As of March 3, 2017
800LiNK, Inc.offers its Services subject to the terms and conditions set forth in this Terms of Service("Terms" or "Agreement"). "Services", means any product or service offered by 800LiNK Inc.; including, feature, API, web site, documentation, instructional material as well as any upgrade or update to any of these, made generally available by 800LiNK.
Please review these Terms carefully.Once accepted, these Terms become a binding legal contract between you and 800LiNK, Inc.
In this Agreement, "we," "us," "our" or "800LiNK" will refer to 800LiNK Inc. And, the terms "you," "your" and "Customer" will refer to you. If you are registering for an 800LiNK account or using 800LiNK’s services on behalf of an organization, you are agreeing to these terms on behalf of that organization and verifying to 800LiNK that you have the authority to bind that organization to these Terms (and, in which case, the terms "you" and "your" or "Customer" will refer to that organization).
These Terms may be revised from time to time at the discretion of 800LiNK.If the terms are revised the new or conflicting Terms will supersede prior versions. Unless we say otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. We will provide you advance notice of any material revisions. This notice will be provided via the account portal and/ or via an email to the email address we have on file.For other revisions, we will update the effective date of these Terms at the top of the page.We encourage you to check the effective date of these Terms whenever you visit 800LiNK’s website or account portal.Your continued access or use of our Services constitutes your acceptance of any revisions. If you do not agree to the revisions, you should stop using 800LiNK’s Services and terminate your account.
We may make changes to the Services by modifying, adding or eliminating elements of the Services from time to time.In the event that any such changes to the Services would, in our reasonable discretion and judgment, materially affect your use of the Services, we will use reasonable efforts to let you know at least sixty(60) days prior to implementing those changes.
To use our Services, you will be required to create an account. When registering an account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You must also update that information and insure that it remains true, accurate, current and complete after you create your account.
You are solely responsible for all use (whether or not authorized) of our Services under your account, including for the quality and integrity of your Customer Data.You are also solely responsible for all use and for all acts and omissions of anyone who has access to your account ("End Users").You agree to take all reasonable precautions to prevent unauthorized access to or use of our Services and will notify us promptly of any unauthorized access or use.We will not be liable for any loss or damage arising from unauthorized use of your account.
4.1 Service Plan. Your account is associated with a "service plan" selected at the time the account is activated which dictates the base monthly recurring charge for the account, the features that are included and may include a monthly allotment of minutes that can be used free of additional charge. You may change the service plan associated with your account from time to time. A one-time prorated charge may be applied if the service plan is being upgraded to one that carriers a higher monthly recurring charge.
4.2 Term and Automatic Renewal. Unless otherwise stated, the Services are provided on a month-to-month basis with the "initial term" beginning at the time the account is activated. The initial term for all service plans will renew automatically for successive terms of the same length (each, a "renewal term") without further action by or notice to you unless and until the account is terminated pursuant to Section 15 (Termination, Suspension of Services).The initial term and all renewal terms will be referred to in this agreement as the "Terms Period".
4.3 Rollover Minutes. Rollover minutes are monthly service plan minutes or minute pack minutes that have not been used. At the end of each monthly billing cycle, any unused minutes are converted to rollover minutes. Rollover minutes are good for up to twelve months from the date the minutes were originally issued. After twelve months have passed, unused rollover minutes expire. In the event an account is terminated, all unused minutes are permanently canceled.Minutes are not transferable and are not redeemable for cash or services.
The minutes that an account has available at any time is referred to as the minute pool.The minute pool includes service plan minutes, minute pack minutes and rollover minutes. Minutes used are applied to the minute pool in the following order: 1. Current monthly service plan minutes 2. Additional minute pack purchases 3. Oldest rollover minutes.
Except as agreed by 800LiNK and you in writing, 800LiNK may periodically delete your Customer Data.Further, data storage is not guaranteed by 800LiNK and you agree that we will not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that you may incur relating to the loss or deletion of Customer Data.
You further acknowledge and agree that we may access or disclose Customer Data, including the content of communications, if: (i) we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or government request, (ii)to enforce our agreements and policies, (iii)to protect the security or integrity of our services and products, (iv)to protect ourselves, our other customers, or the public from harm or illegal activities, or(v) to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.
YOU ACKNOWLEDGE THAT THE SERVICES ARE NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE.YOU REPRESENT AND WARRANT THAT YOU AND YOUR END USERS WILL NOT USE THE SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT.
