TELWARE CORPORATION SERVICE TERMS AND CONDITIONS
These terms and conditions apply to the provision of all related services (“Services”) by TelWare Corporation (“TelWare”) to the Customer under the proposal, quote or agreement to which these terms and conditions are a part. These terms and conditions and Customer’s proposal/sales order, and any service-specific schedules form the agreement (“Agreement”). The Services will be offered in each area to the Customer by the TelWare affiliated entity authorized to provide the Services in the applicable jurisdiction.
1. Term and Renewal. This Agreement is effective on the date identified on the proposal (“Signature Date”) and will continue for the term set forth in the proposal from the date that Services are installed until either terminated pursuant to the provisions below or replaced with a new agreement (the “Contract Term”). Upon expiration of the Contract Term, this Agreement will automatically renew for successive one-year terms, (each, a “Renewal Term”) until terminated or canceled pursuant to its terms. In the event a Customer provides written notice of its intent not to renew but does not terminate Services hereunder, TelWare shall have the option of continuing to provide such Services on a month-to-month basis, priced at TelWare’s then-current monthly rates.
2. Charges for Services; Billing and Payment. The customer is responsible for paying all charges that apply to the Services ordered on a proposal or used on a per-use basis by Customer, including items such as features, installation, labor, repair, long-distance, International dialing, and directory or operator assistance as specified on the proposal. Customer is responsible for taxes, surcharges, fees, and assessments that apply to the sale and use of Services, including how those may change in the future and regardless of whether such charges are identified in the Agreement. TelWare will bill Customer monthly for the Service, and all bills are due and payable upon receipt. Payment will be considered late if not paid by the due date reflected on the invoice. All amounts payable by Customer shall be made without set-off or counterclaim and without deduction. Billing at a location will begin upon the earlier of (i) the installation date (which may be the date administrative access to certain software-based Services is granted to Customer); (ii) thirty (30) days after delivery of the applicable facility and/or equipment to the Customer premises (if the delay in connection of the facility and/or equipment is due to Customer or its agent); (iii) the date the Company notifies a Customer that Service is available for use by Customer; (iv) the date that Service would have been available for use by Customer if Customer had fulfilled its performance obligations required to provide the Service. TelWare may choose to bill in full monthly increments with no proration for partial service periods when Service either starts or ends in the middle of a billing cycle. If the installation of off-net Services is delayed due to action or inaction by Customer, the Customer shall be responsible for all associated third-party provider charges. In certain service areas, paper bills are available only upon request and for a monthly charge and billing for usage will round up to the next cent. If Customer authorizes payment by credit or debit card, then TelWare will not obtain further consent or provide additional notice before invoicing the credit or debit card for all amounts due and owing.
3. Disputes. To dispute a bill, Customer must do so in good faith and deliver to TelWare in writing the specific basis for such dispute within (60) days from date of invoice. No product or service invoices over 60 days in age will be reviewed for disputes. If Customer does not follow this dispute process, the dispute shall be deemed waived. Each party has the right to discuss issues directly with the other party and TelWare may refuse to discuss issues through Customer's external representative.
4. Partial Payments; Late Payments. TelWare may accept any payments Customer marks as being "payment in full" or as being settlement of any dispute without waiving any rights TelWare has to either collect the full payments from Customer. Customer is responsible for paying all costs and fees TelWare incurs as a result of collecting Customer's unpaid charges. If TelWare does not receive full payment when due or does not receive payment in immediately available funds, TelWare will add a late payment fee to the amounts owed and will calculate such fee as the total owed times interest at the maximum rate allowable by law.
5. Credits and Deposits. Customer authorizes TelWare to ask credit-reporting agencies for Customer’s credit information. TelWare may require Customer to submit an initial security deposit and/or advance payment and an additional deposit and/or advance payment if Customer Increases Services or Customer's credit rating changes. The deposit will be refunded if satisfactory credit has been established or upon termination of this Agreement for any reason, except that TelWare at its discretion may apply the deposit to any amount due and unpaid by Customer.
6. Services Location; Moves. Customer is responsible for providing an environment that is suitable for the Services, including equipment that is compatible with TelWare’s network. Customer shall provide TelWare with the correct address to obtain Services, because TelWare relies on such information to determine which taxes, fees, surcharges and assessments apply to the Services. If Customer does not provide a valid address, Customer will be responsible for any resulting taxes, fees, surcharges, assessments and penalties related thereto. Customer will notify TelWare if Customer's address changes, in which case TelWare may either (a) terminate the affected Services, or (b) allow Customer to provide sixty (60) days’ advance notice to TelWare to move Services to a new location and pay any applicable installation charges. Customer will enter into a new agreement for such new location, or TelWare will apply the liquidated damages set forth in Section 15 for the terminated location. Charges, including reasonable administrative costs and fees incurred by TelWare may apply as a result of Customer’s move. TelWare is defined for purposes of this Agreement to mean TelWare Corportation such authorized TelWare affiliated entity providing Services to Customer as identified on Customer’s bill.
