End User License Agreement
LICENSE AGREEMENT BETWEEN USER AND GUERRILLATEL
This End User License Agreement (the Agreement”) is entered between you and GuerrillaTel Inc. (including any affiliate or subsidiary company thereof) (“GuerrillaTel”) for the licensed use of any of the GuerrillaTel products and services (the “Product”) made available either online or for download via www.guerrillatel.com (the “Web Site”).
License
1. Subject to the terms of this Agreement, GuerrillaTel hereby grants you a limited, personal, non-commercial, non-exclusive, non-sublicensable, non-assignable, license to download, install and use the Product (and any third-party technology incorporated into the Product unless expressly stated otherwise) on your computer or mobile device, for the sole purpose of personally using the Product. You may not, and may not permit or aid others to, translate, reverse engineer, decompile, disassemble, update, modify, reproduce, duplicate, copy, distribute or otherwise disseminate all or any part of the Product, or extract source code from the object code of the Product. You will not, under any circumstances, sell, assign, rent, lease, distribute, export, import, or otherwise grant rights to third parties with regard to the Product or any part thereof. In this Agreement the “Product” shall mean the software distributed by GuerrillaTel, including without limitation, the application program interface, the user interface, any features built into the website, and any enclosed documentation provided by GuerrillaTel, as well as updates and upgrades thereof.
Restrictions
2.1 You acknowledge and agree that user ids, passwords, links, and email accounts used to access the Product allow you to submit materials for use in connection with the Product. For materials you post or otherwise provided to GuerrillaTel and related to the Product (a “Submission”), you hereby grant GuerrillaTel irrevocable permission to (1) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, translate and reformat your Submission, each in connection with the Product, and (2) sublicense these rights. GuerrillaTel will not pay you for your Submission. GuerrillaTel may remove your Submission at any time. For each Submission, you represent that you have all the rights necessary for you to make the grants in this section.
2.2 As a condition of your use of the Product, you will not use the Product for any purpose that is unlawful or prohibited by this Agreement. You may not use the Product in any manner that could damage, disable, overburden, or impair the Product or interfere with any other party’s use and enjoyment of it. You may not attempt to gain unauthorized access to any account, computer systems or networks associated with the Product or to otherwise interfere with or disrupt any accounts, computer systems or networks connected to the Product. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Product. You may not use access to the Product to obtain information necessary for you to design, develop or update unauthorized software that you use or provide to others to use to access the Product. You may not charge others to use the Product either directly or indirectly without the express written agreement of GuerrillaTel. Subject to this Agreement, you may use the Product within your commercial organization, but you may not use the Product to advertise or offer to buy or sell any goods or services, or to run a business or commercial entity without the express written agreement of GuerrillaTel. By way of example, and without limitation, you agree that when using the Product, you will not:
• Use the Product in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative, bulk or unsolicited messages (commercial or otherwise).
• Defame abuse, harass, stalk, threaten or otherwise violate the legal rights of others.
• Create a false identity for the purpose of misleading others.
• Publish, transfer, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information.
• Transfer, stream, or otherwise make available, files or other material that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and without limitation, copyright or trademark laws unless you own or control the rights thereto or have received all necessary consents to do the same.
• Use any material or information, including images or photographs, which are made available through the Product in any manner that infringes any copyright, trademark, servicemark, patent, trade secret, or other proprietary right of any party.
• Transfer, stream or otherwise make available, files or other material that contain viruses, Trojan horses, worms, time bombs, cancel bots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or property of another.
• Download any file or other material transferred by another user of the Product that you know, or reasonably should know, cannot be legally distributed in such manner.
• Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the Product or other user or usage information or any portion thereof.
• Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is transferred.
• Remove, overtake, hide or otherwise make the Product inaccessible for other end users.
• Violate any code of conduct or other guidelines which may be applicable to the Product.
• Use any portion of the Product to harvest or otherwise collect information about others, including email addresses.
• Affect the functionality or performance of the Product or services provided by the Product.
