General Terms and Conditions
** Please read these General Terms and Conditions (hereinafter the “Agreement”) and the Service Terms and Conditions (hereinafter the “Service Agreement”) carefully before opening an account for Services, or otherwise using the Services. The Service Agreement can be found at www.flowroute.com/legal/service-agreement. Please maintain a copy of this Agreement and a copy of the Service Agreement for your records. If you do not agree with this Agreement or the Service Agreement, do not use the Services. **
This Agreement governs the purchase and use of the services (as defined in the Service Agreement) of West Telecom Services, LLC, doing business as Flowroute (hereinafter “Flowroute”). The individual or legal entity opening an account for Services under this Agreement shall be referred to as “Customer” “you” or “your” in this Agreement.
By using the Services, Customer agrees to be bound by this Agreement and the Service Agreement. Flowroute may modify all or any part of this Agreement and the Service Agreement from time to time without notice to you – you should check back often so you are aware of your rights and responsibilities. Your continued use of the Services after changes to this Agreement and the Service Agreement have been published constitutes your acceptance of the updated Agreement and Service Agreement. If at any time this Agreement or the Service Agreement are no longer acceptable to you, you should immediately cease all use of Flowroute Services.
1.1 This Agreement will continue so long as the Services are installed, accessed, or otherwise used.
2.1 In addition to any other rights that Flowroute has or may have pursuant to this Agreement, including, without limitation, this Section, if Flowroute determines, in its sole discretion, that Customer’s use of any Service and/or any person or entity authorized by Customer to utilize, in whole or in part, the Service provided by Flowroute to Customer under a the Service Agreement (“Customer’s End-User) interferes with or otherwise places in jeopardy Flowroute’s network, customers, partners or business, then Flowroute shall of the right to immediately suspend or terminate any or all Service. Flowroute will use reasonable efforts to provide Customer with as much prior notification previous to the suspension or termination of Service as is practicable under the circumstances.
2.2 If any federal, state or local statute, rule, order, regulation or order by a court of law or regulatory authority, or anything similar to the foregoing effects a change (a “Change in Law”) which has a material adverse impact this Agreement and/or Service Agreement, then Flowroute shall have the right to terminate the relevant Service with written notification to you.
3.0 PAYMENT FOR SERVICES; CREDIT WORTHINESS
3.1 Unless the parties expressly agreed otherwise, Customer shall remit payment for Services and applicable taxes, fees, administrative assessments, and surcharges in U.S. Dollars prior to any Service being used by the Customer. Customer agrees that Services shall not be provisioned unless and until sufficient pre-payment is made. Customer agrees that Services may be suspended immediately, in Flowroute’s sole discretion, if sufficient pre-payment is not made. Customer agrees that it is solely its ongoing responsibility to ensure that sufficient pre-payment is made prior to any use of the Services, and Customer agrees that Customer shall maintain a positive account balance, sufficient to cover Customer’s anticipated usage of Services, at all times, in order to continue using the Services. Customer shall be responsible for accurately providing Flowroute with Customer’s valid payment information, including a valid payment method.
3.2 Unless the parties expressly agreed otherwise, Customer shall remit all payments by wire transfer or credit card and Customer understands and agrees that processing of Customer’s credit card payments may be denied or discontinued by Flowroute at any time and in its sole discretion. Flowroute shall use commercially reasonable efforts to post payments to Customer’s account once Flowroute receives notification of the receipt of payment. Customer understands that any type of payment may be delayed in posting to Customer’s account for Flowroute administrative reasons and agrees that Service may be interrupted due to lack of sufficient positive balance during any such delay. Flowroute, in its sole discretion, may immediately suspend or terminate Services to Customer whenever Customer fails to maintain a positive account balance or maintain a sufficient positive account balance to cover Customer’s anticipated usage of Services. Notwithstanding the foregoing, Flowroute shall not be responsible for ensuring that Customer’s maintains a positive account balance, and Customer shall promptly remit all payments necessary to cover any negative account balances. Service cancellation may result in the loss of the telephone numbers associated with the Service. Customer hereby waives any and all claims, actions or suits against Flowroute, its affiliates and subsidiaries, and such entities’ employees, officers, directors and shareholders, and releases the same from any errors, omissions, and/or liabilities that may arise from the processing of aforementioned payment transactions and failure by Customer to maintain a positive account balance.
