|
|||||
|
|||||
 |
Legal - Terms & Conditions
STANDARD TERMS AND CONDITIONS
For use with SmartConference, Smart800, SmartOffice, SmartNumber, SmartMessage, SmartFax. SMARTVOICE TERMS AND CONDITIONS For use with SmartVoice, SmartVoice Express and SmartVoice Plus. DIGITAL PHONE SYSTEM TERMS AND CONDITIONS For use with AccessLine's Digital Phone System. HOME OFFICE PHONE SERVICE (HOPS) TERMS AND CONDITIONS For use with AccessLine's Home Office Phone System. STANDARD TERMS AND CONDITIONS (v122909) (For use with SmartConference, Smart800, SmartOffice, SmartNumber, SmartMessage,SmartFax and SmartPager.) This is an agreement ("Agreement") for enhanced telecommunication and/or long distance services ("Service") between you and AccessLine Communications Corporation and may include Service related to a personal or access number assigned to you ("Number"). Any of the following actions constitutes your agreement, without limitation or qualification, to be bound by, and to comply with, the terms of this Agreement: (i) your initialization of the Service, either on the telephone or web page, through the use of your Number and initial security code, (ii) your registering for Service on our Web page and selecting "I Accept" as part of the registration process, (iii) ordering Service from our sales personnel and providing them with your credit card number and billing information, or (iv) your signature on an AccessLine Enrollment Form.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS ACCESSLINE COMMUNICATIONS CORPORATION AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES AND ANY UNDERLYING CARRIER, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, EXPENSES OR DAMAGES (INCLUDING ATTORNEYS' FEES), WHETHER KNOWN OR UNKNOWN, ARISING FROM (A) YOUR USE OF THE SERVICE, (B) ANY OTHER PERSON'S USE OF ANY ACCOUNT OR PIN YOU MAINTAIN, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED BY YOU, OR (C) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. NOTWITHSTANDING THE FOREGOING, YOU SHALL NOT BE LIABLE FOR CLAIMS, EXPENSES OR DAMAGES ARISING FROM THE INTENTIONAL OR GROSSLY NEGLIGENT ACTS OF ACCESSLINE OR ITS EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; b. a description of the copyrighted work that you claim has been infringed; c. a description of where the material that you claim is infringing is located on our property, servers or site, or otherwise sufficient to enable us to locate such material; d. your address, telephone number, and e-mail address; e. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; f. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on behalf of the copyright owner. The foregoing notice should be directed to: Attn: General Counsel In accordance with the Digital Millennium Copyright Act, it is the policy of AccessLine to terminate, in appropriate circumstances, the Service of any user who is a repeat infringer. However, AccessLine reserves the right to terminate or suspend the Service of a user for only a single infringement, and may or may not, in AccessLine's sole discretion, attempt to contact such user prior to such termination or suspension. SMARTVOICE TERMS AND CONDITIONS (v122909) (For use with SmartVoice, SmartVoice Express and SmartVoice Plus.)
If Customer's business requires the use of equipment that is designed to transmit or receive data over traditional telephony networks, collectively referred to here as Transaction Processing Hardware, Customer should be aware that not all Transaction Processing Hardware nor their related application providers, such as Bank or Credit Card Processing companies, support the use of VoIP. Although adequate service may be achieved in many cases AccessLine cannot recommend or support Customer's use of Transaction Processing Hardware with the Service. If Customer's business requires the use of Facsimile machine(s) (Fax machines) Customer should be aware that both the ISP and/or the Fax machine itself may not be capable of delivering satisfactory Fax operation with VoIP. Some older fax machines are incompatible due to delay sensitivity and therefore AccessLine recommends the use of Fax machines no older than two years. Some ISP services deliver inadequate quality of service to allow for reliable Fax transmission. AccessLine recommends that Customer always check with their fax machine manufacturer and ISP service provider to determine their level of support for fax over VoIP. Customer understands that the use of the Services requires passage through customer’s network firewall. This may introduce exploitable weaknesses. Those customers especially concerned about their security are advised to deploy firewalls specifically designed to enhance security for SIP-based VoIP applications and services. Customer hereby indemnifies AccessLine against any responsibility for damages, consequential or otherwise that arise from such an introduced exploitable weakness. Customer understands that, in the case of SmartVoice Express Service, the public internet is an insecure transmission medium and therefore that a small risk exists for a malicious third party to capture elements of voice conversations transmitted over it. Once decoded it would be possible for those captured elements to be rendered as audio energy and the information within them to be accessed. Customer indemnifies AccessLine from any responsibility for such damage, consequential or otherwise. AccessLine provides secure services through more expensive dedicated bandwidth as a part of the SmartVoice Service.
In the case of SmartVoice Express Service, customer is responsible for all aspects of their working environment or of the access connectivity (Internet connectivity and Local area network) they provide with respect to any quality of service issues to which they may contribute. Should the customer encounter quality of service issues with their SmartVoice Express Service which are not related to the customers working environment or to the access connectivity provided by customer then AccessLine will remedy those issues within 30 days of their being reported. Should AccessLine fail to achieve a remedy within 30 days then the customer will be free to discontinue SmartVoice Express Service without penalty and with a waiver of ongoing contractual commitments. Should reported quality of service issues be determined to be a result of customers provided access connectivity or of their working environment then AccessLine will provide appropriate evidence to support that diagnosis and may provide recommendations as to its repair but the customer will remain responsible for its repair and will be held to the contracted commitments as executed.
DIGITAL PHONE SYSTEM TERMS AND CONDITIONS (v050410) (For use with AccessLine's Digital Phone System.) AccessLine and Customer (the "Parties") agree as follows: 1. Service Description: AccessLine agrees to provide, and Customer agrees to purchase, the "Service", defined to include direct-dialed Voice over IP ("VoIP") calling and certain calling and call management features or advanced features, including additional features or advanced features which may be offered at additional costs, and which AccessLine, in its sole discretion, may add, modify, or delete from time to time. Customer also agrees to purchase either the: · Vertical Xcelerator Phone System, a minimum of one FeaturePhone, and additional Desk Phones and Wireless Adapters as Customer requires (total possible is seventeen Desk Phones attached to seventeen Wireless Adapters). Cordless phones (up to a maximum of three) are an additional option. Customer understands and agrees that they are entering into a Service Agreement for a minimum of one year in accordance with the Term of this Agreement defined below. In order to utilize Digital Phone Service functionality, Customer will install the Vertical Xcelerator Phone System according to the installation instructions provided by AccessLine using the pre-set configuration supplied by AccessLine. Customer acknowledges that AccessLine has custom-preconfigured all equipment to work with AccessLine Digital Phone Service, and that this custom configuration enables certain equipment features and disables others. The Service is only to be used with the Vertical Xcelerator phone system and phones sold with the Service. The Vertical Xcelerator interconnects with Customer's existing broadband data connection. The Vertical Xcelerator provides a port for connection to a Facsimile machine (Fax machine), however Customer should be aware that in some cases the Fax machine’s configuration may need to be modified by Customer to optimize its performance with VoIP, and that some Fax machines and some broadband data connections may not be capable of delivering satisfactory Fax operation with VoIP. Some older fax machines are incompatible due to delay sensitivity and therefore AccessLine recommends the use of Fax machines no older than two years. Some ISP services deliver inadequate quality of service to allow for reliable Fax transmission. AccessLine recommends that Customer always check with their fax machine manufacturer and ISP service provider to determine their level of support for fax over VoIP. The Vertical Xcelerator does not support Point-of-Sale machines (Credit Card machines). The Vertical Xcelerator does not support alarm systems. The Vertical Xcelerator and Vertical FeaturePhones do not support POE mode (Power over Ethernet). · Mitel 1000 Phone System, a minimum of one FeaturePhone, and additional Desk Phones and Cordless Phones as Customer requires (total possible is four Desk Phones plus four Cordless Phones). Customer understands and agrees that they are entering into a Service Agreement for a minimum of one year in accordance with the Term of this Agreement defined below. In order to utilize Digital Phone Service functionality, Customer will install the Mitel 1000 Phone System according to the installation instructions provided by AccessLine using the pre-set configuration supplied by AccessLine. Customer acknowledges that AccessLine has custom-preconfigured all equipment to work with AccessLine Digital Phone Service, and that this custom configuration enables certain equipment features and disables others. The Service is only to be used with the Mitel 1000 phone system and phones sold with the Service. The Mitel 1000 interconnects with Customer's existing broadband data connection. . The Mitel 1000 does not support Point-of-Sale machines (Credit Card machines). The Mitel 1000 does not support Fax machines. The Mitel 1000 does not support alarm systems. 