LoopUp Terms of Service
version 4_2, last updated November 1, 2018
IMPORTANT: YOU, OUR CUSTOMER, MUST READ THIS AGREEMENT CAREFULLY AS YOU WILL BE BOUND BY THIS AGREEMENT IF YOU USE ANY OF OUR SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF ANOTHER PERSON (NATURAL OR LEGAL) YOU WARRANT THAT YOU HAVE AUTHORITY TO DO SO. THE SERVICES ARE NOT A SUBSTITUTE FOR A FIXED OR MOBILE SERVICE AND CANNOT BE USED TO CALL EMERGENCY NUMBERS OR EMERGENCY SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, OR YOUR USE (OR OUR SUPPLY TO YOU) WOULD BE CONTRARY TO ANY EXPORT LAW IN ANY JURISDICTION, DO NOT USE OUR SERVICES.
WHO YOUR AGREEMENT IS WITH (UNLESS OTHERWISE AGREED IN WRITING): IF YOU ARE RESIDENT IN THE USA OR CANADA, YOUR AGREEMENT IS WITH LOOPUP LLC OF 282 2ND STREET, SUITE 200, SAN FRANCISCO, CA 94105, USA, A NEVADA CORPORATION T/A LOOPUP (‘LOOPUP USA’). IF YOU ARE RESIDENT IN HONG KONG, YOUR AGREEMENT IS WITH LOOPUP LIMITED OF LEVEL 43, AIA TOWER, 183 ELECTRIC ROAD, NORTH POINT, HK, INCORPORATED IN HK, COMPANY #: 1611980, BUSINESS REGISTRATION #: 58468840-000-06-11-4, SBO CLASS 3 (TELECON) LICENCE # 1607 T/A LOOPUP (‘LOOPUP HK’). IF YOU ARE RESIDENT IN AUSTRALIA OR NEW ZEALAND, YOUR AGREEMENT IS WITH LOOPUP AUSTRALIA PTY LTD OF 100 HARRIS STREET, PYRMONT, SYDNEY NSW 2009, INCORPORATED IN NEW SOUTH WALES, AUSTRALIA, COMPANY # 621 214 051 T/A LOOPUP (‘LOOPUP AUSTRALIA‘).IF YOU ARE RESIDENT ELSEWHERE, YOUR AGREEMENT IS WITH LOOPUP LIMITED OF THE TEA BUILDING, 56 SHOREDITCH HIGH ST, LONDON E1 6JJ, UK, INCORPORATED IN ENGLAND, COMPANY #: 4677393, VAT #: 832 3613 49, T/A LOOPUP (‘LOOPUP UK’).
PART 1 – INTERPRETATION
1.1 In this Agreement:
- ‘Access Code‘ means a code, join link or other identifier that allows access to a Conference.
- ‘Account Data’ means personal data provided to us for billing and administering your account including for provisioning Users.
- ‘Administrator’ means your representative, who will be the main point of contact with us.
- ‘Agreement’ means, in descending order of priority in case of conflict: any Separate Terms; your Order Form; the applicable Rate Sheet(s); Third Party Terms; and these Terms of Service.
- ‘Allowed Number’ means a geographic, mobile/cell or other number which is listed (or is of a type that is listed) in a Rate Sheet, EXCLUDING EMERGENCY NUMBERS, PREMIUM RATE NUMBERS, DIRECTORY SERVICE NUMBERS AND ANY NUMBER THAT WE BLOCK FOR SERVICE CONTINUITY OR ANTI-FRAUD PURPOSES.
- ‘Business Day’ means a day from Monday to Friday excluding any national, bank or public holiday applying in the resident country of the LoopUp party with whom you have your Agreement and ‘Business Hours’ are 09:00 to 17:00 on a Business Day.
- ‘Charges‘ means the fees and charges for the Services as set out in, and calculated in accordance with, the relevant Rate Sheet.
- ‘Conference‘ means any communication session (whether audio, data, video or otherwise) using the Services.
- ‘Confidential Information‘ means any information of a confidential nature, whether or not identified as such in writing, disclosed by one party (‘Disclosing Party’) to the other party (‘Recipient’), including: trade secrets; the terms of this Agreement; pricing for a Service; and strategic, marketing, financial, employee or other secret information regarding a party’s business. Confidential Information does not include information that: is in or enters the public domain other than due to breach of this Agreement or breach of a duty of confidentiality owed to a party to this Agreement; the Recipient can demonstrate was in its possession prior to disclosure to it by the Disclosing Party; or is provided to the Recipient by a third party who is not under a duty of confidentiality regarding that information.
