VoicePad HomeConnect Contract Terms |
GENERAL. The following terms and conditions shall be
applicable to the VoicePad® listing data service purchased by Customer. Any acceptance contained herein is made
expressly conditioned upon the Customer's assent to the terms and conditions
set forth herein. Any conduct by Customer which recognizes the existence of a
contract between VoicePad and Customer including, without limitation, use of
the listing inventory data, shall be conclusive evidence of Customer's assent
to the terms and conditions set forth herein. Any terms and conditions
contained in the Customer's purchase order or request for quotation, or other
form, which are different from, in addition to, or vary VoicePad's terms and
conditions shall not be binding upon VoicePad and VoicePad hereby rejects
such terms and conditions and objects thereto. PAYMENT TERMS. Monthly via credit card. Monthly credit card transactions will be
charged automatically on same day each month.
VoicePad reserves the right to discontinue Customer’s access to VoicePad
service three (3) business days after the monthly billing date for delinquent
accounts. A Finance Charge of 1 ½% per
month (18% annual percentage rate) will be imposed for those accounts that
are delinquent. Production fees (if any) and first month's service fees are due upon start of agreement. CANCELLATION. Customer may cancel
at any time. Refunds are not given for partial months after cancelation. Cancellation notice must
be received in writing at least two (2) business days before the monthly
billing date. TERMS OF USE. Each user of the VoicePad service purchased
by Customer shall be required to consent to VoicePad’s Terms of Use as
condition to User’s right to access and use the VoicePad service. SERVICES WARRANTY. VoicePad does not warrant uninterrupted
operation of the VoicePad service and specifically disclaims any other
warranties, either express or implied, including the warranties of
merchantability and fitness for a particular purpose. VoicePad will strive to correct any issue
with the operation of the VoicePad service but will not be held liable for
lost opportunities or misrepresentations due to any system failure. Customer's sole remedy under this provision
shall be the return of the purchase price for the period of time when the VoicePad
service was not functional. The foregoing remedy is Customer's sole and
exclusive remedy for breach of this provision. No other remedy will be
allowed, whether in contract, tort, negligence, strict liability or
otherwise. LIMITATION ON LIABILITY. In no event shall
VoicePad be liable or responsible to Customer or any other person for any
special, indirect or consequential losses or damages, whether based on
contract, tort, strict liability or other theory of law, even if VoicePad
shall have been advised of the possibility of any such loss or damages, all
such damages and claims being specifically disclaimed. VoicePad shall not be
liable for any loss or damage caused by (1) malfunction or errors in the
phone system\ or internet or (2) interruption in the operation of the
services. In no event shall VoicePad’s liability
exceed the purchase price. OWNERSHIP OF DATA: All data and information
collected or compiled through the use or operation of the Services
(collectively, “Confidential Information”) shall be the sole and exclusive
property of VoicePad. Customer understands that certain Confidential
Information may identify individuals (“Individually Identifiable
Information”) and may be subject to protection by state and federal laws and
regulations including, but not limited to, the Privacy Rule of The Health
Insurance Portability and Accountability Act
(HIPAA) of 1996, (45 C.F.R. Parts 160-164) and Title V of the
Gramm-Leach-Bliley Act (15 U.S.C. § et. seq.). To the extent Customer is
given access to Confidential Information, Customer agrees to keep such
Confidential Information confidential and shall not disclose Confidential
Information to any person, entity or otherwise, or use the same in any other
way without the prior written approval of VoicePad. If Customer becomes aware
of any use or disclosure of Confidential Information by Customer, its
employees, agents or subcontractors which is not provided for in your VoicePad
Service Agreement, Customer shall report such violation to VoicePad
immediately. Customer shall implement and use and cause its subcontractors to
implement and use, appropriate administrative, technical and physical
safeguards to prevent the unauthorized use or disclosure of Confidential
Information. Customer shall also use and cause its subcontractors to use
appropriate safeguards to prevent unauthorized parties from accessing, using,
disclosing or tampering with Confidential Information maintained by Customer
and transmitted electronically to or from VoicePad. Customer agrees to make
available to VoicePad its internal policies and procedures relating to the
use and disclosure of Confidential Information received from, or created or
received by Customer on behalf of VoicePad. Customer agrees to mitigate, to
the extent practicable, any harmful effect that is known to Customer of a use
or disclosure of Confidential Information by Customer, its employees, agents
or subcontractors in violation of the requirements of the Agreement. Customer
must maintain a log of all disclosures of Confidential Information, including
but not limited to, disclosures needed to carry out Customer’s legal
responsibilities, and for proper management, internal auditing and
administration. Within ten (10) days of VoicePad’s written request, Customer
shall provide a copy of the log to VoicePad. Upon termination of the
Agreement, or at any time at the request of VoicePad, Customer shall use its
due diligence and its best effort to (a) promptly deliver to VoicePad all of
the Confidential Information received from VoicePad (excluding any analyses,
compilations, forecasts, studies or other such materials prepared by Customer
for his own internal use from the Confidential Information) and shall retain
no copies, extracts or other reproductions thereof, or (b) destroy such
Confidential Information and affirm that such Confidential Information has
been destroyed. PURCHASER REPRESENTATIONS, WARRANTIES AND COVENANTS. Customer represents and warrants the information provided in the VoicePad
Service Agreement is true and correct. VoicePad agrees to keep all Customer
