Terms of service
mobile app and OctoCaller mobile app ("the Company") and you, the individual who is agreeing to the Terms and
utilizing the products and services offered by the Company ("User," "you," or "your"). These Terms govern your
access to and use of the Es.octocaller.com Service and the Protected Data (defined herein).
the Agreements can be found at Es.octocaller.com ("Numbo Website"). Please read the Agreements
carefully as they contain important information about your rights, including privacy information, liability
limitations, class action waiver, and dispute resolution by arbitration (instead of litigation in court).
As used in the Agreements, "Numbo Service" means products and services offered to you by the Company
including call blocking technology, downloadable applications allowing access to call blocking technology on a
mobile device ("Numbo App" or "OctoCaller App"), and any and all other products and services that the Company
makes available to you now or in the future. "Protected Data" means proprietary data or intellectual property
belonging to the Company or its licensors ("Protected Data"). By using the Numbo Service and the
Protected Data or by otherwise accepting the terms of the Agreements, you acknowledge that you have read and
understood the Agreements, accept these Agreements, and agree to be bound by them.
YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THE AGREEMENTS BY AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THE AGREEMENTS IN THE METHOD PRESENTED TO YOU BY THE COMPANY AND/OR ANY AUTHORIZED DISTRIBUTOR OF THE NUMBO SERVICE UPON ACCOUNT CREATION OR INSTALLATION OF THE NUMBO SERVICE ON ONE OR MORE OF YOUR PHONE LINES OR BY USING OR OTHERWISE ACCESSING THE NUMBO SERVICE AND/OR THE PROTECTED DATA. YOU MUST AGREE TO ALL OF THE TERMS OF THE AGREEMENTS BEFORE YOU DOWNLOAD OR USE THE NUMBO SERVICE OR THE PROTECTED DATA. IF YOU DO NOT AGREE TO OR CANNOT COMPLY WITH ALL OF THE TERMS OF THE AGREEMENTS, YOU MUST NOT ACCEPT THE AGREEMENTS AND YOU MUST NOT INSTALL OR USE THE NUMBO SERVICE OR THE PROTECTED DATA.
Section 1. License Grant And Use Guidelines
Through the Agreements, the Company grants you the following licenses: (1) a limited, non-exclusive, non-sublicensable, fully revocable license to use the Numbo Service and; (2) a limited, non-exclusive, non-sublicensable, fully revocable license to use the Protected Data only as necessary to use the Numbo Service. You promise and agree that you are using the Numbo Service and the Protected Data for your own personal use and that you will not redistribute, copy, or transfer the Protected Data or the Numbo Service. The Numbo Service and the Protected Data are licensed to you and not sold. The Numbo Service and the Protected Data are protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. The Company and its licensors own intellectual property rights in the Numbo Service and the Protected Data and your license to download, access, or use the Numbo Service and the Protected Data is subject to these rights and to all the terms and conditions of the Agreements. The licenses granted to you in this Subsection end immediately upon termination of the Agreements as discussed in Subsection 5.2.
From time to time, the Company may need to send e-mails, in-app messages, and/or push notifications to you and automated voice calls and/or text messages to all phone lines that are subscribed to or otherwise using the Numbo Service. Presently, the Company expects to do this in order to verify the installation of the Numbo Service, to provide information about your subscription, to provide information about updates to the Agreements, and for other business purposes. By entering into the Agreements, you give your express consent to the Company to make such communications and you shall not hold the Company liable for any violations under the Telephone Consumer Protection Act (47 U.S.C. § 227) or other similar local, federal, or state law for any automated calls or text messages made to you as contemplated by this Subsection. You understand and agree that the Company may not be able to provide the Numbo Service on your subscribed phone lines without sending the communications contemplated by this Subsection; therefore if you opt-out of these communications (e.g. by texting "STOP" in reply to an automated text message sent to your subscribed phone line by the Company) the Company will stop sending such communications to that phone line, and this may inhibit your ability to fully utilize all features of the Numbo Service.
