Website Terms of Use
Version 1.0
Last revised on: Feb 14, 2025
Please read these Terms of Use (the “Agreement”) carefully. By clicking "I agree"(or a similar checkbox or button), accessing or using the Services, you agree to be bound by the terms and conditions of this Agreement. If you do not agree with any of these terms, do not so click, access or use the Services
This Agreement is between you and Phonely, Inc. (“Phonely” or “we” or “us”) concerning your use of the Services. The “Services” means Phonely’s platform and online or cloud-based services made available by or for Phonely (including the features, functionalities, AI capabilities, interfaces, software, tools, and other materials contained therein).
This Agreement hereby incorporates by this reference any additional terms and conditions posted by Phonely through the Services, or otherwise made available to you by Phonely.
BY USING THE SERVICES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT OR, IF YOU ARE NOT, THAT YOU HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT TO ENTER INTO THIS AGREEMENT. THE SERVICES ARE NOT INTENDED TO BE USED, AND MUST NOT BE USED, BY CHILDREN WITHOUT INVOLVEMENT AND APPROVAL OF A PARENT OR GUARDIAN, AND FURTHER, IF YOU ARE UNDER THE AGE OF MAJORITY IN YOUR TERRITORY, IN NO CASE ARE YOU PERMITTED TO REGISTER WITH PHONELY OR PROVIDE YOUR PERSONAL INFORMATION TO PHONELY. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF THE COMPANY OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (FOR EXAMPLE, AS AN EMPLOYEE OR CONTRACTOR), YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ACT ON BEHALF OF AND BIND SUCH ENTITY.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
1. Changes. We may change this Agreement from time to time by notifying you of the changes by any reasonable means, including by posting a revised Agreement through the Services. No such change will apply to any dispute between you and us arising before we notified you of the change.
Your use of the Services after any changes to this Agreement will constitute your acceptance of the changes. The “Last Updated” legend above indicates when this Agreement was last changed. The Services may evolve and change over time. We may, at any time and without liability, modify or discontinue all or part of the Services, charge, modify or waive any fees required to use the Services, or offer opportunities to some or all users. We also reserve the right to update, develop, remove or modify elements of the Services, including features, user interfaces and functionalities, for any purpose (including on an experimental basis for some or all users). Phonely will not be liable to you for any modification, suspension, or discontinuance of the Services. We may offer Services or features that we believe require service-specific terms or guidelines. When using our Services, you agree to comply with any applicable guidelines, rules, or supplemental terms that may be posted on the Services from time to time (“Supplemental Terms”). If this Agreement conflicts with Supplemental Terms, the Supplemental Terms will govern for the applicable Service.
2. Information Submitted Through the Services. Your use of the Services is governed by Phonely’s Privacy Policy, located at https://www.phonely.ai/privacy-policy (the “Privacy Policy”). You represent and warrant that any information you provide in connection with the Services is and will remain accurate and complete, and that you will maintain and update such information as needed.
3. Jurisdictional Issues. The Services are controlled or operated (or both) from the United States, and are not intended to subject Phonely to any non-U.S. jurisdiction or law. Any use of the Services is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Services’ availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose.
4. Registration and Accounts. Access to and use of the Services will require an individual account. The Services, and your account and any user names or passwords you use to access the Services (“Account Details”), are for your personal, non-commercial use only. You may not transfer your account to any other party, or enable any other party to access or use your account, including by sharing your Account Details. You are responsible for all use of your account and Account Details. You are solely responsible for maintaining the security and confidentiality of your Account Details, and you agree to immediately notify us of any unauthorized use of your Account Details or other security breaches. For clarity, Phonely may, but is under is under no obligation to, confirm your identity. Phonely will have the right (but not the obligation) to suspend or terminate your account if Phonely knows or reasonably suspects any unauthorized use of any portion of the Services or any loss or theft of any username or password, or if Phonely reasonably believes you are breach of this Agreement, our Acceptable Use Policy or any applicable law or regulation. In addition, unusually high usage of the Services may impair Phonely’s ability to provide the Services to others, in which case Phonely reserves the right to suspend or terminate your account.
