Terms of Service
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 TO OR USE OF THE SERVICES AND EQUIPMENT DESCRIBED HEREIN (“CUSTOMER’S USERS”), AND SUCH ACCESS OR USE SHALL BE DEEMED THAT OF CUSTOMER. AS USED HEREIN WITH RESPECT TO PROVIDER, THE TERM “AFFILIATE(S)” SHALL INCLUDE ANY ENTITY THAT IS OWNED BY OR UNDER COMMON OWNERSHIP WITH, OR IS MANAGED BY THE PROVIDER OR UNDER COMMON MANAGEMENT WITH THE PROVIDER.
1. THE SERVICE
(a) General Description. 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.
(b) Non-Regulated Provider. The Customer acknowledge that Purchaser is not a regulated carrier and does not provide telecommunications services or other regulated services. Rather, Provider provides management services whereby Provider arranges for Third Party Vendors, including certificated carriers, to provide the underlying services. In addition, different regulatory treatment may be applied to all or aspects of the Service(s) than is applied to other telecommunications services, which may affect Customer’s rights before regulatory agencies and other governmental bodies.
(c) Fees. Rate Decks establish the Fees of certain of the Services. Customer is responsible to select a Rate Deck that is appropriate for the Customer’s needs from the available Rate Decks. Customer agrees that Customer is responsible, and not Provider, for the selection of a Rate Deck and Customer is responsible, and not Provider, for any cost associated with selection or non-selection of any Rate Deck. In addition, certain fees and charges associated the Service(s) shall be set forth within each Service’s respective Order Form, other fee schedules, these Terms of Service and/or other policies and/or rate decks 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.
(d) Modifications to Service. Provider and any Third Party Vendor may modify, expand, decrease, 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 suspension of Service(s) or increased rates.
(e) Compatibility. 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.
(f) Power Outages. The Service does not function in the event of power failure. Should there be a power 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.
(g) Non-Supported Calling. 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).
(h) Short Message Service (SMS). Customer may purchase SMS Services from Provider (the “SMS Services”) for person to person inbound and outbound text messaging. Customer shall at all times comply with laws and regulations governing the use of SMS Services including those that control use of SMS for marketing or solicitation purposes. Provider will deliver SMS messages to the best of its ability, but does not guarantee that any message sent via the SMS Services will reach the intended recipient. SMS messages are delivered in plain text and are not secured. Customer accepts responsibility for, and Provider accepts no responsibility for, any SMS message communicated via the SMS Services, including any message that is received by a party other than one intended by the sender.
(i) Call Failover Service. Customer may purchase Call Failover Service, whereby an unanswered call is to be forwarded to a secondary Customer selected number. Provider does not guarantee that any call acted upon by the Call Failover Service will reach the secondary number selected by Customer. The Call Failover Service is only to be used in the case of a temporary failure that prevents delivery of the call to the target number. Customer agrees not to provide a Call Failover number that has not been issued to Customer for its own use. Customer is responsible to provide the secondary number to Provider. Provider accepts no responsibility for any calls that are forwarded to a party other than Customer.
(j) Fax to Email Service. If Customer purchases Fax to Email Service from Provider, facsimiles received at the number designated for Fax to Email Service will be converted to emails and delivered to Customer in an unsecured email format. Accordingly, Customer should not receive sensitive documents via the Fax to Email Service and accepts responsibility for all communications received via the Fax to Email Service. Provider accepts no responsibility for any communication that is accessed by an unintended third party or for any communication or lack of communication that uses or attempts to use the Fax to Email Service. Provider does not guarantee that any fax sent to the Fax to Email Service will be properly converted to email and does not guarantee that any fax sent to the Fax to Email Service will be delivered to the Customer
(k) Email to Fax Service. If Customer purchases Email to Fax Service from Provider, emails sent from the number designated for Email to Fax Service will be converted to facsimiles and delivered to a Customer designated facsimile number in an unsecured format. Accordingly, Customer should not send sensitive documents via the Email to Fax Service. Provider accepts no responsibility for any communication that is accessed by an unintended third party or for any delivery, mis-delivery, or non-delivery of a communication that uses or attempts to use the Email to Fax Service. Provider does not guarantee that any fax sent to the Fax to Email Service will be properly converted to email and does not guarantee that any fax sent to the Fax to Email Service will be delivered to Customer. Customer agrees not to use the Email to Fax Service to send advertisements or solicitations of any kind in a manner prohibited by law. Customer agrees to use the Email to Fax Service only to a communication to a single recipient known to the sender each time the Email to Fax Service is used.
