THIS EULA CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER IN THE SECTION TITLED DISPUTE RESOLUTION , WHICH AFFECTS YOUR RIGHTS WITH RESPECT TO ANY DISPUTES BETWEEN US AND YOU, AND REQUIRES YOU TO RESOLVE DISPUTES IN BINDING, INDIVIDUAL ARBITRATION AND NOT IN COURT. BY AGREEING TO THIS EULA YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND WAIVING YOUR RIGHT TO HAVE A JURY TRIAL ON YOUR CLAIMS AND EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION.
THIS EULA IS A LEGALLY BINDING AGREEMENT between Sorenson Communications, LLC (together with its affiliates, “Sorenson”, “we” or “us”) and you.
BY CLICKING “I AGREE” OR BY OTHERWISE SIGNING UP FOR AN ACCOUNT, USING THE CAPTIONCALL PHONE, DOWNLOADING THE CAPTIONCALL MOBILE APPLICATION OR ACCESSING OR USING THE SERVICES OR LICENSED APPLICATIONS), YOU ARE ENTERING INTO THIS EULA AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
PLEASE READ THIS EULA CAREFULLY. DO NOT SIGN UP FOR AN ACCOUNT OR USE THE PRODUCTS, IMMEDIATELY RETURN THE CAPTIONCALL PHONE (AND ALL MATERIALS PROVIDED THEREWITH), AND/OR UNINSTALL THE CAPTIONCALL MOBILE APPLICATION IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THE TERMS OF THIS EULA.
YOU HEREBY CERTIFY THAT (A) YOU HAVE HEARING LOSS THAT NECESSITATES THE USE OF CAPTIONED TELEPHONE SERVICE; (B) YOU UNDERSTAND THAT CAPTIONING MAY BE PROVIDED BY A LIVE COMMUNICATIONS ASSISTANT WHO LISTENS TO THE OTHER PARTY ON THE LINE AND PROVIDES THE TEXT DISPLAYED ON THE CAPTIONCALL PHONE AND CAPTIONCALL MOBILE APPLICATION; (C) YOU UNDERSTAND THAT THE COST OF CAPTIONING IS FUNDED THROUGH THE FEDERAL PROGRAM; AND (D) YOU WILL NOT PERMIT INDIVIDUALS WHO HAVE NOT REGISTERED WITH SORENSON TO USE THE PRODUCTS OR SERVICES. YOU FURTHER CERTIFY THAT YOU HAVE COMPLETED THE REGISTRATION AND SELF-CERTIFICATION REQUIREMENTS DESCRIBED IN THIS EULA.
1. Definitions
a. “CaptionCall Phone” means the CaptionCall phone provided by Sorenson, which provides access to the Services.
b. “CaptionCall Mobile Application” means Sorenson’s CaptionCall mobile application.
c. “CaptionCall Software” means the software and firmware incorporated in the CaptionCall Phone, including any subsequent versions, modifications, enhancements or updates thereof.
d. “Confidential Information” means any information relating to our business, financial affairs, current or future products or technology, trade secrets, workforce, customers or any other information that is treated or designated by us as confidential or proprietary or would reasonably be viewed as confidential or proprietary. Confidential Information does not include information that we make publicly available or that becomes known to the general public, other than as a result of a breach of an obligation by you.
e. “Federal Program” has the meaning set forth in Section 2a.
f. “IP CTS” has the meaning set forth in Section 2a.
g. “Licensed Application” means the CaptionCall Software and/or the CaptionCall Mobile Application.
h. “Products” means the CaptionCall Phone, CaptionCall Mobile Application, the Licensed Application and the Services.
i. “Services” means Sorenson’s captioning services, which are accessible through the use of the Products, and includes, but is not limited to, as applicable, telecommunication relay services (including captioned telephone services, IP-captioned telephone services, and/or voice carry over services), the transcription of the audio into captions and the transmission of the captions to you, and VoIP Services.
j. “VoIP” means voice over internet protocol.
k. “VoIP Services” means the interconnected VoIP services made available by us through the use of the Products.
