HighWired
Technologies, Inc.
Terms and Conditions
1. Overview
1.1 What This Agreement Covers
These Terms and Conditions constitute the agreement between
you and HighWired Technologies, Inc. (“HighWired”)
regarding your access to and use of any of the services made available to you
by HighWired through the sites located at www.myfunvoice.com,
www.twoskoops.com, www.highwiredinc.com, www.mytelus.com/fungreetings (such
Web sites and services are referred to in this Agreement, collectively, as the
“HighWired Services”). In order to use the HighWired Services you
must read and accept this Agreement.
Your use of any of the HighWired Services constitutes your acceptance of
every term and condition set forth in this Agreement.
1.2 Right To Modify
HighWired reserves the right to modify or amend this
Agreement at any time for any reason, and without prior notice, by posting
amended terms on the Site. Your
continued use of the HighWired Services after the posting of any such
modification or amendment indicates your acceptance of the Agreement as
modified or amended.
1.3 Member Eligibility
When you register to use the HighWired Services, HighWired
collects certain personal information about you. You agree that HighWired may use any
information HighWired obtains about you in accordance with the provisions of
HighWired’s Privacy Policy. By your use of the HighWired Services, you
are representing and warranting that (a) all account and billing information
you submit is true, accurate, current and complete; (b) you will maintain this
information by promptly updating information to keep it true, accurate, current
and complete; (c) you are not barred from receiving the Services under the laws
of the United States or any other applicable jurisdiction; (d) you are of legal
age to form a binding contract, or you are 14 years of age or older and your
legal parent or guardian has agreed to this Agreement on your behalf; and (e)
your use of the HighWired Services does not and will not violate any applicable
laws or regulations. Your account may be
terminated immediately if HighWired believes that you have not complied with
any term or condition of this Agreement.
Use of the HighWired Services is void where prohibited. HighWired may refuse to provide the Service
without prior notice to any user for any or no reason.
1.4 Governing Law
This Agreement will be governed by and construed in
accordance with the laws of the State of
1.5 Service Description
The Service provides a Web-based application that enables
users to create and deliver personalized messages. Examples include but are not limited to
outgoing voicemail greeting, web-embeddable messages, phone messaging and voice
email. HighWired reserves the right to
modify or discontinue the HighWired Services with or without notice to
you.
2. User Account
2.1 User Conduct
You agree not to use the HighWired Services:
In addition, in connection with your
use of the HighWired Services you agree to comply with all applicable local
rules including but not limited to rules regarding online conduct and
acceptable content. Specifically, you agree to comply with all applicable laws
regarding the transmission of technical data exported from the
2.2 Monitoring
While HighWired has the right to monitor activity and user
created content associated with the HighWired Services, HighWired is not
obligated to do so. Since HighWired may
not have the ability to control or actively monitor content, HighWired does not
guarantee the accuracy, integrity, or quality of any content delivered as part
of the HighWired Services.
HighWired does not guarantee any of the third party hardware
or software used by you to create your voice recording. HighWired cannot monitor the quality of any
user created audio content. HighWired
cannot guarantee the quality of any audio content created by the HighWired
Services that includes user created audio content.
2.3 Copyright Infringement
HighWired respects the intellectual property rights of
others. Accordingly, HighWired has a
policy of removing user-generated content that violates copyright law,
suspending access to the HighWired Services to any user who uses the Service in
violation of copyright law, and/or terminating in appropriate circumstances the
account of any user who uses the HighWired Services in violation of copyright
law. Pursuant to Title 17 of the United
States Code, Section 512, HighWired has implemented procedures for receiving
written notification of claimed copyright infringement and for processing such
claims in accordance with such law. If
you believe your copyright is being infringed by a user of the HighWired
Services, please provide written notice to the following HighWired agent for
notice of claims of copyright infringement.
Robert
Ortalda
HighWired
Technologies, Inc.
800-992-4225, option 3
Your written notice must provide HighWired with all of the
following information: (a) a physical or electronic signature of a person
authorized to act on behalf of the owner of the exclusive right that is
allegedly infringed; (b) identification of the copyrighted work claimed to have
been infringed, or, if multiple copyrighted works are covered by a single
notification, a representative list of such works; (c) identification of the
material that is claimed to be infringed or to be the subject of infringing
activity and that is to be removed or access to which is to be disabled, and
information reasonably sufficient to permit HighWired to locate the material;
(d) information reasonably sufficient to permit HighWired to contact you, such
as an address, telephone number, and if available, an electronic mail address
at which you may be contacted; (e) a statement that you have a good faith
belief that use of the material in the manner complained of is not authorized
by the copyright owner, its agent, or the law; and (f) a statement that the
information in the notification is accurate, and under penalty of perjury, that
you are authorized to act on behalf of the owner of an exclusive right that is
allegedly infringed. For this notification to be effective, you must provide it
to HighWired in writing at the address above this paragraph.
