Terms of Service
Effective: April 20, 2024
Welcome to VoiceOS! A product of WakoAI, Inc.
WakoAI Inc. (“we”, “us” or “our”) operates https://voiceos.io
Please read these terms of service (these “Terms”) as they are a legal agreement between you (together with the business entity, if any, that you represent, “you” or “your”) and WakoAI, Inc. (“WakoAI”, “we”, “us” or “our”). These Terms, including our Privacy Policy, are deemed accepted by you each time that you access or use NuPhone or the Platform, including via our website or any mobile application, and any related functionality or services that we make available, including Ancillary Services (defined below) and Subscription Services (defined below) (collectively, the “Services”). The date you first agree to or accept these Terms, or that you otherwise first access and use the Services following the date these Terms is first made available on the Platform, is referred to herein as the “Effective Date”.
BEFORE YOU CLICK ON THE “I ACCEPT” OR SIMILAR BUTTON OR ACCESS OR USE THE SERVICES, CAREFULLY READ THE TERMS AND CONDITIONS OF THESE TERMS. BY CLICKING ON THE “I ACCEPT” BUTTON OR USING THE SERVICES, YOU AND THE BUSINESS ENTITY THAT YOU REPRESENT ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS ON BEHALF OF THE BUSINESS ENTITY YOU REPRESENT. YOU HEREBY COVENANT TO ENSURE THAT ALL USERS THAT GAIN ACCESS TO THE PLATFORM OR THE SERVICES FROM YOU ARE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THESE TERMS, THEN DO NOT CLICK “I ACCEPT” OR A SIMILAR INDICATION OF AGREEMENT AND YOU WILL NOT BE PERMITTED TO ACCESS AND/OR USE THE SERVICES. FURTHER, THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND WAKOAI ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD WITH THE SOLE EXCEPTION OF CLAIMS THAT QUALIFY FOR SMALL CLAIMS COURT (SEE SECTION 12 “DISPUTE RESOLUTION”).
AGREEMENT
1. DEFINITIONS.
1.1 “Affiliate” means any corporation or entity of either party, which is owned or controlled by or under common control with a party. For purposes of this definition, “control” will mean the right to exercise directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the shares of the corporation or entity or the power to direct or cause the direction of the management or policies of the corporation or entity.
1.2 “Ancillary Services” means any implementation, installation, support, training, consulting, custom development or other professional services provided by WakoAI to you hereunder in connection with the Platform.
1.3 “Conversation” means a conversation with a voice agent.
1.4 “Content” means, with respect to you, data and other information made available by you or on your behalf in connection with the Platform.
1.5 “Documentation” means any proprietary user documentation made available to you by WakoAI, including any documentation available on the Website or otherwise, as amended or updated by WakoAI from time to time in its discretion.
1.6 “Fees” means the fees set forth in an Order from time to time.
1.7 “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including: (a) patent rights and utility models; (b) copyrights and database rights; (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith; (d) trade secrets; (e) mask works; and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.8 “Agent Usage” means the amount of conversation used with a voice agent.
1.9 “Order” means your order for NuPhone Minutes, including orders for Subscription Services or Ancillary Services. An Order can be created by you agreeing to purchase NuPhone Minutes or subscribe to our Subscription Services through the Platform.
1.10 “Subscription Services” means monthly NuPhone subscription services consisting of the number of minutes set forth in an applicable Order being applied to your Account on a monthly basis.
1.11 “Subscription Term” means the period of time an Order is effective, commencing on the date of such Order. The Subscription Term will be monthly unless otherwise provided in the applicable Order.
1.12 “Transcript” means a text transcript of a Conversation.
1.13 “Users” means you and any persons authorized by you to use the Platform and the Services through an Account registered in accordance with these Terms.
2. YOUR ACCOUNT.
2.1 Login Credentials. In order to use the features available on the Services, you may be required to create an account by providing certain information (each, an “Account”). We may ask you to complete a registration form and create a username and password, or we may permit you to login through a third party application (your username, password for us or for any third party application, your “Login Credentials”). Any loss or compromise of the foregoing information or your personal information may result in unauthorized access to your Account by third parties. You are responsible for protecting your Login Credentials from unauthorized use, and you are responsible for all activity that occurs on your Account (including without limitation any financial obligations). You agree to notify us immediately if you believe that your Login Credentials have been or may be used without your permission, so that appropriate action can be taken. We are not responsible for losses or damage caused by your failure to safeguard your Login Credentials.
