This SmartLine Agreement (this “Agreement”) is entered into by and between FlickMax (a FlickMax Party, and together with its Affiliates, (together “FlickMax Parties” or "FlickMax"), and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of FlickMax SmartLine and all optional features and related services (the “Services”). Call Catchers d/b/a Sinch voice calling (another “FlickMax Party”) will provide the Services under this Agreement, and reserves the right to change the FlickMax Party providing Services hereunder in its sole discretion. For the purposes of this Agreement “Affiliate” means with respect to a party, any entity that directly or indirectly controls, is controlled by or is under common control with that party. Capitalized terms used but not herein shall have the meanings set forth in the Universal Terms of Service Agreement.
Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with our Universal Terms of Service Agreement, FlickMax’s Privacy Policy ("Privacy Policy"), which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein. You may also be subject to additional terms associated with the particular App Store from which you downloaded the SmartLine App, if any ("App Store Terms"). See: Apple Terms of Service and Google Terms of Service. In addition, you acknowledge that certain Services may be governed by tariff or a price schedule filed with state public utilities commissions, which are incorporated into this Agreement by reference. If there is a conflict between this Agreement, the Universal Terms of Service Agreement, or price schedule, then the provisions in the tariff or price schedule will govern with regard to the subject matter contained therein, followed by this Agreement, and then the Universal Terms of Service Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting this to our site. Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. We may occasionally notify you of changes or modifications to this Agreement by email. You shall keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
FlickMax SmartLine is a virtual phone service, which allows you to separate your business and personal lines on the same device. This service allows you make outgoing calls on your current device. The service also includes private calling, the ability to dial out of the mobile app using the device’s native dialer.
NOTICE REGARDING TRANSFER OF DATA: USE OF THE SMARTLINE SERVICES REQUIRES THAT PERSONAL DATA BE PROCESSED BY FLICKMAX IN THE UNITED STATES OF AMERICA, WHERE THE COMPUTING SYSTEMS AND INFRASTRUCTURE NECESSARY FOR YOU TO USE THE APP ARE LOCATED. FEATURES AND CAPABILITIES OF THE SERVICES WOULD NOT BE AVAILABLE WITHOUT SUCH PROCESSING OF PERSONAL DATA IN THE UNITED STATES OF AMERICA AND YOU HEREBY EXPRESSLY CONSENT TO THE PROCESSING BY, AND TRANSFER OF PERSONAL DATA TO, FLICKMAX IN THE UNITED STATES OF AMERICA FOR THAT PURPOSE. FLICKMAX PROCESSES SUCH PERSONAL INFORMATION IN COMPLIANCE WITH THE CONTRACTUAL REQUIREMENTS ESTABLISHED WITH YOU IN THIS DOCUMENT.
Apps are Not for Children under 13. All SmartLine Apps, Services and related websites are not intended for children under the age of thirteen (13), so children under the age of thirteen (13) should not use them at any time. Account registration requires a minimum age of thirteen (13). If you are between the ages of thirteen (13) and seventeen (17), your legal guardian shall review and agree to these terms. FlickMax does not knowingly collect any information from children under the age of thirteen (13). In the event that FlickMax learns that it has inadvertently gathered personal information from children under the age of thirteen (13), FlickMax will take reasonable measures to promptly delete such information.
Account Registration. Use of the SmartLine App requires that you create an account (the "Account"). The Account applies to use of the SmartLine App and related Services. When setting up the Account you may be prompted: (i) to provide a phone number to receive a call or SMS from us so that we may authenticate your Account registration and you acknowledge and agree that we may place, and that your existing phone carrier may charge you for that incoming call or SMS; and (ii) for registration information, which may include your address, name, email address, account password, and a phone number. You hereby consent and to allow FlickMax to: (i) import and store contacts from your device and from third party services through connections enabled by you through the SmartLine App, and (ii) identify you by the name and phone number provided during registration to third parties with whom you communicate using the SmartLine App. For FlickMax Accounts, you agree that FlickMax may contact you at the mobile phone number you provide during registration about your Account and/or about setting up an Account. Accounts are for your personal use and may not be sold, transferred or assigned by you to a third party. YOU ACKNOWLEDGE THAT IF YOU DO NOT CONSENT TO MAKE YOUR CONTACTS AVAILABLE TO THE APP, YOUR USE OF THE APP WILL BE LIMITED.
