Terms and Conditions
END USER SERVICE AGREEMENT
Please read these terms and conditions (T&Cs) carefully as they contain important information regarding your legal rights and remedies. Except as expressly provided herein, you acknowledge and agree that we may change these T&Cs at any time as set forth herein.
THIS END USER SERVICE AGREEMENT (this "Agreement") by and between Kumo Cloud Solutions, Inc. dba KUMO, a California corporation and you the Customer ("Customer") contains the rules, regulations, terms and restrictioKpertaining to your use of Company's on Demand Unified Communications and Cloud services and any related equipment, products and/or services that you order from us (collectively, the "Service").
You represent and warrant that you have the lawful authority to bind you or the person or entity on whose behalf you represent to agree (on you own behalf or on behalf of the person or entity for whom/which you are agreeing, as the case may be) to be bound by the T&Cs
By accepting a quote (or "KSO" as described in section 1.1 below) and/or registering for and using the services, you acknowledge that you have read this agreement and agree to be bound by all terms and conditions of this agreement. As amended from time to time, as well as all other agreements, policies and guidelines referenced herein, which are incorporated herein by reference.
We may from time to time, in our sole and absolute discretion, revise all or any portion of this agreement and/or impose additional rules, regulations, or restrictions not expressly stated in the agreement pertaining to the use of the service. In consideration of continued service, for month-to-month service agreements notice of any such changes will be considered given and effective immediately upon commencement of the next billing month. For term agreements the changes will be considered given and effective upon the beginning of the next term. Posting of such modifications or revised agreement shall be on the website www.joinkumo.com/terms/, or such other website designated by us from time to time ("our site"). No further notice by us shall be required to effectuate a modification of this agreement. No Further notice by us shall be required to effectuate a modification of this agreement. Upon posting of a new or revised agreement, the new or revised agreement shall supersede the previously agreed to form(s) of agreement.
Your continued use of the equipment and services following our posting of any modifications and the beginning of the next billing month or renewal of your term as applicable constitutes your acceptance of the modifications. If you do not agree to the terns of any modification, do not continue to use the services and immediately notify us in writing of your termination of this agreement in the manner described in the section below.
1. The Service
1.1 Pricing for Service
Pricing for Kumo’s services and products are provided in the form of a separate quotation document called the “Agreement” which has been signed (actual or electronic) and accepted by customer.
1.2 Modifications, Changes and/or Additions
Future changes to the configuration may require equipment purchases and additional set of fees. Monthly fees will change depending on the services added and or removed. A new contract will not be generated after each change, rather such changes will be memorialized in a KSO. Customer agrees to incur any additional fees incurred from adding and/or removing services over the course of the contract.
Customer relocation requires enough broadband Internet access with static IP address at new location in order to continue to use VoIP phone services. Setup fee may be incurred to move phones and equipment to new location depending on the location address and physical configuration of office space.
1.3 Right to Use Service
We hereby grant you the right to use the Service during the Term strictly in accordance with the terms and condition of this Agreement. The right to use the TryUC Service is limited to Customers who do not have a Kumo account.
1.4 Support for VOIP Services
We agree to will provide you those levels of support in connection with your use of the Service set forth in, and subject to the terms and conditions of, our Service Level Agreement that can be found at https://partners.wspbx.com/msafolder/3817/sla.html which is incorporated herein by reference
1.5 Number Transfer on Service Termination
For those Services that require this function, Local Number Portability (LNP) refers to the order from the Federal Communications Commission (FCC) requiring all telecom providers to allow customers to retain their phone numbers when changing service providers, as long as the customer stays within the same local calling zone. Instead of disconnecting service numbers, you may choose to port your number(s) "out" to another carrier. You initiate this by contacting a new service provider to initiate a port in. The new service provider will then contact us with a port-out request. We will follow industry-sanctioned procedures to fulfill the port out request if: (a) such new service provider is able to accept such number; and (b) your account is completely current, including payment for all charges and applicable Termination Fees.
1.6 Ownership and Risk of Loss
You are responsible, at your sole cost and expense, for purchasing any and all required devices necessary for the use of the Service including, but not limited to, any IP phones, multimedia terminal adapter, analog telephone adapter and any other IP connection device (each, a "Device" and, collectively, "Devices"). If you purchase equipment from us, you are responsible for any and all risk of loss related to that equipment. We provide no express warranties for the equipment. All warranties are provided by the equipment manufacturer.
2. Fair Usage and Abuse Policy
2.1 Service for Business Use Only
You are not authorized to resell or transfer the Service or any portion thereof to any other party without our prior written consent, which may be withheld in our sole discretion.
2.2 Customer’s Responsibilities -
Customers full compliance with the following responsibilities is mandatory and failure to do so will be deemed a material breach of this agreement:
Throughout the term of this Agreement, Customer shall: a) follow KUMO’s installation, operation and maintenance instructions; b) provide proper environmental, electrical and technical connections as specified by KUMO; c) provide reasonable access to the Products to enable KUMO to perform maintenance; d) provide adequate technical facilities, work space and storage space for KUMO spare parts; e) have a customer representative at the Product installation location during any KUMO maintenance activity on the premises; f) if at any time, KUMO deems the existing equipment is not maintainable or is not compatible with current technology and/or platforms, to upgrade to the equipment recommended by KUMO; g) provide KUMO with a valid public IP address and remote desktop access to allow all secured communication between KUMO and the customer’s server(s); h) provide a cool (air conditioned) area for network equipment storage; i) Ensure the timely changing and protection of backup media[KUMO is not responsible for corrupt, lost, damaged or unrecoverable media errors]; j) Provide access to the Customer’s building(s) and secured site(s) as required to perform the agreed upon Services as defined herein k) Provide a primary and secondary point of contact for all service requests to be placed with KUMO; l) Customer will provide a single point of contact to resolve any issues; m) Additions, modifications, or other changes to the Customer’s network environment must be pre-approved by KUMO prior to implementation
2.3 Use of Services
As an express condition of the provision of the Services, you and your End Users agree to comply with Kumo’s AUP. You are solely responsible for your applications, content, and data and for making sure your applications, content and data comply with the AUP. You are responsible for ensuring all End Users comply with your obligations under the AUP, and the restrictions below. As between the parties, you are responsible for responding to all third-party requests concerning your use, and your End Users’ use, of the Services. Kumo may suspend the Services or otherwise restrict access to the Services systems without notice if Kumo learns of an AUP violation that, in its reasonable discretion, is unlawful or is likely to cause loss or liability for Kumo or any third party. You are responsible for all activity that occurs via your account. If you become aware of any unauthorized use of the Services, your account and/or passwords, you will notify Kumo as promptly as possible. Kumo may immediately suspend all or part of your use of the Services if: (a) Kumo believes you or any of your End User’s use of the Services could adversely impact the Services, other customers or their end-users’ use of the Services, or the Kumo network or servers used to provide the Services, without Kumo’s prior written approval; (b) there is suspected unauthorized third-party access to the Services; (c) Kumo believes it is required to suspend immediately to comply with applicable law; or (d) you are in breach of Section 5.b below. Kumo may lift any such suspension when the circumstances giving rise to the suspension have been resolved. At your request, unless prohibited by applicable law, Kumo will notify you of the basis for the suspension as soon as is reasonably possible. Any such suspension or restriction will be on the most limited basis as Kumo determines is reasonably practical under the circumstances in order to address the underlying violation.
2.4 Restrictions
You will not, and will not allow third-parties to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, benchmark, or otherwise attempt to extract any or all of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable law); (b) use the Services for high-risk activities; (c) sublicense, resell, or distribute any or all of the Services, unless we expressly agree otherwise in writing; (d) access the Services in a manner intended to avoid incurring fees or exceeding usage limits or quotas; or (e) process or store any data or content that is subject to the International Traffic in Arms Regulations maintained by the Department of State.
2.5 Responsibility for Content and Data
You are solely responsible for all data and content that you or any End User makes available on, uses, shares and/or processes through our Services. You will obtain and maintain any required consents necessary to permit the processing and use of such content and data under the Agreement by the Services. You represent and warrant that such content and data will not infringe on, or contain any content or data that infringes on, or otherwise violates any copyright, patent or any other right held by a third party and that such content and/or will not violate any applicable law, rule, regulation or industry standard.
2.6 Third-Party Products and Services
Certain Services are provided to you via third parties and may be subject to separate third-party terms and conditions. To the extent third-party terms and conditions supersede the Agreement, that third-party terms and conditions govern your use of that third-party Service. The third-party terms and conditions applicable to your use of certain Services are set forth on the Third-Party Terms and Conditions available at the following web address, which Third-Party Terms and Conditions are incorporated herein by reference: www.joinkumo.com/thirdpartyterms
2.7 Updates to the Services
We may modify, update, or discontinue the Services (including any portions or features) at any time, without liability to you or anyone else. However, for changes to paid Services, we will make commercially reasonable efforts to notify you of the modification, update or discontinuation in advance. If we discontinue the Services in their entirety, we will also allow you a reasonable time to download your data and content and we may provide you with a pro-rata refund for any unused fees for that Service that you prepaid.
2.8 Excessive Use
We reserve the right to immediately terminate or modify your Service if we determine, in our sole and absolute discretion, that your use of the Service is, or at any time was, inconsistent with normal business usage patterns. In addition, you will be required to pay for higher rates for commercial service for all periods in which your use of the Service was inconsistent with normal business use.
2.9 Unlawful Purposes
You may only use the Service for lawful purposes in accordance with the terms and conditions of this Agreement. We reserve the right to terminate your Service with or without notice if, in our sole and absolute discretion, we determine that you have used the Service, or any portion thereof, for any unlawful purpose. In the event of such termination, you will be responsible for the full monthly charges to the end of the current term, including, without limitation, unbilled charges, plus the Termination Fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we determine in our sole and absolute discretion that you have used the Service for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities.
2.10 Inappropriate Conduct
You shall not use the Service or any portion thereof in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or any similar behavior. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or any portion thereof in any of the aforementioned ways. In the event of such termination, you will be responsible for the full monthly charges to the end of the current term, including, without limitation, unbilled charges, plus the Termination Fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or any portion thereof in any of the aforementioned ways, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities.
2.11 Reservation of Rights
Notwithstanding anything to the contrary herein, we reserve the right to provide information in response to law enforcement requests, subpoenas, court orders and in any other manner that we deem necessary to protect our rights and property or where failure to disclose the information may lead to imminent harm to the you or others.
2.12 Content
You shall be solely responsible for any and all liability that may arise out of any content transmitted by you or any other person, whether authorized or unauthorized, using your Service or any portion thereof (each such person, a "User"). You are solely responsible for ensuring that your use, as well as the use by all other Users, complies at all times with this Agreement and all applicable laws, regulations and written and electronic instructions for use. We reserve the right to terminate or suspend the Service and remove your or all Users' content from the Service if we determine, in our sole and absolute discretion, that such use or content does not conform to the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Nothing in this Agreement shall be deemed to create any duty on our part to review and/or monitor your use of the Service to determine if a violation has occurred. Our action or inaction under this Agreement shall not constitute an approval by us of any of your, or your User's, activities or use of any content.
3. Limitations of Service
3.1 VOIP Service Distinctions
The Service is not a telecommunications service and we provide it on a best effort’s basis. Important distinctions exist between telecommunications services and the Service that we provide. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.
3.2 911 and E911 Dialing Services
The Service does not support traditional 911 or E911 access to emergency services. Please carefully review our 911 and E911 Dialing Service Guidelines which can be found at www.joinkumo.com/E911policy and which is incorporated herein by reference.
3.3 Privacy
The Service utilizes, in whole or in part, the public Internet and third-party networks to transmit voice and other communications. We are not liable for, and hereby disclaim any and all liability resulting from any lack of privacy which may be experienced with regard to the Service. Please refer to our Privacy Policy that is posted on our Site for additional information. We agree that we will not knowingly or purposefully provide or sell any call detail records or any other personal information to any party except as expressly authorized herein.
3.4 Use of Service by Customers Outside the United States
Although we encourage you to use of the Service to place calls to foreign countries from within the United States, we do not presently offer or support the Service in any countries other than the United States. If you use the Service outside of the United States, you will be solely responsible for any violations of local laws and regulations resulting from such use. We make no warranties or guarantees as to the quality or availability of services if used in any country other than the United States.
3.5 No 0+ or Operator Assisted Calling; May Not Support x11 Calling
The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 511 and/or other x11 services in one or more (or all) service areas.
