PLEASE READ CAREFULLY
Before reading the articles below, please take good notice of the following preliminary terms, which terms make use of some of the definitions as specified in Article 1 below:
Entering into this Agreement: This End User License Agreement constitutes a valid and binding agreement between Dellmont and You, as a user, for the use of the Dellmont Software. You must enter into this Agreement by clicking on the ACCEPT button in order to be able to install and use the Dellmont Software. Furthermore, by installing and (continuously) using the Dellmont Software You agree to be bound by the terms of this Agreement and any new versions hereof.
Electronic Signatures and Agreement(s): You acknowledge and agree that by clicking on the ACCEPT button or similar buttons or links as may be designated by Dellmont to show Your approval of any foregoing texts and/or to download and install the Dellmont Software, You are entering into a legal binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Dellmont Software. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
Jurisdiction's Restrictions: if You are residing in a jurisdiction which restricts the use of internet-based applications according to age, or which restricts the ability to enter into agreements such as this agreement according to age and You are under such a jurisdiction and under such age limit, You may not enter into this Agreement and download, install or use the Dellmont Software. Furthermore, if You are residing in a jurisdiction where it is forbidden by law to offer or use software for internet telephony, You may not enter into this Agreement and You may not download, install or use the Dellmont Software. By entering into this Agreement You explicitly state that You have verified in Your own jurisdiction if Your use of the Dellmont Software is allowed.
Article 1. Definitions
In this Agreement the following capitalized definitions are being used, singular as well as plural.
1.1 Affiliate: any corporation, company or other entity that directly or indirectly controls, is controlled by, or is under common control with, Dellmont. For the purpose of this definition, the word "control" shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting stock of the corporation, company, or other entity.
1.2 Agreement: this End User License Agreement, as may be renewed, modified and/or amended from time to time.
1.3 API: application program interface that is included in or linked to the Dellmont Software.
1.4 Documentation: any online or otherwise enclosed documentation provided by Dellmont.
1.5 Effective Date: the date on which this Agreement is entered into by clicking on the ACCEPT button as stated above or by downloading, installing and (continuously) using the Dellmont Software.
1.6 IP Rights: any and all intellectual property rights, including but not limited to copyrights, trademarks and patents, as well as know how and trade secrets contained in or relating to the Dellmont Software, the Documentation, the Dellmont Website or the Dellmont Promotional Materials.
1.7 Dellmont: A trademark of Dellmont B.V., a company established under the laws of The Netherlands.
1.8 Dellmont Promotional Materials: any and all names, signs, logos, banners and any other materials, in whatever form, owned and/or used by Dellmont for the promotion of its company, its products and activities.
1.9 Dellmont Software: the software distributed by Dellmont for internet telephony applications, including without limitation the API, UI and Documentation, as well as any future programming fixes, updates and upgrades thereof.
1.10 Dellmont Staff: the officers, directors, employees and agents of Dellmont or its Affiliates, or any other persons hired by Dellmont or its Affiliates in relation with the execution of this Agreement.
1.11 Dellmont Website: any and all elements and contents of the website available published by Dellmont.
1.12 UI: the user interface of the Dellmont Software.
1.13 You: you, the end user of the Dellmont Software, also used in the form "Your" where applicable.
Article 2. License and Restrictions
2.1 License. Subject to the terms of this Agreement, Dellmont hereby grants You a limited, personal, non-commercial (at home or at work), non-exclusive, non-sublicensable, non-assignable, free of charge license to download, install and use the Dellmont Software on Your computer or PDA, for the sole purpose of internet telephony applications and any other applications that may be explicitly provided by Dellmont.
2.2 No Granting of Rights to Third Parties. You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Dellmont Software.
2.3 No Modifications. You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Dellmont Software.
2.4 Third Parties. You acknowledge and agree that the Dellmont Software may be incorporated into, and may incorporate itself, software and other technology owned and controlled by third parties. Dellmont emphasizes that it will only incorporate such third party software or technology for the purpose of (a) adding new or additional functionality or (b) improving the technical performance of the Dellmont Software. Any such third party software or technology that is incorporated in the Dellmont Software falls under the scope of this Agreement. Any and all other third party software or technology that may be distributed together with the Dellmont Software will be subject to you explicitly accepting a license agreement with that third party. You acknowledge and agree that you will not enter into a contractual relationship with Dellmont or its Affiliates regarding such third party software or technology and you will look solely to the applicable third party and not to Dellmont or its Affiliates to enforce any of your rights.