All Company trademarks, service marks, trade names, logos, domain names, and any other features of the Company brand ("Numbo / Numbo / OctoCaller Brand Features") are the sole property of the Company or its licensors. The Agreements do not grant you any rights to use any Numbo / Numbo / OctoCaller Brand Features whether for commercial, personal, or other use. You shall not remove or alter any copyright, trademark, or other intellectual property notices contained on or provided through the Numbo Service and the Numbo Website.
Restrictions on Transfer
Without first obtaining the express written consent of the Company, you may not assign your rights and obligations under the Agreements, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer your rights to the Numbo Service or the Protected Data.
Restrictions on Use
You may not decompile, "reverse-engineer," disassemble, or otherwise attempt to derive the source code for the Numbo Service. You may not use the Protected Data or the database portion of the Numbo Service in connection with any software other than the Numbo Service. You shall not cache or otherwise store the Numbo Service or the Protected Data for use for any other purpose than those stated under the Agreements.
Restrictions on Alteration
You may not modify the Numbo Service or the Protected Data or create any derivative work of the Numbo Service or the Protected Data or any other of the Numbo Service's accompanying data and documentation. Derivative works include but are not limited to translations. You may not alter any files or libraries in any portion of the Numbo Service or the Protected Data. You may not reproduce the Protected Data or the database portion or create any tables or reports relating to the Protected Data or the database portion. You may not attempt to copy, cache or otherwise duplicate the Numbo Service, the Protected Data, or data and documentation accompanying the Numbo Service.
Restrictions on Copying
You may not copy any part of the Numbo Service or the Protected Data except to the extent that licensed use inherently demands the creation of a temporary copy that may be stored in computer memory or on a telephonic device associated with a subscribed phone line ("Device").
You agree to abide by the terms of the Agreements and not to use the Numbo Service, the Protected Data, or any part thereof in any manner not expressly permitted by the Agreements. Except for the rights expressly laid out in the Agreements, the Company grants no right, title, or interest to you in the Numbo Service or the Protected Data. You shall not provide your username and password to any other person or use any other person's username and password to access the Numbo Service. You are solely responsible for all uses of your username and password on the Numbo Website and for all uses of the Numbo Service on your subscribed phone line(s) and Device(s). If your username and password have been stolen, of if your Device has been lost or stolen, or if your account has been subject to unauthorized access, you must change your password as soon as possible and notify the Company immediately.
If you have received a coupon code, gift card, or other pre-paid offer from the Company (or a third party authorized by the Company to provide such code or pre-paid offer), separate terms and conditions may be presented to you along with the coupon code, gift card, or other pre-paid offer. By redeeming the coupon code, gift card, or other pre-paid offer, you agree to be bound by the terms and conditions therein (in addition to the terms stated in the Agreements).
Trials and Free Services
The Company may offer "low-cost" or "no-cost" trials or offers for specified periods of time. The Company has the sole discretion to determine your eligibility for any such trial or offer and, subject to applicable laws, may change, discontinue, or modify such trial or offer at any time without prior notice and without liability to you.
From time to time and in the Company’s sole discretion, the Company may offer the Numbo App and OctoCaller App for distribution via a third-party marketplace. If you purchased the Numbo or OctoCaller App from a third-party marketplace, your use of the Numbo or OctoCaller App is subject to the following additional terms.
Apple Store Purchase
- These Terms are between you and the Company only and not with Apple. Apple is not responsible for the Numbo App or its content.
- Your license to use the Numbo App is limited to a limited, non-exclusive, non-sublicensable, fully revocable, non-transferable license to use the Numbo App on any device that you own or control and only as permitted by the Apple’s "Usage Rules" as set forth in the "App Store Terms of Service." You may not use the Numbo App in any manner that violates the App Store Terms of Service, including the Usage Rules, as of the date of these Terms. You may view Apple’s Usage Rules and the App Store Terms of Service by visiting Apple’s website. By using the Numbo App you acknowledge that you have had the opportunity to review such terms.
- Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Numbo App.
- If the Numbo App fails to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Numbo App, excluding subscription fees or other fees paid for in-app purchases. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Numbo App.
