I understand that the One Call Now messaging service is to be used for the intended purpose of communicating informational messages to our members or contacts and will not be used for solicitation and/or telemarketing. We have and do obtain permission from every member, family or contact to use the landline or cell phone number used to communicate these messages. Use to contact cellular numbers without prior permission, or for telemarketing or solicitation purposes will, at One Call Now’s sole discretion, result in termination of account and no fees will be refunded. Additionally, client using the service in such manner shall be liable for Federal FCC and FTC damages, fines and legal costs, plus and any applicable state penalties, fines and legal costs and to indemnify One Call Now for its damages and reasonable attorney’s fees for any claim against One Call Now by any third party that its use of the service violated the Telephone Consumer Protection Act (“TCPA”), the Telemarketing Sales Rule (“TSR”), or any other applicable law.
Further, I understand that this service shall not be used to transmit messages that contain profane language and/or other material deemed to be offensive to the recipients or One Call Now and agree that any use of the One Call Now Messaging Service will conform to the Service Agreement as outlined below.
Definition of Unlimited Calls
Certain plans are classified as “unlimited,” which means you can send an unlimited number of time-sensitive messages to a relatively static list of members or recipients, provided, however, that messages conform with all FTC and FCC regulations, and are not considered as “spamming” by your recipients. The following results may result in a plan adjusent or account cancellation by One Call Now: Frequently changing recipient lists; frequently sending messages that have a high percentage of disconnected numbers; frequent hang-ups by recipients shortly after the call begins; receiving a high percentage of opt-out requests from your recipients. Organizations (excluding schools and emergency groups) on unlimited plans who send 15 or more call deliveries per phone number in a 30 day period will be subject to conversion to a Pay Per Call plan.
Hot Transfer with Pay Per Call Plans
Hot transfer is the automated connection of a call to a message recipient to a specific phone number designated by the group leader, which is intended to be used for short confirmation and appointment calls. Transfer is not to be used for marketing solicitation where prospects or customers transfer to a specific designation for sales or marketing campaigns. Calls cannot be transferred outside the 48 contiguous US states nor to certain area codes and exchanges. A full list is available from One Call Now.
Unlimited Hot Transfer
Unlimited plans with Hot Transfer are intended for authorized emergency communications to and with a relatively static roster list. Hot Transfer is not to be used for marketing solicitation where prospects or customers transfer to a specific designation for sales or marketing campaigns. At any time, One Call Now may, at its discretion, terminate your service under this plan if you attempt or frequently upload new lists of recipients, consistently average transfer durations of 5 minutes or more, or receive a high percentage of complaints from recipients about your message content, high frequency, after hour calling, high percentage of busy signals, calls placed on hold, or transferred calls that are not answered. Hot Transferring to non toll free conference calling lines is prohibited. Calls cannot be transferred outside the 48 contiguous US states nor to certain area codes and exchanges. A full list is available from One Call Now.
Reference throughout this Service Agreement to “One Call Now”, “we”, “our” and “us” are treated identically.
1. YOUR ACCEPTANCE OF THIS SERVICE AGREEMENT AND LIMITED LICENSE
Please read the Service Agreement carefully before using or registering for the One Call Now service. By using or registering for the One Call Now Service, you agree to be bound by the terms and conditions set forth. If you do not wish to be bound by these terms and conditions, you may not access or use the One Call Now Service. You agree to verify that any list of members you send to us or input into our system contains only phone numbers and/or email addresses from individuals that have given you express permission to contact them. Such numbers or addresses are referred to as “opt-in” numbers and addresses, meaning they have opted to give you permission to contact them.
One Call Now grants you a limited, revocable, and nonexclusive license to use the One Call Now services to access the messaging services or to review information about our company and the messaging services. As a condition of your use of any of the services, you warrant to One Call Now that you will not use the One Call Now website or messaging services for any purpose that is unlawful or prohibited by the Service Agreement.
