SIGNING UP FOR SOUTHWEST VEHICLE MARKETING’S SERVICES CREATES A CONTRACT BETWEEN YOU AND US, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT (AS DEFINED BELOW). ANY ONE OF THE FOLLOWING ACTIONS CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS: (1) ACCEPTING THE TERMS AND CONDITIONS ELECTRONICALLY DURING THE ORDERING PROCESS AND/OR UPON LOGGING ON TO USE YOUR SERVICE, (2) YOUR SUBMISSION OF AN ORDER AND/OR ACCEPTANCE OF A QUOTE, (3) YOUR USE OF THE SERVICES DESCRIBED HEREIN, (4) YOUR EXECUTION OF A MINIMUM COMMITMENT CONTRACT. THROUGH THESE ACTIONS YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT.
1. INTRODUCTION
These
Southwest Vehicle Marketing Master Terms and Conditions, together with any Southwest Vehicle Marketing Service Agreement, the Service-Specific Terms, end-user license agreement, end-user service agreement, other terms and conditions, operating rules, policies, price schedules, and/or other supplemental documents entered into between you and Southwest Vehicle Marketing or that are otherwise applicable to your Services and/or expressly incorporated herein by reference and published from time to time (collectively, the
“Agreement”), constitute the entire agreement between
Southwest Vehicle Marketing, LLC, an Arizona corporation (hereinafter referred to as “we,” “us” or “Southwest Vehicle Marketing”) and the party set forth in the related registration order form or quote (hereinafter referred to as “you,” “your”, “user” or “Customer”) regarding Southwest Vehicle Marketing’s Services (as defined herein), and supersedes all prior agreements, discussions and writings between the parties regarding the subject matter of this Agreement.For purposes of this Agreement, the term
“Southwest Vehicle Marketing” includes our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, attorneys and any other service provider that furnishes Services or Devices to you in connection with this agreement.
2. DEFINITIONS
1. “Device” — a Southwest Vehicle Marketing-provided telephone, telephone adapter (“Adapter”), fax bridge, router, or other device used with the Services.
2.
“Documentation” — user manuals and other documentation relating to the Services, made available to Customer by Southwest Vehicle Marketing via the Internet, other electronic means, or in printed form.
3.
“Services” — the products and services provided to you as described in any quote or order form, including (but not limited to):
unified communication (voice), digital customer engagement, contact center, and vFax services, as well as any associated features, functionalities, software, hardware or web-based platforms.“Services” also include any additional services described in any addendum or amendment.
1. The following services are subject to the
Service-Specific Terms, which are integrated herein by reference:
UCaaS (VoIP) Services:
https://www.southwestvm.com/legal.html?doc=02
Digital Customer Engagement Services:
https://www.southwestvm.com/legal.html?doc=03
Contact Center Services:
https://www.southwestvm.com/legal.html?doc=04Fax Services:
https://www.southwestvm.com/legal.html?doc=05
Provided Contact Center Services:
https://www.southwestvm.com/legal.html?doc=06
If you purchase a service package, it may include components from multiple service types — multiple Service-Specific Terms may apply.
“Software” — any proprietary software owned by, licensed by, or sublicensed by Southwest Vehicle Marketing under this Agreement, either provided directly to the Customer or used to provide the Services.
3. REVISIONS TO TERMS AND PRICING. From time to time, we may revise the terms and conditions of this Agreement (including, without limitation, any of the policies incorporated by reference). Notice of revisions to the Agreement shall be posted on the Southwest Vehicle Marketing Website (the “Website") and deemed given and effective on the date posted to the Website. Pricing is also subject to change at any time (except base service pricing for contracted quantities during the initial term of a Minimum Commitment Contract such as a Southwest Vehicle Marketing Service Agreement), with or without notice. If you do not agree to a revision or pricing change (except for changes to taxes, surcharges, usage charges, and fees), you must terminate your Services immediately, subject to the Termination provisions provided in this Agreement. By continuing to use the Services after revision(s) and/or pricing changes are in effect, you hereby accept and agree to all such revisions and/or pricing changes.
3. REVISIONS TO TERMS AND PRICINGFrom time to time, we may revise the terms and conditions of this Agreement (including, without limitation, any policies incorporated by reference). Notice of revisions will be posted on the Southwest Vehicle Marketing Website.
5. CUSTOMER REPRESENTATIONS. You represent and warrant that your business address is in the United States. You represent and warrant that you are at least eighteen (18) years of age or, as applicable, the age of majority in the country, state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. You represent and warrant that your name, user name, contact information and registered location are true and correct and, if you are entering into this Agreement on behalf of a company or another entity, you are authorized to act on behalf of that company or entity. You understand that Southwest Vehicle Marketing relies on the information you supply and that providing false or incorrect information may result in delays in the provisioning or delivery of the Services, the suspension or termination of your Services and the inability of a 911- dialed call to be correctly routed to emergency service personnel where your Services include UCaaS (Voice) services. You agree to promptly notify Southwest Vehicle Marketing whenever your billing information changes (including, but not limited to, your name, address, e-mail address, telephone number, and payment method, including credit card number and expiration date, if applicable). You agree to be financially responsible for your use of the Services as well as for use of your account by others.
6. USE OF SERVICE AND DEVICE.
1Business Plans. Services are provided to you as a business user, for your business and home office use. This means that you are not using it for any personal, residential, nonbusiness and nonprofessional purpose. This also means that you are not to resell or transfer the Services to any other person for any purpose or make any charge for the use of the Services, without express written permission from Southwest Vehicle Marketing in advance. Southwest Vehicle Marketing reserves the right to immediately terminate, change the calling plan or modify the Services if Southwest Vehicle Marketing determines, in its sole discretion, that you are using the Services for non-business or non-commercial use.