- The Company, not Apple, is responsible for addressing any claims by you or any third party related to the Numbo App or your possession and/or use of the Numbo App, including, but not limited to: (1) products liability claims; (2) any claim that the Numbo App fails to conform to any applicable legal or regulatory requirement; (3) claims arising under consumer protection or similar legislation.
- In the event of a third-party claim that the Numbo App or your possession and use of the Numbo App infringes on that third-party’s intellectual property rights, the Company, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
- Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as a third-party beneficiary of the Agreement.
- Any questions, complaints, or claims with respect to the Numbo App should be directed to the Company at the contact information listed on the Numbo Website.
Section 2. Rights And Warranties You Grant The Company
The rights granted to you by the Company under the Agreements constitute good and valuable consideration for the rights you grant to the Company as stated in this Section.
You grant the Company the right to: (1) use the processor, bandwidth, and storage hardware on your Device in order to facilitate the operation of the Numbo Service; (2) provide information about the Company’s products and services to you; (3) send automated communications such as voice calls, text messages, and e-mails to any of the contact information associated with your account, including your subscribed phone line(s) and the e-mail address associated with your account, in order to assist in the installation of the Numbo Service and the Protected Data and/or to alert you as to information regarding your account, subscription, or the terms of the Agreements; (4) view, store, and analyze information about phone calls made to your subscribed phone line(s); and (5) use information the Company receives about the call activity on any or all of your subscribed phone lines (whether you actively submit this information to the Company or whether the Company observes this information by the nature of your use of the Numbo Service) in order to improve the Numbo Service and the Protected Data or for any other purpose.
You grant the Company a non-exclusive, transferable, sub-licensable, royalty-free, perpetual (or, if a perpetual license is not allowed under applicable laws, a term equal to the duration of the Agreements plus twenty (20) years), irrevocable, fully paid, worldwide license to use, reproduce, publish, make available to the public, modify, create derivative works from, and distribute any information the Company receives from you as a result of your use of the Numbo Service and/or the Protected Data (including any customizable phone number blacklist and white list), as well as from any information the Company receives from you through a customer support inquiry or a report you send the Company regarding the validity or legitimacy of phone calls from any particular phone number. You waive any "moral rights" (or the equivalent under applicable law) such as your right to be identified as the author of any such information or to object to a particular use of the information. The license you grant to the Company pursuant to this Subsection shall survive termination of the Agreements.
If you provide feedback, suggestions, or ideas to the Company in connection with the Numbo Service or its Protected Data, you acknowledge that this feedback is not confidential. Furthermore, you authorize the Company to use such feedback without restriction, even beyond the termination of the Agreements, and without payment to you. Any information you provide as part of a customizable phone number blacklist or white list are part of this feedback.
Taxes, Fees, and Data Usage
The Company may send updates to your Devices, including without limitation, updates to the Protected Data. You are solely responsible for any data or other charges you incur as a result of these updates or any other use of the Numbo Service. You are responsible for and shall pay all applicable taxes and fees associated with your use of the Numbo Service and Protected Data. This includes all federal, state, and local taxes, fees, charges, surcharges, or other similar exactions imposed on or with respect to the Numbo Service and the Protected Data, whether these taxes are imposed directly on you or on the Company or its authorized distributor and include, but are not limited to, sales and use taxes, utility user’s fees, excise taxes, VAT, any other business and occupations tax, 911 taxes, franchise fees and universal service fund fees or taxes. The Company or its authorized distributors may collect such taxes on behalf of the taxing authority and remit those taxes to taxing authorities; however, the failure of the Company or its authorized distributors to collect such taxes at the time of purchase in no way excuses your obligation to pay such taxes either directly to the taxing authority or to the Company or its authorized distributors at a later date..
You represent and warrant that you (1) are 18 or older, or 13 and older and have your parent or guardian’s consent to enter into the Agreements; (2) have the power to enter into a binding contract with the Company and are not barred from doing so by reason of incapacity, incompetence, or under any applicable laws; (3) are a resident of the United States; and (4) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (5) you are not listed on any U.S. Government list of prohibited or restricted parties..
