Last Updated: July, 2014
Welcome to OnCall [VOXSYNC INC.] (“OnCall”) a mobile and web application service that connects people in need with subject matter experts, which is accessible through http://on-call.me (the “Website”) and through our mobile application (the “App”). The Website and the App are collectively referred to as the “OnCall Platform”.
The Agreement is organized as follows:
To use the OnCall Platform You must be at least 18 years of age. If You are under 18 years of age, You may not, under any circumstances or for any reason, use the OnCall Platform. By using the OnCall Platform, You represent and warrant that You are at least 18 years of age.
2.1 To fully use the OnCall Platform, You must register for an account and pay any applicable fees as set out below. You agree that the information You provide to OnCall upon registration, and at all other times, will be true, accurate, current, and complete. You also agree that You will ensure that this information is kept accurate and up-to-date at all times.
2.2 You are responsible for all activity that occurs under Your account, including any unauthorized activity. You must not allow others to use Your account. You must safeguard the confidentiality of Your password. If You are using a computer or mobile device that others have access to, You must log out of Your account after using the OnCall Platform. You agree to accept responsibility for all activities that occur under Your account or password. You may be liable for the losses incurred by OnCall or others due to any unauthorized use, so if You have reason to believe that Your account is no longer secure (e.g., in the event of a loss, theft or unauthorized disclosure or use of Your account ID, password, or any credit, debit or charge card number, if applicable), then You agree to change Your password and notify us immediately at email@example.com.
3.1 If You register to use the OnCall Platform, You agree to pay to OnCall all the fees as posted on the Website or as agreed to from time to time. You will also pay or reimburse OnCall for all sales, use, excise, and other taxes and governmental charges including HST (other than income taxes), which OnCall is required to pay or collect in connection with the furnishing of the OnCall Platform under these Terms.
3.2 OnCall makes a variety of payment options available to you. If you choose to use the OnCall payment service, You agree that OnCall may authorize Your credit card for payment for any fees incurred under Your user name and password.
3.3 If you choose to use the OnCall payment service any undisputed fees will be charged to the credit card provided within 48 hours after being incurred. All other payments made to OnCall are non-refundable and will not be pro-rated. You may cancel Your account at anytime.
3.4 If you choose to use the OnCall payment service and a dispute arises between You and a subject matter expert engaged using the OnCall Platform, over fees incurred, OnCall will use commercially reasonable efforts to address Your concerns and help resolve the dispute. Disputes may be reported to OnCall using the following contact information: firstname.lastname@example.org, and/or +1 (877) 698-7464 toll-free weekdays 9am-5pm EST.
3.5 Payment terms of all charges by OnCall to You under these Terms are net thirty (30) days from date of charge. Any amount not paid when due will accrue a finance charge at the rate of 0.83 percent (0.83%) per month (10% per year), or the highest rate permitted by law, whichever is less, until fully paid.
3.6 OnCall may change the amount associated with its payment service and/or other fees to be paid by You to OnCall, at any time, in accordance with the pricing terms on its Website.
3.7 Unless otherwise stated, all dollar amounts referred to are in US Dollar currency, and all amounts owing from time to time under these Terms shall be payable in US Dollar currency.
4.1 To safeguard credit card information, OnCall encrypts all stored credit card numbers information in compliance with PCI-DSS and uses a restrictive firewall to protect stored data and uses SSL certificates to encrypt data during transfer between You and OnCall.
4.2 All financial information submitted by You to OnCall shall at no times be the responsibility of OnCall in any fashion whatsoever and may be shared with financial institutions as may be required. You shall indemnify and save OnCall harmless from any claim or demand resulting from the theft or loss of any financial information.
6. Individual Features and Services
When using the OnCall Platform, You may be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into these Terms.
7. Modification of these Terms
OnCall reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time, for any reason, without advanced notice or liability. Please check these Terms and any Guidelines periodically for changes. The currency of these Terms is indicated by the “Last Updated” date at the beginning of these Terms. Your continued use of the OnCall Platform after the posting of changes constitutes Your binding acceptance of such changes.
8.1 License Grant.
Subject to Your compliance with these Terms, OnCall hereby grants to You a limited, non-exclusive, non-transferable, freely revocable license to view, download (including, without limitation download to a portable device), print, and have printed select content for personal use, except as OnCall may restrict or block at the request of its content providers or on its own initiative.
8.2 Reservation of Rights.
OnCall reserves all rights not expressly granted in these Terms.
