Terms & Conditions

End User Service Agreement

THIS IS A LEGAL AGREEMENT BETWEEN CUSTOMER AND PURPLE PHONE, INC. AND ITS AFFILIATES (COLLECTIVELY, “PURPLE PHONE”). BY ACCESSING AND/OR USING THE SERVICES, CUSTOMER IS AGREEING, ON BEHALF OF AN INDIVIDUAL AND/OR A LEGAL ENTITY, TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THIS AGREEMENT DOES NOT APPLY TO THIRD PARTY SERVICES SOLD BY PURPLE PHONE, WHICH SHALL BE SUBJECT TO THE TERMS OF THE THIRD PARTY PROVIDER.

1. DEFINITIONS.

As used in the Agreement, the following defined terms shall apply:

1. “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of an entity, through majority ownership of voting securities or equity interests
2. “Agreement” means this End User Services Agreement together with any operating rules, price schedules, or other documents incorporated herein by reference
3. “Customer” or “you” means the legal entity or individual that has ordered any Services from Purple Phone
4. “Customer Account” means an account for Customer that is required to access and utilize the applicable Services.
5. “Content” means any data uploaded to a Customer Account for storage or data in Customer’s computing environment to which Purple Phone is provided access in order to perform Services.
6. “Device” means a device authorized by Customer to be used by any individual(s) to access instances of a Service. This applies under the Device licensing model.
7. “Fees” means all Purple Phone fees applicable to the Services.
8. “Purple Phone” means Purple Phone, Inc., a New York company with its headquarters at 620 Lafayette Ave. Buffalo, NY 14222. Except where otherwise stated, “Purple Phone” includes our respective subsidiaries, Affiliates, agents, employees, predecessors in interest, successors, attorneys and any other service provider that furnishes services or devices to Customer in connection with this agreement.
9. “Purple Phone Marks” means any name, logo, or mark belonging to Purple Phone or its Affiliates.
10. “Open Source Software” means third party software distributed by Purple Phone under an open source licensing model (e.g., the GNU General Public License, BSD or a license similar to those approved by the Open Source Initiative).
    1. “Order” or “Order Form” Or “Quote” means the Purple Phone-approved form or online subscription process by which Customer agrees to subscribe to the Services. Most Orders are completed through Purple Phone’s online quoting process.
    2. “PHI” means personal health information covered by US Health Insurance Portability and Accountability Act (“HIPAA”) regulations.
    3. “Privacy Notice” means the Purple Phone Inc., User Privacy Notice available at https://www.purple- phone.com/privacy-policy.html.
    4. “Services” means the products and services that are being provided to Customer as described in any quote or order form, including, but not limited to, Purple Phone’s Unified Communication services, collaboration services, and any associated software, hardware or web-based platform. “Services” shall also include any additional services provided to Customer as described in any addendum or amendment.
    5. “Services Descriptions” means the overview and other terms applicable to the Services, as amended from time to time, as found at https://www.purple- phone.com/.
    6. “Software” means any proprietary software owned by, licensed by, or which Purple Phone has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used in or used to provide the Services.
    7. “Taxes” means all applicable transactional taxes on Services (including but not limited to withholding tax, sales tax, use tax, excise tax, personal property tax, public utility tax, services tax, value-added tax (VAT), goods and services tax (GST), and tariffs and/or duties) imposed by any government entity or collecting agency based on the Services.
    8. “Term Services Agreement” means an agreement between Customer and Purple Phone that provides for the provision of services through a fixed term.
    9. “Updates” means any corrections, bug fixes, features or functions added to or removed from the Services, but shall not include any new Service(s) not generally included with the Services purchased. Updates shall not substantially diminish or eliminate the core functionality of the Services subject to the exclusive remedy set forth in Section 7.3 (Termination for Cause).
    10. “Use Level” means the purchased Services entitlement(s) under the license model(s) by which Purple Phone measures, prices and offers the Services to Customer as set forth at https://www.purple- phone.com/.

