Auxilin, LLC. - Terms of service
Welcome to Maqpie, provided by Auxilin, LLC (“Maqpie,” “we,” “our,” or “us”). These Terms of Service govern your use of our website (“Site”) and the software applications, architecture and platform (the “Software”) and systems and data facilities (the “Network”); made available on our Site, as well as any other websites, subdomains, or services owned or controlled by Maqpie; that provide you with access to the Software and Network (collectively, the “Service”). To access the Service, users must at all times agree to and abide by these Terms. The Service allows you to submit, store, and access certain business data and other information related to you, your customers, or your business (collectively, “User Data”).
These Terms of Service; constitute; a legal contract between you, the representative who is authorized to legally bind a single company, organization, or entity (“you” or “Customer”, or collectively with other users, “Users”) and Maqpie regarding your use of the Service. Maqpie may have different roles with respect to different types of Users, and “you” as used in these Terms will apply to the appropriate type of User under the circumstances.
If you are using or opening an account with Maqpie on behalf of a company, entity, or organization (collectively, the “Subscribing Organization”) then you represent and warrant that you: (i) are an authorized representative of that entity with the authority to bind such entity to these Terms; (ii) have read these Terms; (iii) understand these Terms, and (iv) agree to these Terms on behalf of such Subscribing Organization.
Please read these Terms carefully to ensure that you understand each provision. This Agreement contains a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. ;
1. License Grant. Subject to the terms and conditions of these Terms,;Maqpie hereby grants to you a limited, personal, non-transferable and revocable license to use the Service in the manner contemplated by these Terms solely for your internal business purposes. Users shall have no right to sub-license or resell the Service or any component thereof.
3. Individual Features and Services.;
3.1 Individual Service and Quote.; Certain features of the Service (“Individual Services”) may have their own terms and conditions that you must agree to when you sign up for that particular product, function, or service (each an “Individual Service Agreement”). An Individual Service Agreement supplements these Terms and is hereby incorporated by reference. If any term of these Terms expressly conflicts with any term of an Individual Service Agreement, the conflicting term in the Individual Service Agreement will control.; In the event that your Quote conflicts with any other Terms, your Quote shall govern.; All other terms and conditions of each agreement will remain in full force and effect. Further, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into the Terms.
3.2.VoIP.; The Services may include the provision of an integrated Voice over Internet Protocol phone system (“VoIP Phone”) that is designed to work with the Software and Customer's CRM or patient records system to automate certain aspects of its customer contact activities.; The Services may include local and long-distance service. All phone features and settings are configured through Maqpie. Any and all features of the Services are limited to Maqpie's PBX, hosted on their secured servers. In the event of a needed feature or setting, Maqpie will attempt to provide information and open a development ticket. Customer can request regular updates regarding the status. Features may include caller ID, hold music, unlimited inbound and outbound calls, and other features that Maqpie may from time to time provide.; All costs for VoIP Phone usage are the responsibility of Customer, including but not limited to any international calls placed. Maqpie does not assume any liability for calls placed or received, and does not guarantee any level of service due to all third party variables. Maqpie may assist Customer in coordinating with IT professionals and Internet Service Providers (ISP) to help facilitate the efficient use of the Services and Software. Customer agrees to follow Maqpie's networking suggestions in maintaining a sustainable backbone for the VoIP system including, but not limited to, minimum upload and download speeds, specific ISPs, routers, switches, any other similar or related matters.; All texting features provided by Maqpie are expressly designed for open communication with Customer’s patient database or potential patients of that business.; Because of the unique true-text feature provided by Maqpie, Customer agrees not to send bulk texts without the intent or design of initiating a conversation, and Customer shall otherwise be solely responsible to ensure that its communications with its patients and others comply with all applicable and federal law. In certain situations, Customer’s use can result in the assigned number being blacklisted by all receiving cell phone carriers. The decision to blacklist is not made by Maqpie, but by the receiving carrier. In this event, a new number can be issued by Maqpie, which will include a processing fee. Maqpie assumes no responsibility for any lost communication in the event of a transition between numbers to or from the Services, and is under no obligation to find a like number, including area code, or notify Customer’s patients of the change.