2.4 Account Termination
You agree that HighWired may, with or without cause,
immediately terminate your HighWired account and access to the HighWired
Services without prior notice. Without limiting the foregoing, the following
will lead to a termination by HighWired of a user’s use of the HighWired
Services (a) breaches or violations of this Agreement or other incorporated
agreements or guidelines, (b) requests by law enforcement or other government
agencies, (c) a request by you (self-initiated account deletions), (d)
unexpected technical issues or problems, and (e) extended periods of
inactivity. Termination of your HighWired account includes (a) removal of
access to all offerings within the HighWired Services, (b) deletion of all
related information, files and content associated with or inside your account
(or any part thereof), and (c) barring further use of the HighWired Services.
Further, you agree that all terminations shall be made in HighWired’s sole
discretion and that HighWired shall not be liable to you or any third-party for
any termination of your account or access to the HighWired Services.
2.5 Canceling Your Account
You may wish to cancel your account with HighWired. While HighWired does not own or manage your
phone number or email service, canceling your account with HighWired will
ensure that charges associated with, and deliveries of, the HighWired Services
will be blocked from the phone number or email address that you specify and can
prove ownership of.
You may cancel your HighWired Services account at any time
by notifying us of your intent to cancel by going to the following Web address:
www.highwiredinc.com/cancel or
by calling 800-992-4225. In most cases HighWired will not need to contact you
regarding account cancellation, but if for any reason it becomes necessary, you
hereby authorize HighWired to make such contact.
Future registrations using your phone number and email
address will be allowed following the cancellation of your account, but the
HighWired Services will recognize you as a new registrant and will require you
to provide all of your information.
3. Billing
3.1 Charges
You agree to pay all charges for
your use of the HighWired Services at the prices then in effect. All charges
will be exclusive of value added ("VAT"), sales or other taxes,
except as required by law. HighWired reserves the right to change prices or
institute new charges for access to or use of the HighWired Services. All
changes will be posted by HighWired on HighWired’s Web site and you are
responsible for regularly reviewing such pricing information to obtain timely
notice of such changes. Continued use of the HighWired Services after changes
are posted constitutes your acceptance of the prices as modified by the posted
changes.
3.2 Recurring HighWired Services
Charges for recurring services are
to be paid on a regular basis (as defined by your billing package) in the
currency in which billed. If the payment method for your HighWired account is
by credit card and HighWired does not receive payment from the card issuer or
its agents, you agree to pay all amounts due upon demand by HighWired. Each
time you use the HighWired Services, or allow or cause the HighWired Services
to be used, you agree and reaffirm that HighWired is authorized to charge your
designated card. Your card issuer's agreement governs your use of your
designated card in connection with the HighWired Services, and you must refer
to such agreement (not this Agreement) with respect to your rights and
liabilities as a cardholder. You agree that HighWired may (at its option)
accumulate charges incurred during your regular billing cycle and submit them
as one or more aggregate charges during or at the end of each cycle, and that
HighWired may delay obtaining authorization from your card issuer until
submission of the accumulated charge(s). This means that a single charge on
your credit card statement may represent the accumulation of two or more
charges.
3.3 Advance Payments
Fees for single, package and
subscription services must be paid in advance and are non-refundable. You agree
that HighWired may submit charges for any subscription service fee on a regular
basis (as defined by your billing package), without further authorization from
you, until you provide prior notice that you have terminated this authorization
or wish to change your designated card. Such notice will not affect charges
submitted before HighWired reasonably could act on your notice. If you have any
question regarding any charges that have been applied to your account, you must
contact HighWired’s Customer Service Department at billing@highwiredinc.com
within 30 days of the charge date. If you fail to challenge any charge within such
time period, you will be deemed to have accepted such charge. Failure to use your account will not be
deemed a basis for refusing to pay any charges submitted by HighWired in
accordance with this Agreement.
3.4 Special Offers
If you subscribed for HighWired
Services pursuant to a special offer granting you a free trial period, your
initial service fee will be immediately charged to your credit or debit card,
without further authorization from you, upon the expiration of such free trial
period, unless you provide prior notice (in accordance with HighWired’s account
cancellation policies – section 2.5 above) that you have terminated this
authorization. Such notice will not affect charges submitted before HighWired
reasonably could act on your notice.
If you subscribed for HighWired
Services pursuant to a special offer granting a pre-paid discount for a fixed
period of time, your pre-paid fees are payable in advance and are COMPLETELY
NON-REFUNDABLE. In addition, your initial service fee immediately following
your pre-paid period will be PRE-AUTHORIZED AGAINST YOUR CREDIT CARD OR DEBIT
CARD LIMIT and will be immediately charged to your credit or debit card,
without further authorization from you, upon the expiration of such pre-paid
period, unless you provide prior notice (in accordance with HighWired’s account
cancellation policies – section 2.5 above) that you have terminated this
authorization. Such notice will not affect charges submitted before HighWired
reasonably could act on your notice.
