This Agreement (the “Agreement”) is a legal agreement between you (an entity or person) (“You”) and Xentric LLC, a Delaware limited liability company (referred to herein as “Xentric LLC”, but at times using “us” or “our”, or “PhoneIQ”), that governs Your limited, non-exclusive, terminable right to use the PhoneIQ.co website and related services (“Site”), the servers the Site is stored on, and the computer files stored on that server. By clicking on the “Accept” button, or otherwise using the Site or any of its services, You agree to be bound by the terms of this Agreement. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST NOT CLICK ACCEPT AND CANNOT USE THE SERVICES. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. Xentric LLC may amend this Agreement from time-to-time. All amended terms automatically take effect on the sooner of the day You use the Service or 10 days after they are initially posted on the Site. Your use of the Site following the effective date of any modifications to this agreement will constitute Your acceptance of the Agreement, as modified. You agree that notice on the Site of modifications is adequate notice. The Site and service provided by the Site is available only to individuals who are not less than 18 years old.
1. SPAM POLICY
Spamming is not cool. Period. Xentric LLC maintains a PhoneIQ tolerance policy regarding the delivery of Spam or unwanted commercial messages using the Service. Notwithstanding anything else in this agreement, You will not send, cause to be sent, or facilitate the sending of Spam using the Service. Accounts that send Spam or that we believe may be facilitating Spam may be suspended and terminated, and Xentric LLC may participate in the prosecution of Spammers. Spam is defined by this Agreement as any message where the principal purpose of which is to promote the sale of goods or services, including the content of a website which is operated on a commercial basis, or to promote a political purpose or objective, to the recipient, and consisting of advertising material for the lease, sale, rental, gift offer, or other disposition of any realty, goods, services, or extension of credit, or advertising material for political purposes.
2. PRIOR EXPRESS WRITTEN CONSENT; OPT-OUT MECHANISM
(a) You will not send, cause to be sent or facilitate the sending of any message or mobile communications using the Service if the intended recipient has not given You prior express written consent, even if You had a previous business relationship with the intended recipient. Under no circumstances will You send Spam or any other message where You obtained the consent of the recipient as a condition to a purchase. (b) For the purposes of this Agreement, “Prior express written consent” means a written agreement, signed by the intended recipient, that authorizes You to deliver marketing messages using an automatic telephone dialing system or prerecorded message to the specific number authorized in the agreement. The agreement must include a clear and conspicuous disclosure that the intended recipient may receive a call or mobile communication from You and must also state that there is no requirement to provide consent as a condition of making any purchase. The signature may be evidenced by any electronic or digital form of signature recognized under applicable state or federal law, including any signatures that satisfy the E-SIGN Act. You will keep copies of all written agreements for at least four years from the last date that the consent was relied upon to initiate a call. (c) You will include an automated interactive (voice or keypress) opt-out mechanism, announced or displayed at the beginning of the message and remaining available for activation during the entire message, that will allow customers or potential customers to opt-out of receiving additional calls from You immediately. You will automatically add the customer’s or potential customer’s number to Your do-not-call list and immediately disconnect the call when the opt-out mechanism is activated.
3. LIMITED LICENSE
Xentric LLC grants You a limited, revocable, non-exclusive, non-transferable license to use the Xentric LLC software (“Software”) to access Services for Your own individual, enterprise, and limited commercial use subject to the other terms of this Agreement. You agree not to resell the Software. You may not modify, reverse engineer, decompile or disassemble the Software. You may not copy, adapt, alter, modify, translate, or create derivative works of the Software without written authorization of Xentric LLC. You may not use the Software for illegal purposes or for the transmission of material that is unlawful, harassing, libelous, invasive of another’s privacy, abusive, threatening, obscene or that infringes the rights or intellectual property of others. You may not permit other individuals to use the Software, including, but not limited to, shared use via a network connection, except under the terms of this Agreement. You may not rent, lease, loan, sublicense, distribute, or otherwise transfer rights to the Software. You may not circumvent or disable any technological features or measures in the Software for protection of intellectual property rights. You may not use the Software in an attempt to, or in conjunction with, any device, program, or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction. Any such forbidden use shall immediately terminate Your license to the Software.
