HABLAPORINTERNET – GENERAL TERMS AND CONDITIONS
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR PRODUCTS AND SERVICES. THIS AGREEMENT APPLIES AT ALL TIMES, INCLUDING FREE TRIAL PERIODS.
BY ACCEPTING THIS AGREEMENT, EITHER BY REGISTERING FOR AND/OR USING THE SERVICES IN ANY MANNER, OR BY EXECUTING THIS AGREEMENT, OR BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY MAKING A PAYMENT IN ACCORDANCE WITH THE PAYMENT TERMS SET FORTH HEREIN, YOU AGREE TO THE TERMS OF THIS AGREEMENT, AS WELL AS ANY APPENDICES REFERRING TO THE PURCHASED SOLUTIONS AND INCORPORATED HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER,” WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE HABLAPORINTERNET’S SERVICES OR PRODUCTS.
The Parties to this Agreement are HABLAPORINTERNET.COM CORPORATION, a company, organized under the laws of the United States of America, hereinafter “HABLAPORINTERNET,” and any individual or entity making use of the solutions provided by HABLAPORINTERNET, hereinafter the “Customer,” collectively the “Parties.”
2. Subject & Scope of the Agreement:
This Agreement sets out the rights and obligations of the Parties, with regards to the use of the solutions provided by HABLAPORINTERNET. The Customer subscribes to the services according to this Agreement.
3.1. “Purchased Solution” or “HABLAPORINTERNET Solution” or “Service” means any product and/or service provided by HABLAPORINTERNET and purchased by the Customer.
3.2. “End User” or “Recipient” or “User” means any person, including both natural and juristic entities, who receives or is intended to receive any message sent by a Customer using HABLAPORINTERNET’s Solutions.
3.3. “HABLAPORINTERNET Platform” means the set of telecommunications and IT equipment that is used by HABLAPORINTERNET to provide the Service.
4. Parts of the Agreement:
4.1. This Agreement is formed by HABLAPORINTERNET General Terms and Conditions (“General Terms and Conditions”) and any and all Appendices or Annexes attached hereto designated as a part of this Agreement or referring to the Purchased Solution, collectively, “the Agreement.”
4.2. The Customer will be bound by all Parts of this Agreement as provided in this Article.
4.3. All the provisions of this Agreement will be interpreted as a whole. The Appendices are intended to supplement the General Terms and Conditions. If an irreconcilable contradiction is found, the provisions set forth in an applicable Appendix will prevail over the provisions set forth in the General Terms and Conditions.
The Agreement consists of (i) this document and (ii) the following Annexes:
Annex 1 – Service Level Agreement (SLA)
5. HABLAPORINTERNET’s responsibilities:
5.1. HABLAPORINTERNET will make the Purchased Solution available to Customer pursuant to this Agreement.
5.2. HABLAPORINTERNET will provide HABLAPORINTERNET’s Standard Support for the Purchased Solution to Customer. HABLAPORINTERNET Technical Support will be available twenty four hours a day (24h), seven (7) days a week. HABLAPORINTERNET’s Customer Service office hours will be from Monday through Friday, from 9 am – 5 pm, GMT -5, except all National United States Holidays.
5.3. HABLAPORINTERNET will use commercially reasonable efforts to make the Purchased Solution available 24 hours a day, 7 days a week, except for:
5.3.1. Planned downtime; and
5.3.2. Any unavailability caused by circumstances beyond our control.
5.4. HABLAPORINTERNET will be responsible for the performance of its personnel and their compliance with HABLAPORINTERNET’s obligations under this Agreement, except as otherwise specified herein.
6. Customer’s Responsibilities:
6.1. The Customer will be responsible for Customer’s compliance with this Agreement.
6.2. be responsible for the accuracy, quality, and legality of the Customer’s Content and Communications.
6.3. use all efforts to prevent unauthorized access to or use of HABLAPORINTERNET, and notify HABLAPORINTERNET promptly of any such unauthorized access or use. The Customer shall be responsible for all expenses, costs, fees and/or other charges associated with the unauthorized access and/or use of HABLAPORINTERNET;
6.4. use HABLAPORINTERNET only in accordance with this Agreement and applicable laws and government regulations, including but not limited to, the CAN Spam Act of 2003, the Telephone Consumer Protection Act, the Electronic Communications Privacy Act, the Do-Not-Call Implementation Act, any and all applicable FCT and FCC regulations, and any other federal, state or local applicable laws and regulations.
6.5. maintain the necessary facilities or equipment required to access or use HABLAPORINTERNET;
6.6. provide and monitor regularly the telecommunications and access infrastructure between the Customer’s own Operations Center and HABLAPORINTERNET Platform.