2.
Restrictions. You shall not: (a) copy or adapt the Software or the Services for any purpose, except as specifically permitted under this Agreement; (b) use the Software or Services except in accordance with all applicable laws and regulations, and except as set forth in the Documentation; (c) reverse engineer, translate, decompile, or disassemble the Software or Services; (d) use the Software or Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party other than the Customer; (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Software or Services; or (f) use or access the Software or Services to compete or enable others to compete with Southwest Vehicle Marketing, including, but not limited to, copying features, functionalities, graphics, of the Services, developing or modifying competing products and/or services, and performing competitive analyses or benchmarking.
3.
User Responsibility. You agree that you are responsible for all use(s) related to your account. You understand this means that you accept full liability and responsibility for your actions or the actions of anyone who uses the Services via your account with or without your permission. You acknowledge that Southwest Vehicle Marketing will be sending you information, including your password, via e-mail over the Internet. You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt the information and telephone calls you transmit over the Internet. In order to maintain the security of your Services, you should safeguard your User IDs and Passwords, as well as the media access control (MAC) address of the Adapter. The MAC address is one of the pieces of information used by Southwest Vehicle Marketing to authenticate customer calls and should not be shared.
4.
Use of Service and Device by Customers Outside the United States. While Southwest Vehicle Marketing encourages use of the Services within the United States to other countries, Southwest Vehicle Marketing does not presently offer or support the Services to customers located in any countries other than the United States except where expressly agreed by Southwest Vehicle Marketing in writing. Southwest Vehicle Marketing’s Services are designed to work generally with unencumbered high-speed internet connections. However, if the high-speed internet connection you are using is outside the United States and/or your ISP places restrictions on the usage of the Services, Southwest Vehicle Marketing does not represent or warrant that use of the Services by you is permitted by any other jurisdictions or by any or all the ISPs. If you remove any Device to a country other than the United States or use the Services from there, you do so at its own risk, including the risk that such activity violates local laws in the country where you do so. You will be solely responsible for any violations of local laws and regulations or violations of ISP terms of service resulting from such use. You also agree to indemnify us for any claims, damages or expenses resulting from your use of the Services outside of the United States. Southwest Vehicle Marketing reserves the right to disconnect Services immediately if Southwest Vehicle Marketing determines, in its sole and absolute discretion, that you have used the Services or the Device in violation of applicable laws, including without limitation laws of jurisdictions outside the United States. You are solely liable for any and all use of the Services and/or Device by any person making use of the Services or Device provided to you.
5.
Account Ownership. The owner of the account under which the Services are ordered shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Services with Southwest Vehicle Marketing. If no legal entity is provided upon sign-up, the account owner shall be the owner of the credit card used to open such account, if applicable. Subsequent changes to ownership must be supported by appropriate legal documentation. Southwest Vehicle Marketing shall not adjudicate ownership-related disputes, or any other internal business dispute. If Southwest Vehicle Marketing is unable to determine the valid owner of the account, Southwest Vehicle Marketing reserves the right to suspend or terminate the account and Services.
6.
Multi-Location Accounts. Southwest Vehicle Marketing may allow you to set up Services to multiple locations and/or sub-accounts under your account. You understand that users on an account containing multiple locations or sub-accounts may be able to access data from or regarding other locations or sub-accounts under that account. This data may include, but is not limited to, customer proprietary network information (CPNI), personally identifiable information (PII) and/or protected health information (PHI). Further, users of an account containing multiple locations or sub-accounts may be able to add or remove Services at other locations or sub-accounts. By accepting a quote(s) or other agreement providing for multiple locations or sub-accounts, you acknowledge the aforementioned service feature, and you agree to indemnify us for, and hold us harmless from, any claims, damages or expenses resulting from access by your users from one location or sub-account to other locations or sub-accounts on your account.
7.
Compatibility with Broadband, Cable Modem, and Other Services. There may be other third-party services with which our Services may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications or other content using the Services. We do not warrant that the Service will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Services with any particular broadband service. You agree that you are solely responsible for ensuring that the Services are interoperable with your internet service provider (ISP).
7DISCONTINUATION OF SERVICES; FREE TRIALS.
1Substitution and Discontinuation of Services. Southwest Vehicle Marketing may, in its sole discretion, discontinue or substitute any service, feature or functionality without your prior approval. If Southwest Vehicle Marketing discontinues a service, feature or functionality and fails to substitute that service, feature or functionality with an equivalent service, feature or functionality, then upon your written request, Southwest Vehicle Marketing will reduce the fees assessed to your account by the amount that you specifically pay for any such discontinued service, feature or functionality. Notwithstanding the foregoing, Southwest Vehicle Marketing may include with or add to your account certain services, features and/or functionalities on a trial, temporary or otherwise limited basis. Southwest Vehicle Marketing reserves the right to discontinue any such services, features and/or functionalities without notice and without compensation to you, and/or to charge you a fee as a condition of your continued use of any such services, features and/or functionalities.
2.
Free Software Offering. From time to time, Southwest Vehicle Marketing may make a free, feature-limited version of the Software (a “Free Version”) available to You
2.1
Generally. The Free Version is provided “as-is, where-is” and without any warranty of any kind. Southwest Vehicle Marketing reserves the right, in its sole discretion, to discontinue the Free Version and/or any service, feature or functionality included within the Free Version without your prior approval and without compensation to you at any time. Southwest Vehicle Marketing will, to the extent commercially practicable, provide you with reasonable advanced notice of any planned termination of the Free Version. Services, features, and functionalities within the Free Version are subject to change, with or without notice to you. You agree that you will be responsible for any all fees, taxes, charges, and surcharges arising from your use of the Free Version beyond the limitations contained within the Free Version, including, but not limited to, excess usage charges and international calling charges.
