These Terms of Service are applicable only to Vonage Business Inc. customers who were legacy customers of Simple Signal, Inc.
This Agreement (together with all Sales Orders, Addendums to Sales Orders or amendments to any of the foregoing, this “Agreement”), describes the terms and conditions between you (“Customer”) and Vonage Business Inc., the successor-in-interest to SimpleSignal, Inc., (“SimpleSignal”, “Us” or “We”), applicable to SimpleSignal’s service (the “Service”). Please read this Agreement carefully since it contains important contract rights and obligations between you and SimpleSignal, as well as important limitations on those rights. If you would like to contact us, you may call (303) 242-8616 or write to:
Vonage Business Client Services
Attn: Vice President Operations
7900 West Park Drive, Suite A-315
McLean, VA 22102
13. Fraudulent Calls
1.1. “Customer Sales Order” means the sales order attached hereto as Exhibit A.
1.2. “Service(s)” means each of the services identified in the Customer Sales Order and provided to Customer by or through SimpleSignal, including but not limited to voice over Internet protocol (“VoIP”), provisioning of voice services, Internet access (including shared bandwidth and dedicated lines), video calling, conference calling, IP addressing, email, VPNs, firewalls, hosting, server collocation, hardware sales and all related support services.
1.3. “Software” means any computer programs or code, software applications, and any other software provided by SimpleSignal to Customer pursuant to this Agreement.
2. Services and Equipment
2.1.Simple Signal Services: SimpleSignal shall provide the Services to Customer on the terms and conditions set forth in this Agreement. SimpleSignal’s obligations under this Agreement are expressly conditioned upon Customer (or Customer’s landlord) granting SimpleSignal or its designated agents, contractors or representatives access to the building phone room and roof areas as necessary in SimpleSignal’s judgment to deliver the Services and to install and maintain equipment.
2.2. VoIP Description: VoIP is an enhanced voice communication service whereby the voice communication is converted to Internet Protocol (“IP”) and carried, in part, over high-speed internet access, also known as broadband internet service. VoIP may be generically referred to as “voice over IP.” It is separate and distinct from standard local, local toll and long-distance services. “VoIP” includes VoIP unlimited local and nationwide direct dialed calling within the United States and Canada and certain calling and call management features or advanced features associated with VoIP, including additional features or advanced features which SimpleSignal, in its sole discretion, may add, modify, or delete from time to time. VoIP does not support 0+ calling (including without limitation collect, third party billing or calling card calling). VoIP may not support 900, 311, 511 and/or other x11 (other than 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
Customer acknowledges and agrees that VoIP is not a telephone service. Important distinctions (some, but not necessarily all, of which are described in this Agreement) exist between telephone service and VoIP provided by SimpleSignal. VoIP is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal, State or Provincial telecommunications regulatory agencies.
2.3. Required Equipment: Customer understands and agrees that the Service may require certain equipment provided by Customer (whether sold to Customer by SimpleSignal or a third party) such as a SIP aware access device, computer(s), an Ethernet card and an appropriate operating system (the “Customer Equipment”), as well as certain equipment provided by SimpleSignal such as the Software, an edge access device (such as a router), or an IP phone or media converter (any equipment provided by SimpleSignal, “SimpleSignal Equipment”). Customer represents that it owns the Customer Equipment or otherwise has the right to use such equipment in connection with the Service.
2.4. Access to Customer’s Premises: Customer authorizes SimpleSignal and its employees, agents, contractors and representatives to enter Customer’s premises (the “Premises”) to install, maintain, inspect, alter, repair and remove the SimpleSignal Equipment. All such services shall be conducted at a time agreed to with Customer. If Customer is not the owner of the Premises, upon SimpleSignal’s request, Customer shall supply SimpleSignal with the owner’s name and address, evidence that the Customer is authorized to grant access to the Premises on the owner’s behalf, and (if needed) written consent from the owner of the Premises. Customer also grants its consent to SimpleSignal to contact such owner for the purpose of entering into one or more Right of Access and/or Site Lease(s). If Customer does not provide access as provided herein, SimpleSignal shall, at its option, (a) declare the full amount for the entire term due and payable immediately, or (b) elect to terminate this Agreement.
2.5. Ownership of Equipment: All SimpleSignal Equipment and Software shall at all times remain the property of SimpleSignal or its designee. Customer may not sell, transfer, lease, encumber or assign all or part of the SimpleSignal Equipment or Software, nor shall Customer relocate the SimpleSignal Equipment outside the Premises. Customer shall pay to SimpleSignal the full manufacturer’s suggested retail price for the replacement of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered or assigned Simple Signal Equipment or part thereof, together with any incidental costs incurred by SimpleSignal relating to the replacement of the SimpleSignal Equipment. Customer hereby authorizes SimpleSignal to charge Customer’s Visa, MasterCard, or other credit card for any such charges. SimpleSignal may, at its option, install new or reconditioned SimpleSignal Equipment.
2.6. Back-up Requirements: The installation, use, inspection, alteration, maintenance, repair or removal of the SimpleSignal Equipment and Software may result in a service outage or potential damage to Customer Equipment, software and loss of data. Customer covenants to back-up all existing computer files by copying them to another storage medium prior to the installation of SimpleSignal Equipment and Software. Customer acknowledges, understands and accepts the risks of not making such a backup, including but not limited to the loss of some or all of Customer’s software or data, or damage to Customer Equipment. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT TO THE CONTRARY, SIMPLESIGNAL SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO, LOSS OF OR DESTRUCTION OF CUSTOMER’S EQUIPMENT, PERIPHERALS, SOFTWARE OR DATA.
2.7. Non-recommended Configuration: SimpleSignal has informed Customer of the recommended minimum computer hardware requirements, if any, (the “Minimum Requirements”) for operating the Service. If Customer allows the installation of the Service utilizing hardware that does not meet the Minimum Requirements (a “Non-recommended Configuration”), Customer acknowledges and agrees that (a) other than testing the quality of the signal delivered to Customer’s IP phone or media converter, SimpleSignal does not provide any support for Services utilizing a Non-recommended Configuration, (b) SIMPLESIGNAL DOES NOT REPRESENT OR WARRANT THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE CUSTOMER TO SUCCESSFULLY ACCESS, OPERATE OR USE THE SERVICE, and (c) INSTALLATIONS UTILIZING A NON-RECOMMENDED CONFIGURATION MAY CAUSE DAMAGE TO THE CUSTOMER’S EQUIPMENT, PERIPHERALS, SOFTWARE OR DATA. SIMPLESIGNAL DISCLAIMS ANY AND ALL LIABILITY, AND CUSTOMER HEREBY ASSUMES ALL SUCH LIABILITY, FOR ANY AND ALL DAMAGE TO CUSTOMER’S EQUIPMENT OR SOFTWARE, ANY LOSS OF DATA, OR THE INABILITY TO ACCESS THE SERVICE, IF CUSTOMER USES A NON-RECOMMENDED CONFIGURATION. The foregoing limitation of liability is in addition to and shall not limit any other limitation of liability set forth in this Agreement.
