Terms & Conditions
Last Updated: November 17, 2021
Welcome to Sellular. These Terms of Service apply to our website www.sellular.com , and its associated subdomains alongside our application, Sellular (collectively, our “Services”).
If an account is opened on behalf of a company, organization, or other entity, then (a) “you” or “Customer” includes the individual opening the account and the entity, company or organization, the said individual represents; (b) Customer represents and warrant that: (i) it has read and understand these Terms; (ii) their representative is at least eighteen (18) years of age or an age of majority to enter into a binding agreement; (iii) their representative has the full legal authority to bind their employer, or the applicable entity, to these Terms and are authorized to grant all permissions and licenses provided in these Terms.
CUSTOMER AGREES AND ACKNOWLEDGES THAT CUSTOMER WILL BE BOUND BY THESE TERMS WHEN THE CUSTOMER CLICKS “ACCEPT AND REGISTER” AND THESE TERMS WILL OPERATE AS A BINDING AGREEMENT BETWEEN THE CUSTOMER, AND SELLULAR, IN RESPECT OF THE CUSTOMER’S USE OF THE SERVICES. PLEASE CEASE ACCESSING AND USING THE SERVICES BEING PROVIDED BY SELLULAR IMMEDIATELY, IF ANY OF THE TERMS SET OUT HEREUNDER ARE UNACCEPTABLE.
3. License and Intellectual Property rights
4. Fees and Payment Terms
5. Warranties, Limitation of Liability and Indemnities
7. Acceptable Use
11. Dispute Resolution
12. Governing Law
13. Modification to Terms and Services
14. Non- Compete
1. Definitions: “Account(s)” means the account that Customer sets up with Sellular which enables the access and use of the Services. “Admin” means the individual(s) of the Customer’s organisation who are in charge of the management and administration of the Customer Accounts and have certain administrative rights with respect to the use of the Services by your Authorised Users. “Affiliate” means, with respect to any person, any other person which directly or indirectly controls, is controlled by or is under common control with such person, and for the purposes of this definition the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise. “Application” means the Sellular Application which you can download or access via the Sellular website or through third party software application stores, through which you may use and access the Services. “Authorized Users’’ means your Admins, developers, employees and agents (which may include independent contractors, consultants, product vendors and service providers) who access and use the Services. “Services” means and includes all products, services, platforms, websites, software applications, interfaces, source code, systems, resources, proprietary information, materials and documentation that Sellular provides or agrees to provide, and any professional, technical, hosting or support services offered by Sellular in connection therewith. Services may include products that provide where applicable, connectivity services, that link the Services to the telecommunication providers’ networks via the Internet. Service Term (“Service Term”) will commence your acceptance of these Terms and will remain in effect until expiry of the pricing plan term as set out under these terms or as otherwise terminated by you or Sellular.
- Sellular Services: Sellular is a cloud based sales engagement platform. Subject to the Terms set forth hereunder, Sellular hereby grants the Customer and its Authorized Users a limited, non-exclusive, non-transferable, worldwide right and license, during the Service Term, to access and use, and permit Authorized Users to use, the Services strictly in accordance with these Terms.
- Service Registration: In order to access and use the Services, the Customer will need to register with Sellular and create an Account(s). As part of the registration process, the Customer will need to provide information such as name, address, email, company, phone number, credit card details to facilitate payments. Customer will ensure that the data provided by you for the registration of your Account is accurate, current, valid and complete and is up to date at all times, when using the Services. Customer acknowledges that the Customer or the Authorized Users may not be able to access or use the Services, in the event, if any of the data including but not limited to a valid payment details, are incomplete or not up to date. Sellular will not be liable for your inability to use or access the Services, owing to such incomplete or incorrect data.
- Credentials for Authorized Users: In order to use the Sellular may provide the Authorized Users with user IDs and passwords to access and use the Services. Authorized Users may use the Services only through such user IDs and passwords. The Customer is entirely responsible for maintaining the confidentiality of user IDs and passwords in the Customer’s possession and those that are in possession of the Authorized Users. As between the parties, the Customer is entirely responsible for any and all activities which occur under each user ID and password. Customer agrees to: (a) immediately notify Sellular of any unauthorized use of your password or account or any other breach of security; and (b) ensure that the Authorized Users exit from the Customer Account at the end of each session. Any action taken using the Customer’s credentials are deemed to be actions taken by the Customer and the Customer shall be responsible for all obligations arising out of the use of each user ID and password. Customer agrees to immediately notify Sellular of any unauthorized use of an account or any other breach of security known to Customer relating to the Service.
- Affiliates: The Customer’s Affiliates are not permitted to use the Services, under these Terms that the was accepted by the Customer. The Customer Affiliate, if any, may use the Sellular Services by registering for an Account with Sellular and accepting the Terms separately.
- The Customer may make calls or may receive phone calls via the Application, at any time that the Application is available, provided that those requests do not violate these Terms.
- Customer solely shall be responsible for any and all commitments and obligations to Authorized Users arising in connection with use of the Services and for all related Customer activities, projects, operations, communications, transactions and business processes.
