The following Terms of Service (the “Agreement”) are entered into by and between ProPhone Inc (“ProPhone”) and the person or entity on whose behalf the Services (as defined below) are used or accessed (the “Subscriber”) governing our platform services, including our programs, features, account portals, and technical support (the “Services”). If you do not agree to this Agreement, you are prohibited from using or accessing our Services. We may modify these terms at any time by posting the revised terms to our website. Your continued use of our Service means that you have accepted the changed terms.
Subject to the terms and conditions of this Agreement, ProPhone grants Subscriber a limited, revocable, non-exclusive, non-sublicensable, non-transferable, non-assignable license to access the Services for the Term of this Agreement. Subscriber’s license and use of the Services is permitted solely for the purposes stated in this Agreement and is subject to the restrictions set forth herein. Except for the foregoing limited license, Subscriber does not receive any right, title, or interest in or to the Services and Subscriber acknowledges that ProPhone retains all right, title, and interest in the Services including all intellectual property rights therein.
Subscriber’s access and use of the Services is limited to identifying and communicating with leads regarding prospective transactions. Subscriber has no right to access, share, or otherwise use the Services for any other purpose.
The Services may be accessed by Subscriber through its employees, agents, or representatives that are authorized by Subscriber. Subscriber shall ensure that only authorized individuals shall have access to the Services. Subscriber shall promptly inform ProPhone of any unauthorized access to the Services or the loss or theft of its access credentials. Subscriber is responsible for all access and use of the Services using Subscriber’s access credentials regardless of whether such access and use was authorized by Subscriber. Subscriber shall be responsible for, and liable to ProPhone, any security breaches by Subscriber, its employees, agents, or representatives.
Subscriber shall not: (i) modify or create any derivative works of the Services; (ii) modify the Services or reverse assemble, disassemble, decompile, engineer, or otherwise attempt to derive source code from the Services; (iii) redistribute, encumber, sell, rent, lease, sub-license, pledge, assign or otherwise transfer rights to the Services; (iv) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Services; (v) access or use the Services for any unlawful or illegal purpose; or (vi) provide access to or use of the Services on any computer network or allow concurrent use thereof by more than one individual without the prior written permission of ProPhone.
Subscriber agrees to use the Services in accordance with all applicable federal, state, and local laws and regulations and industry standards. Without limiting the generality of the foregoing, Subscriber will use the Services in compliance with the Telephone Consumer Protection Act of 1991 (“TCPA”) and all regulations implementing the TCPA, other teleservices laws and regulations, and privacy and data security laws and regulations. Subscriber bears sole responsibility for compliance with applicable laws and regulations and sole liability for any and all communications sent using the Services.
Subscriber provides to ProPhone a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, transferrable, sublicensable license to use, copy, perform, reproduce, display, and distribute, including to create derivative works or incorporate into other works, all Subscriber-owned data provided by Subscriber or which Subscriber makes available to ProPhone in connection with Subscriber’s use of the Services (“Subscriber Data”) for the limited purpose of fulfilling ProPhone obligations under this Agreement, including without limitation conducting research, development, usage monitoring, and other day-to-day business activities.
Subscriber acknowledges that ProPhone may obtain certain usage, technical, and statistical data regarding Subscriber’s use of the Services and that such usage, technical, and statistical data is the sole property of ProPhone and is not Subscriber Data. ProPhone may use and disclose usage, technical, and statistical data without restriction.
Subscriber’s access to and use of the Services is contingent upon payment of all subscription and other fees as set forth by ProPhone. Subscriber’s failure to timely pay all amounts due shall be grounds for ProPhone, at its election, to limit or eliminate Subscriber’s access to the Services, including any information or data contained therein. All fees are due when charged by ProPhone and are non-refundable except as explicitly provided herein. ProPhone may increase subscription charges or other prices at any time, and will provide at least 30 days’ notice of any price increase. Subscriber is responsible for all taxes and governmental fees associated with Subscriber’s use of the Services.
Unless otherwise agreed to by ProPhone, Subscriber’s use of the Services will be subject to a monthly subscription that will automatically renew every month until Subscriber cancels its services. Monthly subscription fees are paid in advance and are non-refundable, even if Subscriber cancels mid-month. All monthly service fee payments are made in advance for the following month of Services. Subscriber must cancel at least five business days prior to the monthly renewal date to prevent charges for the following month of Services. Subscriber may cancel its subscription by accessing your account settings or email: support@prophone.io
Without limiting its rights elsewhere in this Agreement, ProPhone may terminate this Agreement and Subscriber’s use of the Services at any time for convenience, with or without notice. In the event ProPhone terminates this Agreement without cause, ProPhone will provide Subscriber a pro rated refund of paid for but unused Services. In the event ProPhone terminates this Agreement for cause, including, without limitation, due to (i) Subscriber’s failure to timely pay all fees when due, (ii) Subscriber’s assignment for the benefit of its creditors, filing of a bankruptcy petition, filing of a bankruptcy petition against it, or other insolvency event, or (iii) Subscriber’s breach or likely breach of this Agreement, as determined by ProPhone in its sole discretion, ProPhone will not provide any refund.
