MyOffice PBX Terms & Conditions
THE FOLLOWING TERMS AND CONDITIONS SHALL APPLY TO AND CONTROL ANY PERSON AND/OR ENTITY (HEREINAFTER THE “CUSTOMER”) ORDERING, HAVING ACCESS TO, AND/OR USING THE SERVICE(S) DESCRIBED HEREIN. BY SUBMITTING A SERVICE ORDER FORM, AND/OR ACCESSING AND/OR USING THE SERVICE(S), CUSTOMER ACKNOWLEDGES THAT IT HAS READ THESE TERMS OF SERVICE, IS AGREEING TO ALL THE TERMS AND CONDITIONS HEREIN, AND CONSENTS TO BE BOUND BY AND BECOME A PARTY HERETO. SHOULD CUSTOMER NOT AGREE TO OR BE ABLE TO COMPLY WITH ANY OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE, CUSTOMER SHALL IMMEDIATELY CEASE ANY USE OF THE SERVICE(S) OR TERMINATE THE REGISTRATION/ORDER PROCESS. CUSTOMER SHALL BE RESPONSIBLE FOR THE ACTS AND OMISSIONS OF ANY THIRD PARTY TO WHICH CUSTOMER PERMITS ACCESS OR USE OF THE SERVICES AND EQUIPMENT DESCRIBED HEREIN, AND SUCH ACCESS OR USE SHALL BE DEEMED THAT OF CUSTOMER.
1. THE SERVICE.
The services consist primarily of Voice over Internet Protocol services, which may be offered by Provider in a variety of forms and packages (each being a “Service” and collectively being the “Services”). The Service(s) shall consist of a combination of software solutions, products, networks, services and hosting facilities (the “Network”), components of which Provider has been granted access and/or licenses to by third party licensors, suppliers, vendors, and subcontractors (“Third Party Vendors”). In no event shall Provider’s use of, or contractual arrangement with any Third Party Vendors create any agency, employment, joint venture, partnership, representation or fiduciary relationship, and neither Provider nor its Third Party Vendors shall have the authority to create any obligation on behalf of the other.
Fees and charges associated the Service(s) shall be set forth within each Service's respective Order Form and/or other fee schedules or policies furnished by Provider from time to time, all of which may be amended by Provider in its sole discretion. Provider will reasonably try to provide customer with notice of any rate or fee increases; however, Provider reserves the right to modify any fees and/or rates without notice. Provider and any Third Party Vendor may modify, expand, improve, maintain and/or repair the Service(s) or Network at any time and without liability to the Customer or any third party although such process may require a temporary suspension of Service(s) or increased rates.
2. SERVICE LIMITATIONS.
The Service is not intended to replace Customer’s primary phone service. All Traffic carried by the Service(s) must be IP originated. Customer acknowledges and agrees that the Service(s) may not be compatible with all communication equipment. In addition, different regulatory treatment may be applied to the Service(s) than is applied to other telecommunications services, which may affect Customer’s rights before regulatory agencies and other governmental bodies.
The Service does not function in the event of power failure. Should there be an interruption in the power supply, the Service will not function until power is restored. A power failure or disruption may require that Equipment be reset or reconfigured prior to utilizing the Service. Power disruptions or failures will also prevent dialing to emergency service numbers including any 911 calling feature that may be activated in or accessed by the Service. Provider does not support 0+ calling (including without limitation collect or third party billing), 900 and 976 calls, and 10-10 “dial-around” calls. The Service(s) may not support 311, 411, 511 and/or other x11 services in some or all Service areas. Customer understands and acknowledges that access to the aforementioned functionality is not part of the Service(s).
PLEASE READ THE FOLLOWING CAREFULLY BEFORE USING THE SERVICE(S).
Provider is providing this Notice to explain the circumstances under which E911 Service may not be available, or may in some way be limited compared to traditional landline telephone service. In certain situations and depending on the purpose for which Customer is ordering the Service(s), Provider may ask Customer to give an additional acknowledgement of having received and understood this E911 Notice. Customer agrees to promptly execute and return such acknowledgement within the timelines established by Provider.
Calling 911 using VoIP services is different from calling 911 using traditional landline services. Some of the key differences are as follows:
(a) Availability. E911 Service will not be available in areas where E911 service is not available for traditional landline telephone service. In cases where E911 is not available for traditional landline telephone service, Provider will route emergency calls to the police department or other emergency service provider for that jurisdiction.
(b) Power Outages. Electrical power outages will disrupt the E911 Service, and Customer will not be able to place E911 emergency calls.
(c). Telephone or Computer Problems. Problems with the Customer’s telephone, computer, modem, router, or other IP-enabled hardware may limit or completely restrict the Customer’s ability to use the Service or place E911 emergency calls.
(d). Problems with High-Speed Internet Connection. Problems with the Customer’s high-speed Internet connection, including outages or network congestion, may limit or completely restrict the ability to use the E911 Service or place E911 emergency calls.
