END-USER TERMS OF USE

 

Effective Date: 4/19/2016

 

Please read this Terms of Use Agreement (this “Agreement”) carefully before downloading or using the ActoVoice website (the “Website” or the “Site”) or the ActoVoice mobile application (the “App”). (The Website and the App may be referred to collectively as the “Software.”) Your use of our Software constitutes an acceptance of the terms of this Agreement. If you do not agree to the terms of this Agreement, immediately discontinue use of our Software and delete the App from your mobile device. ActoVoice’s Privacy Policy governs the Company’s use of your data and is incorporated by reference into this Agreement. You may access the Privacy Policy at any time through the Privacy Policy link on the homepage of www.actovoice.com. This Agreement is a binding legal agreement between ActoVoice Inc. (the “Company”) and you.

 

Software; Services

The Software is a customer engagement platform that allows affiliated organizations (“Organizations”) to have continuous communication with you as their customer. Depending on the Organization, you may have the ability to give freeform feedback, get assistance, and/or take surveys.

 

Parties

The parties to this Agreement are you as an end-user and the owner of the Software, the Company, ActoVoice Inc. All references to “we,” “us,” or “our” will be construed to mean the Company. Your access and use of the Software constitutes your agreement to be legally bound by this Agreement and establishes a contractual relationship between you and the Company.

 

Modifications

The Company reserves the right to modify this Agreement at any time, without prior notice, by posting an amended Terms of Use that is always accessible through the Terms of Use link on our Website’s home page. YOUR CONTINUED USE OF THE SOFTWARE FOLLOWING OUR POSTING OF NEW TERMS OF USE ON OUR WEBSITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE MODIFICATION OR NEW TERMS OF USE.

 

The Company Does Not Provide Professional Advice of Any Kind

An Organization may be a healthcare provider, a legal services provider, or the provider of many other types of professional services. Any medical, legal, or other professional feedback or information provided by an Organization through the use of the Software is solely the opinion and advice of the Organization and not the opinion or advice of the Company. Reliance on any information provided by an Organization is solely at your own risk.

 

IF YOU HAVE A MEDICAL EMERGENCY OR ANY OTHER EMERGENCY SITUATION, IMMEDIATELY CALL 911. DO NOT RELY ON THE SOFTWARE FOR ASSISTANCE IN EMERGENCY SITUATIONS.

 

User Requirements

In consideration of your use of the Software, you represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist-supporting” country, and you are not listed on any U.S. Government list of prohibited or restricted parties.

 

Your Content

You are solely responsible for your posts and the consequences of posting them. The Software acts as a repository of your content and the Company does not necessarily agree with your views and opinions. In addition, you represent and warrant that you own or have the necessary license to any intellectual property contained in the content that you post.

 

In the event you delete your account, you remove the App from your mobile device, or the Company terminates your account, the Company may immediately delete your account and all data, including, but not limited to, accumulated messages, data, rewards, and ActoPoints.

 

The Software is not intended nor designed to be a backup or storage system. Do not use the Software to store documents, images, or messages of an important or sensitive nature. All data will be deleted after a period of twelve (12) months.

 

Prohibited Uses

You are expressly prohibited from the following:

a. Taking any action that will cause an unreasonable burden on the Company’s infrastructure;

b. Attempting to access or navigate the content through any manner other than the Website or the App;

c. Reverse engineering, disassembling, modifying, adapting, or otherwise tampering with the Software;

d. Mining the content or performing any other data gathering, extraction, or competitive analysis;

e. Attempting to exploit any possible vulnerability in the Software or overloading, “flooding,” “spamming,” “crashing,” or otherwise attempting to interfere with the Company’s service to others;

f. Attempting to inject a virus, worm, or other malware into the Software;

g. Posting any content that contains racially, sexually, or otherwise offensive language;

h. Posting any content that is defamatory, harassing, threatening, or abusive in nature;

i. Posting any content that may create a risk of harm or loss with regard to physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you or any other person;

j. Posting any content that may create, constitute, or encourage a crime or tort; or

k. Posting any content that violates any third-party rights, including intellectual property rights and rights of publicity and privacy.