6.7. have a written and enforceable agreement with every End User;
6.8. provide HABLAPORINTERNET as soon as practicable, but no later than thirty (30) days after HABLAPORINTERNET’s request, with any information HABLAPORINTERNET requests to investigate and resolve issues regarding Customer’s account;
6.9. be duly authorized to conduct business within the jurisdiction where Customer operates;
6.10. demonstrate upon request, to HABLAPORINTERNET’s full satisfaction, that Customer owns or has the necessary licenses, rights, consents, and permissions to use, and authorize HABLAPORINTERNET to use, all text, information, images and sounds and any other content posted, transmitted, distributed, or displayed or otherwise exploited through HABLAPORINTERNET;
6.11. refrain from violating privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity by means of the use of HABLAPORINTERNET.
7.1. Grant of Authorization. Subject to the terms and conditions of this Agreement, HABLAPORINTERNET grants Customer, a non-exclusive, non-transferable right to use the Purchased Solution. The right to use the Solution granted under this Agreement will be subject to all use restrictions and conditions set forth herein. Subject to the limited rights expressly granted hereunder, HABLAPORINTERNET reserve all the right, title and interest in and to the HABLAPORINTERNET, including all related intellectual property rights. No rights are granted to the Customer hereunder other than as expressly set forth herein.
7.2. Restrictions on Use. This Agreement only allows the Customer to use the Purchased Solution for its own business, within the limitations set forth in this Agreement and applicable Appendices.
8. Terms of Payment:
8.1. All HABLAPORINTERNET will be prepaid unless the Parties specifically agree otherwise in writing. Any provision regarding payment incorporated in an Appendix to this Agreement will supersede the Terms of Payment set forth herein.
8.2. Payment conditions, payment methods. Generally, the payment methods listed below are accepted:
8.2.1. Payment via PayPal: You pay the invoice amount via online payment provider PayPal. This method requires you to already be registered or prepared to register with PayPal, to log in using your credentials and then to confirm your payment instruction to HABLAPORINTERNET. Once the invoice amount has been received in our account, the goods will be dispatched to you.
8.2.2. Payment via Amazon Pay: Amazon Pay allows you to use the customer details stored with Amazon.com to pay for your online purchase from our shop, without disclosing your payment details. You will not be charged any additional fees. If you already have an Amazon customer account, you can pay immediately using the payment method you have on file for that account, either by direct debit or credit card. Click on the “Pay with Amazon” button and log into your Amazon account. Then select one of your delivery addresses and payment methods and confirm the order. Your bank account or credit card will only be charged once delivery of your order to your delivery address has been confirmed. When you buy services from our e-shop, you receive an email message with details of service and payment confirmation. Amazon Pay will not forward the payment details stored in your Amazon customer account to us, and you do not need to provide this information for the order. Amazon Pay offers the same reliable payment guarantee and protection plan as Amazon.com.
8.3. Upon accepting the terms of this Agreement, the Customer will select a payment plan and shall pay all amounts due according to this Agreement.
8.3.1. The price to be paid by the Customer for the Purchased Solution and the frequency of payment will depend on the plan selected, according with the terms and forms listed in the corresponding Appendix for the Purchased Solution, or, in the absence of an applicable Appendix, as provided in HABLAPORINTERNET’s website or otherwise enclosed or attached in this Agreement. HABLAPORINTERNET reserves the right to modify the corresponding list of plans and prices without prior notice.
8.3.2. The Customer will pay in advance for the Purchased Solution by credit card, Amazon Payment, Paypal or wire transfer using the application provided for this purpose. By accepting the terms and conditions of this Agreement, the Customer acknowledges that it is the authorized holder of the credit card, or the rightful account owner, as applicable, and authorizes that the value of the selected plan and additional fees and/or charges are applied. Some payment options, banks and Paypal may impose a “Bank fee”, or “Wire fee”, or “Transfer fee” on the Customer’s payment. This is an arbitrary fee that accrues entirely to the payment-issuing bank or money transfer service. HABLAPORINTERNET does not control these imposed fees nor does HABLAPORINTERNET derive any benefit from them, monetary or otherwise; therefore HABLAPORINTERNET is unable to accept responsibility for these fees. The Customer is liable for any “Bank fee”, or “Wire fee,” or “Transfer fee” associated with payments. If HABLAPORINTERNET receives a payment for less than the amount due the payment will be considered incomplete and the unpaid amount will be subject to interest in accordance with Article 9.
