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Legal - Terms & Conditions
STANDARD TERMS AND CONDITIONS
For use with SmartConference, Smart800, SmartOffice, SmartNumber, SmartMessage, SmartFax. DIGITAL PHONE SYSTEM TERMS AND CONDITIONS (Current) For use with AccessLine's Digital Phone System purchased ON or AFTER April 10, 2011. DIGITAL PHONE SYSTEM TERMS AND CONDITIONS (Previous) For use with AccessLine's Digital Phone System purchased BEFORE April 10, 2011. SIP TRUNKING TERMS AND CONDITIONS For use with AccessLine's SIP Trunking. HOME OFFICE PHONE SERVICE (HOPS) TERMS AND CONDITIONS For use with AccessLine's Home Office Phone System. SMARTVOICE TERMS AND CONDITIONS For use with SmartVoice, SmartVoice Express and SmartVoice Plus. CALLSCAPE TERMS AND CONDITIONS For use with real-time call monitoring in DPS Flex with CallScape. STANDARD TERMS AND CONDITIONS (v122809) (For use with SmartConference, Smart800, SmartOffice, SmartNumber, SmartMessage, SmartFax and SmartPager.) AccessLine and Customer (the "Parties") agree as follows:
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.
AccessLine will allow cancellation of any non fixed-term Service plan purchased online within two business days of purchase for full credit of purchase price provided that:
Cancellations made after two business days and less than 30 calendar days from date and time of online purchase, regardless of your usage or personal configuration, will be charged for one full month of Service according to the Service plan selected, plus any setup fees, and charges for toll calls made and toll-free calls received.
In the event that you have moved a Number, either local or Toll-Free, from a previous service provider or carrier to AccessLine, then you will retain ownership of that Number. In the event the Service associated with that number being terminated, AccessLine will, upon your written request, allow you to move that local or Toll-Free number from AccessLine to an alternate carrier ( and will provide the necessary documentation to support this process), only if (a) the termination of the Service is not due to a default, and (b) all fees and charges for the Services, whether or not then due, have been paid in full.
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.
DIGITAL PHONE SYSTEM TERMS AND CONDITIONS (v083112) (For use with AccessLine's Digital Phone System purchased AFTER April 10, 2011.) 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: · AccessLine DPS (Digital Phone Service) Phone System and Service is a minimum of one Polycom (IP331, IP550, IP650, IP6000) or Vertical Desk Phone (IP2041). Optionally, customers may purchase additional Desk Phones, Wireless Transmitters, Wireless Adapters and Fax Adapters as Customer requires. Cordless phones (up to a maximum of three per customer address) 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 all equipment 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 Desk Phones, Cordless phones, Wireless Transmitters, Wireless Adapters and Fax Adapters are only to be used with the AccessLine Digital Phone Service. The Desk Phones, Cordless phones, Wireless Transmitters and Fax Adapters interconnect with Customer's existing broadband data connection. The Fax Adapter 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 (Internet Service Providers) 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 to determine their level of support for fax over VoIP. AccessLine DPS does not support Point-of-Sale machines (Credit Card machines). AccessLine DPS does not support alarm systems. The Polycom and Vertical Desk Phones in conjunction with the AccessLine DPS Service do not support POE mode (Power over Ethernet). 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. Customer understands that the use of the Services requires a network firewall at the Customer premises. Customers must deploy firewalls designed to enhance security for SIP-based VoIP applications and services. Any fraudulent use of Customer's Services due to a lack of acceptable firewall security is solely the responsibility of Customer, and AccessLine will not credit customer for these charges. Customer hereby indemnifies AccessLine against any responsibility for damages, consequential or otherwise that arise from an unprotected network. Customer also acknowledges that AccessLine may block without notice traffic reported by its carriers as potentially fraudulent. 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 that they are purchasing and are responsible for all equipment in its entirety at the time of acceptance of these terms and conditions. 