Service Requirements. An underlying wireless phone service is required to use the calling features of the Services. You are solely responsible for procuring, maintaining, and paying for the underlying wireless phone service that will connect calls made with the Services to your phone. Using the Services requires using your own voice minutes. Fees, service charges, per message and per-minute usage and other charges may be assessed by your underlying wireless phone service provider for any calls received through the Services. FlickMax is not responsible for your underlying phone service, for any calls made or messages sent across telecommunications networks which are not owned by FlickMax, or for problems with your underlying wireless phone service, including but not limited to no service, poor reception, and dropped calls. When you use SmartLine to send messages, these messages will not be itemized on your wireless telephone invoice. Additionally, THE SERVICES CANNOT BE USED FOR 911 OR EMERGENCY CALLING. YOU MUST USE YOUR UNDERLYING PHONE SERVICE FOR 911 OR EMERGENCY CALLING.
A data plan or internet connection is required to use portions of the SmartLine App Service. You are solely responsible for any fees and costs associated with that data plan or internet connection. You acknowledge and agree that your cellular connection may be used for voice functionality of the Services and that you are solely responsible for cellular usage charges which you may incur from use of the Services. Check the terms of your agreement with your carrier to determine if your carrier restricts or imposes fees or charges for VoIP transmissions or terms that would otherwise prohibit your use of the App. You are solely responsible for all fees and charges imposed by carriers and for compliance with your agreement(s) with your wireless carrier. You hereby authorize and grant to FlickMax a license to use, copy, transmit, distribute, store and cache messages and other content sent and received through your account with the Services, to sublicense those rights to its third party providers only for so long as necessary to provide the Services to you, and to disclose the same as required or permitted under applicable law. FlickMax may provide the Services to you directly or through its providers and/or agents, including but not limited to FlickMax.
You agree to pay all applicable fees. Depending on how you obtained your Account. the applicable App Store or FlickMax will charge your credit card fees for the type of account you've chosen. plus applicable taxes and fees. When you obtain an Account from FlickMax, FlickMax will collect billing information upon registration. YOU WILL BE CHARGED FEES PLUS APPLICABLE TAXES AND TELECOMMUNICATIONS FEES UNTIL YOUR ACCOUNT IS CANCELED, OR, IF PURCHASED THROUGH AN APP STORE, YOU CANCEL THE RECURRING SUBSCRIPTION THROUGH MECHANISMS MADE AVAILABLE BY THE APPLICABLE APP STORE. IF A FREE TRIAL IS OFFERED, YOU MUST CANCEL THAT SUBSCRIPTION PRIOR TO THE END OF THE FREE TRIAL. For renewals, FlickMax will automatically charge your credit card the amount of the then current fee for your type of account, plus applicable taxes and fees. FlickMax reserves the right to charge value -added taxes, sales, State and Federal telecom fees or other taxes on Accounts. To the extent that payment mechanisms are provided through third parties, you agree that FlickMax has no liability to you arising out of the acts or omissions of those third parties.
2. Mobile App Usage Policy: You are entitled to download the mobile app exclusively for your personal devices, not to exceed three (3) concurrent installations per FlickMax SmartLine Services. This policy is intended to protect the low rates for the Services enjoyed by all FlickMax customers. To avoid additional costs and rate increases, it becomes necessary for FlickMax to actively prevent any fraudulent, or otherwise excessive use of the mobile app. In the event that FlickMax finds that you have violated this policy FlickMax reserves the right to suspend, cancel or terminate your account with or without notice in our sole discretion. Where possible, FlickMax will provide you with notice of your violation of this policy prior to any suspension, cancelation or termination.
6. YOUR OBLIGATIONS
You agree to indemnify, defend and hold harmless FlickMax. and its officers, directors, employees, agents, shareholders, and business partners from and against any and all claims, liabilities, losses, expenses, damages and costs, including reasonable attorneys' fees, arising out of your recording of employee or third party conversations. or any violation of federal or state laws governing monitoring or recording of telephone conversations and the requirement to obtain the prior consent of such persons. The provisions of this paragraph are for the benefit of FlickMax and its officers, directors, employees, agents, shareholders, and business partners, and FlickMax shall have the right to assert and enforce these provisions directly against you on behalf of FlickMax or such related parties.