5. Third Party Services. The Services may include functionality to allow you to connect your account to or access third-party services , products or technologies (including artificial intelligence technologies), or allow third party services to access your account or User Content (all of the foregoing, “Third Party Services”). By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Services. When you follow a link to any Third Party Services, we have no obligation to warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. This Agreement does not govern your use of another website or destination. We neither control nor endorse, nor are we responsible for, any Third Party Services, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Services, any intellectual property rights therein, or any products or services in connection therewith. Certain Third Party Services may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by Phonely with respect to any Third Party Services or claims made about them, or the actions or inactions of any third party. We have no obligation to monitor Third Party Services, and we may block or disable access to any Third Party Services (in whole or part) through the Services at any time. In addition, the availability of any Third Party Services through the Services does not imply our endorsement of, or our affiliation with, any provider of such Third Party Services, nor does such availability create any legal relationship between you and any such provider. Any dealings you have with third parties while using the Services are between you and the third party, and Phonely is not liable for any loss or claim that you may have against any third party. If you provide any confidential or personal information or engage in any transaction in connection with a Third Party Service, Phonely is not responsible for such information or transaction, and we encourage you to read the terms of use and privacy policy of the provider or other parties collecting such information or engaging in such transaction.
YOUR ACCESS TO, USE OF OR INTERACTION WITH THIRD PARTY SERVICES IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY SERVICES (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY SERVICES). ANY CLAIM OR DISPUTE ARISING FROM YOUR ACCESS TO, USE OF OR INTERACTION WITH ANY THIRD PARTY SERVICES WILL BE SOLELY BETWEEN YOU AND THE APPLICABLE THIRD-PARTY PROVIDER. UNDER NO CIRCUMSTANCES WILL PHONELY BE LIABLE IN ANY WAY FOR ANY ACT OR OMISSION OF ANY THIRD-PARTY PROVIDER, OR FOR ANY INJURY, LOSS OR DAMAGE THAT YOU MAY INCUR AS A RESULT OF YOUR ACCESS TO, USE OF OR INTERACTION WITH THIRD PARTY SERVICES.
6. Access to the Services. Subject to your compliance with the terms and conditions of this Agreement, we grant you a revocable, non-exclusive, non-transferable, royalty free, limited right to access and use the Services solely for your internal purposes, solely in the form made available by or for Phonely and in accordance with the Privacy Policy and Acceptable Use Policy. In connection with the Services, Phonely may provide customer or technical support for the Services to you via telephone, FAQs, email or through the Services, at its sole discretion.
7. Fees; Payment. If you purchase any Services, you will provide complete and accurate billing information, including a valid payment method. For paid subscriptions, we will automatically charge your payment method on each agreed-upon periodic renewal until you cancel. You’re responsible for all applicable taxes, and we’ll charge tax when required. If your payment cannot be completed, we may downgrade your account or suspend your access to our Services until payment is received. Any payments made for the Services are non- refundable, except where required by law. This Agreement does not override any mandatory local laws regarding your cancellation rights. We may change our prices from time to time. If we increase our subscription prices, we will give you at least 30 days’ notice and any price increase will take effect on your next renewal so that you can cancel if you do not agree to the price increase.
8. Phonely’s Proprietary Rights. We and our suppliers own all right, title and interest in and to the Services, including all modifications, derivative works, upgrades, and updates thereto, all software or materials made available by Phonely and all related intellectual property rights related to the foregoing, which are protected by proprietary rights and laws. Any Phonely trade names, trademarks, service marks, graphics, logos, scripts, and sounds are the intellectual property of Phonely. All trade names, trademarks, service marks and logos on the Services not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Services should be construed as granting any right to use any trade names, trademarks, service marks or logos without the express prior written consent of the owner. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, any intellectual property rights or other right, title, or interest in or to the Services.
9. User Content. Phonely may use User Content, and provide necessary access to Third Party Service providers acting on Phonely’s behalf: (a) to develop, improve, provide, maintain and optimize the Services; (b) to prevent or address service or technical problems or at your in connection with support matters; (c) as compelled by law; or (d) to enforce this Agreement.
Subject to the limited licenses granted herein, you own, and Phonely acquires no right, title or interest under this Agreement in or to any User Content. “User Content ” means all data, content and information made available to Phonely by or on behalf of you in connection with the Services. You also represent that any User Content you make available to us is accurate and has not been altered in any way.
10. AI Outputs; Accuracy. Due to the nature of our Services and artificial intelligence generally, output may not be unique and other users may receive similar output from our Services. Artificial intelligence and machine learning are rapidly evolving fields of study. We are constantly working to improve our Services to make them more accurate, reliable, safe, and beneficial. Given the probabilistic nature of machine learning, use of our Services may, in some situations, result in output that does not accurately reflect real people, places, or facts.