8.3 Prevention of Unauthorized Use.
OnCall reserves the right, in its sole discretion, to exercise whatever lawful means it deems necessary to determine and ensure Your compliance with the Terms and to prevent any actual or suspected unauthorized use of the OnCall Platform, including, but not limited to, monitoring Your use of the Platform, technological barriers, IP mapping, and directly contacting Your Internet Service Provider (ISP) regarding such unauthorized use. Notwithstanding the foregoing, OnCall shall be under no obligation to monitor, review, screen, edit, or otherwise control Your use of the OnCall Platform.
9. Advice and Content Disclaimer.
You understand that when using the OnCall Platform You may receive information, opinions, recommendations, and advice and be exposed to content from a variety of sources, and that OnCall is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such information, opinions, recommendations, advice, and/or content. You further understand and acknowledge that You may be exposed to information, opinions, recommendations, advice and/or content that is inaccurate, offensive, indecent or objectionable, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against OnCall with respect thereto. OnCall does not endorse any content, opinion, recommendation, or advice expressed through the OnCall Platform, and OnCall expressly disclaims any and all liability in connection with any such content, information, opinion, recommendation, or advice. If OnCall is notified that any content, information, opinion, recommendation, or advice allegedly does not conform to these Terms, OnCall may investigate the allegation and determine, in its sole discretion, whether to take any action and may do so at any time and without notice.
10.1 All information, software, data, text, messages, links, music or sound, photographs, graphics, video, messages or other material You provide in association with Your use of the Platform, or any portion thereof (“User Content”), are Your sole responsibility and You represent and Warrant that You have the right to use such User Content in association with Platform.
BY USING THE ONCALL PLATFORM YOU AGREE NOT TO:
10.2 use the OnCall Platform for any purposes other than to add User Content, and/or to access the OnCall Platform as such services are offered by OnCall;
10.3 rent, lease, loan, sell, resell, sublicense, distribute, display or otherwise transfer the licenses granted herein or any Materials (as defined in section 13, below);
10.4 post, upload, or distribute any defamatory, libelous, or inaccurate User Content;
10.5 post, upload, or distribute any User Content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, invasive of another’s privacy, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
10.6 use someone else’s name, an obscene name, a name that violates any third party right, or impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the OnCall Platform accounts of others without permission, forge another persons’ digital signature, misrepresent the source, identity, or content of information transmitted via the OnCall Platform, or perform any other similar fraudulent activity;
10.7 delete the copyright or other proprietary rights notices on the OnCall Platform or associated with any content available via the OnCall Platform;
10.8 make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the OnCall Platform (this includes, but is not limited to, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures);
10.9 use the OnCall Platform for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
10.10 defame, harass, abuse, threaten or defraud Users of the OnCall Platform, or collect, or attempt to collect, personal information about Users or third parties without their consent;
10.11 remove, circumvent, disable, damage or otherwise interfere with Technological Protection Measures (TPM) or Digital Rights Management (DRM) and/or other security-related features of the OnCall Platform features that prevent or restrict use or copying, printing, or sharing of any content accessible through the OnCall Platform, or features that enforce limitations on the use of the OnCall Platform or any content available via the OnCall Platform;
10.12 reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the OnCall Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
10.13 modify, adapt, translate or create derivative works based upon the OnCall Platform or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
10.14 intentionally interfere with or damage operation of the OnCall Platform or any user’s enjoyment of them, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
10.15 relay email from a third party’s mail servers without the permission of that third party;
10.16 use any robot, spider, scraper, or other automated means to access the OnCall Platform for any purpose or bypass any measures OnCall may use to prevent or restrict access to the OnCall Platform;
10.17 forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the OnCall Platform;
10.18 interfere with or disrupt the OnCall Platform or servers or networks connected to the OnCall Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the OnCall Platform; or
10.19 post, upload or distribute marketing material, advertisements, spam, content designed to aid search engine optimization, content in HTML format with links or redirects, or other content that in OnCall’s sole opinion detracts from the OnCall experience.
11. Third-Party Sites, Products and Services; Links.
The OnCall Platform may include links or references to other web sites or services solely as a convenience to Users (“Reference Sites”). Unless otherwise expressly stated by OnCall, OnCall has no control over, does not endorse and disclaims any liability for any such Reference Sites, applicable terms and conditions therein or the information, advice, recommendations, opinions, materials, products, or services contained on or accessible through Reference Sites. In addition, Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the OnCall Platform are solely between You and such advertiser. Access and use of Reference Sites, including the information, materials, products, and services on or available through Reference Sites is solely at Your own risk and OnCall shall not be held responsible for any loss or damage that You may incur as a consequence thereto.
