TOUCAN FAX LLC

TERMS OF SERVICE AGREEMENT

 

Effective Date: September 25, 2023

 

This Terms of Service Agreement (the “Terms”, or “Agreement”) is a contract between TOUCAN FAX LLC (“TOUCAN FAX”, “TOUCAN”, “We”, “Our”, or “Us”) and You (“You” or “Your”) and govern Your use of the Services TOUCAN FAX offers. As such, please read these Terms and our Policies carefully.

 

This Agreement shall govern the use of all websites owned and operated by TOUCAN FAX LLC, including any related domains or sub-pages thereof, apps or other software whether operated by an Integrated Partner or otherwise, or any other websites or software that TOUCAN FAX owns, operates, or controls (hereinafter collectively referred to as “Website”) and any services provided by or on this Website (“Services”).

 

Your acceptance of these Terms & Conditions is a continuing acceptance, meaning that every time you access the Website or use any Services you accept the then-current version of this Agreement, even if you have not been notified of any changes or amendments to this Agreement. The Company will not issue notice of revisions to this Agreement except where so required under our Privacy Policy.

 

BY ACCESSING THE PLATFORM AND/OR USING THE SERVICES, YOU CONFIRM AND ACKNOWLEDGE THAT (1) YOU HAVE READ THE AGREEMENT, (2) YOU UNDERSTAND ITS CONTENT (3) YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED IN THE AGREEMENT, INCLUDING SECTION 3 “CHANGES”, OF THESE TERMS AND (4) YOU HAVE THE LEGAL AUTHORITY TO BIND YOURSELF BY THE LAWS OF YOUR JURISDICTION, OR, IF APPLICABLE, THE BUSINESS ENTITY YOU REPRESENT. IF YOU ARE NOT AUTHORIZED NOR DEEMED BY LAW TO HAVE SUCH AUTHORITY, YOU ASSUME SOLE PERSONAL LIABILITY FOR THE OBLIGATIONS SET OUT IN THIS AGREEMENT.

 

If You do not agree to be bound by the terms and conditions of this Agreement, do not use or access the Platform or use any of the Services. Use of the Platform or Services is void where prohibited.

 

 

1) SERVICES

TOUCAN FAX provides online fax services that allow customers to send and receive faxes. You may use the Services for Your personal use or internal business use in the organization that You represent, so long as You are in compliance with all provisions of this Agreement. It is Your obligation to ensure that You fully comply with all applicable laws, regulations, and directives with regard to the use of the Platform and the Services.

 

Our Services can change in the future, and We may require that You accept updates to the Platform or Services as well as the Terms, Privacy Policy and/or other TOUCAN FAX Policies. Occasionally, We may require You to update your software to continue to use the Platform or Services.

 

We reserve the right to stop offering and/or supporting all or part of the Platform or the Services at any time either permanently or temporarily, at which point Your right to use the Platform and the Services or any part of them will be automatically terminated or suspended. If that happens, unless applicable law requires otherwise, We are not required to provide refunds, benefits, or other compensation to You in connection with discontinued elements of the Platform or Services.

 

WE MAY, IN OUR SOLE DISCRETION, LIMIT, SUSPEND, TERMINATE, MODIFY, OR DELETE YOUR ACCOUNT, FAX NUMBERS ASSOCIATED WITH YOUR ACCOUNT, ACCESS TO THE SERVICES OR ANY PORTION OF THEM; PROHIBIT ACCESS TO OUR SERVICES AND PLATFORM, AND OUR CONTENT, SERVICES, AND TOOLS; OR DELAY OR REMOVE HOSTED CONTENT, AND WE ARE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR RESULTS.

 

 

2) UPDATES TO THE TERMS OF SERVICE AGREEMENT

TOUCAN FAX may make changes to the Terms of Service Agreement at any time. From time to time, TOUCAN FAX may amend this Agreement by updating this page with a new version of the Terms of Service Agreement.

 

If You do not agree to any modification, Your sole recourse will be stop using the TOUCAN FAX services immediately. All modifications to the Agreement shall become effective immediately this page is updated. By using the Services after TOUCAN FAX has updated the Terms, You agree to all the updated Terms.

