ToucanText Terms and Conditions
Please read these Terms and Conditions (the “Agreement”) fully and carefully before using this Site and ToucanText’s Services (as described in Section 1 of this agreement). This Agreement sets forth the legally-binding terms and conditions for your use of the Site and Services. If you do not want to be bound by these Terms and Conditions, do not use this Site or the Services.
By registering for and/or using the services in any manner, you agree that you have read, understand and accept this agreement and all other operating rules, policies and procedures referenced herein, each of which is incorporated herein by this reference and each of which may be updated from time to time as set forth below, to the exclusion of all other terms. You are not permitted to use the services if you do not unconditionally accept this agreement. If you are accepting on behalf of an organisation, you represent and warrant that you have the authority to do so; however, if your organisation has entered into a separate contract with ToucanText covering its use of the services, then that contract shall govern instead.
Except for certain types of disputes defined in the arbitration section, you agree that disputes between you and ToucanText shall be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.
In this Agreement, “Customer” shall refer to you, unless you are accepting on behalf of a company in which case “Customer” shall mean that organisation; and “ToucanText” shall refer to ToucanText Limited, currently operating out of Suite 2, Bourne Gate, 25 Bourne Valley Road, Poole, BH12 1DY, United Kingdom. ToucanText and Customer are each referred to in this Agreement as a “Party” and collectively as the “Parties.” In consideration of the terms and covenants set forth herein, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows.
1. ToucanText’s Services
ToucanText offers a variety of communication-enabling services (“Services”) described at http://www.toucantext.com (the “Site”), which include its APIs, SDKs, software, code snippets, documentation, technical support, the Site itself, and the features, functionality, and connectivity provided through ToucanText’s proprietary platform. This Agreement governs the Parties’ respective obligations regarding all Services provided to or used by Customer.
a. Additional Terms and Policies
ToucanText may update the foregoing additional terms and policies from time to time by posting a notice on the Site or by sending Customer notice through the Services.
This Agreement incorporates the following additional terms, policies and agreements:
b. Changes to Service
Changes in the industry, carrier and other partner requirements, applicable law and regulations may require ToucanText to make changes to the Services from time to time. It is Customer’s responsibility to ensure that its usage is compatible with the then-current Services. ToucanText endeavours to maintain backward compatibility, but where it cannot, it will make commercially reasonable efforts to provide at least 60 days’ notice prior to implementing changes that do not maintain backward compatibility. ToucanText may, in its reasonable discretion, suspend or discontinue any of the Services or component thereof at any time by posting a notice on the Site or by sending Customer notice through the Services, or by another appropriate means of electronic communication.
c. Services and Telephone Numbers
Customer acknowledges and agrees that its use of the Services or any of the telephone numbers that ToucanText may provide in connection with use of the Services do not grant Customer any ownership or other rights in the telephone number other than the limited, revocable use rights expressly set forth in this Agreement. Customer does not have the right to use those telephone numbers indefinitely. Customer acknowledges and agrees that telephone numbers which ToucanText provisions may be reclaimed by ToucanText or the applicable supplier from time to time during the Term, and may be re-assigned to other customers after the Term. ToucanText reserves the right to reclaim any phone number from Customer’s Account if Customer does not send sufficient traffic over that phone number such that the phone number is unutilised or underutilised, as defined by any local and/or national regulatory agency and/or governmental organisation with oversight over the relevant phone number and numbering plan. If ToucanText seeks to reclaim a phone number from Customer’s Account, excluding suspended, terminated, and trial accounts, ToucanText will provide at least two (2) weeks’ advance notice via email where possible within commercial reason, except where ToucanText is prevented from doing so by the applicable regulatory agency or governmental organisation. ToucanText also reserves the right to reclaim phone numbers from accounts suspended for failure to pay and/or suspended for suspected fraud. Customer may not transfer or assign the telephone numbers ToucanText provides to Customer unless otherwise mutually agreed by the Parties in writing.