(e). Suspension of Account. If Customer’s Account is suspended for any reason, including non-payment of charges, Customer will not be able to use the E911 Service or place E911 emergency calls.
(f). Problems with the Service. E911 Service may be unavailable if Provider should experience Network problems, including, but not limited to, hardware problems, software problems, Internet connectivity problems, or network maintenance issues.
(g). Problems with Equipment. E911 Service may be unavailable if Customer should experience problems with any of its equipment.
(h). Outside the United States. If Customer uses the Service(s) from a location outside the United States will not be able to use the E911 Service or place E911 emergency calls.
(i). E911 Provisioning Intervals. Provisioning E911 Service may take additional time following the activation of the Service, during which time E911 emergency calling may not be available.
(j). Required Information. In some circumstances, Customer may need to advise emergency service personnel of the nature of the emergency, the Customer’s telephone number, or the Customer’s physical location. If a call is disconnected for any reason, emergency service personnel may not be able to call the caller back, determine the Customer’s physical location, or dispatch emergency personnel to the Customer’s location.
(k). Failure to Register Customer’s Location Accurately. It is important that Customer keeps Provider advised of each number’s physical service location at all times. If Customer provides an incorrect physical address, or if the physical address is changed without notice, emergency calls may be routed to an incorrect emergency service provider, and emergency service personnel may not be able to transfer the call or respond to the emergency.
(l). Address. In order for E911 Service to work properly, the E911 Service address in Provider’s records MUST correspond to the physical location from which the Customer will use the Service. A P.O. Box is not sufficient to use as a physical address. The emergency service dispatcher will only send emergency service personnel to Customer’s registered E911 Service address.
PROVIDER DOES NOT MAKE, NOR DOES IT INTEND TO MAKE, SPECIFIC REPRESENTATIONS OR WARRANTIES BASED ON THE STATEMENTS ABOVE AS IT CANNOT FORESEE EVERY POSSIBLE COMBINATION OF EVENTS. THE FACT THAT PROVIDER MAY CONNECT E911 PHONE CALLS IN SITUATIONS IN WHICH E911 SERVICES ARE NOT AVAILABLE DOES, IN NO WAY, CREATE A WARRANTY THAT SUCH CALL WILL BE CONNECTED ERROR FREE OR WITHOUT DELAY.
Customer will be responsible for accurately providing Provider with all information necessary to ensure the accuracy of each ALI and Public Safety Answering Position (“PSAP”), including, but not limited to, all DID/DOD numbers, and a correct and valid emergency response address for each DID/DOD. Further, Customer must furnish all updates of this information. All of Customer’s information must be accurately provided and provisioned in the ANI database in order to provide full 911 service functionality. If a 911 call is made from a non-provisioned or improperly-provisioned telephone number, the call will not be normally and automatically routed to the correct PSAP, and shall be routed to the backbone E911 provider’s 24/7 Emergency Call Routing Center (ECRC). In such event, a per-call charge will be billed to Customer at a rate determined by Provider from time to time. Customer agrees to indemnify and hold Provider, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to the failure of Customer to provide Provider with accurate database entries and updates thereto.
Provider’s designated E911 Vendor (which shall be included within the definition of “Third Party Provider”) routes VoIP E911 calls by way of native 911 solutions where the Vendor’s backbone provider has access to the E911 Service infrastructure. The following limitations apply to Service(s) in regions where a native 911 solution is utilized:
(a) In the event of an address geo-coding or Master Street Address Guide (“MSAG”) validation failure, the error records cannot be processed in real-time. Commercially reasonable efforts will be made to resolve the records in error. There may be instances that will prevent the correction of errors, causing delays in uploading data into the provisioning system; and
(b) The E911 Service is predicated on using primary wireline Public Safety Answering Point (“PSAP”) boundaries for routing the Service’s emergency calls to the appropriate PSAP. The primary wireline boundary information is collected and is entered into a database for real-time queries for PSAP boundary lookup. Customer acknowledges that primary wireline PSAP boundary data may not be available for the entire United States and that 911 Service is dependent on the PSAPs to provide such information resulting in the use of wireless PSAP boundary data to route a VoIP emergency call.
If E911 Service is provided in regions where a non-native 911 solution is utilized, the following limitations apply:
(a) E911 Service uses wireless PSAP boundaries when a primary wireline PSAP boundary is not available. Therefore, the 24x7 PSAP DN provided when a caller places an emergency call may correspond to a PSAP other than the PSAP that would normally receive wireline emergency calls placed from the caller’s location;
(b) A caller’s physical service address and call back number will not be presented to the PSAP; and/or
(c) If a caller cannot speak, Customer acknowledges that no information will be provided to the PSAP to contact the caller to obtain information that would automatically allow them to dispatch emergency services to caller’s location. Each PSAP’s internal processes will dictate how the call should or will be handled.