2.8. Customer’s Hardware and Software: Except for gross negligence or willful misconduct by SimpleSignal, SimpleSignal shall have no liability for any damage, loss or destruction to Customer Equipment or peripherals. In the event of gross negligence or willful misconduct by SimpleSignal, SimpleSignal shall pay the actual cost of repair or replacement of the damaged parts, up to a maximum of One Thousand Dollars ($1,000). Recovery of the actual cost of repair / replacement, up to $1,000, shall be Customer’s sole remedy for such loss, damage or destruction of Customer Equipment and peripherals. IN NO EVENT SHALL SIMPLESIGNAL HAVE ANY LIABILITY FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY SOFTWARE, FILES OR DATA. Customer acknowledges that the opening of any Customer Equipment may void warranties provided by the manufacturer or other parties relating to the Customer Equipment or software. Customer consents to the opening of Customer Equipment for installing and providing the Service. SIMPLESIGNAL SHALL HAVE NO LIABILITY AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES.
2.9. Security Systems and other Non-voice Communications Equipment: All non-voice communications equipment, including but not limited to, security systems that are set up to make automatic phone calls and medical monitoring devices, are not compatible with the Services, and fax machines and modems may not be compatible with the Service. By accepting this Agreement, Customer acknowledges and agrees to the limitations of the Service described in this Section and in other sections of this Agreement. Customer waives any and all claims against SimpleSignal related to any of these limitations, including, but not limited to interference with or disruption of such systems due to the Services.
2.10. Privacy and Security: VoIP communication utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Customer acknowledges and agrees that SimpleSignal cannot guarantee that calls utilizing the Service are private or secure. SimpleSignal is not liable for any lack of privacy or security that Customer may experience with regard to the Service. Customer is responsible for taking precautions and providing security that best suits your intended use of the Service.
3. Installation and Software Licenses
3.1. Installation Process: SimpleSignal or its agents will supply and install the SimpleSignal Equipment within the Premises.
3.2. File Modification: As part of the installation process, system files on Customer Equipment may be modified. Such modifications may disrupt the normal operations of Customer Equipment, including the possible corruption or loss of data stored on computer(s). For these and other reasons, SimpleSignal requires, and Customer agrees, that Customer back-up all computer files in accordance with Section 2.6 above prior to installation of the Software. Customer acknowledges and agrees that it accepts any and all risks, including loss of data, due to its failure to backup data as required by this Agreement. SIMPLESIGNAL SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO CUSTOMER EQUIPMENT OR LOSS OF DATA RESULTING FROM THE INSTALLATION OF THE SOFTWARE OR OTHER FILE MODIFICATIONS.
3.3.1. Non-exclusive License: If Software is provided by SimpleSignal, SimpleSignal grants to Customer a personal, limited, non-exclusive, non-assignable and non-transferable license to use the Software, in object code form only, solely for the purpose of connecting Customer Equipment or SIP aware device to the Service. This license will permit such use by Customer and any person 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 SimpleSignal’s acceptance of Customer’s subscription for the Service and terminates immediately upon the expiration or termination of this Agreement for any reason. Customer shall 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 this Agreement for any reason. Customer may not sublicense, assign, or transfer this license or the Software except as permitted in writing by SimpleSignal. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this license is void and may result in termination by SimpleSignal of this Agreement and the license.
3.3.2. End User Licenses: Customer agrees to comply with the terms and conditions of all end user license agreements accompanying any 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.
4. Payment of Fees
4.1. Fixed Monthly Service Fees: The cost for Services requiring a fixed monthly fee, plus all applicable taxes, tariffs, governmental assessments, surcharges and fees (collectively, the “Fixed Service Fee(s)”), shall be as stated in the Customer Sales Order and shall be payable monthly, in advance. The Fixed Service Fee for the first month of Service shall be due and payable prior to installation of Service, and if commencement of Service occurs on other than the first calendar day of the month then the Fixed Service Fee will be prorated by the number of calendar days remaining in the month. Thereafter, the Fixed Service Fee is due and payable in advance on the first day of each month.
4.2. Variable Monthly Usage Fees: The cost for Services computed based on the usage by Customer and other variable factors, plus all associated taxes, tariffs, governmental assessments, surcharges and fees (collectively, the “Usage Fee(s)”) shall be computed at the rates stated in the Customer Sales Order and shall be payable monthly in arrears, using a cut-off date selected by SimpleSignal.
4.3. Installation Charge and Security Deposit: The charge for Installation shall be as stated in the Customer Sales Order and shall be due and payable prior to installation. An equipment deposit for SimpleSignal Equipment to be used in the Premises shall be as stated in the Customer Sales Order and shall be due prior to installation and shall be refunded to Customer upon termination of this Agreement, provided said SimpleSignal Equipment is returned in good working condition.
4.4. Agreement to Pay: Usage Fees and Fixed Service Fees (together, “Service Fees”) and any other amounts due to SimpleSignal may be charged to Customer’s Visa, MasterCard, American Express or other credit card, and/or electronically debited to Customer’s bank account, at Customer’s option. Customer agrees to pay timely all monthly Service Fees, the Installation Charge, and Equipment Deposit. Customer hereby authorizes SimpleSignal to charge Customer’s Visa, MasterCard or other credit card and/or to electronically debit Customer’s bank account for all such fees, charges, taxes and payment transaction processing costs.
4.5. Late Payments/Failure to Pay: If any payment due to SimpleSignal is not received within 10 days of due date, an administrative charge equal to the lesser of (a) 5% of the amount due and (b) the maximum amount permitted under applicable law, may be assessed and the Service may be discontinued. If the Service is discontinued, Customer will be required to pay a reconnect fee of $200.00 in addition to all past due amounts before the Service is reconnected. The administrative charge is intended to be a reasonable advance estimate of SimpleSignal’s costs resulting from Customer’s late payments and non-payments, and is set in advance due to the difficulty inherent in determining the costs associated with any particular late payment or non-payment. SimpleSignal does not anticipate that Customer will fail to make payments on a timely basis. SimpleSignal does not extend credit to its Customer, and Customer acknowledges that the administrative charge is not interest, a credit service charge nor a finance charge and is reasonably related to the actual expenses incurred by SimpleSignal due to non-payment or late payment. If Customer’s electronic debit payment or any check issued to SimpleSignal fails to be honored by Customer’s bank or other financial institution, SimpleSignal may charge Customer a collection fee equal to the lesser of (i) $30.00; and (ii) the maximum amount permitted under applicable law. If SimpleSignal, at its sole discretion, elects to use the services of a third party collection agency, the cost of such third party collection agent shall be paid by the Customer.