 

This list of prohibitions is not exhaustive. At any time, with or without notice and with or without cause, for any reason or no reason, if the Company determines, in its sole discretion, that any of your actions are inappropriate or disruptive, the Company reserves the right to terminate access to your account, to terminate your ability to post to the Software, and to refuse, delete, or remove any of your content.

 

The Company will investigate actions that may involve violations of system or network security and may involve and cooperate with law enforcement agencies in the prosecution of users who are involved in such violations. These violations may result in civil and/or criminal liability.

 

The Company has no obligation to monitor posts to the Software or to exercise any editorial control over such posts; however, we reserve the right to review such posts and to remove any material that, in our judgment, is not appropriate.

 

Rewards and ActoPoints

The Company and/or Organizations, in their sole discretion, may grant you rewards and ActoPoints for using the Software in specific ways. These rewards and ActoPoints are subject to the following:

a. If your account is deleted, you remove the App from your mobile device, or your service is terminated by the Company for any reason, your rewards and ActoPoints will be lost.

b. You shall not attempt to cheat the system to attain rewards or ActoPoints.

c. The Company and/or Organizations, in their sole discretion, for any reason or no reason, may cancel rewards or ActoPoints at any time.

d. The Company and/or Organizations, in their sole discretion, may terminate your account if they suspect fraudulent activity on your account.

e. The rewards and ActoPoints programs are subject to change at any time.

f. The rewards and ActoPoints programs will vary depending on your country of residence.

g. You will be required to provide your full name, address, telephone number, country, e-mail address, and any other information requested by the Company or Organizations to redeem rewards.

h. You can only claim one reward per unique interaction with an Organization (for example, you cannot receive multiple rewards for completing the same survey multiple times).

 

Third-Parties

If you use the App on an Apple iOS device, Apple Inc. will be a third-party beneficiary of this Agreement. If you use the App on an Android operating system device, Google, Inc. will be a third-party beneficiary to this Agreement. These third-party beneficiaries are not parties to this Agreement and are not responsible for the provision or support of the App in any manner. Furthermore, you are subject to the terms and conditions as set forth in the applicable third-party beneficiary’s terms of service and privacy policy.

 

Third-Party Software.

The Software may contain third-party software that requires notices and/or additional terms and conditions. Such required third-party notices and/or additional terms and conditions may be requested from the Company and are made a part of and incorporated by reference into this Agreement. By using this Software, you are also accepting the additional terms and conditions, if any, required by these third-party software notices and terms and conditions.

 

Ownership of Intellectual Property

The material provided in the Software is protected by law including, but not limited to, United States copyright law and international treaties. The Company is the exclusive owner of or is the licensed user of all designs, text, graphics, images, video, information, logos, button icons, source and binary computer code, audio files, and other content in the Software. The Company also owns or is licensed to use the computer code, scripts, design elements, graphics, interactive features, artwork, text communications, and any other content (collectively “Content”) that may be found in the Software. This intellectual property of the Company and/or third-party licensors is protected by copyright, trademark, and/or patent laws. All rights not expressly granted in this Agreement are reserved by the Company.

 

You shall not copy or adapt any computer code that Company creates for the generation or display of the Software; this code is protected under copyright law.

 

You shall not reproduce, display, publicly perform, distribute or other use the Content for any public or commercial purpose in any manner likely to cause confusion among consumers as to its source, that dilutes the strength of the Company’s or an Organization’s property, or that otherwise infringes the Company’s or an Organization’s intellectual property rights. You shall not sell or modify the Content or use the Content in any other application, web site, or in a networked computer environment for any purpose.

 

We claim no intellectual property rights in content uploaded or posted by you.

