Terms of Service

These Terms of Service (the “Terms”) are a binding contract between you and Turkana, LLC, a North Carolina limited liability company, doing business as “BRCK” (“BRCK,” “we,” “us,” or “our”). BRCK is a trade name of Turkana, LLC. You must agree to and accept all of the Terms, or you don’t have the right to use the Services. Your use of the Services in any way means that you agree to all of these Terms, and these Terms will remain in effect while you use the Services. As used in these Terms, “Services” means BRCK’s website(s), products, applications, VoIP and telephony services, and messaging/A2P services, together with all related features and functionality. Your use of the Services and our website constitutes your agreement with and to be bound by all terms and conditions included in these Terms as well as the terms outlined in the Acceptable Use Policy, the Privacy Policy, the Product Terms — Messaging, and the Copyright Dispute Policy, all of which are incorporated herein by reference.

Order of Precedence

These Terms, together with the documents and policies incorporated by reference, constitute the entire agreement between you and BRCK regarding the Services (the “Agreement”). In the event of any conflict or inconsistency among the documents comprising the Agreement, the following order of precedence governs, from highest to lowest priority: (1) any mutually executed Order Form, Service Agreement, or reseller agreement between you and BRCK (each, an “Order Form”), but only as to the specific terms expressly negotiated therein; (2) these Terms of Service; (3) any product-specific or supplemental terms applicable to a Service you use, including the Product Terms — Messaging; (4) the Acceptable Use Policy; (5) the Privacy Policy and any applicable Data Processing Addendum (“DPA”); and (6) the Copyright Dispute Policy. A document lower in this order controls over a higher document only to the extent it expressly states that it supersedes the higher document with specific reference to the provision being superseded. Except as so superseded, all documents comprising the Agreement are to be read together as a single, integrated agreement.

Modifications and Updates to Terms

We are constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms, and we will bring any change to your attention by placing a notice on the BRCK website, by sending you an email, and/or by some other reasonable means. For any material change to these Terms, we will provide at least thirty (30) days’advance notice before the change takes effect, except that changes required to comply with law or regulation, or to address a security risk, may take effect on shorter notice or immediately as reasonably necessary. Non-material changes may take effect upon posting. If you don’t agree with a change, you are free to reject it by discontinuing your use of the Services before it takes effect; unfortunately, that means you will no longer be able to use the Services. Your use of the Services in any way after a change to the Terms is effective serves as your acceptance of and agreement with that change.

Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.

Service Registration Procedures

Upon signing up for the Services and at subsequent times as requested by BRCK, you agree to provide BRCK with your true, accurate, current, and complete personal name and/or business name, administrator name, billing address, shipping address, the addresses where the Services will primarily be used, 911 registered address for each applicable device, email address, contact phone number, credit card information, and other data which may be necessary to administer your BRCK account (“Account”) (collectively, “Registration Data”). You represent and warrant that the information you provide is accurate, current, and complete, and agree to promptly update any of the information if it changes. If you provide Registration Data that is, or that BRCK suspects to be, false, inaccurate, not current, incomplete, fraudulent, or otherwise unlawful, BRCK has the right, in its sole discretion, to suspend or terminate the Services and refuse any and all current or future use of all Services by you, your business(es), affiliates and all users of your Account. At all times, you shall maintain and promptly update Registration Data. Upon completion of all Registration Data and acceptance of this Agreement, BRCK will provide you with, as applicable, a password(s), user ID(s), telephone number(s), and other account information. You are solely liable for any transactions or activities by you or anyone else that occur on Your Account. You shall immediately notify BRCK of any unauthorized use of your Account or if any other breach of security has occurred. In no event shall BRCK be liable for any unauthorized use of your Account.