2. Eligibility.
a. IP CTS. IP CTS is the Federal Communications Commission’s internet protocol captioned telephone service (“IP CTS”) program designed to provide people who are deaf or hard-of-hearing with a functionally-equivalent phone service (“Federal Program”). The Services are made available at no cost to individuals with hearing loss who meet the Federal Program’s eligibility requirements and who have completed the Self-Certification and Registration Requirements described herein. You acknowledge and agree that, in using the Services, you are subject to certain applicable FCC regulations, including, without limitation, 47 C.F.R. §§ 64.601 – 64.613 (all applicable FCC Regulations, “FCC Regulations”). If your eligibility status changes for any reason, you agree to immediately inform us, and discontinue your use of the Services if you are no longer eligible.
b. VoIP. The Products enable you to make VoIP calls to and from landline or mobile telephone numbers, as applicable, in the United States. The VoIP Service is for your individual use (whether personal or business, except as expressly set forth below) and is not transferable. Without limiting anything in this EULA, you may not allow others to use the Products to make VoIP calls. You may not use the Products for telemarketing, operating a call center, or making calls for compensation (known as “pumping minutes”). You may not resell the VoIP Services to others, or use it without live dialog, including use as a monitor, intercom, or for transcription purposes other than for eligible IP CTS calls.
3. Registration and Account.
a. Registration. You agree that registration is required for use of the Products. To register, you must provide your full name, date of birth, last four digits of your Social Security number, address, and telephone number (“Registration Data”). Subject to verification by the Administrator of the Telecommunications Relay Services Fund, you may be required to provide additional information. You agree that all Registration Data you provide is current, correct, and complete. You further agree to provide us with a current, complete, and truthful update to such information as soon as your next use of the Products if there is a change to the information you previously provided.
b. Account. In order to use the Products, you will have to create a user account, which includes the creation of a username and password. You agree to provide accurate and complete information when creating your account or when providing us with your personal information for any reason. You are solely responsible for any transactions or uses undertaken by means of such username and password and to keep such username and password protected and confidential. If you become aware of any unauthorized access to and or use of your username and password, you agree to notify us immediately. In such a case, you understand and agree that we may terminate or suspend your registered account and/or transactions undertaken through such account. You understand and agree that we may terminate or suspend your account if you fail to provide us with accurate and complete registration and account information.
4. Grant of Rights, Restrictions and Acceptable Use.
a. Grant of Rights. Subject to your full compliance with the terms and conditions of this EULA and as permitted by the accepted uses set forth below (the “Acceptable Use”), we grant you a non-exclusive, personal, non-transferable, non-sublicensable, limited right to (i) access and use the Services on a limited basis, (ii) access and use the Products solely in connection with your use of the Services; (iii) use the CaptionCall Software solely on the CaptionCall Phone; and (iv) use the CaptionCall Mobile Application solely on the qualified devices that you own or control. You will have no rights to the Products, except for the limited rights to use the Products expressly granted by this EULA. Sorenson reserves all rights in and to the Products not expressly granted to you under this EULA. You acknowledge that the Products may be terminated by us at any time, for any reason or no reason at all, with or without notice.
b. Restrictions. The rights granted herein do not allow you to use the Licensed Application on any device that you do not own or control, and except as provided in the Acceptable Use provision below, you may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the Products. You may not copy, decompile, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Products, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Products). Any attempt to do so is a violation of the rights of Sorenson and its licensors. The terms of this EULA will govern any updates or upgrades provided by Sorenson that replace and/or supplement the original Products, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
c. Acceptable Use.
(i) You agree to use the Products in the United States only, and in compliance with all applicable laws, including, without limitation, (a) the FCC regulations; (b) the laws of the state, country, or region where you (1) reside, (2) lawfully obtain the Products, (3) download the Licensed Application or updates, and/or (iv) use the Products. You further agree to use the Products exclusively to communicate with one or more individuals, in a manner that is functionally equivalent to an individual who is not deaf or hard-of-hearing communicating using voice communication services by wire or radio, and for no other purposes. You may not use the Products in any way that is illegal, fraudulent, improper, inappropriate, or in violation of this EULA. You may not use any automated means to use or manipulate the Products. In determining your compliance with these terms, we reserve the right to take into account any activities that appear suspicious, irregular, or unusual, including but not limited to: unique numbers called; call lengths; frequency of call forwarding/transferring; conference calling; short duration calls; number of calls made during a month; number of calls made to a conference calling service during a month; calls made during business hours; number of calls terminated and re-initiated consecutively that, in the aggregate, result in excessive call lengths during a specific time frame.