3.6 Incompatibility with Home Security Systems
The Service and equipment may not be compatible with home security systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
3.7 Incompatibility with Certain Broadband and Cable Modem Services
You acknowledge that the equipment and Service may not be compatible your broadband service provider. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
3.8 No Fault Outage
"No fault Outage" shall mean any service outage resulting in whole or in part from any one or more of the following events: (1) Maintenance Windows and Planned Outages; (2) any failure or malfunction of an end user's applications, equipment, facilities, cabling, switching, local area network (LAN), analog phone or analog phone adaptor (ATA) or any other equipment or services not provided by Company; (3) any outage resulting from the act, omission or fault on the part of the end user, customer, any third party contractor or vendor, or any other party other than Company; (4) any event or occurrence that results in "No Trouble Found" resolution to Trouble Tickets; (5) any event or outage lasting under 60 seconds in duration; (6) Trouble Tickets associated with new installations; (7) interruptions where the applicable customer or end user elects not to release the service for testing and repair and continues to use it on an impaired basis; (8) interruptions during any period when Company or its agents are not allowed access to the affected access lines: (9) master Trouble Tickets opened by Company or by a qualified third party on behalf of Company such as those in the case of a fiber cut; or (10) any force majeure event beyond the reasonable control of Company including, but not limited to, acts of God, natural disasters, cable cuts, government acts and regulation and national emergency.
4. Charges; Payments; Taxes
4.1 Activation Fees
Upon subscribing to the Service, and each time you add additional seats or Licenses to your service, you will be billed a one-time provisioning and setup fee. The foregoing fee covers your basic account configuration data and does not include any installation or training fees that you may be required to incur. This activation fee will be included in your service quote and is subject to change from time to time.
4.2 Thirty Day Money Back Guarantee
For the first thirty calendar days after your account goes into production, you may cancel your account and receive a refund for amounts paid to the Company for the Service and return the equipment purchased under the following conditions:
a) you have encountered technical problems with the Company's service other than No Fault Outages as described in Section 3.8 and;
b) the Company has not been able to resolve those problems within the first thirty (30) calendar days after your account went into production, and
c) you have used the service in compliance with the appropriate usage sections of the Company's End User Service Agreement.
You will be responsible for monthly charges for minutes of use on toll free metered plans as well as any international per-minute charges. Feature request or service modification requests are not considered technical problems.
d) all equipment purchased is returned undamaged in its original packaging.
4.3 Monthly Usage Fees
Upon activation of the Service, you will be responsible for paying all applicable usage fees in connection with your use of the Service based on the fees published on our Price List posted on our Site, which prices are subject to change from time to time. The usage fees shall include, without limitation, monthly Service fees for use of the following features: calling, conferencing and other minute-based charges, international usage charges, domestic and other per minute usage charges, advanced feature charges, fees for equipment purchases, Termination Fees, and shipping and handling charges. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $500. Any international (non-US) usage charges shall be billed in increments that are rounded up to the nearest minute except as otherwise set forth in our Price List. Domestic (US) usage charges, including 8xx Toll Free numbers, will be billed in six second increments.
4.4 Fee for 911 Calls
All accounts are required to complete a 911 call routing profile, and to keep that profile updated. If you do not complete a profile or keep the profile updated for changes to your account, we reserve the right to charge a $150 fee per 911 call that is incorrectly routed. There is a $5.00 monthly fee per location for this service.
4.5 Compliance Fee
A Compliance fee is charged monthly to offset costs incurred by Kumo in maintaining compliance with federal, state, and municipal regulatory bodies, government inquiries, and related legal expenses. This fee is not a tax or charge required or assessed by any government. This amount is $3.10 per seat.
4.6 Unlimited Plan Users
We offer a variety of unlimited calling plans designed to simplify billing for our customers, however, unlimited calling plans are limited to Reasonable Business Use only. "Reasonable Business Use" is defined to mean normal usage as more fully described in the Company product literature. If the Service is subscribed for on an unlimited plan and we deem in our sole and absolute discretion that you are using a predictive dialer application or that you are otherwise abusing the unlimited plan feature, in addition to our other rights and remedies herein, we reserve the right to re-price the service or offer a new service plan in accordance to standard industry billing practices for such activities.
4.7 Invoicing and Payment Terms
You will receive a monthly electronic invoice for all fees payable in connection with the Service. Your first monthly invoice will include actual usage charges for the first month of Service plus monthly recurring charges for the following month of Service plus any unpaid equipment purchases if applicable. If the Service was initiated after the first day of the month, the first month of service will be billed at a pro-rated amount based on the date that the account was provisioned, Each monthly invoice thereafter will include an adjustment to the amount billed in the prior month for actual increases or decreases in your current month Service, plus monthly recurring charges for the next month. All fees are payable net 10 days from the date of the applicable invoice. Your failure to pay any fees due hereunder in a timely manner shall constitute a material breach of this Agreement. Late payments are subject to a late charge of one and one-half percent (1.5%) per month from the date due until payment is received any you shall be responsible for reimbursing us for all costs that we incur to collect such amounts, including, without limitation, collection costs and attorney's fees. Any invoice that remains unpaid for more than 30 days shall be deemed a material breach of the Agreement where the entire remaining unpaid payments under this Agreement shall be accelerated and due immediately.
4.8 Payment of Invoices on Equipment Purchased
Payment for equipment KSO’s shall be made at the time said KSO’s are generated per Customers request. Customer shall provide Kumo 100% of the total on the day of KSO acceptance prior to shipment. Payment for future service labor is due on the invoice date. For custom equipment all equipment must be prepaid by Customer prior to Kumo placing the Order. Special Order Equipment shall not be returnable unless Equipment is nonconforming or defective.
4.9 Payment of Invoices on Equipment
Equipment may be financed upon acceptance of the KSO by the Customer. Kumo will provide Customer a leasing agreement from a third-party leasing company. For standard equipment returnable to the manufacturer if Customer is approved by the leasing company the Customer must sign the lease agreement prior to processing of the order. Invoices for payment due will be provided by the leasing company to the customer on a monthly basis. Customer is subject to the terms of the lease agreement. Upon delivery of equipment, Customer shall sign the delivery and acceptance form provided by the leasing company; a verbal confirmation may also be required. Equipment shall not be delivered if Customer fails to accept delivery of equipment at the time of delivery and Customer shall subject to restocking fees.
4.10 Method of Payment
Upon activation of the Service, you must provide us with a valid email address and a credit or debit card number from a card issuer that is acceptable to us. We reserve the right to stop accepting credit or debit cards from one or more issuers. You must promptly notify us in the event that your credit or debit card expires, you close your credit account, your billing address changes, or your credit or debit card is cancelled and/or replaced on account of loss or theft. Regardless of the payment method that you select, your subscription to the Service authorizes us to charge your credit or debit card. You may terminate our authority to charge your credit and/or debit card upon thirty (30) days prior written notice. If you terminate our authority to charge your credit or debit card, then we may terminate the Service and charge your credit or debit card for any and all fees due including, but not limited, to any applicable Termination Fees and other outstanding fees and charges.
4.11 Payment by Credit Card
You will be charged on the first day of the month for any charges incurred in the previous month. If any charge to your credit or debit card is declined or reversed or if your credit or debit card expires and you have not provided us with a valid replacement credit or debit card within three (3) days, we reserve the right to suspend the Service until the applicable information is provided
4.12 Advance Payment
If Customer has selected one of the advance payment options during the Quote process, Customer agrees to make the advance payment within 30 days of the invoice date in exchange for the advance payment discount. If Customer reduces their Service during the Seat Term, no refunds will be made. If Customer makes additions to the Service during the Seat Term, those Services will be invoiced separately. Advance payments exclude Services for which there are separate usage charges such as Toll Free and International Long Distance. These Services will be invoiced separately.
4.13 Payment by ACH, Wire Transfer or Check
Customers with total Service billings in excess of $1,000 per month may request to make payments via ACH, wire transfer or check. Our approval may be withheld in our sole discretion with or without reason and may be conditioned upon a satisfactory review of your credit and the posting of a security deposit in an amount that we deem reasonable. If any payment by check does not clear due to insufficient funds, you shall pay us a NSF fee in the amount of $50 in addition to any other fees payable hereunder.
4.14 Billing Disputes
Except as stated in this Agreement, a payments to us are nonrefundable. You must notify us in writing within fifteen (15) days of the invoice date if you dispute any of our charges for that month or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to: Customer Care Billing Department - accounting@joinkumo.com. If you dispute a charge to your credit card issuer that, in our sole discretion, is a valid charge under the provisions of this Agreement, you agree to pay us an additional Investigatory Fee in the amount of $100.00.
4.15 Taxes
You are responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or any Devices or equipment. Such amounts are in addition to payment for the Service or any Devices and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.
5. Equipment Maintenance
5.1 “End of Life” Hardware
Hardware may become outdated, damaged and prone to create network errors and failure. For Kumo to provide appropriate and effective technical support and fulfill any and all obligations under this contract, Kumo may suggest hardware upgrades and or replacements. Customer is responsible for replacing any such hardware and/or related equipment by the suggested date provided by Kumo. In addition, Customer must purchase replacement hardware and/or related equipment from Kumo, as well as have Kumo install any new hardware and/or related equipment. Failure to comply with the recommended upgrades or replacement recommendations subjects the customer to possible hardware failure or inability to function with other hardware or networks.
5.2 “End of Life” Software
Customer is responsible for maintaining current software subscription/licenses with the software manufacturers. This is an additional charge that is not covered by this agreement but rather is a separate annual charge. Software subscriptions/licenses are provided by the manufacturer and put customer servers and workstations on the latest version release of software. Failure to renew the software subscription/licenses will prevent any new system patches, updates or software to be loaded on to customer’s network.
Customers that do not maintain a current software subscription/license release Kumo from any liability and obligations under this contract. Services requested by Customer that are not on software subscription/licenses are subject to standard billing rates. If network failure occurs when client is not unbalanced software subscription/licenses with the software manufacturer, any services requested by the client will be billed at standard hourly rates.
5.3 Client Server Security
Customer is responsible for providing an antivirus license for servers and workstations. If Customer is unable to provide an antivirus, one may be purchased from Kumo. Kumo is not responsible for any malfunctions, failure or loss of data due to any computer virus or infection of any kind.
5.4 Installation of Software
In order to keep customer server as up to date as possible with the latest Microsoft patches, security updates, and server monitoring software, Kumo may choose to install additional software as is necessary to ensure seamless operation with constant reliability. Customer is responsible for any licensing charges for monitoring software that Kumo deems necessary.
5.5 Hardware Not Supplied by Kumo
If customer desires to have additional equipment included as part of the equipment covered within the services, Customer shall notify Kumo by written request. Kumo made, at its option, inspect any such additional equipment to determine whether or not it is in satisfactory condition to be covered under this agreement. Kumo may, at its option, charge Customer for inspecting any item of proposed equipment using Kumo’s then current rate table. If an item of additional equipment is to be covered, Customer shall execute a subsequent agreement and the price for coverage shall be established at the then current rate for such services and added to the monthly service fee.
6. Term, Termination, Termination Fees
6.1 Term
Services offered on a term which begins on the date that Kumo activates your service and ends on the day before that same date in the final year of said term. Unless otherwise specified the term of this agreement will automatically be renewed for one year, upon expiration of any existing contract or term, until such a time as service and terms are renegotiated by the customer or a 30-day written notice of termination is received by Kumo. Customer is purchasing service for three-year terms, meaning that if you attempt to terminate services prior to the end of the term, you will be responsible for early termination fees equal to all unbilled charges for the remainder of the term in addition to all unbilled charges, waived fees, and term discounts, all of which immediately become due and payable. The early termination fee becomes due and payable immediately upon termination and will be billed directly to the customer or to customer’s credit card for those customers who elect the credit card billing option, unless terminated for material breach of this agreement. Expiration of the term or termination of service does not excuse the customer from paying all unpaid, accrued charges due in relation to this agreement.
6.2 Early Termination by You or by Us for Cause
Kumo may suspend Service or terminate the Agreement: (i) upon five (5) days’ notice in the event of any payment default, if such default is not cured within that period or (ii) upon notice in the event of any violation of Kumo’s Acceptable Use Policy (“AUP”) located in section 2.0. Fair Usage and Abuse Policy of this agreement.
If you elect to terminate your Agreement or any Service Document before the installation of the Services, you must do so in writing, and you shall pay to Kumo as a termination charge an amount equal to: (i) the non-recurring charges applicable to the Services, even if initially waived, unless those charges have already been paid; and (ii) any third party provider charges or out-of-pocket expenses incurred by Kumo (e.g., cancellation charges or annual software license fees).
