These Vonage Business Cloud Terms of Service (hereinafter referred to as the "Terms" “Service Terms” or "Agreement") apply to the use of products or services provided by Vonage Business Inc. ("Vonage Business", "Vonage" or "Company") to the entity identified in a valid and binding Sales Quotation or Sales Order (the "Customer") and are an integral part of the agreement between Vonage and Customer. The Customer and Vonage are sometimes collectively referred to herein as the "Parties," or individually as a "Party". By ordering, purchasing or using the Services, Customer agrees to be bound by these Terms, which among other things, require mandatory arbitration of disputes instead of a jury trial and limit Vonage’s liability.
PURSUANT TO FCC REQUIREMENTS, VONAGE IS REQUIRED TO ADVISE ITS CUSTOMERS OF ANY LIMITATIONS THAT E911 SERVICE MAY HAVE IN COMPARISON TO TRADITIONAL E911 SERVICE, WHICH ARE SET FORTH AT SECTION 31 BELOW AND IN THE E911 DISCLOSURE NOTICE AND ACKNOWLEDGEMENT, WHICH CAN BE FOUND HERE.
1. Definitions: The following capitalized terms, as used in this Agreement, shall have the meanings set forth below:
“Acceptable Use Policy” or “AUP” means the Vonage acceptable and reasonable use policy and incorporated by reference HERE.
"Activation" means that Customer's Service is first available for Customer's use at a Customer Location.
"Activation Date" means the date of Activation, which is the earlier of (i) the date on which all Services are installed, activated and available for Customer’s use at a Customer Location, or (ii) the date which is thirty (30) days after the Effective Date, as may be adjusted by mutual agreement.
"Affiliate(s)" means, with respect to a Party, any entity that Controls, is Controlled by or is under common Control with the entity. "Control," for purposes of this definition, means the direct or indirect ownership or control of more than fifty percent (50%) of the voting equity of the subject entity.
"Applicable Laws" means any and all applicable federal, state or local laws, rules or regulations, including, but not limited to applicable restrictions concerning call recording, call monitoring, call interception and/or direct marketing or telemarketing.
“App Marketplace” means Vonage App Store which is accessible through Customer’s online account and through which Customer may purchase third party products and services connection with, or complementary to, Customer’s use of the Services.
“Customer Data” means any data, information or other materials of any nature whatsoever generated by Customer and/or the authorized users of the Services, or provided to Vonage by or through Customer, in the course of implementing or using the Services.
"Customer Equipment" means all equipment owned, leased or otherwise provided by Customer, or which is specifically identified in one or more Sales Orders as Customer Equipment, used in connection with the Services. "Customer Equipment" includes equipment sold by Vonage to Customer but does not include Vonage Business Equipment.
"Customer Location" means the physical location(s) owned or leased by Customer where Services are provided or Vonage Business Equipment will be used or stored.
"E911 Disclosure" means the provisions set forth in the Vonage Business E911 Disclosure Notice and Acknowledgement and incorporated by reference into a Sales Order stating Vonage’s policies regarding the availability and limitations of E911 Service.
“Effective Date” means the date the Sales Order is executed by Customer.
"In-App Purchase" means the Customer's purchase of Vonage products or services from within a mobile application made available on a third-party online app store such as the Apple® App Store® or Google Play™ online app stores, and where payment is processed by the third-party online app store.
“Initial Service Term” means the period of time stated in a Sales Order during which Vonage will provide Services to Customer.
“Renewal Service Term” means a period of time after expiration of the Initial Service Term that is equal to the period of time of the Initial Service Term. unless the Parties otherwise agree in writing.
"Sales Order" means a Sales Quotation as described in Section 2 that has been offered by Vonage and accepted by an authorized representative of Customer and shall automatically incorporate these Terms by reference. A Sales Order arises once a Customer accepts a Sales Quotation for the initial Services; or (b) additional Services via the online process or via phone by a Customer administrator; and the Sales Quotation is subsequently accepted by Vonage.
"Service" or "Services" means products or services provided or made available by Vonage to Customer that are purchased by Customer (a) as set forth in a Sales Order, or (b) via (i) Customer’s online account with Vonage; (ii) phone by a Customer administrator; (iii) the App Marketplace or (iv) an In-App Purchase.
"Service Term" or "Term" means the period of time (commencing upon the Activation Date) during which Vonage provides Services to Customer.
“Shipping and Handling” means any fees and costs payable by Customer to Vonage in connection with packaging, shipping, or processing Vonage Business Equipment or Customer Equipment to a Customer Location.
"Software" means proprietary software (including documentation relating to such software) owned or licensed by Vonage, or which Vonage has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used by Customer in connection with the Services.
"Taxes and Fees" means any taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service and Vonage Business Equipment, including value added, sales, use, gross receipts, excise, franchise, public utility or other taxes, fees, duties or surcharges (including universal service, 911 and other regulatory fees and surcharges), whether imposed on Vonage or a Vonage Affiliate.
"Vonage Business" or "Vonage" means Vonage Business Inc., a Delaware corporation, or any Affiliate providing Services to Customer.
"Vonage Business Equipment" means all equipment that is used, leased or otherwise provided by Vonage to Customer for use in connection with the Services, including phone hardware (e.g., phones, routers, switches, SD-Wan devices, and battery backup). Vonage Business Equipment does not include Customer owned hardware or equipment or hardware and equipment that Customer purchases through Vonage.
2. Sales Agreement. Services initially purchased by Customer for each Customer location will be described in a "Sales Quotation" that shall include: (i) the price, location, and other information about the Services; (ii) the details relating to equipment being offered for sale or rent to Customer; and (iii) if applicable, associated installation, maintenance, shipping or delivery requirements. The Sales Order incorporates by reference these Terms, and when executed by Vonage and Customer, becomes a binding contract between Vonage and Customer. Vonage will provide, and Customer will pay for and receive from Vonage, each Service pursuant to the terms and conditions of each Sales Order, or as ordered by the Superuser (as defined in Section 7 (User Designation)). Notwithstanding the foregoing, for In-App Purchases only, the "Sales Quotation" shall be deemed to be the description of Services presented to Customer and information provided by Customer within the in-app sign-up process or the App Marketplace sign-up process, prior to Customer's confirmation of the purchase of the Services. Upon acceptance of a Sales Order by Vonage, or for Services ordered by the Superuser, Vonage will provide, and Customer will pay for and receive from Vonage, each Service pursuant to the terms and conditions of each Sales Order or as ordered by the Superuser and this Agreement. Customer may increase the quantity of Services at existing Customer Locations at any time during the Initial Service Term or Renewal Service Term ("Additional Services") by entering into an addendum or change order that sets forth the specific Additional Services requested. Each such addendum or change order shall be subject to Vonage’s acceptance (including by the rendering of the Additional Services), and upon such acceptance shall be considered an amendment to this Agreement and subject to the terms herein.
4. App Marketplace; Marketing Partners & Authorized Distributors.
5. Authorizations. Customer shall provide Vonage, at no cost to Vonage, all permissions, consents or authorizations necessary to activate, maintain, inspect, and repair the products and/or Services and any Vonage Business Equipment, including (if applicable) the right to access and enter Customer's Location with advanced notice. The parties will agree in advance on the day(s) and time(s) of any such access.
6. High Speed Internet Connection Required. Customer understands, acknowledges, and agrees that: (i) Customer must have a high-quality high speed internet connection to use the Services; and (ii) Vonage is not providing an internet connection for Customer. Vonage does not control and is not responsible for: (i) Customer's internet connection; (ii) the quality of Customer's internet connection; (iii) any third party products and/or services related to Customer's internet connection; or (iv) problems with the Services that are caused by or related to Customer's internet connection. Vonage will not contact any of the internet providers and/or service or product providers on Customer's behalf.
7. User Designation. Customer may designate one user to be an account administrator with full administrative control of Customer's account from the Vonage user interface. For most Vonage customers, the primary administrator for Customer’s account is known as the Superuser or, in some cases, a primary administrator (collectively hereinafter, "Superuser"). The individual assigned to be the Superuser is an individual designated by Customer through the online sign-up process or, if the agreement was not entered into online, the individual whose name is identified on the Sales Order as the Customer’s authorized person. The Superuser: (i) has the ability to make changes to the Customer account (e.g., service additions, service deletions - subject to early termination charges, if any - assignment of users, account cancellations, updates to credit cards, etc.); and (ii) is the authorized individual on Customer's account with respect to transferring (or "porting") of Customer telephone numbers to a carrier other than Vonage. The Superuser may re-assign "Superuser" status to another user. In the event Customer desires information regarding a customer service record or actual call log details, the information requests must come from the Superuser or a Customer account administrator. However, Vonage shall respond to these requests by transmitting the requisite information to the email address on file for the Superuser.