(ii) You agree not to engage or participate in communications or conduct of an abusive, pornographic, lewd, obscene, harassing, fraudulent, or unlawful nature while using the Products. You further agree not to behave in an abusive, harassing, aggressive, or threatening manner toward Sorenson’s representatives who provides services to you on behalf of Sorenson.
(iii) You acknowledge that state law in some jurisdictions may require you to inform all parties on a call that a communications assistant is on the call. You further acknowledge that these laws may apply if any party to a communication is located in such a state, even if you are not. In such jurisdictions it is your legal responsibility to inform other parties on the call of a communications assistant’s presence.
(iv) The Products may enable you to activate a feature that allows you to save captioning from a conversation. The saved captioning is stored on the CaptionCall Phone or on mobile device or tablet running the CaptionCall Mobile Application. The resulting recording is accessible to you, but it is not accessible to us. You agree that you bear responsibility for using the saving feature in compliance with all applicable laws, including state consent laws.
(v) We may, at our option, review your account and take further action, including suspending or terminating the Services if we determine you are using any Products contrary to this Acceptable Use provision or this EULA.
5. Privacy Policy and Technical Data.
a. Your use of our Products is subject to our Privacy Policy. By using the Products, you are consenting to the terms of the Privacy Policy and acknowledged that you have reviewed our Privacy Policy.
b. You agree that Sorenson may collect and use technical data and related information—including but not limited to, technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you (if any) related to the Licensed Applications. Sorenson may use this information, as long as it is in a form that does not personally identify you, to improve its products or to provide services to you.
6. Specific Services.
a. VoIP for CaptionCall Mobile Application. When you sign up to use the CaptionCall Mobile Application, you will receive an associated 10-digit number. Under the FCC Regulations you may transfer (or port) the 10-digit number to a provider other than us. If you already have a 10-digit number from a provider other than us but would like to use that number with the CaptionCall Mobile Application, you may port your number to us. We may be required to make contributions to the Universal Service Fund (“USF”). We reserve the right to recover our USF contributions directly from you. You agree to pay any reasonable assessment of such USF contributions.
b. E911 Emergency Calls.
(i) If you need to place an emergency call using the VoIP Service, you can dial the emergency 911 number through the CaptionCall Phone and the CaptionCall Mobile Application. To ensure your 911 call is routed to the proper emergency response center and to ensure that the emergency response personnel can send help at your physical location, you agree to the following:
(ii) IN THE EVENT THAT YOU USE THE CAPTIONCALL PHONE, CAPTIONCALL MOBILE APPLICATION, OR THE SERVICES TO MAKE OR ATTEMPT TO MAKE A 911 CALL, SORENSON IS NOT LIABLE FOR ANY CLAIM, DAMAGE, OR LOSS ARISING FROM YOUR USE OF SUCH PRODUCTS OR SERVICE. SPECIFICALLY AND WITHOUT LIMITING ANYTHING IN THIS EULA, SORENSON IS NOT LIABLE FOR ANY DEATH, PERSONAL INJURY, PROPERTY DAMAGE, OR OTHER HARM, INCLUDING BUT NOT LIMITED TO: MISINTERPRETATION, MISTAKES, INTERRUPTIONS, DELAYS, TRANSMISSION ERRORS, NETWORK OUTAGES, FAILURES, DEFECTS, TECHNICAL DIFFICULTIES, ACTS OF GOD, OR OTHER OCCURRENCES, REGARDLESS OF THE SOURCE OF THE OCCURRENCE, OR RELEASE TO A PUBLIC SAFETY ANSWERING POINT, DESIGNATED STATEWIDE DEFAULT ANSWERING POINT, APPROPRIATE LOCAL EMERGENCY AUTHORITY, EMERGENCY MEDICAL SERVICE PROVIDER OR EMERGENCY DISPATCH PROVIDER, PUBLIC SAFETY, FIRE SERVICE OR LAW ENFORCEMENT OFFICIAL, OR HOSPITAL EMERGENCY OR TRAUMA CARE FACILITY OF USER INFORMATION RELATED TO 911 CALLS OR THE PROVISION OF EMERGENCY SERVICES. WE DO NOT WARRANT THAT, IF YOU PLACE A 911 CALL USING THE PRODUCTS, A CONNECTION WILL BE ESTABLISHED, THAT ANY CONNECTION ESTABLISHED WILL BE WITH THE PROPER EMERGENCY SERVICE PROVIDER; THAT YOUR CORRECT PHYSICAL ADDRESS WILL BE ELECTRONICALLY AVAILABLE TO THE EMERGENCY SERVICE PROVIDER, OR THAT CAPTIONING SERVICES WILL NOT SLOW THE RESPONSE TIME OR THE RELAY OF EMERGENCY INFORMATION.
