Terms of Service Agreement

1. TERMS AND CONDITIONS
A. The terms and conditions stated herein are in lieu of and replace any and all terms and conditions set forth in any documents issued by Customer, including, without limitation, purchase orders and specifications. Any additional, different, or conflicting terms and conditions on any such document issued by Customer at any time are hereby objected to by Provider, and any such documents shall be wholly inapplicable to any sale made or service rendered hereunder and shall not be binding in any way on Provider. No waiver or amendment to this contract or these terms and conditions shall be binding on Provider, unless made in writing expressly stating that it is such a waiver or amendment and signed by a duly authorized representative of Provider.
2. TERM OF AGREEMENT
A. Unless otherwise indicated, the Service is month-to-month with no term. The term of this Agreement (“Term”) begins on the date that Customer purchases Services and continues monthly for the duration of the service period. At the end of each month, the Term is automatically renewed for the following month unless Customer provides Provider, prior to the end of the current Term, notification of intention to terminate the service. Customer agrees to pay for Services for the duration of the Term. Expiration of the Term does not alleviate Customer of responsibility for paying all unpaid, accrued charges due hereunder.
3. 911 DIALING
A. 911 Emergency Dialing supported
B. 911 Dialing will be implemented and operational with the Service. Service may not be used in any geographical area different from that reported to the Provider as the Customer’s installation site. With E911 service, when you dial 911, your telephone number and registered address is simultaneously sent to the local emergency center assigned to your location, and emergency operators have access to the information they need to send help and call you back if necessary. By using this Service, you authorize us to disclose your name and address to third parties involved with providing 911 Dialing to you, including, without limitation, call routers, call centers and local emergency centers. This website provided by the FCC explains how VoIP works with the 911 system in greater detail.
C. Registration of Physical Location Required. For each phone number that you use for the Service, you must register with the Provider the physical location where you will be using the Service with that phone number. When you move the physical location where Services are provided to another location, you must register your new location with the Provider. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near your old address, and emergency personnel may be dispatched to the incorrect location. Always use your VoIP service only at the physical address that we have registered for you with e911.
4. OUTAGES DUE TO ELECTRICAL, INTERNET OR OTHER GENERAL FAILURES
A. Customer acknowledges that all Services, including emergency 911 calls, will not function in the absence of electrical power, access to the Internet or other general failures associated with the VOIP network. Customer acknowledges that the Services will not function if there is an interruption of Customer’s broadband or high-speed Internet access service.
5. BILLING, PAYMENT AND DISPUTES
A. Upon purchase of the Services, Customer must provide a valid form of payment (Credit Card or check). Customer authorizes the Provider to charge Customer for all charges arising from Customer’s user of the Services. Customer agrees to notify the Provider of any change to the credit card or checking information including, but not limited to, changes in accounts number, expiration date or billing address. The Provider shall not be responsible for any charges made by the credit card issuer or bank to Customer’s credit card or checking account for exceeding credit limit, insufficient funds, or other reasons.
B. The Provider will send invoices for the Services and bill all charges to Customer electronically each month. Such charges shall include activation fees, monthly service fees, disconnection fees, toll charges, taxes and any other applicable charges. Monthly service fees are paid in advance of each month’s service; toll charges and any other applicable charges are billed at the end of each month’s service. The Provider reserves the right to charge Customer for toll charges at any time if Customer’s cumulative toll charges for the current month exceed two hundred fifty dollars ($250.00). Billing for monthly service fees commences upon purchase of the Services, and the monthly phone services will occur in advance of the month the Services are provided, whereas billing for any toll or other services will occur in arrears.
C. In addition to the monthly Services, other types of services (service level agreements or SLA) may be provided as included in the monthly Service or as additional fees. Each monthly service option is contracted for technical support via telephone and email. The monthly technical support hours vary by Services enrolled in, as described in the initial setup process. Hours above the contracted hours, or hours requested for separate projects will be billed out in fifteen (15) minute increments at ninety-five dollars an hour ($95.00 per hour).
D. If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined Customer credit card charges, Provider may suspend or terminate the Services and all accrued charges shall be immediately due. If Customer fails to pay Provider within 60 days of billing date, the Provider has the
right to disconnect the Services without notice and/or send to collection. Upon disconnect, Customer agrees to immediately pay all amounts owed to Provider. Upon disconnect a valid credit or debit card will be required to reinstate service.
E. Billing Disputes. Customer must dispute any charges for the Services within thirty (30) days of receipt of the invoice in question or Customer waives any objection.
F. The Provider may change or adjust prices for monthly Services or SLAs at any time. When possible, the Provider will give Customer thirty (30) days’ notice of an upcoming price change.
6. TAXES AND REGULATORY FEES
A. Unless otherwise stated in the Order Form, Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, other than Provide income taxes, with respect to the Services ordered. In addition to any taxes imposed by governments or regulatory agencies, the Provider reserves the right to charge other authorized regulatory fees, including, without limitation, E911 service fees, universal service fees, and regulatory recovery fees (“Fees”). Any imposition, modification or increases in Fees by a government or regulatory programs shall become effective without notice.
7. TELEPHONE NUMBER
A. Telephone numbers provided by Provider (“Number”) to Customer shall be leased and not sold. Customer is not to use the Number with any other device other than the Equipment without the express written permission of Provider. Provider reserves the right to change, cancel or move the Number at its sole discretion. If, however, Customer chooses to ‘port’ their existing phone number into the Provider VoIP service, Customer shall also be able to ‘port’ the number out of the Provider network upon termination of service if Customer has maintained an account in good standing with Provider.
