GFI customer agreement
PLEASE CAREFULLY REVIEW THE FOLLOWING TERMS AND CONDITIONS OF THIS CUSTOMER AGREEMENT ("Agreement”). THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND GFI.
BY CLICKING ‘I AGREE’ OR OTHERWISE USING THE GFI FAXMAKER ONLINE SERVICE, YOU ARE CONSENTING TO ALL OF THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, YOU MUST CEASE USING THE SERVICE IMMEDIATELY.
This Agreement is a legal agreement between you, and if you are located (i) in the USA, South America, Canada ‐ GFI USA Inc, or (ii) in the UK – GFI Software Ltd (England & Wales), (iii) in the DACH region – GFI Software GmbH, or (iv) elsewhere than the regions above GFI Software Sales Ltd (each individually and collectively “GFI”) and governs all use of the GFI FaxMaker Online services, which includes the services and any associated media, printed materials, and “online” or electronic documentation made available to you by GFI (collectively “Service(s)”).
The applicable end user license agreement for the underlying GFI Faxmaker software shall remain in full force and effect for such software.
GFI may modify the terms of this Agreement from time to time and shall post the most up to date version of this Agreement at www.gfi.com, it is your responsibility to check and stay informed of any changes. Your continued use of the Services following modification to the Services or this Agreement constitutes your consent to be bound by the modified Agreement.
"Account" means the account located upon the the technical systems, hardware and all connected devices of GFI or its third party suppliers, created and maintained by you in order to access the Services.
"You/Your" means an individual or entity (including that entities’ parent or affiliated companies) to which Services are provided by and as agreed to by GFI.
"Subscription" means the non-exclusive, non-transferable right to use the Services, as ordered by you, subject to the terms of this Agreement and the full and timely payment of the Subscription Fees.
"Subscription Fees" means the fees payable hereunder to GFI for use of the Services.
“GFI FaxMaker Online Number” means the number assigned by GFI or one of our licensors to you or ported in by you for use of the Services.
“Website” means www.gfi.com
2. DESCRIPTION OF SERVICES
The Services include the GFI Faxmaker Online service and all other services described in this Agreement. This Agreement covers any updates, new releases or enhancement(s) of the Services, which GFI may, in its sole discretion, make available to you from time to time.
The Services enable you to send or receive faxes over the internet from your email client, printer driver or via the Application Programming Interface (API). GFI shall make commercially reasonable efforts to provide the Services to you.
3. SUBCRIPTION FOR THE SERVICES
To access and use the Services, you must create an Account protected by a chosen username and password. You must treat such information as confidential, and not disclose it to any third party. You agree to immediately notify GFI of any unauthorized use of your Account or any other breach of security, and ensure that you exit from your Account at the end of each session.
You agree to provide GFI with correct, current and complete information when registering for an Account and at all times thereafter. GFI must be promptly notified if changes to your information occur.
GFI have the right to disable any Account, user identification code or password, whether chosen by you or provided by GFI, at any time, for any reason, including, if in the opinion of GFI, you have failed to comply with any provision of this Agreement.
You acknowledge and agree that you are responsible for providing the following: (i) all equipment, such as a computer and modem, necessary to access the Internet; (ii) your own access to the Internet; and (iii) payment of all telephone or other fees associated with such access.
After you have created an Account you can select a Subscription for the required Services. Your Subscription begins at the time your Subscription is activated by GFI (other than on a trial basis) and thereafter continues in effect until the date of termination as set forth hereinafter.
4. FAX STORAGE
While your Account is active, GFI may store and display fax messages sent or received via your GFI Faxmaker Online Number until download is complete. You acknowledge that GFI may change its practices and/or limitations concerning the storage of fax messages at any time, including, without limitation, changing the maximum number of days that fax messages are stored and the maximum number of messages stored at any one time. You further agree that GFI has no responsibility or liability whatsoever for any failure or malfunction of the storage of fax messages.
5. SUBSCRIPTION FEES
The Services are available on a monthly or annual Subscription basis. Subscriptions are dependent on the number of pages sent or received and billed in advance. The Subscription Fees for the Services consist of an activation fee, a recurring fee such as a monthly or annual charge, and any applicable excess usage based charges. The Subscription Fees are payable as follows:
a) The activation fee and recurring monthly or annual charge are payable in advance; and
b) The excess usage based charges are payable in arrears on an agreed periodic basis.