7. TelWare-Provided and Owned Equipment. Any equipment installed by TelWare on Customer’s premises that is not the subject of a sale to Customer (such as the Switches, Wlan, Router, IP Telephone and an antenna, if applicable) shall remain at all times the property of TelWare and shall not be considered a fixture. Equipment shall remain in good condition, less normal wear and tear. TelWare shall be responsible for the maintenance and repair of the equipment unless it is damaged as a result of the action or inaction of Customer or its employees or agents, in which case Customer shall reimburse TelWare for the cost of any necessary repairs. Customer shall provide TelWare reasonable access to the equipment for purposes of repair, maintenance, removal or otherwise. If TelWare does not have access to Customer’s premises within thirty (30) days after Customer terminates this Agreement, or if TelWare requests Customer return the equipment and Customer does not return the equipment to TelWare within thirty (30) days of termination, Customer shall reimburse TelWare for the full purchase price of the equipment as well as any attorney’s fees and costs. Customer shall pack and ship the equipment in such a way so as to limit and/or avoid damage to the equipment. In the event the equipment is damaged in shipping, Customer shall be responsible for the cost to replace the equipment. For the avoidance of doubt, Customer is responsible for maintaining all equipment on its premises not provided and/or owned by TelWare and ensuring such equipment is compatible with TelWare's network.
8. Purchased Equipment Warranty and Workmanship. TelWare guarantees that all equipment and materials furnished will be as specified and that installation will be in accordance with manufacturers’ specifications and completed in a workmanlike manner. TelWare warrants the equipment or system installed as described in the sales order to be free of defects in materials and workmanship for a period of one (1) year from the date of completion of the installation. Warranty consists of first (90) days, advanced replacement; remainder of warranty period will be repaired and return. Customer is responsible for return shipping costs. Extended warranty coverage for advanced replacement is offered. This warranty shall void and have no further effect in the event of abuse, vandalism, improper use or damages as a result of acts of God. In no event shall the Seller be liable or responsible for damages for any loss of use or loss of profits of the Purchaser. TELWARE MAKES NO OTHER WARRANTIES EXPRESS OR IMPLIED EXCEPT AS EXPRESSLY SET FORTH HEREIN. TELWARE EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(a) SECURITY AGREEMENT – RETENTION OF TITLE BY SELLER: Until the total purchase price for the equipment or system described above is paid to TelWare, TelWare shall retain title to the equipment or system (hereinafter referred to as “Collateral”) and Purchaser grants to TelWare a security interest in said Collateral to secure payment of the total purchase price as set forth above. Upon payment in full by the Purchaser, TelWare’s security interest shall be cancelled and full title to the Collateral shall pass to the Purchaser. If Purchasers in default of this agreement, Seller shall have the right to take possession of Collateral or require the Purchaser to assemble the Collateral and make it available to the Seller at Purchaser’s place of business or a place designated by Seller, which is reasonably convenient to both parties. Purchaser agrees to carry hazard or perils insurance coverage on Collateral in an amount equal to the full replacement value until Collateral is paid in full. If this contract is cancelled, a twenty-five percent (25%) restocking fee may apply to all returned equipment.
9. Telephone Number Porting. TelWare will only port telephone numbers specified by the Customer on a Letter of Authorization (LOA) and is not responsible for numbers that are not listed on the LOA. Failure to provide a complete and accurate list of telephone numbers could result in the loss of numbers or additional porting fee’s. The porting time frame or schedule is controlled by the current provider (losing carrier). Porting is only possible when the losing carrier releases the telephone numbers with a Firm order commitment date (FOC Date). Customer should NOT contact their current service provider to disconnect service during the porting process, as this will stop the porting. Customer must keep the service until the porting process is complete. Customer should not make any changes to their current account during the porting process, any active orders on the account will disrupt the porting process. Customer should ensure that their account balance and any outstanding charges are paid off with the current provider or the provider will not release the numbers for porting. Any interruption in DSL service or alarm systems due to porting is not the responsibility of TelWare. Customer should ensure they do not have DSL services or an alarm system on any of the numbers listed on the LOA. It is the customer’s responsibility to provide a Customer Service Record (CSR) listing the numbers on the account and a copy on the latest bill. Both are required to complete the porting process and can be obtained from the current provider (losing carrier). The bill and CSR must show the Customer’s name, billing and service addresses, and the name of their current telephone provider along with a list of current telephone numbers listed on the CSR. A separate “Letter of Authorization” (LOA) is required for each account if the Customer is moving local numbers from multiple accounts with the same phone service provider or different providers.
10. Disconnection of Current Provider; Special Construction; Third Party Charges. Customer is solely responsible for disconnecting Services with its current service provider. TelWare is not responsible for any charges assessed against Customer by such provider. Customer shall pay all charges if TelWare or a third-party provider is required to extend the demarcation point or undertake special construction for Customer. Unless TelWare specifically agrees in writing to undertake equipment installation and maintenance work, Customer is responsible for all charges assessed by its vendor and other third parties in connection with the installation of the Services and TelWare shall have no responsibility for maintenance or repair of same.
