THESE TERMS OF SERVICE, including any Order(s) and applicable Service Attachments, which are incorporated herein by this reference (“Agreement”), are a binding agreement between Effy Mobile, Inc., a Delaware corporation with its principal place of business at 123 Tech Drive, Suite 500, Austin, Texas 78701, USA (“Effy Mobile,” “we,” “us,” “our”), and the legal entity identified in the Order (“Customer,” “you,” “your”). Effy Mobile and Customer may be individually referred to as a “Party” or collectively as the “Parties.”
Effy Mobile provides services and equipment intended for business use, pursuant to the terms and conditions set forth in this Agreement and on the condition that Customer accepts and complies with this Agreement. By electronically signing this Agreement, Customer (a) accepts this agreement and agrees that Customer is legally bound by its terms; and (b) represents and warrants that: (i) its representative is 18 years of age or of legal age to enter into a binding agreement; and (ii) has the right, power, and authority to enter into this agreement on behalf of the corporation, governmental organization, or other legal entity, and to bind such organization to these terms. If Customer does not agree to the terms of this agreement, neither Customer nor its End Users may download, install, or use the services or equipment.
DEFINITIONS
Capitalized terms used in this Agreement but not otherwise defined have the following meaning:
- “Account” means the numbered account established with Effy Mobile and associated with Customer and the Services provided to Customer under this Agreement.
- “Account Administrator” means the person(s) who have been granted authority by Customer to set up, amend, or otherwise control settings and/or make additional purchases for the Account via the Administrative Portal.
- “Account Data” means any business contact information provided with the Account; Effy Mobile-generated logs of calling or other metadata developed or collected in the provision of the Services; configuration data; and records of Digital Lines and any Services purchased under this Agreement.
- “Administrative Portal” means the online administrative portal through which Account Administrators control settings and/or make additional purchases for the Account.
- “Affiliate(s)” means a person or entity that is controlled by a Party hereto, controls a Party hereto, or is under common control with a Party hereto, and “control” means beneficial ownership of greater than fifty percent (50%) of an entity’s then-outstanding voting securities or ownership interests.
- “Confidential Information” means any information disclosed by or on behalf of the Disclosing Party to the Receiving Party that should reasonably be considered as confidential given the nature of the information and the circumstances surrounding its disclosure.
- “Customer Content” means the content of calls, SMS messages, WhatsApp messages, voicemails, voice recordings, files, conference messages, or other communications transmitted or stored through the Services.
- “Digital Line” means a phone number assigned to an End User or a specifically designated location and the associated voice service for inbound and outbound calling.
- “Disclosing Party” means the Party disclosing Confidential Information or on whose behalf Confidential Information is disclosed.
- “Effective Date” means the date of execution of the initial Order.
- “End User” means an individual user to whom Customer makes the Services available, and may include but is not limited to Customer’s employees, consultants, clients, and contractors.
- “Force Majeure Event” means any event or circumstance beyond a Party’s reasonable control, including: any act of God; national emergency; third-party telecommunications networks; riot; war; terrorism; governmental act or direction; change in Laws; fiber, cable, or wire cut; sub-processor failure; power outage or reduction; earthquake; storm; hurricane; flood; fire; or other natural disaster.
- “Initial Term” has the meaning set forth in Section 2(D) (Services Term and Automatic Renewal).
- “Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered) arising out of or associated with: (a) patents and patent applications; (b) copyrights; (c) trade secrets; (d) trademarks, trade names, and service marks; (e) rights of publicity and privacy; and (f) divisions, continuations, and renewals of the foregoing.
- “Law” means any law, statute, regulation, rule, ordinance, or court order of any governing Federal, State, local, or non-U.S. governmental body with jurisdiction over the Services.
- “Order(s)” or “Order Form(s)” means a request or order for Services describing the type and quantity of Services required by Customer and submitted and accepted by the Parties in accordance with Section 2(A) (Ordering Services).
- “Receiving Party” means the Party receiving Confidential Information.
- “Renewal Term” has the meaning set forth in Section 2(D) (Services Term and Automatic Renewal).
- “Service(s)” means all services provided under this Agreement and set forth in one or more Order(s), including voice calling, SMS/MMS messaging, WhatsApp Business API services, AI-powered automation, eSIM management, IVR services, contact and CRM services, and porting services.
