In order to use the Tropo API (the “Tropo API” or “API”), access the information contained on the Tropo website (the “Website”) or make use of the services described in sections 1.1 and 1.2 (the “Service” or “Services”), You (hereinafter referred to as “You”, “Your” or “Yourself”) must first read this agreement (the “Agreement”) and accept it. You may not avail Yourself of the Website or Services if You do not accept this Agreement and the terms therein. By using the Services and the Tropo websites, you consent to the terms and conditions.

By using the Website or the Services, You represent that You have read and agree to the terms and conditions of this Agreement, which also include and incorporate Tropo’s Acceptable Use Policy and Privacy Policy. These terms and conditions will remain in effect throughout Your use of the Services and continue after this Agreement expires, cancels or is terminated. These terms and conditions are legally binding should You choose to register for the Service. You may not use the Services and may not accept the terms if (a) You are not of legal age to form a binding contract with us, or (b) You are a person barred from receiving the Services under the laws of the United States or other countries including the country in which You are a resident or from which You use the Services.

The terms and conditions set forth herein may be amended in our sole and absolute discretion from time to time, and such amended terms and conditions shall be effective immediately upon posting to the Website. Your continued use of the Service after such posting will constitute acceptance by You of such amendments. It is Your responsibility to review these Terms of Service frequently and remain informed about any changes to them, so we encourage You to visit this page often.

Grant of Rights to Use Services and Customer Responsibilities

1.1 Tropo provides an API platform that enables customers to operate interactive voice response applications. Each API server includes interfaces and associated software that support a variety of Internet, speech, and telephone capabilities. The API provides a platform for interfacing with Applications and enables such Applications to control inbound and outbound traffic communicated through the API. Tropo offers inbound and outbound calling as separate services. Subject to Your acceptance of and compliance with this Agreement and with the payment requirements for the Services, Tropo hereby grants You a limited, non-exclusive, non-transferable, revocable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement. Unless explicitly stated otherwise, any new features provided by Tropo that augment or enhance the current Services shall also constitute “Services” and shall be subject to these terms and conditions. You may not, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Services for any purpose whatsoever. You may not allow any unauthorized third party to access the Services for any purpose whatsoever. All rights not expressly granted under this Agreement are retained by Tropo.

1.2 You may write a software application or Website (an “Application”) that interfaces with the Services. You acknowledge that we may change, deprecate or republish APIs and any feature of the Service from time to time, and that it is Your responsibility to ensure that calls or requests You make to or via our Service are compatible with then-current APIs for the Service. Tropo will attempt to inform You of any changes with reasonable notice so You can adjust Your Application, but we are under no obligation to do so.

1.3 You and any Applications that You may build, distribute, or otherwise create may not make network calls or requests to the Services, or receive phone calls via the Service, in a manner that violates the terms of the Acceptable Use Policy or other terms of this Agreement. You represent and warrant that You are aware of, understand and have complied and will comply with all U.S. and foreign telecommunications laws and regulations applicable to your use of the Services and/or any service(s) into which You incorporate the Services. You will indemnify and hold Tropo harmless from and against any loss, damage and expense arising from any and all threatened or actual claims, demands or actions based upon any breach of the warranties and representations given by You in this Section. You acknowledge that Your rights to use the Services are non-exclusive.

1.4 You may not remove, obscure, or alter any notice of any Tropo trademark, service mark or other intellectual property or proprietary right appearing on the Website or contained within the Services.

1.5 Provided that You comply with the terms of this Agreement 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.

1.6 You are personally responsible for all traffic originating from Your Applications using Your account credentials to the Services. As such, You should protect Your authentication keys and security credentials. Actions taken using Your credentials shall be deemed to be actions taken by You, with all consequences including service termination, civil and criminal penalties.