You represent and warrant that you possess the legal right, capacity, and ability to enter into this Agreement. You represent and warrant that you have made and will maintain at all times wireless or traditional wireline telephone service that will enable you to call 911 and any other applicable emergency service number. You represent and warrant that you will not use the Services in environments requiring fail-safe performance or in which the failure of the Services could lead directly to death, personal injury, or severe physical or environmental damage. You represent and warrant that the Registration Data, user name, contact information, office location (as defined in the Services), and all other information provided in connection with your Account are true and correct at all times. You represent and warrant that you will not use the Services in violation of these Terms or any terms incorporated herein. You agree to be financially responsible for your use of the Services, including the authorized or unauthorized use of your Account. In order to use the Services, you must have properly configured and working Internet service and/or Public Switched Telephone Network (“PSTN”) service (i.e., mobile and/or landline phone service) and hereby agree, at your sole expense: to (1) obtain access to your own Internet and/or PSTN service with a third party provider other than BRCK; (2) be responsible for payment of Internet and/or PSTN connection or service fees and all equipment necessary to establish a connection to such Internet and/or PSTN service, as may be required to use the Services; (3) supply and pay third-party providers for all additional phone service and features required for your use of the applications or Services; and (4) pay BRCK for the Services.

Your use of the Services is subject to the restrictions in the BRCK Acceptable Use Policy. You warrant and represent that you will at all times comply with the BRCK Acceptable Use Policy.

Information, and Third Parties

In connection with the registration, implementation, maintenance, or servicing of the Services, you will be required to provide data, personally identifiable information, or other materials (collectively “Customer Data”). Should you use BRCK features that include collection of audio or transcript data, such information is included in the definition of Customer Data. You are solely responsible for collecting, entering and updating the Customer Data. You hereby grant to BRCK a perpetual, worldwide, royalty-free, fully paid-up, non-exclusive license to copy, store, record, transmit, display, view, print, and use Customer Data to the extent necessary to provide, develop, and improve the Services. You agree that we may authorize access to Customer Data and share how you use our Services to employees, contractors, and agents who need to know the information in order to improve, personalize and provide Services, conduct research for product development, and enhance user experience. BRCK may also share Customer Data as permitted pursuant to BRCK’s Privacy Policy, which is incorporated by reference into these Terms.

Any information transmitted through the Services is the sole responsibility of the person from whom such information originated, and you access all such information at your own risk. BRCK is not liable for any errors or omissions in that information or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the information or what actions you may take as a result of having been exposed to the information, and you hereby release us from all liability for you having acquired or not acquired information through the Services. We do not guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.

You are responsible for all your activity in connection with the Services.

The Services may contain links or connections to third-party websites or services that are not owned or controlled by BRCK. You access any such third-party websites or services at your own risk and are responsible for reading and abiding by any terms and conditions, privacy policies, or any other terms, conditions, warranties, or representations associated with such third parties or their websites or services. BRCK disclaims any liability arising from such use and by using the Services, you release and hold BRCK harmless from any and all liability arising from your interactions with any third parties or your use of any third-party website or service.

Certain services made available via the Services are delivered by third-party sites and organizations. By using any product, service or functionality of the Services, you hereby acknowledge and consent that BRCK may share such information and data with any third party with whom BRCK has a contractual relationship to provide the requested product, service or functionality on behalf of BRCK’s users and customers.

If there is a dispute between participants on this site, or between users and any third party, you agree that BRCK is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release BRCK, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

Changes to Services

BRCK, in its sole discretion, reserves the right to add, remove, or modify features or functions, including reassignment of phone numbers when such numbers are no longer available, or to provide fixes, updates and upgrades, to the Services. You acknowledge and agree that BRCK has no obligation to make available to You any subsequent versions of the Services. In addition, you and BRCK acknowledge that no third party has any obligation whatsoever to furnish maintenance or support services with respect to the Services and that BRCK is solely responsible for the provision of maintenance and support as provided in this Agreement and to the extent such maintenance and support is required under applicable law. Your continued use of the Services following any modification of the Services constitutes your agreement with any such changes or updates.

Account Termination

In the event that you wish to stop using the Services, you may do so at any time, by contacting us at support@brck.com. BRCK may terminate (or suspend access to) your use of the Services or your Account, for any reason in our sole discretion, including, but not limited to, your breach of these Terms.

Upon termination of your Account, all information associated with your Account will be deleted or destroyed in accordance with the Privacy Policy. As such, you should perform regular backups in order to avoid losing information upon termination. If you have deleted your Account by mistake, contact us immediately at support@brck.com; if possible, we will attempt to assist in recovering any lost information following an accidental account closure (though we make no representations that we will be able to recover or restore any information).