You will ensure that our Services are used in accordance with all applicable Laws as well as these Terms. 800LiNK’s services are not available for any purpose. There are specific purposes that are prohibited which you will not utilize 800LiNK’ in pursuing.You agree not to use the Services in these prohibited manners, or to allow any End User to use the Services in these prohibited manners, including but not limited to the following:
If you or an End User have or may have participated in any of these prohibited activies you must immediately bring it to the attention of 800LiNK and propose a plan on how to insure it does not happen again. A breach of the obligations in this Section constitutes a material breach of these Terms, such that we may suspend or terminate the account immediately, or take any other action we deem necessary to enforce the terms of this Section.
8.1 Emergency Services. You will not attempt to use our Services to access or allow access to Emergency Services.
8.2 Resale. You agree not to transfer, resell, lease, license or otherwise make available our Services to third parties or offer them on a standalone basis.
8.3 Customer Data. You will ensure that we are entitled to use your Customer Data, including content of communications, as needed to provide our Services and will not use our Services in any manner that violates any applicable law.
8.4 Reverse Engineering. You will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with our Services.
8.5 Export Controls. Our Services, including any software we may provide in connection with those Services, may be subject to applicable U.S.export control laws and economic sanctions regulations.In receiving this software or our Services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to this software and our Services, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or our other aspects of our Services.These laws include restrictions on destinations, End Users, and end use.Without limitation, you may not transfer any such software or other aspect of our Service without U.S.government authorization to any entity on a U.S.government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S.government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of our software and Services if you become placed on any such list or under the control of or an agent for any entity placed on such a list.
8.6 Short Code Use. Short codes are special telephone numbers, significantly shorter than full telephone numbers, that can be used to address MMS and SMS messages from certain service providers' mobile phones or fixed phones. Short codes closely regulated by carriers, so your ongoing compliance with these regulations must be ensured. If you have purchased a short code, then you will not change your use of that short code from the use stated in your application to the carrier for approval of the short code without first obtaining an amendment to your application or re-applying to the carrier for approval of the short code under the new use.
8.7 Underutilized Numbers. We reserve the right to reclaim any phone number from your account and return that number to the relevant numbering plan if you do not send sufficient traffic over that phone number such that the phone number is unutilized or underutilized, as defined by any local, federal, and/or national regulatory agency and/or governmental organization with oversight over the relevant phone number and numbering plan.If we seek to reclaim a phone number from your account, excluding suspended and trial accounts, we will send you an email at least two (2) weeks' in advance telling you that we are reclaiming the phone number, unless we are otherwise prevented from doing so by an applicable regulatory agency or governmental organization. We also reserve the right to reclaim phone numbers from accounts suspended for failure to pay and/or suspended for suspected fraud, and to reclaim phone numbers in free trial accounts that are unutilized for more than thirty (30) days.
8.8 Customer of Record. You acknowledge that we are the "customer of record" for all phone numbers provided as part of our Services. As the customer of record, we have certain rights with respect to porting phone numbers. You understand and agree that you may use the phone numbers provided as part of our Services subject to these Terms and until the end of the Terms Period (as defined in Section 4.2 (Term and Automatic Renewal)). Unless otherwise required by law, we reserve the right to refuse to allow you to port away any phone number in our sole discretion. Regardless, we may allow you to port away phone numbers, so long as you (1) have an account in good standing, and (2) have either ported in or purchased the phone number more than 90 days prior to the port-away date.
Affiliates are any entity or person that controls you, is controlled by you, or under common control with you, such as a subsidiary, parent company, or employee. (Similarly, if we refer to our affiliates, we mean an entity or person that controls us, is controlled by us or is under common control with us.) If applicable to you, your affiliates may order Services directly from us under these Terms, provided that all of your affiliate’s activities are subject to these Terms.You will be responsible for the acts and omissions of your affiliates in connection with each affiliate’s use of our Services.
10.1 Charges. You agree to pay all applicable recurring monthly charges, set-up charges and usage charges for your account.
10.2 Taxes. Unless otherwise stated, you are responsible for and shall pay all applicable taxes. all federal, state, local, and municipal sales, international excise, value-added, transactional, regulatory, and other taxes and assessments and other governmental fees, surcharges, levies or amounts (including without limitation charges related to the recovery of amounts contributed to any contribution, universal service or other governmental fund or entity, whether or not such recovery is mandated by any Law).
