Terms of Service for FONENTRY Partner
Last Updated: December 03, 2019
Thank you for choosing FONENTRY for your business.
When you use our products and services you’re agreeing to our terms, so please read these Terms of Service carefully as they contain important information regarding your legal rights and obligations.
FONENTRY provides online business management software services designed specifically for businesses offering pay-as-you-go and term membership services (“Software Service”). You can access our Software Service via the client login page on our Website and through our Apps.
These Terms of Service (“Agreement”) apply to any use of and access to our Software Service, Website or Apps (collectively, “Services”) by you and your Affiliates. By accessing or using the Services (or enabling an Affiliate to access or use the Services), you are indicating that you have read this Agreement and agree to be bound by its terms. If you do not agree with all of the terms of this Agreement, you may not access or use any Services.
This Agreement is effective (“Effective Date”) on the earlier of: –
- the date you accept this Agreement by clicking an “I Agree” button or otherwise indicate that you accept this Agreement or
- the date you as a Partner or Affiliate first connect to or use the Services.
For the purposes of this Agreement, the following terms will have the meanings set forth for each of them below:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject entity, whether through equity ownership, a credit arrangement, franchise agreement or other contractual arrangement. “Affiliate” also includes any of your business locations and any Franchisees that have been designated to receive Services under this Agreement.
“Aggregated Data” means anonymised or aggregated data derived by or through the operation of the Services that is created by or on behalf of FONENTRY and that does not reveal any personally identifying information.
“Apps” means any mobile applications used in conjunction with FONENTRY.
“Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by Members and you.
“Confidential Information” means: –
- any software utilised by FONENTRY in the provision of the Services and its respective source code;
- each Party’s business or technical information, including but not limited to the Documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; and
- any special pricing or other non-standard terms agreed to by the Parties in an Order or Order Confirmation form or other separate written agreement.
“Documentation” means FONENTRY’s online user guides, documentation, and help and training materials, as may be updated by FONENTRY from time to time and any materials provided by FONENTRY as part of the Services.
“Member” means a business or individual that schedules or purchases products or services from you through your Portal on the FONENTRY Platform, that you market to, communicate with, or target, or that otherwise interacts with you through the FONENTRY website, or that you agree to use to promote your business and in connection with your business.
“Member Data” means all data, information or other material about a Member that you, an Affiliate or Member provides or submits to the Services. Member Data may include Cardholder Data and such portions of Your Data that relates to specific Members.
“Franchisee” means any party that is bound by a franchise agreement with you, and that you have designated to receive Services under this Agreement. Franchisees are bound by the terms of this Agreement as if they were an original party hereto.
“Marketing Services” means FONENTRY’s online marketing platform, which allows consumers to locate FONENTRY subscribers and evaluate, review and book their services, directly through the FONENTRY platform and through our partner applications.
“Platform” means the FONENTRY Cloud Website, membership database and associated cloud software as well as the consumer-facing, downloadable mobile app made available by FONENTRY and known as the “FONENTRY App” (and its successor products), which allows consumers to use their mobile devices to connect to the FONENTRY platform.
“Order Form” means a separate ordering document, invoice, online form, or other documentation that specifies the Services ordered or purchased hereunder, the applicable fees (or if the Services are free), and other terms as agreed to between the Parties. If an Order Form indicates that any Affiliates or Franchisees will be receiving Services hereunder, each of them will be bound by the terms of this Agreement as if they were an original party hereto.
“PCI DSS” means the requirements of the Payment Card Industry Data Security Standard, as detailed on https://www.pcisecuritystandards.org/, and as may be updated from time to time.
“Services” means the Software Services, the Website and the Apps. “Services” excludes Third Party Offerings and the FONENTRY App.
“Software Service” is defined in the Introduction.
“Subscriber” means an individual or business that uses the FONENTRY web-based application on a free of charge or paid for basis as a FONENTRY Partner to promote and/or sell their services and/or manage their membership and/or provide access to their facilities and/or premises.
