Terms of Service

These terms of service are entered into by and between Vail Systems, Inc. d/b/a Prosodica (“Company,” “we,” or “us”) and each user of our website and cloud-based software that analyzes and improves voice interactions and includes automated call-driver analysis, real-time feedback and compliance, call recording, call transcription, call searching, customer surveys, complaint tracking, quality assurance, and operations analysis to call centers and other customer service and call support services (our “Company Services”). When we refer to “Company Services” in these Terms, this includes all programs, features, functions and report formats, instructions, code samples, markup language, online help files and technical documentation, website, account portal, technical support, as well as any upgrades or updates to any of these, made generally available by us, and includes any SDKs (software development kits) or software provided in connection with use of Company Services, and our connectivity services. Company Services also include access to and use of the www.prosodica.com.

Each user represents and warrants that they possess the legal right, capacity, and ability to enter into this Agreement.

The following terms and conditions (“Terms of Service” or “Terms” or “Agreement”), which include and incorporate by reference our Privacy Policy, our Acceptable Use Policy (“AUP”), and our Service Level Agreement (“SLA”) [3] [LINK], govern each user’s access to and use of www.prosodica.com, including any content, functionality, and services offered on or through www.prosodica.com (the "Website"), whether as a visitor, guest or an account holder. These Terms of Service should be read carefully before starting to use the Website or any Company Services. If a user does not agree to these Terms of Service, they must not access or use the Website or Company Services.

In registering for a Company account or using the Company Services or Website, each user hereby acknowledges they have reviewed and accepted all the terms of this Agreement. PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN EACH USER AND COMPANY. IF A USER DOES NOT AGREE TO BE BOUND BY THESE TERMS, THAT USER MAY NOT USE THE WEBSITE OR COMPANY’S SERVICES.

IMPORTANT NOTE: COMPANY DOESN’T PROVIDE WARRANTIES FOR THE WEBSITE OR COMPANY SERVICES, AND THESE TERMS LIMIT ANY COMPANY LIABILITY HEREUNDER. For more details, see Sections 11 and 13. IN ADDITION, DISPUTES ABOUT THESE TERMS, OR DISPUTES RELATING TO ANY COMPANY ACCOUNT, THE WEBSITE, OR THE COMPANY SERVICES GENERALLY, MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY. For more details see Section 17.

Any questions can be directed to the Company at support@prosodica.com.

1. Changes to These Terms
2. Changes to Our Company Services
3. Account(s)
4. Access and Use of Our Company Services
5. Our Use and Storage of Customer Data
6. Restrictions
7. Export Controls
8. Affiliates
9. Fees, Payment Terms, Taxes
10. Ownership and Confidentiality
11. Warranties and Disclaimers
12. Indemnification
13. Exclusion of Damages; Limitations of Liability
14. Termination of These Terms
15. Survival
16. General
17. Agreement to Arbitrate.

We may revise these Terms from time to time. If we do, those revised Terms will supersede prior versions. Unless we say otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. We may provide advance notice of any material revisions. This notice may be provided via the account portal and/or via an email to the email address we have on file. For other revisions, we may update the effective date of these Terms at the top of the page. We encourage each user to check the effective date of these Terms whenever they visit the Website or account portal. Continued access or use of the Website or Company Services constitutes acceptance of any revisions. If a user does not agree to the revisions, they must stop using the Website and Company Services, and we are not obligated to provide them with the Company Services or access to (or use of) the Website.

The features and functions of the Website, our Company Services, and Acceptable Use Policy (“AUP”) may change over time. It is each user’s responsibility to ensure that their access or use of the Website, or use of Company Services, is compatible with our then-current Company Services. Although we try to avoid making changes to Company Services that are not backwards compatible, if any such changes become necessary, we will use reasonable efforts to let users know prior to implementing those changes.

To use the Website or Company Services, it may be necessary to create an account. As part of the account creation process, users may be asked to provide their email address, create a password, and verify their email address. Until an account is created, access to the Website or the Company Services may be limited to what is available to the general public. When registering an account, users must provide true, accurate, current, and complete information as requested during the account creation process. Each user must also keep that information true, accurate, current, and complete after the account is created.

