Terms of Service
Effective Date: January 1, 2019
These Terms and Conditions (hereinafter the “Service(s)” shall govern all Service Quotes, Addendum(s) to Service Quotes and any other contracts or agreements entered into between VOIP59, LLC, and its Customers.
1. DEFINITIONS
Service(s) means provisioning of voices services, Internet access (including Shared Bandwidth and Dedicated lines), analog, digital, VoIP or other Domestic, International and toll free termination and origination, conferencing, hosting, server collocation, software sales and all related customer support services.
1.1 “Hardware” means any equipment sold, leased or rented as part of this quote provided by VOIP59, LLC to Customer pursuant to this Agreement.
2. IT Disclaimer
Supporting products and features such as Cloud PBX, remote IP phones, SIP Trunking, remote maintenance and Hardware updates involve access to the public internet. Customer understands and agrees that many of these services that utilize the public internet to operate can be negatively affected by your company internet or network issues and outages. These issues can affect certain aspects of system operation. Additionally – your new telephone system may utilize VoIP (Voice over Internet Protocol) and reside on your company computer network. You represent that your local area network (LAN) is capable of handling VoIP traffic and understand that VOIP59, LLC is relying on this assertion in quoting your new system. If you are unsure if your LAN is capable of this, please check with your in-house or outsourced IT professional.
2.1 All phone system installations require cooperation from your in-house or outsourced IT professional. If you do not have an IT professional we may be able to refer one to you. VOIP59, LLC shall collaborate to the best of our ability with your IT department or professional to ensure that the correct router/firewall/switch configurations are implemented for your particular application.
2.2 Customer understands and agrees that some system features and connectivity such as Cloud PBX, SIP Trunks, IP Phones, and Remote Maintenance are dependent on your IT department making necessary changes to your company network router, firewall or switch. Any necessary changes to your company network by your IT department or professional shall be at customer expense. If these changes are not made correctly by your IT department – feature operation and functionality may be negatively affected.
2.3 Customer further understands and agrees that VOIP59, LLC shall not be responsible for any customer related IT issues (i.e. incorrect router, firewall or switch configuration, insufficient POE budgeting, quality of service (QoS) and or loss of service or features that are the direct or indirect result of incorrect router/firewall/switch configurations beyond the control of VOIP59, LLC. Additionally, if VOIP59, LLC is requested by customer or their agent to correct network issues that are related to customer network, through either incorrect network configuration or the IT professional – customer understands and agrees that additional labor charges may apply.
2.4 Toll fraud: If customer has requested that VOIP59, LLC enable international calling with their phone line carrier, customer agrees to hold VOIP59, LLC harmless and without liability for any toll charges that are the result of unauthorized access and hacking.
3. Installation of hardware and software
3.1 Installation Process. VOIP59, LLC and or its agents may from time to time, supply VOIP59, LLC hardware/Hardware to be installed within the customer premise as requested to deliver the service. Costs associated for the installation of services by VOIP59, LLC and or its agents to be defined within the Services Quote or additional quotes or addendums agreed to by the parties. Customer may choose to self-install the Hardware, hardware and services at customer’s own risk and expense. VOIP59, LLC Technical and Trouble Support for customer self-installed services will be charged at the current prevailing wage for those services.
3.2 File Modification. As part of the installation process, system files on Customer’s computer may be modified for applications such as Tenfold, ReachUC and Salesforce. VOIP59, LLC does not represent, warrant nor covenant that such modifications will not disrupt the normal operations of Customer’s computer. For these and other reasons, VOIP59, LLC recommends, and Customer agrees, that Customer will back-up all files prior to any computer work performed by VOIP59, LLC.
3.3 Above prior to installation of the Service. If Customer does not back-up all existing computer files, Customer understands and accepts the associated risks of not doing so. VOIP59, LLC SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE RESULTING FROM THE ABOVE OR OTHER FILE MODIFICATIONS.
3.4. Licenses: End User Licenses. Customer agrees to comply with the terms and conditions of all end user license agreements accompanying any Hardware or plug-ins to such Hardware distributed in connection with the Service. All end user licenses shall immediately terminate on the date that the Service expires or is otherwise terminated.