2.2 Account Information. During your registration of your Account, you will give truthful information about you (such as your name, email address, physical address, phone number and payment account information) (collectively, together with the additional information referenced in Section 1(a), your “Account Information”). You represent, warrant and covenant to us that your Account Information is and will remain accurate and up-to-date, and you understand that you are responsible for ensuring that your Account Information is accurate and for keeping your Account Information up to date. We may contact you to verify your Account Information from time to time and may require you to provide additional information for such purposes.
2.3 Acknowledgement for You to Receive Communications. You hereby agree: (a) to receive communications, including emails, that are related to our Services; (b) that any communications from us may also include marketing materials from us or from third parties; and (c) that any notices, agreements, disclosures or other communications that we send to you electronically are deemed to satisfy any legal communication requirements. You may opt out from receiving our communications by emailing hello@wako.ai or selecting to unsubscribe as may be provided in the applicable correspondence.
3. THE VOICEOS PLATFORM.
3.1 Agent Usage and Subscription Services. Subject to the terms and conditions of these Terms, you may purchase Conversation Minutes or Subscription Services pursuant to one or more Orders. Each Order is deemed incorporated into these Terms by reference.
3.2 Access and Use. Subject to the terms and conditions of these Terms, WakoAI hereby grants you, during the Subscription Term, a limited, non-exclusive, non-transferable right for you and your Users to access and use the Services in accordance with the Documentation, solely for your internal business or personal purposes and not for the benefit of any other person or entity. You agrees that your purchases under these Terms are neither contingent on the delivery of any future functionality or features of the Platform nor dependent on any oral or written public comments made by VoiceOS regarding future functionality or features. Further, if WakoAI provides you with any API or software outside the Platform (“Ancillary Software”), WakoAI hereby grants you a limited, non-exclusive, non-transferable right to use that Ancillary Software solely in connection with your use of the Platform. For the avoidance of doubt, you and any Users will not have the right to access or use the Platform except for the access and use of Services through the Platform as provided in this Section 3.2 and in connection with any Ancillary Services.
3.3 Restrictions. You will not, directly or indirectly, and you will not permit any User or third party to: (a) circumvent or otherwise interfere with any user authentication or security of the Platform; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Platform; (c) modify, translate, or create derivative works based on any element of the Platform or any related documentation; (d) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Services or Platform; (e) use the Services or Platform for timesharing purposes or otherwise for the benefit of any person or entity other than for your or a User’s benefit, or the benefit of the other participants in a Conversation; (f) remove any proprietary notices from the Documentation; (g) publish or disclose to third parties any evaluation of the Services or the Platform without WakoAI’s prior written consent; (h) use the Services or Platform for any purpose other than its intended purpose; or (i) interfere with or disrupt the integrity or performance of the Services or the Platform.
3.4 Ancillary Services. From time to time, we may agree to Ancillary Services to be provided by WakoAI to you pursuant to one or more Orders.
3.5 Arrangements between You and Your Third Party Service Providers. The Platform is available as a plug-in or other integration with third party software and may enable you to link your Account to your accounts with certain third party service providers from time to time. You agree and acknowledge that you are solely responsible for any and all arrangements between you and any such third party service provider and that the terms governing any such third party service will govern your use thereof.
3.6 Changes to the Platform. You agree and acknowledge that WakoAI may update and otherwise change the Platform in its sole discretion from time to time during or after your Subscription Term.
4. FEES AND PAYMENT.
4.1 Fees. Each Order will set forth the Fees for the Agent Usage, including by way of Subscription Services. You will pay us all applicable Fees as set forth in the relevant Order. If you purchase Subscription Services, except as otherwise specified in an Order, Subscription Services and Fees are non-cancelable during the Subscription Term, and the Subscription Services purchased cannot be decreased during the relevant Subscription Term on the Order. We may change the Fees in our sole discretion at any time, provided that Fees for your then- current Subscription Term will not change until the expiration of such then-current Subscription Term. You may modify the selected Subscription Services at any time via the Platform, which changes will take effect upon renewal of the then-current Subscription Term.
4.2 Other Fees. You will pay to WakoAI the Fees, if any, set forth in an Order for Ancillary Services, together with any pre-approved out-of-pocket expenses that may be incurred by WakoAI or its personnel in connection with the Ancillary Services.