7. LAWFUL AND APPROPRIATE USE / DENIAL OF ACCESS
You agree that you will not use the SmartLine App or Services in violation of applicable law (e.g. no texting while driving, TCPA Violations, etc.) or to: (i) create or transmit any content or communications using the SmartLine App or Services that are obscene, abusive, harassing, threatening, racist, malicious, fraudulent, defamatory, libelous, harmful to minors or that may violate or infringe the rights or privacy of third parties, as determined by FlickMax in its sole discretion; (ii) send spam or advertisements in violation of applicable law or without the advance consent of the recipient; (iii) engage in bulk messaging, robocalling, auto-dialing, ID spoofing, or similar deceptive practices (the conduct in this subsection referred to as "Spam Attacking"); (iv) Toll Fraud and/or Traffic Pumping.
YOU AGREE THAT IF YOU ARE SPAM ATTACKING, SUCH CONDUCT WILL CAUSE SERIOUS DAMAGE TO FLICKMAX AND, ON ACCOUNT OF THE GREAT DIFFICULTY OF ASCERTAINING THE AMOUNT OF SUCH DAMAGE, YOU AGREE TO PAY $500 PER CALL THAT CONSTITUTE SPAM ATTACKING (AS DEFINED ABOVE) AS LIQUIDATED DAMAGES AND YOU ACKNOWLEDGE AND AGREE THAT SUCH AMOUNTS ARE NOT A PENALTY AND CONSTITUTE A REASONABLE ESTIMATE OF THE LOSS THAT FLICKMAX MAY SUFFER AS A RESULT OF SPAM ATTACKING. FURTHERMORE, YOU AGREE TO REIMBURSE FLICKMAX FOR ALL CHARGES RELATED TO TOLL FRAUD OR TRAFFIC PUMPING.
You hereby agree to indemnify and hold FlickMax harmless from any and all claims, damages, losses or liabilities of any nature whatsoever arising out of or concerning your use in any manner of the Services provided herein. In the event that FlickMax is brought into or required to respond to any action arising from or concerning your activities, you agree to indemnify and hold FlickMax harmless from all arbitration, court and attorney's costs and fees. FlickMax may immediately discontinue, disconnect, limit, or revoke the Services without notice or warning to you, if you, at the sole discretion and determination of FlickMax, cause any type of activity or load which is incompatible with FlickMax network, cause quality of service issues, or otherwise impair FlickMax’s ability to maintain or provide service to other customers. In the case that the Services are suspected of being misused by you, including for fraudulent activity, FlickMax reserves the right at its sole discretion to immediately terminate the Services and inform the public that the Services is believed to have been used for inappropriate business. In addition, FlickMax reserves the right to terminate your Services, with or without cause and with or without specifying any reason for termination. FlickMax shall not be liable for any direct or indirect damages resulting from a decision to terminate, discontinue, disconnect, limit, or revoke the Services with or without notice or warning or for informing the public about the possibility of inappropriate business.
Additionally, FlickMax may deny your access to Services without incurring any liability if:
In the event your Services are disconnected by FlickMax for any of the reasons stated above you shall be liable for all unpaid charges due and owing to FlickMax associated with the Services.
8. DATA COLLECTION, RETENTION AND SHARING
Prior to Account creation, FlickMax may collect through the SmartLine App device identifiers but no other personally identifiable information. Device information is used for providing support for our internal operations. During and after Account creation, FlickMax collects data that you provide upon registration, including the name and phone number of contacts as stored on your device ("Contact Data"), and data about your use of the App, which includes both Personal Data and anonymous data. Personal Data is any information relating to an identified or identifiable person. Contact Data is used to enable communications features within the App. Contact Data is not used for any other purpose. You hereby (i) grant FlickMax a perpetual licenses to store Personal Data and Contact Data and to use, copy and transmit Personal Data and Contact Data in conjunction with your use of the App; and (ii) consent to allow FlickMax to transmit Personal Data and Contact Data upon registration, in response to legal process and/or to legal authorities upon request or as required under applicable law. While using the Services FlickMax may collect Usage Data. Usage Data is data and information you provide while using FlickMax’s SmartLine App or services, such as text messages, audio, voicemail audio, voicemail transcriptions, and photos you make available through the Apps or contacts you add or import.
Customer Proprietary Network Information (“CPNI”). FlickMax does not enable use, disclosure or permit access to CPNI for any marketing purposes to any persons, entities, parties outside of the company without the specific consent of the customer that owns the CPNI data. FlickMax does not and will not utilize, disclose or permit access to CPNI data to identify or track customers that call competing service providers. If FlickMax requires customer consent for utilizing, disclosing or permitting access to CPNI data, the Company will obtain consent through written, oral or electronic methods. Without such consent, FlickMax only uses CPNI in lawful ways, such as for billing and collecting of service rendered, protecting the Company’s rights and property, or providing customer information required by a Public Safety Access Point.