3.3 Customer agrees to provide any reasonable information Flowroute may request to complete any applications in order to obtain information on Customer’s credit rating and background. Customer consents to Flowroute’s verification and reporting personal and/or business payment and credit history. Flowroute may rely on, without limitation, Customer’s credit history, payment history, credit bureau reports or other commercial credit references, and other information to determine whether to provide the Service, and to determine any limitations that may be placed on the Service Flowroute provides to Customer. Customer authorizes Flowroute, based on Customer’s creditworthiness, as determined in Flowroute’s sole discretion, to change, cancel, limit, and terminate Service at any time.
4.0 TAXES; FEES; ADMINISTRATIVE ASSESSMENTS; SURCHARGES
4.1 In addition to the rates for the Services, Flowroute shall add to each invoice and Customer shall pay any sales, use, excise, value-added, gross receipts, services, labor-related, consumption, administrative assessment (an administrative assessment is a fee to recover a portion of internal costs and expenses incurred by Flowroute to implement and administer the procurement of certain Services and the compliance with certain legal and regulatory obligations; the administrative fee is not a tax or a fee required by the government), and other taxes or surcharges, however designated, with the provision or use of Services under this Agreement. Notwithstanding the foregoing sentence, if Customer provides Flowroute written documentation of Customer’s tax-exempt status in a form reasonably acceptable to Flowroute, Flowroute will not charge Customer any taxes exempted due to Customer’s request and supporting documentation. Such documentation of Customer’s tax-exempt status will include a valid and properly executed tax exemption certificate(s) and/or statement(s) of indemnification for any taxes from which Customer seeks exemption, and any updates thereto. Customer will pay all remaining non-exempt charges. For clarity, the establishment of exemption from any taxes is the sole responsibility of Customer, and Flowroute is not obligated to consider any retroactive request for tax exemption. Further, Customer is responsible for providing to Flowroute on a timely basis any changes or updates thereto.
5.0 ON-LINE ACCESS; LICENSE; APPLICATIONS TOOLS
5.1 Customer has the sole and exclusive responsibility for the installation, configuration, security (including firewall security), and integrity of all Customer facilities, systems, equipment, proxy servers, software, hardware, systems, routing, networks, network addresses and configurations and the like and key contacts for problem escalation (collectively the “Customer Systems and Materials”). reasonably required for use in conjunction with or related to the Service and software provided by Flowroute, including, without limitation, Customer’s connectivity to any third party. If Flowroute grants Customer access, either by online access, by API or access by any other means, to a service ordering/management system and/or any other tools and applications or computer software in connection with the Service or software or the use of any Service or software (collectively, the “Tools and Applications”), the following apply:
(i) Subject to Customer’s compliance with this Agreement, Flowroute grants Customer a non-exclusive, non-transferable license during the term of the applicable Service Agreement to use the Service and such Tools and Applications solely in connection with Customer’s use of the Service and/or Software (as applicable) during the term of the applicable Service Agreement. Customer will not, directly or indirectly: (A) reverse engineer, decompile, disassemble, translate or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, Tools and Applications; (B) modify, translate or create derivative works based on the Tools and/or Applications; (C) rent, lease, distribute, sell, resell, assign, display, host, outsource, disclose or otherwise commercially exploit or otherwise transfer rights to the Tools and/or Applications or make the Tools and Applications available to any third party; (D) use the Tools and/or Applications for timesharing or service bureau purposes or otherwise for the benefit of a third party; (E) remove any proprietary notices or labels on any Tools and/or Applications; or (F) copy, reproduce, post or transmit any Tools and/or Applications in any form or by any means, including, without limitation, electronic, mechanical, photocopying, recording or other means. Other than using the Tools and Applications for Customer’s internal business purposes, Customer may not resell the Tools or Applications or otherwise generate income from the Tools or Applications.
(ii) The Tools and Applications are Flowroute’s (or its third-party licensor’s, as applicable) intellectual property. Nothing in this Agreement gives Customer any right or license to any of Flowroute’s intellectual property.
(iii) Customer is fully and exclusively responsible for all information accuracy, charges, costs, transactions, and activities conducted through or with such Tools and/or Applications. Customer is fully and exclusively responsible to safeguard, monitor, manage, and maintain access to the Tools and Applications, and to only allow authorized use of the Tools and Applications to persons that Customer designates.