2.5 New Versions of the Dellmont Software. Dellmont, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the Dellmont Software. You acknowledge and agree that Dellmont has no obligation to make available to You any subsequent versions of the Dellmont Software. You also agree that you may have to enter into a renewed version of this Agreement, in the event you want to download, install or use a new version of the Dellmont Software. Furthermore, you acknowledge and agree that Dellmont, in its sole discretion, may modify or discontinue or suspend Your ability to use any version of the Dellmont Software, or terminate any license hereunder, at any time. Dellmont also may suspend or terminate any license hereunder and disable any Dellmont Software You may already have accessed or installed without prior notice at any time.
2.6 Paid Services. This Agreement applies to downloading, installing and using the Dellmont Software, free of charge. The use of any paid services which may be offered by Dellmont or its Affiliates, is subject to the additional Terms of Service that are published on the Dellmont Website.
Article 3. Exceptions to License Restrictions
3.1 Redistribution. You are not allowed to redistribute the Dellmont Software, unless You have agreed to and meet with the Distribution Terms that are published on the Dellmont Website.
3.2 API. You are not allowed to use or modify the API, unless You agree to and meet with the following subsequent terms:
- 3.2.1 You may only make use of and/or modify the API to distribute the Dellmont Software (a) for any legitimate purpose
s and (b) provided that You will not remove, overtake, hide or otherwise make the UI inaccessible for end users.
- 3.2.2 You will constantly monitor the Dellmont Website in order to ensure that You are distributing the latest stable version of the Dellmont Software as well as that You are aware of any changes in the applicable legal documents. In the event You cannot agree on any changes in any applicable legal document, You will immediately cease any and all use of the API and, where applicable, any and all use of the Dellmont Software.
- 3.2.3 You acknowledge and agree that Your use and/or modification of the API will be at Your own risk and account.
3.3 You acknowledge and agree that any IP Rights arising directly from the API are the exclusive ownership of Dellmont or its licensors without any compensation to You. Insofar as necessary, this Agreement serves as a deed of assignment of all of Your right, title and interest in and to such API modifications to Dellmont, notwithstanding Your obligation to cooperate with Dellmont in order finalize any other deed upon Dellmont's first request. You hereby irrevocably waive to the extent permitted by law any moral rights relating to YourAPI modifications. You furthermore represent and warrant that (a) You are authorized to assign Your rights as stated above and (b) Your API modifications are correct and accurate and (c) the API modifications do not infringe upon any third parties' rights, including but not limited to intellectual property rights.
3.4 Any other Exceptions. If You are interested in doing anything else than permitted under this Agreement or by the Distribution Terms, the API Terms or the Dellmont Promotional Materials Terms, You will have to obtain Dellmont's written consent and agree on any further (commercial) terms.
Article 4. Permission to Utilize
4.1 Permission to utilize Your computer. In order to receive the benefits provided by the Dellmont Software, you hereby grant permission for the Dellmont Software to utilize the processor and bandwidth of Your computer for the limited purpose of facilitating the communication between You and other Dellmont Software users.
4.2 Protection of Your computer (resources). You understand that the Dellmont Software will use its commercially reasonable efforts to protect the privacy and integrity of Your computer resources and Your communication, however, You acknowledge and agree that Dellmont cannot give any warranties in this respect.
Article 5. Confidentiality and Privacy
5.1 Dellmont's Confidential Information. You agree to take all reasonable steps at all times to protect and maintain any confidential information regarding Dellmont, its Affiliates, the Dellmont Staff, the Dellmont Software and the IP Rights, strictly confidential.
Article 6. IP Rights and Translations
6.1 Exclusive Ownership. You acknowledge and agree that any and all IP Rights are and shall remain the exclusive property of Dellmont and its licensors. Nothing in this Agreement intends to transfer any IP Rights to, or to vest any IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, including without limitation copyright laws and trademark laws.
6.2 No Removal of Notices. You agree that You will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or Dellmont's rights and ownership thereof.
6.3 Translations. You acknowledge and agree that the intellectual property rights regarding any translations made by You of any information on or accessible through the Dellmont Website or as otherwise requested of You by Dellmont at any time prior to or subsequent of the Effective Date will be and remain the sole and exclusive property of Dellmont without any compensation to You. Insofar as necessary, this Agreement serves as a deed of assignment of all of Your right, title and interest in and to such translations to Dellmont, notwithstanding Your obligation to cooperate with Dellmont in order finalize any other deed upon Dellmont's first request. You hereby irrevocably waive to the extent permitted by law any moral rights relating to Your translations. You furthermore represent and warrant that (a) You are authorized to assign Your rights as stated above and (b) Your translations are correct and accurate and (c) the translations do not infringe upon any third parties' rights, including but not limited to intellectual property rights.
