We (ZipZap, LLC) will provide you with our services under the following terms and conditions. By registering for ZipZap services or using our services, you accept this agreement and all of its terms and conditions.
ZIPZAP APPLICATIONS AND SERVICES DO NOT PROVIDE 911 SERVICE. YOU MUST MAKE ALTERNATIVE ARRANGEMENTS TO PLACE 911 CALLS, SUCH AS USING A TRADITIONAL WIRELINE OR CELLULAR TELEPHONE, AND YOU SHOULD NOT RELY ON ZIPZAP TO CALL 911.
1.1 Provision of Services.
We will provide you with the services activated by you from time to time subject to your compliance with this agreement, as determined in our reasonable discretion. We may decide not to provide services to you for any lawful reason, and may request that you provide us with any information we reasonably require to determine whether you qualify for our services. Use of our services are also subject to the terms and conditions of end-user license agreements that you agree to as part of the registration process.
1.2 Modification of the Services or this Agreement.
We reserve the right to modify the functionality of the services and/or this agreement at any time without notice. We may provide thirty (30) days prior written notice to you in a form determined by us in the event we determine in our sole discretion that such modification does not enhance, improve, or reduce the price of the services to ZipZap users generally. You have the right to terminate our services by providing us written notice within five (5) days following receipt of such notice if you do not accept any such modifications. Failure to provide such notice constitutes your acceptance of any such changes.
1.3 Calculation of Usage Charges
Charges for a call start when our system receives a call or places one on your behalf, and end after the call is disconnected from our system. Calls on hold, in menus, in voice mail, or connected to our system in any other way incur charges for as long as they are connected. This includes the time you may spend recording greetings or checking voice mail over the phone. Checking your voice mail using the ZipZap App or over the internet does not incur usage charges. All usage is rounded up to whole minutes. All usage charges are rounded up to whole cents at the end of the call.
1.4 Toll Avoidance.
By selecting the area code you wish to have as part of the telephone number assigned to you in connection with your use of the services, you hereby represent and warrant that you have the legal right to use this area code. We reserve the right to change the area code and telephone number assigned to you if it determines that you are not entitled to use that area code.
1.5 Emergency 911 Services.
ZIPZAP APPLICATIONS AND SERVICES DO NOT CURRENTLY PROVIDE 911 SERVICE. YOU MUST MAKE ALTERNATIVE ARRANGEMENTS TO PLACE 911 CALLS, SUCH AS USING A TRADITIONAL WIRELINE OR CELLULAR TELEPHONE, AND YOU SHOULD NOT RELY ON ZIPZAP TO CALL 911. ZipZap reserves the right to immediately and without notice require all users activate 911 Emergency services on at least one of their telephone numbers. Enhanced 911, the 911 service which delivers physical address information to your local Public Safety Answering Point (PSAP) is not guaranteed. Enhanced 911 may not be available in your location, and even if available your address information may not be passed to the PSAP dispatcher. On such occasions you will be required to give the dispatcher the location of your emergency in order to receive emergency assistance.
Due to the nature and dependence of ZipZap services on wireless services and the internet, we cannot and do not guarantee your emergency call will function properly. Loss of power, loss of internet access and other conditions may cause 911 to be inoperable. You agree that we do not have control over such situations and you furthermore agree that ZipZap and our contractors, executives, members, customers, agents, employees, carriers, 911 providers, and any other party associated with us shall not be liable for any failure of 911 calls or Emergency 911 services, even if it is determined that it is the fault of ZipZap or our associates. You also agree that you will notify your employees, users, contractors, agents, associates, shareholders, partners, and anyone who may use ZipZap services of such limitations.
2.1 Credit Verification.
You must have and keep satisfactory credit to receive and continue to receive our services. We may verify your credit before agreeing to provide services to you and at any time while we provide services to you. We may require a guaranty of payment from an individual or third party, or establish a pre-set credit limit on your account with the requirement that you immediately pay any amount in excess of your credit limit. If we determine in our sole discretion, that payment for services may not be made when due, we may suspend services to you and require that you provide a deposit or a guarantee of payment before we resumes services to you.