- Sellular does not own any data, text, images, content or material that Customer or Authorised Users furnish to Sellular or its Affiliates or submit to the Services in the course of using the Services (“Customer Content”). Customer hereby grants to Sellular and its Affiliates a non-exclusive, non-transferable, worldwide, royalty-free right and license to use and publish Customer Content solely for the term of, and in connection with the performance of the Services. Customer has sole responsibility for the accuracy, quality, legality, appropriateness and intellectual property ownership or right to use of all Customer Content. Customer represents and warrants that neither the publication of Customer Content nor collection or use of User Data (as defined below) in connection with the Services violates or will violate any applicable law, regulation or third party right. Sellular does not undertake on behalf of the Customer or any End User to screen, review or regulate Customer Content or User Data. “User Data'' means any information or data that can be used to identify, contact, or locate any single End User, including, without limitation, email addresses, IP addresses, geotags, login credentials, names, mailing addresses and phone numbers.
- Customer solely shall be responsible for any and all commitments and obligations to End Users (as defined below) arising in connection and for all related Customer activities, projects, operations, communications, transactions and business processes. “End Users” means any persons, including but not limited to Authorised Users, who receive, access or use the Services through the Customer Account(s).
- Customer agrees to be responsible for all charges resulting from the use of the Customer account, including charges resulting from unauthorized use of the Customer account prior to your taking steps to prevent such occurrence by changing your password and notifying Sellular. Sellular will not be liable for any loss or damage arising from Customer’s failure to comply with these requirements. Customer is responsible for any charges imposed on Sellular by a carrier related to government fees for telecommunications, including but not limited to, universal service fund fees, if applicable. Customer is responsible for any charges to be imposed due to any penalties, charges, fines that Sellular may have been charged by a carrier or any other government/regulatory agencies. Customer account usage that occurred due to fraudulent attack(s) on the Customer website or Customer APP will be the Customer’s responsibility. Sellular has no liability or responsibility towards any such attacks or traffic. Further, all costs related to usage of Services in such a scenario will need to be paid for in full by the Customer.
- Customer agrees that the Customer will not access the Services by any means except through the interface provided by Sellular for access to the Services and that Customer will follow all carrier guidelines and third party guidelines. Creating or maintaining any link from another website to any page at the Sellular website without the prior authorization of Sellular is prohibited. Any permitted links to the Sellular website must comply with all applicable laws, rule and regulations.
- Customer will not, and will not allow End Users or third parties under its control to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable law); (b) sublicense, transfer, or distribute any of the Services; (c) sell, resell, or otherwise make the Services available to a third party as part of a commercial offering that does not have material value independent of the Services; or (d) access or use the Services: (i) in a manner intended to avoid incurring Fees; (i) for activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (iii) on behalf of or for the benefit of any entity or person who is legally prohibited from using the Services; or (iv) to transmit, store, or process Protected Health Information (as defined in and subject to HIPAA) unless the parties execute a HIPAA BAA that permits such transmission, storage, or processing.
- All content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such content. Customer acknowledges that all content accessed by you using the Services is at your own risk and Customer will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom.
- The Customer understands and acknowledges that Sellular is not a local phone service and that 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. Customer agrees that the Services does not permit or support any emergency calls to any type of emergency service including but not limited to access to any 911 or similar emergency services (no traditional 911, E911, or similar access to emergency services). The Customer must inform its Authorised Users that emergency services are not accessible using Sellular.
- Suspension of Services: Customer’s 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 Sellular shall also be entitled, without any liability to Customer, to suspend access to or shut down all of the Services at any time for scheduled downtime to permit Sellular to conduct maintenance or make modifications to any of the Service a) for scheduled downtime to permit Sellular to conduct maintenance or make modifications to any of the Services. Sellular may also suspend the Customers right and license to use any or all Services in its entirety for any reason or for no reason, at our discretion by providing seven (7) days advance notice. If Sellular determines that providing advance notice would negatively impact Sellular’s ability to provide Services, Sellular may suspend Customer rights and license to use any or all Services or terminate these Terms without notice. Sellular may suspend the Customer’s right and license to use the Service for cause effective as set forth below immediately upon notice if (i) Customer violates any provision of these Term or Sellular has reason to believe that the Customer has violated these Terms, (ii) there is an unusual spike or increase in the Customer’s use of the Services for which there is reason to believe such traffic or activity is fraudulent, abusive, harmful, threatening, defamatory, offensive and/or negatively impacting the operating capability of the Service; (iii) Sellular determines, in our sole discretion, that the provision of any of the Services to the Customer is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (iv) the Customer has become the subject of a voluntary or involuntary bankruptcy or similar proceeding Customer is in default of any payment obligation with respect to any of the Services or if any payment mechanism the Customer has provided to Sellular is invalid or charges are refused for such payment mechanism; or (v) if the balance of the Customer account falls below $0.00, the account will be suspended. If the account remains suspended for more than 30 days, all phone numbers associated with the account will be unrented. Unrented phone numbers will not be recoverable. Upon suspension 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 the Customer; (ii) Customer will remain liable for all fees, charges and any other obligations Customer has incurred for usage/activity through the date of suspension with respect to the Services; and (iii) all of Customer rights with respect to the Services shall be terminated during the period of the suspension. Sellular shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur as a result of any Service suspension. To the extent reasonably practical, Sellular will endeavor to provide Customer notice of any Service suspension and to post updates regarding resumption of Services following any such suspension but shall have no liability for the manner in which Sellular may do so or if Sellular fails to do so.
