1. Acceptance of Terms
Ashento, Inc. (“ashento”, “We”) provides its Service (as defined below) to you through its web site located at Ashento.id (the “Site”), application programming interface (the “API”), or any mobile application (the “Mobile App”, together with the Site and the API, the “Application”) that Ashento may offer from time to time, subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you are entering into this TOS on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Service. Any actions you, or any of your employees, consultants, agents, representatives, and users take on the Service shall be deemed to have occurred on behalf of your legal entity.
2. Description of Service
The “Service” means (a) the Application, (b) all software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”) and all modifications thereto.
Ashento reserves the right to alter the Service at any time. Certain features of the Service may not be available in all countries. We reserve right to limit or make available the Service or parts of the Service depending on location. For example, certain features like SMS may be limited to the US and Canada or we may limit the availability of calling numbers for specific countries, regions, or type of number (e.g. premium numbers) available in certain countries.
Ashento occasionally develops and offers limited beta releases for new features. To participate in a beta release, you must explicitly agree to the additional terms and conditions for such beta release that are presented to you. This TOS does not necessarily cover a beta release.
The Service is provided “as-is”. That means the Service may include bugs that impact your ability to use the Service and/or may impact your business. Ashento is not liable for your use of the Service.
3. General Conditions / Access and Use of the Service
Ashento is based on the ERPNext code which is licensed as GNU General Public License (v3) and the Documentation is licensed as Creative Commons (CC-BY-SA-3.0) and the copyright is owned by Frappe Technologies Private Limited (Frappe)© 2010 – 2012 and Contributors., reproduced below or available at https://www.gnu.org/licenses/gpl-3.0.html and https://creativecommons.org/licenses/by-sa/3.0/. The link to the source code is https://github.com/frappe/erpnext.
You may not copy, modify, sublicense, link with, or distribute the code except as expressly provided under the above-mentioned License. Any attempt otherwise to copy, modify, sublicense, link with, or distribute the Library is void, and will automatically terminate any rights under this License. Nothing in this else grants permission to modify or distribute the license or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the License (or any work based on the License), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the License or works based on it.
Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes and in compliance with all applicable local, state, and federal laws, including the Telephone Consumer Protection Act (TCPA), the Federal Trade Commission’s National Do Not Call Registry, CAN-SPAM Act, telemarketing regulations, and state and federal laws governing recording phone calls. Certain features of the Service, such as predictive or power dialer capabilities, may be prohibited in your location. Prior to using the Service, you must ensure that any such use is permitted in your jurisdiction. You shall comply with any codes of conduct, policies or other notices Ashento provides you or publishes in connection with the Service, and you shall promptly notify Ashento if you learn of a security breach related to the Service. Without limiting any of the foregoing, you agree to comply, and require that your employees, consultants, agents, representatives, and users comply, with all applicable laws, whether federal, state, local or international, relating to the privacy of communication for all parties to a conversation, including, when required, advising all participants in a recorded telephone call or video chat, that the call or chat is being recorded.
All rights, title and interest in and to the Service and its components will remain with and belong exclusively to Ashento. As a user of the Service, you may lease phone numbers associated with your account from Ashento. There is no guarantee that these numbers will remain yours. In the event that you downgrade your Service or you terminate your Service, you will forfeit any phone numbers associated with your account. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components, or (c) modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.
The Service is protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in the TOS, Ashento, its suppliers and licensors own all right, title and interest in and to the Service, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service.
Any software that may be made available by Ashento in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, Ashento hereby grants you a personal, non-transferable, non-sub licensable and non-exclusive right and license to use the object code of any Software on a single device solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Service by any means other than through the interface that is provided by Ashento for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Ashento or any third party is granted to you in connection with the Service.
Ashento may collect information about your use of the Service (“Usage Data”). Usage Data may be used for data analytics purposes to review, analyze, and optimize the Service.
Ashento may collect information from third party services via integrations you initiate (“Connected Account Data”). Connected Account Data may be stored and processed by Ashento after an integration is disconnected for the purpose of providing the Ashento Service. Connected Account Data is maintained for the duration your organization’s Ashento account is active.