“Third Party Offerings” means any third-party products, applications, websites, implementations or services, including loyalty programs, that the Services link to, or that interoperate with or are used in conjunction with the Services.
“Website” means www.fonentry.com and any other websites through which FONENTRY makes the Software Service available.
“Your Data” means any data, information or material provided or submitted or made available by you and Affiliates to the Services. Your Data may include Member Data and Cardholder Data and your or their representative’s data, but excludes Aggregated Data.
1. General Terms.
When you use our Services, you are entering into a legal agreement and you agree to all of these terms.
This agreement may be updated from time to time and describes how we can change the agreement.
- Changes to the Agreement. We may, at our discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to our Website, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we’ll also notify you within the Software Service or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by emailing [email protected]. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement that is posted on our Website. The legend at the top of the Agreement indicates when it was last changed.
- Supplemental Terms.Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to the service with which it applies.
Our software will meet the up-time requirements as follows:
- Access and Service Levels. FONENTRY will make the Services to which you have subscribed available to you, subject to the terms and conditions of this Agreement.
We may temporarily suspend your access for things like scheduled maintenance, or if a natural disaster occurs. We may also change or discontinue particular features or functions of our Services at any time.
- Changes to Services. Notwithstanding Section 2 – Access and Service Levels, in addition to our rights set forth in Section 8, we reserve the right to suspend any Services: –
- during planned downtime as provided communicated to FONENTRY Partners,
- in connection with a Force Majeure event or
- if we believe any malicious software is being used in connection with your account.
In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services. We aren’t responsible for any third-party products that are integrated with or used in connection with the Services.
- Marketing Services. When you subscribe to our Software Service, your business will be listed on FONENTRY’s online marketing platform (“Marketing Services”), which allows consumers to locate FONENTRY Partners and evaluate, review and book their services, directly through the FONENTRY Website and through our FONENTRY Partner pages on the FONENTRY website.
- Hardware Terms. Additional terms specific to the procurement, deployment and use of the Partner reception and access terminal and booking and payment kiosk (Android tablet loaded with the FONENTRY Kiosk App) are hereby incorporated by reference into this Agreement.
- Payment Processing Service. FONENTRY offers payment processing through a third-party Payment Processing Service. Any procurement by you or your Affiliates will be subject to a separate merchant agreement which will be solely between you (or your Affiliate) and the third-party processor. FONENTRY may offer special pricing, credits, and/or discounts to you or your Affiliates for the Services contingent upon timely procurement, and continued material usage, of the Payment Processing Services and/or FONENTRY Payments.
To the extent permitted by law, we may collect any obligations you owe us under this Agreement by deducting the corresponding amounts from funds payable to you arising from the settlement of card transactions through FONENTRY Payments. Fees will be assessed at the time a transaction is processed and will be first deducted from the funds received for such transactions. Your failure to fully pay amounts that you owe us on demand will be a breach of this Agreement. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys’ fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest. Additionally, we may require a personal guaranty from a principal of a business for funds owed under this Agreement. If we require a personal guaranty we will specifically inform you. In addition to the amount due, delinquent accounts may be charged with fees that are incidental to the collection of delinquent accounts and chargebacks including, but not limited to, collection fees and convenience fees and other third parties’ charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to FONENTRY by you. Such communication may be made by FONENTRY or by anyone on its behalf, including but not limited to a third-party collection agent.
3. Your Obligations & Responsibilities.
- You and your Affiliates and Members shall comply with the terms of this agreement and applicable laws. You have specific obligations concerning FONENTRY Bookings including: –
- Accuracy of Your Information. You are responsible for ensuring that the content listed on your FONENTRY Website Partner Page reflect the Services you provide including: pricing, staff availability, cancellation policies, No- Show Policy, opening hours, calendar availability and photos of your site and the facilities that you of It is your obligation to post this information to FONENTRY and keep the information on your FONENTRY website account up-to-date at all times. FONENTRY has the right to suspend or terminate your account if you fail to provide FONENTRY with the required information.