4. Payment
4.1 Fixed Monthly Service Fees. The cost for Services requiring a fixed monthly fee shall be as stated in the Service Quote and shall be payable monthly, in advance, plus all applicable taxes, tariffs, governmental assessments, surcharges and fees (collectively, the “Fixed Service Fee(s)”). The Fixed Service Fee for the first month of Service shall be due and payable prior to installation of Service and if commencement of Service occurs on other than the first calendar day of the month then the Fixed Service Fee will be prorated by the number of calendar days remaining in the month. Thereafter, the Fixed Service Fee is due and payable in advance on the first day of each month and shall be considered late if not received by VOIP59, LLC by the tenth calendar day of each month.
4.2 Variable Monthly Usage Fees. The cost for Services based on the usage by Customer and other variable factors shall be computed at the rates stated in the Service Quote and shall be payable monthly, using a cut-off date selected by VOIP59, LLC, in arrears, plus all applicable taxes, tariffs, governmental assessments, surcharges and fees (collectively, the “Usage Fee(s)”). The rates for voice services set forth in the Service Quote shall be valid for the initial term, provided however, all rates for international services are subject to change at any time by VOIP59, LLC without prior written notice. VOIP59, LLC may, at its discretion, choose to adjust the rates for voice services to include the cost, if any, of tariffs, taxes or assessments as imposed upon VOIP59, LLC by any governmental agency. All Usage Fees are due and payable on the first day of the month billed and shall be considered late if not received by VOIP59, LLC by the tenth calendar day of such month.
4.3 Installation Charge and Security Deposit. Charges for any hardware, Hardware, installation, etc., shall be as stated in the Service Quote as a Non-Recurring Charges “NRC” and shall be due and payable upon ordering the service. An equipment deposit for VOIP59, LLC equipment to be used as rental equipment within the Customer Premises shall be as stated in the Service Quote and shall be due prior to installation and shall be refunded to Customer upon termination of service, provided said VOIP59, LLC Equipment is returned in good working and cosmetic condition
4.4 Agreement to Pay. Monthly payments and any other amounts due to VOIP59, LLC may be charged to Customer’s Visa, MasterCard, American Express or other credit card, and/or electronically debited to Customer’s bank account, at Customer’s option. Customer agrees to pay all monthly Service Fees, Usage Fees, Installation Charges, NRC’s and Equipment Deposits. Customer hereby authorizes VOIP59, LLC to charge Customer’s Visa, MasterCard or other credit card and/or to electronically debit Customer’s bank account for all such fees, charges, taxes and payment transaction processing costs. VOIP59, LLC reserves the right to change the acceptable forms of payment at its discretion.
4.5 Late Payments/Failure to Pay. If any payment due to VOIP59, LLC is not received within 10 days of due date, an administrative charge of 5% of the amount due may be assessed and the Service may be discontinued. If the Service is discontinued, Customer will be required to pay a reconnect fee of $50.00 in addition to all past due amounts before the Service is reconnected. The administrative charge is intended to be a reasonable advance estimate of VOIP59, LLC’s costs resulting from Customer’s late payments and non-payments and is set in advance due to the difficulty inherent in determining the costs associated with any particular late payment or non-payment. VOIP59, LLC does not anticipate that Customer will fail to make payments on a timely basis. VOIP59, LLC does not extend credit to its Customer, and the administrative charge is not interest, a credit service charge nor a finance charge. In the event VOIP59, LLC, at its sole discretion, elects to use the services of a third-party collection agency, the costs of such third-party collection agent shall be paid by the Customer.
4.6 Price Changes. VOIP59, LLC has the right to change its Service Fee at any time and upon 30 days’ notice unless otherwise stated in the Service Quote.
4.7 Credit Inquiries. Customer authorizes VOIP59, LLC to make inquiries and to receive information about Customer’s credit experience from others, enter this information in Customer’s file, and disclose such information concerning Customer to appropriate third parties for reasonable business purposes. VOIP59, LLC reserves the right, in its sole discretion, to refuse to provide Service based upon lack of creditworthiness, or in the alternative to require a security deposit that will be returned to Customer, without interest thereon, upon the expiration or termination of Services assuming all amounts due VOIP59, LLC have been paid in full. VOIP59, LLC shall have the right to offset against the security deposit, in part or in full, for any amounts due VOIP59, LLC.