The parties agree that any cancellation fees and early termination charges set forth in the Agreement constitute liquidated damages and are not intended as a penalty and represent a fair, reasonable and appropriate estimate of KKumo’s damages. If a particular Service is terminated by Customer without cause or by Kumo for cause, and Kumo advises the Customer in writing that in Kumo’s good faith judgment provision of a related Services is impractical or impossible (“Related Service”) as a result of such termination, then the Related Service shall be deemed terminated for cause by Kumo and any applicable termination charges will apply.
Any and all provisions in the Agreement which would reasonably be expected to be performed after the termination or expiration of the Agreement shall survive and be enforceable after such termination or expiration, including without limitation provisions relating to confidentiality, ownership, disclaimers, indemnification, limitations of liability, effects of termination, jurisdiction and governing law.
7. Limitation of Liability; Disclaimer or Warranties
7.1 Exclusions from Liability
Under no circumstances shall we or our suppliers be liable for any delay or failure to provide the Service, including 911 Dialing, or any interruption or degradation of voice quality that is caused by any of the following: (i) an act or omission of an underlying carrier, service provider, vendor or other third party; (ii) equipment, network or facility failure; (iii) equipment, network or facility upgrade or modification; (iv) force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions; (v) equipment, network or facility shortage; (vi) equipment or facility relocation; (vii) service, equipment, network or facility failure caused by the loss of power to you; (viii) outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party; (ix) any act or omission by you or any person using the Service or any portion thereof; or (x) any other cause that is beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 Dialing) to be connected or completed, or forwarded.
7.2 Limitation of Consequential Damages
IN NO EVENT SHALL WE OR OUR SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
7.3 Limitation of Direct Damages
THE AGGREGATE LIABILITY OF US AND OUR SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO US UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICE SET BY US UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE US AND OUR SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED IN THIS AGREEMENT.
7.4 Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR OWN RISK AND IS PROVIDED ON AN "AS IS" BASIS. NEITHER WE NOR OUR SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER WE NOR OUR SUPPLIERS SHALL BE LIABLE FOR UNAUTHORIZED ACCESS TO ANY TRANSMISSION FACILITIES, DEVICES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, ANY OF YOUR, OR YOUR USERS', DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION WHETHER CAUSED BY ACCIDENT, FRAUDULENT MEANS OR ANY OTHER METHOD, REGARDLESS OF THE CAUSE OR THE PARTY DETERMINED TO BE AT FAULT. ANY AND ALL STATEMENTS OR DESCRIPTIONS MADE BY US AND/OR OUR EMPLOYEES OR AGENTS PERTAINING TO THE SERVICE OR ANY DEVICE ARE FOR INFORMATIONAL PURPOSES ONLY AND SHALL NOT BE DEEMED TO PROVIDE A WARRANTY OF ANY KIND.
8. Proprietary Rights
8.1 Copyright; Trademark
The Service, all firmware or software used to provide the Service or provided to you in conjunction with providing the Service, and all Services, information, documents and materials on our Site are protected by trademark, copyright or other intellectual property laws and international treaty provisions. Our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") are and will at all times remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our marks.
8.2 Unauthorized Usage of Software
You have not been granted any license to use the software in conjunction with you providing the Service to a third party, 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 the terms and conditions of this Agreement. You hereby represent and warrant that you possess all required rights, including software and/or firmware licenses, to use any interface device that we have not provided to you. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use of such interface device with the Service. You 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.
8.3 Tampering with the Service
You shall not tamper with or reverse compile any software associated with the Service without our prior written consent. We reserve the right to terminate your Service if we believe, in our sole and absolute discretion, that you have tampered with the software. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.
8.4 Theft of Service
You shall notify us immediately, in writing or by calling our customer support line, if any Device is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write to us you must provide your account number and a detailed description of the circumstances of the theft, fraudulent use or unauthorized use of the Service. Failure to do so in a timely manner may result in our termination of your Service for breach and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service.
9. Miscellaneous
9.1 Indemnification
You shall defend, indemnify, and hold harmless us, and our officers, directors, employees, shareholders, affiliates, agents and suppliers from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorney's fees and costs) by, or on behalf of, you or any third party or user of the Service, relating to the Services, including, without limitation, 911 Dialing, or any Device.
9.2 No Third Party Beneficiaries
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third-party beneficiary rights.
9.3 Notices
NOTICES. Notices under this Agreement shall be in writing and delivered to the parties stated herein. Written notification by Kumo may include, without limitation, electronic notice (including the email associated with your account) and/or notice via an invoice, billing insert, or other billing communication sent to you. The effective date of any notice hereunder shall be the date of delivery of such notice and not the date of mailing. The mailing addresses of the parties are set forth below and to be sent via overnight courier with proof of delivery:
Kumo Cloud Solutions, Inc.
9580 Research Drive
Irvine, Ca 92618
9.4 Governing Law
The Agreement and the relationship between you and us are governed by the laws of the State of California without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent herewith, you shall submit to the personal and exclusive jurisdiction of the courts located within the state of California and waive any objection as to venue or inconvenient forum.
9.5 Mandatory Arbitration and No Bench or Jury Trial
Except those claims falling within the jurisdiction of the Small Claims Court, any dispute or claim between you, any member of your household or any guest or employee of you and us arising out of or relating to the Service or any portion thereof will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Orange County, CA, the arbitrator's decision will follow the plain meaning of the relevant documents, and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. All claims shall be arbitrated individually. You shall not bring or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL OR BENCH TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, CALIFORNIA.
9.6 Survival
All provisions of this Agreement relating to our intellectual property rights, limitation and exclusion of liability and warranties, your indemnification obligations and your obligation to make payments hereunder will survive the termination or expiration of the Agreement.
9.7 No Waiver of Rights
WAIVER. The waiver or modification by us of any term or condition hereof shall not void, waive, or modify any other term or condition. The failure by us to insist, in any one or more instances, upon the performance of any term of the Agreement shall not be construed as a waiver or relinquishment of such right to such performance or to the future performance of such item. A waiver granted on one occasion shall not constitute a waiver of any future occasion. We can delay enforcing any of our rights under the Agreement without losing them.
9.8 Entire Agreement
ENTIRE AGREEMENT. The Agreement (including, but not limited to, all signed and clicked-through agreements, Service Documents, Schedules, Exhibits and Amendments), contains the sole and entire agreement and understanding of the Parties with respect to the entire subject matter hereof, and any and all prior discussions, negotiations, commitments or understandings related hereto, if any, are hereby superseded. The terms located at a URL referenced in the Agreement are incorporated by reference into the Agreement. Kumo may provide an updated URL in place of any URL in the Agreement.
and authorized members of your company. This Agreement supersedes any prior agreements between you and us and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
9.9 Severability
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
9.10 Confidentiality
Neither Party shall, without the prior written consent of the other Party, use or disclose the Confidential Information of the other Party during the Term of the Agreement and for two (2) years following the expiration or termination hereof. As used herein, “Confidential Information” shall mean any non-public information owned or duly licensed by a Party relating to its respective business activities, products, services, financial affairs, technology, marketing or sales plans disclosed related to the Agreement, and received by, the other Party pursuant to the Agreement, including, but is not limited to, the terms and pricing of the Agreement. Confidential Information shall not include information which: (i) is or becomes public knowledge through no breach of the Agreement by the receiving Party, (ii) is received by recipient from a third party not under a duty of confidence, or (iii) is already known or is independently developed by the receiving Party without use of the Confidential Information. Each Party will take all reasonable precautions to protect the other Party’s Confidential Information, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information. Notwithstanding the foregoing, a Party may disclose Confidential Information: (i) to any consultants, contractors, and counsel who have a need to know in connection with the Agreement and are contractually and/or legally subject to a duty of confidentiality, or (ii) pursuant to legal process; provided that, the disclosing Party shall, unless legally prohibited, provide the non-disclosing Party with reasonable prior written notice sufficient to permit it an opportunity to contest such disclosure.
9.11 Force Majeure
Neither Party will be held liable for any failure or delay in its performance under the Agreement (other than a failure to comply with payment obligations) due to a Force Majeure Event. “Force Majeure Event” means an event beyond a party’s reasonable control, including but not limited to, acts of war; acts of God; earthquake; flood or extreme weather conditions; embargo; riot; sabotage; or terrorist acts. If a Force Majeure Event prevents the provision of Service for a period of thirty (30) days, either Party may terminate the affected Service by providing thirty (30) days written notice to the other Party.
9.12 Access to Data
We back up customer systems on a periodic basis so that we are able to more quickly restore the systems in the event of a failure. These backups are made on a snap-shot basis and, therefore, capture only the information that exists on the system at the time of the backup. In addition, we may destroy all but the most recent backup. These backups may not be available to you or, if available, may not be useful to you outside of the Kumo environment.
9.13 Maintenance
Customer acknowledges that the Services may be subject to maintenance or repair and agrees to cooperate in a timely manner and provide reasonable access and assistance as necessary to allow such maintenance or repair.
9.14 Security
Kumo shall use reasonable data center security practices consistent with industry standards. Under the Agreement, Kumo is a data processor and not a data controller (i.e. you are the data controller).
9.15 Compliance
Each Party agrees to comply with all applicable laws and regulations with respect to their rights and obligations under the Agreement. The Services are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulations and their agency supplements. The Agreement does not create any agency, partnership or joint venture between the parties.
9.16 Assignment
You may not assign or otherwise transfer your rights or obligations (or any portion(s) of them) under the Agreement, or delegate your obligations (or any portion(s) of them) to pay amounts you owe us in relation to your use of the Services without our prior written consent. You also may not assign or delegate any claims, rights of action, causes of actions or claims held by you against us without our prior written consent. Any attempt to assign or delegate will be void and of no effect. We may assign any or all of our rights and obligations (or any portion(s) of them) under the Agreement at any time without your consent. Any person to which we assign the Agreement or any right(s) or obligations under it shall be entitled to all such of our rights or obligations so assigned.
9.17 Changes/Amendments to T&C’s
Kumo, in its sole discretion, may modify, amend, add, supplement and/or remove any of the T&Cs and/or any related policies and linked terms (URLs) from time to time (“Revisions”) upon written notice to you by any means specified in Section 15 hereof and all such Revisions will be effective thirty (30) days after notice is issued (“Opt-Out Period”) unless you opt out as described in this Section. You may opt out of the Revisions by providing written notice to Kumo via email at accounting@joinkumo.com or via a letter sent via overnight courier with proof of delivery to Kumo Cloud Solutions, Inc., Attn: accounting stating that you are opting out of the Revisions. Your written notification to Kumo must include your company/entity name, address and account number, the name and position of the person submitting the notification on behalf of you, as well as a clear statement of which Revisions you are opting out of. You must submit your written notice opting out of the Revisions within the thirty (30) day Opt-Out Period, or you shall be deemed to accept the Revisions. Further, Your continued use and/or payment for Services after the thirty (30) day Opt-Out Period shall also be deemed acceptance of all Revisions. If you opt out of any Revisions, Kumo may (i) immediately terminate the Agreement without penalty or liability to you or (ii) Kumo may provide notice to you that the opted-out Revisions will not apply to you and the Agreement will then continue under the most recent contract terms for the then-current term. Until Kumo provides notice of its election of option (i) or (ii) in the preceding sentence, the Agreement shall continue under its most recent contract terms excluding any Revisions properly opted out by you. This paragraph states your sole and exclusive remedy for any Revisions. Notwithstanding anything to the contrary in this Agreement, Kumo may make Revisions that it deems are minor or concern products or services which are not currently under contract with you, and such updates shall be deemed effective after the update is posted online, with or without actual notice to you.
By using Kumo's services, you agree to be bound by all the terms of this agreement. If you do not agree to all these terms, you should not use the services.
END USER SERVICE AGREEMENT
THIS END USER SERVICE AGREEMENT (THIS "AGREEMENT") BY AND BETWEEN KUMO CLOUD SOLUTIONS., A CALIFORNIA CORPORATION ("COMPANY"), AND THE BUSINESS IDENTIFIED AS THE CUSTOMER ON THE ASSOCIATED COMPANY SERVICE QUOTE ("CUSTOMER") IS A LEGALLY BINDING CONTRACT BETWEEN COMPANY AND CUSTOMER. IF YOU ACCEPT THIS AGREEMENT BY CLICKING ON A QUOTE "ACCEPT" OR SIMILAR BUTTON ON SUCH SERVICE QUOTE (THE "QUOTE") AND FINISHING THE QUOTE ACCEPT PROCESS OR OTHERWISE MANIFESTING YOUR ASSENT TO THIS AGREEMENT OR IF CUSTOMER PURCHASES OR USES ANY OF THE SERVICES DESCRIBED BELOW (THE "SERVICE(S)"), THIS AGREEMENT WILL BECOME LEGALLY BINDING ON CUSTOMER AND COMPANY. IF YOU DO NOT AGREE ON BEHALF OF CUSTOMER TO BE LEGALLY BOUND BY THIS AGREEMENT, DO NOT CLICK ON THE QUOTE "ACCEPT" BUTTON AND FINISH THE QUOTE "ACCEPT" PROCESS OR OTHERWISE MANIFEST YOUR ACCEPTANCE OF THIS AGREEMENT OR PURCHASE OR USE ANY OF THE SERVICES.