The Subscription Fees for the Services will be as set out in the applicable pricing schedule on the Website, which GFI reserves the sole right to change from time to time.
a) Subscription Options
GFI uses a trusted third party partner to provide its online sales of the Services through the Website subject to their terms and conditions.
You agree to pay all Subscription Fees for your use of the Services in accordance with the Subscription you were offered and agreed to upon purchasing the Subscription. GFI reserves the right to charge value-added taxes ("VAT"), sales or other taxes on the Services as it deems appropriate.
GFI may amend your Subscription, including any Subscription Fees thereto, at any time either by (a) posting Subscription Fee changes on the Website, or (b) sending information regarding the Subscription Fee changes to the email address you provided to GFI. You are responsible for regularly reviewing such Subscription Fee information. Continued use of the Services, or non-termination of your Account, after changes are either posted or emailed to you constitutes your acceptance of the Subscription Fees as modified.
If you have a question regarding any Subscription Fees that have been applied to your Account, you must contact email@example.com within thirty (30) days of the Subscription Fee date. Failure to do so will waive your ability to dispute such Subscription Fees. Failure to use your Account will not be deemed a basis for refusing to pay any Subscription Fees.
b) Monthly Subscriptions
If you purchase a monthly Subscription you agree that any applicable Subscription Fees for sending faxes and/or receiving faxes shall be paid monthly automatically in advance via a charge to your credit card. Monthly subscriptions shall automatically renew at the end of the Subscription period and GFI will charge the then applicable Subscription Fees to the credit card associated with your Account.
Any Services purchased as part of your monthly Subscription do not carry forward to the next Subscription period, and are valid only from the commencement date of the Subscription Fee to the renewal date of the Subscription Fee. Any Services purchased as part of your monthly Subscription that are not used cannot be transferred to any other GFI FaxMaker Online Number under the same Account or refunded.
Additional charges apply if you exceed the number of inbound or outbound fax pages included in your purchased monthly Subscription. If you exceed the allocated usage of the Services within a Subscription period, you will incur additional per fax page rates as per the GFI FaxMaker pricing schedule posted on the Website at that time. All Subscription Fees for excess usage charges will be invoiced at the end of the month and automatically charged to your credit or debit card without further authorization from you.
Any excess usage is calculated on a month by month basis (not averaged over each month). It is your responsibility to monitor your own usage and/or check on the status of your Account online at the Website.
You agree that for monthly Subscription Fees, GFI shall submit charges for your monthly Subscription Fees each month, without further authorization from or notice to you, until you provide prior notice (in accordance with GFI's verification procedures, as may be established by GFI from time to time in its sole discretion) that you have terminated this authorization or wish to change your designated credit card(s). Such notice will not affect charges submitted before GFI reasonably could act on your notice. If you add GFI Faxmaker Online Numbers to an existing Account, your first payment for such additional GFI Faxmaker Online Numbers may be prorated to coincide with the annual/monthly anniversary of your first GFI Faxmaker Online Number. You agree that GFI may (at its option) accumulate Subscription Fees incurred during your monthly billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and that GFI may delay obtaining authorization from your card issuer until submission of the accumulated charge(s). This means that accumulated Subscription Fee charges may appear on the statement you receive from your card issuer.
You may cancel your Subscription at any time by logging onto the designated customer area of the Website or sending an email to GFI. All Subscription Fees consisting of activation fees, monthly Subscription Fees and/or excess usage charges are COMPLETELY NON-REFUNDABLE whether cancelled by you or terminated for cause. As of the effective date of cancellation or termination, you shall no longer be able to access or use the Account or any Services.
c) Annual Subscriptions
Annual Subscription Fees are paid in full annually in advance. If you utilize your allocated annual allowance of Services before the expiration of the Subscription period you must purchase an additional Subscription to enable further use of the Services. Annual Subscriptions do not automatically renew and expire at the end of the 12 month period. GFI may send you a reminder when you are approaching the expiration of your Subscription.
If at the expiration of your annual Subscription you have a remaining balance of Services in credit, GFI will allow a 30 day grace period for the Services to be utilized. After the 30 day grace period has expired you will no longer have access to the Services.
Annual Subscription Fees are payable through a trusted third party partner for GFI.
