Click4pbx user legal Agreement

PLEASE READ THIS AGREEMENT CAREFULLY. YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING click4pbx'S PRIVACY POLICY & ACCEPTABLE USAGE POLICY. YOUR USE OF THE SERVICES ALSO CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.

1. Introduction

This User Agreement ('Agreement') is an agreement between click4pbx, LLC. (click4pbx) a Massachusetts Limited Liability Company, and the party set forth in the related order form (Customer) attached hereto and hereby incorporated by reference (together with any subsequent order forms submitted by Customer, the 'Order Form'), and applies to the purchase of all services (collectively, the 'Services') ordered by Customer on the Order Form or through any other channels click4pbx provides to order and upgrade service. Such party is referred to in this Agreement as 'Customer' or 'you'. click4pbx reserves the right to reject this Agreement for any reason or no reason, prior to acceptance thereof by click4pbx. Activation of the Services shall indicate click4pbx's acceptance of this Agreement. Subject to the terms and conditions of this Agreement, click4pbx will provide to Customer the Services selected by Customer set forth on the Order Form. click4pbx reserves the right to refuse service to anyone. Customer hereby represents that he, she or it is either, an individual entering this Agreement for his or her personal use and is over 18 years of age, or a corporation, limited partnership or other legal entity, duly organized and in good standing under the laws of the state of its organization and the person acting on behalf of Customer is duly authorized to accept, execute and deliver this Agreement on behalf of Customer.

2. Amendment of Agreement.

click4pbx may amend or otherwise modify this Agreement. Customer agrees that click4pbx's posting of any amendments or modifications to this service (http://www.click4pbx.com/legal_user.html) shall constitute adequate notice to Customer and that Customer shall periodically consult this web page for any changes or amendments to this Agreement. click4pbx may, but is under no obligation to, provide additional notice of any amendment, modification or update of this Agreement via e-mail to Customer. If any material modification to this Agreement is unacceptable to Customer it shall be Customer's responsibility to terminate their subscription as provided in Section 3 of this Agreement. If Customer does not terminate the Agreement within 10 days of the material modification then Customer's continued use will mean that Customer has accepted the amended or modified Agreement.

3. Duration of Agreement, Continuity, and Cancellation Policy.

3.1 - The Initial Term shall begin upon confirmation of Customer's order or commencement of the Services to Customer and receipt of lawful funds. The term's length is chosen by customer and shall be indicated in the Order Form. After the Initial Term, this Agreement shall automatically renew for successive terms, equal in length to the Initial Term, unless terminated or canceled by either party as provided herein. During the Term, and other as specified herein, this agreement cannot be terminated by customer for any reason.

3.2 - This agreement may be terminated by either party at the renewal/anniversary date by giving the other party notice at least 15 days prior to the renewal/anniversary date of the Term (Customers hereby agrees and understands that they must follow the instructions provided at http://www.click4pbx.com/cancel.html in order to effective terminate services as described herein), or by click4pbx in the event of nonpayment by Customer or by click4pbx, at any time, without notice, if in click4pbx's sole judgment Customer has in any way breached this Agreement (Termination for Cause).

3.3 click4pbx may also terminate this agreement in its sole discretion at any time for any or no reason, by giving Customer 7 days notice to the email address customer keeps on file with click4pbx. In the event of click4pbx executing such termination prior to the renewal/anniversary date, click4pbx's sole liability shall be to refund Customer's unused prepaid service fees prorata.

3.4 - If click4pbx cancels this agreement pursuant to any of the terms outlined in this agreement, with the execption of Termination without Cause pursuant to paragraph 3.3, click4pbx shall not refund to Customer any fees paid or prepaid in advance of such cancellation and Customer shall be obligated to pay all fees and charges accrued prior to the effectiveness of such cancellation. In the event that click4pbx terminates the agreement for cause all prepaid hosting fees will be forfeitted and are not refundable.