 

 

3) PAYMENTS, SUBSCRIPTION PLANS, AND REFUNDS

 

By using the Services, You agree to pay all associated set-up and subscription fees that You agree to upon sign-up (“Services Fees”) with the credit card You are authorized to use and enter upon sign up, which You authorize TOUCAN FAX to charge for the Services Fees (“Authorized Card”). You must have an Authorized Card on file at all times to access the Services. Failure to maintain an Authorized Card may result in termination of Your Account or Sites. Your Authorized Card will be charged per the payment processor terms each month, and each month thereafter until termination. If You upgrade or purchase services in the middle of the month, You may be charged a prorated fee.

 

If, for any reason, TOUCAN FAX is unable to process any charge or payment, You agree that You are responsible for providing an alternate form of payment or payment arrangement and You are responsible for any resulting processing fees and/or late fees that may be incurred. You understand and agree that TOUCAN FAX will charge all Services Fees that are due or past due (including from previous billing periods) and all expenses that are due or past due (including from previous Billing Period and including any expenses related to the failure of Your original payment method) and all late fees incurred to the alternate payment method. You expressly authorize these charges.

 

You are and shall be fully responsible for the payment of any taxes that apply to Your use of the Services.

 

The Services, including without limitation payment processing, may be handled directly by TOUCAN FAX or by online third parties. Where a third party handles a payment, the payment is subject to the terms of use and privacy policy of such third party (including among others payment methods, tax liability, collection and use of Your Personal Data, and support levels). We recommend that You review the terms of service and privacy policy of such third parties before submitting any Personal Data and using such third parties' services.

 

 

Automatic Subscription Renewal Charges

In order to ensure that You do not experience any interruption or loss of services due to the lapse of any particular subscription period, the Services operate with automatic renewal, on a recurring-fees basis (except where explicitly stated otherwise). Accordingly, where applicable, TOUCAN FAX will attempt to automatically renew the applicable Services for a renewal period equal in time to the original subscription period for such Service, and automatically charge You the applicable fees using Your Authorized Card.

 

TOUCAN FAX reserves the right to establish the price for every Service offered by TOUCAN FAX. TOUCAN FAX may change the price of any Service at any time, in Our sole discretion. TOUCAN FAX reserves the right to charge a price for a Service that was previously offered for free. If TOUCAN FAX decides to increase the price of Service for which You are subscribed, We will make every effort to communicate this pricing change to You via email. TOUCAN FAX does not need to notify You if We decide to raise the price of a Service for which You are not subscribed.

 

Money Back Guarantee

For all subscription plans, TOUCAN FAX generally offers a full, seven (7) day money-back guarantee. If You provide written notification of Your request for cancellation of the subscription Services and an explicit request for a refund within the first seven (7) days of Your original purchase of a subscription-based Service, the fees that TOUCAN FAX has received from You will be refunded, less any overages or international transmission fees incurred. No refunds will be provided for subscription-based Services after the seven (7) day guarantee period under any circumstances. For monthly subscription Services, You can cancel at any time without obligation to pay for additional monthly payments.

 

Late Fees

If We do not receive Your full and complete payment by the due date, TOUCAN FAX may charge You a late fee on the unpaid balance and may also terminate or suspend Your Service. The fee will be calculated at the maximum percentage permitted by applicable law, not to exceed 5 percent per month. In the event TOUCAN FAX utilizes a collection agency or resort to legal action to recover an unpaid balance, You agree to reimburse Us for all expenses incurred to recover such unpaid balance, including reasonable attorneys’ fees and costs. If You fail to pay on time and We refer Your account(s) to a third party for collection, a collection fee will be assessed and will be due at the time of the referral to the third party.