- You will manage and modify the contents of your Partner Page through the “Store Manager” section of your FONENTRY account. You acknowledge and agree that your FONENTRY Profile shall not contain any publicly visible contact details, direct references or links to your website, app, platform, tools or other devices that may encourage the visitor to the your FONENTRY Partner Page to make a reservation via an alternative mechanism than that available on your FONENTRY portal.
- You shall not apply a surcharge to customers who make bookings through the FONENTRY Website thereby charging lower prices to customers who purchase directly from you or via any alternative channel. You may not pass service charges on to Customers who make FONENTRY bookings. A breach of this clause shall constitute a Material Breach of this Agreement.
- Member Reception. You shall ensure the FONENTRY visitor reception and door access terminal (Android tablet) is powered and has an Internet or GSM data connection at all times as failure to maintain this service shall stop your FONENTRY Portal taking bookings and any person attempting to make a reservation will be greeted with the message “connection unavailable, please try again later” while the tablet remains disconnected from the FONENTRY database.
- Order Fulfilment. You shall fulfil your obligation to provide the Services you offer and which are booked via the FONENTRY website, which includes the Cancellation/No-Show Policy in place at the time that the FONENTRY Booking was made.
- You must accept payments from the FONENTRY Payment Services as equal to a direct payment made by Customers, and make no additional claim on the Customer in connection with that FONENTRY Booking.
- Service Fulfilment. You must accept all FONENTRY Bookings, and may only decline to accept FONENTRY Bookings in exceptional circumstances.
- In return, Customers are entitled to receive Your Services equal to those included in their FONENTRY Booking at the price indicated when the FONENTRY Booking was made. You may not impose any extra or additional fees or charges that contradict or otherwise alter the Terms of Sale of any FONENTRY Booking. If a Customer receives Services that are less than the value of the amount paid for the FONENTRY Booking, they may be entitled to a refund from you equal to the difference between the value of the service received and the value of the FONENTRY Booking.
Liability for Affiliates and Members. You are responsible for all activity occurring under or relating to your account, including, but not limited to, your staff, employees, consultants, advisors, independent contractors, and members. You will ensure that your Affiliates and Members comply with all of the provisions of this Agreement, including any Supplemental Terms and acceptable use policies provided or made available by FONENTRY and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use, as appropriate, by Affiliates and/or Members, and any act or omission of an Affiliate or Member that does not comply with this Agreement will be deemed a breach of this Agreement by you. You are also responsible for ensuring that you have the appropriate rights to interact and/or contact Members through the Services, as applicable, in accordance with applicable laws and regulations.
Data; Unauthorised Access; Maintaining Networks. You will:
- have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data;
- prevent unauthorised access to, or use of, the Services, and notify FONENTRY promptly of any unauthorised access or use; and
- have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services used by the Services.
Restrictions on Use. You and your Affiliates and Members will not:
- submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates members privacy rights;
- attempt to interfere with or disrupt the integrity or performance of the Services or the data contained therein;
- attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement;
- post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs;
- restrict or inhibit any other person or entity from using the Services;
- remove any copyright, trademark or other proprietary rights notice from the Services;
- frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any other product or service;
- systematically download and store Services content; or
- use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services.
FONENTRY grants to the operators of public search engines permission to use spiders to copy materials from the Website as necessary and for the sole purpose of generating publicly producing searchable indices of such materials, but not caches or archives of such materials. FONENTRY reserves the right to revoke these permissions at any time and without notice.
- Credit/Debit Cardholder Data.You are solely responsible for any liability resulting from your or any Affiliate’s handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards. You will ensure all user names and passwords are kept confidential.
- User Names and Passwords. FONENTRY may reject or require that you change any user name or password under your account. User names and passwords are for internal business use only and may not be shared with any third party, including any FONENTRY competitor. You are responsible for any use or misuse of user names or passwords associated with your account.