You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. Ashento reserves the right to access your account for purposes that Ashento deems appropriate, for example to respond to your requests for technical support or account management. By transferring Your Content on or through the Service, You hereby do and shall grant Ashento a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Service. Ashento has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that Ashento may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Ashento third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Ashento will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
The failure of Ashento to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and Ashento, even though it is electronic and is not physically signed by you and Ashento, and it governs your use of the Service and takes the place of any prior agreements between you and Ashento.
Ashento reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on Ashento website and in other communication with existing or potential Ashento customers. To decline Ashento this right you need to email [email protected]
stating that you do not wish to be used as a reference.
Ashento reserves theright at any time to modify or discontinue, temporarily or permanently, your account and/or the Service (or any part thereof) with or without notice.Ashento shall not be liable to you or to any third party for any modification,price change, change in capacity or accessibility, suspension or discontinuanceof the Service. Ashento may limit your use of the Service for any reason atall, in Ashento sole discretion. You agree that any termination or limitationof your access to the Service may be without prior notice, and you agree thatAshento will not be liable to you or any third party for such change ortermination. If Ashento terminates this TOS or your access or use of theService due to your breach of this TOS or any suspected fraudulent, abusive, orillegal activity, then termination of this TOS shall be in addition to anyother remedies Ashento may have at law or in equity.
To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Ashento information regarding your credit card or other payment instrument. Such payment plan may include the option to prepay for your access to the Service before it begins or to receive an invoice for payment after your use of the Service has begun. Additional information on our payment plans is available at pricing page on the Site, or in the order form confirming your purchase. To the extent your use of the Service exceeds the usage limits provided for in your payment plan, you were not invoiced for services rendered, or you missed any payments due on your account, Ashento reserves the right to recover such fees and charge you standard and overage fees for any such regular and excessive use. You represent and warrant to Ashento that any payment information you provide is true and that you are authorized to use the payment instrument for this Service.
You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Ashento the amount that is specified in the payment plan in accordance with the terms of such plan and this TOS. You hereby authorize Ashento to bill your payment instrument in advance of receipt of any Service on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Ashento know in writing within sixty (60) days after the date that Ashento invoices you. We reserve the right to change Ashento prices. If Ashento does change the pricing plans, Ashento will provide notice of the change on the Application or in email to you, at Ashento option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. Your failure to provide payment in accordance with your payment plan on a timely basis shall afford Ashento the right to terminate your access to the Service. All fees are non-refundable and exclusive of applicable taxes. You are responsible for paying all taxes and government charges, and all reasonable expenses and attorney’s fees Ashento incurs collecting late amounts.
5. Representations and Warranties
You represent and warrant to Ashento that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your activities (and allow Ashento to perform its obligations) in connection with the Service without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and Ashento exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; (iv) you will comply with all applicable local, state, federal and international laws including TCPA, the Federal Trade Commission’s National Do Not Call Registry, CAN-SPAM Act, telemarketing regulations, and laws governing recording phone calls; and (v) you are eighteen (18) years of age or older. Without limiting the foregoing, you represent and warrant that you shall seek the appropriate consent for any unsolicited marketing calls, agree not to sell your data, and only use any features available on the Service in locations where such features are permissible.
You have the right to terminate your account at any time in accordance with the procedures set forth on the Site. Ashento reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (any part thereof) or use of the Service and remove and discard any of Your Content in the Service, for any reason, including if Ashento believes that you have violated this TOS. Ashento shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service. Ashento will use good faith efforts to contact you to warn you prior to suspension or termination of your account by Ashento. All of Your Content on the Service (if any) may be permanently deleted by Ashento upon any termination of your account in its sole discretion. If Ashento terminates your account without cause and you have signed up for a fee-bearing service, Ashento will refund the prorated, unearned portion of any amount that you have prepaid to Ashento for such Service. However, all accrued rights to payment and the terms of Section 4-17 shall survive termination of this TOS.
7. Disclaimer of Warranties
The service, including the site and content and all server and network components are provided on an “as is” and”as available” basis without any warranties of any kind, and Ashento expressly disclaims any and all warranties, whether express or implied,including, but not limited to, the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. You acknowledge that Ashento does not warrant that the service will be uninterrupted, timely, secure, error-free or virus-free and no information, advice or services obtained by you from Ashento or through the service shall create any warranty not expressly stated in this TOS.
