In order to use the IntouchVas API (the "IntouchVas API" or "API"), access the
information
contained on the IntouchVas website (the "Website") or make use of the services provided by
IntouchVas
(the "Service" or "Services"), you (hereinafter referred to as "You") must
first read this agreement (the "Agreement") and accept it. You may not avail Yourself of the
IntouchVas API, Website or Services if You do not accept this Agreement and the terms therein. You accept
the
terms of the Agreement by clicking to accept, by agreeing to the terms of the Agreement in the user
interface for any IntouchVas Service, or by using the IntouchVas API or Services. In the latter case, You
understand
and agree that we will treat Your use of the Services as acceptance of the terms from that point onwards.
BY USING IntouchVas AND THE IntouchVas WEBSITE, YOU CONSENT TO THE TERMS AND CONDITIONS OF THESE TERMS OF
SERVICE.
IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE PLEASE DO NOT USE THE WEBSITE AND/OR SERVICES.
By putting a check mark next to I AGREE and clicking on SUBMIT or using the API or Services, You represent
that You have read and agree to the terms and conditions of this Agreement, which also include and
incorporate IntouchVas’s Acceptable Use Policy, General Terms and Conditions and Privacy Policy.
These terms and conditions will remain in effect throughout Your use of the Services and continue after this
Agreement expires, cancels or is terminated. These terms and conditions are legally binding should You
choose to register for the Service. You may not use the API or Services and may not accept the terms if (a)
You are not of legal age to form a binding contract with us, or (b) You are a person barred from receiving
the Services under the Kenyan Law or other countries including the country in which You are resident or from
which You use the Services. You agree to incorporate these IntouchVas policies into Your own products and
policies and ensure that Your customers adhere to IntouchVas’s policies.
If You are accepting on behalf of Your employer or another entity, You represent and warrant that: (i) You
have full legal authority to bind your employer, or the applicable entity, to these terms of service; (ii)
You have read and understand this Agreement; and (iii) You agree, on behalf of the party that You represent,
to this Agreement. If You don’t have the legal authority to bind Your employer or the applicable
entity, please do not put a check mark next to I AGREE and click on SUBMIT or use IntouchVas’s
Services.
We reserve the right to change these Terms of Service from time to time without notice by posting them to
IntouchVas’s website. When we do, we will also revise the "last update" date of these Terms
of
Service. Your continued use of the Service after such posting will constitute acceptance by You of such
amendments.
1. Grant of Rights to Use Services
1.1
Subject to Your acceptance of and
compliance
with this Agreement and with the payment requirements for the Services, IntouchVas hereby grants You a
limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license during the Term
of this Agreement in and under our intellectual property rights, to access and use the Services, solely
in accordance with the terms and conditions of this Agreement. Unless explicitly stated otherwise, any
new features provided by IntouchVas that augment or enhance the current Services shall also constitute
“Services” and shall be subject to these terms and conditions. You may not, nor allow any
third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble
or reverse engineer the Services for any purpose whatsoever. You may not allow any unauthorized third
party to access the Services for any purpose whatsoever. All rights not expressly granted under this
Agreement are retained by IntouchVas.
1.2
You may write a software application or
website
(an "Application") that interfaces with the Services. You acknowledge that we may change,
deprecate or republish APIs for any Service or feature of a Service from time to time, and that it is
Your responsibility to ensure that calls or requests You make to or via our Service are compatible with
then-current APIs for the Service. IntouchVas will attempt to inform You of any changes with reasonable
notice so You can adjust Your Application, but we are under no obligation to do so.
1.3
You and any Applications that You may
build,
distribute, or otherwise create may make network calls or requests to the Services, or may receive phone
calls via the Service, at any time that the Services are available provided that those requests do not
violate the terms of the Acceptable Use Policy or other terms of this Agreement.
1.4
You may not remove, obscure, or alter any
notice
of any IntouchVas trademark, service mark or other intellectual property or proprietary right appearing
on
the Website or contained within the Services.
1.5
Provided that You comply with the terms of
this
Agreement and our policies and procedures including the Acceptable Use Policy, You may use the Services
to execute Applications owned or lawfully obtained by You. You are solely responsible for Your
Applications, including any data, text, images or content contained therein.
1.6
You are personally responsible for all
traffic
originating from Your Applications using Your account credentials to the Services. As such, You should
protect Your authentication keys and security credentials. Actions taken using Your credentials shall be
deemed to be actions taken by You, with all consequences including service termination, civil and
criminal penalties.
