SmartFax Customer Agreement
- Acknowledgement and Acceptance of This Agreement
- Privacy
- Customer Responsibilities
- Unsolicited Fax Advertisements/SPAM Drop-Box Policy
- Termination or Suspension
- Customer Representation
- Modifications to Customer Agreement
- Modifications to Services
- Member Account, PIN, and Security
- Disclaimer of Warranties and Limitation of Liability
- Charges
- Ownership
- Customer of Record of the Telephone Numbers
- Indemnification
- No Resale of the Services
- Participation in Promotions of Advertiser
- Notices; Consent
- General Terms
- Consumer Rights
- Legal Notices
- Agreement to Arbitrate All Disputes
This Customer Agreement is between you (“you” or “your”) as an authorized user of the Company Services, and Consensus Cloud Solutions, LLC, (the “Company” or “we”). For purposes of this Customer Agreement, “Services” is defined as any and all services provided by the Company to you either now or in the future and “Account” is defined as the account through which you access the Services. “Website” is the www.smartfax.com website.
This Customer Agreement, together with any operating rules, policies, price schedules or other supplemental documents published from time to time by the Company (collectively, the “Agreement”), constitutes the entire agreement between the Company and you regarding the Services, and supersedes all prior agreements between the Company and you regarding the subject matter of this Agreement. By using the Services, you confirm your acceptance of, and agree to be bound by, this Agreement. If you are using the Services on behalf of your employer, you represent that you are authorized to accept this Agreement on your employer’s behalf.
For Canadian Customers: Please note that when you place an order to purchase on the Site, it constitutes an offer to purchase and remains subject to the Company’s acceptance. Goods or services listed or described on the Site constitute an invitation to make an offer to purchase.
If you begin, but fail to complete the sign up process for Services, the Company may contact you in an effort to help you sign up for the Services or another service offered by the Company. You hereby authorize the Company to make such contact, even if you ultimately determine not to sign up for any of the services offered by the Company.
Unless explicitly stated otherwise, this Agreement will govern the use of any new features that augment or enhance the current Services, including but not limited to the release of new Company software and Services. In the case of any violation of this Agreement, the Company reserves the right to seek all remedies available by law and in equity.
For Canadian Customers: Please note that when you place an order to purchase on this Website, it constitutes an offer to purchase and remains subject to the Company’s acceptance. Goods or services listed or described on this Website constitute an invitation to make an offer to purchase.
Information collected by the Company about you will be treated in accordance with our privacy policy (“Privacy Policy”). This Privacy Policy can be found at www.smartfax.com/privacy/. If the Company decides to change its privacy practices, the Company will post a revised Privacy Policy at this location so you are always aware of what information the Company collects, how the Company uses it and under what circumstances, if any, the Company discloses it. The Company will use information in accordance with the Privacy Policy in effect at the time the information was collected. If the Company makes any material changes to its privacy practices or material changes to how your information is treated, the Company will notify you via email. You will have a choice as to whether or not the Company uses your information in this different manner. However, if you have deleted/deactivated your Account, then you will not be contacted, nor will your personal information be used in this new manner.
You are fully responsible for the contents of your transmissions through the Services. The Company simply acts as a passive conduit for you to send and receive information of your own choosing. However, the Company reserves the right to take any action with respect to the Services that the Company deems necessary or appropriate in its sole discretion if the Company believes you or your information may create liability for the Company, compromise or disrupt the Services for you or other customers, or cause the Company to lose (in whole or in part) the services of the Company’s ISPs or other suppliers. Your use of the Services is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination or false advertising). You agree: (1) to comply with all laws regarding the transmission of technical data exported from any country through the Services; (2) not to use the Services for illegal purposes; (3) not to interfere or disrupt networks connected to the Services; (4) to comply with all regulations, policies and procedures of networks connected to the Services; (5) not to use the Services to infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; and (6) not to transmit through the Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. The Services make use of the Internet for you to send and receive information of your own choosing. As a result, your conduct is subject to Internet regulations, policies and procedures. You agree not to use or reference the Services for chain letters, junk fax or junk mail, spamming or any use of distribution lists to any person who has not given specific permission to be included in such a process, and further agree not to attempt to gain unauthorized access to other computer systems. You further agree not to use the Services to store (1) any “protected health information” (as such term is used in the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191), or (2) any other type of information that imposes independent obligations upon the Company. You shall not interfere with another Customer’s use and enjoyment of the Services or another entity’s use and enjoyment of similar services. You must (a) obtain and pay for all equipment and third-party services (e.g., Internet access and email service) required for you to access and use the Services; (b) maintain the security of your PIN number and other confidential information relating to your account and; (c) be responsible for all charges resulting from use of your account, including unauthorized use prior to your notifying Company of such use and taking steps to prevent its further occurrence.
