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A. Agreement Scope

This Agreement is entered into between WestFax, Inc. (“WestFax”) and you (the “Customer” or “User”), and covers the terms and conditions of your use of WestFax Services (“Services”). The Services that WestFax provides to you are subject to the following Terms and Conditions (“Terms”). WestFax may revise the Terms at any time by posting revised Terms on the WestFax web site (“Site”).

You are responsible for regularly reviewing the Site to receive an update of the Terms. You shall be deemed to have accepted these updates by continued use of the Services after the changes have been posted. The most current version of the Terms can be reviewed by clicking on the “Terms and Conditions” hypertext link located at the bottom of our Site. This Agreement may not be amended by Customer except in writing signed by WestFax.

You also agree to the Customer Agreement expressly incorporated herein, and in addition to the Terms comprise the entire agreement between WestFax and you. The Customer Agreement may contain different or additional terms that take the place of these Terms and may refer to earlier versions of the Terms.

B. Services Description

On its Site, WestFax provides you with access to a variety of fax, voice, email and messaging services. “Services” are defined as any and all services provided by WestFax to you either now or in the future. The Services, including any updates, enhancements, new features, and/or the addition of any new web properties, are subject to these Terms.

C. Ownership

All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising the WestFax Services are wholly owned by WestFax and/or its licensors and service providers except where stated otherwise.

You understand and agree that you are not the owner of any WestFax Services including any fax or voice number (“WestFax Number”) assigned to you by WestFax. Ownership of any such WestFax Number is vested solely in WestFax (which may assign such number to you for your use during the time of this Agreement). You understand and agree that following the termination of your WestFax account for any reason, such WestFax Number may be re-assigned immediately (although there may be a transition period) to another customer, and you agree that WestFax will not be liable for damages (including consequential or other damages) arising out of any such re-assignment, and you therefore waive any claims with respect to any such re-assignment, whether based on contractual, civil wrongs, or other grounds, even if WestFax has been advised of the possibility of damages.

You further understand and agree that WestFax may from time to time need to change the WestFax Number assigned to you due to circumstances outside or within WestFax’s control. You agree that WestFax will not be liable for damages (including consequential or special damages) arising out of any such change in the WestFax Number assigned to you, and you hereby relinquish any claims with respect to any such change, whether based on contractual, civil wrongs, or other grounds, even if WestFax has been advised of the possibility of damages.

In particular, you agree that you are not authorized to charge Services provided to you or at your request to the WestFax Number assigned to you by WestFax and that you will not request or otherwise cause any third-party service provider to charge any such services to such number. You are responsible for any such charges, and any such charges will give WestFax the right to immediately terminate your WestFax account without notice.

D. Use of Services / Customer Responsibilities

By using the Site and our Services, you acknowledge that you have read, understood and agree to be bound by these Terms. If you do not agree with these Terms, you will not be granted permission to log into this Site and/or utilize our Services. By accepting these Terms, you acknowledge that you agree to do the following: represent and warrant that the information provided by you in the Account Set-up is true and correct in all respects and that you will promptly update such information if it changes; and that you have agreed to pay all charges to your account that you incur as a result of use of the Services through your account.

You represent and warrant that you are at least 18 years of age. You attest that you possess the legal right and ability to enter into this Agreement. If you are representing a corporation you warrant that you have the authority to bind the corporation. You agree to be financially responsible for your use of WestFax Services ( as well as for use of your account by others, including minors) and to comply with your responsibilities and obligations as stated in these Terms.

You must acquire and pay for all equipment and third-party services (such as but not limited to telephone and computer equipment) required for you to access and use the Services; maintain the security of your password and other confidential information relating to your account; and be responsible for all charges resulting from use of your account, including unauthorized use prior to your notifying WestFax of such use and taking steps to prevent its further occurrence.

E. Charges

You agree to pay all charges for your use of WestFax Services according to the payment plan applicable to your Service. WestFax reserves the right to prospectively change prices or institute new charges for access to or use of WestFax Services.

Charges for Services may include activation, recurring subscription and usage fees. Your activation and recurring subscription fees are payable in advance and are COMPLETELY NON-REFUNDABLE. Usage charges are charged as and when such charges are incurred or by accumulating such charges (at the sole discretion of WestFax) in accordance with the usage rates that apply to each Service you use.

Your payment plan may include a monthly allowance of free faxes, phone calls, emails, or contacts. In the event that you have exceeded your rate plan’s limit you will be automatically charged usage fees for each fax, call, email or contact in excess of your agreed upon limit. Unused allowances are not transferrable from month to month.

Payment of your WestFax account balance is due according to your individual plan and projects. If your WestFax account is a qualified business account and is approved by WestFax for corporate billing, charges will be accumulated, identified by account number and invoiced accordingly.