11. Third Party Software. As part of the Services, Customer may be allowed to use certain software and related documentation developed and owned by TelWare’s third-party software licensors (collectively, the “Software”). This Software is neither sold nor distributed to Customer and Customer may use it solely as part of the Services and for no other purpose. Customer may not and agrees not to: (i) transfer such Software outside the Services or to any other person or entity; (ii) make copies of the Software, either through a virtual snapshot of the server containing the Software or otherwise; or (iii) transfer the Software outside of TelWare's infrastructure and/or premises. Further, Customer agrees to provide TelWare with evidence that its use of the Software is in compliance with the Agreement and/or third-party software licensor's terms from time to time during the Term as requested by TelWare. If Customer fails to provide such evidence when requested, or is otherwise not in compliance with the Agreement and/or third-party software licensor's terms, TelWare may, at its sole option suspend or terminate the Services that include the Software. For the avoidance of doubt, TelWare’s Software licensors are not responsible for providing any support in connection with the Services or the Software.
12. Government Funding. Customer must notify TelWare of all restrictions, requirements and reporting obligations to which TelWare could become subject pursuant to any government program before TelWare provisions Services to Customer. Customer will not use such funds, including stimulus funds, grants or loans, in whole or in part, to support its performance under this Agreement without TelWare’s prior written consent regarding any specifically applicable terms. If Customer fails to provide such prior written notice to TelWare of government funding or if TelWare does not consent to the use of such funding, then TelWare has the right, in its sole discretion, to reject any order or terminate this Agreement and/or any applicable Services, without liability or obligation to TelWare. If Customer requests government funds for payment of Services under this Agreement and such funding request is denied, Customer shall remain responsible for one-hundred percent (100%) of the cost of Services.
13. Documents Incorporated by Reference; Entire Agreement; Counterparts; Execution. This Agreement, the documents incorporated by reference and any addendums entered between the parties constitute the parties’ entire Agreement. This Agreement may be amended only in a writing signed by authorized representatives of each party. This Agreement and its incorporated documents supersede any and all statements or promises made to Customer by any TelWare employee or agent. This Agreement may be signed in counterparts, and facsimile or electronic scanned copies may be treated as original signatures. TelWare also may execute this Agreement via a verifiable electronic signature.
14. Termination. Either party may terminate this Agreement by providing at least thirty (30) days’ notice prior to the end of the initial Term or a Renewal Term, or if the other party is in breach of any material provision of this Agreement and such other party fails to cure within thirty (30) days after written notice; Customer must submit a disconnection request to Billing@telware.com. Notwithstanding the foregoing, unless prohibited by law, in the event of nonpayment, the breaching party shall have ten (10) days to cure after written notice. Customer’s right to terminate for cause is limited to termination of the affected Services at the affected location only. In the event Customer rents equipment from TelWare and Customer terminates network Services pursuant to this section, Customer shall remain obligated to fulfill the remainder of the applicable equipment schedule contract term. TelWare may limit, interrupt, suspend or terminate Services immediately if: (a) after any required notice, Customer has not paid for Services, or has failed to pay a deposit or advance payment requested by TelWare; or (b) Customer uses the Services in an adverse manner that affects TelWare's network or other customers, Customer or others have used the Services fraudulently or unlawfully while on Customer's premises or via Customer's equipment or while the Services are under Customer’s control, or there otherwise occurs an event for which TelWare reasonably believes that the suspension or termination of Services is necessary to protect TelWare or TelWare’s other customers from an imminent and significant operational, financial or security risk, in which case TelWare will provide advance notice if practicable; or (c) Customer or others use the Services in an excessive, abusive, or unreasonable manner that is not customary for the type of Services; or (d) Customer resells any Services or uses the Services to aggregate other persons’ traffic; or (e) Customer uses the Services for its own end users and/or customers as a telecommunications provider or any other kind of provider; or (f) Customer fails to comply with any applicable regulations or statutes and does not cure such failure to comply within ten (10) days of receiving notice from TelWare; or (g) if Customer impersonates another person, uses obscene or profane language or is abusive or harassing when communicating with TelWare representatives, and fails to stop the behavior after receiving a written or verbal warning from TelWare, or (h) for fixed wireless customers, Customer fails to comply with the Customer Responsibilities as defined below. In addition to the termination rights of TelWare set forth above, if Customer or others use the Services in an excessive, abusive, or unreasonable manner that is not customary for the type of Services (including, but not limited to, circumstances in which TelWare is receiving traffic from Customer that originates from a location other than the local calling area associated with the customer’s service location or Customer is terminating large volumes of calls to areas in which the cost to terminate such calls is high or to a toll-free number, or when ten percent (10%) or more of Customer’s calls are six (6) seconds or less, and/or when more than forty percent (40%) of call attempts are uncompleted per trunk group, and whether or not such use of the Services is due to Customer or a third party accessing Customer’s Services or Equipment fraudulently, TelWare may: (v) charge long-distance charges for such traffic and any additional charges necessary to recoup its administrative costs and any charges from other carriers; (w) charge an additional price per minute in TelWare’s discretion for each call that violates this provision; (x) restrict or cancel use or convert customer to another plan; (y) require customer to pay for the excessive use immediately and make a deposit; and/or (z) void any applicable price guarantee. TelWare may restore service if customer corrects the violation and pays all outstanding amounts owed, including restoration charges. Prior to installation of Services, TelWare may attempt to verify the availability of facilities, and in the event that TelWare determines in its sole discretion that facilities are not economically or technically feasible, TelWare has the right to terminate this Agreement without liability. In the event facilities leased by TelWare from third parties to provide the Service(s), including, but not limited to, copper or fiber facilities, are no longer available to TelWare at reasonable rates or are not available for any reason, including, but not limited to, regulatory changes or retirement of copper plant, TelWare has the right to terminate this Agreement without liability upon thirty (30) days' notice.