8. Limitation of Liability
Under no circumstances and under no legal theory (whether in contract, tort, or otherwise) shall Ashento be liable to you or any third party for (a) any indirect, incidental, special, exemplary, consequential or punitive damages, including lost profits, lost sales or business, lost data, data breach, or business interruption, or (b) for any direct damages, costs, losses or liabilities in excess of the fees actually paid by you in the six (6) months preceding the event giving rise to your claim or, if no fees apply, one hundred ($100) US Dollars. The provisions of this section allocate the risks under this TOS between the parties, and the parties have relied on these limitations in determining whether to enter into this TOS.
Some states do notallow the exclusion of implied warranties or limitation of liability forincidental or consequential damages, which means that some of the abovelimitations may not apply to you. In these states, Ashento Liability will belimited to the greatest extent permitted by law.
You shall defend, indemnify, and hold harmless Ashento from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service, including without limitation any claims for copyright infringement, defamation, invasion of privacy or right of publicity arising out of or in connection with any unauthorized use of the Service, violation of any applicable laws including TCPA, the Federal Trade Commission’s National Do Not Call Registry, CAN-SPAM Act, telemarketing regulations, and state and federal laws around recording phone calls, and any third-party litigation arising out of your use of the Service. Ashento shall provide notice to you of any such claim, suit or demand. Ashento reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Ashento defense of such matter.
Ashento may change this TOS from time to time with at least 30 days’ prior notice. You can review the most current version of this TOS at any time at Terms Page. “Prior notice” means the revised terms and conditions will be posted on the Service. If you use the Service within 30 days after the notice had been posted, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is to stop accessing and using the Service.
You may not assign this TOS without the prior written consent of Ashento, but Ashento may assign or transfer this TOS, in whole or in part, without restriction.
12. Governing Law
This TOS shall be governed by the laws of the State of Delaware without regard to the principles of conflicts of law. Unless otherwise elected by Ashento in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Delaware for the purpose of resolving any dispute relating to your access to or use of the Service.
The parties agree that any dispute with respect to any matter covered under this TOS, including any disputed claim for indemnification, will be submitted to mandatory, final and binding arbitration before with the San Francisco, California branch of JAMS (“JAMS”), governed by JAMS’ Commercial Rules of Arbitration applicable at the time of the commencement of the arbitration (the “JAMS Rules”) and heard before one arbitrator. You and Ashento shall attempt to mutually select the arbitrator. In the event we are unable to mutually agree, the arbitrator shall be selected by the procedures prescribed by the JAMS Rules. Each party shall bear its own attorneys’ fees, expert witness fees, and costs associated with any arbitration pursuant to this Section 13.
14. Privacy; EU Data Protection
Please visit privacy page to understand how Ashento collects and uses personal information. Information on how Ashento complies with EU Data Protection Laws including the Irish Data Protection Acts as amended and the General Data Protection Regulation (Regulation (EU) 2016/679) can be found by visiting GDPR.
Definition By virtue of your use of the Service, the parties may have access to each other’s Confidential Information. “Confidential Information,” as used in this TOS, means any written, machine-reproducible and/or visual materials, whether labeled as proprietary, confidential, or with words of similar meaning or not, and all information that is orally or visually disclosed, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Ashento Confidential Information includes, without limitation, the Usage Data, including the content therein, including any Software whether in source or executable code, documentation, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Service.
Exclusions Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
Use and Nondisclosure During the term and for a period of five (5) years after expiration or termination of your use of the Service, you shall not make the Ashento Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising your rights and performing your obligations under this TOS. You shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this TOS, but in no event will you use less effort to protect the Confidential Information of the other party than you use to protect your own Confidential Information of like importance. You will ensure that any agents or subcontractors that are permitted to access any of Ashento Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
The Service is conducted electronically and you agree that Ashento may communicate electronically with you for any matters relating to the Service, including but not limited to information and notifications regarding product updates, payments, and ways to more efficiently use the Service, and legal notices of any kind, including cancellation and termination, unless prohibited by law. Any notices to be provided to you under this TOS shall be sent by electronic mail to the last email address that we have on file for you, and you hereby consent to receiving any such notice by electronic mail. Notice shall be deemed to have been given by Ashento on the date we sent the relevant electronic communication with applicable receipt of delivery.