4. Modification of the Terms. Maqpie reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time. You agree to review these Terms and any Guidelines periodically for changes. When we change the Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. If any such revision is unacceptable to you, your only remedy is to terminate your Maqpie User Account.
5. Mobile Software
5.1 Generally. We may make available a version of the Software to access the Service via a mobile device (“Mobile Software”). To use the Mobile Software you must have a mobile device that is compatible with the Mobile Software. Maqpie does not warrant that the Mobile Software will be compatible with your mobile device. You may use mobile data in connection with the Mobile Software and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. Maqpie hereby grants you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Software for one Maqpie account on one mobile device owned or leased solely by you, for your personal use. You may not: (a) modify, disassemble, decompile or reverse engineer the Mobile Software, except to the extent that such restriction is expressly prohibited by law; (b) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to any third party or use the Mobile Software to provide time sharing or similar services for any third party; (c) make any copies of the Mobile Software; (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Software, features that prevent or restrict use or copying of any content accessible through the Mobile Software, or features that enforce limitations on use of the Mobile Software; or (e) delete the copyright and other proprietary rights notices on the Mobile Software.
You acknowledge that Maqpie may from time to time issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Software is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Software or any copy thereof, and Maqpie or its third-party partners or suppliers retain all right, title, and interest in the Mobile Software (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms, is void. Maqpie reserves all rights not expressly granted under these Terms. If the Mobile Software is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Software will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Software originates in the United States, and is subject to United States export laws and regulations. The Mobile Software may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Software may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Software and the Service.
5.2;Mobile Software from Apple App Store. The following applies to any Mobile Software you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms is solely between you and Maqpie, not Apple, Inc. (“Apple”), and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Maqpie as provider of the Software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Maqpie as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Maqpie, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Maqpie acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and you will be deemed to have accepted the right) to enforce these Terms, as it relates to your license of the Apple-Sourced Software against you, as a third-party beneficiary thereof.
5.3;Mobile Software from Google Play Store. The following applies to any Mobile Software you acquire from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that the Agreement is between you and Maqpie only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (c) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (d) Maqpie, and not Google, is solely responsible for its Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (f) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Maqpie’s Google-Sourced Software.
6. Term; Termination.;
6.1 Term.; Unless the applicable Order states otherwise, the term for these Terms shall commence upon the date you sign up for the Services, and shall remain in effect on a month-to-month basis (the “Term”)until one party notifies the other of its intent to terminate in accordance with Section 6.2, below.;
6.2 Termination for Convenience. Either party may terminate these Terms upon thirty (30) days’ advance written notice.
6.3 Termination for Cause. Either party may terminate these Terms upon thirty (30) days’ advance written notice if: (i) the other party has breached this Agreement (including through non-payment of amounts owed hereunder) and not cured such breach within such notice period; or (ii) the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, initiates or becomes subject to any proceeding under any bankruptcy or insolvency law, or has wound up or liquidated its business.
6.4 Suspension of Services.; You agree that Maqpie may suspend your access to the Services immediately if Maqpie reasonably believes you are, or any communications sent via or through the Service are, in violation of these Terms or applicable law or in the event that you are not up to date on all amounts owed to Maqpie hereunder.
6.5 Effects of Termination. Upon expiration or termination of these Terms, all licenses granted shall immediately terminate and, if applicable, each party shall promptly cease all use of the other party’s logos and promptly cease representing itself as the customer or commercial partner of the other.; If any fees are outstanding, you shall pay such fees within thirty (30) days of the effective date of termination or expiration.; Upon any termination or expiration hereof, or upon the earlier request by Maqpie, any VoIP Phone that has been provided by or on behalf of Maqpie must be returned to Maqpie within ten (10) business days of such termination, expiration or request or you will incur additional charges.; If Customer refuses to return the VoIP Phone and any other hardware provided by or through Maqpie within ten (10) business days of the canceled date of service, (collectively, “Supplied Hardware”), Maqpie retains the right to bill Customer the full MSRP price to replace the Supplied Hardware. Supplied Hardware must be in working condition taking into account normal wear and tear. If not, Customer will be billed applicable fees for lost or damaged Supplied Hardware. If Customer has been a customer for 36 months or greater, the Supplied Hardware is the sole property of the Customer and does not need to be returned. For all Supplied Hardware, applicable taxes and surcharges may apply.; For the avoidance of doubt, Maqpie assumes no responsibility or liability surrounding the operation of, or your use of, any Supplied Hardware.
