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Please Read Carefully Before Using the Vistacom Website and Services

The following terms and conditions (“Terms of Service”) govern your use of the Vistacom Information Systems, Inc. website www.vpoll.mobi (the “Site”) and the software-as-a-service you order from Vistacom Information Systems, Inc. (“Vistacom”). By accessing and using the Services (as defined below) and/or any information, content or materials made available through the Services, you irrevocably agree that such use is subject to these Terms of Service. If you do not agree to these Terms of Service, you may not use the Services.

You should check these Terms of Service and this Site periodically for modifications. Vistacom may modify the Site and/or the Terms of Service from time to time without notice to you. If Vistacom makes material changes to the Terms of Service, we will post the revised Terms of Service and the revised effective date on the Site. Any continued use by you of the Services after the posting of such modified Terms of Service shall be deemed to indicate your irrevocable agreement to such modified Terms of Service. Accordingly, if at any time you do not agree to be subject to any modified Terms of Service, you may no longer use the Services.

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1. CERTAIN DEFINED TERMS. In these Terms of Service, the following terms shall have the following meanings.

1. “Services” means, collectively, the Site and the software-as-a-service you order from Vistacom, which software-as-a-service consists of system administration, system management, and system monitoring and support activities that Vistacom performs for the Program, and includes the right to use the Program, as well as any other services provided by Vistacom, in each case as set forth in the Invoice.
2. “You” and “your” mean the individual or entity that is ordering the Services from Vistacom.
3. “Invoice” means the Invoice accessed during the Plan sign up that is completed by you and submitted to Vistacom through the Site. The Invoice accompanies and incorporates these Terms of Service and sets forth details regarding pricing, payment and other terms and conditions relating to Vistacom’s provision of the Services and the Program, including any other document referenced in or incorporated into the Invoice.
4. “Program” means the VPOLL Mobile Polling software application owned or distributed by Vistacom to which Vistacom grants you access as part of the Services, including any Program Materials, and any updates to the Program provided as part of the Services.
5. “Program Materials” means any printed or electronic materials that the Invoice indicates are part of the Services and that are provided to you in connection with these Terms of Service.
6. “Services Term” means the term during which Services will be provided, as specified in the Invoice.
7. “Users” means those individuals authorized by you or on your behalf to access and use the Services, as defined in the Invoice.
8. “Your Data” means the data that you or your Users provide and that resides in your Services environment, including, without limitation, any contact or payment information.

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2. RIGHTS GRANTED TO YOU.

1. For the duration of the Services Term, you will have the nonexclusive, non-assignable, limited right to access and use the Services solely for and in connection with your internal business operations, subject to the terms of these Terms of Service and the Invoice. If applicable, you may allow your Users to access and use the Services for this purpose, but you are solely responsible for your Users’ compliance with these Terms of Service.
2. You acknowledge that Vistacom has no delivery obligation and will not ship copies of the Program to you as part of the Services. You agree that you do not and will not acquire under these Terms of Service any license to access or use the Program in excess of the scope and/or duration of the Services. Upon any termination of the Services provided hereunder, your right to access and/or use the Program and the Services will immediately and automatically terminate, except as otherwise expressly provided herein.

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3. FEES AND TAXES.

1. Payment for Services ordered by you will be due as set forth in the Invoice. Any sum not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, if less.
2. Fees for Services set forth in the Invoice are exclusive of taxes and expenses. You agree to pay any sales, use, value-added or other similar taxes imposed by applicable law that Vistacom must pay based on the Services that you order, except for taxes based on Vistacom’s net income.
3. Except to the extent expressly set forth in these Terms of Service or the Invoice, any fees for Services paid to Vistacom are non-refundable.

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4. OWNERSHIP AND RESTRICTIONS.