Section 3. Disclaimer Of Warranties; Limitation Of Liability Damages And Remedies; Indemnification
THE NUMBO SERVICE AND THE PROTECTED DATA ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. THE COMPANY MAKES NO REPRESENTATIONS, GUARANTEES, AND/OR WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY MAKES NO WARRANTY THAT THE NUMBO SERVICE AND/OR THE PROTECTED DATA WILL MEET YOUR REQUIREMENTS OR OPERATE UNDER YOUR SPECIFIC CONDITIONS OF USE. THE COMPANY MAKES NO WARRANTY THAT OPERATION OF THE NUMBO SERVICE WILL BE SECURE, ERROR FREE, FREE FROM INTERRUPTION, OR FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. THE COMPANY MAKES NO WARRANTY OR REPRESENTATION AS TO THE ABILITY OF THE NUMBO SERVICE TO ACCURATELY DISTINGUISH BETWEEN ROBOCALLS AND WANTED CALLS OR AS TO THE ACCURACY OR QUALITY OF THE PROTECTED DATA. THE COMPANY MAKES NO OTHER WARRANTY OR GUARANTEE OF ANY KIND WHATSOEVER. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS THE COMPANY'S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Limitation of Liability
YOU MUST DETERMINE WHETHER THE NUMBO SERVICE AND THE PROTECTED DATA SUFFICIENTLY MEET YOUR REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE NUMBO SERVICE OR THE PROTECTED DATA TO MEET YOUR REQUIREMENTS. THE COMPANY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE. THE COMPANY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR ANY DAMAGE TO ANY DEVICE ON WHICH YOU INSTALL AND USE THE NUMBO SERVICE OR THE PROTECTED DATA. THE COMPANY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES INCURRED AS A RESULT OF AN IMPROPERLY BLOCKED CALL OR AS A RESULT OF A FAILURE TO BLOCK AN IMPROPER CALL. THE FOREGOING LIMITATIONS APPLY TO ALL CLAIMS YOU MAY WISH TO BRING AGAINST THE COMPANY, WHETHER ON THE BASIS OF CONTRACT, WARRANTY, OR TORT, EXCEPT THAT THE FOREGOING IN NO WAY LIMITS YOUR ABILITY TO BRING A CLAIM AGAINST THE COMPANY BASED ON GROSS NEGLIGENCE OR WILLFUL OR WANTON CONDUCT. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS THE COMPANY'S ABILITY TO DISCLAIM LIABILITY, THIS DISCLAIMER SHALL BE EFFECTIVE ONLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Limitation of Damages
UNDER NO CIRCUMSTANCES SHALL THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, LOSS OF USE, LOSS OF USER DATA, LOST REVENUES OR PROFITS, LOSS OF BUSINESS, OR LOSS OF FUNDS OR PERSONAL PROPERTY) RESULTING FROM THE AGREEMENTS, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE NUMBO SERVICE OR THE PROTECTED DATA, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE TORTIOUS CONDUCT OF THE COMPANY OR ANY OTHER PARTY, EVEN IF THE COMPANY IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGE TO YOUR PERSON OR PROPERTY RESULTING FROM THE FAILURE TO DETECT A ROBOCALL OR FOR IMPROPERLY CLASSIFYING AN ACCEPTABLE CALL AS A ROBOCALL. IN ANY CASE AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF THE COMPANY FOR ALL DAMGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT, OR OTHERWISE) SHALL BE LIMITED TO THE SUBSCRIPTION FEES PAID BY YOU TO THE COMPANY IN THE TWELVE CALENDAR MONTHS IMMEDIATELY PRIOR TO THE DAMAGES ARISING AND THIS AMOUNT MAY BE $0.00 IF YOU DID NOT PAY ANY SUBSCRIPTION FEES TO THE COMPANY DURING THAT TIME PERIOD. THE FOREGOING TERMS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ACT AS LIQUIDATED DAMAGES. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS THE COMPANY'S ABILITY TO DISCLAIM THE DAMAGES CONTEMPLATED BY THIS SUBSECTION, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEM OR DISSATISFACTION WITH THE NUMBO SERVICE IS TO UNINSTALL THE NUMBO SERVICE AND PROTECTED DATA FROM YOUR DEVICE(S) AND TO UNSUBSCRIBE FROM AND STOP USING THE NUMBO SERVICE AND PROTECTED DATA ON ALL OF YOUR SUBSCRIBED PHONE LINES. THE COMPANY SHALL NOT INCUR ANY LIABILITY TO YOU OR ANY OBLIGATION TO REFUND ANY MONIES PAID OR PREPAID FOR YOUR USE OF THE NUMBO SERVICE AND THE PROTECTED DATA UNLESS A SPECIFIC SUBSECTION OF THE AGREEMENTS GIVES YOU A RIGHT TO A FULL OR PARTIAL REFUND IN A SPECIFIC CIRCUMSTANCE (E.G., SUBSECTION 3.6).