2. Limited Warranty of Service:Within 37 days of AccessLine's first shipment of equipment, if customer is dissatisfied with the Service, Customer may discontinue Service and return all equipment for a full refund of all Service and Equipment charges (excluding Toll Free and International charges). If all equipment is not returned, Customer will be charged for the complete cost of all non-returned equipment. This warranty does not apply to any promotional cash cards or fees, or membership cards or fees that from time to time may be offered to the Customer. If customer discontinues service, these cards or fees will be charged to the customer’s credit card. 3. Use of Service: Customer agrees not to use the Services for any unlawful or abusive purpose or in any way that interferes with AccessLine's ability to provide service to its customers, or damages its property. Customer shall not resell the Services, or any part thereof. If Customer becomes aware that the Services are being fraudulently used, Customer must immediately notify AccessLine. AccessLine has the right to interrupt or restrict access to the Services, without prior notice to Customer, if AccessLine suspects fraudulent or abusive activity, or activity that interferes with AccessLine's ability to provide Service to its customers. Customer agrees to cooperate with AccessLine in any fraud investigation and to use any reasonable fraud prevention measures AccessLine prescribes. Customer agrees to protect account information for any administrative access provided to the Services; Customer acknowledges that due to the custom nature of the equipment configuration, AccessLine shall maintain a confidential password for the equipment until such time as the Customer ends the Services, at which time, upon request by customer, AccessLine will provide Customer with a generic password for the equipment. Upon termination of the Agreement, Customer's right to use the Services immediately ceases. The Service is designed only to be used at the location initially approved by AccessLine; any move of the equipment to a different location by Customer shall void AccessLine's limited equipment and service warranty and require customer to contact AccessLine for reprovisioning of 911 services. The Service is approved for use on a broadband connection specified by Customer that has been tested and approved by AccessLine for such purpose; any change in broadband connection provider or service type shall void AccessLine's limited equipment and service warranty. Customer agrees to AccessLine conducting periodic monitoring tests of Customer’s broadband connection for the sole purpose of monitoring service quality and to facilitate service issue resolution for the duration of Customer’s use of Service. This service does not support Operator-assisted calls, including but not limited to any and all types of Collect Calls. In addition, this service does not support 900 calls of any type or 10-10 dialing. Customer acknowledges that any failure of attempted 900, Operator-assisted, or 10-10 calls is not grounds for termination of service. 4. Charges: Customer is responsible for paying all charges to its account for Services ordered via the DIGITAL PHONE SERVICE ORDER FORM. All usage rates are exclusive of applicable taxes and governmental surcharges, all of which will be added to Customer's bill. AccessLine reserves the right to pass through any changes to surcharges, taxes or other modifications to the prices charged hereunder or to AccessLine's tariffs that are caused or triggered by regulatory activity. Customer acknowledges it is responsible for protecting against fraudulent access to the Services, in accordance with Section 2 above, and shall also be liable for all charges incurred by any other person's use of Customer's Services, whether such use is authorized by Customer or not, except to the extent such use is caused by the intentional misconduct or gross negligence of AccessLine. Every Phone System must be provisioned with a DID for the purposes of E911/911 call back which will be provided at no charge. AccessLine reserves the right to terminate the Agreement and/or the suspend the Services for cause immediately upon written notice to Customer if AccessLine determines, in its sole discretion, that Customer is using or plans to use the Services in a manner resulting in abnormal volumes and destinations of call usage. AccessLine may audit Customer's traffic to ensure that Customer is complying with this provision. Toll-Free numbers are automatically provided with access available from Alaska, Hawaii, Canada, Puerto Rico and the US Virgin Islands. All usage is charged in six (6) second increments with an eighteen (18) second minimum, except for usage included within the base charges, Conferencing, international usage and the Other Traffic Premium, which are billed in one-minute increments with a one-minute minimum. In the case where the pricing provides for Unlimited Usage the following definition applies: "Unlimited Long Distance" and "Unlimited Local": AccessLine phone services assume normal business usage. Normal business usage implies that the average call duration cannot be less than 1 minute; if average call duration is less than 1 minute, a 2¢/min surcharge will be applied to all usage. In addition, normal business usage implies that the average minute usage per line is less than 4,000 minutes of mixed long distance and local calling patterns. Deviation from this average pattern, in total usage or mix, may result in usage pricing surcharges. AccessLine reserve the right, at its sole discretion, to terminate any offer or account with nonstandard calling patterns. The Payphone Surcharge is applied to calls to a Toll-Free number originating from a payphone device. The hourly charge for Professional Services is $250.00 per hour. Professional Services will only be performed and charged upon prior written approval by Customer. All wiring is the responsibility of the Customer (including wiring to individual offices or connecting phones to new or existing wiring). AccessLine reserves the right to pass through any changes to surcharges, taxes or other modifications to the prices charged hereunder or to AccessLine's tariffs that are caused or triggered by regulatory activity. 5. Billing and Payments: All Service and Equipment purchase charges will be made to Customer’s designated Credit Card. By agreeing to these terms and conditions and providing a credit card for the initial purchase, no additional notice or consent will be required for billings to that credit card or account. Hardware, shipping, activation and one-time implementation fees are charged at time of order fulfillment; where customer purchases hardware on a 12-month financing plan, customer will be billed for the first month at time of fulfillment and each subsequent month on the billing cycle date established for the customer account. Monthly recurring charges are billed in advance. Recurring charges for line services may commence accruing within seven days after Customer has submitted Service ORDER FORM, whether or not customer has plugged in and is using equipment and service; recurring charges for enhanced features begin at time of order fulfillment. Usage and long distance charges are billed in arrears. Billing cycle end dates may change from time to time. When a billing cycle covers less than or more than a full month, AccessLine may make reasonable pro-rations to recurring charges. No terms of any purchase order, sale order, invoice or similar document issued by either party shall alter or modify the terms or conditions of this Agreement. AccessLine will provide electronic billing detail records to Customer monthly via email, in form and content that AccessLine customarily makes such records available. Billing detail records provided to Customer are on an information basis only and in no way alter or modify the monthly invoice that is sent to Customer, nor the Customer's obligation to pay the monthly credit card charge. In the event Customer disputes any charges ("Billing Disputes"), Customer shall notify AccessLine in writing, via submission of the Billing Dispute Notification Form ("BDF" - available from AccessLine upon request), of such dispute within thirty (30) days of the Credit Card billing date and associated email Invoice, stating the invoice date, line item of the invoice, the disputed amount, the trouble ticket number (if applicable) and a detailed explanation of the dispute with supporting documentation. All charges over thirty (30) days old shall be deemed accurate and undisputed by Customer and therefore shall not be eligible for dispute. Any dispute raised by the Customer outside of the process defined in this section will be deemed null and void and any such amounts identified will be deemed undisputed by Customer and therefore shall not be eligible for dispute. Upon submission AccessLine will review a BDF for completeness and, if deemed complete and in compliance, AccessLine will issue a tracking number to Customer for future reference and as its acceptance of the submission of the BDF. If AccessLine determines, in its sole discretion, that the BDF is incomplete or not in compliance with this section, then AccessLine will inform Customer of the identified deficiency and request re-submission. AccessLine will review submitted BDFs within ten (10) business days of acceptance of the BDF, and using its reasonable discretion, determine whether to credit, partially credit, or refuse such disputed items, which determination shall be final subject to remedy as set forth in Section 14.1 below. Customer shall pay all charges not disputed in this manner via standard Credit Card payment. If the dispute is resolved in Customer's favor, AccessLine shall credit Customer’s Credit Card account. 