1. You retain all ownership and intellectual property rights in and to Your Data and any and all other proprietary information that you may share with Vistacom in connection with your access and use of the Services. Vistacom or its licensors retain all ownership and intellectual property rights in and to the Services and the Program. In addition, Vistacom retains all ownership and intellectual property rights in and to anything developed and delivered by or on behalf of Vistacom in connection with its provision of the Services; provided, however, that subject to the further terms and conditions of these Terms of Service and the Invoice, Vistacom hereby grants you a nonexclusive, worldwide and royalty-free right and license to use any data or information that you obtain directly from your use of the Services (including, without limitation, any reports that you may generate or develop through your use of the Services (“Reports”)) solely for your or, if permitted in the Invoice, your Users’ internal business purposes.
2. Except to the extent that Vistacom has licensed third party software (including third party database software) for use with or incorporation into the Services, any third party software or other technology that is required for use with the Program is specified in the Program Materials or the Invoice, as applicable. Your right to use any such third party software or other technology is governed by the terms of the third party technology license agreement specified by Vistacom, and not by these Terms of Service.
3. Except to the extent expressly provided in these Terms of Service or the Invoice, you may not:
4. remove or modify any program markings or any notice of Vistacom’s or its licensors’ proprietary rights;
5. make the Program or any materials obtained or resulting from the Services (including, without limitation, any Reports) available in any manner to any third party for use in the third party’s business operations;
6. modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (this prohibition includes but is not limited to review of data structures or similar materials produced by the Program), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to those offered by Vistacom; or
7. license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or provide to any third party the Services, the Program or any other materials provided by Vistacom.
8. You further agree that:
9. the rights of any User authorized to use the Services on a “named user” basis cannot be shared or used by more than one individual (unless such authorization is reassigned in its entirety to another authorized User, in which case the prior authorized User will no longer have any right to access or use the Services);
10. except as expressly provided in these Terms of Service or the Invoice, including as may be necessary to conduct performance testing, no part of the Services or any Program Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording, or any other means, whether now known or hereafter developed; and
11. you agree to use commercially reasonable efforts to prevent unauthorized third parties from accessing and/or using the Services and the Program.
12. Vistacom reserves the right to perform statistical analyses of your use of the Services. Vistacom does this to measure the effectiveness of the Services, to optimize the performance of the Services, and to ensure compliance with the terms of these Terms of Service and the Invoice. You will not have any right or ability to obtain or learn the results of any such analyses.

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5. RESTRICTIONS RELATING TO YOUR USE OF THE SERVICES. You agree not to use or permit the use of the Services, including by uploading, emailing, posting, publishing or otherwise sending or transmitting any material, for any purpose that may: (i) menace or harass any person or cause damage or injury to any person or property; (ii) involve the publication of any material that is false, defamatory, harassing or obscene; (iii) violate rights or privacy or publicity; (iv) promote bigotry, racism, hatred or harm; (iv) constitute unsolicited bulk email, “junk mail”, “spam” or chain letters; (v) constitute an infringement of the intellectual property or other proprietary rights of any third party; or (vi) otherwise violate applicable laws, rules, regulations or ordinances. In addition to any other rights afforded to Vistacom under these Terms of Service, Vistacom reserves the right to remove or disable access to any material that violates any of the foregoing restrictions. Vistacom will have no liability to you or your Users if Vistacom takes any such action.

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6. YOUR DATA; COMMUNICATIONS WITH USERS.

1. You agree to provide any notices and obtain any consents related to your and Vistacom’s use of Your Data, including those related to the collection, use, processing, transfer and disclosure of personal information. You will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Your Data.
2. If and to the extent that you communicate with your Users with or through the Services or the Program by phone, text or email, or that you authorize Vistacom to so communicate with your Users, you represent that you have obtained appropriate written consents from those Users permitting you to take such actions.
3. You represent and warrant to Vistacom that neither you nor any of your Users will use the Services to send or deliver any text, documents, images, graphics, logos, designs, audio files, video files, or any other content unless you or your Users are the owner of all proprietary rights in that content (or have obtained a valid license from the owner of the proprietary rights in that content) and have obtained all required releases for all related privacy and publicity rights.
4. Vistacom expressly reserves the right to view, copy, and internally distribute content sent or delivered through the Services, and to create algorithms, programs and other tools to assist Vistacom in identifying problem accounts and otherwise improve the Services. Vistacom may use these tools to identify Users who have violated their obligations or applicable laws, and to study data internally to improve the Services and create enhanced experiences for Users.
5. In addition to the other terms and conditions set forth in these Terms of Service, Vistacom’s use of Your Data and any other content you send or deliver through the Services will be governed by Vistacom’s Privacy Policy available at https://www.vpoll.mobi/privacy-policy, as the same may be amended from time to time.

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7. LIMITED WARRANTY; DISCLAIMERS; EXCLUSIVE REMEDIES.