1.7
We may make available to You, for Your
installation, copying and/or use in connection with the Services, from time to time, a variety of
software, data and other content and printed and electronic documentation (the "IntouchVas
Properties"). Subject to Your acceptance of and compliance with this Agreement, ongoing compliance
with its terms and conditions with respect to the subject Service, and payment if and as required for
Your right to use the subject Service, IntouchVas hereby grants to You a limited, non-exclusive,
non-transferable, non-sublicensable, revocable license during the Term of this Agreement in and under
our intellectual property rights in the IntouchVas Properties, only to install, copy and use the
IntouchVas
Properties solely in connection with and as necessary for Your use of such Services, solely in
accordance with the terms and conditions of this Agreement.
(a)
The IntouchVas Properties may include,
without
limitation:
-
The IntouchVas Website;
-
IntouchVas APIs and IntouchVas Markup Language; and
-
Specifications describing the operational and functional capabilities,
use
limitations, technical and engineering requirements, and testing and performance criteria relevant
to the proper use of a Service and its related APIs and technology.
(b)
IntouchVas may make available under
another license
agreement, such as an open source agreement, additional content or software. Any such content or
software will be clearly marked with such a license indicating the usage rights available for that
content or software. For such content or software released pursuant to an open license, IntouchVas
encourages You to modify, alter, tamper with, repair and/or create derivative works consistent with such
license. Such content or software may include:
-
Developer tools, such as software development kits or sample code, for
use
in connection with the APIs; and
-
Articles and documentation for use in connection with the use and
implementation of the APIs (collectively, "Documentation").
(c)
Except as may be expressly authorized
under this
Agreement:
-
You may not, and may not attempt to, modify, alter, tamper with, repair,
or
otherwise create derivative works of any software included in the IntouchVas Properties.
-
You may not, and may not attempt to, reverse engineer, disassemble, or
decompile the IntouchVas Properties or the Services or apply any other process or procedure to
derive
the source code of any software included in the IntouchVas Properties.
1.8
For purposes of this Agreement, IntouchVas
hereby
grants to You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during
the Term of this Agreement to display the trade names, trademarks, service marks, logos, domain names of
IntouchVas (each, a “IntouchVas Mark”) for the purpose of promoting or advertising that You
use the
Services, solely in accordance with the terms and conditions of this Agreement. In return You hereby
grant IntouchVas a limited, non-exclusive, non-transferable, non-sublicensable license during the Term
of
this Agreement to display Your trade names, trademarks, service marks, logos, domain names and the like
for the purpose of promoting or advertising that You use the Services. In using IntouchVas Marks, You
may
not: (i) display a IntouchVas Mark in any manner that implies a relationship or affiliation with,
sponsorship, or endorsement by IntouchVas; (ii) use IntouchVas’s Marks to disparage IntouchVas or
its products
or services; or (iii) display a IntouchVas Mark on a site that violates any law or regulation.
Notwithstanding the above, IntouchVas may determine in its sole discretion whether its marks may be used
in
connection with Your Application. Furthermore, we may modify any IntouchVas Marks provided to You at any
time, and upon notice, You will use only the modified IntouchVas Marks and not the old IntouchVas Marks.
Other
than as specified in this Agreement, You may not use any IntouchVas Mark unless You obtain our prior
written
consent. All uses of the IntouchVas Trademarks and goodwill associated therewith shall inure to the
benefit
of IntouchVas.
1.9
The rights granted by us in this Agreement
with
respect to the IntouchVas Properties, the IntouchVas Marks and the Services are nonexclusive, and we
reserve the
right to: (i) act as a developer of products or services related to any of the products that You may
develop in connection with the IntouchVas Properties or via Your use of the Services; and (ii) appoint
third
parties as developers or systems integrators who may offer products or services which compete with Your
Application.
1.10
Subject to our commercially reasonable
efforts
and so long as Your account remains in good standing, data generated by Your use of the Service such
as
audio recordings and call log entries will remain available via our API for at least six months from
the
date such data was generated. Notwithstanding the above and without limitation to Section 7, we
shall
have no liability whatsoever for any damage, liabilities, losses (including any loss of data or
profits)
or any other consequences that You may incur with respect to loss of data associated with Your
account
and data therein.
2. Term, Termination and Suspension
2.1
The term (“Term”) of this
Agreement
will commence once You accept this Agreement as provided above. The Agreement will remain in effect
until terminated by You or IntouchVas in accordance with this Section 2.
2.2
You may terminate this Agreement for any
reason
or no reason at all, at Your convenience, by closing Your account for any Service for which we
provide
an account closing mechanism.
2.3
We may suspend Your right and license to
use
any
or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all
Services to You), for any reason or for no reason, at our discretion at any time by providing You
thirty
(30) days' advance notice in accordance with the notice provisions set forth in Section 10
below. If
IntouchVas determines that providing advance notice would negatively impact IntouchVas’s
ability to
provide Services, IntouchVas may suspend Your right and license to use any or all Services or
terminate this
Agreement in its entirety (and, accordingly, cease providing all Services to You), with no
notice.
