Last Updated: May 26, 2015
These Terms and Conditions constitute an agreement (this “Agreement”) between Ooma, Inc., its subsidiaries, affiliates, agents, and/or licensors (“Ooma”, “we”, “us,” or “our”) and you (“customer”, “you” or “your”). Your use of the Ooma Business Promoter service is governed by these terms and conditions and the most recent version of the Standard Terms and Conditions for Agreement between Customers and Ooma, located at https://www.ooma.com/legal/terms-and-conditions the “Standard Terms”) (such governing agreements collectively are referred to herein as the “Terms”).
YOU REPRESENT TO US THAT YOU HAVE THE AUTHORITY TO ENTER THIS AGREEMENT AND THAT YOU HAVE READ AND FULLY UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Ooma may revise, amend, or modify this Agreement at any time and in any manner by posting such changes on our web site. You should review this Agreement regularly for changes, and can easily identify if changes have been made by checking the “last updated” date at the top of this page. Your continued use of our services for a reasonable period of time following the posting of any changes to this Agreement means you accept such changes. This Agreement may not be amended or modified by you.
1. Services. Based on the information that you submitted to Ooma when you registered for the Ooma Business Promoter service, and the information gathered by Ooma when you activated your Ooma Office device, including but not limited to, your business location, the internet protocol address, or the “IP address”, of your Ooma Office device, your name and telephone number, and your selected business category (collectively, your “Business Data”) and subject to this Agreement, Ooma will provide you with digital call advertising services (collectively, the “Promoter Service”) that are designed to generate qualified inbound customer telephone calls to your business phone number. The Promoter Service includes the use and placement of your Business Data, together with creative materials and other content that you or we may provide, with a call tracking telephone number (a “CTN”) owned by us or our distribution partners or other affiliates (our “Affiliates”), in connection with paid search programs, within media such as business listings or profiles (the “Profiles”), and/or advertisements that we or our Affiliates own, create, modify, optimize, rank or otherwise manage on your behalf. The Profiles are used by business information and local search web sites, mobile services, voice-prompted search services and the like, through which we operate the Promoter Service via our proprietary systems, including the networked connections and processing capabilities of the Ooma hardware owned by Ooma customers that activate the Promoter Service (such hardware, the “Networked Hardware”, and collectively, the “Promoter Network”).
2. Term and Termination.
2.1 Term. The term for the Promoter Service will begin on the date you activate it and will continue until the Promoter Service is terminated by you or by us, as is more fully set forth herein.
(a) By You: You may terminate the Promoter Service by calling our Customer Care Department at the number posted on the web site. You may make the termination effective at the end of the first full calendar month of the Term, or at the end of any subsequent calendar month, by requesting termination at least ten (10) days prior to the end of such calendar month. Subject to applicable law, there are no refunds for unused service terms.
(b) By Us: We may terminate the Promoter Service at any time (a) as set forth in Section 13 of the Standard Terms, or (b) for any other reason or no reason by providing notice to you at least five (5) days prior to such termination.
(c) The provisions set forth in this Section 2.2(c), Sections 4.3 and 4.4 and in Sections 5 – 9 will survive any expiration or termination of this Agreement.
3.1 Charges to Your Credit Card. We will charge you at the beginning of the month for each Qualified Call (as defined below) during the previous month, based upon the applicable pricing rate per Qualified Call for your Business Promoter Plan. A “Qualified Call” means a telephone call placed to the CTN assigned to your Business Data with a duration of at least 90 seconds from connection, provided that any repeat calls placed by the same caller to the same CTN within any 48-hour period will not be Qualified Calls. You are responsible for all taxes associated with the Promoter Service other than taxes based on Ooma’s net income.
3.2 Authorization; Failure to Promptly Pay Amounts Owed. You authorize us to charge your credit card for any amount owed under this Agreement. If at any time your payment is declined for any reason, we reserve the right to terminate or suspend the Promoter Service immediately and without prior notice. Notwithstanding the foregoing, if we are unable to charge the applicable fees and charges to your credit card, then you agree to pay an insufficient funds fee equal to five percent (5%) of the total amount due. We may also charge a monthly late payment fee equal to one and one-half percent (1.5%) of the outstanding balance or the highest rate allowed by law, if lower. Termination of this Agreement and/or payment of late fees shall not prejudice any other rights or remedies that we may have with respect to nonpayment. You agree that you will be responsible for all reasonable expenses and attorneys’ fees we may incur to collect payments owed under this Agreement.
