Terms And Conditions
MY COUNTRY MOBILE SUBSCRIPTION SERVICES AGREEMENT
This Subscription Services Agreement (“Agreement”) governs the Customer’s use of the Service (as defined below). This Agreement is between the entity entering into this Agreement (“Customer”) and My Country Mobile (MCM), Inc. and its Affiliates (“My Country Mobile ”). MCM and Customer may be referred to herein inda “Party” or jointly as the “Parties.”
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING ACCEPTANCE, THE CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. THE CUSTOMER REPRESENTATIVE ENTERING INTO THIS AGREEMENT REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT AND ITS TERMS. IF THE CUSTOMER REPRESENTATIVE DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE TO THESE TERMS, THE CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
MCM and/or its affiliates and licensors own all versions of the MCM Subscription Services, related documentation, software and any pre-generally available updates, new versions and upgrades, if any (collectively, the “Service” or the “Services”), or has the right to license the use of the Service, and is willing to grant to Customer a limited license to access and use such Service, on the following terms. “Subscription Services” means the hosted service which packages web-based access and the right-to-use of the supported applications and associated reference, user and technical guides. Customers may not access the Service if it is MCM’s direct competitor, except with MCM’s prior written consent.
The Agreement is effective between Customer and MCM as of Customer’s acceptance or when the Customer begins using the Service, whichever comes first. MCM may change the terms of the Agreement from time to time.
The terms of this Agreement supersede any term and all terms associated with any Customer purchase order issued for the Service(s) provision.
1. LICENSE.
Subject to the terms of this Agreement and the Restrictions on Use set forth below, MCM grants to Customer a worldwide, non-exclusive, non-sublicensable, and non-transferable limited license for End Users to access and use the Service in accordance with the terms of this Agreement. “End Users” means individuals (i) who are authorised by Customer to use and access the Service, and (ii) who have been assigned unique user identifications and passwords by Customer. The customer is responsible for End Users’ compliance with this Agreement.
2. TERM.
The license granted hereunder shall commence on the purchase date of the Service by the Customer and shall expire at the end of the period for which the Service is purchased. The Service may be cancelled anytime. The term is month to month unless otherwise agreed upon. The terms of this Agreement will automatically renew on a monthly calendar basis. If Customer elects to cancel Service at any time prior to the end of a given term, Customer is still responsible for any unbilled charges and/or fees to the end of such month, all of which become immediately due and payable.
3. SERVICES.
MCM provides the Services intended solely for business use, pursuant to the terms and conditions set forth in this Agreement. MCM may modify the Services upon thirty (30) days prior to written notice or earlier if required by any regulatory authority.
4. RESTRICTIONS ON USE.
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- Modify, copy or create derivative works based on the Service;
- Create Internet “links” to or reproduce any content forming part of the Service;
- Decompile, disassemble, reverse engineer the Service or part thereof, or access it to copy any ideas, features, content, functions or graphics of the Service;
- Interfere with or disrupt the integrity or performance of the Service;
- Send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortuous material via the Service;
- Send or store viruses or malicious code via the Service;
- Attempt to gain unauthorised access to the Service or its related software, systems, platforms or networks;
- Use any components provided with the Service, if applicable, separately from the Service;
- Access the Service for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes;
- Modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any Service;
- Introduce malicious or foreign software into the source code of the MCM Service;
- Release any feedback related to the Service to any third party without MCM’s prior written consent;
- Perform any vulnerability scanning or penetration testing;
- Use the Service for any purpose other than as specifically provided in this Agreement;
1.
Attempt to contact emergency services. Please see 9. EMERGENCY SERVICES are below.
2.
Customer will be responsible for maintaining the confidentiality of the passwords assigned to Customer. The customer will immediately notify MCM if it becomes aware that a password is lost, stolen, disclosed to an unauthorised third party, or otherwise compromised. Customer will be responsible for any and all activities under Customer’s account and/or using Customer passwords. Customer will (i) use commercially reasonable efforts to prevent unauthorised access to, or use of, the Service, and notify MCM promptly of such unauthorized access or use, and (ii) comply with all applicable laws in using the Service.
3.