YOU REPRESENT AND WARRANT THAT YOU ARE AN OFFICER OF CUSTOMER AND ARE DULY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND CAUSE CUSTOMER TO BE BOUND IN ALL RESPECTS HEREBY. YOU FURTHER AFFIRM THAT YOU EITHER ARE OVER THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE, ARE AN EMANCIPATED MINOR, OR POSSESS LEGAL PARENTAL OR GUARDIAN CONSENT, AND THAT YOU ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS, AND WARRANTIES SET FORTH IN THIS AGREEMENT
THIS AGREEMENT REQUIRES THE BINDING ARBITRATION OF ANY AND ALL DISPUTES, AS STATED IN SECTION 12.4 WHICH CUSTOMER SHOULD READ IN ITS ENTIRETY. CUSTOMER UNDERSTANDS THAT THIS IS A LEGALLY BINDING INSTRUMENT AND AGREES TO ABIDE BY ITS TERMS.
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THE SERVICE
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Service(s).
"Service(s)" shall be defined as follows:
- Service(s) for SentraCloud accounts may include Streams SmartBox Cloud Storage Service(s), managed Streams Voice Service(s), managed Streams Non-Voice Service(s), SentraCloud managed SmartBand Service(s) and SentraCloud managed SmartCPE, which provides management of any equipment provided by Company for use on Customer’s premises or on the premises of a third party that uses such equipment solely for Customer’s benefit.
- Service(s) for non-SentraCloud accounts (self-managed Streams accounts) may include Streams SmartBox Cloud Storage Service(s), Streams Voice Service(s) and Streams Non-Voice Service(s) and SmartBand Service(s).
- Voice Service(s) shall mean all Streams Services that specifically transmit voice communications in real-time.
- Non-Voice Service(s) shall mean all Streams Services that are not Streams Voice Services. Examples include but are not limited to Streams messaging, Streams faxing, Streams APIs, Streams ConnectMe and Streams AppDesigner.
- SmartBox Service(s) shall mean all Streams Services that are Non-Voice Services that are used to store and share user Content as defined in this Agreement.
- The foregoing Service(s) may include any Software (as hereinafter defined) downloaded by Customer and Equipment (as hereinafter defined) purchased or leased by Customer under its Hardware as a Service (“HaaS”) program from Company for use in connection with the Service(s).
- Descriptions of the Services can be found on the Company's website at https://www.JOINKUMO.com. However, those descriptions do not constitute a warranty or form a part of this Agreement.
- Customer shall immediately notify Company in writing of any unauthorized use of any Service or Customer’s account related to the Service that comes to Customer's attention. In the event of any such unauthorized use by any third party that obtained access through Customer, Customer will take all steps necessary to terminate such unauthorized use. Customer will provide Company with such cooperation and assistance related to any such unauthorized use as Company may reasonably request.
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Right to Use Service.
Company hereby grants Customer the right to use the Services purchased by Customer during the Term strictly in accordance with the terms and conditions of this Agreement. Company reserves all rights in or relating to the Service that are not expressly granted by Customer hereunder.
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Customer Users.
"Customer Users" means any persons that use the Services solely on behalf of and for the benefit of the Customer, which may include employees, contractors, consultants and others. Customer shall not permit anyone other than Customer Users to use the Services purchased by Customer. Customer shall ensure that all use of the Services by any Customer Users or other act or omission of any Customer User that relates to the Service is in full compliance with this Agreement. Customer shall be fully responsible for any such use, act or omission, and any use, act or omission by any Customer User that relates to the Service (including, without limitation, any Software or Equipment) shall, for all purposes of this Agreement, be deemed to be the use, act or omission of Customer.
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Support.
Company agrees to provide Customer those levels of support in connection with Customer's use of the Service set forth in, and subject to the terms and conditions of, Company's Service Level Agreement a copy of which can be found at https://www.joinkumo.com/agreements/sla_agreement.html.
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Number Transfer on Service Termination.
For those Services that require this function, Local Number Portability (LNP) refers to the order from the Federal Communications Commission (FCC) requiring all telecom providers to allow customers to retain their phone numbers when changing service providers, as long as the customer stays within the same local calling zone. Instead of disconnecting service numbers, Customer may choose to port their number(s) "out" to another carrier. Customer initiates this by contacting a new service provider to initiate a port in. The new service provider will then contact Company with a port-out request. Company will follow industry-sanctioned procedures to fulfill the port out request if: (a) such new service provider is able to accept such number; and (b) Customer's account is completely current, including payment for all charges and applicable termination fees set forth herein or in the Quote ("Termination Fees")
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Third Party Devices.
Other than those devices supplied by Company, Customer is responsible, at its sole cost and expense, for purchasing any and all devices necessary for the use of the Service including, but not limited to, any IP phones, multimedia terminal adapter, analog telephone adapter and any other IP connection device. Company makes no representation or warranty regarding any such device and shall have no maintenance, support or other obligations hereunder relating thereto.
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SmartBand Equipment and Maintenance.
Service must terminate into a Company-approved router on the Customer Premises (CPE). A router is required for the exchange of traffic between the Company's Service and the Customer and will be furnished by Company for SentraCloud accounts (SmartCPE router). Streams accounts that have SmartBand circuits may purchase a SmartCPE router from the Company or provide their own Company-approved router. If provided by the Company, Company will maintain, manage and support all SmartBand equipment (SmartCPE), including all associated device configurations. Customer is responsible for the configuration, maintenance, management and support of all non-SmartCPE equipment, including a Customer provided router. Customer must provide Company unrestricted access to Company-provided SmartBand SmartCPE equipment for purposes of testing, upgrading, and other maintenance activities. Company will not be responsible for management of Company-provided SmartBand SmartCPE equipment if Customer has modified the SmartBand SmartCPE equipment, including making any configuration changes.
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SmartBand Service Demarcation.
The point of demarcation for Service is the physical network location to which the Company's SmartCPE router or Customer provided SmartBand router is connected or, the LAN port at which interconnection takes place, as determined at Company's sole discretion. Customer will provide Company with access to Customer's premises, as necessary, to facilitate Service installation, testing and maintenance requirements.
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Service(s).
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PROHIBITED USES; LIABILITY FOR CONTENT.
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Service Not For Resale.
Customer is not authorized to resell or transfer, and agrees to refrain from reselling or transferring, the Service or any portion thereof. -
Excessive Use.
Company reserves the right to immediately suspend, terminate or modify Customer's Service if Company determines, in Company's sole and absolute discretion, that Customer's use of the Service is, or at any time was, inconsistent with normal business usage patterns for a particular service, which may include (but not be limited to): excessive usage outside of normal business hours, exceeding one (1) user usage per seat, conducting machine to machine communications, trunking or forwarding Company's number to another system capable of handling multiple simultaneous calls, spamming or call blasting, or the use of auto-dialing or predictive dialing, SMS message spamming, fax blasting, personal storage use or excessive image/large file storage. In addition, Customer may be required to pay higher rates reasonably determined by Company for Service for all periods in which Customer's use of the Service was inconsistent with normal business use for Service. Any excessive use charges are independent of any base level service charge and are not discounted.
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Unlawful Purposes.
Customer may only use the Service for lawful purposes and otherwise in accordance with all applicable laws, regulations, ordinances and governmental orders, as well as the terms and conditions of this Agreement. Company reserves the right to suspend or terminate Customer's Service with or without notice if, in Company's sole and absolute discretion, Company determines that Customer has used the Service, or any portion thereof, for any unlawful purpose or otherwise in violation of any law, regulation, ordinance or governmental order. Any such termination will be deemed to be by the Company for Cause (as hereinafter defined) and Customer will pay all amounts specified in Section 9.5 upon such termination. Such suspension of Services will not extend the Term, and Customer shall continue to be obligated to pay for the Services during any such suspension as if it were continuing to receive the Services.
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Inappropriate Conduct.
Customer shall not use the Services or any portion thereof in any way or for any purpose that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or similarly inappropriate or harmful. Company reserves the right to immediately terminate Customer's Service if, in Company's sole and absolute discretion, Company determines that Customer has used the Service or any portion thereof in any of the aforementioned ways of for any of the aforementioned purposes. Any such termination will be deemed to be by the Company for Cause and Customer will pay all amounts specified in Section 9.5 upon such termination.
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Reservation of Rights.
Notwithstanding anything to the contrary herein, Company reserves the right to provide information in response to law enforcement requests, subpoenas, court orders and in any other manner that Company deems necessary to protect Company's rights and property or where failure to disclose the information may lead to imminent harm to the Customer or others.
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Third-Party Requests.
A third party may request information relating to Customer’s or any Customer User's use of the Service ("Third-Party Request"). Third Party Requests may include search warrants, court orders, subpoenas, or any request for which there is written consent from the Customer or any Customer User permitting a disclosure. Customer is responsible for responding to Third Party Requests via its own access to information. Customer will use commercially reasonable efforts to provide information required to respond to Third Party Requests and will contact Company only if it cannot obtain such information. Company will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third-Party Request, to: (A) promptly notify Customer of Company's receipt of a Third-Party Request; (B) comply with Customer's commercially reasonable requests regarding its efforts to oppose a Third Party Request; and (C) provide Customer with information or tools required for Customer to respond to the Third Party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third-Party Request, then Company may, but is not be obligated to do so.
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Content.
Customer shall be solely responsible for any and all liability that may arise out of any content transmitted by Customer or any other person, whether authorized or unauthorized, using Customer's Service or any portion thereof. Customer is solely responsible for ensuring that Customer's use, as well as the use by all Customer Users or any other person, whether authorized or unauthorized, using Customer's Service or any portion thereof, complies at all times with this Agreement and all applicable laws, regulations and written and electronic instructions for use. Company reserves the right to terminate or suspend the Service and remove Customer's or all Customer Users' content from the Service if Company determines, in Company's sole and absolute discretion, that such use or content does not conform to the requirements set forth in this Agreement or interferes with Company's ability to provide Services to Customer or others. Nothing in this Agreement shall be deemed to create any duty on Company's part to review and/or monitor Customer's use of the Service to determine if a violation has occurred. Company's action or inaction under this Agreement shall not constitute an approval by Company of any of Customer's, or Customer's Users, activities or use of any content. Additional Streams Rules can be found at https://www.joinkumo.com/streams-rules.php.
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SmartBand Service Disclaimer.
Company exercises no control over, and therefore accepts no responsibility for information or content passing through the Company's host computers, Company Network hubs and POPs (the "Company Network"). EXCEPT AS EXPRESSLY SET FORTH IN THE SERVICE LEVEL AGREEMENT, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, FOR THE SERVICE, SOFTWARE OR EQUIPMENT IT PROVIDES, AND IT DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Company expressly denies any responsibility for the accuracy or quality of information obtained by Customer or any Customer User through the use of Service. The use of any information obtained via the Company's Service is at Customer's and each Customer User's own risk.
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Service Not For Resale.
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LIMITATIONS OF SERVICE.
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Service Level Agreement.
Service shall be provided as defined by the Service Level Agreement located at: https://www.joinkumo.com/agreements/sla_agreement.html.
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Service Distinctions.
The Service is not a telecommunications service. Important distinctions exist between telecommunications services and the Service that Company provides. The Service is not subject to the legal and regulatory requirements applicable to telecommunications services. This may limit or otherwise affect Customer's rights of redress relating to the Service before regulatory agencies.
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911 VoIP Service.
The Service supports 911 service which is different from traditional 911 or E911 access to emergency services. Please carefully review Company's 911 VoIP Service Guidelines which can be found at www.joinkumo.com/agreements/911.html and which is incorporated herein by reference. If Customer is uncomfortable with the limitations of the Company 911 service, Customer should consider using an alternative means of access to traditional 911 services.
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Excessive Use.
Company may, at its sole discretion, limit, throttle and/or charge for excessive use, as defined in Section 2.2, of its services including but not limited to calls, SMS messaging, faxing and storage.
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SmartBox Bandwidth.
Company may, at its sole discretion, limit or throttle bandwidth for its SmartBox Service.
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Class of Service Prioritization.