The foregoing limited license means that you may NOT: (i) modify, download, or publicly display the One Call Now website, or any portion thereof, or the Content (as defined below) except caching or as necessary to view content; (ii) make any use of the One Call Now website or the Content other than for permissible uses as described in this Service Agreement; (iii) create any derivative work based on either the One Call Now website or the Content; (iv) collect account information for the benefit of another party; (v) use any meta tags or any other ‘hidden text’ utilizing our name or the One Call Now Marks (as defined below) without the express written consent of One Call Now; (vi) use software robots, spiders, crawlers, or similar data gathering and extraction tools, or take any other action that may impose an unreasonable burden or load on our infrastructure; or (vii) co-brand, frame, or hyper-link to the One Call Now website, without the express written permission of One Call Now. For purposes of this Service Agreement, “co-branding” means to display a name, logo, trademark, or other means of attribution or identification of any party in such a manner as is reasonably likely to give a user the impression that such other party has the right to display, publish, or distribute the One Call Now or the Content. You agree to cooperate with One Call Now in causing any unauthorized co-branding, framing or hyper-linking immediately to cease.
2. MODIFICATION OF TERMS
We reserve the right to modify and restate the terms and conditions of the Service Agreement, and modification(s) shall be effective immediately upon being posted on the One Call Now website.
Unless explicitly stated otherwise, any new feature that augments or enhances the current One Call Now service, including the release of new One Call Now properties, shall be subject to the Service Agreement. You understand and agree that the One Call Now service is provided “AS IS” and that One Call Now assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalized information.
You are responsible for reviewing these terms and conditions regularly. Your continued use of the One Call Now Service shall be deemed to be your conclusive acceptance of all modifications to the Service Agreement.
4. REMOVE PHONE NUMBER
If members of your group do not wish to receive messages, they may visit our website and click ‘Remove My Number’ on the home page of the web site, or contact us via email – by sending a letter to One Call Now, 6450 Poe Ave, Suite 500 Dayton, OH 45414, or by telephone at (877) 698-3262 to request the removal of their telephone number from the roster. Only phone numbers maintained in our roster system may be removed in this way. Phone numbers called for clients who initiate telephone messages by sending a file of phone numbers to our ftp server or “Canned Call Manager” are not maintained in our roster management system for future use, and cannot be removed by One Call Now. Requests for removal of numbers sent to us in these ways will be forwarded to you. You agree to remove these numbers from any future file sent to us.
5. REGISTRATION INFORMATION
You agree, as a condition of your use of the One Call Now Service, to provide One Call Now with accurate and complete information when registering for or using the One Call Now Service, and to update and maintain such information. One Call Now has the right to suspend, restrict or terminate your use of the One Call Now Service and to refuse any future use of all or portions of the One Call Now Service if One Call Now has reason to believe that you have failed to comply with these requirements.
6. MINIMUM AGE
If you are under the age of eighteen, you are prohibited from using or registering for the One Call Now Service. By using or registering for the One Call Now Service, you represent and warrant to One Call Now that you are above the age of eighteen.
7. ACCOUNT SECURITY
When you are registered, you are given a Personal Identification Number (PIN) and a Group Number (ID). You are responsible for protecting the confidentiality of your PIN and Group ID, and are fully responsible for all activities that occur under your PIN and ID.
You agree to immediately notify One Call Now of any loss, compromise or unauthorized use of your PIN and ID or any other breach of security. You may notify One Call Now by sending a letter to One Call Now, 6450 Poe Ave, Suite 500 Dayton, OH 45414, or by telephone at (877) 698-3262.