- ‘Customer Content‘ means any content any person uploads, records or otherwise transmits through the Services through use of your Account, including voice, data, photographs, caricatures, illustrations, designs, icons, articles, text, audio clips, and video clips.
- ‘Emergency Number‘ means 911 in the USA, 999 and 112 in the UK and similar, non-geographic numbers for emergency services worldwide.
- ‘Essential New Version‘ means a version of the Software made available by us to supersede a pre-existing version of the Software that we notify you must be installed in order to ensure continued use of the Services.
- ‘Export Laws‘ means the export laws of any jurisdiction world-wide including the US Export Administration Regulations.
- ‘Force Majeure‘ means any circumstance not within the reasonable control of a party including any: strike, labour dispute; war; riot; act of terrorism; act of God; breakdown or disruption to any computer or telecommunications system (for the avoidance of doubt not including our or our suppliers’ or contractors’ computers or telecommunications systems); and governmental action.
- ‘Group‘ means, in relation to a party, the party referred to and any company controlling, controlled by, or under common control with that party.
- ‘Intellectual Property Right‘ or ‘IPR‘ means any copyright, design right, database right, trade mark, trade name, domain name, patent, right protecting goodwill, Confidential Information or know-how, an application or registration for any of the above, and rights of a similar nature or equivalent effect worldwide.
- ‘Material‘ means any information, documents, data or other materials provided by us to you in any current or future medium.
- ‘Operator-Assisted Call‘ or ‘OA Call‘ means a conference call where we provide a person to act as an operator to assist you during the call, available by dialling *0 or similar method; and ‘OA Call Details Form’ means the form we provide you setting out the necessary details for an OA Call, as may be updated from time to time.
- ‘Order Form‘ means your request for a Service in our standard form, including your name and address.
- ‘Our Account‘ means the bank account details for your LoopUp counterparty set out on your invoice or otherwise notified by us to you.
- ‘Password‘ means the password used by a User in conjunction with their username to access a Service or Software.
- ‘Permitted Use Policy‘ means our policy setting out how you may and may not use a Service, as amended from time to time.
- ‘Profile‘ means the personal details for a User within your account, including their Access Codes and Password.
- ‘Rate Sheet‘ means plan details and/or provided rate(s) setting out the charges applicable to a Service or otherwise notified to you by us in accordance with this Agreement.
- ‘Separate Terms‘ means any additional separately negotiated terms and conditions agreed and signed by the parties to this Agreement and expressed to take priority over the rest of this Agreement.
- ‘Service Data‘ means personal data provided to us directly or indirectly through use of Services.
- ‘Services‘ means the services provided by us to you, which may include Third Party Services.
- ‘Software‘ means any software provided or licensed by us to you under this Agreement in any current or future format, including any Third Party Software unless the context expressly dictates otherwise.
- ‘Support‘ means the support service provided by us at the telephone number and email (currently firstname.lastname@example.org) we notify to you from time to time.
- ‘System‘ means the system we use to provide any of our Services.
- ‘Takedown Policy‘ means our policy concerning requests to take down Customer Content, as amended from time to time.
- ‘Us‘, ‘we‘ and ‘our‘, whether capitalised or not, means the LoopUp party with whom you have your Agreement.
- ‘User‘ means you and any person whom you notify us is to be provisioned on or with a Service.
1.2 Headers are provided for convenience only and will not affect the interpretation of this Agreement. The schedules to this Agreement are incorporated into and form part of this Agreement. In this Agreement, a reference to: a person includes a reference to a natural or legal person and that person’s successors and permitted assigns; the singular includes the plural, the masculine includes the feminine and vice versa; ‘including’ means ‘including without limitation’; and ‘writing’ means any legible, visible and permanent form including hand-written and printed documents, facsimile and electronic mail communications (including printed records thereof).
2. Formation of Contract
3. Private Carrier
3.1 For the purposes of US law and regulation, we are a private carrier, not a common carrier, and we may exercise our termination rights under this Agreement discriminatorily amongst similarly-situated customers.
PART 2 – SERVICES, IPR & SUPPORT
4.1 In consideration of your payment of the Charges, and continued compliance with this Agreement, we will provide you with the Services identified in your Order Form. We are entitled to rely on instructions from your Administrator and from any person your Administrator identifies as having, or whom we reasonably believe to be acting with, your authority as Administrator.