4.3 Invoices and Payment Terms. Except as otherwise expressly set forth in any Order, we will invoice you for Subscription Services on a monthly basis in advance, and for NuPhone Minutes at the time of your order. You are responsible for paying us all amounts due under these Terms. All amounts are payable immediately upon creation of an Order. We reserve the right to suspend or discontinue access to our Services, and suspend the performance of any outstanding Ancillary Services, until all past due amounts are paid in full. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction.
4.4 Taxes. You are responsible to pay all applicable sales (unless you provide us with an exemption certificate), use and value-added taxes (except for taxes imposed on WakoAI’s net income) with respect to these Terms or furnish WakoAI with evidence acceptable to the taxing authority to sustain an exemption therefrom. All payments under these Terms will be made free and clear of (and without deduction for or grossed up for, as applicable) any withholding or other taxes levied by any country or jurisdiction on payments to be made pursuant to these Terms that applicable law requires you to withhold.
4.5 Payment Processing. We use third party payment processor services to bill and/or facilitate processing of Fees. By submitting payment account information, you grant to us and our payment processor the right to store and process your information with the third-party payment service, which may change from time to time. You agrees that during any Subscription Term, we may charge and the payment processor may pay to us any Fees as they become due. You agree that we will not be responsible for any failure of any third party to adequately protect such information. Any payment processor services will be subject to the payment processor’s separate terms and conditions in addition to these Terms. In no event will WakoAI be responsible for any action or omission of any payment processor, including as to whether any payment is sent or received or sent or received to a party other than the intended party. You agree that we may change the third-party payment service and move your information to other service providers.
5. REPRESENTATIONS AND WARRANTIES.
5.1 WakoAI Limited Warranty. (a) Platform Warranty. WakoAI warrants to you that during the applicable Subscription Term, the Services will, under normal use, substantially conform to, and perform in all material respects, the functions described in the applicable Documentation. If any Services fail to comply with the foregoing warranty, we will use commercially reasonable efforts to repair or rectify such non-conformity. If we are unable to repair or rectify such non-conformity, then we may terminate your Account (including without limitation the licenses granted in these Terms) with respect to the non-conforming Services and in such event, WakoAI will refund to you on a pro-rata basis as applicable the portion of Fees paid to WakoAI prior to termination applicable to the access and use of such non-conforming Services after the termination date. THE REMEDY SET FORTH IN THIS SECTION 5.1 WILL BE YOUR SOLE AND EXCLUSIVE REMEDY AND WAKOAI’S SOLE OBLIGATION FOR ANY BREACH OF THESE TERMS. (b) Exclusions. The warranty set forth in this Section 5.1 does not cover defects or non-conformities arising from: (a) misuse of the Platform or the Documentation; (b) any modifications to the Platform made by any person or entity other than WakoAI that is not previously approved by WakoAI; (c) any use of the Services or the Platform by you or any User beyond the scope of the express rights licenses granted in these Terms; (d) any use of WakoAI in combination with other software, hardware or data; or (e) WakoAI’s compliance with your request for changes to the Platform or with your designs, specifications or instructions. 5.2 Your Warranties. You represent, warrant and covenant that: (a) you have the right, including in respect of all relevant Intellectual Property Rights and applicable data privacy and other laws, to utilize the Platform in connection with your Content; (b) you have the full power and authority to enter into these Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (c) your execution of and performance under these Terms will not breach any oral or written agreement with any third party or any obligation owed by you to any third party.