Prohibited violations of the security of the messaging services include, but are not limited to, the following:
|(a)||Attempting to log into or otherwise obtaining or seeking to obtain unauthorized access to any account or computer system. This includes, for example: (i) accessing data or information not intended for you or your use, (ii) attempting to probe, scan, or test the vulnerability of the messaging services, and (iii) tampering, hacking, modifying or otherwise corrupting, circumventing or breaching security or authentication measures without proper authorization.|
|(b)||Interfering with or attempting to interfere with the messaging services to any user, host, or network, by use of any program, script, command, or otherwise, including, overloading, “flooding,” or “crashing” any computer system, or causing a user’s screen to “scroll” faster than the user is able to follow to type to it, “trapping” users at any URL or site, or taking any action that has a similarly disruptive effect as any of the foregoing.|
|(c)||Transmitting material that contains viruses, trojan horses, worms, time bombs, cancelbots or any other computer programming routines or engines with the intent or effect of damaging, destroying, disrupting or otherwise impairing a computer’s functionality or the operation of the Messaging Services.|
|(d)||Interfering with, intercepting or expropriating any system, data or information.|
8. CONSENT TO RECORD YOUR VOICE INPUTS
You agree and consent that One Call Now may record the oral or voice communications, utterances, conversations or commands (“Voice Inputs”) made by you during the use of the One Call Now Service. By using the One Call Now Service, you expressly consent and grant to One Call Now the right to record and use your Voice Inputs. If you do not want your Voice Inputs recorded or used, you may not use the One Call Now Service.
9. NON-COMMERCIAL PERSONAL USE
One Call Now offers service plans for both commercial use and non-commercial use (e.g. Coaches and Sports Leagues, Churches and Synagogues, Schools, Clubs and Organizations, Election and Campaigns, and Government Emergency Notification. One Call Now offers on its web site, fees and rates for both non-commercial and commercial users. Users can find special plans designed for various commercial and non-commercial users at www.One Call Now.com.
Commercial clients may use the service to deliver non-solicitation messages to consumers, or reasonable business-to-business use to contact existing customers, subscribers, members or others with which you have an ongoing business relationship.
Non-commercial clients may use the message service to reach, inform and notify members, players, students, and their families of activities, events and issues important to the organization.
Users who attempt to use any of the packages outside the scope of their plan will be subject to re-pricing, retrospectively, at the then current rate. By way of example and not limitation, Commercial users who attempt to use any of the One Call Pass Unlimited packages for non-commercial use (e.g. Coaches and Sports Leagues, Churches and Synagogues, etc.) will be contacted, and your usage and service will be subject to re-pricing, retrospectively, at the then rate.
10. RESTRICTION AND MODIFICATION OF SERVICE
You agree that One Call Now may limit your use of the One Call Now Service, including without limitation the frequency and duration for which you may access the One Call Now Service, and that One Call Now has no responsibility or liability for any unavailability or limitation on use of the One Call Now Service. In addition, One Call Now reserves the right at any time to limit: access to, modify, change or discontinue the One Call Now Service, or any part thereof, with or without notice. You agree that One Call Now shall not be liable to you or to any third party for any modification, suspension or discontinuance of the One Call Now service. You acknowledge and agree that One Call Now may establish general practices and limits, which may not be published, concerning the use of the One Call Now service, including without limitation the maximum time that messages will be retained, the maximum number of messages that may be sent from or received by an account on the One Call Now Service, the length of message sent and the maximum number of times, and the maximum duration for which you may access the Service, in a given period of time. You agree that One Call Now has no responsibility or liability for the deletion or failure to store any messages and other communications maintained or transmitted by the One Call Now service. You acknowledge that One Call Now reserves the right to terminate any inactive or dormant account(s). You agree and One Call Now reserves the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
You may not modify, license, transfer or sell any information, products or services that you access or obtain from any portion of the One Call Now Service.
11. YOUR CONDUCT
As a condition of your use of the One Call Now Service, you agree and warrant to One Call Now that you will not use the One Call Now Service for any purpose that is unlawful or prohibited by the Service Agreement. You may not use the One Call Now Service in any manner that could damage, impair, disable or overburden the One Call Now Service, interfere in any way with One Call Now’s rights, interfere in any way with any other User’s use and enjoyment of the One Call Now Service, or otherwise infringe on any person’s rights.
