Ytel® End User License Agreement ("EULA")
This EULA, effective as of the date that the Party uses the services herein, is entered into by and between Ytel, Inc., hereinafter referred to as "Company" and the entity or individual(s), as applicable and as defined by the scope of the license offering using Ytel's software and services ("Customer"), shall continue in full force and effect until such time as it is terminated per the terms of this EULA. For purposes of this EULA, Customer and Company shall be referred to collectively as the "Parties" and each individually as a "Party."
This EULA shall govern the provision of, access to, and use by Customer of, Company's software, associated telephone calls, data, files, information, documentation, media and any other Company service (collectively, "Software"). This EULA is incorporated into the Master Services Agreement to which it is attached (the "MSA"). To the extent of any conflict between this EULA and the MSA, this EULA shall take precedence unless otherwise stated.
About Company
Company provides cloud-based software and related platforms as specified in the applicable Order Form, including contact center software, IVR technology, sip trunking, conferencing, database scrubbing, SMS services, and related communications applications. The Software allows Customer to contact businesses and individuals via telephone using Customer's computer and broadband Internet connection.
Assent to be Bound
Customer agrees to be bound by the terms of this EULA by one or more of the following methods: (a) executing this EULA; (b) clicking to accept or agree where this option is made available to Customer; or (c) by actually using the Software. If Customer does not agree with any part of this EULA, Customer is not authorized to access or use the Software.
Electronic Signatures
Company's authorization to provide and bill for the Software may be obtained via Customer's electronic signature, physical signature, voice affirmation, or use of the subject services. Electronic signatures are sanctioned and governed by the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Transactions Act (1999–2000). See also Section 28 of the MSA.
License and Restrictions / No Granting of Rights to Third Parties
Customer shall not sell, assign, rent, sublicense, encumber, use the Software in a timesharing or service bureau arrangement, or otherwise grant rights to third parties regarding the Software unless approved in writing in advance by Company. Unauthorized transfers are null and void.
No Modifications / Reverse Engineering
Customer shall not modify, create derivative works from, reverse engineer, decompile, disassemble, or hack the Software or attempt to derive its source code, except to the extent permitted by law.
No Removal of Notices
Customer agrees that Customer shall not remove or alter any trademark, logo, copyright, proprietary notices, legends, symbols and/or any other indication of intellectual property and/or proprietary rights that Company has in or to the Software.
No Publishing
Customer shall not publish any results of benchmark tests run on any Software to a third party without Company's prior written approval.
Third Party Software
The Software may incorporate Third Party Software made available at Customer's option and own risk. Company has no liability for Customer's use of, or inability to use, Third Party Software. Customer shall proceed solely against the applicable third party in connection with any dispute regarding Third Party Software.
Publicity
Notwithstanding any of the above, Company may mention the Customer's name and logo and provide a general description of the engagement in Customer's client lists and marketing materials.
License Grant
Company hereby grants to Customer a worldwide, non-exclusive, revocable, non-transferable license to use those portions of the Software referred to as Ytel Contact Center, Ytel API, and/or any other software product, whether or not specifically named, previously referred to and known as "Cloud Contact Center," "message360," and "Campaign." This does not include the Voice application wholesale platform which is covered under the contracted and signed EULA/MSA for that system.
Ytel Contact Center
A cloud-based contact center software application that enables Customer to accept inbound and make outbound telephone calls. The software can route inbound calls based on time, destination and source, make outbound calls manually or in an automated fashion, and generate reports on call volumes and agent performance metrics.
Ytel API
A programming language, combined with a user portal, that enables Customer to design business communication messages via telephone calls, SMS text messages, chats, tweets, e-mail and direct mail. The IVR system associated with Ytel API can be connected to Customer's systems to further enhance its communications options. Ytel API also includes applications built on top of it such as LeadBeam, Sippro, and other applications that use the Ytel API engine as its base.
Inbox
A feature where users can view and respond to inbound messages — currently SMS (text message) and Facebook Messenger. There is no coding required to implement Inbox; simply turn on functionality and start communicating.
Software Product Support
Absent another agreement, Company is under no obligation to provide technical support in connection with the Software under this EULA, and provides no assurance that any specific errors or discrepancies in the Software will be corrected. Company reserves the right to add additional features or functions, and to provide bug fixes, error corrections, patches, or new releases from time to time, but has no obligation to do so.
