YourCloudTelco Master Services Agreement
2talk LLC (Trading as YourCloudTelco), Terms and Conditions of Use
This Agreement governs your use of our internet-based YourCloudTelco telecommunications and billing software services. You are responsible for carefully reading the terms of this Agreement before accessing or using any Services. By using Services, you confirm that you have read and accept all of the terms of this Agreement
2talk’s offer or acceptance (as applicable) to enter into an agreement with you with respect to the Services is expressly limited to the terms specified in this Agreement and conditional on your acceptance of such terms, notwithstanding any different or additional terms you may reference or provide.
You agree that purchases of Services are neither contingent on the delivery of any future functionality or features, nor dependent on any oral or written comments made by 2talk regarding future functionality or features.
By using YourCloudTelco, you agree and undertake:
- You are contracting to purchase 2talk’s Services.
- You will use the Services in accordance with these terms and conditions as may be varied by 2talk by written notice to you from time to time.
- You will act in accordance with good industry practice.
- 2talk will indemnify you against all liabilities, claims, damages, losses and expenses arising directly from any breach of 2talk’s undertakings, except such indemnity does not apply to the extent that you directly contribute to the loss, costs, damages or expenses. You will at all times use reasonable endeavors to mitigate your losses, expenses, damages and costs giving rise to the indemnity of this clause 4.
- You will use your best endeavors to ensure that you do not cause damage or allow damage to be done to 2talk’s network.
Maximum liability of 2talk
- The total aggregate liability of 2talk to you for all breaches or claims arising under or in connection with this Agreement shall be the total charges paid by you under this Agreement for the previous billing period. 2talk shall have no liability to you for claims arising under this Agreement if you fail to notify 2talk of such claims within 60 days of the date you first become aware of the breach or potential claim.
- Nothing in this Agreement excludes or limits your rights in relation to any statutory liability of 2talk to the extent that 2talk is prohibited by law from excluding or limiting its liability.
Maximum liability of Customer
- Your total aggregate liability to 2talk for all breaches or claims arising under or in connection with this Agreement shall be the total charges paid by you under this Agreement for the previous billing period.
Service Use and Limitations
- Neither party shall be liable to the other in contract, tort or otherwise for any loss of business, contracts, anticipated savings or profits or for any other indirect or consequential loss whatsoever, provided however nothing shall exclude or limit liability for death or personal injury caused by negligence.
- Disclosure of account details to persons other than the authorized employees of 2talk is entirely at your risk. You accept sole responsibility for maintaining the security of your user IDs and passwords. 2talk shall have no liability resulting from your failure to maintain the security of your user information.
- You shall be liable for all charges and fees arising from the use of your Services account, or Customer Premise Equipment whether authorized or unauthorized, unless such unauthorized use is solely attributable to an act or omission on the part of 2talk.
- We will make reasonable efforts to keep the Services operational 24 hours a day/7 days a week, except for:
- Planned downtime for purposes such as undertaking major works, routine maintenance, remedial work or upgrades to our network (of which we will provide at least 8 hours prior notice); or
- Any unavailability caused by circumstances beyond our control, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays.
- If our Services are unavailable for any reason, we will endeavor to restore Services as soon as possible. 2talk will not be liable for any charges or damages to the customer should you be prevented from accessing the Services.
- You accept that 2talk shall have no liability whatsoever associated with your use of the public internet for access to 2talk’s Services.
- You shall have sole responsibility for the accuracy, quality, integrity, legality, and intellectual property ownership or right to use all Customer data, and 2talk shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of such Customer data.
- You are responsible for all activity occurring under your User accounts and you shall comply with all applicable laws and regulations in connection with your use of the Services, including but not limited to those related to data privacy, international communications, the transmission of technical or personal data and export control laws and regulations. You shall:
- Notify 2talk immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Services;
- Report to 2talk immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of content, 2talk technology, Services or deliverables that become known to or suspected by you or your users; and
- Not impersonate another 2talk user or provide false identity information to gain access to or use the Services
- You acknowledge that 2talk is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by you or your customers that are deceptive, fraudulent or otherwise invalid (“Fraudulent Actions”). By using the Services, you hereby release 2talk from any liability arising from Fraudulent Actions. You will also use best efforts to promptly notify 2talk of any Fraudulent Actions which may affect the Services. 2talk reserves the right, in its sole discretion, to terminate your account if you engage in, or enable any other user or customer to engage in, Fraudulent Actions.