3.5 - If prior to the end of the agreed on Term, Customer cancels the Services for any reason, or click4pbx terminates the Agreement due to Customer's breach of the click4pbx User Agreement or Acceptable Usage Policy, Customer will be charged a US$100.00 Breach-Of-Contract fee per service package and per hosting account as liquidated damages. Client also forfeits any prepaid service fees. At no time shall customer receive a refund of any prepaid service fees.

3.6 - click4pbx reserves the right to terminate the Services, if Customer's usage of the Services results in, or is the subject of, legal action or threatened legal action, against click4pbx or any of its affiliates, partners, owners, employees or agents, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit.

3.7 - All sales are final except for a cancellation within the first 24 hours after Customer purchases and pays for the service (Limited Money-Back Guarantee) and as stated below with reference to domain registration and promotional domain registration. After the Money-Back Guarantee expires, Customer can not cancel this Agreement, other than provided in paragraph 3.2, prior to the end of the Term as provided herein for any reason. If, after the Money-Back Guarantee period, Customer cancels this Agreement before the end of the term customer shall receive no refund for any prepaid hosting fees and any such fees shall be forfeited. In the event that Customer cancels within 24 hour of ordering the service by following the instructions provided at http://www.click4pbx.com/cancel.html, click4pbx will refund the prepaid hosting fees only to Customer. Any setup fees, fees for additional services) are always non-refundable. . Customer acknowledges and agrees that following the instructions provided at http://www.click4pbx.com/cancel.html is the ONLY WAY TO EFFECTIVELY CANCEL a Web hosting account with click4pbx and meet potential deadlines to trigger click4pbx's limited Money-Back Guarantee or to avoid automatic renewal. Any cancellation requests sent to or directed to click4pbx by email and/or regular mail shall be null and void. Customer also agrees that any request for a refund shall be forfeited, if the instructions provided at http://www.click4pbx.com/cancel.html have not been followed to cancel a hosting account.

4. Billing, Payment, and Additional Services.

4.1 - All fees for web hosting or other Services are due in advance and shall be in accordance with click4pbx's fee schedule, which is incorporated herein by reference and may be amended from time to time. In the event that customer elects to pay with a credit card Customer authorizes click4pbx to charge all fees owed to such credit card at the time or up to 30 days before they become due. Customer agrees to pay a $25.00 (twenty-five dollars) late fee if customer's account or accounts become more than ten (10) calendar days overdue or if Customer's credit card is not accepted when a charge is processed. Fees for renewal periods after the Initial term shall become due 30 days before the first day of such renewal period. click4pbx may impose a debt service charge equal to one and one-half percent (1.5%) of the overdue balance or a lesser amount where required by law for each month or portion thereof the overdue amount remains unpaid. In addition, in the event that any amount due click4pbx remains unpaid five (5) calendar days after such payment is due, click4pbx, in its sole discretion, may immediately terminate this Agreement, and/or withhold or suspend Services. Customer agrees that click4pbx may charge a $30.00 (thirty dollars) fee to reinstate accounts that have been terminated or suspended. All taxes, fees and governmental charges relating to the Services provided hereunder (other than income taxes of click4pbx) shall be paid by Customer.

4.2 - Customer agrees that click4pbx may charge up to 30 days in advance all fees due for the Services provided to Customer under this agreement to the credit card supplied by Customer during registration or at any time thereafter and customer specifically agrees not to charge back any payments click4pbx processes through Customer's credit card, checking account or other form of payment on file with click4pbx.

4.3 - Customer acknowledges and specifically agrees that chargeback's - which occur if Customer disputes click4pbx charges directly with Customer's credit card bank - are unlawful if click4pbx's service has been rendered. If customer has a fee dispute with click4pbx he has to settle such dispute with click4pbx directly without initiating any chargeback procedures.

