46elks Terms Of Service
Effective as from 2011-11-09
Table of contents
1. Your agreement with 46elks
2. Acceptance of the Terms
3. Changes to the Terms
5. Use of the Services and 46elks Websites
6. Your obligations
7. Proprietary rights
11. Exclusion of warranties, limitation of liability and indemnity
12. Additional Terms
13. Your confidential information and your privacy
PLEASE READ CAREFULLY BEFORE USING 46ELKS SERVICES OR WEBSITES
It is important that you read the entirety of and understand this document. There are, however, a few key points that we need to emphasise:
NO ACCESS TO EMERGENCY SERVICES: We do NOT currently allow you to access any emergency services such as 112 or 911. You must make alternative communications arrangements to ensure that you can make emergency calls if needed.
CHECK RESTRICTIONS ON USE: In some countries there are restrictions on the use of the Services. This includes but is not limited to Acceptable Use Policy and the Terms Of Service. It is your responsibility to ensure that you are legally allowed to use the Services where you are located. You must also ensure you comply with any country specific allocation requirements when allocating and/or using a phone number as failure to do so could result in the phone number being withdrawn.
46ELKS CREDITS EXPIRES AFTER 200 DAYS: Please be aware that your 46elks credit balance expires after 200 days of inactivity. See paragraph 9.2.
1. YOUR AGREEMENT WITH 46ELKS
46elks's API, services provided by 46elks and associated documentation (whether in printed or electronic form) including any improvements, modifications, enhancements, fixes, updates, upgrades and future versions thereto and whether made available for free or for a fee, (collectively the "Services") is licensed (not sold) to you by 46elks.
"46elks" means 46elks AB, a company registered in Sweden under number 556838-8184;
"you" or "your" means you, the registered holder of the User Account (as described in in paragraph 6.1) and licensee under these Terms.
Your agreement with 46elks is made up of the terms and conditions set out in this document, together with any Additional Terms referred to in paragraph 12 (collectively the "Terms"). To the extent of any inconsistency between the Additional Terms and this document, this document shall take precedence.
2. ACCEPTANCE OF THE TERMS
In order to use the Services and/or 46elks Websites you must first accept these Terms. These Terms are accepted by you (a) when you click to accept or agree the Terms; or (b) when you use the Services and/or 46elks Websites. We advise you to print a copy of these Terms for your records. These Terms remain effective from the date of acceptance until terminated by you or 46elks in accordance with paragraph 10.
You cannot accept these Terms if: (a) you are not lawfully entitled to use the Services and/or 46elks Websites in the country in which you are located or resident or (b) if you are not of legal age to form a binding agreement with 46elks.
3. CHANGES TO THE TERMS
46elks may make changes to these Terms from time to time. 46elks will publish the changes at www.46elks.com/terms . Changes to the Additional Terms will be posted on the applicable 46elks Website. The changes will be effective when published. Please review the Terms on a regular basis. You understand and agree that your express acceptance of the Terms or your use of the Services and/or 46elks Websites after the date of publication shall constitute your agreement to the updated Terms. If you do not agree with the amended Terms, you may terminate your relationship with 46elks in accordance with paragraph 10 below.
4.1 License. Subject to your compliance with these Terms, you are granted a limited, non-exclusive, non-sublicensable, non-assignable, revocable license to access and use the Services through your individual 46elks user account (as applicable) ("User Account"). You may not allow any unauthorized third party to access the Services. 46elks reserves all rights not expressly granted to you under these Terms.
4.2 Restrictions. You may not and agree not to sub-license, sell, assign, rent, lease, export, import, distribute or transfer or otherwise grant rights to any third party in the Services.