4.8 Prepayment Option. Customer may prepay any Fixed Monthly Service Fees for 12 months and receive a discount of 5%. The amount due shall be the then current monthly fee multiplied by twelve multiplied by 95%. Upon early termination the refund due shall be prorated using the calculation set forth in Section 7.1 and the monthly rate upon which the prepayment was calculated.
5. Customer Conduct
5.1 Prohibited Uses. Customer shall not use the Service or the VOIP59, LLC Equipment, directly or indirectly;
5.1.1 for any unlawful purposes; use of the Service for transmission or storage of any information, data or material in violation of any United States federal, state or local regulation or law is prohibited, such limitation shall include, without limitation, posting or disseminating content which is obscene, unlawful, threatening, defamatory, or infringes upon the intellectual property rights of any third party;
5.1.2 to post, transmit or disseminate objectionable information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law or regulation;
5.1.3 to access any other person’s telephone, computer, Hardware or data without the knowledge and consent of such person;
5.1.4 to upload, post, publish, transmit, reproduce, create derivative works of, or distribute in any way, information, Hardware or other material obtained through the Service which is protected by copyright or other proprietary rights without obtaining permission from the owner(s);
5.1.5 to maliciously and purposefully damage any equipment rented to customer by VOIP59, LLC.
5.1.6 to service, alter, modify or tamper with the VOIP59, LLC Equipment or Service or permit any other person to do the same unless such person is authorized by VOIP59, LLC to do so;
5.1.7 to resell the Service or otherwise charge others to use the Service; the Service is for personal use only and Customer agrees not to use the Service for operation as an telecom service provider or for any other business enterprise in competition with the Service;
5.1.8 to connect the SIP gateway to any computer outside of Customer’s Premises;
5.1.9 to allow or provide access to adult content material to anyone under the age of 18 years.
5.1.10 Fair Usage Policy. Calls to land lines and mobile devices are included in your subscription and subject to a fair usage limit of 1,000 minutes per subscriber line (sip trunk) per month. Upon exceeding the fair usage limit, VOIP59, LLC reserves the right to charge a rate of $0.025 per minute for any overages. In the case of US only bundled trunking services, rates (outside the U.S. and Canada) are charged at the current international rates.
VOIP59, LLC reserves the right to change this fair usage policy at any time. Your continued use of your subscription after expiry of the 30-day period shall constitute your acceptance to be bound by the terms and conditions of the VOIP59, LLC fair usage policy.
5.1.11 Call Flooding. To protect the integrity if its network, VOIP59, LLC may in its reasonable discretion, and without liability for damages of any type to Customer, its affiliates or End Users, temporarily block duplicate or repeated numbers dialed in succession, where VOIP59, LLC considers the number of attempts to be potentially harmful to the network.
5.2 Termination. VOIP59, LLC reserves the right to immediately terminate this Agreement and the Service if Customer engages in any of the activities listed in Section 5.1 above or if Customer uses the Service or VOIP59, LLC Equipment contrary to this agreement. This Section 5.2 shall in no way limit VOIP59, LLC’s rights of termination pursuant to Section 7.2 of this Agreement.
Customer agrees to indemnify, defend and hold harmless VOIP59, LLC against all claims and expenses (including reasonable attorneys’ fees) resulting from Customer’s use of the Services, including, without limitation, the activities listed in Section 5.1 above, or from any other violation of VOIP59, LLC policies by Customer. This provision shall survive the expiration or other termination of this Agreement.
6. Service Interruptions
6.1 Prorated Credit. Except as otherwise required by law, Customer is entitled to a prorated credit upon request only in the event of a complete failure of the Service due to technical malfunction of the system or network operated by VOIP59, LLC for a period of twenty-four (24) consecutive hours or more. To obtain a credit, Customer must request a credit in writing to VOIP59, LLC within thirty (30) days of the failure. Credits shall be applied against future fees payable by Customer for the Service.
6.2 Force Majeure. VOIP59, LLC shall have no liability, including as set forth in this Section, for interruption of the Service due to circumstances beyond VOIP59, LLC’s control, including, without limitation, acts of God, flood, natural disaster, regulation or governmental acts, fire, civil disturbances, strike or weather.