1. Vistacom warrants that, during the Services Term, the Services will perform in all material respects in accordance with the Program Materials and otherwise in accordance with these Terms of Service.
2. Vistacom’s performance of the Services, including the Program, will comply with all applicable laws, rules, regulations and orders of any governmental authority of competent jurisdiction.
3. VISTACOM DOES NOT GUARANTEE THAT YOUR USE OF THE SERVICES OR THE PROGRAM WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT VISTACOM WILL CORRECT ALL ERRORS IN OR PROBLEMS WITH THE SERVICES OR THE PROGRAM. YOU ACKNOWLEDGE THAT VISTACOM DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS CAUSED BY THE USE OF SUCH COMMUNICATIONS FACILITIES. VISTACOM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE CAUSED BY SUCH PROBLEMS.
4. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, VISTACOM DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, OTHER THAN THOSE EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES, THE PROGRAM, ANY PROGRAM MATERIALS, AND ANY OTHER PRODUCTS AND RELATED MATERIALS AND/OR SERVICES PROVIDED TO YOU OR YOUR USERS IN CONNECTION WITH YOUR ACCESS OR USE OF THE SERVICES.
5. Vistacom will not be responsible for any delay in the delivery of any Services which is due to your failure to provide assistance as provided under these Terms of Service or the Invoice.

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8. TRIAL USE OF THE SERVICES. If specified in the Invoice, you may order certain Services for trial, nonproduction purposes, subject to the terms and conditions of these Terms of Service. Services acquired for trial purposes are provided “AS IS”. Vistacom does not offer or give any warranties for such Services.

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9. SECURITY.

1. Each User is responsible for maintaining the confidentiality of his, her or its account name and password. You and your Users are solely responsible for all uses of those accounts, whether or not that use is authorized by you or your Users. You agree to immediately notify Vistacom in writing of any unauthorized use of any User account.
2. Vistacom strives to keep Your Data secure, but cannot guarantee that it will be successful in doing so, given the nature of the internet. Accordingly, without limitation of Sections 7 and 9(a) above and Section 14 below, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Data. Vistacom strongly encourages you, where available and appropriate, to (i) use encryption technology to protect Your Data from unauthorized access, and (ii) routinely archive Your Data. Vistacom will not have any liability to you or your Users for any unauthorized access to, use or alteration of, or the corruption, deletion, destruction, damage, loss or failure to store any of Your Data or other data that you or your Users use or submit in connection with the Services.

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10. CONFIDENTIALITY.

1. By virtue of your access and use of the Services, you and Vistacom may have access to information that is confidential to the other (“Confidential Information”). You agree to disclose only information that is required for your access and use of the Services or otherwise in connection with the performance of your obligations under these Terms of Service. Your Confidential Information will be limited to Your Data residing in the Services environment, and any other information provided by you or your Users in connection with your access or use of the Services that is of a non-public and
2. Your Confidential Information will not include any information that: (i) is or becomes a part of the public domain through no act or omission of Vistacom; (ii) was in Vistacom’s lawful possession prior to disclosure and was not obtained by Vistacom either directly or indirectly from you or your Users; (iii) is lawfully disclosed to Vistacom by a third party without restrictions on the disclosure; or (iv) is independently developed by Vistacom without reference to your Confidential Information.
3. You and Vistacom agree to hold each other’s Confidential Information in strict confidence during the Services Term and for a period of five years after the date on which the Services Term terminates and, notwithstanding the foregoing, with respect to Confidential Information which constitutes a “trade secret” under applicable law, until such time as that information no longer constitutes a trade secret due to no fault of the receiving party. You and Vistacom further agree to disclose the other party’s Confidential Information only to those employees, agents or Users, as applicable, who have a need to know such Confidential Information and are legally obligated to protect it against unauthorized disclosure in a manner no less protective than required under these Terms of Service, whether by contract or as a matter of law. Nothing will prevent your or Vistacom from disclosing the terms of these Terms of Service or any related pricing terms in any legal proceeding arising from or in connection with your access and use of the Services, or from disclosing the other’s Confidential Information to the extent required by a court of competent jurisdiction, administrative agency or governmental entity, or by subpoena, summons or other legal process, or by law, rule or regulation, or by applicable regulatory or professional standards, provided that, prior to such disclosure, the disclosing party is given reasonable advance notice of such order or obligation and an opportunity to object to such disclosure.
4. It is understood and agreed that monetary damages would not be an adequate remedy for an actual or potential breach of the provisions of this Section 10, and therefore, in addition to any other legal or equitable remedies available to the disclosing party, such party may seek an injunction or similar relief against such breach (without the necessity of posting any bond or establishing the inadequacy of damages as a remedy).‍

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11. INDEMNIFICATION.