Customer's Responsibilities
Lawful Purposes
Customer shall use the Software for lawful purposes only. Customer may not: (a) intercept, damage or modify any communication not intended for Customer; (b) transmit harmful code or malware; (c) send unsolicited communications not permitted by Applicable Law; (d) expose any party to offensive or objectionable material; (e) threaten, harass or invade the privacy of any third party; (f) use material subject to third party proprietary rights without a license; or (g) use fraudulent caller ID or ANI. See also the Acceptable Use Policy above and Section 6 of the MSA.
Representations and Warranties
Customer represents and warrants that it is authorized to enter into and comply with this EULA, and shall at all times comply with all Applicable Law in connection with Customer's use of the Software.
Indemnification
Customer agrees to indemnify and hold harmless Company and its affiliated entities, officers, directors, employees and agents from and against all costs, expenses, damages or other losses arising from: (a) any fraudulent or unlawful communications delivered by Customer through the Software; (b) any violation by Customer of Applicable Law; (c) Customer's violation of any representation, warranty or covenant herein; and/or (d) any use of the Software by Customer or anyone using Customer's login credentials. See also Section 6(d) of the MSA.
Equipment & Tools
Customer is responsible for its own bandwidth, compliant ANI/caller IDs, and equipment needed to use the Software.
Data & Content
Customer is responsible for its Content and represents and warrants it has all right, power and authority to provide and use such Content. Company may remove Content and/or terminate Customer's use of the Software without prior notice if Customer uses Content in breach of this EULA.
Export Restrictions
Customer acknowledges that the Software is of U.S. origin and agrees to comply with all applicable export laws, including U.S. Export Administration Regulations and all applicable end-user and destination restrictions.
No Access to Emergency Services
The Software is not a replacement for ordinary telephone service and does not support emergency calls. Customer must maintain separate means of accessing emergency services.
Acceptable Use Policy
This Acceptable Use Policy ("AUP") describes the actions that are prohibited and conduct that is expected when you, or any party acting on your behalf, use Ytel, Inc.'s Services. This AUP is designed to complement — not replace — any agreement between us that governs your use of Ytel's Services. Ytel in its sole discretion shall determine whether there has been a violation of this Policy. Ytel may amend this Policy from time to time.
You agree that your use of the Ytel Services will only be for lawful purposes, and will not include:
- Initiating any message to an individual who has not consented or otherwise opted-in to the receipt of such message as required by any applicable law or regulation.
- Engaging in any messaging that is offensive, obscene, libelous, defamatory, fraudulent, abusive, or contains tortious material.
- Engaging in messaging that is unsuitable for minors.
- Engaging in messaging that promotes, incites or instructs on criminal matters.
- Engaging in messaging that is false, misleading or deceptive, or likely to mislead or deceive.
- Engaging in messaging that infringes the intellectual property rights or other rights of a third party, including trademarks, copyrights or other rights of publicity.
- Using the Services to receive, transmit or otherwise maintain electronic Protected Health Information as defined by HIPAA, or use the Services in any manner that would make Ytel a business associate.
- Using the Services in any manner that violates applicable industry standards, any third party policies including CTIA guidelines, or carrier guidelines.
- Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or any other harmful programs.
- Reverse-engineering the Services in order to find limitations, vulnerabilities, or evade monitoring capabilities.
- Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means.
- Engaging in messaging that is otherwise unlawful or could expose Ytel or any third party to liability, damages, or danger.
- Utilizing any Company technology to initiate or transmit outbound, pre-recorded voice messages.
In addition, you will honor immediately any requests to opt-out or stop further messaging (e.g., any "STOP" messages), and desist from initiating any further message following receipt of any such opt-out or stop request.
You agree to promptly cooperate with any FCC or governmental investigation regarding your use of Ytel's Services. Communications over Ytel's network are not confidential and may be subject to fraud and spam monitoring.
Violation of this AUP may result in termination or suspension of all Services provided by Ytel and may also result in civil, criminal, or administrative liability or penalties against you.
Use of Artificial Intelligence
Disclosure and Consent
Customer acknowledges and agrees that the Software may incorporate and utilize artificial intelligence ("AI") technology as part of its functionality. By using the Software, Customer consents to the use of AI technology for purposes including, but not limited to, data analysis, decision making, recommendations, and automated responses.