8.3.3. Dependent on the service(s) requested and subject to certain credit requirements as determined by HABLAPORINTERNET, HABLAPORINTERNET may agree to allow the Customer to pay by invoice, the amounts due hereunder in arrears. In such event, the Customer will make all of the payments due hereunder within thirty (30) days of the date of the invoice, unless otherwise agreed to by the Parties in writing. HABLAPORINTERNET’s agreement to allow the Customer to pay by invoice will only be effective if set forth in writing and will be revocable at any time at HABLAPORINTERNET’s sole discretion, with or without prior notice.
8.3.4. The Customer will be responsible for providing complete and accurate billing and contact information to HABLAPORINTERNET and notifying HABLAPORINTERNET of any changes to such information. With the first purchase of Services, HABLAPORINTERNET send a validation email message to the Customer. This verification process is essential to avoid the risk involved in online transaction. Rest assured that this is a onetime process, provided Customer uses the same payment method for all future transactions.
8.3.5. Customer acknowledges that the payment obligations are not cancellable and amounts paid are nonrefundable under any circumstances, except as specifically set forth in this Agreement or specifically agreed to by the Parties in writing.
8.4. All payments are approved manually so the customer agrees to wait until 6 labor hours after the payment is made, notified and verified. Normally all the services are delivered within those six labor hours. For off-line payments the customer must notify the payment; it means the customer must send the receipt or payment confirmation copy, to firstname.lastname@example.org and inform the account ID or registered email address for the customer account or service ID. For the online payments, the first time, there is a verification process where the system sends an email message to customer, asking for documents and an answer of the verification email message.
9. Overdue Charges:
In the event that the Parties agree in writing that payment will be invoiced, and any invoiced amount is not received by HABLAPORINTERNET by the due date, then without limiting HABLAPORINTERNET’s rights or remedies:
9.1. Those charges will accrue late interest at the rate of 1.5% of the outstanding balance per month; and/or
9.2. HABLAPORINTERNET may condition future service renewals on payment terms shorter than those specified above; and/or
9.3. HABLAPORINTERNET at its sole option may choose to suspend or terminate service without notice; and/or
9.4. HABLAPORINTERNET at its sole option may choose to accelerate Customer’s unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable.
10.1. The Customer shall notify HABLAPORINTERNET in writing in the event the Customer disputes any portion of any fees paid or payable by the Customer under this Agreement. The Customer shall provide such notice to HABLAPORINTERNET within sixty (60) calendar days of the applicable charge and the parties will work together to resolve the applicable dispute promptly. Disputes are to be raised in the same currency as the corresponding fees. Upon expiration of the sixty (60) day period described in this Article, the Customer will not be entitled to dispute any fees paid or payable by the Customer. HABLAPORINTERNET will endeavor to respond within thirty (30) days from receipt. If the Customer does not respond to the dispute communications within thirty (30) days from receipt, the dispute will then be closed in favor of HABLAPORINTERNET.
10.2. If any amount due under this Article has already been paid to HABLAPORINTERNET by the Customer, then the Customer will accept a credit to be deducted from future payments due.
11. Pricing Notes:
11.1. All prices are in USD.
11.2. HABLAPORINTERNET’s prices do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively “Taxes”). Customer is responsible for paying all Taxes associated with his/her/its purchases hereunder. The Customer will be solely liable for and will pay upon demand all Taxes associated with their access to and use of the Services and will not deduct any such amounts, or any other withholdings, set-offs or deductions, form amounts owed to HABLAPORINTERNET. If either the Customer or HABLAPORINTERNET has the obligation to pay or collect Taxes or make such deductions or withholdings for which the Customer is responsible under this Article, then the Customer will pay the amounts due unless the Customer provides HABLAPORINTERNET with a valid tax exemption certificate authorized by the appropriate taxing authority.
11.3. Prices and fees are subject to HABLAPORINTERNET’s revision. HABLAPORINTERNET reserves the right to change its prices and fees from time to time, in its sole discretion and without notice. Customer’s continued use or payment of the Services after a price revision becomes effective constitutes Customer’s agreement to pay the newly listed amount.
12. Upgrades and Downgrades:
12.1. Customer can opt to upgrade or downgrade their service plan to any other plan available for the Purchased Solution. Unless otherwise agreed to between the Parties, the Customer shall provide written notice to HABLAPORINTERNET at least thirty (30) days before the planned upgrade or downgrade.
12.2. In the event of a service downgrade, a discount credit will be issued to your Customer account for the difference in the cost of the two services if such difference has already been paid. The discount credit will be applied to future months of service with HABLAPORINTERNET, and is in no way transferable to a cash refund.
12.3. In the event of a service upgrade, Customer agrees to pay HABLAPORINTERNET the fees indicated for that service. Payments will be charged on a pre-paid basis unless otherwise agreed in writing by the Parties.