YOU REPRESENT AND ACKNOWLEDGE THAT YOU’VE RECEIVED AND AGREED TO THE ACKNOWLEDGEMENT OF E911 LIMITATIONS IN VOIP SERVICES, WHICH IS INCORPORATED HEREIN BY REFERENCE.
7. Term and Termination, Modification and Suspension.
a. Term and Termination. This EULA takes effect upon your first operation of the CaptionCall Phone or download of the CaptionCall Mobile Application. We may terminate the Services and this EULA at any time. The Services and this EULA will also automatically terminate if you fail to comply with any term or condition of this EULA. If you do not use the CaptionCall Mobile Application for a period of nine (9) months, we reserve the right to cancel your VoIP Services account associated with the CaptionCall Mobile Application and you will no longer be able to make calls using the CaptionCall Mobile Application. Upon termination of this EULA, you will cease all use of the Products, return to us the CaptionCall Phone, destroy all documentation, and uninstall the CaptionCall Mobile Application. All provisions of this EULA which, by their nature, should survive termination shall survive termination, including Sections 1, 7a, 6b(ii) 8, 9b, 9c, 10, 11, 13 and 14.
b. Modification. We may update or change the Services or the terms set forth in this EULA from time to time, without notice or liability. Accordingly, we recommend that you review this EULA on a regular basis. Your continued use of the Services after the EULA has been updated or changed constitute your acceptance of the revised EULA. If you do not agree with any such modification, you must cease using the Services; otherwise by your ongoing use of the Services, you are constructively deemed to have accepted the modifications. Without limiting the foregoing, if we make changes to the EULA that materially negatively affects your use of the Services, we may post notice or notify you via email, in the Licensed Application or our website(s) of any such change.
c. Suspension. Notwithstanding anything to the contrary in this EULA, we have the right, upon notice to you, to immediately terminate, suspend, or amend the Services, without liability: (i) to comply with any order issued or proposed to be issued by any governmental agency; (ii) to comply with any provision of law, any standard of participation in any government program, or any accreditation standard; or (iii) if performance of any term of this EULA by either party would cause it to be in violation of law, or would jeopardize its tax-exempt status. In addition, we may suspend access to the Services, in whole or in part, immediately pending your cure of any breach of this EULA, or in the event we determine in our sole discretion that access to or use of all or a portion of the Services by you may jeopardize the Products or the confidentiality, privacy, security, integrity or availability of information within the Services, or that you have violated or may violate this EULA, or have jeopardized or may jeopardize the rights of any third party, or that any person is or may be making unauthorized use of the Services with any credentials assigned to you. Our election to suspend all or a portion of the Services shall not waive or affect our rights to terminate this EULA as permitted under this EULA.
8. Confidential Information. You may not disclose our Confidential Information to any other person, and you may not use any Confidential Information except for the purposes of using the Services. You will hold all Confidential Information in strict confidence and take all measures necessary to prevent unauthorized copying, use, or disclosure of Confidential Information, and to keep the Confidential Information from falling into the public domain or into the possession of persons not bound to maintain its confidentiality. You will promptly advise us in writing of any improper disclosure, misappropriation, or misuse of the Confidential Information by any person, which may come to your attention. You agree that we will suffer irreparable harm if you fail to comply with your obligations set forth in Section 8, and you further agree that monetary damages will be inadequate to compensate us for any such breach. Accordingly, you agree that we will, in addition to any other remedies available to us at law or in equity, be entitled to the issuance of injunctive relief to enforce the provisions hereof, immediately and without the necessity of posting a bond.