Specifically, you agree and warrant to One Call Now that:
You will follow the letter and spirit of the terms of the Service Agreement and all applicable laws;
You will not use, or attempt to use, the One Call Now Service in connection with any commercial messages, junk messages, spamming, advertising or messages that are duplicative, unsolicited, or promotional in nature;
You will not send, or attempt to send, messages to emergency lines, to any health care facility or similar establishment, to numbers assigned to radio common carrier services, to numbers outside the US and Canada, and, unless granted permission from the recipient, to any service for which the called party is charged for the call; You will not transmit, or attempt to transmit, any material that may infringe the contractual, fiduciary, intellectual property rights, or other rights of third parties, including trademark, copyright or the right of publicity;
You will not impersonate, or attempt to impersonate, any other person, falsify contact information, or caller ID phone number displayed to recipients, misrepresent a relationship with any person or entity, including misrepresenting a relationship with One Call Now, or otherwise attempt to mislead others as to the identity of the sender or the origin of a message;
You will not use, or attempt to use, the One Call Now Service to convey any information that may be considered unlawful, harassing, libelous, abusive, threatening, obscene, hateful, offensive, harmful, vulgar, distasteful, defamatory, or invasive of another person’s privacy or proprietary rights;
Unless a signed reseller agreement is executed between you and One Call Now, you will not resell, or attempt to resell, the use of the One Call Now Service;
You will not collect, or attempt to collect, or store information about the One Call Now Service or other Users, including contact information, without their consent;
You will not interfere, or attempt to interfere, with or disrupt connections to the One Call Now Service or violate the regulations, policies or procedures of such connections;
You will not attempt to gain unauthorized access to the One Call Now Service, other accounts, computer systems or networks connected to the Service.
You are responsible for the content of messages and to whom they are sent.
You agree and One Call Now retains the right, at its sole discretion, to determine whether or not a User’s conduct is consistent with the letter and spirit of the Service Agreement. One Call Now may terminate access to the One Call Now Service if a User’s conduct is found to be inconsistent with this Service Agreement.
12. RECIPIENT ACCEPTANCE OF THE One Call Now SERVICE
When the One Call Now service is subsidized or provided by community oriented sponsors, the One Call Now messages sent to your group may contain short audio messages. These audio messages accompany the voice message you send to other people and are played on the same call before the message content you record. A sponsorship message is ONLY played when the group member is a member of a sponsored group. If you purchase the service directly from the One Call Now website, there will NEVER be a third party sponsorship message played during message delivery.
As a condition of your use of the One Call Now Sponsored Service, you agree and warrant to One Call Now that you will not use the One Call Now Service to contact people who object to receiving these sponsor messages.
Certain Clients have the right to purchase or make available the use of the One Call Now service on behalf of groups, teams, clubs, leagues, classes or others within their organization, company, school or Association, and to make the One Call Now service available for use by leaders, coaches, teachers, employees, managers or others. You acknowledge and agree that any group, sub-group or person who uses the One Call Now service under your account or under your sponsorship or purchase of the service must be informed of and abide by this Service Agreement.
13. NO SPAM AND CONSENT TO DAMAGES
You are prohibited from “spamming”, “mailbombing”, or from otherwise transmitting the same or similar unsolicited e-mail messages, bulk commercial advertising, or chain letters to e-mail groups (which are two or more e-mail addressees aggregated as a single email addressee), newsgroups, bulletin boards, or to users that have requested that messages not be sent to them. This prohibition includes, but is not limited to, the following activities:
Sending unsolicited emails;
Collecting responses from mass unsolicited e-mail messages;
Using the messaging service to send unlawful, harmful, harassing, defamatory, threatening, cruel, vulgar, sexually explicit, hateful or otherwise objectionable material of any kind, or any material that exploits children or is invasive of another person’s privacy or other rights or is likely to cause emotional distress (regardless of whether the foregoing is accomplished explicitly, impliedly, suggested through the use of symbols, or through frequency or size of presentation);
Engage in or encourage conduct that would constitute fraud or would violate the laws of any applicable jurisdiction, including, without limitation, laws governing advertising, alcohol, antitrust, child protection, drugs, encryption, exportation, food, financial services, firearms, gambling, importation, information systems, intellectual property, obscenity, privacy, publicity, securities, telecommunications and tobacco;
Offer, solicit, sell, buy, rent, or license any goods, products, services, or information in, from, or to any location in which such activity is unlawful;
Engage in deceptive marketing;
Advocate, promote, or otherwise encourage violence against any government, organization, group, individual or property, or to provide instruction, information, or assistance in causing or carrying out such violence;
“Spoof” or otherwise impersonate any individual or entity, falsely state or otherwise misrepresent your identity or affiliation in any way, or forge, delete or alter any part of TCP/IP packet header or sender identification information in any e-mail or other transmission;
Attempt to intercept, redirect or otherwise interfere with communications intended for others;
Hold One Call Now, our affiliates, officers, employees and/or members up to public scorn or ridicule;
Engage in any activity that would subject us or our service providers to civil or other liability;
Engage in any other activity using the messaging services that we, in our sole discretion, deem to be inappropriate or an abuse of the messaging services;
Misrepresent your relationship with One Call Now;
Assist or permit any persons in engaging in any of the activities described above.
