In order to use the Plum Fuse, Fuse+, Plum DEV, Plum Insight or VoiceTrends services, associated application programming interfaces (APIs), the Plum Fuse, Fuse+, Plum DEV, Plum Insight or VoiceTrends, Development Environments and to access the information contained on the Plum Fuse, Fuse+, Plum DEV, Plum Insight or VoiceTrends, Plum Voice websites (the “Websites”) or make use of the services provided by Plum Fuse, Plum DEV, Fuse+, Plum Insight or VoiceTrends (the “Service” or “Services”), You (hereinafter referred to as “You”, “Your” or “Yourself”) must first read this agreement (the “Agreement”) and accept it. You may not avail Yourself of the Plum Fuse, Plum DEV, Plum Insight or VoiceTrends Development Environment, Websites, APIs or Services if You do not accept this Agreement and the terms therein. You accept the terms of the Agreement by clicking to accept, by logging into Plum Fuse, Fuse+, Plum DEV, Plum Insight or VoiceTrends accounts, and by agreeing to the terms of the Agreement in the user interface for any Plum Fuse, Plum DEV, Fuse+, Plum Insight or VoiceTrends Development Environment or APIs. In the latter case, You understand and agree that we will treat Your use of the Services as acceptance of the terms from that point onwards.
The terms and conditions set forth herein may be amended in our sole and absolute discretion from time to time, and such amended terms and conditions shall be effective immediately upon posting to the Website. Your continued use of the Service after such posting will constitute acceptance by You of such amendments. It is Your responsibility to review these Terms of Service frequently and remain informed about any changes to them, so we encourage You to visit this page often.
1. Grant of Rights to Use Services
1.1 Subject to Your acceptance of and compliance with this Agreement and with the payment requirements for the Services, Plum Fuse, Plum DEV, Fuse+, Plum Insight or VoiceTrends hereby grants You a limited, non-exclusive, non-transferable, revocable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement. Unless explicitly stated otherwise, any new features provided by Plum Fuse, Plum DEV, Fuse+, Plum Insight or VoiceTrends that augment or enhance the current Services shall also constitute “Services” and shall be subject to these terms and conditions. You may not, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Services for any purpose whatsoever. You may not allow any unauthorized third party to access the Services for any purpose whatsoever. All rights not expressly granted under this Agreement are retained by Plum Voice.
1.2 You may write a software application or Website (an “Application”) that interfaces with the Services. You acknowledge that we may change, deprecate or republish APIs for any Service or feature of a Service from time to time, and that it is Your responsibility to ensure that calls or requests You make to or via our Service are compatible with then-current APIs for the Service. Plum Voice will attempt to inform You of any changes with reasonable notice so You can adjust Your Application, but we are under no obligation to do so.
1.3 You and any Applications that You may build, distribute, or otherwise create may make network calls or requests to the Services, or may receive phone calls via the Service, at any time that the Services are available provided that those requests do not violate the terms of the Acceptable Use Policy or other terms of this Agreement.
1.4 You may not remove, obscure, or alter any notice of any Plum Fuse trademark, service mark or other intellectual property or proprietary right appearing on the Website or contained within the Services.
1.5 Provided that You comply with the terms of this Agreement and our policies and procedures including the Acceptable Use Policy, You may use the Services to create Applications that are controlled and supported by You. You are solely responsible for Your Applications, including any data, text, images or content contained therein.
1.6 You are personally responsible for all traffic originating from Your Applications using Your account credentials to the Services. As such, You should protect Your authentication keys and security credentials. Actions taken using Your credentials shall be deemed to be actions taken by You, with all consequences including service termination, civil and criminal penalties.
1.7 We may make available to You, for Your installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation (the “Plum Voice Properties”). Subject to Your acceptance of this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, and payment if and as required for Your right to use the subject Service, we hereby grant to You, without the right to sublicense, a limited, non-exclusive, non-transferable license during the Term of this Agreement (as defined in Section 2.1), under our intellectual property or proprietary rights in the Plum Fuse Properties, only to install, copy and use the Plum Fuse Properties solely in connection with and as necessary for Your use of such Services and solely to the extent in compliance with all the terms and conditions of this Agreement.