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. If a Firm Order Commit (FOC) date is canceled or changed by either the Customer or the Customer's Agent/Representative prior to two business days before the agreed-to date, there will be a charge of $9.00 per Telephone Number (TN). If a Firm Order Commit (FOC) date is canceled or changed by either the Customer or the Customer's Agent/Representative within two business days PRIOR to the agreed-to date, there will be a charge of $50.00 per TN. If a Customer requires a reversion to prior service the day of the port or within 24 hours of the port occurring on the FOC date, there will be a charge or $450.00 per TN; the customer acknowledges that AccessLine cannot guarantee that such an immediate service reversion is even possible. Change/cancel orders received after 12 noon Pacific will be considered as received on the next business day. All such charges are not refundable and do not qualify under any service guarantees. 5. Billing and Payments: Unless otherwise agreed upon, 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 or billing contact information for the initial purchase, no additional notice or consent will be required for billings to that credit card or account. Some 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 thirty days after Customer has agreed to purchasing service by accepting the order, 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. Generally, recurring charges for line services will commence with the customer activates their phone lines through the Admin (web) Portal. 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. Notwithstanding the foregoing, or any other reference in this Agreement, all monies owed by Customer pursuant to the Agreement shall be billed to the billing address set forth below and shall be due and payable within thirty (30) days of Customer's receipt of such statement. Free phone promotional offer includes one free Polycom IP 331 or Vertical IP 2041 phone per purchased line of service or one Polycom IP 550 phone for every 2 lines of service purchased. One year contract required; Cancellation within one year (except for within AccessLine's 30 day money back guarantee period) will result in the customer paying for the pro-rated value of the phone at our 12 month 0% financing monthly rates displayed on the pricing page. For example if a customer receives a free phone and cancels after 6 months of service, the customer is responsible for 6/12th of the cost of the phone based on the phone's 12 month monthly purchase price. 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, EXCEPT THOSE RESULTING FROM THE WILLFUL MISCONDUCT OF ACCESSLINE, ITS EMPLOYEES, AGENTS OR AFFILIATES. 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 © 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. ©
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. ©
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.
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. Customer understands that the use of the Services requires a network firewall at the Customer premises. Customers must deploy firewalls designed to enhance security for SIP-based VoIP applications and services. Any fraudulent use of Customer's Services due to a lack of acceptable firewall security is solely the responsibility of Customer, and AccessLine will not credit customer for these charges. Customer hereby indemnifies AccessLine against any responsibility for damages, consequential or otherwise that arise from an unprotected network. Customer also acknowledges that AccessLine may block without notice traffic reported by its carriers as potentially fraudulent. 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. If a Firm Order Commit (FOC) date is canceled or changed by either the Customer or the Customer's Agent/Representative prior to two business days before the agreed-to date, there will be a charge of $9.00 per Telephone Number (TN). If a Firm Order Commit (FOC) date is canceled or changed by either the Customer or the Customer's Agent/Representative within two business days PRIOR to the agreed-to date, there will be a charge of $50.00 per TN. If a Customer requires a reversion to prior service the day of the port or within 24 hours of the port occurring on the FOC date, there will be a charge or $450.00 per TN; the customer acknowledges that AccessLine cannot guarantee that such an immediate service reversion is even possible. Change/cancel orders received after 12 noon Pacific will be considered as received on the next business day. All such charges are not refundable and do not qualify under any service guarantees. 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.
SIP TRUNKING TERMS AND CONDITIONS (v041913) (For use with AccessLine's SIP Trunking Service.) 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 which may be offered at additional costs, and which AccessLine, in its sole discretion, may add, modify, or delete from time to time. 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, or any part
thereof, without first obtaining any required regulatory approvals and
providing AccessLine with a copy of such approvals (e.g. Resale Certificates).
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.
