Our Terms of Service for Fax Broadcasting
1.1Opfx, Inc. herein Openfax will provide Openfax Communications Services (“Services”), as amended from time to time, to the Openfax customer (“Customer”) in consideration of payment based on the rates specified herein, and the promises contained in this Agreement. [Customer and Openfax hereinafter collectively may be known as ‘the parties.”]
1.2 Services shall be provided to Customer in accordance with Customer’s instructions that are properly formatted and transmitted by Customer in accordance with the current published documentation of Openfax, which, in addition to the terms hereof, shall be located at www.openfax.com (the “Openfax Web Site”). Openfax is not responsible, and disclaims any intention, to provide or comply with any special instructions, additional specifications, or requirements not listed in published documentation pertaining to the Services.
2.0 TERM AND MINIMUM COMMITMENT
2.1 Either party may terminate this Agreement at any time in the event that the other party breaches any provision of this Agreement, in any material respect, and fails to cure such breach within thirty (30) days after receipt of written notice of such breach. Notwithstanding the foregoing, Openfax may terminate this Agreement and/or suspend the provision of Services immediately for illegal, fraudulent or improper use of the Service (including without limitation Customer’s use of the Services in contravention of Article 5), if any portion of an invoice remains unpaid when due (including without limitation any Minimum Term Commitment shortfall amount) or for breach, not subject to cure. Openfax shall not be liable to Customer or any third party should Openfax exercise its right to discontinue Services, in whole or in part, or terminate this Agreement pursuant to this Section 2.1.
2.2 In the event that Customer terminates this Agreement prior to the end of the Initial Term or any Renewal Term (not due to breach by Openfax) or if Openfax terminates this Agreement due to Customer’s breach, Customer shall pay to Openfax as liquidated damages, but not as a penalty, an amount equal to the shortfall resulting from Customer’s failure to meet its Minimum Term Commitment, which amount shall represent a reasonable estimate of the probable loss to Openfax.
3.0 INSTALLATION AND TRAINING
3.1 Installation and training are the sole responsibility of Customer unless purchased separately from Openfax.
4.0 PAYMENT; TERMS AND RATES
4.1 Openfax reserves the right, in its sole discretion, to change or institute new or additional charges for access to or use of Services at any time upon not less than thirty (30) days notice to its customers in accordance with the terms of Section 7.11 hereof.
4.2 The providing of Services under this Agreement is subject to credit verification and acceptance by Openfax. Openfax may, in its sole discretion, request advance payment, in whole or in part, from Customer or change its payment terms at any time. Charges incurred on Customer’s account will be deducted from any prepayment made to Openfax. Prepayment is non-refundable and must be used for services. Openfax may cancel or re-schedule orders if Openfax determines, in its sole discretion, that Customer’s financial condition or previous payment record warrants such change.
4.3 If Charges for use of Services are invoiced at the end of each month. Payment is due upon receipt of invoice by Customer. Customer must notify Openfax of any charge disputed in good faith, with supporting documentation, within thirty (30) days from receipt of invoice, or Customer will be deemed to agree to such charges and no adjustments to charges or invoices will be made. Customer shall continue to be responsible to pay for the undisputed charges on the invoice by the due date.
4.4 Past-due balances shall be subject to an interest charge of one and one half percent (1.500%) per month computed from the due date of each invoice previously issued, or the maximum rate legally permitted, whichever is less.
4.5 Customer shall pay any collection charges or other expenses, including reasonable attorney’s fees, incurred by Openfax to collect any sums due under this Agreement.
4.6 Customer shall pay, and Openfax reserves the right to collect in arrears, all sales, use, excise or other taxes, fees or charges of any nature whatsoever, now or hereafter imposed or assessed on Openfax, by federal, state, county or local governmental authorities upon, or with respect to, the Services provided.
4.7 Customer authorizes Openfax to debit Customer’s bank account, credit card or debit card for payments on all invoices generated by Customer’s usage of the Openfax services. Customer understand that this authorization is for recurring payments that will be debited or drafted the same day an invoice is generated. This form supersedes and replaces any other payment forms on record with Openfax. Customer also acknowledges that Customer personally guarantees payment to Openfax. Customer also authorize Openfax to perform verification of funds with Customer’s financial institution and any other credit investigation deemed necessary.