In order to use the Website or the Company Services, it may be necessary for each user to have properly configured a working Internet service and agree, at their sole expense: to (1) obtain and maintain Internet access of sufficient speed for use with the Website or the Company Services; (2) be responsible for payment of Internet connection or service fees and all equipment and resources necessary to establish or maintain a connection to such Internet, as may be necessary or required to use the Website or the Company Services; and (3) supply and pay third-party providers for all additional Internet service and features required for use of the Website or the Company Services.

Each user is solely responsible for all use (whether or not authorized) of the Website or our Company Services under their account(s) and subaccount(s). Each user agrees to take all reasonable precautions to prevent unauthorized access to or use of the Website or the Company Services and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from use of any account, the Website, or Company Services.

We may make the Website or the Company Services available to users in accordance with our SLA, which may be updated from time to time.

Uses may use the Website or the Company Services, on a non-exclusive basis, solely in strict compliance with these Terms, including our AUP, which may be updated from time to time, and applicable law, including using the Website or the Company Services solely in connection with and as necessary or required for activities under these Terms.

By accessing or using the Website or Company Services, each user acknowledges that they have read the Company’s Privacy Policy and understand that it sets forth how we may collect, store, and use Customer Data, including any personal information. “Customer Data” consists of information made available to us through use of the Website or the Company Services under these Terms, which includes information such as name, contact information, billing records, call and message logs, and traffic routing information, as well as the content of and communications integrated with the Company Services, such as audio recordings, and any content included in any HTTP communication messages. If any user does not agree to the Privacy Policy, they must stop using the Website and Company Services. Except as agreed by Company in writing, Company may periodically delete Customer Data. Further, data storage is not guaranteed by us, and we will not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that may result or be incurred relating to the damage, loss or deletion of Customer Data, or access to or use of the Website or Customer Services.

We may access or disclose Customer Data, including the content of communications, if: (i) we believe that disclosure is reasonably necessary to comply with any applicable law, regulation, judicial order, legal process or government request, (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our services or products, (iv) to protect ourselves, our other users, or the public from harm or illegal activities, or (v) to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.

• Except as provided in Section 4 (Access and Use of Company Services), no Company Services, nor any party thereof, may be offered, transferred, resold, leased, licensed or otherwise made available to any third party without written permission of Company.
• The Website and the Company Services will be used in accordance with all applicable laws (e.g., the Telephone Consumer Protection Act, the Fair Credit Report Act, etc.) and third-party rights, as well as these Terms, including the Company AUP, as amended from time to time. Each user will ensure that we are entitled to use their Customer Data, including content of communications, as needed to provide the Company Services and will not use the Website or the Company Services in any manner that violates any applicable law.
• Each user will ensure, and hereby warrants and represents, that they have obtained the appropriate consent to collect and share with us any Customer Data they make available to use through their use of the Website or the Company Services.
• Each user will provide advanced notice to us prior to utilizing the Website or the Company Services if any content included in the Customer Data may contain medical or health information, or other sensitive information as defined by law that requires additional safeguards or contractual protections between the user and the Company, such as a Business Associate Agreement.
• Any reverse engineering, decompiling, disassembling or otherwise creating, attempting to create or derive, or permitting or assisting anyone else to create or derive any source code of any software provided in connection with the Website or the Company Services is strictly prohibited.

The Website and the Company Services, including any software we may provide in connection therewith, may be subject to applicable U.S. export control laws and economic sanctions regulations. In receiving this software or the Company Services, or accessing the Website, each user agrees to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to any software or the Company Services, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or other aspects of the Company Services. These laws include restrictions on destinations, end users, and end use. Without limitation, no user may transfer any such software or any aspect of the Company Services without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). Each user represents that they are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and further warrants that they will immediately discontinue use of our software, Website, and Company Services if they become placed on any such list or under the control of or an agent for any entity placed on such a list.

Affiliates are any entity or person that controls a user, is controlled by the user, or under common control with the user, such as a subsidiary, parent company, or employee. (Similarly, if we refer to our affiliates, we mean an entity or person that controls us, is controlled by us or is under common control with us.) If applicable to a user, user affiliates may order Company Services directly from us under these Terms, provided that all of your affiliates’ activities are subject to these Terms. Such user will be responsible for the acts and omissions of their affiliates in connection with each affiliate’s use of the Website or the Company Services.

