TEN5 TERMS OF SERVICE
(Last updated: April 26, 2023)
Welcome to the website ten5.app and our mobile app (collectively, the “Site”), owned and operated by Ten5, Inc. (the “Company”). These Terms of Service (“Terms”), along with any sign up, sign in, event registration, email newsletter registration, social media and/or email sharing of content, blog post commentary, resources download page and order form you complete on the Site, are a contract between You and the Company and govern your access to and use of the Site, the content, and the products and services that are made available by the Company. Please read these Terms carefully before accessing and using the Site and purchasing the Services (as defined below).
The terms “we,” “us,” and “our” refer to the Company.
The terms “you,” “your,” “yours,” “Customer,” or “User” refer to the direct enterprise or individual user of the Services.
1. THE SERVICES.
The Company provides the Ten5 communications application downloadable on mobile cellular devices. The Company also provides a web dashboard which a Customer can use to monitor and analyze communications activity on the Ten5 application.
2. BETA RELEASES AND FREE ACCESS.
We may provide Customer with the Services for free or on a trial basis or with “alpha”, “beta”, or other early-stage form of Services which are optional for Customer to use. This section will apply to any free access subscriptions or beta releases and supersedes any contrary provision in this Agreement. We may use good faith efforts in our discretion to assist the Customer with free access subscriptions or beta releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH TEN5 WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK. We make no promises that future versions of beta releases will be released or will be available under the same commercial or other terms. We may terminate Customer’s right to use any free access subscriptions or beta releases at any time for any reason or no reason in our sole discretion, without liability.
3.1 Acceptance of Terms. By accessing and using the Site and Services, you accept and agree to be bound by these Terms, just as if you had agreed to these Terms in writing. If you do not agree to these Terms, do not use the Site and do not purchase the Services.
3.2 Amendment of Terms. The Company may amend the Terms from time to time. Unless we provide a delayed effective date, all amendments will be effective upon posting of such updated Terms to the Site. Your continued access to or use of the Site after such posting constitutes your consent to be bound by the amended Terms.
3.3 Additional Terms. In addition to these Terms, when using particular products, services or features, you may also be subject to any additional posted guidelines and rules applicable to such product, service, or feature, which may be posted and amended from time to time. All such additional terms are hereby incorporated by reference into the Terms. The Company reserves the right to modify or terminate the terms of this Section 3, in its sole discretion, at any time.
4. USE OF THE PLATFORM.
4.1 Our Platform. Subject to this Agreement and timely payment of all applicable Fees (as defined below), the Company hereby grants to Customer a limited, nonexclusive, nontransferable license during the “Term,” which includes any Initial Subscription Term and any Renewal Subscription Term (as defined in Section 4.3 below), to access the Site and use the Software in accordance with the terms set forth on each order form executed by the Customer. The Order Form will set forth the fee for the Software subscription, if any, payable by Customer to the Company (the “Fee”), and the terms and features applicable to Customer’s subscription to the Services.
4.2 Account Registration. In order to use the Services, Customer must create an account by providing complete and accurate information as requested in the registration process, and must maintain and update all information provided as required to keep it current, complete and accurate. Account credentials may not be shared or transferred, except with an “Authorized User” provided that such Authorized User must be an employee or contractor of Customer who is only authorized to use the Site and Services for the purpose of performing their job function for Customer. Customer agrees to maintain (and will ensure that all of its Authorized Users will maintain) the security and confidentiality of user names and passwords. Customer is responsible for any and all activities that occur under Customer’s account, and Customer agrees to immediately notify the Company of any unauthorized use of Customer’s account or any other breach of security related to Customer’s account, the Site, the Services, or the Software.