Company may at its sole discretion prioritize as it determines to be appropriate among the various Services offered and/or between different customer accounts or users. Company can change or re-prioritize its services at any time for any reason, both statically and dynamically.
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Privacy.
The Service utilizes, in whole or in part, the public Internet and Third-Party networks to transmit voice and other communications and user content. Company is not liable for and hereby disclaims any and all liability resulting from any lack of privacy which may be experienced with regard to the Service. Please refer to Company's Privacy Policy that is posted on Company's Site for additional information.
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Use of Voice Service by Customers Outside the United States.
Although Company encourages Customer to use the Voice Service to place calls to foreign countries from within the United States, Company does not presently offer or support the Voice Service in any countries other than the United States. If Customer uses the Voice Service outside of the United States, Customer will be solely responsible for any violations of local laws and regulations resulting from such use. Company makes no warranties or guarantees as to the quality or availability of Voice Service if used in any country other than the United States.
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No 0+ or Operator Assisted Calling; May Not Support x11 Calling.
The Voice Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Voice Service may not support 511 and/or other x11 services in one or more (or all) service areas.
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Service Level Agreement.
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SMARTBOX SERVICE.
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Content.
- Company provides the SmartBox service for online storage, sharing and processing of files, materials, data, text, audio, video, images or other content (collectively, "Content").
- Company does not control, verify, or endorse the Content that Customer and others make available on the SmartBox Service. Company is not liable for any loss or corruption of Content or for any costs or expenses associated with backing up or restoring Content. SMARTBOX IS NOT INTENDED TO BE THE SOLE REPOSITORY OF ANY CRITICAL OR VALUABLE CONTENT. CUSTOMER SHOULD BACKUP ANY SUCH CONTENT SEPARATELY FROM SMARTBOX.
- Company provides functions that allow Customer to control who may access the Content; provided that Company shall under no circumstances be responsible or liable for any unauthorized access to or disclosure or use of Content. If Customer enables the features that allow Customer to share the Content with others, anyone Customer has shared Content with (including the general public, in certain circumstances) may have access to the Content.
- Customer hereby grants Company and its contractors the right, to use, modify, adapt, reproduce, distribute, display and disclose Content posted on the SmartBox Service but only: (i) as necessary for Company to provide the SmartBox Service, (ii) as otherwise permitted by this Agreement, (iii) as otherwise required by law, regulation or order, or (iv) to respond to an emergency. Other agreements between Company and Customer, such as a Business Associate's Agreement (BAA), may modify this right.
- Company may offer an unlimited SmartBox user plan for certain SmartBox users ("Unlimited SmartBox Plan") designed to simplify billing for the Customer. See Section 8.6 for certain restrictions.
- Customer represents and warrants that: (a) Customer has all the rights in the Content necessary for Customer to use the SmartBox Service and to grant the rights in this Section 4; and (b) the storage, use, modification, duplication or transmission of the Content doesn't violate any law or intellectual property, proprietary or other right of any person or the terms of this Agreement.
- Customer will: (a) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to Customer by any person claiming that any Content violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (b) maintain appropriate security, protection and backup copies of the Content, which may include, Customer's use of additional encryption technology to protect the Content from unauthorized access. Company will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of, unauthorized use, disclosure or use of, or failure to store or encrypt any Content.
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Copyright Complaints and Removal Policy.
Company may respond in any way it deems appropriate in its sole discretion to notices relating to the Content of alleged copyright infringement, trade secret misappropriation or other violation of any rights of any person, including but not limited to by deleting or taking down or preventing access to any such Content. Company terminates this Agreement and and/or suspend Services if Customer is repeatedly accused of any violation of rights.
Company's designated agent for notice of alleged copyright infringement under the Digital Millennium Copyright Act (“DMCA”) is:
Attn: DMCA Copyright Agent
Kumo Cloud Solutions
9580 Research Drive Irvine, CA 92618
Phone: 949.333.1080
email: legal@joinkumo.comAny DMCA Notice must include the following information:
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material, including URL, that you claim is infringing, with enough detail so that we may locate it;
- Your address, telephone number, and e-mail address;
- A statement declaring under penalty of perjury that (a) you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (b) the above information in your notice is accurate, and (c) you are the owner of the copyright interest involved or you are authorized to act on behalf of that owner;
and - Your physical or electronic signature.
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Content Retention Policy.
SmartBox content will be retained on the service based on the following:
Content Type Default Retention Period Admin Dashboard/API Deletion Retention after Account Cancellation Call Recordings (ACD and Non-ACD) 180 Days Immediate 90 days Voicemail Account Lifetime (200 msg/user max, 500 msg/group max) Immediate 90 days Fax 180 Days Immediate 90 days Greetings Account Lifetime Immediate 90 days SmartBox Uploaded User Content Account Lifetime Immediate 90 days Streams Messages Account Lifetime Immediate 90 days Admin Event Log Account Lifetime Immediate 90 days Music On-Hold Files Account Lifetime Immediate 90 days Call Detail Records (CDRs) Account Lifetime N/A 18 Months (FCC Mandated) Consolidated Report Data/Analytics Account Lifetime N/A 90 days Once content is removed from the service, it cannot be recovered. Company reserves the right to charge a recovery fee for recovering content after an account cancellation.
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Updates
Company reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the SmartBox Service at any time. Company may add or remove functionalities or features, and Company may suspend or stop the SmartBox Service altogether.
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Upon Termination.
Upon termination of this Agreement per Section 9 Customer's SmartBox content (including all user and communications content) may be deleted after ninety (90) calendar days from when Service was terminated.
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Content.
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EQUIPMENT
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Definition.
Equipment ("Equipment") shall be defined as new hardware purchased or leased under the HaaS program directly from Company.
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Shipping Terms.
All Equipment shipments are "FOB" from Company’s facility or Company's designated Third-Party distributor. Company’s liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to Customer upon delivery to shipping carrier.
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Manufacturer’s Warranty.
Company will to the extent reasonably practicable and consistent with the Equipment manufacturer's policies pass through to Customer any manufacturer's warranty regarding the Equipment. No warranty is provided by Company.
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Equipment Return Policy not financed or under HaaS program.
If Customer cancels any Service pursuant to Section 9.7, Customer may return to Company all related Equipment purchased from Company and related Software licensed from Company for a full refund of amounts paid for the Equipment, less Company’s then-current standard applicable restocking fee. As stated in Section 9.7, Customer shall not return any Equipment that is financed with or leased from Company under the HaaS program. Non-SentraCloud account Customers are responsible for all return shipping charges for any Equipment returned to Company for any reason, including situations in which Equipment is covered under warranty. Company shall pay all shipping and handling charges for SentraCloud account Customers. The following terms and charges apply to Equipment returns:
- Non-SentraCloud account Customer agrees to pay all shipping and handling charges related to any Equipment returns.
- All Equipment must be fully functional (except that Equipment returned for warranty repairs may have malfunctions covered by the warranty ("Covered Malfunctions") but must be otherwise fully functional), include all original components, packaging, manuals, peripheral devices, and all other accessories that were originally shipped with the Equipment. At Company's sole discretion, Company may decline Customer’s return or charge Customer an additional fee reasonably determined by Company (but in no event less than thirty dollars ($30)) for each missing item or for each item that Company determines is damaged or not in good working condition (other than as the result solely of Covered Malfunctions).
- Before returning any Equipment that has data in its memory, Customer shall transfer all files or content Customer wishes to retain. Once the Equipment is returned, Customer files or content cannot be recovered and Customer releases Company from any liability for any lost, damaged, disclosed or destroyed files, data, or other information.
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Equipment Financing.
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Credit Terms.
Any request by Customer to finance Equipment (including via a financing lease) through Company shall be subject to a credit check, review and approval of Customer. Company reserves the right to charge for credit check. Company will keep all credit check information confidential to the extent required by applicable law. -
Financing Option.
Customer may request to finance the purchase of the Equipment over the term of the contract ("Financing Program"). Company, at it's sole discretion, will determine if Customer is eligible for the Financing Program. The Financing Program is not available on month-to-month term contracts or after Customer’s account has gone into production. -
Interest Rate.
The principal amount outstanding under the Equipment Financing shall accrue interest at the set forth in the Quote. Interest shall be payable monthly. -
Payments and Computation.
Customer will be billed monthly the charge shown on the Quote for each month that falls within the term of the agreement in whole or part. In computing interest, the interest shall be computed on the basis of a 360-day year for the actual number of days elapsed. -
Early Termination.
If Customer has financed any Equipment from Company and Customer's account is terminated for any reason Customer agrees any unpaid principle and accrued interest is immediately due and payable and hereby authorizes Company to immediately invoice Customer or charge Customer's credit card the appropriate unpaid principle and accrued interest for the Equipment. -
Insurance.
Customer is solely responsible for any risk of loss of or damage to Equipment, including but not limited to damage beyond economic repair, for any reason, including but not limited to theft, confiscation, fire, destruction, natural disaster or any other cause, notwithstanding any amounts which may be paid or disputed by Customer's insurance company. At its own expense, Customer shall provide and maintain with respect to the Equipment, commercial, general liability and property insurance in such amounts, against such risks and with such deductibles as are typical in the industry and as are acceptable to Company. In no event shall the amount of property insurance coverage for any item of Equipment at any time be less than the principal amount owed by Customer to Company with respect to such Equipment. Company shall be named as an additional insured on all liability insurance policies. Each property insurance policy shall contain the insurer’s agreement to give Company 30 days’ prior written notice before cancellation or material change thereof and shall name Company as loss payee with respect to any payment thereunder regardless of any act, omission or breach by Customer. Any proceeds of property insurance carried and paid for by Customer for any item of Equipment in excess of the amount owed hereunder with respect to such Equipment shall be for the benefit of the Customer. Customer shall deliver to Company the insurance policies or copies thereof or certificates of such insurance on or before delivery of the Equipment to Customer and at such other times as Company may
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Credit Terms.
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Hardware as a Service Program.
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HaaS Program.
HaaS shall be provided as defined by the Hardware as a Service Agreement, a copy of which can be found here: https://www.joinkumo.com/agreements/haas_agreement.html.
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HaaS Program.
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Definition.
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SOFTWARE.
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Definition.
Software ("Software") shall be defined as any software, application, tool or related documentation downloaded from Company either directly or through a distribution channel such as virtual software store, as well as any software preloaded by Company that is included with any Equipment (but excluding any Third-Party software). -
Software License.
- Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a limited, personal, non-exclusive, non-sub licensable, non-transferable license ("License") to install on silicon, magnetic or optical media the Software.
- The License does not authorize Customer to, and Customer agrees that it shall not (and shall not permit any third party to): (i) copy, other than as expressly permitted, all or any portion of the Software, except that Customer may make one (1) copy of the Software for archival purposes for use by Customer only in the event the Software shall become inoperative; (ii) modify or translate the Software; (iii) modify, alter, or use the Software so as to enable more copies than are authorized in this Agreement; (iv) reverse engineer, de-compile or disassemble the Software, in whole or in part; (v) use the Software to directly or indirectly provide a time-sharing or subscription service to any third party or to function as a service bureau or application service provider; (vi) create derivative works based on the Software; (vii) publicly display the Software; (viii) rent, lease, sublicense, sell, market, distribute, assign, transfer, or otherwise permit access to the Software to any third party; (ix) install and use the Software unless Customer has installed on such magnetic or optical medium a valid, licensed copy of an operating system compatible with the Software; (x) exceed the simultaneous number of calls limit applicable to the version of the Software used by Customer; or (xi) exercise any right to the Software not expressly granted in this Agreement. Company reserves all rights not expressly granted herein.
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Ownership of Software.
This License does not convey to Customer an interest in or to the Software, but only a limited right of use revocable in accordance with the terms of this Agreement. The Software is NOT sold to the Customer. Company owns all rights, title and interest in and to the Software. No license or other right in or to the Software is granted to Customer except for the rights specifically set forth in this Agreement. Customer hereby agrees to abide by all applicable laws and international treaties. -
Software Updates.
Company can make necessary changes, updates or enhancements to the Service at any time. Company may also add or remove functionalities or features, or Company may suspend or stop the Service altogether. -
Infringement.
If any third party brings or threatens to bring any claim against Customer that any Software infringes any patent, copyright, trade secret right or trademark of such third party (a “Claim”), Company shall defend such Claim and shall pay any final judgment awarded for such Claim or any settlement of such Claim, provided that Customer shall (i) promptly notify Company in writing of such Claim, (ii) tender sole control of the defense and settlement of such Claim to Company and (iii) reasonably assist Company in such defense.