- Beta Services. From time to time, we may make available to You, Alpha or Beta Services, Products, Features, Functionality, SDKs or Documentation (“BETA SERVICES”). BETA SERVICES may contain bugs, defects and may not meet any service levels or operate without any service downtime. BETA SERVICES are provided to you “AS IS”, and are not considered under the scope of this Agreement. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We may suspend or terminate your access to or use of any BETA SERVICES at any time and for any reason. We will have no liability for any harm or damage arising out of or in connection with a Beta Service. You may choose to try such Beta Services in Your sole discretion
3. License and Intellectual Property Rights:
- Customer Agrees that the Customer’s use of the Sellular website, Application and the Services is solely and exclusively limited to the limited license granted under these Terms and you will not obtain any ownership interest therein through use of our website, these Terms or otherwise.
- As between the parties, Sellular owns and shall retain all rights, title, and interest in and to the Services, all components thereof, including without limitation all related applications, materials, documentation, works, inventions, discoveries, user interface designs, methods, processes, software and source code, graphics, text, sounds, pictures, and other files and the selection and arrangement thereof and any and all future enhancements or modifications thereto howsoever made, and all intellectual property rights therein and are subject to and protected by applicable intellectual property laws and rights. All rights not expressly granted in these Terms are reserved to their respective copyright owners. Sellular authorizes Customer to view and download the materials only for personal, non-commercial use, provided that the Customer keeps intact all copyright and other proprietary notices contained in the original materials. The Sellular name and logo are trademarks of Plivo Inc. Customer shall not remove, modify or copy any Sellular or third-party trademarks accessed through the Services. All third-party marks are the properties of their respective owners and may be used by Customer and Authorized Users only in connection with use of the Services and for no other purpose whatsoever. Sellular reserves all rights in and to the Services not expressly granted under these Terms. Sellular reserves the right to enforce its intellectual property rights to the fullest extent of the law.
- Customer shall not resell, sublicense or otherwise transfer or allow the use of the Services, or any part thereof, directly or indirectly, by or for the benefit of, any other person or organization (including, without limitation, Customer’s present and future Affiliates) except as authorized under these Terms or with the prior written approval of Sellular in each instance. Customer agrees to take commercially reasonable steps to prohibit all End Users from (i) posting or publishing Customer Content or User Data, or otherwise using the Services, in violation of applicable law, regulation or the intellectual property rights of any third party; and (ii) using the Services in any manner that could result in: (A) physical or other injury to an End User or any other person or entity; (B) commission of a crime or tort; (C) harm to the integrity of the Services or unauthorized access to data or accounts of third party users or customers; or (D) posting of information or content that is unlawful, abusive, racially or ethnically offensive, defamatory, infringing, illegal, invasive of personal privacy or publicity rights, harassing, libellous or threatening. Customer shall not permit any End User to use the Services in a manner inconsistent with Customer’s rights and obligations under these Terms.
4. Fees and Payment Terms:
- The Customer agrees to pay the Fees in accordance with the then current applicable pricing plans available a https://www.sellular.com/pricing/ and availed by the Customer(“Pricing Plan”).
- Sellular will charge and Customer will pay for any additional charges or costs imposed on Sellular by a carrier or any other government/regulatory agencies due to any penalties, charges, fines arising from the Customer’s use of the Services
- All Fees and charges exclude applicable taxes and are quoted and payable in U.S dollars. In addition to all fees and payments due, Customer will also pay all sales, use, service, value-added, excise and similar taxes, exclusive of Sellular’s income tax, and any other fees, assessments or taxes which may be assessed or levied by any taxing authority for Customer’s use of the Services made available by Sellular pursuant to these Terms. All amounts due under these Terms will be paid by the Customer in full without any withholding, set-off, counterclaim or deduction. If a deduction or withholding is legally required, Customer shall notify Sellular and shall pay such additional amounts to Sellular as necessary to ensure that the net amount received , after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally Customer shall provide Sellular with sufficient information and documentation as to the timely payment of all applicable withholding taxes to the relevant taxing authority.
- All Fees and charges exclude any applicable fees, charges or surcharges imposed on Sellular by a telecom operator, related to government fees for telecommunications, including but not limited to, Universal Service Fund fees, if applicable. Customer is solely responsible for such charges and surcharges and Customer shall promptly pay all such charges and surcharges associated with your use of the Services.
- All payment obligations are non-cancellable and all amounts paid are non-refundable. The Customer is responsible for paying for all Services used by the Customer. Sellular reserves the right to modify its Fees and charges, and to introduce new charges at any time. Your continued use of the Services after a price change becomes effective constitutes your agreement to pay the changed amount.