12.4. Unless the Customer notifies HABLAPORINTERNET before the applicable service period that Customer wants to cancel a service plan upgrade, the Customer’s service will automatically continue as is. Customer authorizes HABLAPORINTERNET to collect the then applicable service fee for such service (as well as any taxes) using any credit card or other payment mechanism that HABLAPORINTERNET has on record for the Customer.
13. IP rights:
13.1. HABLAPORINTERNET Solutions are the property of HABLAPORINTERNET. The Customer acknowledges that HABLAPORINTERNET products are protected by copyright, trademark patents and all other proprietary rights. The Customer will not use any information obtained as a result of the use of HABLAPORINTERNET products and/or services for any purpose other than the use of HABLAPORINTERNET products and/or services.
13.2. Nothing herein will confer or be deemed to confer on either Party expressly, implied or otherwise, any rights or licenses in the intellectual property of the other. Except as may be expressly agreed in writing between the Parties, neither Party is permitted to use the brand names of the other Party’s services and/or products or the other Party’s trade names and service marks without the prior written consent of the other.
14. Prohibited Usage:
The Customer agrees to abide by all applicable local, state, federal, national and international laws and regulations and is solely responsible for all acts or omissions that occur under the Customer’s account, including the content of the Customer’s communications. By way of example, and not as a limitation, the Customer agrees not to:
14.1. Use HABLAPORINTERNET for any improper or illegal purpose.
14.2. Use HABLAPORINTERNET in connection with the delivery or transmission of unsolicited messages that would violate FTC rules or State regulations.
14.3. Create a false identity, caller id, or forged email address or otherwise attempt to mislead others as to the identity of the sender or the origin of the message.
14.4. Impersonate any other person or entity or misrepresent your affiliation with any other person or entity.
14.5. Use HABLAPORINTERNET to create or distribute any images, sounds, messages or other materials, which are obscene, harassing, racist, malicious, fraudulent or libelous, nor use HABLAPORINTERNET’s Solutions for any activity that may be considered or are unethical, immoral, or illegal.
14.6. Transmit via HABLAPORINTERNET any unlawful, harassing, libelous, abusive, threatening, harmful, obscene or otherwise objectionable material of any kind or nature.
14.7. Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right to publicity.
14.8. Transmit any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs.
14.9. Violate any U.S. law regarding the transmission of technical data or software exported from the United States through HABLAPORINTERNET.
14.10. Interfere with or disrupt networks connected to HABLAPORINTERNET or systems or violate the regulations, policies or procedures of such networks.
14.11. Attempt to decompile, reverse engineer, translate, convert, adapt, alter, modify, enhance, add to, copy, delete or in any way tamper with, or gain access to, any part of the HABLAPORINTERNET, other accounts, computer system or networks connected to HABLAPORINTERNET without HABLAPORINTERNET written authorization, to the extent the foregoing restrictions are permitted by law.
14.12. Attempt to gain unauthorized access to HABLAPORINTERNET, other accounts, computer system or networks connected to HABLAPORINTERNET, through password mining or any other means.
14.13. Interfere with another Customer’s use and enjoyment of our services or another entity’s use and enjoyment of similar services.
14.14. Make HABLAPORINTERNET available to, or use any HABLAPORINTERNET solution for the benefit of, other than Customer or its End Users.
14.15. Sell, resell, license, sublicense, distribute, rent or lease any HABLAPORINTERNET Solution, unless otherwise agreed in writing.
14.16. Permit direct or indirect access to or use of any HABLAPORINTERNET Solution in a way that circumvents a contractual usage limit.
14.17. Access any HABLAPORINTERNET Solution in order to build a competitive product or service.
14.18. Violate the laws or regulations of any jurisdiction involved, including the jurisdiction from where the Parties to this Agreement operate and/or the jurisdiction where the End Users or recipients are located, including any applicable laws or regulations regarding transmission of technical data or software exported from one jurisdiction to another through HABLAPORINTERNET.
14.19. The Customer is prohibited from using the Service for callback calls, auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting purposes.
15. General Disclaimers:
15.1. The Customer shall be solely responsible for the content included in any communication with third parties while using HABLAPORINTERNET. The Customer assumes all responsibility and legal liability for customer content. This includes all responsibility and legal liability for offenses, including but not limited to, such as copyright infringement; plagiarism; and making statements that are false, misleading, defamatory, libelous, offensive, threatening, prohibited, fraudulent, or in violation of any law. It is not the obligation or the policy of HABLAPORINTERNET to investigate or to make a determination as to whether the Customer has, or could, commit any of these offenses by means of the Customer’s content. The Customer is solely responsible for making such a determination. HABLAPORINTERNET reserves the right to refuse or terminate service without notice to the Customer if we have any question, doubt, or concern–however well or poorly justified–that the Customer risks committing any of these offenses. The Customer represents and warrants that the Customer owns or otherwise controls all rights to submitted materials and that submitted materials do not contain statements that are false, misleading, defamatory, libelous, offensive, threatening, prohibited, or in violation of any law.
