General Terms and Conditions

By accepting electronically or entering into an Order Form that incorporates these General Terms and Conditions, the legal entity on whose behalf the Cloud Service is accessed (“Customer”) agrees that this Agreement governs Customer’s use of Phonely, Inc. (“Phonely”, each a “Party” and jointly the “Parties”) services and is effective as of the date of such electronic acceptance or in the case of acceptance via an Order Form on the Order Date as defined therein (each, the “Effective Date”). The individual accepting represents that they are authorized to bind Customer and that Customer is contracting for commercial purposes. 

1. SERVICE

1.1 Access and Use

During the Subscription Period and subject to the terms of the Order Form and this Agreement, Customer may: (a) access and use the Cloud Service; and (b) copy and use the included Software and Documentation solely as necessary to access and use the Cloud Service, in each case exclusively for its internal business purposes. If a Customer Affiliate enters into a separate Order Form with Provider, such Affiliate enters into a separate agreement with Provider creating individual and independent obligations between Provider and that Affiliate, and Customer shall bear no responsibility for its Affiliates’ agreements.

1.2 Provision, Availability, and Support

(a) Provision. Provider will make the Cloud Service available to Customer in accordance with this Agreement, the applicable Order Form, and the Documentation, and will provide the Cloud Service in accordance with the laws and regulations applicable to Provider’s provision of the Cloud Service to its customers generally, without regard to Customer’s particular use.

(b) Availability. Provider will use commercially reasonable efforts to make the Cloud Service available at least [99.8%] of the time each calendar month, measured excluding: (i) planned maintenance, of which Provider will give advance notice where practicable; (ii) emergency maintenance; (iii) any Force Majeure Event; and (iv) any unavailability caused by Customer’s or any User’s acts, omissions, equipment, or third-party services or systems.

(c) Support. Provider will provide standard technical support for the Cloud Service at no additional charge, and any upgraded support if purchased, as described in the Order Form or Documentation.

1.3 User Accounts

Customer is responsible for all actions taken through its Users’ accounts and for ensuring all Users comply with this Agreement Customer is responsible for maintaining the security of its credentials (including administrative and end-user passwords) and for all use of its account, with or without Customer’s knowledge, including through any security breach of Customer’s systems, except to the extent directly resulting from Provider’s failure to meet its obligations under this Agreement. Customer shall promptly notify Provider upon discovering or suspecting any unauthorized access to, or compromise of, its accounts, passwords, or credentials.

1.4 Feedback and Usage Data

Customer may, at its discretion, provide Provider with Feedback on an “AS IS” basis. Provider may use all Feedback freely without restriction or obligation. Provider may also collect and analyze Usage Data, and may use such Usage Data to maintain, improve, and promote its products and services without restriction. Provider may only disclose Usage Data to third parties in aggregated, de-identified form that does not identify Customer or Users.

1.5 Customer Content

Customer represents and warrants that it has all rights, permissions, and consents necessary to submit all Customer Content to the Cloud Service and to grant Provider the rights set forth in this Agreement. Customer grants Provider a worldwide, non-exclusive, royalty-free right to use, process, copy, reproduce, modify, and display Customer Content: (i) as required by Applicable Laws; (ii) as requested or permitted by Customer through the Cloud Service; (iii) as necessary to provide, support, secure, and optimize the Cloud Service; (iv) as necessary to provide and maintain the Product and related offerings; or (v) as necessary to prevent or address technical problems or violations of this Agreement. Provider may review Customer Content by manual or automated means and may remove or deny access to any Customer Content that violates this Agreement. Customer is solely responsible for the accuracy and legality of Customer Content.

1.6 Machine Learning

Usage Data and Customer Content may be used to develop, train, or improve artificial intelligence or machine learning models that form part of Provider’s products and services. Customer authorizes Provider to process its Usage Data and Customer Content for such purposes, provided that: (a) such data must be aggregated prior to use; and (b) Provider shall use commercially reasonable, industry-standard measures to de-identify such data before use and shall not attempt to re-identify it. Provider may carry out such processing itself and through its model and infrastructure providers, who are bound by confidentiality and use restrictions consistent with this Section. Customer retains ownership of Customer Content, and Provider owns all aggregated and de-identified data and all models, technology, and improvements resulting from the processing described above. Provider shall handle any data processed under this section in accordance with Applicable Laws. AI-generated outputs are not a substitute for human review and may contain inaccuracies. Customer is solely responsible for reviewing outputs before relying on them. 