Subscriber will defend (at ProPhone option), indemnify, and hold ProPhone and its affiliates, subsidiaries, successors, assignees, owners, directors, officers, employees, contractors, representatives, and agents (collectively, “ProPhone Indemnitees”) harmless from and against any and all claims, governmental investigations, demands, actions, and proceedings, real or threatened, and all losses, judgments, awards, settlements, damages, fines, injuries, penalties, and costs (including, without limitation, reasonable attorneys’ fees and expenses) arising out of or related to (i) any breach or alleged breach of this Agreement, including the representations and warranties contained herein, by Subscriber, (ii) Subscriber’s negligence or misconduct, or (iii) Subscriber’s use of the Services or information obtained therefrom (including without limitation Subscriber transmitting or receiving communications through the Service). If ProPhone elects for Subscriber to provide defense, Subscriber will (i) obtain legal counsel reasonably acceptable to ProPhone; (ii) permit ProPhone to participate in the defense using separate counsel at ProPhones’ cost; and (iii) not settle any action without the prior written consent of ProPhone (which may not be unreasonably withheld). The foregoing indemnification obligations represent the sole indemnification protections intended and the Parties waive all right to any other indemnification protections provided by common law, statute, or otherwise.
The parties acknowledge that ALL ASPECTS OF THE SERVICES, INCLUDING WITHOUT LIMITATION SOFTWARE, SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND PROPHONE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SUBSCRIBER ACKNOWLEDGES THAT PROPHONE DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY SUBSCRIBER FROM PROPHONE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
IN NO EVENT SHALL PROPHONE BE LIABLE TO SUBSCRIBER FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL, PUNITIVE OR OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING FROM OR IN CONNECTION WITH THE SERVICES. IF PROPHONE IS EVER DETERMINED TO HAVE ANY LIABILITY TO SUBSCRIBER ARISING DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, SUCH LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAYABLE TO PROPHONE UNDER THIS AGREEMENT DURING THE CALENDAR QUARTER ENDING IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
From time to time, ProPhone may offer third-party applications, APIs, and related services through or in connection with the Services. Subscriber acknowledges and understands that the use of such third-party applications, APIs, and related services may be subject to separate terms and conditions contained on the websites of, or as otherwise provided or made available by those third-party providers.
Form time to time, ProPhone may offer Subscriber the ability to link Subscriber’s Services account with a third-party service as a convenience to Subscriber. Subscriber agrees that such third-party service may share Subscriber’s data and personal information with ProPhone and ProPhone may use Subscriber’s access credentials for such third-party service to validate Subscriber’s right to link the third-party service account to the Services and to facilitate such data transfer. Subscriber acknowledges and agrees that ProPhone is not responsible for the third-party service, data or information provided by the third-party service to ProPhone, or Subscriber’s use of the third-party service alone or in connection with the Services.
The parties hereto are independent contractors. Neither party is an employee, agent, partner or joint venture of the other. Neither party shall have the right to bind the other to any agreement with a third party or to incur any obligation or liability on behalf of the other party.
Any dispute, controversy or claim arising out of, relating to, or in connection with this Agreement or any breach, termination or validity thereof (a “Dispute”) shall be solely and exclusively resolved by arbitration. The demand for arbitration shall be made within a reasonable time after the Dispute has arisen, but in no event shall it be made more than one year from when the aggrieved party knew or should have known of the controversy, claim, or facts forming the basis of the Dispute. The arbitration shall be initiated and conducted according to American Arbitration Association rules and procedures for commercial arbitration, including provisions for the resolution of consumer disputes, if applicable (the “Arbitration Rules”). The arbitration shall be conducted in Montgomery County, Tennessee before a single neutral arbitrator appointed in accordance with the Arbitration Rules. Either party may bring a Dispute in small claims court in Montgomery County, Tennessee to the extent permitted by the Arbitration Rules. If the amount in controversy is less than $10,000, the parties agree that the Dispute will be decided on the basis of written submissions without a hearing. The decision of the arbitrator will be final without option to appeal. To the fullest extent permitted by law, the arbitrator shall not have the power to award punitive, special, consequential, or indirect damages against any party. Arbitration costs and fees shall be divided in accordance with the Arbitration Rules. Each party shall be responsible for paying its own attorneys’ fees, costs, and expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines. No disputes may be arbitrated on a class or representative basis and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. BY AGREEING TO THIS AGREEMENT, EACH PARTY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO JOIN CLAIMS OR DISPUTES WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION, CLASS ARBITRATION, OR SIMILAR PROCEDURAL DEVICE; AND WAIVES ANY RIGHT IT MAY HAVE TO PRESENT ITS CLAIM OR DISPUTE IN A COURT OF LAW OR BEFORE A JURY. Judgment on the award rendered by the arbitrator(s), if any, may be entered for enforcement purposes in any court having jurisdiction thereof.