Accuracy Disclaimer
The Company strives to provide accurate and reliable information and functionalities through the Software. However, we do not guarantee the accuracy, completeness, or reliability of any results or outputs generated by the AI technology. The AI technology is constantly evolving and may produce unexpected or inaccurate results.
No Warranty
The Software, including any AI-generated outputs, is provided "as is" and "as available," with all faults and without warranty of any kind. To the fullest extent permitted by applicable law, the Company disclaims all warranties, whether express, implied, or statutory.
Limitation of Liability
The Company shall not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages resulting from any use of or reliance on AI-generated outputs or decisions.
Third-Party Data Processing
Customer acknowledges and agrees that its data, as well as the data of Customer's customers, may be processed by third parties other than Ytel, including but not limited to, subcontractors, service providers, and partners, in the course of providing and maintaining the Software, including Chat applications, email, and any other communication modes.
Customer is responsible for obtaining any necessary consents and authorizations from its customers for the processing of their data by third parties as described in this Agreement, and agrees to comply with all applicable laws and regulations regarding data protection and privacy.
Term, Termination, Customer's Account
Term of EULA
Customer's rights with respect to accessing and using the Software will become effective when both Parties execute the Order Form, this EULA and the MSA. This EULA will remain in effect until terminated by either Company or Customer as set forth below.
Termination
Company may terminate this EULA where Customer, or anyone using Customer's account, breaches this EULA. Upon any expiration or termination: (a) the rights and licenses granted to Customer under this EULA shall cease; (b) Customer shall immediately cease using the Software; and (c) Customer shall immediately cease using, and return to Company, any and all items and documentation relating to the Software in Customer's possession or control that are proprietary to Company or contain Confidential Information.
Payments
Payments made to Company are non-refundable. Customer agrees to prepay for all Software and other Services provided by Company. Customer agrees to pay for all telephone calls initiated through the Software outside of Customer's agreed upon calling plan.
Suspension
Customer's right to use the Software may be suspended if payment is not received when due. Email billing reminders may be sent but are not guaranteed. To update your billing email, contact billing@ytel.com.
Disclaimer of Warranties and Limitation of Liabilities
No Warranties: WITHOUT LIMITING THE DISCLAIMERS SET FORTH IN THE MSA, AND EXCEPT AS EXPRESSLY SET FORTH IN THIS EULA, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER. THE SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. USE OF THE SOFTWARE IS AT CUSTOMER'S OWN RISK. COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE, SECURE, ACCURATE, COMPLETE OR CURRENT.
Specific Disclaimer of Liability for Emergency Services
Company does not provide connections to emergency services via the Software or other Services. Customer should be aware that Company shall not be liable for any claim, damage, or loss, arising from or relating to Customer's failure to make additional arrangements to access emergency services.
Limitation of Liability
Company, its affiliates, licensors and employees will have no liability in connection with Customer's use of the Software. In no event shall Company be liable for any indirect, incidental, special, consequential or punitive damages; loss of income, business or profits; or loss or damage resulting from disruptions, delays, suspension or termination of this EULA, or decisions regarding Software releases.
Miscellaneous
The following provisions of this EULA are incorporated by reference from, and shall have the same meaning as the corresponding provisions in the MSA set forth below: Entire Agreement, No Waiver, Confidentiality, Ownership of Software, Regulations, No Agency, Force Majeure, Severability, Governing Law, Escalation Procedures, and Electronic Signatures.
Services: Registration and Security
As a condition to using some aspects of the Services, you may be required to register with Ytel and set a password and user name ("User ID"). You shall provide Ytel with accurate, complete, and updated registration information. You may not (i) select or use as a User ID a name of another person with the intent to impersonate that person; or (ii) use as a User ID a name subject to any rights of a person other than you without appropriate authorization. Ytel reserves the right to refuse registration of or cancel a User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password.
Customer Acknowledgment: CUSTOMER EXPRESSLY ACKNOWLEDGES THAT CUSTOMER HAS READ THIS EULA AND UNDERSTANDS THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY ASSENTING TO THIS EULA BY THE MANNER SPECIFIED ABOVE, INCLUDING USE OF THE SUBJECT SOFTWARE, CUSTOMER EXPRESSLY CONSENTS TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANTS TO COMPANY THE RIGHTS SET FORTH HEREIN.