The transmission of unsolicited fax advertisements is illegal in the United States under the Federal Telephone Consumer Protection Act and is also illegal under the laws of a number of other countries, states and provinces. Distribution of unsolicited fax advertisements through the Services is prohibited and may be considered a material violation of this Agreement. The Company reserves the right to terminate the Agreement and pursue other legal remedies available to it; or any combination of these remedies. Notwithstanding the above, the Company’s distribution of advertising to its customers is not considered unsolicited fax advertising based upon your acceptance of this Agreement.
Company understands that receipt of such faxes can impair your use of our Services. Accordingly, the Company may use legally available means to prevent distribution and receipt of unsolicited fax advertisements to or by our customers. At Company’s option and without further notice, Company may use technologies and procedures, such as filters, that may terminate such unsolicited fax advertisements without delivering them. If you believe that you are in receipt of an unsolicited fax advertisement, and if the fax contains a telephone number, fax number, or other contact information to “unsubscribe” from receipt of additional junk faxes, please unsubscribe accordingly.
You hereby acknowledge and agree that the Company has any and all rights to assert any and all legal claims available against any third party as a result of your receipt of any unsolicited faxes, including but not limited to claims under the Telephone Consumer Protection Act of 1991, and to the extent you do have any rights to bring any such claims, you hereby assign any and all such rights to the Company.
Because our fax numbers may be reassigned to other customers in the event your account is canceled, and to ensure the best possible service for all customers, you are not permitted to “opt in” to receive spam faxes on your fax number.
The Company does not permit its Customers to use their fax number as a “drop-box” for responses to email or fax spam offers. If you believe you are in receipt of email or fax spam that uses a fax number as a “drop-box” for responses, and if the email or fax contains an email address, telephone number, fax number, or other contact information to “unsubscribe” from receipt of additional messages, please unsubscribe accordingly. Please contact customer service if you believe your number has been used as a “drop-box.”
We appreciate your assistance in enforcing and complying with these policies and look forward to continuing to make your Company experience a positive one for you.
a. By You
You may terminate your account at any time, with or without cause, upon notice, by following the instructions provided at www.smartfax.com/cancel. Your account will not be deemed terminated unless and until you receive an email confirming the termination of your account.
b. By the Company
The Company may terminate or suspend your Account at any time, with or without cause, upon notice. The Company reserves the right to do so without prior notice, provided that the Company will attempt to confirm such termination or suspension by subsequent notice. In addition, the Company reserves the right to suspend or terminate your Account without notice upon rejection of any credit card charges or if your card issuer (or its agent or affiliate) seeks return of payments previously made to the Company when the Company believes you are liable for the charge. Such rights are in addition to and not in lieu of any other legal rights or remedies available to the Company. The Company reserves the right to limit use of the Services or to terminate any account if we believe unreasonable usage has occurred on such account or if the Services are used in a manner that is not permitted by this Agreement. Such termination does not relieve you of your obligation to pay for the Services. If your account is suspended or terminated and the Company later reactivates your account, the Company may charge you a reactivation fee of $25. The Company also reserves the right to take any action with respect to the Services that it deems necessary or appropriate in its sole discretion if the Company believes you or your information may create liability for the Company, compromise or disrupt the Services for you or others or cause the Company to lose (in whole or in part) the services of the Company’s suppliers.
You represent and warrant that you are at least 18 years of age or, as applicable, the age of majority in the state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. You agree to be financially responsible for your use of the Services (as well as for use of your account by others, including minors living with you) and to comply with your responsibilities and obligations as stated in this Agreement. If you sign up on behalf of an entity, you agree and acknowledge that you have authority to bind the entity to this Agreement. You also agree and acknowledge that you are responsible for all individual users who access and/or use the Services through your Account. Accordingly, the terms, conditions, restrictions and obligations of this Agreement (excluding your payment obligations to the Company) shall be construed to also apply to all users who utilize your SmartFax Account and you shall be liable for any breach hereof by any user of your SmartFax Account.
The Company may automatically amend this Agreement at any time by posting a revised Agreement on the Website, and if the amendments are material by sending information regarding the amendment to the email address you provide to the Company. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE WEBSITE TO OBTAIN TIMELY NOTICE OF SUCH AMENDMENTS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE THE SERVICES AFTER SUCH AMENDMENTS HAVE BEEN POSTED OR INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO YOU. Otherwise, this Agreement may not be amended except in writing signed by both you and the Company. The Company reserves the right to modify or discontinue any of the Services with or without notice to you and the Company shall not be liable to you or any third party should the Company exercise its right to do so.
The Company reserves the right to modify or discontinue any of the Services with or without notice to you. The Company shall not be liable to you or any third party should the Company exercise its right to modify or discontinue the Services
As part of the registration process, you will be required to provide an email address and select a user name and password. Once you become a registered user, your fax number will be automatically sent to you by email. You may change your password to protect your fax messages after logging in to the Website. You are entirely responsible for maintaining the confidentiality of your user name, password, fax number and account information. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to immediately notify the Company of any unauthorized use of your account or any other breach of security known to you.