If an address provided for by Customer or Customer’s Subscribers cannot be recognized by the system and/or cannot be geo-coded, neither Provider or its third party carriers, or such other third parties utilized by such carriers, assumes any liability or responsibility for providing emergency calling services for the telephone number associated with such address. In situations where emergency call routing uses the Emergency Call Routing Center (“ECRC”), and if (i) caller cannot speak or identify his or her address; (ii) data connectivity between the address database and the ECRC is interrupted; or (iii) the caller’s location information cannot be provided, Customer acknowledges that the Provider and any Third Party Vendor shall have no ability to assist the caller and Customer agrees to indemnify and hold Provider, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party as a result of such instances. Customer understands and acknowledges, and commits to informing its Subscribers of the nature and limitation of 911 Emergency Dialing over the Service(s). Customer acknowledges and agrees that Provider and any Third Party Vendor will not be liable for any Service outage and/or inability of a caller to dial 911 or to access emergency service personnel due to the characteristics and limitation of the Service.
Customer understands that all calls must be delivered with the appropriate calling party number (“CPN”) representing the caller’s actual geographic location. Customer will be responsible for 911 configurations for all active CPNs. “Valid CPN” means the calling party’s actual assigned ten (10)-digit telephone number within the North American Numbering Plan assigned by Provider, excluding special purpose phone numbers such as 8XX, 950, 555 and N11. Delivery of valid CPN is a material obligation of Customer under these Terms of Service. For outbound calls other than calls to 911, if Customer does not deliver valid CPN, Provider will use commercially reasonable efforts to complete the call. For 911 calls, if Customer does not deliver valid CPN, Provider cannot complete the call. Customer agrees to indemnify and hold Provider, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to the failure of Customer to deliver valid CPN.
4. ORDERING THE SERVICE.
Customer may order the Service(s) offered by Provider by completing and submitting an order form (the “Order Form”). The Order Form requires Customer to provide certain information including, but not limited to, Customer’s name, E911 information, billing address, email address and credit card or banking information. Such information must be accurate, current and complete. Customer agrees to ensure that all such information is always accurate and complete. Customer acknowledges that if it provides any information that is untrue, inaccurate, not current, or incomplete, Customer’s rights to use the Service(s) may be suspended or terminated without liability on the part of Provider.
These Terms of Service shall apply upon Customer’s submission of a completed and signed Order Form; provided that if Customer acquires access to or uses the Service(s) without submitting an Order, then these Terms of Service shall immediately apply upon such use or access. Provider shall provide Customer a Service Commencement Date when such date is known to Provider. Provider may change such date, without liability, in its sole discretion. Subject to the provision of these Terms of Service and unless a longer term is specified in the Order Form, either Party may terminate any of the Services ordered hereunder, without further liability, upon thirty (30) days written notice to the other. Customer shall remain responsible and shall pay all charges and fees associated with the Service(s) that accrue up to termination.
Customer acknowledges that if it orders DIDs from provider, such DIDs may have a minimum Term of a year or more. The Term of DIDs ordered hereunder shall be set forth on the Order Form.
In conjunction with the Services, Provider may, depending on the Services Purchased furnish Customer with devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter or any other IP connection device ("Device" or "Equipment"). Customer shall not change the electronic serial number or equipment identifier of any Equipment or Device without express permission of Provider.
7. DATABASE UPDATES.
Customer shall furnish all information reasonably requested by Provider in order for Provider to provide each Service. Customer shall ensure that all information and data that it has given or that it will give to Provider, including but not limited to Customer’s billing information, mailing address and email address, is current and accurate at all times. Provider shall have no responsibility to verify the accuracy of any information provided by Customer and shall have no liabilities or obligation relative to any amount billed or notices delivered incorrectly as a result of inaccurate information provided by Customer and Customer’s failure to correct or update the same. Customer agrees to indemnify and hold Provider, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to Customer’s failure to perform the foregoing obligation.