2. Customer Accounts
To access and use certain Services, Customer must create an account (“Account”) on the Site. Customer shall provide accurate, complete, and current Account information and, as applicable, timely update the same. Customer is solely responsible for the activity that occurs on its Account (which includes its sub-accounts), including via the Customer Application (as defined below), and for keeping its Account password secure. ToucanText will not be liable for losses caused by any unauthorised use of the Account. Customer represents and warrants that it is duly authorised to do business and use the Services in all jurisdictions in which Customer operates. Customer must notify ToucanText promptly of any change in Customer’s eligibility to use the Services (including any changes to or revocation of any licenses from state authorities), breach of security or any known unauthorised use of Customer’s Account. Upon termination of this Agreement, Customer may make its Account dormant by emailing support@ToucanText.com. Notwithstanding deletion of Customer’s Account, ToucanText may retain Customer data as reasonably necessary for compliance with applicable law.
Subject to Customer’s compliance with this Agreement, ToucanText hereby grants Customer a limited, revocable, personal, non-exclusive, non-transferable license until this Agreement or Customer’s Account is terminated (the “Term”) to (i) use the documentation and APIs ToucanText makes available to Customer to create an original application that interfaces with the Services (“Customer Application”), and (ii) make the Services available to Customer’s end users (“End Users”) through the Customer Application. The foregoing license shall extend to Customer Affiliates, provided that such Customer Affiliates are acting via Customer’s Account and provided further that Customer remains jointly and severally liable for all acts and omissions of its Affiliates. An “Affiliate,” with respect to a Party, means any entity that controls, is controlled by, or is under common control with that Party.
Customer shall not, and shall ensure that its End Users and Affiliates do not, and shall not authorise, assist or enable any other third party to:
- Transfer, resell, lease, license, or otherwise make available the Services to third parties, except for Customer’s use of the Services to provide its Customer Application to third parties as set forth in Section 4;
- Use the Services in any manner that violates the Acceptable Use Policy (AUP);
- Decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, except to the limited extent applicable laws specifically prohibit such reverse-engineering restrictions;
- Alter, modify, translate, or otherwise create derivative works of any part of the Services, except as may be authorised by specific licensing terms accompanying certain software or software development kits; or
- Use the Services in connection with any call types that would result in ToucanText incurring originating access charges, local exchange carrier “DIP” fees or other call types that may be subject to any reverse billing process, application or charge.
5. Pricing, Billing and Payment
a. Paid Services
Customer agrees to pay for its use of the Services as agreed and set forth on the pricing page on the Site, which may be updated from time to time, except and only to the extent Customer has entered a separate written agreement or addendum with ToucanText for special pricing on certain Services and/or country-specific pricing, or ToucanText has otherwise conveyed special pricing in writing to its Customer. ToucanText reserves the right to change pricing from time to time. Customer’s continued use of the Services after a price change becomes effective constitutes Customer’s agreement to pay the changed amount.
Except as set forth in the next sub-section, Customer shall pay in advance for the Services in the currency specified by ToucanText, without the right of set-off, deductions, or counterclaim. Some of the Services may accept recurring period charges as agreed to by Customer on the Site. By choosing such auto-reload payment plan, Customer acknowledges that such Services have a recurring payment feature and Customer accepts responsibility for all recurring charges prior to cancellation. ToucanText may submit periodic charges (e.g., monthly) without further authorisation from customer, until customer provides prior notice (receipt of which is confirmed by ToucanText) that customer has terminated this authorisation or wishes to change its payment method. Such notice will not affect charges submitted before ToucanText reasonably could act. Customer must provide current, complete and accurate information for its billing account. If customer has requested auto-reload payments, customer must promptly update all information to keep its billing account current, complete and accurate (such as a change in billing address, credit card number, or credit card expiration date), and customer must promptly notify ToucanText or its payment processor if customer’s payment method is cancelled (e.g., for loss or theft) or if customer becomes aware of a potential breach of security, such as the unauthorised disclosure or use of customer’s user name or password. Changes to such information can be made in the account dashboard. If customer fails to provide any of the foregoing information, customer agrees that ToucanText may continue charging customer for any use of paid services under the billing account unless customer has cancelled auto-reload or terminated its paid services as set forth above. Customer may change its payment method or terminate any auto-reload authorisation via the Account dashboard.