You agree to indemnify and hold the Company harmless from and against all claims, judgments, damages, liabilities, expenses, or costs of any kind (including reasonable attorney fees and costs) arising from (1) your breach of the Agreements; (2) any activity in which you engage on through the Numbo Service or on the Numbo Website; (3) your violation of any law or any rights of a third party (including a violation of privacy rights occurring from your ability to view call data associated with other users subscribed through the same account as you); and (4) any claims arising under the Telephone Consumer Protection Act as a result of automated calls or text messages made by the Company to your subscribed phone line(s).
The Company will make commercially reasonable efforts to keep the Numbo Service functional. However, due to maintenance or technical difficulties, you may experience temporary interruptions in service and such temporary interruptions (whether planned or not) shall not result in the Company having any fault or liability towards you. The Company may, within its sole discretion, modify or discontinue any functions and features of the Numbo Service, with or without notice to you, and without liability to you. However, if you have purchased a subscription for any paid services that the Company permanently discontinues prior to the end of your subscription period, the Company will refund to you a prorated portion of the amount that you paid representing the value of the discontinued service (as determined in the sole and exclusive discretion of the Company) from the date the service was discontinued through the end date of your subscription period. Such a refund will be issued to the same person in the same form of tender as the subscription purchase was made. The Company has no obligation to upgrade, update, maintain, or otherwise improve the Numbo Service.
You may make customer support inquiries by submitting a ticket or request through the Numbo Website. The Company does make any guarantees, representations, or warranties about the time frame for a response to any such inquiry, nor does it make any guarantees, representations, or warranties that the response received will solve your issue, question, or complaint.
Section 4. Paid Services
Primary Account Holder
Each user account will have one User who is designated as the Primary Account Holder. "Primary Account Holder" means the User that has log-in credentials (i.e. a username and password) and/or the User that purchased the Numbo App via an authorized distributor. Except where specifically stated within the Agreements, if you are the Primary Account Holder, your rights and obligations under the Agreements are exactly the same as any other User and any reference to "you" or "your" shall apply to all users, regardless of whether the user is the Primary Account Holder. If you purchase the Numbo Service from an authorized distributor, any fees remitted to the authorized distributor for your use of the Numbo Service shall be deemed to be remitted to the Company for the purposes of these Terms.
The Primary Account Holder can purchase paid services that are offered by the Company either directly from the Company or through an authorized distributor of the Numbo Service. The price, duration, and the number of phone lines on which any paid services may be installed and used will be clearly displayed to the Primary Account Holder at the time of purchase of the subscription. If you are the Primary Account Holder, your access to the paid service will start on the day that you tender payment for the paid service. If you are not the Primary Account Holder, your access to the paid service will start on the day that the Primary Account Holder adds your number to his or her list of subscribed phone lines. In either event, your access to the paid service ends at 11:59pm EST on the final day of the subscription period purchased by the Primary Account Holder (for example, a 3-month subscription purchased on January 15 will end at 11:59pm EST on March 14 for all phone lines subscribed through that account), unless you end the subscription earlier by either canceling your subscription pursuant to Subsection 4.6 or terminating the Agreements pursuant to Subsection 5.2.