7. Account Activity Responsibility
7.1 User Accounts. In order to use certain aspects of the Service, you will have to register for the Service and create an account or an account will be created for you through the system (“User Account”). When creating your account or working with Maqpie to create an account for the Service, you agree to provide true, accurate, current, and complete information. You further agree to maintain and update your personal information as needed to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your ID, password, or any credit, debit or charge card number), you agree to immediately notify Maqpie. You may be liable for the losses incurred by Maqpie or others due to any unauthorized use of your User Account.
7.2 Administrator Accounts. The person who first completes the Service registration on behalf of any Subscribing Organization is the initial “Administrator” for purposes of such Subscribing Organization’s use of the Service, and exercises certain options to initially determine the level of access, privacy, and security for the Service related to the Subscribing Organization (“Administrator Account”). For example, the Administrator will determine who can be a User of the Service under the organization associated with that Administrator and Subscribing Organization and the level of privileges that such Users will possess. Each Administrator may designate other Users as additional and/or successor Administrators, and is responsible for confirming that those person(s) accept such responsibility. Upon becoming an Administrator, each person will be deemed to agree to the obligations hereunder. In addition, any person designated as the billing contact in the Service billing record for a Subscribing Organization will be deemed to assume the rights and obligations of an Administrator. Administrator Accounts must comply in all respects with all terms and conditions applicable to User Accounts.
7.3 System Access. You may choose to allow Maqpie to automatically retrieve data from your system(s) or third-party systems or services on your behalf (collectively, the “Systems”). You hereby represent and warrant that you have the permission, authority, and rights to allow Maqpie to so automatically access such System(s) and you hereby grant Maqpie permission to access such system(s); and retrieve User Data therefrom by indicating the same within your User Account. Maqpie disclaims any and all liability associated with accessing and retrieving User Data from such System(s) on your or your Subscribing Organization’s behalf. In order to connect the Service with any third-party System to enable certain functionality of the Services, you hereby designate Maqpie as your agent and attorney-in-fact in connection with such System access and further authorize Maqpie to: (a) store your User Data relating to such System; (b) access such System using User Data you provide us; (c) use any materials you provide us in order to provide you the Service; (d) gather and export from such System any User Data reasonably necessary for us to provide the Service to you; and (e) otherwise take any action in connection with such System as is reasonably necessary for us to provide the Service to you. You agree that those third-party System providers are entitled to rely on the foregoing authorization, agency, and power of attorney granted by you. if at any time you do not have the right and authority to allow Maqpie automatic access to such system(s), then you hereby agree to immediately disable such functionality within your User or Administrator Account.
7.4 Account Information. You acknowledge and agree that Maqpie may access, preserve and disclose your account information and related contents if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any User Data violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Maqpie, its users, or the public.;
8. Payment Terms; Charges and Taxes
8.1 You are responsible for paying any applicable fees as set forth on your Quote and applicable taxes associated with the Service in a timely manner with a valid payment method. Unless otherwise stated, all fees are quoted in U.S. Dollars. All payments must be made electronically by acceptable payment methods, which are limited to credit card or automated clearing house (ACH). You agree that we may charge your selected payment method for any such fees owed. You are required to keep your billing information current, complete, and accurate (e.g., a change in billing address, credit card number, account number, routing number, or expiration date) and to notify Maqpie if your selected payment method is cancelled (e.g., for loss or theft). All fees and charges are earned upon receipt by us and are nonrefundable (and there are no credits) except: (a) as expressly set forth herein; and/or (b) as required by applicable law.