4.3 Payment Terms. Subscription Charges: Unless otherwise specified in any supplementary terms, except during Your free trial, all subscription charges associated with your account (“Subscription Charges”) are due in full and payable in advance, in accordance with this Section 4.3, when you subscribe to the Service(s). Unless specified otherwise in a form generated by the Site at the time of your account registration (the “Form”), the Subscription Charges are based on the “Service Plans” that you choose, and are payable in full until you terminate your Account in accordance with Section 4.8, below. Your payment is due immediately upon subscribing to the Service(s) and on every renewal date thereafter, until you cancel your subscription. Renewal: Your subscription to the Service(s) will renew automatically for a “Renewal Subscription Term” equivalent in length to the then expiring “Initial Subscription Term.” Unless otherwise provided for in any Form, the Subscription Charges applicable to your subscription to the Service(s) for any such Renewal Subscription Term shall be our standard Subscription Charges for the Service Plan to which you have subscribed as of the time such Renewal Subscription Term commences. Refunds: Unless otherwise specified in these Terms or a Form or a Service Plan, all Subscription Charges are nonrefundable. No refunds shall be issued for partial use or non-use of the Service(s) by you; provided, however, you shall be eligible for a pro-rated refund of the Subscription Charges for the remainder of the Subscription Term if you terminate your Account as a result of a material breach of these Terms by Us. Late Payments/Non-payment of Subscription Charges: We will notify you if we do not receive payment towards the Subscription Charges within the due date for Your Account. We must receive payments within a maximum of fifteen (15) calendar days from the date of our notice. If we do not receive payment within the foregoing time period, in addition to our right to other remedies available under law, We may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend your access to and use of the Service(s) until We receive your payment towards the Subscription Charges as specified herein and/or; (iii) terminate Your Account in accordance with Section 4.10. Upgrades and Downgrades: You may upgrade or downgrade within a Service Plan or between multiple Service Plans. You understand that downgrading may cause loss of content, features, or capacity of the Service(s) as available to you before downgrading your Account. We will not be liable for such loss. When you upgrade, the new Subscription Charges become immediately applicable. Upon upgrade, the new Subscription Charges for the subsisting month would be charged on pro-rated basis. Subsequent months will be charged in full according to the new Subscription Charges. Upon downgrade, the downgrade will go into effect at the start of the next billing cycle. Applicable Taxes: Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying the Taxes that would be levied against you by government authorities. We will invoice you for such Taxes if we believe we have a legal obligation to do so and you agree to pay such Taxes if so invoiced. User Benefits: Apart from the credits provided to you when you downgrade, we may, at our sole discretion, offer you certain benefits such as discounts on Subscription Charges, extension in Subscription Term for no extra payments from you, with regard to the Service(s). These benefits are specific to your Account and the Service(s) identified while offering these benefits. They are not transferrable. The benefits may have an expiration date. If they do not have an expiration date, they will expire upon completion of twelve (12) months from their date of offer.
4.4 Restrictions and Limitations. Customer may not: (i) license, sublicense, sell, resell, rent, transfer, assign, frame, mirror, distribute, or otherwise commercially exploit or make the Site, the Service, the Software, or any portion thereof available to any third party, except as expressly permitted herein and subject to the terms set forth under these Terms; (b) reverse engineer, disassemble, or decompile the Software, or otherwise attempt to discover the source code for, or any trade secrets related to, any part of the Services or the Software; (c) remove any copyright, trademark, or other proprietary notices from the Site, the Services, the Software, or any component thereof; (d) modify, alter, or create any derivative works of the Site, the Services, the Software, or any component thereof; (e) reproduce any part of the Site, the Services, the Software, or copy any ideas, features, functions, or content thereof, except as expressly permitted under these Terms; or (f) use the Site, the Services, the Software, or any component thereof, for any purposes other than as expressly permitted herein. All rights not expressly granted under these Terms are reserved by the Company.
4.5 Technical Considerations. Customer understands, acknowledges, and agrees that the operation of the Software including Customer Content (as defined below) may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices; and (c) transmission to the Company’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology necessary for the Company to perform its Services and for Customer to use the Software. Accordingly, Customer further understands, acknowledges, and agrees that Customer bears the sole responsibility for adequate security, protection and backup of the Customer Content. The Company will have no liability to Customer for any unauthorized access or use of any of Customer Content or any corruption, deletion, destruction, or loss thereof.