Suspension of Service

In addition to and without limiting BRCK’s termination rights, BRCK may suspend or restrict your access to the Services (in whole or in part), with or without prior notice, if: (a) you fail to pay any amount when due, or your payment method is declined or fails; (b) you breach these Terms or the Acceptable Use Policy; (c) BRCK reasonably believes there is a security threat, fraud, toll fraud, unauthorized access, or anomalous or suspicious usage affecting your Account, the Services, or BRCK’s network; (d) your Registration Data is or is suspected to be false, inaccurate, incomplete, or fraudulent; or (e) BRCK is required to do so to comply with applicable law, regulation, or a governmental or regulatory request. Where practicable and not prohibited, BRCK will endeavor to provide notice of, and an opportunity to cure, a suspension, but BRCK may suspend immediately where it reasonably determines that prompt action is necessary to protect BRCK, its network, other customers, or any third party. Charges and fees continue to accrue during any period of suspension, and you remain responsible for all amounts owed. BRCK may condition restoration of the Services on your cure of the underlying issue and payment of all outstanding amounts, and may charge a reasonable reconnection or reactivation fee.

Billing and Payment

If you choose to sign up for any Services that carry a fee, you will be charged the then-current fees for such Services. Unless otherwise agreed, all fees paid to BRCK are non-refundable.

Unless you are paying for the service pursuant to an invoicing arrangement with BRCK or one of our authorized resellers (“Reseller”), as described in the following paragraphs, any applicable initiation charges, usage, monthly recurring charges, support charges, and other fees are billed in full in advance. Termination, international calling, and transfer charges, if any, are billed in arrears.

When you subscribe to Services, you will provide us with a valid payment method, such as a valid credit card (including proper billing information), and, if applicable, authorize us to collect from your payment method. Any authorization will remain valid until thirty (30) days after you terminate our authority to charge your payment method. Upon termination, we will charge you any fees and any other outstanding charges and disconnect your Service. You agree to advise and notify us of any changes to your payment method, such as credit card account number or expiration date changes. If the credit card or other payment method on your Account is declined or fails for any reason, BRCK will use reasonable efforts to contact you and advise you of the failed billing attempts. Notwithstanding the foregoing, BRCK reserves the right to disconnect your Service and terminate your Account if your credit card on file is declined or fails for any reason, and BRCK reserves the right to continue to attempt charging your credit card for any outstanding Service charges and additional fees and pursue any other legal remedies available to BRCK.

Time is of the essence for payment. Therefore, you agree to pay us interest at the lesser rate of (a) 18% per annum or (b) the highest rate allowed by law for any amounts unpaid as of the due date. Acceptance of late or partial payments (even if marked “Paid in Full”) shall not waive any of BRCK’s rights to collect the full amount due. We may assess an additional fee of the lesser of (a) fifty dollars ($50) or (b) the highest amount allowed by law for any credit card chargeback or check returned for nonpayment.

Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and prorate the charges to your Account.

You must dispute any charges for the Services in writing to BRCK within thirty (30) days of the date of the charge by BRCK. If you fail to provide a written statement explaining in reasonable detail your reasons for disputing the charge within such time period, you hereby irrevocably waive any objection and further recourse with regard to such charges. Written statements disputing charges must be sent to support@brck.com.

Product Pricing and Availability

With respect to its advertising, offering, or sale of Services, BRCK attempts to describe its products as accurately as possible. Nevertheless, BRCK does not warrant that any descriptions, pricing, availability, or other information relating to the advertising, offering, or sale of Services (collectively, “Service Information”) from its website, marketing materials, promotional flyers, advertisements, or other printed or electronic materials (collectively, “Service Materials”) is accurate, complete, reliable, current, or error-free. Despite our efforts, it is possible that Service Information may be mispriced, described inaccurately, or that the Services may be unavailable. In the event BRCK determines that a Service is mispriced, described inaccurately, or unavailable, BRCK reserves the right to take any action it deems reasonable and necessary to rectify the error, including without limitation, canceling your Account or subscription to the Services. You agree to notify BRCK immediately if you become aware of any pricing or descriptive errors or inconsistencies with any Services you order through the Service Materials and comply with any corrective action taken by BRCK. You acknowledge and agree that the Services may not be available 100% of the time. Credit allowances for interruption of the Services may only be provided on a case-by-case basis at the sole discretion of BRCK and shall be your sole remedy for any Service interruptions or other issues with the Services.