- “Start Date” means the date identified in the relevant Order or the date on which Customer orders Services via the Administrative Portal.
- “Taxes” means any and all federal, state, local, municipal, foreign, and other taxes and fees charged or collected from Customers.
- “Term” means the Initial Term plus any Renewal Terms.
- “Use Policy” refers to any of the policies identified in Section 5(B) (Use Policies)
ORDERING AND TERM
Ordering Services
Customer may order Services by submitting electronically an Order in the format provided by Effy Mobile on the Effy Mobile website or, for subsequent orders, via the Administrative Portal. The Order will identify the Services requested by Customer together with: (i) the price for each Service; (ii) scheduled Start Date; and (iii) products leased, licensed, or sold to Customer, if any.
An Order will become binding when it is executed by the Customer and accepted by Effy Mobile. Effy Mobile may accept an Order by commencing performance of the requested Services. The Services will begin on the Start Date, as identified in the applicable Order. Customer may purchase additional Services, software, and equipment through Orders via the Administrative Portal.
Services
The following are the Services provided by Effy Mobile (not all Services are available in all locations):
- Voice Calling Services — SIP and WebRTC-based voice calling with call recording, transcription, and AI-generated notes.
- SMS/MMS Messaging Services — Two-way business texting with conversation threading, read receipts, and delivery status.
- WhatsApp Business API Services — Native integration for WhatsApp messaging, including standard and template-based conversations.
- AI-Powered Automation Services — Intelligent auto-reply for calls, SMS, and WhatsApp, powered by a business-specific knowledge base.
- eSIM Management Services — Provisioning of global eSIMs with local phone numbers.
- IVR Services — Interactive Voice Response with drag-and-drop visual builder.
- Contact & CRM Services — Built-in CRM for managing contacts, segments, notes, and activity timelines.
- Porting & 10DLC Services — Number porting and compliance management for A2P 10DLC messaging.
Service Attachments containing additional terms for specific Services are available on the Effy Mobile website and are incorporated herein by this reference.
Equipment
Subject to availability, Customer may purchase or rent equipment from Effy Mobile for use with the Services. The terms and conditions that govern any such transaction can be found on the Effy Mobile website.
Services Term and Automatic Renewal
The Services’ term will begin on the Start Date of the initial Order and continue for the initial term set forth in the initial Order (“Initial Term”). Upon expiration of the Initial Term, recurring Services will automatically renew for successive periods of the same length as the Initial Term (each a “Renewal Term”) unless either Party gives notice of non-renewal at least thirty (30) days before the expiration of the Initial Term or the then-current Renewal Term. The term of any recurring Services added to the Account after the initial Order is submitted will run coterminously with the then-current term of any pre-existing Services.
Term of this Agreement
The Term of this Agreement will commence on the Effective Date and continue until the last Order Form is terminated or expires, unless terminated earlier in accordance with its terms.
INVOICING AND PAYMENT
Prices and Charges
All prices are identified in US dollars on the website or Administrative Portal. Additional charges may result if Customer activates additional features, exceeds usage thresholds, or purchases additional Services or equipment. Customer will be liable for all charges resulting from use of the Services on its Account.
Recurring charges for the Services begin on the Start Date, and will continue for the Term. Recurring charges will, once incurred, remain in effect for the Initial Term or the then-current Renewal Term. Effy Mobile will provide notice of any proposed increase in such charges no later than thirty (30) days before the end of the Initial Term or then-current Renewal Term, and any such increase will be effective on the first day of the next Renewal Term.
Outbound calling rates will be applied based on the rate in effect at the time of use. Customer may locate the currently effective rates in the Administrative Portal.
Billing and Payment
All Services and equipment must be purchased via valid credit or debit card at the time of purchase, unless alternative payment terms have been agreed in writing. By providing a valid credit or debit card, Customer is expressly authorizing all Services and equipment charges and fees to be charged to such payment card, including recurring payments billed on a monthly or annual basis. In addition, Customer’s supplied credit card shall be used for any in-month purchases of additional services and products, or where Customer has exceeded usage or threshold limits, or any overage charges.
Recurring charges are billed in advance in the frequency set forth in the Order Form, and usage-based and one-time charges are billed monthly in arrears. Credit and debit card payments are subject to the approval of the card issuer, and Effy Mobile will not be liable in any way if a card issuer refuses to accept a credit or debit card for any reason.