(l) International Voice Termination. If Customer purchases International Voice Termination Service from Provider, rates shall be as set forth in the Rate Deck or Rate Decks offered by Provider for such Services. International Services and rates that Provider will charge Customer are subject to change with or without notice. Provider does not guarantee international call delivery and may block routes it determines may be improperly using the Services at any time.
(m) Hosted Billing Services. If Customer purchases hosted billing Services, such Services shall be provided primarily by Third Party Providers. Use of such Services does not relieve Customer of responsibility for the preparation, content, accuracy (including computational accuracy), and review of tax calculations or returns prepared by Customer while using the Services. Customer will neither inquire nor rely upon Provider for any tax, accounting, legal or other professional or expert advice of any kind. Customer will comply with all State electronic filing regulations as shall be in effect from time to time. Customer is solely responsible for providing all complete, correct and necessary information directly to taxing authorities. Provider cannot guarantee that taxing authorities will accept all returns. Customer is fully and solely responsible for: (i) use of the Services; (ii) all results obtained from the Services; (iii) selecting, obtaining and maintaining all hardware, software, computer capacity, Internet service, program and system resources and other equipment and utilities needed for access to and use of the Services, and for all costs associated therewith; and (iv) selection, use of, and results obtained from any other programs, computer equipment or services used with the Product.
(n) System Monitoring Services/Fraud Detection. System Monitoring Services are entirely automated and consist of network monitoring, CDR Analysis and exception reporting. The purpose of these Services is to attempt to analyze the history of events recorded by the system for particular instances. If the system identifies a significant abnormality in Customer’s traffic, it will notify Customer so that Customer can take action to prevent unauthorized traffic and mitigate its own damages. Notwithstanding the foregoing, the System Monitoring Services are NOT designed to prevent fraudulent or unauthorized activity, but are designed to identify significant abnormalities that have already occurred so that Customer can take corrective or remedial action to prevent future unauthorized traffic. Customer acknowledges and agrees that it is entirely and solely responsible for selection, implementation and maintenance of security features to protect against unauthorized traffic. Customer acknowledges and agrees that it is, and shall remain responsible for all liabilities, costs charges and fees arising from all traffic that is sent from Customer and carried over Providers network regardless of whether such traffic is unauthorized. Customer acknowledges and agrees that Provider does not have the ability to prevent unauthorized traffic, and under no circumstance will Provider be responsible to take any action to prevent such activity on Customer’s account. Provider may suspend Customer’s account and Services to protect itself and its Third Party Providers, however Provider’s failure to suspend services shall in no event create a liability on Provider or relieve Customer of its obligations to pay for Services. Provider is under no obligation to investigate the authenticity of calls charged to Customer’s account and shall not be liable for any fraudulent calls.
(o) Activity. Customer agrees it is responsible to pay for any and all activity related to the Services purchased by Customer, including all international calls made from any IP address Customer has registered with Provider. Customer agrees that Provider shall have the right to, temporarily or permanently, at Provider’s sole discretion, immediately terminate Customer Services or any communication if suspicious activity occurs. Examples of suspicious activities include, for example, any communication lasting more than thirty (30) minutes and excess daily usage, as determined by Provider. The above shall in no way limit other Rights of Provider with respect to Prohibited Activities or otherwise under law or equity.
PLEASE READ THE FOLLOWING CAREFULLY BEFORE USING THE SERVICE(S).
(a) Notice. 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.
(b) Specific Considerations. Calling 911 using VoIP services is different from calling 911 using traditional landline services. Some of the key differences are as follows:
(i) 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.
(ii) Power Outages. Electrical power outages will disrupt the E911 Service, and Customer will not be able to place E911 emergency calls.
(iii) 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.
(iv) 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.
(v) 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.
(vi) 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.
(vii) Problems with Equipment. E911 Service may be unavailable if Customer should experience problems with any of its equipment.
(viii) Outside the United States. If Customer uses the Service(s) from a location outside the United States, Customer will not be able to use the E911 Service or place E911 emergency calls.
(ix) 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.
(x) 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.
(xi) 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.
(xii) Physical Location. 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.
(b)Disclaimer. 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.
(c) Information. Customer will be responsible for accurately providing Provider with all information necessary to ensure the accuracy of each Automatic Location Identification (“ALI”) and Public Safety Answering Position (“PSAP”), including, but not limited to, all Direct Inward Dialing (“DID”)/Direct Outward Dialing (“DOD”) numbers, and a correct and valid emergency response address for each DID/DOD number. Further, Customer must furnish all updates of this information to Provider. All of Customer’s information must be accurately provided and provisioned in the Automatic Number Identification (“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.