2.2
Added Services. You may be prompted to add optional features or services to the Free Version from time-to-time (collectively, the “Added Services”). Your use of a Free Version does not entitle you to the use of any Added Services except to the extent you agree to any requirements that Southwest Vehicle Marketing provides for access to such Added Services. Such additional requirements may include, but are not limited to: payment of additional costs (subscription, taxes, fees, and the like), becoming subject to a minimum-term commitment, or purchasing additional hardware or features or services to fully enable your usage of such Added Services.
2.3
Number Assignment and Use. If your Free Version includes voice and/or SMS/MMS usage features and/or functionalities, you may be assigned a phone number by Southwest Vehicle Marketing. You may also be able port a phone number to your Southwest Vehicle Marketing Free Version account. You understand and agree that if you do not use the voice and/or SMS/MMS features and/or functionalities included with your Free Version for a period of thirty (30) days, Southwest Vehicle Marketing may remove the phone number from your account and reassign that number to another user. If a phone number is removed from your account due to non-use, you further understand and agree that Southwest Vehicle Marketing may assign a new phone number to your account if you request that the voice features and/or functionalities be re-enabled; however, Southwest Vehicle Marketing may not be able to return the phone number to your account that was previously assigned to you or ported to your account.
7LENGTH OF SERVICE.
1Service Term. We provide the Services for the term that you have signed up for. Your term begins on the date you first ordered service (the “Subscription Date”). It is not the day you receive the Device you ordered or the first time you use the Services. You are purchasing the Services for the full service term as set forth in the Order.
2.
Automatic Renewal. The Services will automatically renew for subsequent terms of the same length as the initial term, excluding any promotional or “free” months of Services or initial or renewal term extensions, unless you cancel your Services by providing Southwest Vehicle Marketing with notice as provided in Section 7.5 of this Agreement at least thirty (30) days before the end of the then-current service term. Each renewal term begins on the day after the last day of the previous term. Any and all fees assessed to your account during the initial term and any renewal terms will be charged to your payment method on file, which may include any payment method automatically updated by your issuing bank. If you are paying by credit card and your credit card is declined, invalid, or payment is not timely made by the issuer of your credit card, without further notice Southwest Vehicle Marketing reserves the right to automatically recharge the payment method until payment is received, the payment method is updated, or the Services are discontinued for nonpayment.
3. Our right to disconnect. You understand and agree that Southwest Vehicle Marketing has the right to suspend, terminate or disconnect any part of Your Services generally at any time if:
3.1 We determine or reasonably believe that You are violating, or violated, any applicable law;
3.2 We determine or reasonably believe that You materially breached this Agreement and/or the AUP (as defined below);
3.3 We determine or reasonably believe that You used fraudulent means to pay for the Services, including use of a fraudulent credit card;
3.4 We determine or reasonably believe that You abused or harassed (verbally or otherwise) any Southwest Vehicle Marketing employee, contractor, agent or representative;We are ordered by law enforcement or other government agencies to suspend, terminate or disconnect your Services;
3.5 You bring any legal action or proceeding against Southwest Vehicle Marketing, or participate in any class action lawsuit against Southwest Vehicle Marketing;
3.6 A petition in bankruptcy is filed by or against You and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over You or Your material assets;
3.7 We determine that such action is necessary to protect, maintain, or improve the Services, to prevent fraud or misrepresentation, to protect Southwest Vehicle Marketing, its customers or other third party Southwest Vehicle Marketing affiliates, or for any other good cause.
3.8 You breached this Agreement or as otherwise contemplated by this Agreement.
3.9 You fail to make payment.
4. All charges owed at the time of disconnection will be immediately payable. We will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.
5.
Termination of Services. In order to terminate the Services, contact our Customer Care Department, via email at info@southwestvm.com or by calling
1-888-969-1500 at least thirty (30) days prior to the expiration of the current service term. Please refer to the Southwest Vehicle Marketing Cancellation Policy posted on our Web site at
https://www.southwestvm.com/legal.html?doc=10. If you provide notice of termination less than thirty (30) days prior to the end of your then-current term, your Agreement will renew as provided herein, and the termination of your Services will be effective at the end of that renewal term.
8. DEVICES
1. Ownership and Risk of Loss.
Upon full payment of all fees associated therewith, you will own any Devices that you purchase from Southwest Vehicle Marketing and, in all events, you bear all risk of loss, theft, or damage regardless of the payment schedule selected for Services and Devices once Southwest Vehicle Marketing ships the Device(s) to you. Returns of non-defective Devices outside of any initial 30-day money back guarantee period, if any, will not be accepted. Refer to the Cancellation Policy for more information.
2. Rented Devices.
Section 8.1 above will not apply to Rented Devices. Unless otherwise agreed upon, Customer agrees that within thirty (30) days after the expiration of the Term of any Device Rental Agreement or termination of this Agreement, Customer will promptly return all Rented Devices to Southwest Vehicle Marketing. Customer will be responsible for (i) any damage to the Rented Devices as assessed by Southwest Vehicle Marketing upon receipt, (ii) the replacement cost of such Rented Devices if it is lost, misplaced, not delivered or stolen during transit, and (iii) shipping/handling costs. Customer agrees to pay the full retail cost for the repair or replacement of any Rented Device or part that is lost, stolen, damaged, modified, sold, transferred, leased, encumbered or assigned together with any costs incurred by Southwest Vehicle Marketing in obtaining or attempting to obtain possession of any Rented Devices. For the purposes of this section "Rented Devices" means any Device leased to Customer by Southwest Vehicle Marketing or Southwest Vehicle Marketing agents or any other third-party with or without a separate charge or fee in connection with the Services.