Personal Information Collected
For the purposes of this Privacy Policy, "personal information" shall mean individually identifiable information from or about an individual. We collect personal information from you primarily when you complete a contact form in connection with your request to be contacted directly by Ytel with respect to your use of, or desire to obtain, the Ytel Services.
The personal information that you must supply on the Site in order to complete a contact form may include, without limitation: (a) first and last name; (b) e-mail address; (c) telephone number; (d) company name (if applicable); (e) company size (if applicable); (f) any comments that you wish to submit; and (g) any and all other information requested on the applicable form. In addition, where you have otherwise entered into the applicable Services Agreement(s) with Ytel, you may be asked to enter your credit card and/or bank account information in order to make payment for the applicable Ytel Services.
Master Services Agreement ("MSA")
This MSA is made and entered into by and between the individual or entity executing this MSA as the customer ("Customer") and Ytel, Inc. ("Company"). For purposes of this MSA, Customer and Company shall be referred to collectively as the "Parties" and each individually as a "Party."
WHEREAS, Company supplies software, platforms, technology and communications services (collectively, the "Services") as specified in the EULA and Order Form, and Customer desires to utilize said Services; and WHEREAS, the term "Service Order" shall refer to the Scope, Order Form and Credit Card Authorization (if any), each incorporated herein by reference (this MSA, the EULA and the Order Form are collectively referred to as the "Agreement"); the "Service Order" shall also consist of any use of Ytel API. NOW THEREFORE, Customer and Company agree as follows:
Start Date
For purposes of the Agreement, the "Start Date" will be the date that Customer and Company agree to each of the Order Form, the EULA and this MSA (as applicable) or otherwise begin use of any of the software or services. Beginning on the Start Date, Company will provide the Services to Customer as described in the documentation of the Application Programming Interface ("API") subject to both the EULA and the Order Form, or use. If a conflict exists between the general terms of this MSA and the specific terms of the Service Order, the specific terms of the Order Form will prevail. If a conflict exists between the general terms of this MSA and the specific terms of the EULA, the specific terms of the EULA will prevail with respect to the Software only.
Taxes & Fees
As applicable, Customer is responsible for, and must pay, any and all applicable sales, use, excise, public utility, or other taxes, regulatory fees and charges now in force or enacted in the future, by any federal, state, local or other governmental body, as well as any other additional costs that may arise as a result of Customer's use of the Services, including credit card usage fees. Similarly, Company may pass through to Customer taxes and fees owed by Company associated with Customer's access to and use of the Services to the extent permissible by law.
Tax-exempt Customers must provide acceptable documentation; exemption applies only from the date Company acknowledges the request. Customer agrees to indemnify Company against any claims arising out of any exemption claimed.
Billing Adjustments
Pricing is located on the Pricing Page (https://app.ytel.com Settings > Billing > Pricing.) Any request for a billing adjustment shall be made in good faith and by e-mail to Company at billing@ytel.com. Any such request shall include detailed documentation to establish the basis for any requested adjustment. Company will determine, in its sole, good-faith discretion, whether any adjustment shall be made and any such adjustments will be credited to Customer's account balance. If a request for a billing adjustment is not made to the e-mail address indicated above within seven (7) days, the charges shall be deemed final, valid and binding, and Customer waives its rights to any credits, offsets, or adjustments with regard thereto.
Late Payment
Company may suspend the Provision of Services indefinitely and/or terminate this MSA, the EULA and any Service Order in Company's sole and absolute discretion, if payment on any invoice is not received in the time period specified.
Termination
Company shall have the right to limit, suspend and/or terminate Services in the event that, in Company's reasonable determination, Customer's use of the Services is: (a) materially adversely affecting Company's facilities or its ability to provide services to other customers; (b) unlawful, unauthorized or fraudulent; or (c) otherwise in breach of this MSA, the EULA and/or the Service Order. In the event of any termination of the Agreement, Customer shall pay to Company, immediately upon receipt of any applicable invoice, any and all amounts due to Company under the Agreement.