GuerrillaTel reserves the right at all times to monitor communications on the Product and disclose any information GuerrillaTel deems necessary to (a) ensure your compliance with this Agreement; (b) satisfy any applicable law, regulation or legal process; or (c) protect the rights, property, and interests of GuerrillaTel, its employees or the public. GuerrillaTel also reserves the right to edit, refuse to transfer or to remove any information or materials, in whole or in part, in GuerrillaTel’s sole discretion.
Intellectual Property Rights
3.1 GuerrillaTel and/or GuerrillaTel’s licensors retain sole and exclusive ownership of all rights, title and interests in any of the Product and all intellectual property rights relating thereto, including without limitation issued trademarks, servicemarks, and patents in addition to any pending trademark, servicemark, and patent applications with respect to any of the Product and the technology related thereto (the “Intellectual Property Rights”). Without derogating from the license granted above, title and related rights in the content stored/ transmitted/ posted/ submitted and/or managed through the Product are the property of the applicable content owner and may be protected by applicable law. This section shall survive termination and expiration of these Terms of Use and shall remain in full force and effect thereafter. Nothing in these Terms of Use intends to transfer any such Intellectual Property Rights to, or to vest any such Intellectual Property Rights in you. You are only entitled to the limited use of the Intellectual Property Rights granted to you in this Agreement. You will not take any action to jeopardize, limit or interfere with the Intellectual Property Rights. You acknowledge and agree that any unauthorized use of the Intellectual Property Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws. You agree that you will not remove, obscure, make illegible or alter any notices or indications of the Intellectual Property Rights and/or GuerrillaTel’s rights thereof, whether such notice or indications are affixed on, contained in or otherwise connected to such materials.
Confidentiality
4.1 By entering into this Agreement you hereby accept and incorporate by reference all terms and a condition of the Privacy Policy at the following link, as may be amended from time to time.
4.2 GuerrillaTel warrants the careful use of your individual personal data. GuerrillaTel will not hand over this data to any third parties not connected to the service of the Product. This is valid as well for advertising or equivalent promotions. However, aggregated customer data and related community metrics may be summarized and shared with affiliated service providers and advertisers without identifying individual users.
Term and Termination
5.1 This Agreement will be effective as of the date on which this Agreement is entered into by clicking on the ACCEPT button as stated above and will remain effective until terminated by either GuerrillaTel or you as set forth below. GuerrillaTel may terminate this Agreement with immediate effect at any time, with or without cause, by providing notice to you and/or by preventing your access to the Product. You may terminate this Agreement with immediate effect at any time, with or without cause provided that you will cease any and all use of the Product and you will remove the Product from any of your systems and delete all copies of the Product in your possession or under your control.
End User Representations and Warranties
6.1 You hereby represent and warrant that you are authorized to enter into this Agreement and comply with its terms. Furthermore, you represent and warrant that you will at any and all times meet with your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Product.
6.2 If you are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this agreement according to age and you are under such a jurisdiction and under such age limit, you may not enter into this Agreement and download, install or use the Product. Furthermore, if you are residing in a jurisdiction where it is forbidden by law to offer or use software for internet telephony, you may not enter into this Agreement and you may not download, install or use the Product. By entering into this Agreement you explicitly declare that you have verified in your own jurisdiction that your use of the Product is allowed.
Indemnification
7.1 You hereby agree to indemnify and hold GuerrillaTel and its officers, directors and employees harmless from any claim or demand, including all related legal fees, made by any third party due to or arising out of your use of the Product, the violation of this Agreement by you, or the infringement by you, or another user of the Product using your computer, mobile device or identity, of any intellectual property or other right of any person or entity.
Disclaimer of Warranties and Limitation of Liability
8.1 GuerrillaTel provides the Product “as is”, “with all faults” and “as available”, and the entire risk as to satisfactory quality, performance, accuracy, and effort is with you. GuerrillaTel, its affiliates, resellers, distributors, service providers and/or suppliers (collectively, the “GuerrillaTel Service Providers”) make no warranties. The GuerrillaTel Service Providers disclaim any and all warranties, express, statutory, and implied, including without limitation (1) warranties of merchantability, fitness for a particular purpose, workmanlike effort, accuracy, title, quiet enjoyment, no encumbrances, no liens, and non-infringement, (2) warranties arising through course of dealing or usage of trade, and (3) warranties that access to or use of the service will be uninterrupted or error-free. There are no warranties that extend beyond the face of this agreement. GuerrillaTel may change the service or the features in any way, and at any time and for any reason.