6.4 Use of Dellmont Promotional Materials. You are not allowed to use the Dellmont Promotional Materials, unless You have agreed on and meet with the Dellmont Promotional Materials Terms as published on the Dellmont Website.
Article 7. Communication and Your Use of the Dellmont Software
7.1 Communication. Installing Dellmont Software enables You to communicate with other Dellmont Software users.
7.2 No Warranties. Dellmont cannot guarantee that You will always be able to communicate with other Dellmont Software users, nor can Dellmont guarantee that You can communicate without disruptions, delays or other communication-related flaws. Dellmont will not be liable for any such disruptions, delays or other omissions in any communication experienced when using Dellmont Software or any other issues over which Dellmont has no control.
7.3 No Control. You acknowledge and understand that Dellmont does not control, or have any knowledge of, the content of any communication(s) spread by the use of the Dellmont Software. The content of the communication is entirely the responsibility of the person from whom such content originated. You, therefore, may be exposed to content that is offensive, indecent or otherwise objectionable. Dellmont will not be liable for any type of communication spread by means of the Dellmont Software.
7.4 No Emergency Services. You expressly agree and understand that the Dellmont Software is not intended to support or carry emergency calls to any type of hospital, law enforcement agency, medical care unit or any other kind of emergency service. Dellmont, its Affiliates or Dellmont Staff are in no way liable for such emergency calls.
7.5 Lawful purposes. You acknowledge and agree to use the Dellmont Software solely for lawful purposes. In this respect You may not, without limitation (a) intercept or monitor, damage or modify any communication which is not intended for You, (b) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the Dellmont Software or the communication, or (c) send any unsolicited commercial communication not permitted by applicable law.
Article 8. Term and (Consequences of) Termination
8.1 Term. This Agreement will be effective as of the Effective Date and will remain effective until terminated by either Dellmont or You as set forth below.
8.2 Termination by Dellmont. Dellmont may terminate this Agreement at any time, with or without cause, by providing notice to You and/or by preventing Your access to the Dellmont Software, as set forth in Article 2.5 above.
8.3 Termination by You. You may terminate this Agreement at any time, with or without cause, provided that You will meet with the conditions as set forth in Article 8.4 below.
8.4 Consequences of Termination. Upon termination of this Agreement, You (a) acknowledge and agree that all licenses and rights to use the Dellmont Software shall terminate, and (b) will cease any and all use of the Dellmont Software, and (c) will remove the Dellmont Software from all hard drives, networks and other storage media and destroy all copies of the Dellmont Software in Your possession or under Your control.
Article 9. Your Representations and Warranties; Indemnification of Dellmont
9.1 Representations. You represent and warrant that You are authorized to enter into this Agreement and comply with its terms. Furthermore, You represent and warrant that You will at any and all times meet with Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the Dellmont Software.
9.2 Indemnification. You agree to indemnify, defend and hold Dellmont, its Affiliates and the Dellmont Staff harmless from and against any and all liability and costs, including reasonable attorneys' fees incurred by said parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law, regulation, policy or guideline, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use or misuse of the Dellmont Software, or (d) use and/or modification of the API or (e) communication spread by means of the Dellmont Software.
Article 10 Disclaimer of Warranties
10.1 No warranties. THE DELLMONT SOFTWARE IS PROVIDED AS IS, WITH NO WARRANTIES WHATSOEVER; DELLMONT DOES NOT, EITHER EXPRESSED, IMPLIED OR STATUTORY, MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE DELLMONT SOFTWARE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE. DELLMONT FURTHER DOES NOT REPRESENT OR WARRANT THAT THE DELLMONT SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES DELLMONT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE DELLMONT SOFTWARE.
10.2 Your own Risk. You acknowledge and agree that the entire risk arising out of the use or performance of the Dellmont Software remains with You, to the maximum extent permitted by law.
10.3 Jurisdiction's Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You.
Article 11. Limitation of Liability
11.1 No Liability. The Dellmont Software is being provided to You free of charge. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT DELLMONT, ITS AFFILIATES AND THE DELLMONT STAFF WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE DELLMONT SOFTWARE, AS SET FORTH BELOW.