2.4
We may suspend Your right and license to
use
the
Service or terminate this Agreement in its entirety (and, accordingly, Your right to use the
Service),
for cause effective as set forth below:
2.4.1
Immediately upon our notice to You in
accordance with the notice provisions set forth in Section 10 below if (i) You violate any provision
of
the Acceptable Use Policy or we have reason to believe that You have violated the Acceptable Use
Policy,
(ii) there is an unusual spike or increase in Your use of the Services for which there is reason to
believe such traffic or use is fraudulent or negatively impacting the operating capability of the
Service; (iii) we determine, in our sole discretion, that our provision of any of the Services to
You is
prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory
reason; or (iv) subject to applicable law, upon Your liquidation, commencement of dissolution
proceedings, disposal of Your assets, failure to continue Your business, assignment for the benefit
of
creditors, or if You become the subject of a voluntary or involuntary bankruptcy or similar
proceeding.
2.4.2
Immediately and without notice if You
are
in default of any payment obligation with respect to any of the Services or if any payment mechanism
You
have provided to us is invalid or charges are refused for such payment mechanism.
2.4.3
Five (5) days following our provision
of
notice to You in accordance with the notice provisions set forth in Section 10 below if You breach
any
other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure
such
breach within such 5-day period.
2.5
Effect of Suspension or
Termination.
2.5.1
Upon our suspension of Your use of any
Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services
that
are still in use by You, notwithstanding the suspension; (ii) You remain liable for all fees,
charges
and any other obligations You have incurred through the date of suspension with respect to the
Services;
and (iii) all of Your rights with respect to the Services shall be terminated during the period of
the
suspension.
2.5.2
Upon termination of this Agreement for
any
reason: (i) You remain liable for all fees, charges and any other obligations You have incurred
through
the date of termination with respect to the Services; and (ii) all of Your rights under this
Agreement
shall immediately terminate.
2.6
In the event this Agreement expires or is
cancelled or terminated for any reason, Sections 6, 7, 8, 9, 10 and 11 and any applicable
definitions
will survive any such expiration, cancellation or termination.
2.7
Following the suspension or termination of
Your
right to use the Services by us or by You for any reason other than a termination for cause, You
shall
be entitled to take advantage of any post-termination assistance we may generally elect to make
available with respect to the Services such as data retrieval arrangements. We may also endeavor to
provide You with unique post-suspension or post-termination assistance, but we shall be under no
obligation to do so. Your right to take advantage of any such assistance, whether generally made
available with respect to the Services or made available uniquely to You, shall be conditioned upon
Your
acceptance of and compliance with any fees and terms we specify for such assistance.
3. Downtime and Service Suspensions; Security
3.1
In addition to our rights to terminate or
suspend Services to You as described in Section 2 above, You acknowledge that: (i) Your access to
and
use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime
or
unavailability of any portion or all of the Services for any reason, including as a result of power
outages, system failures or other interruptions; and (ii) we shall also be entitled, without any
liability to You, to suspend access to any portion or all of the Services at any time, on a
Service-wide
basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any
Service; (b) in the event of a denial of service attack or other attack on the Service or other
event
that we determine, in our sole discretion, may create a risk to the applicable Service, to You or to
any
of our other customers if the Service were not suspended; or (c) in the event that we determine that
any
Service is prohibited by applicable law or we otherwise determine that it is necessary or prudent to
do
so for legal or regulatory reasons (collectively, "Service Suspensions"). Without
limitation
to Section 7, we shall have no liability whatsoever for any damage, liabilities, losses (including
any
loss of data or profits) or any other consequences that You may incur as a result of any Service
Suspension. To the extent we are able, we will endeavor to provide You notice of any Service
Suspension
in accordance with the notice provisions set forth in Section 10 below and to post updates regarding
resumption of Services following any such suspension, but shall have no liability for the manner in
which we may do so or if we fail to do so.
3.2
We strive to keep information You provide
to
us
secure, but cannot guarantee that we will be successful at doing so. Accordingly, without limitation
to
Section 7 below, You acknowledge that You bear sole responsibility for adequate security, protection
and
backup of Your content including all audio recordings associated with Your account. We strongly
encourage You, where available and appropriate, to use encryption technology to protect Your content
from unauthorized access and to routinely archive Your content. We will have no liability to You for
any
unauthorized access or use, corruption, deletion, destruction or loss of any of Your content.
4. Promotional Credits
4.1
We may award credits, points or any of our
other
virtual currencies (each individually or collectively referred to as “Promotional
Credits”)
in connection with promotions or other giveaways. Acquisition of Promotional Credits provides only a
limited, non-transferable, non-sublicensable, revocable license to use such Promotional Credits to
access Services that we expressly make available for use with the Promotional Credits. Promotional
Credits have no monetary value and do not constitute currency or property of any type. Promotional
Credits may not be sold or transferred, and cannot be exchanged for cash or for any other goods or
services, except for Services. We may cancel any Promotional Credits transferred, assigned or sold
in
violation of this Agreement.