15. Effect of Termination. a. Pre-Installation - If Customer terminates this Agreement after the Effective Date but prior to the installation of Service(s), Customer will pay TelWare a Pre-Installation Cancellation Charge (“Cancellation Charge”) equal to three (3) months of service, except that if TelWare’s costs to other providers are greater than this amount, Customer shall also reimburse TelWare for such costs. Customer agrees that the Cancellation Charge is a reasonable measure of the administrative costs and other fees incurred by TelWare to prepare for installation. The Cancellation Charge set forth in this Section 15(a) is in lieu of the charges set forth in 15(b) below for post-installation cancellations.
b. Post-Installation - Customer understands that its rates are based upon its commitment to purchase services for the contract term or renewal term. As such, if customer terminates this agreement or any services provided here under after installation during the initial or renewal term for any reason other than for cause, or as a result of TelWare’s termination for customer’s breach, customer shall pay to TelWare as liquidated damages, and not as a penalty, an amount equal to one hundred percent (100%) of the monthly fee applicable to the terminated services multiplied by the number of months remaining in the then-current contract term or renewal term (“liquidated damages”). Customer acknowledges that actual damages would be difficult to determine and such liquidated damages represent a fair and reasonable estimate of the damages which may be incurred by TelWare, including but not limited to actual expenses incurred by TelWare to initiate or terminate the services, third party costs, use of limited network resources, installation charges waived and any discounts or credits granted.
16. Limitation of Liability. FOR PURPOSES OF THIS SECTION, AND THE FOLLOWING SECTIONS DESCRIBING INDEMNITY, DISCLAIMER OF WARRANTIES, AND EMERGENCY. CRITICAL LINES SECTIONS, “TELWARE” INCLUDES ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, VENDORS, AND ANY ENTITY ON WHICH BEHALF TELWARE RESELLS SERVICES.
A. TELWARE’S LIABILITY FOR SERVICES PROVIDED UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF: (I) CUSTOMER'S MONTHLY FEE DURING THE PERIOD IN WHICH THE DAMAGE OCCURS, OR (II) CUSTOMER’S MONTHY FEE MULTIPLIED BY SIX (6). IF CUSTOMER'S SERVICE IS INTERRUPTED, TELWARE’S LIABILITY WILL BE LIMITED TO A PRO-RATA CREDIT FOR THE PERIOD OF INTERRUPTION. CUSTOMER AGREES THAT THE PRICING OF SERVICES REFLECTS THE INTENT OF THE PARTIES TO LIMIT TELWARE’S LIABILITY AS PROVIDED HEREIN. UNDER NO CIRCUMSTANCES WILL TELWARE BE LIABLE FOR ANY ACCIDENT OR INJURY CAUSED BY SERVICES, ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (SUCH AS LOST PROFITS, LOST BUSINESS OPPORTUNITIES, BUSINESS INTERRUPTION, LOSS OF BUSINESS DATA), ANY PUNITIVE OR EXEMPLARY DAMAGES, THE COST OF ALTERNATIVE SERVICE, OR ATTORNEY’S FEES. TELWARE IS NOT RESPONSIBLE OR LIABLE IF SERVICES ARE LOST, STOLEN, MISUSED, OR THE VICTIM OF FRAUD. CUSTOMER IS RESPONSIBLE FOR ALL USAGE, CHARGES, AND LIABILITY INCURRED FOR SUCH LOSS, MISUSE, THEFT, OR THE RESULT OF FRAUD OF SERVICES WHILE IN CUSTOMER’S CONTROL, REGARDLESS OF WHETHER/WHEN TELWARE NOTIFIES CUSTOMER OF INCREASED USAGE.