2. RIGHTS.

1. Right to Use Service for Business. Subject to these terms, Purple Phone, with the assistance of Purple Phone third-party service providers, will provide the Services set forth in any Order that Purple Phone has accepted for Customer’s use, in accordance with the Agreement and applicable Use Levels. Purple Phone hereby grants Customer a limited, personal, non- exclusive, non-transferable license to use the Services up to the number of subscriptions purchased and in accordance with the license model(s) purchased and identified at https://www.purple-phone.com/. Updates to the Services are managed by Purple Phone and included in the Fees. Customer shall use the then- current version of the Services, including any Updates, as made available by Purple Phone. To the extent that Affiliates use the Services, Customer warrants that it has the authority to bind those Affiliates and will be liable to Purple Phone in the event any Affiliate fails to comply with this Agreement. Customer may purchase Purple Phone consulting services in support of Services or may receive them as part of technical support services. With respect to Purple Phone consulting services, all intellectual property rights in all deliverables, pre-existing works and derivative works of such pre-existing works, as well as developments made, conceived, created, discovered, invented, or reduced to practice in the performance of the consulting services are and shall remain the sole and absolute property of Purple Phone, subject to a worldwide, non- exclusive license to Customer for internal use. 
2. Limitations on Use. Except to the extent expressly permitted by applicable law or as explicitly authorized by Purple Phone in writing, Customer agrees not to:
   • modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Services and/or Purple Phone technology;
   • knowingly or negligently access or use the Services in a manner that abuses or disrupts the Purple Phone networks, security systems, Customer Accounts, or Services of Purple Phone or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means;
   • Transmit any viruses, malware, or other types of malicious software, or links to such software, though the Services;
   • Circumvent, or attempt to circumvent any limitations that Purple Phone has imposed on their Customer Account;
   • transmit through or post on the Services any material that violates the Purple Phone Platform Privacy Policy or Rules, including without limitation, content which is deemed abusive, threatening, harassing, obscene, slanderous, fraudulent, libelous or otherwise unlawful;
   • market, offer to sell, and/or resell the Services without express written permission from Purple Phone in advance
   • Probe, scan, or test the vulnerability of any Purple Phone system or network;
   • Register Customer Accounts by “bots” or other automated methods;
   • if the Customer is a Purple Phone competitor for the relevant Services, use the Services directly or indirectly for competitive benchmarking or other competitive analysis, unless permitted under applicable law;
   • include PHI in any SMS, MMS, or communications portions of the Services, upload PHI to the Services, or otherwise use the Services to collect, protect, or otherwise handle PHI. For the avoidance of doubt, this does not prohibit use of the Services by a Covered Entity (as defined in HIPAA), however Customer shall only use the Services in compliance with HIPAA rules and regulations, and in compliance with any instructions provided by Purple Phone or a third party services integrated into the Services. Such instructions may be provided by email, through in- product messaging, or otherwise provided to you by Purple Phone.
   • use the Services for any personal, residential, nonbusiness, nonprofessional, or non-commercial purpose;
   • use the Software or Services except in accordance with all applicable laws and regulations;
   • use the Software or Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third- party other than the Customer;
   • If Customer’s use of the Services requires them to comply with industry-specific regulations applicable to such use, Customer will be solely responsible for such compliance. Customer may not use the Services in a way that would subject Purple Phone to those industry-specific regulations without obtaining Purple Phone’s prior written agreement.
3.  Violations of Limitations on Use. If Customer becomes aware or receives notice from Purple Phone that any Content or use of Content violates Section 2.2 (Limitations on Use), Customer must take immediate action to remove the applicable part of the Content. Purple Phone may ask Customer to remediate, and if Customer fails to comply with such request, Purple Phone may modify or suspend the Services pursuant to Section 13.8 (Suspension of Services).
4. Proprietary Rights. Except for the limited use rights expressly granted herein, Customer has no right, title or interest in or to the Services or Purple Phone Marks or any intellectual property rights related thereto.
5. Open Source Software. Notwithstanding anything set forth in this Agreement, Customer’s use of Open Source Software shall in all ways be exclusively governed by the open source license(s) indicated as applicable to the code in the readme file.

3. ORDERS.

Customer may order Services using the Purple Phone then-current ordering processes. Customer is responsible for all Fees and Taxes on Orders. Payment is due for the Services for the term purchased, including any renewals, pursuant to the payment schedule of the applicable license model. If Customer purchases a subscription under a consumption-based license model, such purchase constitutes Customer’s agreement to be invoiced for and pay for consumption at intervals and pricing as defined in the license model. If Customer purchases an auto-renewing subscription (which includes consumption models), Customer’s purchase constitutes their agreement to auto-renewals for same term as initially purchased, and to auto-renewals for Customer’s other Purple Phone subscriptions, if any, for the same term as initially purchased for each of those. Customer maintains the right to give e- mail notice of non-renewal to Purple Phone prior any auto- renewal. Each consumption model invoice shall constitute an auto-renewal notice under consumption models. Unless Customer completes a renewal through a Purple Phone authorized reseller, Customer understands and agree that a subscription renewal will be through and due and payable to Purple Phone. All Orders are subject to acceptance by Purple Phone in its discretion. All purchases are final, with no right to a refund, except as expressly provided under Sections 7.3 (Termination for Cause). Purple Phone reserves the right, in its discretion, to suspend or terminate the Services or any portion thereof for non-payment of Fees. All Customer information provided by or on behalf of Customer for a subscription must be current, complete and accurate, and Customer is responsible for keeping such information updated.

14. FEES AND CHARGES.

1. FEES AND CHARGES. The fees and charges may change from time to time, with or without notice (except pricing will not change during the initial term of a contract for a specific period of time. Any pricing adjustment will be reflected in an invoice provided to Customer at the time of the pricing adjustment for their account.
2. BILLING INCREMENTS. All billing policies are defined by the specific package the customer chooses. Please refer to the website for exact billing policies.
3. TAXES. Customer is responsible for, and shall pay, any and all Taxes on Orders. Such amounts are in addition to payment for the Services and will be billed to Customer. If Customer is exempt from payment of such taxes, Customer will provide Purple Phone with an original government-issued certificate attesting to tax- exempt status. Tax exemption will only apply from and after the date Purple Phone receives such certificate.