15.2. HABLAPORINTERNET will not be liable, and shall be held harmless for any violation by Customer of proprietary or privacy rights, or for any violation of any applicable laws or regulations.
15.3. HABLAPORINTERNET will not be liable and shall be held harmless for any loss or injury caused in whole, or in part, by actions, omissions or circumstances beyond its control, or arising out of Customer’s or any Third Party’s decision, including but not limited to, Credit Card fraud, Illegal use of Content, Cyber attacks of any nature, or any type of misconduct which violates local, state, federal or international law or violates the legal rights of the Parties to this Agreement or of any Third party.
15.4. HABLAPORINTERNET will not be liable for any technical failures caused by factors beyond HABLAPORINTERNET’s control. HABLAPORINTERNET will use its best efforts to correct any such technical failures as soon as practicable.
15.5. HABLAPORINTERNET will not be liable for the Customer’s misuse of HABLAPORINTERNET. Any use of HABLAPORINTERNET which is contrary to federal or state laws or regulations may result in the immediate termination of services. The Customer agrees that any termination due to violation of such laws will result in forfeiture of any and all funds paid to HABLAPORINTERNET. HABLAPORINTERNET will assist state and/or local authorities in prosecution of those who violate the law through the use of HABLAPORINTERNET. The Customer further acknowledges that he/she/it hereby indemnifies, holds harmless and agrees to defend HABLAPORINTERNET against any action against it by the FTC, FCC or other government agency pursuant to the Customer’s violation of any laws, rules or regulations related to the Customer’s use of HABLAPORINTERNET.
15.6. No Emergency Calls: by entering into this Agreement the Customer acknowledges and agrees that the HABLAPORINTERNET infrastructure does not and does not intend to support or carry emergency calls.
15.7. No Callback Calls: by entering into this Agreement the Customer acknowledges and agrees that the DID numbers provided by HABLAPORINTERNET cannot be used for callback applications.
15.8. Jurisdiction Restrictions: if the Customer is residing in a jurisdiction where it is forbidden by law to offer or use internet telephony, the Customer may not enter into this Agreement. By entering into this Agreement the Customer explicitly states that he has verified in his own jurisdiction if the use of internet telephony is allowed. The Customer shall be solely responsible, bear all costs (including reasonable lawyer’s costs) and will hold HABLAPORINTERNET harmless, if he breaches the Jurisdiction restrictions.
15.9. Customer acknowledges that the allocation of Numbers (DIDs and/or Toll-Free numbers) as part of the Service does not constitute a transfer of property or sale of numbering rights by HABLAPORINTERNET, and only constitutes a sale of right to use the Numbers exclusively as long as the Service is provided. As a result, Customer is not entitled to claim any such rights to the Numbers which will be reassigned to HABLAPORINTERNET immediately at the termination of the Service.
15.10. Service term is one or more full months, according to the service order, beginning on date that Service is activated. Service orders are renewed automatically for additional terms until cancelled.
15.11. Customer acknowledges that some services run on different platforms with different account credentials (login/password) for self-management. The main or default customer account is the VoIP customer account. Some services are renewed or activated automatically in other platforms by taking money from the main voip customer account balance. In the same way for the toll-free incoming calls and on-demand services; if the self-managed platform does not have enough balance, it will take money from the voip account in order to avoid call rejections or services blocked. The system would move money from voip customer balance to another platform account balance. When the customer decides and inform the termination of a service, he/she could ask support team for moving the unused money, from one platform to another.
16.1. By contracting, purchasing, or ordering HABLAPORINTERNET, the Customer hereby agrees to defend, hold harmless and indemnify HABLAPORINTERNET, its successors and assigns, from any and all demands, claims, actions, lawsuits, judgments, whether first or third party, including but not limited to damages of any kind, costs, expenses, attorney’s fees arising from, related to and/or associated with this Agreement. Without limitation to the broad indemnification clause set forth herein, other areas of indemnification include but are not limited to the following: (i) Customer financial fraud or theft, (ii) Customer content, (iii) any violation by the Customer of the terms and conditions set forth in this Agreement, (iv) any violation by the Customer of applicable laws or regulations; or (v) any violation by the Customer of the legal rights of any person or entity.