1. You agree to indemnify, defend and hold Vistacom, its affiliates and licensors, and each of their respective officers, directors, employees and agents, 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 relating to any claim concerning: (i) your use of the Services or the Program in a manner not authorized by these Terms of Service or the Invoice, and/or in violation of the terms hereof or thereof and/or applicable law; (ii) Your Data, or the combination of Your Data with other applications, content or processes, including, but not limited to, any claim that Your Data infringes upon or violates any patent, copyright, trade secret, trademark or other intellectual property right of any third party; (iii) any breach or violation by you or your Users of any of the representations, warranties or covenants contained in these Terms of Service or the Invoice; or (iv) your or your employees’, personnel’s or Users’ negligence, gross negligence or willful misconduct.
2. Vistacom agrees to indemnify, defend and hold you, your affiliates and Users, and each of their respective officers, directors, employees and agents, 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 relating to: (i) any claim that the Services or the Program infringes upon or violates any patent, copyright, trade secret, trademark or other intellectual property right of any third party; or (ii) any claim concerning any breach or violation by Vistacom of any of its representations, warranties or covenants contained in these Terms of Service or the Invoice.
3. You and Vistacom will promptly notify the other of any actual or threatened judicial or other proceedings which could involve the other. You and Vistacom reserve the right to defend itself in any such proceedings; provided, however, that, if indemnity is sought, then the party from whom indemnity is sought will have the right to control the defense of the claim, and the indemnified party may participate with counsel of its choice at its own expense. You and Vistacom agree to cooperate with the other to the extent reasonably necessary in the defense of all actual or potential liability claims and in any other litigation relating to the Services. Neither you nor Vistacom will, in defense of any such claim, except with the prior written consent of the indemnified party (which consent shall not be unreasonably withheld or delayed), consent to the entry of any judgment or enter into any settlement that does not include the giving by the claimant or plaintiff in question to the indemnified party a release of all liabilities in respect of such claim, or that does not result only in the payment of money damages by the indemnifying party.
4. Notwithstanding the foregoing provisions of this Section 11, Vistacom will not have any obligation for and will not indemnify you or any of your Users for any liabilities to the extent that they arise from: (i) any changes or modifications to the Services or the Program made by or on behalf of you or any of your Users; (ii) any misuse or abuse of the Services or the Program by you or any of your Users; (iii) the combination, operation or use of the Services or the Program with any products or services not provided by Vistacom if such claim would not have arisen had such combination, operation or use not occurred; (iv) any loss or damage caused by you or any of your Users; or (v) the negligence, gross negligence or willful misconduct of you or any of your Users.

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12. SERVICES TERM; TERMINATION.

1. The Services Term will begin on the effective date set forth in the Invoice and will remain in full force and effect for the term set forth in the Invoice. The Services Term will automatically terminate as of the date of expiration or termination of the Invoice unless terminated earlier in accordance with the terms set forth in these Terms of Service. Upon the termination of the Services Term, all rights to access or use the Services and the Program will end.
2. Either you or Vistacom may terminate the Services Term if the other breaches a material term of these Terms of Service and fails to correct that breach within 30 days of such party’s receipt of written notice of the breach, which notice identifies the breach in question with reasonable particularity. If Vistacom terminates the Services Term as specified in the preceding sentence, you will be required to pay, within 15 days of the effective date of such termination, all amounts owed to Vistacom that have accrued prior to the effective date of such termination, as well as all sums remaining unpaid for the Services, plus all related taxes and expenses. The non-breaching party may agree, in its sole discretion, to extend the 15-day cure period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that, if you are in material breach of your obligations under these Terms of Service, then Vistacom may immediately suspend the relevant Services ordered until that breach has been cured.
3. Either you or Vistacom may also terminate the Services Term if the other ceases to carry on its business; or a receiver, administrative receiver, administrator or similar officer is appointed over all or any part of its assets and is not discharged within 60 days of such appointment; or the other makes an assignment for the benefit of, or a composition with, its creditors, or another arrangement of similar import; or the other enters into liquidation.