1.7 We may make available to You, for Your installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation (the “Tropo Properties”). Subject to Your acceptance of this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, and payment if and as required for Your right to use the subject Service, we hereby grant to You, without the right to sublicense, a limited, non-exclusive, non-transferable license during the Term of this Agreement (as defined in Section 2.1), under our intellectual property or proprietary rights in the Tropo Properties, only to install, copy and use the Tropo Properties solely in connection with and as necessary for Your use of such Services and solely to the extent in compliance with all the terms and conditions of this Agreement.

(a) The Tropo Properties may include, without limitation:

• The Tropo Website;
• Tropo APIs and Tropo Markup Language;
• Specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of a Service and its related APIs and technology;

(b)Tropo may make available under another license agreement, such as an open source agreement, additional content or software. Any such content or software will be clearly marked with such a license indicating the usage rights available for that content or software. For such content or software released pursuant to an open license, Tropo encourages You to modify, alter, tamper with, repair and/or create derivative works consistent with such license. Such content or software may include:

• Developer tools, such as software development kits or sample code, for use in connection with the APIs;
• Articles and documentation for use in connection with the use and implementation of the APIs (collectively, “Documentation”);

(c) Except as may be expressly authorized under this Agreement:

• You may not, and may not attempt to, modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Tropo Properties.
• You may not, and may not attempt to, reverse engineer, disassemble, or decompile the Tropo Properties or the Services or apply any other process or procedure to derive the source code of any software included in the Tropo Properties.

1.8 For purposes of this Agreement, Tropo hereby grants to You a non-transferable, non-sublicenseable, non-exclusive license during the Term of this Agreement to display the trade names, trademarks, service marks, logos, domain names of Tropo (each, a “Tropo Mark”) for the purpose of promoting or advertising that You use the Service. In return You hereby grant Tropo a non-transferable, non-sublicenseable, non-exclusive license during the Term of this Agreement to display Your trade names, trademarks, service marks, logos, domain names and the like for the purpose of promoting or advertising that You use the Service. In using Tropo Marks, You may not: (i) display a Tropo Mark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by Tropo; (ii) use Tropo’s Marks to disparage Tropo or its products or services; or (iii) display a Tropo Mark on a site that violates any law or regulation. Notwithstanding the above, Tropo may determine in its sole discretion whether its marks may be used in connection with Your Application. Furthermore, we may modify any Tropo Marks provided to You at any time, and upon notice, You will use only the modified Tropo Marks and not the old Tropo Marks. Other than as specified in this Agreement, You may not use any Tropo Mark unless You obtain our prior written consent.

1.9 The rights granted by us in this Agreement with respect to the Tropo Properties, the Tropo Marks and the Services are nonexclusive, and we reserve the right to: (i) act as a developer of products or services related to any of the products that You may develop in connection with the Tropo Properties or via Your use of the Services; and (ii) appoint third parties as developers or systems integrators who may offer products or services which compete with Your Application.

1.10 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 account and data therein.

Term, Termination and Suspension

2.1 The term (“Term”) of this Agreement will commence once You accept this Agreement as provided above. The Agreement will remain in effect until terminated by You or us in accordance with this Section 2.

2.2 You may terminate this Agreement for any reason or no reason at all, at Your convenience, by closing Your account for any Service for which we provide an account closing mechanism.

2.3 We may suspend Your right and license to use any or all Services or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to You), for any reason or for no reason, at our discretion at any time by providing You up to thirty (30) days’ advance notice in accordance with the notice provisions set forth in Section 9 below.

2.4 We may suspend Your right and license to use the Service or terminate this Agreement in its entirety (and, accordingly, Your right to use the Service), for cause effective as set forth below:

2.4.1 Immediately upon our notice to You in accordance with the notice provisions set forth in Section 9 below if (i) You violate any provision of the Acceptable Use Policy or we have reason to believe that You have violated the Acceptable Use Policy, (ii) there is an unusual spike or increase in Your use of the Services for which we determine, in our sole discretion, such traffic or use may be fraudulent or negatively impacting the operating capability of the Service; (iii) we determine, in our sole discretion, that our provision of any of the Services to You is prohibited by applicable law, or has become impractical or unfeasible for any legal or regulatory reason; or (iv) subject to applicable law, upon Your liquidation, commencement of dissolution proceedings, disposal of Your assets, failure to continue Your business, assignment for the benefit of creditors, or if You become the subject of a voluntary or involuntary bankruptcy or similar proceeding.