4.6. Price Changes: SimpleSignal may change the Usage Fee or Fixed Service Fee at any time and from time to time upon 30 days advance notice. Such notice shall state the effective date of any price change. Notwithstanding the foregoing, all rates for calls originated from or terminated outside the United States are subject to change on five-calendar days notice from SimpleSignal. New rates for calls originated from or terminated outside the United States shall be effective on the 6th day from the date of such notice. SimpleSignal, upon 10 days notice, may adjust the rates for all Services to include the cost, if any, of tariffs, taxes or similar assessments imposed upon SimpleSignal by any governmental agency. Usage Fees are due and payable on the fifteenth day after the invoice date.
4.7. Additional Charges: The Service may allow Customer to access the Internet, on-line services and other information. Customer acknowledges that Customer may incur charges while using the Service in addition to those billed by SimpleSignal. 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.
4.8. Credit Inquiries: Customer authorizes SimpleSignal to make inquiries and to receive information about Customer’s credit experience from others, enter this information in Customer’s file, and disclose such information concerning Customer to appropriate third parties for reasonable business purposes. SimpleSignal reserves the right, in its sole discretion, to refuse to provide Service based upon lack of creditworthiness, or in the alternative to require a security deposit that will be returned to Customer, without interest thereon, upon the expiration or termination of this Agreement. Customer authorizes SimpleSignal to offset any amounts due to SimpleSignal against the security deposit.
4.9. Prepayment Option: Customer may prepay any Fixed Service Fees for 12 months and receive a discount of 5%. The amount due shall be the then current Fixed Service Fee multiplied by twelve, multiplied by 95%. Upon early termination of this Agreement the refund due shall be prorated for the unused portion of the year, subject to the early termination fee, if any, required by Section 7 hereof.
4.10. Requests for Additional Services: From time to time, Customer may order additional hosted services including but not limited to Hosted Seats, SIP Trunking, and additional DID’s. For add-on orders of less than additional monthly charges of $100, Customer agrees that an email or other written authorization from Customer is adequate documentation of the new services and agrees to be bound by this Agreement accordingly. Add-on orders amounting to more than $100 per month in new charges, Customer agrees and understands that an amendment to this Agreement or a new signed Customer Agreement is required.
5. Customer Conduct
5.1. Prohibited Uses: Customer shall not use the Service or the SimpleSignal Equipment, directly or indirectly:
5.1.1. for any unlawful purposes; use of the Service for transmission or storage of any information, data or material in violation of any applicable federal, state or local regulation or law is prohibited, such limitation shall include, without limitation, posting or disseminating content which is obscene, unlawful, threatening, defamatory, or infringes upon the intellectual property rights of any third party;
5.1.2. to post, transmit or disseminate objectionable information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law or regulation;
5.1.3. to access any other person’s computer, software or data without the knowledge and consent of such person;
5.1.4. to upload, post, publish, transmit, reproduce, create derivative works of, or distribute in any way, information, software or other material obtained through the Service which is protected by copyright or other proprietary rights without obtaining permission from the owner(s);
5.1.5. to copy, distribute, or sublicense any Software, except as expressly provided in this Agreement;
5.1.6. to service, alter, modify or tamper with the SimpleSignal Equipment or Service or permit any other person to do the same unless such person is authorized by SimpleSignal to do so;
5.1.7. to restrict, inhibit or otherwise interfere with the ability of any other person to use or enjoy the Service, including, without limitation, posting or transmitting any information or software which contains a virus or other harmful feature, or generating levels of traffic sufficient to impede others’ ability to send or retrieve information;
5.1.8. to knowingly disrupt the Service or SimpleSignal’s ability to provide services to other customers, or any manner reasonably likely to harm or interfere with SimpleSignal’s network;
5.1.9. to resell the Service or otherwise charge others to use the Service; the Service is for personal use only and Customer agrees not to use the Service for operation as an Internet service provider or for any other business enterprise in competition with the Service;
5.1.10. to connect the SIP aware access device or media converter to any computer outside of the Premises; or
5.1.11. to allow or provide access to adult content material to anyone under the age of 18 years.
5.2. Fair Usage Policy: SimpleSignal has prepared this Fair Usage Policy as a guide for its customers to understand the intended and permissible uses of our service, and to prevent fraud, exploitation, and abuse of its unlimited calling plans and features.
Unlimited calling plans are designed for normal commercial use and are not intended to meet the needs of unique organizations such as call centers, resellers, companies utilizing auto-dialers or fax messaging services, telemarketing firms, or for use without live dialog (ie: transcription services, intercom, or monitoring services). Alternate calling plans are available for these types of organizations.
Because, on average, SimpleSignal customers use less than 2,000 minutes of outbound usage per subscriber line (SIP trunk or hosted seat), Customer will be considered to be outside of SimpleSignal’s fair usage policy when, in aggregate, outbound minutes exceed this average. For example, a customer with 20 hosted seats would not typically exceed 40,000 minutes of outbound usage (20 seats x 2,000 minutes).
Once these limits are exceeded SimpleSignal will charge $0.025 per minute of overage for any additional outbound minutes used. Outbound minutes include remote call forwarding calls that first come into to a SimpleSignal provided DID and are then subsequently re-routed outbound to an out-of-network phone number.
SimpleSignal reserves the right to review Customer’s account at any time for potential abuses of this Fair Usage Policy. SimpleSignal may determine abnormal or abusive usage based on comparisons to the usage patterns of other customers. In addition to the excessive use charges above, if SimpleSignal identifies excessive or abusive traffic patterns, commercially reasonable efforts to inform Customer and to provide the opportunity to correct the unusual usage will be taken. If after 30 days, Customer is unable to correct or resolve the excessive or abusive traffic patterns, SimpleSignal reserves the right to change Customer’s applicable rate plan, suspend, or terminate service with or without notice.
5.3. Call Flooding: To protect the integrity of its network, SimpleSignal may in its reasonable discretion, and without liability for damages, temporarily block duplicate or repeated numbers dialed in succession, where SimpleSignal considers the number of attempts to be potentially harmful to the network even if the aggregate number of minutes is within the allowable average stated within the fair usage policy. Similarly, SimpleSignal may temporarily block services for excessive short duration calling patterns generated by Customer. Short duration calls are defined as calls lasting 6 seconds or less and are considered excessive if the number of short duration calls exceeds 10% of total number of calls.