4.2 You acknowledge and agree that: each Service provided under this Agreement has the capabilities, benefits and limitations (including the maximum number of contemporaneous guests) as set out in its then-current service descriptions which we may change without notice; dial-in numbers and Access Codes are our property and neither you nor Users may sell, transfer, or otherwise deal in the dial-in numbers and Access Codes and must stop all use of the same when notified to do so by us; we reserve the right to suspend the use of a Password or Access Code if we suspect fraudulent use or other use of our Services in breach of this Agreement; and that we may need to replace Passwords and Access Codes from time to time for technical, operational and security reasons.
4.3 YOU ARE LIABLE FOR USE OF THE SERVICES AS SET OUT IN THIS AGREEMENT INCLUDING CLAUSE 11.1. YOU MUST USE REASONABLE EFFORTS TO KEEP ACCESS CODES (WHICH INCLUDE JOIN LINKS) AND PASSWORDS CONFIDENTIAL AND YOU AND YOUR USERS MUST NOT PUBLISH THE SAME (ON THE INTERNET OR OTHERWISE) IN A WAY THAT IS ACCESSIBLE BY UNAUTHORISED THIRD PARTIES. FOR THE AVOIDANCE OF DOUBT IF AN UNAUTHORISED THIRD PARTY CARRIES OUT UNAUTHORISED USE OF THE SERVICES HAVING OBTAINED AN ACCESS CODE (INCLUDING A JOIN LINK) OR PASSWORD DUE TO PUBLICATION OR OTHER DISSEMINATION OF THE SAME BY YOU OR YOUR USERS, YOU ARE LIABLE FOR SUCH USE.
4.4 Before each Operator-Assisted Call you request, you must provide us with a completed OA Call Details Form, which is incorporated into your Order Form. Where we agree Charges different to our Rate Sheet for such calls, the OA Details Form must contain such Charges and be signed by both parties prior to the relevant call.
5. Software Licences
5.1 If we provide any Software (other than Third Party Software) to you and/or Users, we grant you a non-exclusive, non-sub-licensable and non-transferable licence, for the duration and purposes of this Agreement only, to: (a) allow you and Users to install a copy of such Software onto your and their computers and devices solely for use of the same with the relevant Service in accordance with this Agreement; (b) save such Software onto your computer system solely to provision Users with the same; (c) use such Software and Materials provided to you so that you and Users may use the same; in all cases, for the limited purpose of the intended use of the Services. This licence is limited to licensees and jurisdictions where the use of the Software or Services is not contrary to any Export Law or other applicable law.
6. Third Party Services and Third Party Software
6.1 If we provide any Third Party Software or Third Party Service to you and/or Users, the relevant Third Party Terms for such service of which you have been notified by us or the relevant third party prior to your order or first use (if earlier) will apply.
7. IPR Ownership
7.1 You acknowledge that all IPR in and title to the System, Software, Materials and our Confidential Information are owned by us or our licensors and that you have no right in the same other than the licence granted in this Agreement. Any such licence to Software is limited to the object code and you acknowledge that you have no right in or title to the source code of any Software. Nothing in this Agreement should be construed as granting any licence, right in or title to any of our trade marks to you or Users, including LOOPUP, RING2 and CALLEFFECT. You will not, and you will ensure that Users will not: reverse engineer or decompile the Software; translate, modify, rent, lease, sub-license, adapt, or create derived works based on the Software or Materials; nor use the Software or Materials for any use which is not purely to receive a Service. This is without prejudice to your right to distribute Software to Users in accordance with this Agreement nor any right you may have which, under any applicable law, may not be excluded by contract provided that you satisfy all conditions prior to exercising such rights, including payment of any reasonable fee.
8.1 At any time, and free-of-charge, you and Users may access the help pages on our website and contact Support. We may monitor and record any communication between you or Users and Support for lawful business reasons including security, training and quality assurance. At our sole discretion, we may refuse to support any version of Software that has been superseded by another version as from six (6) months after the date the new version in question was made available to you, and for any version that has been superseded by an Essential New Version as from the date the Essential New Version was made available to you. We will be not be liable for any loss or damage suffered by you connected with or due to your use of a particular version from the date that a superseding version of the Software has been made available to you. We will provide as much notice as is reasonably practicable to you of any Essential New Version and you must install the same promptly when so notified.
8.2 You acknowledge that we may need to suspend any or all of the Services from time to time for planned or emergency maintenance. We will provide you with as much notice as is reasonably practicable of any planned or emergency maintenance, noting the services affected and the period for which they are expected to be affected. We may, at our sole discretion, without prejudice to any other right or benefit we may have under this Agreement, immediately suspend the provision of any or all of the Services to you or Users: (a) if you have not paid any part of an invoice by the due date for payment of that invoice and any part of such sum remains unpaid seven (7) days after you receive non-payment notice from us to pay such sum; and (b) if we have reasonable grounds to believe that: (i) a Service is being used in breach of clauses 10; (ii) we are entitled to terminate this Agreement under clause 17.2; (iii) your conduct may create liability for us or our suppliers; or (iv) we are obliged to comply with an order, instruction or request of a court, government agency, emergency service organisation or other legally competent administrative or regulatory authority.
