TOUCHTONE offers its customers the means to acquire and disseminate a wealth of public, private, commercial and non-commercial information.
TOUCHTONE also wants its customers to be informed of their rights and obligations -- and those of TOUCHTONE – in connection with their use of any communications services offered by TOUCHTONE. This Acceptable Use Policy (“AUP”), which supplements and explains certain terms of each customer’s agreement, is intended as a plain English guide to those rights and obligations.
This AUP may be revised from time to time. Customers are responsible for monitoring TouchTone’s Website, http://www.touchtone.net/terms.html, for changes. A customer’s use of services after the changes have posted will constitute the customer’s acceptance of any new or additional terms of the AUP that result from those changes.
The fundamental fact about the Internet is that no one owns or controls it. This fact accounts for much of the Internet's openness and value, but it also places a high premium on the judgment and responsibility of those who use the Internet, both in the information they receive and in the information they disseminate to others. When customers obtain information through the Internet, they must keep in mind that TouchTone cannot monitor, verify, warrant or vouch for the accuracy and quality of the information that customers may acquire. For this reason, the customer must exercise his or her best judgment in relying on information obtained from the Internet, and also should be aware that some material posted to the Internet is sexually explicit or otherwise offensive. Because TouchTone cannot monitor and censor the Internet, and will not attempt to do so, TouchTone cannot accept any responsibility for injury to its customers (or any of their end users or accounts holders) that results from inaccurate, unsuitable, offensive, illegal or unlawful Internet communications.
When customers disseminate information through TouchTone’s network, they also must keep in mind that TouchTone does not review, edit, censor or take responsibility for any information its customers may create. This places on customers what will be, for most, an unfamiliar responsibility. When users place information on the Internet, they have the same liability as other authors for copyright infringement, defamation and other harmful speech. Also, because the information they create is carried over TouchTone facilities or the facilities of TouchTone’s underlying carriers and their affiliates, and may reach a large number of people, customers' postings through communication services offered by TouchTone’s/TouchTone’s underlying carrier’s network may affect other network users and may harm TouchTone's goodwill, business reputation and operations and/or the goodwill, business reputation and operations of TouchTone’s third party providers or partners.
The bulleted actions described below are defined by TouchTone as “system abuse” and are expressly prohibited under this AUP. The examples listed below are not exhaustive and are provided solely as guidance to the customer.
In general, customers may not use the TouchTone/TouchTone’s underlying carrier’s network, machines or services in any manner which: - violates any applicable law, regulation, treaty or tariff - violates the acceptable use policies of any networks, machines, or services which are accessed through TouchTone/TouchTone’s underlying carrier’s network - infringes on the intellectual property rights of TouchTone or others; - violates the privacy of others - involves deceptive online marketing practices including, without limitation, practices that violate the United States Federal Trade Commission’s guidelines for proper online marketing schemes; or otherwise violates this AUP.
Prohibited activities also include, but are not limited to, the following: - attempting to interfere with or denying service to any user or host (e.g., denial of service attacks); - falsifying header information, user identification or user information; - introduction of malicious programs into the network (e.g., viruses, worms, Trojan horses, etc.) - monitoring or scanning the networks of others without permission (e.g port scan) - attempted or successful security breaches or disruption of Internet communication, including without limitation - accessing data, machines or networks of which the customer is not an intended recipient or user or logging into a server or account that the customer is not expressly authorized to access (e.g. hacking or cracking); · executing any form of network monitoring (e.g., packet sniffer) which will intercept data not intended for the customer; - using any program/script/command, or sending messages of any kind, designed to interfere with a third party customer terminal session, via any means, locally or via the Internet; - sending unsolicited commercial e-mail or unsolicited bulk e-mail (e.g. UCE, UBE, or spamming) through the TouchTone/TouchTone’s underlying carriers Internet network; or sending unsolicited commercial or bulk e-mail through another provider advertising or implicating, directly or indirectly, the use of any service hosted or provided by TouchTone, including without limitation e-mail, Web, FTP and DNS Services. Without in any way limiting TouchTone’s rights under the AUP and/or the Services Agreement, Customers who send unsolicited commercial or bulk e-mail agree to pay TouchTone the cost of TouchTone labor to respond to complaints, with a minimum charge of $500.00. - hosting Web sites that sell products or services that are used to gather e-mail addresses or to assist in the sending of unsolicited e-mail; - providing (with or without an associated fee) automated tools, software and/or support services that allow others to engage in spamming (e.g., spamware); - maintaining an open relay mail server; - collecting e-mail addresses from the Internet for the purpose of sending unsolicited e-mail or to provide collected addresses to others for that purpose (e.g., database scraping and/or database harvesting); - transmitting or receiving copyright infringing material, including but not limited to copyrighted music, video, software, books, programs or other published material. - transmitting or receiving obscene, indecent, offensive, racist, defamatory, unreasonably violent, threatening, intimidating or harassing material. - Export Control Violations -- The law limits the ability of persons to export encryption software, over the Internet or otherwise, to points outside the United States. - Other Activities, whether lawful or unlawful, that TouchTone or any of its third party providers or partners determines to be harmful to its customers, subscribers, operations or reputation, including any activities that restrict or inhibit any other user from using and enjoying the service or the Internet.
As we have shown, the responsibility for avoiding the harmful activities just described rests primarily with the customer. TouchTone will not, as an ordinary practice, monitor the communications of customers to ensure that they comply with TouchTone policy or applicable law. When TouchTone becomes aware of harmful communications, or when it is notified or becomes aware of actual or potential violations of this AUP, TouchTone may take any action to stop the harmful activity, including but not limited to: filtering; denying access to TouchTone Services; suspending or terminating the Service access of customers; and/or taking any other actions as deemed appropriate by TouchTone. TouchTone shall have the sole discretion to determine which action is appropriate under the circumstances. TouchTone may take action immediately without regard to any cure periods that may be set forth in the customer’s applicable Agreement. TouchTone shall have the sole right to interpret the meaning of any provision of this AUP or whether a customer’s activity violates this AUP.
Customers who violate this AUP may incur criminal or civil liability. TouchTone may refer violators to civil or criminal authorities for prosecution, and will cooperate fully with applicable government authorities in connection with the civil or criminal investigations of violations. TOUCHTONE customers who provide services to their own users also must maintain valid postmaster and abuse e-mail addresses for their domains, comply with all applicable Internet RFCs, maintain appropriate reverse DNS information for all hosts receiving connectivity through TOUCHTONE’ s network for which DNS responsibility has been delegated to the customer, maintain accurate contact information with the appropriate domain and IP address registrars, take reasonable steps to prevent IP spoofing by their users and downstream customers, provide 24/7 contact information to TOUCHTONE for dealing with security and abuse issues and act promptly to ensure that users are in compliance with TOUCHTONE’s AUP. Reasonable steps include, but are not limited to, using IP verify unicast reverse path wherever appropriate and using IP address filtering wherever appropriate. Failure to cooperate with such corrective and preventive measures is a violation of TOUCHTONE policy. Notwithstanding anything herein to the contrary, a violation of this AUP by a customer shall be considered a violation of this AUP by such customer and TOUCHTONE may take immediate action, without regard to any cure periods in the TOUCHTONE customer’s applicable Service Agreement, in response to such violation, including without limitation termination of the customer’s services under the Agreement.
Usenet Newsgroups: TOUCHTONE places the following restrictions on newsgroup postings by its users. - no illegal content, including pyramid/ponzi schemes, infringing materials or child pornography, is permitted; - all postings should conform to the various conventions, guidelines and local culture found in each respective newsgroup and Usenet as a whole; - commercial advertising is typically off-topic and/or a violation of charter in most Usenet newsgroups. - posting twenty or more copies of the same article in a 45 day period or continued posting of off-topic articles after being warned is prohibited. Users who engage in such action using TOUCHTONE accounts will be charged the costs of labor to issue cancellations and respond to complaints, with a minimum charge of $200.00. Users who engage in such activity from another provider advertising or implicating, directly or indirectly, the use of any service hosted or provided by TOUCHTONE is prohibited and grounds for termination of those services to those users. - excessive cross-posting is prohibited. - posting articles with false header information is prohibited; - users may not issue cancellations for postings except those which they have posted themselves, those which have headers falsified so as to appear to come from them, or in newsgroups where they are the official moderator.
TOUCHTONE also is concerned with the privacy of on-line communications. In general, the Internet is neither more nor less secure than other common communications media, including mail, facsimile and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, TOUCHTONE urges its customers to assume that all of their on-line communications are insecure. TOUCHTONE cannot take any responsibility for the security of communications transmitted over TOUCHTONE's facilities. TOUCHTONE will comply fully, however, with all applicable laws concerning the privacy of its customers' on-line communications. In particular, TOUCHTONE will not intentionally monitor or disclose any private electronic mail messages sent or received by its customers unless required to do so by law. TOUCHTONE may, however, monitor its service electronically to determine that its facilities are operating satisfactorily. Also, TOUCHTONE may be required to disclose information transmitted through its facilities in order to comply with court orders, statutes, regulations or governmental requests. Finally, TOUCHTONE may disclose information transmitted over its facilities where necessary to protect TOUCHTONE and its customers from harm, or where such disclosure is necessary to the proper operation of the system.
Digital Millennium Copyright Act Policy – It is the policy of TOUCHTONE to respond expeditiously to claims of intellectual property infringement. TOUCHTONE will promptly process and investigate notices of alleged infringement and will take appropriate action under the Digital Millennium and Copyright Act (“DMCA” ) and other applicable intellectual property laws. Notices of claimed infringement should be directed to TouchTone Communications, P.O. Box 135, Whippany, NJ 07981.
To contact TOUCHTONE with any questions or comments, or any claimed violations of this AUP, call 800-900-5474 or e-mail business.support@touchtone.net.
These Terms of Service constitute the agreement ("Agreement") between TouchTone Communications, Inc. ("we," "us" or "TouchTone") and the user ("you," "user" or "Customer") of TouchTone's services and any related products or services ("Service"). This Agreement governs both the Service and any devices, such as an IP phone, Adapter, Analog Telephone Adapter or any other IP connection device ("Device" or "Equipment"), used in conjunction with the Service and it applies to all lines on each TouchTone account. BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ AND UNDERSTAND FULLY ITS TERMS AND CONDITIONS.