One Call Now has the right to immediately terminate any account that it believes, in its sole discretion, is violating any term of this Service Agreement, including, but not limited to, the foregoing acts.. Because these and other damages are often difficult to quantify, if actual damages cannot be reasonably calculated, then you agree to pay One Call Now liquidated damages as prescribed by law, but not less than $5.00 (calculated as a fraction of reasonable customer acquisition costs for the industry) for each piece of spam, unsolicited message, or other violation of the terms of this Service Agreement, transmitted from or otherwise connected with your phone number or account.
14. NO RESPONSIBILITY FOR CONTENT
One Call Now does not guarantee the accuracy, integrity, quality or appropriateness of any messages, communications, information, data, text, music, sound, or other materials (“Content”), whether publicly posted or privately transmitted through the One Call Now Service. You acknowledge that the One Call Now Service simply acts as a passive conduit for the distribution and transmission of information. You acknowledge that One Call Now has no obligation to screen, preview, or monitor such Content. By using the One Call Now Service, you agree that it is solely YOUR RESPONSIBILITY to evaluate the accuracy, usefulness, completeness or appropriateness of any Content that you send, receive, access, post or otherwise transmit through the One Call Now Service, including Content that may be offensive, indecent or objectionable. Under no circumstances will One Call Now be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content sent, accessed, posted or otherwise transmitted via the One Call Now Service.
One Call Now may make identifiable information available to our employees and third parties with whom we contract for use solely to handle your accounts. In addition, One Call Now may provide non-personally identifiable aggregate statistics, unique identifiers, demographic and other anonymous information about our Users to advertisers, service providers, and other third parties. You acknowledge and agree that One Call Now may make such uses of information you provide or One Call Now collects.
While One Call Now is committed to protect your privacy, you acknowledge and agree that One Call Now may disclose any information or Content as described herein, or if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to: (a) comply with the legal process; (b) respond to claims of a violation of the rights of third parties; or (c) protect the rights, property or safety of One Call Now, its Users or the public. One Call Now shall not be responsible for accidental or inadvertent disclosure, unauthorized access or other disclosure as required by law or described herein.
16. SERVICE PROVIDERS
One Call Now does not endorse and is not responsible or liable for any Content, data, advertising, products or services available or unavailable from, or through, such service providers. You further agree that should you use or rely on such Content, data, advertisement, goods or services on, available or unavailable from, or through any such third party service provider. One Call Now is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or participation in promotions of service providers, and any other terms, conditions, representations or warranties associated with such dealings, are between you and such service providers exclusively and do not involve One Call Now.
You agree that One Call Now is not responsible for the accessibility or unavailability of service providers or for your interaction and dealings with them.
Caller ID numbers may generally be selected by Group Leaders. This must be a number you or your organization have responsibility for. If a responsible number is not available and selected on the customer set-up or profile screens, One Call Now will display one of its’ telephone numbers. In certain geographic areas, including Alaska, Hawaii and portions of Canada, local numbers cannot be handled properly and the number displayed will be an Ohio telephone number provided by One Call Now.