1.7 Service Changes

Provider may update, replace, or modify the technologies, components, configurations, and vendors used to deliver the Cloud Services (including AI models, model versions, inference providers, and related infrastructure) in the ordinary course of operations and product improvement, provided that such changes are designed to preserve the core functionality of the Cloud Services described in the Order Form. If a change causes a material adverse impact to the Cloud Services, the Parties will work in good faith to mitigate it through configuration changes, workarounds, or alternative implementations.

1.8 Third-Party Services

Certain of the Cloud Services allow Customer to connect to various third-party services via API or other integrations (“Linked Services”) and may contain links to other third-party websites and services. Provider is providing these connections to Customer only as a convenience, and the inclusion of any connection or link does not imply endorsement by Provider of the Linked Services, website or policies, or any association with its operators. Customer’s access and use of such Linked Services is governed solely by the terms and conditions of such Linked Services. Provider is not responsible or liable for the contents or behavior of any Linked Services, including without limitation, any link contained in a Linked Service (or the policies or procedures of that Linked Service), or any changes or updates to a Linked Service (or the policies or procedures of that Linked Service). By using any product, service or functionality of the Linked Services at its own option, Customer hereby acknowledges and consents that Provider may share Customer information and data with such Linked Services. By connecting such Linked Services, Customer agrees that it is consenting to the necessary continuous integration and information sharing about Customer and its end users to such Linked Services. 

2. RESTRICTIONS & OBLIGATIONS

2.1 Restrictions on Customer

Except as expressly permitted under this Agreement, Customer shall not, and shall not permit any third party to: (a) reverse engineer, decompile, or attempt to discover any source code or underlying algorithms of the Product; (b) sell, sublicense, transfer, rent, or otherwise make the Product available to third parties; (c) remove or obscure any proprietary notices or labels; (d) copy, modify, or create derivative works of the Product; (e) perform security or vulnerability testing, interfere with the Product’s operation, or circumvent access restrictions; (f) access accounts, data, or areas of the Product without authorization; (g) use the Product to develop a competing product or service; (h) use the Product in connection with High Risk Activities, or in violation of Applicable Laws including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination, securities laws, and false advertising, or in violation of the Documentation; (i) use the Product to gain unauthorized access to third-party systems or networks; (j) submit Customer Content without holding the necessary rights thereto; (k) use the Product for any illegal, fraudulent, improper, or abusive purpose, or in any way that interferes with, disrupts, or restricts any other customer's use of the Product or damages the property of Provider or any other customer. 

2.2 Limitation, Suspension, and Termination

If Customer: (a) maintains an outstanding, undisputed balance for more than thirty (30) days; (b) breaches Section 2.1; (c) uses the Product in a manner that materially and adversely impacts the Product or other users; or (d) engages in any actual or suspected misappropriation, reverse engineering, unauthorized copying, or other violation of Provider’s intellectual property rights; or (e) engages in use that, in Provider’s reasonable judgment, threatens the security, integrity, or availability of the Product or the data or systems of Provider or other customers, then Provider may, at its sole discretion and without prior notice, take any of the following actions:

(i) Limit Customer’s access to only those features and functions of the Product strictly necessary for core operational continuity, as determined by Provider in its sole discretion;

(ii) Suspend Customer’s access to the Product in its entirety; or

(iii) Terminate this Agreement immediately.

Provider may escalate between these measures at any time and in any order at its sole discretion. Provider will endeavor to notify Customer promptly following any such action, except where notification would compromise Provider’s ability to protect its intellectual property or investigate a suspected violation. Access shall be reinstated, expanded, or reinstated in full only upon Provider’s determination that the underlying issue has been resolved to Provider’s satisfaction.

3. PRIVACY & SECURITY

3.1 Prohibited Data

Customer shall not, and shall not permit any User to, submit Prohibited Data to the Product, except: (a) with respect to protected health information under HIPAA, where the parties have executed a Business Associate Agreement, in which case that agreement governs; and (b) with respect to other Prohibited Data, where expressly authorized in the Order Form. Customer is solely responsible for ensuring it has the right to submit any such data.