5.3 Disclaimer; AI Terms. (a) Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 5 , THE PLATFORM, SERVICES, AND ANCILLARY SERVICES ARE PROVIDED ON AN AS-IS BASIS. YOUR USE OF THE PLATFORM, SERVICES AND ANCILLARY SERVICES IS AT ITS OWN RISK. WAKOAI DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING IN THIS SECTION 5.3 (a), WAKOAI DOES NOT WARRANT THAT NUPHONE OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. YOU ACKNOWLEDGE AND AGREE THAT THE PLATFORM (AS WITH TECHNOLOGY GENERALLY), MAY HAVE ERRORS (OR “BUGS”) AND MAY ENCOUNTER UNEXPECTED TECHNICAL PROBLEMS. ACCORDINGLY, FROM TIME TO TIME, YOU MAY EXPERIENCE DOWNTIME AND ERRORS IN THE OPERATION, FUNCTIONALITY OR PERFORMANCE OF NUPHONE, THE PLATFORM OR THE OTHER SERVICES. (b) AI Terms. The Platform includes certain features and functionality, including generative artificial intelligence (“AI”) that allow NuPhone to communicate, including in response to voice input, in conversations. You acknowledge and agree that generative AI sometimes produces output that is unpredictable, random, incorrect or inapplicable (“AI Hallucinations”) and such output may include biases. WakoAI employs commercially reasonable measures designed to reduce the risk of AI Hallucinations and bias. Notwithstanding the foregoing, you acknowledge and agree that any use of or reliance on NuPhone or the contents of any Conversation is at your own risk and WakoAI will have no liability related to the accuracy, quality or useability of NuPhone’s participation in any Conversation, including any action that you take or do not take, or that any other participant in a Conversation takes or does not take, based on any Conversation.
6. INDEMNIFICATION.
6.1 WakoAI Indemnity. (a) WakoAI will, subject to the terms and conditions set forth in these Terms: (i) defend you from and against any and all third party claims, actions, suits, demands or proceeding brought against you (a “Claim”) alleging that your use of the Platform and the Services in accordance with these Terms infringes any United States copyright or United States patent issued as of the Effective Date; and (ii) indemnify and hold you harmless against any damages awarded to the third party bringing the Claim or any settlement amount approved by us in writing and paid to the third party bringing the Claim in order to settle the Claim. Our obligations under this Section are conditioned upon: (a) WakoAI being promptly notified in writing of such Claim; (b) WakoAI having the exclusive right to control the defense and/or settlement of the Claim; and (c) you providing all reasonable assistance (at WakoAI’s request and expense) in the defense of the Claim. In no event will you settle any Claim without WakoAI’s prior written approval. You may, at your own expense, engage separate counsel to advise you regarding a Claim and to participate in the defense of the Claim, subject to WakoAI’s right to control the defense and settlement thereof. (b) Mitigation. In the event of any such third party Claim or threat thereof, WakoAI, at its sole option and expense, may: (i) procure for you the right to continue to use the allegedly infringing Services or the Platform; or (ii) replace or modify the Platform with functionally equivalent software and/or Services. If neither subpart (i) nor (ii) of this paragraph is commercially reasonable or practical in the reasonable opinion of WakoAI, WakoAI may terminate these Terms with respect to the allegedly infringing Services, and the license thereto granted hereunder, upon fifteen (15) days written notice to you. In the event of such termination, WakoAI will refund to you any portion of Fees paid to WakoAI by you for use of the allegedly infringing Services or the Platform following the date of such termination. (c) Exclusions. Notwithstanding anything to the contrary in these Terms, WakoAI will have no obligations to you pursuant to this Section 6.1 with respect to any infringement or alleged infringement resulting or arising from: (i) any modifications to the Platform made by any person or entity other than WakoAI that is not previously approved by WakoAI; (ii) any use of the Platform or the Services by you or any User beyond the scope of the express rights and licenses granted in these Terms; (iii) any use of the Services or the Platform in combination with other service, software, hardware or data; or (iv) WakoAI’s compliance with your request for changes to the Platform or with your designs, specifications or instructions. (d) Sole Remedy.
THIS SECTION 6.1 STATES THE ENTIRE LIABILITY OF WAKOAI WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICES OR THE PLATFORM OR OTHERWISE, AND YOU HEREBY EXPRESSLY WAIVE ANY OTHER LIABILITIES OR OBLIGATIONS OF WAKOAI WITH RESPECT THERETO.
6.2 Your Indemnity. You will indemnify and hold harmless, and at WakoAI’s request defend, WakoAI and its Affiliates, licensors, successors and assigns (and its and their officers, directors, employees, contractors, customers, customers and agents) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to: (a) any third party claim or threat thereof that your Content (and the exercise of the rights by WakoAI granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) your use or alleged use of the Services or the Platform (other than claims arising from WakoAI’s breach of these Terms or from claims subject to Section 6.1 ); (c) any transactions between you and any third party; or (d) any breach or alleged breach by you of any of your covenants, representations or warranties set forth in these Terms. WakoAI will notify you promptly of any claim or liability for which indemnification is sought, provided, however, that the failure to give such notice will not relieve you of your obligations hereunder except to the extent that you were actually and materially prejudiced by such failure. You may not settle any claim for which indemnification is sought under this Section 6 without the prior written approval of WakoAI, which approval will not be unreasonably withheld or delayed.