5. BILLING AND PAYMENT

1. BILLING. Purple Phone will charge Customer in advance for each term of service for the Services that they order. If Customer has selected a free trial offering, Purple Phone will commence charging Customer for the Services at the expiration of the free trial period, unless Customer terminates the free trial offering prior to the expiration of the trial period. If not terminated prior to the end of the trial period, this Service will be added to Customer’s account for the remainder of its term, and any subsequent removal of the Service will be subject to Purple Phone’s Cancellation Policy, as well as any and all applicable early termination fees. When Customer subscribes to the Services, Customer must give Purple Phone a valid email address and a payment method (credit card) that Purple Phone accepts. Purple Phone reserves the right to stop accepting Customer’s payment method or payments. Customer must advise Purple Phone at once if their payment method expires, they close their account, their billing address changes, their email address changes, or their payment method is cancelled and replaced on account of loss or theft. Except for usage-based charges, Purple Phone will bill in advance to Customer’s payment method all charges, fees, taxes, and surcharges for each service term. Fees may also include activation fees, porting fees, early termination fees (“ETF”), reinstatement fees, and returned check fees. Purple Phone reserves the right to charge all fees to Customer’s payment method. Purple Phone will bill monthly as due immediately usage- based charges and any other charges which Purple Phone decides to bill as due immediately. Bills will be posted to the customer portal and emailed to the email address on record. Any payment not made when due may be subject to a late payment fee equivalent to the lesser of (a) one and a half percent (1.5%) per month; or (b) the highest rate allowed by law. Purple Phone’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly)) will not waive, limit, or prejudice in any way Purple Phone’s rights to collect any amount due. Purple Phone may terminate the Services and this Agreement for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
2. PAYMENT. Customer authorizes Purple Phone to collect any and all fees related to the Services that Customer orders from their payment method. This authorization will remain valid until thirty (30) days after Customer terminates Purple Phone’s authority to charge their payment method.
3. COLLECTION. If Purple Phone disconnects the Services, Customer will remain liable for all charges under this Agreement and all the costs incurred by Purple Phone to collect these charges, including, without limitation, collection costs and attorney’s fees. Customer also agrees to pay any additional charges or fees applied to their billing account for any reason, including but not limited to, interest and charges due to insufficient credit.
4. BILLING NOTICES. Customer understands that it is difficult for Purple Phone to distinguish between credit and debit cards. Customer agree to waive their rights under Regulation E to receive ten (10) days advance notice from Purple Phone regarding the amount that it will debit from Customer’s account. While Purple Phone may send Customer messages about their billing from time to time, Purple Phone is not obligated to do so. Purple Phone may change or cease its messages at any time without notice to Customer.
5. BILLING DISPUTES. Customer must notify Purple Phone in writing within seven (7) days after receiving their credit card statement or from the time funds are debited from their bank account if Customer disputes any Purple Phone charges on that statement or that have been debited from their account, or such dispute will be deemed waived. Notification of all billing disputes shall be sent to the following address: billing@purple-phone.com. Purple Phone will charge a late fee as described in Section 5.1 (Billing) for a disputed amount if (a) it was not paid by the due date and (b) Purple Phone determines that Customer disputed the charge in bad faith.

6. PRICING AND PAYMENT 

1. RICES AND FEES. Purple Phone fees and charges for the Services are supplied to Customer during the ordering process unless otherwise provided for in this Agreement. Customer agrees to pay all applicable one- time and recurring charges. Customer further agrees that any taxes and other charges, including but not limited to, account setup fees, shipping and handling and other nonrecurring charges will be charged to Customer’s credit card. Recurring charges will be billed and automatically charged to Customer’s credit card on the first day of every billing cycle. Customer’s billing cycle will begin on the anniversary date of their subscription date as defined in section 7.1 (Term).
2. CUSTOMER AGREES THAT PURPLE PHONE MAY CHARGE THEIR CREDIT CARD (IF APPLICABLE) FOR ALL AMOUNTS DUE TO PURPLE PHONE WITHOUT ADDITIONAL NOTICE OR CONSENT. If Customer is paying with a credit card, Customer agrees to provide a credit card and not a debit card. If Customer’s card is a combination credit card/debit card, Customer authorizes Purple Phone to use it as a credit card. If Customer’s issuing bank automatically provides Purple Phone with an updated credit card, Customer agrees that Purple Phone may charge this new credit card for all amounts due to Purple Phone without additional notice or consent. Customer also agrees to indemnify Purple Phone for any claims, damages or expenses resulting from providing a debit card instead of a credit card (if applicable). If Customer’s credit card is declined, is invalid or payment is not made by the issuer of the credit card at the time that a charge is attempted, Customer will not be able to use the Services until their account is paid in full.
3. DISCONTINUATION OF SERVICE FOR NONPAYMENT. The Services provided to Customer may be denied or discontinued without notice at any time if Customer fails to make a payment, Customer’s credit card provider denies or discontinues providing credit to Customer for any reason, or Customer fails to provide Purple Phone with a new credit card expiration date before the existing one expires. If Customer’s payment method fails for any reason during the ordering process, or any regular or monthly billing process, Customer will have twenty-four (24) hours to provide Purple Phone their payment method including credit card information, if applicable. If the payment method issue is not resolved within forty-eight (48) hours, Purple Phone will deactivate the Customer Account. If Customer’s new payment method is approved within twenty-four (24) hours, Customer’s calling plan and billing cycle will remain unchanged. Purple Phone reserve the right to modify the per-minute calling plan at any time. Customer agrees to pay all charges owed to Purple Phone, including but not limited to the reinstatement fee for reactivated services. In the event Purple Phone utilizes a collection agency or resorts to legal action to recover monies due, Customer agree to reimburse Purple Phone for all expenses incurred to recover such monies, including attorneys’ fees.
4. PROMOTIONS AND DISCOUNTS. Purple Phone may limit the number of promotions and/or discounts Customer may be eligible for in a given period. Promotions and discounts may be cancelled or modified, and discounts may be reduced or eliminated, by Purple Phone at any time, with or without notice (except with respect to discounted pricing during the initial term of a contract for a minimum period of time). Discounts may not apply to renewals.
5. CANCELATION POLICY. Purple Phone cancellation policies are outlined in the Cancellation Policy posted at Purple Phone’s website at https://www.purple- phone.com/legal.html and are incorporated into this policy by reference. All cancellation requests must be submitted in the form of an email ticket to service@purple-phone.com and must be made at least thirty (30) days prior to the expiration of the then- current Services Term. Changes to the cancellation policy may be made at any time without notice and are effective the day following the posting of the updated Cancellation Policy to Purple Phone’s website.

