iCall Mobile End User License Agreement

Last modified Mon Dec 15 15:17:24 CST 2008

 

This Agreement is between iCall, Inc. ("we," "us" or "iCall") and the user ("you," "Customer," "Retail Customer").

  1. Grant of Rights. iCall grants you a non-exclusive, non-transferable, limited right to access and use iCall's Website, Internet call and voicemail services, any associated programs (the "Software") on any machine(s) of which you are the user, and any printed or online documentation accompanying the Software (the "Documentation") provided by iCall (the iCall Website, services, Software and Documentation collectively, the "Service"), provided that you agree to be bound by the terms of this Agreement. The Service, including any updates, enhancements, new features, and/or the addition of any new Web content or properties are subject to this Agreement.
  2. Modifications. iCall may modify this Agreement, in its sole discretion, from time to time. The modified Agreement will be effective immediately upon posting through the Service or via e-mail to the e-mail address of record for your account, and you agree to the new posted Agreement by continuing your use of the Service. If you do not agree with the modified Agreement, your only remedy is to discontinue using the Service and terminate your account as described in Section 3 (Term of Use).
  3. Term of Use. This Agreement is effective until terminated. You may terminate it at any time by deleting or otherwise destroying the Software and Documentation together with all copies thereof. This Agreement will terminate upon conditions set forth elsewhere within this Agreement or if you fail to comply with any term or condition of this Agreement. iCall reserves the right to terminate this Agreement, or suspend, discontinue or disconnect your Service at any time in our sole and absolute discretion. In such event, no notice shall be required by iCall to effect such termination. Upon termination of this Agreement, you agree to delete or otherwise destroy the Software and Documentation together with all backup copies, modifications, printed or written materials, and merged portions in any form, or return the same to iCall at your expense.
  4. Personal And Non-Commercial Use Limitation. The Service shall be used only for your own personal and non-commercial use. A Service account may not be transferred to another party or entity without prior written approval from iCall, and any such transfer of Service account is subject to any limits established by iCall. iCall reserves the right to immediately terminate or modify the Service in its sole discretion.
  5. Privacy Policy. You agree to be bound by the iCall Privacy Notice ("Privacy Policy"), which is hereby incorporated at the following URL:
    http://www.icall.com/legal/privacy-policy/
  6. NON-PROVISION OF EMERGENCY DIALING SERVICES. You acknowledge and understand that the Service does NOT support emergency dialing to any type of hospital, law enforcement agency, medical care unit or any other kind of emergency service such as 911 or E911 emergency services. The Service is not intended to be a telephone replacement and any attempt(s) to dial 911 or E911 using the Service will not connect. You understand that additional arrangements must be made to access such emergency services such as purchasing, separately from iCall, a regular telephone connection from your local phone company, which will can provide you access to emergency services.
  7. Registered Location. Notwithstanding Section 5 above, in the event iCall begins providing or plans to provide emergency dialing such as 911, you agree to provide at iCall's request, information sufficient to provide emergency services with a physical location at which the Service will be utilized (the "Registered Location"). You also agree to update the Registered Location if the location at which the Service will be utilized changes.
  8. Electronic Delivery. YOU CONSENT TO RECEIVE ELECTRONICALLY FROM ICALL ANY PRIVACY OR OTHER NOTICES, AGREEMENTS, DISCLOSURES, REPORTS, DOCUMENTS, COMMUNICATIONS, OR OTHER RECORDS (COLLECTIVELY, "NOTICES"). You agree that iCall generally can send you electronic Notices in the following ways: (1) through its Service or (2) to the e-mail address that you provided to iCall during account registration. Your only method of withdrawing consent to receive notices electronically is to terminate your Service by contacting iCall.
  9. Ownership. You have no ownership rights in any aspect of the Service, including any Software, Documentation or content associated with the Service. Rather, you have a license to use the Service as long as this Agreement remains in full force and effect. Ownership of the Software, Documentation, contents associated with the Service, and all intellectual property rights therein shall remain at all times with iCall. Any other use of the Service by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.