4. USE OF PhoneIQ
- to violate any law, regulation or other published policy;
- to violate or infringe on intellectual property, privacy, or rights of another;
- to violate any agreement, rules or policies that govern the use of your mobile device;
- to transmit any content that is illegal, abusive, harassing, racist, hateful, or in our sole discretion objectionable;
- to transmit sexually explicit, pornographic, obscene, or other content which in our sole discretion we find objectionable;
- to sell, trade, resell or otherwise exploit for any unauthorized commercial purpose or transfer any Xentric LLC account;
- to stalk, harass, or harm another individual; or
- to impersonate another, misrepresent or falsely identify yourself.
- to violate any applicable third party policies or requirements that Xentric LLC has communicated to you.
- in any manner that violates the Mobile Marketing Association guidelines and/or best practices, carrier guidelines, or any other industry standards.
- 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.
- Engaging in spamming or other unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations including, but not limited to, the CAN SPAM Act of 2003, the Telephone Consumer Protection Act, and the Do-Not-Call Implementation Act.
- 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; or
- for SMS in a manner that is not designed to enhance or augment the person-to-person nature of communications.
5. PRICING, CHARGES, BILLING AND USAGE
Xentric LLC will never charge You to use its Services, unless You sign up for a paid plan, which requires You to affirmatively select a plan and pay by entering Your credit card information. You authorize Xentric LLC to charge and/or place a hold on Your credit card with respect to any unpaid charges related to the Services. You authorize the issuer of the credit card to pay any amounts described herein without requiring a signed receipt, and You agree that Your acceptance of this Agreement is authorization to the issuer of the credit card to pay all such amounts. You authorize Xentric LLC and/or any other company who bills products or services, or acts as billing agent for Xentric LLC to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to Your credit card until such amounts are paid in full. You authorize Xentric LLC and/or any other company who bills products or services, or acts as billing agent for Xentric LLC to bill You on a recurring monthly basis on the monthly anniversary of Your initial registration for a paid Xentric LLC plan. You will provide Xentric LLC with updated credit card information upon Xentric LLC request and any time the information You previously provided is no longer valid. You are solely responsible for maintaining and updating the credit card information. Xentric LLC is not liable for any non-sufficient funds or other charges incurred by You as a result of such attempts to charge, and/or place holds on, Your credit card. If You mistakenly provide a debit card number, instead of a credit card number, You authorize all charges described herein to be applied to such debit card unless and until You provide a credit card number. For paid plans, usage and monthly fees will be charged directly to the credit card You provide to us as specified in our pricing plans found at https://www.getPhoneIQ.co/pricing.php. Except as provided below, monthly services and certain other charges are billed and charged one month in advance, and there is no proration of such charges if service is terminated on other than the last day of Your billing cycle. You agree to pay for all Services. In the event that (i) You have a subscription for a paid plan to the Services, (ii) You have not used the Services since the beginning of the current billing cycle, and (iii) You request a refund for cancellation of Your subscription to a paid plan within 15 days of the beginning of the current billing cycle, Xentric LLC may in its sole discretion determine whether You may receive a refund for any or all of the amount billed for the Services during the current billing cycle. Notwithstanding anything in this Section 5, Xentric LLC will not refund any amount paid by You in a previous billing cycle for a subscription to a paid plan. AIRTIME AND OTHER MEASURED USAGE ("CHARGEABLE TIME") IS BILLED IN FULL-MINUTE INCREMENTS, AND ACTUAL AIRTIME AND USAGE ARE ROUNDED UP TO THE NEXT FULL-MINUTE INCREMENT AT THE END OF EACH CALL FOR BILLING PURPOSES. WE CHARGE A FULL MINUTE OF AIRTIME USAGE FOR EVERY FRACTION OF THE LAST MINUTE OF AIRTIME USED