In all cases, you acknowledge the telephone industry limitation for Caller ID. One Call Now sends the Caller ID number (or one of its’ default numbers) to your recipient’s phone, but the name displayed is the responsibility of the local phone company that serves the recipient.
17. SERVICE FEES AND CHARGES
The basic account fees (“Service Fees”) shall be provided at the rates set out in the One Call Now pricing plan at the time of subscription, plus applicable taxes. One Call Now may from time to time modify the Service Fees.
Service Fees shall be paid through checks, honored purchase orders, credit or debit cards or other means as may be printed on invoices or posted on our web site.
Billing may be made by a third party (i.e. the group leaders’ sponsor).
The Subscriber shall pay their basic account fees monthly, seasonally or annually in advance at times and rates set out in the pricing plan. Free Trials are limited to 25 calls, any calls made over the 25 Free Trial limit must be paid for at the then current rates.
If you have selected the auto renewal program, you give One Call Now permission to automatically process the payment transaction (whether through debit card, credit card, ACH transfer, or other means) upon the anniversary of the date the account was created (or such later date as One Call Now may implement). The auto renewal program is an “opt in” program and may be selected in conjunction with this Service Agreement, the group leader menu, or your invoice.
If for any reason payment is not effected through the Subscriber’s credit or debit card and payment becomes past due, One Call Now will assess a late payment charge of 1.5% per month, or 18% annually (or the highest amount allowed by law, whichever is lower) on the amount due. The total amount of the late payment, and the late charge, shall be due and payable immediately. Subscriber is responsible for any fees, including attorney and collection fees that One Call Now may incur in its efforts to collect any Service Fees, surcharges and late payment charges owing from the Subscriber.
One Call Now reserves the right to change the billing process upon providing the Subscriber with 30 days notice in writing.
19. TERM AND TERMINATION
The initial term of the One Call Now service shall be as defined in your rate plan, and shall continue for automatic subscription renewals, thereafter until terminated by either party in accordance with this Service Agreement. No refunds will be provided unless approved by Client Services Management.
20. LIABILITY DISCLAIMER YOU AGREE THAT:
A. IF YOU USE THE One Call NOW SERVICE, YOU DO SO AT YOUR OWN AND SOLE RISK. THE One Call NOW SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. One Call NOW EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
One Call NOW ALSO PROVIDES MESSAGING SERVICES TO COMMERCIAL AND GOVERNMENT EMERGENCY MANAGEMENT AGENCIES. IN THE EVENT OF A CRITICAL EMERGENCY, REGULAR One Call NOW MESSAGING SERVICES MAY TEMPORARILY BE PRE-EMPTED.
B. One Call NOW DOES NOT WARRANT THAT (I) THE One Call NOW SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE One Call NOW SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE One Call NOW SERVICE WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE One Call NOW SERVICE WILL MEET YOUR EXPECTATIONS, (V) ANY INFORMATION YOU PROVIDE OR One Call NOW COLLECTS WILL NOT BE DISCLOSED, OR (VI) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED. YOU ARE ESPECIALLY ADVISED NOT TO USE OR RELY ON THE One Call NOW SERVICE AND INFORMATION OR ANY OTHER PROGRAM, INFORMATION OR SERVICE WHATSOEVER RELATED THERETO FOR “CONTENT SENSITIVE” OR “MISSION CRITICAL” APPLICATIONS AND USE. “CONTENT SENSITIVE” SHALL MEAN ANY INFORMATION OR DATA YOU DO NOT WISH TO BE ACCESSIBLE TO OTHER USERS. “MISSION CRITICAL” APPLICATIONS AND USE SHALL MEAN APPLICATIONS AND USE THAT MAY RESULT IN DAMAGE.
C. IF YOU ACCESS OR TRANSMIT ANY CONTENT THROUGH THE USE OF THE One Call NOW SERVICE, YOU DO SO AT YOUR OWN DISCRETION AND YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOU IN CONNECTION WITH SUCH ACTIONS.