Customer is responsible for complying with all legal requirements, including applicable privacy laws and regulations, relating to the collection, use, processing and transfer of Customer Data. “Customer Data” means all electronic data or information submitted by the Customer to the Service. The customer acknowledges and consents that the Service provided may require Customer Data to be transferred to a country outside of the Customer’s country or the country where the Customer Data originated.
4.
MCM will create individual user accounts for its employees and contractors, if applicable, that have a legitimate business need to access Customer account(s) and/or Customer Data.
5. CHARGES AND PAYMENT TERMS.
1.
Charges and Fees.
During the term of this Agreement, for each month of Service, the Customer agrees to pay MCM the charges and fees according to the pricing as laid out at the time of purchase on the MCM website or the MCM online purchase portal and/or as agreed to in a quote executed by both parties at the time of purchase. If the Customer purchases an annual plan, then the Customer may be eligible for a discount. All annual plans mandate payment in advance for the full term.
In addition, all outbound calling rates will be applied based on the rate in effect at the time of use. Outbound calls via SIP Trunks will be billed as per the pricing schedule outlined under the “Outbound Rates” tab within the MCM online portal. The forwarding leg of Jetpack and Flex virtual numbers will be billed based on the country of forwarding and applicable rate schedule(s), which can be confirmed with your sales representative at the time of purchase.
2.
Payment Terms.
MCM shall invoice Customer for services on a Prepayment basis commencing at the start of Service (unless Customer subscribes to an annual plan. See 5.1.). The customer agrees to pay each invoice in full without deduction or offset of any kind within 7 business days of the invoice date. All payments shall be made in US dollars set forth on the invoice. All customer orders require prepayment. All online purchases require payment by credit card. Invoices are delivered to Customers by email only. Invoices are also available through our portal. For accounts set up with automatic credit card payments, the credit card will be charged for the amount of the invoice issued immediately when it is issued.
3.
Billing Increments.
Each call processed through the Service shall be billed in 60-second initial and 60-second successive increments unless noted differently on the applicable MCM rate schedule(s), as amended by MCM from time to time.
4.
Cancellation Policy.
If the Customer cancels service prior to the expiration of the contract term, then the Customer will be responsible for payment of the remaining monthly service fees for that month. Termination of the Agreement does not relieve the Customer of its obligation to pay unpaid or accrued charges due. The customer is not eligible for a refund of any portion of unused Service fees due to early cancellation of Services.
5.
Final Charges.
The customer is responsible for and agrees to pay the full amount of the final month’s monthly recurring charges. Upon termination of Service, the Customer will be issued a prorated credit equal to the remaining amount of the current month’s recurring charges. Customers will also be charged a final instance of the monthly recurring charges for the cancelled services.
6.
Credit Limit.
Wholesale customers Credit limits are set for each Customer account. Wholesale Customers will receive multiple notifications if their account balance approaches their credit limit starting when their balance reaches eighty per cent (80%) of their credit limit. Service will be suspended if the account balance reaches the credit limit. Notwithstanding payment terms, the Customer acknowledges and agrees that they may have to make interim payments to avoid suspension of service in case the balance nears the credit limit prior to the monthly invoice being released.
7.
Fees.
a.
Late Fees.
MCM reserves the right to charge late payment fees which shall accrue interest at the rate of 1.5% of the unpaid balance of the service charges per month, or the maximum lawful rate under applicable law, whichever is less. Additionally, MCM will charge an administrative processing fee for late payments. The fee will be based on the amount of the invoice that is delinquent.
b.
Credit Card Charge-Back & Returned Payment Fees.
MCM will charge Customer a $50.00 fee for all credit card charge-backs as well as for returned checks or any other bank returned payment.
c.
There will be no Admin Services Fee is assessed on every MCM customer to cover costs for invoice preparation, account management services, and general payment processing expenses.
8.
Rate Adjustment Schedule.
MCM reserves the right to adjust charges for and/or delete Service offerings to specific locations with 5 days prior written notice to the Customer. MCM may change or delete Service offerings to and in Mexico with 24 hours written notice.
9.
Taxes.
In addition to all fees and charges due hereunder, the Customer agrees to pay all use, excise, gross receipts, sales, withholding, VAT, and privileges taxes, and all duties, fees, surcharges or other taxes or similar governmental charges (other than general income or property tax), arising out of or related to the provision of the Services hereunder, whether the responsibility of or charged to MCM or to Customer (“Taxes”). MCM will invoice the Customer for any Taxes which MCM is required to pay. The customer may provide MCM with a valid tax exemption certificate that exempts the Customer, under applicable law, from taxes that would otherwise be due. In such case, MCM will not invoice the Customer for such Taxes unless otherwise required to do so by a taxing authority.