The Company may change the price for paid services as well as available subscriptions from time to time in its sole discretion. Such changes take effect at the start of next subscription period for your account following the time of the change. Unless otherwise prohibited by law, you accept the new pricing by continuing to use the Numbo Service and the Protected Data after the price change has taken effect.
If you are the Primary Account Holder, the Company may offer you automatic payment or automatic renewal options for paid subscriptions. If you sign up for automatic renewal or automatic payment, the subscription you purchased for any paid service will automatically renew at the end of its term for another comparable subscription term based on the prices and subscription options available at the time of renewal. The Company has the sole and exclusive discretion to determine which renewal subscription is comparable to your prior subscription; however, in the event that you are dissatisfied with the renewal option selected by the Company, you may alter the subscription during the cooling off period as discussed in Subsection 4.7. If you have signed up for automatic renewal but the payment information you have provided to the Company is no longer current at the time of your subscription renewal, your subscription will not automatically renew, but instead will expire at the end of its term as if you had not selected automatic renewal or automatic payment.
Credit Card Authorization
By providing your credit card information, you authorize the Company to charge your credit card and you agree to pay all initial and recurring subscription fees.
Regardless of whether you are the Primary Account Holder, you may stop using the Numbo Service at any time by either: (1) uninstalling the Numbo Service on any or all of your phone line(s) and by stopping your use of the Numbo Service and the Protected Data; or (2) by terminating the Agreements as discussed Paragraph 5.2(i). However, if you stop using a paid service or terminate the Agreements during a subscription period, neither you nor the Primary Account Holder shall be entitled to a refund of any portion of the fees which were already paid for that subscription period. To the fullest extent permissible by law, all subscription fees are earned upon receipt and are completely non-refundable. Except as otherwise specifically provided for in the Agreements the Company will not refund any subscription fees that have already been paid.
Cooling Off Period
All automatic renewals of paid service subscriptions are subject to a cooling off period as described in this Subsection.
Term of Cooling Off Period
Your Rights During Cooling Off Period
Expiration of Paid Services
If the Primary Account Holder for the account through which your phone line is subscribed does not provide current payment information and renew the subscription to any paid services for that account (either automatically as discussed in Subsection 4.4 or manually following the instructions on the Numbo Website) your access to any paid services will cease upon expiration of the subscription term. Upon expiration of your subscription to any paid service, the Agreements remain in full force and effect and you may continue to use any free services that are available to you despite the expiration of your subscription to the paid services.
Section 5. Term, Termination, and Survival
The Agreements are effective as of the earliest date where you either: (1) affirmatively indicate your acceptance of the Agreements in the method presented to you by the Company during account creation or installation of the Numbo Service; or (2) install, access or use the Numbo Service and/or the Protected Data. The Agreements end when they are terminated as discussed in Subsection 5.2 below.
The Agreements continue until they are terminated either by you, by the Company, or by the occurrence of certain events. Upon termination of the Agreements, you and the Company shall cease to have any obligation towards each other, except as discussed in Subsection 5.5.
Termination by You
Termination by the Company
Termination upon Certain Events
- if you have not had any active subscribed phone lines for a period in excess of six months; or
- if the Primary Account Holder removes your phone line(s) from the list of phone lines subscribed through that account and you no longer have any phone lines subscribed to the Numbo Service.
Liability upon Termination
If you or the Company terminate the Agreements or if the Agreements terminate on their own due to the occurrence of a certain event, you agree that the Company shall have no liability or responsibility to you and the Company will not refund any amounts paid for any subscription services (even if the subscription period is ongoing at the time of termination of the Agreements) unless otherwise required to under applicable law.
Deletion of User Account
If you have an active user account at the time of termination of the Agreements pursuant to Subsection 5.2, the Company may delete your user account and its associated data.