PART 3 – CHARGES & PAYMENT
9.1 We will invoice the Charges to you monthly in arrears or as otherwise set out in the applicable Rate Sheet. We will deliver invoices by way of email, and reserve the right to issue invoices by post or in such other manner as may be agreed by the parties, to the person identified in the Order Form or otherwise notified by you to us. We may change the Charges on 30 days’ notice. The new Charges will take effect on the date set out in the relevant notice. All Charges are stated exclusive of and subject to any applicable tax (including sales tax or value added tax), duty, regulatory fee or surcharge or government levy, which will be invoiced by us and paid by you at the prevailing rate. Unless otherwise stated in the Rate Sheet(s), our invoices are due and payable thirty (30) days from receipt. You will pay invoices without any set-off or counterclaim and without any withholding or deduction unless required by law, in which case you will provide us with any document necessary to enable us to recover or obtain a credit for the amount withheld or deducted. All time-based use of the services is calculated (and charged where chargeable) at 1-minute increments.
9.2 If you have reasonable grounds to dispute any portion of an invoice, you must pay the undisputed portion, and notify us of the grounds for disputing the remainder. Our records of your usage will be presumed accurate unless proved otherwise. If such a dispute is resolved against you, you will pay the relevant portion of the invoice and interest according to clause 9.3. You waive any right to challenge invoices not disputed within one (1) year of the date of the relevant invoice, in accordance with this clause 9.2. We will issue you a credit note if we over-charge you in any invoice. Conversely, we reserve the right to issue you an invoice correcting any under- or mis-billing in an invoice dated in the preceding six (6) months, unless the under- or mis-billing was due to your breach or fraud, in which case we will invoice for the full period allowable by law.
9.3Interest will accrue and be paid by you on any sum invoiced but not paid in accordance with this Agreement from the date it is payable until payment (whether before or after any judgement) at the lower rate of 1.5% per month or the maximum amount allowed by law. If you do not pay any part of an invoice in accordance with this clause 9, we may serve a notice on you under clause 17.2(b).
9.4If a minimum spend applies to your Agreement and the Charges arising from your use of the Service in question based on the Rate Sheet are less than the minimum spend in any calendar month, we will invoice, and you will pay, the minimum spend in respect of such Charges for that calendar month. If such Charges are equal to or more than the minimum spend in any calendar month, you will pay the actual Charges.
PART 4 – YOUR OBLIGATIONS
10. Permitted Use & Users
10.1 You will, and you will use reasonable efforts to ensure that Users will: (a) at all times use the Services in good faith and in accordance with the Permitted Use Policy; and (b) only use the Software and Materials in accordance with this Agreement. You will be liable for all use of the Services by Users. A person may only become a User if they are: your director, officer (including, if you are a partnership, a partner), employee, agent, subcontractor or consultant and you have adequate contractual rights to enforce compliance with this Agreement. You acknowledge that we may block access to, delete or take down any Customer Content or other material according to the Takedown Policy or in our sole discretion.
11. Passwords & Access Codes
11.1 To allow you and Users to use the Services, we will issue you and Users with Access Codes and they create a Password. You acknowledge that it is your responsibility to ensure that you and Users keep Passwords secret and confidential, and only disclose the guest Access Codes to their guests. You must notify us immediately if a Password or Access Code is compromised and we will issue a replacement. YOU ARE LIABLE FOR, AND WILL PAY ALL CHARGES FOR, ANY USE OF A SERVICE BY ANY PERSON, WHETHER A USER OR A THIRD PARTY, USING ANY SUCH PASSWORD OR ACCESS CODE TO THE EXTENT THAT SUCH USE BY ANY PERSON IS EITHER (1) BY OR AUTHORISED BY YOU OR YOUR USERS OR (2) IS AS A RESULT OF AN ACT OR OMISSION (INCLUDING BREACH, FRAUD OR NEGLIGENCE) BY YOU OR YOUR USERS, UNLESS AND UNTIL YOU NOTIFY US THAT THE PASSWORD OR ACCESS CODE IN QUESTION HAS BEEN LOST OR COMPROMISED. YOUR LIABILITY FOR ANY SUCH CHARGES WILL CEASE AT THE TIME THAT THE LOSS OR COMPROMISE OF THE PASSWORD OR ACCESS CODE IN QUESTION IS NOTIFIED TO US.