- All payments must be made in advance. If the preferred mode of payment is through a credit card, then the Customer will either: (i) enable auto-recharge of the Customer Account or (b) ensure that the Customer Account has a sufficient balance to cover all Fees due. The Customer may recharge your Sellular Account by way of wire transfer. If a recharge is done through wire transfer, then the Customer Account will be recharged to the extent of the amount credited to our account, less any applicable bank charges, within three (3) working days from the date of transfer. The Customer Account will stand recharged only once the funds so transferred are received in our account. Customer will be responsible for taking into account any applicable bank charges whilst undertaking the wire transfer. The Customer represents and warrants that in case of any wire transfer, the Customer has complied with all applicable laws, including without limitation, any foreign exchange laws. The Customer agrees to take into account such processing time and ensure that there is sufficient credit to continue to use the Services till such time the Account is recharged.
- Where Sellular agrees that payments can be made in arrears, then Sellular will invoice the Customer either monthly or annually (depending on the applicable pricing plan), which will be sent to the Customer via email. Customer shall make payment of each invoice within seven (7) days thereof. In the event any fees or charges not subject to bona fide dispute are not timely paid, then Sellular shall be entitled to charge and receive an interest of 1.5% per month, or the maximum amount allowable by applicable Law, whichever is higher.
- The Customer agrees that Sellular reserves the right to suspend the Services, without prejudice to any other remedies it may have, if: (a) there is a negative balance on your Account or (b) if the charge for Fees due, on the customer credit card is declined for any reason or (c) if any undisputed Fees invoiced is overdue, until payment in full is received.
- Sellular may in a separate invoice make backdated claims for amounts outstanding fees, any penalties or charges, and fines from a previous billing period which were not previously invoiced. The backdated claims can be made within nine (9) months of the date that the Services were rendered and/or penalties or charges, fines were charged.
- In the event that the Customer disputes the calculation of any Fees or payments paid or payable by the Customer under these Terms, then the Customer must provide written notice of such dispute within seven (7) days from the date of the relevant bill or invoice as applicable. Upon timely submission of a notice of dispute pursuant, the parties will work in good faith to resolve this dispute, without undue delay. The Customer is obligated to pay all undisputed portions of the bill/invoice within the due date.
5. Warranties, Limitation of Liability and Indemnities:
- Each party warrants to the other that it has the right to enter into and perform these Terms.
- Sellular warrants that Sellular has sufficient rights in the Services to grant to Customer the rights granted under these Terms and that the Services will be performed in a professional and workmanlike manner with due care and diligence and to the standards of quality as is customary in the industry. If the Services do not conform to the warranties above, Customer’s sole and exclusive remedy for our failure to comply with said warranty, is either reperformance of the affected Service or refund for the affected portion of the Service, at the sole option of Sellular.
- THE WARRANTIES EXPRESSLY SET FORTH HEREIN ARE THE ONLY WARRANTIES MADE OR GRANTED BY SELLULAR WITH RESPECT TO THE SERVICES AND SUCH WARRANTIES ARE EXPRESSLY MADE IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED ABOVE, THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. REGARDLESS OF ANY COURSE OF DEALING, PROMOTIONAL LITERATURE OR OTHER ACTIONS APPARENTLY CREATING A WARRANTY, SELLULAR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, RESPECTING THE FUNCTIONAL CHARACTERISTICS OR PERFORMANCE OF THE SERVICES OR THE BENEFITS TO BE OBTAINED BY CUSTOMER OR ANY END USERS FROM USE OF THE SERVICES. CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER SOLE RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLULAR MAKES NO WARRANTY THAT: (I) THE SERVICES WILL MEET CUSTOMER REQUIREMENTS; (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER EXPECTATIONS OR NEEDS; AND (V) ANY ERRORS IN THE SERVICES WILL BE CORRECTED.
Limitations of Liability
- SELLULAR SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING ANY LIABILITY: (I) AS A PUBLISHER OF INFORMATION; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION; (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF CUSTOMER TRANSMISSIONS OR DATA; (IV) FOR STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE WEBSITE; (V) FOR ANY OTHER MATTER RELATING TO THE SERVICES OR ANY THIRD PARTY WEBSITE OR (IV) FOR ANY DELAY OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THESE TERMS, OR BE LIABLE FOR ANY LOSSES SUFFERED OR INCURRED BY OR AWARDED AGAINST THE CUSTOMER UNDER OR IN CONNECTION WITH THESE TERMS, IF AND TO THE EXTENT THAT SUCH DELAY, FAILURE, OR LOSSES IS OR ARE CAUSED BY ANY ACTS OR OMISSIONS OF THE CUSTOMER OR THE CUSTOMER’S EMPLOYEES, AGENTS OR CONTRACTORS OR DUE TO A BREACH OF THESE TERMS BY THE CUSTOMER. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SELLULAR AND CUSTOMER. THE PRODUCTS, INFORMATION AND SERVICES OFFERED WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
- THE SOLE AND ENTIRE MAXIMUM LIABILITY OF SELLULAR PARTIES FOR ANY REASON, AND CUSTOMER SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER FOR ANY PRODUCT, INFORMATION OR SERVICE PURCHASED BY CUSTOMER FROM SELLULAR UNDER THESE TERMS IN LAST ONE MONTH FROM DATE OF SUCH CLAIM.