3.3 Calculations. You hereby acknowledge and agree that (i) Ooma is solely responsible for tracking and calculating the performance, delivery, and other metrics in connection with the Promoter Service, including without limitation, the number of Qualified Calls generated and all related measurements and data; and (ii) that such measurements and data will be the sole and definitive measure thereof. You agree to notify us of any discrepancies on any charge in connection with your use of the Promoter Service within ten (10) days following such charge, after which time you waive all claims or disputes with respect to such charges. Subject to the foregoing, Ooma will resolve any such dispute in good faith in its sole and absolute discretion and has no obligation to provide any particular remedy.
4. Rights; Responsibilities; Restrictions.
4.1 Permissions. Ooma and our Affiliates may use your Business Data and any other related information, content and marks (including without limitation any trademarks, identifiers, brand names, logos or other images) that you provide to us or which is publicly available, as well as the connection and communication capabilities of the Networked Hardware (including yours), in connection with the provision of Promoter Service and the operation of the Promoter Network, and you expressly authorize Ooma and its Affiliates to do so. Your Business Data may be placed, delivered and used throughout the Promoter Network and you expressly authorize, direct and consent to all such placements and use. Ooma reserves the right to reject any Business Data in Ooma’s sole discretion. To the extent your Business Data is placed on the Promoter Network Ooma will be deemed your transaction agent, with express authority to enter into such agreements and to take such actions as may be necessary to provide the Promoter Service.
4.2 Reporting Interface. Ooma will provide you with access to an online reporting interface where you will be able to view the number of Qualified Calls and to download call logs. You agree to protect any passwords or other credentials associated with your account and take full responsibility for the access and use of your account with such credentials, both by yourself, by parties you authorize to do so, and by unauthorized parties who obtain such credentials from you through no fault of Ooma.
4.3 Ownership. Title and full ownership rights in and to the Promoter Service, the Promoter Network and the Profiles, together with any and all ideas, concepts, computer programs and other technology supporting or otherwise relating to Ooma’s operation of the Promoter Service and the Promoter Network (collectively, the “Materials”) is and will remain the sole and exclusive property of Ooma and/or its vendors and licensors. Customer has not acquired any ownership interest in the Materials and will not acquire any ownership interest in the Materials by reason of this Agreement. Without limiting the foregoing, the customer will own the performance data collected pursuant to this Agreement that is specific to customer’s account (the “Customer Performance Data”), provided that Ooma and its vendors that handle such data will retain a non-exclusive, perpetual right to use the Customer Performance Data in connection with the delivery of their respective products and services on an aggregated (non-personally identifiable) basis for purposes that include without limitation quality assurance, advancing and improving such products and services and industry intelligence.
4.4 CTNs. You will not have the right to re-assign any CTN or to use it other than as explicitly set out herein without Ooma’s prior written consent. All CTNs are provided solely for use by Ooma in accordance with the terms and conditions of this Agreement. Upon expiration or termination of this Agreement, all your rights to use of the CTNs and the Promoter Service will cease absolutely and you will not thereafter distribute or sell any materials whatsoever bearing a CTN provided by Ooma. You acknowledge and agree that the use of the CTNs may be further limited by, among other factors, changes to telephone carrier terms, changes in carrier relationships, guidelines recommended by Federal, state or local regulators, or changes to applicable law and regulation from time to time. Upon termination of this Agreement, all Profiles including the CTNs may be re-purposed and/or deleted at OOMA’s own discretion.
4.5 Modifications. From time to time, Ooma may make immaterial modifications to the Promoter Service (including the look and feel, and the functionality of any online account management interface). Your sole remedy with respect to such modification is to terminate this Agreement or suspend or cancel your account(s). Your continued use of the Promoter Service following a modification will constitute your consent thereto.
5. Representations and Warranties. You hereby represent, warrant and covenant to Ooma that: (i) you possess all requisite legal rights, capacity and authority to accept these Terms and enter into this Agreement; (ii) any and all information you provide in connection with this Agreement, including without limitation the Business Data, is true, accurate and complete; (iii) without limiting the foregoing, any business telephone numbers you provide us are true and correct numbers for your business and/or affiliated business entities, and you possess all rights and permission necessary to provide such business telephone numbers for the provision of the Promoter Service as contemplated hereunder; (iv) you will use the Promoter Service in compliance with all applicable laws, rules and regulations, will not advertise anything illegal or engage in any illegal, fraudulent, misleading or deceptive business practices; (v) you hold all necessary rights and/or licenses to permit Ooma to perform the Promoter Service; (vi) this Agreement constitutes your legal, valid and binding obligation, enforceable against it in accordance with its terms; and (vii) your use of the Promoter Service complies with all industry guidelines, rules of professional conduct or the like that apply to the operation of your business and its use of the Promoter Service.
