“Account” means the numbered account established by Aircall and associated with Customer and the Services provided to Customer under this Agreement.
“Account Information” means business contact information associated with the Account; usage records of the Services; configuration data; and Customer’s call logs generated by Aircall.
“Administrator” means the person(s) within Customer’s organization recognized by Aircall’s systems as being vested with specific rights regarding the Services, who is (are) responsible for the administration and management of Customer’s Accounts and has (have) access to specific functionalities attached thereto.
“Aircall Number” means the phone number provided to Customer by Aircall.
“Affiliate” means any entity existing from time to time that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
“Aircall Dashboard” means the online portal through which the Administrator(s) controls settings, may select Customer’s Plan and monitors usage of the Account(s).
“Confidential Information” means any proprietary and/or confidential information disclosed, in the course of and during the Term of the Agreement, by one Party (the “Disclosing Party”) to another Party (the “Receiving Party”).
“Customer” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company, corporation, governmental organization, or other legal entity, the company, corporation, governmental organization, or other legal entity on behalf of which such individual is accepting this Agreement, as well as any Affiliates of such company, corporation, governmental organization, or other legal entity which have entered into Purchases and/or Order Form(s).
“Customer Data” means the data contained in Customer’s calls, facsimiles, messages, text messages, voicemails, voice recordings, shared files, conferences, call meta-data, configuration data, or other Customer communications transmitted or stored through the Services.
“Effective Date” means the date on which Customer first subscribes to any of the Services or the date the Customer executes an Order Form.
“Fees” means, collectively, Fixed Fees, Usage Fees (as defined below) and any and all other applicable charges and fees. Fees may be indicated in USD, Euros, GBP, or AUD, or other currencies, as may be updated by Aircall in its sole discretion from time to time.
“Include” and “Including” means including without limitation.
“Intellectual Property” means all intellectual property and technology, regardless of form, including (a) published and unpublished works of authorship; (b) inventions and discoveries, including business methods, compositions of matter, methods, and processes and new uses for any of the preceding items; (c) words, names, symbols, devices, designs, and other designations, and combinations of the preceding items, used to identify or distinguish a business, good, group, product, or service or to indicate a form of certification; (d) information that is not generally known or readily ascertainable through proper means, whether tangible or intangible; and (e) computer programs, operating systems, applications, firmware and other code, including all source code, object code, application programming interfaces, data files, databases, protocols, specifications, and other documentation thereof.
“Law(s)”, “Applicable Laws” means any and all law, statute, regulation, rule, ordinance, administrative guidance, treaty, convention, and/or court or administrative order or ruling of any governing body with jurisdiction over the Services, the Customer and/or Customer’s use of the Services.
“Order Form” means the document that may be entered between Customer and Aircall, from time to time, to set forth certain fees, the selected Plan, the Plan Initial Term (as defined below) and other material terms associated with this Agreement and executed by Customer.
“Plan” means, any of the subscription plans for the provision of Services made available to Customer whose features and applicable Fees, if any, are listed on the Site and that Customer may select either via a Purchase or by executing an Order Form, including any Aircall Numbers, as applicable. For the avoidance of doubt the Free Trial (as defined below) shall be deemed a Plan.
“Personal Data” means information that relates to an identified or identifiable individual or household.
“Plan Term” means collectively, the Plan Initial Term and the Renewal Term (as defined below).
“Process” or “Processing” means any operation or set of operations which is performed on Personal Data, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction of Personal Data.
“Purchase” means an order for certain Aircall’s Services, including Plans and Aircall Numbers, which is placed through the Aircall Dashboard or the Site.
“Services” means any and all of the services provided under this Agreement and/or made available to Customer by Aircall from time to time pursuant to a Purchase or Order Form.
“Services Start Date” means the date Services are made available to Customer pursuant to an Order Form.
“Site” means the Aircall.io website.
“User” means an employee, consultant, contractor or any person using or accessing the Services or Site via Customer’s Account.
2. Description of the Aircall Services
Aircall offers a cloud-based calling system that includes enterprise-class call handling and that integrates with a growing list of third-party applications not affiliated with Aircall (the “Integrations”). A non-exhaustive description of the Aircall calling system is available on the Site. Selected numbers and/or certain services may not be reachable through the Services. Customer acknowledges and agrees that the Services do not support premium, surcharged or special services of any kind, which may need to be obtained from a local telephone service provider. Aircall provides 911 service in the United States as described in its 911 Notice. Customer agrees to provide current Registered Location information for all Users and to update Registered Location information when a User’s location changes. Customer agrees to notify all Users of the limitations of 911 service described in the 911 Notice.
3. Quality, Maintenance and Accessibility
3.1 General Terms. Aircall may be required to suspend access and/or use of Services and/or the Site to enable maintenance, improvements, upgrading operations of the Services and/or Site, including in the event of an emergency. Aircall will endeavor to provide advance notice to Customer where practicable and carry out such maintenance, where possible, outside of regular business hours. The Services are designed to be available with minimal disruptions outside of regularly scheduled maintenance times. Aircall may modify, enhance and/or replace features of the Services from time to time, with or without notice or posting to the Site, provided it shall not materially reduce the key functions, features and/or the security of the Services during the Term (as defined below) without obtaining Customer’s written pre-approval except Customer’s written pre-approval shall not be required in the event such modifications, enhancements or replacements are mandated by applicable Law.