12. Your Acknowledgements
12.1 YOU ACKNOWLEDGE AND AGREE THAT: (1) WE MAY ACCESS ANY SERVICE AS YOU OR A USER TO MONITOR, TEST AND SUPPORT A SERVICE PROVIDED THAT WE WILL NOT BECOME A PARTY TO ANY LIVE CONFERENCE WITHOUT THE EXPRESS PRIOR CONSENT OF THAT CONFERENCE’S USER; (2) THE PERFORMANCE OF A SERVICE IS DEPENDENT ON THE PERFORMANCE OF YOUR AND END USERS’ OWN TELEPHONE, COMPUTER OR OTHER DEVICE, SOFTWARE AND INTERNET CONNECTION AND YOU HAVE SOLE RESPONSIBILITY FOR THE PROVISION OF AND USE OF THE SAME, AT YOUR OWN COST; (3) ALTHOUGH 0800 FREEPHONE / TOLL-FREE NUMBERS CAN BE CALLED USING CERTAIN SERVICES, WE WILL CHARGE FOR SUCH CALLS ACCORDING TO THE RATE SHEET; AND (4) THAT THE SERVICES ONLY ALLOW CALLS TO ALLOWED NUMBERS AND DO NOT, FOR THE AVOIDANCE OF DOUBT, ALLOW CALLS TO ANY OTHER NUMBERS, INCLUDING EMERGENCY NUMBERS.
PART 5 – WARRANTIES & LIABILITY
13.1 We warrant that we will provide the Services to you in accordance with this Agreement and with reasonable care and skill.
13.3 Each party warrants that the person signing this Agreement has been fully authorised to do so on that party’s behalf, and that execution of this Agreement is not in conflict with any law, article of association or any agreement to which that party is bound.
14. Exclusion of Warranties/Disclaimer
14.1 ALTHOUGH WE USE REASONABLE EFFORTS TO ENSURE THAT THE SOFTWARE AND SERVICES ARE ERROR-FREE AND VIRUS-FREE, YOU AGREE THAT THE SOFTWARE AND SERVICES ARE PROVIDED ON AN ‘AS IS’ BASIS. WE DO NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL BE AVAILABLE AT ALL TIMES, OR ARE FREE OF ERRORS. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL CONDITIONS OR WARRANTIES THAT MAY OTHERWISE BE IMPLIED BY LAW INTO THIS AGREEMENT INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY AND FITNESS FOR PURPOSE.
15. Limitation of Liability
15.1 NOTHING IN THIS AGREEMENT WILL OPERATE TO LIMIT OR EXCLUDE ANY LIABILITY THAT, UNDER APPLICABLE LAW, CANNOT BE LIMITED OR EXCLUDED.
15.2 SAVE FOR ANY ACTION TO RECOVER INVOICED BUT UNPAID CHARGES AND THE IPR INDEMNITY IN CLAUSE 16.2:
15.2(a) EACH PARTY’S LIABILITY TO THE OTHER PARTY IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE IS LIMITED TO THE TOTAL SUMS PAYABLE BY YOU UNDER THIS AGREEMENT IN THE ONE YEAR PRIOR TO NOTIFICATION OF ANY CLAIM BY ONE PARTY TO THE OTHER; AND
15.2(b) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE: (I) TO THE EXTENT SUCH LOSS OR DAMAGE IS DUE TO THE ACT, OMISSION OR NEGLIGENCE OF THE OTHER PARTY, ITS OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS; NOR (II) FOR ANY LOSS OF DATA, LOSS OF REVENUE OR LOSS OF PROFIT (WHETHER DIRECT OR INDIRECT LOSS), NOR FOR ANY CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, EVEN IF PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
15.3 IN NO EVENT WILL WE BE LIABLE TO YOU IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY LOSS OR DAMAGE DUE TO OR CAUSED BY: SUSPENSION OF ALL OR ANY PART OF A SERVICE UNDER CLAUSE 8.2; THE INTERRUPTION OR SUSPENSION OF ANY SERVICE DUE TO FORCE MAJEURE; PROVIDING ACCESS TO A SERVICE PROVIDED TO YOU BY A THIRD PARTY (NOT BEING A THIRD PARTY SERVICE); OR FAILURE TO MAKE A CALL TO ANY EMERGENCY NUMBER; OR RELIANCE ON INSTRUCTIONS RECEIVED FROM THE FOLLOWING CLASSES OF PEOPLE IN CARRYING OUT OUR OBLIGATIONS UNDER THIS AGREEMENT:
15.3(a) YOUR ADMINISTRATOR (OR PERSON THAT WE ARE REASONABLY ENTITLED TO BELIEVE IS ACTING AS ADMINISTRATOR) RELATING TO THIS AGREEMENT AND YOUR ACCOUNT, INCLUDING THE CHANGE TO OR TERMINATION OF THIS AGREEMENT OR YOUR ACCOUNT OR CREATION OF, CHANGE TO OR TERMINATION OF A USER’S PROFILE; AND
15.3(b) A USER OR THEIR DELEGATE RELATING TO THAT USER’S PROFILE, INCLUDING CHANGES TO THAT USER’S PROFILE AND THE CREATION OF, CHANGES TO AND TERMINATION OF A DELEGATE TO THAT PROFILE.