4.4 - Customer acknowledges that from time to time, but not more than once per calendar quarter click4pbx may automatically provide Customer with upgrades, new products, and new services that click4pbx introduces and Customer agrees that click4pbx may bill Customer for such products and services on the credit card, checking account or other form of payment Customer has provided and that is on file with click4pbx to pay for ongoing services. Customer understands and agrees that there is no purchase obligation and that Customer will have 30 days after receipt of any new products and services to cancel such additional products or services only by opening a Billing Ticket at http://click4pbx.com/support/index.php and put 'Cancel Additional Service' in the subject field for a full refund.

4.5 - Customer acknowledges and specifically agrees that click4pbx may charge customer's bank account electronically for all charges due, if customer has provided click4pbx with proper bank information or supplied a paper check. All paper checks will be converted into electronic checks (eChecks).

4.6 - Returned and refused checks will be assessed a $30.00 charge. Incoming wire transfers will incur a $25 charge.

4.7 - In the event of a default, Customer agrees to be responsible for all breach-off-contract fees, late fees, collection fees and expenses as well as reasonable attorneys fees and expenses.



5. click4pbx as Reseller or Licensor.

click4pbx is acting only as a reseller or licensor of the hardware, software and equipment used in connection with the products and/or Services that were or are manufactured or provided by a third party ('Non-click4pbx Product'). click4pbx shall not be responsible for any changes in the Services that cause the Non-click4pbx Product to become obsolete, require modification or alteration, or otherwise affect the performance of the Services. Any malfunction or manufacturer's defects of Non-click4pbx Product either sold, licensed or provided by click4pbx to Customer or purchased directly by Customer used in connection with the Services will not be deemed a breach of click4pbx's obligations under this Agreement. Any rights or remedies Customer may have regarding the ownership, licensing, performance or compliance of Non-click4pbx Product are limited to those rights extended to Customer by the manufacturer of such Non-click4pbx Product. Customer is entitled to use any Non-click4pbx Product supplied by click4pbx only in connection with Customer's permitted use of the Services. Customer shall use its best efforts to protect and keep confidential all intellectual property provided by click4pbx to Customer through any Non-click4pbx Product and shall make no attempt to copy, alter, reverse engineer, or tamper with such intellectual property or to use it other than in connection with the Services. Customer shall not resell, transfer, export or re-export any Non-click4pbx Product, or any technical data derived therefrom, in violation of any applicable United States or foreign law.

6. IP Address Ownership.

During the course of providing Services to customer click4pbx may assign to Customer an Internet Protocol address. Customer agrees that it has no right to a particular IP address under this agreement and accordingly click4pbx shall retain ownership of any IP address or addresses used by Customer under this agreement and that click4pbx reserves the right to change or remove any and all such Internet Protocol numbers and addresses, in its sole and absolute discretion.

7. Caching.

Customer expressly grants to click4pbx a license to cache Customer's Content including content supplied by third parties and hosted by click4pbx under this Agreement and Customer agrees to indemnify and hold harmless click4pbx for any infringement of any third party's intellectual property rights thereby affected from said caching.

8. No Unauthorized Scripts or Executables.

Customer agrees not to run any scripts, executables or other programs or processes on click4pbx's servers or other equipment that will in any way adversely affect the performance of said equipment.

9. Bandwidth and Disk Usage.

10.1 - Customer agrees that click4pbx will monitor and meter Customer's daily bandwidth and disk usage and in the event that Customer exceeds the bandwidth or disk usage allocated to each hosting package on any given day click4pbx may take corrective action which may, at click4pbx's sole discretion, include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement. All bandwidth is measured daily and monthly bandwidth allowances are divided by the calendar days of a given month to determine the daily bandwidth allowance. Customer agrees that in the event of a dispute click4pbx's monitoring reports shall be the final method of determination how much disk space and bandwidth was used and agrees to pay the excess usage charges when due. Customer's logs files are counted against any disk usage.


10. Intellectual Property Rights.

Customer acknowledges that click4pbx owns all trade names, trademarks, service marks, inventions, copyrights, trade secrets, patents, know-how and other intellectual property rights relating to the Services and their provision. Customer further acknowledges and agrees that nothing in this Agreement shall constitute a license to Customer to resell or trade under any of click4pbx's intellectual property.


