The following terms shall have the meanings set forth below.
2.1 “Agent” means a Customer employee or contractor who may use the Services, the total number of Agents being the maximum number of personnel who may use the Services at any one time.
2.2 “Contract Period” means the length of the Service Plan selected by Customer in the Service Order, and in no event shall ever be less than thirty (30) days.
2.3 “Customer Data” means any data, information or other materials of any nature whatsoever provided to TeleVoIPs by Customer in the course of implementing or using the Services.
2.4 “Documentation” means user manuals and other documentation relating to the Services, which are made available to Customer by TeleVoIPs, in the form of recorded documentation on optical or magnetic media, accessible via the Internet or in the form of printed media.
2.5 “Implementation Services” means the Services selected by Customer, as indicated on the Service Order, to be provided by TeleVoIPs in connection with the set up and implementation of the Services. As part of the Implementation Services, Customer will receive training in the set up and activation of the Services during the hours from 8:00am to 6:00pm EST Monday through Friday.
2.6 “Initial Payment” means the initial payment set forth in the Service Order consisting of the fees for Implementation Services and the Service Fees for the first month.
2.7 “Login” means each separate, named individual login account within a Customer account.
2.8 “Professional Services” means work TeleVoIPs will perform for Customer as specified in individual statement(s) of work (“Statement(s) of Work”) to be executed by the parties from time to time on the terms and conditions specified in the Agreement.
2.9 “Service Fee” or “Service Fees” means the monthly or annual fees set forth in the Service Order to be paid by Customer to TeleVoIPs as consideration for TeleVoIPs provision to Customer of the Services.
2.10 “Service Order” means the document executed by Customer and TeleVoIPs, containing (i) a price and quantity of Services, and Implementation Services to be provided to Customer by TeleVoIPs under the Agreement, along with associated telecommunications fees; (ii) the Services to be provided; and (iii) such other options provided on the Service Order as Customer may elect to apply to the Services.
2.11 “Service Plan” means the monthly or annual subscription plan a Customer agrees to in the Service Order.
2.12 “Service Order Addendum” means a Service Order agreed to by Customer subsequent to the initial Service Order.
2.13 “Services” means the products or Services that are being provided to Customer as described in the Service Order, including any Additional Services set forth in a Service Order Addendum accepted by TeleVoIPs.
2.14 “Software” means any proprietary software (including any documentation relating to such software) owned by, licensed by, or which TeleVoIPs has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used in or used to provide the Services.
During the Initial Term or Renewal Term of this Agreement, TeleVoIPs will provide the Services, set forth in the Service Order, including telephone and other equipment (collectively, “Equipment”) subject to the terms and conditions herein. TeleVoIPs hereby grants Customer access to the Services for use set forth in the Service Order, for Customer’s own internal business purposes, which shall be deemed to include activities Customer may perform on behalf of its own Customers. TeleVoIPs grants Customer the right to use the Documentation in connection with its use of the Services.
Customer acknowledges and agrees that TeleVoIPs’ obligations to provide the Services are expressly conditioned upon (i) Customer’s payment of the fees for Professional Services and all Service Fees as and when due, and (ii) Customer’s satisfaction of the technical requirements set forth in the Documentation for the Services made available to Customer by TeleVoIPs, as the same may be updated by TeleVoIPs from time to time.
3.2. Additional Services.
At Customer’s option, the number of Services may be increased at any time during the Initial Term or Renewal Term (any such increase, “Additional Services”) by agreeing to a Service Order Addendum, signed by Customer and setting forth the specific Additional Services desired. Each Service Order Addendum shall be subject to TeleVoIPs acceptance, which shall be deemed given if TeleVoIPs thereafter provides the Additional Services. Upon acceptance by TeleVoIPs, such Service Order Addendum shall be deemed an amendment to this Agreement, incorporated herein, subject to all of the terms and conditions herein, and the Service Fees shall be increased to reflect the Additional Services, subject to the same pricing and payment terms as are set forth in the Service Order. Additional Services shall be provided for a term that is coterminous with the Initial Term or Renewal Term of the Agreement.
3.3. Implementation Services.
TeleVoIPs will use commercially reasonable efforts to perform the Implementation Services covered in the Initial Payment.
3.4. Additional Professional Services.
If Customer requests Professional Services, such as support Services not provided under this Agreement, training, or other consulting Services, TeleVoIPs may (but has no obligation to) provide such Professional Services or recommend appropriate outside consultants. If TeleVoIPs agrees to provide such additional Professional Services at Customer‘s request, fees for such Professional Services may be provided pursuant to a fixed fee or TeleVoIPs ‘s standard time and material rates. Such additional Professional Services will be provided pursuant to an addendum and the other terms and conditions of this Agreement, and may be described in an agreed-upon statement of work.
The initial term of this Agreement (“Initial Term”) begins on the date that Customer enters into the Agreement and continues in force and effect for the duration of the Contract Period. At the end of the Initial Term, the Agreement shall automatically renew for the same amount of time as the Initial Term (a “Renewal Term”), and shall automatically renew at the end of each Renewal Term for an additional Renewal Term, unless terminated by Customer in accordance with Section 5 below.
5.1. Termination with Notice.
Unless specifically set out otherwise herein, the Parties agree that thirty (30) days prior written notice of the intention to terminate this Agreement and the Services provided in the Service Order are required (“Proper Notice to Terminate”). Customer understands that this Proper Notice to Terminate applies to any Contract Period, and that if Proper Notice to Terminate is not provided, Customer agrees to the applicable Renewal Term, and costs thereof, as set out in Section 4 above. In accordance with Section 9, Early Termination Fees (“ETF” or “Disconnection Fee”) may apply. If Customer transfers or ports their phone number to a service provider other than TeleVoIPs, Customer must contact TeleVoIPs to cancel the Services provided to Customer by TeleVoIPs. Customer agrees to be billed and understands its legal obligation to pay any outstanding balances immediately if Services are terminated.
5.2. Right to Immediate Termination.
TeleVoIPs shall be entitled, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason of misuse of the Services in any way, Customer’s breach of this Agreement, Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer that adversely affects the Services, TeleVoIPs, TeleVoIPs network or other Customer’s use of the Services. TeleVoIPs shall be entitled to determine, at its sole discretion, what constitutes misuse of the Services and Customer agrees that TeleVoIPs determination is final and binding on Customer. TeleVoIPs may require, and if required, Customer shall pay, an activation fee as a condition to changing or resuming a terminated or suspended account.
5.3 Effect of Termination on Fees.
Upon termination of this Agreement for any reason, Customer shall be responsible for the full monthly Service Fee for the month in which termination occurs. Customer agrees that termination of the Agreement does not alleviate Customer of responsibility for paying all unpaid, accrued charges due hereunder.
