Previous version: March 11, 2010
This is a legal agreement between you and Voxilate, Inc. ("Voxilate")
stating the terms that govern your use of applications and services
provided by Voxilate ("Voxilate Services"), including, but not limited
to the HeyTell Voice Messaging application ("HeyTell") and other
software applications (collectively, "Voxilate Applications") and the
Voxilate Web site ("the Web Site"). This agreement, together with all
updates, additional terms, software licenses, and other rules and
policies instituted by Voxilate collectively constitute the "Agreement"
between you and Voxilate.
Scope of License: Subject to the terms of this agreement, when you download any Voxilate application from the Apple App Store ("App Store"), Voxilate grants you a limited, non-transferable, personal, non-commercial, non-exclusive, non-sublicensable, non-assignable license to download and install the Voxilate Application on any iPhone, iPod touch, or other device as authorized by Apple, Inc. ("Apple") that you own or control and as permitted in the usage Rules set forth in the App Store Terms of Service. This license does not allow you to use the Voxilate Application on any iPod touch, iPhone, or other device authorized for use by Apple, that you do not own or control, and you may not distribute or make the Voxilate Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Voxilate Application. You may not modify, decompile, reverse engineer, disassemble, create of derivative works of, attempt to derive the source code of the Voxilate Application, any updates, or any part thereof except to the extent permitted by law. Any attempt to do any of the aforementioned is a violation of the rights of Voxilate and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Voxilate that replace and/or supplement the original Voxilate Applications.
Use of Voxilate User Accounts: Use of Voxilate Services requires a user account which is implicitly created upon installation and first use of Voxilate Applications. Voxilate retains the right to remove the account or data stored within the account at any time and for any reason. Voxilate retains the right to access your account for support and maintenance purposes, and as instructed by you for account service inquiries. Voxilate Applications may store account data on the device upon which they are installed -- you are responsible for backing up and securing data on your device; Voxilate is not responsible for loss of account information due to device or data loss.
YOU UNDERSTAND THAT ALTHOUGH SOME VOXILATE SERVICES, SUCH AS HEYTELL, ARE FREE, YOU MAY BE CHARGED FOR SMS INVITE MESSAGES TRANSMITTED THROUGH THE APP OR FOR BANDWIDTH USAGE IF YOU DO NOT HAVE AN UNLIMITED DATA PLAN.
Your Responsibilities: By using the Voxilate Application and thereby consenting to this Agreement and the terms herein, you agree that at no time will you partake in, facilitate, or otherwise encourage any of the following actions:
- Using Voxilate Services if you are under age 13 without the express consent of a parent or guardian.
- Using Voxilate Services to facilitate or engage in criminal activity.
- Using Voxilate Services to transmit or share confidential or privileged information.
- Using Voxilate Services for emergency services or other critical operations where injury, death, or economic damage could result.
- Fraudulently impersonating another user or individual.
- Engaging in abuse of other users, verbal or otherwise.
- Repeated unsolicited communication with other users, including but not limited to the use of Voxilate Services to create or transmit unauthorized commercial communications (spam).
- Using Voxilate Services to record individuals without their express consent.
- Using the service to distribute copyrighted content or infringing upon the copyright or intellectual property of any third party.
- Attempting to reverse engineer the Voxilate Application or protocols without the express, written permission of Voxilate, Inc.
Undertaking any of the aforementioned actions may result in termination of your account. Voxilate reserves the right to remove any account for any reason at any time, with or without notification.
Disclaimer of Warranties: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE USE OF VOXILATE SERVICES IS AT YOUR OWN RISK. Voxilate Services are provided "as is" and "as available" with all faults and without warranty of any kind. Voxilate hereby disclaims all warranties and conditions with respect to Voxilate Services, either express, implied, or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, and non-infringement of third party rights. Voxilate does not warrant that the operation of Voxilate Applications or Web Site will meet your requirements, that services will be uninterrupted or error-free, or that defects in Voxilate Applications will be corrected. No oral or written information or advice provided to you by Voxilate, employees of Voxilate, agents of Voxilate, or of any third party or authorized representative shall create a warranty. Some jurisdictions do not allow the disclaimer of warranty, so one or all of the foregoing limitations may not apply to you.
YOU UNDERSTAND THAT WHEN YOU DOWNLOAD FROM, OR OTHERWISE OBTAIN CONTENT OR SERVICES THROUGH THE WEB SITE AND VOXILATE APPLICATIONS, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU UNDERSTAND THAT VOXILATE APPLICATIONS MAY NOT DELIVER ALL MESSAGES IN A TIMELY MANNER. YOU UNDERSTAND THAT LOCATION DATA MAY NOT BE ACCURATE. YOU AGREE THAT YOU WILL NOT USE VOXILATE APPLICATIONS WHILE OPERATING A MOTOR VEHICLE, FOR FOR PRIVILEGED OR CONFIDENTIAL INFORMATION, FOR TIME-CRITICAL OR EMERGENCY SERVICES OR FOR ANY OPERATION WHERE INJURY, DEATH, OR ECONOMIC DAMAGE COULD OCCUR. VOXILATE IS NOT RESPONSIBLE FOR ANY LOSS OF LIFE, PERSONAL INJURY, OR ECONOMIC DAMAGE RESULTING FROM THE USAGE OF VOXILATE APPLICATIONS.