10.
Compliance Fee.
Included in the pricing structure is an administrative cost recovery fee for worldwide tax and regulatory compliance. This is referred to as the INTFEE. The INTFEE charge of 21.1% applies to monthly subscriptions and to call traffic.
11.
Billing Disputes.
The customer shall notify MCM of any billing discrepancies in writing and in reasonable detail within 30 days of the date of the invoice in question. Customers will be deemed to have waived billing disputes for which notice is received by MCM after such time. MCM shall respond to any notice of billing discrepancy within 30 days of receipt.
12.
Governing Law and Dispute Resolution.
A Party will provide written notice to the other Party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (the “Controversy”). The Parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 30 days of the sending of the written notice of the Controversy, it may be submitted to litigation or binding arbitration, in either state or federal court located in Singapore, Singapore and the laws of the singapore. shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either Party from seeking immediate injunctive relief from any court having jurisdiction over the Parties and the subject matter of the Controversy.
13.
Suspension of Service.
MCM reserves the right to proactively suspend all or a portion of Service: (i) immediately, if Customer, in breach of this Agreement, engages in activities that, in MCM’s sole discretion (acting reasonably), may disrupt or damage MCM’s network or facilities or Services; (ii) immediately, if MCM detects any fraudulent use of the Services and/or robo-dialer or calling card traffic is detected, whether directly or indirectly; (iii) upon 24 hours’ notice to Customer, if Customer’s account is inactive (passes no billable calls for sixty (60) consecutive days); (iv) upon 24 hours’ notice to Customer, if MCM requests identifying or other documentation from Customer for legal or regulatory purposes and Customer fails to provide appropriate documentation within a reasonable time (in MCM’s sole discretion); or (v) upon 24 hours’ notice to Customer, in the event of late payment by Customer. MCM will not be required to resume service until the Customer is current in all payments, including late fees and penalties, and has provided to MCM such additional assurance of the Customer’s ability to pay for Service, including a fee for reinstating Service, as MCM may require in its sole discretion. If the Customer fails to make such payment or rectify any of the conditions that caused the suspension within a reasonable period of time in MCM’s sole determination, MCM may cancel this Agreement with the same effect as if the Customer had requested termination under Section 2.
14.
30-Day Service Guarantee.
All Services include a 30 Day Service Guarantee. Customers may cancel Services at any time in the first 30 days for any reason if they are not satisfied with their solution. MCM will refund the invoiced monthly recurring charge (“MRC”) per number or per seat to the Customer if the Customer cancels within the first 30 days citing the 30-Day Service Guarantee. If Customer cancels during the first 30 days, Customer will be responsible for paying for any MCM-owned licenses and/or equipment, Number or minutes used, if applicable, in good working condition at their expense.
15.
Adding Services.
Additional Services can be purchased by the Customer’s authorized users, who by the Customer’s default authorization have the requisite binding authority to legally enter into the Agreement, through the MCM website, through the MCM online purchase portal or by calling their MCM account representative or customer service. Customer hereby authorizes those authorized users to (i) add Services to Customer’s MCM account; and (ii) commit Customer to pay for these services on a recurring monthly basis. Customer further authorizes MCM to obtain payment of Customer’s then-current statement balance from Customer each month from Customer’s current payment method in the account. The ability to purchase additional Services may be restricted or unavailable.
16.
Abuse Policy.
Customers may use the Services only for lawful purposes and the Services may not be used in violation of any operating rule, policy, or guideline set by MCM. Dialer / robocalling is not allowed. Calling card usage and applications are not allowed. MCM will cooperate with law enforcement if criminal activity is suspected. MCM may immediately suspend or terminate the Services if MCM reasonably believes such Service is used by Customer or any of its end users in a manner that (i) restricts or inhibits any person, whether a user of MCM or otherwise, in its use or enjoyment of MCM service or any other systems, services or products, or (ii) if MCM believes the Services are being used in an unlawful manner. MCM reserves the right to charge Customer $1,500 for each law enforcement action (LEA) against any Service provisioned by Customer or that of its End-User.
a.