7. CONFIDENTIALITY.
7.1 Confidential Information. We will treat your Content and Transcripts as confidential information and only use and disclose each in accordance with these Terms (including our Privacy Policy). However, information is not regarded as confidential information if such information: (a) was lawfully known by us prior to receiving it from you; (b) was developed by us without use of or reference to your Content or any Transcript; (c) is received by us from a third party without knowledge of breach of any obligation owed to you; or (d) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of these Terms or any obligation of confidentiality by us. We may also disclose your Content and any Transcript to the extent that we are legally compelled to do so by law or legal process; provided, however, that prior to any such disclosure we will, if permitted by law, use commercially reasonable efforts to notify you of the compelled disclosure to give you the opportunity to challenge the requirement.
8. YOUR CONTENT.
8.1 Your Content. You, and not WakoAI, are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of and the necessary rights to use all your Content under these Terms.
8.2 No Storage of Your Content; Transcripts. You agree and acknowledge that the Platform is not a storage service and is not designed to facilitate the export of your Content or Transcripts. Accordingly, you, and not WakoAI, are solely responsible for backing up all of your Content and any Transcripts. WakoAI does not warrant that any of your Content, any Transcript or any related materials will be available for any period of time following closure of your Account.
8.3 Usage Data. Notwithstanding anything else in these Terms or otherwise, WakoAI may monitor your use of the Services and the Platform and collect and analyze data and information related to your use of NuPhone and the Services in an aggregate or de-identified manner (and in each case not including the content of any Conversation or any Transcript), to compile statistical and performance information related to the provision and operation of the Platform and Services and to provide you with suggestions for Ancillary Services or third party services which may be of interest to you based on such data and information. You agree that WakoAI may make such data and information publicly available, and use such information to the extent and in the manner required by applicable law or regulation and/or for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify you or your Confidential Information. WakoAI retains all Intellectual Property Rights in such data and information.
9. PROPRIETARY RIGHTS.
9.1 Ownership. You acknowledge and agree that NuPhone, the Platform and the Services, and all Intellectual Property Rights therein, are the sole and exclusive property of WakoAI and its licensors. WakoAI acknowledges that your Content and Transcripts and all Intellectual Property Rights therein are your sole and exclusive property. Each party retains all other rights not expressly granted in these Terms.
9.2 WakoAI Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of WakoAI, whether solely or jointly, including without limitation, in connection with WakoAI’s performance of the Services including all Intellectual Property Rights therein, will be the sole and exclusive property of WakoAI.
9.3 License to Your Content. You grant to WakoAI a royalty-free, nonexclusive, irrevocable, limited, perpetual, fully paid-up, sublicensable (through one or more tiers) right and license to use your Content: (a) in order to provide the Services; and (b): (i) to analyze and improve WakoAI and the Services, including through the application of machine learning algorithms; (ii) for WakoAI’s internal business purposes; (iii) to compile and use aggregate or de-identified data, statistics, measurements or other metrics derived from your Content, including in combination with the aggregate or de-identified data of other WakoAI customers (but in each case not including Conversations or Transcripts) for its own purposes; and (iv) to provide you with suggestions for Ancillary Services or third party services which may be of interest to you based on such data and information. Aggregate or de- identified data means data that does not identify any you or any individual.
9.4 Disclosure of Your Content. WakoAI will not disclose your Content to third parties, except: (a) as necessary to provide the Services to you; (b) to our service providers who are not permitted to use such data except on behalf of WakoAI; (c) as required by law or to comply with legal process; (d) to protect and defend the rights or property of WakoAI, including as evidence in litigation; (e) to troubleshoot problems with the Services; (f) to any successor in interest, including as part of a merger, acquisition or transfer of assets, or as part of a bankruptcy proceeding; or (g) in aggregate or de-identified form.
9.5 Limited Feedback License. You hereby grant to WakoAI, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under your Intellectual Property Rights in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the Platform and/or WakoAI Developments provided by or on behalf of you or any User to WakoAI, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in the Platform or any other products or services. Feedback is provided “as is” without warranty of any kind and will not include any of your Confidential Information.