5.4. International Calls: Calls to international locations (outside the U.S. and Canada) and inbound Toll Free usage are charged at the per minute rates stated on our international and Toll Free rate decks and are subject to change according to the terms of this Agreement and are not to be included in unlimited calling plans.
5.5. Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software: The Service and SimpleSignal Equipment and Software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the SimpleSignal Equipment, and all Services, information, documents and materials on SimpleSignal’s website(s) are protected by trademark, copyright, patent and other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) of SimpleSignal are and shall remain the exclusive property of SimpleSignal and nothing in this Agreement shall grant you the right or license to use any of such marks. Customer acknowledges that it is not given any license to use the firmware or Software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in the SimpleSignal Equipment, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with this Agreement. Customer agrees that the SimpleSignal Equipment is exclusively for use in connection with the Service and that SimpleSignal will not provide any passwords, codes or other information or assistance that would enable Customer to use the SimpleSignal Equipment for any other purpose. If Customer decides to use the Service through an interface device not provided by SimpleSignal, which SimpleSignal reserves the right to prohibit in particular cases or generally, Customer warrants and represents that it possess 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 SimpleSignal against any and all liability arising out of Customer’s use of such interface device with the Service. Customer shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or Software.
5.6. Termination: SimpleSignal may immediately terminate this Agreement and the Service if Customer engages in any of the activities listed in Sections 5.1 through 5.3 above, or if Customer uses the Service or SimpleSignal Equipment contrary to any other SimpleSignal policy. Copies of such policies may be posted (and modified from time to time with or without notice) online at www.SimpleSignal.com. This Section 5.6 shall in no way limit SimpleSignal’s rights of termination pursuant to Section 7.2 of this Agreement. Customer agrees to indemnify, defend and hold harmless SimpleSignal against all claims and expenses incurred by SimpleSignal (including reasonable attorneys’ fees) resulting from Customer’s use of the Services, including, without limitation, the activities listed in Sections 5.1 through 5.3 above, or from any other violation of SimpleSignal policies by Customer. This Section 5.6 shall survive the expiration or other termination of this Agreement.
6. Service Interruptions
6.1. Availability Credits For T1 Service or Greater: When the Service is provisioned at a Customer location over a SimpleSignal provided broadband connection of T1 speed or greater, a credit allowance will be given for interruptions in any voice service application preventing inbound or outbound calling on any or all phone extensions or complete outage of any or all voice mail boxes (“Voice Service Unavailability”) at that Customer location in excess of 30 minutes for each seat affected. The time attributed toward Voice Service Unavailability begins when the trouble ticket reporting the outage is opened by Customer with SimpleSignal and ends when the affected service is again operational. Two or more interruptions of 15-minutes or more during any one 24- hour period will be combined into one cumulative interruption. Credit will be given on the next invoice (“Voice Service Availability Credit”) as follows:
SimpleSignal SIP Trunks Include:
|Length of Interruption||Credit Per Seat Affected|
• 30 minutes to 1 hour
• 1 hour 1 minute to 24 hours
• 24 hours 1 minute or more
• 1 day
• 3 days
• 10 days
The Voice Service Availability Credit is subject to the following limitations:
Services used at locations other than locations using SimpleSignal provided T1’s are excluded.
No credit allowance will be made for any interruption in Service: due to the negligence of Customer or noncompliance with the provisions of this Agreement (including its payment terms); due to the failure of power at the Premises; the failure of Customer Equipment or other Customer hardware; due to the failure of equipment, systems, connections or services not provided by SimpleSignal; due to circumstances or causes beyond the reasonable control of SimpleSignal; or during any period in which SimpleSignal is not given full and free access to its facilities and equipment for the purposes of investigating and correcting interruptions.
Inability to access the Web-based voice portal will not give rise to service credits outlined in this SLA.
The amount of credit available per month is subject to a cap described in the Agreement.
6.2. DSL: SimpleSignal provides VoIP over ADSL and SDSL as a best effort service with no warranties (including warranties regarding continuous service uptime or voice quality) except those, if any, expressly stated herein. If a SimpleSignal provided ADSL or SDSL (“DSL”) circuit fail to support the Customer’s Service by not providing sufficient capacity to support the target maximum number of concurrent calls (“Target MNCC”) stated in the Service Order when there is no other traffic on the circuit, and Customer notifies SimpleSignal of four (4) such failures in any calendar month within five (5) calendar days of each failure, and SimpleSignal is unable to resolve such failure within five (5) business days, SimpleSignal will propose a circuit and/or speed upgrade more suited to the Customer’s needs. Upon proposal of this upgrade by SimpleSignal, Customer must accept or decline such upgrade within twenty-five (25) calendar days. If Customer elects to accept this upgrade, SimpleSignal shall upgrade the circuit and Customer’s DSL billing shall be adjusted to reflect the change in service. If Customer declines this upgrade, Customer may cancel its VoIP Service without being charged the termination, cancellation or minimum term commitment fees set forth in Section 7 hereof. If Customer declines the upgrade, Customer must provide advance notice to SimpleSignal, effective within thirty (30) calendar days of Customer’s receipt of SimpleSignal’s proposal to upgrade the DSL service, either revising its Target MNCC to a lower value, consistent with the actual circuit performance, or canceling the VoIP Service. If Customer fails to report a failure, fail to accept or decline a proposed upgrade, fail to cancel the Service or revise the Target MNCC within the allotted time(s) as allowed herein, Customer shall be deemed to have accepted the VoIP Service “as is” and Customer will not be eligible for further remedies.
If Customer cancels any Services as allowed herein, Customer shall be responsible for all charges for Services used, including any and all Service Fees and all charges for hardware, and shall continue to be bound by Customer’s other obligations in regard to other Services purchased from SimpleSignal, including, but not limited to, those relating to the purchase of the DSL circuit.
6.3. Prorated Credit: Except as otherwise required by law, Customer is not entitled to a prorated credit of any fees paid hereunder for any failure of the Service. Notwithstanding the foregoing, if there is a complete failure of the Service due to technical malfunction of the system or network operated by SimpleSignal for a period of twenty-four (24) consecutive hours or more, Customer may obtain a pro rated credit for the period of the Service failure. To obtain a credit, Customer must request a credit in writing from SimpleSignal within thirty (30) days of the failure. Credits shall be applied against future fees payable hereunder by Customer.