Limitation of Liability: To the extent not prohibited by law, in no event shall Voxilate be liable for personal injury, or any incidental, special, indirect, or consequential damages whatsoever, including, without limitations, damages for loss of profits, loss of data, business interruption or any other commercial damages or losses arising out of or related to your usage of or inability to use Voxilate Services, however caused, regardless of the theory of liability and even if Voxilate has been advised of the possibility of such damages. In no event shall Voxilate's total liability to you for any damages exceed the fees paid by you to Voxilate under this agreement during the twelve (12) month period prior to the cause of action. Voxilate shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing limitations shall not apply to the extent prohibited by applicable and jurisdictional law.
Intellectual Property: This Agreement does not transfer from Voxilate to you any Voxilate or third party intellectual property. Voxilate, HeyTell, Voxilate.com, HeyTell.com, VoxiTweet, Voxilate Translator, the Voxilate logo, the HeyTell logo, the HeyTell, Voxilate Translator, and VoxiTweet application designs and all other trademarks, service marks, graphics and logos used in connection with Voxilate Applications or the Web Site are trademarks of Voxilate or Voxilate's licensors. Other trademarks, service marks, graphics and logos used in connection with the Web Site or Voxilate Applications may be the trademarks of other third parties. Your use of the Voxilate Services grants you no right or license to reproduce or otherwise use any Voxilate or third-party trademarks. Any and all Intellectual Property Rights (IP Rights) in Voxilate Applications, the Web Site, Voxilate Promotional Materials and other Voxilate Services are and shall remain the exclusive property of Voxilate and/or its licensed owners. Nothing in this Agreement intends to transfer or vest any such IP Rights to you. You are only entitled to the limited use of the IP Rights granted to you in this Agreement. You will not take any action to jeopardize, limit, or interfere with Voxilate's IP Rights in any way. Any unauthorized use of Voxilate's IP Rights is a violation of this Agreement as well as a violation of intellectual property laws and treaties, including but not limited to copyright laws and trademark laws. All title and IP Rights in and to any third party content that is not contained in the Voxilate Application, but may be integrated with or accessed through the Voxilate Application, is the property of its respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties.
Changes: Voxilate reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to Voxilate Services following the posting of any changes to this Agreement constitutes acceptance of those changes. Voxilate may also, in the future, offer new services and/or features. Such new features and/or services shall be subject to the terms and conditions of this Agreement.
Exporting the Application: You may not use or otherwise export or re-export the Voxilate Applications except as authorized by United States law. In particular, but without limitation, Voxilate Applications may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using Voxilate Applications, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law or the laws of the State in which you reside. You assert that YOU are solely responsible for being aware of and abiding by the laws of your jurisdiction and following them accordingly. You also agree that you will not use these Voxilate Applications for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons. If you are a resident of a country other than the United States, you agree with the foregoing and also agree that you will not use Voxilate Applications for any purposes prohibited by United States law AND the country in which you are a resident AND the country in which you are domiciled.
Indemnification: You agree to indemnify and hold harmless Voxilate, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys' fees, arising out of your use of Voxilate Services and including but not limited to your violation of this Agreement.
Applicable Law/Place of Jurisdiction: This Agreement constitutes the entire agreement between Voxilate and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Voxilate, or by the posting by Voxilate of a revised version of this document. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of Voxilate Services will be governed by the laws of the state of Delaware, U.S.A., and the proper venue for any disputes arising out of or relating to any of the same will be the U.S. District Court for the District of Delaware located in Wilmington Delaware (District Court). If the District Court may not consider the dispute, all disputes shall be brought before the Delaware Superior Court, or the Delaware Court of Common Pleas each located in Wilmington Delaware. You and Voxilate agree that these courts shall have exclusive jurisdiction over all disputes and other matters relating to the interpretation and enforcement of this Agreement or any ancillary document executed pursuant to it. Further, you and Voxilate agree that venue shall be proper in the appropriate court set out above, and agree that they shall not contest notice from that court. State law issues concerning construction, interpretation and performance of this Agreement shall be governed by the substantive law of the State of Delaware, excluding its choice of law rules. Any and all disputes, claims and causes of action arising out of or relating to Voxilate Services or these Terms shall be resolved individually, without resort to any form of class action.
Severability: If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Voxilate may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.