10. LIMITATION OF LIABILITY.
10.1 No Consequential Damages. WAKOAI AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF WAKOAI OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE PLATFORM, SERVICES, ANCILLARY SERVICES OR RESULTS THEREOF. WAKOAI WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
10.2 Limits on Liability. WAKOAI AND ITS LICENSORS WILL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID BY YOU TO WAKOAI UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE, MINUS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY WAKOAI TO YOU IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THESE TERMS. YOU RELEASE WAKOAI AND ITS LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS RELATING TO THE PLATFORM, SERVICES OR ANCILLARY SERVICES, AND THESE TERMS IN EXCESS OF THE LIMITATION PROVIDED FOR IN THIS SECTION 10.2.
10.3 Essential Purpose. You acknowledge that the terms in this Section 10 (Limitation of Liability) are an essential basis of the bargain described in these Terms and that, were WakoAI to assume any further liability, the fees payable hereunder would out of necessity, be set much higher.
THE LIMITATIONS IN THIS SECTION 10 (LIMITATION OF LIABILITY) WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND WILL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
11. TERM AND TERMINATION.
11.1 Term. Your Subscription Term will commence on the Effective Date and continue until the expiration or termination of the applicable Subscription Term, unless earlier terminated as provided in these Terms.
11.2 Termination. You may terminate these Terms by providing notice of non-renewal at least five (5) days prior to the end of the then-current Subscription Term. WakoAI reserves the right to terminate these Terms for no reason in its sole discretion at any time; provided that, in the event such termination of Services without cause, WakoAI will provide a pro-rata refund to you of any pre-paid Fees for the then-current Subscription Term. Further, either party may terminate these Terms (and all Subscription Term(s)) upon written notice to the other party in the event the other party: (a) becomes insolvent or bankrupt or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination will occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party or such other period as the parties may agree.
11.3 Effects of Termination. Upon expiration or termination of these Terms: (a) your use of and access to the Services and the Platform and the performance of all Ancillary Services will cease; (b) all Order(s) will terminate; and (c) all fees and other amounts owed under these Terms will be immediately due and payable, including without limitation, all fees incurred under any outstanding Orders up through the date of termination for any Ancillary Services completed and a pro-rated portion of the fees incurred for any partially completed Ancillary Services. In addition, within ten (10) days of the effective date of termination each Receiving Party will: (i) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party will destroy, all items of Confidential Information then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, except for information subject to the rights set forth in Section 9 ; and (ii) upon request will certify in writing to Disclosing Party that it has complied with the foregoing.
11.4 Survival. This Section 11.4 and Sections 1 , 2.2 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11.3 , 12 and 13 will survive any termination or expiration of these Terms according to their respective terms.
12. DISPUTE RESOLUTION.
12.1 Arbitration. You agree that, except as set forth in this Section 12 , any dispute, claim or controversy arising out of or in connection with NuPhone, other Services and/or Privacy Policy (each, for the purposes of this Section 12 , a “Claim”) will be determined by binding arbitration or small claims court, instead of in courts of general jurisdiction. This Section 12 provision will survive any termination of these Terms, including in the event that WakoAI ceases to provide the Services.
12.2 Small Claims. Subject to the satisfaction of all applicable requirements of small claims court, you or WakoAI may seek to have a Claim resolved in small claims court. You or WakoAI bring a Claim in a small claims court in the jurisdiction in which you reside or in the small claims court in closest proximity to your residence. You may also bring a Claim in small claims court in the State of California, USA.
12.3 U.S. Federal Arbitration Act. Arbitration uses a neutral arbitrator instead of a judge or jury, and is more informal than a lawsuit in court. Arbitration may permit more limited discovery than a court proceeding, and is subject to very limited review by courts. However, the same damages and relief that a court can award can be awarded by arbitrators. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement
of this Section 12 . You also agree that you and WakoAI each hereby expressly waive the right to participate in a class action.
12.4 Notice of Claim. In the event that you elect to seek to have a Claim arbitrated, you are required to first send WakoAI’s registered agent a written notice of your Claim (“Notice of Claim”). Your Notice of Claim should be sent in care of Vcorp Agent Services, Inc., 108 West 13th Street, Suite 100, Wilmington, DE, County of New Castle, 19801. Your Notice of Claim should include your mailing address and your email address that we may use to contact you. If WakoAI elects seek to have a Claim arbitrated, we will send a written Notice of Claim to the address that we have on file for you by certified mail. Any Notice of Claim must include enough information for us to identify you and attempt to resolve your Claim, including both a description of the nature and basis of your Claim, any supporting documentation, and the specific amount of damages or other relief you are seeking.