If, as a result of any Claim, Customer is enjoined from using any Software or any part thereof, then, unless Company procures for Customer the right to continue to use such Software or part thereof or modifies or replaces the materials that infringe or are alleged to infringe, either party may terminate this Agreement upon written notice to the other party. In the event of such termination, Company shall refund to Customer any prepaid amounts paid by Customer that shall be allocable to Services that were to be provided after such termination.
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Definition.
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STREAMS APIs.
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Definition
Streams API means the application programming interface and any accompanying or related documentation, source code, executable applications, and other materials made available by Company to Customer. 3rd Party Streams Applications means a web or other software service, or application developed by Customer that utilizes or interacts with the Streams API. -
Software License.
Streams API license and usage are effective as of the date of acceptance of this Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE STREAMS API OR ANY MATERIAL RELATING THERETO. BY DOWNLOADING, INSTALLING, OR USING THE STREAMS API OR ANY MATERIAL RELATING THERETO, YOU AGREE TO ABIDE BY AND COMPLY WITH THIS AGREEMENT.
This Agreement governs, and sets the conditions for, Customer's rights to use and access the Streams API for the purpose of developing, implementing, marketing, offering to sell, selling, supporting, maintaining, and operating Streams Applications, including without limitation for using Streams Applications for Internal Use and for Publishing Streams Applications.
Subject to the terms and conditions of this Agreement, Company grants to Customer a limited, nonexclusive, nontransferable, non-sublicensable, worldwide, revocable right and license during the Term to:
- Use and make calls to the Streams API to develop, implement, and distribute Streams Applications solely for use by Users in connection with the Services;
- Use, reproduce, distribute, and transmit Account Data to the extent necessary for a Streams Applications to interoperate with the Services in accordance with this Agreement; and
- Use and display the Streams brand only to identify that the Account Data originates from the Services and to show that the Streams Application interoperates with the Services.
Customer's and its End Users’ use of the Service in connection with the Streams API, and all data relating thereto, shall be governed by the terms of the EUSA.
Customer hereby grants to Company a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to incorporate into the Service or the Streams API or otherwise use any suggestions, enhancement requests, recommendations, or other feedback Company receives from Customer.
If Company believes, in its sole discretion, that Customer has violated or attempted to violate any term, condition or the spirit of this Agreement or other applicable Company agreements, the license afforded Customer pursuant to this Agreement may be temporarily or permanently revoked, with or without notice to Customer.
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Ownership of Software.
This License does not convey to Customer an interest in or to the Software, but only a limited right of use revocable in accordance with the terms of this Agreement. The Software is NOT sold to the Customer. Company owns all rights, title and interest in and to the Software. No license or other right in or to the Software is granted to Customer except for the rights specifically set forth in this Agreement. Customer hereby agrees to abide by all applicable laws and international treaties. -
Right of Control Over Streams API.
Company may limit or suspend Customer's usage of or access to the Streams API if, in Company's reasonable discretion, Customer or Customer's Streams Applications are adversely affecting the performance or operation of the Service. Company shall use commercially reasonable efforts to provide notice to Customer of any such actions as soon as reasonably practical.-
API Modification.
Company may modify, amend, change, or deprecate all or part of the Streams API in its sole discretion at any time ("API Notification"). Company shall use commercially reasonable efforts to provide prior notice to Customer of any such actions as soon as reasonably practical. Customer shall, within thirty (30) days from the date of first notice of any API Modification(s) by (i) implementing and using the most current version of the Streams API, (ii) making any changes to Streams Applications that may be required as a result of such API Modification, (iii) using commercially reasonable efforts to stop distribution of all prior versions of the Streams Applications, and (iv) using commercially reasonable efforts to upgrade all prior versions of the Streams Applications then in use to the most recent version. Customer acknowledges that an API Modification may have a material adverse effect on Streams Applications, including but not limited to causing Streams Applications not to operate as designed. Company shall have no liability of any kind to Customer or any user of Customer's Streams Applications with respect to such API Modifications or any adverse effects resulting from such API Modifications. Customer's continued access to or use of the Streams API following the API Notification shall constitute binding acceptance of the API Modifications at issue.
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API Modification.
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Fees.
Company currently provides the Streams API at no charge to Customer. Company reserves the right to change its pricing policies for the Streams API at any time in its sole discretion. Company shall provide Customer reasonable prior written notice of such changes. -
Company Review of Streams Applications.
- In its sole discretion at any time, Company may perform, at its sole cost, a security review of any of Customer’s Streams Applications to ensure that the Streams Application complies with this Agreement, the EUSA, or any other agreement between Company and Customer and that the Streams Application does not threaten the security, integrity, or performance of the Services or any Streams Components (a “Security Review”). Company shall provide Customer reasonable prior written notice of any Security Review. Customer shall provide Company, at no charge, full user-level access to the Streams Application and shall reasonably cooperate with Company in the Security Review. Company may perform the Security Review itself or through third parties on Company’s behalf (and such third parties shall treat all information obtained through the Security Review as Confidential Information under this Agreement).
- A Security Review may include, without limitation, any or all of the following steps:
- The Customer’s completion of a questionnaire;
- Meetings or discussions at a reasonable time and place with Customer’s developers;
- Technical security testing by Company of the Streams Application; and
- To the extent the Streams Application uses Components other than Streams Components, Company may perform penetration testing, remote application-level security testing, network-level security testing, and vulnerability threat assessments on such Components.
- In performing the Security Review, Company shall use commercially reasonable efforts to ensure its review does not cause any material adverse effect on any of Customer’s Components supporting the Streams Application. Notwithstanding the foregoing, Company shall not be liable for any adverse effects on such Components that could not have been avoided or foreseen through commercially reasonable efforts.
- Company shall inform Customer of any issues discovered during the Security Review in writing and in reasonable detail. Company may immediately revoke the license afforded Customer pursuant to this Agreement if it discovers any such issues, and Customer shall promptly cease distribution, support, and operation of the applicable Streams Application.
- A Security Review by Company shall not be deemed a warranty or certification of the applicable Streams Application, nor shall it limit Customer’s liability for the breach of, or waive Customer’s compliance with, any provision of this Agreement.
- Customer shall treat the occurrence of, results of, and any communications in connection with a Security Review as Confidential Information. For the avoidance of doubt, Customer shall not use such information in any marketing or advertising of its Streams Applications.
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Customer's Responsibilities.
- Customer may not access or use the Streams API for any purposes if it is a direct competitor of Company.
- End Users shall be Customer to Services. Customer must use best efforts to ensure that Streams Applications do not permit End Users who are not Customers to access or use the Services. In the event Customer discovers that an End User is not a Customer, Customer shall use best efforts to prevent that End User from using the Streams Application.
- With respect to the Streams Applications, Customer acknowledges and agrees that Company has no obligations, responsibilities, or liabilities to End Users.
- Customer must comply with the restrictions set forth in this Agreement and the EULA in all uses of the Streams API, Account Data, and the Services. Customer must also comply with the restrictions set forth in this Agreement and the Company’s then-current trademark and branding guidelines in all uses of the Company Marks.
- Customer’s Streams Application must not be intended to or designed to facilitate a violation of the EUSA or any other applicable Company agreement by End Users, including without limitation the use policies set forth in the EUSA. In the event Company reasonably believes Customer’s Streams Application violates this Section 7.7.5, Customer shall, promptly upon written notice and at Customer’s sole cost, modify and redistribute the Streams Application and use its best efforts to disable or otherwise prevent End Users from using prior versions of the Streams Application that violate this Section 7.7.5. In no event will Customer encourage its End Users to violate, or instruct its End Users on how to violate, the EUSA or any other applicable Company agreement.
- In order to use and access the Streams API, Customer must obtain API credentials (a “Token”) by becoming a Customer. Customer may not share its Token, shall keep such Token and all login information secure, and shall use it as Customer’s sole means of accessing the Streams API.
- Customer’s Streams Applications shall not substantially replicate products or services offered by Company, including, without limitation, functions or clients on platforms (such as iOS or Android) where Company offers its own client or a substantially similar function. By way of example only, Customer may not develop a Streams Application for use on an iPhone or Android that permits an End User to make general phone calls to the public switched telephone network because doing so would substantially replicate Company’s mobile application. Customer agrees that Company may develop and publish applications that are similar to or otherwise compete with Customer’s applications.
- Streams Applications may not use or access the Streams API or the Services in order to monitor the availability, performance, or functionality of the Streams API or Services or for any similar benchmarking or competitive purposes.
- Streams Applications shall not, in any manner, display any form of advertising that uses Account Data.
- Customer shall not, under any circumstances, through a Streams Application or otherwise, repackage or resell the Services, Streams API, or Account Data.
- Customer is not permitted to use the Streams API, Services, or Account Data in any manner that does or could potentially undermine the security or performance of the Streams API, Account Data, or the Services. In addition, Customer shall not, and shall not attempt to, interfere with, modify or disable any features, functionality or security controls of the Services or the Streams API; defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Services or the Streams API; or reverse engineer, decompile, disassemble, or derive source code, underlying ideas, algorithms, structure, or organizational form from the Services or the Streams API.
- Customer acknowledges and agrees that Customer is solely responsible, and that Company has no responsibility or liability of any kind, for (a) the content, development, operation, sale, support, or maintenance of Streams Applications; or (b) Customer’s inability to continue providing Streams Applications (in whole or part) due to the termination or expiration of this Agreement. Without limiting the foregoing, Customer will be solely responsible for (i) the installation, operation, maintenance, and support of its Streams Applications; (ii) creating and displaying information and content on, through or within its Streams Applications; (iii) ensuring that its Streams Applications do not violate or infringe the Intellectual Property Rights of any third party; (iv) ensuring that Streams Applications are not offensive, profane, obscene, libelous or otherwise illegal; (v) ensuring that its Streams Applications do not contain or introduce Malicious Software into the Services, the Streams API, any Account Data or other data stored or transmitted using the Service, or Streams Components; (vi) ensuring that its Streams Applications are not designed to or utilized for the purpose of sending Spam to any Company, Customer or others; and (vii) transitioning End Users off a Streams Application when that Streams application is no longer available for any reason.
- Customer will respect and comply with the technical and policy-implemented limitations of the Streams API and the restrictions of this Agreement in designing and implementing Streams Applications.
- Prior to accessing any Customer's account or Account Data or otherwise utilizing a Customer's Services, Customer shall disclose in writing and reasonable detail to the Customer (a) that the Streams Application will have Account Access; (b) the nature of the Account Access, including without limitation how the Service will be used and what Account Data will be accessed or modified by the Streams Application; and (c) where, if applicable, Account Data may be stored, transmitted, or accessed outside of Streams Components. The Customer must provide express consent prior to any Account Access, and such consent shall be limited to the scope of what is disclosed in the previous sentence (the “Customer’s Access Consent”). Customer shall promptly cease any Account Access upon the Customer's withdrawal of the Customer's Access Consent.
- In no event shall Customer or the Streams Application engage in Account Access or transmit, store, or access Account Data outside the scope of the Customer's Access Consent.
- Sections 7.7.14 and 7.7.15 shall not apply to the extent (and only to the extent) that Customer uses a Streams Application solely with its own subscription to the Services. Customer’s consent to such Account Access shall be deemed given in such cases.
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No Service Level Agreement.
- Company shall use commercially reasonable efforts to ensure the availability of the Streams API to Customer. Notwithstanding the foregoing, Company does not guarantee any uptime, availability, performance, or integrity of the Streams API. Moreover, Company shall not be liable to Customer or its End Users for the unavailability of the Streams API or the failure of the Streams API to perform in accordance with its specifications. Customer shall not represent to its End Users any availability or performance levels with respect to the Streams API or the Services.
- Company is not required to provide any prior notice to Customer or its End Users of planned or unplanned downtime of the Streams API.
- In the event of any failure of the Service for the Customer or an End User, such failure will be governed by the terms of the EUSA with the Customer or End User (as applicable).
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Definition
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CHARGES; PAYMENTS; TAXES.
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Activation Fees.
Upon subscribing to the Service, and each time Customer adds additional seats to Customer's service, Customer will be billed a one-time provisioning and setup fee. The foregoing fee covers Customer's basic account configuration and does not include any installation or training fees that Customer may be required to incur. This activation fee will be included in the Quote and is subject to change from time to time. -
Unlimited Plan for Voice Services.