Taxes, Charges, and Fees

All fees for Services advertised or otherwise listed on the website are exclusive of any federal, state, local sales, international excise, value-added, and similar taxes or fees and administrative or recovery fees or charges (collectively “Taxes and Fees”). You agree to pay all Taxes and Fees and/or similar liabilities, however denominated, that may now or hereafter be levied on the Services, which are chargeable to or recoverable from customers by any federal, state, local, or international law or regulation, as well as any administrative and recovery fees and charges levied on the Services by BRCK, whether or not mandated by law or regulation. Should BRCK pay or be required to pay such liabilities (including any Taxes and Fees that were due but not charged or previously collected), You agree that BRCK may invoice you or charge your credit card on file for such payments upon receipt of an invoice and showing of indebtedness to BRCK.

You are responsible for paying all charges for your Account, including but not limited to toll-free, local, long distance, international, additional feature charges, 411 and operator assisted charges, and directory assistance charges, and for all taxes, surcharges, and fees imposed on you or us as a result of your use of the Service.

Regulatory and USF Cost-Recovery Surcharge. In addition to the Taxes and Fees described above, BRCK may assess and you agree to pay a separately stated regulatory cost-recovery surcharge to recover amounts BRCK incurs or is required to contribute in connection with federal, state, and local regulatory obligations, including without limitation federal and state Universal Service Fund (“USF”) contributions, Telecommunications Relay Service (TRS), local number portability, regulatory and compliance program costs, and similar government-mandated or regulatory-driven costs. This surcharge is a BRCK charge, not a tax, and the amount may change as the applicable contribution factors, rates, or BRCK’s underlying costs change. The surcharge will be reflected as a line item on your invoice or statement.

Customer Equipment Security; Responsibility for Unauthorized Use, Fraud, and Toll Fraud

You (“Customer”) are solely responsible for securing and protecting your own equipment, devices, systems, networks, internet and PSTN connections, PBX, SIP endpoints, ATAs, softphones, routers, and any other hardware or software used to access or interconnect with the Services, as well as all credentials, user IDs, passwords, PINs, API keys, SIP/registration credentials, tokens, and Account access associated with the Services. You are responsible for implementing and maintaining commercially reasonable security measures for all of the foregoing.

You are responsible for, and agree to pay BRCK in full for, ALL charges and usage originating from, placed through, routed to, or otherwise attributable to your Account, the Services, your assigned numbers or trunks, your credentials, or your equipment — including, without limitation, all charges arising from or in connection with fraud, hacking, unauthorized access, toll fraud, International Revenue Share Fraud (“IRSF”), call-pumping or traffic-pumping schemes, PBX or SIP compromise, compromised, stolen, shared, or misused credentials, malware, or any third-party use or misuse — WHETHER OR NOT YOU AUTHORIZED, KNEW OF, CONSENTED TO, OR BENEFITED FROM SUCH USAGE.

A security breach, hack, intrusion, or other compromise of your equipment, systems, networks, credentials, or Account does NOT release, reduce, suspend, excuse, or otherwise limit your obligation to pay BRCK for all charges and usage resulting from such compromise. For the avoidance of doubt, an assertion that you “were hacked,” that your credentials were stolen, or that the usage was unauthorized does not relieve you of financial responsibility for the resulting charges.

BRCK may, but is under no obligation to, monitor for, detect, alert on, cap, throttle, suspend, or block traffic, destinations, or usage that BRCK believes in its sole discretion to be suspicious, anomalous, fraudulent, or in violation of these Terms or the Acceptable Use Policy. Any such action — or BRCK’s decision not to take, or delay or failure in taking, any such action — is undertaken at BRCK’s sole discretion, creates no liability for BRCK, confers no rights on you, and does not shift to BRCK any responsibility for charges, which remain your responsibility as set forth in this section.