6.0 RESPONSIBILITY FOR CONTENT COMMUNICATIONS; USE OF SERVICES
6.1 Customer will provide information reasonably requested by Flowroute to perform the Services, including as applicable: telecommunication specifications, Customer or third party telephone numbers and location information, network architecture and diagrams, etc. As between Customer and Flowroute, Customer is the sole owner and is solely responsible for all such information and for all content provided to Flowroute including all audio, visual, electronic or written communications (collectively “Customer Content”) on or from Customer’s accounts. Customer warrants that Customer is solely responsible for the content and rights to Customer Content. Customer will comply with all laws, rules and regulations while using the Service, and ensure it has the right to use the Service where it is located and where any of its end-users are located. Customer will not (i) transmit any communication that violates any law, rule or regulation; (ii) violate any third party rights in the course of using the Service; (iii) use the Service in any way that damages Flowroute’s property or interferes with or disrupts Flowroute’s system(s) or other users; or (iv) transmit, upload, receive or store on or through Flowroute’s network any Customer Content or other material that contains any viruses, worms, “Trojan Horses” or other code features that may damage, disrupt or disable computers, networks or any information thereon.
7.0 DATA PROTECTION
7.1 Each party will comply with any applicable data protection and privacy laws existing in all jurisdictions in which Service is performed (together, the “Data Protection Laws”). The Parties agree provision of the Service may involve the collection, processing, storage or recording of certain “Personal Data” or “Personal Information” (as defined by applicable Data Protection Laws and referred to collectively herein as “Personal Data”) of Customer and participants. Where applicable under Data Protection Laws, the Parties acknowledge Flowroute acts as a “Data Processor” in relation to the Personal Data it processes on Customer’s behalf and Customer remains the “Data Controller” with respect to such Personal Data. Flowroute hereby undertakes that it will (i) use Personal Data only to provide and administer Service as outlined in the applicable privacy statement(s) referenced below; (ii) process the Personal Data in accordance with Customer’s instructions; (iii) implement appropriate security measures designed to provide a commercially reasonable level of protection of the Personal Data; (iv) implement and maintain commercially reasonable technical and organizational measures, insofar as is possible, for the fulfillment of Customer’s obligations to respond to requests by users of the Service (“Data Subjects”); (v) take commercially reasonable steps to destroy or permanently de-identify Personal Data when it no longer is necessary to retain it; and (vi) ensure that its employees authorized to process Personal Data are bound to appropriate confidentiality obligations. Personal Data may be collected, processed and/or stored by Flowroute or its third party suppliers in the United States of America, the United Kingdom, the European Union and the rest of the world. Customer represents and warrants it has a valid lawful basis for Flowroute to process the Data Subjects’ Personal Data in connection with the Service in accordance with applicable Data Protection Laws.
8.0 CUSTOMER PROPRIETARY NETWORK INFORMATION
8.1 In the course of providing the Services (including, to the extent applicable, VoIP Services), Flowroute will necessarily obtain information about the quality, technical configuration, type, destination, location, pricing, contract terms, billing information and payment history relating to the Service provided to Customer. Such information is referred to as customer proprietary network information (“CPNI”). Customer hereby consents to the use, disclosure and access of CPNI by Flowroute and Flowroute affiliates and agents and partners for the purposes of verifying Customer usage and deployment of Service, improving the Service and marketing additional products and services that may be of interest to Customer. Customer acknowledges that it may withdraw its consent at any time by notifying Flowroute in accordance with this Agreement. In the event that Customer withdraws its consent, Flowroute will make commercially reasonable efforts to minimize the impact of such withdrawal upon Flowroute’s provision of Service to Customer.