- You represent and warrant that you are not reliant on 2talk to provide E.911 or any other emergency services. You will assume all responsibilities in connection with the provision of E.911 services to your end users. You are encouraged to inform your end users of emergency calling alternatives available to them.
- We reserve the right to suspend, without notice, outbound calling on our network we deem to be generated by an automated outbound dialer or where the Answer/Signal Ratio (ASR) or the Average Call Duration (ACD) falls below the reasonable use levels determined by 2talk.
- We will not provide technical, billing or sales support to your end customers. In the case of technical problems, you must make all reasonable efforts to investigate and diagnose problems before contacting 2talk. If you still need technical help, please follow the support process supplied in your Service Schedule. NO SUPPORT, ADVICE OR INFORMATION RELATING TO THE SERVICES THAT YOU OBTAIN FROM 2TALK OR FROM ANY THIRD PARTY, OR THAT YOU OBTAIN THROUGH THE SERVICES, WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY WRITTEN IN THIS AGREEMENT.
Conditions of Resale
- You agree that where the Services are resold:
- You will only resell a Service in accordance with the terms and conditions set out in this Agreement;
- 2talk will not be responsible to you or to any of your customers for any failure or delay in the provision of a Service, to the extent that such failure or delay is caused by or contributed to by any action or inaction on your part or on the part of any of your customers;
- You will be solely responsible (to the extent permitted by law) for any use of a Service or part of a Service by your customers;
- You will indemnify 2talk from all losses, expenses, damages and costs incurred or ordered against 2talk in relation to any act or omission by you or your customers in connection with the Services;
- You will not infringe 2talks intellectual property rights in the Services; and
- You will independently prepare your own services packaging, pricing and terms of service.
- No contract, obligation or other legal relationship is created between 2talk and your customers by this Agreement. Your customers will have no right to enforce any part of this Agreement under the common law doctrine of privity or otherwise except as permitted by law.
- You will ensure that a provision is included in each contract with your customers in respect of the Services which:
- Provides that your customers consent to you sharing information about them with us to the extent necessary to enable us to provide the Services;
- Provides that 2talk does not provide, grant or confer any benefit right or privilege on any of your customers;
- Excludes (to the maximum extent permitted by law) all liability of 2talk arising in respect of the Services.
- Any intellectual property rights owned by 2talk prior to the date of this Agreement will continue to be owned by 2talk. All intellectual property rights in any improvements or changes to any Service devised by any person during the time in which the Services are being provided shall belong to 2talk.
- You shall indemnify and hold 2talk, its licensors and each of such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs on an attorney and own client basis) to the extent arising out of or in connection with a claim alleging that use of the Customer data infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party provided in any such case that 2talk:
- Promptly gives notice of the claim to you;
- Gives you the sole control of the defense and settlement of the claim (provided that you may not settle such claim unless such settlement unconditionally releases 2talk from all liability and does not adversely affect 2talk’s business or the Services);
- Provide to you all available information and reasonable assistance.
- If 2talk provides you with any software to use in relation to the Services:
- 2talk remains the owner or licensee of the software;
- You may only use the software for the purposes for which it was provided;
- Your rights to use the software are personal to you and may not be transferred to anyone except to your customers, but only to the extent required to use a Service that is resupplied to such customers.
- You will not change the software, use or recreate any source code or copy the software other than for the purposes of backup and testing procedures.
- Acquiring Services does not give you any property rights or beneficial interest in any part of 2talk’s network.
Charges and Payment
- Usage for the YourCloudTelco will be charged according to the 2talk Service Schedule. These rates will be subject to change with 24 hours prior notice. Where possible additional notice will be provided.
- Numbering Services including DIDs and toll-free services will be charged according to 2talk Service Schedule. You represent and agree that you will comply with all applicable laws, rules, regulations orders and decrees relative to any use of numbers by you or your customers. The assignment of any specific number to you will be made at the sole discretion of 2talk. You have no property right to any numbers associated with any Services provided by 2talk.
- End user local number portability will be charged according to the 2talk Service Schedule. Prior to placing orders, you agree you will obtain authorization of the port in from each end user and provide a copy of this on request to 2talk. You are responsible for obtaining all information required to process the port in order from the end user.