4.2
During the term of Your license to
Promotional
Credits, You have the right to redeem Promotional Credits for selected Services. We neither
guarantee
the availability of particular Services nor that particular Services will be offered for any
particular
time.
4.3
The term of Your Promotional Credits
license
starts when You acquire such Promotional Credits and, subject to this Agreement, expires upon the
earlier of (a) twelve months from the date of award (as the context requires and applicable to each
individual award); or (b) the date that Your access to the Services is expired, suspended, cancelled
or
terminated as set forth herein. If You do not use Your account for twelve months, or if You delete
Your
account, any remaining Promotional Credits may be redeemed, cancelled or expired by us. Once
Promotional
Credits are redeemed for Services, such Services are not returnable, exchangeable or refundable for
Promotional Credits or any other virtual currency, or for cash or goods or services.
4.4
Promotional Credits may only be held by
legal
residents of countries where access to and use of the Services and Promotional Credits are
permitted.
Promotional Credits may only be awarded by us or through means we provide on the Website or
otherwise
expressly authorize. We can cancel or suspend Your access to Promotional Credits in our sole
discretion
and without prior notice, if (a) You fail to comply with this Agreement; or (b) if we otherwise
suspect
fraud or misuse of Promotional Credits. We have no obligation or responsibility to, and will not
reimburse You for, any Promotional Credits lost due to such cancellation or suspension.
4.5
We have the absolute right to offer,
manage,
regulate, modify and/or eliminate Promotional Credits or any portion thereof, at any time, without
any
liability to You.
5. Fees
In its sole discretion, IntouchVas shall determine whether You are eligible
for a
free trial subscription to its Services, which terms of the free trial are set forth
here
.
Free trials
are limited to one per person, and if we find that You have created multiple free trial accounts, we
reserve the right to suspend those accounts and take actions to prevent additional
violations.
5.1
In its sole discretion, IntouchVas shall
determine
whether You are eligible for a free trial subscription to its Services.
.
Free
trials are limited to one per person, and if we find that You have created multiple free trial
accounts,
we reserve the right to suspend those accounts and take actions to prevent additional
violations.
5.2
To the extent the Services or any portion
thereof are made available for any fee, You agree to pay all applicable fees (including any minimum
subscription fees) as set forth
here
. You agree to pay any
carrier
costs, such as fees for porting Your existing telephone numbers into or out of the Services. We may
increase or add new fees for any existing Service or Service feature by giving You 30 days'
advance
notice. All fees payable by You are exclusive of applicable taxes and duties, including, without
limitation, VAT and applicable sales tax. You will provide such information to us as reasonably
required
to determine whether we are obligated to collect VAT from You. You are responsible for any charges
imposed on IntouchVas by a carrier related to government fees for telecommunications, including but
not
limited to, Universal Service Fund fees, if applicable.
5.3
We may specify the manner in which You
will
pay
any fees, and any such payment shall be subject to our general accounts receivable policies from
time to
time in effect. All amounts payable by You under this Agreement will be made without setoff or
counterclaim and without deduction or withholding. If any deduction or withholding is required by
applicable law, You shall notify us and shall pay such additional amounts to us as necessary to
ensure
that the net amount that we receive, after such deduction and withholding, equals the amount we
would
have received if no such deduction or withholding had been required. Additionally, You shall provide
us
with documentation that the withholding and deducted amounts have been paid to the relevant taxing
authority.
5.4
Should You have any dispute as to fees
associated with Your account, please contact us at support@IntouchVas.co within 90 days of the date
of the
activity that generated such dispute, and we will attempt to resolve the matter. Any and all refunds
issued to resolve such a dispute shall be issued as credits to Your account, but in no event shall
there
be any cash refunds. Disputes older than 90 days shall not be entitled to any refunds or
credits.
6. Intellectual Property
6.1
Other than the limited use and access
rights
and
licenses expressly set forth in this Agreement, we reserve all right, title and interest (including
all
intellectual property and proprietary rights) in and to: (i) the Services; (ii) the IntouchVas
Properties;
(iii) the IntouchVas Marks; and (iv) any other technology and software that we provide or use to
provide the
Services and the IntouchVas Properties. You do not, by virtue of this Agreement or otherwise,
acquire any
ownership interest or rights in the Services, the IntouchVas Properties, the IntouchVas Marks, or
such other
technology and software, except for the limited use and access rights described in this
Agreement.
6.2
IntouchVas may, at its discretion, offer
certain
Software Development Kits, tools, application samples, or documentation under an open source
license.
Any such products will be marked with copyright details, and those copyrights will apply to those
and
only those documents. IntouchVas reserves all rights to any documents, tools, services, technologies
and the
like not designated with an open license.