You can terminate your annual Subscription by logging onto the designated customer area on the Website or contacting GFI. If you cancel your Subscription before the end of your Subscription period you may incur a termination fee and GFI may, in its sole discretion, grant a partial refund for the remainder of your credit.
GFI may discount its published Subscription Fees for annual Subscriptions. GFI reserves the right in its sole discretion to change the discount prices at any time without notice. Any discounted Subscription Fees are COMPLETELY NON-REFUNDABLE.
d) Viewing Your Account Balance
To view your current Account balance, along with details on Subscription Fees and any accumulated charges, please log on to the customer area on the Website.
e) Usage and/or Account Credit Balances
GFI may, from time to time, award you a credit applied to your GFI Faxmaker Online Services usage and/ or account balance, which is a non-refundable credit. GFI Faxmaker Online Services usage and/ or account credit balances have no cash value. Usage and/or Account credit balances will expire on the earlier of (i) termination of your account or (ii) 30 days after they are issued, and are subject to any additional terms associated with the credit offer.
6. TRIAL OF THE SERVICES
You may trial the Services once for up to thirty (30) days, at no cost. You may trial the Services only to determine whether to purchase a Subscription for the Services. At the end of the trial period, you must either purchase a Subscription for the Services or cease all use of such Services. Your use of the Services during a trial period or for any Service that is offered as freeware shall be without warranty of any kind and is provided “AS IS”. GFI has no duty to provide support to you during its use of the Services or any trial period. Any Service available as freeware or for trial purposes must not be used for commercial purposes or in high–risk situations. If you wish to purchase a Subscription for the Services at the end of the trial period you must register online.
7. CONSENT TO USE OF DATA
The Services, in all formats existing, are a trade secret of and proprietary to GFI, its suppliers and / or licensors, including but not limited to, the specific internal code, design and structure of individual programs and software, the display and associated interface information. You shall maintain Services confidence and prevent disclosure of the same by using a reasonable degree of care. You shall not disclose the confidential aspects of the Services, or part thereof, to anyone for any purpose.
9. INTELLECTUAL PROPERTY RIGHTS
The Services are protected by world‐wide copyright, trademark, patent and other intellectual property laws and treaties and belong to GFI, its licensors and any applicable third party. You acknowledge that (i) rights in the Services are licensed (not sold) to you, and that you have no rights or title in, or to, the Services other than the right to use them in accordance with the terms of this Agreement and (ii) Open Source and / or third‐ party software may be incorporated into the Services. GFI, its licensors and any applicable third parties, own all title, copyright, and other intellectual property rights in and to the Services.
Except as otherwise expressly provided under this Agreement, you shall have no right and you shall not permit any third party to: (i) transfer, assign or sublicense the rights granted to you in this Agreement to any other person, or entity, or use the Services on any equipment other than an authorized Unit, and you acknowledge that any attempted transfer, assignment, sublicense or unauthorized use shall be void; (ii) make error corrections to or otherwise modify or adapt the Services or decompile, decrypt, disassemble, reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Services or of any files contained or generated using the Services by any means whatsoever or otherwise reduce the Services to human‐ readable form, except to the minimum extent expressly permitted under applicable law notwithstanding this restriction; or (iii) use or permit the Services to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of GFI; or (iv) circumvent or provide the method or means to circumvent any TMP in the Services; or (v) use the Services in any manner not expressly authorized herein.
During a Subscription period, GFI will provide you with the support described in this paragraph (“Support”) on a local office hour’s basis. In GFI’s sole determination, Support shall consist of: (i) telephone or electronic Support to you in order to help you locate and, on your own, correct problems with the Services and/or (ii) supplying extensions, enhancements and other changes that GFI may make to the Services from time to time and which are made publicly available, without additional charge, to other users of the Services that are enrolled in Support.