9.1 If Customer uses the Services to send fax, email, phone, text, SMS or other messages (collectively, “Messages”) to any recipients (“Recipients”), as a condition for using such Service, Customer represents and warrants that: (i) Customer is solely responsible for the Messages; (ii) Customer has the legal right to send all Messages to the Recipients (including obtaining any required consents from the Recipients); (iii) the content, timing and purpose of all Messages, campaigns and programs are in compliance with all laws, rules and regulations; (iv) Customer is the sender of all Messages, and Flowroute is merely acting at Customer’s direction as the transmitter of the Messages; (v) Flowroute’s transmission of the Messages will not violate the rights of any third party or any law, rule or regulation; (vi) Customer has prior express consent to contact each wireless number delivered by Customer to Flowroute in connection with the provision of Service; (vii) in the case of a wireless phone number, the intended Recipient is the current subscriber to, or the non-subscriber customary user of, the wireless phone number; and (viii) Customer has, unless an exemption applies, obtained from the Recipient of any solicitation Message an express written agreement that meets the requirements set forth in Section 310.4(b)(1)(v)(A) of the FTC’s Telemarketing Sales Rule and Section 64.1200(f)(8) of the FCC’s Telephone Consumer Protection Act Rules. Customer may use the Service to transmit Customer Content or direct Flowroute to make contacts via any channel to, or with, Recipients to transmit Customer Content. Where Flowroute reasonably believes Customer may not have complied with the provisions of this Section, Flowroute may, at its option, scrub all numbers against any appropriate database deemed necessary to remove all wireless numbers and/or temporarily suspend Service related to the compliance concern. Upon request by Flowroute Customer will promptly provide, in writing, proof of prior express consent and Customer’s process for consent management. Customer is responsible for all uses of the Service in association with its accounts whether or not authorized by it including unintended usage due to holidays, daylight savings, computer clock errors or similar circumstances. Customer acknowledges and agrees Flowroute does not control nor monitor Customer Content nor guarantee the accuracy, integrity, security or quality of Customer Content. Use of recording any use of the Service may subject Customer to laws or regulations and Customer is solely responsible for and obligated to provide any required notification to those being recorded. Customer shall indemnify, defend and hold Flowroute, its affiliates and their officers, directors, employees, and agents harmless from and against any and all claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from Flowroute following Customer’s instructions in sending the Messages or Customer’s breach of any representation and warranty set forth in the Section 9.
10.0 REPRESENTATIONS; WARRANTIES
10.1 Flowroute agrees to provide and maintain the Services in a workmanlike manner customary for service providers in the industry. Flowroute does not warrant or guarantee in any way the results from the Services. Each party represents and warrants to the other that (a) its performance of this Agreement and the applicable Service Agreement will not violate any provision of law, rule, regulation and/or regulations of any governmental authority to which such party is subject and (b) such party will comply with all laws, rules and regulations pursuant to which such party conducts its business. Flowroute may modify or improve Service during the term, and may cease or modify Service without liability as reasonably required to comply with changes in law, or if any law, rule, regulation or policy.
10.2 Each party represents and warrants to the other that: (a) it has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and the applicable Service Agreement; (b) the execution, delivery and performance of this Agreement and the applicable Service Agreement have been duly authorized by such party; (c) no approval, authorization or consent of any governmental or regulatory authority is required to be obtained by it in order for it to enter into and perform its obligations under this Agreement and the applicable Service Agreement; and (d) the acceptance to this Agreement and the applicable Service Agreement possesses all necessary authority to enter into the Agreement and applicable Service Agreement.
10.3 Customer represents and warrants that: (a) the Customer Systems and Materials, all representations to be made by Flowroute as a part of Customer’s programs, and the content, timing, recipients and nature of all programs (including outbound communications and promotions and advertising to induce calls to Customer’s programs) will be in compliance with all laws, rules, regulations; and (b) Customer is solely responsible for the content and rights to use the Customer Systems and Materials and Flowroute’s use of the Customer Systems and Materials shall not violate the rights of any third party or any law, rule or regulation. Customer specifically acknowledges and agrees that Flowroute has not and is not expected to provide Customer with any analysis, interpretation or advice regarding the compliance of any aspect of Customer’s Materials or programs with any third party rights or laws, rules, or regulations. Upon request, Customer shall provide reasonable proof of compliance with the provisions set forth in this section and Flowroute shall have no obligation to provide Services where Flowroute reasonably believes that Customer has not so complied.
10.4 Flowroute represents and warrants that Flowroute can grant the licenses, and privileges granted by this Agreement (“Licensed Materials”). Flowroute expressly disclaims any warranty of merchantability or fitness of the Licensed Materials for a particular purpose and any other warranty, including that the Licensed Materials will not infringe any patent or other proprietary right. Flowroute further represents and warrants that Flowroute has no actual knowledge of any infringement claims filed against Flowroute for practicing the Licensed Materials anywhere in the world. Except as set forth in this section, Flowroute makes no representation, express or implied, with regard to infringement of any Licensed Materials. The Licensed Materials are provided “AS IS.”