3.2 Equipment Requirements. Customer acknowledges and agrees that the standard functioning of the Services is dependent on Customer maintaining adequate access to the Internet, the availability of an adequate power supply and the use of correct equipment configuration. Customer also acknowledges and agrees that a number of factors outside of Aircall’s control may impact the quality of Customer’s communications and the access and/use of the Services including Customer’s local network, public Internet lines, the public switched telephone network, Customer’s Internet service provider and/or local network hardware. Aircall takes no responsibility and shall not be liable for any disruption, interruption or delay caused by any failure in any of these items or any other item over which Aircall has no control.
3.3 Accessibility. Customer, Users and/or Administrators (or Aircall at Customer’s request) will choose a unique password and user name (collectively, “Login Details”) for each User or Administrator. Customer acknowledges and agrees that Customer is prohibited from sharing Login Details with any third party. Customer will be responsible for the confidentiality and use of the Login Details. Customer will also be responsible for all electronic communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind entered electronically through the Services. Any and all electronic communications transmitted via Customer’s Account will be deemed to have been sent by Customer. Aircall may terminate any of the Services and/or this Agreement if it believes in its sole discretion that Customer has breached its obligations contained in this Section
3.4. Aircall is not responsible for any breach of security caused by Customer’s failure to maintain the confidentiality and security of any of the Login Details. Customer agrees to notify Aircall immediately in the event of loss, theft or disclosure of any or all of the Login Details, if Customer believes the confidentiality or security of any or all of the Login Details has been compromised in any way or in the event of Customer learning about a possible or actual unauthorized access to and/or use of the Site and/or the Services. To the extent permissible by Law, Customer shall be liable for any and all expenses, damages, losses and costs, including reporting costs, notice costs, recovery and remediation of data security system issues, usage charges and fines, fees, civil judgments, and reasonable attorneys’ fees resulting from Customer’s failure to safeguard Customer’s Login Details and information and data as set forth herein.
4. Intellectual Property
4.1 Limited License. Subject to, and conditional upon Customer’s continued and full compliance with all of the terms and conditions in this Agreement, Aircall grants to Customer and its Users and Administrators, during the Term, a revocable, nontransferable, nonexclusive, limited license and right to access and use the Services and the Site solely for its internal business purposes.
4.2 Restrictions. Customer shall not and shall cause its Users and Administrators not to: (i) sublicense, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit or make the Services, or any part thereof, available to any third party other than to Users and/or Administrators; and (ii) modify, make derivative works of, disassemble, reverse compile, or reverse engineer the Services or any part thereof, and shall not build a similar or competitive product or service. Customer shall not and shall cause its Users and Administrators not to use the call recording functionality in the event credit card, debit card or other payment information is made available to Customer, User, and/or Administrator during a call.
4.3 Aircall Ownership. Customer acknowledges and agrees that: (i) Aircall and its Affiliates own all rights, titles and interests in and to all Intellectual Property rights in the Services and in the Site as well as any content thereof or therein; (ii) the limited license granted to Customer in Section 4.1 does not convey any rights in the Services express or implied, other than those expressly granted herein. All rights not expressly granted to Customer are reserved by Aircall and its licensors. The Services may contain open source software or code and Customer acknowledges that misuse of the Services may infringe upon third-party’s IP rights.
4.4 Customer Data. Customer grants Aircall and its Affiliates a limited, personal, non-exclusive, royalty-free license to use, copy, transmit, distribute and store the Customer Data to the extent necessary or desirable for Aircall to provide Customer with the Services and improve the Services. Aircall shall only disclose or provide the Customer Data to parties who need to access it in order for Aircall to provide the Services in accordance with this Agreement. Customer also hereby grants Aircall the right to use and reproduce Customer’s name, logo and trademarks to identify Customer as an Aircall customer on the Site and other marketing materials. Customer may decide in its sole discretion to integrate the Services with the Integrations. Such Integrations are not Aircall products, and all use of Integrations is solely between Customer and the applicable third party. If an Integration is enabled from Customers’ Aircall workspace Customer should be mindful of any Customer Data and/or Customer Confidential Information that will be shared with the third party provider and the purposes for which the provider requires access. Customer warrants and represents that that it has obtained all necessary consents and licenses to transfer Customer Data from the Services to the Integrations and/or from the Integrations to the Services and that it shall be solely responsible for the processing and use of such data by the Integrations in accordance with applicable laws. Aircall will not be responsible for any use, disclosure, modification or deletion of Customer Data and/or Customer Confidential Information that is transmitted to, or accessed by, an Integration.
4.5 Feedback. Aircall may ask for or collect and/or Customer may provide, written suggestions, feedback or comments from time to time as part of Customer’s, Users’, and/or Administrators’ use of the Services (collectively, “Feedback”). Customer acknowledges and agrees that such Feedback shall be deemed the property of Aircall and its Affiliates. Aircall and its Affiliates shall exclusively own all now known or hereafter existing rights to the Feedback throughout the universe in perpetuity and shall be entitled to use the Feedback for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Feedback.