3. Promotional Devices.
Devices provided to you at a discount or at no charge may be previously used, refurbished or reconditioned equipment. Unless otherwise provided in a Minimum Commitment Contract, discounted and free Devices not returned upon cancellation of the Services will be charged to the customer. See Cancellation Policy for details.
4. Replacement of a Defective Device.
Devices purchased from Southwest Vehicle Marketing will be covered by their respective factory warranties, if any, only. Southwest Vehicle Marketing does not offer any warranty in addition to, or in replacement of any factory warranties. If a factory warranty applies, then prior to returning the equipment, you must contact Southwest Vehicle Marketing at
support@Southwestvm.com so that Southwest Vehicle Marketing may determine whether a defect exists and to receive an RMA number, which is required along with the return. You must ship the equipment to the manufacturer at the address provided by Southwest Vehicle Marketing in accordance with all RMA procedures. You have 7 days after receipt of an RMA to ship the equipment back to the manufacturer at the address we provide. You must pay all shipping fees. Once the manufacturer has received the equipment, a replacement may, if eligible, be sent to you in accordance with the factory warranty, if any. If an advanced replacement is provided and the factory has not received the defective Device within 14 days or it was not in a returnable condition, (original carton, all packing materials and parts in the same condition in which you received them), then Southwest Vehicle Marketing will charge you for the second device or for the missing parts. Notwithstanding the foregoing, nothing herein shall be construed as creating an obligation for Southwest Vehicle Marketing to provide an advanced replacement, nor shall any action by Southwest Vehicle Marketing be construed as a warranty determination or as otherwise guaranteeing eligibility for a replacement device or other warranty remedy.
5. Receipt of Damaged Devices.
If you receive cartons or Devices that are visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. You must also keep the original carton, all packing materials, and parts in the same condition in which you received them from the carrier. You must then contact our Customer Care Department immediately at
support@Southwestvm.com for return instruction.
6. Tampering with the Device.
You may not change the electronic serial number or equipment identifier of your Device or perform a factory reset of your Device without first getting our written consent.
7. Prohibited Devices.
You are prohibited from using the Services with any devices other than Southwest Vehicle Marketing-approved devices received from authorized retailers or from us unless we otherwise agree in writing.8. All Headset Sales Are Final.
Headsets, earpieces, in-ear monitors, microphones and similar devices are not eligible for return or refund unless otherwise required by law. All purchases of these types of products are final and non-refundable.
9. FEES AND CHARGES.
1. Fees and Charges.
Your fees and charges may change from time to time, with or without notice (except base service pricing for contracted quantities will not change during the initial term of a Minimum Commitment Contract). Any pricing adjustment will be reflected in an invoice provided to you at the time of the pricing adjustment for your account. We may introduce or otherwise make available new and/or existing products and services at special introductory pricing. Introductory pricing will not be applied retroactively to existing services and may be applied for only limited periods of time. At our discretion, we may change, reduce, or discontinue introductory pricing. Certain service charges, such as Regulatory Recovery Fees, Universal Service Fund fees, and E911 fees, where and as applicable, are subject to change from time to time and such changes are applicable to ALL Customers regardless of a Minimum Commitment Contract.
2. Billing Increments.
All billing policies are defined by the specific package the customer chooses. Please refer to the Web site for exact billing policies.
3. Taxes.
Customer is responsible for, and shall pay any applicable federal, state, municipal, local or other governmental sales, use, excise, Universal Service Fees, value-added, personal property, public utility and other taxes, fees and charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Services or a Device. Such amounts are in addition to payment for the Services or Device and will be billed to you. If Customer is exempt from payment of such taxes, you will provide Southwest Vehicle Marketing with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date Southwest Vehicle Marketing receives such certificate.
4. Activation Fee.
One-time activation fees and any other installation fees that may apply are specified on the Web site and vary by product and plan chosen.
5. Regulatory Recovery and e911 Fee.
A Regulatory Recovery Fee and e911 Fee shall be charged monthly for certain Services to offset costs incurred by Southwest Vehicle Marketing in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses and in providing e911 services. These fees are not taxes or charges required or assessed by any government and are in addition to such taxes and charges. The Regulatory Recovery Fee and e911 Fee may apply to every phone number assigned, including toll free and virtual numbers.
6. Reinstatement Fee.
Reinstating any service deactivated for non-payment of fees shall result in a reinstatement fee up to $25.7. Returned Check Fee.
Southwest Vehicle Marketing may charge up to the maximum amount permitted by law if your banking institution dishonors or reverses a check, draft, or other payment.
10. BILLING AND PAYMENT.
1. Billing; Free Trials.
We will charge you in advance for each term of service. If you have selected a free trial offering, we will commence charging you for those Services at the expiration of the free trial period, unless you terminate the free trial offering prior to the expiration of the trial period. If not terminated prior to the end of the trial period, these Services will be added to your account for the remainder of your term, and any subsequent removal of the Services will be subject to Southwest Vehicle Marketing’s Cancellation Policy, as well as any and all applicable early termination fees. In the event that you do terminate a free trial offering prior to the expiration of the trial period, Southwest Vehicle Marketing may, without prior notice to you, immediately terminate your access to the free trial offering. Any failure by Southwest Vehicle Marketing to immediately terminate your access to the free trial offering shall not be considered a waiver of the right to do so later. You further agree that you will not access or attempt to gain access to any free trial offering after the termination of your free trial period.When you subscribe to the Services, you must give us a valid email address and a payment method that we accept. We reserve the right to stop accepting your payment method or your payments. You must advise us at once if your payment method expires, you close your account, your billing address changes, your email address changes, or your payment method is cancelled and replaced on account of loss or theft. Except for usage-based charges, we will bill in advance to your payment method all charges, fees, taxes, and surcharges for each service term. Fees may also include activation fees, porting fees, early termination fees ("ETF"), reinstatement fees, and returned check fees. We reserve the right to charge all fees to your payment method. We will bill monthly as due immediately usage-based charges and any other charges which we decide to bill as due immediately. Bills will be posted to the customer portal and emailed to the email address on record. Any payment not made when due may be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month; or (ii) the highest rate allowed by law. Southwest Vehicle Marketing’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly)) will not waive, limit, or prejudice in any way Southwest Vehicle Marketing’s rights to collect any amount due. Southwest Vehicle Marketing may terminate the Services and this Agreement for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