If the payment card associated with Customer’s Account is declined or fails for any reason, Effy Mobile will send Customer a notice using the contact information associated with Customer’s Account. Effy Mobile may continue to attempt charging Customer’s payment card for outstanding charges and additional fees along with any other rights and remedies available to Effy Mobile under this Agreement, at law, or in equity.
Unless otherwise stated at the time of purchase or on the invoice, payment is due in full, without deduction or set-off, within thirty (30) days of the date on the invoice. Any payment not made when due will 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. Effy Mobile 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.
Taxes
All rates, fees, and charges are exclusive of applicable Taxes, for which Customer is solely responsible. Taxes may vary based on jurisdiction and the Services provided. Taxes, access fees, universal service or other recovery fees, or similar charges will be adjusted on the date in which those increases become effective as mandated by competent authority.
Billing Disputes
If Customer reasonably and in good faith disputes any portion of Effy Mobile’s charges, it must provide written notice to Effy Mobile within thirty (30) days of the invoice date, identifying the reason for the dispute and the amount being disputed. Customer’s dispute as to any portion of the invoice will not excuse Customer’s obligation to timely pay the undisputed portion of the invoice. Upon resolution, Customer must pay any unpaid amounts within thirty (30) days. Any amounts that are found to be in error resulting in an overpayment by Customer will be applied as a billing credit against future charges.
PROVISION OF THE SERVICE
General Terms
Effy Mobile will provide the Services as described in the relevant Service Attachments. Effy Mobile may enhance, replace, and/or change the features of the Services, but it will not materially reduce the core features, functions, or security of the Services during the Term without Customer’s consent.
Customer Care
- a) Customer must provide all first-tier support to Customer’s End Users.
- b) Effy Mobile will make second-tier remote support available to Customer’s Account Administrators via the Effy Mobile Support Center, which will be available 24/7, to attempt to resolve technical issues with, and answer questions regarding the use of the Services.
- c) Customer may open a case with Effy Mobile Support at https://support.effymobile.com. Any individual contacting support on behalf of Customer must be authorized to do so.
Subcontracting
Effy Mobile may provide any of the Services hereunder through any of its Affiliates or subcontractors, provided that Effy Mobile will bear the same degree of responsibility for acts and omissions for those subcontractors acting on Effy Mobile’s behalf as it would bear if such acts and omissions were performed by Effy Mobile directly.
USE OF THE SERVICE
Service Requirements
The Services are dependent upon Customer’s maintenance of sufficient Internet access, networks, and power. Effy Mobile will not be responsible for any deficiencies in the provision of the Services if Customer’s network does not meet Effy Mobile’s technical requirements.
Use Policies
Customer and its End Users may use the Services only in compliance with this Agreement, applicable Law, and the Use Policies referenced below, which are incorporated into and form part of this Agreement. Customer may not use, or permit the use of the Services to interfere with the use of Effy Mobile’s Services by others, or with the operation of the Effy Mobile Network. Customer may not resell the Services. Customer must ensure that its End Users comply with the Use Policies. Any breach of this Section 5(B) (Use Policies) will be deemed a material breach of this Agreement.
Effy Mobile may update the Use Policies from time to time and will provide notice to Customer at the email address on file with the Account. Such updates will become effective thirty (30) days after such notice to Customer.
Acceptable Use Policy.
The Services must be used in accordance with Effy Mobile’s Acceptable Use Policy, available on the Effy Mobile website. Without limiting the foregoing, Customer shall not use the Services to:
- Transmit unsolicited commercial communications (spam)
- Engage in fraudulent, abusive, or illegal activities
- Transmit malware, viruses, or other harmful code
- Interfere with the operation of the Services or networks
- Reverse engineer or attempt to derive source code from the Services
Notwithstanding anything to the contrary in this Agreement, Effy Mobile may act immediately and without notice to suspend or limit the Services if Effy Mobile reasonably suspects fraudulent or illegal activity in the Customer’s Account, material breach of the Acceptable Use Policy, or use of the Services that could interfere with the functioning of the Effy Mobile Network. Effy Mobile will promptly remove the suspension or limitation as soon as the condition, activity, or use is resolved and mitigated in full.