3.2 Subcontractors and Subprocessors

Provider may use affiliates, subcontractors, and third-party service providers (including AI model and infrastructure providers and telecommunications carriers) to provide the Cloud Service. 

3.3 Security 

Provider will maintain technical, organizational, and physical safeguards designed to protect the availability, integrity, and confidentiality of the Cloud Service and Customer Content and to protect against information security threats. Provider may update these safeguards from time to time, provided that no update materially reduces the overall level of security.

3.4 Privacy 

Provider will process personal data within Customer Content in accordance with Applicable Data Protection Laws. Where required by Applicable Laws or agreed by the Parties in writing, the Parties will enter into a data processing agreement governing such processing.

4. PAYMENT & TAXES

4.1 Fees

In consideration for the Product provided by Provider, Customer will pay Provider the fees set forth in the Order Form, in accordance with the terms set forth therein. Unless otherwise specified in the Order Form, all Fees are denominated in U.S. Dollars and are exclusive of applicable Taxes. Except for prorated refunds of prepaid Fees expressly permitted under this Agreement, all Fees are non-refundable.

4.2 Invoicing

Invoices shall be issued on the first (1st) day of each calendar month for that month’s Fees. The first Subscription Period invoice shall be prorated for the partial calendar month in which the Order Date falls, calculated based on the number of days remaining in that month as a proportion of the total days in that month. Usage-based Fees (including overage minutes, Professional Services hours, and telephony charges) accrued in the prior month shall be included on the invoice issued on the first day of the following month.

4.3 Automatic Payment

Payment is processed through Provider’s third-party payment processor. Customer shall provide and keep current a valid payment method, and authorizes Provider and its payment processor to charge that method for all Fees as they become due, in accordance with the Order Form. Payment is deemed made when received by Provider. Customer is responsible for any chargeback, dispute, or transaction fees imposed by the payment processor or financial institution in connection with Customer’s payments. If any undisputed Fees remain unpaid when due, Provider may suspend or terminate access in accordance with Section 2.2. 

4.4 Taxes

Customer is responsible for all applicable duties, Taxes, and levies on Fees, including sales, use, VAT, GST, or withholding taxes itemized on invoices. Customer is not responsible for Provider’s income taxes. Customer will pay or reimburse Provider for any Sales, Use, VAT or similar transaction Taxes that Provider is required by law to collect, unless Customer provides Provider with a valid certificate of exemption. Without prejudice to the survival of any other obligation of Customer hereunder, the obligations of Customer contained in this section will survive the payment in full of all payments hereunder.

4.5 Payment

Subscription Period Fees shall be remitted no later than the last day of the calendar month in which the applicable invoice is issued.

4.6 Payment Disputes

If Customer disputes any Fees in good faith, it must notify Provider in writing prior to the applicable payment due date (or within thirty (30) days of an automatic payment) and must pay all undisputed amounts on time. Failure to provide a written statement explaining in reasonable detail the reasons for disputing the charge(s) within such time period irrevocably waives any objection and further recourse regarding such charges. The Parties shall cooperate in good faith to resolve the dispute within fifteen (15) days. If unresolved, either party may pursue available remedies under this Agreement or Applicable Laws. 

4.7 Rollover and Expiration of Allocations

Rollover of unused minutes or credits applies exclusively to annual Subscriptions. Such minutes or credits carry over within the then-current annual term and expire upon expiration or termination of the Agreement, unless otherwise agreed in writing. Telephony allocations and any other allocations not expressly designated as rollover-eligible expire at the end of the billing cycle or contract term in which they were allocated. No refund, carryover, or redemption applies to expired minutes, credits, or allocations.

4.8 Usage Measurement and Overages 

Minutes are measured using Provider’s standard metering methodology. If Customer’s usage in a billing month exceeds its committed or included minutes, the excess is billed in the following billing cycle at the overage rate set out in the Order Form.

4.9 Telephony Billing

Where Customer uses Provider’s telephony infrastructure, telephony and post-transfer minutes are billed at the rates set out in the Order Form. Call durations are billed per minute, with partial minutes rounded up to the next full minute; outbound calls have a minimum billed duration of one (1) minute.