You are strongly encouraged to maintain fraud-prevention best practices at all times, including using strong and unique credentials, restricting or disabling international and high-risk destinations you do not use, enabling spend caps or usage limits where available, and monitoring your usage and statements. You agree to promptly notify BRCK at support@brck.com upon becoming aware of any actual or suspected compromise, unauthorized use, or fraudulent activity affecting your equipment, credentials, or Account. You acknowledge that BRCK requires a reasonable period of time to act on any such notice, and you remain responsible for all charges incurred before BRCK is able to act.

You agree to indemnify and hold BRCK, its affiliates, officers, agents, employees, and partners harmless from and against any and all charges, claims, liabilities, damages, losses, and expenses (including attorneys’ fees) assessed against or incurred by BRCK by any underlying carrier, upstream provider, or other third party, and any claims by such parties, arising from or related to any unauthorized use, fraud, toll fraud, IRSF, or compromise described in this section. This section is in addition to, and does not limit, your obligations under the BILLING AND PAYMENT section, the WARRANTY, LIMITATION OF LIABILITY, AND INDEMNIFICATION section, and the Acceptable Use Policy (which also addresses toll fraud and IRSF), each of which is incorporated by reference.

Discounts

From time to time in its sole discretion, BRCK may offer promotions or discounts. Any promotion or discount code must be provided to BRCK upon purchase of the Services. You shall not be entitled to a subsequent credit for such promotions or discounts if you do not request such credit at the time of account creation or change of service. Promotions and/or discounts may not be used cumulatively or be used for Services retroactively. If a promotion and/or discount is offered on a confidential basis, you agree not to disclose the promotion and/or discount and to assume full responsibility for any harm, direct or indirect, caused to BRCK by the disclosure of the promotion and/or discount.

Unlimited Calling

BRCK offers unlimited monthly calling for domestic calls (United States and Canada). An unlimited service is subject to the terms and restrictions of the Acceptable Use Policy along with any other restrictions described herein, as well as any reseller agreements, if applicable. If, for any reason, BRCK believes that you are using the unlimited service for a prohibited purpose and/or your call usage violates the Acceptable Use Policy, then BRCK may, in its sole discretion with or without notice, terminate your unlimited service. Unlimited monthly calling may be used only for lawful, proper and appropriate purposes and may not be used in any way that is illegal, improper or inappropriate. Inappropriate and prohibited use restrictions include, but are not limited to: resale or transfer; auto-dialing; continuous or extensive call forwarding; continuous connectivity; fax broadcast/blasting; telemarketing; predictive dialing; or any other use or activity that is inconsistent with normal small to medium sized business usage. BRCK reserves the right to measure for appropriate use and at its sole discretion may determine that the service has been subject to inappropriate use. In the event inappropriate use is determined, BRCK may request the customer change or modify the service use and/or service plan. Additionally, BRCK reserves the right to immediately terminate service and charge a minimum inappropriate use fee of $500 and/or charge $0.05 per minute for all calls made during such periods of prohibited use (plus applicable international charges), whichever is higher.

Unlimited calling includes the appropriate use of: Local Outbound Calling, Intrastate Outbound Calling, Interstate Outbound Calling, Toll Free Outbound Calling, and Inbound Calling. Outbound Calling includes the 48 contiguous United States of America and Canada. Rates for all other destinations can be found at www.brck.com/legal/rates.

Call Duration Thresholds

At least 95% of outbound calls will be of a call duration of no less than six (6) seconds in length. If 5% or more of Your completed calls are equal to or less than six (6) seconds in length during any billing cycle then BRCK reserves the right to charge, and You shall pay, a $0.03 charge per short duration call. This charge will be in addition to Your current rates.

Toll-Free Calling

BRCK offers toll-free numbers, for an additional monthly fee, plus additional charges based on the minutes of use for inbound calls. If, for any reason, BRCK believes that you are using the toll-free calling for a prohibited purpose and/or your call usage violates the Acceptable Use Policy, then BRCK may, in its sole discretion with or without notice, terminate your toll-free calling service. The standard toll-free per minute rate includes the 48 contiguous United States of America. Offshore rates can be found at www.brck.com/legal/rates.