5. Permissible Use Policy
Any and all access to and/or use of the Services by Customer, its Users and/or Administrators is conditioned upon compliance with the following Permissible Use Policy (“PUP”). Customer shall not and will cause its Users and Administrators not to use the Aircall Services to: a) circumvent or disable any technological features or security measures implemented in the Services; b) violate any Law, published policy, or any applicable third-party policy or requirement communicated or otherwise made available by Aircall; c) violate or infringe upon Aircall’s or a third party’s Intellectual Property, publicity privacy, or other tangible or intangible rights and/or use, without a valid license, any material or content that is subject to third-party proprietary rights; d) transmit any illegal content; e) use the Services for benchmarking or for any other purpose other than as necessary to use the Services Customer is authorized to use; f) stalk, harass, harm another individual, engage in spamming, phishing, pharming or other unsolicited advertising, marketing or other activities in connection with any unsolicited communications (commercial or otherwise) including unsolicited or unwanted phone calls or voicemails; g) engage in a fraudulent activity to the prejudice of third-parties or otherwise use the Services to bypass phone identification systems; h) perform “robocalls” or abusive practices, including enabling bulk call-in lines, auto-dialing or “predictive” dialing; i) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage, emulate or disassemble the Services; j) expose any third party to material that is offensive, harmful to minors, indecent or otherwise objectionable in any way, regardless of whether such activity is lawfully permitted; k) send any communications, including email messages on behalf of, or purporting to originate on behalf of Aircall; and l) trunk or forward Customer’s Aircall number to another phone number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (“PBX”) or a key system.
In addition to the above restrictions and in order to provide the best pricing, support and Services, Aircall reserves the right to: (i) impose limits on Customer and/or its Users’ and Administrators’ usage of the Services; (ii) charge Customer the applicable per minute rate; (iii) or to terminate the Services, in each case (i) through (iii) notwithstanding Customer’s purchase of an unlimited minute plan, if Aircall believes, in its sole reasonable discretion, that Customer’s and/or its Users’ and/or Administrators’ usage, including the total number of calls made and/or minutes used by Customer and/or its Users and/or Administrators, is not consistent with normal, fair, and reasonable use of such Services. Wherever reasonably possible, Aircall will provide Customer with a written notice before taking any such action, and may allow a reasonable period to allow Customer to modify such use.
The restrictions contained in this Section 5 are not exhaustive or exclusive. Aircall may impose additional restrictions upon notice or posting to the Site from time to time. Aircall may suspend or terminate the Services and/or this Agreement in accordance with Section 13.2 if, in Aircall’s sole discretion, Customer’s, its Users’ and/or Administrator’s use of the Services violates the terms of the PUP. Notwithstanding anything set forth in this Agreement and in addition thereto, Customer’s use of the call recording functionality must comply with any and all local laws and regulations including local notice requirements thereof.
6. Aircall Numbers
6.1 Usage Rules. As part of the Services, Aircall may make available Aircall Numbers to Customer in multiple countries. Aircall has agreements in place with regulated providers of electronic communications which provide Aircall with phone numbers from multiple countries. The provision of Aircall Numbers is subject to the numbering rules and regulatory practices applicable in the countries where Customer, Users and/or Administrators are located as well as in the relevant country(ies) from which the Aircall Numbers were purchased. Such rules and regulatory practices may change or be amended from time to time, and Aircall therefore reserves the right to modify the terms hereunder to the extent necessary to comply with such changes or amendments. Customer may purchase Aircall Numbers and assign them to an Account subject to the allocation requirements displayed upon Customer’s subscription to any Services. Customer shall use the Aircall Numbers in compliance with any and all applicable Law including such applicable allocation requirements. Aircall reserves the right, in its sole discretion, to cancel the subscribed Aircall Numbers for any or no reason, including in the event Customer, its Administrators and/or Users breach such applicable allocation requirements without penalty and without prejudice to its rights to claim damages therefore.
6.2 Portability. In using the Services, Customer may request an Aircall Number or may port its existing numbers (“Existing Number”) into Customer’s Account subject to the terms and conditions herein. In order to request the porting of an Existing Number into an Account, the Account Administrator for the Account into which Customer wishes the Existing Number to be ported must complete all steps listed on the Site and provide all information requested by Aircall, any other relevant service provider and/or third party from time to time. Customer must provide accurate and detailed information to Aircall, any other relevant service provider, and/or third party in order to port a number into an Account and Customer represents and warrants that such information is and will be at all times accurate, true and up-to-date. Customer acknowledges and agrees that as part of the porting process, Aircall, any other relevant service provider and/or third party must, as part of its compliance with applicable Laws and industry standards, follow certain processes and that therefore the completion of any number porting request may be delayed for reasons outside of Aircall’s control. Aircall must, by Law, comply with all valid porting requests. Phone numbers may be ported-out of an Account in connection with acts or omissions of third parties and Customer acknowledges that: (i) it may be difficult or impossible for Aircall to prevent such porting out of numbers from an Account; (ii) Aircall may not be able to retrieve a phone number ported out of an Account; and (iii) Aircall shall not be liable for any such porting out. Upon termination or cancelation of an Account, all telephone numbers associated with the Account may be released by Aircall if such numbers have not been ported to another provider prior to such cancelation or termination. Customer acknowledges and agrees that it is solely responsible for coordinating with its new third-party provider to port out any telephone numbers prior to termination or cancellation of Customer’s Account and/or termination of this Agreement.