8. UNLAWFUL AND PROHIBITED USE.
Customer is expressly prohibited from using the Service(s) in a manner that would, in any way, constitute or encourage conduct that is improper, including uses that are criminal in nature, that may give rise to a civil liability, or that otherwise violate any applicable laws or regulations. Examples of such improper uses include, without limitation, attempts at phishing or otherwise improperly attempting to gain access to financial information and making calls to numbers included in a government Do Not Call List. In addition, Customer is expressly prohibited from using the Service(s): (a) for any abusive or fraudulent purpose; (b) in a manner that enables Customer to avoid any obligation to pay for the Service(s); (c) in a manner that is deemed to interfere with, disrupt, or present a risk to the Service(s), Network, software, property, or security of Provider, its customers, its Third Party Vendors or other third parties, whether directly or indirectly; (d) in a manner that results in usage inconsistent with Provider’s expectations or the purpose for which Provider is providing the Service(s); and/or (e) in a manner that may violate these Terms of Service, or the policies of Provider. Customer shall provide, at its cost, all reasonably necessary security equipment, software, facilities and other apparatuses to ensure that the Service(s) are not used in a fraudulent or unauthorized manner, whether by Customer and any third party. If Provider determines, in its sole discretion, that Customer is using the Service(s) in a manner that violates or is contrary to this Section then Provider, as well as any affected Third Party Vendors, shall have the right, without liability, to block, suspend or terminate the Service(s), or any part thereof, without notice. Customer shall be responsible for any liabilities and obligations arising from Customer’s use of the Service(s) that is contrary to, or violates this Section. Customer agrees to indemnify and hold Provider, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to or arising out of Customer’s violation of this Section. If Provider, in its sole discretion, believes that Customer’s actions or omissions may be considered criminal in nature, Provider may forward personally identifiable information to the appropriate authorities for investigation and prosecution. Customer hereby consents to such forwarding.
Customer shall be liable for any and all use of the Service and/or Equipment by any person making use of the Service or Equipment outside of the United States. Transport or sale of the Device outside of the United States may result in a violation of U.S. or foreign technology import/export laws or rules; compliance with which is Customer’s sole responsibility, and you agree to indemnify and hold Provider harmless from any and all liability associated with claims arising therewith. Customer agrees to indemnify and hold Provider, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to or arising out of the aforementioned.
9. AUDIT AND LAW ENFORCEMENT.
Provider reserves the right to audit, track or monitor Customer’s use of the Service(s) to (a) enforce the provisions of these Terms of Service; (b) conform to legal requirements or comply with legal process; (c) protect and defend the rights or property of Provider or any Third Party Vendors; (d) respond to request for identification in connection with a claim of copyright or trademark infringement, or unlawful activity; (e) act to protect the interests of Provider’s customers or such customer’s Subscribers; (f) conform to Provider’s contractual obligation with any Third Party Vendor; or (g) provide the Service(s). Customer agrees that these Terms of Service are sufficient notice to Customer of such monitoring to the extent any notice is required under applicable federal or state law.
The Service(s) utilizes the public Internet and third party networks. Provider and its Third Party Vendors shall not be liable for any lack of privacy which may be experienced by Customer with regard to the Service(s). Customer shall be solely responsible for any liabilities arising from Customer’s lack of privacy.
Neither Provider nor any of its Third Party Vendors operate or control the content transported by the Service(s). As such, neither Provider nor any of its Third Party Vendors shall have any liability or responsibility for the content of any communication or information transmitted via the Service(s). Customer agrees to indemnify and hold Provider, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to or arising out of the content of any communication or information transmitted via the Service(s).
12. LOCAL NUMBER PORTABILITY (LNP)
If Customer desires to port a number either to or from Provider’s Network, Customer shall execute and/or deliver to Provider all documents and information requested by Provider, including, but not limited to, all required Letters of Authorization (“LOA”). Customer acknowledges and agrees that Provider shall have the right to refuse to port any number to its network for any reason. Customer agrees that Provider, in its sole discretion, may port a number to any Third Party Vendor selected by Provider in order to provide the Service(s), and that Provider may be required to be named as the Customer of Record for such number. Provider will make reasonable commercial efforts to execute all port requests; however, Provider has no control over any porting process (either to or from Provider’s Network). As such, Provider makes no guaranties or warranties that a number will be ported on a particular day, or that a submitted port request will actually result in the number being ported. Provider will inform Customer of port dates when such dates are known to Provider. Provider reserves the right to change the port date in its sole discretion. Customer agrees to comply with all applicable rules, regulations and orders, including but not limited to all FCC and public utility commission rules regarding number porting. Provider makes no warranty that the Service(s) associated with a number will be uninterrupted or error free during any porting process. Customer acknowledges that, if any account associated with the number being ported is canceled or suspended prior to the port date, such number may not be eligible for porting. It is Customer’s sole responsibility and obligation to timely cancel its account(s) with the provider from which the number is being ported, and Customer shall be solely responsible for any contractual obligations it has with such provider and any applicable fees and charges, including early termination fees. Number porting is done at the Customer’s sole risk. Under no circumstances shall Provider be liable for any damages, including, without limitation, loss of profits, associated with porting or not porting a number. Customer agrees to indemnify and hold Provider, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to or arising out of any number port requested by Customer, including those arising from any slamming complaints.
Customer agrees to comply with all LNP policies established from time to time by Provider. Provider may modify its LNP policies at any time with or without notice to Customer and customer agrees to comply with all such modifications.