6. EMERGENCY SERVICE – 911 & SERVICE LIMITATIONS.
The Federal Communications Commission (“FCC”) and Canadian Radio-Television and Telecommunications Commission (“CRTC”) require that TeleVoIPs provide E911 service to all Customers who use TeleVoIPs Services within the United States and Canada. Sections 6.1-6.7 below apply to all Customers who use TeleVoIPs Services within the United States. Section 6.8 applies to all Customers.
6.1 911 Acknowledgement.
Customer acknowledges that TeleVoIPs Equipment and Services do not support 911 emergency dialing or other emergency functions in the same way that traditional wireline 911 Services work. The differences are detailed in this section 6 and Customer agrees to notify any potential user or agent of the Services, who may place calls using Customer’s Services, of the 911 limitations described herein. TeleVoIPs advises Customer to maintain an alternative means of accessing traditional 911 Services. Customer acknowledges it is Customer’s sole responsibility to maintain such alternative means and to ensure that all business invitees, residents, guests and other third persons who may be present at the physical location(s) where the Customer utilizes the Service are aware of such alternative options.
6.2. Electrical Power.
Customer acknowledges that the Services will not function in the absence of electrical power. Power failure, disruption, and/or interruption in in the power supply may all cause Services to not function.
6.3. Internet Access.
Customer acknowledges that the Services will not function if there is an interruption of Customer’s broadband or high-speed internet access service.
6.4. Non-Voice Systems.
Customer acknowledges that the Services are not set up to function without dialing systems including home security systems, medical monitoring equipment, tty equipment, and entertainment or satellite television systems. TeleVoIPs will not be liable for interruption or disruption of such systems by the Services.
6.5. E911 Service.
TeleVoIPs e911 service is a mandatory component of all inbound/outbound traditional fax and voice service plans. E911 service is not offered on virtual numbers, toll-free numbers or similar service accessories or add-on service plans. E911 service is only available in selected areas. if Customer subscribes to TeleVoIPs e911 service, Customer will be required to register the physical location of Customer’s equipment (phone, softphone, digital telephone adapter (“dta”) or videophone) with TeleVoIPs, either on the TeleVoIPs.com website or by calling Customer service, and will update the location whenever the physical location of service changes. If Customer subscribes to TeleVoIPs mobile applications, Customer acknowledges the physical location registered for Customer’s equipment (phone, softphone, dta or videophone) will be the physical location registered for the mobile application associated to the equipment. Customer acknowledges that TeleVoIPs only mechanism for routing 911 calls to the correct emergency call taker is the physical location currently registered for the account. Customer acknowledges and understands that any enhanced location information passed to an emergency operator by TeleVoIPs will be based upon the physical location provided to TeleVoIPs by Customer. In the event that the physical location has not been updated or is not complete, TeleVoIPs may attempt to route a 911 call based upon the bill-to or ship-to addresses associated with the Customer’s account or initial order.
6.6. E911 Service Charge.
Customers that are required to subscribe to TeleVoIPs e911 service may be subject to a monthly e911 service charge. The monthly e911 service fee shall be in addition to the applicable service fees for the associated line. the monthly charge for TeleVoIPs e911 service is assessed on a “per-line” (that is, per phone number basis), and will be set at a level that reimburses TeleVoIPs for the direct costs it incurs in providing TeleVoIPs e911 service, including expenses TeleVoIPs incurs, either directly or indirectly, in the form of state, county or municipal e911 surcharges, e911 automatic location information (ali) database storage, line information database and caller id (lidb/cnam) expenses, and any other taxes or surcharges directly or indirectly associated with the provision of Services to Customers subscribing to this service. TeleVoIPs reserves the right to adjust the level of charges associated with the provision of e911 Services to reflect increases or decreases in the costs it incurs (see section 19 regarding changes to this Agreement, Services or Service Plan).
6.7. E911 Characteristics.
Customer also acknowledges that TeleVoIPs e911 service has certain characteristics that distinguish it from traditional, legacy, and circuit-switched 911 service. These characteristics may make TeleVoIPs E911 Services unsuitable for some Customers. Because Customer circumstances vary widely, Customer should carefully evaluate Customer’s own circumstances when deciding whether to rely solely upon TeleVoIPs e911 service. Customer acknowledges that it is the Customer’s responsibility to determine the technology or combination of technologies best suited to meet Customer’s emergency calling needs, and to make the necessary provisions for access to emergency calling Services (such as maintaining a conventional landline phone or wireless phone as a backup means of completing emergency calls). The following characteristics distinguish TeleVoIPs e911 service from traditional, legacy, circuit-switched 911 service:
* TeleVoIPs e911 service will not function if Customer’s dta, phone or videophone fails or is not configured correctly or if Customer’s TeleVoIPs service is not functioning for any reason, including, but not limited to, electrical power outage, broadband service outage, or suspension or disconnection of service because of billing or other issues. If there is a power outage, Customer may be required to reset or reconfigure the equipment before being able to use the TeleVoIPs service, including for e911 purposes.
* After initial activation of the e911 service, and following any change of and update to Customer’s physical location, there may be some delay before the automatic number and location information is passed to the local emergency service operator. This information is typically populated into TeleVoIPs nomadic e911 databases prior to service activation, but no guarantee can be made that the automatic number and location information will be activated within this schedule.
* The local emergency service operator receiving TeleVoIPs e911 emergency service calls may not have a system configured for e911 Services or be able to capture and/or retain automatic number or location information. This means that the operator may not know the phone number or physical location of the person who is making the TeleVoIPs e911 call. Due to technical factors in network design, and in the event of network congestion on the TeleVoIPs network, there is a possibility that a TeleVoIPs 911 call will produce a busy signal or will experience unexpected answering wait times and/or take longer to answer than 911 calls placed via traditional, legacy, circuit-switched telephone networks.
* If Customer does not correctly identify the actual location where the TeleVoIPs equipment will be located at the time of activation of the service, TeleVoIPs e911 communications may not be directed to the correct local emergency operator.
6.8. E911 Limitation of Liability and Indemnity.
Customer acknowledges and agrees that TeleVoIPs shall not be liable for any claim, damage, loss, or other cause of action, and hereby waives any and all claims related to any service outage and/or inability to dial 911 or any other emergency telephone number using TeleVoIPs or to access an emergency service operator due to the 911 dialing characteristics and limitations set forth in this Agreement. Customer agrees to defend, indemnify, and hold harmless TeleVoIPs, its officers, directors, employees, affiliates and agents and any other third party service provider who furnishes Services to Customer in connection with the Services, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of, directly or indirectly, or resulting from Customer’s, or any third party or user of the Service, (a) failure to correctly activate 911 calling; (b) provision to TeleVoIPs of incorrect information in connection with your 911 calling or service; (c) misrouted 911 or E911 calls; or (d) the absence, failure or outage of the Service, Customer including those related to 911 dialing and/or inability of any user of your Service to be able to dial 911 or to access emergency service personnel.