(a) Company Contact. The "Company Contact" for the account is assigned through the online sign-up process. The Company Contact shall refer to the individual(s) who will receive messages from Vonage concerning matters of general relevance to the account (e.g., notices of updates to the account, billing notices, maintenance alerts, etc.). Such notices are typically provided through electronic mail. A Company Contact may or may not be the Superuser or an administrator for the account.
(b) Reassigning Superuser Designation. In the event that Customer seeks to re-assign the Superuser designation on Customer's account and the Superuser is unable to make the change, Vonage requires that the Customer either: (i) submits an email from the Superuser's email address on file with Vonage; or (ii) provides a written request on Customer's letterhead and executed by an officer or owner of the Customer company.
(c) Adding Services. Additional Services can be purchased by a Superuser through the Vonage user interface or by calling Vonage Customer Care. Customer hereby authorizes a Superuser to: (i) add Services to Customer's Vonage account; and (ii) commit Customer to pay for these Services on a recurring monthly basis. A Superuser has the ability to authorize an account cancellation and make changes to the account (e.g., service additions, service deletions - subject to early termination charges if any, assignment of users, updates to credit card(s), etc.).
Customer understands and acknowledges that Activation of the Services may require the use of certain Customer Equipment and/or Vonage Business Equipment.
(a) Customer Equipment. Customer represents that it owns or otherwise has the right to use the Customer Equipment in connection with the Services. Customer shall be fully responsible for the installation, maintenance, repair and operation of any Customer Equipment. Vonage shall not be responsible for ensuring compatibility of any Customer Equipment with Vonage Business Equipment.
i. Vonage may, upon Customer's request, facilitate the provision of equipment from a third party supplier or resell certain equipment. While Vonage recommends some equipment brands and may facilitate Customer's purchase of some equipment as an accommodation, the original equipment manufacturer and not Vonage shall be responsible for any equipment defects, if applicable. Vonage will pass through all original equipment manufacturer warranties for the equipment to Customer. Vonage shall have no liability to Customer of any nature regarding such equipment. Customer is responsible to check the equipment manufacturer's website for warranty, return rules and other terms and conditions applicable to such third party equipment.
ii. Purchased equipment may not be returned to Vonage unless otherwise directed. ALL EQUIPMENT SALES ARE FINAL. Equipment sold by Vonage to Customer may be returned to the manufacturer solely in the event of a defect which arises within the applicable warranty period, provided Customer complies with the terms of this Section and the Return Materials Authorization ("RMA") policy. Prior to returning the equipment, Customer must contact Vonage so that Vonage may confirm the correct location to send the equipment, confirm that a defect exists to process a warranty claim on behalf of Customer, and to provide a RMA number. Customer must ship the equipment to the address provided by Vonage in accordance with all RMA procedures within 10 days after receipt of a RMA number, including the payment of all shipping fees. Once the equipment is received, if applicable the original equipment manufacturer will handle the return in accordance with its applicable warranty policy.
(b) Vonage Business Equipment. With respect to Vonage Business Equipment rented, leased, loaned or otherwise provided by Vonage for use by Customer, Customer will not: (i) repair or otherwise modify any Vonage Business Equipment without Vonage’s prior written consent; or (ii) create or allow any liens or other encumbrances to be placed on any Vonage Business Equipment. Customer must notify Vonage prior to relocating any Vonage Business Equipment.
i. Customer will use commercially reasonable efforts to protect and maintain Vonage Business Equipment in a secure location at the Customer Location within conditions (including room temperature) that are customary and reasonable for such equipment, and shall be fully liable for all costs, charges or expenses associated with damage to or loss, including the replacement cost of Vonage Business Equipment beyond normal wear and tear.
ii. During the Term of any applicable Service, Vonage shall repair or replace defective Vonage Business Equipment rented (or otherwise provided by Vonage for use) by Customer. Notwithstanding the foregoing, Vonage shall not be obligated to replace Vonage Business Equipment if it is determined by Vonage that Customer or another third party is responsible for damage to Vonage Business Equipment. Customer will be responsible for the replacement cost of such damaged equipment.
iii. Vonage Business Equipment (and replacements) may be refurbished equipment.
iv. Upon the termination of this Agreement or any Service, or if Customer is returning Vonage Business Equipment during the Service Term, Customer must contact Vonage for the relevant RMA information. Customer shall securely pack, ship and return to Vonage all Vonage Business Equipment at Customer’s expense in accordance with the RMA instructions to the address designated by Vonage. Failure to obtain an RMA and/or to adhere to Vonage’s RMA instructions will give rise to Customer’s full liability for the replacement cost of the Vonage Business Equipment. The RMA must be received before the Vonage Business Equipment may be shipped back to Vonage. All wires, cables and power supplies provided with the Vonage Business Equipment must be returned with the Vonage Business Equipment. If the Vonage Business Equipment has not been timely returned to Vonage within 30 days after the termination of the applicable Service, Vonage shall invoice Customer and/or charge Customer's method of payment (if paying via credit card or ACH), and Customer shall pay for the full replacement value of any Vonage Business Equipment. The “replacement cost” shall be the then current list purchase price of the Vonage Business Equipment. Vonage Business Equipment remains the property of Vonage at all times and Vonage reserves all other rights and remedies, including retrieval. Customer will not withhold access to Vonage to retrieve unreturned equipment, and in such case, Vonage may charge Customer, and Customer will pay and be liable for, a retrieval fee of up to $1,000.00 per Customer Location. Said charge may be assessed only in the event Customer does not pay for such unreturned Vonage Business Equipment, and Vonage is required to dispatch a technician to retrieve such equipment (which is a non-exclusive remedy to obtaining the replacement cost chargeable to Customer, as applicable).
(a) Non-Exclusive License. If Software is provided by Vonage in connection with Service(s), Vonage grants to Customer a personal, limited, revocable, non-exclusive, non-assignable and non-transferable license (other than to a Customer Affiliate or pursuant to Section 36(a) (Assignment) to use the Software in object code form only, solely for the purpose of using the Service(s). This license will permit such use by Customer or Customer Affiliates and any of its employees, contractors (but only within the scope of their employment or services with Customer) authorized by Customer to use the Service, provided that Customer shall be responsible for all uses of the Service as provided in this Agreement. This license commences upon Vonage’s acceptance of the Sales Order for the Service and terminates immediately upon the expiration or termination of the applicable Service or this Agreement for any reason. Customer shall return or destroy all Software and any related written material, together with any copies, in its possession or under its control promptly upon the expiration or termination of the applicable Service or this Agreement for any reason. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this license other than as set forth in this Agreement is void and may result in termination by Vonage of this Agreement and the license. No other licenses or rights to the Software are granted or implied.
(b) Software Upgrades and Modifications. Vonage reserves the right to upgrade the Software or discontinue support for earlier versions of the Software at any time, provided that such upgrade will not materially alter the features and/or functionality of the Services. Customer agrees to implement promptly all fixes, updates, upgrades and replacements of Software and Third Party Software as directed by Vonage or by the third party providers of Third-Party Software. Vonage shall not be liable for inoperability of the Services due to failure of Customer to timely implement the required changes.
(c) End User Licenses. Certain Software Vonage provides to Customer may contain third-party software ("Third-Party Software"), including open source software. Use of such Third-Party Software may be governed by separate copyright notices and license provisions, which may be found or identified in documentation or on other media delivered with the Third-Party Software or as otherwise provided to Customer, and which are incorporated by reference into this license. Notwithstanding any other terms in this Section 9, such provisions shall govern the use of Third-Party Software. Customer agrees to comply with the terms and conditions of all end user license agreements accompanying any Software (including Third-Party Software) or plug-ins to such Software distributed in connection with the Service. All end user licenses shall immediately terminate on the date that the Service expires or this Agreement is terminated.