10.3 Payment Terms. Any amount due will be charged to the method of payment used to activate the account unless you make alternate payment arrangements with us.
10.4 Fee Disputes. You must notify us in writing if you dispute any portion of any fees paid or payable by you under this Agreement.You must provide that written notice to us within sixty (60) days of the applicable charge and we will work together with you to resolve the applicable dispute promptly.If you do not provide us with this written notice of your fee dispute within this 60 day period, you will not be entitled to dispute any fees paid or payable by you.
10.5 Suspension or Termination. If your use of our Services exceeds the amounts prepaid by you or if you fail to pay any amounts due by you under this Section, we may suspend our Services associated with your account or terminate your account without prior notice to you. We will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur in connection with any suspension or termination pursuant to this Section.
11.1 General. As between you and 800LiNK, we exclusively own and reserve all rights, title and interest in and to our Services.
11.2 Suggestions and Contributions. We welcome your feedback on our Services.But please know that by submitting suggestions or other feedback about our Services ("Contributions") you agree that:
11.3 Confidentiality. "Confidential Information" means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. "Confidential Information" does not include any information which: (i) is publicly available through no fault of receiving party; (ii) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (iii) was properly disclosed to receiving party, without restriction, by another person without violation of disclosing party's rights; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.
Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose such information to any third party without the other party's prior written consent, except as otherwise permitted hereunder. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Each party may disclose the Confidential Information of the other party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Section. Either party may disclose the Confidential Information of the other party as required by law, upon prior written notice to the other party (where allowed by law); provided that such party will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law.
11.4 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Agreement and that, in the event of an actual or threatened breach of the provisions of this Agreement, 800LiNK will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. The parties expressly acknowledge and agree that 800LiNK will suffer irreparable harm as a result of an actual or threatened breach of this Agreement. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
WITHOUT LIMITING 800LiNK’S ANY EXPRESS WARRANTIES, 800LiNK HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON - INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD - PARTY EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE.EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, 800LiNK’S SERVICES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.
You will defend, indemnify and hold 800LiNK and its affiliates harmless against any claim, lawsuit, threatened claim, loss, liability, proceeding, third - party discovery demand, governmental investigation or enforcement action, brought against 800LiNK or its affiliates, arising out of or relating to your use of 800LiNK’s Services. We will reasonably cooperate in the defense of any Claim or action, at your expense.Under this agreement for you to indemnify and defend 800LiNK, 800LiNK retains the right to approve or disapprove of counsel you hire to defend 800LiNK’s interests.If 800LiNK disapproves of your choice in counsel 800LiNK may retain counsel of its own choosing at your expense.If you fail to defend 800LiNK in any claim in which 800LiNK is a named party, arising out of or related to your use of 800LiNK’s services, you will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against or incurred by 800LiNK in connection with any Claim.If you fail to comply with these provisions related to defense and indemnity then 800LiNK may pursue an action against you and if 800LiNK prevails it will be entitled to recover from you all costs and expenses, including attorney fees, related to such action.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL 800LINK BE LIABLE TO YOU FOR ANY INDIRECT, COMPENSATORY, STATUTORY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF WE HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES FOR ANY DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY YOU DURING THE TWELVE(12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
THE PROVISIONS OF THIS SECTION 14 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
800LINK'S SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS OR SMS MESSAGES TO ANY EMERGENCY SERVICES. NEITHER 800LINK NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD 800LINK HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE OUR SERVICES TO CONTACT EMERGENCY SERVICES.
You may terminate your account for any reason at any time, subject to the restrictions and fees provided in these Terms, and any additional agreements governing the Services.Acceptable methods of notifying us that an account is to be terminated are telephone, fax, e - mail or U.S.Post.If you request termination of your account, a confirmation code will be issued and provided to you.If you do not receive a confirmation code, you must assume your account has not been terminated and you should contact us as soon as possible.
In addition to suspension of the Services or termination of your account for non - payment of fees as described in Section 10.5(Suspension or Termination), we may also at any time, and without notice, terminate your account, modify, suspend, disconnect, discontinue, or block access to some or all of the features of the Services if:
Upon any termination, we may immediately deactivate or delete Customer's account and all related information and files in the account and/or restrict any further access to such files, information, or the Services. Any funds remaining from payments after all charges have been satisfied will be refunded to you. We shall not be liable to you or any third party, for any reason, for terminating your use or access to the Services.