2. Payment.
When you subscribe to the Services, you authorize us to collect from your payment method. This authorization will remain valid until thirty (30) days after you terminate our authority to charge your payment method.
3. Collection.
If we disconnect the Services, you will remain liable to us for all charges under this agreement and all the costs we incur to collect these charges, including, without limitation, collection costs and attorney’s fees. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest and charges due to insufficient credit.
4. Notices.
You understand that it is difficult for us to distinguish between credit and debit cards. You agree to waive your rights under Regulation E to receive ten (10) days’ advance notice from us regarding the amount that we will debit from your account. While we may send you messages about your billing from time to time, we are not obligated to do so. We may change or cease our messages at any time without notice to you.
5. Billing Disputes.
You must notify Southwest Vehicle Marketing in writing within seven (7) days after receiving your credit card statement or from the time funds are debited from your bank account if you dispute any Southwest Vehicle Marketing charges on that statement or that have been debited from your account, or such dispute will be deemed waived. Notification of all billing disputes shall be sent to the following address:
billing@Southwestvm.com. Southwest Vehicle Marketing will charge a late fee as described in Section 10.1 for a disputed amount if (1) it was not paid by the due date and (2) Southwest Vehicle Marketing determines that you disputed the charge in bad faith.
6. Prepaid Services.
All prepaid fees being provided to you as described in any quote or order form and other payments by you under this Agreement are non-refundable and non-creditable.
12. Acceptable Use Policy. You agree to comply with the Southwest Vehicle Marketing Acceptable Use Policy (“AUP”), which is posted on our Web site at
https://www.southwestvm.com/legal.html?doc=09 and is incorporated into this policy with this reference. Changes to the AUP may be made at any time without notice to you and is effective the day following posting to our Web site.
13.
MANAGEMENT OF YOUR DATA AND COMPUTER.1. Customer Responsibility for Equipment and Software.You are solely responsible for obtaining, installing, configuring, and maintaining suitable equipment, including your computer, fax, telephone, and software (as necessary), including any necessary system or software upgrades, patches, or other fixes which are or may become necessary to access the Services and to operate your computer. Southwest Vehicle Marketing will only provide technical assistance with respect to your Southwest Vehicle Marketing-provided Adapters and other Devices.
2. Monitoring of Network Performance.Southwest Vehicle Marketing automatically measures and monitors network performance. We also will access and record information about your computer's profile and settings and the installation of the Software in order to provide customized technical support. No adjustments to your computer settings will be made without your permission. You hereby consent to Southwest Vehicle Marketing's monitoring of your Internet connection and network performance, and the access to and adjustment of your computer settings, as set forth above, as they relate to the Services.
3. Storage of User Information.Southwest Vehicle Marketing is not obligated to store your communications logs, voicemails, faxes, e-mails, messages, and/or other data and does so only as a convenience to you. You agree that Southwest Vehicle Marketing has no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, e-mails, messages, and/or other communications or data maintained or transmitted by the Services. You acknowledge and agree that Southwest Vehicle Marketing may establish limits as to the size of communications and/or data that Southwest Vehicle Marketing transmits or stores and the duration for which Southwest Vehicle Marketing stores any communications and/or data.
14.
LIMITATION ON WARRANTIES, REMEDIES AND LIABILITY, INDEMNIFICATION.
1. SOUTHWEST VEHICLE MARKETING MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICES OR DEVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. SOUTHWEST VEHICLE MARKETINGDOES NOT WARRANT THAT THE SERVICES OR DEVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. SOUTHWEST VEHICLE MARKETING DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. CUSTOMER AGREES THAT IT ACCEPTS THE SERVICES AND DEVICE “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND IN THE EVENT OF ANY DEFECT. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST SOUTHWEST VEHICLE MARKETING TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
2. WE WILL NOT GIVE YOU CREDIT FOR ANY INTERRUPTION OF SOUTHWEST VEHICLE MARKETING SERVICES, INCLUDING INTERNATIONAL CALLING SERVICES.
LIMITATION OF LIABILITY.
1. IN NO EVENT SHALL SOUTHWEST VEHICLE MARKETING BE LIABLE TO YOU, YOUR REPRESENTATIVES OR AUTHORIZED ASSIGNS OR ANYONE ELSE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICES, THE USE OF OR INABILITY TO USE THE SERVICES, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICES, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT. NOR SHALL SOUTHWEST VEHICLE MARKETING BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICES, INCLUDING 911 DIALING, AT ANY TIME OR FROM TIME TO TIME, OR FOR ANY INTERRUPTION OR DEGRADATION OF VOICE QUALITY CAUSED BY ANY REASON INCLUDING BUT NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, EQUIPMENT, NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION, FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO ACTS OF GOD, ADVERSE WEATHER, STRIKES, FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICE, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO SOUTHWEST VEHICLE MARKETING OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND SOUTHWEST VEHICLE MARKETING’S CONTROL, INCLUDING WITHOUT LIMITATION THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS TO BE CONNECTED OR COMPLETED, INCLUDING 911 DIALING, OR DEGRADATION OF VOICE QUALITY. SOUTHWEST VEHICLE MARKETING SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO SOUTHWEST VEHICLE MARKETING’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF SOUTHWEST VEHICLE MARKETING’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. SOUTHWEST VEHICLE MARKETING’S LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE SERVICE CHARGES ACTUALLY PAID BY YOU TO SOUTHWEST VEHICLE MARKETING FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM, OR, WITH RESPECT TO CLAIMS RELATING TO THE FREE VERSION, ONE HUNDRED DOLLARS ($100.00). THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT SOUTHWEST VEHICLE MARKETING WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE TO REIMBURSE SOUTHWEST VEHICLE MARKETING FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST SOUTHWEST VEHICLE MARKETING TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