You agree that we are permitted to charge your credit card or ACH a monthly subscription fee, any applicable sales tax, any usage charges and any other charges you may incur in connection with your use of our services. You are liable for all charges related to services used or accessed through your account regardless of who actually utilizes the services. The subscription fee will be billed at the beginning of your subscription and on each monthly renewal thereafter unless and until you cancel. We will automatically charge your credit card or ACH all fees each month on the calendar day corresponding to the commencement of your membership. In the event your membership began on a day not contained in a given month, we will bill your credit card on the last day of such month. For example, if you became a member on January 31st, your card will be billed on February 28th. All fees and charges are nonrefundable. If you want to use a different credit card or if there is a change in your credit card validity or expiration date, please call customer service at 1-800-609-0690. If your credit card or ACH is declined, we will automatically re-bill you up to three (3) times during the next billing cycle in order to keep your account current. If we are unsuccessful in charging your credit card or ACH after three (3) attempts, your access to the services will be immediately suspended. We reserve the right to attempt collection of any past due balance after your account has been suspended, even if your account has been cancelled.
Included minutes in our service plans apply to inbound calls to your local numbers and outbound calls to the 48 contiguous United States. Inbound calls to your toll-free numbers in excess of the 250 included minutes per month will be billed at the rate of $0.049 per minute. For current rates for calls outside the 48 contiguous United States, please visit www.zipzap.com/rates or contact customer service at: 1-800-609-0690. International rates are subject to change at any time without prior notice. Please check the specific applicable rate before making a call to a locale outside the 48 contiguous United States, including all international calls. For conference calls, you will incur separate usage charges for all connected parties at your regular per-minute rates.
You must enable 911 Emergency services on at least one of your telephone numbers, and on every telephone number you wish to use as a DID. You will be charged a non-refundable regulatory recovery fee of $1.49 per month for each number enabled with 911 Emergency services. Failure to enable 911 Emergency services will result in a non-refundable $85 surcharge for each 911 call.
We reserve the right to invoice you for taxes, regulatory related obligations and other charges levied by federal, state or local authorities, or foreign governments on the services, or mandated to be paid in proportion to receipts from services should ZipZap pay or be required to pay such liabilities. Taxes, regulatory-related obligations and other charges not directly paid by us are not invoiced to you, but payment to the taxing or levying authority of any such applicable taxes, regulatory-related obligations and other charges due from you are your responsibility. Our charges may include Federal Universal Service, Regulatory and Administrative Charges, and we may also include other charges related to our governmental costs. If you claim any tax exemption, you must provide us with a valid tax exemption certificate. Any tax exemption applies only from the date that we receive and process such valid tax exemption certificate.
2.4 Late Payments.
Any payment received more than five (5) days after the date due will incur a late fee of $10.00 as liquidated damages and not as a penalty, or the maximum amount permitted by applicable law, whichever is less. You agree that this amount fairly compensates us for the accounting, administration and other fees we incur as a result of a late payment. In addition to any other remedies we may have, we reserve the right to suspend services if you fail to pay any fees when due. Any request by you to resume services following any such suspension will be at our sole discretion and will be subject to a reactivation fee. You agree to pay all legal and collection fees arising from our efforts to collect any past due amounts from you to the maximum extent allowed by law. Acceptance by us of late payments or partial payments (even if marked “Paid in full” does not waive our right to collect all amounts that you owe.
2.5 Non-Sufficient Funds Fee.
A $20.00 Non-Sufficient Funds (NSF) fee will be incurred for each ACH or check payment returned due to non-sufficient funds. An NSF item is any item that will not pay at the time of processing due to inadequate funds in the specified account.
You have the right to request reactivation of a closed account within a maximum of six months from the original cancellation date. Any reactivation request must include a one-time $20.00 reactivation fee, the first month of service fees, plus any previously-owed past due amounts. We cannot guarantee that the same telephone number or rate plan previously provided will be available at the time of reactivation.