6.4. Force Majeure: If SimpleSignal’s performance of this Agreement or any other obligation hereunder is prevented, restricted or interfered with by causes beyond its reasonable control including but not limited to acts of God, fire, explosion, railroad disaster, vandalism, power failure, cable cut, storm, or other similar occurrence, any law, order, regulation, direction, action or request of any governmental authority, or civil or military authority, or by national emergencies, insurrections, riots, wars, strikes, lockouts or work stoppages or other labor difficulties, actions or inactions of a third party provider or operator of facilities employed in the provision of the Services, suppliers’ failures, shortages, breaches, or delays, then SimpleSignal shall be excused from such performance on a day-to-day basis to the extent of such prevention, restriction, or interference. SimpleSignal shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease.
6.5. Power Failures Customer acknowledges and understands that the Service does not function in the event of power failure. Customer also acknowledges and understands that the Service requires a fully functional broadband connection to the Internet (which may or may not be provided by SimpleSignal) and that, accordingly, in the event of an outage of, or termination of service with or by, your Internet service provider (“ISP”) and/or broadband provider, the Service will not function, but that you will continue to be billed for the Service unless and until you or SimpleSignal terminate the Service in accordance with this Agreement. Should there be an interruption in the power supply or ISP outage, the Service will not function until power is restored or the ISP outage is cured. A power failure or disruption may require you to reset or reconfigure equipment prior to utilizing the Service. Power disruptions or failures or ISP outages will also prevent dialing to emergency service numbers including the 911calling feature. Should SimpleSignal suspend or terminate your Service, the Service will not function until such time as SimpleSignal restores your Service (which may require payment of all invoices and reconnection fees owed by you or cure of any breach by you of this Agreement).
7. Automatic Renewal and Termination
7.1. Termination by Customer: The initial term of this Agreement shall commence on the date of installation of the Service and shall terminate on the date set forth in the Customer Sales Order (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for a period equal to that of the Initial Term (each such renewal term, a “Renewal Term,” and all Renewal Terms and the Initial Term together, the “Term”) unless written notice of cancellation is received by SimpleSignal thirty days prior to the end of the Initial Term or the then current Renewal Term. For all Services billed by a Fixed Service Fee, Customer may terminate only prior to the end of the Initial Term by giving written notice to SimpleSignal and by payment of a fee equal to the product of (X) the number of months remaining in the Initial Term or the then current Renewal Term, and (Y) the amount of the monthly Fixed Service Fee (the “Fixed Service Fee Termination Amount”). For Services billed pursuant to Usage Fees, Customer may only terminate prior to the end of the Initial Term or the then current Renewal Term by giving written notice to SimpleSignal and by payment of a fee equal to the product of (A) the number of months remaining in the Initial Term or the then current Renewal Term, and (B) the average of the prior three (or if less than three months have elapsed, using the average of all actual months) month’s Usage Fees (“Usage Fee Termination Amount”). All such termination fees described herein shall collectively or individually be known as “Termination Fee(s).” ANY TERMINATION NOTICE RECEIVED BY SIMPLESIGNAL THAT IS NOT ACCOMPANIED BY THE PAYMENT OF THE APPLICABLE TERMINATION FEE SHALL BE NULL AND VOID.
7.2. Termination by SimpleSignal: SimpleSignal may terminate this Agreement immediately upon written notice to Customer if Customer violates any of the terms of this Agreement. SimpleSignal may also terminate this Agreement for any other reason by providing Customer with written notice of such termination no later than thirty (30) days before the date of termination. In the event that SimpleSignal terminates this Agreement for any reason other than Customer’s violation of the provisions of Section 5.1 through 5.3, Service Fees will continue to accrue through the effective date of termination; provided, however that all prepaid Service Fees and charges for cancelled Service will be refunded. If SimpleSignal terminates this Agreement due to Customer’s breach of any of Section 5.1 through 5.3, in addition to Services Fees due through the effective date of termination, the termination shall be considered a termination by Customer pursuant to Section 7.1 hereof and Customer shall pay the applicable Termination Fee.
7.3. Customer Obligations: Customer agrees that upon termination of this Agreement:
7.3.1. Customer will pay SimpleSignal in full for Customer’s use of the Service and SimpleSignal Equipment up through the later of (i) the effective date of termination of this Agreement, or (ii) the date on which the Service and the SimpleSignal Equipment have been disconnected and returned to SimpleSignal. Customer agrees to pay SimpleSignal on a prorated basis for any use by Customer of the Service or SimpleSignal Equipment for any partial month;
7.3.2. Customer will permit SimpleSignal, its employees, agents, contractors and representatives to access the Premises during regular business hours to remove the SimpleSignal Equipment and other materials furnished by SimpleSignal;
7.3.3. Customer will ensure the return of all SimpleSignal Equipment to SimpleSignal. Customer will return or destroy all copies of any Software provided to Customer pursuant to this Agreement. If the SimpleSignal Equipment is not returned, Customer shall pay the charges set forth in Section 2.4 above and SimpleSignal shall have the right to charge such amounts to Customer’s Visa, MasterCard or other credit card, or to electronically debit Customer’s bank account;
7.3.4. Customer, upon request by SimpleSignal made not more frequently than monthly, shall provide information regarding the number of desktop and/or portable computers connected to the Service during any month.
7.3.5. Retention of Rights. Nothing contained in this Agreement shall be construed to limit SimpleSignal’s rights and remedies available at law or in equity.
7.3.6. Survival. Sections 2.3, 4, 7, 8 and 14 shall survive the termination of this Agreement.
8. Warranties and Limitations of Liabilities
8.1. Disclaimer of Warranties: YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. NEITHER SIMPLESIGNAL NOR ANY OF ITS AGENTS, OFFICERS, MANAGERS, EMPLOYEES, SUPPLIERS, LICENSORS NOR ANY OWNER OR MANAGER OF THE BUILDING OR LAND IN WHICH THE PREMISES IS LOCATED (“SIMPLESIGNAL PARTNERS”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO SIMPLESIGNAL NOR ANY OF SIMPLESIGNAL’S PARTNERS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS DISTRIBUTED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS OF INFORMATIONAL CONTENT, NON-INFRINGEMENT OR OTHERWISE, EXCEPT THE FOREGOING SHALL NOT APPLY IN STATES WHERE IT IS PROHIBITED. SIMPLESIGNAL EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICE WILL BE ERROR FREE, SECURE OR UNINTERRUPTED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY SIMPLESIGNAL OR ANY OF SIMPLESIGNAL’S PARTNERS SHALL CREATE A WARRANTY; NOR SHALL CUSTOMER RELY ON ANY SUCH INFORMATION OR ADVICE. BECAUSE SIMPLESIGNAL PROVIDES CUSTOMERS WITH ELECTRONIC ACCESS TO THE CONTENT AVAILABLE ON THE INTERNET, SIMPLESIGNAL CANNOT AND DOES NOT WARRANT THE ACCURACY OF ANY OF THE INFORMATION CUSTOMER OBTAINS THROUGH THE SERVICE. SIMPLESIGNAL SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF ANY HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM, OR FROM ANY ATTEMPT TO REMOVE, ANY COMPUTER VIRUS OR OTHER HARMFUL FEATURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU TO THE EXTENT SUCH EXCLUSION IS NOT ALLOWED BY APPLICABLE LAW. THE LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU ALSO MAY HAVE OTHER RIGHTS THAT VARY BY JURISDICTION.