11. Use Restrictions; Rules of Conduct. You may not use the Services in violation of this Agreement, our Acceptable Use Policy located at [*] (the “Acceptable Use Policy”), or any applicable laws or regulations. Without limiting the generality of the foregoing, in connection with your use of the Services, you must not, either directly or indirectly (e.g., through the use of any device, software, Internet site, web-based or app-based service or other means):
remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices included with the Services, or any digital rights management mechanism, device, or other content protection or access control measure associated with the Services.
except as expressly authorized under this Agreement and permitted by the functionality of the Services as made available to you, copy, record, download, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, or exhibit, transmit or retransmit any portion of the Services.
Post, transmit or otherwise make available through or in connection with the Services any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or that otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
Post, transmit or otherwise make available through or in connection with the Services any virus, worm, trojan horse, easter egg, time bomb, spyware or other computer code, file or program that is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment (each, a “Virus”).
Use the Services for any purpose that is fraudulent or otherwise tortious or unlawful, or that would further any fraudulent activity or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the Services, including identity theft, or encourage conduct that would constitute a criminal offense or give rise to civil liability.
Harvest or collect information in violation of this Agreement or Phonely’s Privacy Policy.
Interfere with or disrupt the operation of the Services or the servers or networks used to make the Services available, including by hacking or defacing any portion of the Services; or violate any requirement, procedure or policy of such servers or networks.
Restrict or inhibit any other person from using the Services, or otherwise interfere with any other person’s use and enjoyment of the Services.
Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Services, except as expressly authorized herein, without Phonely’s express prior written consent.
Reverse engineer, disassemble, decompile, decode, modify, adapt, or otherwise attempt to derive, discover, learn or study the structure or organization, underlying algorithms or other internals, protocols, data structures or other externals, or the source code of, or gain access to or create any derivatives of, any component of any portion of the Services, or to acquire any technical specifications or gain any competitive advantage.
Use technology or other means to access, index, frame or link to any portion of the Services, including by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized download, stream capture, linking, framing, reproduction, access to, or distribution of the Services, or otherwise incorporate any portion of the Services into any product or service, without Phonely’s express prior written consent.
Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather or access the Services, or reproduce or circumvent the navigational structure or presentation of the Services, without Phonely’s express prior written consent.
Use any portion of the Services in connection with any machine learning or artificial intelligence technologies.
Use any portion of our Services as a sole source of truth or factual information, as a substitute for professional advice, or for any purpose that could have a legal or material impact on that person, such as making credit, educational, employment, housing, insurance, legal, medical, or other important decisions about them.
Engage in any other conduct in connection with the Services that may harm or otherwise expose Phonely or any third party to liability.
You are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Services. You are solely responsible and liable for all your use of the Services, directly or indirectly, by or on behalf of you (including any actions taken by your AI phone agent), and whether such use is permitted by or in violation of this Agreement, Acceptable Use Policy or any applicable law or regulation. You are, at your expense, solely responsible and liable for (i) all matters relating to User Content, including all costs, obligations and liabilities associated with the processing and transfer of User Content in connection with the Services and (ii) for providing all necessary notices and disclosures, and obtaining any necessary rights, consents, permissions or authorizations (including any applicable publicity clearances and releases), related to make available User Content to Phonely for (1) Phonely’s use under this Agreement, and (2) your use of the Services under this Agreement (e.g., your use of any AI phone agent developed through the Services). You are responsible for ensuring the legality and appropriateness for your use of the Services, including by utilizing commercially reasonable human review efforts as appropriate. You must not use the Services to promote discrimination, bigotry, racism, hatred, harassment, violence, or harm to any individual or group. You will promptly notify Phonely of any unauthorized access or use of the Services.
12. Feedback. If you provide Phonely with any ideas for improvement, information, materials, ideas, concepts, techniques, suggestions, or other feedback with respect to the Services or any of our other products and services (collectively, "Feedback"), Phonely will have the unrestricted right to use such Feedback for any purpose without any obligation or other payment to you.
13. Analytics Data. Phonely may monitor use of the Services and will have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including information and data derived therefrom) (collectively, “Analytics Data”), and Phonely will be free (during and after the term) to use, disclose, and otherwise exploit the Analytics Data so long as any disclosure does not directly or indirectly identify you.
14. DISCLAIMERS. While we try to maintain the timeliness, integrity and security of the Services, we do not guarantee that the Services are or will remain updated, complete, correct or secure, or that access to the Services will be uninterrupted. The Services may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Services.