B. ENTRY ONTO TELWARE’S PREMISES IS AT CUSTOMER’S OWN RISK, AND TELWARE ASSUMES NO LIABILITY WHATSOEVER FOR ANY HARM ARISING FROM ANY CAUSE RESULTING IN PERSONAL INJURY TO CUSTOMER DURING SUCH VISIT. CUSTOMER IS RESPONSIBLE FOR ALL LOSS INCURRED FOR MISUSE, MISHANDLING OR PROVISIONING OF CUSTOMER EQUIPMENT INCOMPATIBLE WITH THE SERVICES, CHANGES MADE TO THE SERVICES BY CUSTOMER OR A THIRD PARTY NOT AUTHORIZED TO MAKE CHANGES, OR BY TELWARE AT THE DIRECTION OF CUSTOMER. IN NO EVENT SHALL TELWARE BE RESPONSIBLE FOR ANY THIRD-PARTY EQUIPMENT, INCLUDING ANY DAMAGES THAT MAY ARISE AS A RESULT OF DEFECTS OR ISSUES RELATED TO THE THIRD-PARTY EQUIPMENT. TO THE EXTENT TELWARE IS LIABLE FOR DAMAGE TO, OR LOSS OF, CUSTOMER EQUIPMENT, SUCH LIABILITY WILL BE LIMITED TO THE THEN-CURRENT BOOK VALUE OF THE DAMAGED EQUIPMENT. EACH PARTY IS RESPONSIBLE FOR INSURING THE EQUIPMENT AND PROPERTY IT OWNS WITH COVERAGE CONSISTENT WITH INDUSTRY STANDARDS.
17. Indemnity. EACH PARTY WILL DEFEND, INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY, AND ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS, FROM AND AGAINST ALL THIRD-PARTY CLAIMS ARISING OUT OF THE INDEMNIFYING PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT. FURTHER, CUSTOMER WILL DEFEND, INDEMNIFY AND HOLD HARMLESS TELWARE FROM AND AGAINST ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH (I) ANY FAILURE BY CUSTOMER OR CUSTOMER’S END USERS TO COMPLY WITH TELWARE’S ACCEPTABLE USE POLICY OR APPLICABLE LAW, OR (II) CLAIMS OF OWNERSHIP OR SUPERIOR RIGHTS TO CUSTOMER EQUIPMENT OR OTHER INTELLECTUAL PROPERTY BY A THIRD PARTY.
19. Miscellaneous. (a) Notices and Electronic Communications. Any notice pursuant to this Agreement must be in writing and will be deemed properly given if hand delivered or mailed to Customer at the address populated on Customer’s proposal or to TelWare at TelWare Corporation, Attn: Correspondence Division, 1824 Industrial Center Circle., Charlotte, NC 28213, firstname.lastname@example.org or at such other address provided to the other party. Please note, all Customer disconnection requests must be sent to email@example.com. CUSTOMER AGREES THAT TELWARE MAY SEND ELECTRONIC MESSAGES TO CUSTOMER CONCERNING TELWARE’S SERVICES;(b) Applicable Law. This Agreement is subject to applicable federal law and the laws of the state in which the Services are provided, without regard to that state’s conflict of laws principles. If this Agreement covers multiple states, then it is subject to North Carolina law, without regard to its conflict of law principles. The parties agree to submit to the exclusive jurisdiction of federal courts in the state in which the Services are provided (or federal courts in North Carolina, if the Agreement covers multiple states) so long as diversity and the amount in controversy requirements are met, or a federal question is at issue;
(c) Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT; (d) Statute of Limitations No claim may be asserted by either party against the other with respect to any event, act or omission for which a claim accrued more than two (2) years prior to such claim being asserted; the foregoing statute of limitations is not applicable to billing disputes, which are governed by the timeframe for disputes described in Section 4; (e) Assignment: Either party may assign this Agreement to an affiliate or acquirer of all or substantially all of its assets without any advance consent from the other party, but Customer shall provide TelWare with notice and complete all paperwork necessary to effectuate any change in ownership or other account changes. Otherwise, Customer may not assign its rights and obligations under this Agreement without TelWare's advance written consent. Any attempted assignment in violation of this provision is void;(f) Third Party Beneficiaries: No third party shall be deemed a beneficiary of this Agreement; (g) Publicity: Customer agrees that TelWare may publicly disclose that TelWare is providing Services to Customer and may include Customer’s name in promotional materials, including press releases;(h) Waiver: Either party’s failure to enforce any right or remedy available under this Agreement is not a waiver; (i) Severability: : If any part of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect; (j) Survival: Sections 15 through 20 survive after this Agreement ends; (k) Handwritten Changes: Handwritten changes are not binding on either party;(l) Use of Products in U.S.: Customer acknowledges that the transfer and use of products, services and technical information outside the United States are subject to U.S. export laws and regulations. Customer shall not use, distribute, transfer, or transmit the products, services or technical information (even if incorporated into other products) except in compliance with U.S. export laws and regulations. At TelWare’s request, Customer shall sign written assurances and other export-related documents as may be required for TelWare to comply with U.S. export regulations; (m) Representation on Authority of Parties/Signatories: Each person signing this Agreement represents and warrants that he or she is duly authorized in accordance with its corporate governance documents and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of the Agreement and the performance of such party's obligations hereunder have been duly authorized in accordance with its corporate governance documents and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms; (n)Confidentiality: Except when this Agreement is required to be filed with a governmental authority or as may otherwise be required by local, state or federal freedom of information laws, the parties agree that this Agreement contains proprietary and confidential information and shall not be disclosed publicly to any third party except the such dealer(s) or agent(s) of TelWare that are negotiating with Customer in order to execute this Agreement.