- Emergency Services.Effy Mobile’s policy governing the provision of emergency services accessed via the Services is available on the Effy Mobile website. Customer acknowledges and agrees that the Services may not support emergency calls in the same manner as traditional telephone services, and Customer shall inform its End Users of this limitation.
iii. Numbering Policy. The provision, use, and publication of numbers used in conjunction with the Services are governed by Effy Mobile’s Numbering Policy, available on the Effy Mobile website.
TERMINATION
Termination for Cause
Either Party may terminate this Agreement and any Services purchased hereunder in whole or part by giving written notice to the other Party if the other Party: (i) breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of such notice; (ii) at the written recommendation of a government or regulatory agency following a change in either applicable Law or the Services; or (iii) upon the commencement by or against the other Party of insolvency, receivership, or bankruptcy proceedings.
Termination for Convenience
Customer may terminate this Agreement or any Services for convenience only by paying to Effy Mobile, within thirty (30) days of such termination, all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services for the remainder of the then-current Term plus related Taxes and fees.
- Effect of Termination
- a) If Customer terminates the Services due to Effy Mobile’s material breach under Section 6(A) (Termination for Cause), Effy Mobile will provide Customer a pro-rata refund of any prepaid and unused fees or charges paid by Customer for terminated Services.
- b) If this Agreement or any Services are terminated for any reason other than as a result of a material breach by Effy Mobile, the Customer must pay within thirty (30) days of such termination all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services for the remainder of the then-current Term plus related Taxes and fees.
- INTELLECTUAL PROPERTY
- Limited License
Subject to, and conditional upon Customer’s compliance with, the terms of this Agreement, Effy Mobile grants to Customer and its End Users a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable license to use any software provided or made available by Effy Mobile to Customer as part of the Services (“Software”) to the extent reasonably required to use the Services as permitted by this Agreement, only for the duration that Customer is entitled to use the Services and subject to Customer being current on its payment obligations.
Customer will not, and will not allow its End Users to:
- a) Sublicense, resell, distribute, or assign its rights under the license granted under this Agreement to any other person or entity;
- b) Modify, adapt, or create derivative works of the Software or any associated documentation;
- c) Reverse engineer, decompile, decrypt, disassemble, or otherwise attempt to derive the source code for the Software;
- d) Use the Software for infringement analysis, benchmarking, or for any purpose other than as necessary to use the Services Customer is authorized to use;
- e) Create any competing Software or Services; or
- f) Remove any copyright or other proprietary or confidential notices on any Software or Services.
- IP Rights
- Effy Mobile’s Rights.Except as expressly provided in this Agreement, the limited license granted to Customer under Section 7(A) (Limited License) does not convey any ownership or other rights or licenses, express or implied, in the Services, any related materials, or in any Intellectual Property. All rights not expressly granted herein are reserved and retained by Effy Mobile and its licensors. The Software and Services may comprise or incorporate services, software, technology, or products developed or provided by third parties.
- Customer Rights.As between Effy Mobile and Customer, Customer retains title to all IP Rights that are owned by Customer or its suppliers. To the extent reasonably required or desirable for the provision of the Services, Customer grants to Effy Mobile a limited, personal, non-exclusive, royalty-free license to use Customer’s IP Rights in the same.
- Use of Marks
Neither Party may use or display the other Party’s trademarks, service marks, or logos in any manner without such Party’s prior written consent.
CONFIDENTIALITY
Restrictions on Use or Disclosure by Either Party
During the Term of this Agreement and for at least one (1) year thereafter, the Receiving Party shall hold the Disclosing Party’s Confidential Information in confidence, shall use such Confidential Information only for the purpose of fulfilling its obligations under this Agreement, and shall use at least as great a standard of care in protecting the Confidential Information as it uses to protect its own Confidential Information.
Each Party may disclose Confidential Information only to those of its employees, agents, or subcontractors who have a need to know it in order to perform or exercise such Party’s rights or obligations under this Agreement and who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. Each Party may disclose the other Party’s Confidential Information in any legal proceeding or to a governmental entity as required by Law.
These restrictions do not apply to any information which is independently developed by the Receiving Party or lawfully received free of restriction from another source having the right to so furnish such information; after it has become generally available to the public without breach of this Agreement by the Receiving Party; or which at the time of disclosure was already known to the Receiving Party, without restriction.