12.1 OnCall Remedies.
You agree that OnCall, in its sole discretion, for any or no reason, and without penalty, may terminate any account (or any part thereof) You may have with OnCall or Your use of the OnCall Platform and remove and discard all or any part of Your account, User profile, and any of Your content, at any time. OnCall may also in its sole discretion and at any time discontinue providing access to the OnCall Platform, or any part thereof, with or without notice. You agree that any termination of Your access to the OnCall Platform or any account You may have or portion thereof may be effected without prior notice, and You agree that OnCall will not be liable to You or any third party for any such termination. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies OnCall may have at law or in equity.
12.2 Your Remedies.
Your only remedy with respect to any dissatisfaction with (i) the OnCall Platform, (ii) any term of these Terms, (iii) any policy or practice of OnCall in operating the OnCall Platform, or (iv) any information, opinions, recommendations, advice, and/or content transmitted through the OnCall Platform, is to close Your account and stop using the OnCall Platform and/or the App and/or Website. Subject to payment of any applicable Fees, You may terminate these Terms at any time by discontinuing use of OnCall.
13. Ownership; Proprietary Rights.
The OnCall Platform is owned and operated by OnCall. The visual interfaces, graphics, design, compilation, information, computer code (including source code and object code), products, services, and all other elements of the OnCall Platform provided by OnCall (the “Materials”) are protected by Canadian copyright, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. OnCall acknowledges that You retain ownership of any User Content You may post via OnCall, subject however to Your grant to OnCall of a perpetual, irrevocable, royalty-free, worldwide, nonexclusive license to reproduce, store, distribute, publicly display, and adapt them for use in conjunction with the operation of the OnCall Platform. All Materials contained on the OnCall Platform are the property of OnCall or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to OnCall or its affiliates and/or third-party licensors. Except as expressly authorized by OnCall, You agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials or the OnCall Platform. OnCall reserves all rights not expressly granted in these Terms.
You agree to indemnify, defend, save, and hold OnCall, its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of the OnCall Platform, any violation by You of these Terms, or any breach of the representations, warranties, and covenants made by You herein. OnCall reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify OnCall, and You agree to cooperate with OnCall’s defense of these claims. OnCall will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.
15. Disclaimers; No Warranties.
THE ONCALL PLATFORM, WEBSITE AND APP ARE OFFERED ON AN AS IS, AS AVAILABLE BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ONCALL, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY. NO ADVICE, OPINION OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ONCALL OR THROUGH THE ONCALL PLATFORM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 15, THE TERM “ONCALL” INCLUDES ONCALL’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
16.1 Limitation of Liability.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL ONCALL OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE MATERIALS AND CONTENT ON THE ONCALL PLATFORM OR ANY REFERENCE SITES, OR ANY OTHER INTERACTIONS WITH ONCALL, EVEN IF ONCALL OR AN ONCALL AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.2 Limitation of Damages.
IN NO EVENT WILL THE TOTAL LIABILITY OF ONCALL OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, YOUR USE OF THE ONCALL PLATFORM OR YOUR INTERACTION WITH OTHER ONCALL PLATFORM USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE ONCALL PLATFORM.
16.3 Reference Sites.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN ONCALL AND RECEIVED THROUGH OR ADVERTISED ON THE ONCALL PLATFORM OR RECEIVED THROUGH ANY REFERENCE SITES.
16.4 Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT ONCALL HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND ONCALL, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND ONCALL. ONCALL WOULD NOT BE ABLE TO PROVIDE THE ONCALL PLATFORM TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
16.5 Limitations by Applicable Law.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
17.1 Notice. OnCall may provide You with notices, including those regarding changes to OnCall’s terms and conditions, by email, regular mail, or postings on the OnCall Platform.
17.2 Waiver. The failure of OnCall to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by OnCall.
17.3 Governing Law. These Terms will be governed by and construed in accordance with the laws of the province of Ontario, and the federal laws of Canada applicable therein, without giving effect to any principles of conflicts of law.
17.4 Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or OnCall will be filed only in the province of Ontario or the federal courts of Canada, and You hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.
17.5 Severability. If any provision of these Terms including any Guidelines is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
17.6 Assignment. These Terms and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by OnCall without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
17.7 Survival. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, sections 7 to 17.
17.8 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
17.9 Entire Agreement. These Terms (including all Guidelines and terms incorporated herein) are the entire agreement between You and OnCall relating to the subject matter herein.
17.10 Language. You and OnCall confirm that it is their wish that these Terms, as well as all other documents relating hereto, including all notices, have been and shall be drawn up in the English language only. Toi et OnCall aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédigés en langue anglaise.