Terms of Use
APTELA, INC. TERMS OF USE, SERVICE AND LICENSE AGREEMENT
Last modified Jan 2012
THIS AGREEMENT, for the use of Aptela's internet telephone service, is entered into immediately and without further action, by and between Aptela, Inc. (hereinafter referred to as "Aptela"), a Delaware corporation, and the Customer, including any Authorized User, both in their individual and corporate capacities, by using the Services (defined below).
THIS IS A CONTRACT. PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS.
BY ACCEPTING THIS APTELA TERMS OF USE, SERVICE AND LICENSE AGREEMENT (HEREINAFTER THE "AGREEMENT"), YOU AGREE TO, AND SUCH ACTION CONSTITUTES UNQUALIFIED ACCEPTANCE OF, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. PLEASE READ THE AGREEMENT IN ITS ENTIRETY BEFORE PROCEEDING FURTHER WITH THE USE OF THE SERVICES AS YOU AND YOUR ORGANIZATION (IF ANY) ARE BOUND BY ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE EXECUTING THIS AGREEMENT ON BEHALF OF A COMPANY, BY CLICKING ACCEPT BELOW, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT WHICH, AMONG OTHER THINGS, GOVERN THE PROVISION OF IMPLEMENTATION AND SUPPORT SERVICES BY APTELA, AS WELL AS ANY USE OF APTELA'S INTERNET TELEPHONE SERVICE AND RELATEDSOFTWARE APPLICATIONS (COLLECTIVELY HEREINAFTER, THE "SERVICES"). THE TERMS "YOU" OR "CUSTOMER" REFER TO THE INDIVIDUAL OR A LEGAL ENTITY, AS APPLICABLE, THAT REGISTERS FOR, RECEIVES AND/OR USES THE SERVICES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT REGISTER FOR, RECEIVE AND/OR USE THE SERVICES. YOUR USE OF THE SERVICES FOLLOWING YOUR RECEIPT OF NOTICE OF ANY CHANGE IN THESE TERMS OF SERVICE SHALL CONSTITUTE YOUR AGREEMENT TO THOSE CHANGES.
The following policies are incorporated into this Agreement:
EMERGENCY 911 POLICY www.aptela.com/misc/911-dialing
PRIVACY POLICY www.aptela.com/misc/privacy-policy
General Terms and Conditions
1. Price and Payment. Customer will pay all non-recurring and recurring fees, regulatory cost recovery fees and taxes billed by Aptela to your account in accordance with billing terms in effect on the Service dates. Non-recurring fees are typically billed at the time the Service is ordered or as additional non-recurring services or products are purchased. Non-recurring fees include activation, configuration and custom recording Service fees and Hardware purchases. Activation, configuration and custom recording fees are non-refundable. Recurring Service fees are typically billed once per month and include charges for the current month and usage or adjustments from the prior month. User and other monthly recurring Service fees are billed in advance for the current month. Telephone call minutes of use (including but not limited to inbound and outbound local, long distance, international, toll free, and conferencing) and adjustments for additions, changes or deletions of certain monthly recurring services are billed one month in arrears. International telephone call rates vary by destination country, city, and band, and are subject to change by Aptela from time-to-time without prior notice. You will be charged for all calls to any international destination at Aptela's then-current rate as posted at www.aptela.com/kb/idx.php/0/205/article/International-Calling-Rates--International-Dialing.html.
Customer must provide Aptela with valid auto payment information (credit card, debit card, or ACH/electronic check) as a condition to receive or use the Services. Customer is responsible for and agrees to update Aptela with any changes to its billing and/or auto payment information (e.g., new or updated credit card, credit card expiration date or bank account information). By providing Aptela with the auto payment information, you authorize Aptela to charge your credit card or bank account for any amounts arising from or relating to the Services without further authorization from Customer.