9. WARRANTY EXCLUSIONS
THE SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS-IS”. FLICKMAX MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICES FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, FLICKMAX DOES NOT WARRANT THAT THE SERVICES WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, OMISSION, DEGRADATION OF VOICE QUALITY, OR LOSS OF CONTENT, DATA, OR INFORMATION. ANY CLAIM AGAINST FLICKMAX MUST BE MADE WITHIN ONE YEAR OF THE EVENT GIVING RISE TO THE CLAIM OR 90 DAYS FROM THE TERMINATION OF SERVICES, WHICHEVER IS EARLIER, AND FLICKMAX SHALL HAVE NO LIABILITY THEREAFTER.
10. LIMITATION OF LIABILITY
THE SERVICES, ALTHOUGH RELIABLE, ARE NOT GUARANTEED. LIABILITY FOR INTERRUPTION OF THE SERVICES AND/OR A LACK OF QUALITY OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ERRORS AND OMISSIONS RELATING TO A DIRECTORY LISTING AND CNAM, SHALL BE LIMITED TO A MAXIMUM OF THE SUM OF TWO MONTHS COST FOR THE SERVICES. FLICKMAX RESERVES THE RIGHT TO INTERRUPT THE SERVICES FOR MAINTENANCE AND SYSTEMS UPGRADES AT ITS DISCRETION. IN NO EVENT SHALL FLICKMAX BE LIABLE FOR CLAIM OR LOSS, EXPENSE, OR DAMAGE (INCLUDING INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGE) FOR ANY INTERRUPTION, DELAY, ERROR, OMISSION, OR DEFECT IN ANY SERVICES, FACILITY (INCLUDING SERVICES AND FACILITIES INVOLVED IN EMERGENCY CALLING ACTIVITY), OR TRANSMISSION PROVIDED UNDER THIS AGREEMENT, IF CAUSED BY (A) ANY PERSON OR ENTITY OTHER THAN FLICKMAX; (B) BY ANY MALFUNCTION OF ANY SERVICES OR FACILITY PROVIDED BY ANY OTHER CARRIER; (C) BY AN ACT OF GOD, FIRE, WAR, CIVIL DISTURBANCE, OR ACT OF GOVERNMENT; OR (D) BY ANY OTHER CAUSE BEYOND FLICKMAX’S DIRECT CONTROL.
IN NO EVENT SHALL FLICKMAX BE LIABLE TO YOU, YOUR EMPLOYEES, OR ANY THIRD PARTY PARTICIPATING IN CALLS WITH YOU OR THE YOUR EMPLOYEES FOR ANY DIRECT DAMAGES OR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO EMPLOYEE OR THIRD PARTY CLAIMS, LIABILITY OR DAMAGES, ARISING OUT OF YOUR USE OF FLICKMAX SMARTLINE TO MONITOR OR RECORD OUTBOUND OR INBOUND CALLS INVOLVING YOUR EMPLOYEES, CLIENTS, OR ANY THIRD PARTY, REGARDLESS OF WHETHER YOUR REPRESENTATIVES HAVE ADVISED SUCH THIRD PARTIES OF THE POSSIBILITY OF MONITORING OR RECORDING SUCH PHONE CONVERSATIONS, AND PARTICULARLY WHEN ANY EMPLOYEE OR THIRD PARTY CLAIM IS ATTRIBUTABLE TO YOUR ERROR OR OMISSION IN FAILING TO ADVISE OF THE POTENTIAL OR ACTUAL RECORDING OR MONITORING OF ANY CONVERSATIONS.
11. CUSTOMER CANCELLATION
For Services purchased through FlickMax, you may cancel your Services at any time through My Account Page. For subscriptions purchased through an App Store, you must cancel in accordance with the applicable App Store Terms. See: Apple Cancellation Help and Google Cancellation Help.
12. REGULATORY CHANGES
To the extent that any Services provided hereunder are subject to the jurisdiction of the Federal Communications Commission (“FCC”) or any state public utilities commission or other regulatory agency, these terms and conditions shall at all times be subject to changes, modifications, orders and rulings by the FCC and/or state public utilities commission or other regulatory agency. FlickMax reserves the right to suspend, modify or terminate any Services without liability where any statute, regulation and/or ruling, including modifications thereto, by any regulatory agency (including the FCC), legislative body or court of competent jurisdiction, (i) prohibits, restricts or otherwise prevents FlickMax from furnishing such Services, or (ii) has a material negative impact on FlickMax’s performance hereunder.
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES
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