Charges for a qualified business accounts are paid according to the terms of the Customer Agreement Addendum in the currency billed - USD. A failure to pay the charges is violation of this agreement and grounds for termination by WestFax. If the payment method for your WestFax account is by credit card and payment is not received by WestFax from the card issuer or its agents, you agree to pay all amounts due upon demand by WestFax each time you use WestFax Services, or allow or cause WestFax Services to be used, you agree and reaffirm that WestFax is authorized to charge your designated card. Your card issuer’s agreement governs your use of your designated card in connection with WestFax, and you must refer to such agreement (not this Agreement) with respect to your rights and liabilities as a cardholder.

You agree that WestFax may submit charges for your usage fees and recurring subscription fee without further authorization from you, until you provide prior notice (in accordance with WestFax’ verification procedures, as may be established by WestFax from time to time in its discretion) that you have terminated this authorization or wish to change your designated card. Such notice will not affect charges submitted before WestFax reasonably could act on your notice. If you have any question regarding any charges that have been applied to your account, you must contact WestFax’ Customer Care within thirty (30) days of the charge date. Failure to use your account will not be deemed a basis for refusing to pay any charges submitted by WestFax in accordance with this Agreement.

F. Personal Information Privacy and Protection

See the Privacy Policy hypertext link located at the bottom of the WestFax Site for disclosures relating to the collection and use of your personally identifiable information.

G. Data Storage and Protection

While your account is active, WestFax will store messages customer information sent and received through your WestFax account, for a period of approximately sixty (60) days, in each case measured from the date of receipt of such message. WestFax shall maintain administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Customer information in its possession. Customer acknowledges that WestFax may change its practices and limitations concerning storage of messages, at any time and that notification of any such changes will be posted on WestFax’ Site under Terms. Customer further agrees that this feature is provided as a convenience to Customer only and WestFax has no responsibility or liability whatsoever for the deletion, loss, disclosure of, or failure to store, any messages and/or other communications maintained or transmitted by the Services.

H. The Internet

Customer acknowledges and agrees that the predictability of the Internet is such that WestFax cannot and does not guarantee access to the Site or its Services. WestFax may, from time to time, temporarily suspend your access without any prior notice to you. Moreover, you understand and agree that WestFax will not be liable for any direct, indirect, incidental, special or consequential damages relating to any pranks, hoaxes, viruses, bugs or any other form of technological failure, natural disaster or security breach that may prevent or interrupt access to or use of the Site, or cause information or communications transmitted through WestFax’s accounts to be publicly disseminated or otherwise misdirected, or for any other mistake, omission, deletion of information or communications or error.

I. Account, Password and Security

To open an account you must complete the sign-up process by providing us with current, complete and accurate information as requested on the Account Set-up Form. You agree to notify WestFax promptly of any changes to this information as required to keep it current, complete and accurate. You will also be assigned a user name and password. Please remember that your user name and password are unique to you and should not be communicated to any other person. By accepting this Agreement, you represent and affirm to WestFax that you will not communicate your user name and/or password to any unauthorized user. You agree to assume sole responsibility for all harm resulting from the use of the user name and password by anyone other than yourself.

You agree to notify WestFax immediately of any unauthorized use of your account or any other breach of security. WestFax will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by WestFax or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.

J. Prohibited or Unlawful Use

As a condition of your use of the Services, you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Services in any manner that could damage, disable, overburden, or impair any WestFax server, or the network(s) connected to any WestFax server, or interfere with any other party’s use and enjoyment of any Services. You may not attempt to gain unauthorized access to any Services, other accounts, computer systems or networks connected to any WestFax server or to any of the Services, through password mining, hacking or any other means. You will not use or register the name WestFax or any other trade name or trade mark of WestFax without express, prior permission, and you will not obstruct the identification procedures used by WestFax in the Services.

You represent that the information submitted for transmission through the WestFax network for WestFax Services is for lawful purposes only and that the transmission of messages or files is not in violation of any federal, state, or local laws and regulations including, without limitation, the provisions of the Telephone Consumer Protection Act of 1991 and the Junk Fax Prevention Act of 2005 which generally prohibit the sending of unsolicited facsimile advertisements. You will not encourage or participate in conduct that would amount to a criminal offense, infringe third party rights, give rise to civil liability or otherwise violate any local, state, national or other law or regulation. You agree to comply with all applicable laws, regulations, or conventions including those related to Do Not Call provisions, faxing, telemarketing, email marketing, anti-spam, anti-phishing, data privacy, international communications, and export of technical or personal data. You may not use the Services to upload, post, reproduce or distribute, in any way, any information, software or other material protected by copyright or any other intellectual property right without first obtaining the permission of the copyright owner. You should consult with an attorney regarding these laws and regulations. Customer agrees to indemnify and hold WestFax harmless for any claims, damages, costs and expenses that WestFax incurs due to protecting and enforcing its rights, including, without limitation attorney’s fees incurred to protect and enforce its rights, including, without limitation attorney’s fee incurred due to alleged violation of the above laws or regulations by Customer. In such an event, WestFax shall be defended by attorneys of their choice and at Customer’s expense.