Notwithstanding any other provision of this Agreement, this Agreement is subject to change, modification, or cancellation as may be required or reasonably deemed necessary with or without prior notice by Aptela pursuant to any order, rule or decision of a public utility commission, the Federal Communications Commission, state or federal government, state or federal court of competent jurisdiction. All taxes, regulatory fees, or other charge imposed by any governmental authority on Customer or Aptela are in addition to the fees and charges of Aptela and are the responsibility of Customer. In the event that any such taxes or fees are assessed upon Aptela, Aptela may pass through such charges to Customer or assess a regulatory cost recovery fee. It is the express intention of the parties that Customer, and not Aptela, shall bear the risk of loss arising from any unauthorized or fraudulent usage of Services provided under this Agreement to Customer. Aptela reserves the right, but is not required, to take any and all action it deems appropriate (including blocking access to particular calling numbers or geographic areas) to prevent or terminate any fraud or abuse in connection with the Services, or any use thereof, provided, however, that any such action shall be consistent with applicable federal and state laws, rules, and regulations and provided further that the failure to take any such action shall not limit Customer's responsibility for all usage of the Services. To the extent Customer is obligated to report and pay any applicable taxes or regulatory fees to a governmental agency, Customer hereby indemnifies Aptela against any claim arising out of your failure to do so.
2. Hardware. Hardware purchases include telephone, telephone accessory, fax ATA and networking equipment ("Hardware"). Aptela does not offer a warranty, other than passing through the original equipment manufacturer warranty, for any Hardware purchased by Customer from Aptela. All telephone accessory purchases are final. For all other purchases, Customer must contact Aptela prior to returning any Hardware. For warranty returns, Aptela will help determine if a defect exists, verify if the defect is covered by the manufacturer warranty and provide you with a return merchandise authorization number ("RMA"). The Hardware must be returned to the address provided by Aptela within ten (10) business days after receipt of the RMA. Customer is responsible for paying the return shipping fee. Once the distributor has received the Hardware, the distributor will deal with the Hardware according to the original equipment manufacturer warranty. Aptela is not responsible for the replacement of any lost, stolen or modified Hardware. Aptela offers a thirty (30) day return policy for all Hardware purchased from Aptela except telephone accessories. Customer must contact Aptela within thirty (30) days of the original date of sale. Returns for credit are subject to a 20% restocking fee and must be returned in "like new" condition including the original packaging. All Hardware returns must be authorized by Aptela and include an RMA. Customer is responsible for paying the return shipping fee. Returns are accepted at the sole discretion of Aptela and are based on the condition of the product as it is received. Returns may be refused and sent back to the customer at the customer's own cost.
3. Term. The Services are provided on a month-to-month basis and shall continue until terminated by either party in accordance with the terms of this Agreement. Either party may terminate this agreement with thirty (30) days written notice to the other party. In lieu of written notice Aptela may instruct Customer to go to www.aptela.com/support/cancel and complete the online cancellation form. Customer is obligated to pay Aptela for all Service fees, usage fees and professional support fees incurred through the termination date. Notwithstanding the foregoing, in the event Customer and Aptela have entered into a separate written agreement for the Services, then any terms set forth in such agreement shall govern the relationship between the parties together with these Terms of Service. In the event of a conflict of terms between such other agreement and these Terms of Service, the other agreement shall control as to the conflicting terms and the remaining terms in these Terms of Service shall still apply.
4. Non-Payment. Aptela reserves the right to either suspend or terminate your use of the Services and to terminate this Agreement if you fail to pay or if Aptela is unable to successfully charge your auto payment account on file for the balance due on any invoice within five (5) days of the invoice due date or other notice requiring payment on your account. If Aptela receives a cancellation notice from you and in accordance Section 2 above, you will be obligated to pay any outstanding balance incurred or due on your account, whether such balance has been billed to you or not. You agree that Aptela may charge such unpaid balance to your auto payment account on file or otherwise bill you for such unpaid balance. Delinquent payments are subject to a late-payment charge of the greater of 1.5% of the outstanding balance, or the maximum amount allowed by law, whichever is higher and Customer shall pay all collection costs incurred by Aptela (including, without limitation, reasonable attorney's fees).