TELEVOIPS URGES YOU TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES SUCH AS TRADITIONAL TELEPHONES AND CELLULAR PHONES. YOU SHOULD ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 OR E911 SERVICES.
To provide the Services, TeleVoIPs may provide Equipment to Customer. All Equipment shipments are Freight on Board, (F.O.B.) TeleVoIPs facility. TeleVoIPs liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to Customer upon delivery to carrier. Customer will be provided the manufacturer’s warranty from the date of purchase of Equipment or Services. Customer shall be required to obtain authorization from TeleVoIPs to return any Equipment. TeleVoIPs will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. TeleVoIPs will not cover replacement for lost, stolen or modified Equipment. Equipment returned by Customer that is not covered under warranty may be refused by TeleVoIPs, and Customer will be responsible to pay return shipping charges. Any original manufacturer, and not TeleVoIPs, shall be responsible for any equipment defects, if equipment is from a third party supplier or a resell. In such case, TeleVoIPs shall have no liability to Customer of any nature regarding such equipment.
8. CUSTOMER DATA.
Customer hereby grants to TeleVoIPs a non-exclusive, non-transferable (except in connection with an assignment of this Agreement) license to copy, store, record, transmit, display, view, print, and use Customer Data, solely to the extent necessary to provide the Services to Customer. Except as expressly provided in this Section, Customer grants to TeleVoIPs no right, title, interest, or license in the Customer Data, and Customer hereby reserves for itself and its licensors all rights in and to all Customer Data.
9. BILLING, CHARGES AND PAYMENT.
9.1. Payment of Service Fees.
Customer will pay the Service Fee for Services ordered by Customer, and all other amounts due under this Agreement, pursuant to the terms of this Section 9.
9.2. Credit Terms.
All Services provided to Customer and covered by the Agreement shall at all times be subject to credit approval or review by TeleVoIPs. Customer will provide such credit information or assurance as is requested by TeleVoIPs at any time. TeleVoIPs, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit.
9.3. Billing and Early Termination Fee.
(a) Billing. TeleVoIPs will provide Customer with a monthly on-line and emailed billing statement for the Services provided each calendar month and bill all charges invoiced to Customer’s account. Such charges shall include monthly recurring charges (“ Service Fees”), and other nonrecurring charges including but not limited to, activation fees, porting fees, early termination fees (“ETF”), shipping charges, disconnection fees, Equipment charges, toll charges, taxes, government mandated pass through fees such as E911 fees, and any other applicable charges (“Fees”). Service Fees are paid in advance of each month’s service; toll charges and any other applicable charges are billed subsequent to the end of each month’s service. Billing for monthly Service Fees commences upon ordering of the Services and the first month’s monthly Service Fee shall be prorated to take into account any partial calendar month that may occur as the result of the date monthly service fees are initiated.
(b) Early Termination Fee. If Customer’s Service is terminated for nonpayment or other default before the end of the Service commitment/Contract Period, or if Customer terminates Service for any reason other than: 1) in accordance with the Termination Notice provisions above; or 2) pursuant to the Change of Terms, conditions or rates as set forth below in 9.7, Customer agrees to pay TeleVoIPs with respect to each line or extension assigned, in addition to all other amounts owed, an ETF in the amount equal to the remaining due on the life of the contract. Additional Termination fees may be assessed if the account is closed prior to the term obligation as set forth in the Customer Service Order. Customer agrees that The Early Termination Fee is not a penalty, but rather a charge to compensate TeleVoIPs for Customer’s failure to satisfy the Service commitment/Contract Period which Customer’s rate plan is based.
If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment, TeleVoIPs may suspend or terminate the Services without notice and all accrued charges shall be immediately due, plus any applicable late charge of an additional 5% (or $10, whichever is greater) per month if your payment is more than fifteen (15) days past due. TeleVoIPs shall have no liability for accounts suspended for failure to pay, and suspended accounts may be reactivated, at TeleVoIPs sole discretion, only when the account balance is paid in full and a reactivation fee of $50.00 is paid. No suspension or termination of the Services or of this Agreement shall relieve Customer from paying any amounts already due hereunder.
Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility, universal service or other similar taxes. All such taxes shall be paid by Customer and will be added to any amounts otherwise charged to Customer unless Customer provides TeleVoIPs with an appropriate exemption certificate. If any amounts paid for the Services are refunded by TeleVoIPs, applicable taxes may not be refundable.
9.6. Regulatory Recovery Fee.
A regulatory recovery fee may be charged monthly to offset costs incurred by TeleVoIPs in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The regulatory recovery fee will apply to every phone number assigned, including toll free and virtual numbers.
9.7. Rate Changes.
TeleVoIPs may change the prices for the Services and toll charges from time to time. In the event of a change in prices or toll charges, TeleVoIPs will email all Customers of the change. International toll calling rates are updated monthly on the first of each month and no other notice shall be provided for changes to international toll calling rates. The Service Fees effective upon any renewal of the Agreement shall be TeleVoIPs then-current Service Fees for the applicable Services.
Customer acknowledges and agrees that the Services will not be available 100% of the time. Credit allowances for interruption of the Services shall not be provided.
From time to time in its sole discretion, TeleVoIPs may offer promotions or discounts of activation or other fees. Any promotion or discount codes must be provided to TeleVoIPs upon purchase of the Services. Customer shall not be entitled to a subsequent credit for such promotions or discounts, if not requested at the time of account creation or change of service. Promotions and/or discounts may not be used cumulatively or be used for Services retroactively.
9.10. Billing Discrepancies.
Customer must dispute any billing discrepancies for the Services in writing to TeleVoIPs within thirty (30) days of the date of the invoice or bill by TeleVoIPs. If Customer fails to provide a written statement disputing the charges and setting forth specific reasons and supporting documentation of same within such time, Customer accepts all charges within and waives any and all objections and further recourse with regard to such charges. Written statements disputing charges must be sent to: Billing Department, TeleVoIPs LLC, 1723 S Kings Ave., Brandon, FL, 33511 or [email protected]
10. TOLL CHARGES.
Every call to or from Equipment using the Services that originates or terminates in the Public Switched Telephone Network (“PSTN”), including other VoIP networks, is subject to the then applicable toll charges that are associated with the Service Plan, which TeleVoIPs will include in bills and Customer will pay. Calls to a phone number outside the United States and Canada to a non-TeleVoIPs telephone number will be charged at the current rates published on the TeleVoIPs rates sheet mailed or emailed to all Customers. The duration of each call is to be calculated in one-minute increments and rounded up to the nearest one-minute increment for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent. If the computed charges for taxes and surcharges include a fraction of a cent, the fraction is rounded up to the nearest whole cent. When Customer dials an international PSTN phone number, charges may apply regardless of whether the party on the other line answers the call. Calls made by a Customer to an international mobile, rather than landline, or premium rate telephone number, may result in higher toll charges.