Upon termination of this Agreement, the Receiving Party will promptly delete, destroy, or, at the Disclosing Party’s request, return to the Disclosing Party, all Disclosing Party’s Confidential Information in its possession, and upon request will provide the Disclosing Party with certification of compliance with this subsection.
DATA PROTECTION
Data Privacy
Effy Mobile respects Customer’s privacy and will only use the information provided by Customer to Effy Mobile or collected in the provision of the Services in accordance with the Effy Mobile Privacy Notice and Data Processing Addendum, which are hereby incorporated by reference. Effy Mobile may update these documents from time to time and will provide notice of any material updates to Customer as required by applicable Laws. Such updates will be effective thirty (30) days after such notice to Customer.
Data Security
Effy Mobile will take commercially reasonable precautions, including, without limitation, technical (e.g., firewalls and data encryption), administrative, and physical measures, to help safeguard Customer’s Account, Account Data, and Customer Content against unauthorized use, disclosure, or modification.
Customer must protect all End Points using industry-standard security measures. Customer is solely responsible to keep all user identifications and passwords secure. Customer must monitor use of the Services for possible unlawful or fraudulent use. Customer must notify Effy Mobile immediately if Customer becomes aware or has reason to believe that the Services are being used fraudulently or without authorization by any End User or third party. Failure to notify Effy Mobile may result in the suspension or termination of the Services and additional charges to Customer resulting from such use. Effy Mobile will not be liable for any charges resulting from unauthorized use of Customer’s Account.
Software Changes
Effy Mobile may from time to time push software updates and patches directly to Customer’s device(s) for installation, and Customer will not prevent Effy Mobile from doing so. Customer must implement promptly all fixes, updates, upgrades, and replacements of software and third-party software that may be provided by Effy Mobile. Effy Mobile will not be liable for inoperability of the Services or any other Services failures due to failure of Customer to timely implement the required changes.
LIMITATION OF LIABILITY
Excluded Damages
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR (1) INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, REPUTATIONAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND; (2) COSTS OF PROCUREMENT, COVER, OR SUBSTITUTE GOODS OR SERVICES; (3) LOSS OF USE, LOSS OR CORRUPTION OF DATA; OR (4) LOSS OF BUSINESS OPPORTUNITIES, PROFITS, GOODWILL, OR SAVINGS, WHETHER IN ANY OF THE FOREGOING, ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NEITHER PARTY WILL BE LIABLE FOR ACTIONS REASONABLY TAKEN TO COMPLY WITH LAW.
Direct Damages
EXCEPT AS SET FORTH HEREIN, THE TOTAL CUMULATIVE LIABILITY OF THE PARTIES UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE PREVIOUS SIX (6) MONTHS. LIMITATIONS UNDER THIS SECTION 10(B) (DIRECT DAMAGES) WILL NOT APPLY TO: I) CUSTOMER PAYMENT OBLIGATIONS; II) EITHER PARTY’S LIABILITY FOR INFRINGEMENT OF THE OTHER PARTY’S IP RIGHTS; III) EITHER PARTY’S LIABILITY RESULTING FROM GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR CRIMINAL MISCONDUCT; OR IV) CUSTOMER’S LIABILITY RESULTING FROM USE OF THE SERVICES IN BREACH OF THE ACCEPTABLE USE POLICY OR EMERGENCY SERVICES POLICY.
NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED, OR EXCLUDED PURSUANT TO APPLICABLE LAW.
Survival
The limitations of liability contained in this Section 10 (Limitation of Liability) will survive termination or expiration of this Agreement and apply in any and all circumstances (except as expressly set forth above), including without limitation in the event of any failure of the essential purpose of any limited warranty or available remedy provided herein.
INDEMNIFICATION
Indemnification Obligations
Customer agrees to indemnify and defend Effy Mobile and its Affiliates at Customer’s expense, from and against any and all third-party claims, arising out of or in connection with: (i) material violation of applicable Law by Customer or its End Users in connection with the use of the Services; (ii) use of the Services in a manner not authorized by this Agreement; (iii) failure to promptly install any updates of any software or firmware or accept or use modified or replacement items provided by or on behalf of Effy Mobile; or (iv) claims relating to Customer Content. Further, Customer will indemnify and hold harmless Effy Mobile against all damages, costs, and legal fees finally awarded against Effy Mobile by a court of competent jurisdiction in connection with such third-party claim or agreed to in a written settlement agreement approved in writing by Customer.