Where authorised by ToucanText in writing, ToucanText will invoice Customer for the Services monthly in arrears, and payment shall be due 30 days following the date of invoice, without deduction. Invoices may be sent to the email address specified in Customer’s Account, and shall be deemed received on the date sent. Customer shall pay interest on past due amounts at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less, and shall be responsible for all costs of collection. If Customer disputes any invoiced charges exceeding £1,000 in a detailed writing provided to ToucanText, and such disputes are reasonable and made in good faith (as reasonably determined by ToucanText), then (i) the Parties shall discuss and attempt to resolve the dispute in good faith in a timely manner, and (ii) Customer may withhold the disputed portion of the invoice exceeding £1,000 if Customer has paid the undisputed portion of the invoice in accordance with the Agreement, until the dispute is resolved. Customer’s credit shall be limited to the amount indicated by ToucanText from time-to-time in connection with Customer’s Account.
Unless otherwise provided on the pricing page on the Site, all charges and fees for the Services are exclusive of any country, province or local taxes, including without limitation, use, sales, value-added, privilege, or other taxes, levies, imports, duties, fees, surcharges, governmental assessments and withholdings (“Taxes”). Customer will be solely liable for and will pay upon demand all Taxes associated with Customer’s access to and use of the Services and shall not deduct any such amounts, or any other withholdings, set-offs or deductions, from amounts Customer owes ToucanText, but will not be responsible for taxes based on ToucanText’s net income. Customer may present ToucanText with an exemption certificate eliminating Customer’s and ToucanText’s liability to pay certain Taxes. Once ToucanText has received and approved the exemption certificate, Customer shall be exempt from those Taxes on a going-forward basis. If a taxing jurisdiction determines that Customer is not exempt from Taxes and assesses those taxes, Customer shall pay those Taxes to ToucanText, plus any applicable interest or penalties. Such notice will not affect charges submitted before ToucanText reasonably could act.
e. Billing Disputes
Billing disputes must be initiated within 30 days of the date the Service was provided, by contacting ToucanText at billing@ToucanText.com. Upon expiration of such 30-day period, Customer will not be entitled to dispute any fees paid or payable to ToucanText. The Parties will work together in good faith to resolve billing disputes. A pending billing dispute shall not exempt Customer from timely paying any undisputed amounts owed. Any disputes that cannot be resolved in accordance with the foregoing shall be handled in accordance with Section 13 of this Agreement. Other than in accordance with the foregoing, fees paid are non-refundable.
6. Confidential Information
7. Intellectual Property
a. Customer’s Application and Application Content
As between Customer and ToucanText, Customer owns and reserves all right, title and interest in Customer Applications, and any content originally transmitted by Customer or its End Users via the Customer Applications (“Application Content”). Customer authorises ToucanText to use the Application Content to provide the Services and perform in accordance with this Agreement.
Customer’s suggested improvements to and feedback regarding the Services are not Confidential Information (as defined below), and Customer grants to ToucanText an unrestricted, irrevocable, fully paid-up, and non-exclusive right to use such suggestions and feedback for any purpose.
c. ToucanText Services and ToucanText Content
ToucanText owns and reserves all right, title and interest in and to the Services and all improvements, modifications and derivative works thereof. Other than the Customer Application and Application Content, all content made available through the Site or the Services (collectively, “ToucanText Content”) are as between Customer and ToucanText owned by ToucanText.
Except as explicitly granted herein, neither Party 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 other form of intellectual property of the other Party or its Affiliates without the express prior written authorisation of the other Party. Customer will not issue any press release or other public statement relating to this Agreement, except as may be required by law or agreed by ToucanText in a writing signed by an authorised representative of ToucanText’s Corporate Communications department. ToucanText may identify Customer using its name, trademarks and/or logos in its marketing collateral, presentations and websites.
e. Notices and Restrictions
The Services may contain ToucanText Content specifically provided by ToucanText, ToucanText’s partners, ToucanText’s customers, or other third parties that is subject to and protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws under United States and other laws and international conventions. Customer shall abide by and maintain all copyright notices, information, and restrictions contained in any ToucanText Content accessed through the Services.