2.7 Modification of Fees.
We reserve the right to increase services fees at any time upon thirty (30) days prior notice. You will have the right to terminate services by providing us written notice within fifteen (15) days following receipt of notice of such increase. Failure to terminate will constitute your acceptance of such increase.
3. CREDITS FOR SERVICE INTERRUPTION
3.1 Granting of Credit.
The services may be temporarily interrupted, delayed or otherwise limited for a variety of reasons. While we do not assume any duty to provide uninterrupted services to you, a credit will be given for certain services interruptions as described below. No credit will be given for services interruptions caused by your negligent or willful actions, the failure or incompatibility of equipment, software or services not provided by us, or causes beyond our reasonable control.
3.2 Calculation of Credit.
You agree that our sole liability for any interruption, delay and/or failures of the services, whether caused by us or not, shall be limited as follows. Credits for a services interruption will be given only when the interruption is continuous for twenty-four (24) hours or more, and such credit shall be equal to a pro-rata monthly service fees for the services rendered unusable by the interruption. Credits will be given only if you report the services interruption to us, and for the purpose of credit calculation the interruption will be measured from the time you reported to us. Issuance of the pro-rata credit will constitute a full accord and satisfaction of all claims by you against us for interruption of the services. In no case will the pro-rata credit exceed the applicable monthly service fees for the services rendered unusable by the interruption.
4. LIMITATIONS ON USE
You agree that you will not rent, sell, lease or otherwise transfer the services and that you will not use the services in a manner that violates applicable law. You will be liable for any failure by any user of your account to comply with the terms and conditions contained in this agreement.
5. DISCLAIMERS AND LIMITATIONS
THE SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, ZIPZAP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO THE SUITABILITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THE SERVICES. ZIPZAP DOES NOT WARRANT THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING WITHOUT LIMITATION STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, WHETHER MADE BY ZIPZAP EMPLOYEES OR OTHERWISE, THAT IS NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY BY ZIPZAP FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF ZIPZAP WHATSOEVER.
5.2 Limitation on Liability.
IN NO EVENT SHALL ZIPZAP BE LIABLE FOR ANY LOST OR ANTICIPATED PROFITS, OR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, LOST DATA OR ECONOMIC DAMAGE, REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF WHETHER ZIPZAP HAS BEEN ADVISED OR HAS REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. Notwithstanding any provision contained herein to the contrary, our sole liability arising out of or in connection with this agreement or any use of or inability to use our services, whether such liability arises from any claim based upon contract, warranty, tort, or otherwise, will be limited to the credit for service interruption for each separately disrupted service for the period of disruption as described in Section 3. You hereby release and hold ZipZap and its officers, directors, employees and agents harmless from and against any and all claims for damages of any nature, arising in any way from your use of our services and any violation by you of this agreement. This obligation will survive termination of this agreement.
5.3 Limitation on Actions.
You may not institute any action or arbitration proceedings in any form arising out of this agreement or your use of the services more than twelve (12) months after the cause of action has arisen.
5.4 Recorded Calls.
We provide a function that allows you to record individual telephone conversations. By providing this function, we do not represent or warrant that recording telephone conversations in your jurisdiction is legal under any circumstances whatsoever. The laws regarding the notice and notification requirements of recording telephonic conversations, or its very legality, vary from state to state. You are solely responsible for determining and complying with all federal, state and local laws in all relevant jurisdictions when using this feature. The laws of more than one jurisdiction may apply if you record a call to someone in another state. ZipZap expressly disclaims all liability with respect to your recording of telephone conversations. You hereby represent and warrant that you will comply with all applicable laws in using the our services, and you hereby release and agree to hold ZipZap harmless from and against any damages or liabilities of any kind related to your acts or omissions in recording any telephone conversations using our services.
6. TERM & TERMINATION
Your subscription will commence on the signup date and continue on a month-to-month basis thereafter.