12. CONTENT UPDATES; TECHNOLOGICAL PROTECTION MEASURES
Some Services require, for optimum use and GFI, in its sole discretion, may provide to you, in a number of formats (feeds, definition files etc), content that is automatically, synchronized or updated from time to time with GFI’s servers or systems, which may relate to anti ‐ virus, anti ‐ spamming or anti phishing activities (“Content”). Such content may be provided for a limited time, from time to time, or in accordance with an applicable and valid Support agreement. The Services may also contain technological protection measures, for instance a license key or code, that prevents unlimited copying, or limit time of use or functionality in accordance with the type of license that you purchase (“TPM”). You consent that the Services will automatically contact GFI to receive Content and, in addition, if and when any of the following events occur: (i) the Services are successfully installed by you; (ii) you fail to install the Services successfully; (iii) the Services have been successfully configured; (iv) there are changes to the Services’ license key or TPM; and / or (v) the Services are uninstalled. GFI has offices worldwide and you acknowledge and consent that any data collected may be sent to any GFI office or affiliate for processing, including locations outside of the USA and European Union.
13. CUSTOMER RESPONSIBILITIES
You are fully responsible for the contents of your transmissions through the Services. GFI simply acts as a passive conduit for you to send and receive information of your own choosing. However, GFI reserves the right to take any action with respect to the Services that GFI deems necessary or appropriate in its sole discretion, if GFI believes you or your information may create liability for GFI, compromise or disrupt the Services for you or other customers, or cause GFI to lose (in whole or in part) the services of GFI's ISPs or other suppliers. Your use of the Services is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities or false advertising). You agree: (1) to comply with all laws regarding the transmission of technical data exported from any country through the Services; (2) not to use the Services for any illegal purpose; (3) not to interfere with or disrupt networks connected to the Services; (4) to comply with all regulations, policies and procedures of networks connected to the Services; (5) not to use the Services to infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (6) not to use the Services or related software to knowingly transmit misleading or inaccurate caller identification information for any reason, including doing so with the intent to defraud, cause harm, or wrongfully obtain anything of value; and (7) not to transmit or upload through the Services any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. You further agree not to transmit or upload any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. The Services make use of the Internet for you to send and receive information of your own choosing. As a result, your conduct is subject to Internet regulations, policies and procedures. You agree not to use or reference the Services for chain letters, junk fax or junk mail, spamming or any activity making use of distribution lists to any person who has not given specific permission to be included in such a process or on such list. You further agree not to attempt to gain unauthorized access to other computer systems. You shall not interfere with another customer's use and enjoyment of the Services. You are entirely responsible for maintaining the confidentiality of your Account information.
You must (a) obtain and pay for all equipment and third-party services (e.g., Internet access and email service) required for you to access and use the Services; (b) maintain the security of your PIN/password and other confidential information relating to your Services Account; (c) immediately notify GFI of any unauthorized use of your account or any other breach of security known to you; and (d) be responsible for all charges resulting from use of the Services, including unauthorized use prior to your notifying GFI of such use and taking steps to prevent its further occurrence.
14. UNSOLICITED FAX ADVERTISEMENT/SPAM DROP-BOX
The transmission of unsolicited fax advertisements is illegal in the United States, in the European Union and under the laws of a number of other countries, states and provinces. Distribution of unsolicited fax advertisements through the Services is prohibited. Notwithstanding the above, GFI's distribution of advertising to its customers is not considered unsolicited fax advertising based upon your acceptance of this Agreement.
At GFI's option and without further notice, GFI may use technologies and procedures, such as filters, that may terminate the transmission of such unsolicited fax advertisements without delivering them.
If you believe that you are in receipt of an unsolicited fax advertisement or fax spam, please contact the sender to disallow any further transmission of unsolicited fax advertisement or spam.
You hereby acknowledge and agree that GFI has any and all rights (but no obligation) to assert any and all legal claims available against any third party as a result of your receipt of any unsolicited fax advertisements, including but not limited to claims under the TCPA and similar laws of any other country, state or province, and, to the extent you do have any rights to bring any such claims, you hereby assign any and all such rights to GFI as consideration for its provision of the Services.
Because GFI Faxmaker Online Numbers may be reassigned to other customers in the event your Account is canceled, and to ensure the best possible service for all customers, you are not permitted to "opt in" to receive on your GFI Faxmaker Online Number facsimile advertisements of the commercial availability or quality of any property, goods or services from persons with whom you have not established a business relationship.