6.3
Other than the rights and interests
expressly
set forth in this Agreement and excluding any and all works derived from IntouchVas Properties, You
reserve
all right, title and interest (including all intellectual property and proprietary rights) in and
to:
(i) content and data You may send to us or use as part of Your use of any Services ("Your
Content"); and (ii) Your Applications.
6.4
In the event You elect, in connection with
any
of the Services, to communicate to us suggestions for improvements to the Services, the IntouchVas
Properties or the IntouchVas Marks (collectively, "Feedback"), we shall own all right,
title, and
interest in and to the same, even if You have designated the Feedback as confidential, and we shall
be
entitled to use the Feedback without restriction. Furthermore, any other content or information You
post
or provide to IntouchVas via comments, forums, emails and the like (collectively,
“Communications”) shall be considered the property of IntouchVas. You hereby irrevocably
assign
all right, title and interest in and to the Feedback and Communications to us and agree to provide
us
such assistance as we may require to document, perfect, and maintain our rights to the Feedback and
Communications.
6.5
During and after the Term of the
Agreement,
with
respect to any of the Services that You elect to use, You will not assert, nor will You authorize,
assist, or encourage any third party to assert, against us or any of our customers, end users,
vendors,
business partners (including third party sellers on websites operated by or on behalf of us),
sub-licensees or transferees, any patent infringement or other intellectual property infringement
claim
with respect to such Services.
6.6
IntouchVas respects the intellectual
property of
others, and we ask our users to do the same. If You believe that Your work has been copied in a way
that
constitutes copyright infringement, or that Your intellectual property rights have been otherwise
violated, You should notify IntouchVas of Your infringement claim in accordance with the procedure
set forth
below.
IntouchVas will promptly process and investigate notices of alleged
infringement and
will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and
other
applicable intellectual property laws with respect to any alleged or actual infringement. A
notification
of claimed copyright infringement should be emailed to IntouchVas’s Copyright Agent at
support@IntouchVas.co
for (Subject line:
“DMCA Takedown
Request”).
To be effective, the notification must be in writing and contain the
following
information:
-
an electronic or physical signature of the person authorized to act on
behalf of the owner of the copyright or other intellectual property interest;
-
a description of the copyrighted work or other intellectual property
that
You claim has been infringed;
-
a description of where the material that You claim is infringing is
located
on the Site, with enough detail that we may find it on the Site;
-
Your address, telephone number, and email address;
-
a statement by You that You have a good faith belief that the disputed
use
is not authorized by the copyright or intellectual property owner, its agent, or the law;
-
a statement by You, made under penalty of perjury, that the above
information in Your Notice is accurate and that You are the copyright or intellectual property
owner
or authorized to act on the copyright or intellectual property owner‘s behalf.
7. Representations and Warranties; Disclaimers;
Limitations
of Liability
7.1
You represent and warrant that You will
not
use
the Website (including our forums and comments sections), Services, IntouchVas Properties,
IntouchVas Marks,
Your Application or Your Content in a manner that violates the Acceptable Use Policy. To this
effect, we
ask that You take reasonable precautions to promote best practices. Although IntouchVas does not
assume the
duty or obligation to monitor any materials created, posted or uploaded by You or any third parties,
IntouchVas reserves the right, in its sole and absolute discretion, to monitor any and all materials
posted
or uploaded by You or any third parties at any time without prior notice to ensure that they conform
to
any usage guidelines or policies (including our Acceptable Use Policy) relating to our Website or
Services.
7.2
You also acknowledge and understand that
we
do
NOT currently allow You to access any 911 or similar emergency services (no traditional 911, E911,
or
similar access to emergency services). The Services are not intended to replace any primary phone
service, such as a traditional landline or mobile phone, that may be used to contact emergency
services.
7.3
You represent and warrant: (i) that You
are
solely responsible for the development, operation, and maintenance of Your Application and for Your
Content, including without limitation, the accuracy, appropriateness and completeness of Your
Content
and all product-related materials and descriptions; (ii) that You have the necessary rights and
licenses, consents, permissions, waivers and releases to use and display Your Application and Your
Content; (iii) that neither Your Application nor Your Content (a) violates, misappropriates or
infringes
any rights of us or any third party, (b) constitutes defamation, invasion of privacy or publicity,
or
otherwise violates any rights of any third party, or (c) is designed for use in any illegal activity
or
promotes illegal activities, including, without limitation, in a manner that might be libelous or
defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory
based
on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that neither Your
Application nor Your Content contains any harmful components; and (v) to the extent to which You use
any
of the IntouchVas Marks, that You will conduct Your business in a professional manner and in a way
that
reflects favorably on the goodwill and reputation of IntouchVas. You also represent and warrant that
You are
responsible for any charges incurred by virtue of Your use of the Application, no matter whether the
Application acted in error.