11.2 Limitation of Liability. IN NO EVENT SHALL DELLMONT, ITS AFFILIATES OR THE DELLMONT STAFF BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE DELLMONT SOFTWARE, EVEN IF DELLMONT, ITS AFFILIATES OR THE DELLMONT STAFF HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 Remedy. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE DELLMONT SOFTWARE IS TO DEINSTALL AND CEASE USE OF SUCH DELLMONT SOFTWARE.
11.4 Jurisdiction's Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You.
Article 12. General Provisions
12.1 New versions of the Agreement. Dellmont reserves the right to modify this Agreement at any time by providing such revised Agreement to You or by publishing the revised Agreement on the Dellmont Website. Your continued use of the Dellmont Software shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.
12.2 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You and Dellmont with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.
12.3 Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.
12.4 No waiver. The failure of Dellmont at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by Dellmont.
12.5 No Assignment by You. You are not allowed to assign this Agreement or any rights hereunder.
12.6 Assignment by Dellmont. Dellmont is allowed to at its sole discretion assign this Agreement or any rights hereunder to any Affiliate, without giving prior notice.
12.7 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of The Netherlands without giving effect to the conflict of laws or provisions of The Netherlands or Your actual state or country of residence.
12.8 Competent Court. Any legal proceedings arising out of or relating to this Agreement will be subject to the exclusive jurisdiction of any court of The Netherlands sitting in The Netherlands.
YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE DELLMONT SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY ITS TERMS AND CONSITIONS AND GRANT TO DELLMONT THE RIGHTS SET FORTH HEREIN.
Article 13. Fair Use Policy
13.1. It is important to SmartVoip that all eligible SmartVoip customers are able to access our Services. Accordingly, We have devised a Fair Use Policy which applies to:
(a) usage of SmartVoip calls
(b) usage of VoIP-In numbers
(c) usage of promotions; and
(d) any other promotions which are advertised by SmartVoip as subject to the Fair Use Policy ("Fair Use Promotions").
13.2. We reserve the right to vary the terms of the Fair Use Policy from time to time.
13.3. SmartVoip may rely on the Fair Use Policy where your:
(a) usage of SmartVoip calls;
(b) usage of your VoIP-In number
(c) participation in a Fair Use Promotion, is excessive or unfair, as defined below.
13.4. In the case of SmartVoip calls, there are restrictions on the maximum number of calls and the duration of the calls.
13.5. In the case of VoipIn numbers, applying for more than one number is excessive use
13.6. In the case of Fair Use Promotions, what is excessive use will either be advertised by SmartVoip at the time of the relevant promotion or included in this Fair Use Policy prior to the commencement of the relevant promotion.
13.7. It is unfair use where You attempt to gain unauthorized access to any feature or part of SmartVoip Services or Network by any illegitimate means.
13.8. It is unfair use where You use any device or software to interfere or attempt to interfere with the proper working of the SmartVoip Services or any transaction being conducted on SmartVoip Network.
13.9. It is unfair use where You forge headers or otherwise manipulate identifiers in order to disguise Your origin. You may not pretend that you are, or that you represent, someone else, or impersonate any other individual or entity especially for Fair Use Promotion.
13.10. It is unfair use where You attempt to resupply a SmartVoip Service without SmartVoip`s prior consent.
13.11. It is unfair use where You use SmartVoip Services or Network for any purpose that is unlawful or prohibited by this Fair Use Policy, or to solicit the performance of any illegal activity or other activity which infringes the rights of DELLMONT.
13.12. SmartVoip may charge you a cost-price based rate for any subsequent calls to one of the destinations, terminate your account, or deny the use of the SmartVoip service or features of it.
Article 14. Payments / Credit
14.1. Credit, purchased using any payment method, is valid for an indefinite period of time. There is no limit to the maximum amount of credit per user account.
14.2. Unused credit, purchased by Credit Card, can be refunded within 90 days after purchase date by submitting a request at the customer service of the respective Dellmont label.
14.3. Upon a duly submitted refund request for credit purchased by Credit Card, Dellmont will refund the credit balance, also in the event you terminate your user account.
Last revised: January 2011.
SmartVoip Credit Card payments will appear as DELLMONT on your bank or card statement.
PO Box 368
2130 AJ Hoofddorp
Commercial Register of the Local Court: The Netherlands
Registered under number: 73623806
VAT registration number: NL820415182B01
For (payment) inquiries, please go to our Help section.