information confidential, unless otherwise required by law or prior approval
is obtained from Customer. Customer shall not use VoicePad’s service marks or
other intellectual property without VoicePad’s prior written consent and only
pursuant to VoicePad’s standards. Customer agrees that, to the extent it uses
VoicePad’s website, it will comply with the website terms and conditions of
use, acceptable use policy and statement of privacy policy. Customer agrees
that it will not use the Services for any illegal or unethical activities. Customer
agrees that it will comply with all applicable Federal, state and local laws
with respect to the use of Services or the use of Confidential Information,
including but not limited to “no-call” laws. Purchase agrees that it will not
abuse the Service. For purposes of the Agreement, abuse includes but is not
limited to: (i) single code usage with over 50 inquiries in one 24-hour
period (or 300 inquiries within any 7 day period), (ii) single code with over
90 minutes of usage in one 24 hour prior (or 500 minutes within any 7 days),
or (iii) transferring calls to a phone number without prior written
approval. Customer also agrees to not
directly make available VoicePad service to non-professionally represented
properties. In the event Customer
fails to comply with this provision, VoicePad may cancel the Services and
terminate the Agreement without notice to Customer and without further
obligation hereunder. DISCLAIMER. VoicePad does not guarantee availability of
specific codes. VoicePad will only transfer calls to local or toll free
numbers. Customer shall be solely responsible for the content of all
Services. Customer shall be solely responsible for compliance with all laws
relating to the use of the Services or use of Confidential Information,
including federal and state “no-call” laws. INDEMNITY. Customer agrees to indemnify and hold harmless VoicePad
and its members, directors, officers, employees, agents, affiliates and their
personal representatives, heirs, successors and assigns, and each of them,
from and against any and all claims, liabilities, loses, demands, penalties,
fines, suits, judgments, settlements, damages, costs and expenses (including
without limitation reasonable attorneys’ fees) incurred by VoicePad or any
such person or entity, arising out of or related to Customer’s use of the
Services or the Confidential Information, including but not limited to the
content of material and the failure, breach or default by Customer of any of
the representations, warranties, covenants or other agreement of Customer
contained in the VoicePad Service Agreement. CANCELLATION AND DELAYS. VoicePad shall
have the absolute right to cancel the VoicePad Service Agreement upon breach
thereof by the Customer, failure by the Customer to make payment required by
the VoicePad Service Agreement, or the insolvency or bankruptcy of the Customer.
VoicePad shall not be liable for damages or delays in performance due to
circumstances beyond its reasonable control, including without limitation the
generality of the foregoing, any priority system established by any agency of
the United States Government, fires, floods, storms, and other acts of God,
accidents, strikes, terrorism, insurrections, war, shortage of materials,
technical difficulties or incompatibilities, lack of transportation and
failure of performance of subcontractors and/or suppliers for similar
reasons. Failure of VoicePad to perform for these reasons aforesaid shall not
be grounds for Customer's cancellation of its order but the term shall be
extended accordingly. VoicePad may in its sole discretion terminate the VoicePad
Service Agreement in the event that technical difficulties prevent the
performance of Services substantially in the manner provided herein. TAXES. All applicable federal, state or local sales, use
or exercise taxes are the responsibility of the Customer and shall be in addition
to the price or prices stated in the VoicePad Service Agreement unless
otherwise specifically stated. VoicePad shall have the right to invoice
separately any such tax as may be imposed at a later time. Applicable tax
exemption certificates must accompany any order to which the same applies. ENTIRE AGREEMENT. Your VoicePad Service Agreement constitutes the
entire agreement between the parties concerning the subject matter of the
Agreement. The Agreement supersedes any contemporaneous or prior proposal,
representation, agreement, or understanding between the parties. The Agreement may not be amended except in
writing by both parties. NOTICE; CLAIMS. Customer shall notify VoicePad of any problem or defect with the
Services no later than ten (10) days after the date the problem should have
been reasonably discovered. Failure to provide notice as provided herein
shall constitute a waiver by Customer of any claims with respect to such
problem or defect. All claims with respect to the Services, whether based on
contract, breach of warranty, tort (including, but not limited to, negligence
and strict liability) or otherwise must be made within twelve (12) months of
the performance of such Services. MISCELLANEOUS. The VoicePad Service Agreement may not be
assigned or transferred (by operation of law or otherwise) by Customer
without prior written consent of VoicePad. VoicePad's failure to insist, in
one or more instances, upon the performance of any term or terms of the
Agreement shall not be construed as a waiver or relinquishment of its right
to such performance or the future performance of such term or terms and Customer's
obligation with respect thereto shall continue in full force and effect. Any
notice or other communication required or permitted hereunder shall be given
in writing by registered or certified mail, postage prepaid, to the other
party thereto at its respective business address. Any such notice shall be
deemed to have been received on the third business day following such
mailing. Either party thereto may change its address for notice purposes by
written notice to the other party. The Agreement may be amended at any time
by mutual agreement of the parties hereto by an endorsement to the Agreement
signed by each of them. The invalidity, in whole or in part, of any provision
of the Agreement shall not affect the validity or enforceability of any other
of its provisions. The Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Kentucky. |