8.2 You are responsible for all charges incurred under your User Account made by you or anyone who uses your User Account (including your co-workers, colleagues, team-members, etc.). If your payment method fails or you are past due on amounts owed, we may collect fees owed using other collection mechanisms. Notwithstanding any other provision in these Terms or an applicable Order, your User Account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You are also responsible for paying any governmental taxes imposed on your use of the Service, including, but not limited to, sales, use, or value-added taxes. To the extent Maqpie is obligated to collect such taxes, the applicable tax will be added to your billing account.
8.3 Authorization to charge your chosen payment method account will remain in effect until you cancel or modify your preferences within the Service; provided, however, that such notice will not affect charges submitted before Maqpie could reasonably act. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you ordered the applicable service or on your Quote. You agree that charges may be accumulated as incurred and may be submitted as one or more aggregate charges during or at the end of the applicable billing cycle.
8.4 Maqpie reserves the right to change the amount of, or basis for determining, any fees or charges for the Service we provide, and to institute new fees, charges, or terms effective upon prior notice to our Users. You will receive notice of any fee change at least thirty (30) days before the scheduled date of the transaction and failure to cancel your account as set forth herein will constitute acceptance of such fee change. Any changes to fees will apply only on a prospective basis. If you do not agree to any such changes to fees, charges, or terms, your sole remedy is to cancel your subscription. Fees paid during the Term are paid in advance and are not refundable in whole or in part. If you have a balance due on any User Account, you agree that Maqpie can charge these unpaid fees to any payment method that you have previously provided.;
8.5 Your Service will be automatically renewed and your credit card account (or other payment method account) will be charged as follows without further authorization from you every month or such other time period as is agreed upon in your Order. You acknowledge that your subscription is subject to automatic renewals and you consent to and accept responsibility for all related recurring charges to your applicable payment method without further authorization from you and without further notice unless required by law. You acknowledge that the amount of the recurring charge may change if the applicable tax rates change or if there has been a change in the applicable fees.
8.6 For monthly User Accounts or other User Accounts with a periodic subscription cycle of less than one year, there are no refunds for cancellations for periodic charges. For monthly subscriptions, you must cancel your subscription within the Service at least seven (7) business days prior to the first day of the next subscription period to avoid being charged the renewal fee for such month. For all other subscriptions, you must cancel your subscription within the Service at least seven (7) business days prior to the first day of the next subscription period to avoid being charged the renewal fee for such subscription period.
9. Restrictions. When using the Service you agree not to:
9.1 Upload or transmit via the Service pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content;
9.2 Use the Service for any purpose that is unlawful or is otherwise prohibited by these Terms;
9.3 Use the Service in any manner that in our sole discretion could damage, disable, overburden, or impair it;
9.4 Attempt to gain unauthorized access to the Service, or any part of them, other User Accounts, computer systems or networks connected to the Service, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service;
9.5 Modify the Service in any manner or form, or use modified versions of the Service, including but not limited to for the purpose of obtaining unauthorized access to the Service;
9.6 Use any robot, spider, scraper, or other automated means to access the Service for any purpose without our express written permission, or bypass any measures we may use to prevent or restrict access to the Service;
9.7 Impersonate another person or access another User’s User Account without that User’s permission or to violate any contractual or fiduciary relationships;;
9.8 Share Maqpie-issued passwords with any third party or encourage any other User to do so;
Misrepresent the source, identity, or content of User Data;
Modify, adapt, translate or create derivative works based upon the Service;
9.11 Reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
9.12 Rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Service to any third party; provide time sharing or similar services for any third party; or use the Service for any purpose other than your own internal business use;
9.13 Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service, features that prevent or restrict use or copying of any content accessible through the Service, or features that enforce limitations on use of the Service;
9.14 Access the Service if you are a direct competitor of Maqpie, except with Maqpie’s prior written consent, or for any other competitive purposes; or