a. Customer Indemnification
Customer agrees to defend, indemnify and hold harmless ToucanText, its Affiliates, suppliers, and partners, and each of their respective employees, contractors, directors, officers and representatives, from and against any damages, liabilities, claims, demands, obligations, losses, fines, penalties, and expenses (including reasonable lawyer’s fees) (collectively, “Losses”) incurred in connection with claims made or brought by a third party arising from or relating to: (i) unauthorised or prohibited use of the Services, including violations of the AUP or applicable law, by Customer, its Affiliates or its or their End Users, employees, agents or subcontractors; (ii) Application Content, (iii) claims by End Users to the extent they purport to extend ToucanText’s liability or obligations beyond the limitations and disclaimers set forth in this Agreement, or (iv) gross negligence or wilful misconduct of Customer, its Affiliates or its or their employees, agents or subcontractors.
ToucanText shall notify Customer promptly after ToucanText learns of the existence of an indemnifiable claim hereunder; provided, however, that failure to give such notice shall only affect the rights of ToucanText to the extent that Customer is prejudiced. ToucanText shall not admit any liability whatsoever. Customer shall be entitled to take sole control of the defence and investigation of the indemnifiable claim at its own expense, by providing prompt written notice to ToucanText, subject to ToucanText’s approval of Customer’s counsel, such approval not to be unreasonably withheld or delayed. ToucanText shall cooperate in all reasonable respects with Customer and its lawyers in the defence of the claim (including by making available books, records, and personnel), and may reasonably participate at its own expense, through its lawyers or otherwise, provided that such participation does not interfere with Customer’s defence. All settlements of indemnifiable claims under this Section shall: (i) be entered into only with ToucanText’s consent if such settlement requires any admission of guilt or imposes any restriction on ToucanText; and (ii) include an appropriate confidentiality agreement prohibiting disclosure of the terms of such settlement.
9. Warranties and Disclaimers
ToucanText represents and warrants to Customer that it (i) has the corporate power and authority to enter into this Agreement and perform its obligations hereunder, and (ii) is authorised to do business and provide the Services.
b. Assumption of Risk
ToucanText has no special relationship with or fiduciary duty to Customer. Customer acknowledges and agrees that ToucanText has no control over and has no duty to take any action regarding and shall have no liability for acts, faults or omissions of any third party telecommunications systems, networks or operators (including, without limitation, suspension or termination of ToucanText’s connections, or faults in or failures of their apparatus or network), in the jurisdictions in which it operates.
Except as otherwise expressly set forth above in this agreement, to the maximum extent permitted by applicable law, the services and ToucanText content are provided “as is”, “as available” and without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability, quality (e.g., as to latency and throughput), and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. ToucanText, and ToucanText’s suppliers, partners and licensors, and each of ToucanText’s and their respective officers, directors, employees, and agents, do not warrant (and hereby expressly disclaim all warranties) that: (i) the services (or any mobile operators) will be secure or available at any particular time or location, (ii) any defects or errors will be corrected, (iii) any content or software available on or through the services is free of viruses or other harmful components, (iv) the content on the sites or services (or any third party sites or services linked thereto) is accurate, error-free, appropriate, compliant, or complete, or (v) the results of using the services will meet customer’s requirements. Customer’s use of the services is solely at customer’s own risk. ToucanText does not warrant, endorse, guarantee, or assume responsibility for any content of, communication by, or product or service advertised or offered by, a third party through the services, and ToucanText will not be a party to or in any way be responsible for monitoring any transaction between customer and third parties.
d. Reservation of Rights
ToucanText reserves the right, but is not obligated, to monitor and audit Customer’s use of the Services for any reason or no reason, without notice, to ensure Customer’s compliance with this Agreement. ToucanText reserves the right, but is not obligated, to reject, refuse to transmit or post, block, or remove any posting (including Application Content), or to restrict, suspend or terminate Customer’s access to all or any part of the Services at any time if Customer has violated the AUP or this Agreement or to prevent harm to ToucanText’s business or reputation. ToucanText also reserves the right to access, read, preserve, and disclose any information that ToucanText reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental or agency request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of ToucanText, its customers, its customers’ end users, and/or the public. Customer agrees to provide ToucanText with any information ToucanText reasonably requests to investigate and resolve problems relating to Customer’s Account.