8.2. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER SIMPLESIGNAL NOR ANY OF SIMPLESIGNAL’S PARTNERS SHALL BE LIABLE FOR:
8.2.1. ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, THE USE OF THE SERVICE BY CUSTOMER OR ANY OTHER USE OF THE SIMPLESIGNAL EQUIPMENT OR SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE RESULTING FROM OR ARISING OUT OF CUSTOMER’S RELIANCE ON OR USE OF THE SERVICE OR SIMPLESIGNAL EQUIPMENT OR SOFTWARE, OR THE MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION OR ANY FAILURE OF PERFORMANCE OF THE SERVICE OR SIMPLESIGNAL EQUIPMENT OR SOFTWARE OR OUT OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY BY SIMPLESIGNAL; or
8.2.2. ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS (INCLUDING LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE SIMPLESIGNAL EQUIPMENT OR SOFTWARE, OR SERVICE OR A THIRD PARTY INFRINGES UPON THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY.
8.2.3. WITHOUT IN ANY WAY LIMITING THE FOREGOING, IF FOR ANY REASON, BY OPERATION OF LAW OR OTHERWISE, ANY PORTION OF THE FOREGOING LIMITATION OF LIABILITY SHALL BE VOIDED, THEN IN SUCH EVENT SIMPLESIGNAL’S MAXIMUM, SOLE, AND EXCLUSIVE LIABILITY AND THE LIABILITY OF SIMPLESIGNAL’S PARTNERS SHALL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO SIMPLESIGNAL BY CUSTOMER FOR SERVICE DURING AND FOR A PERIOD OF TIME COMMENCING UPON THE OCCURRENCE OF SUCH ERROR, DEFECT OR FAILURE AND CEASING UPON THE DISCOVERY OF SUCH, IN WHOLE OR IN PART; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL SUCH PERIOD OF TIME EXCEED THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHICH SUCH ERROR, DEFECT OR FAILURE IS FIRST DISCOVERED IN WHOLE OR IN PART.
8.3. Application: The liability limitations set forth in this Section 8 apply to the acts, omissions and negligence of SimpleSignal and SimpleSignal Partners which, but for this provision, would give rise to a cause of action in contract, tort or any other legal doctrine.
8.4. Indemnification: Customer shall indemnify, defend and hold SimpleSignal harmless against any and all claims, liability, damages, costs and expenses, including but not limited to reasonable attorneys fees, arising out of or related to any and all use of the Service by Customer. This includes, without limitation, responsibility for all consequences of Customer’s (or that of any user of the Service through Customer’s computer(s), phone systems, PBXs and other telecommunications equipment) violation of this Agreement or placement on or over, or retrieval from or through, the Service of any software, file, information, communication or other content and all costs incurred by SimpleSignal in enforcing this Agreement.
8.5. Sole Remedies: Customer’s sole and exclusive remedies for any claim related to this Agreement or the Service are those remedies set forth in this Agreement. Customer waives any and all other remedies, at law or in equity, to the fullest extent permitted by law.
9. Multiple Users
Customer acknowledges that Customer is executing this Agreement on behalf of all persons who use the Service and/or SimpleSignal Equipment through Customer’s computer(s), phone systems, PBXs and other telecommunications equipment. Customer shall have sole responsibility for ensuring that all such other users understand and comply with the terms and conditions of this Agreement. Customer further acknowledges and agrees that Customer is solely responsible and liable for any and all breaches of the terms and conditions of this Agreement whether such breach is the result of use of the Service and/or the SimpleSignal Equipment by Customer or any other user of Customer’s computer(s), phone systems, PBXs and other telecommunications equipment.
10. Emergency 911
PLEASE READ THE INFORMATION BELOW ABOUT 911 DIALING CAREFULLY. BY USING AND PAYING FOR THE SERVICES, CUSTOMER ACKNOWLEDGES AND AGREES TO ALL OF THE INFORMATION BELOW REGARDING THE SIMPLESIGNAL VOICE 911 EMERGENCY DIALING SERVICE, AND THE DISTINCTIONS BETWEEN SUCH SERVICE AND TRADITIONAL 911 OR ENHANCED 911 (“e911”) CALLS.
CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT SIMPLESIGNAL OFFERS A 911 EMERGENCY SERVICE AS DESCRIBED HEREIN AND THAT SUCH 911 DIALING IS DIFFERENT IN A NUMBER OF IMPORTANT WAYS (SOME, BUT NOT NECESSARILY ALL, OF WHICH ARE DESCRIBED IN THIS AGREEMENT) FROM TRADITIONAL 911 SERVICE, AND THAT SIMPLESIGNAL HAS TOLD YOU THAT THE SIMPLESIGNAL SERVICE DOES NOT SUPPORT TRADITIONAL 911 OR E911. SIMPLESIGNAL 911 DIALING CANNOT BE USED IN CONJUNCTION WITH A SOFT PHONE APPLICATION AND IS ONLY AVAILABLE ON SIMPLESIGNAL PROVIDED DEVICES OR EQUIPMENT. YOU AGREE TO INFORM ANY HOUSEHOLD RESIDENTS, GUESTS AND OTHER THIRD PERSONS WHO MAY BE PRESENT AT THE PHYSICAL LOCATION WHERE YOU UTILIZE THE SERVICE OF THE NON-AVAILABILITY OF TRADITIONAL 911 OR E911 DIALING FROM YOUR SIMPLESIGNAL SERVICE AND DEVICE(S) AND TO INFORM THEM OF THE IMPORTANT DIFFERENCES AND LIMITATIONS OF SIMPLESIGNAL 911 DIALING SERVICE AS COMPARED WITH TRADITIONAL 911 OR E911 DIALING THAT ARE SET FORTH IN THIS AGREEMENT.