9.15 Collect or harvest any personally identifiable information, including account names, from the Service.
10. User Data
10.1 Use of User Data. By submitting User Data to Maqpie or by otherwise providing Maqpie with access to your User Data, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the User Data required for Maqpie and its subcontractors and service providers to provide the Service. Maqpie shall have no right to sublicense or resell User Data, except however, that you agree that Maqpie may collect, analyze, and use data derived from User Data, which may include personal data and/or information collected from or about an individual but which does not identify the individual personally, as well as data about you, and other Users’ access and use of the Service, for purposes of operating, analyzing, improving, or marketing the Service and any related services. If Maqpie shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from User Data, such data will be aggregated or anonymized to reasonably avoid identification of a specific individual or the User. By way of example and not limitation, Maqpie may: (a) track the number of users on an anonymized aggregate basis as part of Maqpie’s marketing efforts to publicize the total number of Users of the Service; (b) analyze aggregated usage patterns for product development efforts; or (c) use anonymous data derived from User Data in a form which may not reasonably identify either a particular individual or the User to develop further analytic frameworks and application tools. You further agree that Maqpie will have the right, both during and after the Term of these Terms, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data.
10.3 Security Incidents. In the event that User Data is disclosed to or accessed by an unauthorized party, Maqpie will promptly notify you and use reasonable efforts to cooperate with your investigation of the incident; and if such incident triggers any third party notice requirements under applicable laws, you agree that as the owner of the User Data, you will be responsible for the timing, content, cost and method of any such notice and compliance with such laws.
10.4 No Responsibility for Backups. Maqpie will not be responsible for any backup, recovery or other steps required to ensure that User Data is recoverable in the case of data loss. You are solely responsible for backing up your User Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of your User Data.
10.5 Rights to User Data. Except for the rights you grant in these Terms, as between the parties, you own all right, title and interest (including all intellectual property rights) in and to your User Data.
11. Text Messaging, Automated Calling and Consent; Fees.
11.1 Compliance with Laws. You represent and warrant that you shall ensure all communications with your patients or others you communicate with comply with all applicable state and federal laws and regulations, including, but not limited to, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act, and all other laws and regulations concerning privacy, telemarketing, and the sending of SMS text messages.
11.2 Consent to Send Texts and Automated Calls. Without limiting your responsibilities in Section 11.1, you represent and warrant that you any and all persons you contact via or through the Service has consented to receive automated calls or text messages from you, including calls or text messages send through a third party service such as Maqpie. You acknowledge and agree that you are the sender of calls and text messages you cause to be sent through the Service. ;
11.3 Fees. All costs for phone usage, including, without limitation, any domestic or international calls or text messages, made through or via the Service, are your responsibility and you agree to cover all such costs.; Maqpie does not assume any liability for calls placed or received.
12. Ownership; Proprietary Rights. The Service is owned and operated by Maqpie. The visual interfaces, graphics, design, compilation, information, computer code, products, Software, Network, and all other elements of the Service provided by Maqpie, but expressly excluding any of the foregoing owned or licensed by and posted to the Service at the direction of Users (including without limitation User Data) (collectively “Maqpie Materials”) are protected by intellectual property and other applicable laws. Except for any technology licensed by Maqpie, which is owned by and provided by our third-party licensors, all Maqpie Materials contained in the Service, including without limitation the intellectual property rights therein and thereto, are the sole and exclusive property of Maqpie or its subsidiaries or affiliated companies. All trademarks, service marks, and trade names are proprietary to Maqpie or its affiliates and/or third-party licensors. Except as expressly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Maqpie Materials or the intellectual property rights therein or thereto, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Maqpie Materials.;
You may have previously submitted or in the future may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea at any time during the Term, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Maqpie under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Maqpie does not waive any rights to use similar or related ideas previously known to Maqpie, or developed by its employees, or obtained from sources other than you.
13.1 Definition. “Confidential Information” means: (i) any information disclosed (directly or indirectly) by one party to the other party pursuant these Terms that is in written, graphic, machine readable or other tangible form (including, without limitation, research, product plans, products, services, equipment, customers, markets, software, inventions, processes, designs, drawings, formulations, specifications, product configuration information, marketing and finance documents, prototypes, samples, data sets, and equipment) and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; (ii) oral information disclosed (directly or indirectly) by one party to the other party pursuant these Terms; provided that such information is designated as confidential at the time of its initial disclosure and reduced to a written summary by the disclosing that is marked in a manner to indicate its confidential nature and delivered to the receiving party within thirty (30) days after its initial disclosure; and (iii) information otherwise reasonably expected to be treated in a confidential manner under the circumstances of disclosure under these Terms or by the nature of the information itself. Confidential Information may include information of a third party that is in the possession of the disclosing party and is disclosed to the receiving party under this Agreement.; For the avoidance of doubt, the Maqpie Materials are deemed Confidential Information of Maqpie.