Either you or GFI may terminate your Services at any time, with or without cause, upon notice. GFI also reserves the right to modify or discontinue the Service in whole or in part with or without notice to you. In order to provide notice to GFI, customers must call or email customer service. A customer service representative will assist you with canceling your Account in accordance with GFI's verification procedures; as such procedures may be changed by GFI in its sole discretion. Upon termination of your Account, GFI will send you an email confirming that your Account has been canceled. GFI reserves the right to terminate or suspend your Services without prior notice if you do not comply with the terms of this Agreement, including but not limited to failure to pay applicable charges as they become due and payable.=
16. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED TO YOU “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY LAW THIS WARRANTY AND THE REMEDIES HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMIEDIES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND WARRANTIES FOR LATENT OR HIDDEN DEFECTS. GFI DOES NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR‐FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. FURTHERMORE, GFI DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES PROVIDED IN RESPECT OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IF THIS EXCLUSION IS NOT PERMITTED BY LAW, GFI LIMITS ANY EXPRESS, STATUTORY OR IMPLIED WARRANTIES AS TO DURATION TO THE EXTENT OF THIS LIMITED WARRANTY AND THE REPAIR OR REPLACEMENT REMEDY AS DETERMINED BY GFI IN ITS SOLE DISCRETION. SOME STATES OR COUNTRIES DO NOT ALLOW SUCH LIMITATION AND THEREFORE NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.
17. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GFI, ITS AFFILIATES, SUBSIDIARIES, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES OR HARDWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, UNDER ANY THEORY OF LAW OR FAULT OF GFI OR ANY OF ITS AFFILIATES, SUBSIDIARIES OR LICENSORS, AND EVEN IF GFI OR ANY OF ITS AFFILIATES, SUBSIDIARIES OR LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY TO DEATH OR PERSONAL INJURY CLAIMS CAUSED BY GFI’S NEGLIGENCE. GFI EXCLUDES ANY LIABILITY FOR FAILURE TO REPAIR ANY OF THE SERVICES. SOME STATES OR COUNTRIES DO NOT ALLOW SUCH LIMITATION AND THEREFORE NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. THE ENTITIES COMPRISING GFI AS DEFINED IN THIS AGREEMENT, SHALL AT ALL TIMES BE SEVERALLY LIABLE ONLY.
Notwithstanding the foregoing, the maximum liability that GFI shall incur hereunder shall be limited to the actual price paid by you to GFI for the Services.
18. GFI FAXMAKER ONLINE NUMBERS