5. COMPLIANCE

5.1 Compliance

Customer is solely responsible for ensuring that its use of the Product complies with all laws applicable to its use, including without limitation the Telephone Consumer Protection Act (TCPA), the Telemarketing Sales Rule, federal and state Do-Not-Call rules, caller identification rules, call-recording, transcription, and consent laws, and applicable data protection and privacy laws. Customer is solely responsible for obtaining all consents required to place calls and to record and transcribe communications through the Product. Customer acknowledges that consent and notice requirements for calling, recording, and transcribing communications vary by jurisdiction, and that some jurisdictions require the consent of all parties. Customer is solely responsible for determining which requirements apply to each communication, including based on the locations of all participants, and for obtaining all consents and providing all notices required by the applicable jurisdiction(s) before placing, recording, or transcribing any communication through the Product. Provider supplies technical infrastructure only and does not monitor or verify Customer’s compliance. Provider may suspend, filter, or terminate Customer’s use of the Product to the extent reasonably necessary to prevent transmission of communications that violate Applicable Law, without liability for any resulting interruption. Provider is not liable for penalties, claims, or damages arising from Customer’s use of the Product in violation of Applicable Laws. Customer is responsible for all penalties, claims, and damages arising from Customer’s use of the Product in violation of Applicable Laws. 

6. TERM & TERMINATION

6.1 Subscription Period

Each Subscription Period commences on the Effective Date and continues for one (1) year, automatically renewing for successive additional one-year Subscription Periods unless either Party provides written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Period.

6.2 Term of the General Terms

These General Terms commence on the Effective Date and continue for as long as any Order Form or subscription governed by them remains in effect.

6.3 Termination

Either party may terminate the Agreement or an Order Form immediately: (a) if the other party fails to cure a material breach within thirty (30) days following written notice; or (b) upon notice if the other party (i) commits a material breach that is incapable of cure; (ii) dissolves or ceases operations without a successor; (iii) makes an assignment for the benefit of creditors; or (iv) becomes the subject of insolvency, receivership, or bankruptcy proceedings that are not dismissed within sixty (60) days. 

This Section is without prejudice to Provider’s rights under Section 2.2

6.4 Force Majeure Termination

Either party may terminate an affected Order Form upon written notice if a Force Majeure Event prevents the Product from materially operating for thirty (30) or more consecutive days. Provider shall issue a prorated refund of prepaid Fees for the remaining Subscription Period. A Force Majeure Event does not excuse Customer’s obligation to pay Fees accrued prior to termination.

6.5 Effect of Termination

Termination of the Agreement automatically terminates all governed Order Forms. Upon expiration or termination: (a) Customer shall immediately cease all use of the Product; (b) upon Customer’s request, Provider shall delete Customer Content stored by Provider within sixty (60) days; (c) each Recipient shall return or destroy all of Discloser’s Confidential Information; and (d) Provider shall issue a final invoice for all outstanding Fees accrued prior to termination, which Customer shall pay in accordance with Section 4.

6.6 Survival

The following provisions shall survive expiration or termination: Sections 1.4 (Feedback and Usage Data), 1.5 (Customer Content), 1.6 (Machine Learning), 2.1 (Restrictions), 4 (Payment & Taxes, for accrued Fees), 5 (Compliance), 6.5 (Effect of Termination), 6.6 (Survival), 7 (AI Services), 9 (Disclaimer), 10 (Limitation of Liability), 11 (Indemnification), 12 (Confidentiality), 13 (Reservation of Rights), 14 (General Terms), and 16 (Definitions), and any Order Form provisions referenced thereby.

7. AI SERVICES

7.1 Nature of the Service

The Cloud Service uses artificial intelligence to interact with Users and to take autonomous actions on Customer’s behalf, including placing and answering calls, sending messages, scheduling, and making requests to Customer’s and third-party systems ("Actions"). Customer acknowledges that AI is probabilistic in nature and may produce outputs or take Actions that are unexpected, inaccurate, or undesirable.

7.2 Customer Responsibilities

Customer is solely responsible for: (a) configuring the Cloud Service and the AI voice agents it deploys, including the scripts, prompts, data sources, and the scope of permitted Actions; (b) deciding whether and how to use the Cloud Service and any outputs or Actions; (c) reviewing and verifying outputs and Actions before relying on them; and (d) ensuring that its configuration and use comply with all Applicable Laws, including without limitation TCPA & Do Not Call, telephony, call-recording, consent, privacy laws, state wiretap laws, and rules requiring disclosures pertaining to the use and function of the AI voice agents. 

