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TERMS OF SERVICE AGREEMENT
THIS TERMS OF SERVICE AGREEMENT (this “Agreement”) is made between HME
Wireless, Inc. (“HMEW”) and any person or company (“Customer”) who completes the
registration process to open and maintain an account with HMEW’s interactive online and
communication services known as “The App Suite” (the “Service”).
THIS AGREEMENT IS A “CLICK-WRAP” AGREEMENT. BY CLICKING THE
ACCEPTANCE BUTTON, CUSTOMER EXPRESSLY AGREES TO AND CONSENTS TO
BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF CUSTOMER DOES
NOT CLICK THE ACCEPTANCE BUTTON, THEN HMEW WILL PROMPTLY CANCEL
THIS TRANSACTION AND CUSTOMER MAY NOT ACCESS OR USE THE SERVICE.
1. General Terms
(a) Description. The Service allows an operator to contact customers and staff
using a number of different web-based communication media. The Service is proprietary to
HMEW and is protected by state and federal intellectual property laws and international
intellectual property treaties. Customer’s access to the Service is licensed and not sold. Subject
to the terms and limitations set forth in this Agreement (including, without limitation, the timely
payment of any fees), HMEW agrees to provide Customer with a personal, non-transferable and
non-exclusive account enabling Customer to access and use the Service.
(b) Accessibility. Customer agrees that from time to time the Service may be
inaccessible or inoperable for any reason (including, without limitation, equipment malfunctions;
periodic maintenance procedures or repairs that HMEW may undertake from time to time or
causes beyond the control of HMEW or which are not reasonably foreseeable by HMEW).
HMEW shall have no liability or responsibility to Customer if the Service is inaccessible or
inoperable for any reason.
(c) Password; Equipment. Customer shall be solely responsible for any and all acts
and omissions that occur under Customer’s account or password. Customer shall be solely
responsible for providing, maintaining and ensuring compatibility with the Service and all
hardware, software, electrical and other physical requirements for Customer’s use of the Service
(including, without limitation, telecommunications and Internet access connections and links,
web browsers or other equipment, programs and services required to access and use the Service).
2. Right to Use the Service; Trial Offers
(a) Use of Service. Customer may use the Service only while Customer is (1) a
paying account holder who subscribes to the Service, (2) using the Service with the express
permission of a paying account holder who subscribes to the Service, or (3) a “free trial” user
(limited to one free trial per individual or organization) or a registered participant in an alpha or
beta testing program (in either case, Customer’s participation may be terminated at any time by
HMEW for any reason). Unless otherwise specified by HMEW or by another express agreement
with HMEW to the contrary, Customer’s right to access or use the Service terminates on the
earliest of (a) the date which is the last day of the billing cycle for which the last Service
prepayment for the account has been received by HMEW, or (b) the date on which any charge or 2
fee, or other balance due under the account is past due and HMEW determines, in its discretion,
to terminate the account or suspend the Service, or (c) any other date upon which HMEW has the
right to terminate the account or suspend the Service as provided in these Terms of Service or
any other applicable agreement or policy.
(b) Authorization. Customer represents, to the extent Customer uses any feature of
the Service and Customer is not an account holder, that Customer has the express permission of
an account holder to use that account holder’s Service account. Conversely, if Customer is
creating or registering an account on behalf of another person who will become an account
holder thereby, Customer hereby represents, warrants, and covenants that Customer has the
express authority to register such person, create such account and bind such account holder to
these Terms of Service and the policies and requirements pertaining to the Service, and
Customer hereby indemnifies HMEW from any loss, damage, claim or expense (including
reasonable attorney’s fees and expenses) arising out of or related to Customer’s failure to
actually acquire such authority or such new account holder’s dispute or denial of any such
authority. HMEW reserves the right to discontinue allowing persons who are not (or who do not
become thereby) registered account holders to create, use, or access accounts or the Service,
whether on an account by account basis or otherwise, in its sole discretion. HMEW may
establish other reasonable account or Service registration or usage limits in its discretion.
HMEW further reserves the right to refuse Service to any person or organization for any reason,
in our discretion.
(c) Trial Offers. HMEW may discontinue or modify trial offers, promotions and
special offers at any time in its discretion. HMEW offers free trials to allow Customer to
evaluate the Service prior to committing to a subscription, and because of this (among other
reasons), Service subscription purchases are non-refundable. Service plan billing begins at the
end of the applicable trial period unless the account holder has previously and timely canceled
the account. THE ACCOUNT HOLDER MUST CANCEL HIS, HER OR ITS ACCOUNT
PRIOR TO THE END OF THE FREE TRIAL TO AVOID CHARGES.