4. Fees and Payment.
FONENTRY booking, reservation, payment and access service.
- Payment Terms. You agree to pay FONENTRY for all other applicable license fees for any automated reception terminal and entrance security access equipment as listed on a Purchase Order Form or otherwise specified in this Agreement. All payment obligations under this Agreement cannot be cancelled and all fees must be paid in advance and are non-refundable, unless otherwise stated on an Order Acceptance Form. You will provide FONENTRY with valid and up-to-date credit card information or another form of payment acceptable to FONENTRY. If you provide credit card information, you represent that you are authorized to use the card and you authorise FONENTRY charge to the card for all payments hereunder. By submitting payment information, you authorise FONENTRY to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by FONENTRY for purposes of acknowledging or completing any payment.
- Overdue Charges. Any amounts not received by the applicable due date may accrue late interest at 1.5% of the outstanding balance per month, or the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by FONENTRY within thirty (30) days after the applicable due date will be deemed a material default under this Agreement, and FONENTRY will be entitled to either suspend the Services or terminate the Agreement in accordance with Section 8.
- Changes in Fees. Upon notice to you, FONENTRY may introduce or alter any booking fee following serving you 14 days prior notice.
- Payment Errors. If you believe a payment has been processed in error, you must provide written notice to FONENTRY within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by FONENTRY within such thirty (30) day period, the payment will be deemed final.
- Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with purchases and transactions under this Agreement. If FONENTRY is legally required to pay or collect any Taxes on your behalf, FONENTRY will invoice you and you will pay the invoiced amount. For clarity, FONENTRY will be solely responsible for taxes assessed on FONENTRY based on its income. You acknowledge that we may be asked to make the necessary declarations to tax authorities and/or the Payment Processing Services Provider with regard to transactions that we process and monies we collect on your behalf.
5. Intellectual Property Rights.
This describes our intellectual property rights in the Services.
- FONENTRY Intellectual Property. FONENTRY owns all right, title and interest in and to the Services, the FONENTRY Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, FONENTRY reserves all rights, title and interest in and to the Services, the FONENTRY Data and Aggregated Data, including, without limitation, all related intellectual property rights. FONENTRY’s service marks, logos and product and service names, including, without limitation, FONENTRY logos and Trademarks (the “FONENTRY Marks”) are owned by FONENTRY. You agree not to display or use any FONENTRY Marks in any manner without FONENTRY’s express prior written permission. Any trademarks, service marks and logos associated with a Third-Party Offering may be the property of the third-party provider, and you should consult with their trademark guidelines before using any of their marks. You are only permitted to use the Services in accordance with this agreement and for internal business purposes.
- License Grant to You. FONENTRY hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services as described on the FONENTRY website. As a FONENTRY Partner, you will not:
- modify, copy or create any derivative works based on the Services;
- license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and Members as permitted herein;
- reverse engineer or decompile any portion of the Services, including but not limited to, any software utilised by FONENTRY in the provision of the Services;
- access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services;
- copy any features, functions, integrations, interfaces or graphics of the Services; or
- otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
You will grant us a license to use your feedback, trademarks and logos in connection with providing the Services and for general marketing purposes.
- License Grant to FONENTRY. You hereby grant to FONENTRY and its affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to:
- modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or Members relating to the Services or FONENTRY’s or its affiliates’ business(es); and
- use your business name(s), trademarks, service marks, logos or any publicly available images (collectively, “Your Marks”) in connection with:
- providing the Services,
- for marketing and promotional purposes in connection with FONENTRY’s business,
- For Marketing Services. FONENTRY agrees that any use by FONENTRY of any of Your Marks will inure solely to the benefit and goodwill of your business.
Other than those rights specifically granted to FONENTRY or its affiliates herein, all right, title and interest in and to Your Marks are expressly reserved by you.