 

DMCA Notice

The Company respects the intellectual property rights of others and expects you to do the same. The Company will remove all infringing content if properly notified that it infringes third-party copyrights, and may do so, at its sole discretion, without prior notice at any time. Under the United States Digital Millennium Copyright Act of 1998 (the “DMCA”), it is the Company’s policy to respond expeditiously to copyright owners who believe content infringes their rights. The Company reserves the right to remove any content without prior notice to you, any other user, or any third party. If you believe that content made available through the Software infringes your copyright, you may send us a notice requesting that it be removed or that we block access to it. If you believe that such a notice has been filed wrongfully against you, the DMCA lets you send us a counter notice. Notices and counter notices must meet DMCA’s requirements. We suggest that you consult your legal advisor before filing a notice or counter notice. Be aware that there can be substantial penalties for false claims. Notices and counter notices may be sent to our copyright agent at support@actovoice.com. It is our policy, in appropriate circumstances, to terminate the account of any user who has committed multiple infringements.

 

Availability of Services Provided by Software

Although it is the Company’s intention for the services provided by the Software (“Services”) to be available as much as possible, there will be occasions when the Services may be interrupted, including, but not limited to, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. The Company will not be liable to you for any modification, suspension, or discontinuation of the Services. In addition, the Company assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with the Software.

 

Warranty Disclaimers

IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE WHETHER THE SOFTWARE MEETS YOUR NEEDS AND EXPECTATIONS. BY USING THE SOFTWARE, YOU UNDERSTAND AND AGREE THAT THE USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND YOU ASSUME ALL RISK. THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WE DO NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO SUCH SOFTWARE. THE COMPANY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, COMPLETENESS, TIMELINESS, CORRECTNESS, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT: (1) THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (2) THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (3) THE SOFTWARE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (4) THERE WILL BE NO UNAUTHORIZED ACCESS TO OR USE OF OUR SOFTWARE, AND (5) THERE WILL BE NO UNAUTHORIZED ACCESS OF ANY PERSONAL OR FINANCIAL INFORMATION STORED BY THE COMPANY. THE COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY INFORMATION OR ADVICE PROVIDED TO YOU BY AN ORGANIZATION USING OUR SOFTWARE.

THESE DISCLAIMERS CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THIS SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THESE DISCLAIMERS. IF IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 

YOU SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY IS NOT LIABLE FOR ANY ACTION OR INACTION OF ANY THIRD PARTIES, INCLUDING THE ORGANIZATIONS, AND THE RISK OF INJURY OR DEATH FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

 

THE COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY, THE SERVICES, OR OTHER FUNCTIONALITY OF THE SOFTWARE; AND YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SOFTWARE AND YOUR RELIANCE ON ADVICE OR INFORMATION PROVIDED TO YOU BY ANY ORGANIZATION USING THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK.

 

Limitation of Liability

YOU UNDERSTAND AND AGREE THAT THE COMPANY HAS NO CONTROL OVER THE ACTS OR OMISSIONS OF ANY ORGANIZATION AND THAT THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE QUALITY OF THE SERVICES PROVIDED BY ANY ORGANIZATION. YOU UNDERSTAND AND AGREE THAT THE COMPANY IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY ORGANIZATION. AS SUCH, THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY WHATSOEVER FOR ANY CONTROVERSIES, CLAIMS, SUITS, INJURIES, AND/OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE SOFTWARE.

 

THE COMPANY WILL NOT BE INVOLVED IN ANY DISPUTES BETWEEN YOU AND ANY ORGANIZATION. THE COMPANY IS NOT RESPONSIBLE FOR DISPUTES, CLAIMS, LOSSES, INJURIES, OR DAMAGES OF ANY KIND THAT MIGHT ARISE DURING AND AFTER USE OF THE SOFTWARE.

 

TO THE FULL EXTENT PERMITTED BY LAW, THE COMPANY IS NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) WHICH INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY OR WRONGFUL DEATH, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION, FAILURES IN COMMUNICATION OR RESPONSE ISSUES REGARDING MEDICAL EMERGENCIES OR OTHER MISSION CRITICAL SITUATIONS, OR THE USE OR INABILITY TO USE THE SOFTWARE, ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, EVEN IF THE COMPANY HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, THE COMPANY IS NOT LIABLE FOR THE DISCLOSURE OF ANY INFORMATION PURSUANT TO THIS AGREEMENT AND PRIVACY POLICY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT WILL THE COMPANY’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, EXCEED $100.

