This Agreement, which is made between Silent Circle (“we”, “our”, “us”, or “Silent Circle) and the customer (“you”, “your”, or “Customer”), supersedes all proposals or prior agreements, written, oral, or electronic, and all other communication between the parties or their agents. The Customer acknowledges that he or she has not relied on any representation, warranty, collateral contract, or other assurances made by or on behalf of Silent Circle outside of this Agreement, or by a reseller, wholesaler, affiliate, agent, or other party. The Customer waives all rights and remedies which, but for this clause, might otherwise be available.
No waiver of the Terms and Conditions contained herein, or amendment to this Agreement shall be binding on Silent Circle unless set out in writing, explicitly stating that it is such a waiver or amendment, and duly signed by an Officer of Silent Circle.
1. Limitations of E911 Emergency Services
Silent Phone cannot be used for emergency calling. The Federal Communications Commission requires wireless service providers to connect emergency calls (i.e. 911) to “Public Safety Answering Points” whether the phone user is one of their subscribers or not. Silent Phone is a software application that operates on your phone; the obligation to connect and make emergency calls falls on your devices’ wireless provider.
2. Service Term
The term of this Agreement (“Term”) begins on the date that you purchase Services from Silent Circle. The Term extends until either 1) the end of a 30 day subscription period, if you have not signed a separate agreement with Silent Circle, or 2) until the end of the Term agreed upon in the initial service agreement. At the end of the current Term, the Term will automatically renew, and extend another 30 days, or for a period equal to the initial agreed upon Term, whichever is longer. When you notify Silent Circle of your intention to cancel some or all Services, those Services will not renew at the end of the Term. You understand, and agree, that you are responsible for paying for Services through the end of the current Term. The expiration of the Term does not relieve you of your responsibility for paying all Charges you have incurred under this Agreement. All amounts paid to Silent Circle, including for credit balances, are non-refundable.
3. Billing, Credit Determination, Charges, and Payment
3.1 Payment
At the time of purchase or activation, Customer must provide Silent Circle with valid credit card information. Further, Customer agrees to proactively notify Silent Circle of any change to the credit card information, including but not limited to changes in the billing address or expiration date, or to provide new credit card information should the previously provided credit card account cease to be valid or cease to have sufficient remaining credit for Silent Circle to charge the Credit Card for Services.
Customer hereby authorizes Silent Circle to charge the Credit Card, on a recurring basis and without any additional notice or consent, for all charges arising from Customer’s purchase, activation, disconnection,and usage of Services under this Agreement. Customer also understands that the total charges may vary from month to month as a result of toll charges, price changes or changes in the structure of pricing, inflation adjustments, or changes in the level or amount of Service requested by the Customer.
Silent Circle shall not be liable or responsible for any charges a Credit Card issuer levies against the Customer for exceeding Customer’s credit limit, insufficient funds, or any other reason, regardless of the date which Silent Circle charges the Credit Card for Services. In all cases, Customer agrees to make available appropriate payment for Services in advance of the time period during which such Services are provided.
3.2 Chargebacks
You hereby agree that under no circumstances will you initiate a chargeback with your Credit Card issuer without first sending notice of the disputed charge to Silent Circle and working with Silent Circle in good faith for no less than fifteen (15) business days to resolve the dispute.
3.3 Service Charges
Service charges are billed and charged to your Credit Card at the beginning of the subscription period for the services that will be provided during that subscription period.
3.4 Usage Charges
Usage charges are billed at the end of the call incurring such charges.
3.5 Taxes
Prices for the Services are currently inclusive of all taxes. This may change at any time, in Silent Circle’s sole discretion. If we change to tax-exclusive pricing (as we may be required to do, or may elect to do), your current service charge (including contracted service charges) will become the tax-exclusive charge for the Services, and taxes will be charged on that basis. If we change to tax-exclusive pricing, we may recover from you all taxes arising in any jurisdiction, including without limitation all: sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, property, consumption, or other taxes, fees, duties, charges or surcharges (however designated) which are imposed on or based on the provision, sale or use of the Services, including such taxes imposed directly on Silent Circle or for which Silent Circle is permitted to invoice Customer. Taxes do not include Silent Circle’s income taxes.
