1.1 Opfx, 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. The Customer personally guarantees payment to Openfax and agrees to waive all rights to credit card disputes or chargebacks granted by the card issuer.
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, FACSIMILES, 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’S 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.