5. License Grant. Aptela hereby grants, and Customer accepts, a limited, non-exclusive, non-transferable, revocable license to use the Services for Customer's internal business use only. The grant of the license to use the Services is limited to the right of use in connection with the Services provided by Aptela and shall not entitle Customer to use the Services in any other circumstance. Further, to the extent it can, Aptela hereby grants, and Customer accepts, a limited, non-exclusive, non-transferable, revocable license to use and to display the audio and visual information, documents, products and software contained in or made available through the Services (the "Content") solely for Customer's own internal business purposes. All rights not expressly granted by Aptela to Customer are hereby expressly retained by Aptela. This license shall terminate immediately upon the termination or expiration of this Agreement regardless of the reason.
6. Restrictions. Customer shall not, and shall not permit any third party to, modify, decompile, reverse engineer, recreate, disassemble, or otherwise attempt to determine the makeup of the Services. Customer is permitted to store, manipulate, analyze, reformat, print, and display the Content only for its internal business purposes. Unauthorized use of the Content or Services, or the resale or sublicensing of the Content or Services, is expressly prohibited. You shall not transfer, make available, distribute, or assign the Content or Services, or this Agreement to any third party. You also shall not create an Internet "link" to the Services, or "frame" or "mirror" any Content contained on, or accessible from, the Services on any other computer server or Internet-based device.
7. Third Party Interaction. In your receipt or use of the Services, you may enter into correspondence with, purchase goods and/or services, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, along with any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Aptela shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party facilitated by the Services.
8. Links to Third Party Sites. Aptela does not endorse any sites on the Internet which are linked through the Services, if any. Aptela may provide these links to you only as a matter of convenience, and Aptela shall have no liability, obligation or responsibility for any such any content, products, or other materials on or available from such sites or for any negative effect on Customer, or any hardware or software of Customer, that is caused, whether directly or indirectly, by Customer's interaction with any sites on the Internet which are linked through the Services.
9. Customer Accounts. Customer understands and agrees that administrative and individual user accounts are required to access the Services. User accounts may be accessed and used only by those individuals who are registered with and accepted by Aptela as having a user account (an "Authorized User"). Customer may add additional Authorized Users in the course of receiving and/or using the Services, and in doing so, agrees to pay for all charges for the additional users accounts as specified in Section 1. Authorized Users may not be "shared" or used by more than one named individual, other than the administrative "operator" account that may be used by an appropriate number of individuals required to administer the use of Services within Customer's organization.
10. Authorized User Responsibilities. Customer is solely responsible for creating and protecting the confidentiality of all passwords, for restricting access to the Services to Authorized Users within your organization and for preventing unauthorized access both from within and from outside of your organization. The Customer or the Authorized User will specify a personal, non-transferable password. Customer is also solely responsible for any and all activities that occur during the use of the Services accessed through your online user account or through the use of any telephone devices registered with the account. Customer is responsible for ensuring that Authorized Users exit or log-off from their accounts at the end of each session of use. Customer shall notify Aptela immediately of any unauthorized use of passwords or Authorized User accounts, any copying, reverse engineering or distribution of the Content or Services (or any attempt at these actions), or of any other breach or attempted breach of security that is known or suspected by Customer or an Authorized User. Notwithstanding this notice requirement, Customer shall use its best efforts to stop immediately any unauthorized use of passwords or Authorized User accounts, any copying or distribution of the Content or Services that is known or suspected. Except as expressly provided for herein, Aptela shall not be responsible for any unauthorized access to, or alteration of, any transmissions, data, material or information sent or received, regardless of whether the transmission or data is actually received by Aptela, during the use of the Services or caused by the failure of the Customer or any Authorized User to abide by this Agreement.