2.4.2 Immediately and without notice if You are in default of any payment obligation with respect to any of the Services or if any payment mechanism You have provided to us is invalid or charges are refused for such payment mechanism.

2.4.3 Five (5) days following our provision of notice to You in accordance with the notice provisions set forth in Section 9 below if You breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such 5-day period.

2.5 Effect of Suspension or Termination.

2.5.1 Upon our suspension of Your use of any Services, in whole or in part, for any reason: (i) fees will continue to accrue for any Services that are still in use by You, notwithstanding the suspension; (ii) You remain liable for all fees, charges and any other obligations You have incurred through the date of suspension with respect to the Services; and (iii) all of Your rights with respect to the Services shall be terminated during the period of the suspension.

2.5.2 Upon termination of this Agreement for any reason: (i) You remain liable for all fees, charges and any other obligations You have incurred through the date of termination with respect to the Services; and (ii) all of Your rights under this Agreement shall immediately terminate.

2.6 In the event this Agreement is terminated for any reason, Sections 5, 6, 7 and 8 will survive any such termination.

2.7 Following the suspension or termination of Your right to use the Services by us or by You for any reason other than a termination for cause, You shall be entitled to take advantage of any post-termination assistance we may generally elect to make available with respect to the Services such as data retrieval arrangements. We may also endeavor to provide You with unique post-suspension or post-termination assistance, but we shall be under no obligation to do so. Your right to take advantage of any such assistance, whether generally made available with respect to the Services or made available uniquely to You, shall be conditioned upon Your acceptance of and compliance with any fees and terms we specify for such assistance.

3. Downtime and Service Suspensions; Security

3.1 The Services are provided on a best-efforts basis. In addition to our rights to terminate or suspend Services to You as described in Section 2 above, You acknowledge that: (i) Your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to You, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to You or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Suspensions”). Without limitation to Section 6, 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 as a result of any Service Suspension. To the extent we are able, we will endeavor to provide You notice of any Service Suspension in accordance with the notice provisions set forth in Section 9 below and to post updates regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.

3.2 We strive to keep information you provide to us secure, but cannot guarantee that we will be successful at doing so. Accordingly, without limitation to Section 6 below, You acknowledge that You bear sole responsibility for adequate security, protection and backup of all content associated with Your account, including all audio recordings, communications logs, and content generated by third parties, including users of your Applications (together, “Your content.”)  We strongly encourage You, where available and appropriate, to use encryption technology to protect Your content from unauthorized access and to routinely archive Your content. We will have no liability to You for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your content.

4. Fees

4.1 In its sole discretion, Tropo shall determine whether You are eligible for a free trial subscription to its Services, which terms of the free trial are set forth at www.tropo.com. Free trials are limited to one per person, and if we find that You have created multiple free trial accounts, we reserve the right to suspend those accounts and take actions to prevent additional violations.

4.2 If You have subscribed to the full version of our Services, then You agree to pay applicable fees (including any minimum subscription fees) as set forth at www.tropo.com/pricing/. All payments of fees for the use of our Services will be pre-paid and are non-refundable. Access to the full version of our Services will not be made available until Tropo receives payment of fees from You. If You elect to use our Service again in the future You will be required to prepay applicable fees before access to our Services will be made available for Your use. We may increase or add new fees for any existing Service or feature by giving You 30 days’ advance notice. Call and Message Rates are based on variable market pricing and may therefore be subject to change from month to month without prior written notice. Rates for inbound and outbound services may differ. All fees payable by You are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect any taxes from You. Tropo reserves the right to pass through to You by line item any regulatory fees or assessments that Tropo incurs as a result of its offering of the Services, including, without limitation Universal Service Fund, TRS Fund, LNP, NANPA, and federal regulatory fees.