You are fully responsible for the content of your transmissions through the Services and agree and acknowledge that you are the creator of all content, and that WestFax is not the creator, author or publisher of any content and WestFax does not review your content or rent or sell data or lists of any kind. WestFax simply acts as a medium for you to send and receive information of your own choosing.

WestFax prohibits the use of the Services or web sites by any person or entity that, encourages, promotes, provides, sells or offers to sell products or content relating to illegal or fraudulent activities (or services related to the same) including but not limited to: illegal drugs; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons; material that exploits children, encourages violence, spam, obscenity; and similar activities. This is not a complete list, and WestFax, in its sole discretion, may determine whether your use is prohibited and its determination shall be final, binding and irrefutable for all purposes under this Agreement. WestFax will terminate your use of its Services if WestFax determines such prohibited content or use is in violation of this Agreement. Any information stored on the WestFax servers that is deemed to be unlawful or an infringement of this Agreement or legal and regulatory requirements may be deleted at any time by WestFax without notice. WestFax reserves the right to remove any image which violates this Agreement without notice to you. Furthermore, WestFax does not assume liability for claims concerning unsolicited fax, email or voice messages sent by you or others under your account, including (but not limited to) Telephone Consumer Protection Act of 1991, FTC regulations, Junk Fax Prevention Act of 2005 and the Can-Spam Act of 2003.

WestFax reserves the right at all times to disclose any information as WestFax deems necessary to satisfy any applicable law, regulation, legal process or governmental request. WestFax reserves the right but is not obligated to review the content of any of your messages for compliance with these terms and other legal requirements upon receipt of a complaint. WestFax further reserves the right to take any other action with respect to the Services that WestFax deems necessary or appropriate in its sole discretion if WestFax believes you or your information may create liability for WestFax or others, compromise or disrupt the Services for you or other Customers, or cause WestFax to lose (in whole or in part) the services of WestFax internet service providers (ISP) or other suppliers.

You agree to indemnify and hold WestFax and its agents harmless from any and all direct, indirect or consequential claims, losses, damages, judgments, expenses and costs (including any attorney’s fees and expenses) arising out of your use of the Services, your violation of the terms of this Agreement, and the delivery of any of your messages and documents using the Services, or the infringement of any trademark or copyright by you.

K. Limitation of Liability and Disclaimer of Warranties

The Services are provided “as is” and there are no warranties, representations or conditions of any kind, express or implied, oral or written, arising by common law, the operation of law, course of dealing, dealings of trade or otherwise with respect to any other product or services, documentation or service in connection with or provided here. WestFax does not guarantee the continued availability of the Service or any assumed guarantee or state of sale, acceptable quality, permanence or appropriate application for a specific purpose. No information included in but not limited to marketing statements or materials will be considered a warranty or representation and should not be relied upon and is not obligated by WestFax.

WestFax is not responsible in any way for communications or difficulties outside of WestFax’s control.

The aggregate or maximum liability of WestFax, whether civil offense (including negligence), breach of contract, violation of law (including fundamental breach or failure of an essential purpose), misrepresentation or otherwise in respect of a single occurrence or a series of occurrences, shall in no circumstances exceed the amounts paid by Customer to WestFax with respect to the Service provided in the claim. In no way shall WestFax be liable for any damages caused to the Customer or any third party even if WestFax has been advised of foreseeable possible damages.

L. Unsolicited Marketing

The transmission of unsolicited telemarketing phone calls, faxes and email is regulated in the United States under the Sales Rule, the Federal Telephone Consumer Protection Act, Junk Fax Prevention Act and the CAN-SPAM Act. Unsolicited marketing in violation of such laws through the Services is prohibited and a violation of this Agreement. If you are receiving unsolicited fax advertisements and if the fax contains a telephone number, fax number, or other contact information to "unsubscribe" from receipt of additional junk faxes, please contact them. These opt-out mechanisms are required to be offered to the receiver in accordance to the Telephone Consumer Protection Act of 1991.

M. Third Party Rights

This Agreement has been made solely for the benefit of WestFax and the Customer, and their particular successors and allowed assigns. Nothing in this Agreement is intended to bestow any rights/remedies under or by reason of this Agreement on any third party.

N. Governing Law and Jurisdiction

You agree that these Terms shall be governed by and construed in accordance with the laws of the state of Colorado and you hereby consent to the jurisdiction of such state and agree that all disputes shall be tried in Denver, Colorado USA. You expressly waive any right, and agree not to have any dispute under the Terms tried by a jury, except where required by law. You also agree to personal jurisdiction in such courts and expressly agree not to contest location or authority in such courts.