- Billing services will be charges according to the rates contained in the Service Schedule.
- All charges are exclusive of US Federal, State and Local taxes (unless expressly provided otherwise).
- Any refunds that are authorized will be refunded in the manner in which the payment was made, at the prevailing exchange rate on the date of processing of the refund. 2talk reserves the right to use an alternative payment method where necessary. Any bonus or promotional credit entered on an account shall be non-refundable.
Non-Payment and Suspension
- 2talk may at its sole discretion and without prejudice to any right to which it might have to terminate the Agreement elect to suspend the provision of a Services if:
- There are insufficient funds to cover pre-payment of Services;
- It needs to carry out emergency works to its network or service equipment;
- It has reasonable grounds to believe the Service is being used fraudulently or illegally;
- It is obliged to comply with a regulatory order, instruction or request.
- 2talk shall not be liable for any loss, damage or inconvenience you incur as a result of the suspension. 2talk shall where reasonably practicable give prior notice of such suspensions to you.
- If 2talk initiates termination of this Agreement for cause, you will be obligated to pay all remaining charges payable for the Services computed in accordance with this Agreement for the remainder of the month in which termination occurs. You agree that 2talk may charge such unpaid charges to your credit card, or otherwise bill you for such unpaid charges.
- If your account has insufficient funds to cover pre-payment for Services for a period of 30 days, you authorize 2talk to transfer your end customers to 2talk upon request from such end customers or with the consent of such customers and thereafter 2talk shall be entitled to provide Services to such end customers and charge directly for the provision of such Services. 2talk shall provide you with notice of such direct supply and will cease charging you for the relevant Services. 2talk shall have no liability to you in respect of any losses suffered by you or any claims made against you by such end customers and 2talk shall have no responsibility for debts of your end customers, where 2talk provides Services in accordance with this clause 42.
- Except as otherwise provided herein, notices we send to you under this Agreement must be sent by email to the email address included in your YourCloudTelco user profile at the time we send our notice. You are responsible for keeping your email address current and accurate at all times.
- Any notice we send to the then-current email address in your YourCloudTelco user profile will be deemed to be received when it is sent even if you do not actually receive it.
- Except as otherwise provided herein, notices you send to us under this Agreement must be in writing and sent at your own cost by email to email@example.com.
- This Agreement shall commence on the date you apply for your YourCloudTelco service and shall continue for a minimum term of one (1) month and thereafter for successive monthly periods. Either party may notify the other in writing not less than ten (10) days prior to the expiration of a monthly period that it intends not to renew this Agreement, in which case this Agreement shall terminate at the end of such month, but without prejudice to the rights of the parties in respect of any prior breach of the terms of this Agreement.
- By continuing to use the Services you consent to 2talk sharing customer information with any company affiliated to 2talk as it considers necessary for the provision of the Services.
- You agree that 2talk’s records are conclusive evidence of your use of the Services and the charges payable. You accept that use of the Services via the IP address(s) nominated by you shall be deemed to be authorized by you and that you shall pay any charges arising from such use.
- If any term or provision, or portion thereof, of this Agreement shall be held to be invalid or unenforceable, to that extent it shall be deemed omitted or omitted to the extent necessary to render the balance of this Agreement to be valid and enforceable.
- This Agreement represents the entire understanding between the parties in relation to the subject matter hereof and supersedes all other agreements made between the parties whether written or oral. No waiver of any provision of this Agreement shall be deemed to be a further or continuing waiver of any provision of this Agreement.
- This Agreement may not be assigned in whole or part without the prior written consent of 2talk. Such consent shall not be unreasonably withheld.
- The termination of this Agreement however arising shall not affect such of the provisions hereof as are expressed to operate or have effect thereafter.
- This Agreement will be governed by and construed in accordance with the laws of California and the parties submit to the non-exclusive jurisdiction of the courts of California.
- Continued use of the 2talk service constitutes acceptance of these terms and conditions.
- In this Agreement:
- we or us means 2talk Pty Ltd;
- you means the Customer and your shall have a corresponding meaning;
- Services means any 2talk internet-based YourCloudTelco telecommunications and billing software services supplied to a Customer;
- The term 2talk shall include any third parties which are providing third party Services identified.
- End User means your direct or end customer making use of the services provided by you.