7.3 Third-Party Models 

The Cloud Service may rely on artificial intelligence models and infrastructure provided by third parties. Provider does not control or develop these underlying models and makes no representations or warranties regarding their accuracy, reliability, or performance.

7.4 No Professional Advice; Human Oversight

Outputs and Actions of the Cloud Service do not constitute professional advice and are not a substitute for human judgment. Customer is responsible for maintaining appropriate human oversight over the AI voice agents it deploys.

8. REPRESENTATIONS & WARRANTIES

8.1 Mutual

Each party represents and warrants that: (a) it has full legal power and authority to enter into this Agreement; (b) it is duly organized, validly existing, and in good standing under applicable law; and (c) it will comply with all Applicable Laws in performing its obligations.

8.2 From Customer

Customer represents and warrants that: (a) it, all Users, and all parties submitting Customer Content have and will maintain all rights necessary to submit Customer Content and to permit its use as described in this Agreement; (b) it has obtained all consents and provided all notices required for Provider to place, record, transcribe, and process communications as configured by Customer; and (c) its use of the Product complies with all Applicable Laws.

8.3 From Provider

Provider represents and warrants that it will not materially reduce the core functionality of the Cloud Service during the Subscription Period.

8.4 Provider Warranty Remedy

If Provider breaches the warranty in Section 8.3, Customer must provide written notice with sufficient detail within forty-five (45) days of discovering the issue. Provider shall have forty-five (45) days to restore core functionality. If Provider cannot resolve the issue, Customer may terminate the affected Order Form and receive a prorated refund of prepaid Fees for the remaining Subscription Period. This is Customer’s sole and exclusive remedy, and Provider’s entire liability, for breach of the warranty in Section 8.3.

9. DISCLAIMER OF WARRANTIES

Provider does not warrant that the Product will be error-free, uninterrupted, or free from defects, or that any AI-generated outputs or Actions will be accurate, complete, or appropriate. The warranties in Section 9 do not apply to misuse or unauthorized modification of the Product. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8, EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

10. LIMITATION OF LIABILITY

10.1 Liability Caps

EXCEPT FOR (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11; (B) CUSTOMER’S PAYMENT OBLIGATIONS; (C) A PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION; (D) BREACH OF SECTION 2.1 (RESTRICTIONS); AND (E) MATTERS THAT CANNOT BE LIMITED UNDER APPLICABLE LAW, AS PROVIDED IN SECTION 10.4, EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE GENERAL CAP AMOUNT.

10.2 Damages Waiver

EXCEPT AS PROVIDED IN SECTION 10.4, NEITHER PARTY SHALL BE LIABLE FOR LOST PROFITS, REVENUES, OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR INCIDENTAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3 Applicability

The limitations and waivers in Sections 10.1 and 10.2 apply to all theories of liability, including tort, contract, and statutory duty.

10.4 Exceptions

Nothing herein limits liability to the extent prohibited by Applicable Laws.

11. INDEMNIFICATION

11.1 Protection By Provider

Provider shall indemnify, defend, and hold harmless Customer from and against all Provider Covered Claims and related out-of-pocket damages, settlements, costs, and reasonable attorneys’ fees arising therefrom.

11.2 Protection By Customer

Customer shall indemnify, defend, and hold harmless Provider from and against all Customer Covered Claims and related out-of-pocket damages, settlements, costs, and reasonable attorneys’ fees arising therefrom.

11.3 Procedure

The Indemnifying Party’s obligations are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Covered Claim; (b) providing reasonable cooperation at the Indemnifying Party’s expense; and (c) granting the Indemnifying Party sole control of defense and settlement. Any settlement requiring an admission of fault or materially adverse to the Protected Party requires prior written consent.

11.4 Changes to Product

In response to a Provider Covered Claim, Provider may: (a) obtain the right for Customer to continue using the Product; (b) replace or modify the affected component; or (c) if neither (a) nor (b) is commercially reasonable, terminate the affected Order Form and issue a prorated refund of prepaid Fees.