e. No Emergency Services
ToucanText’s Services are not intended for and may not be used (i) in connection with 999 or other emergency, public safety or similar services (“Emergency Services”), or (ii) as a replacement for any primary phone services (e.g., landline or mobile phones) used to contact Emergency Services. Customer acknowledges that ToucanText and ToucanText’s suppliers have no responsibility to connect any 999 calls to any Public Safety Answering Point.
f. Beta Services
Certain Services may be designated or offered as a “beta” version (“Beta Version”) of a Service, which may or may not be released as a full commercial service in the future. Customer is not required to use any Beta Version and does so at its sole risk. Except as otherwise indicated under separate terms and conditions that may apply to such Beta Version, ToucanText shall not charge for such Beta Version, but reserves the right to charge for subsequent versions of the Beta Version, including any potential commercial releases. Customer acknowledges and agrees that the Beta Version may contain, in ToucanText’s sole discretion, more or fewer features or different licensing terms than a subsequent commercial release version of the Beta Version. ToucanText reserves the right not to release later commercial release versions of the Beta Version. Without limiting any disclaimer of warranty or other limitation stated in this Agreement (or any separate terms and conditions that would otherwise be applicable to such Beta Versions), Customer agrees that Beta Versions are not considered by ToucanText to be suitable for commercial use, and that may contain errors affecting their proper operation. CUSTOMER ACKNOWLEDGES AND AGREES THAT USE OF ANY BETA VERSION MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT CUSTOMER’S USE OF ANY SERVICES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TOUCANTEXT SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM CUSTOMER’S USE OF ANY BETA VERSION. The fact and existence of any Beta Version shall be deemed to be ToucanText Confidential Information under this Agreement. The Support Policy shall not apply to Beta Versions.
g. Customer Data Deletion
Except as agreed by ToucanText and Customer in writing, ToucanText may periodically delete Customer’s data including any Application Content. Further, data storage is not guaranteed by ToucanText and ToucanText shall not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that Customer may incur relating to the loss or deletion of Customer’s data.
10. Suspensions and Terminations
a. Termination for Convenience
Customer may terminate its use of the Services any time for any reason, and may close its Account by contacting ToucanText at support@ToucanText.com. ToucanText may terminate this Agreement by providing 60 days’ advance notice to Customer.
b. Termination for Cause (Service Suspension)
ToucanText may suspend Customer’s right to use the Services or terminate this Agreement in its entirety (and, accordingly, Customer’s right to use the Service), for cause: (A) if Customer is in breach of this Agreement and has failed to cure such breach within 30 days after written notice thereof, or (B) immediately (i) if Customer has violated or ToucanText has reason to believe Customer has violated or has encouraged others to violate any provision of the AUP, (ii) upon Customer’s liquidation, commencement of dissolution proceedings, disposal of Customer’s assets, failure to continue Customer’s business in the ordinary course, assignment for the benefit of creditors, or if Customer becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding, or (iii) if Customer is in default of any payment obligation with respect to any of the Services or if any payment mechanism Customer has provided to ToucanText is invalid or charges are refused for such payment mechanism.
c. Effect of Suspension
Upon ToucanText’s suspension of Customer’s use of or access to any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by Customer, notwithstanding the suspension, (ii) Customer remains liable for all fees, charges and any other obligations Customer has (or Customer’s Account has) incurred through the date of suspension with respect to the Services, and (iii) all of Customer’s rights with respect to the Services will be terminated during the period of the suspension.
d. Effect of Termination and Survival
Upon termination of this Agreement, for any reason: (i) Customer remains liable for all fees, charges and any other obligations accrued and owed by Customer through the effective date of such termination, (ii) except as expressly set forth herein, all of Customer’s rights and licenses under this Agreement will immediately terminate and Customer shall cease using the Services, and (iii) any balance on Customer’s Account remaining after termination of this Agreement will be repaid to Customer within twenty (20) business days following termination. All amounts accrued or owed to ToucanText in connection with this Agreement and Sections 3, 5, 6, 7, 8; 9(b)-(e); 10; 11; 12; 13 and 14 shall survive any termination of this Agreement. Following any suspension or termination of this Agreement or Customer’s Account other than for breach, Customer may request any post-termination assistance that ToucanText may elect to make generally available with respect to the Services such as data retrieval arrangements, subject to and conditioned upon Customer’s advance payment of fees and acceptance of all terms and conditions that ToucanText specifies in writing with respect thereto.