15.4 EITHER PARTY MUST GIVE NOTICE OF ANY CLAIM UNDER THIS AGREEMENT TO THE OTHER PARTY WITHIN ONE YEAR OF THE CLAIM ARISING.
16.1 Subject to clause 15, you will indemnify the LoopUp Group, our officers, employees, agents and contractors against all reasonable and direct costs (including reasonable lawyers’ costs), damages and losses that such person may suffer (including damage to the Services, our website, the System and claims by a third party) arising out of or connected to any: act or omission by you, your officers, employees, agents, contractors and End Users other than in accordance with the terms of this Agreement; and any use of a Service other than in accordance with the terms of this Agreement or any applicable law.
16.2 We will indemnify you against any reasonable and direct costs (including reasonable legal costs), damages and losses incurred by you to the extent that the same arise out of or are connected to a claim brought by a third party alleging that the Software directly infringes that third party’s IPR. If such a claim is made, we may, at our sole discretion: change the Software to avoid any potential infringement; obtain the rights for you to continue using the Software; or terminate this Agreement. This clause 16.2 sets out your sole remedy in relation to such third party claims. This clause 16.2 does not apply to alleged infringements or infringements caused by use of Software in conjunction with equipment, software or services not supplied by us, or related to Software we created according to your instructions, for which you will indemnify the LoopUp Group, our officers, employees, agents and contractors. As conditions to the right to indemnification under this clause 16, any party claiming to be indemnified must: at all times take all reasonable steps to mitigate any such liability; notify the indemnifying party of any such claim promptly in writing; give the indemnifying party sole control of any defence; cooperate with the indemnifying party in the defence, at the indemnifying party’s cost; not settle without the indemnifying party’s prior written approval (which will not be unreasonably withheld or delayed); and must at no time be in breach of any of its obligations under this Agreement.
PART 6 – TERM & TERMINATION
17. Term & Termination
17.1 Subject to other parts of this Agreement which take priority, each party may terminate this Agreement without cause on one month’s notice. We are a private carrier, not a common carrier, and we may exercise our termination rights under this Agreement discriminatorily amongst similarly-situated customers. You may terminate this Agreement in respect of a particular Service without prejudice to the continuation of any other Service under this Agreement. However, if on such termination you are receiving no other Service under this Agreement, this Agreement will immediately terminate.
17.2 Subject to other parts of this Agreement which take priority, either party may terminate this Agreement immediately by notice:
17.2(a) due to a material breach of this Agreement by the other party which is incapable of remedy;
17.2(b) due to a material breach of this Agreement by the other party which is capable of remedy (including non-payment of any invoice), but which that party has not remedied within seven (7) days of having been given notice to do so;
17.2(c) if, regarding this Agreement, Force Majeure has continued for a period of at least three months; and
17.2(d) if the other party has a receiver or administrative receiver appointed over it or any part of its assets, business or undertaking or passes a resolution for winding up (other than for a bona fide scheme of reconstruction or solvent amalgamation) or a court of competent jurisdiction makes an order to that effect or if the other party becomes subject to an administration order or enters into any voluntary arrangement with its creditors or ceases or threatens to cease carrying on its business, has a liquidator appointed, enters into liquidation, or suffers or undergoes an analogous proceeding under any foreign law.
18. Consequences of Termination
18.1 On termination of this Agreement: all un-invoiced Charges will become due; we will issue an invoice to you regarding the same and you will pay the invoice according to clause 9; all licences granted under this Agreement will immediately terminate; you will immediately cease (and ensure Users cease) all use of the Services, System, Materials and Software; you will immediately return or destroy all Materials, Software, our Confidential Information and any copies made by you or Users in any current of future medium; any rights and obligations to which the parties are entitled or subject prior to termination will continue in force; clauses 1, 2, 7, 9, 12, 14, 15, 18, 20, 23 and 24 will continue in force; and all other rights and obligations of the parties under this Agreement will cease.