(d) Limitation on Users. Each account holder’s right to use the Service is personal to
the account holder and those employees or other staff of the account holder who use the Service
solely on behalf of the account holder’s organization. An account is limited to use for the benefit
of a single organization or individual and, if less, at a single physical location. The account
holder may be either an individual or organizational entity, but neither the account holder, nor
any other user, may resell, rent, or timeshare access to the account or use of the Service, or other
materials available on the HMEW Website without the express prior written consent of HMEW.
(a) Creating Account. To use the Service, an account must be created, and to create
an account, an account holder (or his, her or its authorized representative) must submit a
complete registration form, available at www.hmesms.com (the “Registration Form”),
including current and accurate account and contact information, such as a working e-mail
address and telephone number (all such information provided shall be referred to herein as
“Registration Data”). All Registration Data must be, and must be maintained as, accurate and
current during the life of the account, and any inaccuracy therein shall be grounds for account3
termination. HMEW will evaluate the Registration Data and notify Customer whether
Customer’s request for an account is accepted, in its sole discretion.
(b) Notices. HMEW may distribute notices and other important information to
account holders to such e-mail addresses, or by publication on the HMEW Website, by
transmission through the Service, or by written communication sent by mail to the account
holder address on record. Regardless of method, each account holder is responsible to assure
that all users of the account or the Service thereunder are notified accordingly and all such users
shall be deemed to have received such notice when provided to the account holder of record by
reasonable means. Such notices, including any amendments to these Terms of Service
determined by HMEW in its discretion, or to any policies, rules, or restrictions, shall be effective
as against the account holder and all other users upon such publication or distribution.
(c) Representations. Each account holder or applicant who is an individual
represents and warrants that he or she is at least 18 years old, and minors are not eligible as
account holders, provided that minors who are at least 16 years of age may use the Service as a
user with the permission of the account holder and of their parents or guardians. HMEW may
terminate the account or otherwise restrict access should any account usage violate the foregoing
4. Security and Privacy
(a) Security. Customer shall be solely responsible for any authorized or unauthorized
access to Customer’s account by any person. Customer agrees to bear all responsibility for the
confidentiality of Customer’s password and all use or charges incurred from use of the Service
with Customer’s password.
not apply to Customer’s access to or use of the Service. Subject to the foregoing, HMEW will
use commercially reasonable efforts to create and maintain, where appropriate, firewalls,
encryption technology, user authentication systems and access control mechanisms to control
access to “private” information about Customer’s account such as Customer’s password or
Customer’s credit card or PayPal information.
(a) Payment. Customer shall pay HMEW for the Service any then-applicable
subscription charges or other fees (the “Fees”). Fees will be billed monthly in advance; overages
will be billed monthly in arrears. The Fees will be prorated for the first month if the Customer
initiates the Service after the first day of the month. While HMEW expressly reserves the right to
change the Fees at any time upon notice to Customer, HMEW’s general policy is that the Fees
only apply to Customer for the enhanced subscription services such as offering promotions
through the Service. The Fees shall be due and payable at the time indicated by HMEW. The
Fees are non-refundable.
(b) Collection and Taxes. All Fees, taxes and other charges shall be billed to
Customer’s credit card or PayPal account in United States Dollars. Customer shall be
responsible for and shall pay HMEW all currency conversion charges, sales, use, value-added, 4
personal property or other tax, duty or levy of any kind (including, without limitation, interest
and penalties thereon) imposed now or later by any governmental entity. In the event Customer
fails to pay any amount when due and payable, HMEW may immediately suspend or terminate
this Agreement and Customer’s access to the Service.
6. Customer Representations
Customer represents and warrants to HMEW that: (a) Customer is a person over the age of
eighteen (18) or a legally existing entity and has the power and authority to enter into and
perform Customer’s obligations under this Agreement; (b) all information Customer has
provided and will provide to HMEW is truthful, accurate and complete; (c) Customer authorizes
charges to its credit card or PayPal account; and (d) Customer will comply with all terms and
conditions of this Agreement (including, without limitation, “Prohibited Uses” under Section 5).
7. Prohibited Uses
Customer agrees not to engage in unacceptable use of the Service, which includes, without
limitation, use of the Service to: (a) disseminate, store or transmit unsolicited messages, chain
letters or unsolicited commercial email; (b) disseminate or transmit material that to a reasonable
person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar,
threatening or malicious; (c) disseminate, store or transmit files, graphics, software or other
material without the permission or right to do so or that actually or potentially infringes the
copyright, trademark, patent, trade secret or other intellectual property right of any person; (d)
create a false identity or to otherwise attempt to mislead any person as to the identity or origin of
any communication; (e) export, re-export or permit downloading of any message or content in
violation of any export or import law, regulation or restriction of the United States and its
agencies or authorities, or without all required approvals, licenses or exemptions; (f) interfere,
disrupt or attempt to gain unauthorized access to other accounts on the Service or any other
computer network; (g) disseminate, store or transmit viruses, trojan horses or any other malicious
code or program; or (h) engage in any other activity deemed by HMEW to be in conflict with the
spirit or intent of this Agreement.