3.5 Failure To Pay
HighWired reserves the right to
suspend or terminate your HighWired account without notice upon rejection of
any card charges or if your card issuer (or its agent or affiliate) seeks
return of payments previously made to HighWired when HighWired believes you are
liable for the charge. Such rights are in addition to and not in lieu of any
other legal rights or remedies available to HighWired.
4. HighWired Services
4.1 Ownership
HighWired and/or its licensors and
service providers wholly own all programs, services, processes, designs,
software, technologies, trademarks, trade names, inventions and materials
comprising the HighWired Services.
4.2 Trademarks
HighWired, the HighWired logo, MyFunVoice, TwoSkoops and
other logos and names displayed HighWired Services are trademarks of HighWired
or other entities. You agree not to display or use these trademarks in any
manner without HighWired’s prior, written permission.
4.3 Postings
The HighWired
Services may provide you and other users the opportunity to submit, post, and
display information, ideas, opinions, and other materials (collectively, “Postings”). Postings do not reflect the views of
HighWired. HighWired does not pre-screen
Postings and you agree that you are solely responsible for all of your
Postings. HighWired is not required to
host, display, or distribute any Postings, and may remove at any time or refuse
any Postings. HighWired is not
responsible for any loss, theft, or damage of any kind to any Postings and
assumes no responsibility or liability arising from the content of any such
Postings. If you choose to submit any
Postings, you grant to HighWired and HighWired’s affiliates, representatives,
and assigns an irrevocable, perpetual, non-exclusive, fully-paid, world-wide,
license (sublicensable through multiple tiers) to use, distribute, reproduce,
modify, adapt, publish, translate, publicly perform, and publicly display your
Postings (in whole or in part) in any format or medium now known or later
developed (including incorporating the Postings into any other product or
service). You represent and warrant that
your Postings will not infringe the intellectual property, privacy, or any
other proprietary, legal, or moral rights of any third party.
4.4 Cookies
HighWired may use cookies (which are small amounts of data
sent from a Web server to your browser that are stored on your computer’s hard
drive) to keep track of your use of the HighWired Services, to validate your
identity, to remember your password and preferences, to tailor the HighWired
Services to meet your personal interests, and to improve the quality of the
HighWired Services. In addition, third parties who place advertisements on or
through the HighWired Services may also collect information through cookies to
ensure that their advertising systems and technologies work properly and to
allow them to track responses to their advertisements. Cookies set by these
third parties are governed by the privacy policies of those third parties.
Generally, you can set your browser not to accept cookies or to notify you if
you are sent a cookie, giving you the opportunity to choose whether or not to
accept the cookie. Please note that if you do set your browser not to accept
cookies, certain areas of the HighWired Services may not function properly.
4.5 Security
HighWired has implemented industry-standard measures
(including Secure Socket Layer encryption) to ensure the security of your
information. Unfortunately, however, no
data transmission over the Internet can be guaranteed to be 100% secure. As a
result, while HighWired strives to protect your information, HighWired cannot
guarantee its security.
You are entirely responsible for maintaining the
confidentiality of your account log in information, and are entirely responsible
for all activities that occur under your account with or without your
knowledge. If you knowingly provide your login information to another person,
your account privileges may be suspended temporarily or terminated. You agree
to immediately notify HighWired of any unauthorized use of your account or any
other breach of security. HighWired cannot and will not be liable for any loss
or damage arising from your failure to comply with this section.
5. General
5.1 Disclaimer of Warranties
YOU UNDERSTAND AND
AGREE THAT THE HIGHWIRED SERVICES ARE PROVIDED "AS-IS" AND THAT YOUR
USE OF THE HIGHWIRED SERVICES IS AT YOUR SOLE RISK. HIGHWIRED
EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
WITH RESPECT TO THE HIGHWIRED SERVICES (INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE,
AND NON-INFRINGEMENT). HighWired
ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE
TO STORE ANY CONTENT OR PERSONALIZATION SETTINGS. YOU ARE RESPONSIBLE FOR
OBTAINING ACCESS TO THE HIGHWIRED SERVICES, AND THAT ACCESS MAY INVOLVE THIRD-PARTY FEES (SUCH AS
INTERNET SERVICE PROVIDER OR AIRTIME CHARGES). YOU ARE RESPONSIBLE FOR THOSE
FEES, INCLUDING THOSE FEES ASSOCIATED WITH THE DISPLAY OR DELIVERY OF
ADVERTISEMENTS. IN ADDITION, YOU MUST PROVIDE AND ARE RESPONSIBLE FOR ALL
EQUIPMENT NECESSARY TO ACCESS THE SERVICE.