 7. TERM AND TERMINATION.

1. Term. Purple Phone provides the Services for the term that Customer has signed up for. Customer’s term begins on the later of the date the Services are first ordered (the “Subscription Date”), or the date Purple Phone successfully processes Customer’s payment. Customer is purchasing the Services for the full service term as set forth in the Order, as well as for any renewal terms as set forth in Section 7.2 (Automatic Renewal).
2. Automatic Renewal. The Service will automatically renew for subsequent terms of the same length as the initial term, excluding any promotional months, unless Customer cancels the Services by providing Purple Phone with notice as provided in Section 13.14 (Notices) at least thirty (30) days before the end of the then-current service term. Each renewal term begins on the day after the last day of the previous term. Any and all fees assessed to the Customer Account during the initial term and any renewal terms will be charged to Customer’s payment method on file, which may include any payment method automatically updated by Customer’s issuing bank. If Customer is paying by credit card and the credit card is declined, invalid, or payment is not timely made by the issuer of the credit card, without further notice Purple Phone reserves the right to automatically recharge the payment method until payment is received, the payment method is updated, or the Services are discontinued for nonpayment.
3. Termination for Cause. Either party may suspend or terminate the Services if the other party breaches any of its material obligations as to the Services, and fails to cure within thirty (30) days of receipt of written notice from the non-breaching party. In the event of termination by Customer for Purple Phone material breach, Customer shall be entitled to a refund of any unused prepaid Fees, and relief from any subsequent annual payments due, with respect to such Services. With respect to any breach of Section 1.18 (Updates) by Purple Phone, Customer must give written notice within thirty (30) days of introduction of the relevant Update, or be deemed to waive its claims as to such Update, and termination with such refund and relief shall be its exclusive remedy. Purple Phone may immediately terminate the Agreement if the Customer breaches Sections 2 (Rights), 8 (Content and Customer Account) or 13.11 (Export Restriction and Compliance with Laws). Additionally, Purple Phone may suspend or terminate any part of the service generally at any time if:
   • Purple Phone determines or reasonably believes that Customer has materially breached this Agreement or any other agreement between Customer and Purple Phone;
   • Purple Phone determines or reasonably believes that Customer has used fraudulent means to pay for the Services, including use of a fraudulent credit card;
   • Purple Phone determines or reasonably believes that Customer has abused or harassed (verbally or otherwise) any Purple Phone employee, contractor, agent or representative;
   • Customer is ordered by law enforcement or other government agencies to suspend, terminate or disconnect Customer’s access to the Services;
   • Customer brings any legal action or proceeding against Purple Phone, or participate in any class action lawsuit against Purple Phone;
   • A petition in bankruptcy is filed by or against Customer and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over Customer or Customer’s material assets;
   • Purple Phone determines that such action is necessary to protect maintain, or improve the Services, to prevent fraud or misrepresentation, to protect Purple Phone, its customers or other third- party Purple Phone affiliates, or for any other good cause; or
   • It is otherwise contemplated by this Agreement.
4.  Effect of Termination. Upon termination under Section 7.3 (Termination for Cause), Customer will immediately discontinue all access and use of the Services. Neither party shall be liable for any damages resulting from termination, including without limitation unavailability of Content arising therefrom; provided, however, termination shall not affect any claim arising prior to the effective termination date. Purple Phone shall have the right to invoice Customer and Customer agrees to pay for any use of the Services past the date of termination other than Customer’s access to download Content. All charges owed at the time of disconnection will be immediately payable. Purple Phone will pursue collection for unpaid amounts on disconnected Customer Accounts and may report these unpaid charges to credit bureaus.
5. Termination of Services. In order to terminate the Services, contact Purple Phone’s Customer Care Department, via email at service@purple- phone.com prior to expiration of the current service term. Please refer to the Purple Phone Cancellation Policy posted on Purple Phone’s website at https:// www.purple-phone.com/legal.html.