- THE SERVICES DOES NOT AND IS 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 SELLULAR 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 CUSTOMER HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO CUSTOMER INABILITY TO USE SELLULAR OR ITS SERVICES TO CONTACT ANY EMERGENCY SERVICES, OR CUSTOMER FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES.
- NEITHER PARTY EXCLUDES OR RESTRICTS LIABILITY IN RESPECT OF ANY LIABILITY NOT CAPABLE OF EXCLUSION OR LIMITATION BY APPLICABLE LAW. WITHOUT PREJUDICE TO THE FORGOING, NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY OTHER PERSON FOR (I) ANY LOSS OF PROFIT, BUSINESS, REVENUE, CONTRACTS, OPPORTUNITY, GOODWILL OR ANTICIPATED SAVINGS, WHETHER DIRECT, INDIRECT, FORESEEABLE OR UNFORESEEABLE; OR (II) ANY TYPE OF SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR PUNITIVE OR EXEMPLARY DAMAGE; OR (III) LOSS OF OR DAMAGE TO DATA.
By Customer. To the extent any claim, suit or action by any third party against the Sellular, its subsidiaries, Affiliates, its directors, officers and employees (“Sellular Parties”) arises out of or is related to: Customer’s provision of any Customer Content, data or information to any Sellular Parties; any activity related to the Customer’s Account by the Customer or any other person, any material that Customer submit to, post on or transmit through the Services; Customer’s infringement or violation of any rights of another, violation of the AUP by the Customer, Customer end-user customer or any third party agents or affiliates; Customer’s use or provision of User Data; Customer’s breach of these Terms or breach of any agreement, commitment or obligation to any End User or other third party; or Customer’s violation of any law, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding requirement of or by any governmental authority, Customer, at its expense, shall defend such claim, suit or action, and shall indemnify and hold harmless the Sellular Parties from and against any reasonably incurred expenses (including legal fees) and all damages assessed or awarded by a court or other tribunal of competent jurisdiction in connection therewith.
- These Terms will come into effect upon Customer’s acceptance of these Terms and will remain in effect until the expiration of the current applicable Pricing Plan availed by the Customer, unless otherwise terminated by the Customer or Sellular in accordance with these Terms. The Pricing Plan shall commence on the date of purchase of the Pricing Plan and shall continue for the duration set forth under the Pricing Plan (the “Initial Term”). Following the Initial Term, the Pricing Plan will automatically renew for successive renewal terms of the same duration (each successive renewal term, a “Renewal Term”), unless either party gives the other party a written notice of non-renewal at least ninety (90) days prior to the end of the Initial Term or any successive Renewal Term.
- Either Party may terminate these Terms at any time if the other party (i) materially breaches (including but not limited to payment obligations) these Terms and fails to cure such breach within five (5) days after receipt of written notice of the breach from the non-breaching party, (ii) ceases to carry on its business or threatens to cease carrying on its business, or (iii) initiates or consents to proceedings relating to it, under any bankruptcy, reorganization, insolvency, moratorium, intervention law or law with similar effect, or under any law for the relief of, or relating to, debtors, or makes or enters into a conveyance, assignment, arrangement, or composition with or for the benefit of its creditors or appoints or applies for the appointment of an administrator, receiver, trustee, intervener, or assignee for the benefit of creditors.
- Sellular may at its sole discretion terminate these Terms, with immediate effect in the event that (i) the Customer fails to pay any invoice for a period in excess of thirty (30) days after the due date of that invoice, other than where the invoice in question is the subject of bona fide dispute; (ii) where Sellular has suspended, limited or cancelled a relevant Service in accordance with these terms and the cause of such suspension, limitation or cancellation has not been remedied within five (5) days; (iii) in the event that any licence, consent or other permission required by the Customer relevant to the Customer’s performance of its obligations in respect of the Services is revoked or terminated and not immediately replaced. Sellular may terminate these Terms and/or suspend the Services for any reason whatsoever, upon written notice, without any liability whatsoever. To the extent that such a termination does not result from the Customer’s breach of these Terms, then Sellular shall refund any unused portion of any pre-paid fees, if applicable.
- Except as otherwise expressly otherwise, upon termination of these Terms, all Services shall cease and Customer will discontinue use of the Services. Upon termination or expiration of these Terms for any reason, (a) Customer will promptly (not to exceed 5 business days) pay any amounts accruing to Sellular including but not limited to all fees, charges and any other obligations Customer has incurred for use of the Services through the date of termination and applicable penalties, charges, fines that may have been incurred by Sellular due to activity from the Customer’s account even if such charges are incurred subsequent to the termination of these Terms. Sellular reserves the right to charge the Customers card on file for any outstanding balance as well as any penalties, fines, charges due to Sellular; and (b) both parties will destroy or return, as requested by the other party, all Confidential Information of the other party and copies thereof. This Section is not intended to limit any remedies that may be available to a party for a termination of these Terms by the other party. Nothing in this Section will limit either party’s right to seek and obtain any other remedies available to such party under these Terms, at law, or in equity, including Sellular’s right to recover in full any fees or payments due and owing it under these Terms.