1. EMERGENCY SERVICES - 911 DIALING 1.1 911 Dialing.
Customers using TouchTone Business VoIP phone service will be provided access to basic emergency services (911) or enhanced emergency services (E911) as available. With enhanced emergency services (E911) when you dial 911 your telephone number and registered address is simultaneously sent to the local public-safety answering point (PSAP) and operators at that location are provided with all necessary information to send help or call you back if necessary. In areas that E911 is not available the PSAP is not equipped or capable of capturing or retaining your telephone number or address, you must be prepared to provide your information each and every time you call.
If you do not provide the correct physical address when you register for Services, or if you relocate to a new address and do not register the new address with TouchTone, 911/E-911 may fail in two ways: (i) 911/E-911 calls may be misdirected to the wrong emergency authorities, and (ii) emergency authorities will be given the wrong address for the origin of your E-911 calls. TouchTone transmits the physical address for 911/E-911 calls based on the information supplied by the customer. TouchTone is not responsible for incorrect addresses. Therefore, we recommend that you verify physical addresses for E-911 service with your local United States Postal Office.
Customer acknowledges and agrees that all TouchTone’s VoIP Services are Internet based, and that 911 or E911 services are different than traditional wire-line or Plain Old Telephone Service (POTS) service; and that these services will be unavailable should the customer lose power or Internet access regardless of cause. In order for the customer to have backup access to 911 and/or emergency services, the customer must purchase a PSTN connection from the local exchange carrier, or similar provider. Customer further agrees that the limitations of this feature have been fairly and accurately described before and after the installation of the TouchTone VoIP service. Customer agrees to inform of the potential complications arising from basic 911 or E-911 dialing. Specifically, customer acknowledges and agrees to inform all employees, guests and other third persons who may be present at the physical location where you utilize the Service of the important differences in and limitations of TouchTone’s 911 as compared with traditional public telephone 911.
1.2 Notify All Users. You should inform all employees, guests and other third persons who may be present at the physical location where you utilize the Service of the important differences in and limitations of VoIP 911 as compared with traditional public telephone 911.
1.3 Registration of Physical Location Required. For each line in service at the time of activation, customers will be required to register the physical address that the service will use. If the service is moved it will be the customer’s responsibility to notify TouchTone that they have moved and update TouchTone with the new physical address from where the service will be used Customers using soft phones or other portable devices will be held responsible to update their physical address for service location.
When you sign up for Service, you must provide a valid address within the U.S. This address will be filed as your service address. If you dial 911, your service address will be forwarded to emergency response personnel so that they can locate you.
1.4 Service Outages. (a) Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing. (b) Service Outages Due to Internet Outage, Suspension, or Disconnection of Broadband Service or Internet Service Provider ("ISP") Service. Service outages or suspensions or disconnections of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning. (c) Service Outage Due to Suspension or Disconnection of Your TouchTone Account. If the customer’s account is suspended for any reason, 911 calls will continue to function; however, if Service is disconnected, 911 will cease to work. (d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Your ISP, broadband provider, or other third party may intentionally or inadvertently block the ports over which the service is provided or otherwise impede the usage of the service. If you suspect that this has happened to you, you should alert us to this situation and we will work with you to attempt to resolve the issue. During the period that the ports are being blocked or your service is impeded, your service, including 911 Dialing, may not function. You acknowledge that TouchTone is not responsible for the blocking of ports by any third party or any other impediment to your usage of the service, and any loss of service, including 911 Dialing, which may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the service, you will continue to be responsible for payment of the service charges unless, and until, you disconnect the service in accordance with this Agreement. (e) Other Service Outages. If there is a service outage for any reason, such outage will prevent all service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
1.5 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the service as compared to traditional 911 dialing over traditional public telephone networks.
1.6 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither TouchTone nor its officers or employees may be held liable for any claim, damage or loss, and you hereby waive any and all such claims or causes of action arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless TouchTone, its officers, directors, employees, affiliates and agents, as well as any other service provider who furnishes services to you in connection with the service from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the service to be able to use 911 Dialing or access emergency service personnel. YOU ACKNOWLEDGE AND UNDERSTAND THAT TOUCHTONE'S ENTIRE LIABILITY IS LIMITED TO THE PRICE OF THE SERVICES PROVIDED. IN NO EVENT SHALL TOUCHTONE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, OR UNDERLYING SERVICE PROVIDERS BE LIABLE FOR ANY COSTS OR DAMAGES ARISING EITHER DIRECTLY OR INDIRECTLY FROM THE USE OF TOUCHTONE'S SERVICES INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, USE, DATA, GOODWILL OR BUSINESS OPPORTUNITIES OF ANY KIND OR NATURE WHATSOEVER, ARISING IN ANY MANNER FROM ANY CAUSE OF ACTION OR CLAIM RELATING TO THIS AGREEMENT OR TO THE SERVICES PROVIDED BY TOUCHTONE (INCLUDING, BUT NOT LIMITED TO TOUCHTONE’S VoIP SERVICES AND/OR INABILITY OF YOU OR ANY USER OF YOUR TOUCHTONE VoIP SERVICE TO BE ABLE TO DIAL 911, TO ACCESS EMERGENCY SERVICE PERSONNEL, TO ACCESS THE CORRECT PUBLIC SERVICE ANSWERING POINT ASSOCIATED WITH YOUR TELEPHONE NUMBER, OR TO CORRECTLY ROUTE AN EMERGENCY CALL IF YOU MOVE YOUR EQUIPMENT OUTSIDE OF YOUR SERVICE ADDRESS) UNLESS IT IS PROVEN THAT THE ACT OR OMISSION PROXIMATELY CAUSING THE CLAIM, DAMAGE, OR LOSS CONSTITUTES GROSS NEGLIGENCE, OR INTENTIONAL MISCONDUCT ON THE PART OF TOUCHTONE OR ITS UNDERLYING SERVICE PROVIDERS. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS TOUCHTONE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER UNDERLYING SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THIS AGREEMENT, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEY FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF YOUR TOUCHTONE VoIP SERVICE.
1.7 Alternate 911 Arrangements. If you are not comfortable with the limitations of the 911 service, you should consider having an alternate means of accessing traditional 911 services, such as a mobile phone or a measured POTS line.
2. SERVICE.
2.1 Term of Services. The Service is offered for the initial term of service specified in the Service Agreement (“Service Term”). The Initial Service Term shall begin on the Service Activation Date of the first order (the “First Order”). Following the Initial Service Term, Services shall automatically renew for an additional one (1) month term (each a “Renewal Term”) unless Customer notifies TouchTone in writing not less than thirty (30) calendar days prior to the end of the Initial Term (or any subsequent Renewal Term, as applicable), that it wishes to terminate such Service. The termination of any individual Service or Service Agreement will not affect Customer’s obligations to accept and pay for all other contracted services or orders. If at any time during the Term, Customer orders additional Services, TouchTone will issue a new Service Agreement detailing the Service Fees. Unless specifically agreed to in the Service Agreement, Service Fees for new orders shall be at the TouchTone prevailing rates at the time. The Service Term for any such additional orders shall carry a new Initial Service Term, equal in length to the Initial Service Term of the First Order.
2.2 Termination of the Agreement. This Agreement and any Services may be terminated by either party for cause: (a) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
2.3 Early Termination. If Customer wishes to terminate any Services under this Agreement prior to the expiration of the Term and such termination is not due to TouchTone’s breach of this Agreement, all non-recurring and monthly recurring charges set forth in each Service Agreement which would otherwise be due through the end of the Service Term in effect at the time, including all applicable taxes, will immediately become due and payable. Customer will also be responsible for paying an early termination fee of $50 per user/seat. The parties agree that these early termination charges are a reasonable estimate of anticipated actual damages and not a penalty.
2.4 Other Commitments. If you accept an equipment upgrade or other promotional or plan benefit (such as a free month of service, free installation, a rebate or other incentive), there may be a commitment associated with the benefit you accepted ("Commitment"). To the extent there is a Commitment, it begins on the date you activate the new equipment or accept the promotion or benefit. The Commitment period will be disclosed as part of the promotion or plan. If you disconnect service prior to the end of the Commitment period, you agree to pay TouchTone a recovery fee in an amount equal to the difference between the price you paid and the regular price of the good, service or other benefit you received at the time the Commitment period began. Recovery fees are cumulative, and in addition to any other charges or fees you may owe TouchTone, including any disconnection fees.
2.5 Use of Service and Device. If you subscribe to TouchTone's Business services, the Service and Device are provided to you as a business user or business traveler. You shall not resell or transfer the Service or the Device to another party without our prior written consent. You are prohibited from using the Service or the Device for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voice mail broadcasting, or fax or voice mail blasting. We reserve the right to immediately disconnect or modify your Service if we determine, in our sole and absolute discretion, that your use of the Service or the Device is, or at any time was, inconsistent with normal business or business travel usage patterns, or that you have at any time used the Service or the Device for any of the activities mentioned above or similar activities that are not compliant with TouchTone’s Reasonable Use Policy as outlined below, as well as those Terms listed under TouchTone’s Acceptable Use Policy on www.touchtone.net/terms.html.
2.6 Reasonable Use Policy. TouchTone’s Business VoIP calling plans and features are intended for small and home businesses. Normal, reasonable use on TouchTone unlimited business plans must be in accordance with this Reasonable Use Policy, our Terms of Service and consistent with the types and levels of usage by typical customers on the same small or home business calling plan. Unauthorized or excessive use beyond that normally experienced by typical small or home business customers may create network congestion that will manifest itself in increased busy signals for themselves and others, and may result in service termination.