 8. CONTENT AND CUSTOMER ACCOUNT.

1. Content. Customer retains all rights to any and all of its Content, subject to a non-exclusive, worldwide, royalty- free, license to Purple Phone as necessary to provide the Services hereunder. Each party shall apply reasonable technical, organizational and administrative security measures, as appropriate relative to the Services, to keep Content protected in accordance with industry standards, including those identified in Section 13.7 (Security and Privacy) for Purple Phone. If Purple Phone reasonably believes a problem with the Services may be attributable to Content or use of the Services, Customer shall cooperate with Purple Phone to identify the source of and to resolve the problem. Customer shall comply with all intellectual property laws and obligations related to the Content, as well as all legal duties applicable to Customer by virtue of using the Services, including providing all required information and notices and obtaining all required consents. This Agreement states Purple Phone’ exclusive obligations with respect to care of Content. Purple Phone has no obligation to maintain Content following expiration or termination of the Agreement or the affected Services.
2. Limited License. Customer grants Purple Phone a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, but only for the limited purposes of providing the Services to Customer and as otherwise permitted by the Privacy Notice. This license for such limited purposes continues even after Customer stops using the Services, with respect to aggregate and de- identified data derived from your Content and any residual backup copies of your Content made in the ordinary course of Purple Phone’s business. This license also extends to any trusted third parties Purple Phone works with to the extent necessary to provide the Services to Customer.
3. Confidentiality. Purple Phone will treat your Content as confidential information and only use and disclose it in accordance with this Agreement (including the Privacy Notice). However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of this Agreement by Purple Phone); (b) was lawfully known to Purple Phone before receiving it from Customer; (c) is received by Purple Phone from a third party without knowledge of breach of any obligation owed to Customer; or (d) was independently developed by Purple Phone without reference to your Content. Purple Phone may disclose your Content when required by law or legal process, but only after Purple Phone, if permitted by law, uses commercially reasonable efforts to notify Customer to give them the opportunity to challenge the requirement to disclose.
4. Customer Account. Customer is solely responsible for all use related to their Customer Account, including without limitation:
   • the configuration of their Customer Account;
   • the operation, performance and security of Customer’s equipment, networks and other computing resources used to connect to the Services;
   • ensuring all Devices exit or log off from the Services at the end of each session in accordance with Customer’s session policy;
   • maintaining the confidentiality of their Customer Account, user id’s, conference codes, passwords and/or personal identification numbers used in conjunction with the Services, including not sharing login information; and
   • all uses of the Services that occur using Customer’s password or Account. Customer will notify Purple Phone immediately of any unauthorized use of its Account or any other breach of security.
5.  Customer Account Ownership. The owner of the Customer Account under which the Service is ordered shall be the legal entity (e.g., corporation, partnership, individual, etc.) that signs up for the Service with Purple Phone. If no legal entity is provided upon sign-up, the Customer Account owner shall be the owner of the credit card used to open such Customer Account, if applicable. Subsequent changes to ownership must be supported by appropriate legal documentation. Purple Phone shall not adjudicate ownership-related disputes, or any other internal business dispute. Customer will not request access to or information about a Customer Account that is not Customer’s, and Customer will resolve any account-related disputes directly with the other party. Purple Phone decides who owns a Customer Account based on the content of the emails in that Customer Account, and if multiple people or entities are identified in the content, then Purple Phone will rely on the contact information listed for that Customer Account. If Purple Phone is unable to determine the valid owner of the Customer Account, Purple Phone reserves the right to suspend or terminate the Customer Account and Services. Customer agrees that Purple Phone is not liable for any damages arising out of or otherwise related to any Customer Account-related dispute.
6. Customer Account Access/Instructions. The Customer Account owner, and any authorized Device, will have access to information in the Customer Account. Purple Phone will not provide access to any other Device at any time. Customer agrees that Purple Phone may rely on instructions given by the Customer Account owner either through the account dashboard or via email from the address on file for the Customer Account owner. In the event of a dispute regarding Customer Account data, Purple Phone will only release information to another party other than the Customer Account owner pursuant to a court order or other notarized waiver and release as determined by Purple Phone. The Customer Account owner must keep their email address and, where applicable, contact and payment details associated with the account current and accurate. The Customer Account owner acknowledges that Purple Phone will be sending them information, including their Password, via e-mail over the Internet. The Customer Account owner agrees that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt information transmitted over the Internet. In order to maintain the security of the Services, the Customer Account owner should safeguard their user IDs and Passwords.
7. Customer Lists. Purple Phone may identify Customer (by name and logo) as a Purple Phone customer on its website and on other promotional materials. Customer hereby grants Purple Phone an irrevocable, non- exclusive, royalty free license to utilize their name, trademark(s), trade name(s) and other intellectual property for this limited purpose and as otherwise agreed in writing.
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9. WARRANTIES AND WARRANTY DISCLAIMER.

1. PURPLE PHONE MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICES OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. PURPLE PHONE DOES NOT WARRANT THAT THE SERVICES WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. PURPLE PHONE DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND CUSTOMER SHOULD NOT RELY ON ANY SUCH STATEMENT. CUSTOMER AGREES THAT IT ACCEPTS THE SERVICES “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND IN THE EVENT OF ANY DEFECT. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST PURPLE PHONE TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.

10. INDEMNIFICATION AND WAIVER OF CLAIMS.

1. Indemnification: CUSTOMER IS LIABLE FOR ANY AND ALL USE OF THE SERVICES BY THEMSELVES AND BY ANY PERSON MAKING USE OF THE SERVICES, AND CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS PURPLE PHONE AGAINST ANY AND ALL LIABILITY FOR ANY SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS PURPLE PHONE FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, ATTORNEYS’ FEES, AND ANY AND ALL OTHER DAMAGES OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICES, THE USE OF OR INABILITY TO USE THE SERVICES, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICES, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM PURPLE PHONE’S GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT. FURTHER, EXCEPT TO THE EXTENT OF PURPLE PHONE’S PERSONNEL’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, CUSTOMER AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS PURPLE PHONE AND PURPLE PHONE PERSONNEL FROM AND AGAINST ANY AND ALL LIABILITY, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES, INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEY FEES, ARISING FROM OR RELATING TO ANY PERSONAL INJURY OR DAMAGE TO PROPERTY (INCLUDING WITHOUT LIMITATION ANY EQUIPMENT, DEVICE, NETWORK, SYSTEM OR STRUCTURE) OCCURRING DURING ANY VISIT BY PURPLE PHONE OR ANY REPRESENTATIVE, PERSONNEL, OR AGENT OR THEREOF TO ANY SITE; OR RESULTING OR ARISING FROM ANY CLAIM, ACTION, ALLEGATION, DEMAND, OR PROCEEDING BY OR ON BEHALF OF ANY WORKFORCE MEMBER, CONTRACTOR, AGENT, REPRESENTATIVE, OR INVITEE OR CUSTOMER.
2. Attorney Fees and Costs. If Purple Phone files an action against Customer claiming that Customer has breached these Terms and prevails in that action, Customer agrees that Purple Phone shall be entitled to recover all attorney fees, taxable and non-taxable costs (including, but not limited to expert witness fees and arbitration costs), as well as any damages or other relief that may be awarded.
3. Equitable Relief. If Customer violates these Terms then Purple Phone may seek injunctive relief or other equitable relief.
4. Subpoena Fees. If Purple Phone has to provide information in response to a subpoena related to a Customer Account, then Purple Phone may charge Customer for its costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition

11. LIMITATION OF LIABILITY.

IN NO EVENT SHALL PURPLE PHONE BE LIABLE TO CUSTOMER, CUSTOMER’S REPRESENTATIVES OR AUTHORIZED ASSIGNS OR ANYONE ELSE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICES, THE USE OF OR INABILITY TO USE THE SERVICES, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICES, AND/OR THIS AGREEMENT. NOR SHALL PURPLE PHONE BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICES, AT ANY TIME OR FROM TIME TO TIME, OR FOR ANY INTERRUPTION OR DEGRADATION OF VOICE QUALITY CAUSED BY ANY REASON INCLUDING BUT NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, EQUIPMENT, NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION, FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO ACTS OF GOD, ADVERSE WEATHER, STRIKES, FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICE, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO PURPLE PHONE OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND PURPLE PHONE’S CONTROL. PURPLE PHONE SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO PURPLE PHONE’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF PURPLE PHONE’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. PURPLE PHONE’S LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD. THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT PURPLE PHONE WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, CUSTOMER AGREES TO REIMBURSE PURPLE PHONE FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST PURPLE PHONE TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.