6. Data Ownership and Use.
You own all data you originate, but you also grant us a license to use it for certain purposes, for example, to improve our products or to promote your business.
- Your Data. As between you and FONENTRY, you own all right, title and interest in Your Data. You hereby grant to FONENTRY a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing FONENTRY’s or its affiliates’ products and services and/or complementary products and services.
- You represent and warrant to FONENTRY that you have all rights necessary to grant the licenses in this Section 6, and that your provision and use of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
- FONENTRY Data. Notwithstanding Section 6, all right, title and interest in any data and aggregated Data or information collected by FONENTRY independently (collectively, “FONENTRY Data”) and without access to, reference to or use of any of Your Data, including, without limitation, any data or information FONENTRY obtains about Members through the FONENTRY App (whether the same as Your Data or otherwise), will be solely owned by FONENTRY.
- Aggregated Data. You authorize FONENTRY to aggregate or anonymise Your Data or other data in connection with the Agreement, and FONENTRY will own all Aggregated Data. You agree that nothing in this Agreement will prohibit FONENTRY or its affiliates from utilising Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any Members.
- Protection and Security. During the Subscription Term, FONENTRY will maintain administrative, physical and technical safeguards designed for the protection and integrity of Your Data. FONENTRY will maintain PCI DSS compliance for the portions of the Services that store and process Cardholder Data. We will notify one another if either of us becomes aware that Your Data has been compromised.
- Unauthorised Disclosure. If either Party believes that there has been a disclosure of Your Data in a manner not authorised under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorised disclosure.
We are not responsible for resolving or intervening in any dispute over Your Data.
- Data-Related Disputes.You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees or contractors of your business. You acknowledge and agree that FONENTRY has no obligation whatsoever to resolve or intervene in such disputes.
7. Confidential Information.
This describes the confidentiality obligations we have to one another under the agreement.
A Party will not disclose or use any Confidential Information of the other Party except:
- as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement;
- the other Party’s prior written permission; or
- to the extent required by law or order of a court or other governmental authority or regulation.
Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that:
- is or becomes generally known to the public without breach of any obligation owed to the disclosing Party;
- was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party;
- was independently developed by a Party without breach of any obligation owed to the other Party; or
- was or is received from a third party without breach of any obligation owed to the other Party.
For clarity, nothing in this Section 7 will restrict FONENTRY with respect to FONENTRY Data or Aggregated Data.
8. Term, Termination and Suspension.
This describes what will occur and the rights that apply when the Agreement is terminated. We reserve the right to suspend or terminate the Services at any time if we detect harmful or illegal activity under your account. Both parties can end this agreement anytime by providing 30 days’ advance notice.
- Term. The Term commences on the Effective Date and will be ongoing until either Party terminates in accordance with this Agreement. Either Party may terminate the Agreement and/or any FONENTRY subscription at any time, for any reason or no reason, by providing notice to the other Party. We have the right to immediately end the Agreement if you breach it.
- Termination for Cause. FONENTRY may terminate this Agreement and/or any service provided, effective immediately upon notice to you, if you or an Affiliate are in material breach of this Agreement. In the event of a termination pursuant to this Section 8, in addition to other amounts you may owe FONENTRY, you must immediately pay any unpaid fees. Under no circumstances will any termination relieve you of your obligation to pay any outstanding fees payable to FONENTRY for services and or equipment provided for the period prior to the effective date of termination.
Rights on Termination or Expiration. Upon termination or expiration of this Agreement
- all Order Forms will automatically terminate and be of no force or effect;
- you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and
- except as specified in the following paragraph, FONENTRY will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law.
For a period of no greater than thirty (30) days following a notice of termination, FONENTRY will make Your Data available to you through FONENTRY’s standard web services. Upon request by you within thirty (30) days following the termination date of this Agreement. After thirty (30) days, FONENTRY will have no obligation to retain or provide Your Data, except as required under law. Additional fees may apply if at any time during the Term you require FONENTRY’s assistance to retrieve Your Data.