B. Upon expiration, cancellation or termination of the Services, Customer shall relinquish and discontinue use of any Numbers, voice mail access numbers and/or web portals assigned to Customer by Provider or its vendors, unless arrangements are made by Customer with the Provider prior to the cancellation date to ‘port’ the number out.
8. PROHIBITED USES
A. Any use of the Services or any other action that causes a disruption in the network integrity of Provider or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services. Customer understands that neither Provider nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. Customer agrees that it will NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the network. Customer agrees and represents that it is purchasing the Services for its own internal use only, and shall not resell, transfer or make a charge for the Services without the advance express written permission of Provider. Use of service shall not include certain activities including, but not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing or any other activity that would be inconsistent with residential or small business usage, unless specifically agreed to otherwise in writing by Provider and Customer.
9. TERMINATION
A. Customer agrees to provide Provider with no less than thirty (30) days’ notice of termination. Customer shall be responsible for the full monthly service fee for the month during which the notice of termination of service is provided to Provider. Provider reserves the right, at its sole discretion, to suspend, terminate or change the Services without advanced notice for any reason, including without limitation, misuse of the Services in any way, Customer’s breach of this Agreement, Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer that adversely affects the Services, Provider, Provider’s network or other Customer’ use of the Services. Emergency 911 calls will not work if Customer’s account is terminated or suspended. Provider reserves the right to determine, at its sole discretion, what constitutes misuse of the Services and Customer agrees that Provider’s determination is final and binding on Customer. Provider may require an activation fee to change or resume a terminated or suspended account.
10. PRIVACY
A. The Provider utilizes the public Internet and third-party networks to provide voice and video communication services. Accordingly, Provider cannot guarantee the security of voice and video communications of Customer. Provider is committed to respecting Customer’s privacy. Once Customer chooses to provide personally identifiable information, it will only be used in the context of Customer’s relationship with Provider. Provider will not sell, rent, or lease Customers’ personally identifiable information to others. Unless required by law or subpoena or if Customer’s prior permission is obtained, Provider will only share the personal data of Customer with business partners that are acting on Provider’s behalf to complete the activities described herein. Such Provider entities and/or national or international business partners are governed by Provider’s privacy policies with respect to the use of this data. Upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, Provider may disclose personally identifiable information.
11. INDEMNIFICATION
A. Customer agrees to indemnify and hold the Provider harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against the Provider by a third party arising from or relating to: (i) any act, error, omission, fault, negligence or misconduct of Customer or any user of the Service or Equipment; (ii) Customer’s material breach of the Rules of Use; (iii) any claim by any employee or invitee of Customer or user other than a claim based on the gross negligence or willful misconduct of the Provider; (iv) any claim by any customer of Customer, User, or any other third party relating to, or arising from, Customer’s use of the Services or Equipment; or (v) violation of any law or regulation by Customer, any User, or any Customer employee, contractor, or agent.
12. DISCLAIMER OF CONSEQUENTIAL DAMAGES
A. In no event shall Provider or its vendors be liable for any special, incidental, indirect, punitive or consequential damages or for any damages, including but not limited to loss of data, loss of revenue or profits, or arising out of or in connection with the use or inability to use services or products provided hereunder whether due to a breach of contract, breach of warranty, the negligence of Provider or its vendors or otherwise.
13. NOTICES
A. Provider communicates with its Customers primarily via email. Notices to Customer shall be sent to the email address specified by Customer at the time of registration for the Services or as subsequently specified by Customer (“Email Address”). Customer is responsible for notifying Provider of any Email Address changes. Customer agrees that sending a message to the Email Address is the agreed upon means of providing notification. Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that Customer read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided hereunder.
14. FORCE MAJEURE (EVENTS BEYOND OUR CONTROL)
A. Neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including any act of war, act of God, earth-quake, flood, embargo, riot, sabotage, terrorist attack, labor shortage or dispute, governmental act or failure of any third party service or network, provided that the delayed party (a) gives the other party prompt notice of such cause, and (b) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
15. BREACH
A. In the event of Customer’s breach of the terms of the Agreement, including without limitation, failure to pay any sum due hereunder, Customer shall reimburse Provider for all attorney, court, collection and other costs incurred by Provider in the enforcement of Provider’s rights hereunder and Provider may keep any deposits or other payments made by Customer.
16. SEVERABILITY
A. The invalidity of any portion of any provision of these terms and conditions shall not affect the validity of the remainder of the provisions thereof.
17. MANDATORY ARBITRATION & GOVERNING LAW
A. Any dispute or claim between Customer and Provider arising out of or relating to the Service or Equipment provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules . The arbitrator’s decision shall follow the plain meaning of the relevant documents and shall be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually, and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. Customer acknowledges that this arbitration provision constitutes a waiver of any right to a jury trial.
B. The Agreement and the relationship between Customer and Provider shall be governed by the laws of the State of Idaho without regard to its conflict of law provisions. Customer and Provider agree to submit to the exclusive jurisdiction of the courts located within the state of Idaho for purposes of entering any arbitration award hereunder or for any other litigation hereunder. The failure of Provider to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
18. ENTIRE AGREEMENT
A. The terms and conditions of this Agreement, the VoIP Services Agreement(s) and any and all additional Agreements and applicable Service Addendum(s) constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. This agreement shall be binding upon the heirs, successors, and assigns of the Provider and Customer. The parties agree that any limitations of liability, exclusions, and disclaimers of warranties and indemnification obligations are essential to the parties entering into this Agreement, will survive the termination of the Agreement, and will apply even if the Agreement is found to have failed of its essential purpose