ALL COMPANY SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND NEITHER THE COMPANY NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO YOU REGARDING THE USABILITY, CONDITION OR OPERATION THEREOF. THE COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE COMPANY SOFTWARE OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. THE COMPANY RESERVES THE RIGHT TO MAKE THE SERVICES INOPERABLE IN ORDER TO CONDUCT MAINTENANCE AND UPGRADES, AND DEPENDING ON CIRCUMSTANCES MAY NOT INFORM CUSTOMERS IN ADVANCE OF ANY SUCH DOWNTIME. THE COMPANY AND EACH OF ITS LICENSORS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY.
YOUR USE OF THE SERVICES AND ALL COMPANY SOFTWARE AND SERVICES IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF FILES OR OTHER MATERIAL (INCLUDING COMPANY SOFTWARE) OBTAINED EITHER DIRECTLY OR INDIRECTLY FROM THE COMPANY. YOU AGREE THAT NEITHER THE COMPANY NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS WILL BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF YOUR USE OF OR INABILITY TO USE THE SERVICES OR ANY OTHER COMPANY SOFTWARE, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT THERETO, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF THE COMPANY OR ANY SUCH LICENSOR OR SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE ENTIRE LIABILITY OF THE COMPANY AND ITS LICENSORS AND SERVICE PROVIDERS AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE SERVICES AND SOFTWARE OR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE SOFTWARE OR SERVICES IN THE THREE (3) MONTHS PRECEDING THE DATE OF YOUR CLAIM OR (II) U.S. $500.00. YOU HEREBY RELEASE THE COMPANY AND EACH OF ITS LICENSORS AND SERVICE PROVIDERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED OR LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.
NEITHER THE COMPANY NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY COMMUNICATIONS DIFFICULTIES OUTSIDE OF THE COMPANY’S OR ANY SUCH LICENSOR’S OR SERVICE PROVIDER’S CONTROL WHICH COULD LEAD TO THE INTERRUPTION OF DATA DELIVERY SERVICE TO THE CUSTOMER’S EMAIL ADDRESS, PAGER, TELEPHONE OR ANY OTHER RECEIVING DEVICES OR THIRD-PARTY DATA STORAGE AND/OR DELIVERY SERVICES.
YOU WILL NOT RELY ON ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, MADE BY ANY PERSON OTHER THAN AN AUTHORIZED OFFICER OF THE COMPANY, IN EVALUATING THE SERVICES AND/OR PRODUCTS OF THE COMPANY.
a. Payment
You agree to pay all charges for your use of the Services at the prices then in effect. All charges will be exclusive of value added (“VAT”), sales or other taxes, except as required by law. We may amend your pricing plan, including but not limited to any charges thereto, at any time either by (a) posting pricing plan changes on the Website, or (b) sending information regarding the pricing plan changes to the email address you provided to us. You are responsible for regularly reviewing such pricing plan information. Continued use of the Services, or non-termination of your account, after changes are either posted or emailed to you constitutes your acceptance of the pricing plan as modified.
Your account balance is due monthly in the currency billed and, unless you have a qualified business account, will be charged to any of the credit or debit cards you designated to the Company. If your account is a qualified business account and is approved by the Company for corporate billing, charges will be accumulated, identified by Customer identification number and invoiced on a monthly basis.
b. Credit or Debit Card Payments
If the payment method for your account is by credit or debit card and payment is not received by the Company from the card issuer or its agents, you agree to pay all amounts due upon demand by the Company. Until the Services are terminated in accordance with the Company’s cancellation and verification procedures, as may be established by the Company from time to time in its sole discretion, you agree and reaffirm that the Company is authorized to charge your designated card. Your card issuer’s agreement governs your use of your designated card in connection with the Services, and you must refer to such agreement (not this Agreement) with respect to your rights and liabilities as a cardholder. You agree that the Company may (at its option) accumulate charges incurred during your monthly billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and that the Company may delay obtaining authorization from your card issuer until submission of the accumulated charge(s). This means that accumulated charges may appear on the statement you receive from your card issuer.
c. Fees
Your activation fee (also referred to as a sign-up fee), monthly service fees, usage fees, and/or storage fees are COMPLETELY NON-REFUNDABLE. You agree that the Company may submit charges for all applicable fees each month via your invoice, without further authorization from you, until the Services are terminated in accordance with the Company’s cancellation and verification procedures, as may be established by the Company from time to time in its sole discretion. Such termination will not affect charges submitted before the Company reasonably could act on your notice. Charges which apply in arrears will apply for the entire current billing period in which you terminate. If you have any question regarding any charges that have been applied to your account, you must contact the Company’s Customer Service Department within 30 days of the charge date. Failure to use your account will not be deemed a basis for refusing to pay any charges submitted by the Company in accordance with this Agreement.