Right to Terminate or Suspend Services. We may suspend or terminate your access to and use of the Services (or any portion thereof) at any time without notice if we believe: –
- that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to FONENTRY or any third party,
- that we are required to do so by law, or
- where the Parties do not agree.
9. Warranties & Disclaimer.
You are responsible for keeping your account contacts and other account information up to date, and you must notify us if anything changes.
- Accuracy of Your Account Information. You agree to provide FONENTRY with complete and accurate account information, including your legal company name, street address, e-mail address, bank account, and such other information as may be requested by FONENTRY (collectively, “Account Information”). You are responsible for the accuracy and timely updating of Account Information, and you agree to promptly notify FONENTRY in writing if any Account Information changes. You agree that FONENTRY has no responsibility or liability whatsoever for any loss or damages caused, either directly or indirectly, by inaccurate Account Information. We will ensure that the software will generate reports and perform functions as generally described on our Website.
- Warranty of Functionality. FONENTRY warrants to you that during a FONENTRY Subscription Term: –
- the subscribed Software Service will perform materially in accordance with the functionality described in the Documentation applicable to such Software Service; and
- such functionality will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be that FONENTRY will use commercially reasonable efforts to modify the applicable services to achieve the functionality described above.
If FONENTRY is unable to restore such functionality, you may terminate the Agreement by providing written notice to FONENTRY. FONENTRY will have no obligation with respect to a warranty claim under this Section 9 unless notified by you in writing no later than thirty (30) days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilised in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any free, trial or beta Services.
This is our disclaimer of legal liability for the quality, safety, or reliability of our Services.
- Except as expressly provided in section 9 – Warranty of Functionality above, to the maximum extent permitted by applicable law, FONENTRY makes no representations or warranties of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied warranties, including without limitation any warranties of title, non-infringement, merchantability or fitness for a particular purpose with respect to the services and/or related documentation. FONENTRY does not warrant that your use of the services will be secure, timely, error-free or uninterrupted, or that the services are or will remain updated, complete or correct, or that the services will meet your requirements or that the systems that make the services available (including without limitation the internet, other transmission networks, and your local network and equipment) will remain uninterrupted or free from viruses or other harmful components. except as provided in section 9.2, the services and any products and third-party materials are provided on an “as is” and “as available” basis and solely for your use in accordance with this agreement. all disclaimers of any kind (including in this section and elsewhere in this agreement) are made on behalf of both FONENTRY and its affiliates and their respective shareholders, directors, officers, employees, affiliates, agents, representatives, contractors, licensors, suppliers and service providers (collectively, the “FONENTRY parties”).
If we are sued by another party as a result of something you’ve done, you’ll cover the costs.
- You agree to indemnify, defend, and hold harmless the FONENTRY Parties from and against any and all third-party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising from or relating to:
- any actual or alleged breach by you, an Affiliate or Member of any provisions of this Agreement;
- any access to or use of the Services by you, an Affiliate or Member;
- any actual or alleged violation by you, an Affiliate or Member of the intellectual property, privacy or other rights of a third party; and
- any dispute between you and another party regarding ownership of or access to Your Data
11. Limitations and Exclusions of Liability.
These are the limits of legal liability we may have to you.
- FONENTRY expressly disclaims any and all liability and will not be responsible for any damages or loss caused, or alleged to be caused, by the transmission of cardholder data prior to its encryption and receipt by server(s) owned or controlled by FONENTRY. The excluded damages will include, without limitation, damages resulting from fraud, embezzlement, theft, identity theft, or invasion of privacy. To the maximum extent permitted by law, in no event will the FONENTRY parties’ aggregate liability, collectively, for all claims arising out of or related to this agreement, whether in contract, tort or otherwise, exceed the commission fees actually paid by you during the twelve (12) month period immediately preceding the date of the incident, all limitations of liability of any kind (including in this section and elsewhere in this agreement) apply with respect to both parties.