3. Charges:Customer is responsible for paying all charges to its account for Services ordered via the SIP TRUNKING SERVICE AGREEMENT & ORDER FORM, in accordance with the Retail Pricing Schedule. The Retail Pricing Schedule rates are exclusive of applicable taxes and governmental surcharges, all of which will be added to Customer's bill. On the Unlimited SIP Trunking pricing, Customer will be credited $10.00 per line of service for signing a one year Term Bonus, $25.00 per line of service for signing a two year Term Bonus, and $50.00 per line of service for signing a 3 year Term Bonus. If the customer discontinues service, for any reason, prior to the expiration term of their term, customer is responsible to pay AccessLine the entire credited amount. If the customer discontinues service, for any reason, prior to the expiration term of their commitment, customer is responsible to pay AccessLine the entire credited amount. 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. If you have authorized payment by credit card, no additional notice or consent will be required for billings to that credit card or account. 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. Customer is prohibited from intermingling traffic or for utilizing this service for anything other than providing the 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 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, international usage and the Other Traffic Premium, which are billed in one-minute increments with a one-minute minimum. 4. Billing and Payments: Activation and monthly recurring charges are billed in advance. Usage and long distance charges are billed in arrears. Recurring charges commence accruing at the time the Services are provisioned by AccessLine. Payment of all charges is due thirty days from the date of the invoice (the "Due Date"). If Customer fails to pay for all charges by either: i) more than thirty (30) days past the Due Date on one (1) occasion, or ii) more than fifteen (15) days past the Due Date on two (2) occasions, within any twelve (12) month period, then Customer will be, upon receipt of written request from AccessLine, required to pay a billing deposit ("Billing Deposit"), of an amount equal to twice the average monthly bill for the preceding three (3) month period. If Customer fails to pay the Billing Deposit within ten (10) days of receipt of the request to do so, then AccessLine may, in its sole discretion, suspend all Services provided to Customer and maintain the Services in a suspended status until such time that the Customer has paid all amounts then due including the Billing Deposit. 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 upon request, 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 invoice. In the event Customer disputes any charges on an AccessLine Invoice ("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 invoice date, 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 invoices 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 15.1 below. Customer shall pay all charges not disputed in this manner within the thirty (30) day period specified above. If the dispute is resolved in AccessLine's favor, Customer shall pay AccessLine, within ten (10) days after resolution of the dispute, the entire unpaid disputed amount. 5. Term; Minimum Commitment; Cancellation Fee: The Term of this Agreement shall commence as of the Effective Date first written above and shall continue for the period indicated in the Order Form above (the "Initial Term") and will thereafter automatically renew on a monthly basis unless cancelled by either party, in writing, thirty (30) days prior to the expiration of any Term. The quantity of Services as indicated within the Order Form by the number of locations identified and the quantity of ports or lines ordered at each location 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. Customer is responsible for all aspects of their working environment and 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 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 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 and will be held to the contracted commitments as executed. 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 applicable Cancellation Fee and all costs of collection, including attorneys' fees. 7. 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. 8. 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 tortuous conduct of Customer; (ii) the damage, loss or destruction of any real or tangible personal property caused by the tortuous 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 © 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 indemnities 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. 9. Notices: Any notice or other communication herein required or permitted to be given shall be in writing and may be personally served or sent by telephone facsimile ("telecopy"), a recognized overnight courier or United States mail, and shall be deemed to have been received when (a) delivered in person or received by telecopy, (b) one business day after delivery to the office of such overnight courier service, or © three business days after depositing the notice in the United States mail with postage prepaid and properly addressed to the other party, at the following respective addresses: To AccessLine: AccessLine Communications; Attn: Mary Shea; 11201 SE 8th St., Bellevue, WA 98004; Tel: 206-621-3500; Fax: 425-646-8182 To Customer: as provided in the Order Form. 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. In the event of any damages arising out of AccessLine's furnishing or failure to furnish Services under this Agreement, Customer's sole remedies are contained in (a) the AccessLine SIP Trunking Service Level Agreement, available from AccessLine upon request ("SLA"), (b) Section 9 above. In the event AccessLine does not achieve a particular Service Level in a particular month, AccessLine will issue a credit to Customer as set forth in the applicable SLA, only upon Customer's request. AccessLine's maintenance log and trouble ticketing systems will be used for calculating any Service Level events. 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 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. 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 SIP TRUNKING 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. 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: o (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. o (b) Via the above, most Directory Assistance providers will be able to lookup the number when they receive an inquiry. o © 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: o 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. o 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. o 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 nor agency to act on behalf of the other party in any capacity or in any manner, except as be specifically authorized in this Agreement. o 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. o 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. o 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. o 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. o 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. o 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. o 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. o 15.11 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. HOME OFFICE PHONE SERVICE (HOPS) TERMS AND CONDITIONS (v012411) (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 a network firewall at the Customer premises. Customers must deploy firewalls designed to enhance security for SIP-based VoIP applications and services. Any fraudulent use of Customer's Services due to a lack of acceptable firewall security is solely the responsibility of Customer, and AccessLine will not credit customer for these charges. Customer hereby indemnifies AccessLine against any responsibility for damages, consequential or otherwise that arise from an unprotected network. Customer also acknowledges that AccessLine may block without notice traffic reported by its carriers as potentially fraudulent.