5.0 LEGAL COMPLIANCE; INDEMNIFICATION; CUSTOMER WARRANTIES
5.1 Customer acknowledges that Openfax has no control over the content of information or distribution fax and/or email lists provided by Customer and transmitted through the Services and that Openfax does not examine the use to which Customer puts the Services or the nature of the information Customer or Customer’s users send or receive. Customer agrees not to transmit content through use of the Services that is unlawful, threatening, abusive, harassing, libelous, deceptive, fraudulent, invasive of another’s privacy, vulgar, obscene or otherwise contains objectionable material of any kind or nature. Customer is responsible for maintaining the confidentiality of, and shall not transfer sell or assign, access numbers, pass codes and user names provided by Openfax solely for use by Customer. It is the sole responsibility of Customer to use Services in accordance with all applicable local, state, federal and foreign laws and regulations, including but not limited to, laws and regulations pertaining to telemarketing, facsimile advertising, commercial e-mail and personal data privacy. CUSTOMER ACKNOWLEDGES THAT THE ADVERTISING OF GOODS, PRODUCTS OR SERVICES BY THE TRANSMISSION OF UNSOLICITED VOICE MESSAGES, F ACSIMILES, E-MAIL OR TEXT MESSAGES MAY BE IN VIOLATION OF FEDERAL, STATE AND FOREIGN LAWS AND REGULATIONS AND MAY SUBJECT THE ADVERTISER TO PENALTIES. Customer also agrees to comply with Openfax Privacy and SPAM Policies, located at the Openfax Web Site and incorporated herein by this reference; as such policies may be amended from time to time during the term of this Agreement. Breach by Customer of this Section 5.1 is grounds for immediate suspension by Openfax of Services and termination of this Agreement. Compliance with this Section 5.1 requires, among other things, that all messages sent by Customer utilizing the Services, in whatever medium, contain the valid name and required contact information for Customer, and that Customer shall comply promptly with any “do not call” or “do not send” request.
5.2 In the event Customer utilizes Services to conduct telemarketing activities or disseminates materials offering the availability of goods or products or services, Customer specifically warrants to Openfax (i) that it will undertake all required actions necessary to comply with applicable federal, state or foreign “Do Not Call” and telemarketing registration statutes and regulations and (ii) Customer will not utilize the Services in a manner which results in a violation of any applicable laws or regulations with respect to such Services. (iii) Acknowledges that Openfax does not filter fax lists against the National Do Not Call Registry and requires the Customer to perform this function as required by law for their particular use where required.
5.3 Customer shall indemnify, defend and hold Openfax, its officers, directors, employees, and affiliates harmless from any claims, losses, costs, damages or penalties (including, without limitation, reasonable attorney’s fees) arising out of (i) Customer’s use of the Services, or (ii) Customer’s violation of or alleged violation of any applicable laws or regulations with respect to the Services, included but not limited to, any claims that Customer’s use of the Services violated the rights of any third party (including those claims relating to the content provided by Customer or distribution lists on behalf of Customer) or claims relating to the transmission of unsolicited transmissions, the attempted transmission of a document to a residence telephone or for any errors in data or distribution information provided by Customer .
5.4 Customer, if a natural person, represents and warrant that Customer is at least eighteen (18) years of age or, as applicable, the age of majority in the state or province in which Customer resides, and that Customer possess the legal right and ability to enter into this Agreement. Customer agrees to be financially responsible for the use of Services (as well as for use of Customer’s account by others, including minors living with Customer) and to comply with the covenants and obligations of Customer as stated in this Agreement.
5.5 Customer , if a corporation, limited liability company , partnership, joint venture or other legal entity (collectively “ legal entity) represents and warrants (A) that the signatory to his Agreement is a duly authorized agent of Customer and had been authorized by Customer to enter into this Agreement on behalf of the Customer , as a legal entity , which legal entity intends to be bound by this Agreement, including all of the covenants and obligations of Customer thereto and (B) the Customer is duly incorporated or registered in the jurisdiction in which the Customer does business and the Customer is in good standing with the governmental agency overseeing incorporation or registration in that said jurisdiction.
6.0 DISCLAIMERS AND LIMITATION OF LIABILITY
6.1 OPENFAX DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OPENFAX’ TOTAL LIABILITY FOR DAMAGES ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT, WHETHER TO CUSTOMER OR ANY OTHER PARTY AND REGARDLESS OF THE FORM OF ACTION, IS LIMITED TO AN AMOUNT EQUIVALENT TO THE CHARGES BY OPENFAX TO CUSTOMER FOR THE PARTICULAR SERVICE PERFORMED BY OPENFAX DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF EVENT, ACT OR OMISSION GIVING RISE TO THE LIABILITY .