10.1. 911-Type Dialing Capabilities With SimpleSignal VOIP Service
WHEN YOU DIAL 911 ON YOUR PHONE UTILIZING SIMPLESIGNAL VOIP, YOUR CALL MAY BE ROUTED TO A DIFFERENT DISPATCHER THAN THAT USED FOR TRADITIONAL 911 DIALING. THE DISPATCHER MAY BE LOCATED AT A PUBLIC SAFETY ANSWERING POINT (“PSAP”) DESIGNATED FOR THE ADDRESS YOU LISTED AT THE TIME YOU REGISTERED FOR THE SERVICE OR OTHER BACK-UP EMERGENCY ANSWERING SERVICES. SIMPLESIGNAL RELIES ON THIRD PARTIES FOR THE FORWARDING OF INFORMATION UNDERLYING SUCH ROUTING, AND ACCORDINGLY SIMPLESIGNAL AND ITS THIRD PARTY PROVIDER(S) DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY IN THE EVENT SUCH INFORMATION OR ROUTING IS INCORRECT. IN ADDITION, SIMPLESIGNAL 911 SERVICE HAS FEWER CAPABILITIES THAN TRADITIONAL 911 OR E911 SERVICE. IN PARTICULAR, SIMPLESIGNAL 911 EMERGENCY DIALING IS ONLY AVAILABLE AT THE PHYSICAL STREET ADDRESS REGISTERED WITH SIMPLESIGNAL FOR THE PARTICULAR AREA CODE AND PHONE NUMBER.
Customer acknowledges and agrees that 911-type Services shall only be available at the physical street address associated with the particular area code and phone number assigned to Customer. Customer further acknowledges and agrees that 911-type Services will not be available to a particular customer and neither SimpleSignal nor its underlying service providers shall have any liability to Customer or any third party for failure to provide 911 Services to Customer in the event of the assignment of an area code and phone number to you located outside of the exchange area associated with your physical street address or relocation of any SimpleSignal Equipment to which an area code and phone number has been assigned to a location other than Customer’s physical street address as registered with SimpleSignal.
10.2. Failure To Designate The Correct Physical Street Address.
IF CUSTOMER DOES NOT CORRECTLY IDENTIFY THE ACTUAL CURRENT AND CORRECT PHYSICAL STREET ADDRESS LOCATION WHERE ITS SIMPLESIGNAL EQUIPMENT WILL BE LOCATED AT THE TIME CUSTOMER REGISTERS FOR THE SERVICE, 911 COMMUNICATIONS MAY BE MISDIRECTED TO AN INCORRECT LOCAL EMERGENCY SERVICE PROVIDER. When activating the Service Customer must provide the actual physical street address where the SimpleSignal Equipment will be located, not a post office box, mail drop or similar address. Customer acknowledges and understands that 911 dialing does not function properly or at all if you move or otherwise change the physical location of your SimpleSignal Equipment to a different street address. Any change of the device’s physical address must be coordinated with SimpleSignal for the service and 911 to work properly.
10.3. Automated Number & Location Identification.
THE PSAP RECEIVING SIMPLESIGNAL VOICE 911 EMERGENCY SERVICE CALLS MAY NOT BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. SimpleSignal’s system is configured in most instances to send the automated number identification information and to transmit identification of the address that you have registered with SimpleSignal to the PSAP and local emergency personnel for Customer’s area when Customer dials 911; however, one or more telephone companies, not SimpleSignal, route the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and PSAPs are not yet always technically capable of doing so. Customer acknowledges and understands that PSAP and emergency personnel may or may not be able to identify Customer’s phone number and location in order to call Customer back if the call is unable to be completed, is dropped or disconnected, or if Customer is unable to speak to tell them Customer’s phone number and location and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.
10.4. Power Failure, Outages Or Disruptions Of Service.
CUSTOMER ACKNOWLEDGES AND ACCEPTS THAT SIMPLESIGNAL VOICE 911 SERVICE WILL NOT FUNCTION IF SIMPLESIGNAL EQUIPMENT FAILS OR IS NOT CONFIGURED CORRECTLY OR IF YOUR SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, A POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION INCLUDING SUSPENSION OR TERMINATION OF SERVICE BY CUSTOMER’S BROADBAND PROVIDER AND/OR ISP OR BY SIMPLESIGNAL FOR ANY REASON INCLUDING BILLING ISSUES OR FOR OTHER REASONS DESCRIBED ELSEWHERE IN THIS AGREEMENT. IF THERE IS A POWER OUTAGE THE SERVICE AND 911 DIALING WILL NOT FUNCTION UNTIL POWER IS RESTORED AND CUSTOMER MAY BE REQUIRED TO RESET OR RECONFIGURE THE SIMPLESIGNAL EQUIPMENT PRIOR TO BEING ABLE TO USE THE SERVICE, INCLUDING FOR 911 PURPOSES.
10.5. Possibility Of Network Congestion And Reduced Speed For Routing Or Answering 911.
CUSTOMER ACKNOWLEDGES AND AGREES THAT FOR TECHNICAL REASONS ASSOCIATED WITH THE POSSIBILITY OF NETWORK CONGESTION, WHEN USING VOIP THERE IS A GREATER POSSIBILITY THAT A 911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER, AS COMPARED TO TRADITIONAL 911 CALLS OVER TRADITIONAL PUBLIC TELEPHONE NETWORKS. Customer acknowledges and agrees that SimpleSignal relies on third parties for the forwarding of information underlying such routing, and accordingly SimpleSignal and its third party provider(s) disclaim any and all liability or responsibility in the event such information or routing is incorrect.
10.6. Limitation of Liability and Indemnification.
AS DESCRIBED HEREIN, 911-TYPE DIALING USING THE SERVICE (OR ANY VOIP SERVICE) CURRENTLY IS NOT THE SAME AS TRADITIONAL 911 OR E911 DIALING, AND AT THIS TIME, DOES NOT NECESSARILY INCLUDE ALL OF THE CAPABILITIES OF TRADITIONAL 911 DIALING. CUSTOMER ACKNOWLEDGES AND AGREES TO SUCH LIMITATIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER RELEASES ANY CLAIM IT MIGHT OTHERWISE HAVE AGAINST SIMPLESIGNAL AND EACH OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OF ITS UNDERLYING PROVIDERS, SERVICE PROVIDERS OR OTHER THIRD PARTY PROVIDERS WHO FURNISH SERVICES TO CUSTOMER OR SIMPLESIGNAL IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE (COLLECTIVELY, “RELEASEES”), ARISING OUT OF THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, INCLUDING 911 DIALING AND/OR INABILITY OF CUSTOMER OR ANY THIRD PERSON OR PARTY OR USER OF THE SERVICE TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL AND/OR MISROUTES OF 911 CALLS, INCLUDING BUT NOT LIMITED TO MISROUTES RESULTING FROM YOUR PROVIDING SIMPLESIGNAL INCORRECT ADDRESS INFORMATION IN CONNECTION THEREWITH (COLLECTIVELY, A “911 ISSUE”). CUSTOMER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS EACH SIMPLESIGNAL RELEASEE FROM AND AGAINST ANY AND ALL CLAIMS, ACTIONS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS FEES, COLLECTIVELY, A “911 LOSS”) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PERSON OR PARTY OR USER OF THE SERVICE RELATING TO A 911 ISSUE. CUSTOMER COVENANTS NOT TO ASSERT ANY CLAIM RELATED TO A 911 LOSS AGAINST ANY RELEASEE.