12. DISPUTE RESOLUTION AND BINDING ARBITRATION.

1. It is important that you read this entire section carefully. This section provides for resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury.
2. Contracting Party, Choice of Law and Location for Resolving Disputes. This Agreement and the relationship between Customer and Purple Phone shall be governed by the laws of New York without regard to its conflict of law provisions. Any claim brought pursuant to this Agreement shall be brought in a court of competent jurisdiction within the State of New York and venue for any such claim shall be proper in the appropriate state or federal court located in Erie County, New York. The specified state governing law and jurisdiction do not apply to U. S. Government Customers.
3. Arbitration. Purple Phone and Customer agree to arbitrate any and all disputes and claims between Customer and Purple Phone except as set forth in Section 12.10 (Exceptions to Arbitration Agreement) of this Agreement. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between Customer and Purple Phone, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation;disputes and claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision. References to “Purple Phone,” “Customer” and “you” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services under this agreement or any prior agreements between Customer and Purple Phone.
4. Informal Resolution of Disputes. Our Customer Care Department can resolve most customer concerns quickly and to the customer’s satisfaction. If Customer has a dispute or claim against Purple Phone, Customer agrees to first contact the Purple Phone Customer Care Department at support@purple-phone.com and provide in detail, including documents or analysis supporting Customer’s position and the basis of their claim. Customer care shall be provided with fourteen (14) days in which to research and respond to Customer’s claim. In the event Customer’s dispute or claim is not resolved to their satisfaction, Customer may seek to have that dispute or claim resolved as set forth below.
5. Formal Notice of Disputes. If Customer intends to seek arbitration they must first send Purple Phone a written “Notice of Dispute” setting forth in detail, including submission of supporting documentation, the grounds of the dispute. The Notice of Dispute must be sent to Purple Phone, attention “General Counsel,” by certified mail addressed to 620 Lafayette Ave. Buffalo, NY 14222.
   • The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If Customer and Purple Phone do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice of Dispute is received, Customer or Purple Phone may commence an arbitration proceeding. The amount of any settlement offer made by Customer or Purple Phone shall be non- discoverable and shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Purple Phone is entitled.
6.  Waiver of Jury Trial. Customer and Purple Phone agree that, by entering into this agreement, Customer and Purple Phone are waiving the right to a trial by jury.
7. Waiver of Class Actions. Customer and Purple Phone agree that the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. Customer and Purple Phone agree that Customer and Purple Phone may bring claims against the other only in their or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Customer and Purple Phone agree that, unless Customer and Purple Phone agree otherwise, the arbitrator may not consolidate more than one (1) person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.
8. Statute of Limitations. Customer must present a claim within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to Section 2.2 (Limitations on Use) of the Agreement), or Customer waives the right to pursue a claim based upon such event, facts, or dispute.
9. Exceptions to Arbitration Agreement. Notwithstanding the obligation to arbitrate and any other provisions to the contrary herein, Customer and Purple Phone agrees that: (a) with respect to claims for unpaid invoices Purple Phone may bring a claim for amounts due and owing to it in a court of competent jurisdiction in Erie County, New York; (b) if Customer fails to timely pay amounts due, Purple Phone may assign their account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement; (c) Customer or Purple Phone may take any disputes over the validity of any party’s intellectual property rights to a court of competent jurisdiction; (d) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and (e) either Customer or Purple Phone may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of Customer or Purple Phone, pending the completion of arbitration.
10. Modification of Arbitration. If Purple Phone makes any substantive change to this arbitration provision, Customer may reject any such change by sending Purple Phone written notice within thirty (30) days of the changes to the address provided in Section 12.5 (Formal Notice of Disputes). By rejecting any change, Customer agrees to adhere to the language in this provision. If Customer fails to timely reject a change to these arbitration provisions, Customer agrees to be bound by any change that Purple Phone may, in its discretion, make to these provisions.
11. Venue/Jurisdiction. All claims for Arbitration shall be submitted to and heard by an arbitrator located in Erie County, New York. Should an evidentiary hearing be required by the Arbitrator, such hearing shall be heard in Erie County, New York.
12. Arbitration Costs. Customer agrees that the Arbitration Costs, including any required deposits, will initially be paid equally by Customer and Purple Phone. Customer further agrees that the arbitrator shall award the prevailing party in any arbitration proceeding the recovery of its share of the Arbitration Costs against the non-prevailing party. Customer and Purple Phone agree that the failure or refusal of a party to pay its required share of any deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present any evidence or cross-examine witnesses, and a waiver of that party’s claims, if any.