4.6 Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Software, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, and telephone services (collectively, “Equipment”). Customer shall be responsible for ensuring that such Equipment is compatible with the Services and Software and complies with all configurations and specifications for maintaining the security of the Equipment, and the Customer’s account and its use.
4.7 Suspension of Services. Company may suspend Customer’s right to access or use any or all of the Site, Services, or the Software immediately upon notice to Customer if Company believes in good faith that: (a) Customer’s use of the Site, Services, or the Software (i) poses a security risk to the Company or the Site, its Users, or any third party; (ii) may adversely impact the Site, Services, or the Software; (iii) may subject Company, any of its Users, or any third parties, to liability; or (b) Customer in material breach of these Terms, including, without limitation, Sections 5, 6, and 10, below, (iv) We reserve the right to suspend or terminate your account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to anyone and to take sole responsibility for any activities or actions under your account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your account. Cancelling your account does not relieve you of the obligation to pay any and all remaining amounts owing for your existing Software subscriptions should any outstanding balance remain.
4.8 Cancellation of Services. You may cancel your subscription at any time. Upon cancellation, your plan will be terminated at the end of the current billing cycle. No refunds will be given for cancelled subscriptions. We shall not be liable to you or any other third party for suspension or termination of your Account, or access to and use the Service(s), if such suspension or termination is in accordance with these Terms.
4.9 Free trial Customers: If you are on a free trial for any of our Service(s), your Account may be suspended or terminated in the following manner:
We may suspend your access to and use of Your Account or the Service(s) if you are in violation of the Terms. We will notify you of your activities that violate these Terms and, at our sole discretion, provide you with a period of fifteen (15) calendar days (“Cure Period”) to cure or cease such activities. If you do not cure or cease such activities within said Cure Period or if we believe that your breach of these Terms cannot be cured, your Account shall be terminated, and all associated Service Data shall be deleted immediately and permanently. You may terminate your Account at any time on or before the expiration of your free trial. In such cases, all associated service data relating to your Account (“Service Data”) shall be deleted immediately and permanently. If you do not terminate your Account or renew your Account on or before the expiration of your free trial, we may suspend your Account. We shall retain any associated Service Data for a period of up to 12 months beyond which Your Account shall be terminated and all associated Service shall be deleted immediately and permanently.
4.10 Effect of Terminating Your Account:
Data Export: We strongly recommend that you export all Service Data before you terminate your Account. In any event, following the termination of your Account either by you or us, unless otherwise specified elsewhere herein, Service Data will be retained or deleted in accordance with Sections 4.7 and 4.9, as applicable to you. Where the Service Data is retained as described herein, you may contact us within such data retention period to export your Service Data. Service Data cannot be recovered once it is deleted. Further, when Service Data is migrated from one data center to another upon your request, We shall delete Service Data from the original data center after fourteen (14) calendar days from such migration.
Charges: If your Account is terminated in accordance with Section 4.7 of these Terms, in addition to other amounts you may owe us, you must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term, unless waived by us in writing. This amount will not be payable by you, or you may be eligible for a pro-rated refund of the Subscription Charges, as the case may be, where you terminate your subscription to the Service(s) or terminate your Account as a result of a material breach of these Terms by us, provided that you provide notice of such breach to us and afford us not less than thirty (30) calendar days to reasonably cure such breach.
5. OWNERSHIP AND PROPRIETARY RIGHTS.
5.1 Company’s Ownership Rights. The Site, the Software, and all content and materials contained or made available therein other than Customer Content (as defined below) are owned by the Company or its licensors and are protected by copyright and other intellectual property laws. No title or ownership of other parts of the Site, the Services, or the Software, or any proprietary rights associated therewith, is transferred to Customer by these Terms.
5.2 Customer’s Ownership Rights. Customer owns all: (a) Customer Confidential Information, content, data, code, information, documents, and other items provided by Customer when it subscribes to the Services, and (b) voice content created by users of the Ten5 application (collectively, “Customer Content”). The Company claims no ownership rights in Customer Content. Customer hereby grants to the Company a nonexclusive, non-transferable, royalty-free, sublicensable, worldwide license to access, reproduce, distribute, publish, display, perform, adapt, modify and otherwise use the Customer Content to provide the Services under these Terms.