12.5 Informal Dispute Resolution. You and WakoAI agree that following a Notice of Claim sent by you or WakoAI and before arbitration commences or the Claim is filed in any small claims court, you and WakoAI will negotiate in good faith to resolve the Claim prior to any arbitration or court proceeding. You agree to personally participate fully in such discussions, and you may be represented by counsel in the discussions. Similarly, WakoAI agrees to have a representative participate fully in the discussions. During any period of informal dispute resolution as set forth in this Section 12.5 , the statute of limitations and any filing fee deadlines will be suspended for the duration of such discussions.
12.6 Commencement of Arbitration. If the parties are unable to resolve any claims within sixty (60) days despite good faith efforts, then either you or we may start arbitration or small claims court proceedings. You agree that you may not commence any arbitration or file a Claim in small claims court unless and until sixty (60) days have elapsed following WakoAI’s receipt of your Notice of Claim. If an arbitration is commenced for a Claim that qualifies for small claims court, you and WakoAI agree that either you or WakoAI may elect to have the Claim resolved in small claims court instead and that, upon written notice of a party’s election, the American Arbitration Association (“AAA”) will administratively close the arbitration proceeding. In the event of a dispute regarding whether a Claim qualifies for small claims court, such small claims court, and not an arbitrator, will resolve the dispute and the arbitration proceeding will remain closed unless and until a decision by such small claims court that the Claim should proceed in arbitration. A form of notice and a form to initiate arbitration are available for download at www.adr.org or by calling 1-800-778-7879.
12.7 Arbitration Rules. The arbitration of all disputes will be administered by the AAA under its rules in effect at the time the arbitration is commenced, available at www.adr.org or by calling 1-800-778-7879, except to the extent any of those rules conflict with our agreement in these Terms, in which case these Terms will govern to the extent of the conflict. Except as you and WakoAI otherwise agree, any arbitration hearings will take place in the county (or parish) of either your residence or of the mailing address you provided in your Notice of Claim.
12.8 Arbitrator Selection. The arbitrator will be either: (a) a retired judge; or (b) an attorney specifically licensed to practice law in the state of California or the state of your residence and will be selected by the parties from the AAA’s National Roster of arbitrators, as follows: (i) the AAA will send the parties a list of five (5) candidates meeting the foregoing criteria; (ii) if the parties cannot agree on an arbitrator from the list, each party shall return its list to the AAA within ten (10) days, striking up to two (2) candidates, and ranking the remaining candidates in order of preference; (iii) the AAA shall appoint as arbitrator the candidate with the highest aggregate ranking; and (iv) if for any reason the appointment cannot be made according to this procedure, the AAA may exercise its discretion in appointing the arbitrator. All arbitrators appointed pursuant to this process are subject to the disclosure and disqualification procedures set forth in the AAA rules and any applicable laws. The arbitrator is bound by these Terms. Except as otherwise provided below, all issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision.
12.9 Administrative Conference. The parties agree that an administrative conference with the AAA shall be conducted in each arbitration proceeding, and you and a representative of WakoAI shall appear at the administrative conference via telephone. If you fail to appear at the administrative conference, regardless of whether your counsel attends, the AAA will administratively close the arbitration proceeding without prejudice, unless you show good cause as to why you were not able to attend the conference.
12.10 Decision of Arbitrator. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. WakoAI will not seek to recover its attorneys’ fees and costs in arbitration from you unless the arbitrator finds that either the substance of your claim or the relief sought in your demand for arbitration (a “Demand for Arbitration”) was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). Judgment on any award may be entered in any court having jurisdiction. This agreement to arbitrate shall not preclude any party to the arbitration from at any time seeking injunctions or other forms of equitable relief in aid of arbitration from a court of appropriate jurisdiction including whether a Demand for Arbitration is filed in violation of these Terms.
12.11 Injunctive Relief. Unless you or WakoAI seek to have a Claim resolved in small claims court, the arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. If you seek injunctive or declaratory relief, you agree that the arbitrator may award injunctive or declaratory relief in favor of you alone, and only to the extent necessary to resolve your individual Claim.