3.6 Regulatory Recovery Fee
We currently do not charge our customers a Regulatory Recovery Fee. This may change at any time, in Silent Circle’s sole discretion.
3.7 Toll Charges
Toll charges are billed in one minute intervals, and are rounded up to the nearest minute, and then rounded up to the nearest whole cent. In certain circumstances, including but not limited to international calling, you may be billed for calls dialed but not completed. You are responsible for these charges.
3.8 Late-payment / Non-payment
If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined credit card charges, Silent Circle may suspend or terminate the Services and all accrued charges shall be immediately due.
3.9 Rate Changes
Silent Circle may change the prices for the Services and toll charges from time to time. Silent Circle may change prices, plans, taxes, or fees without any advance notice. Without limiting the foregoing, Silent Circle may recover from Customer (at a minimum) its costs to terminate or originate calls for customer.
3.10 Credits
Customer acknowledges and agrees that the Services are provided “as is, where is.” Credit allowances for interruption of the Services shall not be provided.
3.11 Billing Disputes
Customer must dispute any charges for the Services in writing within thirty (30) days of the date of the charge by Silent Circle or Customer waives any objection and further recourse. Written statements disputing charges must be sent to:
support@silentcircle.com
4. Telephone Numbers
Any telephone number provided by Silent Circle (“Number”) to the Customer shall be leased and not sold. Customer is not to use the Number with any other Service without the express written permission of Silent Circle. Silent Circle reserves the right to change, cancel or move the Number at its sole discretion. Telephone numbers provided by Silent Circle are not portable.
5. Prohibited Uses
Any use of the Services or any other action that causes a disruption in the network integrity of Silent Circle or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services at the sole discretion of Silent Circle. Customer understands that neither Silent Circle nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. Customer agrees that it will NOT use the Services in ways that violate laws (including but not limited to laws prohibiting transmission of unsolicited fax advertisements), infringe the rights of others, or interfere with the users, or services, of the network. Customer agrees and represents that it is purchasing the Services for its own internal use only, and shall not resell, transfer or make a charge for the Services without the advance express written permission of Silent Circle. Customer shall not transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Customers further agree not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Any use found to be inconsistent with this restriction will result in termination of the Service.
6. Fraudulent Calls
Customer shall indemnify and hold Silent Circle harmless from any and all costs, expenses, damages, claims or actions arising from fraudulent calls of any nature which originate from the Customer’s account.
7. Changes to the Agreement, Services, or Plan
Silent Circle may from time to time post a new version of these terms of service on its website at “https://www.silentcircle.com/terms-and-conditions/”. These new terms will become the new Agreement immediately upon posting. Silent Circle may not through this clause retroactively alter or amend any term, retroactively alter the rights or responsibilities of the parties, or affect the dispute resolution, remedies, liability, or indemnification of any existing claim or cause of action. You should check our terms periodically and agree that your continued use of our service constitutes your agreement to any updated Agreement.
8. Notices
Notice will be considered received by Customers and such changes will become binding to Customers, on the date the changes are posted to the Web Site (“Change Date”), and no additional notice will be required. If Customer does not send Silent Circle notification of their desire to terminate this agreement or uses the Service after the Change Date, Customer is deemed to have accepted and consented to the change of terms and conditions of the Service. If Customer does not consent to the change of service and terminates this agreement, Customer will be responsible for any sums due hereunder.
9. Termination
Customer shall be responsible for the full 30 day service fee for the subscription during which the notice of termination of service is provided to Silent Circle. Silent Circle reserves the right, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, Customer’s breach of this Agreement, Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer that adversely affects the Services, Silent Circle, Silent Circle’s network or other Customers’ use of the Services. Silent Circle reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and Customer agrees that Silent Circle’s determination is final and binding on Customer.
10. Privacy
Silent Circle is committed to respecting a Customer’s privacy. Once Customer chooses to provide personally identifiable information, it will only be used in the context of the Customer’s relationship with Silent Circle.
11. Technical Support
Silent Circle provides certain technical support depending on a number of factors, including the Services that you are using and problems that you report experiencing. Our support services may be utilized via email for the Services provided under this Agreement. Silent Circle cannot provide support for third party products or services, applications, or customer uses of the Services. If during the course of investigating a reported problem, Silent Circle suspects, in its sole and absolute discretion, that the problem relates to non-Silent Circle products or services, Silent Circle may politely inform you that we cannot continue to provide support for the issue. This measure is intended to keep costs low for all customers. Silent Circle may change the methods or scope of the technical support services that we offer at any time.