4.3 We may specify the manner in which You will pay any fees, and any such payment shall be subject to our general accounts receivable policies from time to time in effect. All amounts payable by You under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, You shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, You shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority.

4.4 Should You have any dispute as to fees associated with your account, please contact us at support@tropo.com within 30 days of the date of the activity that generated such dispute, and we will attempt to resolve the matter. Any and all refunds issued to resolve such a dispute shall be issued as credits to Your account, but in no event shall there be any cash refunds. Disputes older than 30 days shall not be entitled to any refunds or credits.

Intellectual Property

5.1 Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the Tropo Properties; (iii) the Tropo Marks; and (iv) any other technology and software that we provide or use to provide the Services and the Tropo Properties. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the Tropo Properties, the Tropo Marks, or such other technology and software, except for the limited use and access rights described in this Agreement.

5.2 Tropo may, at its discretion, offer certain Software Development Kits, tools, application samples, or documentation under an open source license. Any such products will be marked with copyright details, and those copyrights will apply to those and only those documents. Tropo reserves all rights to any documents, tools, services, technologies and the like not designated with an open license.

5.3 Other than the rights and interests expressly set forth in this Agreement and excluding any and all works derived from Tropo Properties, You reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) content and data You may send to us or use as part of Your use of any Services (“Your Content”); and (ii) Your Applications.

5.4 In the event You elect, in connection with any of the Services, to communicate to us suggestions for improvements to the Services, the Tropo Properties or the Tropo Marks (collectively, “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 Tropo via comments, forums, emails and the like (collectively, “Communications”) shall be considered the property of Tropo. 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.

5.5 During and after the Term of the Agreement, with respect to any of the Services that You elect to use, You will not assert, nor will You authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of us), sublicensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.

6. Representations and Warranties; Disclaimers; Limitations of Liability

6.1 You represent and warrant that You will not use the Website (including our forums and comments sections), Services, Tropo Properties, Tropo Marks, Your Application or Your Content in a manner that violates the Acceptable Use Policy. To this effect, we ask that You take reasonable precautions to promote best practices. Although Tropo does not assume the duty or obligation to monitor any materials created, posted or uploaded by You or any third parties, Tropo reserves the right, in its sole and absolute discretion, to monitor any and all materials posted or uploaded by You or any third parties at any time without prior notice to ensure that they conform to any usage guidelines or policies (including our Acceptable Use Policy) relating to our Website or Services.

6.2 You also acknowledge and understand that we do NOT currently allow You to access any 911 or similar emergency services (no traditional 911, E911, or similar access to emergency services). The Services are not intended to replace any primary phone or interconnected messaging service (as that term is defined in 47 C.F.R. § 20.18(n)), such as a traditional landline or mobile phone that may be used to contact emergency services. You acknowledge and agree that the Services are not designed, intended, authorized or warranted to be suitable for hosting life-support applications or other critical applications where the failure or potential failure of the Services can cause injury, harm, death, or other grave problems, including, without limitation, loss of aircraft control, hospital life-support systems, and delays in getting medical care or other emergency services.  You represent and warrant that You (1) will not use or permit the use of the Services to support such critical applications as described herein. (2) will notify your users that your Application is not a replacement for primary phone or interconnected text messaging service, and (3) will inform your users that they should contact emergency services using means other than your ApplicationYou will indemnify and hold Tropo harmless from and against any loss, damage and expense arising from any and all threatened or actual claims, demands or actions based upon any breach of the warranties and representations given by You in this Section.