16.2. Notwithstanding the foregoing, HABLAPORINTERNET reserves the right to unilaterally without thirty days notice to assume complete and total control over the strategy and defense of any claim for which HABLAPORINTERNET is entitled to indemnification. The Customer agrees to pay for all of the defense related costs and fees associated with the defense on a monthly basis to the defense chosen by HABLAPORINTERNET. In such event, the Customer will not be excused of the obligations set forth in the prior subsection. In additions, Customer will provide HABLAPORINTERNET with all cooperation that is requested by HABLAPORINTERNET.
17. Representations and Warranties:
17.1. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
17.2. THE CUSTOMER ACKNOWLEDGES THAT IT IS TECHNICALLY IMPRACTICABLE TO PROVIDE SERVICE FREE OF FAULTS, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, HABLAPORINTERNET DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR ANY OTHER IMPLIED WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
18. Limitation of Liability:
18.1. IN NO EVENT WILL HABLAPORINTERNET, NOR ANY OF ITS EMPLOYEES, SHAREHOLDERS, DIRECTORS, SUCCESSORS OR ASSIGNS, BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, REVENUE, ANTICIPATED SAVINGS, OR DAMAGES FOR LOSS OF DATA OR OTHER BUSINESS INFORMATION) ARISING FROM OR RELATED TO THIS AGREEMENT OR RESULTING FROM CUSTOMER’S USE OR INABILITY TO USE THE PURCHASED SOLUTION, REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING GROSS NEGLIGENCE, AND EVEN IF HABLAPORINTERNET HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE. THE DISCLAIMER IN THIS PARAGRAPH WILL APPLY TO THE FULLEST EXTENT PERMISSIBLE BY THE APPLICABLE LAW.
18.2. The full extent of HABLAPORINTERNET’s liability for any interruption of service that is not otherwise excused within this Agreement, or for any other liability on the part of HABLAPORINTERNET, its employees, directors, successors or assigns, will be limited to the fees paid by the Customer for the amount of time the service is down. Under no circumstances will HABLAPORINTERNET’s liability to the Customer for any claim exceed 50% of the amount paid by the Customer to HABLAPORINTERNET under this Agreement during the twelve (12) month period immediately preceding the date on which the claim arose.
18.3. Except as expressly stated in the Agreement and in the related SLA, HABLAPORINTERNET does not warrant that the Service will be continuous or uninterrupted, secure, error-free or that all defects in the Service will be corrected. No oral or written information or advice given by HABLAPORINTERNET or HABLAPORINTERNET´s authorized representatives will create a warranty or in any way increase the scope of this warranty.
18.4. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE RELATED SLA, THE SERVICE WILL BE PROVIDED TO PROVIDER ON AN “AS IS” BASIS, AND HABLAPORINTERNET EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR PARTICULAR USE OR PURPOSE, OR NON-INFRINGEMENT.
19. Nature of relationship:
The Parties to this Agreement acknowledge that they are independent contractors and that this contractual relationship will not be interpreted as a commercial agency contract, commercial agency agreement or any kind of representation or association between the parties.
20. Florida Law, Venue, Jurisdiction:
This Agreement will be governed by the laws of the State of Florida, without regard to its conflict of law provisions. Any action brought under this Agreement must be filed in Broward County, Florida. The Parties hereto hereby submit to the exclusive jurisdiction of the state and federal courts located in Broward County, Florida for any action or proceeding arising out of or relating to this Agreement and the Parties hereto hereby agree that all claims in respect of such action or proceeding shall be heard and determined exclusively in any such state or federal court. Each Party hereto hereby irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement brought in Broward County, Florida, or any judgment entered by any court located in Broward County, Florida in respect thereof. In the event a dispute arises and a suit is filed in the State of Florida, Customer waives any objection regarding personal jurisdiction and agrees through this Agreement that valid and proper service of process shall be deemed effective if the summons and complaint is delivered to the Customer’s principal place of business, identified by the Customer at the time services were contracted for, via recognized overnight courier service or delivered to the Customer’s email address, identified by the Customer at the time services were contracted for, via email. It is further agreed that a final judgment in any action or proceeding shall be conclusive and may be enforced in any other jurisdiction anywhere in the world or in any other manner provided by law.
21. Attorney’s Fees:
In the event of any dispute arising under or related to this Agreement, HABLAPORINTERNET will be entitled to recover all actual attorney fees, costs and expenses incurred by it in connection with that dispute and/or the enforcement of this Agreement, including all such actual attorney fees, costs and expenses at all judicial levels, including appeal until such dispute is resolved with finality.