15. INDEMNIFICATION AND WAIVER OF CLAIMS.
1. INDEMNIFICATION BY SOUTHWEST VEHICLE MARKETING.
1.1 Subject to any limitation of liability described in this Agreement including, without limitation in Section 14.2 of this Agreement, Southwest Vehicle Marketing agrees to indemnify, defend and hold you harmless at its expense any claim made or action brought or threatened against you based on an allegation that the Services infringe a patent, copyright, trade secret, or other intellectual proprietary right. Southwest Vehicle Marketing shall have control of the defense and shall pay any amount awarded either as damages or costs in any such action provided that you promptly notify Southwest Vehicle Marketing of the claim or action, and shall give Southwest Vehicle Marketing the information and assistance it reasonably requests in defending and/or settling the action. Southwest Vehicle Marketing may, at its sole option and expense, negotiate a settlement or compromise of the claim or action, provided such settlement or compromise includes an unconditional release of you. In the event that a settlement is reached or an injunction is obtained, prohibiting use of the Services, Southwest Vehicle Marketing shall at its expense, procure for Customer the right to continue using the Services, or replace or modify it so that it is non-infringing provided that there is no material diminution in features, functionality or service level. If Southwest Vehicle Marketing determines that neither of the foregoing alternatives is reasonably available and if the use of the Services is enjoined you shall cease using the Services and return to Southwest Vehicle Marketing all copies, if any, of the Services or certify that they have been destroyed. In the event it is necessary to cease using the Services, Southwest Vehicle Marketing shall repay to you a pro rata portion of all license fees paid by Customer.2. Exceptions to Indemnity. Southwest Vehicle Marketing shall have no obligation under its obligations of indemnification with respect to any proceeding or claim of infringement based upon the following: (i) unauthorized modification of the Services by you, or (ii) combination, operation, or use of the Services with equipment, software and/or services not furnished, authorized, or contemplated by Southwest Vehicle Marketing, or (iii) operation or use of the Services in a manner other than its intended purpose. Southwest Vehicle Marketing shall also not have any indemnification obligations for any claims alleging that a Device and/or Services resold by Southwest Vehicle Marketing infringe on a third-party’s intellectual property rights.
2.
INDEMNIFICATION BY CUSTOMER.
1. YOU ARE LIABLE FOR ANY AND ALL USE OF THE SERVICES AND/OR DEVICE BY YOURSELF AND BY ANY PERSON MAKING USE OF THE SERVICES OR DEVICE, AND YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS SOUTHWEST VEHICLE MARKETING AGAINST ANY AND ALL LIABILITY FOR ANY SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS SOUTHWEST VEHICLE MARKETING FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, ATTORNEYS’ FEES, AND ANY AND ALL OTHER DAMAGES OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICES, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM OUR GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT. THIS SECTION SHALL SURVIVE THE AGREEMENT.
16. CONTENT. You are liable for all liability that may arise from the content you transmit to any person, whether or not you authorize it, using the Services or Device. You promise that you and anyone who uses the Services and all your and their content comply at all times with all laws, regulations, and written and electronic instructions for using the Services and the Device.
17. MISCELLANEOUS LEGAL CONSIDERATIONS.
1Governing Law. This Agreement and the relationship between you and Southwest Vehicle Marketing shall be governed by the laws of Arizona without regard to its conflict of law provisions. Any claim brought pursuant to this Agreement shall be brought in a court of competent jurisdiction within the State of Arizona and venue for any such claim shall be proper in the appropriate state or federal court located in Maricopa County, Arizona.
2.
No Waiver of Rights. Our failure to exercise or enforce any right or provision of this agreement will not constitute a waiver of the right or provision. Southwest Vehicle Marketing reserves all of its rights at law and equity to proceed against anyone who uses the Services or Device illegally or improperly. All determinations by Southwest Vehicle Marketing under this Agreement and exercise of its rights are made and done in our sole and absolute discretion.
3.
No Third-Party Beneficiaries. If you are not a party to this Agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action. This Agreement does not create any other third-party beneficiary rights.
4.
Entire Agreement. This Agreement, the Order, the applicable service description, the AUP, or any reference herein to the content of Southwest Vehicle Marketing’s websites constitute the entire agreement between you and Southwest Vehicle Marketing and govern your use of the Services, superseding any prior agreements between you and Southwest Vehicle Marketing and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
5.
Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. This invalidity or unenforceability will not invalidate or render unenforceable any other portion of this agreement.
18. DISPUTE RESOLUTION AND BINDING ARBITRATION.
1. It is important that you read this entire section carefully. This section provides for resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury.
2. Arbitration. Southwest Vehicle Marketing and you agree to arbitrate any and all disputes and claims between you and Southwest Vehicle Marketing except with respect to claims for amounts owed for services rendered. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between you and Southwest Vehicle Marketing, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision. References to “Southwest Vehicle Marketing,” “us” and “you” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services under this agreement or any prior agreements between you and Southwest Vehicle Marketing.