(a) The Plum Properties may include, without limitation:
- The Plum Fuse, Plum DEV, Fuse+, Plum Voice, VoiceTrends Website;
- The Plum Fuse, Plum DEV, Fuse+, Plum Voice, VoiceTrends development environment
- The Plum Fuse, Plum DEV, Fuse+, Plum Voice, VoiceTrends APIs
- Specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of a Service and its related APIs and technology;
(b) Plum may make available under another license agreement, such as a Services agreement, additional content or software. Any such content or software will be clearly marked with such a license indicating the usage rights available for that content or software as well as prices for such content or software. For such content or software released pursuant to a license or Services agreement. Under this and any additional Service agreement You may not modify, alter, tamper with, repair and/or create derivative works consistent with such license.
- You may not, and may not attempt to, modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Plum Fuse, Plum DEV, Fuse+, Plum Insight, VoiceTrends, PlumVoice.com Properties.
- You may not, and may not attempt to, reverse engineer, disassemble, or decompile the Plum Fuse, Fuse+, Plum DEV, Plum Insight, VoiceTrends, PlumVoice.com Properties or the Services or apply any other process or procedure to derive the source code of any software included in the Plum Fuse, Fuse+, Plum DEV, Plum Insight, VoiceTrends, PlumVoice.com Properties.
1.8 For purposes of this Agreement, Plum Fuse hereby grants to You a non-transferable, non-sublicenseable, non-exclusive license during the Term of this Agreement to display the trade names, trademarks, service marks, logos, domain names of Plum Voice (each, a “Plum Mark”) for the purpose of promoting or advertising that You use the Service. In return You hereby grant Plum Voice a non-transferable, non-sublicenseable, non-exclusive license during the Term of this Agreement to display Your trade names, trademarks, service marks, logos, domain names and the like for the purpose of promoting or advertising that You use the Service. In using Plum Voice Marks, You may not: (i) display a Plum Voice Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Plum Voice; (ii) use Plum Voice’s Marks to disparage Plum Voice or its products or services; or (iii) display a Plum Voice Mark on a site that violates any law or regulation. Notwithstanding the above, Plum Fuse may determine in its sole discretion whether its marks may be used in connection with Your Application. Furthermore, we may modify any Plum Fuse Marks provided to You at any time, and upon notice, You will use only the modified Plum Fuse Marks and not the old Plum Fuse Marks. Other than as specified in this Agreement, You may not use any Plum Voice Mark unless You obtain our prior written consent.
1.9 The rights granted by us in this Agreement with respect to the Plum Voice Properties, the Plum Voice Marks and the Services are nonexclusive, and we reserve the right to: (i) act as a developer of products or services related to any of the products that You may develop in connection with the Plum Voice Properties or via Your use of the Services; and (ii) appoint third parties as developers or systems integrators who may offer products or services which compete with Your Application.
1.10 Notwithstanding the above and without limitation to Section 6, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur with respect to loss of data associated with your account and data therein.
2. Term, Termination and Suspension
2.1 The term (“Term”) of this Agreement will commence once You accept this Agreement as provided above. The Agreement will remain in effect until terminated by You or us in accordance with this Section 2.
2.2 You may terminate this Agreement for any reason or no reason at all, at Your convenience, by closing Your account for any Service for which we provide an account closing mechanism.
2.3 We may suspend Your right and license to use any or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to You), for any reason or for no reason, at our discretion at any time by providing You up to thirty (30) days’ advance notice in accordance with the notice provisions set forth in Section 9 below.
2.4 We may suspend Your right and license to use the Service or terminate this Agreement in its entirety (and, accordingly, Your right to use the Service), for cause effective as set forth below:
2.4.1 Immediately upon our notice to You in accordance with the notice provisions set forth in Section 9 below if (i) You violate any provision of the Acceptable Use Policy or we have reason to believe that You have violated the Acceptable Use Policy, (ii) there is an unusual spike or increase in Your use of the Services for which there is reason to believe such traffic or use is fraudulent or negatively impacting the operating capability of the Service; (iii) we determine, in our sole discretion, that our provision of any of the Services to You is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (iv) subject to applicable law, upon Your liquidation, commencement of dissolution proceedings, disposal of Your assets, failure to continue Your business, assignment for the benefit of creditors, or if You become the subject of a voluntary or involuntary bankruptcy or similar proceeding.