12. INDEMNIFICATION
CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS Silent Circle, ITS OFFICERS, DIRECTORS, EMPLOYEES, VENDORS, WHOLESALERS, RESELLERS, AFFILIATES, AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) RELATING TO THE SERVICES UNDER THIS AGREEMENT.
13. DISCLAIMER OF CONSEQUENTIAL DAMAGES
IN NO EVENT, AND UNDER NO THEORY OF LIABILITY, SHALL Silent Circle OR ITS VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE SERVICES OR PRODUCTS PROVIDED HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF Silent Circle OR ITS VENDORS OR OTHERWISE.
14. WARRANTY AND LIMITATIONS OF LIABILITY
Silent Circle MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE, OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS.
Without limiting the above, Silent Circle explicitly does not warrant that the Service will be without failure, delay, interruption, error, degradation of voice quality, or loss of content, data, or other information. Statements and descriptions concerning the Service, if any, by Silent Circle, or Silent Circle’s agents, distributors, or resellers are informational ONLY in nature and are NOT given as a warranty of any kind.
Regardless of any statute or law to the contrary, any claim against Silent Circle or arising out of or related to use of the Service or the Agreement must be made within 90 days of the event of the claim or 90 days from the termination of service, whichever is earlier, and without regard to the timing of discovery, or be forever barred. Silent Circle’s liability is limited to credit, or refund. Silent Circle may elect to provide a refund in lieu of credit. In no event shall Silent Circle’s total liability hereunder exceed the amounts paid by Customer to Silent Circle in the prior twelve (12) months from date of claim.
15. Export Compliance
Customer agrees to comply with U.S. export laws concerning the transmission of technical data and other regulated materials via the Services. Customer agrees to comply with applicable local, state and federal regulations governing the locality in which the Services are used.
16. Phone Numbers and Web Portal Discontinuance
Upon expiration, cancellation, or termination of the Services, Customer shall relinquish and discontinue use of any numbers, and/or web portals assigned to Customer by Silent Circle or its vendors.
17. Software Copyright
Any software used by Silent Circle to provide the Services and any software provided to Customer in conjunction with providing the Services are protected by copyright law and international treaty provisions. Customer may not copy the software or any portion of it.
18. Force Majeure
If Silent Circle’s performance under this Agreement is prevented, restricted, or interfered with by factors beyond its reasonable control, including, but not limited to, acts of God (whether or not Customer believes in one), fire, flood, explosion, earthquake, volcanic activity, accident, vandalism, cable cut by a third party, loss of power, hurricane, tsunami, storm or other similar occurrence, any law, order, regulation, direction, action, or request of a national, state, provincial, or local government, or of any department, agency, commission, court, bureau, corporation, or other instrumentality of any one or more such governments, or of any civil or military authority, or by national emergency, insurrection, riot, war, police action, act of terrorism, embargo, strike, lockout, work stoppage, or other labor difficulties, equipment failure, supplier or vendor failure, shortage, breach, or delay, outages of third-party carriers, downtime of the root DNS servers, or other difficulties Silent Circle may encounter in spite of Silent Circle’s best efforts, then Silent Circle shall be excused from such performance, and shall in no case be liable to the Customer for any resulting losses, damages, or interruptions in service.
Your ISP, last-mile provider, network consultant, or other third party may interfere with your Silent Circle Services, either intentionally or unknowingly, by blocking certain ports, instituting private addresses or Network Address Translation (“NAT”), instituting Differential Service (“DiffServ”), Quality of Service (“QoS”), or other technological or contractual means. These measures may reduce the quality and reliability of your Silent Circle Services, or they may prevent your Silent Circle Services from working at all.
If you believe that a third party may be interfering with your service, you should alert Silent Circle support. We will work with you to attempt to resolve the issue. Please understand that the involvement of a third party means that we MAY NOT be able to effect a complete or even partial resolution, and that this in no way diminishes your responsibilities under this Agreement.
You acknowledge that Silent Circle cannot be held responsible for problems with your Services caused by third parties, including your ISP. Further, you understand and acknowledge that your are responsible for payment of Services without regard to these issues.