YOU UNDERSTAND AND AGREE THAT YOU WILL HAVE USE OF THE GFI FAXMAKER ONLINE NUMBER(S) PROVIDED AS PART OF THE SERVICES ONLY UNTIL THE END OF THE TERM OF THE SUBSCRIBTION OR UNTIL GFI NO LONGER PROVIDES YOU WITH SERVICES UNLESS YOU SATISFY THE PROVISIONS IN SECTION 18 (a) BELOW. GFI IS GRANTING YOU THE REVOCABLE PERMISSION TO USE SUCH GFI FAXMAKER ONLINE NUMBER(S) IN ACCORDANCE WITH THIS AGREEMENT FOR THE LENGTH OF THE TERM OF THE AGREEMENT. YOU UNDERSTAND THAT GFI IS THE CUSTOMER OF RECORD OF ALL GFI FAXMAKER ONLINE NUMBER(S) PROVIDED AS PART OF THE SERVICES AND, THEREFORE, GFI HAS CERTAIN RIGHTS WITH RESPECT SUCH GFI FAXMAKER ONLINE NUMBER(S), INCLUDING WITHOUT LIMITATION CERTAIN RIGHTS RELATING TO PORTING OF SUCH GFI FAXMAKER ONLINE NUMBER(S) (“PORTING” IS CAUSING OR ATTEMPTING TO CAUSE NUMBER(S) TO BE TRANSFERRED, SWITCHED OR OTHERWISE MOVED TO ANY OTHER SERVICE PROVIDER, TELEPHONE CARRIER OR ANY OTHER PERSON OR ENTITY). AS THE CUSTOMER OF RECORD FOR ALL GFI FAXMAKER ONLINE NUMBER(S), GFI HAS THE DIRECT RELATIONSHIP WITH THE TELEPHONE COMPANY THAT PROVIDES THE UNDERLYING TELECOMMUNICATIONS THAT SUPPORT THE SERVICES YOU RECEIVE FROM GFI. YOU UNDERSTAND AND AGREE THAT GFI IS NOT, ITSELF, A TELEPHONE COMPANY AND IS THEREFORE NOT UNDER ANY LEGAL OBLIGATION TO PERMIT YOU TO PORT ANY GFI FAXMAKER ONLINE NUMBER(S) PROVIDED UNLESS YOU SATISFY THE PROVISIONS IN SECTION 18 (a) BELOW. YOU UNDERSTAND AND AGREE THAT YOU ARE EXPRESSLY PROHIBITED FROM CAUSING OR ATTEMPTING TO TRANSFERRED THE GFI FAXMAKER ONLINE NUMBER ASSIGNED TO YOU TO ANY OTHER SERVICE PROVIDER, TELEPHONE CARRIER OR ANY OTHER PERSON OR ENTITY UNLESS YOU SATISFY THE PROVISIONS IN SECTION 18 (a) BELOW. IN THE EVENT YOU VIOLATE THE FOREGOING PROVISION, YOU AGREE TO IMMEDIATELY RETURN THE GFI FAXMAKER ONLINE NUMBER(S) TO GFI AND PAY GFI AN AMOUNT EQUAL TO U.S. $500 (OR THE EQUIVALENT IN LOCAL CURRENCY). YOU AUTHORIZE GFI TO CHARGE YOUR ACCOUNT CREDIT OR DEBIT CARD OR TAKE ANY OTHER MEASURES REQUIRED TO COLLECT THIS PAYMENT AND TO CAUSE THE GFI FAXMAKER ONLINE NUMBER(S) TO BE RETURNED TO GFI. YOU AGREE THAT THIS PAYMENT REPRESENTS LIQUIDATED DAMAGES REFLECTING A REASONABLE MEASURE OF THE ACTUAL OR ANTICIPATED HARM, DAMAGES CAUSED AND ADMINISTRATIVE FEES INCURRED BY GFI FROM SUCH VIOLATION IN LIGHT OF THE DIFFICULTIES OF PROOF OF LOSS AND THAT THIS PAYMENT IS NOT A PENALTY. SOME NON-U.S. JURISDICTIONS DO NOT ALLOW LIMITATIONS TO BE PLACED ON YOUR RIGHT TO PORT THE GFI FAXMAKER ONLINE NUMBER ASSIGNED TO YOU, SO SOME OF THESE LIMITATIONS MAY NOT APPLY IF THE GFI FAXMAKER ONLINE NUMBER(S) ASSIGNED TO YOU IS LOCATED IN SUCH A JURISDICTION.
a) Telephone Numbers Ported In
IF YOU "PORTED IN" ANY TELEPHONE NUMBER(S) IN CONNECTION WITH YOUR USE OF SERVICES, OR YOU ARE ENTITLED TO "PORT OUT" A TELEPHONE NUMBER UNDER NON-U.S. LAW, YOU MAY "PORT OUT" SUCH NUMBER(S) IN CONNECTION WITH TERMINATING YOUR ACCOUNT ONLY IF YOU SATISFY THE FOLLOWING REQUIREMENTS: (i) YOU PROVIDE WRITTEN NOTICE TO GFI OF YOUR INTENTION TO "PORT OUT" SUCH TELEPHONE NUMBER(S) NO LATER THAN THE DATE OF TERMINATION OF YOUR ACCOUNT; (ii) YOUR NEW TELEPHONE CARRIER PROVIDES GFI’S TELEPHONE CARRIER WITH A DULY EXECUTED PORTING REQUEST PRIOR TO THE TERMINATION DATE OF YOUR ACCOUNT; (iii) YOU HAVE PAID GFI FOR ALL SERVICES PROVIDED TO YOU PRIOR TO THE DATE OF TERMINATION OF YOUR ACCOUNT; AND (iv) IF REQUIRED BY GFI PRIOR TO THE TERMINATION OF YOUR ACCOUNT YOU HAVE PAID ANY APPLICABLE ADMINISTRATIVE FEES TO COVER THE REASONABLE COSTS ASSOCIATED WITH PROCESSING