Your subscription will automatically renew on a monthly basis. We will charge the monthly subscription fee to the credit card or ACH information you provide to us during registration or as updated by you from time to time. Your membership will automatically renew for successive monthly subscriptions, without prior notice, unless and until you cancel your membership or we terminate it. You must cancel your membership before it renews in order to avoid billing of subscription fees to your credit card.
6.3 Termination for Default.
Either party may terminate ZipZap services (a) in the event the other party commits a material breach of this agreement and such failure continues for a period of fifteen (15) days following written notice of such failure (provided that no such notice will be required, and no such cure period will be afforded, in connection with any failure by you to pay us all amounts due and owing hereunder); or (b) immediately and without notice if the other party makes any assignments of assets or business for the benefit of creditors, or a trustee or receiver is appointed to conduct its business or affairs, or it is adjudged in any legal proceeding to be in either voluntary or involuntary bankruptcy.
6.4 Canceling Service, Termination for Modifications, Price Increases.
You may cancel your subscription at any time. For security reasons, a subscription can be cancelled only by the verified account owner and by calling 1-800-609-0960 and speaking to a ZipZap representative. Your subscription will remain active until verification of the account holder has been completed. We do not provide refunds or credits for any partial monthly subscription periods. You may continue to use your subscription until the end of the paid subscription period. You will be billed for any usage incurred and not paid for at the end of the subscription period. PLEASE BE ADVISED: any toll free and/or local number not ported away from ZipZap prior to account cancellation will be released to the public for use by other users or carriers.
You agree to defend, indemnify, and hold harmless ZipZap and its officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from your breach of the warranties or obligations under this Agreement. We agree to notify you of any such claim, suit, or proceeding and will cooperate with you in defending any such claim, suit or proceeding at your expense.
8. VOICE MAIL, FACSIMILE AND E-MAIL SERVICES
8.1 Voice Mail and Facsimile Message Purging.
You acknowledge that voice mail, facsimile message, and recorded call purging is necessary in order to maintain individual accounts and system performance. Any voice mail or facsimile message that is older than twenty-one (21) days (as measured from the date the Voice Mail or Facsimile document was processed by our systems) may automatically be deleted without notice to you. Once deleted, such messages cannot be restored. Any recorded calls will automatically be purged ninety (90) days after recorded on our systems.
8.2 No Liability for Security Breaches.
IN ADDITION TO, AND NOT IN LIMITATION OF, THE LIMITATIONS ON ZIPZAP LIABILITY SET FORTH IN SECTION 5, IN NO EVENT SHALL ZIPZAP BE LIABLE IN ANY MANNER FOR ANY SECURITY BREACH ARISING OUT OF YOUR USE OF THE ZIPZAP SERVICES, OR FOR ANY LOSS OR THEFT OF DATA AND/OR CONFIDENTIAL INFORMATION RESULTING THEREFROM, OR FROM THE UNAUTHORIZED OR CRIMINAL ACTS OF ANY THIRD PARTY, INCLUDING BUT NOT LIMITED, HACKING OF OR ILLEGALLY ACCESSING ZIPZAP SERVER, DENIAL OF SERVICE ATTACKS, OR THE USE OR DISSEMINATION OF COMPUTER VIRUSES, TROJANS, SPYWARE, OR ANY OTHER COMPARABLE OR SIMILAR ATTEMPT TO INTERFERE WITH OR DISRUPT YOUR USE OF THE SERVICE, OR USE THE SERVICE TO OBTAIN YOUR PERSONAL INFORMATION.
9.1 Definition of User;
As used in this agreement, the term ‘User’ means a natural person who is authorized to make or receive calls on your account using the services.
9.2 Independent Contractor.
We are independent contractors and nothing in this agreement will create or imply any agency relationship between us, nor will this agreement be deemed to constitute a joint venture or partnership between us. Neither party will have authority to bind or otherwise obligate the other in any manner whatsoever.