11. Account Information and Data. Aptela does not own any data, information or material that Customer creates in or transmits through to the Services ("Data"), unless otherwise stated by Aptela. Except as set forth herein or otherwise required by federal, state or local laws, regulations, or court orders, Aptela will not monitor, edit, or disclose any information regarding you or your account, including any Data, without your prior permission, except in accordance with this Agreement. Aptela may use or disclose such information, including Data, to enforce this Agreement, to provide the Services, to bill for the Services, to respond to technical problems with the Services, to protect Aptela's rights or property, and to protect against fraudulent, abusive or unlawful use of the Services. In addition, Aptela may provide certain user registration and statistical information such as usage or user traffic patterns in aggregate form to third parties, but such information will not include any identifying information. Customer, not Aptela, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data and, except as provided for herein, Aptela shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data. Customer understands and agrees that it shall be Customer's sole obligation to take, and that it will take, all measures necessary to protect its Data, including without limitation, the timely backup of all Data on one or more systems that operate independently from the system associated with the Services.
12. Use, Storage and Other Limitations. Aptela reserves the right to establish or modify general practices and limits concerning use of the Services, including without limitation, the maximum number of days that Content will be retained by the Service, the maximum disk space that will be allotted on servers owned and/or operated by Aptela on your behalf, the maximum utilization of telephone lines and minutes and the maximum number of e-mails or faxes transmitted, if any. Where practical, Aptela will provide you with prior notice of such new or modified practices. Aptela offers calling plans that are described as including unlimited minutes of use. Aptela reserves the right to review usage of unlimited plans to ensure "Fair Use" and reserves the right to, at any time, charge for all minutes of use in excess of Fair Use at the then current rate for metered domestic calling plans or to immediately terminate Customers' accounts without advance notice. "Fair Use" means the combined number of off-net outbound minutes plus local inbound minutes and fax pages does not substantially exceed the average use for all other Aptela unlimited plan Customers as measured on a per user basis. Fair Use prohibits any activities that result in excessive usage including, but not limited to, auto dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting, fax blasting or transmitting broadcasts or recorded messages.
13. Authorized User Conduct. Federal and state laws may govern use of the Service. Customer hereby agrees to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with use of the Services. Customer acknowledges that Aptela merely provides the Services, and that the responsibility to use the Service in a lawful manner lies solely with Customer. Customer further agrees to abide by all Terms of Service as set forth herein and other policies or guidelines as stated on Aptela's website www.aptela.com and as amended and supplemented from time to time. In addition, without limitation, Customer agrees not to use the Services: (a) in connection with sending unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (c) to transmit through or post with the Services unlawful, harassing, libelous, abusive, harassing, tortuous, defamatory, threatening, harmful, invasive of another's privacy, vulgar, pornographic, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way under the law or otherwise; (d) to transmit or knowingly to accept any material that may infringe the intellectual property rights or other rights of third parties, including, but not limited to, trademark, copyright or right of publicity; (e) to transmit or knowingly to accept any material that contains software viruses or other harmful or deleterious computer codes, files or programs such as, but not limited to, Trojan horses, worms, time bombs or cancelbots; (f) to interfere with, disrupt, attempt to interfere with or disrupt computer servers or networks connected to the Services or violate the regulations, policies or procedures of such networks; (g) to attempt to gain unauthorized access to or to gain access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means; or (h) to harass or interfere with another user's use and enjoyment of the Services, whether or not they are an Authorized User; and (i) to unlawfully record conversations in violation of applicable federal and state law.