Company offers a variety of unlimited user plans for certain Voice Services ("Unlimited Plan") designed to simplify billing for the Customer; however, Unlimited Plans are limited to Reasonable Business Use only. "Reasonable Voice Service Business Use" is defined to mean normal business usage as more fully described in the Company product literature. If the Service is subscribed for on an Unlimited Plan and Company deems in Company's sole and absolute discretion that Customer is using a predictive dialer application or that Customer is otherwise abusing the Unlimited Plan, in addition to Company's other rights and remedies herein, Company reserves the right to terminate this Agreement or the applicable Unlimited Plan, re-price the Unlimited Plan Service, convert the unlimited plan to a metered plan, or offer a new service plan in accordance to standard industry billing practices. Any excessive use charges as defined in Section 8.9 are independent of any service charge listed in Quote and are not discounted. -
Unlimited Plan for SMS Messaging Services.
Unlimited SMS messaging plans are limited to Reasonable Business Use only. "Reasonable SMS Service Business Use" is defined to mean normal business usage and is not intended to be used to distribute high volume messages over a short period of time. If the Company deems in Company's sole and absolute discretion that Customer is using an automated program to send large volumes of SMS messages or that Customer is otherwise abusing the SMS messaging service, in addition to Company's other rights and remedies herein, Company reserves the right to terminate this Agreement or the applicable unlimited SMS service, re-price the unlimited SMS service, charge for excessive use of service or offer a new service plan in accordance to standard industry billing practices. Any excessive use charges as defined in Section 8.9 are independent of any service charge listed in Quote and are not discounted. -
Unlimited Plan for Fax Services.
Unlimited fax plans are limited to Reasonable Business Use only. "Reasonable Fax Service Business Use" is defined to mean normal business usage and is not intended to be used to send or receive high volume faxes (such as fax blasting) over a month period of time. If the Company deems in Company's sole and absolute discretion that Customer is sending large volumes of faxes or that Customer is otherwise abusing the fax service, in addition to Company's other rights and remedies herein, Company reserves the right to terminate this Agreement or the applicable unlimited fax service, re-price the unlimited fax service, convert the unlimited fax plan to a metered plan, charge for excessive use of service or offer a new service plan in accordance to standard industry billing practices. Any excessive use charges as defined in Section 8.9 are independent of any service charge listed in Quote and are not discounted. -
ConnectMe Recording Cloud Storage Charges.
ConnectMe recordings stored to the SmartBox cloud will require separate ConnectMe cloud storage which has a monthly fee based on total aggregate ConnectMe recording storage per account. ConnectMe recording storage is allocated at the account level through the account administration portal and is shared among all users in the account. Users can store ConnectMe recordings locally without requiring any ConnectMe recording storage allocation. ConnectMe Recording Storage fees are as follows:
10 GB - $8/mo
100 GB - $40/mo
TB - $250/mo -
Unlimited Storage Plan for SmartBox.
Unlimited SmartBox Plans are limited to Reasonable Storage Use only. "Reasonable Storage Use" is defined to mean normal storage usage when conducting day to day business. If the Service is subscribed for on an Unlimited SmartBox Plan and Company deems in Company's sole and absolute discretion that Customer is storing excessive content or that Customer is otherwise abusing the Unlimited SmartBox Plan, in addition to Company's other rights and remedies herein, Company reserves the right to terminate this Agreement or the applicable Unlimited SmartBox Plan, re-price the Unlimited Plan SmartBox Service or offer a new service plan in accordance to standard industry billing practices. Any excessive use charges as defined in Section 8.9 are independent of any service charge listed in Quote and are not discounted. ConnectMe recordings stored in SmartBox are separately charged (Refer to Section 8.5). -
Monthly Usage Fees.
Upon activation of the Service, Customer will be responsible for paying all applicable usage fees in connection with Customer's use of the Service. The usage fees shall be set forth in the Quote or otherwise communicated to Customer and may include, without limitation, monthly Service fees which include, but are not limited to, the following features: calling, conferencing and other minute-based charges, international usage charges, domestic and other per minute usage charges, and advanced feature charges including but not limited to faxing and SMS messaging. Any domestic (US), international (non-US and non-Canada) or toll-free usage charges shall be billed in six second increments. -
SmartBand Charges.
Upon activation of the SmartBand service, Customer will be responsible for paying all applicable usage fees in connection with Customer's use of the SmartBand service. The usage fees shall be set forth in the Quote or otherwise communicated to Customer and may include, without limitation, monthly Service fees.- SmartBand Service Commencement.
Company will notify Customer when the SmartBand circuit is installed or connected, successfully tested, and available for Customer use. Billing for SmartBand service will begin once Customer is notified. Installation of Customer provided SmartBand router is not required for SmartBand service to be available and SmartBand circuit billing to commence. If a Company provided SmartCPE router is provided for the SmartBand circuit and Company is prevented from installing the SmartCPE router at the same time as that the SmartBand circuit is installed, Company at its sole discretion can determine that SmartBand service is available and SmartBand circuit billing can commence. Company shall not be liable for any damages of any nature resulting from delays in meeting requested or specified service dates or its inability to provide Service. - SmartBand Service Move or Change Request During Term.
If Customer requests Company to move or change SmartBand Service during the Term of the service, Customer will be responsible for any additional SmartBand required equipment, Non-Recurring Charges (NRC) or changes in Monthly Recurring Charges (MRC) due to requested SmartBand Service change or modification. Company shall not initiate requests change or modification until Company receives appropriate approval in writing from Customer. Company shall not be liable for any damages of any nature resulting from delays in meeting requested or specified service dates or its inability to provide request move or changed SmartBand Service. - SmartBand Pricing Change During Term.
SmartBand's monthly fee is subject to change in accordance with the terms of the underlying carrier's tariff or service agreement to Company. Notwithstanding any other provisions, Customer understands that underlying carrier's fees and charges can change, from time to time, and that Company reserve the right to change Customer's SmartBand fees accordingly. If Customer is dissatisfied with the change to Customer's fees and charges for the affected SmartBand service, then within the twenty (20) day period following Company's written notification to Customer that such fees and charges for the affected SmartBand service has changed, Customer may discontinue such affected SmartBand service with Company without penalty by providing Company with a twenty (20) days prior written notice of discontinuation of affected SmartBand service. The discontinuation of such affected SmartBand service will be effective at the end of the notice period unless Company elects (in its sole discretion) to change the fees and charges back to the original amounts being charged by Company, in which case Company will notify Customer and no discontinuation of affected SmartBand service will occur. If Customer does not provide Company with notice to discontinue the affected SmartBand service within the twenty (20) day period following Company's notice of the fees change, the new affected SmartBand fees and charges will be binding and the then current Term of such SmartBand service will remain in force.
- SmartBand Service Commencement.
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Excessive Use Charges for Unlimited Service Plans.
Unlimited service plans assume reasonable, normal business use for each specific service as defined in this Section 8. Customers with the following unlimited service plans will incur additional charges for excessive non-normal/non-reasonable business use as follows:Service Excessive Use (per Month) Excessive Use Charge Voice Minutes > 10,800 PSTN minutes per seat averaged across all unlimited voice seats in account $0.02/min SMS Messages > 500 outbound only SMS messages per seat averaged across all SMS enabled DIDs in account. Inbound SMS messages that exceed more than 140% of outbound SMS messages may incur excessive use charges. For excessive use calculations, each End User is limited to 2 SMS enabled DID lines. SMS message greater than 140 characters will be counted as N messages where N = round up (message length /140). $0.01/SMS message Fax Pages > 3,000 inbound or outbound fax pages per fax line averaged across all unlimited fax lines in account $0.10/fax page SmartBox > 1 Terabyte SmartBox storage per seat averaged across all seats in account with unlimited SmartBox $2.00/100G of SmartBox storage -
MPLS Connect Service During Term.
Company at its sole discretion, may elect to move or shutdown Company's data centers from time to time. If Customer has an MPLS Connect service connected to a Company data center that is being moved or shut down, Customer will be responsible for any additional charges Customer may incur to move their MPLS connection to another Company data center. Company will provide MPLS Connect service at another Company data center. Company shall not be liable for any damages of any nature resulting from delays in meeting requested or specified service dates or Customer's inability to provide MPLS service to Company's new data center. -
Fee for 911 Calls.
All accounts are required to complete a 911 call routing profile, and to keep that profile updated. If Customer does not complete a profile or keep the profile updated for changes to Customer's account, Company reserves the right to charge a $100 fee per 911 call that is incorrectly routed. - Regulatory Recovery Fee.
- A Regulatory Recovery Fee is charged monthly to offset costs incurred by Company in maintaining compliance with federal, state and municipal regulatory bodies, government inquiries and related legal expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee will be set forth in the Quote or otherwise communicated to Customer and will apply to each user seat that includes a DID.
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Start of Billing.
Customer will be placed into production and the Services will begin to be billed immediately upon the earlier of (1) if the Service includes SmartBand, the date at which the SmartBand service is turned up and confirmed working by Company or (2) if the Service includes hardware, the date at which the initial hardware order is placed with hardware vendor by Company or (3) if the Services do not include SmartBand or hardware, then the date upon which the Service is operational and available to Customer or the date mutually agreed to in writing by Customer and Company. -
Invoicing and Payment Terms.
Customer will receive a monthly electronic invoice for all fees payable in connection with the Service. Customer's first monthly invoice will include actual usage charges for the first month of Service plus monthly recurring charges for the following month of Service. If the Service was initiated after the first day of the month, the first month of service will be billed at a pro-rated amount based on the date that the account was provisioned, each monthly invoice thereafter will include an adjustment to the amount billed in the prior month for actual increases or decreases in Customer's current month Service, plus monthly recurring charges for the next month. All fees are payable net 10 days from the date of the applicable invoice; provided that Company may, but is not obligated to, charge Customer’s credit or debit card on file for any amounts owed hereunder pursuant to this Section 8.14. Customer's failure to pay any fees due hereunder in a timely manner shall constitute a material breach of this Agreement. Late payments are subject to a late charge which shall accrue on any past-due amounts from the date due until payment is received at the lower of (i) one and one-half percent (1.5%) per month and (ii) the highest rate allowed under applicable law. Customer shall be responsible for reimbursing Company for all costs that Company incurs to collect such amounts, including, without limitation, collection costs and attorney's fees. -
Method of Payment.
Upon activation of the Service, Customer must provide Company with a valid email address and a credit or debit card number from a card issuer that is acceptable to Company. Company reserves the right to stop accepting credit or debit cards from one or more issuers. Customer must promptly notify Company in the event that Customer's credit or debit card expires, Customer closes their credit account, Customer's billing address changes, or Customer's credit or debit card is cancelled and/or replaced on account of loss or theft. Regardless of the payment method that Customer selects, Customer's subscription to the Service authorizes Company to charge Customer's credit or debit card. Customer may terminate Company's authority to charge Customer's credit and/or debit card upon thirty (30) days prior written notice. If Customer terminates Company's authority to charge Customer's credit or debit card, then Company may terminate the Service and charge Customer's credit or debit card for any and all fees due including, but not limited, to any applicable Termination Fees and other outstanding fees and charges. -
Advance Payment.
If Customer has selected one of the advance payment options during the Quote process, Customer agrees to make the advance payment within 30 days of the invoice date in exchange for the advance payment discount. If Customer reduces their Service during the Term, no refunds will be made. If Customer makes additions to the Service during the Term, those Services will be invoiced separately. Advance payments exclude Services for which there are separate usage charges such as Toll Free and International Long Distance. -
Payment by ACH, Wire Transfer or Check.
Customers with total Service billings in excess of $1,000 per month may request to make payments via ACH, wire transfer or check. Company's approval may be withheld in Company's sole discretion with or without reason and may be conditioned upon a satisfactory review of Customer's credit and the posting of a security deposit in an amount that Company deems reasonable. If any payment by check does not clear due to insufficient funds, Customer shall pay Company an NSF fee in the amount of $50 in addition to any other fees payable hereunder. -
Billing Disputes.
Except as expressly provided herein, all payments to Company are non- refundable. Customer must notify Company in writing within fifteen (15) days of the invoice date if Customer disputes any of Company's charges for that month or Customer will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to: Customer Care Billing Department -- billing@streams.us. If Customer disputes a charge to Customer's credit card issuer that, in Company's sole discretion, is a valid charge under the provisions of this Agreement, Customer agrees to pay Company an additional Investigatory Fee in the amount of $100.00. -
Taxes.
Customer is responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of Customer's subscription or use or payment for the Service. Such amounts are in addition to payment for the Service and will be invoiced or billed to Customer's credit card as set forth in this Agreement. If Customer is exempt from payment of such taxes, Customer must provide Company with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date Company receives such certificate.
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Activation Fees.
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TERM; SUSPENSION; TERMINATION; TERMINATION FEES.
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Term.