6. Indemnification. You will indemnify, defend and hold Ooma and its affiliated companies, Ooma’s vendors and licensors and any of their respective officers, directors, employees, representatives and agents, from and against all claims, actions, liabilities, losses, expenses, damages and costs (including without limitation, reasonable attorneys’ fees) (collectively, “Claims”) that may at any time be incurred by any of them by reason of any third party claims, suits or proceedings, including without limitation for libel, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party intellectual property right or other right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with any act or omission by you, including your use of the Promoter Service and provision of the Business Data hereunder, or your material breach of any term, condition, agreement, representation or warranty hereunder. Ooma will notify you of any claim, action or demand for which indemnity is required in its reasonable opinion and will reasonably cooperate with you in the defense of such claim, action or demand at your expense. You will not enter into any settlements in any matters arising under this Section 6 without Ooma’s prior written consent and Ooma will have the right to participate in any defense of any such claim, action or demand, and/or to be represented by counsel of Ooma’s choosing at its own expense. If you or your business is a “Covered Entity” under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), you waive any Claims you or your business may have against Ooma arising out of or in connection with HIPAA requirements and you acknowledge and agree that your indemnity and other obligations set forth in this Section 6 also apply to any and all Claims that are related to or arise from your or your business’s failure to comply with HIPAA requirements.
7. Warranty Disclaimer. THE PROMOTER SERVICE, INCLUDING THE PROMOTER NETWORK AND THE PROFILES, IS PROVIDED ON AN “AS IS,“ “AS AVAILABLE“ BASIS. OOMA AND ITS VENDORS DISCLAIM ALL WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED WITH RESPECT THERETO, OR THE AVAILABILITY, FUNCTIONALITY, VOLUME OR QUALITY OF CALLS, PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER OOMA OR ITS VENDORS WARRANT OR GUARANTEE THAT THE PROMOTER SERVICE OR OPERATION THEREOF WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET YOUR REQUIREMENTS. ANY STATEMENTS AND DESCRIPTIONS CONCERNING THE PROMOTER SERVICE BY OOMA OR ITS AGENTS OR REPRESENTATIVES ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
8. Limitation of Liability. OOMA WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF DATA, LOSS OF PROFITS, INCOME, GOODWILL OR LOSS OF BUSINESS OPPORTUNITY, EVEN IF OOMA IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OOMA’S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO OOMA FOR THE PROMOTER SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE BASIS FOR LIABILITY.
9. Confidentiality. You acknowledge and agree that any usage statistics or other results, data or performance information relating to the Promoter Service, other than your Customer Performance Data, is Ooma’s confidential information and you will not use or disclose such information to third parties except as is reasonably required for you to use the Promoter Service as permitted hereunder.
10. Miscellaneous. If any provision in this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way. This Agreement and the Standard Terms constitute the entire agreement between you and Ooma relating to the Promoter Service. You agree that you have not relied upon any representations, oral or otherwise, not contained within this Agreement. This Agreement will be governed by and construed according with the laws of the State of California without regard to its conflict of laws rules. You acknowledge and agree that third parties with whom Ooma may contract from time to time in order to provide the Promoter Service, including without limitation Ooma’s suppliers, vendors, distribution partners, technology partners, and licensors are intended third party beneficiaries to this Agreement with the right to enforce the terms of this Agreement against you. Sections 3 and 6-9 shall survive any termination or expiration of this Agreement, along with any provision that might reasonably be deemed to survive such termination.
THE STANDARD TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES YOUR USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE ANY DISPUTES OR CLAIMS YOU MAY HAVE WITH OOMA, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Your use of the Promoter Service is governed by and construed under the laws of the State of California without regard to its conflict of law rules. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with the arbitration provisions contained in the Standard Terms, such action shall only be brought in a court of competent jurisdiction in San Mateo County and you shall submit to the personal and exclusive jurisdiction of the courts located within the state of California and waive any objection as to venue or inconvenient forum.
By clicking on “I Accept” you acknowledge that you have read and are bound by this Agreement and the Standard Terms.