7. Automatic Renewal & Termination
7.1 Termination by Customer. The Terms of this Agreement shall be as stated in the Services Quote beginning on the date of Installation and shall automatically renew for a period equal to the initial term on each anniversary unless written notice of cancellation is received by VOIP59, LLC thirty (30) days prior to the end of each Term For all other Services billed by a Fixed Service Fee, Customer may only terminate prior to the end of the Term stated in the Services Quote by giving written notice to VOIP59, LLC and by payment of a Fixed Service Fee Termination Amount equal to the number of months remaining in the Term times the amount of the monthly Fixed Service Fee (“Fixed Service Fee Termination Amount”). For Services billed pursuant to Usage Fees Customer may only terminate prior to the end of the Term stated in the Service Quote by giving written notice to VOIP59, LLC and by payment of a Usage Fee Termination Amount equal to the number of months remaining in the Term times the average of the prior three (or if less than three months have elapsed, using the actual number of months elapsed) month’s Usage Fees (“Usage Fee Termination Amount”). All such types of Termination Fees described herein shall collectively or individually be known as Termination Fee(s). ANY TERMINATION NOTICE RECEIVED BY VOIP59, LLC WHICH IS NOT ACCOMPANIED BY THE APPLICABLE TERMINATION FEE AND RETURN OF ANY RENTAL HARDWARE TO THE VOIP59, LLC OFFICES LOCATED AT 15342 Hawthorne Blvd, Suite 305 WILL RESULT IN TERMINATION TO BE NULL AND VOID;
7.2 Termination by VOIP59, LLC. VOIP59, LLC may terminate this Agreement immediately should Customer violate any of the terms of this Agreement. VOIP59, LLC may also terminate this Agreement for any other reason by providing Customer with written notice of such termination no later than thirty (30) days before the date of termination. In the event that VOIP59, LLC terminates this Agreement for any reason other than Customer’s violation of the provisions of Section 5.1, Service Fees and other charges will continue to accrue through the date of termination, but all prepaid Service Fees and charges for cancelled Service will be refunded. If termination is due to violation of the provisions of Section 5.1, the termination amount will be equal to the number of months remaining in the Term times the amount of the monthly Fixed Service Fee;
7.3 Customer Obligations. Customer agrees that upon termination of this Agreement;
7.3.1 Customer will pay VOIP59, LLC in full for Customer’s use of the Service and VOIP59, LLC Equipment up to the later of (i) the effective date of termination of this Agreement or (ii) the date on which the Service and the VOIP59, LLC Equipment have been disconnected and returned to VOIP59, LLC. Customer agrees to pay VOIP59, LLC on a prorated basis for any use by Customer of the Service or VOIP59, LLC for a part of a month;
7.3.2 Customer will permit VOIP59, LLC, its employees, agents, contractors and representatives to access Customer’s Premises during regular business hours to remove the VOIP59, LLC owned equipment and other materials furnished by VOIP59, LLC;
7.3.4 Customer will ensure the return of all VOIP59, LLC rental equipment to VOIP59, LLC. If the VOIP59, LLC rental equipment is not returned, Customer agrees to pay the Manufacture’s Suggest Retail Price (MSRP) prorated over a five-year term. In other words, if the current MSRP for a phone is $200 and the customer fails to return this phone after one year of service rental, the customer will be billed $180 for the phone. If the customer fails to return a phone after four years of service rental, the customer will be billed $40 for the phone. VOIP59, LLC shall have the right to charge such amounts to Customer’s Visa, MasterCard or other credit card, or to electronically debit Customer’s bank account;
7.3.5 Customer, upon request by VOIP59, LLC made not more frequently than monthly, shall provide information regarding the number of desktop and/or portable computers connected to the VOIP59, LLC Service during any month.
7.4 Retention of Rights. Nothing contained in this Agreement shall be construed to limit VOIP59, LLC’s rights and remedies available at
law or in equity. Customer, upon request by VOIP59, LLC, shall provide information in a timely fashion regarding the brand/model of phone system(s), the number of desktop, portable or mobile devices and/or applications (apps) connected to the VOIP59, LLC Service.
7.5 Guarantees, refunds or warranties. There are no guarantees, refunds, or warranties expressed or implied. Customer reserves the right to terminate services per section 7 of this agreement if dissatisfied with services or hardware for any reason.