20. 911 Emergency Notice. The Customer understands and acknowledges that access to 911 emergency services on voice-enabled customer premise equipment is electrically powered and, in the event of a power outage, internet failure, or voice network failure, 911 services may not be available. (a) Moving Equipment. The Customer understands and acknowledges that if this equipment is moved to another location, 911 services may not operate properly and emergency operators may be unable to accurately identify the caller’s address in an emergency. The 911 address, assigned by your telephone line provider, will be sent to emergency operators for emergency calls made from the telephone numbers associated with this system installation. Changes in service providers, customer-provided network equipment or network configurations can also affect the transfer of information to the 911 center. Due to these issues, TelWare assumes no liability for the accuracy of information sent to 911 centers. It is the Customer’s responsibility to check the accuracy of E911 information periodically. (b) 911 Dialing– Depending on the dial plan and restrictions set on an individual business’s phone system the following digit presses may result in a 911 call: 911, 9911, 1911. If dialed and the call goes to the 911 center, please do not hang up; stay on the line and let the dispatcher know that it was a misdial—they will thank you for staying on the line. Otherwise, the dispatcher will call in on the main line asking an unsuspecting receptionist if a 911 call was made and potentially dispatch emergency responders. Unless your specific telephony system has a reporting package or alerting system we will not be able to determine which user has dialed 911. The Customer is responsible for any fees associated from dialing 911 dispatch services, intentional or unintentional.
21. E911 Service Charge. Customers that are required to subscribe to E911 Service will be subject to a monthly E911 service charge. The monthly E911 Service Charge will be in addition to the applicable service fees for the associated line. The monthly charge for E911 service is “Per-line” (meaning, per phone number), and will be set at the level that reimburses the direct costs incurred in providing the E911 service. Providers reserve the right to adjust the charges associated with the E911 services and may reflect an increase or decrease in costs.
22. Quality of Service (QOS). Quality of Service refers to the classification and prioritization of internet traffic traversing the internet and a business’s network. As Internet Protocol (IP) has developed and become more commonplace in everyday devices, QOS ensures smooth operation of connected devices. The Customer understands that equipment connected remotely to an IP system can vary in quality based on several factors including data speed, QOS provisioning, latency, security protocols, firewall, routing equipment and connection type. As remote device deployments are always best effort, The Customer acknowledges that TelWare cannot guarantee QOS or performance of the customers network or the public internet.
23. Cyber Attack /Toll Fraud. The Customer understands that cyber-attacks/toll fraud are prevalent in internet connected societies and even the best companies and policies are open to attack. TelWare uses internal standard security measures during the initial installation of the on-premise equipment. However, the Customer’s internal and external security policies play a much larger role in securing the Customer’s premise equipment. Due to customer control and access of internal premise equipment, and management of external security policy the liability for loss of use and expenses incurred by cyber-attacks/toll fraud will be the sole responsibility of the customer. If the Customer suspects they have been a victim of fraud, the Customer should notify their voice- and data-service providers and vendors immediately to help secure unauthorized access if possible. (a) Customer Responsibility.Customer is responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. TelWare is not responsible for connection problems due to a computer that is infected with viruses, spyware or malware. Please see our page on security tips for more information.
24. Loss of data. TelWare technicians care about your data, and are instructed to retain and save any and all data wherever possible. Electronic computer equipment is sensitive by nature; TelWare will take every necessary precaution to ensure no data is lost, however TelWare and its technicians are not responsible for the loss of any data which may occur while performing work on a Customer’s computer. Due to the process of repair, data may get damaged or deleted. TelWare will not be held legally liable for any data loss. Customers should back up data accordingly. The Customer is responsible for backing up their own data.
25. Faxing. Faxing was originally designed to work over a traditional, dedicated copper line from the telephone company. Even in this scenario, the telephone company did not guarantee consistent transmission. Faxing over a non-traditional line source can cause transmittal issues with copy and document perseverance. Dynamic IP telephony products and SIP based telephony line services all have known and well-documented issues with faxing. While there is a market of devices that can address these known issues, no device can resolve 100% of all issues. The Customer acknowledges that TelWare cannot guarantee faxing performance on your network.
26. Remote Access. As part of TelWare Corporation’s support plan and during the warranty/maintenance period, TelWare relies heavily on access to the on premise equipment through remote access for support and monitoring. Customer agrees to provide access to the equipment through Customer’s onsite router or firewall or will provide TelWare with (1) public IP address on Customer’s internet access. In the event remote access is not granted to TelWare, any monitoring and support will have to be provided onsite and will incur the current normal billing rates.
