TERMS OF SERVICE
This agreement is between Invoca, Inc. ("Invoca") and a user of any
service offered by Invoca ("Customer"), whether visiting or browsing
Invoca’s corporate website
(http://www.invoca.com) or contributing
content, information or other materials through the Services (as defined
below) and governs the legally binding terms and conditions of Customer’s use
of the Services. The Services are provided to
Customer under these terms and any other operating rules and/or policies that
Invoca may publish from time to time (collectively, the "Agreement").
Customer and Invoca are each a "Party" and together "Parties" to
this Agreement. This Agreement constitutes the entire agreement between the
and supersedes all prior agreements between the Parties regarding the subject
matter contained herein, unless Customer has executed a Master Services
Agreement with Invoca, in which case the terms of the Master Services
Agreement shall prevail.
In consideration of the foregoing, the mutual covenants set forth in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by the Parties, the Parties agree as
I. INVOCA SERVICES; LICENSE GRANT.
- Invoca Services.
Invoca owns and operates a proprietary
marketing technology platform (the "Technology")
and offers various types of access to and support for the Technology (the
- License Grant.
Subject to and in accordance with the
terms and conditions of this Agreement, Invoca hereby grants Customer a
non-exclusive, limited right to use the Services solely for Customer’s own
business purposes. Invoca reserves
the right to refuse the Services to anyone at any time in its sole
Invoca reserves the right to discontinue any or all of Customer’s use of the
Services immediately, without prior notice or liability.
- Acceptance of Terms.
By using the Services, Customer confirms
its acceptance and agrees to be bound by this Agreement. If Customer does
not agree to the terms
of this Agreement, Customer should not use the Services. Invoca reserves the
right to modify or
replace the terms of this Agreement by posting the updated terms on its
continued use of the Services
after such updates are posted will constitute acceptance of such changes.
When using the Services, Customer may be subject to other posted guidelines,
rules or licenses applicable to such Services. Such guidelines, rules or
licenses may contain terms and conditions to which Customer is bound in
addition to those described in this Agreement. Such additional terms are
incorporated into this Agreement by reference.
II. REPRESENTATIONS & WARRANTIES; PROHIBITED USES.
- Mutual Representations.
Each Party to this Agreement represents and warrants to the other that:
(1) such Party has the necessary right, power and authority to enter into
perform this Agreement and that this Agreement’s execution has been duly
authorized by all necessary corporate action; (2) the individual completing
this Agreement has the authority to bind the represented Party to this
Agreement; and (3) this Agreement constitutes a valid and binding obligation
each Party, enforceable in accordance with its terms.
- Invoca Representations.
Invoca shall provide to Customer access to the Services, as subscribed
to by Customer. Invoca will use commercially reasonable efforts to make the
Services available 24 hours a day, 7 days a week, except for: (a) planned
downtime which will be
communicated to Customer through notices in Customer’s Services platform or
any unavailability caused by circumstances beyond Invoca’s reasonable
for which Invoca shall not be held accountable, including without
acts of God, acts of government, flood, fire, earthquakes, civil unrest,
of terror, strikes or other labor problems (other than those involving
employees), Internet service provider failures or delays or other failures
Invoca’s vendors. Invoca will
provide the Services in accordance with applicable laws and government
- Customer Representations.
Customer represents and warrants that (a) all of the information
provided by Customer to Invoca to use the Services is correct and current;
Customer is legally authorized to use Invoca’s Services for the purposes of
this Agreement; (c) Customer has complied and will continue to comply with
applicable laws, statutes, ordinances and regulations in its performance of
acts under this Agreement; and (d) neither the execution nor the delivery of
this Agreement would constitute a default or violation of Customer’s
of incorporation, bylaws or any other license, lease, franchise, mortgage,
instrument or other agreement. Customer further represents and warrants that
all ads and any material displayed through its use of the Services and that
Customer’s use of the Services itself: (i) comply with all applicable laws,
statutes, ordinances and regulations; (ii) do not breach and have not
any duty toward or rights of any person or entity, including, without
limitation, rights of intellectual property, publicity, or privacy, or
or duties under consumer protection, product liability, tort, or contract
theories; and (iii) are not pornographic, hate-related, violent or otherwise
objectionable in content, as determined by Invoca in its sole discretion. In
the event that Customer desires to utilize Invoca’s
call recording functionality, Customer represents to have all necessary
approvals in place, whether a "one party" or "two party" state.