8.2 In no event shall any of the GuerrillaTel Service Providers be liable for any direct, indirect, consequential, special, incidental, or punitive damages arising out of, based on, or resulting from this agreement or the termination of this Agreement or your use of the Product, including, without limitation, damages for loss of use, data, or profits, with the delay or inability to use the Product, the provision of or failure to provide support services, or for any information, software, products, or services obtained through the Product, or otherwise arising out of the use of the Product, whether based on contract, tort, negligence, strict liability, statutory or regulatory liability, or otherwise, even if GuerrillaTel or any of its suppliers has been advised of the possibility of damages.
8.3 You expressly agree and understand that the Product is not intended to support or carry emergency calls to any type of hospital, law enforcement agency, medical care unit or any other kind of emergency service (“Emergency Services”) and you recognize and agree that GuerrillaTel is not required to offer Emergency Services pursuant to any applicable local and or national rules, regulation or law. You further recognize that GuerrillaTel is not a replacement for your primary telephone service. By agreeing to this Agreement you understand that additional arrangements must be made to access emergency services and you acknowledge and accept your responsibility to purchase, separately from Product, traditional wireless or wireline telephone service that offers access to Emergency Services. GuerrillaTel or the officers, directors, employees, or affiliates are in no way liable for such calls to Emergency Services. Neither GuerrillaTel nor its officers, directors, employees, or affiliates may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to the use of Product to contact emergency services personnel.
8.4 The Product may allow you to interact with third-party web sites and web services (individually, a “Link” or collectively, “Links”). The Links are not under the control of GuerrillaTel and GuerrillaTel is not responsible for the contents of any Links, including without limitation any link contained in a Link, or any changes or updates to a Link.
8.5 GuerrillaTel cannot guarantee that you will always be able to communicate with other Product users, nor can GuerrillaTel guarantee that you can communicate without disruptions, delays or other communication-related flaws. GuerrillaTel will not be liable for any such disruptions, delays or other omissions in any communication experienced when using the Product.
8.6 While the Product may enable you to store/ transmit/ post/ submit and/or manage and allow access to third party content from a computer with an internet connection, GuerrillaTel does not control such third party data (e.g. content, files and information) that may be transmitted/ stored/ posted/ submitted and/or managed through the use of any of the Product. All such data is entirely the responsibility of the person from whom such data originated. GuerrillaTel does not endorse the content of any such third party information or data or the data stored, accessed through the use of the Product, and does not warrant or guarantee that such information or data is free of errors or viruses. GuerrillaTel shall not be responsible for the accuracy, completeness, legality, legitimacy or any other aspect of the data stored/ posted/ transmitted/ submitted through the use of any of the Product, nor to the right to store/ post/ transmit and/or submit such data through the use of the Product. The use of any third party content, information or data is at your sole responsibility and GuerrillaTel explicitly disclaims any responsibility to the use or misuse of any such content.
8.7 You hereby acknowledge and agree that GuerrillaTel and its officers, directors, employees and affiliates will have no liability in connection with or arising from your use of the Product, as set forth below. In no event shall GuerrillaTel or its officers, directors, employees, or affiliates be liable, whether in contract, warranty, tort (including negligence), product liability or any other form of liability, for any indirect, incidental, special or consequential damages (including without limitation any loss of data, interruption, computer failure or pecuniary loss) arising out of the use or inability to use the Product, even if GuerrillaTel or its officers, directors, employees and affiliates have been advised of the possibility of such damages. Your only right or remedy with respect to any problems or dissatisfaction with the Product is to uninstall and cease use of such Product.
8.8 GuerrillaTel, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Product. You acknowledge and agree that GuerrillaTel has no obligation to make available to you any subsequent versions of the Product. You also agree that you may have to enter into a renewed version of this Agreement, in the event you want to download, install or use a new version of the Product. Furthermore, you acknowledge and agree that GuerrillaTel, in its sole discretion, may modify or discontinue or suspend your ability to use any version of the Product, or terminate any license hereunder, at any time, with immediate effect and without recourse to the courts. GuerrillaTel also may suspend or terminate any license hereunder and disable any Product you may already have accessed or installed without prior notice at any time with immediate effect and without recourse to the courts. GuerrillaTel will not accept any liability in relation to the direct or indirect damages caused by the release and/or the absence of release of new versions of the Product and by the suspension or termination of this Agreement by GuerrillaTel and/or by you.