6. Term; Minimum Commitment; Cancellation Fee: The Term of this Agreement shall commence seven days after Customer submits Service ORDER FORM and shall continue for 12 months (the "Initial Term") and will automatically convert to a month to month term. After the initial 12 month term, either party must provided 30 days notice of service cancellation. The quantity of Services as indicated within the Order Form constitutes the minimum commitment ("Minimum Commitment") by Customer for the period of the Initial Term and Customer hereby agrees to pay the charges associated with Minimum Commitment Services for the period of the Initial Term. If Customer terminates or cancels this Agreement prior to the end of a Term for any reason other than a default by AccessLine, or if AccessLine terminates this Agreement due to a default by Customer, Customer agrees that AccessLine's damages for such premature termination of this Agreement will be difficult or impossible to determine and Customer agrees to pay AccessLine, in addition to any amounts outstanding as of the date of termination or cancellation, and as a reasonable estimate of AccessLine's damages and not as a penalty, a Cancellation Fee equal to the monthly recurring charges for the purchase of the Phone System, all Desk Phones, and all other equipment multiplied by the number of months left in the Term. 7. Default; Termination: If Customer fails to pay Credit Card charge owed to AccessLine by its Due Date, or if Customer breaches any representation or fails to perform any of the promises made in this Agreement, or if Customer is subject to any proceeding under the Bankruptcy Act or similar laws, Customer will be in default and AccessLine may, in its sole discretion and, with or without prior notice, suspend or restrict Service and/or terminate this Agreement subject to the provisions of Section 5, in addition to all other remedies available to it. Upon termination, Customer is responsible for paying all amounts and charges owing under this Agreement, including any applicable Cancellation Fee and all costs of collection, including attorneys' fees. These fees and costs will be charged to Customer’s Credit Card account. 8. Title to Assets:Upon submission of Service ORDER FORM, Customer retains all rights and title to equipment listed in that Order Form. AccessLine agrees to twelve monthly installment payments by Customer for referenced equipment, except in cases of termination as referenced in sections 6 and 7. In the event of equipment defects due to component failure and/or workmanship defects during the twelve (12) month defective equipment warranty period, Customer agrees to return equipment to AccessLine (at AccessLine's cost), in its original condition (excepting normal wear and tear) within thirty (30) days of Customer's written request for the exchange of defective equipment from AccessLine. As per industry standard practice, AccessLine will replace any defective equipment with either new or factory refurbished equipment at our discretion. Customer is required to provide adequate surge protection for all phone equipment, such as would be standard for a computer. AccessLine shall not be responsible for equipment damage due to improper use, storage, installation, lightning damage, flood damage, or other customer-inflicted damage. If Customer fails to return the equipment within thirty (30) days of receipt of the request or if AccessLine at its sole discretion determines that the equipment defect is due to improper use, storage, installation, lightning damage, flood damage, or other customer-inflicted damage, then AccessLine will add the full original purchase cost of that equipment to Customer's next Credit Card Charge. 9. Assignment: Neither party may assign or otherwise transfer its rights or delegate its duties hereunder without the prior written consent of the other; provided however, either party may assign its rights and obligations in connection with a merger or sale of all or substantially all of the assets of such party. 10. Disclaimer of Warranties and Limitation of Liability: Except as stated in section 2 above, ACCESSLINE AND ITS AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SERVICES OR THE ACCESSLINE NETWORK (INCLUDING 911), AND HEREBY EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE. UNDER NO CIRCUMSTANCES SHALL ACCESSLINE OR ITS AFFILIATES BE LIABLE TO CUSTOMER OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION, END-USERS OF CUSTOMER'S SERVICE, FOR ANY LOSS, INJURY OR DAMAGE, OF WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF ANY MISTAKES, ERRORS, OMISSIONS, DELAYS OR INTERRUPTIONS IN THE RECEIPT, TRANSMISSION OR STORAGE OF ANY MESSAGES, SIGNALS OR INFORMATION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. Customer shall indemnify and defend AccessLine from and against all loss (or threatened loss), liability, damage, and expense, including attorney's fees, caused by third party claims arising from or in connection with any of the following: (i) death or bodily injury of any agents, employees, customers, business invitees, business visitors or other persons caused by the tortious conduct of Customer; (ii) the damage, loss or destruction of any real or tangible personal property caused by the tortious conduct of Customer; (iii) any claim, demand, charge, cause of action, or proceeding asserted against AccessLine but resulting from an act or omission of Customer in its capacity as an employer of a person; or (iv) any claim for damages resulting from the illegal or fraudulent use of Services by Customer. Customer will indemnify and defend AccessLine from and against all loss, liability, damage and expense, including attorney's fees, caused by any third party claims arising from information, data, or messages transmitted over the AccessLine network by Customer, or Customer's own customers or agents, including, but not limited to: (a) claims for libel, slander, invasion of privacy, infringement of copy-right, and invasion or alteration of private records or data; (b) claims for infringement of patents arising from the use of hardware and software not provided by AccessLine in connection with the Services; and (c) claims based on transmission and uploading of information that contains viruses, worms, or other destructive media or other unlawful content. Customer will indemnify and defend AccessLine from and against all loss, liability, damage and expense, including attorney's fees arising from third party claims brought against AccessLine alleging that Services or equipment, software or other materials provided by AccessLine or its subcontractors constitutes an infringement or misappropriation of any copyright, trade-secret, patent right, or other proprietary right of a third party, to the extent that such claim is based on or results from: (a) the combination, operation or use of the Services by Customer with any equipment, software or data that is not provided, approved or consented to by AccessLine under the Agreement; or (b) use of the Services in a manner prohibited under the Agreement or any Attachment to the Agreement if such infringement would have been avoided by the use of the Service in accordance with the Agreement or any Attachment. The party seeking indemnification hereunder shall promptly notify the other party in writing of any claim; provided, however, that no failure to notify the indemnifying party shall relieve the indemnifying party of its obligations under this Agreement except to the extent that the indemnifying party can demonstrate damages attributable to such failure. The indemnifying party shall have the right and authority to control and direct the investigation, defense and settlement of such claim and each party agrees to provide the other party with reasonable information and assistance for the claim's defense and settlement, provided that (i) the indemnifying party will obtain the prior written approval of the indemnitee before entering into any settlement of such claims (other than settlements that involve solely the payment of money) or ceasing to defend the claim and (ii) the indemnified party will have the right, at its option, to participate in the settlement or defense of the claim, with its own counsel and at its own expense, but the indemnifying party will retain sole control of the claim's settlement or defense. To be indemnified under this Section, the party seeking indemnification must not knowingly by any act (including any admission or acknowledgement) materially impair or compromise a claim's defense. AccessLine is not responsible for unauthorized access to, or alteration, theft, or destruction of Customer's data files, programs or other information or physical damage to Customer's transmission facilities or Customer premise equipment, AccessLine is not responsible for unauthorized access to, or alteration, theft, or destruction of Customer's data files, programs or other information or physical damage to Customer's transmission facilities or Customer premise equipment, unless such access, alteration, theft, destruction or damage is directly caused by AccessLine's acts or omissions. 11. Service Level and Service Level Credits: Customer must contact AccessLine's Customer Service organization to report issues related to Service performance. In order for AccessLine to investigate any reported issues, Customer agrees to provide AccessLine with supporting information as reasonably requested by AccessLine as applicable to the Services delivered under this Agreement. AccessLine is not responsible for the performance of Customer’s broadband connection. To request a credit, Customer must contact AccessLine's Customer Service organization to report the service issue and deliver a written request (with sufficient detail necessary to identify the affected Service) within thirty (30) days of the end of the month for which a credit is requested. If Customer fails to follow the procedures set forth herein, Customer waives their rights to a Service Level Credit for the impacted Service. In no event shall the total amount of credits issued to Customer per month exceed the non-recurring charges and monthly recurring charges invoiced to Customer for the affected Service for that month.