13. PAYMENT TERMS.
Customer agrees that if a Service Order submitted by Customer is accepted by Provider, Customer shall pay all charges and amounts associated with the Service(s) and Customer’s account(s), regardless of whether such amounts result from fraudulent or unauthorized activities by third parties. Customer shall comply with Providers billing and payment policies that are in addition to the provisions set forth herein, as the same may change from time to time in Provider’s sole discretion. Customer shall be responsible for accurately providing Provider with Customer’s valid payment information, including the payment method, and maintaining and updating the same at all times. Customer shall ensure that all amounts billed hereunder are available each time Provider attempts to charge or debit any account designated for such purposes. Provider shall charge Customer a service fee in the amount of $30.00 each time Provider attempts to charge or debit such designated account and such charge or debit is rejected due to insufficient funds. If Provider charges Customer for Service(s) pursuant to these Terms of Service and Customer places a chargeback with its credit card company for any reason, Provider shall charge Customer a fee in the amount of $150.00. In addition, Provider shall consider credit card chargebacks as fraud if it believes that the amounts charged to Customer’s account were proper pursuant to these Terms of Service. Provider will pursue all criminal and civil remedies available to recover losses incurred as a result of Customer’s chargeback. Customer hereby waives any and all claims, actions or suits against Provider, and its parent companies, affiliates and subsidiaries, and such entities’ employees, officers, directors and shareholders, and releases the same from any errors, omissions and/or liabilities that may arise due to the processing of aforementioned charge or debit transaction.
CUSTOMER ACKNOWLEDGES THAT PROVIDER WILL NOT, NOR IS IT RESPONSIBLE TO, MONITOR CUSTOMER(S) ACCOUNT FOR FRAUDULENT OR UNAUTHORIZED ACTIVITIES, OR ACTIVITIES THAT MAY RESULT IN INCREASED COSTS TO CUSTOMER. CUSTOMER AGREES THAT IT IS ENTIRELY RESPONSIBLE TO MONITOR ALL ACTIVITIES ATTRIBUTED TO ITS ACCOUNT(S). IF CUSTOMER BELIEVES THAT ANY SERVICE IS BEING USED IN A FRAUDLENT OR UNAUTHORIZED MANNER THROUGH ITS ACCOUNT, THEN CUSTOMER MUST NOTIFY PROVIDER OF SUCH ACTIVITIES AND PROVIDER WILL REASONABLY ASSIST CUSTOMER TO PREVENT SUCH INDIVIDUALLY IDENTIFIED ACTIVITIES.
Customer shall pay charges in addition to those charges normally associated with the Consumption of the Service(s) in those circumstances in which costs and expenses are generated by Customer and incurred by Provider, including but not limited to: (a) costs associated with Provider’s employees, agents or third parties assisting Customer with problems relative to Customer’s network, equipment or service outage if Provider determines that the outage was not a result of Provider’s network or facilities; and (b) excessive costs associated with Provider’s employees, agents or third parties compliance with criminal, quasi criminal or civil subpoenas, court orders, and/or the like, that relate to Customer or third parties that access and/or use the Service(s) by and through the Customer.
Provider may require Customer to commit to and pay a minimum monthly fee for certain Services. Such minimum commitment shall be set forth on the respective Order Form. Customer acknowledges that if a minimum commitment is required by Provider at the time the Service is ordered, Customer shall be responsible for and shall pay the minimum monthly fee throughout the Term of the Service, regardless of whether Customer actually consumes any of the Services.
Customer is responsible for and must pay any applicable federal, state, local, or other governmental sales, use, excise, public utility, or other taxes, regulatory fees, and charges now in force or enacted in the future, as well as other additional costs that may arise as a result of the Customer’s consumption of the Service(s). Similarly, Provider may pass through to Customer taxes and fees owed by Provider to the extent permissible by law. Said amounts, if any, are in addition to set-up fees or charges associated with the consumption of the Service(s). If Customer is exempt from paying any taxes or fees, Customer must provide documentation, acceptable to Provider, certifying that Customer is exempt. Tax exemption will only apply from and after the date Provider acknowledges Customer’s exemption request. Customer agrees to indemnify and hold Provider, the Third Party Vendors, and the parent companies, sister companies, employees, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys' fees and costs of litigation, incurred or suffered by such party relating to or arising out of any exemption claimed by Customer.
As a condition of accepting a Service Order, providing Service(s) to Customer or continuing to provide Service(s) to Customer, Provider may require Customer to make a security deposit, which shall be due upon Provider’s written request. Upon termination of Services, Provider may apply such deposit to any fees, charges or other amounts unpaid by Customer.
Provider may immediately suspend, restrict or terminate the Service(s)s, without notice or liability, if Provider does not receive payment of all amounts billed to Customer by the required due date and/or all amounts that must be prepaid in order to continue the provision of the Service(s). In addition, Provider may add interest charges to any past-due amounts at a rate equal to the lesser of 2.5% per month or the maximum rate allowed by law, prorated for each day payment is past due. Service suspension or cancellation will result in Customer’s loss of the numbers associated with the Service(s). Acceptance of late or partial payments (even if marked “Paid in Full” or with other restrictions) shall not waive any of the rights of Provider to collect the full amount of the charges for the Service(s). Customer agrees to reimburse Provider for reasonable attorneys’ fees, and any other costs associated with collecting delinquent or dishonored payments. Provider may assess reinstallation charges against Customer in the event the Provider suspends, restricts or terminates the Service(s) as a result of Customer’s nonpayment or breach of this agreement.