Over 95% of TouchTone’s unlimited calling plan customers use less than 750 minutes per month and do not have any unusual usage patterns in terms of unique numbers called, high call forwarding/transferring usage and so on. A customer's aggregate usage may be considered outside of normal use if it exceeds 750 minutes per month IN COMBINATION with one or more of the following, including, but not limited to, excessive: • unique numbers called; • call lengths; • call forwarding/transferring; • conference calling; • short duration calls; • number of calls made during a month, • number of calls made to a conference calling service during a month; • number of calls made during business hours; • number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame; or • other abnormal calling patterns indicative of an attempt to evade enforcement of this Reasonable Use Policy Based on such a combination, TouchTone may determine that abnormal, unreasonable or impermissible usage is occurring when compared to typical customers on the same calling plan, and may take appropriate steps described below to enforce this Policy and the Terms of Service. TouchTone may also determine that abnormal, unreasonable or impermissible usage is occurring, and may take appropriate steps described below even if the number of minutes used is not excessive, when a customer's calling patterns during more than one month reflect excessive: • unique numbers called; • call lengths; • frequency of call forwarding/transferring; • conference calling; • short duration calls; • number of calls made during a month; • number of calls made to a conference calling service during a month; • calls made during business hours; • number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame; or • other calling patterns indicative of an attempt to evade enforcement of this Reasonable Use Policy
2.7 Prohibited Uses; Unlawful Uses and Inappropriate Conduct. You shall use the Service and the Device only for lawful purposes. You shall not use the Service or the Device in any way that is improper or inappropriate, including in a manner that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or any similar behavior. In addition, you shall not use the Service or the Device to impersonate another person; send bulk unsolicited messages; use robots, data mining techniques or other automated devices or programs to catalog, download, store or otherwise reproduce or distribute information from the Service or use any such automated means to manipulate the Service; use the Service to violate any law, rule or regulation; violate any third party's intellectual property or personal rights; or exceed your permitted access to the Service. We may, but are under no obligation to, monitor usage of the Service for violations of this Agreement. We may remove or block any or all communications if we suspect a violation of this Agreement or if we deem it necessary in order to protect the Service, or TouchTone, its parent, affiliates, directors, officers, agents and employees from harm. We reserve the right to immediately disconnect your Service without notice, if, in our sole and absolute discretion, we determine that you have used the Service or the Device for an unlawful purpose. In the event of such disconnection you will be responsible for all fees and charges due under this Agreement, plus a disconnection fee (if applicable), all of which will be immediately due and payable. If we believe that you have used the Service or the Device 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. In addition, TouchTone will provide customer and call detail information in response to lawful government requests, subpoenas and court orders, or law enforcement requests where the failure to disclose the information may lead to imminent harm to the customer or others. Furthermore, TouchTone reserves all of its rights at law and equity to proceed against anyone who uses the Services illegally or improperly.
2.8 Use of Service and Device by Customers Outside the United States. Although it is possible to use the Service outside of the U.S., TouchTone offers and supports services only in the United States. TouchTone Service is designed to work generally with unencumbered high-speed Internet connections. However, if the high-speed Internet connection you are using is not within a TouchTone service area, and/or your ISP or other broadband provider places restrictions on the usage of Business VoIP services, TouchTone does not represent or warrant that use of the Service by you as permitted by such other jurisdiction or by any ISP or broadband provider. You will be solely responsible for any violations of local laws and regulations or violations of ISP and broadband provider terms of service resulting from such use. We reserve the right to disconnect your Service immediately if we determine, in our sole and absolute discretion, that you have used the Service or the Device in violation of laws of jurisdictions outside of TouchTone service areas.
2.9 Copyright; Trademark; Unauthorized Usage of Device; Firmware or Software. (a) Copyright; Trademark. The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all
Services, information, documents and materials on our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of 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. All other trademarks are the property of their respective owners.
(b) Unauthorized Usage of Device; Firmware or Software. You (I) have not been granted any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, 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, and (ii) expressly agree that the Device is exclusively for use in connection with the Service and that we will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. We reserve the right to prohibit the use of any interface device that we have not provided to you. 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.
2.10 Tampering with the Device or Service. You shall not change the electronic serial number or equipment identifier of the Device. 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.
2.11 Theft of Service. You shall not use or obtain the Service in any manner that avoids TouchTone policies and procedures, including in an illegal or improper manner. You shall notify us immediately, in writing or by calling our Business Support Department, if the 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, you must provide your account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the disconnection of your Service 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 whether or not it involves a stolen Device. TouchTone reserves all of its rights at law and equity to proceed against anyone who uses the Services or Device illegally or improperly.
2.12 Equipment & Devices (“Equipment”, “Devices”) In all cases where TouchTone supplies network equipment and/or telephone hardware and devices for use in deploying its service, it will retain rightful ownership of the same. For equipment that is purchased directly from TouchTone, Customer will retain rightful ownership. Devices distributed by TouchTone in connection with delivering its service are not user serviceable and are locked by TouchTone to prohibit tampering. The settings, firmware, and architecture of these devices are the intellectual property of their rightful owners. Customer acknowledges that they are liable for the safe keeping of TouchTone’s equipment, and its safe return in cases of upgrade, replacement, or cancellation of service. TouchTone retains all rights to recover possession of the Equipment from Customer. Any attempt to sell or transfer ownership of the equipment, unless purchased from TouchTone first, will be considered illegal conveyance. Customer agrees that neither it nor its agents shall modify, damage, alter, fail to maintain, or destroy TouchTone provided Equipment or any portion thereof, and if any such action occurs, any applicable warranties shall be null and void, and Customer shall pay TouchTone the full replacement cost of the Equipment as listed on www.touchtone.net. Customer is responsible for all lost or stolen equipment and shall pay TouchTone the full replacement cost of the Equipment. For Equipment not purchased directly from TouchTone, upon termination of the Service customer agrees to immediately return all TouchTone provided Equipment within fifteen (15) business days of termination in the original packaging with the UPC or bar code intact. You must also include all components, manuals and registration card(s). You are responsible for return shipping of the equipment. Shipping and handling charges are non-refundable. If you do not return any phones and/or equipment before the required date, you will be charged the full purchase value as listed on TouchTone's Website. If any equipment is not received by TouchTone within fifteen (15) days, Customer’s credit card will be charged with the full purchase value (Equipment Replacement Value) as listed on TouchTone's Website. However, if Customer later returns the equipment, TouchTone will retain a prorated charge based on the rental equipment monthly recurring charge of the device listed on www.touchtone.net, plus applicable minimum usage requirements, taxes and the cost of repair for any damage for which Customer is responsible, and the remainder of the Equipment Replacement Value will be credited to Customer’s credit card. For additional information see “VoIP Equipment Rental Terms and Conditions” listed on www.touchtone.net.
2.13 Number Transfer on Service Termination. Upon the disconnection of your Service, we may, in our sole and absolute discretion, release to your new service provider the telephone number that you ported (transferred or moved over) to us from your previous service provider and used in connection with your Service if: • such new service provider is able to accept such number; • your account has been properly disconnected; • your account is completely current, including payment for all Service charges and applicable disconnection fees; and • you request the transfer upon disconnecting your account. 2.14 Service Levels. TouchTone will use commercially reasonable efforts to minimize service disruptions and outages. In the event of service disruptions or outages, Customer’s sole remedy, and TouchTone sole obligation, shall be to provide the service level credits and/or remedies for the applicable Service in accordance with the Service Level Agreement set forth on TouchTone’s Web site at www.touchtone.net/terms . TouchTone may update the Service Level Agreement from time to time.
2.15 Ownership and Risk of Loss. You will own the Device and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned to us in accordance with this Agreement.
2.16 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, 900 or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
2.18 Directory Listing. The phone numbers you obtain from us may not be listed in any telephone directories. As a result, someone with your phone number may not be able to utilize a reverse directory to lookup your address.
2.19 Incompatibility With Other Services. (a) Security and Alarm Systems. The Service may not be compatible with security and alarm 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 security system with the Service. (b) Certain Broadband, Cable Modem, and Other Services. You acknowledge that the Service may not be compatible with certain cable broadband service, certain versions of TiVO, and there may be other services with which the Service may be determined to be incompatible. 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.
2.20 Service Support. We offer varying types and levels of customer service depending upon a number of factors, including the Service you are using and the problems you are experiencing. We assume no obligation to provide support services for any third party products or services, or problems with the Service caused by third party products or services. Unless you have entered into a separate services agreement with us, we may change the customer service options at any time.
2.21 Other Networks; Approval and Usage. Service may include the ability to transmit data through third party networks, public and private. Customer acknowledges that use of or presence of third party networks may require approval of the owners or operators of such third party networks and will be subject to any acceptable usage policies such third party networks may establish. TouchTone will not be liable for any failure to obtain such approval or any violation by Customer of such policies. Customer understands that TouchTone does not own or control third party networks, and agrees that TouchTone shall not be responsible or liable for the performance or non-performance of third party networks or within interconnection points between the Service and third party networks.
3. CHARGES; PAYMENTS; TAXES; DISCONNECTION 3.1 Billing. When the Service is activated, you must provide us with a valid e-mail address and a payment method that we accept. We reserve the right to stop accepting your payment method or your payments. If your payment method expires, you close your account, your billing address changes, or your payment method is cancelled and replaced on account of loss or theft, you must advise us at once. We will bill all charges, fees, applicable taxes and surcharges for each prescribed Service Term, in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears) to your payment method, including, but not limited to: activation fees; Service fees; usage charges; international usage charges; advanced feature charges; premium services/add-ons, equipment purchases; regulatory recovery fees; Emergency 911 Cost Recovery Fee; 911 fees; Federal Universal Service Fee; federal, state and/or local taxes; disconnection fees; and shipping and handling charges.
You can learn the amount of such fees and charges by calling TouchTone Business Support at 1-800-900-5474. TouchTone may introduce new products and services at special introductory pricing. Introductory pricing may change at TouchTone's discretion. Where required by law, notification of invoices will be sent to you via your e-mail address on file with us. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $1000. TouchTone bills usage charges in six second increments that are rounded up to the next six second increment, there is a minimum of 18 (three increments) per call, unless otherwise stated. TouchTone bills fractional usage charges in full cents that are rounded up when the value is $.005 or more and down when the value is less than $.005, unless otherwise stated.
The above fees are defined as follows:
Activation Fee (Setup Fee)- This fee covers charges for setting up your account and activating you on our system.