Per page usage includes pages received or sent through the Services. For each transmission (sending or receiving), the number of pages is calculated based on the greater of the actual number of pages or the number of full or partial 60-second increments of transmission time. You agree that the Company may submit charges for such usage charges as and when such charges are incurred or by accumulating such charges (in the sole discretion of the Company), without further authorization from you, until you provide prior notice (in accordance with Company’s cancellation and verification procedures, as may be established by the Company from time to time in its sole discretion) that you have terminated this authorization or wish to change your designated card. Such notice will not affect charges submitted before the Company reasonably could act on your notice. If you are using the Services from certain locations, you may also incur charges levied by your Internet service provider, online service provider and/or long distance carrier to access the Company.
With respect to the outbound faxing service, please be advised that the Company will bill you for one page for each attempt made to send the fax, such as instances when someone answers the call or transmission is interrupted before completion.
d. Annual Pricing Terms and Additional Fees
If you subscribed for the Services for a fixed number of months (e.g., an annual plan or multi-month plan), your pre-paid fees are payable in advance and are COMPLETELY NON-REFUNDABLE. In addition, your pre-paid fee for the designated period immediately following your pre-paid period will be PRE-AUTHORIZED AGAINST YOUR CREDIT CARD OR DEBIT CARD LIMIT and will be immediately charged to your credit or debit card, without further authorization from you, upon the expiration of such pre-paid period, unless you provide prior notice (in accordance with the Company’s cancellation and verification procedures, as may be established by the Company from time to time in its sole discretion) that you have terminated this authorization. Such notice will not affect charges submitted before the Company reasonably could act on your notice.
Annual plan accounts may incur additional charges for usage-based services and/or storage fees in accordance with your current pricing plan/subscription. Additional charges will be immediately charged to your credit or debit card without further authorization from you, upon the expiration of such pre-paid period, unless you provide prior notice (in accordance with the Company’s cancellation and verification procedures, as may be established by the Company from time to time in its sole discretion).
e. Fax Storage
While your account is active, the Company will store fax messages received through your fax number for a period of up to 30 days at no cost. Faxes stored in the web interface after 30 days will incur a charge of $.05 per fax, per month. To avoid storage fees, you can conveniently set your Account Settings on your account to automatically delete faxes after 30 days. You acknowledge that the Company may change its practices and limitations concerning storage of fax messages, including without limitation, the maximum number of days that fax messages will be retained, the maximum number of messages stored at any one time, and the maximum storage space that will be allotted on the Company’s servers on your behalf, at any time, as provided for in Section 7. You further agree that the Company has no responsibility or liability whatsoever for the deletion or failure to store any fax messages and/or other communications maintained or transmitted by the Service.
f. Free Trial Periods
If you subscribed for the Services pursuant to a special offer granting you a free trial period, your activation fee and initial monthly service fee may be PRE-AUTHORIZED AGAINST YOUR CREDIT CARD OR DEBIT CARD LIMIT (meaning the amounts pre-authorized will not be considered available credit or debit funds in such account) and will be immediately charged to your credit or debit card, without further authorization from you, upon the expiration of such free trial period, unless the Services are terminated in accordance with the Company’s cancellation and verification procedures, as may be established by the Company from time to time in its sole discretion. Such termination will not affect charges submitted before the Company reasonably could act on your notice. Any usage in excess of any free pages, and any usage incurred from sending any International faxes will apply and will be immediately charged to your designated credit card, without further authorization from you.
g. Deposits
Prepaid charges and/or subscriptions require an initial deposit which is due and payable in advance by deposit of a fixed amount in accordance with the pricing plan/subscription selected. This deposit will be immediately charged to your credit or debit card without further authorization from you. Your deposit will thereafter be depleted according to the rates specified by the pricing plan/subscription you selected upon enrollment. Thereafter, each time your deposit is depleted to the minimum amount specified by the pricing plan/subscription selected, another fixed amount deposit in the same amount as the prior deposit will be immediately charged to your credit or debit card, without further authorization from you, which deposit will thereafter be depleted according to the rates specified by the pricing plan/subscription you selected upon enrollment You agree that the Company may submit charges for these deposits without further authorization from you, until you provide prior notice (in accordance with the Company’s cancellation verification procedures, as may be established by the Company from time to time in its sole discretion) that you have terminated this authorization or wish to change your designated card. Such notice will not affect charges submitted before the Company reasonably could act on your notice. Unused balances from previous deposits are not refundable.
h. Changes in Account Information
You must promptly notify the Company of changes to: (a) the account number or expiration date of your designated card; (b) your billing address; and (c) the name of each minor whom you have authorized to use your account. You must also promptly notify the Company if your card is canceled (e.g., for loss or theft). In order to avoid interruptions in the Service caused by rejected credit or debit card charges, the Company reserves the right to update your credit or debit card details (such as expiration dates) where this is not prohibited by law. YOU UNDERSTAND AND AGREE THAT THE COMPANY IS ENTITLED TO OBTAIN SUCH UPDATED CARD DETAILS, STORE THEM AND USE THEM TO BILL CHARGES.