Upon termination of the Agreements, your license to use the Numbo Service and the Protected Data shall cease immediately and you and the Company shall cease to have any obligation towards one another; however any clause, paragraph, subsection or section of the Agreements that either explicitly or by its nature must remain in effect after termination of the Agreements shall remain in full force and effect following termination. Any clause, paragraph, subsection, or section of the Agreements imposing an obligation of confidentiality or protection of the Company’s intellectual property shall survive termination of the Agreements.
Section 6. General
Choice of Law and Forum
The Agreements, including all claims relating to or arising out of the Agreements, are governed by the laws of New York, without regard to New York's conflict or choice of law provisions. If the Class Action Waiver set forth in Subsection 6.2 is not enforceable in arbitration, or if the Dispute Resolution procedure laid out in Subsection 6.3 is unenforceable or does not apply, the parties agree that Subsection 6.3 shall be null and void in its entirety and the federal and state courts of the State of New York shall have exclusive jurisdiction over any action arising out of or related to the Agreements and personal jurisdiction over each and every party.
Class Action Waiver
WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND THE COMPANY AGREE THAT YOU SHALL NOT BRING ANY CLAIM AGAINST THE OTHER AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. INSTEAD, YOU AND THE COMPANY MAY ONLY BRING CLAIMS AGAINST EACH OTHER IN YOUR OR ITS INDIVIDUAL CAPACITY. FURTHERMORE, UNLESS BOTH YOU AND THE COMPANY AGREE, NO ARBITRATOR OR JUDGE MAY CONSOLIDATE MORE THAN ONE PERSON'S CLAIM OR OTHERWISE PRESIDE OVER ANY FORM OF REPRESENTATIVE OR CLASS PROCEEDING.
All controversies and claims that arise out of or relate to the Agreements shall be resolved in accordance with the following:
Applicability and Exceptions
- Infringement of Intellectual Property. If the claim relates to theft, infringement, or other misuse of a party's intellectual property, including infringement of a trademark or servicemark or copying or distributing the Protected Data, the claiming party need not rely on binding arbitration and need not attempt informal resolution, but instead may immediately seek relief in a court of competent jurisdiction. For such actions, the parties consent to jurisdiction in the State of New York.
- Small Claims. The claimant may seek resolution of any dispute in small claims court in Suffolk County, New York, provided that all claims between the parties fall within the jurisdiction of the small claims court and were not able to be resolved by the informal resolution procedure described in Paragraph 6.3(ii) below.
- Enforcement Actions. The claimant may pursue enforcement actions through applicable U.S. federal, state, or local agencies where such actions are available.
- Location and Language. The place of the arbitration shall be Suffolk County, New York and the language shall be English.
- Number and Selection of Arbitrators. For any dispute in which the amount in controversy is less than $100,000, there shall be one arbitrator who shall be selected and appointed in accordance with the AAA's Commercial Arbitration Rules. In all other cases there shall be a panel three arbitrators, one selected by the initiating party in the request for arbitration, the second selected by the other party within 30 days of receipt of the request for arbitration, and the third, who shall act as chairperson, selected by the two party-appointed arbitrators within 30 days of the selection of the second arbitrator. Any arbitrators not selected within the specified timeframes shall be selected by the AAA.
- Confidentiality. The existence of the arbitral proceedings and any rulings or awards shall be kept confidential except: (1) if the disclosure is required of a party to fulfill a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority; (2) if the disclosure is made to the party's accountants, attorneys, and other fiduciaries; (3) to an arbitrator or third party for use as persuasive authority in other proceedings brought pursuant to this Subsection; or (4) with the written consent of all parties. Notwithstanding anything to the contrary, either party may disclose matters relating to the arbitration or the arbitral proceedings where necessary for the preparation of a claim or defense in such arbitration.
- Modifications. If the Company makes any changes to this Dispute Resolution provision, you may reject any such change by sending the Company written notice within 30 days of the change to the Company's address for Notice, in which case your account and any rights granted to you under the Agreements shall be immediately terminated, without liability to you, and this Dispute Resolution Subsection as in effect immediately prior to the amendment(s) you reject, shall survive.