11. Limitation of Liability
Notwithstanding anything to the contrary herein, to the maximum extent permitted by applicable law, in no event shall ToucanText or ToucanText’s partners, suppliers, licensors, or content providers, or any of its or their respective directors, officers, employees, or agents, be liable under any contract, tort, warranty, strict liability, negligence or any other legal or equitable theory with respect to the services or other subject matter of this agreement for: (i) any special, indirect, incidental, punitive, compensatory or consequential damages of any kind whatsoever, lost profits, goodwill, revenue, income or business, data loss, interruption of business, cost of procurement of substitute goods, technology, rights or services (however arising and even if advised of the possibility of such damages); (ii) any liability that exceeds the greater of £50,000 or the amount of fees actually paid to ToucanText in the 6 months preceding the event giving rise to the claim; or (iii) use of or inability to use the services in connection with emergency services.
12. Arbitration and Dispute Resolution
a. Management Resolution
In the event either Party has a dispute or claim against the other Party (except with respect to billing disputes), the disputing Party shall provide written notice to the other Party. The Parties agree to escalate disputes to their respective management, who will use commercially reasonable efforts to resolve the dispute by consulting with each other in good faith to reach an equitable resolution satisfactory to both Parties within 30 calendar days of the receipt of notice. Neither Party shall pursue or commence proceedings regarding the dispute in any court, administrative arbitral or other adjudicative body prior to engaging in such consultations and negotiations.
b. Binding Arbitration
If negotiations fail to resolve the dispute within 30 calendar days, and/or small claims court is not a valid option due to the size or nature of the claim, all disputed claims (except for claims relating to intellectual property rights, indemnity, or confidentiality obligations, fraudulent or unauthorised use, theft, or piracy of service, or matters relating to injunctions or other equitable relief) must be resolved by binding arbitration before a single arbitrator, in the English language. This agreement to arbitrate is intended to be given the broadest possible meaning under applicable law. The initiation of an arbitration dispute shall not otherwise prevent ToucanText or Customer from terminating Services in accordance with the Agreement.
c. Location and Procedure
A Party who intends to seek arbitration must first send to the other Party a written notice of dispute, which must describe the nature and basis of the dispute and set forth the specific relief sought. The location of arbitration will be in London, England and in accordance with the rules then in effect of the International Chamber of Commerce (“ICC”). The amount of any settlement offer made by Customer or ToucanText shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or ToucanText is entitled. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. The prevailing Party in any action or proceeding to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs.
d. Jury Trial and Class Action Waiver
Each Party waives its right to a trial by jury for claims subject to arbitration hereunder. The arbitrator may award relief only in favour of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. The arbitrator may not award special, indirect, punitive, incidental or consequential damages. Customer may bring claims against ToucanText only in customer’s individual capacity and not as a plaintiff or class member in any purported class or representative proceeding and customer expressly waives its right to bring a class action suit. The arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding.
e. Equitable Relief
Notwithstanding the foregoing, each Party shall be entitled to enforce its intellectual property rights and seek equitable relief in any court of competent jurisdiction at any time.
13. Governing Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of England and Wales, without reference to its principles of conflicts of law rules. Without limiting the preceding language, Customer agrees to submit, for purposes of this Agreement, to the jurisdiction and venue of the courts of London, England. Customer agrees that any cause of action arising out of or related to the site or services or ToucanText must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
14. ToucanText Agreement
a. Entire Agreement
This Agreement constitutes the entire agreement between Customer and ToucanText with respect to the Site and Services, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and ToucanText with respect thereto. The section and paragraph headings in this Agreement are for convenience of reference only and shall not affect their interpretation. No oral or written information or advice given by ToucanText or its employees and other representatives will create any obligations or warranty on behalf of ToucanText unless otherwise agreed in a writing signed by an authorised ToucanText representative. Any purchase orders, confirmations, payment documentation, or other terms provided by Customer, even if signed by the Parties after the date hereof, shall have no force or effect. In the event that the Parties have executed versions of this Agreement drafted in more than one language, the English language version shall govern and prevail.