i. Credits
Company may, from time to time, award you a gift balance, which is a non-refundable credit applicable toward usage balances only. Gift balances have no cash value. Gift balances will expire on the earlier of (i) termination of your Account or (ii) 30 days after they are issued, and are subject to any additional terms associated with the credit offer. Company reserves the right to limit gift balances to a maximum of $5 per customer. In addition, Company may offer other incentives or issue other credits from time to time, each of which is subject to the specific terms of the applicable offer or credit. Company reserves the right to modify these credits or offers at any time with or without notice.
j. Late Fees
A late fee of U.S. $4.95 (or the local currency equivalent) may be charged to your account each time full payment of your outstanding balance is not received by the payment due date. You agree that the Company may submit charges for late fees without further authorization from or notice to you, until you provide prior notice (in accordance with the Company�s verification procedures, as may be established by the Company from time to time in its sole discretion) that you have terminated or canceled your Services, or wish to change your designated card(s). Such notice will not affect charges submitted before the Company reasonably could act on your notice.
All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising the Company Service are wholly owned by the Company and/or its licensors and service providers except where expressly stated otherwise. You may not use the Company’s trademarks, trade names, patents, copyrights or other intellectual property rights without the Company’s prior written permission.
IN PARTICULAR, YOU AGREE THAT YOU ARE NOT AUTHORIZED TO CHARGE SERVICES PROVIDED TO YOU OR AT YOUR REQUEST TO THE COMPANY NUMBER ASSIGNED TO YOU BY THE COMPANY AND THAT YOU WILL NOT REQUEST OR OTHERWISE CAUSE ANY THIRD-PARTY SERVICE PROVIDER TO CHARGE ANY SUCH SERVICES TO SUCH NUMBER. EXCEPT AS PROHIBITED BY APPLICABLE LAW, ANY SUCH CHARGES WILL GIVE THE COMPANY THE RIGHT TO IMMEDIATELY TERMINATE OR SUSPEND YOUR ACCOUNT WITHOUT NOTICE.
YOU UNDERSTAND AND AGREE THAT YOU WILL HAVE USE OF THE TELEPHONE NUMBER(S) THAT ARE PROVIDED AS PART OF THE SERVICES ONLY UNTIL THE END OF THE TERM OF YOUR AGREEMENT WITH THE COMPANY OR UNTIL THE COMPANY NO LONGER PROVIDES YOU WITH SERVICE UNLESS YOU SATISFY THE PROVISIONS IN SECTION a BELOW. THE COMPANY IS GRANTING YOU THE REVOCABLE PERMISSION TO USE SUCH TELEPHONE NUMBER(S) IN ACCORDANCE WITH THIS AGREEMENT FOR THE LENGTH OF THE TERM OF THE AGREEMENT. YOU UNDERSTAND THAT THE COMPANY IS THE CUSTOMER OF RECORD OF ALL TELEPHONE NUMBER(S) PROVIDED AS PART OF THE SERVICES AND, THEREFORE, THE COMPANY HAS CERTAIN RIGHTS WITH RESPECT THE NUMBER(S), INCLUDING WITHOUT LIMITATION CERTAIN RIGHTS RELATING TO PORTING OF THE NUMBER(S) ("PORTING" IS CAUSING OR ATTEMPTING TO CAUSE NUMBER(S) TO BE TRANSFERRED, SWITCHED, OR OTHERWISE MOVED TO ANY OTHER SERVICE PROVIDER, TELEPHONE CARRIER OR ANY OTHER PERSON OR ENTITY). AS THE CUSTOMER OF RECORD FOR THE TELEPHONE NUMBER(S), THE COMPANY HAS THE DIRECT RELATIONSHIP WITH THE TELEPHONE COMPANY THAT PROVIDES THE UNDERLYING TELECOMMUNICATIONS THAT SUPPORT THE SERVICES YOU RECEIVE FROM THE COMPANY. YOU UNDERSTAND AND AGREE THAT THE COMPANY IS NOT, ITSELF, A TELEPHONE COMPANY AND THEREFORE THE COMPANY IS NOT UNDER ANY LEGAL OBLIGATION TO PERMIT YOU TO PORT ANY TELEPHONE NUMBER(S) PROVIDED AS PART OF THE SERVICE UNLESS YOU SATISFY THE PROVISIONS IN SECTION a BELOW FOR PORTING OUT THE NUMBER. YOU UNDERSTAND AND AGREE THAT YOU ARE EXPRESSLY PROHIBITED FROM CAUSING OR ATTEMPTING TO CAUSE SUCH NUMBER(S) TO BE TRANSFERRED TO ANY OTHER SERVICE PROVIDER, TELEPHONE CARRIER OR ANY OTHER PERSON OR ENTITY UNLESS YOU SATISFY THE PROVISIONS IN SECTION a BELOW FOR PORTING OUT THE NUMBER(S). IN THE EVENT