D. NO DATA, INFORMATION OR ADVICE OBTAINED BY YOU IN ORAL OR WRITTEN FORM FROM One Call NOW OR THROUGH OR FROM THE One Call NOW SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
21. LIMITATION OF LIABILITY
YOU EXPRESSLY AGREE THAT One Call NOW SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF One Call NOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING OR ARISING FROM: (I) THE USE OR INABILITY TO USE THE One Call NOW SERVICE; (II) THE COST OF ANY SUBSTITUTE GOODS AND SERVICES PURCHASED TO REPLACE ANY GOODS OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF ANY INFORMATION OBTAINED FROM OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE One Call NOW SERVICE; (III) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR INFORMATION OR MESSAGES; (IV) STATEMENTS OR CONDUCT OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY ON THE One Call NOW SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE One Call NOW SERVICE. One Call NOW’S LIABILITY, IF ANY, ON ANY CLAIM FOR DAMAGES ARISING OUT OF THE SERVICES PROVIDED SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNT WHICH HAS BEEN PAID TO One Call NOW FOR THE THREE MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM ARISES. NO ACTION ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE DATE ON WHICH THE CLAIM ARISES.
You agree to indemnify, defend and hold harmless One Call Now, its officers, directors, owners, employees, agents, other service providers, vendors or customers from and against all losses, liabilities, expenses, damages and costs, including reasonable attorneys’ fees resulting from any violation of the Service Agreement by you or any harm you may cause to anyone. You agree and we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
23. PROPRIETARY RIGHTS
You acknowledge and agree that the One Call Now service and any necessary software used in connection with the One Call Now service and service providers contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor messages or information presented to you through the One Call Now service or sponsors is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You may not, and agree not to, modify, reformat, copy, display, distribute, transmit, publish, license, create derivative works from, or transfer or sell any information, products or services obtained from One Call Now, except as set forth herein. One Call Now, the One Call Now logo and other logos, product and service names may be trademarks, service marks or other intellectual property of One Call Now (the “One Call Now Marks”). You agree not to display or use the One Call Now Marks in any manner without the prior permission of One Call Now.
You agree that One Call Now may communicate any notices to you, including notices of changes to the Service Agreement, through e-mail, regular mail, posting the notices on the One Call Now.com website or playing them to you on the phone through the One Call Now Service.
You further agree to accept e-mail from One Call Now, by setting any email spam filters or blocking software to accept messages from our designated origination addresses sent to you by One Call Now.
25. ENTIRE AGREEMENT
The Service Agreement governs your use of the One Call Now service and constitutes the entire agreement between you and One Call Now. It supersedes any prior agreements between you and One Call Now. Additional terms and conditions may apply when you use the services of service providers and other third parties. These additional terms will not reduce, diminish or eliminate any rights One Call Now possesses with respect to this Service Agreement. Notwithstanding the foregoing, you or your organization or company may have a signed Service Agreement in addition to this Service Agreement. In the event of a conflict, the terms of the signed Service Agreement shall control.
26. GOVERNING LAW AND ARBITRATION
The Service Agreement and the relationship between you and One Call Now shall be governed by the laws of the State of Ohio without regard to its conflict of law provisions. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the One Call Now service or to the terms of this Service Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. You agree to submit any dispute with One Call Now exclusively to final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The location of any arbitration shall be in the city of Dayton, Ohio. You agree any arbitrator shall not have the authority to award punitive damages. You agree to be bound by any ruling in such arbitration proceeding and that such ruling shall be enforceable in any court of competent jurisdiction.
Any failure by One Call Now to exercise any rights or enforce any of the terms of this Service Agreement shall not constitute a waiver of such rights or terms. If any portion of the Service Agreement is found by an arbitrator or a court of competent jurisdiction to be invalid, the arbitrator or court should nevertheless give effect to the parties’ intentions expressed herein. All other provisions of the Service Agreement remain in full force and effect.
One Call Now is a federally trademarked service and service mark of One Call Now.
© 2015 SWN Communications Inc. (last modified September 3, 2015)