3. Informal Resolution of Disputes. Our Customer Care Department can resolve most customer concerns quickly and to the customer’s satisfaction. If you have a dispute or claim against us, you should first contact the Southwest Vehicle Marketing Customer Care Department at (800) 983-4289 and provide in detail, including documents or analysis supporting your position, the basis of your claim. Customer care shall be provided with 14 days in which to research and respond to your claim.. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved as set forth below.
4. Formal Notice of Disputes A party who intends to seek arbitration must first send to the other party a written “Notice of Dispute” setting forth in detail, including submission of supporting documentation, the grounds of your dispute.
4.1 The Notice of Dispute to Southwest Vehicle Marketing must be sent to Southwest Vehicle Marketing, attention “General Counsel,” by certified mail addressed to 9451 East Via de Ventura, Scottsdale, AZ 85256.The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and Southwest Vehicle Marketing do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice of Dispute is received, you or Southwest Vehicle Marketing may commence an arbitration proceeding. The amount of any settlement offer made by you or Southwest Vehicle Marketing shall be non-discoverable and shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Southwest Vehicle Marketing is entitled.
5. Arbitrator and Arbitral Rules. The arbitration shall be administered by the American Arbitration Association (“AAA”). You may contact the AAA by telephone at
1-800-778-7879, by email at
AAAUniversity@adr.org, or by mail at 2415 E. Camelback Road, Suite 700, Phoenix, AZ 85016. The arbitration shall be governed by the AAA’s Commercial Arbitration Rules then in effect (collectively, “AAA Rules”), as modified by this Agreement. The AAA Rules are available at
adr.org or by calling the AAA at
1-800-778-7879.
6. Waiver of Judge or Jury Trial. You and Southwest Vehicle Marketing agree that, by entering into this agreement, you and Southwest Vehicle Marketing are waiving the right to a trial by judge or jury. Notwithstanding the foregoing, in the event that litigation is commenced as expressly permitted by this Agreement, you agree that the right to trial by jury only is waived.
7. Waiver of Class Actions. You and Southwest Vehicle Marketing agree that the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. You and Southwest Vehicle Marketing agree that you and Southwest Vehicle Marketing may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You and Southwest Vehicle Marketing agree that, unless you and Southwest Vehicle Marketing agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.
8. Statute of Limitations. You must present a claim within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to section 10 and 11 of the agreement), or you waive the right to pursue a claim based upon such event, facts, or dispute.
9 Exceptions to Arbitration Agreement. Notwithstanding the obligation to arbitrate and any other provisions to the contrary herein, you and we agree that with respect to claims for unpaid invoices: (a) we may take our dispute to small claims court, if the contained dispute qualifies for hearing by such court; (b) if you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement; (c) you or we may take any disputes over the validity of any party’s intellectual property rights to a court of competent jurisdiction; (d) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and (e) either you or we may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of you or Southwest Vehicle Marketing, pending the completion of arbitration.
10. Modification of Arbitration. If Southwest Vehicle Marketing makes any substantive change to this arbitration provision, you may reject any such change and require Southwest Vehicle Marketing to adhere to the language in this provision.
11. Venue/Jurisdiction. All claims for Arbitration shall be submitted to and heard by the office of AAA located in Maricopa County, Arizona. Should an evidentiary hearing be required by the Arbitrator, such hearing shall be heard in Maricopa County, Arizona.
19
PRIVACY. Southwest Vehicle Marketing Services utilize, in whole or in part, the public Internet and third party networks to transmit voice and other communications. You acknowledge and understand that Southwest Vehicle Marketing cannot guarantee that voice over IP communication is completely secure. You agree that Southwest Vehicle Marketing may access all features of your account and the Services to determine whether the Services are being used fraudulently and/or in violation of this Agreement, and for any other purposes. YOU AGREE THAT SOUTHWEST VEHICLE MARKETING SHALL NOT BE LIABLE FOR ANY LACK OF PRIVACY. Southwest Vehicle Marketing is committed to respecting your privacy relating to personally identifiable information. Once you choose to provide personally identifiable information, it will only be used in the context of your relationship with Southwest Vehicle Marketing. Southwest Vehicle Marketing will not sell, rent, or lease your personally identifiable information to others except as required by law or to satisfy regulatory requirements. Upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, Southwest Vehicle Marketing may disclose personally identifiable information. Please refer to our Privacy Policy for additional information.
20. EXPORT COMPLIANCE. You agree to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security. You also expressly agree that Customer shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Services or Device, including, without limitation, to any destination, company, or person restricted or prohibited by U.S. export controls.
21. RECORDING CONVERSATIONS. Certain Southwest Vehicle Marketing Services provide a function that allows You to record individual telephone conversations. The laws regarding the notice, notification, and consent requirements for recording conversations vary from state to state. In some states, You are required to obtain consent from all parties to record a conversation. You are solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using this feature. Southwest Vehicle Marketing expressly disclaims all liability with respect to your recording of telephone conversations. You hereby agree to fully, finally, and forever release, discharge, hold harmless, and fully indemnify Southwest Vehicle Marketing from and against any damages or liabilities of any kind related to Your recording of any telephone conversations using the Services. You agree that Southwest Vehicle Marketing, may at its sole discretion, record any call between Southwest Vehicle Marketing and You for Southwest Vehicle Marketing quality control purposes.
22. ASSIGNMENT. Southwest Vehicle Marketing may assign all or part of its rights or duties under the Agreement without notifying you. If we do that, we have no further obligation to you. You may not assign the Agreement or the Services or Device without our prior written agreement.