7. Pricing and Invoicing
7.1 Free Trial. Customer may elect to try the Services for a period of up to five (5) business days from the Effective Date and shall be permitted to make outbound calls for a total of up to forty (40) minutes (such trial of the Services, the “Free Trial”). At the end of the Free Trial period, Customer may purchase additional products and services not included in the Free Trial by selecting a Plan.
7.2 Fixed Fees. Customer may select a Plan on either a monthly basis or an annual basis, and, based on Customer’s billing address, the corresponding currency for such Plan will be applied, in Euros, GBP, AUD or USD (for example if Customer’s billing address is located in the United States the applicable currency shall be USD). In the event Customer’s billing address is not located in either the United States, European Union, the United Kingdom, or Australia, Customer may select between USD and EUR only, unless otherwise decided by Aircall from time to time. Unless otherwise provided for in the relevant Order Form, the fees to be paid by Customer that are associated with such Plan shall be indicated on the Site (such fees, the “Fixed Fees”). Additional Aircall Numbers purchased by Customer either via the Aircall Dashboard or listed in the relevant Order Form, as applicable, shall also be deemed Fixed Fees and will be invoiced at the same billing frequency as the Aircall Numbers purchased in the original Plan on a prorata basis. For the avoidance of doubt, fees associated with outbound calls or inbound calls (where applicable) shall not be included in the Fixed Fees. Fixed Fees may be updated by Aircall at any time, and Aircall will endeavor to provide notice of such update prior to its implementation. Such updated Fixed Fees shall be effective on the first day of the next Renewal Term.
7.3 Usage Fees. The fees to be paid by Customer that are associated with: (I) outbound text messaging, where applicable, shall be invoiced monthly in arrears at the then-applicable rate (“Messaging Rates”), and (II) outbound calls and/or inbound calls, where applicable, shall be calculated by multiplying the per-minute rate applicable to such calls (“Per-Minute Rates”) with the Chargeable Time (as defined below) (such fees under (I) and (II), collectively, the “Usage Fees”). Usage and the duration of calls shall be calculated as follows: (i) in full-minute increments; (ii) calls shall be rounded up to the next full minute increment at the end of each call for invoicing purposes; (iii) calls will be deemed to begin (A) for outbound calls when a connection to the number Customer is trying to reach is established and recorded in Aircall’s system, and (B) for incoming calls when a signal connection from the caller is recorded in Aircall’s system; (iv) calls will be deemed to end when Customer or Customer’s correspondent have ended the call or where the call has ended due to a technical malfunction, but a call shall not be deemed ended until Customer’s signal of a call disconnect is recorded in the Aircall system; (such calculation of the duration of calls as detailed in (i) through (iv) included, “Chargeable Time”). Aircall may change the Per-Minute Rates and/or Messaging Rates at any time and will endeavor to provide notice of such change prior to its implementation. Such change shall be effective on the first day of the next Renewal Term. Customer may request the Per-Minute Rates and/or Messaging Rates currently applicable by sending a request to email@example.com.
The Services shall be subject to the following conditions: a) Outbound calls, conference calls, and calls to premium numbers made by Customer with a local/toll-free phone to countries outside of the United States or Canada will incur Usage Fees; b) inbound calls to Customer are free regardless of whether they come from a foreign country or not, provided they are made to a local or geographic telephone number (non-toll-free); c) all inbound calls on a toll-free phone line shall incur Usage Fees; d) any internal calls or communications (including calls, voicemail deposits and call transfers) between Users, or between a User and an Administrator, shall be free of charge provided such calls have been made using the Services; e) outbound calls for which Aircall receives answer supervision (i.e. connecting time) including ring time, shall incur a minimum of one (1) minute of Chargeable Time (answer supervision may also be generated by voicemail systems, private branch exchanges, and interexchange switching equipment); f) calls forwarded to mobile phones or landlines shall be deemed outbound calls and shall incur Usage Fees, including in the event Customer has purchased an unlimited outgoing/incoming call bundle, at the then applicable rate; g) calls received by Customer from a third party using a local/toll-free phone line which call is subsequently forwarded or transferred shall be deemed to be the same call; and h) Services and their billing are set-up for use by a minimum of three (3) Users.
7.4 Payment. By providing a valid credit or debit card information and/or bank account information (“Payment Method”), Customer expressly: (i) authorizes Aircall and/or any other company or individual acting in Aircall’s name to charge the Payment Method as follows: (x) monthly for Usage Fees; at the billing frequency chosen and specified by Customer on the relevant Order Form or Purchase, as applicable, for Fixed Fees (the “Billing Frequency”); and (y) for any and all other fees in connection with the Services including recurring payments billed on a monthly or annual basis and to continue attempting to charge and/or place holds on such Customer’s Payment Method until such amounts are paid in full; (ii) agrees to update such Payment Method from time to time as necessary; and (iii) acknowledges and agrees that Aircall shall not be liable for any expired credit/debit card, insufficient funds or other charges Customer incurred as a result of such attempts to charge, and/or place holds on, such Payment Method. In the event Customer selects a Plan that includes a predetermined allotment of services, unless otherwise specifically provided as a part of such Plan, any unused allotment of such services from one billing cycle will not carry over to any future billing cycle. Customer agrees that it shall be responsible for any and all fees, if any, associated with wire transfers used for payment of invoices to Aircall. All invoices shall be paid by Customer within thirty (30) days of the invoice date.