7.6 Survival. The terms set forth in Sections 2.3, and 2.4 shall survive the termination of this Agreement.
8. Content
There may be some content on the Internet or otherwise available through the Service which may be offensive to some individuals or which may not be in compliance with all local, state, or federal laws, regulations, and other rules. VOIP59, LLC assumes no responsibility for the content contained on the Internet or otherwise available through the Service. All content accessed by the Customer through the Service is access and used by the Customer at Customer’s own risk and VOIP59, LLC and each of its representatives, affiliates, subcontractors, employees, and agents, shall have no liability whatsoever for any claims, losses, actions, damages, suits, or proceedings arising out of or otherwise relating to access to such content by the Customer or the Customer’s employees, affiliates, agents, or representatives. VOIP59, LLC specifically disclaims any responsibility for the accuracy, quality, and confidentiality of information obtained through the Service.
9. Users
Customer acknowledges that Customer is executing this Agreement on behalf of all persons who use the Service and/or VOIP59, LLC Equipment through Customer’s computer(s), phone systems, PBXs and other telecommunications equipment. Customer shall have sole responsibility for ensuring that all such other users understand and comply with the terms and conditions of this Agreement. Customer further acknowledges and agrees that Customer is solely responsible and liable for any and all breaches of the terms and conditions of this Agreement whether such breach is the result of use of the Service and/or the VOIP59, LLC Equipment by Customer or any other user of Customer’s computer(s), phone systems, PBXs and other telecommunications equipment. Customer agrees to indemnify, defend and hold harmless VOIP59, LLC against all claims and expenses (including reasonable attorneys’ fees) arising out of the use of the Service and/or VOIP59, LLC Equipment by any other user of Customer’s computer(s), phone systems, PBXs and other telecommunications equipment.
10. Liability
10.1 Exclusions. UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT OR OTHERWISE PROHIBITED BY LAW, NEITHER VOIP59, LLC, IT’S OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, NOR ANY OWNER OR MANAGER OF THE BUILDING OR LAND IN WHICH CUSTOMER’S PREMISES IS LOCATED SHALL HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR:
10.1.1 ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, THE USE OF THE SERVICE BY CUSTOMER OR ANY OTHER USE OF THE VOIP59, LLC EQUIPMENT OR HARDWARE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE RESULTING FROM OR ARISING OUT OF CUSTOMER’S RELIANCE ON OR USE OF THE SERVICE OR VOIP59, LLC EQUIPMENT OR HARDWARE, OR THE MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION OR ANY FAILURE OF PERFORMANCE OF THE SERVICE OR VOIP59, LLC EQUIPMENT OR HARDWARE; OR
10.1.2 ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS (INCLUDING LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OROTHERWISE ARISING IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE VOIP59, LLC EQUIPMENT OR HARDWARE, OR SERVICE OR A THIRD PARTY INFRINGES UPON THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY.
10.2 Application. The liability limitations set forth in this Section 10 apply to the acts, omissions and negligence of VOIP59, LLC (and its officers, directors, employees, agents, contractors and representatives) which, but for this provision, would give rise to a cause of action in contract, tort or any other legal doctrine. However, the liability limitations set forth in this Section 10 shall apply to liability for personal injury or death only to the extent applicable law does not prohibit such limitation.
10.3 No Third Parties. No third party owner or manager of Customer’s building or land is a party to this Agreement. Thus, no such owner or manager shall be responsible for, nor shall be liable for, the quality of the Service or VOIP59, LLC Equipment.
10.4 Sole Remedies. Customer’s sole and exclusive remedies under this Agreement are as set forth in this Agreement.
11. E911
The Federal Communications Commission (“FCC”) requires that VOIP59, LLC provide E911 Service to all customers who use VOIP59, LLC Services within the United States.