O. Termination

If you have a daily, weekly, month-to-month or "pay as you go" account you may cancel the Service at any time by calling WestFax Customer Care at 800-473-6208. The signed Customer Agreement with WestFax in regards to the termination provision prevails. WestFax reserves the right to suspend or terminate services if WestFax, in its own discretion, believes that the Service is used for a purpose that is unlawful or prohibited by these terms, conditions, and notices.

WestFax shall have no responsibility to notify any third party, including any third party providers of services, merchandise or information, of any suspension, restriction or termination of your account. In such an event, WestFax shall have no obligation to maintain any messages or other content in your account or forward any unread or unsent message to you or any third party.

Any termination of your account shall not relieve you from any amounts owing or any other liability accruing under this Agreement prior to the time that such termination becomes effective.

P. Severability

If any provision or portion of this Agreement shall be held invalid under any relevant laws, such invalidity shall not affect any other provision of this Agreement.

Q. Miscellaneous

This Agreement constitutes the sole Agreement between you and WestFax relating to your use of this Site, the Services and the subject matter hereof, and no representations, statements or inducements, oral or written, not contained in this Agreement shall bind either party. No waiver of any right under this Agreement by WestFax will be deemed to be either a waiver of any other right or provision or a waiver of that same right or provision at any other time. WestFax reserves the right to assign, transfer or delegate any rights and/or obligations hereunder, in part or in whole, without your prior consent. You may not assign, transfer or delegate your rights or obligations stated here, in whole or in part, without WestFax’s prior written consent. This Agreement shall be binding upon each party to this Agreement and to their respective successors and permitted assigns. Any action or claim against WestFax must be brought within one (1) year following the date on which the claim first amassed or shall be deemed forever waived. A printed version of this Agreement and of any related notice given in electronic form shall be admissible in any judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

R. Notices

You may send notices to WestFax at 10465 Park Meadows Drive, Suite 200, Lone Tree, CO 80124 USA. All written replies to you shall be sent to the email address that you provide to WestFax in your Account Set-up Form. If your email address changes, it is your responsibility to notify us of the update. Such communication shall be considered received one (1) business day after the email is sent.

S. Requests for Documents and Information

In order to protect the privacy interests of its customers and to comply with state and federal law, including the Electronic Communications Privacy Act 18 U.S.C. Section 2701 et seq., ALL requests to Westfax for documents and information relating to its customers must be made in writing and include the express written consent of the customer or be made pursuant to a civil subpoena validly issued by a Colorado or federal court having jurisdiction over the matter and properly served upon Westfax.

A form of consent is accessible at: www.westfax.com/documents/AuthorizationToProduceDocumentationAndRecords.pdf

All subpoenas must be served on Westfax, Inc. at 10465 Park Meadows Drive, Suite 200, Lone Tree, CO 80124 USA, prior to any response. Certified mail constitutes a method of service. Westfax reserves the right to request a copy of the complaint and any supporting documentation that demonstrates how the requested documents and information relate to the litigation. Upon receipt of a valid subpoena, Westfax may notify the customer whose documents and information is sought and allow the customer a reasonable period of time to move to quash the subpoena.

The Electronic Communications Privacy Act prohibits Westfax from disclosing the content of electronic communications pursuant to a civil subpoena. To obtain such content you may wish to contact or serve the customer who has custody and control of such documents and information relating to the account.

Subject to the above, upon receipt of such a request, Westfax will conduct a search for documents and information accessible on its system that are responsive to the request. Westfax only keeps customers’ documents and information for a limited period of time. After the search is complete, Westfax will send the person requesting the documents and information the results of the search. Westfax reserves the right to send the results of the search to its customer who may then be compelled to produce them to person requesting the documents and information. To the extent any document located during the search process contains information restricted by law, exceeds the scope of the written request or is otherwise not subject to production, it will be redacted or removed.

Westfax will require a minimum $250.00 reimbursement for the reasonable costs incurred in processing written requests and responding to subpoenas for documents and information. Checks should be made payable to Westfax, Inc. Westfax reserves the right to object to any written requests or subpoenas that are vague, overly broad or involve an undue burden. Westfax objects and exercises and retains its rights by objecting to any information it does have or provide.

T. Acceptance of Opt-Out Requests

The Telephone Consumer Protection Act provides that the sender is solely liable for opt-out notice compliance and violations. A Customer may, however, voluntarily elect to retain a third party to accept opt out requests. This is an ancillary service, is done automatically and is free of charge. The Telephone Consumer Protection Act provides that the third party need only accept and forward do-not-fax requests and is not advising, involved, responsible or liable to the Customer or any other party for such services.

 

Revision date: 07/12

 

WestFax.com
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