Except as otherwise specified in another provision of this Agreement, notices, requests, demands or communications required under this Agreement will be in writing and delivered by either U.S. certified mail, postage prepaid return receipt requested or by overnight delivery air courier (e.g., Federal Express), or sent by email or facsimile, to the parties at their respective physical addresses and/or email and/or fax addresses and/or numbers provided at the time the services are contracted for. The Parties may change their respective points of contact, or addresses or phone or facsimile numbers for notification from time to time on five (5) days advance written notice pursuant to the procedures set forth in this Article. In the absence of a timely change of contact information hereunder, the contact information provided at the time the services are contracted for will be considered valid.
23. Term of the Agreement:
This Agreement will commence on the date Customer first accepts this Agreement as set forth herein, except when Appendices apply to the Purchased Solution, in which case, this Agreement will commence when both parties have duly signed all applicable Appendices. This Agreement remains in effect unless terminated as provided in the following subsections, or otherwise provided in applicable Appendices.
24.1. HABLAPORINTERNET will have the right, at its sole discretion, to terminate the Customer’s use of all or any portion of HABLAPORINTERNET at any time, without prior notice required, if:
24.1.1. HABLAPORINTERNET believes that the Customer has violated or acted inconsistently with this Agreement.
24.1.2. The Customer declares insolvency or bankruptcy.
24.1.3. The Customer fails to pay funds due for services purchased by the Customer.
24.1.4. The Customer files a claim or dispute with his/her/its credit card issuer or Paypal requesting a refund in violation of any of the terms of this Agreement.
24.2. In the event of termination due to any of the foregoing causes, HABLAPORINTERNET may retain any unused funds paid to it by the Customer as liquidated damages. HABLAPORINTERNET may additionally pursue any other remedies at law against the Customer it deems necessary in the event of Customer’s breach of this Agreement.
24.3. In the event of termination of the Customer’s account, HABLAPORINTERNET will restrict Customer from access to any of its password protected areas of HABLAPORINTERNET and is not required to provide any unused services.
24.4. This Agreement may also be terminated at any time by executing a mutual separate written agreement between the Parties.
24.5. The Customer may terminate this Agreement with HABLAPORINTERNET at any time by delivering thirty (30) days written notice emailed or mailed to HABLAPORINTERNET and paying a Termination Fee equal to a forfeiture of any and all unused funds for Services paid by the Customer. This provision will not apply if any Appendix(ces) apply which provide for a specific term or duration of the Agreement.
24.6. The Customer may not terminate this Agreement if he/she/it owes any funds to HABLAPORINTERNET. Any unpaid amounts due to the HABLAPORINTERNET by the Customer will survive termination until paid in full. Any unpaid balance due to HABLAPORINTERNET by the Customer will accrue Interest at the rate of 1.5% monthly on the unpaid balance until paid in full.
24.7. The Customer agrees that HABLAPORINTERNET will not be liable to the Customer or to any third party for any termination of the Customer’s access to HABLAPORINTERNET.
25.1. All personal data provided by the Customer in relationship with the rendering of the services, will be deemed confidential by HABLAPORINTERNET. HABLAPORINTERNET will not use confidential information for any purpose other than to rendering its services.
25.2. HABLAPORINTERNET will not intercept, monitor, copy or disclose any Customer messages, communications or personal information about the Customer or the Customer’s account, phonebook or MSISDN’s, other than in the normal course of the use of the Services, without the Customer’s prior permission unless HABLAPORINTERNET believes in good faith that such action is necessary to conform to legal requirements, to co-operate or comply with legal process, investigations, summonses, subpoenas and the like, to protect and defend the rights, property or legally protectable interest of HABLAPORINTERNET, the Customer or other third party, to enforce any of the provisions of these terms and conditions or to protect HABLAPORINTERNET’s business or reputation. The Customer agrees that HABLAPORINTERNET may access its account and message contents for the purposes described above without notice and in order to respond to service or technical issues and that HABLAPORINTERNET may communicate with the Customer from time to time for purposes including, but not limited to, communicating information regarding any updates, upgrades, notices, or other information.
25.3. The Customer agrees that HABLAPORINTERNET may make use of a Customer’s profile and account information for non-personal statistical purposes.
25.4. The Customer agrees that it will not violate any privacy laws, regulations or applicable codes of conduct relating to the protection of personal information of End Users including but not limited to names, addresses, email addresses, landline and mobile telephone numbers and will not disclose the personal information of end users to any third party save without the express consent of the End User or where specifically required or permitted by law to do so.