International Calling

To make international calls using the Services, you must enable international calling on your account. Our international calling rates are available at https://www.brck.com/rates/. In addition, you may be charged any applicable Taxes and Fees associated with international calls. If, for any reason, BRCK believes that You are using the Service for a prohibited purpose and/or your call usage violates the Acceptable Use Policy, then BRCK may, in its sole discretion with or without notice, terminate your service.

Emergency Services (911/E911)

The 911 and E911 dialing capabilities of VoIP and Internet-based telephony services differ materially from those of traditional wireline or wireless telephone service and may be unavailable or limited in certain circumstances, including during a broadband, power, or Service outage, during network congestion, if your equipment fails, if you relocate your equipment, or if your registered service address is not current. You acknowledge and agree that:

(a) You must provide and maintain a current, accurate physical service address (the “Registered Location”) for each device or line that may be used to place emergency calls, and you must promptly update the Registered Location whenever a device is moved. Emergency calls are routed based on the Registered Location on file, which may be different from your actual location at the time of the call. BRCK is not responsible for misrouted emergency calls or delayed or failed emergency response resulting from an inaccurate, incomplete, or out-of-date Registered Location.

(b) You are responsible for maintaining alternative means of accessing emergency services (such as wireless or traditional wireline service), as represented elsewhere in these Terms.

(c) To the fullest extent permitted by applicable law, BRCK, its affiliates, officers, employees, agents, and underlying carriers shall have no liability for any claim, damage, loss, or injury arising from or relating to the unavailability, limitation, failure, delay, or misrouting of 911/E911 or other emergency-services functionality, including any such functionality provided through third-party carriers, and you agree to defend, indemnify, and hold BRCK harmless from any third-party claim arising from your use of, or inability to use, 911/E911 service, except to the extent such liability cannot be limited or excluded under applicable law. This allocation of liability is in addition to, and shall be read together with, the WARRANTY, LIMITATION OF LIABILITY, AND INDEMNIFICATION section.

Number Porting

Subject to applicable law and number-portability rules, you may request to port (transfer) eligible telephone numbers to or from the Services. Porting depends on the cooperation of, and is subject to the requirements and timelines of, the relevant carriers and is not guaranteed; BRCK does not warrant that any particular number can be ported. You must provide accurate and complete information necessary to process a port request, and you authorize BRCK to act on your behalf to effect porting. BRCK may charge reasonable fees for porting where permitted, and you must be current on all amounts owed before a port-out can be processed. You do not own any telephone number assigned to you in connection with the Services, and except for any non-waivable porting rights you have under applicable law, BRCK retains all rights in numbers it provides and may change or reassign a number where necessary or where the number is no longer available. Upon valid termination, you remain responsible for timely initiating any port-out; numbers not ported out may be released and are not recoverable.

Account Ownership

The account owner shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Services with BRCK. If no legal entity is provided upon sign-up, the account owner shall be the owner of the credit card used to open the account. Subsequent changes to ownership must be supported by appropriate legal documentation. BRCK shall not adjudicate ownership-related disputes, or any other internal business dispute. If BRCK is unable to determine the valid owner of the account, BRCK reserves the right to suspend or terminate the account and Services.

Additional Terms for BRCK VoIP Service

BRCK’s Services may include one or more Voice over Internet Protocol (“VoIP”) lines, including the option to add additional lines at a later date. Your license to the Services is provided for a term specified in your order (the “Term”) through BRCK or an authorized Reseller. The initial Term begins on the date that you sign up for the Services (the “Date of Purchase”). The Term for all Services will renew automatically for successive Terms of the same length without further action by or notice to you unless you notify BRCK customer service of non-renewal at least thirty (30) days before the end of the then current Term, unless otherwise provided in your Agreement.

Monthly Service. For subscribers of monthly Services, you may cancel or terminate your use of the Services with or without cause at any time by contacting BRCK customer service at support@brck.com, subject to the restrictions and fees provided in these Terms, and any additional agreements governing the Services.

Storage of User Information

BRCK is not obligated to store your communications logs, voicemails, faxes, emails, or other messages and does so only as a convenience to you. You agree that BRCK has no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, emails, messages, and/or other communications maintained or transmitted by the Services. You acknowledge and agree that BRCK may establish limits as to the size of communications that BRCK transmits or stores and the duration for which BRCK stores any communications.