6.3 You represent and warrant: (i) that You are solely responsible for the development, operation, and maintenance of Your Application and for Your Content, including without limitation, the accuracy, appropriateness and completeness of Your Content and all product-related materials and descriptions; (ii) that You have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Application and Your Content; (iii) that neither Your Application nor Your Content (a) violates, misappropriates or infringes any rights of us or any third party, (b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner 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; (iv) that neither Your Application nor Your Content contains any harmful components; and (v) to the extent to which You use any of the Tropo Marks, that You will conduct Your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of Tropo. You also represent and warrant that You are responsible for any charges incurred by virtue of Your use of the Application, no matter whether the Application acted in error.

6.4 You understand that You may use any phone number (including any previously-provisioned direct inward toll-free numbers or vanity numbers) assigned or ported in to Your account.  Phone numbers provisioned to Your account for development purposes may be changed or revoked at any time without warning.

6.5 You represent and warrant that you have read and understood the Acceptable Use Policy and the Privacy Policy, and You agree to abide by their terms, where applicable, including as incorporated by reference herein. By way of example, and not as a limitation, You agree not to violate any provisions of the Acceptable Use Policy. You further agree to abide by all applicable local, state, national, foreign and international laws and regulations and that You will be solely responsible for all acts or omissions that occur under Your account or password, including the content of Your transmissions through the Service. Among the laws You agree to abide by are U.S. export laws. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

6.6 You represent and warrant that without Tropo’s express written consent You will not use, and will not authorize any third party to use, any Public Software (as defined below) in connection with the Services in any manner that requires, pursuant to the license applicable to such Public Software, that any Tropo Properties or Services be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients. With respect to any Feedback or Communications, You represent and warrant that such Feedback and Communications, in whole or in part, contributed by or through You, (i) is legally distributable by You, either because You own the copyright or because You have fully complied with any copyright terms associated with the software or content, (ii) contains no third party software or any software that may be considered Public Software and (iii) does not violate, misappropriate or infringe any intellectual property rights of any third party. “Public Software” means any software, documentation or other material that contains, or is derived (in whole or in part) from, any software, documentation or other material that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, but not limited to software, documentation or other material licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (i) GNU’s General Public License (GPL), Lesser/Library GPL (LGPL), or Free Documentation License, (ii) The Artistic License (e.g., PERL), (iii) the Mozilla Public License, (iv) the Netscape Public License, (v) the Sun Community Source License (SCSL), (vi) the Sun Industry Standards License (SISL), (vii) the BSD License and (viii) the Apache License.

6.7 You represent and warrant that: (i) the information You provide in connection with Your registration for the Services is accurate and complete; (ii) You are duly authorized to do business in the jurisdiction where You operate; and (iii) You are an authorized representative of Your entity duly authorized to access the Services and to legally bind You to this Agreement and all transactions conducted under Your account.

6.8 While Tropo strives to ensure that the information contained on the Website is accurate and reliable, Tropo makes no warranties as to the accuracy, correctness or completeness of any such information and assumes no liability or responsibility for any omissions or errors in the content of this Website. Tropo reserves the right to revise the information contained on this Website at any time, in its sole discretion without any obligation to notify past, current or prospective visitors.

6.9 Tropo makes no representations about any other web site that you may access through this one. When you access a non-Tropo web site, please understand that it is independent from us, and that we have no control over the content on that web site. In addition, a link to a non-Tropo web site does not mean that we endorse or accept any responsibility for the content, or the use, of such web site. It is up to you to take precautions to ensure that whatever you select for your use is free of viruses, worms, trojan horses and other items of a destructive nature.