6.2 IN NO EVENT SHALL OPENFAX BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENT AL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT OR OTHER MONETARY LOSS; LOSS OR INTERRUPTION OF DATA OR COMPUTER TIME; ALTERATION OR ERRONEOUS TRANSMISSION OF DATA; ACCURACY OF DATA; UNAUTHORIZED ACCESS TO OR USE OF DATA PROCESSED OR THROUGH THE SERVICE; PROGRAM SECRET OR COPYRIGHT INFRINGEMENT) EVEN IF OPENFAX IS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
7.1 Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining terms of this Agreement shall not be affected or impaired thereby .
7.2 The failure of Openfax to enforce any covenant, term or condition of this Agreement shall not constitute a waiver of the right by Openfax to enforce each and every covenant, term and condition of this Agreement.
7.3 This Agreement shall not be assigned by Customer without the prior written consent of Openfax.
7.4 This Agreement shall be binding upon and inure to the benefit of the parties’ successors, legal representatives and authorized assigns.
7.5 Articles 4.0, 5.0, 6.0 and 7.0 shall survive termination of this Agreement.
7.6 Arbitration. Openfax and Customer agree to arbitrate all disputes and claims arising out of or relating to this Agreement (other than injunctive relief as set forth in Section 7.9 hereof). The demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitation. All issues are for the Arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by the terms of this Agreement. The arbitration shall be governed by the Commercial Dispute Resolution Procedures of the American Arbitration Association. (“AAA”), as modified by this Agreement, and shall be administered by the AAA. The AAA rules are available at www.adr.org. Customer agrees that by entering into this Agreement all parties are waiving the right to a trial by jury. All hearings conducted as part of the arbitration shall take place in Santa Fe, New Mexico.C
CUSTOMER, AND OPENFAX MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, and not as a plaintiff, third-party plaintiff, counter-defendant, or class member in any purported class or representative proceeding. Further, the parties agree that the arbitrator may not consolidate proceedings or more than one individual’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. The parties agree to the following Submission to Jurisdiction: The parties hereto irrevocably and unconditionally (i) agree that any suit, action, or other legal proceeding, including enforcement of the arbitration award, arising out of or relating to this Agreement or any other agreement, document or instrument delivered pursuant to, or in connection with this Agreement shall be brought and maintained in the State or Federal Courts in and for the County of Santa Fe, State of New Mexico; (ii) consent to the jurisdiction of each such court in any such suit, action or proceeding; and (iii) waive any objection which it or they may have to the laying of venue of any such suit, action, or proceeding in any of such courts.
7.7 Each party (Customer and Openfax) enters into this Agreement solely for its own benefit and purpose. This Agreement in no way confers any rights upon, or imposes obligations on either of the parties toward, any third party, including but not limited to any recipient of messages transmitted through the Services.
7.8 If Openfax elects to issue a press release pertaining to this Agreement, Openfax and Customer agree to cooperate in a joint press release, subject to both parties’ prior review and approval, announcing the execution of this Agreement. Customer agrees to allow Openfax to name Customer as a client of Openfax in any marketing material Openfax may create from time to time. Openfax will not use Customer Marks, other than the corporate name of Customer, in any such materials without the prior written consent of Customer, which consent shall not be unreasonably withheld.
7.9 This Agreement and the pricing terms referenced herein shall be considered confidential information of Openfax. Customer agrees not to disclose such confidential information to any third parties, and Openfax specifically reserves the right to seek judicial injunctive relief against such disclosure, as the parties acknowledge that Openfax would be irrevocably harmed upon such a disclosure of Confidential Information, and would have no adequate remedy at law.
7.10 This Agreement, including any schedules or exhibits, or amendments thereto (including amendments pursuant to Section 7.11 hereof), constitutes the entire agreement between the parties relating to the subject matter hereof, and supersedes all other agreements between the parties relating to the matters discussed herein, whether written or verbal. Other than this Agreement, there are no verbal agreements, representations, warranties, undertakings or other agreements between the parties.