This Agreement is effective upon Customer’s acceptance as set forth herein and shall continue in
full force until terminated. Customer may terminate this Agreement, at any time and for any
reason, upon notice to HMEW. HMEW may terminate this Agreement, at any time and for any
reason, without notice to Customer.
9. Proprietary Rights
The contents of the Service are copyrighted by HMEW. All rights are reserved. No part of the
Service or the services, products and information on the Service may be reproduced or
transmitted by Customer in any form by any means without HMEW’s express written
permission. HMEW shall retain and exclusively own all right, title and interest in and to its
trademarks, copyrights or other intellectual property rights contained in the Service.5
10. Disclaimer of Warranties
THE SERVICE IS PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY
OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT CUSTOMER’S
SOLE RISK. HMEW DOES NOT REPRESENT OR WARRANT THAT THE SERVICE
WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES HMEW MAKE ANY
REPRESENTATION OR WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED
BY USE OF THE SERVICE. HMEW MAKES NO OTHER WARRANTIES, EXPRESS OR
IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR
PURPOSE) IN RELATION TO THE SERVICE OR THIS AGREEMENT. THIS
PARAGRAPH IS INTENDED TO BE APPLICABLE TO THE MAXIMUM EXTENT
ALLOWED BY LAW.
11. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL HMEW BE LIABLE TO CUSTOMER OR ANY
OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THE
SERVICE OR THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, CUSTOMER’S
USE OR INABILITY TO USE THE SERVICE), WHETHER SUCH LIABILITY IS
ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT
SHALL HMEW’S TOTAL LIABILITY TO CUSTOMER OR ANY OTHER PERSON FOR
ANY DIRECT DAMAGES ARISING FROM OR RELATING TO A BREACH BY HMEW OF
THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO HMEW
UNDER THIS AGREEMENT. THIS PARAGRAPH IS INTENDED TO BE APPLICABLE
TO THE MAXIMUM EXTENT ALLOWED BY LAW.
Customer agrees to indemnify and hold harmless HMEW and its shareholders, directors,
officers, employees and agents for, from and against any action, cause, claim, damage, debt,
demand or liability (including, without limitation, reasonable attorneys’ fees and expenses and
court costs) resulting from, arising out of or relating to Customer’s breach of this Agreement or
Customer’s use of the Service. This paragraph is intended to be applicable to the maximum
extent allowed by law.
(a) Independent Contractors. The parties are independent contractors. Neither party,
by virtue of this Agreement or otherwise, shall have any right, power or authority to act or create
any obligation, express or implied, on behalf of the other party.
(b) Notices. Any notice made by either party under this Agreement shall be delivered
via e-mail. Customer shall deliver all notices to HMEW at email@example.com. HMEW
shall deliver all notices to Customer to the e-mail address provided for Customer’s account or
any other e-mail address that Customer provides to HMEW.6
(c) Survival. In the event of any termination of this Agreement, any accrued
obligation under this Agreement (including, without limitation, unpaid Fees) and Sections 9, 10,
11, 12 and 13 shall survive indefinitely.
(d) Governing Law; Venue; Severability. The Service is controlled, operated and
administered by HMEW from HMEW’s offices in San Diego County, California, United States
of America. As such, this Agreement shall be governed by the laws of the State of California
without giving effect to its conflict of laws principles. Customer agrees that any action or
proceeding instituted by Customer resulting from, arising out of, relating to or in connection with
use of the Service or this Agreement shall be tried and litigated exclusively in the state and
federal courts located in San Diego County, California, United States of America within one (1)
year after the claim or cause of action arises upon which such claim or proceeding is based. If
for any reason a court of competent jurisdiction finds any provision of this Agreement to be
unenforceable, then such provision shall be enforced to the maximum extent permissible by law
so as to affect the intent of this Agreement and the remainder of this Agreement shall continue in
full force and effect.
(e) Entire Agreement; Amendment. This Agreement constitutes the entire agreement
between Customer and HMEW in connection with Customer’s access to and use of the Service
and shall not be deemed amended, modified or waived under any circumstance, except that
HMEW may add to or modify this Agreement at any time by notice to Customer or providing for
disclosure to Customer through the Service and Customer’s access to or use of the Service after
the date of such notice or disclosure shall be deemed to constitute acceptance of such addition or
(f) Execution. This Agreement is a “click-wrap” agreement. This Agreement shall
be deemed executed and delivered by both parties upon Customer clicking the acceptance button
for this Agreement.