In no event will any FONENTRY parties have any liability for any indirect, special, incidental, consequential or punitive damages, however caused, or for any lost profits, loss of use, data or opportunities, cost of data reconstruction, cost or procurement of substitute goods or services, whether in contract, tort or otherwise, arising out of, or in any way connected with the services or third party offerings, including but not limited to the use or inability to use the services, any interruption, inaccuracy, error or omission, even if FONENTRY, its licensors or subcontractors have been previously advised of the possibility of such loss or damages.
The foregoing exclusions or limitations may not apply to the extent prohibited by applicable law.
12. Intellectual Property Policy.
Any information and data submitted to the Services must not violate the intellectual property rights of third parties.
- FONENTRY will investigate and respond to notices of alleged infringement that are properly submitted.
English law applies to this Agreement.
- Governing Law. This Agreement will be governed by and interpreted in accordance with the internal laws of England without regard to conflicts of laws principles. The U.N. Convention on the International Sale of Goods will not apply. In the unlikely event we end up in a legal dispute, you agree we will first attempt to resolve it through this informal process.
- Mandatory Informal Dispute Resolution. If you have any dispute with FONENTRY arising out of or relating to this Agreement, you agree to notify FONENTRY in writing with a brief, written description of the dispute and your contact information, and FONENTRY will have thirty (30) days from the date of receipt within which to attempt to resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below. If we can’t resolve a dispute after following the process above, then we must resolve through arbitration and not in court.
- Arbitration Agreement. All disputes arising out of or related to this agreement or any aspect of the relationship between you and FONENTRY, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, that are not resolved pursuant to section 13 – Mandatory Informal Dispute Resolution above will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court, and FONENTRY and you each hereby agree that any arbitration under this agreement will take place on an individual basis.
- Entire Agreement. This Agreement constitutes the entire agreement and supersedes any prior agreements between you and FONENTRY with respect to the subject matter hereof. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between FONENTRY, on the one hand, and you or any Affiliate, on the other hand.
- Waiver and Severability. No waiver of any provision of this Agreement by FONENTRY will be effective unless in writing and signed by FONENTRY. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
- You may not assign, delegate or transfer this Agreement in whole or in part, without FONENTRY’s prior written consent. FONENTRY may assign, transfer or sublicense any or all of FONENTRY’s rights or obligations under this Agreement without restriction.
This explains how we can send each other notices in connection with this Agreement.
- Any notices provided by FONENTRY under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from FONENTRY through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to FONENTRY under this Agreement must be delivered via first class registered mail, overnight courier, to the FONENTRY registered office. We are not liable for things that are out of our control like natural disasters.
- Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labour problems (other than those involving FONENTRY’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
- Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
- Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and FONENTRY.
14. Arbitration Agreement.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with FONENTRY and limits the manner in which you can seek relief from us.
Applicability of arbitration agreement. If a dispute of any kind arises with a FONENTRY Partner or Member, you agree to resolve that dispute with the applicable FONENTRY Partner or Member. For any dispute that you have with FONENTRY, we will make every reasonable effort to resolve any disagreements that you have with us. If those efforts fail, by using the FONENTRY platform, you agree that all disputes arising out of or related to this agreement or any aspect of the relationship between you and FONENTRY, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, that are not resolved pursuant to the previous sentence will be resolved by binding arbitration, rather than in court, except that : –
- you or FONENTRY may assert claims in small claims court if the claims qualify; and
- you or FONENTRY may seek relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
- this arbitration agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this agreement or any prior to this version of this Agreement.
Authority of Arbitrator. The arbitrator shall apply Arbitration Act 1996 consistent with the laws of England and shall have exclusive authority to: –
- determine the scope and enforceability of this Arbitration Agreement, and
- resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable.
- The arbitrator will decide the rights and liabilities, if any, of you and FONENTRY. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
- You and FONENTRY are electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with FONENTRY.