11. NUMBER PORTING AND AVAILABILITY.
TeleVoIPs will use reasonable efforts to facilitate number transfers or port requests for Customer provided that Customer shall comply with the necessary and specific procedures for porting between service providers.
Customer acknowledges and understands that number porting depends on the cooperation of third parties outside of TeleVoIPs’s control. Accordingly, Customer agrees that TeleVoIPs will not be liable for the failure or delay of any third party to cooperate in the porting of any telephone number, or for the allegedly unauthorized porting of any telephone number by a third party.
TeleVoIPs works with third party carrier(s) who, on TeleVoIPs’s behalf, port telephone numbers in accordance with applicable Regulatory Rules and Industry Guidelines. TeleVoIPs’s third-party carrier(s) require very specific and detailed information and requirements when completing a port request. Please be informed that providing such detailed and specific information to complete a port request is required.
Number porting is defined and regulated by the Federal Communications Commission (FCC). Visit http://www.fcc.gov/cgb/NumberPortability to learn more about number porting.
TeleVoIPs cannot guarantee requested telephone numbers will be available, that Customer’s existing provider will port Customer’s number, or that circumstances beyond our control will not prevent or delay a successful port of your number for the Services. Customer should not order any printed material, such as business cards or stationery, showing a telephone number, or issue any press releases or otherwise publicize any telephone number until that telephone number has ported to TeleVoIPs. TeleVoIPs shall not be liable for reimbursement for press releases, business cards, and/or stationery under any conditions.
12. MONITORING SERVICES USE.
Customer agrees that TeleVoIPs is entitled to monitor Customer’s use of Service, at TeleVoIPs expense.
13. LOST, STOLEN, ALTERED OR BROKEN LEASED or RENTED EQUIPMENT.
Customer shall not modify the Equipment in any way without the express written permission of TeleVoIPs. Customer shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, Customer is responsible for all lost, stolen or broken leased or rented Equipment and may be required to purchase a replacement to continue to receive Services. Replacement charges will be based on the fair retail price of Equipment, plus applicable shipping costs and taxes. Customer shall immediately notify TeleVoIPs of any lost or stolen Equipment and shall cooperate with TeleVoIPs in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At TeleVoIPs sole option, failure to report lost or stolen Equipment in a timely manner will cause Customer to be responsible for all Service Fees accrued until the time that TeleVoIPs is informed of the loss or theft and TeleVoIPs is entitled to terminate the Services and Agreement following Customer’s breach of this Section.
14. PROHIBITED USES.
Any use of the Services or any other action that causes a disruption in the network integrity, or threatens or compromises the security of TeleVoIPs, its vendors, or the Services whether directly or indirectly, is strictly prohibited and permits TeleVoIPs to terminate the Services and the Agreement without prior notice at the sole discretion of TeleVoIPs. Customer acknowledges that neither TeleVoIPs nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. Customer will NOT use the Services in ways that violate applicable laws (including but not limited to laws prohibiting transmission of unsolicited fax advertisements or laws on obtaining third party consent for call recording), infringe the rights of others, or interfere with the users, Agents, Services, or Equipment of the network. Customer agrees, represents, and warrants that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or charge for the Services or the Equipment without the advance express written permission of TeleVoIPs. TeleVoIPs Service Plans for Customers that offer unlimited minutes of PSTN calls (“Unlimited PSTN Plans”) or unlimited faxing are for reasonable business use of Customer only. Such use shall not include certain activities including, but not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing (including without limitation charitable or political solicitation or polling), call center operations, junk faxing, fax spamming, calling/faxing any person (through the use of distribution lists or otherwise) who has not given specific permission to be included in such a process or any other activity that would be inconsistent with reasonable business usage. Customer will not use the Services to send unsolicited commercial e-mail to recipients outside Customer’s organization. Customer shall not transmit through the Services any unlawful communications or material of any kind or nature. Customers further agree not to transmit any material that encourages conduct that could constitute a criminal offense, violate the intellectual property rights of others, give rise to civil liability or otherwise violate any applicable local, state, national or international statute, regulation, or other law. Any use found to be inconsistent with this restriction will result in termination of the Services. TeleVoIPs reserves the right to immediately terminate or modify the Services of any Customer using Unlimited PSTN or fax Service Plan if TeleVoIPs determines, in its sole discretion, that Customer is not using the Unlimited PSTN or fax Services Plan for Customer’s reasonable business use.
15. USE, STORAGE AND OTHER LIMITATIONS.
TeleVoIPs reserves the right to establish or modify general practices and limits concerning use of the Services and Software, including without limitation, the maximum number of days that content will be retained by the Service, the maximum disk space and/or bandwidth capacity that will be allotted on servers owned and/or operated by TeleVoIPs on Customer’s behalf, if any. Where practical, TeleVoIPs will provide the Customer with prior notice of such new or modified practices; provided however, that TeleVoIPs shall have the absolute right to implement such new or modified practices without prior notice in its sole discretion and without liability or any kind.
16. ELECTRONIC RECORDING.
Customer acknowledges and understands that there are federal and state statutes governing the electronic recording of telephone conversations and that TeleVoIPs will not be liable for any illegal use of the service. Because Customer circumstances vary widely, Customers should carefully review their own circumstances when deciding whether to use the recording features of the service and it is the Customer’s responsibility to determine if the electronic recordings are legal under applicable federal and state laws. TeleVoIPs is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or the use of its products by the Customer, whether legal or illegal, and Customer will defend, indemnify and hold TeleVoIPs harmless for any claims, damages, fines, or penalties arising out of Customer’s failure to adhere to applicable electronic recording laws.
17. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF CUSTOMER COMMUNICATIONS.
Customer is solely responsible for maintaining the confidentiality of Customer’s Phone and Voicemail Login and passwords, and will not transfer Login, email address or password, or lend or otherwise transfer use of or access to the TeleVoIPs Services, to any third party. Customer is solely responsible for any and all activities that occur under Customer’s account. Customer will comply with applicable foreign, federal, state, and local law in its use of the Services, including but not limited to laws regarding online behavior, acceptable content, and the transmission of equipment and information under applicable export laws. Recognizing the global nature of the Internet, Customer also agrees to comply with applicable local rules or codes of conduct (including, if applicable, codes of conduct or policies imposed by employers) regarding online behavior and acceptable content. Use of the Services is void where prohibited. Customer will immediately notify TeleVoIPs of any unauthorized use of Customer’s account or any other breach of security related to Customer’s account or the TeleVoIPs Services, and to ensure that Customer completes a “log off”/exit from Customer’s account (if applicable) at the end of each session. TeleVoIPs is not liable for any loss or damage arising from Customer failure to comply with any of the foregoing obligations. In consideration for using the TeleVoIPs Services, Customer will: (1) provide certain current, complete, and accurate information about Customer when prompted to do so by the TeleVoIPs Services, and (2) maintain and update this information as required to keep it current, complete and accurate. Customer warrants that any such information will be accurate. Customer agrees that Customer is solely responsible for the content of all visual, written or audible communications (“Content”) sent by Customer or displayed or uploaded by Customer in using the Services. Although TeleVoIPs is not responsible for any such communications, TeleVoIPs may delete any such communications of which TeleVoIPs becomes aware, at any time without notice to Customer. Customer retains copyright and any other rights already held in content that Customer submits, posts or displays on or through, the Services. Customer understands and agrees that by displaying, exchanging or uploading Content to a TeleVoIPs website, transmitting Content using the Services or otherwise providing Content to TeleVoIPs, Customer automatically grant (and warrant and represent Customer has a right to grant) to TeleVoIPs a world-wide, royalty-free, sub-licensable (so TeleVoIPs affiliates, contractors, resellers and partners can deliver the Services) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Services, including associates websites (“Sites”).