23. SURVIVAL. The provisions of this Agreement relating to indemnification, limitations on liability, warranty limitations and disclaimers, resolution of disputes, billings and your obligation to pay for the Services provided and any additional usage charges, shall survive the termination of the Agreement and the termination of the Service.
24.
CALEA. Southwest Vehicle Marketing intends to fully comply with the Communications Assistance for Law Enforcement Act (“CALEA”). By using the Services, you hereby agree and consent to Southwest Vehicle Marketing’s right to monitor and otherwise disclose the nature and content of your communications if and as required by CALEA without any further notice to you.
25. COMPENSATION PROGRAMS. Southwest Vehicle Marketing markets its services through multiple sales channels, including through marketing partnerships, referral programs and sales representative relationships with third parties. We may pay compensation to such third parties in connection with your purchase of services from Southwest Vehicle Marketing.
26. FORCE MAJEURE (EVENTS BEYOND SOUTHWEST VEHICLE MARKETING’S CONTROL). Except for your payment obligations, each party shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of said party’s best efforts.
27. SOFTWARE COPYRIGHT Any software used by Southwest Vehicle Marketing to provide the Services and any software provided to you in conjunction with providing the Services are protected by copyright law and international treaty provisions. You may not copy the software or any portion of it. Furthermore, you may not delete, alter, cover, or distort any copyright or other proprietary notices or trademarks provided to you as part of the Services.
28. COPYRIGHT, TRADEMARK, AND INTELLECTUAL PROPERTY; COPYRIGHT INFRINGEMENT; DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE. Our Website content, our materials, services, logs, service marks and trademarks are protected by trademark, copyright, or other intellectual property laws, and international treaty provisions. Infringement by you may result in civil or criminal prosecution.
1. The entire content included in this Website, including but not limited to text, design, graphics, interfaces, or code and the selection and arrangements thereof is copyrighted as a collective work under the United States and other copyright or intellectual property laws and is the property of, or used under license by, Southwest Vehicle Marketing.
2. Southwest Vehicle Marketing’s trademarks are always changing. Some of our trademarks include, but are not limited to:
3. Southwest Vehicle Marketing®
Southwest Vehicle Marketing, LLC.®
4. All trademarks, service marks, and trade names (collectively the "Marks") are trademarks or registered trademarks of and are proprietary to Southwest Vehicle Marketing, or other respective owners that have granted Southwest Vehicle Marketing the right and license to use such Marks.
5. Nothing in this website or your subscription to, or licensing of, any Southwest Vehicle Marketing products or services grant any right, title, proprietary or ownership interest in any Southwest Vehicle Marketing intellectual property Marks, copyrights, patents, trade secrets, or other intellectual property.
29. LICENSE BY CUSTOMER TO USE FEEDBACK
1. Customer hereby grants to Southwest Vehicle Marketing a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Southwest Vehicle Marketing’s Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the improvement, operation, or use of Customer’s Services.
2. Southwest Vehicle Marketing may identify you (by name and logo) as a Southwest Vehicle Marketing customer on our website and on other promotional materials. You hereby grant Southwest Vehicle Marketing an irrevocable, non-exclusive, royalty free license to utilize your name, trademark(s), trade name(s) and other intellectual property for this limited purpose and as otherwise agreed by you in writing.
30. CUSTOMER DATA. Southwest Vehicle Marketing does not own: (i) any data, information or material that Customer submits to Southwest Vehicle Marketing in the course of using the Services; or (ii) outputs which are specifically provided to Customer during the usual course of providing the Services except to the extent that such outputs incorporate Southwest Vehicle Marketing’s Intellectual Property ("Customer Data"). Customer hereby grants to Southwest Vehicle Marketing a limited, non-exclusive, worldwide, royalty-free license to Customer Data for Southwest Vehicle Marketing to provide Services. Customer further agrees and authorizes Southwest Vehicle Marketing to use de-identified Customer Data for purposes of developing, optimizing and improving the Services. Customer, not Southwest Vehicle Marketing, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Southwest Vehicle Marketing shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Upon termination of Customer’s Services, Customer’s right to access or use Customer Data immediately ceases, and Southwest Vehicle Marketing shall have no obligation to maintain or forward any Customer Data. At our sole discretion, Southwest Vehicle Marketing may retain Customer Data in accordance with Southwest Vehicle Marketing’s data retention policies and our Privacy Policy.
31. THIRD-PARTY INTEGRATIONS. Certain Services may be capable of being integrated with third-party services (each, a “Third-Party Integration”) that are not provided by Southwest Vehicle Marketing. By enabling or integrating the Services with a Third-Party Integration, Customer expressly authorizes Southwest Vehicle Marketing to share all Customer Data and any other information necessary to facilitate the Third-Party Integration. Customer further understands and agrees that: (i) Southwest Vehicle Marketing is not responsible for, nor does it make any representations regarding, any Third-Party Integrations; (ii) Southwest Vehicle Marketing is not responsible for any loss, misuse, or other claims related in any way to the Third-Party Integration, including, but not limited to, any claims, losses or damages arising out of or related to any transmittal of Customer Data or other information to the provider of the Third-Party Integration; (iii) the provider of the Third-Party Integration is not a subprocessor of Southwest Vehicle Marketing; (iv) Customer is responsible for ensuring that adequate safeguards are in place with the provider of the Third-Party Integration to ensure that Customer’s interests are sufficiently protected; (v) under no circumstances shall Southwest Vehicle Marketing be liable to the Customer or any third-party for any loss, damage or claim arising out of or related in any way to the Third-Party Integration or the actions and/or omissions of the provider of the Third-Party Integration; and, (vi) Customer will indemnify, defend and hold Southwest Vehicle Marketing harmless from and against any claims arising out of the Third-Party Integration