ON EACH WIRELESS CALL. UNLESS OTHERWISE PROVIDED IN YOUR PLAN, MINUTES WILL BE DEPLETED ACCORDING TO USAGE IN THE FOLLOWING ORDER: Chargeable Time begins for outgoing calls either (i) when You place an outgoing call over VoIP or (ii) when You answer the incoming PhoneIQ call to Your personal cell phone number. Chargeable Time begins for incoming calls when a signal connection from the caller is established with our facilities. Chargeable Time ends after the call has ended, either by You, the person You are speaking with, or due to a technical malfunction, but not until Your signal of call disconnect is received by us and the call disconnect signal has been confirmed. All outgoing calls for which we receive answer supervision or which have at least 30 seconds of Chargeable Time, including ring time, shall incur a minimum of one minute airtime charge. Answer supervision is generally received when a call is answered; however, answer supervision may also be generated by voicemail systems, private branch exchanges, and interexchange switching equipment. Chargeable Time may include time for us to recognize that only one party has disconnected from the call, time to clear the channels in use, and ring time. Chargeable Time may also occur from other uses of our facilities, including by way of example, voicemail deposits and retrievals, and call transfers. Calls that begin in one rate period and end in another rate period may be billed in their entirety at the rates for the period in which the call began. If You select a paid plan to the Services that includes a predetermined allotment of Services (for example, a predetermined amount of airtime or messages), unless otherwise specifically provided as a part of such paid plan, any unused allotment of Services from one billing cycle will not carry over to any other billing cycle. We may bill You in a format as we determine from time to time. Additional charges may apply for additional copies of Your bill, or for detailed information about Your usage of Services. You also remain responsible for paying Your monthly Service fee if Your Service is suspended for nonpayment. You agree that for amounts not paid by the due date, we may charge, as a part of its rates and charges, and You agree to pay, a late payment fee of 10% or the maximum allowed by law. In the event You fail to pay billed charges when due and it becomes necessary for us to refer Your account(s) to a third party for collection, we will charge a collection fee at the maximum percentage permitted by applicable
6. PORTABILITY AND RECLAIMING NUMBERS
If You are transferring an existing phone number to be Your Xentric LLC Phone Number for the Service (i.e., porting a number to us), You hereby authorize us or our agents to process Your order for our voice service and to notify Your existing provider of Your decision to switch Your services to us service, and You represent that You are authorized to take this action. Not all telephone numbers are eligible for porting to us. If Your PhoneIQ account remains inactive for thirty (30) days or more, we have the right to deactivate Your account and reclaim the Xentric LLC Phone Number that was assigned to You when You signed up to use the Services.
7. PROPRIETARY RIGHTS
All right, title and interest in the Service and any content contained herein is the exclusive property of Xentric LLC, except as otherwise stated. Unless otherwise specified, this Service is for Your personal and limited commercial use only and You may print, copy and download any information or portion of the Site for Your personal use only. If You copy or download any information or software from this Site, You agree that You will not remove or obscure any copyright or other notices or legends contained in any such information. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer, or otherwise use in any other way for commercial or public purposes, in whole or in part, any information, software, products or services obtained from the Service, except for the purposes expressly provided herein, without Xentric LLC prior written approval. All trademarks, trade names, service marks and logos are proprietary to Xentric LLC. Your use of any marks on the Site in any manner other than as authorized in these Terms and Conditions, or as authorized in writing by Xentric LLC, is strictly prohibited.
8. CONTENT LICENSE
You grant Xentric LLC a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all rights that You have as the copyright owner in any content or feedback that You provided to us.