 

YOU AND THE COMPANY AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE MATERIAL, BARGAINED-FOR BASES OF THIS AGREEMENT, AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. YOU AND THE COMPANY AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS AGREEMENT ARE FAIR AND REASONABLE.

 

IF YOU ARE DISSATISFIED WITH THE SOFTWARE OR DO NOT AGREE WITH ANY PROVISIONS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SOFTWARE EXCEPT AS MAY BE PROVIDED FOR IN THIS SECTION.

 

Assumption of Risk

You agree and understand that you assume all risks when using the Software, including, but not limited to, any and all risks associated with any Organization and any unavailability of Services.

 

Indemnification

You shall indemnify and hold the Company harmless from all claims or cause of actions, liabilities, damages, costs, fines, penalties, and expenses (including attorneys’ fees) occurring from or related to your: (a) use or misuse of the Software; (b) acts and omissions on or off the Software; (c) violation of this Agreement; (d) violations of any rights of a third party; (e) disputes with or between you and any Organization; or (f) violation of any law or regulation. This indemnification extends to all of Company’s agents, employees, contractors, directors, and officers, as well as anyone involved in creating or providing services to the Company. The Company may assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In this case, you shall cooperate in asserting any available defenses.

 

 

Except for actions to protect intellectual property rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof will be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There will be one arbitrator, and such arbitrator will be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration will take place in Sanford, Florida, USA, and may be conducted by telephone or online. The arbitrator will apply the laws of the State of Florida, USA, to all issues in dispute. The controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator will be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment will be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorneys’ fees and costs up to $1000.00. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO YOUR USE OF THE SOFTWARE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

 

Jurisdiction and Venue

The courts of Seminole County in the State of Florida, USA, and the nearest U.S. District Court in the State of Florida will be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement.

 

Controlling Law

This Agreement will be construed under the laws of the State of Florida, USA, excluding rules regarding conflicts of law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.

 

Designed for Use Only Within Legal Jurisdictions

Access to this Software from locations where its use or contents are illegal is not authorized. You acknowledge and agree that you access and use the Software at your own volition and you are responsible for compliance with local law.

 

Onward Transfer of Personal Information outside of your Country of Residence

Any personal information we collect with this Software will be stored and processed in servers located only in the United States. If you reside outside of the United States, you consent to the transfer of personal information outside your country of residence to the United States.

 

Severability

If any provision of these terms is declared invalid or unenforceable, such provision will be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision will not affect any other provision of these terms, and these terms will continue in full force and effect, and be construed and enforced, as if such provisions had not been included, or had been modified as above provided, as the case may be.

 

Force Majeure

We shall not be liable for damages arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures.

 

Privacy

Please review this Software’s Privacy Policy which can be viewed at any time through the Privacy Policy link on the Website’s home page. This Privacy Policy is incorporated by reference into this Agreement and governs your use of the Software.

 

User Suggestions to Company

The Company welcomes your feedback with regard to the Software. However, the Company will not accept any creative ideas, suggestions, inventions, or materials other than those we have specifically requested (“Suggestions”). If you submit these Suggestions regardless of this stated policy, the Suggestions will automatically become the property of the Company. None of the Suggestions will be subject to any obligation of confidentiality and we shall not be liable for its disclosure or use. The Company will have exclusive ownership of all now known or later discovered rights to the Suggestions and will be entitled to unrestricted use of the Suggestions for any purpose whatsoever, commercial or otherwise, without compensation to you.

 

Contact Information

If it becomes necessary for you to contact the Company for any reason, you may do so by using the following information:

 

support@actovoice.com

 

ActoVoice Inc.

1511 E. State Road 434, Suite 2001

Winter Springs, FL 32708