27. SMTP Relay Service. Mail relay service is required for voicemail to email service. TelWare offers this service to the customer at no charge during the warranty or maintenance period using a TelWare managed mail relay service. If the warranty/maintenance coverage is expired/cancelled, Customer can provide their own service through the use of a customer-provided mail relay server or service, or Customer has the option to continue using the TelWare mail relay service for a fee of $200.00 per year. This service includes up to 5000 emails per month. Overages are billed in increments of $50/yr. per 5000. TelWare cannot guarantee the delivery of voicemail messages. If the Customer elects to end TelWare SMTP service, emails that contain the @telware.net address, will cease. Once warranty/maintenance has ended, any changes or technical assistance provided by TelWare for mail relay service, will incur normal labor rates.
Voice over IP (VoIP) Terms of Services
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 Provider is not a regulated carrier and does not provide regulated 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. Customer is responsible to select a Rate that is appropriate for the Customer’s needs from the available Rate options quoted. Customer agrees that Customer is responsible, and not Provider, for the selection of a Rate and Customer is responsible, and not Provider, for any cost associated with selection or non-selection of any Rate. 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 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 Calling Plans. If Customer purchases International Voice Termination Service from Provider, rates shall be as set forth in the Rate quote 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.
(i) Customer hereby waives any and all rights to institute legal proceedings to recover costs of any kind related to international calls which have originated from customer’s account and/or IP address. This also includes calls as the result of fraudulent activity on the customer’s account.
(ii) Additional charges apply for surcharges, taxes and fees, installation, Directory Assistance, and Operator Services.
(m) 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.
2. 911 Provider Notice. (a) 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.
(iiii) 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 24×7 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. 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.
4. 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.
5. 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.
6. Proprietary Works. TelWare VoIP Phones contain trademarks, trade secrets and/or copyrighted materials of TelWare or its suppliers. You agree not to reverse engineer, decompile, or disassemble TelWare Phones, nor defeat, bypass, remove or otherwise interfere with any licensing mechanism which may be provided in or with the TelWare Phone Software, except to the extent such restriction is expressly prohibited by applicable law or as permitted by the licensing terms governing the Open Source Components. You shall not disclose or make available such trade secrets or copyrighted material (including any information pertaining to any licensing mechanism which may be provided in or with the TelWare Phone Software) in any form to any third party nor remove any trademark notices, copyright notices, or licensing terms from TelWare Phones or any components therein.
7. 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.
8. Privacy. 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.
9. Content. 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).
10. Local Number Portability (LNP). (a) 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. (b) You agree and acknowledge that rescheduling, adding or cancelling after a port request will incur an administrative fee of $50.00 for each individual location plus fees for each telephone number. Individual locations may need to be rescheduled if one or more of the individual telephone numbers need to be rescheduled, added, or canceled.Number porting for Subscribers with a single or multiple locations will be processed together as a complete project. Any changes to add or delete a number within the project require the complete cancellation of the project and resubmission as a new project. Rescheduling a single or multiple locations to a different date require projects cancellation and resubmission as a new project.In addition to the administrative fee the Standard Cancellation Fee is $6.00 per telephone number, the Expedited Cancellation Fee is $75.00 per telephone number, and changes to 411 and Directory Listings and to Caller ID are $15.00 per telephone number.
(c) You agree and acknowledge that a Snapback request, initiating the return of telephone number back to the previous carrier within twenty-four (24) hours of the Port Effective Date has a fee of $306.00 per telephone number, in addition to the administrative fee.
11. Number Transfer on Service Termination. TelWare or its providers may receive requests from other telephony providers (the "Requesting Party") acting as agents on your behalf to port a telephone number currently assigned to you to a third party provider ("Port-Out"). TelWare will support all such requests and will cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party's reasonable directions and TelWare's or its providers' standard operating procedures. Note that you will be responsible for all monthly, usage and disconnect fees associated with the Service through the end of your then-current subscription term, all of which immediately become due and payable.
12. Payment. (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, 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.
(f) 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.
(g) 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: (i) 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 (ii) 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.
(h) 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(s) is purchased, Customer shall be responsible for and shall pay the minimum monthly fee throughout the Term of the Service(s), regardless of whether Customer actually consumes any of the Services.
(i) 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.
(j) 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.
(k) Provider may permit Customer to provide to Provider one or more payment facilities, including one or more credit facilities or credit card accounts, which may be provided in writing, through a secure internet based facility, or otherwise, to be used for payment of any amount due from Customer to Provider. Provider may draw any amount due from Customer to Provider from any payment facility provided by Customer.
(l) For certain Services, Provider may provide invoices and related billing notifications to Customer by email. Provider will provide such invoices and related billing notification emails to one or more emails provided by Customer. Customer agrees that it is responsible to provide desired email addresses to Provider. Provider accepts no responsibility for invoices or related billing notifications that are not received by Customer due to an improper email address being provided by Customer and Provider accepts no responsibility for sending invoices or related billing notifications to any Customer provided email address. Provider accepts no responsibility for any interruption in Services or other harm caused to Customer due to one or more invoices or related billing notifications that are not received by Customer because the invoice or related billing notification was sent to an improper email address provided to Provider by Customer.