5. USE OF THE SERVICES AND 46ELKS WEBSITES
No Access to Emergency Services: The Services are NOT intended to support or carry emergency calls to any type of hospitals, law enforcement agencies, medical care unit or any other kind of Emergency Service. There are important differences between traditional telephone services and the Services. You acknowledge and agree that: (i) 46elks is not required to offer access to Emergency Services under any applicable local and/or national rules, regulations or law; (ii) it is your responsibility to purchase, separately from the Services, traditional wireless (mobile) or fixed line telephone services that offer access to Emergency Services, and (iii) the Services are not a replacement for your primary telephone service.
You may write or use a software application or website ("Application") that interfaces with the Services. You acknowledge that we may change, deprecate or republish APIs for any Service or feature of a Service from time to time, and that it is your responsibility to ensure that calls or requests you make to or via our Services are compatible with then-current APIs for the Service.
You and any applications that you may build, distribute, or otherwise create may make network calls or requests to the Services, or may receive phone calls via the Service, at any time that the Services are available provided that those requests do not violate the terms of the Acceptable Use Policy or any other of these Terms.
Provided that you comply with the terms of these Terms and our policies and procedures including the Acceptable Use Policy, you may use the Services to execute Applications owned or lawfully obtained by you. You are solely responsible for your Applications, including any data, text, images or content contained therein.
Subject to our commercially reasonable efforts and so long as your User Account remains in good standing, data generated by your use of the Service such as audio recordings and call log entries will remain available via our API for at least three (3) months from the date such data was generated. Notwithstanding the above and without limitation to paragraph 11, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with respect to loss of data associated with your User Account and data therein.
Suspension, technical improvement and maintenance: From time to time, 46elks may need to perform maintenance on or upgrade the Services or 46elks Websites or the underlying infrastructure that enables you to use the Services or 46elks Websites. This may require 46elks to temporarily suspend or limit your use of some or all of the Services or 46elks Websites until such time as this maintenance and/or upgrade can be completed. You will not be entitled to claim damages for such suspension or limitation of the use of the Services or 46elks Websites.
Content of Communications: 46elks is not the source of, does not have any control over, does not monitor and takes no responsibility for the content of communications made using the Services. By using the Services, you agree that any content that you submit may be transmitted to the recipient of your communication. The content of communications is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. The content of communications may be protected by intellectual property rights, which are owned by third parties. You are responsible for the content you choose to communicate and access using the Services. In particular, you are responsible for ensuring that you do not submit material that is (i) copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner (ii) a falsehood or misrepresentation (iii) offensive, unlawful, harmful to minors, obscene, defamatory, libellous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; (iv) an advertisement or solicitation of business; or (v) impersonating another person. 46elks reserves the right (but shall have no obligation) to decide whether any content that you use complies with these Terms. 46elks may in its sole discretion remove such content and/or terminate these Terms and your User Account if you use any content that is in breach of these Terms.
Quality: 46elks cannot guarantee that the Services or 46elks Websites will always function without disruptions, delay or errors. A number of factors may impact the quality of your communications and use of the Services or 46elks Websites, and may result in the failure of your communications including but not limited to: your local network, firewall, your internet service provider, the public internet, the public switched telephone network and your power supply. 46elks takes no responsibility for any disruption, interruption or delay caused by any failure of or inadequacy in any of these items or any other items over which we have no control.
Changes to Services. 46elks is constantly improving the Services and may also need to change technical features from time to time in order to comply with applicable regulations. Accordingly, you acknowledge and agree that the Services and functionality of the Services may vary from time to time. Technical requirements for use of the Services and feature descriptions are available on the 46elks Website. If you do not agree with any changes to Services you may terminate your relationship with 46elks in accordance with paragraph 10. In addition, you acknowledge and agree that certain Services may be subject to usage limits or geographical restrictions, which may vary from time to time. Please check the 46elks Website for details of the most up-to-date usage restrictions that apply to the Services that you are using.
Linking. You may link to the 46elks Website from another website owned by you, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement by 46elks where none exists. 46elks may revoke the permission to link to the 46elks Websites at any time at its sole discretion and will notify you in this respect.