12. 911 Policy and Limitations CRITICAL CUSTOMER NOTIFICATION: Digital Phone Service 911 service operates differently than traditional 911 service. Customer hereby acknowledges the risks and limitations associated with VoIP-based 911 services as described in this Critical Customer Notification (“ccn”). Please contact AccessLine regarding any questions regarding this notification. As a user of our VoIP based services, you may, on occasion, have reason to dial Emergency Services or ‘911’. Please be advised: (a) EMERGENCY SERVICES OR ‘911’ MAY NOT BE ACCESSIBLE FROM YOUR VOIP SERVICE UNDER CERTAIN CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO: · A POWER FAILURE OR SOME OTHER TYPE OF FAILURE OF THE VOIP DEVICE OR ASSOCIATED EQUIPMENT. · A FAILURE OR CONGESTION OF THE DATA CONNECTION (SUCH AS DSL CONNECTION) OR ASSOCIATED EQUIPMENT PROVIDED BY YOUR DATA SERVICE PROVIDER. · A FAILURE OR CONGESTION OF THE VOIP NETWORK PROVIDING YOUR VOIP SERVICE, THE PUBLIC SWITCHED TELEPHONE NETWORK (PSTN), THE 911 SERVICE PROVIDER’S NETWORK OR THE EMERGENCY SERVICES NETWORK. · THE USE OF THE SERVICE OUTSIDE OF THE CONTINENTAL USA. · SHOULD YOU HAVE MOVED THE VOIP DEVICE, DELAYED IN PROVIDING OR FAILED TO PROVIDE ACCURATE LOCATION INFORMATION TO YOUR SERVICE PROVIDER, OR THE INFORMATION YOU HAVE PROVIDED HAS NOT YET BEEN UPDATED BY YOUR SERVICE PROVIDER OR IS INACCURATE. · THE SERVICE HAS BEEN DISCONNECTED OR SUSPENDED FOR NON-PAYMENT OR ANY OTHER REASON. (b) IN SOME CIRCUMSTANCES YOUR 911 SERVICE MAY BE LIMITED TO BASIC 911 SERVICE RATHER THAN ENHANCED 911 (OR ‘E-911’). WITH E-911 YOUR ADDRESS AND CALLBACK INFORMATION IS AUTOMATICALLY PROVIDED TO THE EMERGENCY SERVICES SYSTEMS. IF E-911 SERVICE IS NOT AVAILABLE IN YOUR AREA OR AT THE TIME OF YOUR 911 CALL, THEN YOU MAY BE REQUIRED TO VERBALLY INFORM THE 911 CALL TAKER OR EMERGENCY RESPONDER OF YOUR ADDRESS AND PHONE NUMBER. (c) CALL BACK FROM THE EMERGENCY SERVICES MAY ALSO FAIL UNDER CERTAIN CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO: · THE USE OF CALL FORWARDING, CALL REDIRECTION OR BLOCKING SERVICES. · SHOULD THE EMERGENCY CALLBACK NUMBER BE CONFIGURED TO RING A PHONE AT A DIFFERENT LOCATION THAN YOUR VOIP DEVICE. (d) IF YOU INTEND TO MOVE YOUR DIGITAL PHONE SERVICE VOIP DEVICE(S) TO ANOTHER LOCATION, YOU MUST CONTACT ACCESSLINE CUSTOMER SERVICE AND PROVIDE THE ADDRESS INFORMATION FOR THE NEW LOCATION. YOU MAY REACH ACCESSLINE CUSTOMER SERVICE BY CALLING THEM VIA YOUR DPS SERVICE IF DESIRED. THE 911 SERVICE WILL NOT OPERATE PROPERLY IN THE NEW LOCATION UNLESS THE ADDRESS HAS BEEN UPDATED. ACCESSLINE CUSTOMER SERVICE CAN ADVISE WHETHER THE SERVICE IS AVAILABLE IN THE NEW AREA. (e) CUSTOMER AGREES TO PROVIDE ACCURATE EMERGENCY ADDRESS INFORMATION FOR EACH DIGITAL PHONE SYSTEM. (f) A SEPARATE 911 CALLBACK NUMBER MAY BE PROVISIONED FOR YOUR SERVICE. THIS SEPARATE CALLBACK NUMBER WILL BE CONFIGURED TO ROUTE TO ONE OF THE MAIN NUMBERS ASSOCIATED WITH YOUR SERVICE (g) Customer acknowledges and hereby agrees to inform all end users of THE OPTIONAL Enhanced Number Services, of the fact that 911 Services are not available via the outbound calling MENU functions of the Enhanced Number Services (AUTOMATED Attendant Number, WEBFAX NUMBER, and Conferencing Number). (h) Customer hereby acknowledges that AccessLine recommends that a Plain Old Telephone Service ("POTS") line be available as a back-up for 911 calling in each phone system location. (i) Customer hereby acknowledges that it understands that the 911 service is available only within certain geographic areas within the US and is not available outside the US. AccessLine will provide Customer with an up-to-date list of the geographic areas within the US that 911 service is available as additional service areas become available. (j) CUSTOMER AGREES TO USE AND DISPLAY ALL 911 WARNING LABELS PROVIDED WITH THE VOIP DEVICES. (k) CUSTOMER AGREES TO INDEMNIFY ACCESSLINE AGAINST ALL LIABILITY ASSOCIATED WITH ROUTING OF 911 CALLS VIA ACCEPTANCE OF THESE TERMS AND CONDITIONS. ACCESSLINE IS NOT RESPONSIBLE FOR ANY INVASION OF THE RIGHT OF PRIVACY OF ANY PERSON OR PERSONS, CAUSED OR CLAIMED TO HAVE BEEN CAUSED, DIRECTLY OR INDIRECTLY, BY DIALING 911, INCLUDING BUT NOT LIMITED TO THE IDENTIFICATION OF THE PHONE NUMBER, ADDRESS OR NAME ASSOCIATED WITH THE TELEPHONE USED BY THE PARTY ACCESSING THE 911 SERVICE. THE information provided to 911 authoriities is only for customer location initially ordered and customer is hereby advised that if they change locations, 911 emergency personnel will not be sent to the correct location. Customer hereby acknowledges and agrees that its failure to comply with this clause 12 would constitute a material breach of this Agreement. 13. Directory Listing: Customer may request a Directory Listing for any Local Numbers they have purchased from AccessLine and AccessLine has the capability to provide Directory Listing Services, however, given that AccessLine utilizes a third party vendor for Directory Listing, there is no guarantee that AccessLine will be able to list a specific number with the third party provider, also, there is no guarantee as to the timeframe under which Directory Listing can be completed. AccessLine does NOT support an option where the address is not published. Further, where Subscribers choose not to purchase or to discontinue AccessLine's Directory Listing service, AccessLine provides no assurance that any existing information in the various directory listing databases will be removed or revised. In the event that a Directory Listing is completed successfully, the end user will be provided with: (a) A listing for each number in the electronic database and white pages book managed by the Local Exchange Carrier ("LEC") in whose area the local numbers originate. (b) Via the above, most Directory Assistance providers will be able to lookup the number when they receive an inquiry. (c) Yellow page and other electronic database providers then may contract with the LEC to purchase and list in their books, databases, etc. as an independent action from the Directory Listing Services provided by AccessLine. AccessLine will not be responsible for any misprints, errors or omissions but will work diligently to correct any errors in the databases of AccessLine's partner carriers and their LEC providers that are identified by the Customer. Further, CUSTOMER HEREBY AGREES TO DEFEND, INDEMNIFY, AND HOLD ACCESSLINE AND/OR ITS PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES AND ANY OF ACCESSLINE'S CARRIER VENDORS, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS FOR EXPENSES OR DAMAGES OF ANY KIND (INCLUDING ATTORNEYS' FEES) ARISING FROM A MISPRINT OF CUSTOMER'S DIRECTORY INFORMATION. 14. Phone System “Hold” Music: DPS Customer represents to AccessLine Communications Inc. that, to the best of DPS Customer's knowledge, any and all HOLD MUSIC provided to AccessLine Communications Inc. for the purpose of uploading to the Vertical Phone System by the DPS Customer is (1) not in violation of any third parties' patent, trademark, copyright of service mark rights; (2) is not libelous, obscene or otherwise contrary to the law; (3) does not violate any third party's right of privacy or publicity; and that no such claims by third parties or the possibility of such a claim has been brought to DPS Customer's attention. Accordingly, any claim made or action filed for misrepresentation, content, patent, trademark, service mark, or other copyright infringements arising out of the HOLD MUSIC provided by AccessLine Communications Inc. at DPS Customer’s request, DPS Customer shall defend and hold harmless AccessLine Communications Inc. for all liabilities and damages suffered by AccessLine Communications Inc. as a result of said claim or action. 15. Miscellaneous Provisions: 15.1 Laws, Rules, and Regulations. This Agreement shall be governed by and construed in accordance with the laws of the state of Washington, without regard to the principles of conflict of laws. The Parties agree that the exclusive venue of any action related to this Agreement shall be the state or federal courts located in Seattle, Washington, and the parties hereby consent to the jurisdiction and venue of such courts. This Agreement is subject to all laws, rules, regulations, and ordinances relative to, among other things, the provision of enhanced telecommunications and long distance services, including, without limitation, the Communications Act of 1934 and the Telecommunications Act of 1996, as amended, and all rules and regulations promulgated there under. 