Service Fee - This is the basic charge associated with your service. This fee includes the calling charges defined by your plan, the features associated with your plan, and basic account services.
Usage Charges - If you exceed the number of calling minutes on your plan, TouchTone will bill you for the minutes you use above your allowance. TouchTone also bills for calls to directory assistance and other information services.
International Usage Charges - These are the fees associated with calls made to locations outside of the U.S., Canada, Puerto Rico, and select countries listed on www.touchtone.net. International usage to these countries depends on your selected Service plan. For rates, please visit www.touchtone.net.
Advanced Features, Add-ons, Premium Services - TouchTone charges additional fees for enhanced features, add-ons, and other added products and services.
Equipment Purchases - In most instances, you will pay for equipment associated with your TouchTone service with a selected payment method. However, there may be occasions when TouchTone will offer you the option to bill equipment to your account.
Regulatory Recovery Fee - A regulatory recovery surcharge applies to each phone number. TouchTone uses this fee to pay our regulatory-related fees and expenses, including taxes, number portability charges, and related legal fees.
Emergency 911 Cost Recovery Fee applies to each line of service. This fee is used to recover costs directly associated with developing, implementing and maintaining a nationwide E911 in compliance with FCC regulations, 911 dialing and the national 911 emergency call center.
Taxes - TouchTone is required to bill and collect local, state and federal taxes imposed on TouchTone customers by the various taxing authorities. TouchTone passes all taxes it collects on to the appropriate taxing authority.
911 Fees - State and/or local governments may assess fees on TouchTone to pay for emergency services in your community. TouchTone bills and collects 911 fees from its customers and remits such fees to the appropriate authority. Depending on where you live, these fees can vary widely. TouchTone is committed to supporting public safety services and resources in your State. For more information, and to learn more about the fees collected in your community for emergency services, contact your state or local elected official.
Federal Universal Service Fee – A monthly charge that recovers the contributions that TouchTone, as a Hosted PBX phone service provider, must make to the federal Universal Service Fund (USF). This fund supports the telecommunications needs of low-income households, schools, libraries, rural hospitals, and consumers living in high-cost service areas. This fee is applied to Customer's interstate and international charges at the same rate applicable to TouchTone's USF contributions and may be subject to periodic adjustment.
3.2 Disputed Invoice Charges. If Customer disputes a charge in good faith, it may withhold payment of that charge so long as Customer (A) makes timely payment of all undisputed charges; and (B) within 30 days of the invoice date, provides TouchTone with a written explanation of the reasons for Customer's dispute of the charge. Customer must cooperate with TouchTone to promptly resolve any disputed charge. If TouchTone determines, in good faith, that the disputed charge is valid, TouchTone will notify Customer and, within five business days of receiving notice, Customer must pay the charge. If the dispute relates to billing errors, TouchTone may credit or debit, as applicable, the net difference between any discovered overcharge or undercharge. This provision does not modify any other payment dispute provisions.
3.3 Payment and Collection. (a) Payment. Your subscription to the Service authorizes us to collect from selected payment method on the Service Agreement. This authorization will remain valid until thirty (30) days after we receive written notice from you terminating our authority to charge your payment method, whereupon we will charge you for the disconnection fee (if applicable), and any other outstanding charges, and disconnect your Service. We may disconnect your Service at any time in our sole and absolute discretion if any charge to your payment method is declined or reversed, your payment method expires and you have not provided us with a valid replacement payment method or in case of any other non-payment of account charges. (b) Collection. If your Service is disconnected, you will remain fully liable to us for all charges pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney's fees. (c) Notices. You understand that it is difficult for TouchTone to distinguish between credit and debit cards. You agree to waive your rights under Regulation E to receive ten (10) days advance notice from TouchTone regarding the amount that TouchTone will debit from your account. TouchTone may send you messages about your billing from time to time, but TouchTone is not obligated to do so. TouchTone may change or cease its messages at any time without notice to you.
3.4 Disconnection; Discontinuance of Service. We reserve the right to suspend or discontinue the Service generally, or to disconnect your Service, at any time in our sole and absolute discretion. If we discontinue the Service generally, or disconnect your Service without a stated reason, you will only be responsible for charges accrued through the date of disconnection, including a pro-rated portion of the final Service Term charges. If your Service is disconnected on account of your breach of any provision of this Agreement, you will be responsible for all charges through the end of the current Service Term, including unbilled charges, plus the disconnection fee (if applicable), all of which will immediately be due and payable. TouchTone will pursue collection for unpaid amounts on disconnected accounts and may report to credit bureaus.
3.5 Taxes. State and local governments may assess taxes, surcharges and/or fees on your use of TouchTone service. These charges may be a flat fee or a percentage of your TouchTone charges and may change from time to time without notice. These charges are based on the rates applicable to the address you provided to us. 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 a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your payment method 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.
3.6 Disconnection Fee. You will be charged a disconnection fee of $50 per user (seat) if your Service is disconnected, subject to applicable state and local laws, before completion of the initial term.
3.7 Payphone Charges. If you use any toll free feature offered either now, or in the future, we will be entitled to recover from you any charges imposed on us either directly or indirectly in connection with toll free calls made to your number. We may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as we deem appropriate for the recovery of these costs.
3.8 Charges for Directory Calls (411). Directory assistance is included at the then current rate. Transferred/Forwarded Directory Assistance calls will be charged at $0.75 per call.
4. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES
4.1 Limitation of Liability. We will not be liable for any delay or failure to provide the Service, including 911 Dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following: • an act or omission of an underlying carrier, service provider, vendor or other third party; • equipment, network or facility failure; • equipment, network or facility upgrade or modification; • 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; • equipment, network or facility shortage; • equipment or facility relocation; • service, equipment, network or facility failure caused by the loss of power to you; • 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; • any act or omission by you or any person using the Service or Device provided to you; or • 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. Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period.
4.2 Disclaimer of Liability for Damages. IN NO EVENT WILL TOUCHTONE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY, 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.
4.3 Indemnification and Survival. (a) Indemnification. You shall defend, indemnify, and hold harmless TouchTone, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) 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 the Device. (b) Survival. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.
4.4 Mutual Provisions. Each party's indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
4.5 No Warranties on Service. WE MAKE NO 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 CUSTOMER'S 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 TOUCHTONE NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF TOUCHTONE'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY TOUCHTONE OR TOUCHTONE'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
4.6 Device Warranties (a) Limited Warranty. Except as set forth herein, if you received a Device from us and the Device included a limited warranty at the time of receipt, you must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation. (b) No Warranty. IF A LIMITED WARRANTY DID NOT COME WITH YOUR DEVICE, YOU ARE ACCEPTING THE DEVICE "AS IS". YOUR DEVICE IS NOT ELIGIBLE FOR REPLACEMENT, REPAIR OR REFUND AFTER THE RISK FREE TRIAL PERIOD. (c) Retail Customer Limited Warranty. For Retail Customers only, we will provide a limited warranty on the Device as to manufacturing defects only for a period of one (1) year from the date of purchase. This Retail Customer limited warranty does not apply to any defect or failure other than a manufacturing defect, and, without limiting the generality of the foregoing, does not apply to any defect caused by damage in transit, retailer handling or Retail Customer handling. A Retail Customer's sole remedy for any breach of this Retail Customer limited warranty is to obtain a repaired or replacement Device, by following the return procedures set forth in Section 2.10. Retail Customer must include with the returned Device a letter stating that the Retail Customer is returning the Device for warranty repair or replacement and stating the nature of the defect. The Retail Customer limited warranty will also apply in lieu of the limited warranty included with the Device if such included limited warranty is less favorable to Retail Customer than that contained herein. (d) Disclaimer. OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE 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 DEVICE OR ANY FIRMWARE OR SOFTWARE IS "ERROR FREE" OR WILL MEET CUSTOMER'S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE. DEVICE WARRANTIES DO NOT APPLY TO BUSINESS PLUS CUSTOMERS.
4.7 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.
4.8 Content. You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using your Service or Device (each such person, a "User"). You shall assure that your and your Users’ use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to disconnect or suspend your Services and remove your or your 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. Our action or inaction under this Section will not constitute any review or approval of your or Users’ use or content.
5. MISCELLANEOUS
5.1 Governing Law. The law of the state of your residence shall govern this Agreement as well as the relationship between you and us except to the extent such law is preempted by or inconsistent with applicable federal law. Notwithstanding the foregoing, because this Agreement evidences a transaction in interstate commerce, the Federal Arbitration Act shall govern the interpretation and enforcement of the arbitration provision set forth below.
5.2 Mandatory Arbitration and No Jury Trial. 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 Device 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 Whippany, New Jersey. 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 AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, NEW JERSEY.
5.3 No Waiver of Rights. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
5.4 Entire Agreement. This Agreement, including any future modifications as may occur within the terms of the Agreement and the rates for Services found on our website, constitute the entire agreement between you and TouchTone and govern the use of the Service by you, employees, guests and other third persons. This Agreement supersedes any prior agreements between you and TouchTone and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
5.5 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.
6. FUTURE CHANGES TO THIS AGREEMENT We may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on www.touchtone.net/terms.html. Such changes will become binding to you on the date they are posted to our website and no further notice by us is required upon your continued use of the Service. The Agreement as and when posted supersedes all previously agreed to electronic and written terms of service, including, without limitation, any terms included with the packaging of the Device and also supersedes any written terms provided to Customers in connection with retail distribution, including, without limitation, any written terms enclosed within the packaging of the Device.
7. NOTICES. Notices regarding the following may be posted on TouchTone’s website: (i) modifications, impositions or increases to regulations and Fees; (ii) new or modified documentation, including but not limited to TouchTone Service Level Agreement, Privacy Policy and other internal documents; (iii) changes to rates, other than those affecting Customer under this Agreement; and (iv) new Services and information. Notices regarding (a) material changes to this Agreement; (b) internal or external changes materially impacting TouchTone’s ability to do business; (c) breach; (d) termination; or (e) any other material information required to be in writing, will be in writing and deemed to have been given if delivered personally, by confirmed email or facsimile, or on the third day after mailing by first-class, registered or certified mail, postage prepaid to either Party at the addresses given above in the heading to this Agreement or to such other address as a Party may, from time to time, designate by notice to the other Party.