(d) Copyright/Trademark/Unauthorized Usage of Device, Firmware or Software. The Service(s), Vonage Business Equipment and Software and all information, documents and materials on Vonage’s website(s) are protected by trademark, copyright, patent and other intellectual property laws and international treaty provisions. All website content, corporate names, service marks, trademarks, trade names, logos and domain names of Vonage are and shall remain the exclusive property of Vonage or its Affiliates and nothing in this Agreement shall grant Customer the right or license to use any of the foregoing. Customer agrees that the Vonage Business Equipment is exclusively for use in connection with the Service and that Vonage will not provide any passwords, codes or other information or assistance that would enable Customer to use the Vonage Business Equipment for any other purpose. If Customer decides to use the Service through an interface device not provided by Vonage (which Vonage reserves the right to prohibit in particular cases or generally), Customer warrants and represents that it possesses all required rights, including software and/or firmware licenses, to use that interface device with the Service and Customer will indemnify, defend and hold harmless Vonage from and against any and all liability arising out of Customer's use of such interface device with the Service. Customer may not undertake, cause, permit or authorize the modification, creation of derivative works, or translate, reverse compile, disassemble, hack or reverse engineer, or otherwise attempt to derive the source code from the binary code of the Software.
10. Service Term and Service Cancellation.
(a) Service Term; Notice of Cancellation. Each Sales Order forms a fixed term subscription and is effective and binding on Customer on the Effective Date. Customer agrees it is liable for the full value of each Sales Order, subject to Section 26(b) (Vonage Default). The Service Term will begin on the Activation Date. Sales Orders which describe delivery of Service to multiple Customer Locations may identify multiple Service Dates and Service Terms, with the Service Term for such additional Customer Location being on separate Sales Orders and Service Terms.
i. Month-to-Month Services. For Services provided on a month-to-month basis, either Party may terminate the Services by providing at least 30-days’ notice, with termination being effective the month following the month notice was provided.
ii. Fixed Term Services. For Services provided on a fixed-term basis, the Initial Service Term will automatically renew for a Renewal Service Term (with automatic renewal of subsequent Renewal Service Terms) equal in length to the previous Service Term unless the Parties agree otherwise in writing, or unless either Party terminates the Service(s) by giving the other Party written notice of non-renewal not less than 90 days prior to the expiration of the then-current Service Term. The Service Term shall continue unless and until either Party provides notice of cancellation in accordance with this Section 10, or Vonage terminates the Services in accordance with the terms set forth in this Agreement. Notwithstanding notice by a Party to terminate Services and this Agreement, the Service(s) will remain in effect through the effective date of termination and the terms and conditions of this Agreement and the applicable Sales Order(s) will continue to apply to such Services. Upon termination of the applicable Service Term, Vonage will not be obligated to furnish the Services to Customer; provided however, if Vonage continues to provide Services and Customer accepts and continues to use the Services after termination of the Service Term, such use shall be on a month-to-month basis and Customer shall be obligated to pay for such Services at then-current monthly rates for such Services. Either party may terminate such month-to-month term pursuant to Section 10.a. above. The Service Term for Additional Services (not including the Vonage Business Equipment) will be coterminous with the Services at the Customer Location where the Additional Services are being added. The Service Term for Vonage Business Equipment will require a minimum 24-month Service Term and will not be co-terminus if at the time of purchase Customer’s Service Term is less than 24-months. Service Fees will be increased to reflect the Additional Services, subject to the same pricing and payment terms as are set forth in the applicable Sales Order. Additional Customer Locations are contracted pursuant to additional Sales Orders by Customer Location.
(b) Early Termination Charges - Fixed Term Services.
i. Early Termination Liability. If Customer terminates a Sales Order or all or any of the Service(s), other than pursuant to Section 26(b) (Vonage Default), or if Service is terminated by Vonage hereunder pursuant to Section 26(a) (Customer Default), all charges, Taxes and Fees under such Sales Order will be accelerated and Customer shall pay Vonage the sum of: (i) all unpaid amounts for Service(s) actually provided; plus (ii) 100% of the remaining contracted monthly recurring charges as of the date of termination through the end of the Service Term as prescribed in the Sales Order, or if such termination is prior to the Activation Date, the monthly recurring charges multiplied by the number of months prescribed by the Sales Order for the Service Term; and (iii) applicable Taxes and Fees on all of the foregoing. Vonage may automatically charge Customer’s selected method of payment if Customer is paying via credit card or ACH, or Customer shall pay such cancellation amount upon receipt of an invoice therefore, at Vonage’s option, pursuant to Section 11(a) (Billing and Payment Processing).
(c) Additional Termination Obligations. Upon termination, expiration or cancellation of the Services, Customer shall discontinue use of any Vonage Services, including Vonage-provided telephone numbers, log-ins, voicemail access numbers or any web portal sites assigned to Customer by Vonage.
(d) Cancellation Process. Services may be cancelled by Customer only through the Superuser by contacting Vonage Customer Care by telephone during normal business hours or via email to [email protected]. (If Customer contacts a Marketing Partner or Authorized Distributor to cancel the Services, or any portion thereof, that Marketing Partner or Authorized Distributor will collect the pertinent information and provide the information to Vonage to effect cancellation in accordance with Customer's instructions.) CUSTOMER MAY CANCEL SERVICES ONLY THROUGH THIS METHOD. VONAGE WILL NOT ACCEPT CANCELLATION VIA FAX, SMS OR OTHER ELECTRONIC METHODS. FAILURE TO CANCEL SERVICES IN ACCORDANCE WITH THIS SECTION WILL RESULT IN ONGOING SERVICE CHARGES, FEES AND TAXES. Vonage will provide Customer with email confirmation of the Services cancelled. If Customer does not receive a confirmation of Service cancellation, Customer must notify Vonage by sending an email to [email protected] or contact Vonage Customer Care by telephone.
(e) Ancillary Services Termination. In the event Customer subscribes to ancillary services provided by Vonage (including voicemail recording, call recording, etc.), cancellation of the Services for any reason shall also result in the cancellation of such ancillary services.
(f) In-App Purchases. Sections 10(a) through 10(e) above shall not apply for Services purchased via In-App Purchase or the App Marketplace. Services purchased via In-App Purchase are provided on a monthly basis and the Term will begin on the Activation Date. The terms of service for the app store or the App Marketplace from which Customer downloaded the mobile application shall govern renewals, refunds and cancellations of the Services, and such terms are hereby incorporated by reference. Failure to comply with such terms may result in the suspension or termination of Services pursuant to Section 26(a) (Customer Default). Due to payment notification requirements of certain app store platforms, Customer may be required to open their mobile app to enable automatic delivery of their monthly subscription payment notification to Vonage. If Customer fails to open (or if Customer deletes) their mobile app within 14 days after the end of the prior monthly subscription period, Vonage may not receive payment notification despite Customer's account having been charged by the app store platform. If Vonage does not receive payment notification within 14 days after the end of the prior monthly subscription period for any reason, Customer's account may be suspended or terminated pursuant to Section 26(a) (Customer Default).
11. Billing, Credit, and Payment.
(a) Billing and Payment Processing.
i. Payment of Invoices. Invoices are delivered monthly. Except for usage based fees, all fees are due in advance on the first day of each billing period, subject to Section 26(a)(i) (Customer Default). Fees may include monthly recurring charges ("Service Fees") and other non-recurring charges including but not limited to, activation fees, porting fees, early termination fees ("ETF"), and other fees further described in Section 12 (Taxes and Fees) (collectively, "Fees"). All usage based charges (including charges for international calls) are due and payable in arrears on the first day of each billing period following the month they were incurred. Customer agrees to pay for all equipment as the equipment order is processed and set up fees upon acceptance of the Sales Order or as ordered by the Superuser. Customer agrees to pay for the first month of Services upon Activation of the Services. Failure to pay all undisputed amounts in full may result in account suspension pursuant to Section 27(a) (Customer Default). and Vonage shall have no liability for such suspension under any circumstances. In the event that Customer's use of the Services involves usage-based charges, Vonage may, as applicable, in its sole discretion, process charges against Customer's payment method prior to Customer's regular monthly billing cycle date.
ii. Customer agrees to pay Vonage all undisputed recurring monthly service charges, Taxes and Fees, Shipping and Handling, set-up charges and usage charges, if applicable, for Customer's use of the Services. Vonage may also charge, and Customer shall pay, all recurring and nonrecurring costs, charges and expenses incurred by Vonage for Customer's benefit in connection with installation, delivery or implementation of the Services (collectively, the "Special Install Costs"), as reflected in the applicable Sales Order or Statement of Work. For clarification and by way of example, standard installation does not include (and the following may comprise a portion of any Special Install Costs) core drilling, wiring extensions for excessive distances, installation of new conduit runs, installation of water proof shielding, installation of aerial circuit runs, or removal of hazard materials, as determined by Vonage at its sole discretion, as well as after-hours installation of Services (“Non-Standard Installation”). Non-Standard Installation will be purchased by Customer as an additional Service. Non-Standard Installation is the installation of Services Monday to Friday between 5pm to 8am (local time), or any time on Saturday and/or Sunday. Non-Standard Installation will include appointment coordination, the provisioning of the Service, basic external wiring, call tests, and remote Vonage technical support as needed. Customer agrees to provide Vonage with a valid email address, billing address, and a valid payment method prior to activation of Service. Customer shall advise Vonage immediately if Customer's Company Contact or Superuser email addresses change and/or if the payment method changes or expires.
iii. Customer agrees to supply Vonage with the information necessary for Vonage to complete an initial credit evaluation to verify Customer’s credit rating prior to providing Customer with access to the Services or the Equipment. Vonage may also, during the Service Term of this Agreement, update its information regarding Customer’s credit rating without notice to or permission from Customer. Vonage reserves the right during the Service Term, in its sole discretion, to require another form of secure payment authorization such as credit card or auto-payment in the event Customer’s account is habitually delinquent, or if Customer is purchasing additional Services and at the time of purchase Customer’s credit rating has materially decreased.