Numbers.
Customer represents and warrants that Customer has all power and authority and has procured all rights and licenses necessary to use and text enable those phone numbers utilized for the Services without the consent of any third party.
b.
Disallowed Content.
Customer warrants that neither it nor its End-Users, if applicable, will order or port any phone number for the purposes of SPAM, abusive messaging, or in violation of applicable law and will not send, transmit or reply with any of the below disallowed content. Additionally, Customer acknowledges and agrees that MCM and its network operator providers reserve the right to block any and all of the following content:
- Payday Loans
- Short Term- High interest Loans
- Auto Loans
- Mortgage Loans
- Student Loans
- Debt Collection
- Work from Home Programs
- Risk Investment Opportunities
- Debt Consolidation
- Debt Reduction
- Credit Repair Programs
- Cannabis and Other Illegal Substances
- Phishing
- Fraud or Scam
- Deceptive Marketing
17.
Rollover.
Any unused allotment of any Service such as minutes or messages does not carry over to the next or future billing cycle; unused allotments of any Service are forfeited.
6.
LEGAL COMPLIANCE; INDEMNIFICATION.
1.
Licenses and Legal Compliance.
The customer is solely responsible for complying with all rules, laws, and regulations regarding receipt and resale of the Services, if applicable, and for obtaining and maintaining all licenses, registrations, and approvals from any and all regulatory authorities required for its operation as a reseller of MCM’s Services, if applicable. The customer shall provide copies of all such licenses and registrations to MCM upon request and shall notify MCM within 24 hours of the revocation, suspension, or termination of any of them. Customer shall indemnify and hold MCM, its affiliates, directors, officers, employees, subsidiaries and suppliers harmless from all costs, fees, penalties, and damages, including without limitation, reasonable attorney’s fees, arising out of or resulting from Customer’s failure to comply with this paragraph. MCM may terminate this Agreement immediately at any time if the Customer fails to comply with these requirements.
2.
Resale of Service.
Customers may resell the Services to their own customers to the extent allowed by law, rule, or regulation. Customers may resell the Services (including its sales agents and representatives) only under its own name or trade name, using its own logos or marks, and may not use MCM’s trademarks, service marks, or trade names without MCM’s express written authority. Purchasers of the Service upon resale by Customer are referred to throughout this Agreement as “End-User(s)”.
3.
Recording.
Certain Services provide functionality that allows Customers to record audio and data shared during sessions. The customer is solely responsible for complying with all applicable laws in the relevant jurisdictions while using recording functionality, including obtaining the required consent and maintaining proof of consent. MCM disclaims all liability for Customer’s recording of audio or shared data, and Customer agrees to hold MCM harmless from damages or liabilities related to the recording of any audio or data. MCM may record or monitor some telephone calls, emails, chats, and any other communication between itself and the Customer for training, quality control and for troubleshooting purposes. Additionally, MCM retains the right and the Customer grants MCM the right to record calls and to capture telephonic details and the Customer’s use of the Services for quality control, troubleshooting and for MCM’s lawful business purpose.
4.
Fraudulent Calls.
Customer is responsible for and Customer shall indemnify and hold MCM harmless from all costs, expenses, claims, or actions arising out of or resulting from fraudulent calls of any nature, which may comprise a portion of the Service.
5.
Indemnification.
Customer agrees to forever indemnify and hold MCM, its affiliates, directors, officers, employees, subsidiaries, suppliers and any third party provider or operator of facilities used in the provision of the Service harmless from and against any and all claims, demands, suits, actions, losses, damages, liabilities, assessments, payments, or penalties, including court costs and reasonable attorney’s fees, which arise out of the installation, hook-up, maintenance or provision of the Service hereunder, including the resale or provision of such the Service to any End-User or other third party by Customer, or arising out of a breach by Customer of its obligations or representations under this Agreement.
7.
OTHER CUSTOMER OBLIGATIONS.
1.
End-User Responsibility.
If applicable, Customer shall be solely responsible for its End-Users, including solicitation, service, requests, creditworthiness, customer service, billing and collection, and shall indemnify and hold MCM harmless from all costs (including attorney’s fees) arising out of or resulting from these responsibilities.
2.
End-User Collections.