8. PRIVACY TouchTone Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. TouchTone is not liable for any lack of privacy which may be experienced with regard to the Service.
9. EXPORT CONTROLS You agree to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security (the "U.S. Export Controls"). Without limiting the generality of the foregoing, you expressly agrees that you shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Service or any direct product thereof to any destination, company or person restricted or prohibited by U.S. Export Controls.
10. COPYRIGHT INFRINGEMENT; DIGITAL MILLENIUM COPYRIGHT ACT (DMCA) NOTICE. Materials may be made available via the Service by third parties not within our control. We are under no obligation to, and do not, review content posted on the Service for the inclusion of illegal or impermissible content. However, we respect the copyright interests of others. It is our policy not to permit materials known by us to infringe another party's copyright to remain on the Service. If you believe any materials on the Service infringe a copyright, you should provide us with written notice that at a minimum contains: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (v) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. All DMCA notices should be sent to our designated agent as follows: TouchTone Legal Department, Attn: DMCA Notices, PO BOX 135, Whippany, NJ 07981.
1. This is a Legally Binding Agreement. By enrolling in or using TouchTone Communications’ electronic bill payment service (one-time or recurring) via TouchTone’s E-Bill Site, you are voluntarily choosing to use this optional service and agree to these terms and conditions. If these terms and conditions are not acceptable to you, you should not use this Service and should immediately terminate your TouchTone E-Bill Site enrollment. You can do this online or by calling 800-266-4006. Following termination, you can make payments by mail over the phone.
2. Additional Terms and Conditions. These Terms and Conditions (“Terms”) are in addition to the terms and conditions listed on www.touchtone.net/terms.html.
3. One-Time and Recurring Payments. You may use the TouchTone’s E-Bill Payment Site online to make either a one-time payment or automatic recurring payments (“AutoPay”). Payments will be made by charging your credit card account. By using the TouchTone’s E-Bill Payment Site for a one-time payment of a billing statement, you authorize TouchTone to obtain payment in the amount due for such billing statement from your designated credit card account. By using the TouchTone’s E-Bill Payment Site for AutoPay, you authorize TouchTone to obtain payment in the amount of the total due for each monthly billing statement from your designated credit card account on a recurring basis until you terminate the authorization.
4. Timely Payment is Solely Your Obligation. Timely payment of your TouchTone billing statement at all times remains your sole responsibility. If charge to your credit card is rejected, or for any other reasons not completed, and TouchTone does not receive payment in full by the due date, you remain fully responsible not only for the amount of the bill but for any late fees and other charges.
5. Rejected Payments Will Result in Additional Charges. If your credit card company refuses payment for insufficient funds, closed or unauthorized accounts, or any other reason, you will be charged a returned item fee for each failed attempt made in addition to any charges your financial institution may assess. Also, if such payment is refused, your TouchTone services may be suspended. If initially rejected, TouchTone may, but is not obligated to, make additional, multiple attempts to execute the transaction for up to 30 days following the initial refusal. At the end of the 30-day period, if there has not been a successful transfer, your card payment request will be terminated.
6. Accuracy of Payment Information. You agree that all payment account (e.g., account number) and/or payment card information is complete and accurate and that you have full authority to authorize payment of your billing statements by use of such account/payment card. You also agree to keep all such information current and promptly update your online E-BILL profile whenever such payment account or payment card information changes.
7. Payment of Monthly Bills. If you choose to enroll in AutoPay to authorize automatic recurring payments, TouchTone will send your monthly billing statement to you (or, if you have chosen to receive your billing statement in electronic form, you will be notified via email when your electronic billing statement is available for viewing) at least 10 days prior to your payment due date, and longer where required by applicable law. The amount shown as due on your monthly bill will constitute notice to you of any variance in amount from the bill payment amount paid in the previous month. The balance shown as due on your billing statement will be deducted within 10 days of the “Invoice Date” that is identified on your monthly billing notice or your monthly statement (invoice). You may have more time under applicable state law to pay your bill; the TouchTone’s E-Bill Payment Site is a voluntary service and you agree that TouchTone may submit credit card payment request for processing prior to the due date of your billing statement in an attempt to ensure timely payment in the event of any unforeseen processing delays. If you do not want your payment processed prior to the bill due date, you should stop using the TouchTone’s E-Bill Payment Site and make payments by mail.
8. Responsibility for Fees. Any fees imposed by your credit card company resulting from the use of the TouchTone’s E-Bill Payment Site to pay your bill is your sole responsibility.
9. Cancelling Electronic and Automatic Payments. You may terminate your participation in the TouchTone’s E-Bill Payment Site or AutoPay program at any time by either logging into your online TouchTone account and cancelling your participation or by calling TouchTone at 800-266-4006. To cancel your next payment, we must receive notification from you in time to cancel the transaction. For payments made by credit card, you must tell us at least four (4) days prior to the payment date. After those times, payment instructions cannot be cancelled.
10. Valid Email Address. In order to make sure that TouchTone can contact you with important notices and other information from time to time, you must have and maintain a valid email account and consent to delivery of all legal notices to that email account. If you change your email account while using the TouchTone’s E-Bill Payment Site, you must promptly modify your email contact information on your TouchTone profile. You also confirm to TouchTone that you are able to access all information provided to you in electronic form.
11. Protection of Password. It is your responsibility to protect the confidentiality of any user name or password used in connection with the TouchTone E-Bill Payment Site. You should not share your credentials with any other person. If you believe that your password or other means of access to your account has been lost or stolen or that someone may attempt to obtain access to your account without your consent, you must immediately notify us 800-266-4006.
We reserve the right to add to, remove, change or terminate access to any of the content or functions of the service without giving specific notice to you. It is your responsibility to review these Terms from time to time on our website, www.touchtone.net/terms.html, to be aware of any such change, and your continued use of the service will indicate your agreement to any such change.
By enrolling in TouchTone E-Bill (Service) you agree that as a condition of using the Services you consent to receiving all transactional e-mail communications from TouchTone Communications which are directly related to your use of the Services or to your account(s) and to any disclosures that may result from TouchTone Communications sending account communications to you via the e-mail address you provide. For more information about our privacy and information-sharing practices, please visit the Terms page of the E-Bill Website.
BECAUSE E-MAIL IS NOT A SECURE METHOD OF COMMUNICATION OVER THE INTERNET, WE RECOMMEND YOU DO NOT SEND CONFIDENTIAL INFORMATION BY E-MAIL. PLEASE BE AWARE YOU CANNOT USE E-MAIL TO INITIATE TRANSACTIONS ON YOUR ACCOUNT(S).
Password and Security • To use the Service, you must complete the online registration process by providing TouchTone Communications with complete and accurate information during your registration process. • As part of the registration process you will choose a password to access your account through the Service. You agree not to give or make available your password or provide other means to any unauthorized individuals to access the Service. • TouchTone Communications will send an e-mail, to the e-mail address you provided, confirming your Service registration. It is your responsibility to keep this e-mail address current and to inform TouchTone Communications of any changes to your e-mail address. • Except as provided herein, you are responsible for all bill payments made through the Service using your password. • Except as provided herein, you are entirely responsible for any and all activities that occur through use of your password with the Service. You could be held liable for losses incurred by TouchTone Communications or another party due to someone else's use of your password or account with the Service. • Except as provided herein, TouchTone Communications will not be responsible for any loss you may incur as a result of someone else's misuse of your password banking information, credit or debit card information or account through the Service either with or without your permission. • Contact TouchTone Customer Service at 1-800-266-4006 immediately if you believe that your Password or other means to access your account through the Service has been lost or stolen or that someone may attempt to use the Service with your Password but without your consent.
Errors and Questions In case of errors or questions about your online transactions, you should contact us as soon as possible. If you think that your TouchTone Communications bill statement is wrong or you need more information about a transaction listed on the statement, TouchTone Communications must hear from you no later than 60 days after you received the FIRST statement on which the problem or error appeared. You must:
1. Tell TouchTone Communications your name and account number; 2. Describe the error or the transaction you are unsure about, and explain as clearly as you can why you believe it is an error or why you need more information; and, 3. Tell TouchTone Communications the dollar amount of the suspected error. 4. If you tell TouchTone Communications verbally, TouchTone Communications may require that you send your complaint in writing within 10 Business Days after your verbal notification. TouchTone Communications will tell you the results of its investigation within 30 Business Days after we hear from you and will move to correct any error promptly. If TouchTone Communications needs more time, however, TouchTone Communications may take up to 45 Business Days to investigate the complaint or question. If TouchTone Communications decides there was no error, TouchTone Communications will contact you with an explanation within 3 Business Days after it finishes the investigation.
Disclosure of Account Information to Third Parties By completing the enrollment process you are authorizing TouchTone Communications to display billing and payment information on a secured Internet site. TouchTone Communications will disclose information to third parties about your account or the transactions you make ONLY in the following situations:
1. Where it is necessary for completing transactions; 2. In order to comply with a governmental agency or court orders; 3. If you give us your written permission; 4. As otherwise permitted by this Agreement; or 5. As otherwise permitted by any TouchTone Service or Product Agreement.
Charges There are no charges to you associated directly with the Service. Any fees associated with your Account will continue to apply. You are responsible for any and all telephone access fees and/or Internet service fees that may be assessed by your telephone and/or Internet service provider.
In the Event a Service Transaction Is Returned In using the Service, you are requesting the Service to make payments for you from your Account. If TouchTone Communications or Service Provider are unable to complete the transaction through the Service for any reason associated with your Account (for example, there are not sufficient funds or credit in your Payment Account to cover the transaction), the transaction will not be completed. In some instances, you will receive a return notice from TouchTone Communications. In such case, you agree that:
1. You will reimburse TouchTone Communications immediately upon demand the transaction amount that has been returned to TouchTone Communications. 2. You shall be liable for late payment charges, insufficient fund charges, or any other applicable charges. 3. TouchTone Communications is authorized to report the facts concerning the return to a credit-reporting agency.