26.1. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential information includes, but is not limited to, the terms of this Agreement and any of its appendices, data, plans, designs, drawings, trade secrets, or any other documents including pricing, technology and technical information, product plans and designs, business processes, and other proprietary or confidential information of the other Party disclosed during the Term. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
26.2. Neither Party will disclose the Confidential Information received from the other Party for a period of three (3) years from the date of commencement of this Agreement unless such disclosure is (i) necessary to satisfy the rules, requirements and/or regulations of any federal, state, or local government agency; (ii) otherwise required to be disclosed by law; (iii) necessary in any legal proceeding establishing rights and obligations under this Agreement; (iv) to a Party’s accountants, auditors, and attorneys which are bound by the same confidentiality obligations set forth herein. If however, the Confidential Information rises to the level of Trade Secret under applicable law, the five (5) year duration set forth above will not apply, and the Trade Secret will be kept confidential for as long as the applicable law deems enforceable.
26.3. If the Receiving Party is requested or required (by oral questions, interrogatories, requests for information or document, subpoena, civil investigative demand or similar process) to produce any Confidential information disclosed during the course of the dealings, the Receiving Party shall promptly notify the disclosing party about any such request so that the disclosing party may consider seeking an appropriate protective order.
26.4. The Receiving Party agrees to:
26.4.1. use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care);
26.4.2. refrain from using any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and
26.4.3. limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not less stringent than those herein, except as otherwise authorized by the Disclosing party in writing.
26.5. Violation by either Party or its agents, of the foregoing provisions will entitle the other Party to seek an injunction or restraining order, in addition to any other remedies available at law or in equity.
Unless an applicable Appendix provides otherwise, HABLAPORINTERNET will have the right to modify these Terms and Conditions from time to time, for any reason, and without notice. The Customer acknowledges that it is the Customer’s duty to check frequently for changes to these terms and conditions. The Customer’s continued use of the Services following the posting of any changes to these Terms and Conditions constitutes the Customer’s full acceptance of those changes.
No waiver of any of the provisions of this Agreement shall be deemed a waiver of the same provision with respect to subsequent performance nor shall such waiver be deemed a waiver of any provision.
The Customer agrees that it may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the express written consent of HABLAPORINTERNET.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid and unenforceable, such provision shall be deemed valid and enforceable to the maximum extent permissible by law and the remaining portions of this Agreement shall remain in full force and effect.
31. Surviving Provisions:
The Articles titled “Parts of the Agreement,” “Payment Terms,” “Disputes,” “IP Rights,” “Confidentiality,” “General Disclaimers,” “Indemnification,” “Limitation of Liability,” and “Forum and Applicable law,” as well as those Articles that expressly so provide, will survive any termination of this Agreement.
32. Entirety of the Agreement:
The Parties acknowledge that this Agreement with its respective Appendices constitute their final and full agreement and supersedes all other prior or contemporaneous communications and proposals, whether electronic, oral or written, between the Customer and HABLAPORINTERNET with respect to HABLAPORINTERNET.
Any rights not expressly granted herein are reserved.
Service Level Agreement (SLA)
(i) Bulk SMS Service Level. HABLAPORINTERNET will terminate messages to mobile terminals as fast as commercially possible as soon as the handsets of such users are ready to receive the messages. However, due to factors beyond its control, HABLAPORINTERNET does not guarantee minimum latency on submitting the messages to the destination operator nor final delivery to the mobile terminal. If messages sent by the Provider cannot be delivered to the intended users they will be stored for a maximum of 24 hours after which time they may be deleted.
(ii) HLR Lookup Service Level. HABLAPORINTERNET will execute HLR Lookup requests to the SS7/GSM network as fast as commercially possible. However, due to factors beyond its control, HABLAPORINTERNET does not guarantee minimum latency on submitting the requests to the HLR database nor the accuracy of the results returned.
(iii) Support Services. Any service interruption/ breakdown in Providers connectivity to the HABLAPORINTERNET SMSC shall be reported immediately to HABLAPORINTERNET by phone or email to enable HABLAPORINTERNET to take reasonable steps to assist and co-operate with Provider, wherever possible, in restoring such technical faults. Technical breakdowns will be analyzed jointly by HABLAPORINTERNET and Provider. HABLAPORINTERNET will be responsible only for elements that are in its direct control and will try to solve the problem and restore service as quickly as possible.
(iv) Support. HABLAPORINTERNET shall provide Provider with full support via email, messenger, and telephone. HABLAPORINTERNET shall respond to all email requests within Forty Eight (48) hours.
(v) Network Reach. HABLAPORINTERNET maintains at all times a current list of mobile operators being covered. HABLAPORINTERNET reserves the right to alter the list adding or deleting operators, as appropriate. While HABLAPORINTERNET will cover as many mobile operators as commercially practicable, HABLAPORINTERNET does not undertake, represent or warrant that any particular mobile operator will continue to be reachable by HABLAPORINTERNET at any time in the future. The current list of mobile operators is available for inspection from HABLAPORINTERNET on request.