6. YOUR OBLIGATIONS
6.1 User Account. Prior to your first use of the Services you will be asked to create a User Account and choose a password. We recommend that you choose a password that is hard to guess and consists of letters, numbers and symbols. You may only use the Services through your User Account. You are solely responsible and liable for all activities conducted through your User Account, including but not limited to all traffic originating from your Applications. To prevent unauthorized use, you shall keep your password confidential and shall not share it with any third party or use it to access third party websites or services. If you suspect that someone else knows your password, then you shall immediately change it in order to protect the security of your User Account. 46elks takes no responsibility for your failure to comply with the obligations in this paragraph 6.1.
6.2 Lawful Use: You must use the Services and 46elks Websites in accordance with the laws of where you are located. In some countries there are restrictions on the use of the Services and/or 46elks Websites. It is your responsibility to ensure that you are legally allowed to use the Servicesoftwar and/or 46elks Websites where you are located.
6.3 Prohibited Use: You may not: (a) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage, emulate or disassemble the Services, communication or protocols; (b) send unsolicited communications (also referred to as "SPAM" or "SPIT") or any communication not permitted by applicable law or use the Services for the purposes of phishing or pharming or impersonating or misrepresenting affiliation with another person or entity; (c) expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable in any way; (d) use the Services or 46elks Websites to cause or intend to cause embarrassment or distress to, or to threaten, harass or invade the privacy of, any third party; or (e) impact or attempt to impact the availability of the Services for example, with a denial of service (DOS) or distributed denial of service (DDoS) attack;
7. PROPRIETARY RIGHTS
In the event you elect, in connection with any of the Services, to communicate to us suggestions for improvements to the Services ("Feedback"), we shall own all right, title, and interest in and to the same, even if you have designated the Feedback as confidential, and we shall be entitled to use the Feedback without restriction. Furthermore, any other content or information you post or provide to 46elks via comments, forums, emails and the like (collectively, "Communications") shall be considered the property of 46elks. You hereby irrevocably assign all right, title and interest in and to the Feedback and Communications to us and agree to provide us such assistance as we may require to document, perfect, and maintain our rights to the Feedback and Communications.
Other than the limited use and access rights and licenses expressly set forth in these Terms, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to the Services and any other technology and software that we provide or use to provide the Services. You do not, by virtue of these Terms or otherwise, acquire any ownership interest or rights in the Services, or such other technology and software, except for the limited use and access rights described in these Terms.
Using the Services with 46elks Credit:
(i) Phone calls: The charges payable for phone calls consist of a connection fee (charged once, per call) and a per-minute rate as set out on www.46elks.com/pricing
(ii) SMS and MMS: The charges payable for sending and receiving SMS and/or MMS messages consist of a per-message fee available at www.46elks.com/pricing . Messages will be broken down into several messages if the message size exceeds SMS and/or MMS limitations for a single message, and will be charged accordingly for each message.
(iii) Numbers: The charges payable for phone numbers consist of a fee per 30 day period available at www.46elks.com/pricing .
(iv) 46elks may change the rates for calling phones and premium rate numbers at any time without notice to you by posting such change at www.46elks.com/pricing . The new rate will apply to your next purchase after the new rates have been published. Please check the latest rates before you make your call. If you do not accept the new rates, do not use the Services.
(v) The duration of a call shall be based on one-minute increments. Fractions of minutes will be rounded up to the next minute. The connection fee, where applicable, will be charged at the beginning of the call. Fractional usage charges will billed in increments that are rounded up, for example a charge of 0.029 EUR will be charged at 0.03 EUR. During the call, charges incurred will be deducted automatically from the 46elks Credit balance in your User Account.
9.1 46elks Credit. You can pay for select Services using 46elks Credit. You can purchase 46elks Credit using any payment method made available to you by 46elks from time to time. The 46elks Credit that you purchase will be credited to your User Account at the time of purchase (or if you are using a 46elks Credit voucher, at the time you redeem that voucher).