(b) Payments via Credit Card or ACH. With respect to all amounts chargeable to Customer under this Agreement, if paying by credit card or ACH, Customer authorizes Vonage to: (a) automatically bill the credit/debit card Customer provided on the same day of each month; or (b) automatically debit (charge) Customer's checking account electronically via ACH on the same day of each month. "ACH" shall mean the automated clearing house, which is the nationwide network of banking institutions that process electronic payments automatically between bank accounts. Customer agrees that Vonage may receive updated information about Customer's account from the financial institution issuing Customer's credit/debit card. Customer's payment method is also subject to charge for applicable fees and charges arising from a cancellation of Service or required Vonage Business Equipment returns.
(c) Alternative Payment Methods. Under certain circumstances, and except for prepaid cards, Vonage may agree to accept alternative payment methods. In such case, Customer shall agree to Vonage’s reasonable requirements, as well as certain fees, related to the aforementioned pre-approved, alternative payment methods. In such case, Customer authorizes Vonage to either: (a) use information from the check to make a one-time electronic transfer from Customer's account as soon as the Customer submits the payment; or (b) to process the check as a check transaction, in which case Customer may not receive the check back from Customer's financial institution. In the event that Customer presents a check to Vonage for payment that is returned by Customer's bank for non-sufficient funds, Vonage may suspend or terminate the account pursuant to Section 26(a) (Customer Default). Customer shall pay a reconnect fee to reactivate the suspended Service as set forth in Section 11(d) (Suspension of Services for Non-Payment). Late payments and returned checks are subject to late payment fees and returned check fees, respectively.
(d) Suspension of Services for Non-Payment. During any period of suspension, Services and features and functions of the Services (including, but not limited to call recording service and any other service Vonage is providing) will be unavailable to Customer until the undisputed amount owed is paid in full. Customer will be unable to record calls or access any data or recordings that have previously been stored by Vonage. If Vonage restricts or suspends Customer’s Services pursuant to Section 27(a) (Customer Default), Customer remains responsible for all Service Fees during any suspension period. Vonage may, at its sole option, choose to restore Customer’s Services prior to receipt of the delinquent amount owed. A restoration fee of $25.00 may apply and any overdue charges must be paid in full. Such restoration shall not be construed as a waiver of Vonage’s right to (i) receive full payment for all delinquent Service Fees due or (ii) again restrict, suspend or terminate the Services at any time for non-payment of any undisputed unpaid charges. The failure of Vonage to restrict, suspend or terminate the Services for non-payment of any undisputed charges shall not operate as a waiver or estoppel to restrict, suspend or terminate Services of such account for non-payment of current or future charges. Vonage may also apply other payments made by Customer towards any past-due undisputed amounts owed. Customer shall also reimburse Vonage for all reasonable attorneys' fees and other costs incurred by Vonage relating to collecting delinquent payments or Customer's undisputed non-payment breach of this Agreement.
(e) Billing Disputes. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount and submit written notice of the disputed amount (with details of the nature of the dispute and the Services and invoice(s) disputed) to the address below on or before the due date. In the event Customer intends to dispute amounts already paid in full, Customer must submit notice of such dispute in writing within 90 days from the date of the invoice (such date at the end of such period being the "Dispute Due Date"). After receipt of notice of the dispute, Vonage shall undertake an investigation of the dispute, so long as Customer has not waived its rights pursuant to this paragraph to make the dispute. At the conclusion of the investigation, Vonage will notify Customer of the amount to be correctly charged and such amount will become immediately due and payable. Vonage may charge interest on such amount from the date originally due. If the dispute notice is not sent by the Dispute Due Date, Customer waives all rights to dispute the applicable charges, unless otherwise provided by law. All billing disputes must be sent to:
or via regular mail to:
Vonage Business Billing Department (Disputes)
23 Main Street
Holmdel, NJ 07733
With a copy to:
Office of the Chief Legal Officer
23 Main Street
Holmdel, NJ 07733
(f) Additional Charges. Customer acknowledges that Customer may incur additional charges while using the Service. For example, Customer may incur charges as a result of accessing certain on-line services or purchasing or subscribing to certain other offerings. Customer agrees that all such charges, including all applicable taxes, are the sole responsibility of Customer, and Customer covenants to timely pay all such charges.
12. Taxes and Fees. Prices for Services do not include, and Customer is responsible for, all Taxes and Fees. Customer may also be charged taxes by a Marketing Partner or Authorized Distributor for non-Vonage products and services sold or licensed by that Marketing Partner or Authorized Distributor in connection with Customer's order for Vonage Services. In addition, a regulatory recovery fee for every phone number assigned to Customer's account, including toll free and virtual numbers, will be charged monthly to offset costs incurred by Vonage in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and related legal and billing expenses. This recovery fee may also include recovery of costs for legal, intellectual property, cybersecurity, compliance and other related expenses, including those related to number portability, customer privacy protection and anti-fraud protection. This fee is not a tax or charge required or assessed by any government and may be recovered by Vonage through imposition of a surcharge on the cost of the Service. Customer may present Vonage with an exemption certificate eliminating Customer's and Vonage’s liability to pay certain Taxes and Fees. If any amounts paid for the Services are refunded by Vonage, Marketing Partner or Authorized Distributor, applicable taxes may not be refundable. The foregoing shall not apply to In-App Purchases. The terms of service for the app store from which Customer downloaded the mobile application shall govern taxes and fees for the Services, if any, and such terms are hereby incorporated by reference.
13. Regulatory and Legal Changes. Vonage may discontinue, limit, modify any Service, or impose additional requirements to the provision of any Service, as may be reasonably required to comply with any Applicable Laws. If changes in Applicable Laws materially and adversely affect the delivery of Service (including the economic viability thereof) or would impose further compliance requirements, then Vonage will provide notice to Customer (in accordance with Section 3) to the extent that said changes impact Customer's obligations and details of regulatory changes and if requested by Customer, the Parties will use good faith efforts to negotiate appropriate changes to this Agreement. If the parties cannot reach agreement within 30 days after Vonage’s notice requesting renegotiation, Vonage may, on a prospective basis after such 30-day period, pass any increased costs (if applicable) resulting from such changes on to Customer; provided, however, that Vonage shall provide Customer written notice of any increased costs or charges and Customer may upon notice given to Vonage within 60 days after delivery of the notice of the increased charges terminate Service without liability for an early termination fee or charge. If Customer does not terminate Service within such 60-day period, Customer’s termination right shall expire and Customer shall be obligated to accept and pay for the Service until expiration or termination of the Service Term.
14. Metered Extensions; International Calls. There are certain calls which will incur additional usage charges, such as calls made outside of the United States, Canada and Mexico (“International Calls”), and calls made via a Metered Extension. Metered Extension usage is billed in full-minute increments, and actual usage is rounded up to the next full-minute increment at the end of each call for billing purposes. International Calls may not be available for certain types of Services and to certain countries pursuant to the AUP.
15. Bundled Usage. Vonage or its Marketing Partners or Authorized Distributors may offer bundled plans which include a defined combination of services and which may offer a specified number of minutes or unlimited usage (subject to the AUP). Bundled plans may also include usage based charges that differ from other Vonage, Marketing Partner or Authorized Distributor plans. In some bundled plans, the number of minutes used may be aggregated into a pool of minutes available to extensions on an account with excess usage charges applying for any usage above the allotted aggregate minutes at a specified rate.