11.0 CHOICE OF LAW
11.1 This Agreement and all causes of action related to this Agreement or the Services will be governed by and construed in accordance with the laws of the state of Texas, USA, without giving effect to the conflict-of-laws principles thereof that would require application of the laws of a different state or jurisdiction. Customer agrees that any legal action involving this Agreement or Service Agreement in any way will be instituted in a court of competent jurisdiction located in Dallas County, Texas, and Customer consents to jurisdiction of the state or Federal courts in the State of Texas over Customer’s person for purpose of such legal action. You agree to service of process by mail directed to your billing address. You waive all defenses including but not limited to sovereign immunity, lack of personal jurisdiction and forum non conveniens and expressly waive any right to bring suit or have any action heard in your local courts. You agree that any claim or cause of action arising out of or related to this Agreement must be commenced by you within one (1) year after the cause of action arose.
12.0 FORCE MAJEURE
12.1 If the performance of any obligation is interfered with by reason of any circumstances beyond the reasonable control of the party affected, including but not limited to acts of God or of the public enemy, flood, stability or availability of the Internet, the elements, telecommunication system failure, war, technology attacks, epidemic; acts of terrorism, riots, embargoes, quarantine, viruses, strikes, lockouts, disputes with workmen or other labor disturbances, total or partial failure of transportation, utilities, delivery facilities, fire, explosion, power blackout, cable cut, acts or requests of regulatory or governmental agencies, unavailability of right-of-way, unavailability of services or materials upon which the Service rely, or any other cause beyond its reasonable control, whether or not similar to the foregoing, then the party affected shall be excused from such performance to the extent necessary, except that Customer’s obligation to pay for Service provided shall not be excused, and provided that the party so affected shall use reasonable and diligent efforts to remove such causes of nonperformance.
13.0 LAW ENFORCEMENT; FRAUD INVESTIGATION RELATED MATTERS
13.1 If Flowroute receives a court order, subpoena, law enforcement request or an industry traceback group (an “ITB Group”) fraud-calling inquiry related to the Service provided to Customer by Flowroute pursuant to this Agreement that names Flowroute, Flowroute will comply with and respond to all court orders, subpoenas, and law enforcement requests or industry traceback requests as it deems necessary, including, without limitation, by referring the applicable requesting parties to Customer and disclosing Customer information.
14.0 LIMITED WARRANTY
14.1 ALL SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY. CUSTOMER UNDERSTANDS AND AGREES THAT SERVICES ARE PROVIDED “AS AVAILABLE”. FLOWROUTE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FLOWROUTE MAKES NO WARRANTY OR REPRESENTATION REGARDING ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH FLOWROUTE OR THE SERVICES, OR THAT THE SERVICES WILL MEET ANY OF CUSTOMER’S REQUIREMENTS, OR BE UNITERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF FLOWROUTE’S SERVICES ARE AT YOUR SOLE RISK. FLOWROUTE IS NOT LIABLE FOR ACTS OR OMISSIONS OF OTHER SERVICE PROVIDERS, FOR INFORMATION OR CONTENT OF COMMUNICATIONS, THIRD PARTY SERVICES, EQUIPMENT FAILURE OR MODIFICATION, OR CAUSES BEYOND FLOWROUTE’S REASONABLE CONTROL.
15.0 LIMITATION OF LIABILITY
15.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL FLOWROUTE, OR ITS SUPPLIERS OR AFFILIATES, BE LIABLE FOR INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGE FOR LOSS OF PROFITS OR DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, COST OF COVER OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF, OR RESULTING FROM THE SERVICES OR THIS AGREEMENT WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF FLOWROUTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES THAT MAY NOT BE EXCLUDED BY LAW, CUSTOMER AGREES THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY CUSTOMER IN REASONABLE RELIANCE, UP TO THE GREATER OF THE AMOUNT OF A REFUND OF THE PRICE THAT CUSTOMER ACTUALLY PAID FOR THE SERVICES DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY) OR ONE THOUSAND DOLLARS (US$1,000).