YOU VIOLATE THE FOREGOING PROVISION, YOU AGREE TO IMMEDIATELY RETURN THE NUMBER(S) TO THE COMPANY AND PAY THE COMPANY AN AMOUNT EQUAL TO US $500 (OR THE EQUIVALENT IN LOCAL CURRENCY). YOU AUTHORIZE THE COMPANY TO CHARGE YOUR ACCOUNT CREDIT CARD OR TAKE ANY OTHER MEASURES REQUIRED TO COLLECT THIS PAYMENT AND TO CAUSE THE NUMBER(S) TO BE SO RETURNED. YOU AGREE THAT THIS PAYMENT REPRESENTS LIQUIDATED DAMAGES REFLECTING A REASONABLE MEASURE OF THE ACTUAL OR ANTICIPATED HARM, DAMAGES CAUSED, AND ADMINISTRATIVE FEES INCURRED BY THE COMPANY FROM SUCH VIOLATION IN LIGHT OF THE DIFFICULTIES OF PROOF OF THE COMPANY'S LOSS AND THAT THIS PAYMENT IS NOT A PENALTY. SOME NON-US JURISDICTIONS DO NOT ALLOW LIMITATIONS TO BE PLACED ON YOUR RIGHT TO PORT THE TELEPHONE NUMBER ASSIGNED TO YOU, SO SOME OF THESE LIMITATIONS MAY NOT APPLY IF YOU OR THE NUMBER(S) ASSIGNED TO YOU ARE LOCATED IN SUCH A JURISDICTION.
a. Telephone Numbers Ported In
IF YOU "PORTED IN" ANY TELEPHONE NUMBER(S) IN CONNECTION WITH YOUR USE OF SERVICES, OR YOU ARE ENTITLED TO "PORT OUT" A TELEPHONE NUMBER UNDER NON-US LAW, YOU MAY "PORT OUT" SUCH NUMBER(S) IN CONNECTION WITH TERMINATING YOUR ACCOUNT ONLY IF, AND ONLY IF, YOU SATISFY THE FOLLOWING REQUIREMENTS: (i) YOU PROVIDE WRITTEN NOTICE TO THE COMPANY OF YOUR INTENTION TO "PORT OUT" SUCH TELEPHONE NUMBER(S) OR THE NUMBER(S) YOU PORTED IN ASSOCIATED WITH THE TERMINATED ACCOUNT NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF TERMINATION OF YOUR ACCOUNT (THE "PORTING NOTICE PERIOD"); (ii) YOUR NEW TELEPHONE CARRIER PROVIDES THE COMPANY'S TELEPHONE CARRIER WITH A DULY EXECUTED PORTING REQUEST PRIOR TO THE EXPIRATION OF THE PORTING NOTICE PERIOD; (iii) YOU HAVE PAID THE COMPANY FOR ALL SERVICES PROVIDED TO YOU PRIOR TO THE DATE YOU PROVIDE THE COMPANY NOTICE OF YOUR INTENT TO TERMINATE YOUR ACCOUNT; AND (iv) PRIOR TO THE EXPIRATION OF THE PORTING NOTICE PERIOD, THE COMPANY HAS RECEIVED AN ADMINISTRATIVE FEE TO COVER ITS REASONABLE COSTS ASSOCIATED WITH PROCESSING THE PORT IN AN AMOUNT OF $40 (OR THE EQUIVALENT IN LOCAL CURRENCY) PER TELEPHONE NUMBER. YOU HEREBY AUTHORIZE THE COMPANY TO CHARGE YOUR CREDIT CARD IN THE APPLICABLE AMOUNT FOR THE ADMINISTRATIVE FEE IN SUBSECTION (iv). THE PORTING PROCESS CAN BE LENGTHY; IF YOU WOULD LIKE TO MAINTAIN YOUR ACCOUNT WITH THE COMPANY DURING THE PORTING PROCESS, YOU MUST MAINTAIN YOUR ACCOUNT IN AN ACTIVE STATUS AND NOT TERMINATE YOUR ACCOUNT UNTIL THE PORTING OUT IS COMPLETE. REGARDLESS OF WHEN THE PORT OUT IS COMPLETE, YOU WILL CONTINUE TO BE RESPONSIBLE TO PAY ALL APPLICABLE ACCOUNT FEES WITH RESPECT TO THE TELEPHONE NUMBERS UNTIL YOU FORMALLY TERMINATE YOUR SERVICE. IF YOU FAIL TO SATISFY ANY OF THE FOREGOING REQUIREMENTS, THE COMPANY REMAINS THE CUSTOMER OF RECORD OVER THE NUMBER(S) AND YOU ARE EXPRESSLY PROHIBITED FROM CAUSING OR ATTEMPTING TO CAUSE SUCH NUMBER(S) TO BE TRANSFERRED TO ANY OTHER SERVICE PROVIDER, TELEPHONE CARRIER OR ANY OTHER PERSON OR ENTITY. THE COMPANY ALSO RETAINS THE RIGHT TO RECLAIM THE NUMBER(S) FROM YOU AFTER THE NUMBER(S) ARE PORTED OUT IN CONTRAVENTION WITH THESE REQUIREMENTS AND TO CHARGE YOUR CREDIT CARD THE US$500 (OR THE EQUIVALENT IN LOCAL CURRENCY) IN LIQUIDATED DAMAGES SET FORTH ABOVE IN THIS SECTION. YOU UNDERSTAND AND AGREE THAT EVEN IF YOU SATISFY THE REQUIREMENTS SET FORTH IN THIS SECTION a, TECHNICAL OR PROCEDURAL DIFFICULTIES OR INTERRUPTIONS MAY OCCUR WHEN ATTEMPTING TO PORT OUT THESE NUMBERS (E.G. WHEN NO PORTING AGREEMENT EXISTS BETWEEN YOUR AND OUR TELEPHONE CARRIER OR FOR ANY OTHER REASON) AND SUCH DIFFICULTIES OR INTERRUPTIONS MAY PREVENT YOUR NEW CARRIER FROM PORTING THE NUMBERS. THE COMPANY IS NOT RESPONSIBLE FOR SUCH TECHNICAL OR PROCEDURAL DIFFICULTIES OR INTERRUPTIONS AND YOU WILL RECEIVE NO REFUND OF YOUR ADMINISTRATIVE FEE.b. Reassignment of Telephone Numbers