The term of this Agreement (including without limitation any renewal terms) (the "Term") shall commence on the date that Company activates Customer's Service (the "Effective Date") and continue for the term set forth in the Quote or until sooner terminated by Customer or by Company as permitted herein. For those Customers who sign up for a term of one or more years, ("Initial Term") the term shall start on the Effective Date and last for the selected number of years. Unless either (i) Customer gives written notice of termination at least forty-five (45) days prior to the expiration of the Initial Term or then –current renewal Term (but no earlier than ninety (90) days prior to the expiration of such Initial Term or renewal Term); or (ii) Company gives written notice of termination at least 45 days prior to the expiration of the Term, the Term will automatically renew for a period equal to the Initial Term. For those Customers who are not on a Term of one or more years, the Service and this Agreement shall automatically renew on a monthly basis unless Customer i) signs up for another one or more-year term agreement or ii) gives Company written notice of non-renewal at least ten (10) days prior to the end of the then current monthly term. -
Suspension of Service.
Company reserves the right to suspend Customer's access to the Service at any time without incurring liability of any kind for: (a) the actual or suspected violation of the terms of this Agreement; (b) the use of the Services in a manner that may cause Company to have legal liability or disrupt other users of the Service; (c) the suspicion or detection of any malicious code, virus or other harmful code by Customer or in Customer's account; (d) scheduled maintenance periods; (e) use of excessive storage capacity or bandwidth for SmartBox Service; or (f) unplanned technical problems and outages. If, in Company's determination, the suspension might be indefinite and/or Company has elected to terminate Customer's access to the Service, Company will use commercially reasonable efforts to notify Customer. Customer acknowledges that if Customer's access to the Service is suspended or terminated, Customer may no longer have access to the Content that is stored with the Service. -
Termination for Cause.
Either party may terminate this Agreement upon written notice to the other part if the other party breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach. Termination pursuant to this Section 9.3 shall be deemed to be for "Cause." Any other purported termination shall be deemed to be without "Cause." -
Termination by Customer or Company Other Than for Cause.
Upon termination of this Agreement for any reason, Customer may request access to Customer's Content. Customer must make such request with thirty (30) days following termination. Otherwise, any Content Customer has stored with the Service may not be retrievable, and Company will have no obligation to maintain any Content stored in Customer's account. In addition to other termination provisions, if Customer's account it not currently subjects to a term, Company at its sole discretion may terminate Customer's account if: (a) Customer does not engage in any activity in Customer's account or use the Service within thirty (30) days after becoming a Customer, or (b) Customer do not engage in any activity in Customer's account or use the Service for any period of one-hundred and eighty (180) consecutive days. In the event of such termination, any Content Customer may have stored with the Service or SmartBox Service will be lost. If termination is by Company for Cause or by Customer without Cause, Company may charge a fee reasonably determined by Company for providing Content to Customer pursuant to this Section 9.4. -
Early Termination.
If Customer terminates the Service prior to the end of the Term without Cause or if Company terminates Customer's Service for Cause, Customer will immediately pay Company the following fees and charges: (a) all fees and expenses incurred through the date of termination, (b) if Customer’s account is on a month to month term and has been in service less than twelve months from the effective date an early Termination Fee in the amount of $200 per account, and (c) if Customer's account is on a one or more year term, a cancellation fee equal to the last full month's invoice amount for the Service times the number of whole remaining months in the Term plus the prorated amount for any partial remaining months. In addition, Customers on month-to-month plans will be responsible for the next full month's charges in the event that Customer does not provide a least ten-day’s notice of termination prior to the expiration of the then-current term. Customer must have at least one active seat for Customer's account to be considered to be in good standing. In the event Customer chooses to reduce the number of active seats on Customer's account to zero, Customer's account will automatically be terminated within 30 days and all fees and charges described above will apply. Company is under no obligation to make any Content Customer has stored with the Service or SmartBox Service available or retrievable, and Company will have no obligation to maintain any data stored in Customer's account after termination. No termination of this Agreement, including but not limited to termination by the Company without Cause or by Customer for Cause, shall relieve Customer of its obligation to pay any lease payments, principal or interest associated with any Equipment. -
Survival.
Sections 1.3, 1.5, 2, 3, 4, 5.4, 5.5, 6.2, 6.3, 6.4, 7, 8, 9.4, 9.5, 10, 11 and 12 shall survive any expiration or termination of this Agreement and remain fully effective, valid and enforceable thereafter. -
Non-SmartBox, Non-SmartBand Service 30-day Money-Back Guarantee.
Customer may cancel non-SmartBox and non-SmartBand Service within the first 30 days if Customer is on credit card billing and Customer is not financing Equipment with or leasing Equipment from Company. Customer will be responsible for minutes of use fees on metered plans as well as any international per-minute charges incurred during the 30-day period. To obtain a refund of any payments that are allocable to Services that were to be provided after such cancellation, customers are asked to call billing at 800.805.0558 and request to speak with a billing specialist. No cancellation is permitted under this Section 9.7 for SmartBox and SmartBand Service or for any Service for which Customer (i) has financed Equipment with or leased Equipment from Company or (ii) is not on credit card billing.
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Term.
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LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES.
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Exclusions from Liability.
Under no circumstances shall Company or Company's suppliers be liable for any delay or failure to provide the Service, including 911 dialing, any interruption or degradation of voice quality that occurs for any reason, or any loss of Content, including but not limited to any of the foregoing that is caused by: (i) an act or omission of an underlying carrier, service provider, vendor or other third party; (ii) third party equipment, network or facility failure; (iii) equipment, network or facility upgrade or modification; (iv) force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions; (v) equipment, network or facility shortage; (vi) equipment or facility relocation; (vii) service, equipment, network or facility failure caused by the loss of power to Customer; (viii) outage of, or blocking of ports by, Customer's ISP or broadband service provider or other impediment to usage of the Service caused by any third party; (ix) any act or omission by Customer or any person using the Service or any portion thereof; or (x) any other cause that is beyond Company's control, including, without limitation, a failure of or defect in any equipment or device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 dialing) to be connected or completed, or forwarded or the inability to access or retrieve Content. Company will not be liable for any action it takes to remove or restrict access to obscene, indecent or offensive content made available by Customer, nor for any action taken to restrict access to material made available in violation of any law, regulation or rights of a third party including, but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy. -
Limitation of Consequential Damages.
IN NO EVENT SHALL COMPANY OR COMPANY'S SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OR MISUSE OF CONTENT, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT COMPANY WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES. -
Limitation of Direct Damages.
THE AGGREGATE LIABILITY OF COMPANY AND COMPANY'S SUPPLIERS TO CUSTOMER FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT CUSTOMER ACTUALLY PAID TO COMPANY UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICE SET BY COMPANY UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, CUSTOMER RELEASES COMPANY AND COMPANY'S SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED IN THIS AGREEMENT. -
Disclaimer of Warranties.
CUSTOMER'S USE OF THE SERVICE (INCLUDING WITHOUT LIMITATION ALL SOFTWARE AND EQUIPMENT) IS AT CUSTOMER'S OWN RISK AND IS PROVIDED ON AN "AS IS" BASIS. NEITHER COMPANY NOR COMPANY'S SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE SERVICE (INCLUDING WITHOUT LIMITATION ANY SOFTWARE OR EQUIPMENT) WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER COMPANY NOR COMPANY'S SUPPLIERS SHALL BE LIABLE FOR UNAUTHORIZED ACCESS TO ANY TRANSMISSION FACILITIES, DEVICES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, ANY OF CUSTOMER'S, OR CUSTOMER'S USERS’, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION WHETHER CAUSED BY ACCIDENT, FRAUDULENT MEANS OR ANY OTHER METHOD, REGARDLESS OF THE CAUSE OR THE PARTY DETERMINED TO BE AT FAULT. ANY AND ALL STATEMENTS OR DESCRIPTIONS MADE BY COMPANY AND/OR COMPANY'S EMPLOYEES OR AGENTS ARE FOR INFORMATIONAL PURPOSES ONLY AND SHALL NOT BE DEEMED TO PROVIDE A WARRANTY OF ANY KIND.
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Exclusions from Liability.
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PROPRIETARY RIGHTS.
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Copyright; Trademark.
The Service, all firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, and all information, documents and materials on Company's Site are protected by trademark, copyright or other intellectual property laws and international treaty provisions. Company's websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") are and will at all times remain Company's exclusive property. Nothing in this Agreement grants Customer the right or license to use any of Company's marks. -
Third Party Interface Devices.
Customer hereby represents and warrants that Customer possesses all required rights, including software and/or firmware licenses, to use any interface device ("Interface Device") that Company has not provided to Customer. In addition, Customer shall indemnify Company and hold Company harmless from and with respect to any and all liability, loss, damage, claim, cost or expense (including reasonable attorneys’ fees) arising out of or in connection with Customer's use of such Interface Device with the Service. -
Theft of Service.
Customer shall notify Company immediately, both in writing and by calling Company's support line, if any Equipment is stolen or if Customer becomes aware at any time that Customer's Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When Customer calls or writes to Company, Customer must provide Customer's account number and a detailed description of the circumstances of the theft, fraudulent use or unauthorized use of the Service. Failure to do so in a timely manner may result in Company's termination of Customer's Service for breach and additional charges to Customer. Until such time as Company receives notice of the theft, fraudulent use or unauthorized use, Customer will be liable for all use of the Service using Equipment stolen from Customer and any and all stolen, fraudulent or unauthorized use of the Service.
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Copyright; Trademark.
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MISCELLANEOUS.
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Indemnification.
Customer shall defend, indemnify, and hold harmless Company, and Company's officers, directors, employees, affiliates, agents and suppliers, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorney’s fees and costs), relating directly or indirectly to Customer’s use or commercialization of the Services, including, without limitation, 911 dialing, loss or misuse of Content, other than any claims, losses, damages, fines, penalties, costs and expenses arising solely from Company’s breach of this Agreement or willful misconduct. -
No Third-Party Beneficiaries.
Except as expressly provided in Section 12.1, no provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other Third-Party beneficiary rights. -
Governing Law.
The Agreement and the relationship between the Customer and the Company are governed by the laws of the State of California without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent herewith, Customer shall submit to the personal and exclusive jurisdiction of the courts located within the state of California and waive any objection as to venue or inconvenient forum. -
Mandatory Arbitration and No Jury Trial.
Any dispute or claim between Customer and Company arising out of or relating to this Agreement or the Service or any portion thereof will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Santa Clara County, California. The arbitrator's decision will follow the plain meaning of the relevant documents and will be final and binding. The arbitrator shall not have the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. All claims shall be arbitrated individually, and the arbitrator has no right or power to conduct any class or representative arbitration. Customer shall not bring or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, CALIFORNIA. -
Consent to Electronic Communications and Solicitation.
By use of Services by Customer, Customer understands and agrees that Company may send Customer communications or data regarding the Services, including but not limited to (a) notices about Customer's use of the Services, including any notices concerning violations of this Agreement, (b) updates, and (c) promotional information and materials regarding Company's products and services, via electronic mail. -
Consent to Identification of User of Service.
By use of Service by Customer, Customer understands and agrees that Company may identify Customer as a user of the Service in its press releases, marketing material, business deals, advertising, newsletters, mailings, tradeshows, other promotional materials, on Company's website, or any other third-party website where Company or its designated agents may promote the Service. Customer hereby grant Company and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Customer's name, trademarks, service marks, designs, logos, and symbols in connection with such purpose. -
No Waiver of Rights.
Company's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. -
Entire Agreement.
This Agreement constitutes the entire understanding and agreement between Customer and Company and governs the use of the Services by Customer and Customer Users. This Agreement supersedes any prior agreements between Customer and Company and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject. -
Severability.
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement. -
Changes to the Agreement.
Company may change the terms of this Agreement from time to time upon delivery of electronic or written notices to Customer. Company generally provides written notice of changes to the administration page of Customer's account, including this Agreement and any other legal agreements, via email, electronic notice on the Company Website or Customer’s administration page in Company’s online portal, or as otherwise required by applicable law. You agree to carefully read and review each such e-mail or electronic notice from Company fully regarding any such notices of changes.
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Indemnification.
Subject to applicable law, the modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of this Agreement and become binding. Customer agrees to be solely responsible for: (i) making sure that Customer’s registered email account is current and functional; (ii) checking Customer’s registered email account regularly; (iii) checking the Company Website and Customer’s administration page regularly; and (iv) making sure that Company communications are not blocked or rendered undeliverable by Customer, any software installed on Customer’s computer, Customer’s internet service provider, or for any other reason. Continued use of the Services will constitute Customer acceptance of the modified terms. If the terms of this Agreement are amended and Customer does not wish to accept the modified terms, Customer may terminate this Agreement as provided for in Section 9.5.