16.0 INTELLECTUAL PROPERTY; PUBLICITY
16.1 Neither party may use the other party’s name, trademarks, trade names or logos for any purposes without the prior written approval of the other party or to the extent necessary to provide the Services. Customer agrees that it will not identify Flowroute as the provider of the Service to the media or any governmental, regulatory, or other official without prior notice to Flowroute and Flowroute’s prior consent, unless required by legal process, law, rule or regulation. Except for materials already made public, neither party will distribute any news releases, articles, brochures, speeches, or advertisements concerning this Agreement or Service Agreement, nor use the other party’s name or trademarks (or any variation thereof), without the other party’s prior written consent. Customer agrees that after execution of this Agreement, subject to Customer’s review and written consent, such consent not to be unreasonably withheld, conditioned or delayed, Flowroute shall have the right to place advertisements in financial and other newspapers and journals and in marketing materials at its own expense describing its services to Customer hereunder. Notwithstanding the foregoing, upon such public announcement, Flowroute shall, without the Customer’s further consent, have the right to include a “tombstone” with respect to such transaction on its Website or in any “pitch-book” or similar marketing materials to the extent such tombstone does not include any information not previously publicly disclosed by Customer or by Flowroute pursuant to this provision.
17.1 Each party may disclose (the “Discloser”) Confidential Information to the other party (the “Receiver”). Receiver will use Confidential Information only in connection with Services performed or received, hold Confidential Information in confidence, and not disclose Confidential Information except to its Affiliates, employees or agents who have need to know such Confidential Information in order to perform such party’s obligations under this Agreement. Receiver is responsible for such parties’ compliance with the confidentiality obligations set forth herein. Confidential Information means all information disclosed by Discloser that is marked as confidential or proprietary or that by its nature or context constitutes information that a reasonable businessperson would treat as proprietary, confidential, or private, even if not so marked. Confidential Information includes the terms of this Agreement and any Service Agreement, business strategies, marketing plans, industry and competitive information, technology, trade secrets, computer systems, software, analytical procedures, techniques, skills, ideas, models, research, pricing, employee information and financial information of each party and its Affiliates. Confidential Information will not include information (i) generally available to the public other than by Receiver’s breach of this Agreement; (ii) already known to the Receiver at the time of disclosure by Discloser; (iii) rightfully received from a third party without restriction on disclosure; or (iv) independently developed by a party without use of Discloser’s Confidential Information. Neither party will have any right in the other party’s Confidential Information and will return or destroy all such Confidential Information upon written request of Discloser, provided that Confidential Information residing on Receiver’s backup, disaster recovery or business continuity systems will not be subject to return or destructions but will continue to be subject to all other terms of this Agreement until destroyed. Receiver may disclose Discloser’s Confidential Information as required by law or court order, provided that Receiver (unless prohibited by law) promptly notifies Discloser and cooperates with Discloser in Discloser’s efforts to challenge the disclosure or seek appropriate protective order.
18.1. Customer shall indemnify, defend and hold Flowroute, its Affiliates and their officers, directors, employees and agents harmless from and against any and all third party claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from: (a) a breach by Customer of any term of this Agreement or an Service Agreement ; (b) the Customer Systems and Materials; (c) a claim relating to any defect in any product or service offered by Customer, its Affiliates or any of their agents or customers ; or (d) all liabilities, demands, damages, expenses, or losses arising out of or resulting from any usage of the Licensed Materials. Flowroute shall indemnify, defend and hold Customer, its Affiliates and their officers, directors, employees and agents harmless from and against any and all third party claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from a breach by Flowroute of any term of this Agreement or a Service Agreement. Nothing herein shall require the Flowroute to indemnify the Customer for any claim or any portion of any claim that arises from the Customer’s reckless, wanton, wrongful, or otherwise negligent acts of the Customer.
18.2. Flowroute Intellectual Property Indemnity. Flowroute will have the obligation and right at the entire expense of Flowroute to defend any claim, suit or proceeding brought against Customer its Affiliates or their officers, directors, employees or agents so far as it is based on a third party claim that the Services supplied by Flowroute infringe a United States copyright or a United States patent issued as of the effective date of the applicable Service Agreement , provided that Flowroute will have no indemnity obligation or other liability hereunder arising from: (1) Customer’s willful, reckless, wanton, wrongful, or otherwise negligent acts; (2) breach of the Agreement or an Service Agreement or alteration of the Services as provided by Flowroute; (3) the Customer Systems and Materials or Services that are based upon the Customer Systems and Materials, or information, design, specifications, directions, instruction, software, data, or material not furnished by Flowroute; (4) combination of the Services with the Customer Systems and Materials or any materials, products or services not provided by Flowroute; or any (5) third party products or services. Notwithstanding the foregoing, in order to be indemnified to the extent stated, the Customer must operate the Licensed Materials within the instructions and technical limits provided or approved by the Flowroute. If such a claim is or is likely to be made, Flowroute will, at its own expense and sole discretion, exercise one or the following remedies: (1) obtain for Customer the right to continue to use, the Services consistent with this Agreement; (2) modify the Services so they are non-infringing and in compliance with this Agreement; (3) terminate the applicable Services without liability for such termination other than the ongoing indemnity obligation hereunder. The foregoing states the entire obligation of Flowroute and its suppliers, and the exclusive remedy of Customer, with respect to infringement of proprietary rights.