8.9 Always use caution when giving out any personally identifiable information about yourself, your friends, or your family in connection with the Product. GuerrillaTel specifically disclaims any liability with regard to the Product and any actions resulting from your use of the Product. You are responsible for all activities that occur in your Product account. You agree to notify GuerrillaTel immediately of any unauthorized use of your account or breach in security known to you related to the Product.
Miscellaneous
9.1 GuerrillaTel reserves the right to modify this Agreement at any time by publishing the revised Agreement on the Website. Your continued use of the Product shall constitute your acceptance to be bound by the terms and conditions of the revised Agreement. The most recent version of this Agreement can be found on www.GuerrillaTel.com.
9.2 You hereby agree and acknowledge that this Agreement covers all your use of Product, whether it is from this installation or from any other nodes, access devices (mobile or wireline), or terminals where Product has been installed, by you or by third parties. Furthermore, by installing and (continuously) using the Product you agree to be bound by the terms of this Agreement and any new versions hereof. GuerrillaTel is a licensee of intellectual property owned by Everclear Communications Inc.
9.3 GuerrillaTel may, but is not required to, provide you with customer support (“Support”). Unless you have entered into a separate written support agreement with GuerrillaTel with respect to the Product, GuerrillaTel may terminate any Support it provides at any time in its sole discretion. Any third-party software that uses the Product is not supported by GuerrillaTel and you should contact the provider of such software for support, if any.
9.4 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between you and GuerrillaTel with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
9.5 Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.
9.6 No waiver. The failure of GuerrillaTel at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by GuerrillaTel.
9.7 You are not allowed to assign this Agreement or any rights hereunder. GuerrillaTel is allowed to at its sole discretion assign this Agreement or any rights hereunder to any without giving prior notice.
9.8 This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada therein without giving effect to the conflict of laws or your actual province, state or country of residence. Any legal proceedings arising out of or relating to this Agreement will be subject to the exclusive jurisdiction of the courts of the Province of Ontario, Canada.
9.9 The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall prevail.
9.10 You consent to GuerrillaTel providing you any information regarding the Product in electronic form. GuerrillaTel may provide such information to you via email at the email address you specified when you registered for the use of the Product, via a message left in your account, by instant message to your mobile device, or by access to the Web Site. As long as you access and use the Product, you will have the necessary software and hardware to receive such notices. You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law. If you do not consent to receive any notices electronically, you must discontinue your use of the Product.
PAYMENT, RATES AND ACCOUNTS
Payment
In order to use GuerrillaTel paid services, you must purchase credits for your GuerrillaTel Account. GuerrillaTel shall debit your Account based on its current rates. GuerrillaTel will maintain these rates on its Web Site. Payments are either made manually by you or through the automatic recharge function activated by you. The automatic recharge function means that when your Account balance is below a threshold level, you will be notified by e-mail, instant message or text message and/or your Account will be automatically recharged with a pre-selected and pre-authorized amount (if offered as a service and accepted by you).
VAT
Unless stated otherwise, all rates and charges shall be stated in US dollars and shall be exclusive of value added taxes (VAT) or any other applicable taxes.
Rates
The rates for the GuerrillaTel Services are published on its Web Site. GuerrillaTel reserves the right to change the rates at any time without notice. If you do not wish to accept such adjustment of rates, you are entitled to terminate the Account with effect from the date on which the adjustment of rates becomes effective. You agree that by continuing to use the GuerrillaTel Services, following the adjustments of the rates, you accept such adjustments.
Roaming Charges
You will also pay any additional charges you incur if you connect to the GuerrillaTel Services through a mobile device while you are in a jurisdiction that is not the jurisdiction associated with your fixed net or mobile phone Provider (“Roaming Charges”). Roaming Charges are charged in addition to any charges you may incur when connecting to the GuerrillaTel Services from another country. Your carrier is charging you these roaming charges not GuerrillaTel.