Upon termination or expiration of these Terms, your payment obligations, the terms of this Section, and the terms of the following Sections will survive(i.e.still apply): Section 5(Our Use and Storage of Customer Data), Section 8(Restrictions), Section 11(Ownership and Confidentiality), Section 12(Warranties and Disclaimer), Section 13(Indemnification), Section 14(Exclusion of Damages; Limitation of Liability) and Section 17(General).
17.1 Compliance with Laws. Both you and 800LiNK will comply with the applicable law relating to each of our respective activities under these Terms, including privacy and data protection laws and applicable rules established by the Federal Communications Commission.
17.2 No Waiver. 800LiNK’s failure to enforce at any time any provision of these Terms or our AUP does not waive our right to do so later. And, if we do expressly waive any provision of these Terms or our AUP, that does not mean it is waived for all time in the future.Any waiver must be in writing and signed by and 800LiNK.
17.3 Assignment. You will not assign or otherwise transfer your account, or your use of 800LiNK’s Services, in whole or in part, without our prior written consent.Any attempt by you to assign, delegate, or transfer your account or your use of 800LiNK’s Services will be null and void.Subject to this Section, these Terms will be binding on both you and 800LiNK and each of our successors and assigns.
17.4 Relationship. You and 800LiNK are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. You and 800LiNK will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses.You are solely responsible for any and all claims, liabilities, damages or debts of any type that may arise on account of each of your activities, or those of your employees or agents, in the performance of these Terms.You have no authority to commit 800LiNK in regard to any debt or liability.
17.5 Severability. If any provision of these Terms is held by a court or arbitrator to be unenforceable, that provision will be severed from the agreement, to the minimum extent necessary to make the agreement enforceable and, in that case, it is the parties’ intent that the rest of these Terms and agreement will continue in full force and effect.
17.6 Notices. Any notice required or permitted to be given under these Terms will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email upon confirmation of receipt.
17.7 Entire Agreement. Except as provided in these Terms and any attachments to these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by 800LiNK, its agents or employees will create a warranty or in any way increase the scope of the warranties in these Terms.
17.8 Force Majeure. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster.The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
18.1 We Both Agree to Arbitrate. We both agree to arbitrate a dispute between the parties. If a dispute cannot be resolved through customer support, you or any of your affiliates and / or 800LiNK and any of 800LiNK’s affiliates, all agree to resolve any dispute arising under these Terms, or Privacy Notices, or in relation to our Services by binding arbitration in Belleville, Illinois, or another location if the parties agree. Arbitration costs are to be paid by the non - prevailing party and the prevailing party will be entitled to its attorney fees. Section 14’s limitation of liability applies to Arbitration Costs, damages and attorney fees arising out of Arbitration. Arbitration will be handled under the rules of the American Arbitration Association, to the extent they do not conflict with these Terms.
This applies to all claims under any legal theory.It also applies even after you have stopped using your 800LiNK account or have terminated it. If a dispute exists concerning whether this agreement to arbitrate can be enforced or applies to a dispute, the parties agree that issue will be decided through arbitration under the agreement.
18.2 Details of Arbitration Procedure. Prior to initiating arbitration, both parties jointly agree to seek to resolve any dispute via non - binding mediation conducted by a mediator agreed to by the parties, with the mediator’s expenses and fees split and paid equally by the parties.If mediation is not successful, either party may initiate an arbitration proceeding with American Arbitration Association.
The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed by agreement or in accordance with the Rules. To the extent anything described in this Section conflicts with the Rules, the language of these Terms and Agreement applies.
Each party will be entitled to discovery of non - privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator.This Section does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party.
The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of Illinois and the United States, as applicable, and will contain an award for each issue and counterclaim.The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms.
Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties.Judgment may be entered in any court of competent jurisdiction.
18.3 Class Action Waiver. Both you and your affiliates and 800LiNK and its affiliates agree that any claims or controversies between the parties must be brought on an individual basis only.No party or affiliate of a party may bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action.The arbitrator cannot combine more than one person or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding(unless agreed to by the parties in writing). The arbitrator’s decision or award in one person or entity’s case can only impact the person or entity that brought that claim, not other 800LiNK customers, and cannot be considered and is inadmissible to any other proceeding.
If a court rules that Subsection 18.3 (Class Action Waiver) is not enforceable, then the entire Section 18 (Agreement to Arbitrate) will be null and void (i.e., go away). But, the rest of the Terms will still apply.