11.5 Exclusions and Exclusive Remedy

Provider has no indemnification obligation for claims arising from: (a) unauthorized modifications, misuse, or combination of the Product with third-party items not supplied by Provider; (b) Customer’s or any User’s use of the Product other than as permitted under this Agreement; (c) any Customer Content or Customer-provided materials; (d) the combination of the Product with any products, services, hardware, data, or business processes not provided by Provider; or (e) modification of the Product by anyone other than Provider, or by Provider acting on Customer’s instructions. This Section 11 constitutes each Party’s exclusive remedy and entire liability with respect to Covered Claims.

12. CONFIDENTIALITY

12.1 Non-Use and Non-Disclosure

The party disclosing Confidential Information is the “Discloser” and the party receiving Confidential Information is the “Recipient.” Recipient shall not use or disclose Discloser’s Confidential Information except as authorized by the Agreement or as necessary to fulfill obligations thereunder. Recipient shall protect Confidential Information using at least the same degree of care it applies to its own similar information, but in no event less than a reasonable standard of care.

12.2 Exclusions

Confidential Information excludes information that: (a) Recipient knew without restriction prior to disclosure; (b) becomes publicly available through no fault of Recipient; (c) Recipient receives without restriction from an authorized third party; or (d) Recipient independently develops without reference to Discloser’s Confidential Information.

12.3 Required Disclosures

Recipient may disclose Confidential Information as required by Applicable Laws, provided that, unless prohibited by law, Recipient gives Discloser reasonable advance notice and cooperates in seeking confidential treatment.

12.4 Permitted Disclosures

Recipient may disclose Confidential Information to Users, employees, advisors, contractors, and representatives with a need to know, provided each is bound by confidentiality obligations at least as protective as those herein.

13. RESERVATION OF RIGHTS

13.1 Reservation of Rights

Provider retains all right, title, and interest in and to the Product, including all related technology, models, documentation, and intellectual property rights therein. Customer retains all right, title, and interest in and to Customer Content, subject to the limited licenses granted in Sections 1.5 and 1.6. Provider may use any Feedback without restriction, and all improvements or modifications to the Product, whether or not resulting from Feedback, belong solely to Provider. For avoidance of doubt, Provider may use Usage Data and de-identified data to develop and improve the Product, as set forth in Section 1.6. Customer shall not use any output of the Cloud Service to develop or train any artificial intelligence or machine learning model or any competing product or service.

14. GENERAL TERMS

14.1 Entire Agreement

This Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior representations, agreements, and understandings. Provider expressly rejects any additional or conflicting terms contained in Customer’s purchase orders or similar documents except as modified by any addendum executed by both parties in accordance with Section 14.2.

14.2 Modifications, Severability, and Waiver

Any modification to this Agreement must be in writing and signed or electronically accepted by authorized representatives of both parties. If any provision is held invalid or unenforceable, the remaining provisions shall continue in full force and effect. Failure to enforce any provision shall not constitute a waiver thereof.

14.3 Governing Law and Jurisdiction

This Agreement is subject to, governed by, and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of laws provisions. The parties acknowledge and agree that the selection of Delaware law is supported by a substantial relationship, as the Provider is a corporation organized under the laws of the State of Delaware. The Parties agree that this Agreement is a commercial, business-to-business transaction, and that neither Party is acting as a consumer under any applicable consumer protection laws.

Any dispute, claim, or controversy arising out of or relating to this Agreement, including the determination of the scope, enforceability, or applicability of this agreement to arbitrate (which shall be delegated exclusively to the arbitrator), will be finally settled by binding arbitration in San Francisco County, California. The arbitration shall be conducted in English before a single neutral arbitrator. For matters with a disputed amount in controversy of $250,000 or less, the arbitration shall be administered by JAMS in accordance with its Streamlined Arbitration Rules and Procedures. For matters exceeding $250,000, the arbitration shall be conducted in accordance with the JAMS Artificial Intelligence Disputes Rules and Procedures (or, if inapplicable to the core claims, the JAMS Comprehensive Arbitration Rules and Procedures) then in effect. The arbitrator shall have substantial experience in resolving intellectual property and commercial contract disputes, in artificial intelligence technology licensing, and commercial software transactions. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own attorney’s fees and costs, and the parties shall share equally the JAMS administrative fees and arbitrator’s fees, unless the arbitrator awards costs or fees to the prevailing party pursuant to a specific statutory right. 