5.3 Use Data. Customer acknowledges and agrees that the Company may derive or create data and information about the use of the Service by Customer and its users ("Use Data") and the Company may use and disclose Use Data to its third party service providers in order to improve the Site, Software, and Services.
5.4 Anonymous Data. Customer acknowledges and agrees that the Company may obtain and aggregate technical and other data about Customer's use of the Site, Software, and Services, excluding any personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and the Company may use the Aggregated Anonymous Data to analyze, improve, support and operate the Site, Software, and Services and otherwise for any business purpose, during and after the term of this Agreement, including, without limitation, to generate industry benchmarks or best practices guidance, recommendations or similar reports for distribution to and consumption by Company customers and prospects. For clarity, this Section 5.4 does not give the Company the right to identify Customer as the source of any Aggregated Anonymous Data.
6. PROHIBITED CONTENT.
Customer shall not create, upload, transmit, publish or otherwise use, on or in connection with the Site, or the Software, any Customer Content that: (a) infringes upon or violates the rights of any third party, including, any copyright, trademark, trade secret, or other intellectual property rights, rights of publicity, rights of privacy, or contract rights; (b) is illegal, defamatory, obscene, pornographic, vulgar, indecent, lewd, offensive, threatening, abusive, harmful, inflammatory, deceptive, false, misleading, or fraudulent; (c) promotes hatred, discrimination, bigotry, racism, harassment, violence or harm against any individual or group; (d) violates or encourages any conduct that would violate any applicable laws, rules, or regulations or give rise to any civil liability; (e) contains any viruses, corrupted data or other harmful, disruptive, or destructive files; (f) restricts, interferes with or inhibits any other person from using or enjoying the Site or the Services; or (h) that would otherwise expose the Company or any third party to liability, special regulations, or harm of any kind.
In the event you create any content that is described above, the Company reserves the right, in its sole discretion, to refuse to continue provide its Services to you, suspend or terminate your account, and cancel any pending subscription orders.
7. PROHIBITED CONDUCT.
Customer is solely responsive for Customer’s and its end users’ conduct and agrees not to do any of the following in connection with the Site, the Services, and the Software: (a) use the Site, the Services, and the Software in any manner that could damage, disable, disrupt, overburden or impair their functioning; (b) impersonate any person or entity or otherwise misrepresent Customer’s affiliation with any person or entity; (c) harvest or otherwise collect or disclose information about other users without their consent; (d) use the Site, the Services, or the Software for any illegal use or purpose or engage in, encourage, or promote any illegal activity, or any activity that violates these Terms; (e) circumvent or attempt to circumvent any security measure that the Company may from time to time adopt or implement to protect itself, its users and third parties; and (f) use any data mining, robots, or similar data gathering or extraction methods.
Customer acknowledges and agrees that the Company is not liable in any manner for the conduct of other users of the Company.
In the event that you engage in any of the prohibited conduct described above, the Company reserves the right, in its sole discretion, to refuse to continue to provide its Services, suspend or terminate Your account, and or cancel any pending subscription orders.
9. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS.
The Site may contain links to third party resources and businesses on the Internet (generally, the "Linked Sites"), including without limitation, the platforms on which the application and Software may be used. Those links are provided for your convenience to help you identify and locate other Internet resources that may be of interest to you. We do not sponsor and are not legally associated with any third party "Linked Sites." We are not legally authorized to use any trade name, registered trademark, logo, official seal or copyrighted material that may appear in the link. We do not control, endorse or monitor the contents of any Linked Site. That includes, without limitation, any further link contained in a Linked Site, and any changes or updates to a Linked Site. We are not responsible for webcasting or for any other form of transmission received from any Linked Site.
The Company will not be responsible for any act or omission of any of the third parties whose sites are linked on the Site, including the third party's access to or use of your customer data. Likewise, the Company does not warrant or support any service provided by any third party including, without limitation, the Linked Sites.