18. RESPONSIBILITY FOR CONTENT OF OTHERS.
Customer acknowledges that Agents or other users of the Services (“Users”) may violate one or more of the above prohibitions, but TeleVoIPs assumes no responsibility or liability for such violation. If Customer becomes aware of misuse of the Services by any person, please contact TeleVoIPs Customer Support at 1-844-813-VoIP. TeleVoIPs may investigate any complaints and violations that come to its attention and may take any action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User or Agent profiles and/or Login. However, because situations and interpretations vary, TeleVoIPs also reserves the right not to take any action. Under no circumstances will TeleVoIPs be liable in any way for any data or other content available on a Site, viewed or actions taken while using the Services, including, but not limited to, any errors or omissions in any such data, content or activity or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data, content or activities incurred from the actions taken on a Site. TeleVoIPs does not endorse and has no control over what Users or Agents post, submit to or do on a Site. Customer acknowledges that TeleVoIPs cannot guarantee the accuracy of any information submitted by any Agent or User of a Site, nor any identity information about any Agent or User. TeleVoIPs reserves the right, in its sole discretion, to reject posting or other data, or to restrict, suspend, or terminate any User’s or Agent’s access to all or any part of Services or any Site at any time, for any material that violates or the attempted violation of the terms of this agreement, with or without prior notice, and without liability. TeleVoIPs reserves the right to investigate and take appropriate action against anyone who, in TeleVoIPs sole discretion, is suspected of violating this Agreement, including without limitation, reporting Customer or any User to law enforcement authorities.
19. CHANGES TO THE AGREEMENT, SERVICES OR SERVICE PLAN.
TeleVoIPs reserves the right to make changes to the terms and conditions of these Terms and Conditions and/or the Services (“Change of Service”) at any time. In the event of a Change of Service, TeleVoIPs will mail or email all Customers the changes. Customer may request a Service Plan change at any time by emailing or mailing TeleVoIPs in accordance with Section 35 below. The Service Plan change will take effect in the first month after the Service Plan is changed. For a Service Plan change to a plan that requires a purchase of the Equipment, an equipment charge will apply.
19.1. Notice of Changes.
Notice will be considered received by Customers and such changes will become binding to Customers, on the date the changes are posted to http://www.TeleVoIPs.com or other websites owned and managed by TeleVoIPs (“Change Date”) and emailed and/or mailed to Customer, and no additional notice will be required. Customer agrees that mail or email notice shall be sufficient by stating “Notice of Change to Terms and Conditions of Service” either in the regarding section of a letter or in the subject line of an email, and that it is Customer’s responsibility thereafter to ensure Customer reads the changes posted on TeleVoIPs website or request the Terms and Conditions. If Customer does not send TeleVoIPs notification of their desire to terminate the Agreement or uses the Services after the Change Date, Customer is deemed to have accepted and consented to the change of terms and conditions of the Service. If Customer does not consent to the change of service and terminates this agreement, Customer will be responsible for any sums due hereunder in addition to any applicable Disconnection Fee.
20. PERSONAL INFORMATION AND PRIVACY.
21. RETURNS AND ADJUSTMENTS.
No Equipment may be returned by Customer for any reason without prior approval of TeleVoIPs. All returns shall be in original packaging or equivalent. Customer shall be responsible for all costs related to shipping to TeleVoIPs any Equipment that is being returned. Any Equipment returned to TeleVoIPs without prior authorization for its return or proper packaging may be refused. In order to obtain an appropriate refund, upon cancellation Customer must immediately obtain a return material authorization number from TeleVoIPs, return to TeleVoIPs any Equipment provided hereunder, undamaged and in good working condition, in its original packaging and with its original content or otherwise will be immediately responsible for paying to TeleVoIPs an amount equal to the fair retail price of the equipment minus any payments Customer had previously paid specifically for such Equipment.
22. TECHNICAL SUPPORT.
TeleVoIPs provides technical support to Customers via telephone and e-mail for the Services and the Equipment provided hereunder. Support for other applications and uses is not provided or implied and except as stated in this Section, TeleVoIPs has no obligation to provide additional technical support. TeleVoIPs will provide 24x7x365 support and respond in accordance with the priority chart listed in section 22.7 below.
22.2. Service Support and Hours of Support.
The TeleVoIPs Help Desk is fully staffed between the hours of 8:00am and 6:00pm EST Monday through Friday except on major US holidays. Calls after 6:00pm and before 8:00am Monday through Friday, major US holidays, as well as the weekends, will be forwarded to afterhours support staff and/or voicemail and the ticket will be created the next business day.
22.3. Contacting Support.
Call the Service Desk at 844-813-VoIP, email the Service Desk at [email protected] or login to our web portal to submit a support request.
22.4. Incidents and Service Requests and Ticket Creation.
Any critical Incident or Service Request should be initiated by calling the TeleVoIPs Help Desk. If a critical Incident or Service Request is initiated by email, it must be followed up with a telephone call to the Help Desk to ensure proper prioritization. When sending an email, summarize the nature of the Incident or Service Request in the Subject field. Upon creation of a ticket, the Customer will automatically receive through email a Receipt Confirmation with the ticket or reference number. This confirmation denotes that the Incident or Service Request has been logged at the TeleVoIPs Help Desk and that it is being assigned to a work group. The Customer is responsible for ensuring that their email address is provided to the TeleVoIPs Help Desk for update and resolution notification purposes.
22.5. Ticket Prioritization.
The TeleVoIPs Help Desk assigns a Priority to every Incident or Service Request that is initiated. The TeleVoIPs Prioritization Model is used to ensure a consistent approach to defining the sequence in which an item needs to be resolved and to drive the assignment of resources. The Priority assigned to a ticket depends upon the Impact on the business, size, scope and complexity of the Incident, the Urgency to the business, time within which resolution is required, the resource availability, and the expected effort in resolving or completing a task.