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13. EFFECT OF TERMINATION.

1. At your request, and for a period of up to 30 days after the termination of the Services Term, Vistacom will permit you to access the Services solely to the extent necessary for you to retrieve Your Data then in the Services environment.
2. Subject to Section 13(a), you acknowledge and agree that, except as set forth in these Terms of Service, Vistacom has no obligation to retain Your Data and that Your Data may be irretrievably deleted after 30 days following the termination of the Services Term.
3. In no event will any termination of the Services Term excuse either you or Vistacom from any breach or violation of these Terms of Service and full legal and equitable remedies will remain available therefor, nor will it excuse either you or Vistacom from making any payment due to the other with respect to any period prior to the date of termination. Notwithstanding any provision of these Terms of Service to the contrary, Sections 4, 7(c), 7(d), 9, 10, 11, 13, 14, 17, 18 and 19 hereof will survive any termination of the Services Term.

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14. LIMITATION OF LIABILITY.

1. EXCEPT AS SET FORTH IN THIS SECTION 14, VISTACOM WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY LOST REVENUE, LOST BUSINESS, LOST PROFITS, LOST GOODWILL, LOST DATA, LOSS OF USE OF DATA OR OTHER PECUNIARY LOSS, THAT YOU OR YOUR USERS MAY SUFFER OR INCUR AS A CONSEQUENCE OF THE USE OR PERFORMANCE OF THE SERVICES OR YOUR OR YOUR USERS’ INABILITY TO ACCESS OR USE THE SERVICES OR THE PROGRAM, OR OTHERWISE, EVEN IF VISTACOM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. VISTACOM’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE, THE INVOICE OR YOUR ACCESS OR USE OF THE SERVICES, OR THE PERFORMANCE THEREOF, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT YOU ACTUALLY PAID TO VISTACOM FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, EVEN IF VISTACOM HAS BEEN ADVISED OF THE CLAIM OR POTENTIAL CLAIM.

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15. EXPORT. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export control laws will govern your use of the Services (including any technical data) and any Services deliverables provided in connection with your access or use of the Services, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from any Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

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16. FORCE MAJEURE. Vistacom will not be in default of its obligations under these Terms of Service or the Invoice to the extent that such performance is delayed or prevented by causes beyond its reasonable control, including, but not limited to, acts of God, earthquake, flood, embargo, riots, sabotage, utility or transmission failures, fire, labor disturbances, acts of war, acts of terrorism, radiological, nuclear, chemical, or biological attack, or spread of infectious disease, a new and unforeseeable law or court order that prohibits performance or imposes a substantial and commercially unreasonable burden on performance, or the unavailability of third-party telecommunications or services (after taking all commercially reasonable steps to provide substitutes therefor).

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17.THIRD PARTY WEBSITES, CONTENT, PRODUCTS AND SERVICES. The Services and/or the Program may make available to you, or may enable you to add, links to websites and access content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Vistacom is not, and will not be, responsible for any third party websites or third party content provided on or through the Services or the Program, and you bear all risks associated with the access and use of such websites and third party content, products and services.

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18.ENTIRE AGREEMENT. You agree that these Terms of Service and the Invoice (including any other documents or information incorporated into these Terms of Service or the Invoice by reference) is the complete agreement for the Services that you order, and that these Terms of Service and the Invoice supersede all prior and/or contemporaneous agreements and representations, written or oral, regarding the Services and the Program. If any term of these Terms of Service or the Invoice is found to be invalid or unenforceable, the remaining provisions will remain effective and such term will be replaced with a term consistent with the purpose and intent of these Terms of Service and the Invoice. It is expressly agreed that the terms of these Terms of Service and the Invoice will supersede the terms in any purchase order or other non-Vistacom document and no terms included in any such purchase order or other non-Vistacom document will apply to the Services you order. Neither these Terms of Service nor the Invoice may be modified or amended, and the rights and restrictions set forth herein and therein may not be altered or waived, except in a writing signed by you and an authorized representative Vistacom.

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19.GENERAL.