2.4.2 Immediately and without notice if You are in default of any payment obligation with respect to any of the Services or if any payment mechanism You have provided to us is invalid or charges are refused for such payment mechanism.
2.4.3 Five (5) days following our provision of notice to You in accordance with the notice provisions set forth in Section 9 below if You breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such 5-day period.
2.5 Effect of Suspension or Termination.
2.5.1 Upon our suspension of Your use of any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by You, notwithstanding the suspension; (ii) You remain liable for all fees, charges and any other obligations You have incurred through the date of suspension with respect to the Services; and (iii) all of Your rights with respect to the Services shall be terminated during the period of the suspension.
2.5.2 Upon termination of this Agreement for any reason: (i) You remain liable for all fees, charges and any other obligations You have incurred through the date of termination with respect to the Services; and (ii) all of Your rights under this Agreement shall immediately terminate.
2.6 In the event this Agreement is terminated for any reason, Sections 5, 6, 7 and 8 will survive any such termination.
3. Downtime and Service Suspensions; Security
3.1 The Services are provided on a best-efforts basis. In addition to our rights to terminate or suspend Services to You as described in Section 2 above, You acknowledge that: (i) Your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to You, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to You or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). Without limitation to Section 6, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that You may incur as a result of any Service Suspension or downtime. To the extent we are able, we will endeavor to provide You notice of any Service Suspension in accordance with the notice provisions set forth in Section 9 below and to post updates regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
3.2 We strive to keep information you provide to us secure, but cannot guarantee that we will be successful at doing so. Accordingly, without limitation to Section 6 below, You acknowledge that You bear sole responsibility for adequate security, protection and backup of Your content including all audio recordings associated with Your account. We strongly encourage You, where available and appropriate, to use encryption technology to protect Your content from unauthorized access and to routinely archive Your content. We will have no liability to You for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your content.
4.1 In its sole discretion, Plum Voice shall determine whether You are eligible for a free trial subscription to its Services, which terms of the free trial are set forth at www.Plum Voice.com. Free trials are limited to one per person, and if we find that You have created multiple free trial accounts, we reserve the right to suspend those accounts and take actions to prevent additional violations.
4.2 If You have subscribed to the full version of our Services, then You agree to pay applicable fees (including any minimum subscription fees). All payments of fees for the use of our Services will be pre-paid. Access to the full version of our Services will not be made available until Plum Voice receives payment of fees from You. If You do not use our Services for a period of 90 days, any remaining balance in Your account will be forfeited. If You elect to use our Service again in the future You will be required to prepay applicable fees before access to our Services will be made available for Your use. We may increase or add new fees for any existing Service or Service feature by giving You 30 days’ advance notice. All fees payable by You are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect any taxes from You.
4.3 We may specify the manner in which You will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by You under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, You shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, You shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.
5. Intellectual Property
5.1 Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the Plum Voice Properties; (iii) the Plum Voice Marks; and (iv) any other technology and software that we provide or use to provide the Services and the Plum Voice Properties. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the Plum Voice Properties, the Plum Voice Marks, or such other technology and software, except for the limited use and access rights described in this Agreement.
5.2 Plum Voice may, at its discretion, offer certain Software Development Kits, tools, application samples, or documentation to its users. Any such products will be marked with copyright details, and those copyrights will apply to those and only those documents. Plum Voice reserves all rights to any documents, tools, services, technologies and the like not designated with a license or trademark.
5.3 In the event You elect, in connection with any of the Services, to communicate to us suggestions for improvements to the Services, the Plum Voice Properties or the Plum Voice Marks (collectively, “Feedback”), we shall own all right, title, and interest in and to the same, even if You have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. Furthermore, any other content or information You post or provide to Plum Voice via comments, forums, emails and the like (collectively, “Communications”) shall be considered the property of Plum Voice. You hereby irrevocably assign all right, title and interest in and to the Feedback and Communications to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback and Communications.
5.4 During and after the Term of the Agreement, with respect to any of the Services that You elect to use, You will not assert, nor will You authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of us), sublicensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
6. Representations and Warranties; Disclaimers; Limitations of Liability
6.1 You represent and warrant that You will not use the Website (including our forums and comments sections), Services, Plum Voice Properties, Plum Voice Marks, Your Application or Your Content in a manner that violates the Acceptable Use Policy. To this effect, we ask that You take reasonable precautions to promote best practices. Although Plum Voice does not assume the duty or obligation to monitor any materials created, posted or uploaded by You or any third parties, Plum Voice reserves the right, in its sole and absolute discretion, to monitor any and all materials posted or uploaded by You or any third parties at any time without prior notice to ensure that they conform to any usage guidelines or policies (including our Acceptable Use Policy) relating to our Website or Services.