14. Termination. Aptela, in its sole discretion, may suspend or terminate your password, account or receipt and/or access to or use of the Services, as well as all Data associated therewith, and remove, return or dispose of any Data within Aptela's control, immediately and without notice if Aptela suspects fraudulent or illegal use of the Services. Aptela may also suspend or terminate your password, account or receipt and/or access to or use of the Services, as well as all Data associated therewith, and remove, return or dispose of any Data within Aptela's control, if You breach this Agreement and fail to cure such breach within ten (10) days following receipt of written notice thereof. You may terminate this Agreement if Aptela breaches this Agreement and fails to cure such breach within ten (10) days following receipt of written notice thereof.. Aptela may terminate this Agreement in the event that Customer does not first log-on and use the service within thirty (30) days after entering it or ninety (90) days has transpired since Customer's last use of the Service. Upon termination of an Authorized User or this Agreement pursuant to this Section 13, the Authorized User's and Customer's rights to use such account and/or the Services shall immediately cease, and Aptela shall have no obligation to maintain any Data within its control or to make available any Data to Customer or any third party. Customer acknowledges that in the event of any Service termination or cancellation, all telephone numbers associated with your account are released and may not be available to you for porting to a new carrier or upon Service reactivation with Aptela. If Customer elects to terminate service with Aptela, in lieu of written notice Aptela may instruct Customer to go to www.aptela.com/support/cancel and complete the online cancellation form.
15. Proprietary Rights. The license granted herein shall not be deemed to grant Customer any right, title or interest in or to the Services or any Content and, in all circumstances Aptela shall be deemed to retain all right, title and interest, including copyright and all other intellectual property rights, in and to the Services and Content. All rights not expressly granted by Aptela to Customer are hereby expressly retained by Aptela, and nothing herein shall be deemed to authorize the Customer to use any trademark or service mark of Aptela. The Customer shall not remove or alter any copyright and/or trade secret notice affixed to any of the Services or Content.
16. Cookies. Where applicable, cookies are files that your web browser may place on your computer's hard drive and are used to tell Aptela whether an Authorized User has used the Services previously. Aptela may use a persistent cookie to help save and retrieve Authorized User names and other information. Aptela may issue a session cookie only to record encrypted authentication information of the Authorized User for the duration of a specific session. The session cookie does not include either the username or password of the Authorized User. You agree to allow Aptela to place cookies on any computer connecting to the Service, and to allow all such cookies to reside thereon for the term of this Agreement. Aptela shall not be liable for any negative effect that the placement of one or more cookies may have on the operation of your computer hardware or software, including without limitation, any loss of data, and you expressly waive any and all claims that you may have against Aptela arising, whether directly or indirectly, out of such placement.
17. Local Laws and Export Control. Aptela controls and operates the Services from a location in the United States of America and is subject to the United States Export Administration Laws and Regulations. Aptela makes no representation that the Services are appropriate or available for use in location outside the United States of America. If you use the Services from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation telecommunication, export, and import regulations of other countries. Any diversion of the Services or Content contrary to United States' law is prohibited and is grounds for immediate termination of Service. None of the Services or Content, nor any information acquired through the use of the Services, has or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor is or will be used for nuclear activities, chemical biological weapons, or missile projects, unless specifically authorized by the United States Government for such purposes. You shall comply strictly with all United States export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
18. Disclaimer of Warranties. APTELA AND ITS LICENSORS (IF ANY), MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY OF THE CONTENT, THE DATA OR OTHER INFORMATION OR DATA OBTAINED THROUGH THE USE OF THE SERVICES. APTELA AND ITS LICENSORS, IF ANY, DO NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (II) THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (III) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY, RELIABILITY OR WORKMANSHIP OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (V) ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED IN A TIMELY MANNER OR AT ALL; OR (VI) THE TECHNOLOGY AND TELECOMMUNICATIONS INFRASTRUCTURE THAT MAKE THE SERVICES AVAILABLE ARE OR WILL BE FREE OF ERROR, MALFUNCTIONS, VIRUSES OR OTHER HARMFUL OR DEFECTIVE COMPONENTS. THE SERVICES AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY EXPRESSLY AND CONSPICUOUSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY APTELA, INC. AND ITS LICENSORS (IF ANY). ANY TELEPHONE OR COMPUTER EQUIPMENT PURCHASED THROUGH OR FROM APTELA MAY INCLUDE A WARRANTY FROM THE MANUFACTURER, WHICH SHALL BE SOLELY BETWEEN YOU AND THE MANUFACTURER.