11. Disclaimer of Warranty.

Customer agrees that its use of Services and its reliance upon information provided by click4pbx are entirely at Customer's own risk. Customer acknowledges and agrees that click4pbx exercises no control over, and accepts no responsibility for, the content of data, scripts, or other information passing through click4pbx's host computers, network hubs and points of presence or the Internet. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS. NEITHER click4pbx, ITS OWNERS, EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, FOR THE SERVICES OR ANY EQUIPMENT PROVIDED IN CONJUNCTION THEREWITH. NEITHER click4pbx NOR ITS OWNERS, EMPLOYEES, AGENTS, OR AFFILIATES MAKES ANY WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE SERVICES. click4pbx IS NOT LIABLE, AND EXPRESSLY DISCLAIMS ANY LIABILITY, FOR THE CONTENT OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER'S CUSTOMERS VIA THE SERVICES PROVIDED BY click4pbx. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY ANY click4pbx EMPLOYEE, OWNER, OR AGENT WILL CREATE A WARRANTY; NOR MAY CUSTOMER OR ANY OF CUSTOMER'S OWNERS, EMPLOYEES, OR AGENTS RELY ON ANY SUCH INFORMATION OR ADVICE. The terms of this section shall survive any termination of this Agreement.

12. Indemnification.

Customer agrees to indemnify, defend and hold harmless click4pbx and its parent, subsidiary and affiliated companies, and each of their respective officers, directors, employees, shareholders and agents (each an 'indemnified party' and, collectively, 'indemnified parties') from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to Customer's use of the Services, any violation by Customer of this agreement, any breach of any representation, warranty or covenant of Customer contained in this Agreement or any acts or omissions of Customer. The terms of this section shall survive any termination of this Agreement.


13. Prohibited Uses and Activities

click4pbx may immediately take corrective action, including removal of all or a portion of the Customer's content, disconnection or discontinuance of any Services if Customer, or anyone accessing Customer's account or server space, engages in any of the prohibited Uses or Activities set forth in Section 16 of this agreement. Customer hereby agrees that click4pbx shall have no liability to Customer or any of Customer's customers due to any corrective action that click4pbx may take (including, without limitation, disconnection of Services).

A. Violations of Intellectual Property Rights

Customer agrees that it shall not violate any intellectual property rights and that it shall not resell services to any party which violates intellectual property rights. Any violation of any individual or entity's intellectual property rights including, rights of privacy and rights of publicity are prohibited. click4pbx is required by law to remove or block access to content appearing on or through the Services upon receipt of proper notice of copyright infringement (see 'Copyright Infringement Notice Information' below).

B. Spamming

Customer agrees not to send spam or resell its services to anyone who sends spam. The term 'spam' includes, but is not limited to, the sending of unsolicited bulk and/or commercial e-mail messages over the Internet or maintaining an open SMTP policy. In the event of of a dispute click4pbx reserves the right to determine, in its sole and discretion, whether e-mail recipients were from an opt-in email list.

C. Misrepresentation of Transmission Information

Customer agrees not to forge, misrepresent, omit, or delete message headers, return mailing information and/or Internet protocol addresses to conceal or misidentify the origin of any message or to resell services to anyone who engages in said conduct.

D. Viruses and Other Destructive Activities

Use of the Services for creating or sending malicious, destructive or nuisance code, examples of which include but are not limited to, viruses, worms and Trojan horses, or for pinging, flooding or mail-bombing, or engaging in denial of service attacks is prohibited and is a breach of this agreement. Customer also agrees not to engage in any other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the Services (or any connected network, system, service or equipment).

E. Malicious or Unauthorized Hacking

Customer agrees not conduct or promote any 'Hacking' activity and agrees that 'Hacking' as herein defined includes but is not limited to, the following activities: illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in malicious or unauthorized hacking or cracking. Any such activity on the part of Customer is a material breach of this Agreement.