The materials on Xentric LLC web site are provided “as is”. Xentric LLC makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, Xentric LLC does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site or otherwise relating to such materials or on any sites linked to this site. Since the Service is dependent on the IP network, the availability of an adequate power supply, and correct equipment configuration, we do not guarantee that any portion of the Service will be continuous or error-free. You also acknowledge and understand that we cannot guarantee that IP based communications are completely secure. Therefore, the Service should not be used with any third-party services or devices such as MONITORED BURGLAR ALARMS, MONITORED FIRE ALARMS, AND/OR MEDICAL MONITORING SYSTEMS OR DEVICES.
In no event shall Xentric LLC or its suppliers be liable for any consequential, indirect, special, punitive or similar damages, including loss of data or profit, or business interruption, arising out of the use of, or inability to use, the Service, even if Xentric LLC or a Xentric LLC authorized representative has been notified orally or in writing of the possibility of such damage. IN NO EVENT WILL THE COLLECTIVE LIABILITY OF Xentric LLC OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, ATTORNEYS, AND BUSINESS PARTNERS TO ANY PARTY, REGARDLESS OF THE TYPE OF ACTION WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED $100. Any cause of action You may have with respect to Your use of the Site and service provided by the Site must be commenced within one (1) year after the claim or cause of action arises. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to You. YOU FURTHER UNDERSTAND THAT 911 SERVICE MAY NOT BE PROVIDED OR AVAILABLE ON THE SOFTWARE APPLICATIONS AND SERVICES (INCLUDING WITHOUT LIMITATION SOME SOFTPHONES). YOU MUST MAKE ALTERNATIVE ARRANGEMENTS TO PLACE 911 CALLS, SUCH AS USING A TRADITIONAL WIRELINE OR CELLULAR TELEPHONE, AND YOU SHOULD NOT RELY ON PhoneIQ TO CALL 911.
The materials appearing on Xentric LLC Site may include technical, typographical, or photographic errors. Xentric LLC does not warrant that any of the materials on its Site are accurate, complete, or current. Xentric LLC may make changes to the materials contained on its Site at any time without notice. Xentric LLC however, makes no commitment of any kind to update the materials.
12. ASSUMPTION OF RISK
You use the Internet solely at Your own risk and subject to all applicable local, state, national, and international laws and regulations. While Xentric LLC has endeavored to create a secure and reliable Site, please be advised that the confidentiality of any communication or material transmitted to/from a Site over the Internet cannot be guaranteed. Accordingly, Xentric LLC is not responsible for the security of any information transmitted via the Internet, the accuracy of the information contained on the Site, or for the consequences of any reliance on such information. Xentric LLC shall have no liability for interruptions or omissions in Internet, network or hosting services. You assume the sole and complete risk of using the Site. Any material downloaded or otherwise obtained through the use of the Site is done at Your own discretion and risk. You will be solely responsible for any damage to Your computer system or loss of data that results from the download of any such material.
13. YOUR RESPONSIBILITY TO PROTECT DATA AND PASSWORD
It is Your responsibility to protect Your personal data and maintain the confidentiality of Your user information and password. You are also responsible for immediately notifying Xentric LLC of any unauthorized use of Your account, or breach of Your account information or password. Xentric LLC will not be liable for any loss that You may incur as a result of someone else using Your username or password, either with or without Your knowledge. To the extent allowable by law, You shall be liable for any expenses, including usage charges and fines, fees, civil judgments, and reasonable attorney’s fees for Your failure to safeguard user and password information and/or promptly notify Xentric LLC about unauthorized use of Your account or breach of Your account information or password.
The Site may include links to certain website, materials, or content developed by third parties. Xentric LLC has not reviewed all of the sites linked to its Internet Site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by Xentric LLC of the Site. Use of any such linked website is at Your own risk. Xentric LLC reserves the right in its sole and absolute discretion to discontinue links to any other sites at any time and for any reason.
