consequences of Termination: Upon termination of your relationship with VoiPay: (a) all licenses and rights to use the Software, Products and/or VoiPay Websites shall immediately terminate; (b) you will immediately cease any and all use of the Software, Products and/or VoiPay Websites; and (c) you will immediately remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in your possession or under your control.
12. EXCLUSION OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNITY
12.1 For the purposes of this paragraph 12, "VoiPay" includes its subsidiary companies and affiliated legal entities and all their directors, officers, agents, licensors and employees.
12.2 No Warranties: TO THE MAXIMUM EXTENT PERMITTED BY LAW: THE SOFTWARE, PRODUCTS AND VOIPAY WEBSITES ARE PROVIDED “AS IS” AND USED AT YOUR SOLE RISK WITH NO WARRANTIES WHATSOEVER; VOIPAY DOES NOT MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE, PRODUCTS AND/OR VOIPAY WEBSITES INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. VOIPAY FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE, PRODUCTS AND/OR VOIPAY WEBSITES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES VOIPAY WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE SOFTWARE.
12.3 Nothing in this these Terms shall exclude or restrict VoiPay's liability for (a) death or personal injury, (b) loss resulting from VoiPay's wilful default or gross negligence, (c) fraud or deliberate misrepresentation, or (d) any liability which cannot be limited or excluded by applicable law.
12.4 No Liability: YOU ACKNOWLEDGE AND AGREE THAT VOIPAY WILL HAVE NO LIABILITY WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES OR LOSSES HAS BEEN NOTIFIED TO VOIPAY , IN CONNECTION WITH OR ARISING FROM YOUR USE OF VoiPay WEBSITES, OR THE INTERNET COMMUNICATIONS SOFTWARE OR OTHER SOFTWARE THAT IS PROVIDED FREE OF CHARGE. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH SUCH SOFTWARE AND/OR VOIPAY WEBSITES IS TO IMMEDIATELY DEINSTALL SUCH SOFTWARE AND CEASE USE OF SUCH SOFTWARE AND/OR VOIPAY WEBSITES.
12.5 Limitation of Liability: Subject to paragraphs 12.3 and 12.4 above, VoiPay shall not be liable to you, whether in contract, tort (including negligence) or any other theory of liability, and whether or not the possibility of such damages or losses has been notified to VoiPay, for:
(a) any indirect, special, incidental or consequential damages; or
(b) any loss of income, business, actual or anticipated profits, opportunity, goodwill or reputation (whether direct or indirect); or
(c) any damage to or corruption of data (whether direct or indirect);
(d) any claim, damage or loss (whether direct or indirect ) arising from or relating to:
- your inability to use the Software to contact emergency services;
- your failure to make additional arrangements to access emergency services in accordance with paragraph 5.5 above;
- the service limitations set out in paragraph 5.6;
- your failure to provide accurate physical location information to an emergency services operative; or
- conduct of third party emergency services operatives and calling centres to which you may be connected.
(e) any claim, damage or loss (whether direct or indirect) arising from or relating to:
- any product or service provided by a third party under their own terms of service, including without limitation, VoiPay Access;
- any Third Party Technology;
- any third party website.
12.6 Subject to paragraphs 12.3 - 12.5 above, VoiPay’s total liability to you under or in connection with these Terms (whether in contract, tort (including negligence) or any other theory of liability)) SHALL NOT EXCEED IN AGGREGATE THE AMOUNT PAID BY YOU FOR THE PRODUCTS IN THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE RELEVANT CLAIM, SUBJECT TO A MAXIMUM OF FIVE THOUSAND EUROS IN ALL CASES.
12.7 If any third party brings a claim against VoiPay in connection with, or arising out of (i) your breach of these Terms; (ii) your breach of any applicable law of regulation; (iii) your infringement or violation of the rights of any third parties (including intellectual property rights); (iv) your User Submissions or (v) your complaint in relation to any User Submission, you will indemnify and hold VoiPay harmless from and against all damages, liability, loss, costs and expenses (including reasonable legal fees and costs) related to such claim.