9. Warranty and Disclaimer.
a. Warranty. We warrant that for a period of ninety (90) days (“Warranty Period”) after delivery of the CaptionCall Phone to you, and under normal use by the original end-user purchaser, the CaptionCall Phone (including the Licensed Applications provided therewith) will be free from defects in materials and workmanship under normal use and will perform in substantial accordance with the Documentation. This limited warranty applies only to the CaptionCall Phone and not to any third-party products, even if the product is sold with or packaged with CaptionCall branded products. Our entire liability and your exclusive remedy with respect to the CaptionCall Phone will be: (i) we may repair any non-conforming CaptionCall Phone; (ii) we may replace any non-conforming CaptionCall Phone with a replacement CaptionCall Phone or applicable Licensed Application similar in functionality or user capabilities; or (iii) if we are unable to repair or deliver a replacement CaptionCall Phone, you may return the CaptionCall Phone, upon which the fees you paid to Sorenson for such Product, if any, will be refunded and the EULA will be terminated. The replacement CaptionCall Phone or replacement part(s) are subject to the remaining warranty term for the original CaptionCall Phone or ninety (90) days from the date of installation, whichever is longer. Any repairs attempted or made to the CaptionCall Phone by someone other than Sorenson will void all applicable warranties.
b. Disclaimer. EXCEPT AS EXPRESSLY STATED IN THE FOREGOING PARAGRAPH, THE PRODUCTS, SERVICES, AND LICENSED APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW WE AND OUR AFFILIATES AND OURS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (THE “SORENSON PARTIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TITLE AND NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SORENSON DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE PRODUCTS, SERVICES, AND LICENSED APPLICATIONS WILL MEET YOUR REQUIREMENTS, OR THAT THE PRODUCTS, SERVICES, AND LICENSED APPLICATIONS WILL BE UNINTERRUPTED OR ERROR-FREE, RELIABLE, SECURE, WITHOUT DELAY, CURRENT, COMPLETE OR THAT DEFECTS IN THE PRODUCTS, LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SORENSON OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. YOU EXPRESSLY AGREE THAT YOUR USE OF THE PRODUCTS, LICENSED APPLICATIONS AND SERVICE IS AT YOUR SOLE RISK.YOU ARE SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE SERVICES OR THE INFORMATION IN THE SERVICES, INCLUDING INACCURATE OR INCOMPLETE INFORMATION. SPECIFICALLY, THE PRODUCTS AND SERVICES WILL NOT WORK DURING A POWER OUTAGE BECAUSE THEY ARE DEPENDENT UPON THE INTERNET. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO IN THESE JURISDICTIONS THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
c. Carrier Lines and Lost Data. YOU ACKNOWLEDGE THAT ACCESS TO THE SERVICES WILL BE PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS LINES, AND INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, “CARRIER LINES”) OWNED, MAINTAINED, AND SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, AND INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND OUR CONTROL. WE ASSUME NO LIABILITY FOR, OR RELATING TO, THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS TRANSMITTED ON THE CARRIER LINES, OR ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS. YOU HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE. WE ARE NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH THE SERVICES.
10. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL SORENSON PARTIES BE LIABLE OR RESPONSIBLE FOR ANY PERSONAL INJURY, PROPERTY DAMAGE, OR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCTS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF THE SORENSON PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. WE DISCLAIM ANY AND ALL LIABILITY FOR ERRONEOUS TRANSMISSIONS AND LOSS OF SERVICE RESULTING FROM COMMUNICATION FAILURES BY TELECOMMUNICATION SERVICE PROVIDERS OR THE SERVICES. IN NO EVENT WILL OUR OR THE SORENSON PARTIES TOTAL LIABILITY TO YOU ARISING OUT OF THIS EULA EXCEED THE LESSER OF THE AMOUNT OF FEES ACTUALLY PAID BY YOU UNDER THIS EULA FOR THE ONE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11. Indemnification. You will indemnify, defend, and hold harmless us and other users, and our and their respective affiliates, officers, directors, employees, representatives, partners, licensors and agents from and against any claims, actions, proceedings, suits, damages, costs, liabilities, disbursements, settlements, penalties, fines, losses or expenses, including reasonable attorneys’ fees, arising out of or relating to: (a) your access to or use of the Products; (b) any breach by you of any representations, warranties or covenants contained in this EULA; (c) the actions of any person gaining access to the Services under credentials assigned to you; (d) the actions of anyone using credentials assigned to you that adversely affects the Services; (e) your violation of any rights of a third party; (f) your negligent or willful misconduct; or any emotional or physical harm, including death, to you or any third party resulting from your access to or use of the Products. Your indemnification obligations in this EULA are cumulative, and are not intended to, nor do they, limit your indemnification obligations elsewhere in this EULA or at law, even if such obligations arise or are occasioned or triggered by a single assertion, claim, circumstance, action, event or transaction.