7.11 Openfax may amend at any time the provisions of this Agreement and its Privacy and SPAM Policies of Openfax by (i) posting revised terms and conditions (“Amended Terms”) on the Openfax Web Site or (ii) delivering the Amended Terms to Customer at the address, fax or e-mail address provided herein (such delivery may be included in invoices for the Services delivered to Customer). All Amended Terms shall automatically be effective 30 days after such amendment is posted on the Openfax Web Site or delivery to Customer as provided above. CUSTOMER AGREES TO BE RESPONSIBLE FOR REGULARLY REVIEWING THE OPENFAX WEB SITE TO OBTAIN TIMELY NOTICE OF ANY SUCH AMENDED TERMS AND OPENFAX’ THEN-CURRENT TERMS AND CONDITIONS AND PRIVACY AND SPAM POLICIES. BY USING THE SERVICES AFTER POSTING OR DELIVERY OF AMENDED TERMS, CUSTOMER WILL BE DEEMED TO HAVE ACCEPTED AND BE BOUND BY SUCH AMENDED TERMS. No such amendment by Openfax shall serve to constitute a default or termination by Openfax of this Agreement, nor shall such amendment serve to be a basis for Customer’s termination of this Agreement. Except as otherwise provided in this Section 7.11, this Agreement may only be amended or modified, in whole or in part, by a written instrument signed by the parties to this Agreement.
8.0 PRICING & FEES
8.1 The parties agree that the following listed rates shall apply to the Services set forth below:
North American Rate $0.03 Per Page
8.2 Optional Fax Removal Service (FRS)
This is an automated and dedicated Toll-free number assigned to your account for you to place an opt-out statement such as “To be removed from our list, please call 1-888-XXX-XXXX.”
8.3 If the optional Fax Removal Service (FRS) is selected a monthly service charge of $5.00 per month will be assessed to the account with an additional usage fee of $0.10 USD per call the system receives for the Customer.
8.4 All listed rates are in U.S. dollars for domestic service. International rates schedule available at http://openfax.com/international-rates.
8.5 Billing for Fax Broadcasting usage charges are calculated in six (6) second increments per transmission, with a thirty (30) second minimum for domestic and international calls. After applying Customer’s stated per minute or per page rate listed above, charges per completed transmission shall be rounded up to the nearest thousandth cent. Facsimile pages delivered in “FINE” or exceeding (60) sixty seconds may be charged as per minute rather than on a per page basis. Openfax may at its discretion charge for unsuccessful transmissions where it has been determined the customer’s order exceeds the average successful termination ratio of destinations attempted and successful fax terminations. This charge applies when the Customer’s order is above the minimum order fee of $15. Unsuccessful charges apply at one-half (1/2) of the customer’s per page, or per minute rate for unsuccessful faxes when and if the total broadcast fax order success rate falls below forty-six (46%) deliverable.
9.0 Fax Broadcast Additional Service Fee Schedule
9.1 A $55.00 USD Merge fee for orders containing more than 5 merge points. Orders with 5 or less merge points will not incur this fee.
9.2 Minimum Broadcast Order Charge
If your Broadcast order cost is less than $15.00 USD then the minimum Broadcast Order Charge of $15.00 USD will be your total cost for the broadcast order.
I, the Customer, or as a duly authorized agent of Customer, in the attached Customer Serving Agreement, hereby authorize Openfax or its assigns to have or acquire any/all financial/credit information necessary to receive credit approval. I have read and agreed to the Terms and Conditions in the attached Openfax Customer Service Agreement.
Openfax and the Customer agree that a fax transmission, photocopy or electronic version of this agreement is mutually acceptable and legally binding. Access to Openfax services are not possible without the Customer’s agreement to all of the services terms and conditions outline within and at openfax.com. The Providing of the list of phone, fax numbers, email address and fax document and/or email content is the Customer’s sole responsibility.
Customer affirms that Openfax has not had any involvement in the acquisition, has not referred the client to a source to obtain fax or telephone numbers (list) or assisted in the development of the list and has not made any independent assessment, nor any express or implied warranty, as to the lists accuracy and compliance with Local, State or Federal Laws.
Customer acknowledges that Openfax relies on the statements in this Declaration for such purpose. Customer hereby releases and forever discharges Openfax from all damages of any kind arising out of its access to, reliance on, or use of information contained in the Customers’ provided fax, phone or email list or fax document or email content. Openfax does not share your data, except where required to by law.