If Customer has prepaid for the Service(s), such Service(s) shall be immediately suspended without notice at the time the fees for Customer’s consumption of Service(s) has reached the pre-payment amount. Customer is entirely responsible to monitor its consumption of Service(s) and replenish any prepayment amounts when necessary to continue using the Service(s).
Additional payment and billing terms and conditions may be found in the Service Order.
14. TRAFFIC REQUIREMENTS.
If during any 24 hour period, Customer’s Answer Seizure Ratio (ASR) is calculated by Provider to be below 60.0% and/or the Average Length of Call (ALOC) is calculated by Provider to be below 60.0 seconds, Provider may immediately and without notice:
(a) Charge Customer (retroactively and in the future) a surcharge of $0.01 per call attempt, which shall be in addition to all other fees and changes billed to Customer for its consumption of the Service(s); or
(b) Modify its billing method and charge Customer for its consumption of Service(s) in accordance with Provider’s then current Short Duration Rate Deck.
15. BILLING DISPUTES.
In the event Customer disputes any amount billed by Provider, Customer shall notify Provider of such billing dispute by completing and submitting a "Billing Dispute Ticket". The existence of a dispute shall not relieve Customer from paying any amounts billed hereunder. All Customer disputes must be submitted to Provider within thirty (30) days of the billing date or such dispute shall be forever waived. Upon receipt of a billing dispute, Provider shall reasonably investigate the dispute and provide Customer with a resolution based on the outcome of such investigation.
Customer acknowledges that it may obtain from Provider information relating to Provider’s or a Third Party Vendor’s Service or method of doing business which is of a confidential and proprietary nature and which requires that certain steps be taken to ensure its protection (the “Proprietary Information”). Such Proprietary Information may include, without limitation, trade secrets, know-how, inventions, techniques, processes, programs, schematics, theories of operation, software source documents, data customer lists, financial information, business information, sales and marketing plans and data. Although certain information may be generally known in the relevant industry, the fact that Provider and/or a Third Party Vendor uses the same may not be so known and in such instance would comprise Proprietary Information. Furthermore, the fact that various fragments of information or data may be generally known in the relevant industry does not mean that the manner in which Provider and/or a Third Party Vendor combines them, and the results obtained by such combination are so known and in such instance would also comprise Proprietary Information. Customer shall not, without the prior written consent of Provider of the Proprietary Information, disclose the information to any person or entity, except for the Customer’s employees, contractors and consultants who have a need to know such Proprietary Information. The Customer may disclose Proprietary Information pursuant to a judicial or governmental request, requirement or order; provided that the recipient take all reasonable steps to give Provider prior notice sufficient to contest such request, requirement or order. Customer shall protect Proprietary Information from disclosure using the same degree of care used to protect its own Proprietary Information, but in no event less than a reasonable degree of care. Because money damages may be insufficient in the event of a breach or threatened breach of the foregoing provisions, the affected party may be entitled to seek an injunction or restraining order in addition to such other rights or remedies as may be available under this Agreement, at law or in equity, including but not limited to money damages.
17. COPYRIGHT, TRADEMARK AND UNAUTHORIZED USE.
The Service and Equipment and any firmware or software used to provide the Service or provided to Customer in conjunction with the Service, or embedded in any Equipment, and all information, documents and materials provided or offered by Provider may be protected by trademark, copyright or other intellectual property laws and international treaty provisions. Customer is only granted a nontransferable, revocable license to use such Equipment, firmware or software, information, documents and materials (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and exclusively for use in connection with the Service.
These Terms of Service shall not be construed to grant Customer any right to use Provider’s, or its parent company’s or affiliates’, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “Marks”) or otherwise refer to the same in any marketing, promotional or advertising materials or activities. Customer agrees that Provider may identify Customer as a customer of Provider and recipient of the Service(s) for the purposes of marketing Provider’s Services. Further, Customer hereby grants Provider the right to use Customer’s logo/trademark on its website and other material solely for the purpose of advertising the sales by Provider of similar services to third parties.
18. MODIFICATION OF TERMS.
Provider has the right to and may, at any time, modify the terms and conditions of these Terms of Service, and to change or discontinue any aspect or feature of the Service(s) as it deems reasonably necessary. Notice of any such change shall be sent to Customer via email and/or via Provider’s Ticket System using the email address provided by Customer upon registration (or the email address that Customer provides from time to time for such purpose). Customer shall configure its email system to accept correspondence from Provider’s Ticket System. Customer hereby consents to receive notifications and changes in electronic format and acknowledges that such format shall not affect the enforceability thereof. Such changes shall be effective immediately upon said notice. In addition to providing the above mentioned notice, Provider shall publish the modified Terms of Service on its website. Customer agrees to review the Terms of Service periodically so that it is aware of any and all modifications. Customer’s use of the Service(s) after notice of any such changes shall constitute Customer’s conclusive acceptance of any and all such changes. In the event Customer no longer desires to receive notices via electronic methods, Customer shall provide written notification of such decision, at which time Provider may terminate Service(s) without liability.