14.4 Class and Collective Action Waiver

The Parties mutually agree that each waives any right to have any dispute brought, heard, or arbitrated as a class, collective, consolidated, or representative action, and the arbitrator shall have no authority to hear or arbitrate any such action (“Class Action Waiver”). Notwithstanding any other provision of this Section or the JAMS Rules, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable shall be determined only by a court of competent jurisdiction and not by an arbitrator. If a dispute is filed as a class, collective, consolidated, or representative action and a court issues a final determination that all or part of the Class Action Waiver is invalid or unenforceable, then that action to that extent must be litigated in a court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.

14.5 Injunctive Relief

Notwithstanding Section 14.3, a breach of Section 12 or violation of intellectual property rights may cause irreparable harm not adequately compensable by monetary damages. Either party may seek equitable relief, including injunctive relief, in any court of competent jurisdiction without posting a bond.

14.6 Assignment

Neither party may assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement without consent in connection with a merger, acquisition, change of control, or sale of all or substantially all of its assets. Any unauthorized assignment is void.

14.7 Beta Products

Provider may grant Customer access to Beta Products on an “AS IS” basis. Section 8.3 does not apply to Beta Products. Customer acknowledges that Beta Products are experimental and may be modified or withdrawn at any time.

14.8 Logo Rights

Unless Customer notifies Provider otherwise in writing, Provider may identify Customer as a customer of Provider and use Customer’s name and logo on its website and in marketing and promotional materials.

14.9 Notices

All notices under this Agreement (other than routine operational communications) must be in writing and are deemed given upon receipt, delivered by: (i) hand; (ii) express courier with tracking; (iii) email with confirmed receipt by the other party; or (iv) registered or certified mail, return receipt requested. Notices to Customer will be sent to the address or email specified in the Order Form. Notices to Provider will be sent to Phonely, Inc., 105 N 1st St #1710 SMB#62824, San Jose, CA 95113, Attn: CEO, with a copy to [[email protected]].

14.9 Independent Contractors

The parties are independent contractors. Neither party is authorized to bind the other to any obligation or liability. This Agreement does not create a partnership, agency, joint venture, or employment relationship.

14.10 Export Controls

Customer shall not export or re-export the Product or any related technology in violation of U.S. export control laws or regulations, including those administered by the Department of Commerce and OFAC. Customer represents that it is not located in, or controlled by an entity located in, an Embargoed Country, and is not on any prohibited party list.

14.11 Anti-Bribery

Neither party shall take any action in violation of any anti-bribery or anti-corruption law, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.

14.12 Force Majeure

Neither party shall be liable for delays or failures in performance caused by a Force Majeure Event, provided the affected party gives notice in writing and takes reasonable steps to mitigate the impact. This section does not excuse Customer’s obligation to pay Fees.

14.13 Counterparts and Electronic Signatures

This Agreement may be executed in counterparts, including by electronic signature or acceptance mechanism, each of which shall constitute an original, and together shall form one binding agreement.

14.14 Order of Precedence

In the event of any conflict among the documents comprising the Agreement, the following order of precedence applies: (a) any Business Associate Agreement or data protection terms, solely with respect to their subject matter; (b) the Order Form; (c) these General Terms; and (d) any other Incorporated Documents. A term addressing a subject with greater specificity controls over a more general term to the extent of any conflict.

15. CHANGES

15.1 Changes to the General Terms 

Provider may revise these General Terms from time to time. The version of these General Terms that applies to each Order Form is the version in effect as of the Order Date, and that version remains in effect for the duration of the then-current Subscription Period. Provider may apply a revised version as of a renewal by giving Customer written notice at least thirty (30) days before the end of the then-current Subscription Period; the revised version will take effect at the start of the renewal term. If Customer does not agree to the revised version, Customer may elect not to renew by providing notice of non-renewal in accordance with the Order Form, in which case the Agreement will expire at the end of the then-current Subscription Period under the version then in effect. Customer’s renewal after receiving such notice constitutes acceptance of the revised version. 

16. DEFINITIONS

“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means ownership of more than fifty percent (50%) of the voting equity.

“Agreement” or “Cloud Service Agreement” means, collectively, the Order Form, these General Terms, any Incorporated Documents and any referenced or attached policies and documents including but not limited to terms of service and privacy policies.

“Applicable Data Protection Laws” means the laws governing the processing of personal data applicable to the Cloud Service.

“Applicable Laws” means all laws, regulations, court orders, and binding governmental requirements applicable to the Parties.