Promotions
Any promotional bonuses awarded are non-refundable. Promotional bonuses will expire up to 6 months from issue date, unless otherwise specified.
Refunds
All payments made to GuerrillaTel are non-refundable. No refunds shall be given for any reason whatsoever.
Account and Receipt
GuerrillaTel may provide account history under the Account section on its Web Site that includes information about your Account activity, payments and calling history during a limited period, which may change from time to time. GuerrillaTel may also provide an e-mail receipt upon pre-payment for the GuerrillaTel Services. The Account History is the only statement of your Account that GuerrillaTel will provide to you. IT IS YOUR RESPONSIBILITY TO PRINT OR SAVE A COPY OF YOUR CALL RECORDS AND YOUR RECEIPT AND TO RETAIN COPIES FOR YOUR RECORDS. GuerrillaTel will use commercially reasonable efforts to correct any technical failures relating to the Account History within a reasonable time. However, your inability to view the Account History does not extend, or relieve you of, your obligation to pay any amounts owing to GuerrillaTel.
Accounting Errors
In the event you believe that GuerrillaTel has charged you in error, you must contact GuerrillaTel customer services via our online web form within 30 days of such a charge. No refunds will be given for any charges which are more than 30 days old.
Expiration of Credits
A credit balance in your GuerrillaTel Account expires 12 months after the last chargeable use of GuerrillaTel Services. Credit balances that are not used within the said 12 month period will be lost.
Affiliates
GuerrillaTel reserves the right to terminate or adjust its affiliate program and revenue share at any time without prior notice. Only authorized affiliates (individually, an “Affiliate”) are allowed to direct potential GuerrillaTel customers to sign-up and register for GuerrillaTel Products pursuant to the terms and conditions of each Affiliate agreement.
Revenue earned by Affiliates will automatically be transferred to their bank account at least once a fiscal quarter when the amount is above $250.
Resellers
GuerrillaTel reserves the right to terminate or adjust its reseller program and revenue share at any time without prior notice. Only authorized resellers (individually, a “Reseller”) are allowed to represent, sell and service of GuerrillaTel Products to qualified GuerrillaTel enterprise customers pursuant to the terms and conditions of each Reseller agreement.
Revenue earned by Resellers will automatically be transferred to their bank account at least once a fiscal quarter when the amount is above $250.
Not-for-Profit
GuerrillaTel reserves the right to terminate or adjust its not-for-profit fundraising program and revenue share at any time without prior notice. This program is designed to support student and community-based organizations and will only be available on a case-by-case basis at the sole discretion of GuerrillaTel. Only authorized not-for-profit enterprises (individually, a “Not-for-Profit”), such as student and community groups, are allowed to direct potential GuerrillaTel customers to sign-up and register for GuerrillaTel Products pursuant to the terms and conditions of each Not-for-Profit agreement. In the absence of a separate agreement, a Not-for-Profit will be entitled to 5% of their group members purchases from GuerrillaTel annually or until such time as each group member quits the group or chooses to re-direct any Not-for-Profit fundraising proceeds towards a different group (whichever comes first).
Group representatives warrant to GuerrillaTel that you have the right to provide GuerrillaTel with a list of the names of your group members. Additionally, you warrant to GuerrillaTel that, should you choose to provide GuerrillaTel with the email addresses of your members, you have the right to do so.
Group representatives hereby grant to GuerrillaTel a non-exclusive, non-transferable license during the term of this Agreement to use, copy and publicly display on the GuerrillaTel Web Site any logos or trademarked materials you specifically provide for your group to GuerrillaTel for use in providing the group Not-for-Profit service.
By registering to be a member a group, individual users consent to have your name and your email address be accessible by the official representative of your group, and to be identified as such a group member in your account and the GuerrillaTel report to your Not-for-Profit. If you do not wish to give such consent, please do not register.
Acknowledgement and Acceptance
You acknowledge and agree that by clicking on the ACCEPT button or similar buttons or links as may be designated by GuerrillaTel to show your reading, understanding and approval of any foregoing text and/or to download and install the Product, you are entering into a legally binding contract.