19. Limitation of Liability. IN NO EVENT SHALL APTELA'S AGGREGATE LIABILITY EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER IN THE CALENDAR MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL APTELA AND/OR ITS LICENSORS (IF ANY) BE LIABLE TO ANYONE, CUSTOMER, AN AUTHORIZED USER OR OTHERWISE, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, STATUTORY, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OF ANY KIND WHATSOEVER, OR FOR ANY LOSS OF DATA, LOST PROFITS, BUSINESS OR REVENUE, LOSS OF USE OR GOODWILL, USE, OR OTHER LOST ECONOMIC ADVANTAGE, ARISING OUT OF OR RELATED IN ANY WAY WHATSOEVER OR CONNECTED TO THE SERVICES, CONTENT, THIS AGREEMENT (OR THE BREACH HEREOF) OR ANY CONTENT, INFORMATION OR DATA OTHERWISE OBTAINED FROM OR THROUGH THE SERVICES, WHETHER SUCH CLAIMS ARE BASED ON BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, ANY FEDERAL OR STATE STATUTORY CLAIM, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF APTELA OR ITS LICENSORS (IF ANY) KNEW (ACTUALLY OR CONSTRUCTIVELY), SHOULD HAVE KNOWN, OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE. THE FOREGOING LIMITATION SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. CUSTOMER UNDERSTANDS AND AGREES APTELA IS NOT OBLIGATED TO PROVIDE A SERVICE CREDIT TO CUSTOMER'S ACCOUNT AS A CONSEQUENCE OF ANY PLANNED DOWNTIME OR UNPLANNED INTERRUPTION IN SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, APTELA SHALL HAVE NO LIABILITY WHATSOEVER IN THE EVENT CUSTOMER HAS, EITHER UNDER APTELA'S DIRECTION OR CUSTOMER'S OWN DOING, MISCONFIGURED ANY TELEPHONE OR OTHER DEVICE CONNECTING TO THE SERVICE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATION OF APTELA'S LIABILITY IS A MATERIAL TERM TO APTELA AND THAT IT WOULD NOT OTHERWISE ENTER INTO THIS AGREEMENT WITHOUT THIS LIMITATION, AND THAT CUSTOMER AGREES THESE LIMITATIONS ARE REASONABLE.
20. Additional Rights. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.
21. Indemnification. Customer hereby agrees to indemnify and hold Aptela, its licensors, and each such party's parents, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with Customer's receipt and/or use of the Services, Content and/or Data (including any actual or alleged infringement of any third party's intellectual property or rights) or Customer's breach of any of the terms and conditions of this Agreement.
22. Submissions. Aptela alone will own all right, title and interest, including all related intellectual property rights, to any suggestions, ideas, feedback, recommendations, or other information provided by you relating to the Services or otherwise ("Submissions"), and you agree to assign such Submissions to Aptela free of charge and to waive any and all right to any compensation should Aptela elect, in its discretion, to implement, sell or otherwise utilize such suggestions, ideas, feedback, recommendations, or other information provided by you. Customer agrees to perform, during and after the term of this Agreement, all acts deemed necessary or desirable by Aptela to permit and assist it in evidencing, perfecting, obtaining, maintaining, defending and enforcing rights and/or Customer's assignment with respect to such assigned rights to the Submissions. Such acts may include, but are not limited to, execution of documents and assistance or cooperation in legal proceedings. Aptela may use such Submissions as it deems appropriate and in its sole discretion.
23. Notice. Aptela may give notice to Customer by means of a general notice through the Services, a voice mail through the Services, a general notice on the Aptela web site www.aptela.com, an e-mail to the address on record in Aptela's account information, or by written communication sent by first class mail to your address on record in Aptela's account information. Customer may give notice to Aptela (such notice shall be deemed given when received by Aptela) at any time by sending a letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Aptela at the following address: Aptela, Inc., 2250 Corporate Park Drive, Suite 150, Herndon, VA 20171..