7.4
You further understand and agree that You
will
have use of the telephone number(s) that are provided as part of the services only until the end of
the
term of Your Agreement with IntouchVas or until IntouchVas no longer provides You with Service. You
understand
and agree that IntouchVas is the customer of record for all telephone number(s) provided as part of
the
Services and, therefore, IntouchVas has certain rights with respect to porting of the number(s)
(“Porting” is causing or attempting to cause number(s) to be transferred, switched, or
otherwise moved to any other service provider, telephone carrier, or any other person or entity). As
the
customer of record for the telephone number(s), IntouchVas owns the telephone number(s) assigned to
you.
IntouchVas generally ports a telephone number at the request of a customer. IntouchVas reserves the
right to
refuse to port any telephone number(s) in its sole discretion.
7.4.1
If You "ported in" any
telephone
number(s) in connection with Your use of Services, IntouchVas assigned You one or more toll free
telephone
numbers, You are entitled to "port out" a telephone number under non-U.S. law, or
IntouchVas has
agreed to port out any telephone number(s), You may "port out" such number(s) only if You
satisfy the following requirements: (1) You provide written notice to IntouchVas of Your intent to
"port out" such number(s) no later than thirty (30) days after providing IntouchVas notice
of Your
intent to terminate this Agreement (the "Porting Notice Period"); (2) Your new telephone
carrier provides IntouchVas's telephone carrier a duly executed porting request prior to the
expiration
of the Porting Notice Period; (3) You have paid IntouchVas for all Services provided to You prior to
the
date You provide IntouchVas notice of Your intent to terminate this Agreement; and (4) You have paid
IntouchVas
any administrative fees associated with processing the port. You hereby authorize IntouchVas to
charge Your
account in the applicable amount for the administrative fees in subsection (4) above or to otherwise
arrange to make this payment to IntouchVas within the Porting Notice Period. The porting process can
be
lengthy; if You would like to maintain Your account with the company during the porting process, You
must maintain Your account in an active status and not terminate Your account until the porting out
is
complete. Regardless of when the port out is complete, You will continue to be responsible to pay
all
applicable account fees with respect to the telephone numbers until You formally terminate this
Agreement. If You fail to satisfy any of the foregoing requirements, IntouchVas remains the customer
of
record over the number(s) and You are expressly prohibited from causing or attempting to cause such
number(s) to be transferred to any other service provider, telephone carrier or any other person or
entity. IntouchVas also retains the right to reclaim the number(s) from You after the number(s) are
ported
out in contravention with these requirements and authorize IntouchVas to charge Your account or take
any
other measures to collect the costs associated with causing the number(s) to be returned to
IntouchVas. You
understand and agree that even if You satisfy the requirements set forth in this section, technical
or
procedural difficulties or interruptions may occur when attempting to port out these numbers and
such
difficulties or interruptions may prevent Your new carrier from porting the numbers. IntouchVas is
not
responsible for such technical or procedural difficulties or interruptions.
7.4.2
You understand and agree that following
the
termination of this Agreement for any reason, your number(s) may be re-assigned to another customer.
You
agree that IntouchVas will not be liable for damages (including consequential or special damages)
arising
out of any such re-assignment and You hereby waive any claims with respect to any such
re-assignment,
whether based on contractual, tort or other grounds, even if IntouchVas has been advised of the
possibility
of damages.
7.4.3
You understand and agree that
IntouchVas may
need to change the telephone number(s) assigned to You. You agree that IntouchVas will not be liable
for
damages (including consequential or special damages) arising out of any such change in the telephone
number(s) assigned to You and You hereby waive any claims with respect to any such change, whether
based
on contractual, tort or other grounds, even if IntouchVas has been advised of the possibility of
damages.
7.5
You represent and warrant that You have
read
and
understood the Acceptable Use Policy, Privacy Policy and General Terms and Conditions, and You agree
to
abide by their terms, where applicable, including as incorporated by reference herein. You further
agree
to abide by all applicable local, state, national, foreign and international laws and regulations
and
that You will be solely responsible for all acts or omissions that occur under Your account or
password,
including the content of Your transmissions through the Service. By way of example, and not as a
limitation, You agree not to violate any provisions of the Acceptable Use Policy.
7.6
You represent and warrant that without
IntouchVas’s express written consent You will not use, and will not authorize any third party
to use,
any Public Software (as defined below) in connection with the Services in any manner that requires,
pursuant to the license applicable to such Public Software, that any IntouchVas Properties or
Services be
(a) disclosed or distributed in source code form, (b) made available free of charge to recipients,
or
(c) modifiable without restriction by recipients. With respect to any Feedback or Communications,
You
represent and warrant that such Feedback and Communications, in whole or in part, contributed by or
through You, (i) is legally distributable by You, either because You own the copyright or because
You
have fully complied with any copyright terms associated with the software or content, (ii) contains
no
third party software or any software that may be considered Public Software and (iii) does not
violate,
misappropriate or infringe any intellectual property rights of any third party. "Public
Software" means any software, documentation or other material that contains, or is derived (in
whole or in part) from, any software, documentation or other material that is distributed as free
software, open source software (e.g., Linux) or similar licensing or distribution models, including,
but
not limited to software, documentation or other material licensed or distributed under any of the
following licenses or distribution models, or licenses or distribution models similar to any of the
following: (i) GNU's General Public License (GPL), Lesser/Library GPL (LGPL), or Free
Documentation
License, (ii) The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape
Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License
(SISL), (vii) the BSD License and (viii) the Apache License.