(d) Routing Solution. 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:
(i) 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
(ii) 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.
(e) Non-Native Solution. If E911 Service is provided in regions where a non-native 911 solution is utilized, the following limitations apply:
(i) 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;
(ii) A caller’s physical service address and call back number will not be presented to the PSAP; and/or
(iii) 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.
(f) Additional Considerations. If an address provided for by Customer or Customer’s Users 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 Customer Users 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.
(g) E-911 Secondary Notification Service. When a 911 call is placed using the Services, a non-secure plain text notice may be sent to one or more Customer selected email addresses when the Customer purchases such a Secondary Notification Service from the Provider. The Provider does not guarantee, however, that any such notice will be sent or reach the Customer selected email addresses.
3. 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 Services at any time, without further liability, except for the payment of fees that have accrued prior to termination. Customer must terminate Services by contacting their account manager. Any other form or written cancellation notification will NOT be accepted as proper cancellation notification. Customer account cancellations are processed within 30-days of the cancellation submission. Customer shall remain responsible and shall pay all charges and fees associated with the Service(s) that accrue up to termination. Customer MUST remove all provisioned Services. Failure to remove provisioned Services will result in a $100 administration fee. 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.
5. CUSTOMER NETWORK FACILITIES AND EQUIPMENT
Customer shall be solely responsible for the acquisition, installation, testing, maintenance and security of its own equipment and network facilitates needed to utilize the Services, including facilities between Customer’s Point of Presence (“POP”) and Customer’s Users. 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 foregoing.
6. 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 obligations 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.
7. UNLAWFUL AND PROHIBITED USE
(a) Automated Calling Prohibition. Unless Customer purchases the short duration calling Service from Provider, Customer agrees that all calls it originates through the Services shall be initiated by a human user and conducted by that human user. Unless otherwise agreed upon in writing, Customer agrees that it shall not use the Services to initiate any automated communication. Customer shall ensure that any and all automatic Calling shall be at all times conducting in compliance with federal, state and local, laws regulations and rules.
(b) General Prohibitions. 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 violates 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 are is expressly prohibited from using the Service(s): (i) for any abusive or fraudulent purpose; (ii) in a manner that enables Customer to avoid any obligation to pay for the Service(s); (ii) 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; (iv) 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 (v) 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.
(c) Rights. If Provider determines, in its sole discretion, that Customer is or any of its customers are using the Service(s) in a manner that violates or is contrary to this Section then Provider, as well as any effected 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.
(d) Suspicious Activity Service Termination. In addition to and not to limit any other rights of Provider, Provider has right to suspend or terminate Service if Provider, in its sole discretion, believes that any activity on the Customer account is or could be suspicious in nature.
(e) Use of Service outside the United States. Customer shall be liable for any and all use of the Service and/or Equipment by any person 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.
8. 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 Users; (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).
11. 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.
12. PAYMENT TERMS
(a) 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.
(b) 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.
(c) 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.
(d) 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.
(e) Customer hereby waives any and all claims,
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
These Terms and Conditions shall apply to and control your use of this Website (“Website” or “Site”) and any information, software, function, graphics, artwork and any other material contained herein or any products and services provided here from (collectively referred to as the “Content”).
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By accessing and/or using this Website and/or the Content, you (“you” or “the user”) agree to abide by and be bound to these Terms and Conditions and any changes thereto. If you do not agree to or cannot comply with any of these Terms and Conditions, immediately cease any use of this Website and its Content.
These Terms and Conditions may be changed or modified from time to time without notice to you. You should review these Terms and Conditions each time you use this Site and/or its Content to make sure you agree and can comply with the same. Your use of this Site, and/or the Content, after changes have been made to these Terms and Conditions, shall be conclusive evidence that you thereby agree to accept, be bound to and comply with such changes.
The functionality of this Website is made possible through a variety services provided by third parties, which may include parties providing information and website administration (collectively the “Third Party Providers”). That fact that Tapal Information Systems, Inc. (herein after “Provider”) may use Third Party Providers does in no way create any agency, employment, joint venture, partnership, representation or fiduciary relationship between such Third Parties and Provider, and neither Provider nor such Third Party Providers shall have the authority to create any obligation on behalf of the other.
The Content provided on this Website has been compiled from a variety of sources and may contain out of date information, technical or other mistakes, inaccuracies or typographical errors. Provider makes no guarantees or warranties to the contrary. Provider and the Third Party Providers assume no obligation or liability to correct or update the same. It is your responsibility to verify any information presented to you before relying on it. The Content within this Website is provided for general informational purposes only and should not be regarded as professional advice or an official opinion. You are should seek professional advice before taking any course of action related to the information, Content and ideas herein.