6.10 TROPO PROPERTIES, THE TROPO MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS.” WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICE OFFERINGS. WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. TROPO MAKES NO REPRESENTATIONS, WARRANTIES, GUARANTIES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY OF THE INFORMATION CONTAINED ON THE WEBSITE. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

6.11 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 You agree that You shall, without limitation, be solely responsible for:

6.11.1 the technical operation of Your Application and all related equipment;

6.11.2 the accuracy and appropriateness of any materials posted on or within Your Application (including, among other things, any product-related materials);

6.11.3 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;

6.11.4 ensuring that Your Application accurately and adequately discloses, either through a privacy policy or otherwise, how You collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors’ browsers; and

6.11.5 any of Your users’ or customers’ claims relating to Your Application or any Services utilized in connection with Your Application.

6.11.6 ensuring that Your application does not use Tropo to collect, store, receive, transmit or disseminate protected health information, as defined under the Health Insurance Portability and Accountability Act and its implementing regulations.

6.11.7 ensuring that You use commercially reasonable efforts to safeguard protected information of any kind; that such information is protected to the full extent required by law; and that, if the safeguards required are unavailable, impracticable or otherwise not implemented, no such information is collected, stored, received, transmitted or disseminated as a result of Your application.  Protected information includes but is not limited to personally identifiable information and personally identifiable financial information defined as “nonpublic personal information” under the Gramm-Leach-Bliley Act and its implementing regulations.

6.12 NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), THAT IN ANY WAY RELATE TO THIS AGREEMENT, YOUR USE OF THE SERVICES, OR THE TROPO PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT; (iv) OR LOST DATA, RE-RUN TIME, INACCURATE OUTPUT, WORK DELAYS OR LOST PROFITS RESULTING FROM YOUR USE OF THE WEBSITE OR THE INFORMATION CONTAINED THEREIN. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES DURING THE PRECEDING TWELVE (12) MONTHS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

6.13 THE PRODUCTS DO NOT AND ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS TO ANY EMERGENCY SERVICES. “EMERGENCY SERVICES” SHALL MEAN SERVICES THAT ALLOW A USER TO CONNECT WITH EMERGENCY SERVICES PERSONNEL OR PUBLIC SAFETY ANSWERING POINTS, SUCH AS 911 SERVICES, E911 SERVICES, AND SIMILAR SERVICES EMPLOYING EMERGENCY TELEPHONE NUMBERS TO COMMUNICATE WITH OR DISPATCH EMERGENCY SERVICES PERSONNEL. NEITHER TROPO NOR ITS OFFICERS, EMPLOYEES OR AFFILIATES MAY BE HELD LIABLE WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER FORM OF LIABILITY FOR ANY CLAIM, DAMAGE, OR LOSS (AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION), ARISING FROM OR RELATING TO YOUR INABILITY TO USE TROPO OR ITS SERVICES TO CONTACT ANY EMERGENCY SERVICES, OR YOUR FAILURE TO MAKE ADDITIONAL ARRANGEMENTS TO ACCESS EMERGENCY SERVICES.

7. Indemnification

7.1 You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim that arises out of (i) Your use of the Services, Tropo Properties and/or Tropo Marks in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, the Acceptable Use Policy, and/or applicable law, (ii) Your Application, Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Your Application and/or Your Content, (iii) Your violation of any term or condition of this Agreement or any applicable additional policies, including without limitation, Your representations and warranties, (iv) You or Your employees’ or personnel’s negligence or willful misconduct, or (v) Your use of the Website or any of the Services provided on or made accessible by the Website.

7.2 We agree to promptly notify You of any claim subject to indemnification; provided that our failure to promptly notify You shall not affect Your obligations hereunder except to the extent that our failure to promptly notify You delays or prejudices Your ability to defend the claim. At our option, You will have the right to defend against any such claim with counsel of Your own choosing (subject to our written consent) and to settle such claim as You deem appropriate, provided that You shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.

8. Disputes

8.1 Notwithstanding anything to the contrary, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Tropo’s or any third party’s intellectual property and/or proprietary rights. Any dispute hereunder shall be adjudicated in any state or federal court in Santa Clara, California, and You consent to exclusive jurisdiction and venue in such courts. You further acknowledge that our rights in the Tropo Properties and the Tropo Marks are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages.