15.2 Force Majeure. Neither party will be liable for any nonperformance under this Agreement due to causes beyond its reasonable control that could not have been reasonably anticipated by the non-performing party as of the Effective Date and that cannot be reasonably avoided or overcome; provided that the non-performing party gives the other prompt written notice of such cause, and in any event within fifteen (15) calendar days of discovery thereof. 15.3 Independent Parties. Notwithstanding anything to the contrary herein, it is acknowledged, confirmed, and agreed that Customer shall be, and shall be deemed to be, an independent entity for all intents and purposes, including, without limitation, federal taxation. Customer shall pay all expenses in connection with performing its obligations hereunder and shall not incur any indebtedness on behalf of AccessLine in connection with such expenses. Neither party shall have or hold itself out as having any right, authority or agency to act on behalf of the other party in any capacity or in any manner, except as may be specifically authorized in this Agreement. 15.4 Attorneys' Fees. If any action shall be brought on account of any breach of or to enforce or interpret any of the terms, covenants or conditions of this Agreement, the most prevailing party shall be entitled to recover from the other, as part of the prevailing party's costs, reasonable attorneys' fee. 15.5 Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 15.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but which collectively will constitute one and the same instrument. 15.7 Fair Interpretation, Headings. This Agreement has been negotiated by the Parties and their respective counsel. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party based on draftsmanship of the Agreement or otherwise. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. 15.8 Complete Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understanding or agreements, written or oral, between the parties regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing, in a format specified by AccessLine, and signed by a duly authorized representative of Customer. No delay or failure by either party in exercising any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right. Failure by either party to enforce any right under this Agreement will not be deemed a waiver of future enforcement of that or any other right. 15.9 Binding Agreement. This Agreement is made for the benefit of AccessLine and Customer and their respective affiliates, if any, and not for the benefit of any third parties. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, and their permitted successors and assigns. 15.10 Remedies. The rights and remedies of the Parties hereunder shall not be mutually exclusive, i.e., the exercise of one (1) or more of the provisions hereof shall not preclude the exercise of any other provision hereof. The Parties acknowledge, confirm and agree that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach of any provision hereof, the respective rights and obligations hereunder shall be enforceable by specific performance, injunction or other equitable remedy. Nothing contained in this Agreement shall limit or affect any rights at law or statute or otherwise for a breach or threatened breach of any provision hereof, it being the intent of this provision to clarify that the respective rights and obligations of the parties shall be enforceable in equity as well as at law or otherwise. 15.11 Survival. Sections 8, 10, 13, and 14 of this Agreement will survive Termination or expiration of this Agreement and remain in full force and effect. These terms will apply to either party's successors and assigns, and any other provisions of this Agreement that are necessary for interpretation of such surviving terms shall continue to apply to all such surviving terms.
HOME OFFICE PHONE SERVICE (HOPS) TERMS AND CONDITIONS (v020410) (For use with Home Office Phone Service.) User of this
service must be based in the continental 1. Service
Description: AccessLine agrees to provide, and Customer agrees to
purchase, the ""Service"", defined to include direct-dialed
Voice over IP (""VoIP"") calling and certain calling and
call management features or advanced features, including additional features or
advanced features which may be offered at additional costs, and which AccessLine,
in its sole discretion, may add, modify, or delete from time to time. In order
to utilize Home Office Phone Service functionality, customer will install and
AccessLine will configure a VoIP gateway. The gateway interconnects with
Customer's data connection. 2. Use
of Service: Customer agrees not to use the Services for any unlawful or
abusive purpose or in any way that interferes with AccessLine's ability to
provide service to its customers, or damages its property. Customer shall not
resell the Services. If Customer becomes aware that the Services are being
fraudulently used, Customer must immediately notify AccessLine. AccessLine has
the right to interrupt or restrict access to the Services, without prior notice
to Customer, if AccessLine suspects fraudulent or abusive activity or activity
that interferes with AccessLine's ability to provide Service to its customers.
Customer agrees to cooperate with AccessLine in any fraud investigation and to
use any reasonable fraud prevention measures AccessLine prescribes. Customer
agrees to protect password and account information for any administrative
access provided to the Services. Upon termination of the Agreement, Customer's
right to use the Services immediately ceases. Customer agrees to AccessLine conducting
periodic monitoring tests of Customer’s broadband connection for the sole
purpose of monitoring service quality and to facilitate service issue
resolution for the duration of Customer’s use of Service. This service does not
support Operator-assisted calls, including but not limited to any and all types
of Collect Calls. In addition, this service does not support 900 calls of any type or 10-10
dialing. Customer acknowledges that any failure of attempted 900,
Operator-assisted, or 10-10 calls is not grounds for termination of service. If Customer's
business location requires the use of equipment that is designed to transmit or
receive data over traditional telephony networks, collectively referred to here
as Transaction Processing Hardware, Customer should be aware that not all
Transaction Processing Hardware nor their related application providers, such
as Bank or Credit Card Processing companies, support the use of VoIP. Although
adequate service may be achieved in many cases AccessLine cannot recommend or
support Customer's use of Transaction Processing Hardware with the Service. If Customer's
business requires the use of Facsimile machine(s) (Fax machines) Customer
should be aware that both the ISP and/or the Fax machine itself may not be
capable of delivering satisfactory Fax operation with VoIP. Some older fax
machines are incompatible due to delay sensitivity and therefore AccessLine
recommends the use of Fax machines no older than two years. Some ISP services
deliver inadequate quality of service to allow for reliable Fax transmission.
AccessLine recommends that Customer always check with their fax machine
manufacturer and ISP service provider to determine their level of support for
fax over VoIP. Customer
understands that the use of the Services requires passage through customer's
network firewall. This may introduce exploitable weaknesses. Those customers
especially concerned about their security are advised to deploy firewalls
specifically designed to enhance security for SIP-based VoIP applications and
services. Customer hereby indemnifies AccessLine against any responsibility for
damages, consequential or otherwise that arise from such an introduced
exploitable weakness. Customer
understands that the public internet is an insecure transmission medium and
therefore that a small risk exists for a malicious third party to capture
elements of voice conversations transmitted over it. Once decoded it would be
possible for those captured elements to be rendered as audio energy and the
information within them to be accessed. Customer indemnifies AccessLine from
any responsibility for such damage, consequential or otherwise. 3. Charges:
Customer is responsible for paying all charges to its account for Services
ordered, in accordance with the Voice Plans and Price Sheet on this web site.