7.7
You represent and warrant that: (i) the
information You provide in connection with Your registration for the Services is accurate and
complete;
(ii) You are duly authorized to do business in the jurisdiction where You operate; and (iii) You are
an
authorized representative of Your entity duly authorized to access the Services and to legally bind
You
to this Agreement and all transactions conducted under Your account.
7.8
IntouchVas PROPERTIES, THE IntouchVas
MARKS,
THE
SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR
INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE "SERVICE
OFFERINGS") ARE PROVIDED "AS IS." WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE
IntouchVas
PROPERTIES, THE IntouchVas MARKS, THE SERVICES OR THE PROMOTIONAL CREDITS. EXCEPT TO THE EXTENT
PROHIBITED
BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR
USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICES OR WEBSITE WILL FUNCTION AS
DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU
STORE WITHIN THE SERVICES WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS
SHALL
NOT BE RESPONSIBLE FOR ANY SERVICE OR WEBSITE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER
OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR
FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS
AGREEMENT.
7.9
In addition to the foregoing, we
specifically
disclaim all liability, and You shall be solely responsible for the development, operation, and
maintenance of Your Application and for all materials that appear on or within Your Application and
Your
Content and You agree that You shall, without limitation, be solely responsible for:
7.9.1
the technical operation of Your
Application
and all related equipment;
7.9.2
the accuracy and appropriateness of any
materials posted on or within Your Application or Your Content (including, among other things, any
product-related materials);
7.9.3
ensuring that any materials posted on
Your
site or within Your Application do not violate our Acceptable Use Policy, are not illegal and do not
promote illegal activities, including without limitation any activities that might be libelous or
defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory
based
on race, sex, religion, nationality, disability, sexual orientation, or age;
7.9.4
ensuring that Your Application
accurately
and adequately discloses, either through a privacy policy or otherwise, how You collect, use, store,
and
disclose data collected from visitors, including, where applicable, that third parties (including
advertisers) may serve content and/or advertisements and collect information directly from visitors
and
may place or recognize cookies on visitors' browsers; and
7.9.5
any of Your users' or
customers'
claims relating to Your Application or Your Content or any Services utilized in connection with Your
Application.
7.10
NEITHER WE NOR ANY OF OUR LICENSORS SHALL
BE
LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY
DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER
LOSSES
(EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE
IntouchVas PROPERTIES, THE IntouchVas MARKS, THE SERVICES OR PROMOTIONAL CREDITS; (ii) THE COST OF
PROCUREMENT
OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN
ANY
CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY
YOU
TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN
WARRANTIES OR
THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME
OR
ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL
RIGHTS.
7.11
THE SERVICES DO NOT AND ARE NOT INTENDED
TO
SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. "EMERGENCY SERVICES SHALL MEAN
SERVICES
THAT ALLOW A USER TO CONNECT WITH EMERGENCY SERVICES PERSONNEL OR PUBLIC SAFETY ANSWERING POINTS
SUCH AS
911 OR E911 SERVICES." NEITHER IntouchVas NOR ITS OFFICERS, EMPLOYEES OR AFFILIATES MAY BE HELD
LIABLE
WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY
CLAIM, DAMAGE, OR LOSS (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING
FROM
OR RELATING TO YOUR INABILITY TO USE IntouchVas OR ITS SERVICES TO CONTACT ANY EMERGENCY SERVICES,
OR YOUR
FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES.
7.12
Third Party Materials: Certain content,
products, and services available via the IntouchVas website (or links contained therein) may include
materials, software, plug-ins, applications and other resources from third parties and access to
third
party websites (collectively "Third Party Materials"). You acknowledge and agree that
IntouchVas
is not responsible for examining or evaluating the content or accuracy of any such Third Party
Materials
and that IntouchVas does not warrant or endorse and does not assume (and will not have) any
liability or
responsibility for any Third Party Materials or any damage or loss resulting therefrom. The
availability
of Third Party Materials is provided solely as a convenience to you. You agree that you must
evaluate,
and bear all risks associated with, the use of any Third Party Materials, including any reliance on
the
accuracy, completeness, or usefulness thereof. Please also remember that all use of the IntouchVas
website
and service is subject to the IntouchVas Terms of Service.