16. Unlimited Calling & Unlimited Voice Services. For unlimited calling plans, unlimited calling applies only to calls made within the United States Canada and Mexico, and are subject to the AUP. All International Calls are subject to additional charges. Unlimited voice services are provided solely for live dialog between two individuals. Unlimited voice services may not be used for conference calling, call forwarding, monitoring services, data transmissions, transmission of broadcasts, transmission of recorded material, or other connections which do not consist of substantially uninterrupted live dialog between individuals. In addition, certain features such as call forwarding from auto attendants to an outside number, calls to a queue, and each line on a conference bridge will incur charges at the then current rate established by Vonage. Notwithstanding the foregoing, Customer shall be entitled to use Vonage conference calling services such as three way calling and Vonage-provided conference calling bridges. See the AUP for additional limitations pertaining to Customer's use of unlimited voice services.
17. Ancillary Services; Voicemail and Call Recording Retention Policy.
(a) Caller name identification (i.e., caller ID with name) Services provided by Vonage are based on availability of such Services from Vonage’s underlying providers. Vonage does not guarantee that such Services are available for all numbers in all serving areas.
(b) All Customer call recordings are retained until Customer deletes the data, or the Service(s) are canceled, or until Customer utilizes all of their allotted storage space. Customer may download the data at any time prior to cancellation or termination of Service(s). All Customer voicemail messages are retained for 90 days from the date the message was recorded. Following said retention period, the voicemail messages are automatically purged.
(c) In the event Vonage is providing any other ancillary service, all Customer Data associated with such ancillary service, including all recordings, will be deleted pursuant to Section 17(b) In the event that an end user account is cancelled or terminated prior to the termination of all of Customer’s Services (whether by the Customer or due to termination of the Services), the user data associated with such end user account and related ancillary services will be deleted per Section 17(b)
(d) Certain Services provided by Vonage may be subject to separate end-user license agreements ("EULAs"). The terms of such EULAs will be provided to Customer in advance and shall be binding upon the parties to this Agreement. If any such EULAs, or any provisions in such EULAs, are held to be unenforceable for any reason, the terms of this Agreement shall apply with respect to the supply of that Service.
(e) Vonage may introduce new ancillary Services to new and existing customers. Such ancillary Services may sometimes be offered on a trial basis for a specified period of time during which fees may or may not apply to Customer. In some cases, the terms of a trial may involve an automatic re-enrollment at the end of the trial unless the customer opts out of the trial and/or cancels the service during the term of the trial. In no event shall Vonage impose Service Fees on Customer for ancillary services without providing Customer the opportunity to opt-out of the trial and/or to cancel the ancillary Service during a no-cost trial period.
(f) Vonage offers additional training and support packages for purchase. The details associated with cancelling those support packages can be found here.
18. Prohibited Use of the Services and Service Use Restrictions - AUP. Customer shall use the Services only in a manner that fully complies with all Applicable Laws, the terms and conditions of this Agreement, and the Vonage AUP, which can be found here.
19. Fraudulent Use of Service. Customer is solely responsible for any and all activities that occur under Customer's account except to the extent caused by Vonage’s gross negligence or willful misconduct. Customer shall not transfer its login credentials accessing the Services to any third party. Customer agrees to notify Vonage if it becomes aware of any prohibited, fraudulent or unauthorized use of the Services, Customer's account, Vonage Business Equipment or Customer Equipment. Vonage shall not be liable for any damages resulting from any prohibited, fraudulent or unauthorized use of the Services, Customer's account, Vonage Business Equipment or Customer Equipment, and Customer shall bear the risk of loss and assume all liability arising from any such prohibited, unauthorized or fraudulent usage, except to the extent such usage arose solely from Vonage's gross negligence or willful misconduct. Any such prohibited, unauthorized or fraudulent use shall be deemed a material breach of the Agreement by Customer. Customer is responsible for implementing generally accepted security measures to protect all access points. Customer is responsible to secure all credentials used to access the Services, including credentials used by telephones or softphones and credentials used by end users or administrators, as well as the media access control (“MAC”) address of telephones used by Customer. Customer is also solely responsible for terminating credentials and access for any end users no longer authorized by Customer to use the Services. Customer acknowledges that placing telephones on a publicly accessible internet protocol address or a publicly accessible network will subject the Customer to a higher level of risk for fraudulent activity. Customer shall not be excused from paying for Services or any portion thereof on the basis that fraudulent calls, and any charges associated with such calls (e.g. long distance charges), comprised a corresponding portion of the Services. In the event Vonage discovers or has reason to believe (i) suspicious or fraudulent calls being made, (ii) calling patterns or volumes materially outside of Customer's regular usage patterns or (iii) other usage in violation of this Agreement, Customer consents to Vonage taking actions it deems reasonably necessary (including temporary suspension of the affected Service or blocking or limiting access to particular calling numbers or geographic areas) to prevent such calls from taking place. Vonage will attempt to provide notice prior to taking such action, otherwise if Vonage is required to take such action to avoid harm to Vonage, Vonage customers or third parties, Vonage will attempt to provide notice as soon as reasonably practicable thereafter. Customer acknowledges and agrees that Vonage is under no obligation to do so, but may: (a) upon request investigate the authenticity of calls charged to Customer's account; and (b) take action to prevent such calls from being made.
20. No Resale. Customer represents and warrants that it will be the ultimate end user of the Service. Customer shall not in any way resell, license, permit nor allow any third party to use the Services without receiving Vonage's prior written consent.
22. Required Maintenance; Customer Support. Vonage has the right to perform repair and maintenance or to upgrade, update or enhance (collectively, the "Maintenance") its network, infrastructure, website(s), Services and/or Vonage Business Equipment with prior notice if such Maintenance would cause a partial or full disruption of the Services. In addition, Vonage reserves the right to perform emergency maintenance (“Emergency Maintenance”) without prior notice to maintain the security and stability of the Vonage services and network. Notice will be provided as soon as reasonably practicable following an Emergency Maintenance event. Customer will timely report any issues, trouble or problems affecting Service to Vonage using a Customer-initiated trouble ticket (a “Trouble Ticket”). Trouble Ticket procedures and additional information for Vonage support can be found here. Calls to and from Vonage customer service, sales or other representatives may be recorded and/or monitored for quality assurance and training purposes. Customer's sole remedies for any non-performance, outages, failures to deliver or defects in Service are set forth in the applicable service level agreement and these Terms.
23. Voice-to-Text and Text-to-Voice Limitations. Certain Vonage Services may provide a function that allows voicemails to be converted to text and vice-versa. Customer understands and agrees that Vonage's voice-to-text ("VTT") and text-to-voice ("TTV") features may not accurately transcribe voicemails or articulate text messages, respectively. Customer is solely responsible for checking the original message and verifying the accuracy of the message when using any VTT or TTV features. Vonage expressly disclaims all liability with respect to the conversion of voicemails to text or vice-versa.
24. Suggestions and Feedback. In the event that Customer provides Vonage with suggestions, enhancement requests, recommendations, proposals, documents, or other feedback with respect to the Services or Software (collectively, "Suggestions"), Customer grants Vonage and its Affiliates a royalty-free, worldwide, irrevocable, perpetual license to use, modify, and distribute such Suggestions in connection with efforts to improve, enhance or modify the Services or Software without compensation to Customer or attribution of any kind.
25. Changes to Services. Vonage reserves the right to remove, add, or modify features and functions of the Services, and to provide fixes, updates and upgrades to the Services without notification to Customer, provided that material changes shall be noticed by Vonage on its website or communicated to Customer pursuant to the methods in Section 3, and the features and functionality of any such change or replacement will be materially comparable to the changed or replaced Service.
26. Default and Remedies.
(a) Customer Default. If Customer either (i) fails to make any undisputed payment when due and such failure continues for 10 days after written notice from Vonage, or (ii) fails to observe or perform any other material term of this Agreement and such failure continues for 30 days after written notice from Vonage, then Vonage may elect to: (i) terminate this Agreement and/or any Sales Order, in whole or in part; (ii) immediately suspend Customer's Service, in whole or in part; and/or (iii) pursue all remedies Vonage may have at law or in equity.
(b) Vonage Default. If Vonage fails to observe or perform any material term of this Agreement (other than non-performance under or failure to comply with an applicable service level agreement between the parties which contains exclusive remedies therein), Customer may terminate any applicable Sales Order without early termination charges only after Customer has delivered written notice of such failure to Vonage, such notice to contain reasonable detail describing any breach, and Vonage has failed to remedy such failure and/or prevent its recurrence within 30 days of its receipt of Customer's written notice.