19. WEBSITE USE/WARRANTIES
20. GENERAL WARRANTIES
THE SERVICE(S), DEVICES, EQUIPMENT, HARDWARE, SOFTWARE AND OTHER COMPONENTS OF THE NETWORK AND SERVICE ARE OFFERED AND PROVIDED "AS IS", “AS AVAILABLE” AND SUBJECT TO THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY FOUND HEREIN. PROVIDER AND ITS THIRD PARTY VENDORS AND ANY THIRD PARTY THAT FURNISHES SERVICES TO PROVIDER OR ENABLES PROVIDER TO FURNISH SERVICE(S) TO CUSTOMER MAKE NO WARRANTIES OF ANY KIND REGARDING THE SERVICE(S), SOFTWARE OR EQUIPMENT PROVIDED HEREUNDER AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY OF DATA, AVAILABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT THE SERVICE(S) WILL MEET CUSTOMER’S REQUIREMENTS, ANY WARRANTY AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF THE SERVICE(S), OR AGAINST INFRINGEMENT OF ANY NATURE. IN ADDITION, PROVIDER, AND ITS THIRD PARTY VENDORS AND ANY THIRD PARTY WHO FURNISHES SERVICES TO PROVIDER OR ENABLES PROVIDER TO FURNISH THE SERVICE(S) TO CUSTOMER MAKE NO WARRANTY THAT THE SERVICE(S) WILL BE UNINTERRUPTED OR ERROR FREE. PROVIDER DOES NOT AUTHORIZE ANYONE, INCLUDING, BUT NOT LIMITED TO, EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON BEHALF OF PROVIDER, ITS THIRD PARTY VENDORS OR ANY THIRD PARTIES. ANY AND ALL STATEMENTS AND/OR DESCRIPTIONS CONCERNING THE SERVICE(S) OR EQUIPMENT, IF ANY, BY PROVIDER OR ITS EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES ARE INFORMATIONAL ONLY AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND, AND CUSTOMER SHOULD NOT RELY ON ANY SUCH STATEMENT OR DESCRIPTIONS.
21. LIMITATION OF LIABILITY
EXCEPT IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND SUBJECT OT THE LIMITATIONS BELOW, PROVIDER SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS OR LIABILITY OF ANY NATURE INCURRED BY CUSTOMER OR ITS SUBSCRIBERS’ AND/OR ANY THIRD PARTY RESULTING FROM THE USE OF THE SERVICE(S); ACCESS TO THE NETWORK; ANY INTERRUPTION OF SERVICE(S); ANY LOST DATA, LOST TIME OR OTHER SYSTEM RELATED DAMAGES; AND/OR DAMAGE OR LOSS OF PROPERTY OR EQUIPMENT. IN NO EVENT SHALL PROVIDER BE RESPONSIBLE FOR ANY LIABILITIES ARISING OUT OF: (A) THE SERVICE(S), FACILITIES OR EQUIPMENT PROVIDED BY CUSTOMER, ITS SUBSCRIBERS, OR BY A THIRD PARTY VENDOR (INCLUDING ANY AGENTS, SUBCONTRACTORS, INDEPENDENT CONTRACTORS OR SUBSCRIBERS OF THE SAME); OR (B) ANY ACT OR OMISSION OF ANY THIRD PARTY, OR THE CUSTOMER.
IN ADDITION, AND NOT TO LIMIT THE FOREGOING, PROVIDER SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, TO THE CUSTOMER OR ANY THIRD PARTY, INCLUDING CUSTOMER’S SUBSCRIBERS, FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST REVENUES OR COST OF PURCHASING REPLACEMENT SERVICE(S)). FURTHERMORE, IN NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF PROVIDER ARISING WITH RESPECT TO THESE TERMS OF SERVICE EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
NO CAUSE OF ACTION UNDER ANY THEORY WHICH ACCRUED MORE THAN ONE (1) YEAR PRIOR TO THE INSTITUTION OF A LEGAL PROCEEDING MAY BE ASSERTED BY CUSTOMER RELATIVE TO THE SERVICE(S) OR THESE TERMS OF SERVICE .