19. Mandatory Arbitration
PLEASE READ THIS PROVISION CAREFULLY. This provision means that, except as noted below, Customer and Silent Circle will arbitrate any disputes or claims in any way related to or concerning the Agreement, or the provision of services or products to Customer, including any billing disputes (“Claims”).
Claims shall be submitted to final, binding arbitration administered by the American Arbitration Association (“AAA”). This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services provided or billed to Customer if Claims are asserted against Silent Circle in the same proceeding. Arbitration will be conducted under the AAA’s published Commercial Arbitration Rules, which are available by visiting the AAA’s web site at http://www.adr.org.
The AAA has a fee schedule for arbitrations. Customer will pay the published share of the arbitrator’s fees and administrative expenses. Customer and Silent Circle agree to bear their own other fees, costs, and expenses, including those for any attorneys, experts, and witnesses.
If possible, in the determination of the arbitrator, disputes will be resolved based on written submissions and/or by telephone and no personal appearance shall be required. If a hearing is required, the hearing will be held in Orlando, Florida. All communications related to the arbitration proceedings will be conducted in the American English language.
The arbitrator or arbitrators shall be selected according to AAA’s published rules. For claims less than or equal to $75,000 there shall be one arbitrator; for claims exceeding $75,000 there shall be three arbitrators. The decision of the arbitrator or arbitrators will follow the plain meaning of this Agreement, will be final and binding on the parties, and may be entered in court as per “Forum Selection” below. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law, including the United States Arbitration Act. Without limiting the foregoing, the parties agree that no arbitrator has the authority (1) to award relief in excess of the remedies that this Agreement provides, (2) to award punitive or exemplary damages, or (3) to alter, amend, modify, add, or subtract from any provision of this Agreement. The arbitrator shall have the power to issue other mandatory orders in connection with the arbitration.
Except as may be required by law, neither party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
As a limited exception to the agreement to arbitrate, Customer and Silent Circle agree that if Customer fails to timely pay amounts due, Silent Circle may assign the account for collection, and the collection agency, or Silent Circle, may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement.
All claims shall be arbitrated individually. You shall not bring, and you shall not join any class action of any kind in court or in arbitration, nor shall you seek to consolidate or bring previously consolidated claims in arbitration. Customer is required to affirmatively “opt-out” of any class for which the Customer receives notice that could relate or apply to the Services under this Agreement.
Customer acknowledges and understands that this provision constitutes a waiver of any right to a jury trial. Further, Customer agrees to not pursue actions in any small claims court, even as may be otherwise permitted by the AAA’s rules.
20. Prefiling Notice of Claim
Before instituting arbitration, Customer agrees to provide Silent Circle with an opportunity to resolve the claim by sending a written description of the claim to Silent Circle. If Silent Circle is not able to resolve the claim within 30 days of receipt of notice, then Customer or Silent Circle MAY initiate arbitration as described in “Mandatory Arbitration”. All claim notices should be sent to:
support@silentcircle.com
21. Choice of Law
The Agreement and the relationship between Customer and Silent Circle shall be governed by the laws of the State of Delaware without regard to its conflict of law provisions.
22. Forum Selection
To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with “Mandatory Arbitration” above, Customer and Silent Circle agree to submit to the personal and exclusive jurisdiction of the courts within the state of Florida, to the extent possible in Orange County, and waive any objection as to venue or inconvenient forum.
23. No Waiver
The failure of Silent Circle to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
24. Severability
If any provision of the Agreement is found by the arbitrator to be invalid, the parties nevertheless agree that the arbitrator should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement shall remain in full force and effect.
25. Assignment
This agreement shall be binding upon the heirs, successors, and assigns of Silent Circle and Customer. Customer may not assign this agreement, and any such assignment will be considered null and void.
26. Relationship
The parties agree that they are each independent entities and that nothing in this Agreement shall be construed to deem Customer an agent, employee, partner, contractor, joint venture partner, or any other similar relationship.
27. Interpretation
The Terms and Conditions of this Agreement shall be construed according to their plain and fair meaning and not against the drafting party. The words and phrases used herein shall have the meaning generally understood in the communications industry.
28. Survival
The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.