The rates shown are exclusive of applicable taxes and governmental surcharges,
all of which will be added to Customer's bill. AccessLine reserves the right to
pass through any changes to surcharges, taxes or other modifications to the
prices charged hereunder or to AccessLine's tariffs that are caused or
triggered by regulatory activity. Customer acknowledges it is responsible for
protecting against fraudulent access to the Services, in accordance with
Section 2 above, and shall also be liable for all charges incurred by any other
person's use of Customer's Services, whether such use is authorized by Customer
or not, except to the extent such use is caused by the intentional misconduct
or gross negligence of AccessLine. Every installed gateway must be provisioned
with a DID for the purposes of E911/911 call back which will be provided at no
charge. Customer is prohibited from intermingling traffic or for utilizing this
service for anything other than providing Home Office Phone Service to its end
users. AccessLine reserves the right to terminate the Agreement and/or the
suspend the Services for cause immediately upon written notice to Customer if
AccessLine determines, in its sole discretion, that Customer is using or plans
to use the Services in a manner inconsistent with this provision and resulting
in abnormal volumes and destinations of call usage. AccessLine may audit
Customer's traffic to ensure that Customer is complying with this provision.
Toll-Free numbers are automatically provided with access available from 4.
Billing and Payments: All Service and Equipment purchase charges will
be made to Customer's designated Credit Card. If you have authorized payment by
credit card, no additional notice or consent will be required for billings to
that credit card or account. Activation and monthly recurring charges are
billed in advance. Usage and long distance charges are billed in arrears.
Recurring charges commence accruing within seven days after Customer has
submitted Service ORDER FORM, whether or not customer has plugged in and is
using equipment and service. Billing cycle end dates may change from time to
time. When a billing cycle covers less than or more than a full month,
AccessLine may make reasonable pro-rations to recurring charges. No terms of any
purchase order, sale order, invoice or similar document issued by either party
shall alter or modify the terms or conditions of this Agreement. AccessLine
will provide electronic billing detail records to Customer monthly via email,
in form and content that AccessLine customarily makes such records available.
Billing detail records provided to Customer are on an information basis only
and in no way alter or modify the monthly invoice that is sent to Customer, nor
the Customer's obligation to pay the monthly credit card charge. In the event
Customer disputes any charges ("Billing Disputes"), Customer shall
notify AccessLine in writing, via submission of the Billing Dispute
Notification Form ("BDF" - available from AccessLine upon request),
of such dispute within thirty (30) days of the Credit Card billing date and
associated email Invoice, stating the invoice date, line item of the invoice,
the disputed amount, the trouble ticket number (if applicable) and a detailed
explanation of the dispute with supporting documentation. All charges over
thirty (30) days old shall be deemed accurate and undisputed by Customer and
therefore shall not be eligible for dispute. Any dispute raised by the Customer
outside of the process defined in this section will be deemed null and void and
any such amounts identified will be deemed undisputed by Customer and therefore
shall not be eligible for dispute. Upon submission AccessLine will review a BDF
for completeness and, if deemed complete and in compliance, AccessLine will issue
a tracking number to Customer for future reference and as its acceptance of the
submission of the BDF. If AccessLine determines, in its sole discretion, that
the BDF is incomplete or not in compliance with this section, then AccessLine
will inform Customer of the identified deficiency and request re-submission.
AccessLine will review submitted BDFs within ten (10) business days of
acceptance of the BDF, and using its reasonable discretion, determine whether
to credit, partially credit, or refuse such disputed items, which determination
shall be final subject to remedy as set forth in Section 13.1 below. Customer
shall pay all charges not disputed in this manner via standard Credit Card
payment. If the dispute is resolved in Customer's favor, AccessLine shall
credit Customer's Credit Card account. 5. Term;
Minimum Commitment; Cancellation Fee: The Term of this Agreement shall
commence as of the date the Customer submits Service ORDER FORM and shall
continue on a month to month basis. The quantity of Services as indicated
within the Order Form constitutes the minimum commitment (""Minimum
Commitment"") by Customer for the period of the Term and Customer
hereby agrees to pay the charges associated with Minimum Commitment Services
for the period of the Term. If Customer terminates or cancels this Agreement,
or if AccessLine terminates this Agreement due to a default by Customer,
Customer agrees that AccessLine's damages for such premature termination of
this Agreement will be difficult or impossible to determine and Customer agrees
to pay AccessLine any amounts outstanding as of the date of termination or
cancellation. Customer is
responsible for all aspects of their working environment or of the access
connectivity (Internet connectivity and Local area network) they provide with
respect to any quality of service issues to which they may contribute. Should
the customer encounter quality of service issues with their Home Office Phone
Service which are not related to the customers working environment or to the
access connectivity provided by customer then AccessLine will remedy those
issues within 30 days of their being reported. Should AccessLine fail to
achieve a remedy within 30 days then the customer will be free to discontinue
Home Office Phone Service without penalty. Should reported quality of service
issues be determined to be a result of customers provided access connectivity
or of their working environment then AccessLine will provide appropriate
evidence to support that diagnosis and may provide recommendations as to its
repair but the customer will remain responsible for its repair. 6. Default;
Termination: If Customer fails to pay any amount owed to AccessLine by
its Due Date, or if Customer breaches any representation or fails to perform
any of the promises made in this Agreement, or if Customer is subject to any
proceeding under the Bankruptcy Act or similar laws, Customer will be in
default and AccessLine may, in its sole discretion and, with or without prior
notice, suspend or restrict Service and/or terminate this Agreement subject to
the provisions of Section 5, in addition to all other remedies available to it.
Upon termination, Customer is responsible for paying all amounts and charges
owing under this Agreement, including any and all costs of collection,
including attorneys' fees. These fees and costs
will be charged to Customer’s Credit Card account. 7. Title
to Assets and Warranty: Upon submission of Service ORDER FORM, Customer
retains all rights and title to equipment listed in that Order Form. The
equipment is warranteed for a period of one year or until Customer terminates
this Agreement, whichever period is shorter.
In the event of equipment defects due to component failure and/or
workmanship defects AccessLine will replace the defective equipment within
seven (7) business days of Customer’s request for the exchange of defective
equipment from AccessLine. Customer is required to provide adequate surge
protection for all phone equipment, such as would be standard for a computer.
AccessLine shall not be responsible for equipment damage due to improper use,
storage, installation, lightning damage, flood damage, or other
customer-inflicted damage. If AccessLine at its sole discretion determines that
the equipment defect is due to improper use, storage, installation, lightning
damage, flood damage, or other customer-inflicted damage, then AccessLine will
add the full original purchase cost of that equipment to Customer's next Credit
Card Charge. 8. Assignment:
Neither party may assign or otherwise transfer its rights or delegate its
duties hereunder without the prior written consent of the other; provided
however, either party may assign its rights and obligations in connection with
a merger or sale of all or substantially all of the assets of such party. 9. Disclaimer
of Warranties and Limitation of Liability: ACCESSLINE AND ITS
AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SERVICES OR
THE ACCESSLINE NETWORK (INCLUDING 911), AND HEREBY EXPRESSLY DISCLAIM ALL
IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR USE OR PURPOSE. UNDER NO CIRCUMSTANCES SHALL ACCESSLINE OR ITS
AFFILIATES BE LIABLE TO CUSTOMER OR ANY OTHER PERSON, INCLUDING, WITHOUT
LIMITATION, END-USERS OF CUSTOMER'S SERVICE, FOR ANY LOSS, INJURY OR DAMAGE, OF
WHATEVER KIND OR NATURE, RESULTING FROM OR ARISING OUT OF ANY MISTAKES, ERRORS,
OMISSIONS, DELAYS OR INTERRUPTIONS IN THE RECEIPT, TRANSMISSION OR STORAGE OF
ANY MESSAGES, SIGNALS OR INFORMATION ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT. Customer shall indemnify and defend AccessLine from and against all
loss (or threatened loss), liability, damage, and expense, including attorney's
fees, caused by third party claims arising from or in connection with any of
the following: (i) death or bodily injury of any agents, employees, customers,
business invitees, business visitors or other persons caused by the tortious
conduct of Customer; (ii) the damage, loss or destruction of any real or
tangible personal property caused by the tortious conduct of Customer; (iii)
any claim, demand, charge, cause of action, or proceeding asserted against
AccessLine but resulting from an act or omission of Customer in its capacity as
an employer of a person; or (iv) any claim for damages resulting from the
illegal or fraudulent use of Services by Customer. Customer will indemnify and
defend AccessLine from and against all loss, liability, damage and expense,
including attorney's fees, caused by any third party claims arising from
information, data, or messages transmitted over the AccessLine network by
Customer, or Customer's own customers or agents, including, but not limited to:
(a) claims for libel, slander, invasion of privacy, infringement of copy-right,
and invasion or alteration of private records or data; (b) claims for
infringement of patents arising from the use of hardware and software not
provided by AccessLine in connection with the Services; and (c) claims based on
transmission and uploading of information that contains viruses, worms, or
other destructive media or other unlawful content. Customer will indemnify and
defend AccessLine from and against all loss, liability, damage and expense,
including attorney's fees arising from third party claims brought against
AccessLine alleging that Services or equipment, software or other materials
provided by AccessLine or its subcontractors constitutes an infringement or
misappropriation of any copyright, trade-secret, patent right, or other
proprietary right of a third party, to the extent that such claim is based on
or results from: (a) the combination, operation or use of the Services by
Customer with any equipment, software or data that is not provided, approved or
consented to by AccessLine under the Agreement; or (b) use of the Services in a
manner prohibited under the Agreement or any Attachment to the Agreement if
such infringement would have been avoided by the use of the Service in
accordance with the Agreement or any Attachment. The party seeking
indemnification hereunder shall promptly notify the other party in writing of
any claim; provided, however, that no failure to notify the indemnifying party
shall relieve the indemnifying party of its obligations under this Agreement
except to the extent that the indemnifying party can demonstrate damages
attributable to such failure. The indemnifying party shall have the right and
authority to control and direct the investigation, defense and settlement of
such claim and each party agrees to provide the other party with reasonable
information and assistance for the claim's defense and settlement, provided
that (i) the indemnifying party will obtain the prior written approval of the
indemnitee before entering into any settlement of such claims (other than
settlements that involve solely the payment of money) or ceasing to defend the
claim and (ii) the indemnified party will have the right, at its option, to
participate in the settlement or defense of the claim, with its own counsel and
at its own expense, but the indemnifying party will retain sole control of the
claim's settlement or defense. To be indemnified under this Section, the party
seeking indemnification must not knowingly by any act (including any admission
or acknowledgement) materially impair or compromise a claim's defense.