Fees. As applicable, the user agrees to pay any usage fees, as may be updated from time to time, for the Website or the Company Services, and to pay any applicable support or service fees in connection with any support services.

Taxes. Unless otherwise stated, and as applicable, each user is responsible for and shall pay all applicable taxes. This includes all federal, state and local taxes, fees, charges, surcharges or other similar exactions, imposed on or with respect to the Company Services whether these taxes are imposed directly on the user or on Company and include, but are not limited to, sales and use taxes, utility user’s fees, excise taxes, VAT, any other business and occupations taxes, 911 taxes, franchise fees and universal service fund fees or taxes. For purposes of this section, taxes do not include any taxes that are imposed on or measured by the net income, property tax or payroll taxes of Company. Details regarding taxes charged may be made available by sending an email to support@prosodica.com.

Payment Terms. Unless Company agrees otherwise in writing, all fees due under these Terms are payable in United States dollars within thirty (30) days of any invoice. Payment obligations cannot be canceled, and fees paid are non-refundable. Subject to Section 9, ¶4 (Fee Disputes), for any overdue payment or failure to pay within five (5) business days of a written notice of overdue payment, we may assess and charge a late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by law, whichever is greater. Subject to Section 9, ¶4 (Fee Disputes) and following the overdue notice, we may also suspend Company Services until we receive payment of the amount overdue plus the late fee.

Fee Disputes. We must be notified in writing of any dispute of any portion of any fees paid or payable under this Agreement. We must be provided written notice within fourteen (14) days of the applicable charge, and we will work to resolve the applicable dispute promptly. If we do not receive a written notice of fee dispute within the 14-day period, a user may not dispute any fees paid or payable by such user.

Suspension. If use of the Website or the Company Services exceeds the amounts prepaid by a user or of if user fails to pay any amounts due under Section 9 (Fees, Payment Terms, Taxes), we may suspend the Company Services or the access to the Website associated with the user or account without prior notice and we will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that may result or be incurred in connection with any suspension of our services, including the Company Services.

General. As between any user and Company we exclusively own and reserve all right, title, and interest in and to the Website and the Company Services.

Suggestions and Contributions. We welcome feedback on the Website or the Company Services. Regarding all suggestions or feedback we receive about the Website or the Company Services (“Contributions”):

• we are not under any obligation of confidentiality with respect to any Contributions;
• we may use or disclose (or choose not to use or disclose) any Contributions for any purpose and in any way;
• by submitting the suggestions or feedback, the user irrevocably, non-exclusively licenses to us rights to exploit worldwide the Contributions; and
• there will be no compensation or reimbursement of any kind from us under any circumstance for any Contributions.

Intellectual Property. The Website and the Company Services, including the entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) thereof are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Subject to the limited rights granted hereunder, the Company reserves all of its right, title and interest in and to the Website and the Company Services, including all of Company’s related intellectual property rights. Each user agrees that they will not take any action to challenge, undermine, or usurp the Company’s intellectual property in any country or jurisdiction, and that they will not assist, facilitate, or encourage any third party to do the same.

Each user hereby grants to the Company a perpetual, nonexclusive, royalty-free, fully paid-up, worldwide, and irrevocable license to host, copy, display, reproduce, edit, distribute, transmit, use, import, or export any content (including trademarks, logos, service marks, trade names, and other intellectual property) they post to the Website or the Company Services for the purpose of carrying out Company’s obligations under this Agreement (and subject to the terms set out under this Agreement), including: providing, maintaining, and updating the Website or the Company Services; processing lawful requests from law enforcement government agencies; preventing and responding to security incidents; providing support and technical assistance as may be required or requested; aggregating data usage analytics; and associating account registrations of authorized user(s) which, in the case of a name or other content that is a trademark, includes a revocable license to host and display such trademark during the Term.

Company Trademarks. The Company name, the term PROSODICA, the logo, and all related names, logos, product and service names, designs, and slogans are proprietary intellectual property of the Company or its affiliates or licensors. No user may use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the intellectual property of their respective owners.

Use of Marks. Subject to these Terms, each user hereby grants to Company an irrevocable, royalty-free, fully paid-up, worldwide right and license to use and display their name and logo on our Website and the Company Services, and in other promotional materials, solely in connection with our activities under these Terms.