Alterations and Amendments TouchTone Communications reserves the right to change this Agreement from time to time, including without limitation, with respect to applicable fees and service charges. Further, TouchTone Communications and/or the Service Provider may, from time to time, revise or update the programs, services, and/or related material that may render obsolete all prior versions of such programs, services and/or material. You are responsible for regularly reviewing this Agreement. Your continued use of the Service shall constitute your agreement to this Agreement and all amendments to this Agreement.
Email Changes: Updating your Contact Information It is your responsibility to keep your email address on file up to date so that TouchTone can communicate with you electronically. You understand and agree that if TouchTone sends you an electronic Communication but you do not receive it because your email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, TouchTone will be deemed to have provided the Communication to you.
Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add TouchTone’s support e-mail addresses, support@touchtone.net and business.support@touchtone.net, to your email address book so that you will be able to receive the Communications we send to you.
Termination or Discontinuation In the event you wish to discontinue use of the Service, you can do so by contacting TouchTone Customer Service at 1-800-266-4006 or by doing so through the TouchTone E-Bill site.
TouchTone Communications may terminate the Service and/or revoke your right to use this Service at any time for any or no reason. Neither termination nor revocation shall affect your liability or obligations under this Agreement.
Terminating your Service account does not cancel your services from TouchTone Communications. You are responsible for arranging for payment for your subscription services and you will be billed accordingly. If you wish to terminate your services from TouchTone Communications, you will need to call TouchTone Communications to make the necessary arrangements.
Information Authorization Your enrollment in the Service may not be fulfilled if TouchTone Communications and/or the Service Provider cannot verify your identity or other necessary information. Through your enrollment in the Service, you agree that TouchTone Communications and/or its Service Provider reserve the right to request a review of your credit rating at our own expense through an authorized bureau. In addition, you agree that TouchTone Communications and/or its Service Provider reserve the right to obtain financial information regarding your account from a financial institution to resolve payment-posting problems.
How to Contact TouchTone Customer Service You may call 1-800-266-4006 or e-mail support@touchtone.net.
Governing Agreements and Law In addition to these Terms and Conditions, you agree to be bound by and will comply with the requirements of all other agreements that TouchTone Communications provides you with, and all other rules and regulations incorporated or referenced in any product or service agreement between you and TouchTone Communications and any funds transfer systems that TouchTone Communications uses, and applicable state and federal laws and regulations.
Disputes In the event of a dispute regarding any service or product of TouchTone Communications, you and TouchTone Communications agree to resolve the dispute by looking to the applicable Agreement. You agree that, with regard to the Service, this Agreement and the any TouchTone Service Agreements, together constitute the complete and exclusive statement of the agreement between you and TouchTone Communications and that they supersede any proposal or prior agreement, oral or written, and any other communications between you and TouchTone Communications relating to the Service. If there is a conflict between what an employee of the Service Provider or TouchTone Communications says and this Agreement, this Agreement will prevail. If there is a conflict between the terms of any TouchTone Communications agreements, the primary agreement for the particular product or service will prevail, as determined by TouchTone Communications
We reserve the right to add to, remove, change or terminate access to any of the content or functions of the service without giving specific notice to you. It is your responsibility to review these Terms from time to time on our website to be aware of any such change, and your continued use of the service will indicate your agreement to any such change.
1. GENERAL. 1.1. Applicability. Thank you for selecting TouchTone as your provider for communications services. These Terms and Conditions contain general provisions that apply to all TouchTone Products and Services sold under a TouchTone Agreement or TouchTone Service Order (TSO). "Agreement" and/or "Service Order" refers to the written contract signed by Customer for the purchase of TouchTone Products and Services, its attachments, these Terms and Conditions, other documents incorporated by reference, and the related Order(s). Customer's use of a particular TouchTone Product or Service is also governed by the related product or service-specific terms and conditions ("Product specific Terms").
1.2. Definitions A. "Affiliate" is a legal entity that directly or indirectly controls, is controlled by, or is under common control with the party. An entity is considered to control another entity if it owns, directly or indirectly, more than 50% of the total voting securities or other such similar voting rights. B. "Commencement Date" is the first day of the first bill cycle in which TouchTone bills monthly recurring charges or usage charges. Unless defined otherwise in the Agreement, the Term begins on the Commencement Date. C. "Effective Date" is the date both parties have signed the Agreement. D. "Order" means a written, electronic or verbal order, submitted or confirmed by Customer and accepted by TouchTone that identifies specific TouchTone Products and Services and the quantity ordered. Verbal Orders are deemed confirmed upon Customer's written acknowledgment or use of Products or Services. "Order Term" is the term designated for an individual Order. E. "Product(s)" includes equipment, hardware, software, cabling or other materials sold or leased to Customer by or through TouchTone as a separate item from, or bundled with, a Service. F. "Service(s)" means communications services, including basic or telecommunications services, information or other enhanced services, provided to Customer by or through TouchTone under the Agreement, excluding Products. G. "TouchTone" as used in these Terms and Conditions means the TouchTone company identified in the Agreement or Order as providing the specific Products or Services. H. "TouchTone Schedule(s)" refers to Schedules that contain the terms and conditions governing TouchTone's provision of certain Services.
2. TERM. "Term" as used in these Terms and Conditions refers to the term defined in the Agreement. These Terms and Conditions apply from the Effective Date until all Orders issued during the Term have expired or terminated.
3. CHARGES.
3.1. Orders A. Rates. During the Order Term, Customer will pay TouchTone the rates and charges for a particular Product or Service as set forth in the Agreement. B. Cancellation. TouchTone will notify Customer of rejected Orders. Customer may cancel an Order at any time before TouchTone ships the Order or begins performance, but Customer must pay any actual costs incurred by TouchTone due to Customer's cancellation. C. Customer Purchase Orders. The terms and conditions in any Customer-issued purchase order accepted by TouchTone will have no force or effect other than to denote quantity and the Product or Service requested.
3.2. Invoicing
A. Commencement of Invoicing. Unless otherwise specified in the Agreement, TouchTone may begin invoicing Customer in full for non-recurring and recurring charges on the later of: (1) the date the Products or Services are installed and made available; (2) the delivery date specified in the Order. B. Delays. If TouchTone cannot deliver the Product or Service by the delivery date specified in the Order due to a Customer-caused delay, TouchTone may bill Customer as of the delivery date specified in the Order, or if no date is specified, any time after 30 days from the Effective Date.
3.3. Fixed Rates and Percentage Discounts. Except as expressly stated otherwise in the Agreement, rates that are stated as a flat or fixed recurring or non-recurring charge will not change during the Term if TouchTone increases or decreases the list rate in a Schedule or price list. If pricing is shown in the Agreement as a percentage discount off of a Schedule rate or list price, the percentage discount is fixed for the Term, but TouchTone may modify the underlying Schedule rate, Tariff rate or list price to which the percentage discount is applied on no less than one day's notice.
3.4. Rate Adjustments. TouchTone may adjust, at any time, its rates and charges or impose additional fees, charges or surcharges on Customer to recover amounts that it is required by governmental or quasi-governmental authorities to collect on their behalf, or to pay to others in support of statutory or regulatory programs, plus a commercially reasonable amount to recover the administrative costs associated with such charges or programs. Examples of such charges include, but are not limited to, state and federal Carrier Universal Service Charges, PICC Fees (typically $7.76/mo per additional business line), Carrier Cost Recovery Fees (typically $6.44/mo per customer account), Universal Regulatory Disposition Fee charges (typically $8.89/mo per customer account), Economic Adjustment Assessment (up to 3.27% of billed services before tax), Telecom Connectivity Fee (up to 1.96% of billed services before tax), Toll Free Service Charges (typically $3.99/mo per toll free number), Account Code Maintenance Fees (fees vary; for exact breakdown please call TouchTone Customer Service at 800-266-4006), Compensation to Payphone Providers, International Mobile Termination Charges, E911 or Wireless Local Number Portability surcharges, as applicable. TouchTone may impose additional charges or surcharges, or establish new rate elements, to recover amounts TouchTone is charged for terminating or originating a call to wireless carriers. TouchTone will charge $1.98 per month to all residential customers who choose to receive paper invoices through the mail, and $5.98 per month to all business customers who choose to receive paper invoices through the mail. To avoid this paper invoice fee, customers can sign up for paperless invoices for free through TouchTone's E-bill site at www.touchtone.net/myaccount. Once a customer has enrolled in paperless invoices, the above charges will be automatically waived from their account. For customers that request their invoice and/or call detail records (CDR) on CD, TouchTone will charge a fee of $50 per month per CD. To avoid this fee, customers can retrieve their invoices and/or call record details via FTP site, which will be provided to them by TouchTone.
3.5. Taxes. TouchTone's rates and charges for Products and Services do not include taxes. Except for TouchTone's income taxes and employment taxes, Customer will pay all taxes, including, but not limited to, sales, use, gross receipts, excise, property, bypass or other local, state, national taxes or charges imposed on or based upon the provision, sale or use of Products and Services.
3.6. Minimum Usage. All T-1 customers who are using voice services may be required to meet a total monthly billing requirement (as indicated in the Agreement) in total call usage charges per month for the length of the contract. This does not include any local loop charges, taxes, or any other miscellaneous charges. If the customer does not meet this requirement on any month under the contract, the Customer will be billed the monthly local loop charge, any other miscellaneous monthly recurring charges, plus the difference to bring call usage charges to the minimum amount (as indicated in the Agreement). T-1 Customers who are using data services are required to pay the monthly local loop charge plus monthly bandwidth fees for the length of the contract.
3.7 Fraudulent Calls. Customer is solely responsible for payment of long distance, toll and other telecommunications charges incurred through use of the Services being provided hereunder. Customer shall indemnify and hold TouchTone harmless from all costs, expenses, claims or actions arising from fraudulent calls of any nature carried by means of the Services. Customer shall not be excused from paying TouchTone for Services provided to Customer or any portion thereof on the basis that fraudulent calls comprised a corresponding portion of the Services. In the event TouchTone discovers that fraudulent calls being made, TouchTone will notify Customer of the fraudulent calls and use best efforts to prevent such calls from taking place. Notwithstanding, it is understood that TouchTone is under no obligation to investigate the authenticity of calls charged to Customer's account and shall not be liable for any fraudulent calls processed by TouchTone and billed to Customer's account.