15. ENFORCING SECURITY
Actual or attempted unauthorized use of any of the Site may result in criminal and/or civil prosecution. For Your protection, we reserve the right to view, monitor, and record activity on the Site without notice or further permission from You, to the fullest extent permitted by applicable law. This right extends to our review of message content and details pertaining to claimed violations of our Spam Policy. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with the investigation or prosecution of possible criminal activity on any of the Site.
16. COMPLIANCE WITH LAWS
You will use the Service in full compliance with all applicable laws and regulations with regard to Your use of the Services, to include, without limitation, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, individual state laws, and all other laws and regulations concerning privacy, telemarketing, Internet marketing and the transmission of electronic communications. You will not use the Service in violation of any service agreement that You have with a third-party telecommunications provider.
You will indemnify and hold Xentric LLC, its affiliates, officers, directors, employees, agents, legal representatives, licensors, subsidiaries, joint ventures and suppliers, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Your breach of this Agreement, Your violation of any law, or the rights of a third party.
18. TERMINATION OF LICENSE
Xentric LLC may terminate Your right to use the Service with or without cause at any time, including when we feel that You are taking advantage of unlimited calling offered under a paid plan. You may also terminate this Agreement by simply discontinuing use of the Service. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement. In the event of any termination of this Agreement, the limitations on Your use of the Software as set forth in Section 3 shall survive such termination, and You agree to be bound by those terms.
19. GOVERNING LAW
ANY CLAIM RELATING TO XENTRIC LLC SITE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS. SOLE AND EXCLUSIVE JURISDICTION FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE IN AN APPROPRIATE COURT LOCATED IN THE CITY OF MONTEVIDEO, URUGUAY. IF FOR ANY REASON A COURT OF COMPETENT JURISDICTION FINDS ANY PROVISION OF THIS AGREEMENT, OR A PORTION THEREOF, TO BE UNENFORCEABLE, THAT PROVISION SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMISSIBLE SO AS TO AFFECT THE INTENT OF THIS AGREEMENT, AND THE REMAINDER OF THIS AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT. A PRINTED VERSION OF THIS AGREEMENT SHALL BE ADMISSIBLE IN JUDICIAL OR ADMINISTRATIVE PROCEEDINGS.
20. WAIVER OF JURY TRIAL
EACH OF THE PARTIES WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ALL CLAIMS OR CAUSES OF ACTION (INCLUDING COUNTERCLAIMS) RELATED TO OR ARISING OUT OF THIS AGREEMENT BROUGHT BY EITHER PARTY AGAINST THE OTHER. THIS WAIVER WILL APPLY TO ANY SUBSEQUENT AMENDMENTS OF OR MODIFICATIONS TO THIS AGREEMENT.
21. NO CLASS ACTIONS
All claims between the parties related to this Agreement will be litigated individually and You will not consolidate or seek class treatment for any claim with respect to the Services. YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
22. WAIVER OF COMPLIANCE OF THIS AGREEMENT
Even if we do not require strict compliance with the Agreement in each instance, You will be obligated to comply with the Agreement. Our failure to enforce, at any time, any of the provisions, conditions or requirements of the Agreement, or the failure to require, at any time, performance by You of any of the provisions of the Agreement, will in no way waive Your obligation to comply with any of the provisions of the Agreement or our ability to enforce each and every such provision as written. Any and all waivers by Xentric LLC of any provision, condition or requirement of the Agreement will only be effective against Xentric LLC if it is in writing and signed by an authorized officer of Xentric LLC, and any such written waiver will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
23. ASSIGNMENT AND DELEGATION
You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to You. We may also substitute, by way of unilateral novation, effective upon notice to You, Xentric LLC for any third party that assumes our rights and obligations under this Agreement.
24. NO INJUNCTIVE RELIEF
In no event shall You seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service.
25. CONTACTING USERS
By using Services, You agree that we may contact You via voice call, text message or other electronic medium. In the event that any information You have provided to Xentric LLC changes, including but not limited to, Your phone number, e-mail or address, You agree to promptly update Your information.