12. Third Party App Store Terms. The following applies if you downloaded the CaptionCall Mobile Application from or accessed the CaptionCall Mobile Application through the Apple App Store (the “Third Party App Store”):
a. You acknowledge and agree that (i) this EULA is concluded between you and Sorenson only, and not the Third Party App Store, and (ii) Sorenson, not the Third Party App Store, is solely responsible for the CaptionCall Mobile Application and contents thereof. Your use of the CaptionCall Mobile Application must comply with the Third Party App Store Terms of Service. Any questions, complaints or claims with respect to the Application should be directed to Sorenson’s customer support team at [email protected].
b. You acknowledge that the Third Party App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the CaptionCall Mobile Application.
c. In the event of any failure of the CaptionCall Mobile Application to conform to any applicable warranties set forth herein, you may notify the Third Party App Store, and the Third Party App Store will refund the purchase price paid to the Third Party App Store by you for the CaptionCall Mobile Application (if any), and to the maximum extent permitted by applicable law, the Third Party App Store will have no other warranty obligation whatsoever with respect to the CaptionCall Mobile Application. As between Sorenson and the Third Party App Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to the warranty set forth herein will be the sole responsibility of Sorenson.
d. You and Sorenson both acknowledge that, as between Sorenson and the Third Party App Store, the Third Party App Store is not responsible for addressing any of your claims or any claims of any third party relating to the CaptionCall Mobile Application or your possession and/or use of the CaptionCall Mobile Application, including, but not limited to: (i) product liability claims; (ii) any claim that the CaptionCall Mobile Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
e. You and Sorenson acknowledge that, in the event of any third-party claim that the CaptionCall Mobile Application or your possession and use of the CaptionCall Mobile Application infringes that third party’s intellectual property rights, as between Sorenson and the Third Party App Store, Sorenson, not the Third Party App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this EULA.
f. You and Sorenson acknowledge and agree that the Third Party App Store, and their subsidiaries, are third-party beneficiaries of this EULA as related to your use of the CaptionCall Mobile Application, and that, upon your acceptance of the terms and conditions of this EULA, the Third Party App Store will have the right (and will be deemed to have accepted the right) to enforce this EULA as related to your use of the CaptionCall Mobile Application against you as a third-party beneficiary thereof. Without limiting any other terms of this EULA, you must comply with all applicable third-party terms of agreement when using the CaptionCall Mobile Application.
13. Dispute Resolution.
PLEASE READ THIS SECTION CAREFULLY. THIS SECTION CONTAINS AN AGREEMENT TO ARBITRATE, WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION AND AN AGREEMENT THAT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
a. Pre-Arbitration Dispute Resolution. We believe that most customer concerns can be resolved quickly and to your satisfaction by emailing customer support at [email protected]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute (“Notice“). The Notice to us should be sent to address provided in Section 14 of this EULA (“Notice Address“). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If we and you do not resolve the claim within 60 calendar days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator during the arbitration proceeding.