Confidentiality

You may use BRCK Confidential Information only in connection with your use of the Services as permitted under this Agreement. During the term of your use of the BRCK Services and for a period of five (5) years thereafter, you will not disclose BRCK Confidential Information and you will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of BRCK Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature.

For purposes of this Agreement, “BRCK Confidential Information” means all nonpublic information disclosed by BRCK or its affiliates, employees, agents, contractors, partners, or suppliers, which is either designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, would reasonably be understood to be confidential in nature, including but not limited to: (a) nonpublic information relating to BRCK’s customers, business plans, product roadmaps, promotional and marketing activities, finances, or other company or business information (or that of our affiliates, partners, or suppliers); (b) any confidential and proprietary third-party information; and (c) the nature, content and existence of any discussions or negotiations (including, but not limited to the terms of this or any other Agreement and any pricing or discounts). BRCK Confidential Information does not include any information that: (i) is or becomes publicly available without breach of these Terms; (ii) can be shown by documentation to have been known to you at the time of your receipt from BRCK; (iii) is received from a third party who was not bound by an obligation of confidentiality or restriction on disclosure; or (iv) can be evidenced as independently developed by you without reliance on or reference to the BRCK Confidential Information.

Warranty, Limitation of Liability, and Indemnification

Warranty Disclaimer. BRCK does not make any representations or warranties concerning the Services. Additional services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS IS” and without any warranty of any kind from BRCK. THE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL BRCK BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE TOTAL AMOUNTS PAID BY YOU TO BRCK FOR THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM (THE “LIABILITY CAP”), OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

Exclusions from the Cap. THE LIABILITY CAP AND THE EXCLUSION OF INDIRECT, SPECIAL, INCIDENTAL, AND CONSEQUENTIAL DAMAGES ABOVE DO NOT APPLY TO, AND SHALL NOT LIMIT, ANY OF THE FOLLOWING: (a) your payment obligations and any amounts owed to BRCK, including, without limitation, all charges for which you are responsible under the BILLING AND PAYMENT section and the CUSTOMER EQUIPMENT SECURITY; RESPONSIBILITY FOR UNAUTHORIZED USE, FRAUD, AND TOLL FRAUD section (including charges arising from unauthorized use, fraud, hacking, toll fraud, and IRSF, whether or not authorized or known to you); (b) your indemnification obligations under these Terms; (c) your breach of the CONFIDENTIALITY section or any infringement, misappropriation, or violation of BRCK’s intellectual property rights; and (d) any liability that cannot be excluded or limited under applicable law.

Indemnity. To the fullest extent allowed by applicable law, You agree to indemnify and hold BRCK, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any third-party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms (including any terms or policies incorporated by reference herein). In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

Publicity

You agree that BRCK may identify you as a user of the Services on BRCK’s website or any third party website where BRCK or its designated agents may promote the Services in its business deals, press releases, marketing materials, advertising, newsletters, mailings, tradeshows, other promotional materials, and on BRCK’s website or any other third-party website where BRCK or its designated agents may promote the Services. You hereby grant BRCK and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose while an active user of the Services. BRCK will promptly comply with any requests to suspend or discontinue use of these marks.

Reviews and Statements. Nothing in these Terms restricts your right to review, comment on, or otherwise discuss your honest experience with the Services, including through public reviews, ratings, or social media. This Agreement does not prohibit, penalize, or impose any liability on you for any truthful review, performance assessment, or other honest communication regarding the Services, and any provision purporting to do so is void to the extent it conflicts with the Consumer Review Fairness Act (15 U.S.C. § 45b) or other applicable law. You agree not to make statements about BRCK or the Services that you know to be false or that are defamatory. This section does not limit BRCK’s separate confidentiality obligations set forth above.

Other Terms

Governing Law. These Terms are subject to and governed by and construed in accordance with the laws of the State of North Carolina, USA, without regard to its conflicts of laws provisions.

Survival. Provisions that, by their nature, should survive termination of these Terms shall survive termination. For avoidance of doubt, the provisions of this Agreement relating to intellectual property ownership, customer representations, confidentiality, equipment, number porting and availability, storage of user information, customer feedback, publicity rights, additional software licenses, indemnification, force majeure, warranty disclaimers, limitations of liability, notices, assignment, future changes, interpretation, dispute resolution and arbitration, and choice of law shall survive termination or expiration of this Agreement for the maximum term allowable by law.