D. Export Control Violations

The exportation of encryption software outside of the United States and/or violations of United States law relating to the exportation of software is prohibited.

F. Child Pornography

The use of the Services to store, post, display, transmit, advertise or otherwise make available child pornography is prohibited. click4pbx will as required by law, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Services.

G. Other Illegal Activities

The use of the Services to engage in any activities that are determined by click4pbx, in its sole and absolute discretion, to be illegal or which in click4pbx's opinion are likely to be found to be illegal is prohibited. Such illegal or potentially illegal activities include, but are not limited to, storing, posting, displaying, transmitting or otherwise making available ponzi or pyramid schemes, password and cracking information, fraudulently charging credit cards or displaying credit card information or other private information of third parties without their consent, and failure to comply with applicable on-line privacy laws. click4pbx will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the Services.

H. Obscene, Defamatory, Abusive or Threatening Language

Use of the Services to store, post, transmit, display or otherwise make available obscene, defamatory, harassing, abusive or threatening language is prohibited.

I. Other Prohibited Activities

Engaging in any activity that, in click4pbx's sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services, click4pbx's business, operations, reputation, goodwill, customers and/or customer relations, or the ability of click4pbx's customers to effectively use the Services is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate this Agreement. In addition, the failure by a Customer to cooperate with click4pbx in correcting or preventing violations of this Agreement by, or that result from the activity of, a customer of the Subscriber is a violation of this Agreement.

14. Copyright Notice Infringement Information

Pursuant to the Digital Millennium Copyright Act, click4pbx has adopted a policy that provides for suspension and possible termination of hosted by click4pbx that are found to infringe on copyrights of third parties. Customer expressly acknowledges that they are aware of this provision and Customer waives any claims it may have should it be injured or it's business damaged in any form by the enforcement of this provision. If a copyright holder believes that there has been a violation of their copyright on a service that is hosted by click4pbx and the copyright holder demands that click4pbx remove the service or disable the material in question, click4pbx will remove the service or disable the material if the copyright holder provides click4pbx with all of the following information under the Digital Millennium Copyright Act:

1. A signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.

2. Identification of the copyrighted work that is claimed to have been or being infringed, or, in the case of claimed infringement of multiple copyrighted works, a representative list of such works.

3. Identification of the material that is claimed to be infringing or is the subject of infringing activity and that should be removed or access to which should be disabled, with information reasonably sufficient to permit us to locate the material. Information reasonably sufficient to permit us to contact the person giving the notification, such as an address and telephone, and, if available, an electronic mail address at which such person may be contacted.

4. A statement that the person giving the notification has 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.

5. A statement that the information in the notification is accurate, and under penalty of perjury, that the person giving the notification is authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.



15. Disclosure of Customer Information and Legal Process

Although click4pbx will ordinarily maintain strict Customer confidentiality there are certain exceptions where click4pbx may disclose any information in its possession, including, without limitation, information about Subscribers, Internet transmissions and service activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation or official governmental request, to protect click4pbx or others from harm, and/or to ensure the proper operation of the Services. click4pbx has no obligation to notify any person, including the Subscriber about whom information is sought, that click4pbx has provided the information. Customer acknowledges the above exceptions and agrees to them without reservation.

16. Force Majeure.

click4pbx shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Services.


17. Assignment.

click4pbx may assign this agreement at any time and without notice to Customer. Customer shall not have the right to assign this Agreement without the prior written consent of click4pbx. This Agreement shall be binding upon and inure to the benefit of Customer and click4pbx and their successors and permitted assigns.

18. Entire Agreement; Severability.

This Agreement, together with the Order Form and any other documents or agreements identified in this Agreement, represents the entire agreement between the parties, and supersedes all previous representations, understandings or agreements. If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the parties agree that the remainder of this Agreement shall remain in full force and effect.