This Site may contain Hyperlinks to third party websites (“Third Party Sites”). The placement of such hyperlinks on this Website shall in no event be construed as an endorsement or support by Provider, or any Third Party Provider, of the content, products and/or services of such Third Party Sites. Provider does not editorially control the content, products and/or services on Third Party Sites, and it and the Third Party Providers shall not be liable, in any manner whatsoever, for the access to, inability to access, the use of, the inability to use or the content available on or through Third Party Sites.
The Content herein may change or be superseded from time to time as result of subsequent market events regulatory changes or other reasons. You are responsible for reviewing the information and Content on this Site from time to time to be aware of such changes.
PROPRIETARY AND INTELLECTUAL CONTENT
The Content of this Website (including but not limited to software, tools, information graphics, videos, and marks) is proprietary in nature, and may be owned by Provider, its affiliates and/or a Third Party Provider. All title and intellectual property rights in and to the Content which may be viewed or accessed through this Website is and shall remain the property of the respective Content owner and may be protected by applicable copyright or other intellectual property laws and treaties. Nothing contained herein shall be construed as granting a license under any copyright, trademark, patent or other intellectual property right.
ADDITIONAL TERMS AND CONDITIONS
When using certain Content accessible or provided through this Website, you may be subject to additional posted guidelines, terms, conditions, rules or notices, which are applicable to the same, and which are not set forth herein. You hereby agree to be bound by such terms and conditions as they relate to your access to or use of such Content.
USE OF WEB SITE, SERVICES AND CONTENT
This Website and its Content and the products and services provided thereon are not intended for distribution to, or use by, any person or entity in any jurisdiction or country where such distribution or use would be contrary to local laws or regulations. Further, you may not print, copy, upload, post, publish, modify, display, transfer, resell, reproduce, republish, or distribute this Website or the Content in any way (whether electronically or otherwise), or create other works based on the same, unless expressly authorized by these Terms and Conditions, the provisions on this Website, or otherwise permitted by Provider writing.
You are expressly prohibited from taking any action, or using this Website, and the Content in a manner, (a) that is deemed to interfere with, disrupt, or present a risk to the network, software, property, or security of Provider, its affiliates, its customers, or the Third Party Providers, whether directly or indirectly, or (b) that violates any laws or regulations, or the policies of Provider or a Third Party Provider. If it is determined that you are using this Website or the Content in a manner that violates or is contrary to this Section, Provider, as well as any affected Third Party Provider, shall have the right, without liability or notice, to suspend or terminate your access or use of the Website and/or the Content, or any part thereof. You shall be responsible for any liabilities arising from your use of this Website or the Content that is contrary to, or violates this Section, and you hereby agree to indemnify and hold Provider, its affiliates and the Third Party Providers harmless from and against any and all claims, damages, charges, fees, expenses, penalties, or other costs (including without limitation reasonable attorney’s fees) that arise there from. If Provider or its Third Party Providers, in their sole discretion, believe that you have violated any laws or regulations, either party may forward personally identifiable information to the appropriate authorities for investigation and prosecution.
You, at your cost, shall be solely responsible for obtaining and maintaining all hardware, software and communications equipment, and any updates thereto, that are required to access this Website and the Content.
Some areas of this Website may require you to provide personal information or register for Services. In any such event, you agree to (a) provide accurate, current and complete information as requested during the registration; and (b) maintain and update your information to keep it accurate, current and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, your rights to use this Site or the Content may be terminated. In no event shall Provider or any Third Party Provider be obligated to confirm the accuracy or correctness of the information you provide, and neither shall have any liability relative to the same.
ACCOUNT NUMBERS, USER IDS AND PASSWORDS
All Passwords and User IDs that you select in conjunction with your use of, and access to this Website or the Content must meet the then current policies and guidelines of Provider, as amended form time to time. In addition to any restrictions found within said policies, Provider shall not permit the selection and use of any Password or User ID that it believes, in its sole discretion, to be illegal, to be protected by trademark or other proprietary rights or laws, to be vulgar, to be in violation of any privacy rights, or which is otherwise offensive, or may cause confusion. You acknowledge that the purpose of creating a Password and User ID unique to you is to prevent the unauthorized access of your personal or proprietary information. As such, you should, at all times, keep your account number(s), User ID and/or Password confidential and not disclose them to anyone else. Provider and the Third Party Providers shall not be liable for any unauthorized disclosure of or access to your personal propriety information, or from unauthorized access to, or use of this Website or the Content if you fail to maintain the confidentiality of your account number, User ID or Password, whether voluntary or involuntary. You shall be solely responsibility to notify Provider of any unauthorized use of your account number(s), User ID, or password or any other breach of security.