9.2 If you do not use your 46elks Credit for a period of 200 days, your 46elks Credit will expire.
You may terminate your relationship with 46elks at any time and without recourse to the courts by requesting closure of your User Account, ceasing to use the Services and/or 46elks Websites and cancelling any recurring payments.
46elks may terminate its relationship with you, or may terminate or suspend your use of the Services, User Account(s), 46elks Websites at any time and without recourse to the courts: (a) if you are in breach of these Terms; (b) if 46elks reasonably suspects that you are using the Services and/or 46elks Websites to break the law or infringe third party rights; (c) if 46elks reasonably suspects that you are trying to unfairly exploit or misuse any of our policies. (d) if 46elks reasonably suspects that you are using our Services and/or 46elks Websites fraudulently or that your User Account is being used by a third party fraudulently; (e) in respect of a particular Service, on thirty (30) days notice if 46elks decides to cease offering that Service; (f) immediately, if required due to a change in laws/regulation by a regulator or authority with a lawful mandate, or by any of 46elks's partners; (h) on thirty (30) days notice if 46elks decides to cease offering the Services to users in your jurisdiction generally.
46elks shall effect such termination by preventing your access to your User Account, the Services and/or 46elks Websites (as applicable). We reserve the right to cancel User Accounts that have been inactive for more than one (1) year.
11. EXCLUSION OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNITY
11.1 For the purposes of this paragraph 11, "46elks" includes its subsidiary companies and affiliated legal entities and all their directors, officers, agents, licensors and employees.
11.2 No Warranties: TO THE MAXIMUM EXTENT PERMITTED BY LAW: THE SERVICES AND 46ELKS WEBSITES ARE PROVIDED ?AS IS? AND USED AT YOUR SOLE RISK WITH NO WARRANTIES WHATSOEVER; 46ELKS DOES NOT MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS AND EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES AND/OR 46ELKS WEBSITES INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. 46ELKS FURTHER DOES NOT REPRESENT OR WARRANT THAT THE SERVICES AND/OR 46ELKS WEBSITES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES 46ELKS WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE SERVICES.
11.3 Nothing in this these Terms shall exclude or restrict 46elks's liability for (a) death or personal injury, (b) loss resulting from 46elks's wilful default or gross negligence, (c) fraud or deliberate misrepresentation, or (d) any liability which cannot be limited or excluded by applicable law.
11.4 No Liability: YOU ACKNOWLEDGE AND AGREE THAT 46ELKS WILL HAVE NO LIABILITY WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES OR LOSSES HAS BEEN NOTIFIED TO 46ELKS, IN CONNECTION WITH OR ARISING FROM YOUR USE OF 46ELKS WEBSITES, OR THE SERVICES THAT IS PROVIDED FREE OF CHARGE. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH SUCH SERVICES AND/OR 46ELKS WEBSITES IS TO IMMEDIATELY CEASE USE OF SUCH SERVICES AND/OR 46ELKS WEBSITES.
11.5 Limitation of Liability: Subject to paragraphs 11.3 and 11.4 above, 46elks shall not be liable to you, whether in contract, tort (including negligence) or any other theory of liability, and whether or not the possibility of such damages or losses has been notified to 46elks, for:
(a) any indirect, special, incidental or consequential damages; or
(b) any loss of income, business, actual or anticipated profits, opportunity, goodwill or reputation (whether direct or indirect); or
(c) any damage to or corruption of data (whether direct or indirect);
(d) any claim, damage or loss (whether direct or indirect ) arising from or relating to: your inability to use the Services to contact emergency services; your failure to make additional arrangements to access emergency services in accordance with paragraph 5.5 above;
(e) any claim, damage or loss (whether direct or indirect) arising from or relating to: any product or service provided by a third party under their own terms of service, including without limitation, any Third Party Technology; any third party website.