11.1 CUSTOMER ACKNOWLEDGES THAT VOIP59, LLC’s EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS
IN THE SAME WAY THAT TRADITIONAL LAND LINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 10 AND CUSTOMER HEREBY AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICES, WHO MAY PLACE CALLS USING CUSTOMER’S SERVICES, OF THE 911 LIMITATIONS DESCRIBED HEREIN. CUSTOMER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT VOIP59, LLC HAS ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH VOIP59, LLC E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. VOIP59, LLC ADVISES CUSTOMER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
11.2 CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
11.3 CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION PROPERLY IF THERE IS AN INTERRUPTION OR A LACK OF BANDWIDTH OF CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
11.4 CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUT DIALING SYSTEMS INCLUDING HOME OR BUSINESS SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, SURVEILLANCE CAMERAS AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. CUSTOMER HEREBY WAIVES ALL CLAIMS AGAINST VOIP59, LLC FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
11.5 VOIP59, LLC E911 SERVICE IS A MANDATORY COMPONENT OF ALL
INBOUND/OUTBOUND FAX AND VOICE SERVICE PLANS. E911 SERVICE IS NOT OFFERED ON INTERNATIONAL NUMBERS, TOLL FREE NUMBERS OR SIMILAR SERVICE ACCESSORIES OR ADD-ON PLANS. E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. CUSTOMERS WHO SUBSCRIBE TO VOIP59, LLC E911 SERVICE WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF THEIR EQUIPMENT (ATA or IP PHONE) WITH VOIP59, LLC, EITHER ON THE VOIP59, LLC USER PORTAL, INITIAL ORDER FORMS OR BY CALLING CUSTOMER SERVICE, AND AGREE TO UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES. CUSTOMER ACKNOWLEDGES THAT VOIP59, LLC’s 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 VOIP59, LLC WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO VOIP59, LLC BY CUSTOMER.
11.6 CUSTOMER ALSO ACKNOWLEDGES THAT VOIP59, LLC E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE VOIP59, LLC’s E911 SERVICES UNSUITABLE FOR SOME CUSTOMERS. BECAUSE EACH CUSTOMER’S CIRCUMSTANCES MAY VARY WIDELY, CUSTOMERS SHOULD CAREFULLY EVALUATE THEIR OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON VOIP59, LLC E911 SERVICE. CUSTOMER ACKNOWLEDGES THAT IT IS 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 VOIP59, LLC E911 SERVICE FROM TRADITIONAL,
LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
** VOIP59, LLC E911 SERVICE WILL NOT FUNCTION IF CUSTOMER’S ATA or IP PHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF CUSTOMER’S VOIP59, LLC 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 VOIP59, LLC 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 VOIP59, LLC’s 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 VOIP59, LLC 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 VOIP59, LLC E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE VOIP59, LLC NETWORK, THERE IS A POSSIBILITY THAT A VOIP59, LLC E911 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 A CUSTOMER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE VOIP59, LLC EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, VOIP59, LLC E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
11.7 CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT VOIP59, LLC WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING VOIP59, LLC 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 VOIP59, LLC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER 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 ATTORNEY FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
12. Indemnification
Indemnification Obligation. Customer shall defend (with counsel reasonably acceptable to VOIP59, LLC), indemnify and hold harmless VOIP59, LLC and VOIP59, LLC’s officers, directors, employees, agents, contractors and representatives from and against any and all claims and expenses, including reasonable attorneys’ fees).
13. Privacy Policy
Customer agrees that VOIP59, LLC and/or its agents may, from time to time, collect information regarding Customer’s use of the Service and activities on the Internet. Customer agrees that such information may be shared with third parties provided that (i) VOIP59, LLC does not disclose any personally identifiable information to others except, as allowed by law and (ii) otherwise complies with applicable privacy laws. Customer expressly grants VOIP59, LLC the right to disclose information relating to Customer and/or Customer’s account in response to a subpoena issued in a civil or criminal investigation, litigation, court order or a civil investigation by a governmental entity.
14. Fraudulent Calls
In the event Customer connects the Services to the public switched network, Customer is solely responsible for selection, implementation and maintenance of security features for protection against unauthorized calling, and VOIP59, LLC shall have no liability therefore. Customer is solely responsible for payment of long distance, toll and other telecommunications charges incurred through use of the Services being provided here under. Customer shall indemnify and hold VOIP59, LLC harmless from all costs, expenses, claims or actions arising from fraudulent calls of any nature carried by means of the Services. Customer shall not be excused from paying VOIP59, LLC for Services provided to Customer or any portion thereof on the basis that fraudulent calls comprised a corresponding portion of the Services. In the event VOIP59, LLC discovers fraudulent calls being made, nothing contained herein shall prohibit VOIP59, LLC from taking immediate action, without notice to Customer that is reasonably necessary to prevent such calls from taking place. Notwithstanding, it is understood that VOIP59, LLC is under no obligation to investigate the authenticity of calls charged to Customer’s account and shall not be liable for any fraudulent calls processed by VOIP59, LLC and billed to Customer’s account.