7.5 Taxes. The Fees are exclusive of applicable taxes and surcharges required under Applicable Laws, including VAT, costs/disbursements, charges, regulatory assessments, or any other duties, levies, registration fees or taxes which shall be charged additionally. The invoiced amount and/or amounts charged to the Payment Method may hence fluctuate from month to month and Customer agrees to pay any and all fees and/or taxes due.
7.6 Late Fees. In the event that Customer fails to pay an invoice due to Aircall within thirty (30) days of the invoice date (the “Late Payment”), Customer agrees without any prior notice, to pay a late fee at the interest rate of one and a half percent (1.5%) of Customer’s outstanding balance per month, or the maximum rate permitted by law, whichever is highest. In addition, Aircall shall be entitled to recover from Customer all costs, fees and expenses actually incurred for the recovery of the outstanding amounts due under the Agreement, including attorneys’ fees and costs. Notwithstanding any of the foregoing and in addition thereto, in the event of Late Payment, Aircall may, in its sole discretion, suspend Customer’s access to the Services and/or terminate this Agreement in whole or in part, in accordance with Section 13.2 without any liability whatsoever and without prejudice to its right to claim all amounts due by Customer to Aircall, as the case may be.
7.7 Exchange rate. Where Customer’s billing address is in Australia or the United Kingdom, Customer will be invoiced either in AUD or GBP, respectively.
7.8 Indexation. Aircall may revise the Fees on a quarterly basis by an amount equal to any percentage increase in the official Consumer Price Index, All Urban Consumers, U.S., City Average, published by the Bureau of Labor Statistics, United States Department of Labor (BLS), including during the Plan Initial Term, without entitling Customer to termination. The reference index will be the last index published on the day the Agreement entered into force. The indexation will be calculated by applying the last index published by the BLS on the day of the indexation with reference to the last index published in the previous quarter. The new Fees will be notified to the Customer and will be immediately applicable.
8.1 Non-Disclosure. During the Term of this Agreement the Confidential Information will be kept confidential by the Receiving Party and will not be disclosed to any other person, provided that each Party may disclose Confidential Information to its Affiliates, and its and their employees, agents, advisors and subcontractors who have a need to know, access and/or use the Confidential Information in order to perform or exercise such Party’s rights or obligations under this Agreement and who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. The Receiving Party shall use the same care and discretion, but in no event less than a reasonable degree of care and discretion, to avoid disclosure as it uses with its own similar information that it does not wish to disclose, to safeguard the Confidential Information from unauthorized disclosure.
8.2 Exceptions. The term Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives (as defined below) in violation of the terms hereof; (ii) is or becomes available to the Receiving Party or any of its Representatives on a non-confidential basis from a source that is not known to the Receiving Party to be prohibited by a contractual, legal, or fiduciary obligation to the Disclosing Party from disclosing such information to the Receiving Party; (iii) is independently developed, conceived, or discovered by the Receiving Party or its Representatives; or (iv) is already known to the Receiving Party or any of its Representatives prior to disclosure of the same to the Receiving Party or its Representatives by the Disclosing Party or the Disclosing Party’s Representatives. For purposes of this Agreement, “Representatives” shall mean a Party’s Affiliates and its and their employees, officers, directors, agents or other representatives.
9. Information Security and Privacy
9.2 Customer Compliance with Privacy Regulations. Customer agrees to solely use the Site and the Services in a manner that complies with all applicable federal and state laws, rules and regulations including New York state and the US Federal Trade Commission’s decisions (such laws, rules and regulations, collectively, the “Privacy Regulations”), governing: (i) the Processing and protection of personal data, personal information and/or personally identifiable information (collectively, “Personal Data”); and (ii) the notification and reporting of any actual or suspected breach of Personal Data. Customer agrees that it is solely responsible for the cost of all reporting, notifications, technology or security remediation and related costs for any actual or suspected breach of Personal Data arising in whole or in part from Customer’s use of the Site or the Services. Further, Customer represents and warrants that it has obtained all necessary authorizations and approvals, including legal and administrative authorizations and approvals, to access, use or otherwise Process the Personal Data transmitted, stored and/or uploaded into the Services and that it shall use the Services in compliance with the Privacy Regulations.
9.3 Customer Compliance with Calling and Messaging Regulations. Customer expressly agrees that it shall not use the Site or the Services in a manner that would violate or place Aircall in violation of any applicable rules or regulations governing telemarketing, unsolicited calls, unsolicited text messaging, and limitations on the use of automated or prerecorded calling and/or text messaging technology, including the Telephone Consumer Protection Act (“TCPA”), the Federal Trade Commission's Telemarketing Sales Rule, and applicable state laws (collectively, the “Calling and Messaging Regulations”).