6.2 You also acknowledge and understand that we do NOT currently allow You to access any 911 or similar emergency services (no traditional 911, E911, or similar access to emergency services). The Services are not intended to replace any primary phone service, such as a traditional landline or mobile phone that may be used to contact emergency services.
6.3 You represent and warrant: (i) that You are solely responsible for the development, operation, and maintenance of Your Application and for Your Content, including without limitation, the accuracy, appropriateness and completeness of Your Content and all product-related materials and descriptions; (ii) that You have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Application and Your Content; (iii) that neither Your Application nor Your Content (a) violates, misappropriates or infringes any rights of us or any third party, (b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that neither Your Application nor Your Content contains any harmful components; and (v) to the extent to which You use any of the Plum Voice Marks, that You will conduct Your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of Plum Voice. You also represent and warrant that You are responsible for any charges incurred by virtue of Your use of the Application, no matter whether the Application acted in error.
6.4 Plum Voice assumes ownership of any phone number provisioned to You by Plum Voice and reserves the right to give any of those numbers to other customers upon cancelation of your service.
6.6 You represent and warrant that: (i) the information You provide in connection with Your registration for the Services is accurate and complete; (ii) You are duly authorized to do business in the jurisdiction where You operate; and (iii) You are an authorized representative of Your entity duly authorized to access the Services and to legally bind You to this Agreement and all transactions conducted under Your account.
6.7 Plum Voice PROPERTIES, THE Plum Voice MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS.” WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
6.8 In addition to the foregoing, we specifically disclaim all liability, and You shall be solely responsible for the development, operation, and maintenance of Your Application and for all materials that appear on or within Your Application and You agree that You shall, without limitation, be solely responsible for:
6.8.1 the technical operation of Your Application and all related equipment;
6.8.2 the accuracy and appropriateness of any materials posted on or within Your Application (including, among other things, any product-related materials);
6.8.3 ensuring that any materials posted on Your site or within Your Application do not violate our Acceptable Use Policy, are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
6.8.5 any of Your users’ or customers’ claims relating to Your Application or any Services utilized in connection with Your Application.
6.9 NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES DURING THE PRECEDING TWELVE (12) MONTHS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
6.10 THE PRODUCTS DO NOT AND ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. “EMERGENCY SERVICES SHALL MEAN SERVICES THAT ALLOW A USER TO CONNECT WITH EMERGENCY SERVICES PERSONNEL OR PUBLIC SAFETY ANSWERING POINTS SUCH AS 911 OR E911 SERVICES.” NEITHER Plum Voice NOR ITS OFFICERS, EMPLOYEES OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO YOUR INABILITY TO USE Plum Voice OR ITS SERVICES TO CONTACT ANY EMERGENCY SERVICES, OR YOUR FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES.
7.1 You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (i) Your use of the Services, Plum Voice Properties and/or Plum Voice Marks in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, the Acceptable Use Policy, and/or applicable law, and/or government regulations, (ii) Your Application, Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Your Application and/or Your Content, (iii) Your violation of any term or condition of this Agreement or any applicable additional policies, including without limitation, Your representations and warranties, or (iv) You or Your employees’ or personnel’s negligence or willful misconduct.
8.1 Notwithstanding anything to the contrary, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Plum Voice’s or any third party’s intellectual property and/or proprietary rights. Any dispute hereunder shall be adjudicated in any state or federal court in New York, New York, and You consent to exclusive jurisdiction and venue in such courts. You further acknowledge that our rights in the Plum Voice Properties and the Plum Voice Marks are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.
8.2 By using the Services, You agree that the laws of the State of New York, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between You and us.
9.1 Notices made by us under this Agreement for You or Your account specifically (e.g., notices of breach and/or suspension) will be provided to You via a notification message displayed on your account page or via the email address provided to us in Your registration for the Services or in any updated email address You provide to us in accordance with standard account information update procedures we may provide from time to time. It is Your responsibility to keep Your email address current and You will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not You actually receive the email.