 

 

4) ACCEPTABLE USE AND USER CONDUCT

You agree not to use the Website or Services for any unlawful purpose or any purpose prohibited under this clause. You agree not to use the Website or Services in any way that could damage the Website, Services, or general business of the Company.

a) You further agree not to use the Website or Services:

I) To harass, abuse, or threaten others or otherwise violate any person’s legal rights;

II) To violate any intellectual property rights of the Company or any third party;

III) To upload or otherwise disseminate any computer viruses or other software that may damage the property of another;

IV) To perpetrate any fraud;

V) To engage in or create any unlawful gambling, sweepstakes, or pyramid scheme;

VI) To publish or distribute any obscene or defamatory material;

VII) To publish or distribute any material that incites violence, hate, or discrimination towards any group;

VIII) To unlawfully gather information about others.

 

 

User Conduct

In connection with Your use of the Site and the Services, You agree to abide by all applicable local, state, national and international laws and regulations. You must not, nor allow or facilitate a third party to, violate or infringe any rights (including without limitation copyrights, rights of publicity or privacy and trademarks) of others, Our Policies or the operational or security mechanisms of the Services, and without limiting the foregoing:

 

You may not use (i) the Sites, (ii) the Services, or (iii) any TOUCAN FAX Content or Your Content (collectively, “Content”) to:

 

promote, conduct, or contribute to fraudulent, obscene, pornographic, inappropriate or illegal activities as determined by Us at Our sole discretion, including without limitation deceptive impersonation, in connection with contests, pyramid schemes, surveys, chain letters, junk e-mail, spamming, phishing or any duplicative or unsolicited messages (commercial or otherwise);

 

interfere with the access, use or enjoyment of the Platform or the Services by others (including without limitation causing greater demand on the Services than is deemed by Us reasonable, attacks such as to harass or defame others; or promote hatred towards any group of people);

 

harvest or otherwise collect non-public information about another user obtained through the Site or the Services (including without limitation email addresses), without the prior written consent of the holder of the appropriate rights to such information;

 

use any Content except for the intended purposes of the Services, subject always to the terms of the Agreement;

 

In addition, You may not:

alter, modify, delete, forge, frame, hyper-link, create derivative works or otherwise interfere with or in any manner disrupt, circumvent, or compromise any part of the the Services, any TOUCAN FAX Content, or features;

 

access or attempt to access any of Our systems, programs or data that are not made available for public use, or attempt to bypass any registration processes on the Services;

 

decompile, disassemble, reverse engineer or otherwise attempt to discover any source code or underlying ideas or algorithms of the Services except if and to the extent permitted by applicable law;

 

abuse or use any other means to affect or manipulate the Services in general or the prices quoted through the Services; and/or Engage in activity or use language that is threatening, abusive, harassing, defamatory, libelous, offensive, profane against any of our customers, users, employees, representatives, or any third party as determined by us in our sole discretion.

 

We are not responsible for the accuracy, usefulness, safety or intellectual property rights of or relating to any of Your Content. We shall not be liable to You or any third party for Your Content in any way, including, but not limited to, any mistakes, libel, falsehoods, obscenity, pornography, incitement and/or any other unlawful and/or infringing uses related to Your Content.

 

Sending unsolicited spam faxes is not permitted. We reserve the right to close your account immediately if we suspect you are sending unsolicited spam faxes.

 

5) FAX NUMBER PORTING

TOUCAN FAX does NOT offer inbound or outbound fax number porting services. You cannot port a fax number into Toucan Fax from another provider. You cannot port a fax number out of Toucan Fax to another provider. DO NOT SIGN UP FOR TOUCAN FAX IF YOU REQUIRE A FAX SERVICE THAT OFFERS FAX NUMBER PORTING SERVICES. All fax number porting requests submitted to TOUCAN FAX will be automatically denied.

 

"PORTING" IS CAUSING OR ATTEMPTING TO CAUSE FAX NUMBER(S) TO BE TRANSFERRED, SWITCHED OR OTHERWISE MOVED TO ANY OTHER SERVICE PROVIDER, TELEPHONE CARRIER OR ANY OTHER PERSON OR ENTITY.

 

TOUCAN FAX does not port fax numbers into TOUCAN FAX from other fax service providers. TOUCAN FAX does not port TOUCAN FAX fax numbers from TOUCAN FAX to other service providers. If you cancel your TOUCAN FAX account, you are not permitted to port your TOUCAN FAX fax number to another fax service provider.