27. Warranty Disclaimer. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, THE APPLICABLE SERVICE LEVEL AGREEMENT AND/OR ANY SALES ORDER(S) AND STATEMENTS OF WORK, VONAGE PROVIDES THE SERVICES, EQUIPMENT AND SOFTWARE ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND (EXCEPT FOR ANY THIRD PARTY MANUFACTURER WARRANTIES THAT MAY BE APPLICABLE TO EQUIPMENT PURCHASED BY CUSTOMER FROM VONAGE), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. VONAGE MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER REQUIREMENTS, SPECIFICATIONS, EXPECTATIONS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER CONTENT, CUSTOMER APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY VONAGE. CUSTOMER ACKNOWLEDGES THAT VONAGE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. VONAGE IS NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICES OR THE INTERNET IN GENERAL, OR FOR ANY ISSUES RELATED TO THE PERFORMANCE, USE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER'S USE, CUSTOMER CONTENT, CUSTOMER APPLICATIONS, OR THIRD PARTY CONTENT. VONAGE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS OR USEFULNESS OF THIRD PARTY CONTENT. TO THE EXTENT THAT VONAGE CANNOT DISCLAIM ANY WARRANTIES IN CERTAIN JURISDICTIONS, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. ALTHOUGH REASONABLE EFFORTS ARE MADE TO PROVIDE SECURITY FOR VOICEMAILS AND FAX TRANSMISSIONS, VONAGE MAKES NO GUARANTEES OR WARRANTIES OF SECURITY. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT ENABLED TO FUNCTION OUTDIALING SYSTEMS INCLUDING HOME OR OFFICE SECURITY SYSTEMS, TTY EQUIPMENT, MEDICAL MONITORING EQUIPMENT OR SATELLITE TELEVISION SYSTEMS. VONAGE WILL NOT BE LIABLE FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT DESIGNED, INTENDED OR RECOMMENDED AS A MEANS BY WHICH TO STORE OR TRANSMIT "PROTECTED HEALTH INFORMATION" ("PHI”) AS DEFINED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 AND RELATED OR SIMILAR LAWS (COLLECTIVELY, "HIPAA"). EXCEPT AS OTHERWISE AGREED IN A WRITING SIGNED BY VONAGE, VONAGE MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES OR THEIR USE WILL COMPLY WITH HIPAA OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA, AND IS RELEASED FROM ANY LIABILITY FOR ITS ACTS OR OMISSIONS RELATING TO HIPAA.
28. Limitation of Liability. NEITHER VONAGE, NOR ITS AFFILIATES, VENDORS, SUPPLIERS, DISTRIBUTORS, CHANNEL AND OTHER MARKETING PARTNERS OR OTHER REPRESENTATIVES SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, REPLACEMENT COSTS, OR ANY LOSS OF REVENUE OR PROFITS, CONTENT, DATA, OR DATA USE, EVEN IF VONAGE HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN BY VONAGE. VONAGE'S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO VONAGE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM SUBJECT TO THIS SECTION 28. THE PARTIES ACKNOWLEDGE AND ACCEPT THE REASONABLENESS OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 28.
29. Indemnification. Customer agrees to defend, indemnify and hold harmless Vonage from and against any loss, damage or costs (including reasonable attorney's fees) incurred in connection with claims made or brought against Vonage by a third party arising from or relating to: (i) the gross negligence or willful misconduct of Customer; (ii) use of the Services in a manner not authorized by this Agreement; (iii) any claim by any employee or invitee of Customer or user other than a claim based on the gross negligence or willful misconduct of Vonage; (iv) any claim by any customer of Customer, end user or other third party relating to, or arising from, Customer Data or Customer's use of the Services or Software; or (v) violation of any Applicable Laws by Customer or any Customer employee, contractor or agent.
(a) "Confidential Information" means all nonpublic information relating to a Party or its Affiliates that (i) if provided in writing, is marked or labeled as confidential or proprietary, or (ii) if provided verbally, is designated as confidential at the time of disclosure, or (iii) even if not so marked, labeled or identified, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation, all nonpublic information relating to (i) a Party's or its Affiliates' technology, customers, employees, business plans, agreements, finances and other business affairs, (ii) the Vonage network or service delivery platform, (iii) the terms of any Sales Order, and (iv) Customer Data. Confidential Information does not include any information that (i) has become publicly available without breach of this Agreement, (ii) was known to the Party receiving Confidential Information under this Agreement (the "Receiving Party") at the time of its receipt from the Party disclosing the Confidential Information (the "Disclosing Party") or its Affiliates as shown by documentation reasonably acceptable to Disclosing Party, (iii) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (iv) was independently developed by the Receiving Party without the use of any Confidential Information as shown by documentation reasonably acceptable to Disclosing Party.
(b) Each Party hereby agrees to hold Confidential Information in strict confidence and shall, in any case, protect such Confidential Information with no less diligence than that with which it protects its own confidential or proprietary information of a similar nature. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose unrelated to the Services. Each Party may disclose the Confidential Information of the other Party on a "need to know basis" and then only to its (and its Affiliates') directors, officers, advisors, employees and other legal, business or financial partners or representatives; provided that all such persons are subject to written confidentiality agreements which contain provisions which are no less restrictive than the provisions of this Section 30. In addition, Vonage may disclose this Agreement under a comparable non-disclosure agreement in response to a third party due diligence request supporting a financing or non-ordinary course of business corporate transaction.
(c) If the Receiving Party is legally compelled by any means (including deposition, interrogatory, request for documents, subpoena, civil or regulatory investigative demand or similar process) to disclose Confidential Information of the Disclosing Party, subject to applicable laws, the Receiving Party must provide the Disclosing Party with prompt written notice of such legal requirement in order to allow the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Section 30.
(d) Upon the termination or expiration of this Agreement, or at any time upon the request of the Disclosing Party, the Receiving Party shall, at the Disclosing Party's option, return or destroy (and certify as to such destruction) all Confidential Information of the Disclosing Party in its control or possession, other than copies which the Receiving Party may be required to maintain under applicable law or regulation.
31. EMERGENCY 911 SERVICES. BY USING THE SERVICE AND/OR VONAGE BUSINESS EQUIPMENT, CUSTOMER ACKNOWLEDGES THE LIMITATIONS OF VONAGE E911 SERVICE AS DESCRIBED IN THE E911 DISCLOSURE, AS WELL AS THOSE SET FORTH IN THIS SECTION 31. CUSTOMER AGREES AND ACKNOWLEDGES THAT WHILE MOST VONAGE SERVICES OFFER ACCESS TO E911 SERVICE, OTHERS MAY NOT. CUSTOMER IS ADVISED TO THOROUGHLY READ AND UNDERSTAND THE E911 DISCLOSURE AND THE OPTIONS AVAILABLE. CUSTOMER ACKNOWLEDGES THAT IT HAS RECEIVED, READ, UNDERSTANDS AND AGREES TO THE TERMS AND CONDITIONS OF THE E911 DISCLOSURE, AND ASSUMES THE RISKS ASSOCIATED WITH THE VONAGE E911 SERVICE LIMITATIONS.
32. Local Number Portability.
(a) Number Transfer on Service Activation. n the event Customer is not utilizing a new phone number or numbers for the Services, but rather is transferring existing phone number(s) which currently are subscribed to a carrier other than Vonage to Vonage, the terms and conditions of this section shall apply:
i. Customer hereby authorizes Vonage to notify Customer's current local telephone company or other service provider of its decision to switch local, local toll and long distance services to Vonage and represents that Customer is authorized to take this action;
ii. Customer agrees and acknowledges (i) that the porting of Customer's numbers requires Customer's provision of specific, detailed and accurate information to Vonage and other service providers, as applicable, and the completion of certain steps and procedures, as well as third parties' completion of certain tasks, and (ii) that numbers may not be ported in or ported out unless such information matches the information on record with Vonage or other service providers. The completion of a port request is dependent upon these and other factors which may be outside the control of Vonage or other service providers, and accordingly, Vonage is not responsible for delayed or incomplete ports. FAILURE TO PROVIDE ANY INFORMATION REQUESTED BY VONAGE OR THE THIRD PARTY SERVICE PROVIDER WILL DELAY THE PORTING OF THE NUMBER TO VONAGE. VONAGE SHALL NOT BE RESPONSIBLE FOR ANY DELAY IN THE PORT OF CUSTOMER'S NUMBER AND WILL NOT PROVIDE CREDIT FOR ANY SUCH DELAYS.
iii. Customer agrees and acknowledges that if the Services are set up prior to the date that the number transfer becomes effective ("Port Effective Date"), Customer may only be able to make outgoing calls using the Services. In such event, Customer should keep another phone connected to the existing phone number to receive incoming calls until the Port Effective Date, after which Customer will be able to both make and receive calls using the Service. Customer agrees and acknowledges that if the Activation Date has not occurred as of the Port Effective Date, its existing phone service for the number being transferred may be disconnected and Customer may have no service for that number. Therefore, to avoid an interruption in Customer's phone service, Services must be activated prior to the Port Effective Date. An estimate of the Port Effective Date will be sent to Customer via e-mail by Vonage.