3.8 Short Duration Calls. Short Duration surcharges are defined as follows: A short duration call is defined as a call equal to or less than six (6) seconds in length. If more than 10% of your completed calls in any given billing cycle are defined as short duration calls, then TouchTone will charge an additional $0.01 surcharge per short duration call over the 10% of total monthly terminating service minutes. Individual products may have alternate call duration thresholds. If the service agreement or order form contains specific call duration thresholds then those thresholds found on that service agreement or order form will supersede those found in these Terms and Conditions.
Non-RBOC surcharges are defined as follows: Customer agrees to maintain at least 70% of all domestic terminating traffic to a Regional Bell Operating Company ("RBOC"). TouchTone shall have the right to apply a $0.04 per minute surcharge to the number of domestic minutes by which Non-RBOC "terminations" exceed 30% of total monthly terminating service minutes. A list of RBOC OCNs will be provided to the Customer upon request. Individual products may have alternate RBOC/Non-RBOC thresholds. If the service agreement or order form contains specific RBOC/Non-RBOC thresholds then those thresholds found on that service agreement or order form will supersede those found in these Terms and Conditions.
4. PAYMENT TERMS
4.1. Payment Date. Payment is due upon receipt of TouchTone's invoice. Customer must pay all undisputed amounts no later than the due date indicated on the invoice. Except as prohibited by an applicable Tariff, state law or regulation, if Customer fails to make such payment by the due date indicated on the invoice, TouchTone may suspend or terminate the Products or Services. Customer may not offset disputed amounts from one invoice against payments due on another account.
4.2. Interest Charges. All items not subject of a bona fide dispute that remain unpaid 30 days after the due date are subject to interest at a rate equal to the lesser of 1 1/2% per month, or the maximum rate allowed by law or the applicable Tariff.
4.3. Disputed Invoice Charges. If Customer disputes a charge in good faith, it may withhold payment of that charge so long as Customer (A) makes timely payment of all undisputed charges; and (B) within 30 days of the invoice date, provides TouchTone with a written explanation of the reasons for Customer's dispute of the charge. Customer must cooperate with TouchTone to promptly resolve any disputed charge. If TouchTone determines, in good faith, that the disputed charge is valid, TouchTone will notify Customer and, within five business days of receiving notice, Customer must pay the charge. If the dispute relates to billing errors, TouchTone may credit or debit, as applicable, the net difference between any discovered overcharge or undercharge. This provision does not modify any other payment dispute provisions.
5. CREDIT APPROVAL. TouchTone's provision of Products and Services is subject to credit approval of Customer, and TouchTone may require a deposit or other form of security during the credit approval process. Additionally, if during the term of the Agreement or Order Customer's financial circumstance or payment history becomes reasonably unacceptable to TouchTone, TouchTone may require adequate assurance of future payment, including a deposit or additional deposit, advance payment or other form of security.
6. WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR THE APPLICABLE SERVICE LEVEL AGREEMENT, PRODUCTS AND SERVICES ARE PROVIDED "AS IS" AND TOUCHTONE DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED AND IN PARTICULAR DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES RELATED TO EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE.
7. EQUIPMENT AND SOFTWARE
7.1. Equipment or Software not provided by TouchTone. Customer is responsible for any items not provided by TouchTone (including, but not limited to, equipment or software) that impair Product or Service quality. Upon notice from TouchTone of such an impairment, Customer will promptly cure the problem. Customer will continue to pay TouchTone for Products and Services during such impairment or related suspension. If the impairment interferes with the use of TouchTone's network by TouchTone or third parties, TouchTone, in its reasonable discretion, may suspend or disconnect the affected Products and Services without advance notice to Customer, although TouchTone will provide advance notice where practical. At Customer's request, TouchTone will troubleshoot the impairment at TouchTone's then current time and materials rates. TouchTone is not liable if a commercially reasonable change in Products or Services causes equipment or software not provided by TouchTone to become obsolete, require alteration, or perform at lower levels.
7.2. Software License
A. Licensing Requirements. Where software is provided with the Product or Service, Customer is granted a non-exclusive and non-transferable license or sublicense to use the software, including any related documentation, solely to enable Customer to use the Products and Services in accordance with the applicable licensing requirements. TouchTone may suspend, block or terminate Customer's use of any software if Customer fails to comply with any applicable licensing requirement. B. Prohibitions. Except as provided under the applicable licensing terms and conditions, Customer, as licensee, is not granted any rights to: 1. use the software on behalf of third parties or for time share or service bureau activities; 2. any source code, and will not reverse engineer, decompile, modify, enhance, or copy TouchTone-provided software, or prepare any derivative works from such software; or 3. modify the Products or Services, or combine the Products and Services with any other products or services not provided by TouchTone. C. Copies. If TouchTone authorizes in writing the making of any software copies, the copies must reproduce the copyright or any other proprietary legends appearing on the original copy. D. Breach of Licensing Requirements. Customer will indemnify, defend and hold TouchTone harmless from and against any third party claims arising out of Customer's breach of the licensing requirements in this Section 7.2.
7.3. Title to Software or Equipment. TouchTone or its suppliers retain title and property rights to TouchTone-provided software and equipment, whether or not they are embedded in or attached to real or personal property. Unless specifically stated in the Agreement, Customer neither owns nor will acquire any right of ownership to any TouchTone-provided hardware or software, including, but not limited to, copies, and any related patents, copyrights, trademarks, or IP addresses assigned to Customer. Upon termination or expiration of the Agreement or any Order, Customer will surrender and immediately return the TouchTone provided equipment and software, including all copies, to TouchTone or provide TouchTone access to reclaim such equipment and software.
8. USE OF NAME, SERVICE MARKS, TRADEMARKS.
Neither party will use the name, service marks, trademarks, or carrier identification code of the other party or any of its Affiliates for any purpose, including, but not limited to, resale of Products or Services or press releases, without the other party's prior written consent.
9. CUSTOMER RESPONSIBILITIES
9.1. Installation. Customer will provide reasonable cooperation to enable TouchTone or its agents to install the Products and Services. Customer is responsible for damage to TouchTone-owned Products and Services located on Customer premises, excluding reasonable wear and tear or damage caused by TouchTone. Additional Customer responsibilities relating to a particular Product or Service may be defined in the applicable Product-specific Terms.
9.2. Use of Products and Services
A. Abuse and Fraud. Customer will not: (1) use Products or Services for fraudulent or destructive purposes, including, but not limited to, unauthorized or attempted access, alteration, abuse or destruction of information; or (2) use Products or Services in such a manner that causes interference with another's use of the TouchTone network. Customer will promptly cooperate with TouchTone to prevent unauthorized access by third parties of the Products and Services via Customer's facilities. B. Resale (1) General. Unless otherwise provided in the Agreement and subject to any provisions governing resale in the Agreement, state or federal law and regulations, Customer represents and warrants, on behalf of itself and its Affiliates, subsidiaries, and agents, that it is not a reseller and that it does not intend to resell the Products and Services or engage in other activity that would require TouchTone to verify Customer's authorization as a reseller as required by 47 CFR 64.1195 or other law or regulation. (2) Wireline Services. These provisions are not intended to prohibit resale of wireline services, but to require compliance with the rules and regulations of the FCC, state public utility commissions and other governmental bodies with jurisdiction over the provision of communications services for resale. (3) Resale Terms and Conditions. The permitted resale of TouchTone wireline and Internet Services is subject to the TouchTone's Resale Terms and Conditions or Internet Service Providers ("ISP") Product Terms and Conditions. C. Foreign Telecommunications Administrations. For certain international Products and Services, Customer must comply with any limitations or prohibitions imposed by Foreign Telecommunications Administrations ("FTAs") upon the FTA-provided portion of end-to-end international services. D. Failure to Comply. If Customer fails to comply with any provision of this Section, Customer releases TouchTone from all liabilities or obligations in connection with the affected Product or Service, and Customer will indemnify TouchTone for all costs or damages that TouchTone incurs as a result of Customer's noncompliance.
10. CONFIDENTIAL INFORMATION
10.1. Nondisclosure Requirements. If the parties have not executed a mutual nondisclosure agreement, this provision will govern their exchange of information. Each party will not disclose any confidential information received from the other party, or otherwise discovered by the receiving party, to any third party, except as expressly permitted in this Agreement. This obligation will continue until two years after this Agreement terminates. Confidential information includes, but is not limited to, pricing and terms of the Agreement, and information relating to the disclosing party's technology, business affairs, and marketing or sales plans (collectively the "Confidential Information"). Each party may disclose Confidential Information to its subsidiaries, affiliates, agents and consultants with a need to know, if they are not competitors of the disclosing party and are subject to a confidentiality agreement at least as protective of the disclosing party's rights as this provision. The parties will use Confidential Information only for the purpose of performing under this Agreement or for the provision of other TouchTone services. The foregoing restrictions on use and disclosure of Confidential Information provision of other TouchTone services. The foregoing restrictions on use and disclosure of Confidential provision of other TouchTone services. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (A) is in the possession of the receiving party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (B) is or becomes publicly known, through no wrongful act or omission of the receiving party; (C) is received without restriction from a third party free to disclose it without obligation to the disclosing party; (D) is developed independently by the receiving party without reference to the Confidential Information, or (E) is required to be disclosed by law, regulation, or court or governmental order.
10.2. Customer Proprietary Network Information. As TouchTone provides Products and Services to Customer, TouchTone develops information about the quantity, technical configuration, type, destination, amount of Products and Services Customer uses, and other information found on Customer's bill ("Customer Proprietary Network Information" or "CPNI"). Under federal law, Customer has a right, and TouchTone has a duty, to protect the confidentiality of CPNI. To serve Customer in the most effective and efficient manner, TouchTone may use or share CPNI with TouchTone Affiliates for purposes of determining and offering other TouchTone products and services that may interest Customer. Customer permission to use CPNI for this purpose is valid until revoked. However, if at any time Customer seeks to stop TouchTone from using CPNI to offer products and services that are unrelated to the Products and Services Customer currently receives from TouchTone, Customer may call 1-800-266-4006. Denial of approval for TouchTone to use CPNI will not affect the provision of any current Products or Services to which Customer subscribes.