11. Local Number Portability
11.1. In the event Customer is not utilizing a new phone number for the Services, but rather are transferring an existing phone number which currently is subscribed to a carrier other than SimpleSignal for local, long distance and international telephone services, to SimpleSignal, the terms and conditions of this section shall apply:
11.1.1. Customer hereby authorizes SimpleSignal to process Customer’s order for Services and to notify Customer’s local telephone company of its decision to switch all local, local toll and long distance services to SimpleSignal, and represent that Customer is authorized to take this action;
11.1.2. Customer agrees and acknowledges that if the SimpleSignal Equipment is set up prior to the date that the number switch becomes effective (“Port Effective Date”), Customer may only be able to make outgoing calls over the phone connected to the SimpleSignal Equipment. In such event, Customer should keep another phone connected to an existing phone extension at its service location to receive incoming calls until the Port Effective Date, after which Customer will be able to both make and receive calls using the Service.
11.1.3. Customer agrees and acknowledges that if its SimpleSignal Equipment is not yet activated 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 line. Therefore, to avoid an interruption in Customer’s phone service, it is extremely important that the SimpleSignal Equipment be installed prior to, or on, the Port Effective Date. An estimate of the Port Effective Date will be sent Customer via e-mail by SimpleSignal following completion of the ordering process.
11.2. Number Transfer on Service Termination: SimpleSignal 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”). SimpleSignal 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 SimpleSignal’s or its vendors’ standard operating procedures. Note that Customer will be responsible for all monthly, usage and disconnect fees associated with your Service until the Port- Out date of completion or last date of your service period, whichever comes last.
12. Disconnection Policy
Customer agrees that SimpleSignal and/or its agents may, from time to time, collect information regarding Customer’s use of the Service and activities on the Internet. Customer agrees that such information may be shared with third parties provided that (i) SimpleSignal does not disclose any personally identifiable information to others except, as allowed by law and (ii) otherwise complies with applicable privacy laws. Customer expressly grants SimpleSignal the right to disclose information relating to Customer and/or Customer’s account in response to a subpoena issued in a civil or criminal investigation, litigation, court order or a civil investigation by a governmental entity.
13. Fraudulent Calls
Customer is solely responsible for selection, implementation and maintenance of security features for protection against unauthorized calling, and SimpleSignal shall have no liability therefore. Customer is solely responsible for payment of long distance, toll and other telecommunications charges incurred through use of the Services being provided hereunder. Customer shall indemnify, defend and hold SimpleSignal harmless from all costs, expenses, claims or actions arising from fraudulent calls of any nature carried by means of the Services. Customer shall not be excused from paying for Services or any portion thereof on the basis that fraudulent calls comprised a corresponding portion of the Services. In the event SimpleSignal discovers fraudulent calls being made, Customer consents to SimpleSignal taking any and all action that it deems necessary, without notice to Customer, reasonably necessary to prevent such calls from taking place. Notwithstanding the foregoing, it is Customer acknowledges and agrees that SimpleSignal is under no obligation to investigate the authenticity of calls charged to Customer’s account, is not under any obligation to take any action to prevent such calls from being made, and is not liable for any fraudulent calls processed by SimpleSignal and billed to Customer’s account.
14.1. Controlling Law; Venue: This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, excluding its conflict of laws provisions. The parties hereby irrevocably consent to the sole and exclusive jurisdiction of and venue in the United States District Court, for the Southern District of California, or if federal subject matter jurisdiction does not exist, then in the state courts located in San Diego California.
14.2. Notices. Except as otherwise provided in this Agreement,
i. To Customer: In the event SimpleSignal is required or desires to provide Customer with notice under this Agreement, it will provide electronic notice to the e-mail address on file. In the event Customer changes its e-mail address for notice purposes, Customer shall advise SimpleSignal immediately in writing. Customer hereby agrees to electronic delivery of all required notifications, including invoices, unless otherwise expressly provided herein.
ii. To SimpleSignal: Any notice required or given under this Agreement to SimpleSignal (except for billing disputes which must be sent to [email protected]) will be in writing and delivered to SimpleSignal as follows:
Attn: Legal Department
7900 West Park Drive, Suite A-315
McLean, VA 22102
Vonage Business Client Services
Attn: Vice President Operations
7900 West Park Drive, Suite A-315
McLean, VA 22102
Copies of notices shall be sent via fax or e-mail (which shall not constitute formal notice) to:
Office of the Chief Legal Officer
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 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.
14.3: Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
14.4: Headings. The headings in this Agreement are inserted for convenience and do not constitute a part of the Agreement, nor modify or limit any of the terms.
14.5: Waiver; Amendment; Modification. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by the party against whom such waiver or consent is asserted. The waiver by either party of, or consent of either party to, a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach by the other party. Subject to the provisions of Section 4.10, this Agreement may be amended or modified only by mutual agreement of authorized representatives of the parties in writing.
14.6: Enforceability of Provisions. To the extent any provision or portion of this Agreement is determined to be invalid, illegal or unenforceable, such provision or portion shall be severed or deleted from this Agreement or limited so as to give effect to the intention of the parties insofar as possible. The invalidity or unenforceability of any provision or portion hereof shall not affect the validity or enforceability of any other provision or this Agreement as a whole.
14.7: Assignment. SimpleSignal may assign its rights and obligations under this Agreement to any party without the consent of Customer. Customer may not assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of SimpleSignal.
14.8. Entire Agreement: This Agreement, including the Customer Sales Order and attachments hereto, constitutes the entire agreement between the parties regarding its subject matter. This Agreement supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. No other representation, warranty, term or condition, other than as expressly set forth in this Agreement, shall be binding on SimpleSignal.