(b) Number Transfer on Service Termination. After the Activation Date, Vonage or its providers may receive requests from other telephony providers ("Requesting Party") acting as agents on Customer's behalf to port a telephone number currently assigned to Customer to a third party provider ("Port-Out"). Vonage will support all such requests and will cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party's reasonable directions and Vonage’s or its vendors' standard operating procedures. Until the effective date of Customer's proper termination (in accordance with the terms of this Agreement), Customer will: (i) remain a Vonage customer; and (ii) be responsible for all charges and fees associated with Customer's Vonage Service. Customer will not receive any refund or partial refund or any credits for any charges already billed to Customer's account. Vonage assumes no liability for costs associated with any numbers that cannot be ported or that Customer chooses not to port. Customer acknowledges that in the event of any account termination or cancellation, all telephone numbers associated with Customer's account may be released. Similarly, the cancellation of individual services that have associated telephone numbers will result in the release of such numbers. Customer acknowledges that it is the Customer's responsibility to work with a third party provider to port out those numbers prior to Customer's termination or cancellation of Customer's account or termination of Services.
(c) Ported Telephone Numbers Upon Cancellation.
i. Cancellation. If Customer requests that a new service provider port a number from Vonage, then Customer is required to inform Vonage of Customer's intent to terminate the specific affected Services on Customer's account or Vonage will continue to bill for such Services. Customer will continue to be responsible for all charges and fees associated with the remaining Services on Customer's Vonage account. Customer may not receive any refund or partial refund or any credits for any charges already billed to Customer's account.
ii. Consent & Electronic Submission. In some cases, Vonage may permit Customer to submit documentation required to port numbers using a web-enabled user interface. Customer may withdraw Customer's consent to submit Customer's porting request electronically by contacting Vonage Customer Care prior to our submitting the porting request to the carrier. Customer's consent to electronic submission applies only to the specific porting request Customer submit through web-enabled interface.
iii. Facsimile Service. Numbers assigned by Vonage for Vonage's facsimile service cannot be ported to a new service provider without the assistance and cooperation of Vonage’s underlying partner. Vonage will use commercially reasonable efforts to facilitate a port of a facsimile number which was ported on Customer's behalf to Vonage by another service provider. Customer may be required to pay a porting fee to Vonage not to exceed $100.00 per analog facsimile number ported.
(d) Vonage-Provided Telephone Numbers. Telephone numbers provided by Vonage (“Vonage-Provided Numbers”) to Customer shall be leased and not sold. Customer will use Vonage-Provided Numbers it leases with the Services and on devices approved or prescribed by Vonage. Customer may port any such numbers upon termination of the Services. In the event Customer does not port Vonage-provide numbers following termination of Service, Customer thereafter relinquishes any rights in such numbers. Vonage reserves the right to move, change or cancel Vonage-Provided Numbers not ported by Customer following termination in its reasonable discretion.
33. Beta Services and Software. Certain Services or Software may be designated or offered as a "beta" version ("Beta Version") of a Service or Software, which may or may not be released as a full commercial service in the future. Except as otherwise indicated under separate terms and conditions that may apply to such Beta Versions, Vonage may or may not charge for such Beta Versions, and reserves the right to charge for subsequent versions of the Beta Version, including any potential commercial releases. Customer acknowledges and agrees that the Beta Version may contain, in Vonage’s sole discretion, more or fewer features or different licensing terms than a subsequent commercial release version of the Beta Version. Vonage reserves the right not to release later commercial release versions of the Beta Version. Without limiting any disclaimer of warranty or other limitation stated in these Terms (or any separate terms and conditions that would otherwise be applicable to such Beta Versions), Customer agrees that Beta Versions are not considered by Vonage to be suitable for commercial use, and that may contain errors affecting their proper operation. CUSTOMER ACKNOWLEDGES AND AGREES THAT USE OF ANY BETA VERSION MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT CUSTOMER'S USE OF ANY SERVICES OR SOFTWARE. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, VONAGE SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM CUSTOMER'S USE OF ANY BETA VERSION. The fact and existence of any Beta Version shall be deemed to be Vonage Confidential Information under this Agreement.
34. Electronic Recording. CCustomer acknowledges that there are federal and state laws governing the electronic recording of telephone conversations and that Vonage is not liable for any illegal use of the Services. It is Customer's responsibility to determine and comply in full with its own compliance obligations. No Services or products offered by Vonage are represented or warranted to comply with electronic recording laws. Customer agrees that Vonage may, in its sole discretion, record any call between Customer and Vonage for quality control and training purposes.
35. Right to Review Use of Services. Vonage reserves the right to review Customer's use of the Service for purposes of confirming compliance with this Agreement.
(a) Assignment. This Agreement inures to and is binding upon the Parties' successors and permitted assignees. Customer shall not assign this Agreement without Vonage’s prior written consent, not to be unreasonably conditioned, withheld or delayed; provided that Customer may, without consent, but with reasonable prior written notice, assign its rights and obligations hereunder to any parent, affiliate or subsidiary of Customer or pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets; provided, however, that any proposed assignee shall be at least as creditworthy as Customer (as reasonably determined by Vonage), shall agree in advance and in writing to assume and be bound by all provisions of this Agreement, and shall deliver to Vonage fully-executed documents reasonably acceptable to Vonage establishing the terms of such an assignment. Any assignment by Customer other than as permitted by this Section 36.a. shall be void and of no force or effect.
(b) Force Majeure. Neither Party is liable for any failure of performance (other than for delay or performance in the payment of money due and payable hereunder) to the extent such failure is due to any cause or causes beyond such Party's reasonable control, including acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, governmental action, acts of terrorism, denial of service attacks, or strikes and similar labor difficulties. Either Party's invocation of this clause will not relieve Customer of its obligation to pay for any Services actually provided or permits Customer to terminate any Services except as expressly provided herein. In the event such force majeure event prevents the availability or material use of the affected portion of Services for more than 10 consecutive days, either Party may terminate the affected portion of the Services without liability.
(c) Intellectual Property and Publicity. Except as explicitly granted herein, neither Party is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or other form of intellectual property of the other Party or its affiliates without the express prior written authorization of the other Party. Neither party will issue any press release nor other public statement relating to this Agreement, except as may be required by law or agreed by the Parties in writing signed by an authorized representative of a Party’s Corporate Communications department. Neither Party may identify the other Party using a Party’s name, trademarks and/or logos in its marketing collateral, presentations and websites without the non-disclosing Party’s express written consent, and a Party may revoke such right with written notice to the other Party at any time.
(d) Nonexclusive. This Agreement is non-exclusive. Nothing in this Agreement prevents either Party from entering into similar arrangements with other persons or entities.
(e) Notices. Except as otherwise provided in this Agreement, Any notice required or given under this Agreement to Vonage (except for billing disputes as described in Section 11) will be in writing and delivered to Vonage as follows:
Vonage Business Inc.
Attn: VBC Customer Notices
23 Main Street
Holmdel, NJ 07733
Copies of notices shall be sent via fax or email (which shall not constitute formal notice) to:
Office of the Chief Legal Officer
Vonage Business Inc.
E-mail: [email protected]
Such address and contact information may be changed by either Party by prior written notice to the other Party in accordance with this paragraph. A notice will be deemed to be duly given (i) on the date of delivery if personally delivered by hand or by a nationally recognized overnight express courier, or (ii) upon the third day after such notice is deposited in the United States mail, if mailed by registered or certified mail, postage prepaid, return receipt requested. For clarity, e-mail or fax notices are informational only and shall not constitute formal notice.
(f) Facsimile and Electronic Transmission; Counterparts. Sales Orders, and other documents that may be executed in connection with the Services (collectively "Service Documentation"), may be executed and delivered by facsimile or electronic transmission, and upon receipt, such transmission shall be deemed the delivery of an original. Service Documentation may be executed in several counterparts, each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument.