Defense and Indemnification Procedures
Any Party seeking defense or indemnification (the “Indemnified Party”) must provide the Party from which it seeks such indemnification or defense (the “Indemnifying Party”) with the following: (a) prompt written notice of the third-party claim, (b) sole control over the defense and settlement of the third-party claim, and (c) reasonable information, cooperation, and assistance in connection with the defense and settlement of the third-party claim. The Indemnified Party’s failure to comply with the foregoing obligations will not relieve the Indemnifying Party of its defense or indemnification obligations under this Section (Indemnification), except to the extent that the Indemnifying Party is prejudiced by such failure.
WARRANTIES
Effy Mobile Warranty
Effy Mobile will provide the Services using a commercially reasonable level of skill and care, in material compliance with all applicable Laws and otherwise subject to the terms of this Agreement. To the extent permitted by Law, Effy Mobile shall pass through to Customer any and all warranties Effy Mobile receives in connection with equipment provided to Customer.
Customer Warranty
Customer’s and its End Users’ use of the Services must at all times comply with all applicable Laws and this Agreement.
Disclaimer of Warranties
EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND EFFY MOBILE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE. TO THE EXTENT THAT EFFY MOBILE CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
DISPUTE RESOLUTION
Good Faith Attempt to Settle Disputes
In the event of any dispute or claim arising out of or relating to the Agreement (a “Dispute”), each Party will appoint a duly authorized representative which will confer with the other Party before either Party brings legal action, to make a reasonable and good faith effort to settle or otherwise resolve such Dispute.
Venue
In the event that the Parties are unable to resolve a Dispute, any related action, lawsuit, or proceeding must be brought in and adjudicated exclusively by state or federal courts located in the city and county of Austin, Texas, United States of America. Each Party hereby consents to and agrees to submit to the exclusive venue and personal jurisdiction of such courts with respect to any such actions or lawsuits and irrevocably waives any right that it might have to assert that either forum is not convenient or that any such courts lack jurisdiction.
Equitable Relief
Any breach of either Party’s IP Rights will cause that Party irreparable harm for which monetary damages will be inadequate, and such Party may, in addition to other remedies available at Law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement.
Limitations
Except for actions for non-payment or liability arising from Section 11 (Indemnification), no claim, suit, action, or proceeding relating to this Agreement may be brought by either Party more than two (2) years after the cause of action has accrued. Any actions, lawsuits, or proceedings must be conducted solely on an individual basis, and the Parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action.
MISCELLANEOUS
Relationship of the Parties
Effy Mobile and Customer are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Effy Mobile and Customer.
Assignment
Neither Party may assign the Agreement or any portion thereof without the other Party’s prior written consent (which such consent may not be unreasonably withheld or delayed); however, either Party may assign the Agreement and all of that Party’s rights and obligations thereunder without consent (a) to an Affiliate; (b) to the Party’s successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets used in connection with the provision of Services under this Agreement; or (c) as part of the transfer or disposition of more than fifty percent (50%) of a Party’s voting control or assets. This Agreement will bind and inure to the benefit of the Parties, and their permitted assigns and successors.
Notices
All notices or other communications must be in English and are deemed to have been fully given when made in writing and delivered in person, upon delivered email, or five days after deposit with a reputable overnight courier service, and addressed as follows:
To Effy Mobile:
Effy Mobile, Inc.
Attn: Legal Department
123 Tech Drive, Suite 500
Austin, Texas 78701
USA
Email: legal@effymobile.com
To Customer: at either the physical address or email address associated with the Customer Account. Customer acknowledges and agrees that all electronic notices have the full force and effect of paper notices.
Force Majeure
Excluding either Party’s payment obligations under the Agreement, neither Party will be responsible or liable for any failure to perform or delay in performing to the extent resulting from a Force Majeure Event.
Third-Party Beneficiaries
Effy Mobile and Customer agree that there will be no third-party beneficiaries to this Agreement.