9.3 Force Majeure.
ZipZap will not be liable for its failure to perform hereunder due to contingencies beyond its reasonable control, including, but not limited to, strikes, riots, wars, fire, power failure, hardware failure, acts of God, or acts in compliance with any law or government regulation.
9.4 Governing Law; Arbitration.
This agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. All claims and disputes arising out of this Agreement or the use or provision of services will be settled by binding arbitration pursuant to the rules and regulations of, and under the auspices of, the by the Judicial Arbitration & Mediation Service (JAMS.)in Orange County, California by a single arbitrator selected either by mutual agreement of you and Company or, if the parties cannot agree, from an odd-numbered list of suitably qualified business law arbitrators provided by JAMS. In any arbitration proceedings, the prevailing party will be entitled to recover all legal costs, fees and expenses incurred by it in connection with the arbitration. The arbitrator will have all powers conferred by law and a judgment may be entered on the award by any court of competent jurisdiction. The award must be in writing and contain sufficient detail to reveal the essential findings and conclusions on which it is award is based and will be binding on both parties. Neither ZipZap nor you will be required to submit to arbitration the following categories of dispute: (i) any dispute that may not lawfully be the subject of a mandatory arbitration provision under California law; (ii) a dispute in the amount subject to the jurisdiction of the Small Claims Court Division of any Superior Court which is actually filed in such court of inferior jurisdiction; and (iii) the request of you or ZipZap from a court of competent jurisdiction to obtain provisional or injunctive relief either before or during the pendency of any arbitration under this agreement. Both you and ZipZap agree that Orange County, California is an appropriate venue for resolution of any dispute between them and further agree not to object to such form on the grounds that it is inconvenient or otherwise inappropriate.
9.5 No Third-Party Beneficiaries.
There are no third-party beneficiaries to this agreement.
You may not assign or delegate any of your rights or obligations under this agreement without our written consent. We may assign or delegate any of our rights or obligations under this agreement without your written consent. We may subcontract any or all of our obligations under this agreement. The provisions of this agreement will be binding upon and inure to the benefit of the parties, their successors and their permitted assigns.
Any notices required or permitted to be given under this agreement must be in writing and will be deemed to have been duly given five (5) days following mailing, registered or certified mail with postage prepaid, or one (1) day following transmission by facsimile (with a hard copy thereof mailed to the recipient with postage prepaid) or email addressed to the intended recipient. Notices to you will be sent to the last physical address that you have provided to us as your contact address or, your email as the case may be. Notices to us must be sent to ZipZap, LLC, ATTN: Legal Department, 26895 Aliso Creek RD, STE B PMB 501, Aliso Viejo, CA 92656 or at such other address as this agreement specifies. Notwithstanding the foregoing, by providing us a valid email address either at the time you apply for services or at any time while you have an active account to use the services, you will be deemed to have consented to receive all written notices from us by email.
The waiver by one party of a breach of any provision of this agreement by the other party will not operate or be construed as a waiver of any subsequent breach of the same or any other provision by the other party.
In the event that any of the provisions of this agreement or the application of any such provisions to the parties hereto with respect to their obligations hereunder are held by a court of competent jurisdiction to be unlawful or unenforceable, the remaining provisions of this agreement will remain in full force and effect, and will not be affected, impaired, or invalidated in any manner.
9.10 Paragraph Headings.
The paragraph headings contained herein are for reference only and will not be considered as substantive parts of this agreement
9.11 Compliance with Law.
Both parties agree to comply with all applicable laws and regulations of governmental bodies or agencies in their performance under this agreement.
9.12 Entire Agreement.
This agreement contains the entire and only understanding between the parties and supersedes all prior agreements, either written or oral, relating to the subject matter hereof. Except as otherwise expressly provided herein, no modifications or waivers of this agreement will be binding on either party unless made in a writing that specifically references this agreement and is signed by persons authorized to sign agreements on behalf of you and ZipZap.
Date Written: 01/27/2015 Date Effective: 02/01/2015 Terms ID Number: SRF-ZZ02A . An Easier to read PDF version of the above terms and conditions is available upon request