11.6 In addition to the foregoing, we specifically disclaim all liability, and you shall be solely responsible for the development, operation, and maintenance of your Application and for all materials that appear on or within your Application and your content and you agree that you shall, without limitation, be solely responsible for:
(a) the technical operation of your Application and all related equipment;
(b) the accuracy and appropriateness of any materials posted on or within your Application or your content (including, among other things, any product-related materials);
(c) ensuring that any materials posted on your site or within your Application do not violate our Acceptable Use Policy, are not illegal and do not promote illegal activities, including without limitation any activities that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age;
(e) any of your users' or customers' claims relating to your Application or your content or any Services utilized in connection with your Application.
11.7 Subject to paragraphs 11.3 - 11.6 above, 46elks's total liability to you under or in connection with these Terms (whether in contract, tort (including negligence) or any other theory of liability)) SHALL NOT EXCEED IN AGGREGATE THE AMOUNT PAID BY YOU FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE EVENT GIVING RISE TO THE RELEVANT CLAIM, SUBJECT TO A MAXIMUM OF FIVE THOUSAND EUROS IN ALL CASES.
11.8 If any third party brings a claim against 46elks in connection with, or arising out of (i) your breach of these Terms; (ii) your breach of any applicable law of regulation; (iii) your infringement or violation of the rights of any third parties (including intellectual property rights); (iv) your Feedbacks or Communications, you will indemnify and hold 46elks harmless from and against all damages, liability, loss, costs and expenses (including reasonable legal fees and costs) related to such claim.
12. ADDITIONAL TERMS
The Acceptable Use Policy provides restrictions on how to use the Services. Please read these restrictions carefully which form part of the Terms.
13. YOUR CONFIDENTIAL INFORMATION AND YOUR PRIVACY
These Terms constitute the entire agreement between you and 46elks with respect to your use of the Services and/or 46elks Websites and replace any prior agreements between you and 46elks with respect to the Services and/or 46elks Websites.
If any provision of these Terms (or part of it), is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, then such provision (or part of it) shall be removed from the Terms without affecting the legality, validity or enforceability of the remainder of the Terms.
The failure by 46elks to exercise, or delay in exercising, a legal right or remedy provided by these Terms or by law shall not constitute a waiver of 46elks's right or remedy. If 46elks waives a breach of these Terms, this shall not operate as a waiver of a subsequent breach of the Terms.
You may not assign these Terms or any rights or obligations contained in them. 46elks may, without prior notice, assign these Terms or any rights or obligations contained in them to any third party.
This paragraph 14, along with paragraphs, 4.2, 11 and any other provisions, which are expressed or clearly intended to survive or operate in the event of termination, shall survive termination of the Terms.
These terms shall be governed by and interpreted in accordance with the laws of Sweden which shall have exclusive jurisdiction over any disputes.
You acknowledge and agree that if 46elks is unable to provide the Services and/or 46elks Websites as a result of a force majeure event, 46elks will not be in breach of any of its obligations towards you under these Terms. A force majeure event means any event beyond the control of 46elks.
Third party websites. The 46elks websites may include hyperlinks to other third party websites. 46elks is not responsible for such third party websites or the availability of such websites and does not endorse any content or material on such third party websites. Your use of each of these third party websites is subject to the terms and conditions posted on the applicable website.
Contact. If you contact 46elks by any means other than by sending email to email@example.com, your request may not be acknowledged.
Electronic communication. You agree to the use of electronic communication in order to enter into contracts, place orders, and create other records and to the electronic delivery of notices, policies and changes thereto and records of transactions with 46elks.
English. In the event that these Terms are translated into other languages and there is a discrepancy between the two language versions, the English language version shall prevail to the extent that such discrepancy is the result of an error in translation.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO USE THE SERVICES AND/OR THE API AND/OR 46ELKS WEBSITES, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONDITIONS AND GRANT TO 46ELKS THE RIGHTS SET FORTH HEREIN.