 

 

6) PRIVACY INFORMATION

Through Your Use of the Website and Services, You may provide Us with certain information. By using the Website or the Services, You authorize the Company to use Your information in the United States and any other country where We may operate.

a) Information We May Collect or Receive: Depending on how You use Our Website or Services, We may receive information from external applications You use to access Our Website, or We may receive information through various web technologies, such as cookies, log files, clear gifs, web beacons or others.

b) How We Use Information: We use the information gathered from You to ensure Your continued good experience on Our website. We may also track certain of the passive information received to improve Our marketing and analytics, and for this, We may work with third-party providers, including other marketers.

c) How You Can Protect Your Information: If You would like to disable Our access to any passive information We receive from the use of various technologies, You may choose to disable cookies in Your web browser.

7) REVERSE ENGINEERING & SECURITY

You agree not to undertake any of the following actions:

a) Reverse engineer, or attempt to reverse engineer or disassemble any code or software from or on the Website or Services;

b) Violate the security of the Website or Services through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user or network.

8) DATA LOSS

The Company does not accept responsibility for the security of Your account or content. You agree that Your use of the Website or Services is at Your own risk.

9) TERMINATION

TOUCAN FAX may, in Our sole discretion and without liability to You or any third party, suspend or terminate Your account and refuse any and all current or future access to and use of the Services (or any portion thereof). Grounds for such termination may include, but are not limited to, non-payment, loss, theft or unauthorized use of Your account, violation of the letter or spirit of this Agreement, violation of the USER CONDUCT guidelines, providing content that is inappropriate or offensive in Our discretion, or if We have reasonable grounds to suspect any of the Registration Data that You provided is inaccurate, not current or incomplete.

 

10) DISCLAIMERS OF ALL WARRANTIES

TOUCAN FAX’S CONTENT, THE PLATFORM, AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY AND NON-INFRINGEMENT.

 

WITHOUT LIMITING THE ABOVE, (I) WE MAKE NO WARRANTY THAT THE PLATFORM, THE SOFTWARE, OR THE SERVICES WILL MEET YOUR REQUIREMENTS, OR WILL BE UNINTERRUPTED, CONTINUOUS, TIMELY, SECURE, ACCURATE, CORRECT, COMPLETE, OR AVAILABLE; (II) WE DO NOT ENDORSE OR APPROVE ANY OF YOUR CONTENT OR CONTENT PROVIDED BY ANY THIRD-PARTY AND DISCLAIM ALL LIABILITY WHATSOEVER THERETO; AND (III) WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF YOUR SITE(S), THE SERVICES, OR THE CONTENT IN TERMS OF ITS CORRECTNESS, COMPLETENESS, RESULTS, AVAILABILITY, ACCURACY, RELIABILITY OR OTHERWISE.

 

 

11) LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL TOUCAN FAX BE LIABLE FOR ANY DIRECT OR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY (I) USE OR THE INABILITY (FOR ANY REASON) TO USE ANY PART OF THE PLATFORM OR THE SERVICES (INCLUDING WITHOUT LIMITATION THE USE OF ANY CONTENT, INACCURACIES OR ERRORS OF INFORMATION AS A RESULT OF ACCESSING THE PLATFORM OR THE SERVICES), (II) ACTION OR INACTION IN CONNECTION WITH THE AGREEMENT OR FOR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR (III) STATEMENTS OR CONDUCT OF YOU OR ANY THIRD PARTY ON THE TOUCAN FAX WEBSITE OR YOUR SITE, INCLUDING WITHOUT LIMITATION ANY SUBMISSIONS THEREON; IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.

 

All of the above limitations shall apply notwithstanding any failure of essential purpose of any limited remedy and are fundamental elements of the bargain between Us and You. You agree that any claim or cause of action arising out of or in connection with the Platform, the Services, the Content or the Agreement must be filed within thirty (30) days after such claim or cause of action arose or be forever barred.

 

In the event this limitation of liability shall be for any reason held unenforceable or inapplicable, You agree that Our aggregate liability shall not exceed the amount paid by You to Us pursuant to this Agreement.