13.2 Confidentiality Obligations. Each party shall treat as confidential all Confidential Information of the other, shall not use such Confidential Information except as set forth in these Terms, and will not disclose such Confidential Information to any third party except as expressly permitted herein without the disclosing party’s written consent; provided, however, that Maqpie may disclose your Confidential Information to employees, contractors, advisors and service providers who are required to know such Confidential Information in order to perform the Service. The receiving party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the disclosing party’s Confidential Information, but in no event less than reasonable care. The receiving party shall promptly notify the disclosing party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination or expiration of these Terms, each party will either return or, at the disclosing party’s request, destroy the Confidential Information of the other party; provided however, that each party may retain copies of the other’s Confidential Information for routine backup and archival purposes.;
13.3 Exceptions. Notwithstanding the foregoing, the obligations set forth in this Section shall not apply with respect to any information to the extent that it is: (i) already in the possession of the receiving party prior to the first disclosure hereunder as shown by records or files; (ii) is already part of the public knowledge or becomes part of the public knowledge after the time of disclosure other than as a result of any improper action by the receiving party; (iii) is approved in writing by the disclosing party; (iv) is required to be disclosed by applicable legal authority provided that, if practicable, adequate notice and assistance is given by the receiving party to the disclosing party for the purpose of enabling the disclosing party to prevent and/or limit the disclosure; or (v) is independently developed by either party without use of the Confidential Information from the other party, as proven by the receiving party’s then-cotemporaneous written records.
14. Third-Party Sites, Third-Party Information
14.1 The Service may call the servers of other websites or services (i.e. VOIP service providers) solely at the direction of and as a convenience to Users (“Third Party Sites”). Maqpie makes no express or implied warranties with regard to the information, or other material, products, or services that are contained on or accessible through Third-Party Sites. Access and use of Third Party Sites, including the information, material, products, and services on such sites or available through such sites, is solely at your own risk.
14.2 You acknowledge that Maqpie does not manage or control the User Data that you access, store or distribute through the Service, and accepts no responsibility or liability for that information regardless of whether such User Data is transmitted to or by you in breach of these Terms. Maqpie makes no warranty with respect to such User Data you may access, store or distribute through the Service. In particular, without limiting the generality of the foregoing, Maqpie makes no warranty that such User Data will be free of any virus, worm, trojan horse, easter egg, time bomb, cancelbot, or other destructive or malicious code or programs. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Maqpie with respect to third party and/or User Data that you choose to access, store or distribute, through the Service.
15. Security and Privacy Settings. We have implemented commercially reasonable technical and organizational measures designed to secure your User Data from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your User Data for improper purposes. You understand that internet technologies have the inherent potential for disclosure. You acknowledge that you are under no obligation to provide personal data or other sensitive information in order to use the Service and that you provide any such information at your own risk.
16.1;Maqpie Warranty. Maqpie represents and warrants that it possesses sufficient rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement.
16.2;Disclaimer.; Except as expressly provided in these Terms, the Service and any third-party data, software, including mobile software, supplied hardware, Maqpie materials, services, or applications made available in conjunction with or through the Service is provided “as is” and “as available” without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, Maqpie, its suppliers, licensors, and partners disclaim all warranties, statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights.
16.3 Maqpie, its suppliers, licensors, and partners do not warrant that the functions contained in the Service will be uninterrupted or error-free, that the Service will meet your requirements, that defects will be corrected, or that the Service or the server that makes it available is free of viruses or other harmful components.
16.4 Maqpie, its suppliers, licensors, and partners do not warrant or make any representations regarding the use or the results of the use of the Service in terms of correctness, accuracy, reliability, or otherwise. You understand and agree that you download or otherwise obtain third party or User Data, Maqpie material, or data through the use of the Service at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such third party or User provided information, material, or data. Maqpie will not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store or maintain any third-party or User Data.