15. Unlimited Minutes Plans
Unlimited minute extensions are subject to fair use restrictions.
Our plans and other Services are offered on an “unlimited minutes”. All unlimited plans, may only be used for normal business purposes, not including call centers or other type of “call blasts” or marketing campaigns unlessed authorized by VOIP59, LLC.
Are provided only for dialog between two individuals at any given time per extension. We exclude international calling, which is available for an additional fee. Unlimited minutes are issued on a “single concurrent call basis”, meaning that in case of concurrent (simultaneous) calls only the first call will be unlimited and other concurrent calls will be assessed minutes. The term “Unlimited Minutes” applies only to calls that are terminated or initiated from a VOIP59, LLC extension associated with an IP Phone or a Softphone that is defined as an “Unlimited Minutes Extension” or “Unlimited Extensions”, and does not overlap with any calls to the same extension. Unlimited plans also may not be used for any of the following prohibited uses (which are in addition to the other prohibited uses applicable to all Services): Trunking or forwarding your VOIP59, LLC number to (an)other phone number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system that is billed on a per minute basis only, unless otherwise specifically agreed. Spamming or blasting (e.g., sending one hundred (100) or more bulk and/or junk voicemail or faxes simultaneously). Bulk call-in lines (e.g., customer support or sales call centers, “hotlines”, 900 numbers, sports-line numbers, etc.) Auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls). In addition, unusually high usage of the Services may impair VOIP59, LLC’s ability to provide high quality Services to others and/or indicate unauthorized use of the Services, in which case VOIP59, LLC may suspend or terminate your account or, upon prior notice, convert your account to a metered calling plan that charges higher usage rates. Inbound toll-free calls from a toll-free number assigned to this account will be billed separately. VOIP59, LLC reserves the right to add to, modify or amend this Use Policy at any time for any reason at its sole discretion.
16. Notices
16.1 Controlling Law; Venue. The validity, performance, and interpretation of this Agreement will be governed and construed in accordance with the laws of the United States and the State of Oklahoma without regard to its conflicts of law provisions. The parties will voluntarily appear before and hereby consent and submit to the exclusive jurisdiction of the state and federal courts located in Oklahoma City, OK 73008. If any dispute, litigation, or other action arises between the parties with respect to the matters covered by this Agreement, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees and out of pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
16.2 Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally, (ii) by commercially established courier service upon delivery or, if the courier attempted delivery on a normal business day and delivery was not accepted, upon attempted delivery, (iii) by facsimile transmission when confirmed by facsimile transmission, or (iv) by certified or registered mail, return receipt requested, ten (10) calendar days after deposit in the mail. Such notices shall be sent to the addresses set in the Services Quote or such other address as a party hereto shall notify the other party of in writing.
To: VOIP59, LLC:
US Mail: PO Box 195, Tonkawa, OK 74653
16.3 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
16.4 Headings. The headings in this Agreement are inserted for convenience and do not constitute a part of the Agreement, nor modify or limit any of the terms.
16.5 Waiver; Amendment; Modification. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by the party against whom such waiver or consent is asserted. The waiver by either party of, or consent of either party to, a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach by the other party. This Agreement may be amended or modified only by mutual agreement of authorized representatives of the parties in writing.
16.6 Enforceability of Provisions. To the extent any provision or portion of this Agreement is determined to be invalid, illegal or unenforceable, such provision or portion shall be severed or deleted from this Agreement or limited so as to give effect to the intention of the parties insofar as possible. The invalidity or unenforceability of any provision or portion hereof shall not affect the validity or enforceability of any other provision or this Agreement as a whole.
16.7 Assignment. VOIP59, LLC may assign its rights and obligations under this Agreement to any party without the consent of
Customer. Customer may not assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of VOIP59, LLC.
16.8 Entire Agreement. This Agreement, including the Services Quote and attachments hereto, constitutes the entire agreement between the parties regarding its subject matter. This Agreement supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. No other representation, warranty, term or condition, other than as expressly set forth in this Agreement, shall be binding on VOIP59, LLC.