PART 7 – PRIVACY & INFORMATION
19. Privacy & Data Protection
20.1 The Recipient will maintain the Disclosing Party’s Confidential Information in the strictest confidence, will not make use of the Confidential Information other than for the purpose of carrying out this Agreement, and will only make such copies of any of the Confidential Information as are reasonably necessary for carrying out this Agreement. The Recipient will not disclose any of the Disclosing Party’s Confidential Information to any third party without the Disclosing Party’s prior written consent, save that the Recipient may disclose the Confidential Information: to those of its employees, agents or contractors who need to have access to it for the Recipient to carry out its obligations under this Agreement, provided that the Recipient ensures that such person is bound by written obligations (in an employment contract or otherwise) to keep the Confidential Information confidential and to use it solely for carrying out this Agreement; and in accordance with any law or order of a court or other legally competent authority or regulatory body, provided that the Recipient gives the Disclosing Party as much notice of the disclosure as is reasonably practicable. The Recipient will, on the Disclosing Party’s request at any time, immediately return or destroy all such documents or other material containing or embodying the Disclosing Party’s Confidential Information, together with all copies in any medium, and will ensure compliance with this clause by any person to whom such information has been disclosed. The Recipient acknowledges that disclosure of any of the Disclosing Party’s Confidential Information in breach of this clause may cause irreparable damage to the Disclosing Party, that damages may not be an adequate remedy, and that the Disclosing Party will be entitled to apply for an injunction to prevent or minimise any threatened or actual breach of this clause 20.
PART 8 – MISCELLANEOUS
21. Entire Agreement, Counterparts & Changes
21.1 This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes any prior agreements, undertakings, representations, warranties and arrangements of any nature, relating to the same. Each party acknowledges that it has not been induced to enter into this Agreement by any representation or warranty other than those contained in this Agreement and agrees that it has no remedy in respect of any other such representation or warranty except in the case of fraud. For the avoidance of doubt, this is an agreement for services and the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded. Each party acknowledges that its legal advisers have explained to it the effect of this clause. This Agreement may be executed in any number of counterparts, which will together constitute one agreement. A copy of this Agreement that is executed by a party and transmitted by that party to the other party by facsimile or email will be binding upon the signatory to the same extent as a copy hereof containing the signatory’s original signature.
21.2 We may change this Agreement on at least thirty (30) days’ notice to you (‘Amended Agreement’). Any Amended Agreement will take effect from the date set out in the notice and will replace and supersede all previous versions of the relevant terms. If you do not wish to accept an Amended Agreement, you may terminate this Agreement on at least seven (7) days’ notice to us, to expire on or before the effective date of the Amended Agreement. Your continued use of a Service beyond any Amended Agreement’s effective date is your agreement to such Amended Agreement.
22. Export & Government Use
22.1 You acknowledge that some or all of the Software and Services are subject to the Export Laws, which may restrict the export and re-export of the Software and Services. You therefore warrant that: (i) our supply of Services or Software to you will not be a breach of any Export Laws; and (ii) you will not use, export or re-export the Software or Services in breach of any Export Law. You agree that we may refuse to provide, or decide to terminate provision of any person with a Service if in our sole discretion we believe that to do so would be in breach of any Export Law.
22.2 For the avoidance of doubt, use of the Software and Services by the United States Government or other governmental agencies shall be as “restricted computer software” or “limited rights data” as set forth in “Rights in Data – General” at 48 CFR 52.227-14, or as “commercial computer software” or “commercial computer software documentation” under DFARS 252.227-7015, or under such other similar applicable terms and conditions to prevent the transfer of rights in and to the technology to the government other than under normal commercial licensing terms and conditions.
23.1 Any notice given under or in connection with this Agreement must be given in writing, in English, properly addressed and either: hand-delivered (deemed given when delivered); sent by first class pre-paid post (deemed given seven (7) Business Days after the date of posting); or sent by email to that party’s email address for notices (deemed given when sent, provided no message of non-delivery is received by the sender). Any notice delivered or sent outside Business Hours will be deemed delivered or sent at the start of the next Business Day. Subject to notification of any change: your notice details are set out in your Order Form; our notice details are email@example.com and the respective postal address set out above for the LoopUp party with whom you have this Agreement.