THE PORT IN . YOU HEREBY AUTHORIZE GFI TO CHARGE YOUR CREDIT OR DEBIT CARD IN THE APPLICABLE AMOUNT FOR SUCH ADMINISTRATIVE FEE. THE PORTING PROCESS CAN BE LENGTHY; IF YOU WOULD LIKE TO MAINTAIN YOUR SERVICES DURING THE PORTING PROCESS, YOU MUST MAINTAIN YOUR ACCOUNT IN AN ACTIVE STATUS AND NOT TERMINATE YOUR ACCOUNT UNTIL THE PORTING OUT IS COMPLETE. REGARDLESS OF WHEN THE PORT OUT IS COMPLETE, YOU WILL CONTINUE TO BE RESPONSIBLE TO PAY ALL APPLICABLE ACCOUNT FEES WITH RESPECT TO THE TELEPHONE NUMBERS UNTIL YOU FORMALLY TERMINATE YOUR SERVICE. IF YOU FAIL TO SATISFY ANY OF THE FOREGOING REQUIREMENTS, GFI SHALL REMAIN THE CUSTOMER OF RECORD OF THE NUMBER(S) AND YOU ARE EXPRESSLY PROHIBITED FROM CAUSING OR ATTEMPTING TO CAUSE SUCH NUMBER(S) TO BE TRANSFERRED TO ANY OTHER SERVICE PROVIDER, TELEPHONE CARRIER OR ANY OTHER PERSON OR ENTITY. GFI ALSO RESERVES THE RIGHT TO RECLAIM THE NUMBER(S) FROM YOU AFTER THE NUMBER(S) ARE PORTED OUT IN CONTRAVENTION WITH THESE REQUIREMENTS AND ANY APPLICABLE CHARGES. YOU UNDERSTAND AND AGREE THAT EVEN IF YOU SATISFY THE REQUIREMENTS SET FORTH IN THIS SECTION 18 (a), TECHNICAL OR PROCEDURAL DIFFICULTIES OR INTERRUPTIONS MAY OCCUR WHEN ATTEMPTING TO PORT OUT THESE NUMBERS (E.G. WHEN NO PORTING AGREEMENT EXISTS BETWEEN YOUR AND OUR TELEPHONE CARRIER OR FOR ANY OTHER REASON) AND SUCH DIFFICULTIES OR INTERRUPTIONS MAY PREVENT YOUR NEW CARRIER FROM PORTING THE NUMBERS. GFI IS NOT RESPONSIBLE FOR SUCH TECHNICAL OR PROCEDURAL DIFFICULTIES OR INTERRUPTIONS AND YOU WILL RECEIVE NO REFUND OF ANY APPLICABLE ADMINISTRATIVE FEES.
b) Reassignment of Telephone Numbers
YOU UNDERSTAND AND AGREE THAT FOLLOWING THE TERMINATION OF YOUR SERVICES FOR ANY REASON, THE GFI FAXMAKER ONLINE NUMBER(S) ASSIGNED TO YOU MAY BE IMMEDIATELY RE-ASSIGNED TO ANOTHER CUSTOMER. YOU AGREE THAT GFI WILL NOT BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF ANY SUCH RE-ASSIGNMENT AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT TO ANY SUCH RE-ASSIGNMENT, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF GFI HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. YOU FURTHER UNDERSTAND AND AGREE THAT GFI MAY FROM TIME TO TIME NEED TO CHANGE THE GFI FAXMAKER ONLINE NUMBER ASSIGNED TO YOU (WHETHER DUE TO AN AREA CODE SPLIT OR ANY OTHER REASON WHETHER OUTSIDE OR WITHIN GFI'S CONTROL). YOU AGREE THAT GFI WILL NOT BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF ANY SUCH CHANGE IN THE GFI FAXMAKER ONLINE NUMBER ASSIGNED TO YOU, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT TO ANY SUCH CHANGE, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF GFI HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
c) No Right to Charge Third Party Services to GFI Faxmaker Online Numbers
YOU AGREE THAT YOU ARE NOT AUTHORIZED TO CHARGE SERVICES PROVIDED TO YOU OR AT YOUR REQUEST TO THE GFI FAXMAKER ONLINE NUMBER ASSIGNED TO YOU BY GFI AND THAT YOU WILL NOT REQUEST OR OTHERWISE CAUSE ANY THIRD-PARTY SERVICE PROVIDER TO CHARGE ANY SUCH SERVICES TO SUCH NUMBER. ANY SUCH CHARGES WILL GIVE GFI THE RIGHT TO IMMEDIATELY TERMINATE OR SUSPEND YOUR GFI ACCOUNT WITHOUT NOTICE.