8. Indemnification
8.1
You agree to indemnify, defend and hold
us,
our
affiliates and licensors, each of our and their business partners (including third party sellers on
websites operated by or on behalf of us) and each of our and their respective employees, officers,
directors and representatives, harmless from and against any and all claims, losses, damages,
liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees),
arising out of or in connection with any claim arising out of (i) Your use of the Services,
IntouchVas
Properties and/or IntouchVas Marks in a manner not authorized by this Agreement, and/or in violation
of the
applicable restrictions, the Acceptable Use Policy, and/or applicable law, (ii) Your Application,
Your
Content, or the combination of either with other applications, content or processes, including but
not
limited to any claim involving infringement or misappropriation of third-party rights and/or the
use,
development, design, manufacture, production, advertising, promotion and/or marketing of Your
Application and/or Your Content, (iii) Your violation of any term or condition of this Agreement,
the
Acceptable Use Policy or any applicable additional policies, including without limitation, Your
representations and warranties, or (iv) You or Your employees' or personnel's negligence or
willful misconduct.
8.2
We agree to promptly notify You of any
claim
subject to indemnification; provided that our failure to promptly notify You shall not affect Your
obligations hereunder except to the extent that our failure to promptly notify You delays or
prejudices
Your ability to defend the claim. At our option, You will have the right to defend against any such
claim with counsel of Your own choosing (subject to our written consent) and to settle such claim as
You
deem appropriate, provided that You shall not enter into any settlement without our prior written
consent and provided that we may, at any time, elect to take over control of the defense and
settlement
of the claim.
9. Disputes
9.1
Notwithstanding anything to the contrary, we may
seek
injunctive or other relief in any state, federal, or national court of competent jurisdiction for
any
actual or alleged infringement of IntouchVas’s or any third party's intellectual property
rights
and/or proprietary rights. You further acknowledge that our rights in the IntouchVas Services,
IntouchVas
Properties and the IntouchVas Marks are of a special, unique, extraordinary character, giving them
peculiar
value, the loss of which cannot be readily estimated and may not be adequately compensated for in
monetary damages.
9.2
By using the Services, You agree that the
laws
of Kenya, without regard to principles of conflicts of laws, will govern this Agreement and any
dispute
of any sort that might arise between You and us.
10. Notices
10.1
Notices made by us under this Agreement
for
You
or Your account specifically (e.g., notices of breach and/or suspension) will be provided to You via
a
notification message displayed on Your account page or via the email address provided to us in Your
registration for the Services or in any updated email address You provide to us in accordance with
standard account information update procedures we may provide from time to time. It is Your
responsibility to keep Your email address current and You will be deemed to have received any email
sent
to any such email address, upon our sending of the email, whether or not You actually receive the
email.
10.2
For notices made by You to us under this
Agreement and for questions regarding this Agreement or the Services, You may contact us by email at
info@IntouchVas.co
11. Miscellaneous Provisions
11.1
Responsibility. If You authorize, assist,
encourage or facilitate another person or entity to take any action related to the subject matter of
this Agreement, You shall be deemed to have taken the action Yourself.
11.2
Severability. If any portion of this
Agreement
is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions
of
this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall
be
construed in a manner that most closely reflects the effect and intent of the original language. If
such
construction is not possible, the provision will be severed from this Agreement, and the rest of the
Agreement shall remain in full force and effect.
11.3
Message Routing. You may not use phone
numbers
provided by IntouchVas ("IntouchVas Phone Numbers") to route SMS messages over any other
provider's network. All SMS messages sent and received for a IntouchVas Phone Number must be
sent and
received via IntouchVas's Services.
11.4
Waivers. The failure by us to enforce any
provision of this Agreement shall in no way be construed to be a present or future waiver of such
provision nor in any way affect our right to enforce such provision thereafter. All waivers by us
must
be in writing to be effective.
11.5
Successors and Assigns. This Agreement
will
be
binding upon, and inure to the benefit of the parties and their respective successors and
assigns.
11.6
Entire Agreement. This Agreement
incorporates
by reference all policies and guidelines posted on the IntouchVas Website and as may be modified
thereafter
(including the Acceptable Use Policy, the General Terms and Conditions and the Privacy Policy) and
constitutes the entire agreement between You and us regarding the subject matter hereof and
supersedes
any and all prior or contemporaneous representation, understanding, agreement, or communication
between
You and us, whether written or oral, regarding such subject matter.
11.7
No Endorsement. You understand and
acknowledge
that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of Your
Applications or Your Content.
11.8
No Agency. Nothing in this Agreement
shall
be
construed as creating a partnership, contract of employment, agency, joint venture or franchise
relationship between IntouchVas with you.
11.9
No Third Party Beneficiary. You
acknowledge
and
agree that, except as otherwise expressly provided in the Terms, there shall be no third party
beneficiary to this agreement.