- Prohibited Uses.
Customer shall not use the Technology
or the Services in any way other than as allowed by this Agreement.
may not use the Technology or the Services, or allow any third party to
Technology or the Services, for any illegal or fraudulent purpose, in
manner that disrupts the Services for other clients or as a whole, or if
Customer is a competitor of Invoca. Customer agrees to transfer calls
only to legitimate and intended
recipients and/or destinations. Customer is responsible for all activity
occurring under Customer’s accounts, including any unauthorized use of
Customer’s account by a third party, and shall comply with all
laws and regulations in connection with Customer’s use of the Services,
including but not limited to laws related to data privacy, international
communications, the transmission of technical or personal data and
control laws and regulations. Invoca reserves the right to refuse
any customer or prospect in Invoca’s sole discretion.
Customer shall not attempt to, nor
allow any third party to attempt to (i) license, sublicense, sell,
transfer, assign, distribute or otherwise commercially exploit or make
available to any third party the Services in any way; (ii) modify, copy,
decompile, disassemble, make derivative works of or otherwise reverse
the Technology or the Services; (iii) access the Services in order to
competitive product or service; (iv) interfere with or disrupt the
performance of the Services or the data contained therein; (v) attempt
unauthorized access to the Services or its related systems or networks;
permit a third party to access the Services except as permitted herein.
Additionally, Customer shall not take
any action that results or may result (as determined by Invoca in its
discretion) in an unreasonable or disproportionally large load on
infrastructure or constitutes, in Invoca’s sole discretion, unsolicited
unauthorized advertising or promotional material or any junk mail or
Customer shall not use the Services
to direct calls to 911 emergency services. Further, CUSTOMER
ACKNOWLEDGES THAT EMERGENCY SERVICES CANNOT BE ACCESSED BY ORIGINATING
CALLS TO 911 USING THE SERVICES.
Any material breach of this Section
by Customer may result in the termination of this Agreement and the
Invoca without notice. Invoca’s
failure to actively terminate Customer’s account following any violation
this Agreement shall not constitute a waiver of Invoca’s right to
this Agreement and the Services and shall not prevent Invoca from
Customer’s account at any point for past and/or current Agreement
III. PRICING; FEES; PAYMENT; NONPAYMENT.
Invoca or its partners will charge fees in accordance with the terms of
either (i) a separate agreement, including but not limited to any agreements
between Parties regarding campaign payouts or (ii) the registration process
completed by Customer. Unless otherwise stated, all fees are quoted in U.S. dollars.
Customer is responsible for paying all fees associated with using the Services and
all applicable taxes. Customer acknowledges that Invoca may terminate services
at its discretion for lack of payment by Customer in accordance with the terms
of any applicable agreement.
IV. TERM; TERMINATION.
The Services are offered on an
open-ended basis for a term that begins on the date Customer’s Services are
activated and you accept this Agreement (the "Effective Date") This
Agreement shall be perpetually in effect
without further action by Customer or by Invoca unless (i) Invoca terminates
the provision of Services to Customer or (ii) Customer provides written
of termination at least thirty (30) days prior to the intended date of
termination. If Customer terminates the Services, Customer acknowledges that
Customer is responsible for all charges incurred subsequent to termination
that all such fees will become immediately due and payable. Termination of
the Services does not
excuse Customer from paying all unpaid, accrued charges.
V. OWNERSHIP RIGHTS
The Technology shall remain the
exclusive property of Invoca and shall not be used in any way other than as
allowed by this Agreement. Customer acknowledges that all rights, title and
interest (including patent, copyright, trade secret rights, trademarks and all
other intellectual property rights with respect to the Technology) are and
at all times be and remain the property of Invoca, even if suggestions or
feedback from Customer are incorporated into subsequent versions of the Invoca
platform. Customer shall have ownership over the data, information or material
generated in whole or part by the Technology and/or the Services in the course
of Customer using the Services ("Customer
Data"); provided, however, that Invoca may access and/or use Customer Data
to respond to service or technical problems and also access and/or use
Data to optimize the Services.. Customer, not Invoca, shall have sole
for the accuracy,
quality, integrity, legality of and intellectual property ownership or right
use all Customer Data. Customer must immediately notify Invoca in writing of
unauthorized use of Customer’s account or of other account-related security
breaches. Invoca shall not be responsible or liable for the deletion,
correction, destruction, damage or loss of Customer Data not caused by Invoca.