19. AVAILABILITY OF THE SERVICES
Subject to the terms and conditions of this Agreement, GFI shall use commercially reasonable efforts to provide the Services twenty-four (24) hours a day, seven (7) days a week throughout the Subscription. You agree that from time to time the Services may be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which GFI may undertake from time to time; or (iii) causes beyond the control of GFI or which are not reasonably foreseeable by GFI, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). GFI shall use commercially reasonable efforts to provide twenty-four (24) hour advance notice to you in the event of any scheduled Downtime.
You agree to indemnify, defend, and hold GFI, its parent, subsidiary, or affiliate organizations, officers, agents and employees, harmless from any claim, loss, demand, or damage, including reasonable attorneys' fees, asserted by any third party due to or arising out of your breach of any provision of this Agreement, your negligent or wrongful acts, and/or your violation of any applicable laws.
All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising any portion of the Services are wholly owned by GFI, its affiliates and/or its licensors and service providers except where expressly stated otherwise. You may not use GFI's or its affiliates’ trademarks, trade names, patents, copyrights or other intellectual property rights without GFI's prior written permission.
22. ENTIRE AGREEMENT
This Agreement (as may be amended by time to time) is the entire agreement between you and GFI relating to the Services and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services. The GFI Faxmaker end–user license agreement as amended from time to time shall remain in full force and effect as regards the GFI Faxmaker software. To the extent the terms of any GFI Terms of Sale, policies or programs conflict with the terms of this Agreement, the terms of this Agreement shall prevail and control. In addition, the terms set out in this Agreement shall prevail and control over any and all additional or conflicting terms or provisions contained in any document of yours, whether set out in a purchase order or alternative license, and any and all such additional or conflicting terms shall be void and shall have no effect. If this Agreement is translated into a language other than English and there are conflicts between the translations, the English version shall prevail and control.
23. EXPORT CONTROLS
You agree that the Services will not be used, shipped, transferred or exported into any country or to anyone: (i) which the EU or UN has embargoed goods; (ii) where the national legislation of the relevant EU Member State has embargoed goods; (iii) listed in any enacted Common Position on restrictive measures imposed by the EU; (iv) on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders; or (v) in any manner prohibited by the EU Common Foreign and Security Policy, the United States Export Administration Act, or any other export laws or regulations. By using the Services, you represent that you are not located in, under the control of, or a national or resident of any such country or on any such list and you take full and sole responsibility for such use.
24. GOVERNING LAW
(a) If you purchased the Services in or are habitually resident within the USA, South America or Canada, this Agreement shall be governed by, subject to and construed in accordance with the laws of the State of Florida, excluding its conflict of laws provisions and the parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in the State of Florida, or (b) If you purchased the Services in or are habitually resident elsewhere, this Agreement shall be governed by, and construed in accordance with, the laws of England and Wales and the parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in London, England, and the parties waive any objection with respect thereto, for the purpose of any action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
You agree that GFI may refer to the name of your corporation as a customer of GFI, both internally and in externally published media; any additional disclosure by GFI with respect to you or your company shall be subject to your prior written consent.
26. U.S. GOVERNMENT RIGHTS
If you are obtaining the Services or software on behalf of any part of the United States Government, the Software and any documentation shall be deemed "commercial Software" and "commercial computer Software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR 12.212 and 52.227‐19, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Services shall be governed solely by the terms of this Agreement shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
27. EQUITABLE RELIEF
The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof (without any requirement to post bond or guarantee), in addition to any other remedy to which they are entitled at law or in equity.
The delay or failure of either party to exercise any right provided in the Agreement shall not be deemed a waiver. This Agreement: (i) may not be assigned by you and any purported assignment will be null and void, (ii) may not be amended by you, but GFI may amend the Agreement from time to time and shall post any amended Agreement on its website. Except as set forth herein, the remedies of the parties are cumulative and will not exclude any other remedies to which the party may be lawfully entitled. If any provision of this Agreement (or part of any provision) is found illegal, invalid or unenforceable, that provision shall apply with the minimum modification necessary to make it legal, valid and enforceable. This Agreement is for the sole benefit of GFI and you and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. All notices must be in writing and shall be mailed by registered or certified mail (effective on the third day following the date of mailing), or sent via email (pdf. document) to firstname.lastname@example.org
(with evidence of effective transmission). All notices must be addressed to GFI Legal Department c/o: General Counsel.