22.6. Service Priorities.
TeleVoIPs will make commercially reasonable efforts to resolve the problem on the first callback; however, in the event of a complex problem we have established the following service levels:
1. Initial Response defines the amount of time we allow for our support staff to call back after your call is entered into the system.
2. Resolution/Escalation defines the amount of time we allow to resolve the problem, to escalate it or pass it to a third party. This service level is measured from the time of our Initial Response. In the event of a company emergency, failure of a third-party, natural disaster, or other event outside of our control, these service levels may be extended.
22.7. Priority Chart.
Business Hours Priority Chart (8am – 6pm EST Mon – Fri):
Hard outage – there is complete loss of VoIP Service or severe service degradation that results in Customer’s inability to receive any inbound calls and/or complete any outbound calls.
Intermittent Outage – Jitter, Packet Loss, or other degradation to Quality of Service.
Isolated Outage – Calls failing or degraded to a single DID or LATA.
MAC (Moves, Adds, and Changes) Requests– Adding New Extensions, updating Call Flow, and other system changes that do not impact the serviceability to the client.
After Hours Priority Chart:
Hard outage – there is complete loss of VoIP Service or severe service degradation that results in Customer’s inability to receive any inbound calls and/or complete any outbound calls.
Intermittent Outage – Jitter, Packet Loss, or other degradation to Quality of Service.
Isolated Outage – Calls failing or degraded to a single DID or LATA.
23. SERVICE LEVEL AGREEMENT (Voice over IP)
23.1. Service Level Agreement. This Service Level Agreement (“SLA”) is between the Customer and TeleVoIPs, LLC. (“TeleVoIPs”) as relates to TeleVoIPs Voice over IP (“VoIP”) Services. TeleVoIPs agrees that it will make all commercially reasonable efforts to meet the minimum service levels set out in this SLA throughout the service period.
23.2 Target for Availability. The target available time for the Services provided by TeleVoIPs to the Customer is equal to 99.999% of the time in a calendar month. Availability is calculated by dividing the measured available time by the total time in a calendar month, expressed as a percentage. The measured available time is the total time in a calendar month less the measured unavailable time. Subject to any other terms in this SLA, the Services are deemed to be unavailable to the Customer when the Services are fully interrupted, or fail to meet designated specifications as contemplated in this SLA, such that the Services cannot be accessed or used by the Customer (an “Outage”), but excluding any such circumstances arising as the result of any event contemplated in paragraphs 23.5 and 23.6 of this SLA.
23.3. Calculation of Measured Unavailable Time. The measured unavailable time starts upon notification of an Outage by the Customer to TeleVoIPs by telephone and the release of the affected Service by the Customer to TeleVoIPs for testing and repair. The measured unavailable time ends when the affected Service is restored. TeleVoIPs will notify the Customer by telephone and the Customer will confirm that the affected Service has been restored. Additional time taken by the Customer to perform confirmation testing is not included in the measured unavailable time if the Service is in fact restored.
23.4. Target Mean Time to Repair (MTTR). Mean Time to Repair (MTTR) is defined as the total network outage time for all trouble tickets in a measured month divided by the number of tickets. The target MTTR is four (4) hours following receipt of a Service Call from the Customer.
23.5. Service Level Exemptions. Degradation in the performance of the Services and unavailable time shall not be included for the purposes of determining whether the Services meet the Minimum Service level, or for calculating measured unavailable time if such degradation or unavailable time arises from:
(i) Scheduled Maintenance or other service interruptions agreed to by the Customer for the purpose of allowing TeleVoIPs to upgrade, change, implement an order, maintain, or repair the Service;
(ii) Directly or indirectly as the result of the acts or omissions of the Customer, any person for whom the Customer is legally responsible, or any person using the Services;
(iii) failure of Customer Premise Equipment (CPE), or Customer’s internal networking infrastructure, or systems not provided, or under the control or direction of TeleVoIPs including equipment or systems TeleVoIPs may obtain or contract for at the request of the Customer, or the failure of local carrier’s infrastructure on which TeleVoIPs Services are delivered (and, in the event of a degradation in the Services below the Minimum Service level or an Outage occurring as the result of such circumstances TeleVoIPs will co-ordinate with the provider to remedy such failure as quickly as possible);
(iv) Any failure by the Customer to afford access to any location for which the Customer is responsible, or to any facilities required by TeleVoIPs for the purpose of investigating and correcting a degradation in the Services or an Outage;
(v) Failure of connections or Services not provided by TeleVoIPs (i.e. Power Utilities and Internet Service Providers).
23.6. Scheduled and Unscheduled Maintenance. Scheduled Maintenance means any maintenance activities performed by TeleVoIPs on the network or switching equipment to which the Customer is connected, provided that Customer shall be given at least 48 hours advance notice of such maintenance activities. Such activities are typically performed outside of Customer’s business operating hours and during the standard maintenance window between 00:01 am and 6:00 am Eastern Standard Time (EST). Notice of scheduled maintenance shall be given to Customer’s designated Change Management (“CM”) Single Point of Contact (“SPOC”) by a method elected by TeleVoIPs (telephone or e-mail). The Customer may change its CM SPOC upon reasonable advance written notice to TeleVoIPs. Unscheduled maintenance means any maintenance activities performed on the TeleVoIPs network to which Customer’s facilities are connected as a result of a Threat or an Emergency. A Threat is defined as a situation or condition that would not normally cause an outage to a Customer but introduces a very low risk to Services or may lead to a brief service interruption. Examples include optical cable splicing, contractor working near fiber cables and digging within ten feet of fiber cable. In the case of a Threat TeleVoIPs will strive to provide Customers with three business days advance notice. In the event of an Emergency (defined as unplanned critical repairs, acts of vandalism and/or nature that has caused or could cause a degradation or interruption of service) TeleVoIPs will make best efforts to provide Customers with short-term notice and an estimated time to repair.
24. ATTORNEY’S FEES.
Any Party who commits a breach of the terms of this Agreement, including without limitation, failure to pay any sum due hereunder, shall be obligated to reimburse the other non-breaching party for all attorneys’ fees and court, collection and other costs incurred by non-breaching party in the enforcement of its rights hereunder and, in any case where TeleVoIPs is the non-breaching party, TeleVoIPs may keep any deposits or other payments made by Customer.
CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD TELEVOIPS, AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, AND VENDORS HARMLESS FROM AND AGAINST ANY LOSSES, CLAIMS,DAMAGES, FINES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE REQUIREMENTS SET FORTH IN THE COMPLIANCE WITH LAWS SECTION OF THIS AGREEMENT.
26. MANDATORY ARBITRATION.
PLEASE READ THIS CAREFULLY, IT AFFECTS YOUR RIGHTS. IT IS IMPORTANT YOU READ THIS ENTIRE SECTION WITH CARE. THIS SECTION PROVIDES FOR MANDATORY RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTION LAWSUITS ARE NOT PERMITTED.