If applicable, neither Customer’s inability to collect from its End-Users, nor any agreement regarding billing adjustments granted End-Users, whether for adjustments for fraudulent charges, directory assistance or any other form of credit, shall relieve or absolve Customer to any extent of its obligation to pay MCM for the Services hereunder.
8.
DISCLAIMERS AND LIMITATIONS OF LIABILITY AND EXCLUSIVE REMEDY.
1.
MCM shall provide the Services in accordance with the terms and conditions of this Agreement. The customer agrees to notify MCM immediately upon interruption of Service and provide MCM with such information as may be necessary for MCM to restore the Service. THE SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. MCM, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT ANY SERVICE WILL SATISFY THE CUSTOMER’S REQUIREMENT, THAT ANY SERVICE IS WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SERVICE WILL BE UNINTERRUPTED. MCM DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, MADE WITH RESPECT TO THE SERVICE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
2.
In no event shall either Party hereto be liable to the other Party or to any third parties for any indirect, special, incidental, consequential or exemplary losses or damages relating to or arising from the provision of the Services to be provided hereunder, or otherwise relating to the performance by either Party of its obligations hereunder, including, without limitation, damages based on loss of revenues, profits or business opportunities, loss of customers, loss of goodwill, or loss of profits arising in any manner from this Agreement, whether or not MCM or Customer has or should have had any knowledge, actual or constructive, that such damages might be incurred. MCM’S MAXIMUM LIABILITY UNDER OR RELATED TO THIS AGREEMENT AND THE CUSTOMER’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES FOR BREACH OF THIS AGREEMENT, SHALL BE LIMITED TO THE FEES RECEIVED BY MCM HEREUNDER BY THE CUSTOMER FOR THE PRIOR THREE-MONTH PERIOD.
3.
If a third party asserts a claim against MCM asserting that the Customer Data or Customer’s use of the Service in violation of this Agreement violates a third party’s patent, trade secret or copyright rights, or otherwise harms the third party (“Claim”), Customer will, at its own expense: (i) defend or settle the Claim; and (ii) indemnify MCM for any damages finally awarded against MCM based on the Claim.
9.
EMERGENCY SERVICES.
The customer understands and agrees that the Services include an ‘over-the-top’ call-routing software solution that is integrated with and is dependent upon, the Customer’s underlying telephony system. AS SUCH, CALLS TO EMERGENCY SERVICES CAN NOT BE MADE WITHIN THE SERVICES; THE SERVICES DO NOT SUPPORT EMERGENCY SERVICES, E911 OR 911. The customer is solely responsible for making sure its End-Users or agents, if applicable, and any other users of the Services are aware that calls will not successfully completed to emergency services through the Service. MCM STRONGLY RECOMMENDS AND CUSTOMERS MUST ENSURE THAT CALLS TO EMERGENCY SERVICES ARE SECURED THROUGH ALTERNATIVE MEANS.
10.
TERMINATION.
1.
Termination for Default.
Either Party may terminate this Agreement upon the other Party’s failure to cure any of the following within thirty (30) days following written notice thereof: (i) a material breach of such Party’s obligations hereunder; (ii) the insolvency, corporate reorganization, arrangement with creditors, receivership or dissolution of the other Party, (iii) the institution of bankruptcy proceedings by or against the other Party; (iv) a final order by a government entity with appropriate jurisdiction that a Service or the relationship hereunder is contrary to law or regulation.
2.
Termination for Failure to Pay.
MCM may terminate this Agreement if the Customer fails to make any payment when due and fails to cure the default within 10 days after receipt of notice of such default.
3.
Termination by Order.
MCM may terminate Service immediately upon request or order of any court, government, or quasi-governmental agency.
4.
Survival.
No termination by MCM shall in any way relieve Customer of its obligations to pay for any unexpired portion of the then-current term. Upon termination of any license, Service or this Agreement, all rights and licenses granted herein will terminate and the Customer shall cease accessing or using the Service. Sections 2, 4, 7, 10, 11, 12, 13 and 14 survive the termination of any Service license or this Agreement.
11.
PROPRIETARY RIGHTS.
MCM and/or its Affiliates or licensors retain all rights, title and interest to the Services and all related intellectual property and proprietary rights. The Services and all third-party software provided with the Service is protected by applicable copyright, trade secret, industrial and other intellectual property laws. MCM owns all rights, titles and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Service or made available to the Customer as a result of the Service (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. MCM reserves any rights not expressly granted to Customer in this Agreement.