“Beta Product” means a prerelease or early-access version of the Product not yet generally available.

“Cloud Service” means the product described in the Order Form, which includes any updates, enhancements, modifications or new versions of the same.

“Confidential Information” means non-public information, in any form, disclosed by one party to the other that is identified as confidential or that reasonably should be understood to be confidential given its nature and the circumstances of disclosure.

“Covered Claims” means Provider Covered Claims and/or Customer Covered Claims, as the context requires.

“Customer Content” means data, information, or materials submitted, provided, transmitted or made available by or on behalf of Customer or Users to or through the Product, excluding Feedback.

“Customer Covered Claims” means any action, proceeding, or claim asserting that (i) the Customer Content, when used in accordance with this Agreement, violates, misappropriates, or otherwise infringes upon the intellectual property or other proprietary rights of any third party; (ii) results from Customer’s breach or alleged breach of Section 2.1 (Restrictions on Customer); (iii) arises from Customer’s breach of Section 5 (Compliance) or Customer's use of the Product in violation of Applicable Laws; (iv) arises from or relates to the outputs or Actions of the Cloud Service as configured or used by Customer, including without limitation claims of defamation, violation of privacy, or non-compliance with telephony laws, TCPA & Do Not Call; (v) any third-party claim arising from or related to Customer’s breach of this Agreement or violation of Applicable Laws; or (vi) arises from or relates to Customer’s use of, or connection to, any Linked Services, including any data breach or other act or omission of a Linked Service.

“Documentation” means Provider’s usage manuals and instructional materials for the Cloud Service or Software.

“Embargoed Country” means any country or region subject to broad export or import restrictions under Applicable Laws.

“Feedback” means suggestions, comments, or other feedback provided by Customer regarding the Product.

“Fees” means the amounts payable as described in an Order Form.

“Force Majeure Event” means an unforeseeable event beyond a party’s reasonable control, including without limitation natural disasters, war, epidemic or pandemic, terrorism, utility failure, fire, flood, earthquake, riot, government action, labor disputes, Internet or telecommunications failures, third-party network or subprocessor failures, and malware attacks, where the affected party has taken reasonable mitigation steps.

“General Cap Amount” means an amount equal to one (1.0) times the total Fees paid or payable by Customer to Provider in the twelve (12) month period immediately preceding the claim giving rise to liability.

“General Terms” means these terms and conditions.

“High Risk Activity” means any use where failure of the Product could cause death, bodily injury, or material environmental harm.

“Incorporated Documents” means any documents, exhibits, addenda, schedules, or policies that are either (a) expressly incorporated by reference into the Order Form or these General Terms, or (b) otherwise executed or agreed in writing by the parties and expressed to form part of the Agreement, in each case as accepted by Customer.

“Order Date” means the date of the last authorized signature on the Order Form.

“Order Form” means an order form signed by the Parties specifying the key business terms of this Agreement.

“Overage Minutes” means minutes consumed by Customer in a given billing month in excess of the committed monthly minutes set forth in the applicable Order Form, billed at 1.3x the contracted price per minute.

“Product” means the Cloud Service, Software, and Documentation.

“Professional Services” means integration buildout, quality assurance testing, engineering assistance, and related services provided by Provider under this Agreement.

“Prohibited Data” means protected health information under HIPAA, financial account numbers, government identification numbers, and other sensitive data as defined under Applicable Data Protection Laws.

“Provider Covered Claims” means any action, proceeding, or claim asserting that the Cloud Service, when used by Customer in accordance with this Agreement, violates, misappropriates, or otherwise infringes upon the intellectual property or other proprietary rights of any third party.

“Software” means any client-side software or applications made available by Provider as part of the Product.

“Subscription Period” means the annual term commencing on the Order Date, as defined in the Order Form.

“Taxes” means all withholding taxes, levies, imposts, duties, fines or other charges of any nature, however imposed, by any country or any subdivision or authority thereof in any way connected with these General Terms, the Agreement, or any instrument or agreement required hereunder or thereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes as are imposed on or measured by a Party’s net income or property.

“Usage Data” means data and information about the provision, use, and performance of the Product generated through Customer’s use thereof. Usage Data does not include personal data. 

“User” means any individual who accesses the Product on Customer’s behalf or through Customer’s account.