YOU UNDERSTAND AND AGREE THAT FOLLOWING THE TERMINATION OF YOUR ACCOUNT FOR ANY REASON, SUCH COMPANY NUMBER MAY BE RE-ASSIGNED IMMEDIATELY TO ANOTHER CUSTOMER, AND YOU AGREE THAT THE COMPANY WILL NOT BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF ANY SUCH RE-ASSIGNMENT, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT TO ANY SUCH RE-ASSIGNMENT, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.YOU FURTHER UNDERSTAND AND AGREE THAT THE COMPANY MAY FROM TIME TO TIME NEED TO CHANGE THE COMPANY NUMBER ASSIGNED TO YOU (WHETHER DUE TO AN AREA CODE SPLIT OR ANY OTHER REASON WHETHER OUTSIDE OR WITHIN THE COMPANY'S CONTROL). YOU AGREE THAT THE COMPANY WILL NOT BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF ANY SUCH CHANGE IN THE COMPANY NUMBER ASSIGNED TO YOU, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT TO ANY SUCH CHANGE, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
You agree to indemnify the Company and each of its licensors and service providers from and against any and all liabilities, expenses (including attorneys’ fees) and damages arising out of claims based upon use of your account, including any violation of this Agreement by you or any other person using your account, any claim of libel, defamation, violation of rights of privacy or publicity, any loss of service by other customers, any infringement of intellectual property or other rights of any third parties, and any violation of any laws or regulations, including but not limited to any violation of any laws or regulations prohibiting transmission of unsolicited faxes.
Your right to use the Services is personal to you. You may be either an individual or a corporation or business entity, but you agree not to resell the use of the Services.
You may enter into correspondence with or participate in promotions of advertisers showing their products on the Services. Any such correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between you and the advertiser. The Company assumes no liability, obligation or responsibility for any part of any such correspondence or promotion.
Notices given by the Company to you will be given by email, phone, fax or by a general posting on the Company Website, or by conventional mail. In any matter requiring Company’s prior consent, such consent will be considered given only if made in the foregoing manner by an authorized representative of Company. Notices given by you to Company must be given by email or by conventional mail (subject, however, to the Company’s verification procedures, as may be established by Company from time to time in its sole discretion, and which may include the requirement that you contact Company by phone so as to confirm that any such notice was in fact sent by you). Notices to Company by conventional mail must be sent to the Company at Consensus Cloud Solutions, LLC, 700 S. Flower St., 15th Floor, Los Angeles, CA 90017
THE LAWS OF THE STATE OF CALIFORNIA, U.S.A., EXCLUDING ITS CONFLICTS-OF-LAW RULES, GOVERN THIS AGREEMENT AND YOUR USE OF COMPANY SOFTWARE AND SERVICES. THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY DISCLAIMED. YOU EXPRESSLY AGREE THAT THE EXCLUSIVE JURISDICTION FOR ANY CLAIM OR DISPUTE ARISING FROM THE USE OF COMPANY SOFTWARE OR SERVICES RESIDES IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA OR A SUPERIOR COURT FOR THE STATE OF CALIFORNIA LOCATED IN LOS ANGELES COUNTY. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. The Company’s failure to act with respect to a breach by you or others does not waive the Company’s right to act with respect to subsequent or similar breaches. You may not assign or transfer this Agreement or any rights hereunder, and any attempt to the contrary is void. The Company shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond the Company’s reasonable control. Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors, although such technology may not be effective with regard to receipt of email messages as provided as part of the Services.