- Notwithstanding such termination or suspension, the parties will continue to be subject to the “Intellectual Property”, “Fees and Payment”, “Warranties, Limitations of Liability and Indemnification”, “Applicable Law and Jurisdiction”, and “Services” sections of these Terms.
7. Acceptable use:
- Customer will not: (a) use the Service except as permitted hereunder; (b) decompile, disassemble, or reverse engineer the underlying software to the Service (unless this restriction is not permitted under applicable law); (c) sell, rent, lease or use the Service for time sharing purposes; (d) remove any copyright or proprietary notices contained in the Service; or (e) access or use the Services: (i) in a manner intended to avoid incurring Fees; (ii) for activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State (to the extent applicable to these Terms); or (iii) on behalf of or for the benefit of any entity or person who is legally prohibited from using the Services. Customer agrees to take commercially reasonable steps to prohibit all Authorised Users from (i) using the Services, in violation of applicable Law, Regulatory Requirements or the intellectual property rights of any third party; and (ii) using the Services in any manner that could result in: (A) physical or other injury to any other person or entity; (B) commission of a crime or tort; (C) harm to the integrity of the Services or unauthorized access to data or accounts of third party users or customers; or (D) posting of information or content that is unlawful, abusive, racially or ethnically offensive, defamatory, infringing, illegal, invasive of personal privacy or publicity rights, harassing, libellous or threatening.
- Customer may not do any of the following while accessing or using the Services: (i) access, tamper with, or use non-public areas of the Application, website, Services, our computer systems, or the technical delivery systems of our providers; (ii) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (iii) access or search or attempt to access or search the Application, website, Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by us (and only pursuant to those terms and conditions), unless Customer have been specifically allowed to do so in a separate agreement with us; (iv) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; or (v) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Application or Website, or by scripting the creation of content in such a manner as to interfere with or create an undue burden on the Application or Website or Services.
- Additionally, the following list gives examples of illegal, abusive, interfering or otherwise unacceptable or inappropriate behaviour while using the Website or the Application or Services: (i) Attempting to bypass or break any security mechanism on any of the Services or using the Services in any other manner that poses a security or service risk to Sellular, to any user of our Services, or to any of our or their respective customers; (ii) Testing or reverse-engineering the Services in order to find limitations, vulnerabilities or evade filtering capabilities; (iii) Using the Services in any manner that violates the Mobile Marketing Association guidelines and/or best practices, carrier guidelines, or any other industry standards; (iv) Engaging in fraud with respect to Customer account, including using any caller ID functionality of the Services to misrepresent the identity of a caller; (v)Using Customer account to engage in fraudulent activity with respect to third parties or otherwise using Customer account to bypass phone identification systems such as those by classified advertising websites; (vi) Using any of Sellular's trademarks other than as expressly permitted; (vii) knowingly transmitting any material that infringes the intellectual property rights or other rights of third parties, including but not limited to trademark, copyright or rights of publicity or otherwise violating, infringing, or misappropriating the rights of any third party; (viii) Engaging in spamming or other unsolicited advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations applicable to the Customer; (ix) Using the Services in connection with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited or unwanted phone calls SMS or text messages, voice mail, or faxes; (x) Offering services that allow a user to connect with emergency services personnel or public safety answering points such as 911 or E911 services, unless specifically paid for and activated by Sellular; (xi) Promoting or engaging in illegal activities; (xii) Engaging in activities or transmitting through the Services any information that may be libellous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (xiii) Harvesting or otherwise collecting information about others, including email addresses or phone numbers, from Sellular’s website without their express consent;(xiv) Creating a false identity or forged email address or header, or phone number, or otherwise attempting to mislead others as to the identity of the sender or the origin of a message or phone call using Customer account; (xv) Violating or facilitating the violation of any U.S. or foreign law regarding the transmission of technical data or software, or the recording of telephone calls; (xvi) Using the Services, or a component of the Services, in a manner not authorized by Sellular.
- No Disclosure. In connection with these Terms and the Services, a Party might receive or gain access to the other Party’s Confidential Information. Each Party receiving Confidential Information (the “Receiving Party”) agrees to maintain all such Confidential Information received from the other Party (the “Disclosing Party”), both orally and in writing, in confidence and agrees not to disclose or otherwise make available such Confidential Information to any Third Party without the prior written consent of the Disclosing Party; provided that the Disclosing Party (a) may disclose the terms and conditions of these Terms to its legal and financial consultants (on a confidential basis in the ordinary course of its business and (b) to its officers, directors, employees and authorized sub-contractors who have a “need to know” such information in order to exercise its rights and perform its obligations under these Terms. Each Party agrees to use commercially reasonable efforts to protect Confidential Information of the other Party, and in any event, to take precautions at least as great as those taken to protect its own Confidential Information of a similar nature. Each Party shall also notify the other Party promptly in writing in the event such Party learns of any unauthorized use or disclosure of any Confidential Information that it has received from the other Party and will cooperate in good faith to remedy such occurrences to the extent reasonably possible. Whenever requested by the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party all manifestations of the Confidential Information or, at the Disclosing Party’s option, shall destroy all such Confidential Information as the Disclosing Party may designate. The foregoing restrictions shall remain in effect during the Service Term hereof and for a period of two (2) years after termination of these Terms for any reason; provided, however, that if any such Confidential Information constitutes a trade secret under Applicable Law, such restrictions shall remain in effect for so long beyond such period as such Confidential Information continues to qualify as a trade secret as so defined. This Section shall survive termination of these Terms.