b. Arbitration. EXCEPT FOR REMEDIES SOUGHT BY US UNDER ARTICLE 11, ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS EULA OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS EULA TO ARBITRATE, SHALL BE SUBJECT TO FINAL AND BINDING ARBITRATION GOVERNED BY THE FEDERAL ARBITRATION ACT (9 U.S.C. §§ 1 ET SEQ.). THE ARBITRATION SHALL BE CONDUCTED BEFORE A SINGLE ARBITRATOR IN ACCORDANCE WITH THE COMMERCIAL DISPUTE RESOLUTION PROCEDURES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES OF THE AMERICAN ARBITRATION ASSOCIATION (THE “AAA”) THEN IN EFFECT, AS MODIFIED BY THIS EULA, AND WILL BE ADMINISTERED BY THE AAA. JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE EITHER PARTY FROM SEEKING TEMPORARY OR PRELIMINARY INJUNCTIVE RELIEF IN CONNECTION WITH AN ARBITRABLE CONTROVERSY, BUT ONLY UPON THE GROUND THAT THE AWARD TO WHICH THAT PARTY MAY BE ENTITLED MAY BE RENDERED INEFFECTUAL WITHOUT SUCH PROVISIONAL RELIEF. Any part of this EULA to arbitrate that shall prove to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision of this EULA to arbitrate, and such other provisions shall remain in full force and effect.
c. Prohibition of Class and Representative Actions and Non-Individualized Relief. WE AND YOU AGREE THAT WE EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF, CLASS MEMBER, OR PRIVATE ATTORNEY GENERAL IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE-ATTORNEY-GENERAL PROCEEDING. BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIM WITH YOUR CLAIMS OR OUR CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY REPRESENTATIVE, CLASS, OR PRIVATE-ATTORNEY-GENERAL PROCEEDING. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
14. Miscellaneous.
This EULA will be governed by and construed in accordance with the laws of the State of Utah, without reference to its principles of conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not be applicable hereto. Without limiting the preceding language, you agree to submit, for purposes of this EULA, to the jurisdiction and venue of the state and federal courts of Utah. This EULA constitutes the entire agreement between you and Sorenson with respect to the Products, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Sorenson with respect thereto. Some of our Products are subject to additional terms, and by using the Products, you agree to be bound by those additional terms to the extent you access such Products. Any such supplemental terms will be deemed to form a part of these EULA and in the event the supplemental terms conflict with this EULA, the supplemental terms will control.
The section and paragraph headings in this EULA are for convenience of reference only and will not affect their interpretation. Except as expressly provided elsewhere in this EULA, this EULA 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 Sorenson’s behalf may only be given by an authorized signatory of Sorenson. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this EULA, 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 EULA will otherwise remain in full force and effect and enforceable.
Notices provided to Sorenson under this EULA will be sent to:
Sorenson Communications, LLC
4192 S. Riverboat Road, Salt Lake City, UT 84123
Attn: Legal Department
Unless otherwise specified in this EULA, all notices under this EULA 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 recognized overnight delivery service. You hereby consent to our use of all means of communication available to us to contact you.
We will not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of this EULA if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond our control, such as, without limitation, severe weather and storms; earthquakes or other natural occurrences; strikes or other labor unrest; power failures; pandemics, nuclear or other civil or military emergencies; acts of legislative, judicial, executive, or administrative authorities; or any other circumstances that are not within our reasonable control.
Our Services include, in some cases, the ability to communicate to you. You may opt out of receiving certain, but not all, communications by emailing us at [email protected] or by clicking the “unsubscribe” link to the extent available in a communication you receive from us. You may update your communication preferences by visiting the Services where you have provided contact information. If you do not provide us with accurate information, we cannot be held liable if we fail to notify you. If we are required by state or federal law to notify you of certain events, you agree that the posting of such notice on the Services or delivering them to you through an electronic communication in accordance with this EULA will be sufficient for all such purposes, to the maximum extent allowable by law.
This EULA inures to and is binding upon the parties’ successors and permitted assignees. You will not assign this EULA without Sorenson’s prior written consent. You represent and warrant that by using the Products, your use of the Products will not violate any embargoes, sanctions, trade restrictions or similar restrictions issued by any applicable governmental entity, (ii) you will not export or re-export the Products without the prior written consent of Sorenson and without the appropriate United States and foreign government licenses and (iii) you will comply with, regulations of agencies of the U. S. Government regarding export and re-export restrictions on software, including, but not limited to, the Export Administration Regulations on the U.S. Department of Commerce.
Last Updated: July 2024