26.1. ARBITRATION PROCEDURES.
EXCEPT AS SET FORTH BELOW, CUSTOMER AND TELEVOIPS AGREE TO ARBITRATE ANY AND ALL DISPUTES OR CLAIMS IN ANY WAY RELATED TO OR ARISING OUT OF THIS AGREEMENT, ANY BREACH OF THIS AGREEMENT, OR THE PROVISION OF SERVICES OR PRODUCTS TO CUSTOMER, INCLUDING ANY BILLING DISPUTES (COLLECTIVELY, “CLAIMS”). CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION ADMINISTERED BY AMERICAN ARBITRATION ASSOCIATION (“AAA”). JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THIS AGREEMENT TO ARBITRATE ALSO REQUIRES CUSTOMER TO ARBITRATE CLAIMS AGAINST OTHER PARTIES RELATING TO SERVICES OR PRODUCTS PROVIDED OR BILLED TO CUSTOMER IF CLAIMS ARE ASSERTED AGAINST TELEVOIPS IN THE SAME PROCEEDING. ARBITRATION WILL BE CONDUCTED UNDER THE AAA’S PUBLISHED COMMERCIAL ARBITRATION RULES. THE AAA RULES AND PROCEDURES ARE AVAILABLE AT: HTTP://WWW.ADR.ORG OR BY CALLING THE AAA AT 1-800-778-7879. CUSTOMER AND TELEVOIPS AGREE TO BEAR ALL THEIR OWN FEES, COSTS, AND EXPENSES, INCLUDING BUT NOT LIMITED TO, THOSE FOR ANY ATTORNEYS, EXPERTS, AND WITNESSES. THE EXCLUSIVE PLACE OF ARBITRATION SHALL BE IN HILLSBOROUGH COUNTY, FLORIDA. THE LANGUAGE OF THE ARBITRATION SHALL BE ENGLISH.
26.2. PREFILING NOTICE OF CLAIM.
BEFORE INSTITUTING ARBITRATION OR SUIT, CUSTOMER WILL PROVIDE TELEVOIPS WITH AN OPPORTUNITY TO RESOLVE THE CLAIM BY SENDING A WRITTEN DESCRIPTION OF THE CLAIM TO TELEVOIPS AT THE ADDRESS AND EMAIL ADDRESS BELOW. A NOTICE OF CLAIM/NOTICE OF DISPUTE MUST DESCRIBE THE NATURE AND BASIS OF THE DISPUTE OR CLAIM AND SET FORTH THE SPECIFIC RELIEF SOUGHT. IF TELEVOIPS IS NOT ABLE TO RESOLVE THE CLAIM WITHIN 30 DAYS OF RECEIPT OF NOTICE, THEN CUSTOMER OR TELEVOIPS MAY INITIATE ARBITRATION OR SUIT AS DESCRIBED IN SECTION 26.1. ALL CLAIM NOTICES MUST BE SENT BY CERTIFIED MAIL AND OR OVERNIGHT EXPRESS DELIVERY WITH VERIFICATION SHOULD BE SENT TO: (IF TELEVOIPS: DIRECTOR OF CUSTOMER SERVICE TELEVOIPS, LLC. 1723 S Kings Ave., Brandon, FL, 33511 OR [email protected]; IF CUSTOMER: LAST MAILING ADDRESS YOU REGISTERED WITH TELEVOIPS. CUSTOMER WILL NOT DEMAND ARBITRATION OR FILE SUIT UNLESS CUSTOMER FOLLOWS THE FOREGOING PROCEDURES IN THIS SECTION 26.2 AND THIS SECTION 26.2 MAY BE PLEADED AS A FULL AND COMPLETE BAR AND DEFENSE TO, AND MAY BE USED AS A BASIS FOR AN INJUNCTION AGAINST, ANY ARBITRATION, ACTION, SUIT, OR OTHER PROCEEDING INSTITUTED IN BREACH OF THIS SECTION. THE AMOUNT OF ANY SETTLEMENT OFFER MADE BY CUSTOMER OR TELEVOIPS SHALL NOT BE DISCLOSED TO THE ARBITRATOR UNTIL AFTER THE ARBITRATOR DETERMINES THE AMOUNT, IF ANY, TO WHICH CUSTOMER OR TELEVOIPS IS ENTITLED.
26.3. TIME LIMITATION/STATUTE OF LIMITATIONS.
CUSTOMER AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY SUIT OR ARBITRATION ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THE AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER THE EARLIER OF (A) WHEN SUCH CLAIM OR CAUSE OF ACTION AROSE OR (B) TERMINATION OF SERVICES TO CUSTOMER, OR BE FOREVER BARRED.
26.4. PERSONAL JURISDICTION.
TO THE EXTENT COURT ACTION IS INITIATED TO ENFORCE AN ARBITRATION AWARD OR FOR ANY OTHER REASON CONSISTENT WITH SECTION 26, CUSTOMER AND TELEVOIPS AGREE TO SUBMIT TO THE PERSONAL AND EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS WITHIN HILLSBOROUGH COUNTY, FLORIDA, AND WAIVE ANY OBJECTION AS TO VENUE OR INCONVENIENT FORUM IN SUCH COURTS.
26.5 WAIVER OF JURY TRIAL.
THE PARTIES AGREE THAT, BY ENTERING INTO THIS AGREEMENT, BOTH PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BY JURY.
26.6 WAIVER OF CLASS ACTION.
THE PARTIES AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. CUSTOMER AND TELEVOIPS AGREE THAT THEY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE PARTIES AGREE THAT, UNLESS AGREED IN WRITING OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
TeleVoIPs warrants that the Services will substantially conform to the Documentation during the term of this Agreement. TeleVoIPs will use commercially reasonable efforts to pass through to Customer manufacturers’ warranties on equipment.
28. DISCLAIMER OF WARRANTY.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 27 OF THIS AGREEMENT, THE PRODUCTS AND OTHER SERVICES PROVIDED HEREIN ARE PROVIDED “AS IS” AND TELEVOIPS MAKES NO WARRANTIES OF ANY KIND AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. CUSTOMER ASSUMES THE ENTIRE RISK ARISING OUT OF THE USE OF THE SERVICES. NEITHER TELEVOIPS NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO TELEVOIPS OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF TELEVOIPS OR ITS VENDORS’ NEGLIGENCE. NEITHER TELEVOIPS NOR ITS VENDORS WILL BE LIABLE FOR MALFUNCTIONS OR FAILURES RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION, IMPROPER INSTALLATION, OR REPAIRS BY ANYONE OTHER THAN TELEVOIPS. NEITHER TELEVOIPS NOR ITS VENDORS WILL BE LIABLE FOR DELAYS OR INTERUPTIONS IN ACCESS TO OR USE OF THE SERVICES RESULTING FROM CUSTOMER’S EQUIPMENT, USE OF THE INTERNET, OR TELECOMMUNICATIONS SYSTEMS NOT UNDER TELEVOIPS CONTROL, AND TELEVOIPS SHALL HAVE NO LIABILITY FOR ANY SUCH DELAYS OR INTERRUPTIONS. NEITHER TELEVOIPS NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED USE OR MISUSE OF ANY PATENT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY OF CUSTOMER OR ANOTHER AND DOES NOT GUARANTEE NONINFRINGEMENT. TELEVOIPS DOES NOT ENDORSE, WARRANT, OR GUARANTEE ANY CONTENT PROVIDED BY OR THROUGH TELEVOIPS, ITS AGENTS OR VENDORS.