 

12) INDEMNIFICATION

YOU RELEASE, AND AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS TOUCAN FAX, OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES, FROM ALL CLAIMS, LIABILITIES, LOSS AND DAMAGES (OF EVERY KIND, WHETHER KNOWN OR UNKNOWN AND SUSPECTED OR UNSUSPECTED) RELATED TO IN ANY WAY TO: (1) YOUR USE OF, ACCESS TO OR RELIANCE ON THE SERVICES OR THE TOUCAN FAX CONTENT, (2) YOUR CONTENT, (3) OUR WEBSITES (4) YOUR WEBSITE OR (5) YOUR VIOLATION OF ANY OF THE TERMS OF THIS AGREEMENT OR ANY APPLICABLE LAWS OR REGULATIONS.

 

13) SPAM POLICY

You are strictly prohibited from using the Website or any of the Company’s Services for spam activities, including sending unsolicited outbound faxes for advertising purposes.

14) THIRD-PARTY LINKS & CONTENT

The Company may occasionally post links to third party websites or other services. You agree that the Company is not responsible or liable for any loss or damage caused as a result of Your use of any third party services linked to from Our Website.

 

15) SERVICE INTERRUPTIONS

The Company may need to interrupt Your access to the Website to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that Your access to the Website may be affected by unanticipated or unscheduled downtime, for any reason, but that the Company shall have no liability for any damage or loss caused as a result of such downtime.

 

16) GENERAL PROVISIONS:

a) LANGUAGE:  All communications made or notices given pursuant to this Agreement shall be in the English language.

 

b) JURISDICTION, VENUE & CHOICE OF LAW:  Through Your use of the Website or Services, You agree that the laws of the State of Delaware in the United States of America shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise between You and the Company, with the exception of its conflict of law provisions. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the state and federal courts of the following county: New Castle County, Delaware. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non conveniens or similar doctrine.

 

c) ARBITRATION:  In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing Federal law as well as the law of the following state: DELAWARE. Each Party shall pay their own costs and fees. Claims necessitating arbitration under this section include, but are not limited to: contract claims, tort claims, claims based on Federal and state law, and claims based on local laws, ordinances, statutes or regulations.  Intellectual property claims by the Company will not be subject to arbitration and may, as an exception to this sub-part, be litigated.  The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.

 

d) ASSIGNMENT:  This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by You. Should this Agreement, or the rights granted hereunder, by assigned, sold, leased or otherwise transferred by the Company, the rights and liabilities of the Company will bind and inure to any assignees, administrators, successors, and executors.

 

e) SEVERABILITY:  If any part or sub-part of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and sub-parts will be enforced to the maximum extent possible. In such condition, the remainder of this Agreement shall continue in full force.

 

f) NO WAIVER:  In the event that We fail to enforce any provision of this Agreement, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any part or sub-part of this Agreement will not constitute a waiver of any other part or sub-part.

 

g) NO AGENCY, PARTNERSHIP OR JOINT VENTURE:  No agency, partnership, or joint venture has been created between the Parties as a result of this Agreement. No Party has any authority to bind the other to third parties.

 

h) FORCE MAJEURE:  The Company is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.

 

i ) ELECTRONIC COMMUNICATIONS PERMITTED:  Electronic communications are permitted to both Parties under this Agreement, including e-mail or fax. For any questions or concerns, please email Us at the following address: hello@toucanfax.com

17) MISCELLANEOUS

No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and any failure to assert any right or provision under the Agreement shall not constitute a waiver of such term. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by Us without restriction. You agree that no joint venture, partnership, employment, franchise or agency relationship exists between You and Us as a result of the use of the Site or the Services.

 

This Agreement comprises the entire agreement between You and Us, states Our and Our suppliers' entire liability and Your exclusive remedy with respect to the Site and Services, and supersedes all prior agreements pertaining to the subject matter thereof. If any provision(s) of this Agreement is held to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the original provision and the other provisions remain in full force and effect.

 

The section titles in this Agreement are solely used for convenience and have no legal or contractual significance.