12.12 Payment of Fees. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. If you initiate an arbitration, you are required to pay AAA’s initial filing fee, but WakoAI will reimburse you for this filing fee at the conclusion of the arbitration to the extent it exceeds the fee for filing a complaint in a federal or state court in your county of residence or in the State of California. If the arbitrator finds that either the substance of your Claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules and WakoAI will not reimburse your initial filing fee. The parties agree that the AAA has discretion to modify the amount or timing of any administrative or arbitration fees due under the AAA Rules where it deems appropriate, provided that such modification does not increase the AAA fees to you or WakoAI and you and WakoAI waive any objection to such fee modification. 12.13 No Representative Proceedings. You and WakoAI agree that each may bring Claims against the other only in your or its individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Further, if you have elected an arbitration, unless both you and WakoAI otherwise agree, the arbitrator may not consolidate any other person’s Claims with your Claims and may not otherwise preside over any form of a representative or class proceeding. If WakoAI believes that any Claim you have filed in arbitration or in court is inconsistent with the limitations in this paragraph, then you agree that WakoAI may seek an order from a court determining whether your Claim is within the scope of the Class Action Waiver. If this Class Action Waiver is found to be unenforceable, then the entirety of this Section 12 (Dispute Resolution) shall be null and void.
13. MISCELLANEOUS.
13.1 Notices. Whenever, under the terms of or in connection with these Terms, any notice, consent, approval, authorization or other information is proper or required to be given by either party, such notice, consent, approval, authorization or other information will be in writing and will be given or made by reputable overnight courier with documentation of receipt to the intended recipient thereof or by registered or certified mail, return receipt requested, and with all postage prepaid, to the address set forth in the preamble of these Terms, or to such other address for either party as may be supplied by notice given in accordance herewith.
13.2 Amendment; Waiver. These Terms may be amended or supplemented only by a writing that is signed by duly authorized representatives of both parties or through a click through agreement accepted by you. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
13.3 Severability. If any provision of these Terms is held invalid or unenforceable for any reason, the remainder of the provision will be amended to achieve as closely as possible the economic effect of the original term and all other provisions will continue in full force and effect.
13.4 Governing Law. These Terms and the rights and obligations of the parties to and under these Terms will be governed by and construed under the laws of the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles which would apply the laws of any other state or country. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Subject in all respects to Section 12 hereof, for any disputes arising out of these Terms, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the San Francisco, California, USA.
13.5 Attorneys’ Fees. In any action to enforce these Terms, the prevailing party will be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
13.6 Force Majeure. Neither party will be liable for any failure or delay in performance under these Terms due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of these Terms); or any other event beyond the reasonable control of the party whose performance is to be excused.
13.7 Subcontractors. WakoAI may utilize subcontractors and subprocessors (“Subcontractors”) in connection with the activities contemplated by these Terms; provided that WakoAI will remain liable for the acts and omissions of any such Subcontractors as if they were acts and omissions of WakoAI under these Terms. 13.8 Assignment. You may not assign your rights or obligations under these Terms, whether voluntarily or by operation of law or otherwise, without WakoAI’s prior written consent. Any purported assignment or transfer in violation of this section will be void. Subject to the foregoing restrictions, these Terms will bind and benefit the parties and their successors and permitted assigns.
13.9 Relationship of the Parties. WakoAI is an independent contractor to you. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
13.10 Interpretation. Except where the context expressly requires otherwise: (a) the use of the singular will be deemed to include the plural (and vice versa); (b) the words “include”, “includes”, “including” or “e.g.” will be deemed to be followed by the phrase “without limitation”; (c) the word “will” will be construed to have the same meaning and effect as the word “shall”; (d) the words “herein”, “hereof” and “hereunder”, or any word of similar import, will be construed to refer to these Terms in their entirety and not to any particular provision hereof, including each Order; and (e) the term “or” will be interpreted in the inclusive sense commonly associated with the term “and/or”.
13.11 Construction of Agreement. Each party acknowledges that it has had the opportunity to have legal counsel review these Terms and to negotiate its terms and conditions. Should any questions of construction or interpretation of these Terms arise, then the parties agree that no presumption will be applied against the party drafting these Terms or any portion thereof and that the language of these Terms will, in all cases, be construed as a whole according to its fair meaning and not strictly for or against either party. 13.12 Entire Agreement. These Terms, including all Order(s), constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.