AccessLine is not responsible for unauthorized access to, or alteration, theft,
or destruction of Customer's data files, programs or other information or
physical damage to Customer's transmission facilities or Customer premise
equipment, AccessLine is not responsible for unauthorized access to, or
alteration, theft, or destruction of Customer's data files, programs or other
information or physical damage to Customer's transmission facilities or
Customer premise equipment, unless such access, alteration, theft, destruction
or damage is directly caused by AccessLine's acts or omissions. 10. Service
Level and Service Level Credits: Customer must contact AccessLine's
Customer Service organization to report issues related to Service performance.
In order for AccessLine to investigate any reported issues, Customer agrees to
provide AccessLine with supporting information as reasonably requested by
AccessLine as applicable to the Services delivered under this Agreement.
AccessLine is not responsible for the performance of Customer's broadband
connection. To request a credit, Customer must contact AccessLine's Customer
Service organization to report the service issue and deliver a written request
(with sufficient detail necessary to identify the affected Service) within
thirty (30) days of the end of the month for which a credit is requested. If
Customer fails to follow the procedures set forth herein, Customer waives their
rights to a Service Level Credit for the impacted Service. In no event shall
the total amount of credits issued to Customer per month exceed the
non-recurring charges and monthly recurring charges invoiced to Customer for
the affected Service for that month. 11. 911
Policy and Limitations CRITICAL CUSTOMER NOTIFICATION: Digital Phone
Service 911 service operates differently than traditional 911 service. Customer
hereby acknowledges the risks and limitations associated with VoIP-based 911
services as described in this CRITICAL CUSTOMER NOTIFICATION ("CCN").
Please contact AccessLine regarding any questions regarding this notification.
As a user of our VoIP based services, you may, on occasion, have reason to dial
Emergency Services or '911'. Please be advised: (a) EMERGENCY
SERVICES OR '911' MAY NOT BE ACCESSIBLE FROM YOUR VOIP SERVICE UNDER CERTAIN
CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO: ·
A POWER FAILURE OR SOME OTHER TYPE OF FAILURE OF THE VOIP DEVICE
OR ASSOCIATED EQUIPMENT. ·
A FAILURE OR CONGESTION OF THE DATA CONNECTION (SUCH AS DSL
CONNECTION) OR ASSOCIATED EQUIPMENT PROVIDED BY YOUR DATA SERVICE PROVIDER. ·
A FAILURE OR CONGESTION OF THE VOIP NETWORK PROVIDING YOUR VOIP
SERVICE, THE PUBLIC SWITCHED TELEPHONE NETWORK (PSTN), THE 911 SERVICE
PROVIDER'S NETWORK OR THE EMERGENCY SERVICES NETWORK. ·
THE USE OF THE SERVICE OUTSIDE OF THE CONTINENTAL ·
SHOULD YOU HAVE MOVED THE VOIP DEVICE, DELAYED IN PROVIDING OR
FAILED TO PROVIDE ACCURATE LOCATION INFORMATION TO YOUR SERVICE PROVIDER, OR
THE INFORMATION YOU HAVE PROVIDED HAS NOT YET BEEN UPDATED BY YOUR SERVICE
PROVIDER OR IS INACCURATE. ·
THE SERVICE HAS BEEN DISCONNECTED OR SUSPENDED FOR NON-PAYMENT
OR ANY OTHER REASON. (b) IN SOME
CIRCUMSTANCES YOUR 911 SERVICE MAY BE LIMITED TO BASIC 911 SERVICE RATHER THAN
ENHANCED 911 (OR 'E-911'). WITH E-911 YOUR ADDRESS AND CALLBACK INFORMATION IS
AUTOMATICALLY PROVIDED TO THE EMERGENCY SERVICES SYSTEMS. IF E-911 SERVICE IS
NOT AVAILABLE IN YOUR AREA OR AT THE TIME OF YOUR 911 CALL, THEN YOU MAY BE
REQUIRED TO VERBALLY INFORM THE 911 CALL TAKER OR EMERGENCY RESPONDER OF YOUR
ADDRESS AND PHONE NUMBER. (c) CALL BACK FROM THE
EMERGENCY SERVICES MAY ALSO FAIL UNDER CERTAIN CIRCUMSTANCES, INCLUDING BUT NOT
LIMITED TO: ·
THE USE OF CALL FORWARDING, CALL REDIRECTION OR BLOCKING
SERVICES. ·
SHOULD THE EMERGENCY CALLBACK NUMBER BE CONFIGURED TO RING A
PHONE AT A DIFFERENT LOCATION THAN YOUR VOIP DEVICE. (d) IF YOU INTEND
TO MOVE YOUR DIGITAL PHONE SERVICE VOIP DEVICE(S) TO ANOTHER LOCATION, YOU MUST
CONTACT ACCESSLINE CUSTOMER SERVICE AND PROVIDE THE ADDRESS INFORMATION FOR THE
NEW LOCATION. YOU MAY REACH ACCESSLINE CUSTOMER SERVICE BY CALLING THEM VIA
YOUR DPS SERVICE IF DESIRED. THE 911 SERVICE WILL NOT OPERATE PROPERLY IN THE
NEW LOCATION UNLESS THE ADDRESS HAS BEEN UPDATED. ACCESSLINE CUSTOMER SERVICE
CAN ADVISE WHETHER THE SERVICE IS AVAILABLE IN THE NEW AREA. (e) CUSTOMER AGREES
TO PROVIDE ACCURATE EMERGENCY ADDRESS INFORMATION FOR EACH HOME OFFICE PHONE
SERVICE GATEWAY, (f) A SEPARATE 911
CALLBACK NUMBER MAY BE PROVISIONED FOR YOUR SERVICE. THIS SEPARATE CALLBACK
NUMBER WILL BE CONFIGURED TO ROUTE TO ONE OF THE MAIN NUMBERS ASSOCIATED WITH
YOUR SERVICE (g) CUSTOMER
ACKNOWLEDGES AND HEREBY AGREES TO INFORM ALL END USERS OF THE OPTIONAL ENHANCED
NUMBER SERVICES, OF THE FACT THAT 911 SERVICES ARE NOT AVAILABLE VIA THE
OUTBOUND CALLING MENU FUNCTIONS OF THE ENHANCED NUMBER SERVICES (AUTOMATED
ATTENDANT NUMBER, WEBFAX NUMBER, AND CONFERENCING NUMBER). (h) CUSTOMER HEREBY
ACKNOWLEDGES THAT ACCESSLINE RECOMMENDS THAT A PLAIN OLD TELEPHONE SERVICE
("POTS") LINE BE AVAILABLE AS A BACK-UP FOR 911 CALLING IN EACH PHONE
SYSTEM LOCATION. (i) CUSTOMER HEREBY
ACKNOWLEDGES THAT IT UNDERSTANDS THAT THE 911 SERVICE IS AVAILABLE ONLY WITHIN
CERTAIN GEOGRAPHIC AREAS WITHIN THE (j) CUSTOMER AGREES
TO USE AND DISPLAY ALL 911 WARNING LABELS PROVIDED WITH THE VOIP DEVICES. (k) CUSTOMER AGREES
TO INDEMNIFY ACCESSLINE AGAINST ALL LIABILITY ASSOCIATED WITH ROUTING OF 911
CALLS VIA ACCEPTANCE OF THESE TERMS AND CONDITIONS. ACCESSLINE IS NOT
RESPONSIBLE FOR ANY INVASION OF THE RIGHT OF PRIVACY OF ANY PERSON OR PERSONS,
CAUSED OR CLAIMED TO HAVE BEEN CAUSED, DIRECTLY OR INDIRECTLY, BY DIALING 911,
INCLUDING BUT NOT LIMITED TO THE IDENTIFICATION OF THE PHONE NUMBER, ADDRESS OR
NAME ASSOCIATED WITH THE TELEPHONE USED BY THE PARTY ACCESSING THE 911 SERVICE.