IN THE EVENT A JURISDICTION DOES NOT ALLOW ANY OF THE ABOVE EXCLUSIONS OR LIMITATIONS OF WARRANTIES OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUCH LIABILITIES AND WARRANTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
IN ADDITION TO ANY OTHER INDEMNIFICATION PROVISIONS HEREIN, CUSTOMER AGREES TO INDEMNIFY AND HOLD PROVIDER, THE THIRD PARTY VENDORS, AND THE PARENT COMPANIES, SISTER COMPANIES, EMPLOYEES, CONTRACTORS, DIRECTORS, OFFICERS AND SHAREHOLDERS OF THE SAME, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, LOSSES, JUDGMENTS, DAMAGES AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES AND COSTS OF LITIGATION, INCURRED OR SUFFERED BY SUCH PARTY RELATING TO CUSTOMER’S ACTS OR OMISSIONS, CONSUMPTION OF THE SERVICE(S) AND/OR BREACH OF THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS ASSERTED BY ANY THIRD PARTY. PROVIDER SHALL PROMPTLY NOTIFY CUSTOMER IN WRITING OF ANY CLAIM FOR WHICH IT IS OBLIGATED UNDER THIS INDEMNITY AND FOR WHICH PROVIDER MAY SEEK INDEMNIFICATION.
23. DISPUTE RESOLUTION
These Terms of Service, and all other aspects of the use of the Service(s) and the Website, shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without regard to choice of law rules. The above governing law provision applies regardless of the location of the Customer or where Customer use or pay for Service(s). Venue for any action brought hereunder shall be Allegheny County, Pennsylvania, and Customer hereby waives any rights to the contrary. In any proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights under this Agreement, the prevailing party may be awarded reasonable attorneys’ fees, together with any costs and expenses, to resolve the dispute and enforce the final judgment.
(a) General Provisions. These Terms of Service and any documents incorporated herein by reference constitute the entire Agreement between the Parties regarding the subject matter hereof and supersedes all prior agreements, understandings, statements or proposals concerning the Service(s), including representations, whether written or oral. No written or oral statement, advertisement or service description not expressly contained in these Terms of Service will be allowed to amend, contradict, explain or supplement it unless agreed upon by Provider in writing. Neither Customer nor Provider is relying on any representations or statements by the other party or any other person or entity that is not included as a Party to these Terms of Service.
(b) Force Majeure. Except for the Customer’s payment of charges for Service(s) which have accrued, neither Party to these Terms of Service assumes a risk of any event, foreseeable or unforeseeable, and beyond the reasonable control of either Party, including but not limited to acts of God or the public enemy; riots or insurrections; war; accidents; fire; strikes; and other labor difficulties (whether or not the party is in a position to concede to such demands); embargoes; judicial action; lack of or inability to obtain licenses, permits or approvals, necessary labor, materials, energy, components, software, equipment or machinery; and acts of civil or military authorities, and such event has a material effect upon the agreed exchange contemplated herein. .
(c) Survival. The provisions of these Terms of Service that, by their purpose, are intended to survive the termination of Service(s) shall so survive. Said provisions shall include, but shall not be limited to, those provisions that include indemnification clauses, limitations on liability, warranty limitations, billings, non-disclosure and Customer’s obligations to pay for the Service(s) provided, including any additional usage charges.
(d) Non-Waiver. Failure by either Party to insist upon strict performance of any terms or conditions of these Terms of Service or failure or delay to exercise any rights or remedies provided herein or by law shall not release either Party from any of the obligations hereunder, and shall not be deemed a waiver of any right to insist upon strict performance thereof or any rights and remedies herein.
(e) Severability. If any terms herein are illegal or unenforceable at law or in equity, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. Any illegal or unenforceable term shall be deemed to be void and of no force and effect, except to the minimum extent necessary to bring such term within the provisions of applicable law, and such term, as so modified, and the balance of these Terms of Service shall then be fully enforceable.
(f) Third Parties. Notwithstanding anything to the contrary contained herein, no third party shall be considered a party to or beneficiary of these Terms of Service or have any claim under these Terms of Service against either Customer or Provider.
(h) Assignment. Customer may not assign its rights or obligations under these Terms of Service without the express written consent of Provider. Any such assignment in violation of this Section shall be null and void.
(i) Business Relationship. These Terms of Service shall not create any agency, employment, joint venture, partnership, representation or fiduciary relationship between the Parties. Neither party shall have the authority to, nor shall any party attempt to, create any obligation on behalf of the other party.
(j) Notices. Customer Agrees that all notices shall be considered written and properly given if sent to Customer via the email address provided by Customer at the time of registration and as necessarily updated. Customer acknowledges that Notices may be sent by and through Provider’s Ticketing System and that the email address provided to receive such tickets shall be sufficient to receive notices. Customer shall configure its email system to accept correspondence from Provider’s Ticket System. Customer hereby consents to receive notifications in electronic format and acknowledges that such format shall not affect the enforceability thereof. In the event Customer wishes to not receive notices electronically, Customer shall inform Provider of such desire and Provider may, at its sole discretion, terminate the Service(s) without further liability.