HIGHWIRED MAKES NO WARRANTY THAT (i) THE HIGHWIRED SERVICES
WILL MEET YOUR REQUIREMENTS, (ii) THE HIGHWIRED SERVICES WILL BE UNINTERRUPTED,
TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE
OF THE HIGHWIRED SERVICES WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY
PRODUCTS, HIGHWIRED SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR
OBTAINED BY YOU THROUGH THE HIGHWIRED SERVICES WILL MEET YOUR EXPECTATIONS, AND
(V) ANY ERRORS IN THE HIGHWIRED SERVICES WILL BE CORRECTED. ANY MATERIAL
DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE HIGHWIRED SERVICES IS
DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE
DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR
WRITTEN, OBTAINED BY YOU FROM HIGHWIRED OR THROUGH OR FROM THE HIGHWIRED
SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY,
SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. To the extent that HIGHWIRED may not, as a matter of
applicable law, disclaim any implied warranty, the scope and duration of such
warranty shall be the minimum permitted under such applicable law.
5.2
Limitation of Liability
YOU EXPRESSLY UNDERSTAND
AND AGREE THAT IN NO EVENT WILL HIGHWIRED OR ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS,
SUBSIDIARIES, AFFILIATES, AGENTS, OR LICENSORS BE LIABLE UNDER ANY THEORY OF
LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING
BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER
INTANGIBLE LOSSES (EVEN IF HIGHWIRED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES)
ARISING FROM OR IN ANY WAY RELATING TO THE HIGHWIRED SERVICES. IN ADDITION, IN
NO EVENT WILL HIGHWIRED’S OR ITS
OFFICERS’, EMPLOYEES’, DIRECTORS’, SHAREHOLDERS’, PARENTS’, SUBSIDIARIES’,
AFFILIATES’, AGENTS’, OR LICENSORS’ TOTAL CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES
ARISING FROM OR IN ANY WAY RELATING TO THE HIGHWIRED SERVICES DAMAGES EXCEED US
$100. SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OF THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY
TO YOU. To the extent that HIGHWIRED may not, as a matter of applicable law,
limit its liabilities, the extent of HIGHWIRED’S liability shall be the minimum
permitted under such applicable law.
5.3 Indemnification
You agree to indemnify and otherwise hold harmless
HighWired, and its officers, employees, agents, subsidiaries, affiliates and
other partners from and against any and all claims,
liabilities, damages, losses, costs, expenses, fees (including reasonable
attorneys’ fees) that such parties may incur as a result of or arising from (i) any use or alleged use of the
HighWired Services using your account information, whether or not authorized by
you; (ii) the upload or recording of a user’s voice or other audio under your
account; (iii) any breach of your warranties which are contained in this
Agreement; or (iv) any other matter relating to your use of the HighWired
Services.
5.4 Headings
The section titles of this Agreement are displayed for
convenience only and have no legal effect.
5.5 Notices
Please send any questions or comments, or report violations
of this Agreement to:
HighWired Technologies, Inc.
copyright@highwiredinc.com
5.6 Waivers
The failure of HighWired to exercise or enforce any right or
provision of this Agreement shall not constitute a waiver of such right or
provision.
5.7 Severability
If any provision of this Agreement is found by a court of
competent jurisdiction to be invalid, you nevertheless agree that the court
should endeavor to give effect to the intentions of HighWired and you as
reflected in the provision, and that the other provisions of this Agreement
remain in full force and effect.
5.8 Limitation of Claims
You agree that regardless of any statute or law to the
contrary, any claim or cause of action arising out of or related to use of the
HighWired Services or this Agreement must be filed within one (1) year after
such claim or cause of action arose or be forever barred.
5.9 Survival
The terms of this Agreement shall remain in full force and
effect notwithstanding any termination of your use of the HighWired Services.
5.10 Entire Agreement
This Agreement, together with the
terms of any end user license agreement to which you agree when downloading any
software that HighWired makes available through the HighWired Services and any
additional terms to which you agree when using particular elements of the
HighWired Services,
constitutes the entire agreement between you and HighWired with respect to the
subject matter thereof and govern your use of the HighWired Services,
superseding any prior agreements between you and HighWired with respect to such
subject matter.
5.11 Electronic Disclosure and Consent
When you visit the HighWired Web site or send e-mails to
HighWired, you are communicating with HighWired electronically. You consent to receive communications from
HighWired electronically. HighWired will
communicate with you by e-mail or by posting notices on the HighWired Web
site. You agree that all agreements,
notices, disclosures and other communications that HighWired provides to you
electronically satisfy any legal requirement that such communications be in
writing.