Company shall have the right, at its sole discretion, without notice to Customer, to delete any or all of the terminated customer's data, including but not limited to, the account and all aspects of it, call or text records (CDRs), and remove all phone numbers or DIDs associated with the account, related accounts or sub-accounts, after thirty (30) calendar days of such termination.
Responsibilities of the Parties
a. COMPLIANCE. As and if applicable, Customer represents and warrants that it is aware of, and its use of the Services will comply in all respects with all applicable state, federal and international laws governing outbound communications, including without limitation: the Telephone Consumer Protection Act (47 USC § 227) ("TCPA") and FCC implementing regulations; the Amended Telemarketing Sales Rule ("ATSR"), 16 CFR 310 et seq.; state and federal Do Not Call ("DNC") laws and the National Do Not Call Registry ("NDNCR"); the Reassigned Number Database ("RND"); Canadian DNCL, Telemarketing Rules and ADAD Rules; CTIA Messaging Principles and Best Practices; carrier guidelines; and all associated record-keeping, consent, opt-out, caller identification, call timing, and abandonment requirements (collectively, "Applicable Law").
Some information regarding applicable law can be found at:
Without limiting the foregoing, Customer represents and warrants that: (A) the Customer Database was/shall be generated, collected, stored and used in compliance with Applicable Law; (B) the Customer Database consists of records of persons who have supplied express affirmative consent to receive commercial telephone calls from Customer; (C) Customer shall scrub the Customer Database against the NDNCR, all applicable state DNC Registries, the Reassigned Number Database, and its internal do-not-call list prior to calling any consumers; and (D) the Customer Database shall consist of individuals that have provided "prior express written consent" within the meaning of the TCPA. Customer shall retain Consent Records for a minimum of five (5) years and shall provide such records to Company within three (3) business days of a Company request.
b. CONTENT/CAMPAIGN SERVICES/CAMPAIGN PRODUCTS. As applicable, depending on the Ytel services used, Customer is and shall be solely responsible and liable for: (i) the creation, editorial substance, control and all other aspects of its own data and third party data utilized by it in connection with the Services, including source code, phone numbers in the Customer Database, programs, telemarketing scripts, databases, voice files and/or any other computer code ("Content"); (ii) the acts and omissions of any and all employees, contractors and/or agents performing telemarketing and other services on its behalf ("Campaign Services"); and (iii) the products and/or services marketed in connection with the Services ("Campaign Products").
All links in messages must not conceal sender identity, and all URLs (including redirects) must clearly identify the website owner and include a physical address.
c. NO HARMFUL CODE. Customer represents and warrants to Company that no Content shall be knowingly transmitted by Customer in connection with the Services containing any program, routine or device which is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service including, without limitation, any 'time bomb,' virus, drop dead device, malicious logic, worm, Trojan horse or trap or back door.
d. INDEMNIFICATION. Customer agrees to indemnify, defend and hold harmless Company and its officers, directors and employees from and against any losses, claims, liabilities, damages, settlements, costs and expenses (including attorneys' fees) arising from or relating to: (i) any breach of the Agreement by Customer; (ii) the Customer Database, Content, Campaign Products and/or Campaign Services; and/or (iii) any other acts or omissions of Customer.
e. ROLLING DELETION OF DATA. Subject to Section 5 with regard to termination of the Customer as it relates to data retention, and for its current customers, Company has the right, at its sole discretion, to permanently delete all call or SMS data (commonly known as CDRs), call recordings, and/or other account data not sooner than thirteen (13) calendar months prior, on a rolling basis. For example, as of January 1, 2023, Company may permanently delete all CDR records, call recordings, and/or other account data up until and including the month of November 2021 and prior.
f. PROHIBITED DATA STORAGE. Customer agrees to not upload, store, transmit, disseminate, or otherwise make available any data which is considered to be Sensitive Personally Identifiable Information (SPII) or Protected Health Information (PHI). SPII or PHI includes information that can be used to distinguish or trace an individual's identity either directly or indirectly through linkages with other information.
SPII examples include: full social security numbers, date of birth, passport/driver's license numbers, taxpayer/patient identification numbers, financial account numbers, and full credit card numbers. PHI examples include: medical records, prescription information, diagnoses, biometric data, insurance beneficiary information, and treatment plans. Customer is prohibited from transmitting, receiving, or storing any SPII or PHI on the Ytel system in any form. Ytel also recognizes GDPR Special Category Data Article 9(2)(c) as sensitive; Customer shall discard such data when its intended purpose is fulfilled.