10. CUSTOMER REPRESENTATIONS AND WARRANTIES.
Customer represents and warrants that: (a) the person who subscribes to the Services on behalf of the Customer is 18 years or older and has full right, power and authority to bind the Customer under these Terms; (b) the Customer Content is original to Customer or its client and does not and will not infringe upon or violate the intellectual property or other rights of any third party; (c) if the Customer is an entity, this Agreement and any Order Form completed by Customer is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement; (d) Customer or its client on whose behalf Customer is using the Site and the Services is not located in a country embargoed by the United States and is not on the U.S. Treasury Department's list of Specially Designated Nationals; (e) Customer will comply with all applicable laws, rules or regulations in connection with its use of the Site and the Services (including, but not limited to, applicable Federal Trade Commission rules and COPPA).
11. DISCLAIMER OF WARRANTIES.
The site and any downloadable software, content, services, or applications made available in conjunction with or through the site are provided “as is” and “as available” without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, the Company, on behalf of itself and its suppliers and partners, disclaims and excludes all warranties, whether statutory, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. Without limiting the foregoing, the Company does not warrant or make any representations (i) that the Site and any software, content, Services, or applications made available in conjunction with or through the Site will be uninterrupted or error-free, that defects will be corrected, or that the Site and any software, content, Services, or applications made available in conjunction with or through the Site or the server that makes them available are free of viruses or other harmful components, or (ii) regarding the use of the Site and any software, content, Services, or applications made available in conjunction with or through the Site in terms of correctness, accuracy, reliability, or otherwise. Any material or data that you obtain through the Site is at Your own risk. You are solely responsible for any damages to your computer system or loss of data resulting from the download of such material or data.
Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to You, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you might have additional rights.
You shall defend, indemnify, and hold harmless the Company from and against any claims, actions, or demands, and any government or regulatory inquiries or actions (“Claims”), including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of these Terms or misuse of the Services, including without limitation, any Claims arising from Your lack of authority to use the Services as a developer on behalf of Your purported client or end user of the Services. The Company shall provide notice to you of any such Claim. The Company reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section. In such case, you agree to cooperate with any reasonable requests to assist the Company’s defense of any such Claim.
13. LIMITATION OF LIABILITY AND DAMAGES.
UNDER NO CIRCUMSTANCES WILL THE COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE.
THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE COMPANY’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES SHALL IN NO EVENT EXCEED THE GREATER OF $500, OR THE AMOUNT PAID BY YOU TO THE COMPANY FOR THE 12 MONTHS PRECEDING THE SERVICES IN QUESTION.
14. COPYRIGHT POLICY.
We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If you believe that any material on our website infringes upon any copyright which you own or control, you may file a DMCA Notice of Alleged Infringement with The Company’s Designated Copyright Agent:
Attn: Legal Department
628 9th Street
West Des Moines, IA 50265
15.1 Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of Iowa, without regard to conflict of law provisions. You agree that any claim or dispute you may have against the Company must be resolved by a court located in Polk County, except as otherwise agreed by the parties or as described in the Arbitration Agreement paragraph above. You agree to submit to the personal jurisdiction of the courts located within Polk County for the purpose of litigating all such claims or disputes.
15.2 Assignment. The Company may assign its rights and obligations under these Terms. The Terms will inure to the benefit of the Company’s successors, assigns and licensees.
15.3 Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
15.4 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
15.5 Entire Agreement. These Terms and any applicable Additional Terms, as each may be amended as set forth herein, are the entire agreement between you and The Company relating to the subject matter herein.
15.6 Claims; Statute of Limitations. YOU AND THE COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
15.7 Waiver. No waiver of any of these Terms by the Company is binding unless authorized in writing by an executive officer of the Company. In the event that the Company waives a breach of any provision of these Terms, such waiver will not be construed as a continuing waiver of other breaches of the same nature or other provisions of these Terms and will in no manner affect the right of the Company to enforce the same at a later time.