17. Limitation of Liability
17.1 Maqpie and its affiliates, contractors, employees, agents, or third-party partners, licensors, and suppliers will not be liable for any special, indirect, incidental, consequential, punitive, reliance, or exemplary damages (including without limitation losses or liability resulting from loss of data, loss of revenue, anticipated profits, or loss of business opportunity) that result from your use or your inability to use the information or Maqpie materials or the Service, or any other interactions with Maqpie, even if Maqpie or a Maqpie authorized representative has been advised of the possibility of such damages. Applicable law may not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. In such cases, Maqpie’s liability will be limited to the fullest extent permitted by applicable law.
17.2 In no event will Maqpie or its affiliates’, contractors’, employees’, agents’, or third-party partners’, licensor’s, or suppliers’ total liability to you for all damages, losses, and causes of action arising out of or relating to these Terms or the use of the Service, (whether in contract, tort including negligence, warranty, or otherwise) exceed the amount paid by you, if any, for accessing the Service during the twelve (12) months immediately preceding the day the act or omission occurred that gave rise to your claim or $10,000, whichever is greater.
17.3 You acknowledge and agree that Maqpie has offered its products and services, set its prices, and entered into these terms in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the disclaimers of warranty and the limitations of liability set forth herein reflect a reasonable and fair allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the disclaimers of warranty and the limitations of liability set forth herein form an essential basis of the bargain between you and Maqpie.
18. Indemnification. You agree to defend, indemnify and hold harmless Maqpie and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from or related to: (a) any alleged or actual breach of any representation, warranty or covenant made by you under these Terms; (b) violations of any law, rule or regulation of the United States or any other country by you; (c) any claim for damages that arise as a result of any of your User Data or any other data that are submitted via your account. You shall not, without the prior written consent of Maqpie, compromise or consent to the entry of any judgment with respect to any pending or threatened claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such claim against Maqpie.
19. Location of the Service. The Service is controlled and operated from our facilities in the United States. Maqpie makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the U.S. By using the Service, you are consenting to have your personal data transferred to and processed in the United States.
20. Governing Law; Arbitration; and Class Action/Jury Trial Waiver
20.1 Governing Law. You agree that: (a) the Service shall be deemed solely based in Utah; and (b) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Utah. This Agreement shall be governed by the internal substantive laws of the State of Utah, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Salt Lake County, Utah for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Salt Lake County, Utah is the proper forum for any appeals of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable.
20.2 Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Maqpie. For any dispute with Maqpie, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that Maqpie has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Salt Lake County, Utah, unless you and Maqpie agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Maqpie from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property or other proprietary rights.
20.3 Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into these Terms, you and Maqpie are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
21.1 Identification Rights.; Both parties have the right to identify the other as a customer or service provider, as applicable.
21.2 Notices. All notices under these Terms must be in writing and delivered either by hand, e-mail, certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed, if to you, to the contact identified in your most recent order and, if to Maqpie, to Maqpie Communications, 2000 West Ashton Blvd., Ste 100 Lehi, UT 84043 or to such other address as Maqpie may identify from time to time.
21.3 Waiver. The failure of Maqpie to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Maqpie.
21.4 Severability. If any provision of these Terms, an Individual Service Agreement, or any Guideline is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions; except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
21.5 Assignment. These Terms, Individual Service Agreements, and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, except in the event of a merger, consolidation or sale of substantially all of the Subscribing Organizations assets, but provided that such assigned party agrees in writing to be bound by the Terms.; Maqpie may assign its rights and obligations hereunder without restriction.
21.6 Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, shall survive such termination or expiration, including, but not limited to, Sections 3 and 8 through 21.
21.7 Headings. The heading references herein are for convenience only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
21.8 Entire Agreement. This Agreement, including the agreements incorporated by reference, together with any order form or online order agreed upon by you and Maqpie, constitutes the entire agreement between you and Maqpie relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change made by Maqpie as set forth in these Terms.
21.9 Claims. You and Maqpie agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.