- Exclusions. The Receiving Party’s obligations under Section shall not apply to Confidential Information which: (i) is or becomes a matter of public knowledge through no fault of or action by the Receiving Party; (ii) was rightfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party; (iii) subsequent to disclosure, is rightfully obtained by the Receiving Party from a Third Party who is lawfully in possession of such Confidential Information without restriction; (iv) is independently developed by the Receiving Party without resort to the Disclosing Party’s Confidential Information; or (v) is required to be disclosed by law or judicial order.
- Any notice given under or in connection with these Terms by one party to the other shall, except where expressly otherwise provided, be in writing and shall be sent by: (i) e-mail; or (ii) pre-paid, first class post;
- Notices to the Customer will be sent via email and the Customer's address for correspondence shall be the email address designated and specified in your Account or as otherwise notified to Sellular by the Customer in writing.
- Sellular's address for correspondence shall Plivo Inc, 6001 W Parmer Ln, Ste 370 PMB 2774 Austin, TX 78727 and it shall be marked for the attention of: Plivo Inc, a copy of all notices shall be sent to Sellular at the above address marked for the attention of: Legal e-mail: Legal@plivo.com
11. Dispute Resolution
The Parties shall attempt to settle amicably any dispute arising out of or in connection with these Terms by mutual discussion between the authorised persons within thirty (30) days, or such other period as the authorised persons may agree, of the date that a party first notifies the other party of the dispute. If the dispute cannot be resolved by the authorised persons within thirty (30) days or such other period as the authorised persons may agree, then the parties shall refer the dispute to a member of each party's senior management (each having the requisite authority and expertise to deal with it), who shall endeavour to resolve the dispute within a further fourteen (14) days. If senior management cannot resolve the dispute within the said fourteen (14) days or such other period as they may agree, either Party may then seek to have the dispute determined in accordance with the terms set out in the Governing Law Section below.
12. Governing Law
- These Terms shall be governed by and construed and interpreted in accordance with the laws of State of Delaware and the parties hereby agree to submit to the exclusive jurisdiction of the courts of Delaware save that Sellular may institute proceedings against the Customer in any court in which Sellular is able to find jurisdiction.
- IN ANY CLAIM, ACTION OR PROCEEDING TO ENFORCE ANY RIGHT OR OBLIGATION OF THE PARTIES UNDER THESE TERMS INCLUDING, WITHOUT LIMITATION, RELATING TO CUSTOMER’S USE OF OUR SERVICES, CUSTOMER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE THEIR RIGHTS TO ASSERT ANY CLAIM AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING.
- THE FEDERAL ARBITRATION ACT APPLIES TO THESE TERMS. ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THESE TERMS OR FROM ANY SERVICES CUSTOMER RECEIVES FROM SELLULAR WILL BE RESOLVED BY ONE OR MORE NEUTRAL ARBITRATORS BEFORE THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). THE ARBITRATION AND AWARD SHALL BE FULLY BINDING AND ENFORCEABLE. IF EITHER PARTY INTENDS TO SEEK ARBITRATION UNDER THESE TERMS, THE PARTY SEEKING ARBITRATION MUST FIRST NOTIFY THE OTHER PARTY OF THE DISPUTE IN WRITING AT LEAST 30 DAYS IN ADVANCE OF INITIATING THE ARBITRATION. THE NOTICE MUST DESCRIBE THE NATURE OF THE CLAIM AND THE RELIEF BEING SOUGHT. THESE TERMS DOESN’T ALLOW CLASS OR COLLECTIVE ARBITRATIONS EVEN IF THE AAA PROCEDURES OR RULES WOULD.
13. Modification to Terms and Services:
- Changes to the Service: Customer acknowledges that Sellular may change, deprecate or republish the Services, or feature of the Services from time to time, and that it is Customer’s responsibility to ensure that calls or requests that the Customer makes to or via the Services are compatible with then-current Services. Sellular will make reasonable efforts to inform the Customer of any material changes to the Services. Unless explicitly stated otherwise,any new features provided by Sellular that augment or enhance the Sellular Cloud shall be subject to these Terms of Service.