8.2 By using the Services, You agree that the laws of the State of California, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between You and us.

9. Notices

9.1 Notices made by us under this Agreement for You or Your account specifically (e.g., notices of breach and/or suspension) will be provided to You via a notification message displayed on your account page or via the email address provided to us in Your registration for the Services or in any updated email address You provide to us in accordance with standard account information update procedures we may provide from time to time. It is Your responsibility to keep Your email address current and You will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not You actually receive the email.

9.2 For notices made by You to us under this Agreement and for questions regarding this Agreement or the Services, You may contact Tropo as follows: by US Postal Mail at Tropo LLC, 170 West Tasman Drive, San Jose, CA 95134, or by contacting us at support@tropo.com.

10. Text Messaging

10.1 Tropo does not offer interconnected text message service. You can use the API to develop Applications that send text messages to sets of users defined by You in Your Applications. If You have available funds in your account Your Applications can send text messages – see https://www.tropo.com/ for full details of the functionality and destinations available to Your Applications. The use of text messaging is governed by the terms herein, including our Acceptable Use Policy.

10.2 The charges payable for Application transmitted text messages consist of a per-message rate as set out at https://www.tropo.com/pricing/.

10.3 Each text message has a limit of 160 characters.  If Your Application attempts to transmit a longer message it will be broken down into several messages and You will be charged accordingly for each message sent.  If Your Application attempts to transmit a character that is not supported by the GSM character set, the format of the text may be converted to Unicode, which is subject to a 70 character limit per message.

10.4 Your Applications can send text messages to more than one person at a time (subject to any restrictions on the overall number of concurrent messages that may be imposed by Tropo or its partners from time-to-time); however please note You will be charged for each message sent. You agree not to send any unsolicited text message and/or text message containing commercial material or material over which you do not have rights of dissemination.

10.5 If Tropo cannot (for whatever reason) send the message requested by Your Application, the status of your message will be shown as “pending”.  Tropo will continue to try and send the message for up to 24 hours and if we cannot properly send the message within this timeframe then the text message charge will be refunded to Your account balance automatically.

10.6 You acknowledge that in connection with Your use of text messaging capabilities, including the use by Your customers and subscribers (“End-Users”), Tropo may receive domain names, End-User names, addresses, passwords, telephone and device numbers, the content of messages, data files and other data and information provided by End-Users or in connection with text messaging (collectively “User Information”). Tropo exercises no control whatsoever over any information, text, data, color or black and white images, moving and still images, and sound recordings (collectively “Mobile Content”) or User Information, including the content of messages, information that may be transmitted and/or generated using text messaging. Tropo’s responsibilities are limited to storing the User Information, using reasonable means to protect the User Information, and transmitting the User Information. Tropo has no obligation and undertakes no responsibility to review User Information to determine whether any such User Information may violate any applicable law or regulation, or create liability to, or on the part of, any third party. You are solely responsible for the content of all User Information and transmissions thereof and use of text messaging. Without prejudice to the foregoing, Tropo reserves the right to monitor Your and End-Users’ use of text messaging for purposes of verifying compliance with the terms and conditions of the Agreement and all terms herein provided, however, that Tropo disclaims any obligation to monitor, filter, or edit Your or End-User’s Mobile Content.

11. Miscellaneous Provisions

11.1 Responsibility. If You authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, You shall be deemed to have taken the action Yourself.

11.2 Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.

11.3 Waivers. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.

11.4 Successors and Assigns. This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.

11.5 Entire Agreement. This Agreement incorporates by reference all policies and guidelines posted on the Tropo Website and as may be modified thereafter (including the Acceptable Use Policy and the Privacy Policy) and constitutes the entire agreement between You and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between You and us, whether written or oral, regarding such subject matter.

11.6 No Endorsement. You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of Your Applications or Your Content.