The Services are for general informational purposes only, and are not intended to advise, instruct or make recommendations with respect to any particular subject, matter, material, problem, situation or individual. Please note that no portion of the Services should be relied upon for advice, in whole or in part. Phonely is a technology service prodiver, and is not in the business of providing legal, financial, accounting, tax, health care, insurance, real estate or other professional service or advice, and you should consult with professionals for advice prior to making important decisions in these areas.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE SERVICES AND ANY THIRD PARTY SERVICES ARE MADE AVAILABLE TO YOU ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) PHONELY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES AND ANY THIRD PARTY SERVICES, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH PHONELY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES ”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
15. Compliance. You will comply with all federal, state, local and international laws, statutes, and regulations, and all applicable orders, judgments, decisions, rules, policies, opinions, attorney general opinions, or guidelines passed or issued by any regulatory authority or any competent court, in each case related to your access and use of the Services, including those related to telecommunications, use of AI, anti-spam (such as the Telephone Consumer Protection Act (TCPA) and CAN-SPAM Act in the U.S., or equivalent laws in other jurisdictions), privacy and data security, account collection, export control, consumer protection, unfair competition, anti-discrimination, securities and false advertising. You acknowledge and agree that Phonely provides Services to facilitate communication on behalf of its users and customers and Phonely is not responsible or liable for any calls, messages, or campaigns initiated using the Services including the legality, compliance, or outcomes of such calls, messages or campaigns. We may comply with governmental, court, and law enforcement requests or requirements relating to provision or use of the Services, or to information provided to or collected under this Agreement. We reserve the right, at our sole discretion, to report information from or about you, including your use of the Services, to law enforcement.
16. Unlimited Services. Certain Services may be offered on an “unlimited” basis. Unlimited Services may only be used for normal business purposes and exclude international calling to countries other than Canada (which incurs additional fees). Prohibited uses of unlimited Services include:
Trunking or forwarding your Phonely number to other numbers capable of handling multiple simultaneous calls or to a private branch exchange (PBX);
Spamming or blasting bulk/junk voicemail, emails, or SMS messages;
Bulk call-in lines such as customer support or sales call centers not provided by Phonely; and
Auto-dialing or predictive dialing.
17. Moderation. We do not undertake to review any User Content or use of our Services (including the content of calls, messages, or campaigns for compliance), and we expressly disclaim any duty or obligation to undertake any such monitoring or review. Although we have no obligation to screen, edit, or monitor User Content or your use of our Services, we may:
delete or remove User Content or refuse to post any User Content at any time and for any reason with or without notice, including for any violations of applicable law or this Agreement;
may use technologies and procedures, such as filters, to terminate any unsolicited advertisements transmitted in violation of applicable law or regulation without delivering them;
take any action with respect to User Content or your use of the Services that is necessary or appropriate, in Phonely’s sole discretion, to ensure compliance with applicable law or regulations, or to protect Phonely’s or any third party’s rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests) or to respond to threats to the personal safety of users or the public; and
as permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone using the Services.
18. Recording Calls; Transcribing calls; Voice-to-text; Text-to-voice. Certain Services provide a function that allows you to record individual telephone conversations. The laws regarding notice, notification, and consent requirements for recording conversations vary from state to state. In some states, you are required to obtain consent from all parties involved in a conversation before recording. You are solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using this feature.
Certain Services may provide a function that transcribes voice communications into text. You understand and agree that Phonely’s transcription features may not always produce accurate or complete transcriptions. Variations in audio quality, accents, background noise, or other factors may affect transcription accuracy. You are solely responsible for reviewing and verifying the accuracy of any transcription generated using the Services. Note that the laws applicable to call transcription differ by state, province, and country. In some jurisdictions, transcribing recorded calls, recording calls, or even transcribing real-time speech during a call or video is prohibited or requires informed consent from some or all parties involved in the conversation. Phonely recommends that you review the relevant laws of your locality or consult with an attorney regarding your specific circumstances.
19. Number Porting and Availability. Through working with Third Party Services providers, Phonely will use reasonable efforts to facilitate number transfers or port requests for you, provided that you comply with all applicable procedures and requirements for porting between service providers. You acknowledge and understand that number porting depends on the cooperation of third parties outside of Phonely’s control. Accordingly, you agree that Phonely will not be liable for the failure or delay of any third party to cooperate in the porting of any telephone number, or for the allegedly unauthorized porting of any telephone number by a third party. Phonely cannot guarantee that requested telephone numbers will be available, that your existing provider will port your number, or that circumstances beyond Phonely’s control will not prevent or delay a successful port of your number for the Services. You understand and agree that Phonely may need to change the telephone number assigned to you (due to an area code split or for other reasons), and Phonely shall have no liability in relation to such changes.