ALL INFORMATION AND CONTENT, THAT ARE CONTAINED, OR PROVIDED ON, OR ACCESSIBLE THROUGH THIS WEBSITE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. PROVIDER MAKES NO REPRESENTATION, ENDORSEMENT, OR WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE. PROVIDER DOES NOT WARRANT THE ACCURACY, ADEQUACY, RELIABILITY, TIMELINESS, OR COMPLETENESS OF THE CONTENT OR MATERIALS CONTAINED ON, PROVIDED THROUGH THIS WEBSITE, OR WARRANT THAT ANY DEFECTS WILL BE CORRECTED. THE ABOVE DISCLAIMER OF WARRANTIES APPLIES TO THE FULLEST EXTENT PERMITTED BY LAW.
LIMITATION OF LIABILITY
AS A CONDITION OF PROVIDER PROVIDING THIS WEBSITE AND ITS CONTENT, YOU AGREE THAT PROVIDER AND THE THIRD PARTY PROVIDERS SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS OR LIABILITY, OF ANY NATURE INCURRED, BY YOU AND/OR ANY THIRD PARTY RESULTING FROM: (A) THE USE OF, ACCESS TO, INABILITY TO ACCESS THE WEBSITE, THE CONTENT OFFERED ON THESE SITE, AND/OR THE INTERNET GENERALLY; OR (B) ANY ACT OR OMISSION OF ANY THIRD PARTY.
IN ADDITION AND NOT TO LIMIT THE FOREGOING, PROVIDER AND THE THIRD PARTY PROVIDERS SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, TO YOU OR ANY THIRD PARTY, 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 SERVICES) ARISING OUT OF OR RELATING TO THIS WEBSITE AND/OR THE CONTENT. IN NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF PROVIDER ARISING WITH RESPECT TO THIS WEBSITE AND ITS CONTENT EXCEED THE TOTAL AMOUNTS PAID BY YOU IN THE TWELVE 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 HERE UNDER OR OTHERWISE.
IN THE EVENT A JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION 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, YOU AGREE TO INDEMNIFY AND HOLD PROVIDER, THE THIRD PARTY PROVIDER, 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 YOUR ACTS OR OMISSIONS, USE OF THIS WEBSITE AND ITS CONTENT, AND/OR BREACH OF THESE TERMS AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS ASSERTED BY ANY THIRD PARTY. PROVIDER SHALL PROMPTLY NOTIFY YOU IN WRITING OF ANY CLAIM FOR WHICH IT IS OBLIGATED UNDER THIS INDEMNITY AND FOR WHICH PROVIDER MAY SEEK INDEMNIFICATION.
Provider may terminate these Terms and Conditions, your use of this Website and the Content, without further liability, at any time, without notice, for any reason or no reason.
Provider may seek any available legal remedy or take any reasonable business steps to prevent the unauthorized use of, or access to this Website and the Content, and to prevent access to users who violate these Terms and Conditions. You agree that Provider and/or the Third Party Providers would be irreparably harmed if you breach this provision and that monetary damages would be inadequate to remedy such breach. Accordingly, you also agree that specific and injunctive or other equitable relief is the appropriate remedy for such a breach.
Failure by Provider 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 you from any of the obligations here under, and shall not be deemed a waiver of any right to insist upon strict performance thereof or any rights and remedies herein.
Provider assumes no risk of any event, foreseeable or unforeseeable, and beyond its reasonable control, that has a material effect upon the agreed exchange contemplated herein.
The provisions of these Terms and Conditions that, by their purpose, are intended to survive the termination of the exchange contemplated herein shall so survive. Said provisions shall include, but shall not be limited to, those provisions that include indemnification clauses, limitations on liability, warranty disclaimers.
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. Except as otherwise provided herein, 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.
GOVERNING LAW AND VENUE
This site (excluding any linked sites) is controlled by us from our offices within the County of Travis, Austin, Texas, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of County of Travis, Austin, Texas, by accessing this site both of us agree that the statutes and laws of the State of County of Travis, Austin, Texas, without regard to the conflicts of laws principles thereof and the United Nations Convention on the International Sales of Goods, will apply to all matters relating to the use of this site and the purchase of products and services available through this site. Each of us agrees and hereby submits to the exclusive personal jurisdiction and venue any court of competent jurisdiction within the State of County of Travis, Austin, Texas with respect to such matters.