18.3. The party claiming indemnification shall: (a) provide prompt written notice to the indemnifying party of any claim in respect of which the indemnity may apply; (b) relinquish control of the defense of the claim to the indemnifying party; and (c) provide the indemnifying party with all assistance reasonably requested in defense of the claim. The indemnifying party shall be entitled to settle any claim without the written consent of the indemnified party so long as such settlement only involves the payment of money by the indemnifying party and in no way affects any rights of the indemnified party. The indemnities set forth herein shall not apply to the willfulness on the part of the indemnified party or negligence of the indemnified party.
19.1 Except as otherwise expressly provided herein, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise. Flowroute and Customer are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. The parties confirm that they wish to have this Agreement written in English only. Customer authorize Flowroute to monitor including the recording of calls for the purposes of quality assurance and Customer further consent to Flowroute’s use of automatic dialing equipment to contact you. Flowroute’s performance of the Services is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of Flowroute’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of Flowroute’s Website, the Services or information provided to or gathered by Flowroute with respect to such use. Customer may not assign this Agreement to any other person or entity without Flowroute’s prior written approval, but nothing restricts Flowroute’s ability to assign this Agreement or subcontract the Services hereunder.
20.1 Flowroute may, at any time, amend the provisions of this Agreement or any Service Agreement. Any amendment proposed by Customer may only be accepted by Flowroute in a non-electronic writing manually signed by authorized representatives of the parties. Notwithstanding anything in this Section to the contrary, if Flowroute posts amended terms on its Website, such terms will automatically become effective ten (10) days after they are posted on the Website. By using the Services after such revised terms are posted, Customer agrees to be bound by any such amended provisions. Therefore, you agree to periodically visit the Website to examine the then-current Agreement and Service Agreement.
21.0 CONFLICTING OR CONTROLLING TERMS
21.1 In the event of any conflict, ambiguity, or inconsistency between the terms of this Agreement, or Service Agreement, the terms of the Service Agreement shall control.
22.1 Through its use of the Services, Customer agrees to comply with the Acceptable Use Policy (the “AUP”) and is responsible for the use of the Services by all entities and individuals whom Customer permits to use the Services. Flowroute has the right to change or modify the terms of the AUP at any time, effective when posted to its website. Customer’s use of the Services after changes to the AUP are posted shall constitute acceptance of any changed or additional terms.
22.2 This Agreement, together with the terms of the Service Agreement and the AUP contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. No course of dealing or failure of a party to enforce strictly any term or provision or to exercise any right, obligation, or option provided, will waive such term, provision, right, obligation or option. All users of the Services must adhere to the terms of this Agreement. Flowroute has the right, but is not obligated, to strictly enforce this Agreement through self-help, active investigation, litigation and prosecution. Flowroute may also access and disclose any information (including transactional information) related to Customer’s access and use of our website or network for any lawful reason, including but not limited to: (1) responding to emergencies; (2) complying with law, rule or regulation (e.g., a lawful subpoena); (3) protecting our rights or property and those of our customers; or (4) protecting users of those services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such services. If any provision of this Agreement or the applicable Service Agreement is held invalid or unenforceable at law, such provision shall be modified, rewritten or interpreted to include as much of its nature and scope as will render it enforceable and the remainder of this Agreement and the applicable Service Agreement will continue in effect and be valid and enforceable to the fullest extent. This Agreement and Service Agreements are for the sole benefit of the parties and are not intended to, nor shall it be construed to, create any right or confer any benefit on or against any third party.
22.3 Notices from Flowroute to Customer under this Agreement may be sent by mail, email, fax or other electronic media and will be considered given upon delivery to the physical address, fax number, email address or other contact information provided by Customer for billing or account management purposes. Notices to Flowroute must be sent Flowroute by email at Contracts@West.com.
22.4 All questions concerning this Agreement shall be directed by email to: Contracts@West.com.
22.5 THIS AGREEMENT WAS LAST REVISED AND PUBLISHED ON DECEMBER 30, 2019