13. THIRD PARTY WEBSITES PRODUCTS AND SERVICES
13.2 You acknowledge and agree that any third party product information and pricing that is shown on the VoiPay Websites regarding third party products and services is given to VoiPay by the applicable third party merchant (“Merchant”). The Merchant has the ability to change their pricing or terminate their product availability at anytime. VoiPay is not involved in any transactions between you and any Merchant whose products and/or services are listed on the VoiPay Websites. VoiPay does not control, is not responsible for and does not guarantee: (i) the pricing, quality, performance, availability or terms and conditions of purchase of products or services provided by the Merchant; (ii) any payment transactions, delivery, returns or after sales activities related to the products or services purchased on the Merchants’ websites; (iii) the availability of the Merchant’s websites; (iv) the completeness, truth or accuracy of any advertising or other materials on, or available from, the Merchants’ websites, nor any listing or other content about such products and services displayed on the VoiPay Websites; (v) links to the Merchants’ websites that are featured on the VoiPay Websites. Any questions, complaints, or claims related to any product or service provided by a Merchant should be directed to the applicable Merchant.
13.3 The Software and VoiPay Websites may include hyperlinks to other third party websites. VoiPay is not responsible for such third party websites or the availability of such websites and does not endorse any content or material on such third party websites. Your use of each of these third party websites is subject to the terms and conditions posted on the applicable website.
14. ADDITIONAL TERMS
14.1 There are no additional terms.
15. YOUR CONFIDENTIAL INFORMATION AND YOUR PRIVACY
16. FOR GOVERNMENT USERS ONLY
Any use, duplication or disclosure of the Software or the Documentation by or on behalf of any government is subject to restrictions as set forth in this Agreement.
17. HOW TO CONTACT VOIPAY
17.1 To contact VoiPay in relation to the VoiPay Software or “VoiPay” branded Products, please submit a support request to VoiPay.
18.1 You agree to the use of electronic communication in order to enter into contracts, place orders, and create other records and to the electronic delivery of notices, policies and changes thereto and records of transactions with VoiPay.
18.2 For your convenience, VoiPay may provide you with a translation of the English language version of these Terms. In the event of any inconsistency between a non-English version of these Terms and the English version, the English version shall govern your relationship with VoiPay.
18.3 These Terms constitute the entire agreement between you and VoiPay with respect to your use of the Software, Products and/or VoiPay Websites and replace any prior agreements between you and VoiPay with respect to the Software, Products and/or VoiPay Websites.
18.4 If any provision of these Terms (or part of it), is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, then such provision (or part of it) shall be removed from the Terms without affecting the legality, validity or enforceability of the remainder of the Terms.
18.5 The failure by VoiPay to exercise, or delay in exercising, a legal right or remedy provided by these Terms or by law shall not constitute a waiver of VoiPay’s right or remedy. If VoiPay waives a breach of these Terms, this shall not operate as a waiver of a subsequent breach of the Terms.
18.6 You may not assign these Terms or any rights or obligations contained in them. VoiPay may, without prior notice, assign these Terms or any rights or obligations contained in them to any third party.
18.7 This paragraph 18, along with paragraphs, 4.2, 12 and any other provisions, which are expressed or clearly intended to survive or operate in the event of termination, shall survive termination of the Terms.
18.8 You acknowledge and agree that if VoiPay is unable to provide the Software, Products and/or VoiPay Websites as a result of a force majeure event, VoiPay will not be in breach of any of its obligations towards you under these Terms. A force majeure event means any event beyond the control of VoiPay.
18.9 These Terms shall be governed by and interpreted in accordance with the laws of Luxembourg and shall be subject to the jurisdiction of the courts of the district of Luxembourg.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE SOFTWARE OR USE THE SOFTWARE, PRODUCTS AND/OR VoiPay WEBSITES, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO VOIPAY THE RIGHTS SET FORTH HEREIN.
© VoiPay – Last updated: August 15, 2011