13. ADDITIONAL TERMS.

1. U.S. Government End-Users. If Customer is a U.S. Government agency, Customer hereby acknowledges and agrees that the software being accessed through Services, as well as any software that is downloaded by any Customer or Device in connection with the Services, constitutes “Commercial Computer Software” as defined in Section 2.101 of the Federal Acquisition Regulation (“FAR”), 48 CFR 2.101. Therefore, in accordance with Section 12.212 of the FAR (48 CFR 12.212), and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (“DFARS”) (48 CFR 227.7202-1 and 227.7202-3), the use, duplication, and disclosure of the software and related Documentation by the U.S. Government or any of its agencies is governed by, and is subject to, all of the terms, conditions, restrictions, and limitations set forth in this Agreement. If, for any reason, FAR 12.212 or DFARS 227.7202-1 or 227.7202-3 or these license terms are deemed not applicable, Customer hereby acknowledges that the Government’s right to use, duplicate, or disclose the software and related Documentation are “Restricted Rights” as defined in 48 CFR Section 52.227-14(a) (May 2014) or DFARS 252.227-7014(a)(15) (Feb 2014), as applicable. Manufacturer is:Purple Phone, Inc.
620 Lafayette Ave. Buffalo, NY, 14222
2. Services Trial. If an offering of the Services is identified as a trial (“Trial”), Customer may use the Services for a limited period of time for internal demonstration, test, or evaluation purposes. PURPLE PHONE PROVIDES TRIALS “AS IS” AND WITHOUT WARRANTY. ANY CUSTOMER DATA UPLOADED IN A TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD. These terms supersede any conflicting terms and conditions in this Agreement.
3. Beta, Tech Preview or Labs Services. The Services do not include Beta, Tech Preview or Labs Services. CUSTOMER ACKNOWLEDGES THAT ANY BETA, TECH PREVIEW OR LABS SERVICES ARE OFFERED “AS-IS” FOR INTERNAL DEMONSTRATION, TEST OR EVALUATION PURPOSES AND WITHOUT WARRANTY. SUCH SERVICES MAY CONTAIN BUGS, ERRORS AND OTHER DEFECTS. Purple Phone does not make any representations, promises or guarantees that such Services will be publicly announced or made generally available. Purple Phone has no obligation to provide technical support or continued availability, and such Services can be suspended or terminated at any time by Purple Phone in its sole discretion with or without notice to Customer.
4. Third Party Products, Services or Content. The Services may contain features or functions that enable interoperation with third party products, services or content. Purple Phone may also provide access to third party products, services or content directly within the Services. Third party products, services or content, and Content in third party services are not part of the Services and are not warranted or supported by Purple Phone. Customer’s use of such third party products, services or content is subject to the terms of the third party provider. Customer is responsible for reading and understanding the Third-Party Terms before accessing or using any Third-Party Application.
5. Copyright. Purple Phone reserves the right to delete or disable any allegedly infringing content, to require that Customer terminate the Customer Accounts of Customers who are repeat infringers, and to forward the information in the copyright-infringement notice to the Customers who allegedly provided the infringing content.
6. Consent to Use Logs. Purple Phone and its service providers may collect and use Logs for purposes of facilitating the Services, including securing, managing, measuring and improving the Services. Logs may be used for purposes not specified in this Section 13.6 only in an aggregated, anonymized form.
7. Security and Privacy. Purple Phone is committed to respecting Customer’s privacy relating to personally identifiable information. When providing SaaS Services, technical support services or consulting services, Purple Phone will (a) implement and maintain the administrative, physical and technical security controls as set forth in the Privacy Notice, and (b) process personal data on Customer’s behalf as set forth in the Privacy Notice Customer agrees to provide any notices, obtain any consents or otherwise establish the legal basis necessary for Purple Phone to access and process personal and other data as specified in this Agreement. Customer agrees that Purple Phone may access all features of their Customer Account and the Services to determine whether the Services are being used fraudulently and/or in violation of this Agreement, and for any other purposes. CUSTOMER AGREES THAT PURPLE PHONE SHALL NOT BE LIABLE FOR ANY LACK OF PRIVACY. The Privacy Notice is incorporated herein by reference.
8. Suspension of Services. Purple Phone reserves the right to suspend Customer’s access to the Services if it determines, in its sole discretion, that (a) payment for the Services is not received within thirty (30) days from the date on which payment is due; (b) Customer’s use of the Services are in breach of this Agreement and not cured as required by Section 7.3 (Termination for Cause); (c) Customer failed to timely address Purple Phone’s request to take action pursuant to Section 2.3 (Violations of Limitations on Use); (d) Customer’s use of the Services poses a security or other risk to the Services or to other users of the Services; or (e) suspension is required pursuant to a subpoena, court order or other legal process. Purple Phone agrees to notify Customer of any such suspension. Customer will remain responsible for all fees incurred before or during any suspension. Purple Phone reserves the right, in its discretion, to impose reasonable Fees to restore archived data upon Customer request from delinquent accounts.
9. Voice and Data Charges; Customer Connectivity. Customer is responsible for all fees and charges imposed by Customer’s telephone carriers, wireless providers, and other voice and/or data transmission providers arising out of access to and use of the Services. If Customer’s broadband connection and/or telephone service fails, or Customer experiences a power or other failure or interruption, the Services may also cease to function for reasons outside of Purple Phone’ control.
10. Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without Purple Phone’ prior written consent, except that Customer may assign this Agreement in whole to an Affiliate, or a successor in interest as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Customer shall provide notice to Purple Phone upon completion of any permitted assignment. Any attempted assignment in violation of the foregoing shall be void. This Agreement will bind and inure to the benefit of each party’s successors or permitted assigns.
11. Export Restriction and Compliance with Laws. Customer acknowledges that the Services are subject to U.S., foreign, and international export controls and economic sanctions laws and regulations and agrees to comply with all such applicable laws and regulations, including, but not limited to, the U.S. Export Administration Regulations (“EAR”) and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). Customer also specifically agrees not to, directly or indirectly, allow access to or use of the Services in embargoed or sanctioned countries/regions, by sanctioned or denied persons, or for prohibited end-uses under U.S. law without authorization from the U.S. government. Both parties also agree to comply with all other laws, rules and regulations applicable to that party under this Agreement.