Intellectual Property
a. OWNERSHIP. All right, title and interest, including all intellectual property rights and any associated hardware and software of Company or its licensors, and any updates, upgrades or modifications thereof, in and to any ideas, know-how, and/or programs developed by Company or its licensors (including the Services and associated Software) during the course of performance of the Agreement shall remain the property of Company or its licensors. All right, title, and interest in and to any Content communicated via Company's infrastructure through use of Company Services and any applications shall remain the sole property of Customer and/or its customers or third parties as applicable.
b. RESTRICTIONS. Customer shall not: (i) disassemble, reverse engineer, decompile, or otherwise attempt to derive source code from the software or documentation, modify, adapt, create derivative works based upon, or translate any Services owned and/or provided by Company; or (ii) copy, install or use Services (including the Software or associated documentation) on any of its computer systems, servers or networks without Company's prior written consent.
Limitation of Liability
OTHER THAN FOR INDEMNIFICATION OBLIGATIONS ARISING HEREUNDER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, ANY OF ITS CUSTOMERS OR ANY OTHER PERSON, FIRM OR ENTITY FOR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, UNDER ANY LEGAL OR EQUITABLE THEORY, EVEN IF FORESEEABLE, ARISING OUT OF ANY MISTAKE, ACCIDENT, ERROR, OMISSION, INTERRUPTION, OR DEFECT IN TRANSMISSION, OR DELAY ARISING OUT OF OR RELATING TO THE SERVICES OR THE OBLIGATIONS OF EACH PARTY PURSUANT TO THE AGREEMENT.
Disclaimed Warranties
EXCEPT AS EXPRESSLY SET FORTH IN THIS MSA, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. USE OF THE SERVICES IS AT CUSTOMER'S OWN RISK. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE, SECURE, ACCURATE, COMPLETE OR CURRENT. COMPANY'S SOLE AND EXCLUSIVE OBLIGATION, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY, FOR ANY BUG, ERROR OR OTHER FAILURE OF THE SERVICES TO PERFORM AS SET FORTH IN THE AGREEMENT IS A CREDIT OR REFUND, AT COMPANY'S SOLE DISCRETION, BASED ON THE ORIGINAL CHARGE FOR THE APPLICABLE SERVICES.
Regulations
The Agreement is made expressly subject to all present and future valid orders and regulations of any regulatory body having jurisdiction of the subject matter of the Agreement and to the laws of the United States of America, any of its states, or any foreign governmental agency having jurisdiction. If any terms of the Agreement are found in conflict with any law, the Agreement shall be deemed modified to the extent necessary to make it comply with the law in such a way as is consistent with the intent and purpose of the Agreement.
No Agency
Neither Party is authorized to act as an agent for, nor legal representative of, the other Party. Neither Party has the authority to assume nor create any obligation on behalf of or binding on the other Party.
Force Majeure
Other than for payment obligations, neither Party shall be liable for delays or failures in performance resulting from causes beyond its reasonable control, including acts of God, natural disaster, fire, power failures, government orders, war, strikes, or supplier/carrier failure (each, a "Force Majeure Event"). Company's obligation to provide Services is contingent on the continuation of its underlying service provider agreements; any changes thereto relieve Company of its obligations.
No Waiver
The failure of either Party to enforce or insist upon compliance with any of the terms of the Agreement or the waiver of any terms contained within the Agreement does not constitute a general waiver or relinquishment of any other terms of the Agreement.
Adjustment / Binding Effect
The Agreement is binding upon the Parties and their respective successors and assigns. Customer may not assign any rights or interests under the Agreement without Company's prior written consent; Company may assign without consent. Unauthorized assignments are null and void. Customer shall notify Company of any change in majority ownership (50.1% or more). No assignment releases either Party from its obligations.
Amendment
This MSA, the EULA and/or the Order Form(s) may only be amended by an instrument in writing, signed by both Parties, except in the case of rate or fee change notifications which do not require Customer's signature to be effective. The fees for Services may be modified with twenty-four (24) hours' e-mail notice to Customer. In the event of any dispute about the rates set forth in the Order Form and any amendments thereto, the rates quoted on the most recently dated amendment shall prevail.