  10. Prohibited Uses. You expressly agree not to use the Service in a manner that is prohibited by any law or regulation, or to use the Service to facilitate the violation of any law or regulation, or to facilitate any threatening or offensive behavior. You acknowledge that prohibited conduct includes, but is not limited to, use of the Service to invade the privacy of third parties, impersonation of iCall personnel or other parties or entities, communicating abusive, profane, libelous, slanderous, threatening or otherwise harassing material. You hereby consent to our forwarding any communication and other information, including your identity to the appropriate authorities, if, in our sole discretion, we believe or suspect that you have used the Service or any other related programs or services for an unlawful purpose. In addition, you expressly agree to iCall providing information to law enforcement agencies in response to lawful requests, subpoenas and court orders. We reserve the right to disconnect your Service and terminate your use of the Service immediately if, in our sole discretion, we believe or suspect, that you have used the Service in an unlawful manner.
  11. Export Restrictions. This Agreement is expressly made subject to any laws, regulations, orders, or other restrictions on the export from the United States of America of the Software or information about such Software, which may be imposed from time to time by the government of the United States of America. You shall not export the Software, Documentation, or information about the Service without consent of iCall, and compliance with such laws, regulations, orders, or other restrictions. By installing or using the Service, you warrant full and complete compliance with these conditions of restriction. Should you violate any export control law or regulation, you will be solely liable for such violation and agree to indemnify and hold harmless iCall against any and all liability for such violation.
  12. Loss of Service. If the event of power failure, Internet outages, suspension or disconnection of Service by your broadband provider or Internet Service Provider ("ISP"), or termination of your iCall account, the Service will not function. In addition, your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. You acknowledge that iCall is not responsible for any interruption or impediment to your usage of the Service.
  13. Intellectual Property
    1. Unauthorized Usage of Software. The Service contains content (including but not limited to titles, computer code, data, themes, objects, characters, character names, stories, text, dialog, catch phrases, locations, concepts, artwork, animations, sounds, musical compositions, audio-visual effects, methods of operation, any related documentation, and "applets" incorporated into the Software) that is protected by United States patent, copyright, trademark, trade secret, and other intellectual property laws and by international treaty provisions. All rights not granted to you herein are expressly reserved by iCall. You may not remove any proprietary notice of iCall from any copy of the Software, Documentation or content associated with the Service. You expressly agree not to copy or modify any Software, Documentation or content associated with the Service, provide or otherwise make available the Service in any form to any person, including without limitation any public display or performance of the Service or any image, sound, musical work, or audio-visual work, or portion thereof, contained in or generated by the Service. You agree not to remove or obscure any patent, trademark or copyright notices. You also agree not to decompile, disassemble, create a derivative work, merge, or reverse engineer the Software, or copy or translate the Documentation or any of the content provided by the Service.
    2. Use of Third-Party Hardware and Software. If you decide to use the Service through an interface device (whether hardware or software) not provided by iCall, you warrant and represent that you possess all required rights, including software licenses, to use that interface device with the Service and you will indemnify and hold harmless iCall against any and all liability arising out of your use of such interface device with the Service.
    3. Tampering with the Service. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.
  14. Links To Third Party Sites. iCall may from time to time provide links that will let you access a third-party's Website. iCall has no control over such linked Websites and is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. iCall is not responsible for webcasting or any other form of transmission received from any linked site. The inclusion of any link does not imply endorsement by iCall of the site.
  15. No 0+ or Operator Assisted Calling; No x11 Calling. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900 or calling card calls). The Service does not support 311, 411, 511 and/or other x11 services.
  16. Incompatibility With Other Services.
    1. Home Security Systems. You acknowledge that the Service is not compatible with home security systems.
    2. Certain Broadband, Cable Modem, and Other Services. You acknowledge that the Service presently may not compatible with certain ISP service providers. You further acknowledge that some providers of broadband services may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Service will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