14. Non-Compete: Customer is required to take explicit written approval from Sellular if you wish to use our Services and have similar business structure and/or are a direct competitor of Sellular ; additionally, you are not permitted to utilise Sellular’s Services for purpose of building a competitive product or services by way of including but not limiting monitoring performance or operability , or scalability of the Services.Further, During the term of use of our Services and for a period of twelve (12) months thereafter, You shall not compete against Sellular by using its data or otherwise 15. Miscellaneous:
- Except as expressly set forth herein, these Terms supersede all prior oral or written negotiations and discussions of the parties and constitutes the entire agreement between the parties with respect to the subject matter hereof. No modification, amendment, supplement, or waiver of any of the provisions hereof shall be binding upon any party hereto unless made in writing and signed by the duly authorized officer of the parties hereto. These Terms may not be assigned by the Customer without the prior written consent of Sellular, and any attempt to do so shall be null and void. These Terms may be assigned by Sellular in connection with any merger, acquisition or reorganization of Sellular, its business or its assets without the consent of Customer. Sellular may use the resources of its Affiliates in performance of its obligations and Services hereunder. Notwithstanding the use of any Affiliate’s or other resources, Sellular shall continue to be responsible to Customer for the performance of all obligations and Services hereunder.
- If any provision hereof shall for any reason be declared to be void or illegal, the enforceability of these Terms or any other provision hereof shall not be affected. In addition, the parties agree that such void or illegal provision shall be construed in a manner designed to effectuate its purpose to the fullest extent enforceable under applicable law.
- Neither party shall be liable for any delay or deficiency in the performance of its obligations if this delay is imputable to force majeure. Following events are considered to be force majeure: flood, earthquake or other natural disaster; war; strike, lockout or other labour dispute; civil or military disturbance, acts or orders of statutory, military or other governmental authority. A Party impacted by a force majeure event shall promptly notify the other party and use reasonable commercial efforts to mitigate the impact of the force majeure event and resume the performance of those obligations impacted as soon as reasonably practicable. No force majeure event shall excuse the Customer from its obligation to make any payments owed to Sellular for Services delivered before the force majeure event or that accrue due to the Customer’s continued use of the Services after the occurrence of a force majeure event.
- The Services may contain links to other websites not operated or controlled by Sellular. Sellular assumes no responsibility and makes no representation or warranty with respect to websites, software or services owned or operated independently by third parties, which we may allow to be accessed or used by Customer or Authorised Users or End Users through the Services. We are not responsible for the content, accuracy or opinions expressed in such websites, and such websites are not investigated, monitored or checked for accuracy or completeness by Sellular. Please remember that when you use a link to go from the Services to another website, our Terms are no longer in effect. Your browsing and interaction on any other website, including those that have a link on the Sellular Website/application, is subject to that website’s own rules and policies. Such third parties may use their own cookies or other methods to collect information about you.
- The parties are independent contractors with respect to each other, and neither shall be deemed an employee, agent, partner or legal representative of the other for any purpose or shall have any authority to create any obligation on behalf of the other. No third-party beneficiary rights are granted as a result of or pursuant to these Terms.
- The failure or delay of any party in exercising any right or remedy under these Terms shall not constitute a waiver or a waiver of any other right or remedy and no single or partial exercise of any right or remedy shall prevent any further exercise of the right or remedy.
- The relationship between the Parties is that of supplier and customer. Nothing in these Terms shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purposes whatsoever, and neither party shall have the authority or power to bind the other party, or to contract in the name of, or to create a liability against, the other party in any way or for any purpose.
- Customer hereby grants Sellular permission to use Customer’s trade names, trademarks, service marks, logos, domain names and the like, for the purpose of promoting and / or advertising Customer’s use of Sellular Services. In addition, Sellular may request testimonials and create case studies, for the purpose of joint marketing and public relations efforts that will be published on the Sellular website and shared with current and potential customers.
- Customer shall comply with all applicable laws, rules, regulations including but not limiting to data privacy, anti-corruption and export laws.
- Customer shall comply with the anti- bribery and anti – corruption policies for Sellular at all times and shall abide by applicable anti-bribery and anti- corruptions laws and regulations. Further, you agree that you have and shall not offer or accept any illegal payments, kickbacks, gifts or things of value from Sellular or its employees and representatives in connection with the Services. Sellular reserves the right to immediately on a written notice to terminate all the Services in an event of breach of prevision.
- The Customer confirms that, in entering into these Terms it has not relied on and shall have no remedy in respect of, any statement, representation or warranty that is not set out in these Terms, and agrees that the only remedy available to it for breach of any statement, representation or other term that is expressly set out in these Terms shall be for breach of contract.
- Any feedback, comments, ideas, improvements or suggestions (collectively, "Suggestions") provided by the Customer to Sellular with respect to the Website/Application/Services shall remain the sole and exclusive property of Sellular. Sellular shall be free to use, copy, modify, publish, or redistribute the Suggestions for any purpose and in any way without any credit or any compensation to you.
- If you are a copyright owner or such owner’s agent and believe any material on our Sellular Website/Application/Services constitutes an infringement on your copyright, please contact us setting forth the following information: (a) a physical or electronic signature of the copyright owner or a person authorized to act on his behalf; (b) identification of the material that is claimed to be infringing; (c) your contact information, including your address, telephone number, and an email; (d) a statement by you that you have a good faith belief that use of the material is not authorized by the copyright owners; and (e) the a statement that the information in the notification is accurate, and, under penalty of perjury you are authorized to act on behalf of the owner.
16. Contact Us
Don’t hesitate to contact us if you have any questions via this Link: https://support.sellular.com