9.2 For notices made by You to us under this Agreement and for questions regarding this Agreement or the Services, You may contact Plum Voice as follows: by US Postal Mail at Plum Voice 131 Varick Street New York, New York 10013.
10. Miscellaneous Provisions
10.1 Responsibility. If You authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, You shall be deemed to have taken the action Yourself.
10.2 Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
10.3 Waivers. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
10.4 Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
10.6 No Endorsement. You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of Your Applications or Your Content.
11.1 Support protocols. Support for Plum Voice is only available via the Plum Voice support forum. Plum Voice will not accept phone calls, emails, or written correspondence about Plum Voice or any related support issue.
11.2 Response time. Plum Voice reserves the right to respond or not respond to support posts on the Plum Voice forum. Plum Voice does not guarantee response times or remedies for any issue that requires recourse to Plum Voice support.
11.3 Uptime. Plum Voice does not guarantee continuous uptime and may conduct maintenance at any time without notification to You.
Exhibit B: Acceptable Use Policy
Plum Voice may in its sole discretion determine whether You are in violation of this Acceptable Use Policy. The Services may be used only for lawful purposes and may not be used for any illegal activities. As specified below, Plum Voice maintains the position that using the Services in an illegal, abusive or any other manner that interferes with or diminishes others’ use and enjoyment of the Services is prohibited.
The following list gives examples of illegal, abusive, interfering or otherwise unacceptable or inappropriate behavior while using the Services. This list is provided by way of example and shall not be considered exhaustive.
- Adversely impacting the availability, reliability, or stability of Plum Voice’s Services
- Launching or facilitating, whether intentionally or unintentionally, a denial of service attack on any of Plum Voice’s Services
- Attempting to bypass or break any security mechanism on any of the Services or using the Services in any other manner that poses a security or service risk to Plum Voice, to any user of our Services, or to any of our or their respective customers
- Using the Services in any manner that may subject us or any third party to liability, damages or danger
- Using Plum Voice’s Services with credentials that do not belong to You, or intentionally or unintentionally allowing others to use Your Plum Voice credentials
- Engaging in fraud with respect to Your account
- Using Your account to engage in fraudulent activity with respect to third parties or otherwise using Your account to bypass phone identification systems such as those by classified advertising websites
- Transmitting any material that may infringe the intellectual property rights or other rights of third parties, including but not limited to trademark, copyright or rights of publicity or otherwise violating, infringing, or misappropriating the rights of any third party
- Engaging in spamming or other unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations such as the CAN SPAM Act of 2003 and the Do-Not-Call Implementation Act
- Using the Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls SMS or text messages, voice mail, or faxes.
- Offering any Emergency Services to users. “Emergency Services” shall mean services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 services
- Promoting or engaging in illegal activities
- Engaging in activities or transmitting through the Services any information that may be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age
- Harvesting or otherwise collecting information about others, including email addresses or phone numbers, from Plum Voice’ websites and service without their express consent
- Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call using Your account
- Transmitting any material that contains viruses, trojan horses, worms or any other malicious, harmful, or deleterious programs
- Violating or facilitating the violation of any U.S. or foreign law regarding the transmission of technical data or software
- Interfering with or disrupting networks connected to the Services or violating the regulations, policies or procedures of such networks
- Improperly engaging in activity for which the United States Federal Communications Commission has restricted or regulated with regard to proper use of the public telephony network
- Over use of service resources including concurrent Telecommunication ports, text-to-speech, or speech recognition resources.
Violation of this Acceptable Use Policy may result in the immediate suspension or termination of Your account, civil and/or criminal liability, and Plum Voice may, in addition to any remedy that it may have at law or in equity, terminate permission for You to use the Services. In such event, You are still liable for any and all outstanding charges accumulated through Your use of the Services, including uses in violation of this Acceptable Use Policy or the laws of any jurisdiction. In addition, Plum Voice may investigate incidents that are contrary to this Acceptable Use Policy and provide requested information to third parties who have provided notice to Plum Voice stating that they have been harmed by Your failure to abide by this Acceptable Use Policy. Plum Voice’s failure to enforce this policy in each and every instance in which it might have application does not amount to a waiver of Plum Voice’s rights hereunder.