12. CALEA. Purple Phone intends to fully comply with the Communications Assistance for Law Enforcement Act (“CALEA”). By using the Services, Customer hereby agrees and consent to Purple Phone’s right to monitor and otherwise disclose the nature and content of Customer’s communications if and as required by CALEA without any further notice.
13. Audit. To the extent permitted by applicable law, Customer agrees to allow Purple Phone to audit Customer’s compliance with this Agreement pursuant to the terms below:
    • Any audit may be conducted remotely or on Customer’s premises and shall not unreasonably interfere with Customer’s business activities. Purple Phone may perform the audit or use a third-party agent, such as an independent certified public accounting firm. Purple Phone shall not audit Customer more than once per calendar year. Customer must reasonably cooperate, and, without prejudice to other rights of Purple Phone, address any non-compliance identified by the audit, including, but not limited to, promptly paying any license or Maintenance fees owed. If the audit reveals an underpayment of ten percent (10%) or more of total fees owed for the review period, or any other material breach of the this Agreement, Customer agrees to also reimburse Purple Phone for its reasonable audit expenses.
    • Purple Phone and its agent will protect confidential information obtained during the performance of the audit by using the same degree of care as Purple Phone uses to protect its own information of a like nature, but no less than a reasonable degree of care, to prevent its unauthorized use, disclosure, dissemination, or publication. Purple Phone and its agent shall not have an obligation to maintain the confidentiality of information (i) received rightfully from a third party prior to the audit; (ii) Customer has disclosed to a third party without any obligation of confidentiality; or (iii) is independently developed by Purple Phone or its agent. Customer agrees that it will not require any additional confidentiality or non-disclosure agreements to be implemented by Purple Phone or its designated third-party agents in relation to the audit.
14.  Notices. All legal notices required under this Agreement shall be in writing and delivered in person or by certified or registered express mail to the address last designated on the Customer Account, and the Purple Phone contracting entity as specified below, or such other address as either party may specify by notice to the other party as provided herein. Notice shall be deemed given (a) upon personal delivery; (b) if delivered by air courier or email, upon confirmation of receipt; or (c) five (5) days after deposit in the mail. A copy of all legal notices from Customer to Purple Phone must also be sent to support@purple-phone.com. Non- legal notices under Section 3 (Orders) may be provided by Customer to the Purple Phone email address specified on the applicable Renewal Notification and shall be deemed effective as of the date and time stamp on the Customer’s email. Purple Phone may provide Customer with non-legal notices through https:// www.purple-phone.com/ and/or through in-product messaging or dashboards, which shall likewise be deemed effective immediately.
15. Feedback. Customer hereby grants to Purple Phone a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Purple Phone’s Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the improvement, operation, or use of Customer’s Services.
16. Entire Agreement; Order of Precedence. A Term Services Agreement, the Agreement, the Order, the applicable service description, or any reference herein to the content of Purple Phone’s websites constitute the entire agreement and understanding of the parties relating to the Services and Content and supersedes all prior and contemporaneous oral and written agreements. For any conflict between these terms and any supplementary BAA terms related to PHI, this Agreement shall control. For any conflict between these terms and the Services Descriptions related to the Services, these terms shall control. For any conflict between these terms and the Term Services Agreement, the Term Services Agreement shall control. Except as provided for in the previous sentence regarding the Term Services Agreement, nothing contained in any Order or other document submitted by Customer shall in any way add to or otherwise modify the Agreement or any Purple Phone license program terms under which an Order is submitted.
17. Changes. Purple Phone may revise and update these Terms of Use from time to time in its sole discretion. All changes are effective immediately once they are posted, and apply to all access to and use of the Services thereafter. However, any changes to the dispute resolution provisions set out in Section 12 (Dispute Resolution and Binding Arbitration) will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on the Website. Customer’s continued use of the Services following the posting of a revised version of this Agreement means that it accepts and agrees to the changes. Customer is expected to check this Agreement from time to time so that it is are aware of any changes, as they are binding on Customer.
18. General Terms. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement. The provisions of Sections 1 (Definitions), 2.2 (Limitations on Use), 2.4 (Proprietary Rights), 2.5 (Open Source Software), 3 (Orders), 7.4 (Effect of Termination), 8 (Content and Customer Accounts), 10 (Indemnification and Waiver of Claims), 11 (Limitation of Liability), 12.2 (Contracting Party, Choice of Law and Location for Resolving Disputes), 13.14 (Notices), and 13.18 (General Terms) shall survive any termination of the Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect. The parties are independent contractors and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between or among the parties. Purple Phone may subcontract responsibilities under this Agreement, but remains responsible for its breach of this Agreement by the acts or omissions of Purple Phone or its subcontractors. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof. Purple Phone authorized resellers and distributors do not have the right to make modifications to this Agreement or to make any additional representations, commitments, or warranties binding on Purple Phone. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on any party unless agreed to in writing by such party. Purple Phone failure to enforce any term of this Agreement will not be construed as a waiver of the right to enforce any such terms in the future. Unless otherwise specified, remedies are cumulative. This Agreement may be agreed to online, by use of the Services and/or executed by electronic signature and in one (1) or more counterparts. Neither party will be responsible or have any liability for any delay or failure to perform its non-monetary obligations hereunder to the extent due to unforeseen circumstances or causes beyond its reasonable control, including acts of God, earthquake, fire, flood, sanctions, embargoes, strikes, lockouts or other labor disturbances, civil unrest, failure, unavailability or delay of suppliers or licensors, riots, terrorist or other malicious or criminal acts, war, failure or interruption of the internet or third party internet connections or infrastructure, power failures, acts of civil and military authorities and severe weather (“Force Majeure”). The affected party will give the other party prompt written notice (when possible) of the failure to perform due to Force Majeure and use its reasonable efforts to limit the resulting delay in its performance.
19. 1.