(g) Electronic Communications and Consent to use of Electronic Signatures and Records. As a convenience and courtesy, Vonage provides access to its Services online which may require Customer to enter into agreements or receive notices electronically. Accordingly, Customer acknowledges and agrees:
i. To conduct electronically the particular transaction into which Customer thereby enters including, without limitation, entering into this Agreement;
ii. That it has read and understands the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, and any policies and any amendments hereto or thereto;
iii. That it intends to be bound by, the terms of the particular transaction into which Customer thereby enters;
iv. That it is capable of printing or storing a copy of electronic records of transactions into which Customer enters including, without limitation, this Agreement and any amendments hereto;
v. To receive electronically information about the Services and other electronic records into which Customer thereby enters including, without limitation, this Agreement; and
(h) Basis of Bargain; Failure of Essential Purpose. Customer acknowledges and agrees that Vonage has established its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability and the warranty disclaimers set forth in this Agreement, and that they are an essential basis of the bargain between the parties and are material terms of this Agreement. The Parties agree that the limitations and exclusions of liability and warranty disclaimers specified in this Agreement will survive and apply even if found to have failed their essential purpose, and Customer hereby waives its right to contest the enforceability of any provision of this Agreement by reason of such failure.
(i) No Commitments. Customer represents and agrees that Vonage has made no commitments or promises orally or in writing with respect to delivery of any future features or functions. In relation to any future features or functions, all presentations, RFP responses, and/or product roadmap documents, information or discussions, either prior to or following the date herein, are informational only, and are not the basis for, nor part of this this Agreement or any Sales Order. Vonage has no obligation to provide any future releases or upgrades or any features, enhancements or functions, unless specifically agreed to by both Parties. Customer acknowledges that its purchasing decisions are not based upon any future features or functions.
(j) Survival, Modification. The terms and conditions of this Agreement will survive the expiration or other termination of this Agreement to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the Party in whose favor they operate. Except for the rights of Vonage in Section 3, all modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by authorized representatives of both parties.
(k) Relationship of the Parties. The relationship of Vonage and Customer shall not be that of partners, agents or joint venturers for one another, and nothing contained in the Agreement shall be deemed to constitute a partnership or agency agreement between the Parties for any purposes. Vonage and Customer shall be independent parties and shall discharge their contractual obligations at their own risk subject to the terms of this Agreement.
(l) Third Party Services. Vonage may use or rely on one or more licensors, service providers, and/or equipment providers or equipment lessors whose products, equipment and/or services are provided in conjunction with, or incorporated into, the Services and/or Vonage Business Equipment ("Third-Party Services"). Such Third Party Services may also be provided under Vonage's trademarks or otherwise branded as a Vonage Service. Third-Party Services may be governed by separate legal terms and conditions, which, if applicable, may be found or identified here, or in documentation or on other media delivered with the Third-Party Services and otherwise will be provided to Customer. Such Third Party Services terms and conditions are incorporated by reference into these Terms and shall govern the use of Third-Party Services. Customer agrees to comply with such terms and conditions of all Third-Party Services. Any non-compliance with the terms and conditions of Third Party Services shall be considered non-compliance with these Terms.
(m) Waiver. The failure of either Party to enforce compliance with a provision of this Agreement shall not be construed as a general waiver of such provision or any other provision.
(n) Severability. If any term, covenant or condition contained in this Agreement or any Sales Order is, to any extent, held invalid or unenforceable in any respect under the laws governing this Agreement, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
(o) Governing Law. The laws of the State of Delaware will govern this Agreement, without reference to its principles of conflicts of laws. Because this agreement is a transaction in interstate commerce, the Federal Arbitration Act ("FAA"), and not state arbitration law, shall govern the interpretation, validity and enforceability of the arbitration provision in Section 37 (Dispute Resolution; Binding Arbitration), below.
(p) Entire Agreement. This Agreement supersedes any prior or contemporaneous agreements, statements, understandings, writings, commitments, or representations concerning its subject matter, as between Customer and Vonage.
(q) Export Controls. Customer agrees to comply fully with all relevant export laws and regulations of the United States, including the U.S. Export Administration Regulations, administered by the Department of Commerce. Customer also expressly agrees that it shall not export, directly or indirectly, re-export, divert, or transfer any portion of Vonage Service, Equipment or Software to any destination, company, or person restricted or prohibited by U.S. export controls.
(r) Choice of Language. The parties hereby confirm their express wish that this Agreement and all related documents be prepared in the English language only. Les parties reconnaissent avoir exigé que le presente convention et tous les documents connexés soient redigés en anglais seulement.
37. Dispute Resolution; Binding Arbitration.
(a) Written Notice. In the event either Party has a dispute or claim against the other Party (except with respect to invoice disputes which are addressed in Section 11 (Billing, Credit, and Payment), the disputing Party shall provide written notice to the other Party in accordance with the provisions of Section 36(e) (Notices).
(b) Initial Escalation to Management. The Parties agree to escalate disputes to their respective management, who will use commercially reasonable efforts to resolve the dispute by consulting with each other in good faith to reach an equitable resolution satisfactory to both parties within 30 days of the receipt of notice. Neither Party shall pursue or commence proceedings regarding the dispute in any court, administrative arbitral or other adjudicative body prior to engaging in such consultations and negotiations.
(c) Resolution in Small Claims Court. In the event the dispute is not resolved, and the claim falls within the dollar limit allowed by applicable state law along with any other jurisdictional requirements, either Party may seek to have that dispute resolved in small claims court in any state in which Services are provided to the Customer by Vonage.
(d) Binding Arbitration. If negotiations fail to resolve the dispute within 30 calendar days, and/or small claims court is not a valid option due to the size or nature of the claim, all disputed claims (except for claims set forth in subsection (f) below) must be resolved by binding arbitration before a single arbitrator in accordance with the commercial rules of the American Arbitration Association ("AAA") (available on the AAA website, www.adr.org) in effect as of the date this Agreement goes into effect. This agreement to arbitrate is intended to be given the broadest possible meaning under Applicable Laws. The initiation of an arbitration dispute shall not otherwise prevent Vonage or Customer from terminating Services in accordance with the Terms.
(e) Disputes About This Agreement to Arbitrate. Disputes about the arbitrability of any claims and/or the scope, enforceability, or validity of this arbitration agreement shall be decided by an arbitrator.
(f) Disputes That Need Not Be Arbitrated. Disputed claims involving either Party's intellectual property rights, indemnity, or confidentiality obligations; fraudulent or unauthorized use, theft, or piracy of service; or matters relating to injunctions or other relief may be resolved by binding arbitration as set forth in subsection (d), but are not required to be resolved by binding arbitration and may be heard in a court of law, at the option of the entity asserting the disputed claim.
(g) Notice for Commencing Arbitration. If an agreement to resolve the dispute is not reached, an arbitration proceeding may be commenced by downloading or copying a form from the AAA website (www.adr.org). The amount of any settlement offer made by Customer or Vonage shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Vonage is entitled.
(h) Location. All hearings conducted as part of the arbitration shall take place at a location, convenient to Customer, based upon Customer's billing address (or, if no business address is provided, Customer’s service address). If Customer claim is for $10,000 or less, Customer or Vonage may request that the arbitration be conducted solely on the basis of documents submitted to the arbitrator or through a telephonic hearing. If either party objects, then the arbitrator shall proceed to an in-person hearing as established by the AAA Rules. If Customer claim is in excess of $10,000, the right to a hearing will be determined by the AAA rules.
(i) Costs. Each Party will be responsible for its own costs incurred in the arbitration, including arbitration filing fees and attorneys' or expert witness fees. The arbitrator's costs and expenses shall be shared equally between the Parties. If a Party elects to appeal an award or seeks to vacate the award in court, the prevailing Party in the appeal or judicial proceeding shall be entitled to recover all reasonable attorneys' fees incurred in that appeal or judicial proceeding.
(j) Waiver of Jury Trial. Customer and Vonage agree that, by entering into this agreement, Customer and Vonage are waiving the right to a trial by jury. Customer and Vonage agree that the arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party's individual claim. The arbitrator may not award special, indirect, punitive, incidental or consequential damages. CUSTOMER AND VONAGE AGREE THAT CUSTOMER MAY BRING CLAIMS AGAINST VONAGE ONLY IN CUSTOMER'S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THAT CUSTOMER EXPRESSLY WAIVES ITS RIGHT TO BRING A CLASS ACTION SUIT. Customer and Vonage agree that the arbitrator may not consolidate more than one person's or entity's claims, and may not otherwise preside over any form of a representative or class proceeding.
(k) Severability. If any term, covenant, or condition contained in this dispute resolution/arbitration provision, is, to any extent, held invalid or unenforceable in any respect under the laws governing this dispute resolution/arbitration provision, the remainder of this dispute resolution/arbitration provision shall be valid and enforceable to the fullest extent permitted by law.
END OF TERMS OF SERVICE