1. Vistacom is an independent contractor and you agree that no partnership, joint venture, or agency relationship exists between you and Vistacom. You and Vistacom will each be responsible for paying its own employees, including employment related taxes and insurance, as applicable.
2. You will obtain, at your sole cost and expense, any rights and consents from third parties that may be necessary for Vistacom and its subcontractors to provide the Services.
3. These Terms of Service and the Invoice will be deemed entered into in the Commonwealth of Pennsylvania and will be construed in accordance with the laws of that state, without regard to conflict of laws rules or principles. Neither the Uniform Computer Information Transactions Act nor the United Nations Convention on Contracts for the International Sale of Goods will apply to these Terms of Use or the Invoice. Any action that in any way involves the rights, duties and obligations of either you or Vistacom relating to these Terms of Service, the Invoice and/or your access and use of the Services will be brought in the state or federal courts sitting in Philadelphia County, Pennsylvania, and each of you and Vistacom hereby submits to the personal jurisdiction of such courts. Each of you and Vistacom waives any and all rights to have any dispute, claim or controversy arising out of or relating to these Terms of Service or the Invoice tried before a jury.
4. Any notice or request required or permitted to be given under or in connection with these Terms of Service or the Invoice will be deemed to have been sufficiently given if in writing and sent by: (i) hand delivery against a signed receipt therefor; (ii) certified mail, return receipt requested, first class postage prepaid; (iii) nationally recognized overnight delivery service (signature required); (iv) confirmed facsimile transmission; or (v) confirmed electronic mail (with any notices sent by facsimile transmission or electronic mail to also be sent by one of the other methods set forth in this Section), in each case addressed to the party entitled to receive the same at the addresses set forth in the Invoice (or, in the case of Vistacom, at its address set forth on the Site). You may change the address to which communications are to be sent by giving notice of such change of address in conformity with the provisions of this Section providing for the giving of notice. Notice will be deemed to be effective, if hand delivered, when delivered; if mailed, at midnight on the third business day after being sent by certified mail; if sent by nationally recognized overnight delivery service, on the next business day following delivery to such delivery service; and if sent by confirmed facsimile transmission or confirmed electronic mail, on the next business day following transmission (so long as any notices sent by facsimile transmission or electronic mail are also sent by one of the other methods set forth in this Section).
5. You may not assign or transfer any or all of your rights, duties or obligations under these Terms of Service or the Invoice, or any interests therein, in whole or in part, without Vistacom’s prior written consent, which consent may be granted or denied in its sole discretion. Vistacom may assign its rights, duties and/or obligations under these Terms of Service and/or the Invoice: (i) to an affiliate; or (ii) to any third party that acquires all or substantially all of the stock or assets of Vistacom, whether by asset sale, stock sale, merger or otherwise. Subject to the foregoing, these Terms of Service and the Invoice will be binding upon and inure to the benefit of you and Vistacom, and each of your and Vistacom’s respective successors and permitted assigns.
6. Except for actions for nonpayment or breach of Vistacom’s proprietary rights, no action, regardless of form, arising out of or relating to THE PROVISION, ACCESS OR USE OF THE SERVICES BY YOU OR VISTACOM, AS APPLICABLE, may be brought by you or Vistacom more than two years after the cause of action accrues.
7. Vistacom may audit your use of the Services from time to time during the Services Term. You agree to cooperate with Vistacom’s audit and provide reasonable assistance and access to such information as Vistacom may reasonably request. Any such audit will not unreasonably interfere with your normal business operations. You agree to pay to Vistacom any fees applicable to your use of the Services in excess of the rights granted to you under these Terms of Service and the Invoice, such payment to be made within 30 days of your receipt of written notification thereof. If you fail to make such payment in a timely manner, Vistacom will have the right to suspend such excess access and use of the Services, on written notice to you. You agree that Vistacom will not be responsible for any costs incurred by you in cooperating with any audit.
8. All sums set forth in these Terms of Service or the Invoice are, and are intended to be, expressed in United States dollars.
9. In these Terms of Use and the Invoice: (i) the masculine includes the feminine and the neuter, and the singular includes the plural and vice versa; (ii) references to “including” or “include(s)” will be deemed to mean, respectively, “including, but not limited to” or “include(s), but is not limited to”; (iii) headings are included for ease of reference only and will not affect the interpretation or construction of these Terms of Service or the Invoice; (iv) references to Sections are, unless otherwise expressly provided, references to sections in these Terms of Service or the Invoice, as applicable; and (v) in the event and to the extent of any conflict between the terms of these Terms of Service and the Invoice, the terms of these Terms of Service will prevail.

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