24. Dispute Resolution & Governing Law
24.1 If any dispute arises in connection with this Agreement, the parties will: (1) first attempt to settle it by negotiation; failing which (2) the parties will follow the applicable regulatory dispute resolution service, if any (if you are resident in the UK, this is set out in our Complaints Code of Practice; if you are resident in Germany, disputes over matters stipulated in Section 47a (1) Telekommunikationsgesetz (TKG) will be resolved using the dispute resolution procedure offered by the Bundesnetzagentur (‘BNA’) in Bonn by filing an application with the BNA); or (3) if no regulatory dispute resolution service is applicable, the parties will refer it to mediation under clause 24.2, the commencement of which will not prevent a party commencing or continuing legal proceedings for interim relief, including an injunction, to protect its Confidential Information or Intellectual Property Rights.
24.2 This clause 24 sets out the governing law for your Agreement and the body whose mediation rules will apply to any mediation and who will nominate the mediator, unless otherwise agreed between the parties. This Agreement shall be governed by, and construed in accordance with, the law set out below, excluding its conflict of laws principles. Subject to clause 24.1, any action seeking enforcement of this agreement or any provision hereof shall be brought exclusively in the state or federal courts located in the jurisdiction below and each party hereby agrees to submit to the jurisdiction of such courts and waives any objection to such courts’ jurisdiction on the grounds that such proceedings have been brought in an inappropriate forum.
24.2(a) If your Agreement is with LoopUp USA: the governing law and jurisdiction is that of the State of New York; the mediation rules will be those of, and the mediator will be appointed by Judicial Arbitration and Mediation Services, Inc. (‘JAMS’); and any mediation will take place in New York City, USA.
24.2(b) If your Agreement is with LoopUp HK: the governing law and jurisdiction is that of Hong Kong; the mediation rules will be those of, and the mediator will be appointed by the Hong Kong International Arbitration Centre (‘HKIAC’); and any mediation will take place in Hong Kong.
24.2(c) If your Agreement is with LoopUp Australia: the governing law and jurisdiction is that of New South Wales, Austrlaia; the mediation rules will be those of, and the mediator will be appointed by the Australian Mediation Association; and any mediation will take place in Sydney, Australia.
24.2(d) If your Agreement is with LoopUp UK: the governing law and jurisdiction is that of England; the mediation rules will be those of, and the mediator will be appointed by the Centre for Effective Dispute Resolution (‘CEDR’); and any mediation will take place in London, UK.
25.1 You agree that you shall comply with all applicable anti-corruption and anti-bribery laws, including but not limited to the Bribery Act 2010 and U.S. Foreign Corrupt Practices Act 1977, as amended, (collectively referred to as the “Anti-Corruption Laws”). You agree that while working with us you will not, directly or indirectly, provide anything of value to any person, including any public or government official (including an official, employee, representative of a public international organization, or official, member, or candidate for a political party) for the purpose of improperly or unlawfully influencing the recipient. Breach of this clause shall be deemed a breach of this Agreement and we shall take appropriate action, which includes the right to immediately terminate this agreement and suspend all service provided to you.
26.1 Neither party will be in breach of this Agreement or otherwise liable to the other party as a result of any delay or failure in the performance of its obligations under this Agreement to the extent that such delay or failure is caused by Force Majeure and the time for performance of the relevant obligation shall be extended accordingly. Nothing in this clause exempts you from paying any invoiced Charges due to Force Majeure and interest will continue to apply to unpaid amounts according to clause 9.3.
26.2 No person who is not a party to this Agreement will have any rights under any law (including the UK Contracts (Rights of Third Parties) Act 1999) to enforce any term of this Agreement and no consent is required from any third party to amend this Agreement. While we may use contractors to provide any Service, such use will not release us from any obligation or liability under this Agreement. We may assign this Agreement, or any or all of our rights under this Agreement, on notice to you. You may not assign this Agreement or part thereof to any competitor of the LoopUp Group; otherwise you may assign this Agreement in its entirety to any other person on prior written notice to us. This Agreement shall be binding upon, and shall inure to the benefit of, the successors, assigns, and personal representatives of each of the parties.
26.3 No failure or delay by either party to exercise or enforce any right or benefit under this Agreement will be deemed a waiver of such neither right or benefit, nor operate to prevent or limit the future exercise or enforcement of that right or benefit. If any term or condition of this Agreement is held invalid, void or otherwise unenforceable by any court, governmental agency or authority of competent jurisdiction, the remainder of this Agreement will remain valid and enforceable. The parties are independent contractors and nothing in this Agreement, and no action taken by either party, will constitute or be deemed to constitute a partnership, agency or joint venture between the parties.