Any claim under the Agreements shall be time-barred unless the claiming party commences arbitration (or litigation if one of the exceptions set forth in Paragraph 6.3(i) applies) with respect to such claim within one year after the basis for such claim became known or should have become known to the claiming party. If applicable law prohibits a one-year limitation period for commencing claims, any claim must be asserted within the shortest time period permitted by applicable law. Any applicable statutes of limitations and defenses based upon the passage of time shall be tolled upon the filing of a request for arbitration until 60 days after the issuance of the final award.
You may not assign your rights or delegate your obligations under the Agreements to any third party. The Company may freely assign its rights and delegate its duties under the Agreements to any third party.
The Company may amend the Agreements from time to time by posting updated Agreements to the Numbo
Website and/or within the Numbo Service. Your continued use of the Numbo Service after the
changes have been made will act as your acceptance of the revised Agreements. If you do not wish to continue to
use the Numbo Service under the new version of the Agreements, you may terminate the Agreements by
following the procedures discussed in Subsections 4.6 or 5.2.
You acknowledge and agree that it is your responsibility to review the Agreements periodically to maintain awareness of the most current terms of the Agreements. The Company is never required to alert you as to changes to the Agreements, but the Company may choose to do so by any means reasonable under the circumstances (e.g. by sending an e-mail or displaying a notice within the Numbo Service or on the Numbo Website).
If any provision or term of the Agreements is deemed invalid, illegal, or unenforceable, the remainder of the Agreements shall remain in full force and effect, except where the construction of the Agreements without the severed provision would materially alter the economic or legal substance of the Agreements in a manner that is materially adverse to the Company, in which case the parties shall negotiate in good faith to modify the Agreements so as to effect the original intent of the parties as closely as possible. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
Other than as stated in this Subsection or as explicitly agreed upon in writing between you and the Company, the Agreements constitute the final and exclusive agreement between you and the Company. The Agreements supersede all prior negotiations and agreements between you and the Company and there are no other terms or conditions other than those set forth in the Agreements. However, certain aspects of your use of the Numbo Service may be governed by additional agreements (for example, use of a gift card, coupon, or trial account). In those instances, you may be presented with additional terms that you must agree in order to use those aspects. If there is any irreconcilable conflict between those additional terms and the Agreements, the additional terms shall prevail.
Any delay in the performance of any duties or obligations of either party will not be considered a breach of the Agreements if such delay is caused by labor dispute, shortage of materials, earthquake, flood, intervening illegality, or other event beyond the control of such party, provided that such party uses reasonable efforts under the circumstances to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
All waivers must be in writing and the Company's failure to enforce any provision of the Agreements on one or more occasions will not be deemed a waiver.
You and the Company shall provide only written notices under the Agreements and must use only the acceptable methods and contact information for notice as further discussed below, unless a different method is expressly stated in any Subsection of the Agreements (in which case, that method of delivery is acceptable only for the notice contemplated by the Subsection allowing for that type of notice).
Notice to You
- If you are the Primary Account Holder, it is your responsibility to ensure that your e-mail address and other contact information is current and to advise the other users subscribed through your account of all relevant notices. You shall defend, indemnify, and hold the Company harmless against any claim that notice was not properly received by you or any individual having a phone line subscribed through your account if the notice was not received because you failed to keep your contact information current or because you failed to disclose notice to other users subscribed through your account.
- If you are not the Primary Account Holder, you understand and agree that you shall be deemed to have received notice of any communication sent to the Primary Account Holder in the same manner and effect as if it were sent directly to you.
Notice to the Company
Each party represents and warrants that it has the full power and authority to enter into and perform the Agreements and that the person(s) accepting the terms of the Agreements by using the Numbo Service are duly authorized and empowered to enter into the Agreements.
Headings and Construction
The headings in the Agreements are for convenience and ease-of-reading only and do not limit or otherwise affect the meaning of the terms contained within the Agreements. Whenever used in the Agreements and to the extent appropriate based upon the overall context, the masculine, feminine or neuter gender shall include the other two genders, the singular shall include the plural, and the plural shall include the singular.
All defined terms have the meaning set forth in their surrounding text, including any terms defined in the preamble as well as the body of the Agreements.