Entire Agreement
This MSA, together with the EULA, Order Form(s) and any amendments, constitutes the entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior agreements, representations, and understandings, whether written or oral.
No Third Party Beneficiaries
The Agreement is made solely for the benefit of Company and Customer, and their respective successors and permitted assigns. Nothing in the Agreement should be interpreted to mean that Company and Customer are partners, joint venturers, co-owners or are otherwise participants in a common undertaking. Nothing in the Agreement will confer any rights or remedies on any third party.
Severability
If any provision of the Agreement is found to be illegal, unenforceable or invalid, that provision shall be stricken and replaced, to the extent possible, with a legal and enforceable provision of similar intent, without affecting the remainder of the Agreement.
Confidentiality
The Services Software is deemed Confidential Information of Company. Customer will not disclose any information pertaining to the Software (including pricing) to any third party without prior written approval of Company, and shall maintain its confidentiality with at least the same degree of care as Customer uses for its own confidential information.
You also acknowledge and agree that Ytel may use your content internally for improving the Services, and on an anonymized and aggregate basis for the purposes of marketing and improving the Services. However, Ytel will only share your personally identifiable information in accordance with Ytel's privacy policy.
Third Party Data Processing & Consent: We may use Platform-derived data in aggregated, de-identified form to improve the Services, but will not use Personal Information in a manner requiring us to act as a Third Party under CCPA or a Controller under GDPR without Customer's express written consent. Customer is responsible for obtaining all necessary consents from its customers for third-party data processing as described herein, and represents that such consents comply with all applicable data protection and privacy laws.
Representation of Authority and Intent
Each Party represents and warrants that its assent to and performance under the Agreement has been duly authorized and that the Agreement is valid, binding, and enforceable in accordance with its terms.
Escalation Procedures
In the event of any disruption of Services or any problems with regard to Services provided by Company, Customer should e-mail support@ytel.com immediately and ask that the applicable problem be escalated to the Company manager on duty.
Governing Law and Adjudication of Disputes
The Agreement is in all respects governed by the laws of the State of California, without regard to choice of laws. The Parties specifically consent to the personal jurisdiction of the State of California for all disputes related to the Agreement. Any disputes that may arise under the Agreement shall be resolved in accordance with the laws of the State of California, and shall be adjudicated exclusively in the state or federal courts in the State of California.
Counterparts
If assent to this Agreement is by signed documents, may be signed in several counterparts, each of which constitutes an original, but all of which will constitute one instrument.
Notices
Unless otherwise specifically provided for herein, any notice required by the Agreement is effective and deemed delivered: (a) three (3) business days after posting with the United States Postal Service when mailed by certified mail, return receipt requested, properly addressed and with the correct postage; (b) one (1) business day after pick up by the courier service when sent by overnight courier, properly addressed; and (c) immediately when sent via facsimile, via e-mail or by opening a support ticket by e-mailing support@ytel.com.
Headings
The headings in the Agreement are for convenience only and shall not affect the construction hereof.
Drafting
Each Party executing the Agreement agrees that it has fully participated in the drafting of the Agreement and that no Party shall be deemed to be the drafting Party.
Assent to Be Bound
Customer agrees to be bound by the terms of this MSA, and acknowledges that Customer is entering into a legally binding contract, by one or more of the following methods: (a) executing this MSA; (b) clicking to accept or agree where this option is made available to Customer; or (c) by actually using the Services. If Customer does not agree with any part of this MSA, Customer is not authorized to access or use the Services.
Electronic Signatures
Company's authorization to provide and bill for the Services may be obtained by way of Customer's electronic signature or, where applicable, via physical signature and/or voice affirmation, or by use of the services or by clicking on an applicable acceptance link on the website. Once an electronic signature is submitted: (a) this electronic order constitutes an electronic letter of agency; and (b) Customer hereby agrees to: (i) the use of electronic communication in order to enter into this MSA, place orders and create other records hereunder; and (ii) the electronic delivery of notices, policies and records of transactions initiated or completed through use of the Services. Customer hereby waives any rights or requirements under any laws of electronic records, to the extent permitted under applicable law.