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. SMARTVOICE TERMS AND CONDITIONS (v012411) (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 use of the Services requires a network firewall at the Customer premises. Customers must deploy firewalls designed to enhance security for SIP-based VoIP applications and services. Any fraudulent use of Customer's Services due to a lack of acceptable firewall security is solely the responsibility of Customer, and AccessLine will not credit customer for these charges. Customer hereby indemnifies AccessLine against any responsibility for damages, consequential or otherwise that arise from an unprotected network. Customer also acknowledges that AccessLine may block without notice traffic reported by its carriers as potentially fraudulent.
CALLSCAPE LICENSE AGREEMENT (v111912) (For use with AccessLine's real time call monitoring application CallScape used with AccessLine's Digital Phone System.) CALLSCAPE LICENSE AGREEMENT IMPORTANT: READ THIS AGREEMENT CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN ACCESSLINE COMMUNICATIONS CORPORATION (“ACC”) AND YOU (ACTING AS AN INDIVIDUAL OR, IF APPLICABLE, ON BEHALF OF THE INDIVIDUAL ON WHOSE COMPUTER THE SOFTWARE IS INSTALLED). IF YOU CLICK THE “ACCEPT” OPTION OR INSTALL THE SOFTWARE PRODUCT ACCOMPANYING THIS AGREEMENT (THE“SOFTWARE”) YOU WILL BE BOUND BY THIS AGREEMENT. You are not required to accept these terms but, unless and until you do, the Software will not install and you will not be authorized to use the Software. If you do not wish to agree to these terms, please click “DO NOT ACCEPT.” ANY COMMERCIAL USE OF THE SOFTWARE, AND ANY RESALE OR FURTHER DISTRIBUTION OF THE SOFTWARE, OTHER THAN AS EXPRESSLY AUTHORIZED BY THIS AGREEMENT, CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND MAY VIOLATE APPLICABLE COPYRIGHT LAWS.
1. LICENSE GRANT; RELATED PROVISIONS a. GRANT OF A SINGLE USER LICENSE. Subject to the terms and conditions of this Agreement, ACC hereby grants to you a non-exclusive, non-transferable license to use the Software during the Term, i. solely in executable or object code form, on a single computer, and ii. solely for your internal use and not for purchase, sale or delivery of any product or service to a third party or other commercial or business purpose. b. LIMITATIONS i. duplicate the Software for any purpose other than as reasonably necessary to use the same as contemplated by this Agreement; ii. except for temporary transfer in the event of computer malfunction, install the Software on a second computer; iii. except as expressly authorized by law, reverse engineer, disassemble, decompile, translate, reconstruct, transform or extract the Software or any portion of the Software; iv. except as expressly authorized by law, change, modify or otherwise alter the Software; v. transfer, pledge, rent, share or sublicense the Software other than in connection with the sale or other transfer of the computer on which it is initially installed; vi. grant any third party access to or use of the Software on a service bureau, timesharing, subscription service, rental or application service provider basis or otherwise; or vii. defeat or circumvent, attempt to defeat or circumvent, or authorize or assist any third party in defeating or circumventing controls on the installation or use of copies of the Software. c. UPDATES 2. TERM;
TERMINATION 3. OWNERSHIP 4. NO
WARRANTIES 5. LIMITATION
OF LIABILITY 6. MISCELLANEOUS a. Notice b. Privacy c. U.S.
Government License d. Complete
Agreement e. Amendments;
Waiver f. Severability g. Governing
Law h. Export
Controls i. Language j. Fees ACC reserves the right at any time to charge a fee for the Software, upon prior notice to you. If you decide not to pay the fee for the Software, your license to use the Software will automatically terminate. CLICK HERE TO SEE ACCESSLINE'S PRIVACY POLICY |
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