Additionally, MCM and/or its Affiliates own any and all Customer feedback on the functionality and performance relating to the Service (the “Feedback”). Customer hereby assigns to MCM all rights, title and interest in the Feedback and all intellectual property therein. If requested by MCM, the Customer agrees to execute such further instruments as MCM may reasonably request confirming MCM’s ownership interest in such Feedback.
12.
CONFIDENTIALITY.
1.
“Confidential Information”
shall mean any data or information in any form that is disclosed to either Party (the “Receiving Party”) by or on behalf of the other Party (the “Disclosing Party”) and that either (i) relates to Disclosing Party’s proprietary software, information technology, business plans, forecasts, customer information, marketing information, trade secrets and/or financial performance, (ii) contains or relates to competitively sensitive or secret business, marketing, or technical information to include software, of MCM or of Customer, including the terms of this Agreement, Customer Data, and Feedback, if applicable. Confidential Information shall not include information which is (i) generally known to the public or readily ascertainable from public sources (other than as a result of a breach of confidentiality hereunder), (ii) independently developed by the Receiving Party without reference to or reliance on any Confidential Information of the Disclosing Party, as demonstrated by written records of the Receiving Party, or (iii) obtained from an independent third party who created or acquired such information without reference to or reliance on Confidential Information.
2.
Confidentiality.
Each Party agrees to maintain the complete confidentiality of the Confidential Information of the other. Neither Party shall disclose or supply the Confidential Information of the other to any non-employee third party without the prior written approval of the other Party. Either Party may disclose portions of the Confidential Information of the other to governmental regulatory authorities if such disclosure is required by applicable laws, provided that when legally possible the Party required to make such disclosure notifies the other Party of the applicable request for disclosure before such disclosure occurs and assists the other Party, as is commercially reasonable, to obtain such protection as may be available to preserve the confidentiality of such Confidential Information.
3.
Notification Obligation.
If Receiving Party becomes aware of any unauthorized use or disclosure of Confidential Information, then Receiving Party will promptly and fully notify Disclosing Party of all facts known to it concerning such unauthorized use or disclosure. In addition, if Receiving Party or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or another similar process) to disclose any of the Confidential Information, Receiving Party will, to the extent legally possible, not disclose the Confidential Information without providing Disclosing Party with commercially reasonable advance prior written notice to allow Disclosing Party to seek a protective order or another appropriate remedy. In any event, Receiving Party will exercise its commercially reasonable efforts to preserve the confidentiality of the Confidential Information, including, without limitation, cooperating with Disclosing Party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
13.
INTELLECTUAL PROPERTY AND PUBLICITY.
Neither Customer nor MCM is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or another form of intellectual property of the other Party or its affiliates without the express prior written authorization of the other Party. Notwithstanding the foregoing, Customer agrees that MCM may identify Customer using its name, trademarks and/or logos in its marketing collateral, presentations and websites, provided that Customer may revoke such right with written notice to MCM at any time.
14. GENERAL.
1.
Rights Not Exclusive.
No right or remedy of either Party provided hereby shall be exclusive of any other right or remedy.
2.
No Waiver.
No failure of either Party to exercise any of its rights under any provision of this Agreement or waiver of any breach of the terms of this Agreement by the other Party shall be construed as a waiver of such rights or of any other breach of the same or any other provision hereof.
3.
Notices.
All notices, requests and other communications required or permitted to be given or delivered hereunder to either Party shall be in writing, and shall be personally delivered, or emailed to the Customer email address on record and to legal@MCM.com for notices sent to MCM, or sent by certified or registered mail, postage prepaid and addressed, or by an overnight courier such as Federal Express to such Party at the address of record. All notices, requests and other communications shall be deemed to have been given upon delivery as evidenced by the return receipt or delivery records of the courier.
4.
Entire Agreement and Modifications.
This Agreement is the entire understanding between Customer and MCM and replaces any prior or contemporaneous communication, agreement or understanding of any kind, oral or written, concerning this subject matter. MCM reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on the Customer’s use of the Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as “Additional Terms”) will be effective immediately and incorporated into this Agreement. Customer acknowledges and agrees that its continued use of the Service following will be deemed to constitute its acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.
5.