All rights not expressly granted to Customer in this
Agreement are reserved by Invoca.
Customer will defend, indemnify and
hold harmless Invoca, its parents and affiliates and its respective
directors, shareholders, members, employees, agents, representatives and
successors and assigns ("Indemnitees")
against any claims, losses, actions, liabilities, damages and expenses
out of or relating to, directly or indirectly, Customer’s breach of this
Emergency Services Indemnification.
Neither Invoca nor any of its
Indemnitees are or will be liable to any extent or in any manner whatsoever
the inability of persons to access emergency services by originating a call
911 using the Technology or the Services. Notwithstanding anything to the
contrary in this Agreement, Customer agrees to defend, indemnify and hold
harmless Invoca and it’s Indemnitees from and against any and all losses,
claims, liabilities, expenses (including but not limited to attorney’s
penalties, fines, death, injury to persons or damage to tangible property
arising by virtue of or relating to the absence of 911 emergency services
and/or the inability of Customer or any third person or party to be able to
dial 911 using the Services.
VII. ACKNOWLEDGEMENT OF PLATFORM STATUS; DISCLAIMERS; LIMITATION OF
Acknowledgement of Platform Status.
Consistent with typical usage of
third-party software applications, Customer acknowledges that the Technology
consistently being revised and updated and occasionally may contain defects
deficiencies which cannot or may not be corrected.
INVOCA MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO ANY MATTER
TO THIS AGREEMENT OR REGARDING THE USE OR PERFORMANCE OF THE TECHNOLOGY,
INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND
FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES OF
AND WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE OR A COURSE OF
DEALINGS BETWEEN THE PARTIES. FURTHER, INVOCA MAKES NO REPRESENTATIONS THAT
SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE. Invoca
makes no guarantee regarding the performance, including the economic
performance, of Customer’s media on the Services. Invoca reserves the right,
discretion, to limit the number of phone numbers made available under the
of this Agreement and the right to withdraw phone numbers from the Services
Invoca determines that a number is receiving insufficient or illegitimate
Customer acknowledges that Invoca’s policies and practices with regard to
recapturing and repurposing telephone numbers may change from time-to-time
Invoca’s discretion. Invoca bears no responsibility for communications
by Customer from third persons while using the Services or any use of any
person’s telecommunications services, including, but not limited to,
telecommunication services in connection with its use of the Services.
Limitation of Liability.
CUSTOMER ACCEPTS THE INVOCA
TECHNOLOGY IN "AS IS" CONDITION, AND INVOCA SHALL NOT BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT
CUSTOMER’S USE OF, OR INABILITY TO USE, ANY SERVICE, DOCUMENTATION,
INSTRUCTIONS, CALL RECORDINGS, TECHNICAL SPECIFICATIONS AND/OR LINKS
BY INVOCA, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE
AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT
LIMITING THE FOREGOING, INVOCA’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER FOR
CLAIM RELATED IN ANY WAY TO THIS AGREEMENT OR ANY ORDER FORM, UNDER ANY
CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER THEORY, REGARDLESS OF
DAMAGES ARE CHARACTERIZED, WILL BE LIMITED TO THE LESSER OF (i) THE TOTAL
AMOUNT PAID BY CUSTOMER TO INVOCA IN THE THREE (3) MONTHS PRIOR TO THE
OCCURRENCE OF SUCH CLAIM OR (ii) $500.00. TO THE EXTENT PERMITTED BY LAW,
SHALL NOT COMMENCE ANY ACTION, SUIT OR PROCEEDING AGAINST INVOCA MORE THAN
(1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. Each Party acknowledges
that the other
Party has entered into this Agreement relying on the limitations of
stated herein and that those limitations are an essential basis of the
between the Parties.