  17. No Technical Support. iCall is under no obligation to provide technical support under the terms of this Agreement and provides no assurance that any specific errors or discrepancies in the Service will be corrected.
  18. WARRANTIES. THE SERVICE (INCLUDING ALL SOFTWARE, DOCUMENTATION, CONTENT, MATERIALS, FUNCTIONS AND INFORMATION ACCESSED BY ANY MEANS THEREOF) IS PROVIDED "AS IS", WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, ICALL MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY INTERRUPTION OF OR ERROR IN THE SERVICE UNDER ANY CIRCUMSTANCE, INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL OR TO OBTAIN EMERGENCY HELP, AND INCLUDING BUT NOT LIMITED TO ICALLS NEGLIGENCE.
  19. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL ICALL BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICE, EVEN IF ICALL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH ICALL IS TO DISCONTINUE USE OF THE SERVICE AND CANCEL YOUR ACCOUNT. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, ICALL, ITS LICENSORS, AND THEIR AFFILIATES LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
  20. Indemnification. You shall defend, indemnify, and hold harmless iCall, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party or user of the Service, relating to the Services, including, without limitation, emergency dialing such as 911 dialing.
  21. BILLING AND PAYMENT:
    1. You will pay a subscriber fee for access, in accordance with our then-current billing terms. Except as otherwise provided herein, subscriber fees are non-refundable. You agree to pay your subscriber fees by credit card or other approved method (your "Payment Method"), and authorize us to Payment Method for the ongoing subscription fee, and for all product and/or service purchases you make through the Site. You agree that you are not misrepresenting your identity in any regard, that you are lawfully permitted to use your Payment Method, and that you have provided accurate information regardin your identity and Payment Method ("Transaction Information").
    2. iCall may as it's sole discretion elect to change the billing terms or rates. In the event of any such change, we will notify you via electronic mail at least 30 days in advance. If you do not wish to continue being billed at the new rates or do not wish to be bound by the new terms and conditions, you may cancel your account automatically at any time.
    3. In order to apply for free trial access to the service, you agree that, at our discretion, we may pre-authorize your credit card for an amount not to exceed the amount of a full monthly membership. If you cancel your membership during the trial period, your card issuer will reverse the pre-authorization automatically when the authorization expires. We shall not be liable for fees you and/or the card holder may incur as a result of accepting the free trial offer.
    4. You agree to immediately inform us of any of the following changes in your credit card account: Card loss or theft, or unauthorized usage of the card; apparent breach of security of subscriber account, such that unauthorized access to the service via the card is possible. Unless you give us proper notice of any of the foregoing changes, you will remain liable to us for any and all charges for use of the service.
  22. MISCELLANEOUS.
    1. Governing Law and Severability. The laws of the State of Delaware, U.S.A., will apply to this Agreement, without giving effect to principles of conflict of laws. If any provision of this Agreement is invalid or unenforceable in whole or in part, the validity of other provisions of this Agreement and remainder of the relevant provision shall not be affected. Headings are for convenience only and shall not affect construction.
    2. Mandatory Arbitration and No Jury Trial. Any dispute or claim between you, any member of your household or any guest or employee of you and us arising out of or relating to the Service will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Delaware. The arbitrator's decision will follow the plain meaning of the relevant documents, and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. All claims shall be arbitrated individually. You shall not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, DELAWARE.
    3. No Waiver of Rights. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
    4. Entire Agreement. This Agreement constitutes the complete and exclusive agreement between iCall and you with respect to the subject matter hereof, and supersedes all prior or contemporaneous oral or written communications, proposals, representations, understandings or agreements not specifically incorporated herein. This Agreement may not be amended except in a writing duly signed by an authorized representative of iCall and you.
    5. iCall refers to the company established under the laws of Delaware, USA, with its address at:

      iCall, Inc.
      Two Sound View Dr.
      Greenwich, CT 06830

      iCall can also be reached at the following e-mail addresses:

      Support: support@icall.com
      Billing: billing@icall.com
      General questions: info@icall.com

iCall is either the registered trademark or trademark of iCall, Inc. incorporated in the United States and/or other countries.