Assignment.
This Agreement may not be assigned by Customer without the express written consent of MCM, provided that either Party may assign all of its rights and its obligations hereunder to any successor in interest to all or substantially all of its business or assets without such consent. This Agreement shall be binding upon and shall inure to the benefit of each Party’s permitted successors and assigns.
6.
Independent Contractors.
MCM and Customer shall not be construed to have a relationship of partnership, agency or otherwise by the terms or existence of this Agreement. Each Party shall be solely responsible for the actions of its own officers, employees, and agents.
7.
Employees.
Each Party agrees during the term of this Agreement and for 1 year thereafter not to hire or solicit for hire any employees or former employees of the other Party.
8.
Severability.
If any provision of this Agreement should be held to be invalid, illegal or unenforceable, then such provision shall be construed in such a way as to make such provision enforceable, or this Agreement shall be construed as if such provision had never been contained herein, and such invalidity, illegality or unenforceability shall not affect any other provision hereof.
9.
Headings.
The headings contained in this Agreement are for convenience only and shall be ignored when interpreting this Agreement and shall not be construed to alter or change any provision hereof.
10.
Choice of Law.
This Agreement shall be governed by the laws of the State of Georgia without regard to its choice of law rules. With respect to any dispute arising out of or related to the content of this Agreement, Customer consents to the jurisdiction of the state and federal courts residing in Cobb County, Georgia, and agrees that such courts shall be the sole venue for resolution of any dispute arising hereunder.
11.
. Force Majeure.
Neither Party shall be in default by reason of any failure in the performance of this Agreement (other than a failure to make payment when due or to comply with restrictions upon the use of any Confidential Information or trade secrets) if such failure arises out of any act, event or circumstance beyond the reasonable control of such Party, whether or not otherwise foreseeable. The Party so affected will resume performance as soon as reasonably possible.
12.
Anti-Bribery.
Each Party represents that in the execution of this Agreement and in the performance of its obligations under this Agreement it has complied and will comply with all applicable anti-bribery laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act.
13.
Third Party Code.
The Service may contain third-party software which is delivered to the Customer as part of the Service and may not be taken out of the Service or used separately from the Service and for which additional terms may be included in separate documentation.
14.
Third Party Websites.
The Service may contain hyperlinks to websites controlled by parties other than MCM. MCM is not responsible for and does not endorse the content or accept any responsibility for the Customer’s use of these websites. Customers should refer to the policies posted by other websites regarding data privacy and other topics before using them.
15.
Singular and Plural.
Reference to the singular includes a reference to the plural and vice versa.
16.
PCI DSS Policy.
For MCM GENIUS, MCM will maintain all applicable PCI DSS requirements to the extent MCM possesses or otherwise stores, processes, or transmits cardholder data on behalf of the customer, or to the extent that they could impact the security of the customer’s cardholder data environment. Additionally, the Customer understands that it is responsible for ensuring that call recordings do not capture or contain sensitive authentication data (SAD).
15.
USE AND PROTECTION OF CUSTOMER PROPRIETARY NETWORK INFORMATION (“CPNI”).
1.
MCM will protect the confidentiality of Customer CPNI in accordance with applicable laws, rules, and regulations. MCM may access, use, and disclose Customer CPNI as permitted or required by applicable laws, rules, and regulations or this Agreement.
2.
Provided that Customer is served by at least one dedicated MCM representative under the Agreement (that can be reached by Customer by means other than calling through a call center) and as permitted or required by applicable law, MCM may provide Customer CPNI (including, without restriction, call detail) to representatives authorized by Customer (“Authorized Customer Representatives” as defined below) in accordance with the following:
3.
MCM may provide Customer CPNI to Authorized Customer Representatives via any means authorized by MCM that is not prohibited by applicable laws, rules, or regulations, including, without restriction: to the Customer’s email address(es) of record (if any) or other email addresses furnished by Authorized Customer Representatives, to the Customer’s telephone number(s) of record or other telephone numbers provided by Authorized Customer Representatives, to the Customer‘s postal (US Mail) address(es) of record or to other postal addresses furnished by Authorized Customer Representatives.
4.