Except as expressly provided elsewhere in this Agreement, this Agreement may not be changed or modified, nor may any provisions hereof be waived, nor may any consent or confirmation be considered to have been given, except by an agreement in writing signed by the Party against whom enforcement of the change or modification is asserted, and any such modification, change, waiver, consent or confirmation on ToucanText’s behalf may only be given by an authorised signatory of ToucanText. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
If any provision of this Agreement, or any part of such provision, is found to be unenforceable or invalid, that provision will be (to the minimum extent necessary) replaced by a valid and enforceable provision the effect of which comes as close as possible to the intended economic effect of the unenforceable or invalid provision, so that this Agreement will otherwise remain in full force and effect and enforceable.
d. Force Majeure
Neither Party is liable for any failure of performance (other than for delay or performance in the payment of money due and payable hereunder) to the extent such failure is due to any cause or causes beyond such Party’s reasonable control, including acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, governmental action, acts of terrorism, strikes and similar labour difficulties, war, sabotage, outages of third party connections, utilities, or telecommunications networks, including, without limitation, carrier-related problems or issues, internet-access issues, denial of service attacks, shortage or unavailability of supplies, and other mechanical, electronic or communications failures or degradation. Either Party’s invocation of this clause will not relieve Customer of its obligation to pay for any Services actually provided or permit Customer to terminate any Services except as expressly provided herein.
Customer hereby authorises ToucanText to send notices to Customer relating to this Agreement (e.g., Service updates, notices of breach and/or suspension) via email to the email address Customer provides to ToucanText in Customer’s Account, in addition to the other means and methods set forth in this Agreement. It is Customer’s responsibility to keep Customer’s email address current, and Customer will be deemed to have received any email sent to the last known email address ToucanText has on record for Customer. Notices that ToucanText sends to Customer via email will be deemed effective upon ToucanText’s sending of the email. Notices provided to ToucanText under this Agreement shall be sent to the attention of Customer’s account manager, with a copy sent to the following address with respect to any legal matters, at:
- ToucanText Limited
Suite 2, Bourne Gate, 25 Bourne Valley Road, Poole, BH12 1DY, United Kingdom
Attn: Legal Team
Unless otherwise specified in this Agreement, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email; or the day after it is sent, if sent via next day delivery by recognised overnight delivery service.
f. Relationship of the Parties
The relationship of the Parties shall not be that of partners, agents or joint venturers for one another, and nothing contained in the Agreement shall be deemed to constitute a partnership or agency agreement between the Parties for any purpose. ToucanText and Customer shall be independent Parties and shall discharge their contractual obligations at their own risk subject to the terms of this Agreement.
This Agreement inures to and is binding upon the Parties’ successors and permitted assignees. Customer shall not assign this Agreement without ToucanText’s prior written consent.
h. Export Controls
By using the Services, Customer represents and warrants that (i) its use of the Services will not violate any embargoes, sanctions, trade restrictions or similar restrictions issued by any applicable governmental entity, and (ii) Customer, its Affiliates, and its End Users have not been designated by any applicable government or any government agency as a prohibited or restricted party under any trade restrictions, export laws or the like. Customer also will not use the Site or Services for any purpose prohibited by applicable law, including the development, design, manufacture or production of missiles, or nuclear, chemical or biological weapons. Customer may not use, export, re-export, import, or transfer any technology or data related to the Services except as authorised by both this Agreement and all applicable laws, rules and regulations.
i. Government Terms
If Customer (or its End Users) is an agency, department or other entity of any government, then any use, modification, duplication, reproduction, release, performance, display, transfer or disclosure of the Services and accompanying documentation shall be governed solely by this Agreement. Any other use shall be prohibited and no other rights are granted.