This Agreement is governed according to the laws of the State of Tennessee, without regard to its conflicts of law principles. Subject to the dispute resolution process described above, all claims, disputes, and suits must be brought exclusively in the state or federal courts located in Montgomery County, Tennessee, and the parties agree to the jurisdiction thereof.
Subscriber agrees to fully comply with all U.S. and other applicable export laws and regulations. Subscriber is not permitted to use the Services in connection with the processing of personal data of an EU, EEA, UK, or Swiss data subject or of any person located outside the United States of America.
If Subscriber provide any ideas, suggestions, or recommendations regarding the Services (“Feedback”), ProPhone will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind and without compensation or notice to Subscriber. By providing Feedback, Subscriber grants ProPhone a worldwide, perpetual, irrevocable, sublicensable, fully-paid and royalty-free license to use and exploit in any manner such Feedback. If Subscriber is using the Services in a business or for business purposes, it grants ProPhone a worldwide, perpetual, irrevocable, sublicensable, fully-paid and royalty-free license to use Subscriber’s trade name (and the corresponding trademark or logo) on ProPhones’ website and marketing materials to identify Subscriber as a current or former customer.
If a court of competent jurisdiction holds any provision of this Agreement to be contrary to law or public policy or otherwise unenforceable, the remaining provisions shall remain in full force and effect; and the invalid provision shall remain in force as reformed by the court. Portions of this Agreement which by their nature would survive termination thereof (e.g., disclaimer of warranties, limitation of liability, indemnification) shall be deemed to survive.
No term or provision of this Agreement shall be deemed waived and no breach consented to or excused, unless such waiver, consent or excuse is in writing and signed by the party claiming to have waived, consented or excused. Should either party consent, waive or excuse a breach by the other party, such shall not constitute a consent to, waiver of, or excuse of any other different or subsequent breach whether or not of the same kind as the original breach.
Each party represents and warrants to the other party that such party has the legal power to enter into this Agreement, that the signatory hereto has the authority to bind the applicable party, and this Agreement will constitute a legal, valid, and binding obligation of each party in accordance with its terms. Except for the payment of fees by Subscriber, if either party is rendered unable, wholly or in part, to carry out its obligations here under due to a force majeure event (i.e., act of God, strike, industrial disturbance, fire, store, flood, epidemic/pandemic, utility failure, governmental restraint, war, or other similar event), such party’s obligations under this Agreement will be suspended during the force majeure event. Subscriber agrees that ambiguities in this Agreement will not be construed against ProPhone by attribution of drafting. ProPhone may assign any of its rights or obligations to others at any time without notice to Subscriber. Subscriber may not assign any of its rights or obligations to others without ProPhones’ prior written consent.
Last Updated: March19, 2024
These ProPhone Messaging Terms & Conditions apply to your participation in the promotional text message program (the “Program”) provided by ProPhone Inc (“ProPhone”, “we”, “us”, “our”). They supplement our general Terms and Conditions which are incorporated be reference herein. Your participation in the Program is also subject to our Privacy Policy. We may update these Terms & Conditions at any time by posting an updated version on this website. Any changes will be effective immediately upon posting.
By agreeing to participate in the Program, you agree to receive recurring automated promotional and personalized marketing text (e.g., SMS and MMS) messages from ProPhone, including text messages that may be sent using an automatic telephone dialing system, to the mobile telephone number you provided when signing up or any other number that you designate. Consent to receive automated marketing text messages is not a condition of any purchase. Msg & Data rates may apply. Message frequency will vary. ProPhone reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent messages. ProPhone also reserves the right to change the short code or phone number from which messages are sent and we will notify you when we do so. Not all mobile devices or handsets may be supported and our messages may not be deliverable in all areas. ProPhone, its service providers and the mobile carriers supported by the program are not liable for delayed or undelivered messages.
Text the keyword STOP, END, CANCEL, UNSUBSCRIBE or QUIT to cancel. After texting STOP, END, CANCEL, UNSUBSCRIBE or QUIT you will receive one additional message confirming that your request has been processed. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands and agree that ProPhone and its service providers will have no liability for failing to honor such requests.
Text the keyword HELP to return customer care contact information.
If you are experiencing any problems, please email support@prophone.io
This message program is a service of ProPhone Inc located at 1306 Highgrove Ln Clarksville, TN 37043