(m) 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.
(n) 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).
(o) (Hosted Cloud PBX User Minute Amounts): Cloud PBX Standard User includes 1000 minutes per user. Cloud PBX Premium User includes 2500 minutes per user.
(i) Minutes are pooled based on total number of users on the Service Agreement. Service Agreement may contain both standard and premium users. TelWare reserves the right to upgrade users without notice to Premium user minute plans if Customer’s minute usage is greater than agreed upon. TelWare reserves the right to charge overage fees.
(ii) Prepaid Metered VOIP Service(s) are sold as a bundle or per minute. Bundle minute amounts and overage charges will be listed on your Metered VOIP Order. TelWare reserves the right to charge overage fees if Customer uses more than the agreed upon minute amounts.
13. VoIP Traffic Requirements. (a) For conversational termination Services:
(i) Customer’s Answer Seizure Ratio (ASR) in any 24 hour period must be above 60.0%;
(ii) the Average Length of Call (ALOC) must be above 60.0 seconds in duration; and
(iii) 90% of total calls must be above 6 seconds in duration.
(b) For Toll-Free origination Service, 90% of all incoming calls must be accepted by Customer’s switch.
(c) In the event any of the requirements in this Section are not met, Provider may, in addition to any other remedies available hereunder:
(i) Charge Customer (retroactively and in the future) a surcharge of $0.01 per call attempt for conversational termination Services and $0.05 per call for Toll-Free origination services, which shall be in addition to all other fees and changes billed to Customer for its consumption of the Service(s); or
(ii) Modify its billing method and charge Customer for its consumption of Service(s) in accordance with Provider’s then current Short Duration Rate Deck.
14. Billing Disputes. To dispute a bill, Customer must do so in good faith and deliver to TelWare in writing the specific basis for such dispute within (60) days from date of invoice. No product or service invoices over 60 days in age will be reviewed for disputes. If Customer does not follow this dispute process, the dispute shall be deemed waived. Each party has the right to discuss issues directly with the other party and TelWare may refuse to discuss issues through Customer's external representative.
15. Non-Disclosure. 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, financial information, marketing and business plans, customer lists, business and contractual relationships, business forecasts, sales forecasts, sales activity and plans, customer data, current and proposed products and services and pricing, patents, patent applications, technology, databases, employee information, trade secrets, contracts, historical information, financial information, product and business requirements, business strategies, operating data, pricing, organizational structures, software programs, software source documents, know how, formulas, processes, ideas and inventions (whether patentable or not) and information about or from either party’s vendors. 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 Proprietary 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 strictly protect Proprietary Information from disclosure. 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.
16. Copyright, Trademark and Unauthorized Use. The Service and any equipment, firmware or software used to provide the Service or provided to Customer in conjunction with the Service, 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. Any equipment, firmware or software, information, documents and materials provided by Provider to Customer pursuant to this agreement shall be included in the Definition of Services.
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.
17.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. 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 CONTRACTOR.
20. Limitation of Liability. (a) PROVIDER SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS OR LIABILITY OF ANY NATURE INCURRED BY CUSTOMER OR ITS CUSTOMER USERS’ AND/OR ANY THIRD PARTY RESULTING FROM 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.
(b) IN ADDITION, AND NOT TO LIMIT THE FOREGOING OR THE FOLLOWING, IN NO EVENT SHALL PROVIDER BE RESPONSIBLE FOR ANY LIABILITIES ARISING OUT OF: (A) THE SERVICE(S), FACILITIES OR EQUIPMENT PROVIDED BY CUSTOMER, ITS CUSTOMER USER, OR BY A THIRD PARTY VENDOR (INCLUDING ANY AGENTS, SUBCONTRACTORS, INDEPENDENT CONTRACTORS OR CUSTOMERS OF THE SAME); OR (B) ANY ACT OR OMISSION OF ANY THIRD PARTY, THE CUSTOMER OR CUSTOMER’S USERS.
(c) 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 USERS, 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)).
(d) 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.
(e) 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.
(f) 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.
21.Indemmification. 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 or its Customer Users acts or omissions, consumption, use and/or resale 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.
22. 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 state of North Carolina, without regard to choice of law rules. The above governing law provision applies regardless of the location of the Customer or where Customer or its Customer Users use or pay for Service(s). Venue for any action brought hereunder shall be Mecklenburg County, North Carolina, 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. If permitted by applicable law, Provider and you hereby expressly waive any right to a trial by jury and consent to a bench trial in the event of a dispute. Provider and you agree to attempt to resolve any dispute by direct communication between representatives of each party who are authorized to finally resolve the dispute prior to filing any legal action against the other party. The parties agree to attempt to resolve the dispute within fourteen (14) days of notice of the dispute having been provided to the party not invoking this clause and agree not to resort to legal action, other than injunctions, during the fourteen-day dispute resolution period. The United Nations Convention on International Sale of Goods, the application of which is expressly excluded, does not govern this Agreement.
23.Miscellaneous. (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.
(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.