Internal Customer Activities
Effy Mobile does not have any obligation to assist in or otherwise mediate in the event of any dispute between Customer representatives or Customer and any third party with respect to ownership or control of any Account or Account Data. All information within Effy Mobile’s records regarding the ownership or control of an Account or Account Data, Services ordered, and numbers assigned to an Account will be definitive and controlling for purposes of administering the Account.
Headings, Interpretation
The headings, section titles, and captions used in the Agreement are for convenience of reference only and will have no legal effect. All defined terms include related grammatical forms. The Parties agree that this Agreement will be deemed to have been jointly and equally drafted by them.
Governing Law
The Agreement is governed by the Laws of the State of Texas, excluding its choice of Law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or Customer’s use of the products or Services.
Anti-Bribery
Each Party represents that in the execution of this Agreement and in the performance of its obligations under this Agreement it has complied and will comply with all applicable anti-bribery Laws and regulations, including, without limitation, the U.S. Foreign Corrupt Practices Act and similar applicable Laws.
Export Control
Any services, products, software, and technical information provided pursuant to the Agreement may be subject to U.S. export Laws and regulations. Customer will not use, distribute, transfer, or transmit the services, products, software, or technical information except in compliance with U.S. and other applicable export regulations.
Regulatory and Legal Changes
In the event of any change in Law, regulation, or industry change that would prohibit or otherwise materially interfere with Effy Mobile’s ability to provide Services under this Agreement, Effy Mobile may terminate the affected Services or this Agreement or otherwise modify the terms thereof.
Entire Agreement
The Agreement, together with any exhibits, Orders, and Service Attachments, each of which is expressly incorporated into this Agreement with this reference, constitutes the entire agreement between the Parties and supersedes and replaces any and all prior or contemporaneous understandings, proposals, representations, marketing materials, statements, or agreements, whether oral, written, or otherwise.
Order of Precedence
In the event of any conflict between the documents comprising this Agreement, precedence will be given to the documents in the following descending order: (i) the applicable Order Form; (ii) the applicable Service Attachments; (iii) the main body of this Agreement; (iv) Use Policies and Data Processing Addendum; and (v) any other document expressly referred to in this Agreement which governs the Services. However, with respect to data processing, the Data Processing Addendum shall take precedence over any inconsistent terms in any of the documents listed in the previous sentence.
Amendments
Except as otherwise provided, this Agreement may only be modified by a written amendment executed by authorized representatives of both Parties. In no event will handwritten changes to any terms or conditions be effective. Notwithstanding the foregoing, Effy Mobile may update this Agreement or any of its Use Policies from time to time and will provide notice to Customer at the email address on file with the Account. Such updates will become effective thirty (30) days after such notice to Customer. In the event that any such update would be of material detriment to Customer and is not required by Law, Customer must inform Effy Mobile of its objection within ten (10) days of receiving the notice. If the Parties, negotiating in good faith, cannot reach agreement within thirty (30) days, either Party may terminate the portion of the Services affected by the change without penalty by written notice to the other Party. Any use of the Services after the effective date will be deemed Customer’s acceptance of the change.
Severability and Waiver
In the event any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, such provision(s) will be stricken and the remainder of this Agreement will remain legal, valid, and binding. The failure by either Party to exercise or enforce any right conferred by this Agreement will not be deemed to be a waiver of any such right.
Publicity
Customer may promote their use of Effy Mobile services and agrees that Effy Mobile may identify Customer as a user of the Services. All press releases or quotes regarding Customer’s use of Service will be pre-approved by Customer, which consent will not be unreasonably withheld.
Execution
Each Party represents and warrants that: (a) it possesses the legal right and capacity to enter into the Agreement and to perform all of its obligations thereunder; (b) the individual executing an Electronic Signature regarding the Agreement on that Party’s behalf has full power and authority to execute and deliver the same; and (c) the Agreement will be a binding obligation of that Party.
Electronic Signature and Counterparts
This Agreement may be executed electronically and in separate counterparts, each of which when taken together will constitute one in the same original. Each Party agrees that an Electronic Signature, whether digital or encrypted, is intended to authenticate this Agreement and to have the same force and effect as manual signatures.
Survival
The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement will survive expiration or termination, including without limitation payment obligations, warranty disclaimers, indemnities, limitations of liability, definitions, and miscellaneous provisions.
This document is confidential and proprietary to Effy Mobile. Unauthorized distribution or reproduction is prohibited.