Linking. We may allow a user to link to our homepage, provided they do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but the user must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.

Confidentiality. “Confidential Information” means any information or data of Company, regardless of whether it is in tangible form, disclosed by Company that is confidential or proprietary or that should otherwise be reasonably understood to be confidential or proprietary given the nature of the information and the circumstances surrounding disclosure. “Confidential Information” does not include any information which: (i) is publicly available through no fault of user; (ii) was properly known to user, without restriction, prior to disclosure by Company; (iii) was properly disclosed to user, without restriction, by another person without violation of Company’s rights; or (iv) is independently developed by user without use of or reference to the Company’s Confidential Information. Confidential Information shall not be deemed to be in the public domain, or previously known to users merely because a portion of such Confidential Information is embraced by general information said to be in the public domain or previously known to or subsequently disclosed to users. Each user agrees that they will use the Confidential Information solely in accordance with the provisions of this Agreement and will not disclose such Confidential Information to any third party without Company’s prior written consent, except as otherwise permitted hereunder. Each user agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. Users may disclose the Confidential Information, in whole or in part to their employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with the terms of this Agreement. Users may disclose the Confidential Information as required by law, upon prior written notice to the Company (where allowed by law); provided that all reasonable efforts will be made to minimize such disclosure to the extent permitted by applicable law.

Injunctive Relief. Users expressly acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section 10 and that, in the event of an actual or threatened breach of the provisions of this Section, the Company will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Users will promptly notify the Company in writing if they become aware of any violations of the confidentiality obligations set forth in this Section.

NO WARRANTY. WITHOUT LIMITING COMPANY’S EXPRESS WARRANTIES AND OBLIGATIONS UNDER THESE TERMS, COMPANY HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 11, THE WEBSITE AND COMPANY SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW.

BETA SERVICES. FROM TIME TO TIME, USERS MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH COMPANY WHERE THEY GET TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES AND DOCUMENTATION (“BETA SERVICES”) OFFERED BY US. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, WE ARE PROVIDING THE BETA SERVICES “AS IS.” WE MAKE NO WARRANTIES OF ANY KIND WITH RESPECT TO THE BETA SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NOTWITHSTANDING ANY PUBLISHED DOCUMENTATION THAT STATES OTHERWISE, COMPANY DOES NOT WARRANT THAT THE BETA SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.

Each user agrees to and will defend, indemnify and hold Company and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, third-party discovery demand, governmental investigation or enforcement action arising out of or relating to their activities under these Terms or their acts or omissions in connection with the Website or Company Services, including, without limitation, any data privacy claims related to their use of the Website or Company Services, or any violation of the terms of Section 6 (Restrictions) (“Claim”). Such indemnifying user will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against us in connection with any Claim, and they will also be liable to us for any costs and attorneys’ fees we incur to successfully establish or enforce our right to indemnification under this Section.

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL COMPANY BE LIABLE TO ANY USER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF WE HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL COMPANY BE LIABLE TO ANY USER FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST COMPANY TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.

THE PROVISIONS OF THIS SECTION 13 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.

Termination and Suspension of Company Services. Company may terminate the Website, Company Services, or any account for any reason upon five (5) days prior written notice. Company may terminate or suspend any account immediately in the event any user associated with the account commits any material breach of these Terms. If we terminate these Terms due to material breach, we may terminate or suspend any other associated account(s) as well. In addition to suspension of the Company Services for non-payment of fees as described in Section 9, ¶5 (Suspension), we may also suspend the Company Services immediately for cause if: (a) any user violates (or gives us reason to believe the user has violated) the Acceptable Use Policy; (b) there is reason to believe the traffic created from a user’s use of the Company Services or their use of the Company Services is fraudulent or negatively impacting the operating capability of the Company Services; (c) we determine, in our sole discretion, that providing the Company Services is prohibited by law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Company Services; or (d) we determine, in our sole discretion, that providing the Company Services has become impractical or economically unfeasible. If we suspend the Company Services, we may make a reasonable attempt to notify users.