Force Majeure. BRCK shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, fiber cuts, actions or inactions of third party providers or suppliers, riots, sabotage, war, government requirements, or other events that are beyond BRCK’s reasonable control.

Assignment. You may not assign or transfer these Terms, or any of your rights or obligations under these Terms, in whole or in part, whether by operation of law or otherwise, without BRCK’s prior written consent, and any attempted assignment in violation of this provision is void. BRCK may assign or transfer these Terms, in whole or in part, without your consent, including to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or business to which these Terms relate. Subject to the foregoing, these Terms are binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.

Dispute Resolution — Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY TRIAL, AND REQUIRES INDIVIDUAL ARBITRATION OF MOST DISPUTES AND A WAIVER OF CLASS ACTIONS.

1. Informal Resolution First. In the event of any dispute, claim, question, or disagreement between You and BRCK arising out of or relating to these Terms or the Services (a “Dispute”), You and BRCK shall first use reasonable best efforts to resolve the Dispute informally. To this end, you and an authorized member of BRCK’s legal department (or other representative of BRCK designated by the legal department) shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution. A party seeking to initiate this process must send written notice of the Dispute to the other party (to BRCK at legal@brck.com) describing the nature and basis of the Dispute and the relief sought. If the Dispute is not resolved within sixty (60) days after such notice, either party may proceed to arbitration as provided below. Neither you nor BRCK shall file or pursue any Dispute in any court, administrative, arbitral, or other adjudicative body prior to completing this informal-resolution process, except as permitted by the Small Claims and Injunctive Relief carve-outs below.
2. Agreement to Arbitrate. Except for the carve-outs in Paragraph 5, You and BRCK agree that any Dispute that is not resolved informally shall be finally settled by binding individual arbitration administered by JAMS, with the seat, forum, and hearing location in Charlotte, Mecklenburg County, North Carolina, conducted in English, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (or, for consumer Disputes, the JAMS rules and Consumer Minimum Standards applicable to consumer arbitrations) then in effect, before one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected in accordance with such Rules. This Agreement to arbitrate is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.). Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
3. Jury Trial Waiver. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AND BRCK EACH WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY DISPUTE.
4. Class Action and Class Arbitration Waiver. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AND BRCK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. The arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a class or representative proceeding. If a court or arbitrator decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) shall be severed from the arbitration and may be brought in court, while all other claims shall be arbitrated.
5. Carve-Outs.
   • Small Claims. Either party may bring an individual Dispute in a small-claims court of competent jurisdiction if the Dispute qualifies, in lieu of arbitration.
   • Injunctive and Equitable Relief. Notwithstanding the obligation to arbitrate, each party retains the right to seek injunctive or other equitable relief at any time from any court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of its intellectual property rights or the unauthorized use or disclosure of its confidential information.
6. 30-Day Opt-Out. You may opt out of this Dispute Resolution — Binding Arbitration section (including the class-action and jury-trial waivers) by sending written notice to BRCK at legal@brck.com within thirty (30) days after you first accept these Terms (or, for existing users, within thirty (30) days after the Effective Date of these Terms). Your notice must include your name, the email and account associated with your use of the Services, and a clear statement that you wish to opt out of arbitration. If you opt out, the Forum Selection clause below will govern your Disputes. Opting out of arbitration will not affect any other provision of these Terms.
7. Severability and Survival. If any portion of this section (other than the Class Action and Class Arbitration Waiver, which is governed by Paragraph 4) is found to be unenforceable, that portion shall be severed and the remainder shall remain in effect. This section survives termination of these Terms and your relationship with BRCK.

Forum Selection (for matters not subject to arbitration). For any Dispute that is not subject to arbitration under this section (including Disputes brought by users who have validly opted out, the carve-out matters above, and any action to enforce an arbitration award), the parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Charlotte, Mecklenburg County, North Carolina — namely the state courts of Mecklenburg County, North Carolina, and the United States District Court for the Western District of North Carolina, Charlotte Division — and waive any objection to such venue.

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.