20. No 911 Service; Operator Assisted Calling, 311, 511, and Other X11 Calling. Phonely does not provide access to emergency services (911). By using the Services, including porting your existing numbers to Phonely, you acknowledge that you must make alternative arrangements to reach 911. It is your responsibility to inform all business colleagues, household residents, guests, and other persons who may be present at your physical location that 911 is unavailable through the Services. Phonely recommends that you make arrangements to place 911 calls using a traditional wireline or cellular telephone. You should not rely on Phonely for emergency calls or access to 911. The Services do not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900, or calling card calls). The Services may not support 311, 411, 511, and/or other X11 calling in one or more service areas. Phonely disclaims all responsibility and liability for any inability to contact emergency services or delays in reaching emergency responders.
21. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) PHONELY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSS OF PROFITS, REVENUE, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY FEEDBACK) OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, PHONELY WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES OR ANY THIRD PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH; (C) PHONELY WILL NOT BE SUBJECT TO ANY INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING THE AVAILABILITY OF, OR ANY PERSON’S ABILITY TO ACCESS, ANY PORTION OF THE SERVICES, AND YOU ACKNOWLEDGE AND AGREE THAT ANY DAMAGES YOU INCUR IN CONNECTION WITH THE SERVICES OR ANY ACT OR OMISSION BY PHONELY OR ANY OF THE AFFILIATED ENTITIES ARE NOT IRREPARABLE, AND ARE INSUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR OTHER EQUITABLE RELIEF; (D) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES OR ANY THIRD PARTY MATERIALS IS TO STOP USING THE SERVICES; AND (E) THE MAXIMUM AGGREGATE LIABILITY OF PHONELY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF (I) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO PHONELY IN THE PREVIOUS SIX (6) MONTHS SOLELY FOR THE RIGHT TO USE THE SERVICES AND (II) ONE HUNDRED U.S. DOLLARS ($100.00). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH PHONELY AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
22. Indemnity. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless Phonely and the Affiliated Entities (including our and their respective successors and assigns) from and against all claims, causes of action, demands, suits, proceedings, judgments, orders, damages, liabilities, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use (including any misuse) of, or activities in connection with, the Services, including any (i) voicemail, broadcast, fax spam, or solicitations that you may send and/or receive using the Services, (ii) your recording or transcription of telephone conversations, (iii) your inability to access emergency services (911) or delays in emergency response related to your use of Services and (iv) any calls, messages or campaigns using the Services; and (b) any violation or alleged violation of this Agreement or any applicable laws or regulations by you.
23. Termination. This Agreement is effective until terminated. You may stop accessing the Services at any time. Phonely may terminate or suspend your use of the Services at any time and without prior notice, for any or no reason, including if Phonely believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination or suspension, your right to use the Services will immediately cease, and Phonely may, without liability to you or any third party, immediately deactivate or delete your account, if any, and all associated materials, without any obligation to provide any further access to such materials. Sections 1-5 and 7-28 shall survive any expiration or termination of this Agreement.
24. Governing Law. The terms of this Agreement are governed by the laws of the United States (including federal arbitration law) and the State of New York, U.S.A., without regard to its principles of conflicts of law, and regardless of your location.
25. Arbitration. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, AND EXCEPT FOR PHONELY’S OPTION TO BRING A CLAIM IN A COURT OF COMPETENT JURISDICTION SEEKING ONLY INJUNCTIVE RELIEF TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF A PARTY’S COPYRIGHTS, TRADEMARKS, TRADE SECRETS, PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND PHONELY, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND YOU AGREE THAT PHONELY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. SUCH DISPUTES INCLUDE, WITHOUT LIMITATION, DISPUTES ARISING OUT OF OR RELATING TO INTERPRETATION OR APPLICATION OF THIS ARBITRATION PROVISION, INCLUDING THE ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THE ARBITRATION PROVISION OR ANY PORTION OF THE ARBITRATION PROVISION. ALL SUCH MATTERS SHALL BE DECIDED BY AN ARBITRATOR AND NOT BY A COURT OR JUDGE.
YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION.
The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
26. Information or Complaints. If you have a question or complaint regarding the Services, please send an e-mail to support@phonely.ai. Please note that e-mail communications will not necessarily be secure; accordingly you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
27. Export Controls. You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users. You agree not to export, re-export, or transfer, directly or indirectly, any of the Services, or any U.S. technical data acquired from any of the Services, or any products utilizing such data, in violation of the U.S. export laws or regulations. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties.
28. Miscellaneous. This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Phonely. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. Any delay or failure on our part to enforce a provision of this Agreement is not a waiver of our right to enforce them later. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Phonely relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Phonely relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Services or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Phonely will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