Customer may not assign this Agreement
to any third party without Invoca’s prior written consent, which consent
not be unreasonably withheld. In the event of assignment under this Section
which Customer’s assignee is not able to meet the economic obligations of
Agreement, Customer agrees that Customer will be responsible for such
obligations regardless of any assignment of its obligations. Any purported
assignment in violation of this Agreement shall be void. This Agreement and
each and all of the
provisions hereof bind and benefit the Parties and their respective heirs,
executors, administrators, legal representatives, successors and assigns.
The relationship between the Parties
created by this Agreement is that of independent contractors. Nothing
in this Agreement shall be construed to create any joint venture,
agency or fiduciary relationship or obligation between the Parties.
Notwithstanding the above, and without
limiting any other remedies available under this Agreement, law or equity,
Parties may seek immediate injunctive relief for any violation of Section
(PROHIBITED USES) of this Agreement.
In the event of a dispute arising under
the terms of this Agreement, the disputing Party must send written notice of
such dispute to the other Party. The Parties agree to use good faith to
resolve the dispute within thirty
(30) days from the date of receipt of such written notice. In the event the
Parties cannot successfully resolve the dispute within the thirty (30) days,
the Parties agree that such dispute shall be resolved through an arbitrator
under the rules of the American Arbitration Association before a single
arbitrator in Santa Barbara, California. The decision of the arbitrator
be final and binding on the Parties.
CUSTOMER ACKNOWLEDGES THAT, BY CONSENTING TO THIS AGREEMENT, CUSTOMER IS
CONSENTING TO BINDING ARBITRATION OF ALL DISPUTES HEREUNDER, AND, IN
ARBITRATION, CUSTOMER SHALL NOT HAVE A RIGHT TO A JURY TRIAL, SHALL HAVE
LIMITED DISCOVERY RIGHTS AND SHALL HAVE VERY LIMITED RIGHTS OF APPEAL.
This Agreement shall be governed by
California law and controlling United States federal law, without regard to
choice or conflicts of law provisions of any jurisdiction. Any disputes,
actions, claims, or causes of action arising out of or in connection with
Agreement or the Services shall be subject to the exclusive jurisdiction of
state and federal courts located in Santa Barbara, California.
All notices from Customer to Invoca
may be made by
Invoca may give notice to Customer by sending an email to the email address
found in Customer’s profile. Notice
is effective upon receipt, and notices received after 5 p.m. PST will be
effective on the next business day. Either Party may change its address by
timely written notice of the new address to the other Party pursuant to this
Section and identifying in such notice the date on which such changes are
All taxes and charges of any kind
imposed by any national, federal, state, or local government concerning the
products, services, or other items covered by this Agreement, or their sale
use, shall be collected and paid by Customer, exclusive of franchise taxes
taxes based on Invoca's income, which shall be paid by Invoca. The
of this section shall survive the expiration or earlier termination of this
No waiver of any term, provision or
condition of this Agreement, the breach or default thereof, by conduct or
otherwise, in one or more instances shall be deemed to be either a
waiver or a waiver of a subsequent breach or default of any such term,
provision or condition of this Agreement.
If any part of this Agreement shall be
determined to be invalid or unenforceable by a court of competent
or by any other legal body having jurisdiction to make such determination,
remainder of the Agreement shall remain in full force and effect. The
section headings and subheadings in
this Agreement are for reference purposes only and shall not in any way
the construction, meaning or interpretation of this Agreement.
Publication and Announcements.
Customer agrees that Invoca may use
Customer’s name and logo in presentations, marketing materials, advertiser
lists, financial reports and other website listings. Customer may not use
Invoca’s intellectual property without Invoca’s prior written consent.
Survival of Certain Provisions.
The following will survive any
expiration or termination of this Agreement for any reason: (i) any accrued
rights to payment; (ii) any remedies; (iii) Sections I through VIII
(including all subsections); (iv)
all provisions governing the enforcement and interpretation of surviving
provisions; and (v) any other provision expressly stating that it survives
termination of the Agreement.
Entire Agreement and Interpretation.
Unless Customer has an executed Master
Services Agreement with Invoca, this Agreement constitutes the entire
between the Parties relating to this subject matter and supersedes all prior
current oral or written agreements concerning such subject matter, excluding
any agreements incorporated herein by reference or attachment. No
modification, variation or amendment
of this Agreement shall be effective unless made in writing and signed by
Parties. Section headings in this
Agreement are only for convenience and shall not be used in the construction
Last Updated: October 1, 2014