29. LIMITATIONS OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TELEVOIPS OR ITS VENDORS BE LIABLE (WHETHER IN TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE ,CONSEQUENTIAL DAMAGES OR FOR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE SERVICES OR PRODUCTS PROVIDED HEREUNDER, OR ANY OTHER PECUNIARY LOSS, TELEVOIPS ARISING OUT OF THIS AGREEMENT. IN NO EVENT SHALL TELEVOIPS TOTAL LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID BY CUSTOMER TO TELEVOIPS (OR PREDECESSORS OR AFFLIATES) IN THE PRIOR TWELVE (12) MONTHS FROM DATE OF CLAIM.
30. EXCLUSIVE REMEDY.
CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WHICH TELEVOIPS SHALL BE ENTITLED TO ELECT, IN THEIR SOLE BUT REASONABLE DISCRETION, IS: REPAIR, REPLACEMENT, CREDIT, REFUND, OR IMMEDIATE CANCELLATION OF THE SERVICES. TELEVOIPS MAY ELECT TO PROVIDE A REFUND IN LIEU OF CREDIT, REPLACEMENT OR REPAIR.
31. EXPORT COMPLIANCE.
Customer agrees to comply with U.S. export laws, and applicable export laws that apply in Customer’s location(s), concerning the transmission of technical data and other regulated materials via the Services.
32. WEB PORTAL DISCONTINUANCE.
Upon expiration, cancellation or termination of the Services, Customer shall relinquish and discontinue use of any Logins and/or web portals Sites assigned to Customer by TeleVoIPs or its vendors.
Certain Software is protected by copyright law and international treaty provisions. The Software is subject to the terms and conditions in licenses of third parties, and TeleVoIPs will use commercially reasonable efforts to pass through licenses for Software sublicensed to Customer in providing TeleVoIPs Services. Customer has no right to inspect, possess, use, copy, or attempt to discover the source code (or any portion thereof) used to create any Software, except to the extent that Customer is expressly permitted to decompile the Software under applicable law and Customer notifies TeleVoIPs of Customer’s intention to decompile the Software and Customer’s reason to do so.
Any provision of this Agreement which imposes an obligation after termination or expiration of this Agreement, or which by its nature is intended to survive under law, shall survive the termination or expiration of this Agreement.
35. METHOD OF NOTICES.
TeleVoIPs communicates with Customers primarily via email. Notices to Customer shall be sent to the email address specified by Customer at the time Customer ordered the Services or as subsequently specified by Customer (“Email Address”). Customer is responsible for notifying TeleVoIPs of any Email Address changes. Except as otherwise specifically set forth herein, Customer agrees that sending a message to the Email Address is the agreed upon means of providing notification, and Customer specifically waives any right to receipt of all Notices hereunder by mail. Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that Customer read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided hereunder. All notices and communications required or permitted to be sent to TeleVoIPs under this Agreement shall be in writing and sent to the following address or email address: Director of Customer Service, TeleVoIPs LLC, 1723 S Kings Ave., Brandon, FL, 33511 or [email protected]
36. CONSENT TO USE OF ELECTRONIC SIGNATURES AND RECORDS.
TeleVoIPs may provide access to its Services online which may require you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree that by clicking “I Agree” or “I Accept” anywhere on the TeleVoIPs website:
36.1 You agree to conduct electronically the particular transaction into which you thereby enter including, without limitation, entering into this Agreement;
36.2 You have read and understand the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, and any policies and any amendments hereto or thereto;
36.3 You agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter;
36.4 You are capable of printing or storing a copy of electronic records of transactions into which you enter including without limitation, this Agreement and any amendments hereto; and,
36.5 You agree to receive electronically information about the Services and other electronic records into which you thereby enter including, without limitation, this Agreement.
37. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL).
TeleVoIPs shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, earthquake, tsunami, accident, riot, war, terrorism, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties of TeleVoIPs as may occur in spite of TeleVoIPs commercially reasonable efforts.
38. ENTIRE AGREEMENT.
This Agreement shall constitute the entire agreement between us with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. The terms and conditions of the Agreement are in lieu of and replace any and all terms and conditions set forth in any documents issued by Customer, including, without limitation, purchase orders and specifications. The acceptance of any Service Order is expressly made conditional on Customer’s consent to the terms set forth herein and ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY CUSTOMER AT ANY TIME ARE HEREBY OBJECTED TO BY TeleVoIPs, AND ANY SUCH DOCUMENTS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON TELEVOIPS. Except as set forth specifically otherwise herein, no waiver or amendment to this Agreement or these terms and conditions shall be binding on TeleVoIPs unless made in writing expressly stating that it is such a waiver or amendment and signed by an authorized Officer of TeleVoIPs and Customer.
39. GOVERNING LAW.
This Agreement and the relationship between Customer and TeleVoIPs shall be governed by the laws of the State of Florida without regard to conflicts-of-law provisions/principles. By using the Services, you hereby agree that the exclusive jurisdiction for any and all disputes regarding these Terms shall lie in the federal, state, and local courts of Tampa, Florida. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
40. NO WAIVER.
The failure of TeleVoIPs to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
The unenforceability of any provision or provisions of the Agreement shall not render unenforceable or impair its remainder. If any provision of the Agreement is deemed invalid or unenforceable in whole or in part, this Agreement shall be deemed amended to delete or modify, only to the extent as necessary, the invalid or unenforceable provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties, and such decision shall not affect the enforceability of the remaining provision hereof
42. ASSIGNMENT; BINDING EFFECT.
This Agreement is Personal to Customer and Customer shall not assign this Agreement or delegate Customer’s duties hereunder without TeleVoIPs prior written consent, which shall not be unreasonably withheld. TeleVoIPs agrees to provide at least ten (10) days prior written notice to Customer before assigning or delegation any of its duties. This Agreement shall be binding upon the heirs, representatives, successors, and permitted assigns of the Parties. The individual agreeing to this Agreement on behalf of Customer represents that they are authorized to bind Customer under same.
43. HEADINGS AND PLACEMENT.
The headings and organization of such headings or content in this Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of this Agreement.
Revised last on April 7, 2015