THE INFORMATION PROVIDED TO 911 AUTHORITIES IS ONLY FOR CUSTOMER LOCATION
INITIALLY ORDERED AND CUSTOMER IS HEREBY ADVISED THAT IF THEY CHANGE LOCATIONS,
911 EMERGENCY PERSONNEL WILL NOT BE SENT TO THE CORRECT LOCATION. CUSTOMER
HEREBY ACKNOWLEDGES AND AGREES THAT ITS FAILURE TO COMPLY WITH THIS CLAUSE 12
WOULD CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT. 12. Directory
Listing: Customer may request a Directory Listing for any Local Numbers
they have purchased from AccessLine and AccessLine has the capability to provide
Directory Listing Services, however, given that AccessLine utilizes a third
party vendor for Directory Listing, there is no guarantee that AccessLine will
be able to list a specific number with the third party provider, also, there is
no guarantee as to the timeframe under which Directory Listing can be
completed. AccessLine does NOT support an option where the address is not
published. Further, where Subscribers choose not to purchase or to discontinue
AccessLine's Directory Listing service, AccessLine provides no assurance that
any existing information in the various directory listing databases will be
removed or revised. In the event that a Directory Listing is completed
successfully, the end user will be provided with: (a) A listing for
each number in the electronic database and white pages book managed by the
Local Exchange Carrier (""LEC"") in whose area the local
numbers originate. (b) Via the above,
most Directory Assistance providers will be able to lookup the number when they
receive an inquiry. (c) Yellow page and
other electronic database providers then may contract with the LEC to purchase
and list in their books, databases, etc. as an independent action from the
Directory Listing Services provided by AccessLine. AccessLine will not be responsible
for any misprints, errors or omissions but will work diligently to correct any
errors in the databases of AccessLine's partner carriers and their LEC
providers that are identified by the Customer. Further, CUSTOMER HEREBY AGREES
TO DEFEND, INDEMNIFY, AND HOLD ACCESSLINE AND/OR ITS PARENTS, SUBSIDIARIES,
AFFILIATES, OFFICERS, AGENTS, EMPLOYEES AND ANY OF ACCESSLINE'S CARRIER
VENDORS, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS FOR EXPENSES OR DAMAGES
OF ANY KIND (INCLUDING ATTORNEYS' FEES) ARISING FROM A MISPRINT OF CUSTOMER'S
DIRECTORY INFORMATION. 13. Miscellaneous
Provisions: 13.1 Laws, Rules,
and Regulations. This Agreement shall be governed by and construed in
accordance with the laws of the state of 13.2 Force Majeure.
Neither party will be liable for any nonperformance under this Agreement due to
causes beyond its reasonable control that could not have been reasonably
anticipated by the non-performing party as of the Effective Date and that
cannot be reasonably avoided or overcome; provided that the non-performing
party gives the other prompt written notice of such cause, and in any event
within fifteen (15) calendar days of discovery thereof. 13.3 Independent
Parties. Notwithstanding anything to the contrary herein, it is acknowledged,
confirmed, and agreed that Customer shall be, and shall be deemed to be, an
independent entity for all intents and purposes, including, without limitation,
federal taxation. Customer shall pay all expenses in connection with performing
its obligations hereunder and shall not incur any indebtedness on behalf of
AccessLine in connection with such expenses. Neither party shall have or hold
itself out as having any right, authority or agency to act on behalf of the
other party in any capacity or in any manner, except as may be specifically
authorized in this Agreement. 13.4 Attorneys'
Fees. If any action shall be brought on account of any breach of or to enforce
or interpret any of the terms, covenants or conditions of this Agreement, the
most prevailing party shall be entitled to recover from the other, as part of
the prevailing party's costs, reasonable attorneys' fee. 13.5 Severability.
If any provision of this Agreement shall be held to be illegal, invalid or
unenforceable, such provision will be enforced to the maximum extent
permissible so as to affect the intent of the Parties, and the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. 13.6 Counterparts.
This Agreement may be executed in one or more counterparts, each of which will
be deemed an original, but which collectively will constitute one and the same
instrument. 13.7 Fair
Interpretation, Headings. This Agreement has been negotiated by the Parties and
their respective counsel. This Agreement will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either party based on draftsmanship of the Agreement or otherwise. The
headings and captions used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this Agreement. 13.8 Complete
Agreement. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof, and supersedes and replaces all
prior or contemporaneous understanding or agreements, written or oral, between
the parties regarding such subject matter. No amendment to or modification of
this Agreement will be binding unless in writing, in a format specified by
AccessLine, and signed by a duly authorized representative of Customer. No
delay or failure by either party in exercising any right under this Agreement,
and no partial or single exercise of that right, shall constitute a waiver of
that or any other right. Failure by either party to enforce any right under
this Agreement will not be deemed a waiver of future enforcement of that or any
other right. 13.9 Binding
Agreement. This Agreement is made for the benefit of AccessLine and Customer
and their respective affiliates, if any, and not for the benefit of any third
parties. This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective legal representatives, and their permitted
successors and assigns. 13.10 Remedies. The
rights and remedies of the Parties hereunder shall not be mutually exclusive,
i.e., the exercise of one (1) or more of the provisions hereof shall not
preclude the exercise of any other provision hereof. The Parties acknowledge,
confirm and agree that damages may be inadequate for a breach or a threatened
breach of this Agreement and, in the event of a breach or threatened breach of
any provision hereof, the respective rights and obligations hereunder shall be
enforceable by specific performance, injunction or other equitable remedy.
Nothing contained in this Agreement shall limit or affect any rights at law or
statute or otherwise for a breach or threatened breach of any provision hereof,
it being the intent of this provision to clarify that the respective rights and
obligations of the parties shall be enforceable in equity as well as at law or
otherwise. 13.11 Survival. Sections 7, 9, 10, 11, 13, 14 and 15 of this Agreement will survive Termination or expiration of this Agreement and remain in full force and effect. These terms will apply to either party's successors and assigns, and any other provisions of this Agreement that are necessary for interpretation of such surviving terms shall continue to apply to all such surviving terms. |
||||
|
|||||