24. Disputes. Customer shall give the Aptela written notice of the dispute within ten (10) days of the date shown on an invoice. Such notice shall include a complete description of all bases for each dispute and shall include all documents necessary for Aptela to evaluate each dispute. The existence of a validly filed dispute shall in no way relieve Customer of its obligation to pay all amounts billed by Aptela in a timely manner, excluding any disputed amounts. Failure by Customer to provide notice, description or documents within such ten (10) day period shall constitute an irrefutable presumption that all billed amounts are correct, due and owing. In the event that a proper dispute arising out of or relating to this Agreement is provided, the parties will attempt to resolve such dispute in good faith through negotiation. In the event a resolution cannot be reached within fifteen (15) days of the submission of a dispute, such controversy or claim shall be negotiated between senior executives of the parties who have authority to settle the dispute. If the party's fail to resolve such a dispute within thirty (30) days of the disputing party's notice, either party may seek resolution to the dispute through arbitration as set forth below.
25. Dispute Resolution. All disputes arising out of or related to the provision of any Service by Aptela to Customer shall be resolved by binding arbitration. All arbitrations shall be filed in Fairfax County Virginia. The arbitration shall be conducted before a single arbitrator in accordance with the commercial rules and practices of the American Arbitration Association then in effect. 
The arbitrator shall have the power to order specific performance if requested. Any award, order, or judgment pursuant to such arbitration shall be deemed final and binding and may be enforced in any court of competent jurisdiction. The parties agree that the arbitrator shall have no power or authority to make awards or issue orders of any kind except as expressly permitted by this Agreement, and in no event shall the arbitrator have the authority to make any award that provides for punitive or exemplary damages. All such arbitration proceedings shall be conducted on a confidential basis. A failure, by any party, to appear and participate in arbitration proceedings will permit the participating party to obtain a default award. The arbitrator may, as part of the arbitration award, permit the prevailing party to recover all or part of its attorney's fees and other out-of-pocket costs incurred in connection with such arbitration.
26. Modification to Terms. Aptela reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Services by giving Customer ten (10) days notice of any change and by publishing such changes at www.aptela.com\tos. Customer's continued use of the Services after any such modifications shall constitute consent to such changes.
27. Waiver. No term or provision herein shall be waived, and no breach or default excused, unless such waiver or consent is in writing and signed by an authorized Aptela representative. No consent by an Aptela representative to, or waiver of, a breach or default by the Customer, whether expressed or implied, shall constitute a consent to or waiver of, any subsequent breach or default.
28. Assignment. Neither this Agreement, nor any rights or obligations under it may be assigned by Customer without the prior express written consent of Aptela. Aptela may assign the rights and obligations under this Agreement to an affiliate, parent or other corporate entity under common ownership or control at any time following notification to Customer.
29. Partial Invalidity. If any provision of this Agreement shall be held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render this Agreement unenforceable, but rather this Agreement shall be construed as if not containing the invalid or unenforceable provision. However, if such provision is an essential element of this Agreement, the Parties shall promptly attempt to negotiate a substitute therefore.
30. Entire Agreement. This Agreement, together with any attached schedule(s) or attachment(s), and all service orders, represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all other agreements, written or oral, between the Parties relating to the Service. This Agreement supersedes any and all prior agreements between Aptela and Customer with respect to the provision of Services. As of the Effective Date hereof, all said prior agreements shall be rendered null and void and have no further force or effect. Further, as of the Effective Date hereof, any and all Service provided pursuant to said prior agreements, if any, shall henceforth be governed by and provided subject to the terms of this Agreement.
31. Relationship of Parties. Neither this Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership or agency between Aptela and Customer. The parties are independent contractors and shall not be deemed to have any other relationship. Neither party shall have, or hold itself out as having, the power or authority to bind or create liability for the other by its intentional or negligent act.