9.4 Customer Responsibility. Customer expressly agrees that, as part of the Agreement, Aircall shall not be responsible for Personal Data created, owned or maintained by Customer in connection with Customer’s access and/or use of the Site and/or the Services. Customer agrees to defend, hold harmless and indemnify Aircall and its Affiliates and its and their subcontractors against any and all losses, damages, costs (including reasonable attorney’s fees) in connection with: (i) Customer’s misuse of the Services and/or of the Site resulting in an unauthorized disclosure and/or exposure of any Personal Data; or (ii) any violation of the Privacy Regulations or the Calling and Messaging Regulations. Customer hereby authorizes Aircall to issue anonymous statistics based on such Personal Data in order to increase its database statistics, and to use them for all purposes and conditions as part of its activities.
9.5 Inability to Comply with Privacy Regulations. To the extent that applicable Privacy Regulations require Aircall to provide such notification, Aircall will notify Customer if it makes a determination that it can no longer meet its obligations under applicable Privacy Regulations. Upon reasonable request, and to the extent required by applicable Privacy Regulations, Aircall shall provide Customer with information and assistance for Customer to confirm that Aircall Processes Personal Data in accordance with the Customer’s obligations under such applicable Privacy Regulations. In the event of unauthorized use of Personal Data, the Parties shall cooperate to take reasonable and appropriate steps to stop and remediate such unauthorized use of Personal Data.
9.6 Information Security. Aircall endeavors to use commercially reasonable technical and operational safeguards designed to protect the Customer Data and Customer’s Confidential Information from unauthorized use or disclosure. Customer agrees to protect all devices permitting access to the Services using industry-standard security measures. Aircall may from time to time push software updates and patches and Customer agrees to promptly install and implement such updated, patched, and/or upgraded version of the Services. Aircall will not be responsible or liable for any damage or inoperability of the Services resulting from Customer’s failure to timely implement such update, patch and/or upgrade.
9.7 Information Security and Privacy Communications. The Customer acknowledges and agrees that any inquiry or other type of communication related to information security and/or privacy (including requests for Personal Data access or deletion) shall be sent to firstname.lastname@example.org or placed with Aircall’s customer support portal. Such inquiries will be handled by Aircall in accordance with Applicable Laws.
10.1 Aircall Warranties. Aircall will provide the Services using a commercially reasonable level of care and will materially comply with applicable Laws. To the extent permissible by applicable Law, Aircall will pass through to Customer the relevant and applicable warranties it receives from its third-party suppliers where applicable.
10.2 Customer Warranties. Customer represents and warrants that it will and will cause its Users and/or Administrators to use the Services in compliance with all applicable Laws and this Agreement. Customer acknowledges that the Services include ringtones and music that are made available to Customer under a license that requires that the name of its author be mentioned. Customer therefore represents and warrants that it will add, as part of the services that it offers, the information that Aircall shall provide Customer with, and in particular display the name of the tunes’ authors, and more generally that Customer will comply with the terms of this license.
10.3 Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT THE SERVICES ARE BEING PROVIDED “AS IS” AND “AS AVAILABLE,” AND EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, AIRCALL MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. IN THE EVENT AIRCALL MAY NOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. AIRCALL FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ANY PORTION OF THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, CONTINUOUS, ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES AIRCALL WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE SERVICES. CUSTOMER ALSO ACKNOWLEDGES AND AGREES THAT AIRCALL CANNOT GUARANTEE THAT IP BASED COMMUNICATIONS ARE COMPLETELY SECURE, ERROR OR VIRUS-FREE.
Customer agrees to indemnify, defend and hold harmless Aircall and its Affiliates (“Aircall Parties”) for, from and against any and all losses, liabilities, damages, claims (including any and all reasonable attorneys’ fees,) as incurred, arising out of or in connection with: (i) any breach or alleged breach of this Agreement by Customer, Users and/or Administrators; (ii) Customer’s, Users’ and/or Administrators’ violation of any Law and/or the rights of a third-party; (iii) Customer’s, Users’ and/or Administrators’ failure to promptly install any updates, upgrades or patches of any software provided by Aircall; and (iv) claims relating to the Customer Data and/or claims relating to any data transferred by Customer to third parties’ applications. Further, Customer shall indemnify and hold harmless Aircall Parties against all damages, costs, and legal fees awarded against Aircall Parties by a court of competent jurisdiction in connection with such claims, or agreed to in a written settlement agreement approved in writing by Aircall.
12. Limitations of Liability
IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF AIRCALL OR ITS AFFILIATES EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE CLAIM GIVING RISE TO SUCH DAMAGES OR ONE HUNDRED DOLLARS (US$100) IF FOR A FREE TRIAL. IN NO EVENT SHALL AIRCALL OR ITS AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, REPUTATIONAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND SUCH AS LOSS OF DATA OR PROFIT, OR BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, HARM TO THE IMAGE OR REPUTATION, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY EVEN IF AIRCALL OR ITS AFFILIATES HAVE BEEN NOTIFIED ORALLY OR IN WRITING OF THE POSSIBILITY OF SUCH DAMAGES. ANY CLAIM OR CAUSE OF ACTION RESULTING FROM CUSTOMER’S USE OF THE SITE AND THE SERVICES MUST BE PROVIDED OFFICIALLY IN WRITING TO AIRCALL BY REGISTERED MAIL WITH RECEIPT ACKNOWLEDGEMENT ADDRESSED TO ITS HEAD OFFICE WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION HAS ARISEN OR IT SHALL BE DEEMED WAIVED BY CUSTOMER.