Under California Civil Code Section 1789.3, California Customers are entitled to the following specific consumer rights information:
1. Pricing Information. Current rates for using the Service may be obtained by calling Customer Service. The Company reserves the right to change recurring or usage fees and surcharges or to institute new fees at any time, as provided for in the Section entitled "Modifications to this Agreement and to the Services" above.
2. Complaints. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
a. Trademark Information
SmartFax™ is a trademark of the Company in the United States and other countries (“Trademark”). The Company’s trademarks may be used publicly only with written permission from the Company. You agree that your use of the Trademark or any other trademark of the Company shall be strictly limited to your use of the Services and in compliance with the Agreement. If you use the Trademark or any other trademark of the Company in a nominal “fair use” manner, you agree to include proper acknowledgement of the Company’s trademark rights to any such use.
b. Single Copy License
The materials at the SmartFax website, www.smartfax.com and the web pages within it (the “Site”), are copyrighted and any unauthorized use of such materials may violate copyright, trademark and other laws. You may download one copy of the information or software (“Materials”) found on the Site on a single computer for your personal, non-commercial internal use only unless specifically licensed to do otherwise by the Company in writing or as allowed by any license terms which accompany or are provided with individual Materials. This is a license, not a transfer of title, and is subject to the following restrictions: you may not:
- Modify the Materials or use them for any commercial purpose, or any public display, performance, sale or rental;
- Decompile, reverse engineer or disassemble software Materials except and only to the extent permitted by applicable law;
- Remove any copyright or other proprietary notices from the Materials;
- Transfer the Materials to another person. You agree to prevent any unauthorized copying of the Materials.
c. Termination of this License
The Company may terminate this license at any time if you are in breach of the terms of this Agreement. Upon termination, you will immediately destroy the Materials.
d. Ownership of Materials
Materials are copyrighted and are protected by worldwide copyright laws and treaty provisions. They may not be copied, reproduced, modified, published, uploaded, posted, transmitted or distributed in any way without the Company’s prior written permission. Except as expressly provided herein, the Company and its suppliers do not grant any express or implied right to you under any patents, copyrights, trademarks or trade secret information. Other rights may be granted to you by the Company in writing or incorporated elsewhere in the Materials.
e. Links
Links provided on the Site are provided solely as a convenience to you and the provision of any such link does not constitute our endorsement of the linked website or its provider or of any of the content, products or services contained or offered therein. Your use of linked websites is subject to the conditions, if any, that each of those websites has posted. You agree that the Company is not responsible for the accuracy, copyright compliance, legality, decency or any other aspect of the contents, products, Services or any transmissions received through such websites. You further agree that the Company has no liability whatsoever from such third party websites and your usage of them.
f. Disclaimer
THE MATERIALS ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NON INFRINGEMENT OF INTELLECTUAL PROPERTY, OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE MATERIALS, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS PROHIBIT THE EXCLUSION OF LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
The Company and its suppliers further do not warrant the accuracy or completeness of the information, text, graphics, links or other items contained within these Materials. The Company may make changes to these Materials, or to the services described therein, at any time without notice. The Company makes no commitment to update the Materials.
21. Agreement to Arbitrate All Disputes
a. You and the Company agree that all disputes and claims between you and the Company shall be settled by binding arbitration instead of in courts of general jurisdiction. This agreement to arbitrate is intended to be broadly interpreted and includes, but is not limited to any dispute, claim or controversy arising out of or relating in any way to the Services, Company software, the Website, the Agreement or any aspect of the relationship between you and the Company. You agree that, by agreeing to the Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Company are each waiving the right to a trial by jury or to participate in a class action. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against the Company on your behalf. This arbitration provision shall survive termination of this Agreement and the termination of your Account.
b. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to the Company should be addressed to: Consensus Cloud Solutions, LLC, ATTN: Legal Department, 700 S. Flower St., 15th Floor, Los Angeles, CA 90017, USA (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If the Company and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or the Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by the Company or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or the Company is entitled. You may download or copy a form Notice and a form to initiate arbitration at www.adr.org. If you are required to pay a filing fee, after the Company receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000.
c. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by the Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org. The arbitrator is bound by the terms of the Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. Unless the Company and you agree otherwise, any arbitration hearings will take place by video or telephone conference. If your claim is for US$10,000 or less, the Company agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of the Agreement.
d. The Company may make a written settlement offer anytime before an arbitrator is selected. If the arbitrator issues you an award that is greater than the value of the Company’s last written settlement offer made before an arbitrator was selected (or if the Company did not make a settlement offer before an arbitrator was selected), then the Company will pay you the amount of the award or US$1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
e. YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and the Company agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.