Authorized Customer Representatives include Customer employees, Customer agents, or Customer contractors, other than MCM, who have existing relationships on behalf of Customer with MCM customer service, account, or other MCM representatives and all other persons authorized in a written notice(s) (including email) from Customer to MCM. Authorized Customer Representatives shall remain such until Customer notifies MCM in writing that they are no longer Authorized Customer Representatives as described below. Customer agrees and will cause Authorized Customer Representatives, to abide by reasonable authentication and password procedures developed by MCM in connection with the disclosure of Customer CPNI to Authorized Customer Representatives.
5.
Customer’s notices of authorization or reauthorization must be sent to the Customer’s service or account manager, and must contain the following information:
- the name, title, postal address, email address, and telephone number of the person authorized or deauthorized
- that the person is being authorized, or is no longer authorized, (as applicable) to access CPNI
- the full corporate name of the Customer whose CPNI (and whose affiliates’ CPNI) the person can access (or can no longer access, if applicable)
6.
During the term of the Agreement, the Customer will at all times have designated, below or in separate writing sent to the service manager or account manager, up to three representatives (“CPNI Authorizers”) with the power to authorize Customer representatives to access CPNI under this Agreement. Additions or removals of CPNI Authorizers will be effective within a reasonable period after MCM has received signed writing of the change, including the affected person(s)’ name, title, postal address, and email address and telephone number.
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16. CONSENT TO USE CPNI FOR LAWFUL PURPOSES.
MCM acknowledges that it has a duty, and the Customer has a right, under federal and/or state law to protect the confidentiality of Customer’s CPNI. CPNI includes information relating to the quantity, technical configuration, type, destination, location, and amount of use of the telecommunications services Customer purchases from MCM, as well as related local and toll billing information, made available to MCM solely by virtue of Customer’s relationship with MCM. With Customer consent, MCM may share Customer CPNI and other Confidential Information among its Affiliates and with agents and partners so that all may use this information to offer Customer the full range of Services offered by MCM and its Affiliates. Customer consents to MCM using and disclosing Customer CPNI and Confidential Information as described above. Customer may refuse CPNI consent by notifying MCM in writing of Customer’s decision to withhold Customer’s consent. Customer’s consent or refusal to consent will remain valid until Customer otherwise advises MCM, and in either case, will not affect MCM’s provision of service to Customer.
17. EMAIL MARKETING CONSENT.
Customer consents to receive e-mail messages that are of promotional nature from MCM to market, to promote, and to drive engagement of our products and services. MCM uses data about Customer to send promotional communications that may be of specific interest to Customer. Based on the information MCM collects about Customer, MCM may decide whether and how to promote certain of our products or services to Customer over others. These communications are to drive Customer engagement and to maximize the value of MCM’s services to Customer. To perform the above functions and others as described in MCM’s Privacy Policy, MCM may match information collected from Customer, including personal data and usage information, and use such information in communications. Customer can opt out of promotional communications at any time by clicking here.
FREE TRIAL TERMS OF SERVICE
1.
The free trial offer is only applicable to new MCM customers.
MCM reserves the right to modify, suspend, and/or cancel a free trial offer at any time without prior notice.
2.
Customers may elect to try our Free Trial Services for a period of up to seven (7) days from the Effective Start Date
3.
MCM reserves the right to deny free trial applications for those customers that do not meet basic criteria including but not limited to the following:
a.
Providing proof of business with an established and operational corporate website and matching business registration (for a business free trial).
Providing a verifiable corporate email address (and email address with your corporate domain name).
b.
Not having been or currently being an existing MCM customer prior to the free trial application.
c.
Customers are allowed to purchase local or toll-free phone numbers (subject to approval) to test the service for up to 7 days for business purposes following the activation of those numbers. These can be purchased using the complimentary $10 credit.
4.
Customers are not eligible for a monetary refund of the $10 complimentary credit.
MCM reserves the right to terminate a Free Trial account that is not used within the first 5 days.
5.
Customer understands and agrees that once they upgrade their Contact Center License (My Plan) within the online portal that this action transforms the service into an active account at the end of the free trial period (day 8). They will then be liable for and agree to pay any applicable monthly fees and usage charges.
a.
MCM will charge Customer’s credit card for the monthly fees due based on the selected service plan(s) for each service, immediately after the end of the free trial time period or after exceeding the free trial usage credit unless the customer cancels the account before the end of trial period or credit.
b.
Charges that occur immediately following the end of the free trial are non-refundable.