13. Term, Suspension and Termination
13.1 Term. This Agreement will commence on the Effective Date and shall continue until the expiration of the last Purchase, the expiration of the applicable Order Form, or unless terminated earlier in accordance with the terms herein (the “Term”). Access to the Plan shall start on the date Customer places a Purchase or the Services Start Date, as applicable, and will continue for the duration set forth in the Purchase or in the Order Form, as applicable (the “Plan Initial Term”, also referred to as “Order Form Term"). Thereafter, the Plan Initial Term shall automatically renew for additional periods of the same duration (each, a “Renewal Term”) unless either Party provides a written notice of non-renewal to the other Party no less than thirty (30) days prior to the end of the Plan Initial Term or the then current Renewal Term. For the avoidance of doubt, in the event Customer chooses to add additional Users during the Plan Initial Term or Renewal Term, the term applicable to such additional Users will co-terminate with the Plan Initial Term or with the Renewal Term, as applicable.
13.2 Suspension. Aircall may suspend Users’ and/or Administrators’ use of any Service if such use is determined by Aircall, in its sole but reasonable discretion, to be (i) in violation of the terms of the Agreement (including in case of non-payment on the due date) or of the Applicable Laws or any policy provided or made available to Customer in writing; (ii) resulting in a degradation of the Service; (iii) otherwise damaging or likely to damage the rights or property of Aircall or third parties, until such violation, degradation, or damage has been remedied. Except in the event legally prohibited or commercially unfeasible, Aircall will use reasonable endeavors to provide Customer with prior notice before any suspension detailing the causes and the expected duration of such suspension. Aircall reserves the right, in its sole but reasonable discretion, to delete, remove or block access to, all or part of any Customer Data that may violate or infringe the Applicable Laws, the Permissible Use Policy, or any third-party rights, or otherwise expose or potentially expose Aircall to civil or criminal liability. Suspension will not relieve Customer of its obligation to pay the Fees and the costs associated with the reactivation of the Services. Aircall shall not be responsible for any damages arising from the Service suspension under this Section 13.2. During the suspension period, Customer and Aircall will use their best endeavors to minimize any inconvenience caused by such suspension of the Services.
13.3 Termination. Either Party may terminate this Agreement and any Services purchased hereunder in whole or part by giving written notice to the other Party if the other Party: (i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of such notice; (ii) upon the commencement by or against the other Party of insolvency, receivership or bankruptcy proceedings; (iii) following the written recommendation of a government or regulatory agency following a change in either applicable Law. Aircall may terminate this Agreement, Purchase, and/or any Order Form at any time and for any reason without any liability whatsoever. In the event such termination does not result from a breach by Customer of its obligations hereunder, Aircall shall refund Customer a pro-rata portion of any unused prepaid Fees covering the remainder of the Plan Initial Term or Renewal Term, as applicable, from the effective date of such termination.
13.4 Effects of Termination. Upon termination of this Agreement Customer must pay to Aircall immediately and without further notice, and in any case no later than thirty (30) days thereof, any accrued fees, charges, including any outstanding Fees. Upon termination or expiration of this Agreement for whatever reason, Customer shall immediately cease to have access to and use of the Services.
14. Governing Law
All claims in connection with this Agreement, the Services and/or the Site shall be governed by the laws of the state of New York, without regard to its conflict of law provisions. Sole and exclusive jurisdiction for any action or proceeding arising out of or related to this Agreement shall be in an appropriate state or federal court located in the city of New York, NY and Customer hereby unconditionally waives its right to a jury trial. A printed version of this Agreement shall be admissible in judicial or administrative proceedings. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or a portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to reflect the intent of this Agreement, and the remainder of this agreement shall continue in full force and effect.
15. Force Majeure
Excluding either Party’s payment obligations under the Agreement, neither Party will be responsible or liable for any failure to perform or delay in performing to the extent resulting from any event or circumstance that is beyond that Party’s reasonable control, including any act of God; national emergency; third-party telecommunications networks; riot; war; terrorism; governmental act or direction; change in Laws; fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; earthquake; storm; hurricane; flood, fire, or other natural disaster; strike or labor disturbance; or other cause, whether similar or dissimilar to the foregoing, not resulting from the actions or inactions of such Party.
Only the material or geographical part of the Agreement affected by the event of Force Majeure shall be suspended during such event.
During the suspension period, the Parties will use commercially reasonable efforts to limit the duration and mitigate the consequences of such event. If the Force Majeure event lasts for more than thirty (30) days, the Parties undertake to negotiate in good faith a contract adjustment. If, following such thirty (30) day period, it becomes impossible to continue the performance of the Agreement, each Party will be entitled to terminate the Agreement by sending a written notice to the other Party.
Except where otherwise expressly stated in the Agreement, all notices or other communications must be in English and are deemed to have been fully given when made in writing and delivered in person, upon delivered email, confirmed facsimile, or five days after deposit with a reputable overnight courier service, and addressed as follows: to Aircall.io, Inc., Legal Dept., 381 Park Ave South, Floor 16, New York, NY 10016 with a copy emailed to email@example.com, and to Customer at either the physical address or email address associated with the Customer’s Account. Customer is solely responsible for the accuracy and completeness of Customer’s physical address and email address and must immediately update such addresses on the Site upon any change. Customer acknowledges and agrees that all electronic notices have the full force and effect of paper notices.