Upon termination or expiration of these Terms, all payment obligations, the terms of this Section 15, and the terms of the following Sections will survive (i.e. still apply): Section 5 (Our Use and Storage of Customer Data), Section 6 (Restrictions), Section 10 (Ownership and Confidentiality), Section 11 (Warranties and Disclaimer), Section 12 (Indemnification), Section 13 (Exclusion of Damages; Limitation of Liability), Section 16 (General), and Section 17 (Agreement to Arbitrate).

Compliance with Laws. Each user and Company will comply with the applicable law relating to each of our respective activities under these Terms, including privacy and data protection laws and any applicable rules.

No Waiver. Company’s failure to enforce at any time any provision of these Terms, including our AUP, does not waive our right to do so later. And, if we do expressly waive any provision of these Terms, including our AUP, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by us to be legally binding.

No Third-Party Beneficiaries. Anyone not a party to this Agreement does not have any remedy, claim, liability, reimbursement, or cause of action. This Agreement does not create any third-party beneficiary rights.

Assignment. These Terms are non-assignable and non-transferrable, in whole or in part, without our prior written consent of Company. Any attempt to assign, delegate, or transfer these Terms without written consent of Company will be null and void. Subject to this Section 16, ¶4, these Terms will be binding on all users and Company and each of our successors and assigns.

Relationship. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its employees, agents, and labor costs and expenses. Subject to users’ indemnification obligations hereunder, each party will be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of such party’s activities, or those of such party’s employees or agents, in the performance of these Terms. Neither any user nor Company has the authority to commit the other in any way and will not attempt to do so or imply that it has the right to do so.

Unenforceability. Except as described in Section 17 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.

Notices. Any notice required or permitted to be given under these Terms will be given in writing to the receiving party by email upon confirmation of receipt. Notices to Company shall be copied to support@prosodica.com, Attn: General Counsel.

Entire Agreement. Except as provided in these Terms and any attachments to these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by Company, its agents or employees will create a warranty or in any way increase the scope of the warranties in these Terms.

Force Majeure. No failure, delay, or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay, or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil, or military authority; pandemic; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.

Government Terms. We may provide our Company Services, including related software and technology, for ultimate federal government end use solely in accordance with the terms of these Terms. If any user is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Company Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms. All other use is prohibited and no rights other than those provided in these Terms are conferred. The Company Services were developed fully at private expense.

Governing Law and Venue. The enforceability and interpretation of Section 17 (Agreement to Arbitrate) will be determined according to the Federal Arbitration Act (including its procedural provisions). Apart from Section 17, these Terms will be governed by and interpreted according to the laws of the State of Illinois without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 17 (Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or the Company Services shall be instituted in either the state or federal courts of Chicago, Illinois, and we each consent to the personal jurisdiction of these courts.

Before initiating any legal action, our customer support should be contacted at support@prosodica.com. Most disputes can be resolved that way.

Agreement to Arbitrate. If we cannot resolve any dispute through our customer support, then any such dispute arising under these Terms, inclusive of the Privacy Policy, or in relation to the Company Services, will be resolved by binding arbitration in Chicago, Illinois. This applies to all claims under any legal theory. It also applies even after a user has stopped using their Company account or has deleted it. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that, too.

Details of Arbitration Procedure. Prior to filing any arbitration, the parties agree to seek to resolve any dispute between the parties by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. The AAA’s rules and procedures can be found on their website http://www.adr.org or available by calling them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the “Rules”) and will be held with a single arbitrator appointed in accordance with the Rules. To the extent anything described in this Section 17 conflicts with the Rules, the language of this Section 17 applies. Each party will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 17 does not alter in any way the statute of limitations that would apply to any claim or counterclaim asserted by either party. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of Illinois and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.

Class Action Waiver. Each party agrees that any claims or controversies between the parties must be brought against each other on an individual basis only. That users cannot bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). Further, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim; the arbitrator’s decision or award in one person’s or entity’s case cannot impact other users or Company customers and cannot be used to decide other disputes with other users. If a court decides that this Section 17, ¶4 (Class Action Waiver) is not enforceable or valid, then the entire Section 17 (Agreement to Arbitrate) will be null and void (i.e., go away); however, the rest of the Terms will still apply.

California Subscribers. Under California Civil Code Section 1789.3, California users of the Service receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 916-445-1254.