Except as otherwise provided, this Agreement may only be modified by a written amendment (provided electronically or otherwise) executed by authorized representatives of both Parties. In no event will handwritten changes to any terms or conditions, including in the applicable Order Form, be effective. Notwithstanding anything set forth in this Agreement, Aircall may update the terms of this Agreement or any of its policies from time to time, and will provide notice to Customer at the email address associated with the Customer’s Account or via a pop-up on the Site, as decided by Aircall in its sole discretion. Such updates will become effective ten (10) days after such notice to Customer (such date, the “Updated Date”). In the event that any such update would be of material detriment to Customer and is not required by Law, Customer must inform Aircall of Customer’s objection in writing (which shall include Customer’s reason behind such objection) within ten (10) days of receiving the notice provided under this provision. If the Parties, negotiating in good faith cannot reach an agreement within thirty (30) days following the receipt of Customer’s objection, Customer may terminate the portion of the Services affected by the change without penalty by written notice to Aircall. Any use of the Services after the Updated Date will be deemed Customer’s acceptance of such updates to the terms of this Agreement and/or policies, as applicable.
18. General Provisions
Customer and Aircall are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Customer and Aircall. Aircall’s failure or delay in exercising any right herein will not operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or future exercise thereof or the exercise of any other right herein. This Agreement, together with any Order Form(s), Purchases, exhibits and/or schedules, each of which is expressly incorporated into this Agreement with this reference, constitutes the entire agreement between the Parties and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise, regarding such subject matter. For the avoidance of doubt, unless and to the extent expressly agreed to in writing between Aircall and Customer, no other terms and conditions contained in Customer’s purchase order or otherwise, shall be binding on Aircall. In the event of any conflict between the terms of this Agreement and the terms of an Order Form, the terms of the Order Form shall prevail. Sections 3, 4, 5, 7, 8, 10, 11, 12, 14, 15, 17, and 18 included shall survive termination of this Agreement. Aircall reserves the right to refuse to provide the Services at its sole discretion to any Customer. For the avoidance of doubt, in the case of Customer, each Order Form may be signed by Customer or any of its Affiliates, provided Customer will remain jointly and severally liable for any and all actions or omissions of its Affiliates in connection with this Agreement. Customer may not assign or transfer any of its rights or obligations under this Agreement, in whole or in part, without Aircall’s prior written consent. Notwithstanding the foregoing, each Customer may assign this Agreement to (i) its Affiliates, and (ii) an entity in which the Customer may be merged or consolidated, or which purchases all or substantially all assets or equity interest of the assigning party. The assignee or transferee will assume all of the rights and obligations of the assignor or transferor under the Agreement and will be deemed the signatory of the Agreement without any further changes or amendment. Customer shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, or release Services to any jurisdiction or country to which, or any party to whom, the export, reexport, or release of such Services is prohibited by Applicable Laws. Customer shall be responsible for any breach of this Section by its, and its successors’ and permitted assigns’, parent, Affiliates, distributors, resellers, vendors, and its and their Representatives. Customer shall comply with all Applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, reexporting, or releasing any Services. Customer and its Representatives shall not conduct any business with or engage in any transaction or arrangement with or involving, directly or indirectly, any person or entity that is subject to any Sanctions or any countries subject to Sanctions (including the Crimea Region of Ukraine, Cuba, Iran, North Korea, and Syria). For purposes hereof, “Sanctions” means those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), or other relevant sanctions authority.
Antibribery. Customer represents and warrants that, in connection with this Agreement: (a) Neither Customer, nor its officers, employees, affiliates, agents, subcontractors, nor any other third party acting on its behalf, have committed or will commit any bribery of Aircall, employee, affiliate, agent, subcontractor, or any other third party acting on its behalf; and (b) Customer will prevent and detect bribery whether committed by its officers, employees, affiliates, agents, subcontractors or any other third party acting on its behalf. In particular, Customer shall refrain from promising, offering, or granting to any person, directly or indirectly, any undue advantage in order that such person performs or refrains from performing any act that interferes with the scope of its functions in the performance of this Agreement; or to make such person use its real or supposed influence over a third party in order to obtain any advantage. Aircall may at any-time request evidence of the Customer’s compliance with its obligations under this clause. To the extent necessary and proportionate to the circumstances and permitted by the Applicable Law, Customer shall notify Aircall without delay on becoming aware or upon becoming reasonably suspicious that an activity carried out in connection with this Agreement has contravened or may have contravened this section or any anti-bribery law or regulation. If Aircall has reasons to believe that Customer is not complying with the obligations contained in this clause, Aircall may suspend the performance of the Agreement until Customer provides reasonable evidence that it has not committed a breach. Aircall acting in good faith shall in no event be liable for any damage or loss caused to Customer by the suspension of the Agreement. In addition, Customer authorizes Aircall to carry out supervised audits at any time if there is a reasonable suspicion of a breach of this clause by Customer. Breach of this clause by Customer shall be deemed a material breach of this Agreement and Aircall may terminate this Agreement with immediate effect upon written notice to Customer, as of right and without any judicial authorization.
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