11. LIMITATIONS OF LIABILITY
11.1. Direct Damages. Each party's maximum liability for damages caused by its failure(s) to perform its obligations under the Agreement is limited to: (A) proven direct damages for claims arising out of personal injury or death, or damage to real or personal property, caused by the party's negligent or willful misconduct; or (B) proven direct damages for all other claims arising out of the Agreement, not to exceed in any 12 month period an amount equal to Customer's total net payments for the affected Products and Services in the month preceding the month in which the injury occurred. Customer's payment obligations, liability for early termination charges, and the parties' indemnification obligations under this Agreement are excluded from this provision. Liability limitations for individually-liable services are covered in the applicable Product Terms and Conditions.
11.2. Consequential Damages. NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT. CONSEQUENTIAL, INCIDENTAL, AND INDIRECT DAMAGES INCLUDE, BUT ARE not LIMITED TO, LOST PROFITS, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN A WARE OF THE POSSIBILITY OF THESE DAMAGES. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO CLAIMS ARISING FROM THE PARTIES' INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT.
11.3. Unauthorized Access. Except for physical damage to Customer's transmission facilities or Customer premise equipment directly caused by TouchTone's negligence or willful misconduct, TouchTone is not responsible for unauthorized access to Customer's transmission facilities or Customer premise equipment by individuals or entities, or for unauthorized access to, or alteration, theft, or destruction of Customer's data files, programs or other information through accident, wrongful means or any other cause.
11.4. Liability for Content. TouchTone is not responsible for the content of any information transmitted by, or received through, TouchTone's provision of the Products and Services.
12. INDEMNIFICATION
12.1. Personal Injury, Death or Damage to Personal Property. Each party will indemnify and defend the other party, its directors, officers, employees, agents, affiliates, and their successors from and against all third party claims for damages, losses, or liabilities, including reasonable attorney's fees, arising directly from performance of the Agreement and relating to personal injury, death, or damage to tangible personal property that is alleged to have resulted, in whole or in part, from the negligent or willful acts or omissions of the indemnifying party or its subcontractors, directors, officers, employees or authorized agents.
12.2. Transmission Over TouchTone Network. Customer will indemnify and defend TouchTone from and against all loss, liability, damage and expense, including attorney's fees, resulting from any third party claims alleged to arise in any way from information, data, OR messages transmitted over the TouchTone network by Customer, OR Customer's own customers or agents, including, but not limited to: (A) claims for libel, slander, invasion of privacy, infringement of copyright, and invasion OR alteration of private records or data; (B) claims for infringement of patents arising from the use of equipment, hardware OR software not provided by TouchTone; and (c) claims based on transmission and uploading of information that contains viruses, worms, OR other destructive media OR other unlawful content.
12.3. Intellectual Property. Subject to Sections 12.4 and 12.5 below, TouchTone will defend and pay all court awarded damages for claims enforceable in the United States alleging that Services as provided infringe any third party United States patent or copyright or contain misappropriated third party's trade secrets. For any third party claim that TouchTone receives, OR to minimize the potential for a claim, TouchTone may at its option and expense either:
A. procure the right for Customer to continue using the Services B. replace or modify the Services with comparable Services; C. or terminate the Service.
12.4. Intellectual Property Indemnification Limitations. TouchTone's obligations under Section 12.3 above will not apply to the extent that the infringement or violation is caused by: (A) a modification to TouchTone-provided software equipment or Services by Customer (or any person or entity acting on Customer's behalf); (B) services provided to or through TouchTone by a third party; (C) the combination of TouchTone-provided Services by Customer (or any person or entity acting on Customer's behalf) with other third party products; (D) functional or other specifications that were provided by or requested by Customer; or (E) Customer's continued use of infringing Services after TouchTone provides reasonable notice to Customer of the infringement.
12.5. Rights of Indemnified Party. To be indemnified, the party seeking indemnification under this Section must promptly notify the other party in writing of the claim (unless the other party already has notice of the claim) and give the indemnifying party full and complete authority, information and assistance for the claim's defense and settlement. The indemnifying party will retain the right, at its option, to settle or defend the claim, at its own expense and with its own counsel. The indemnified party will have the right, at its option, to participate in the settlement or defense of the claim, with its own counsel and at its own expense, but the indemnifying party will retain sole control of the claim's settlement or defense. To be indemnified under this Section, the party seeking indemnification must not, by any act, including but not limited to any admission or acknowledgment, materially prejudice the indemnifying party's ability to satisfactorily defend OR settle the claim.
13. TERMINATION
13.1. TouchTone Right to Terminate
A. TouchTone may immediately suspend OR terminate Products OR Services OR the Agreement if: (1) Customer fails to cure its default of the payment terms in Section 4 above; or (2) Customer fails to cure any other material breach of the Agreement within 30 days after receiving TouchTone's written notice; or (3) Customer fails to comply with applicable law or regulation and Customer's noncompliance prevents TouchTone's performance under the Agreement. B. If TouchTone terminates the Agreement under Section 13.1, Customer will be liable for any Products and Services provided up to the date of termination, whether or not invoiced by the termination date, as well as any applicable early termination or shortfall liabilities.
13.2. Customer Right to Terminate. If TouchTone materially fails to provide Products or Services, Customer may terminate the affected Products or Services without early termination liability if Customer provides TouchTone with written notice of the failure and a reasonable opportunity to cure within 30 days from receipt of notice. If TouchTone fails to cure, then Customer may terminate the affected Products or Services effective 30 days after TouchTone's receipt of Customer's written notice to terminate. TouchTone's material failure does not include a failure caused by circumstances not within TouchTone's sole control, including, but not limited to, a failure caused by a local exchange carrier other than TouchTone, Customer-provided software or equipment, or Customer.
13.3. Order Term Termination Liability A. Calculation of Early Termination Liability: Certain Products and Services may be priced based on a minimum Order Term, which may be identified as an "Order Term," "Access Term Plan," or similar language. If TouchTone terminates any Services due to Customer’s default, or if Customer terminates an Order in whole or in part before the expiration of the Order Term, then Customer will pay to TouchTone an early termination charge equal to (1) all recurring and non-recurring charges specified in the applicable TouchTone Service Order (TSO) for the balance of each Service’s specified Term, plus; (2) any charges levied by the underlying service provider in connection with the termination that TouchTone does not recover under clause (1) of this Section 13.3. Customer shall also be liable to TouchTone for all non-recurring and recurring charges that were waived or discounted by TouchTone. Customer agrees that TouchTone’s damages will be impossible to ascertain if any Service is terminated and that the foregoing early termination charge establishes liquidated damages and is not a penalty. Any and all terminations during a monthly billing cycle become effective on the last day of that billing cycle. Customer will be responsible for all fees and charges incurred until then and will not be entitled to any partial-month credits or refunds. Customer will be responsible for all early termination charges, and for all fees and charges through the end of that billing cycle, payable in full on the due date for that billing cycle. B. Waiver of Order Term Liabilities. Upon prior approval of TouchTone, Customer will not be liable for the early termination charges in Sections 13.3.A above, if Customer orders another Service of the same or greater monthly price with an Order Term no less than the remaining months in the initial Order Term (or one year, whichever is greater) at the same time Customer provides TouchTone with the termination notice. Such approval will be in TouchTone's reasonable discretion and based upon financial and other business considerations. C. Repayment of Credits or Waived Charges. If TouchTone terminates an Order or the Agreement due to Customer's material breach or Customer terminates an Order or the Agreement before the end of the Term (unless due to TouchTone's material breach), Customer will repay TouchTone a pro-rata portion of any credits issued or charges waived, based upon the number of months remaining in the Term at the time of termination. This provision does not apply to service level credits issued for Service outages.
13.4. Disconnect Notice A. Notice Requirement. FOR Domestic Services, TouchTone will have up to 30 days to complete disconnection. FOR non-Domestic Services, TouchTone may require a longer period. Customer will be responsible for all charges through the later of the 30th day after TouchTone received the disconnect notice, or the date Customer stops using the Services. B. Forms Required. For written notice of disconnect to be effective, Customer must provide information necessary for TouchTone to complete the disconnect, such as a completed Disconnect Firm Order Commitment ("FOC") for Customer-provided access. Failure to provide such required information may result in TouchTone's revocation of Connecting Facility Assignments ("CFA") from TouchTone to the Local Exchange Carrier ("LEC") and Customer will be liable for any resulting charges imposed on TouchTone by the LEC.
14. FORCE MAJEURE.
Neither party will be responsible for any delay, interruption or other failure to perform under the Agreement due to acts beyond the control of the responsible party. Force majeure events include, but are not limited to: natural disasters (e.g. lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; inability to obtain parts or equipment from third party suppliers; cable cuts by third parties, a local exchange carrier's activities, and other acts of third parties; explosions and fires; embargoes, strikes, and labor disputes; and governmental decrees and any other cause beyond the reasonable control of a party.
15. CONFLICTS PROVISION.
Federal and state Tariffs, as applicable, govern the sale of local telecommunication Services and supersede these Standard Terms and Conditions where required by law. If TouchTone withdraws any Tariff that applies to Services in this Agreement, the Tariff terms and conditions then in effect will continue to apply to this Agreement. If a conflict exists between or among provisions within the Agreement, specific terms will control over general provisions and separately negotiated or added terms, conditions or pricing will control over standardized or non-negotiated terms, conditions and pricing.
16. MISCELLANEOUS.
16.1. Independent Contractor. TouchTone provides the Products and Services in this Agreement as an independent contractor. Nothing in this Agreement will create an employer-employee relationship, association, joint venture, partnership, or other form of legal entity or business enterprise between the parties, their agents, employees or affiliates.
16.2. No Waiver of Rights. The failure to exercise any right under this Agreement does not operate to waive the party's right to exercise that right, or any other, in the future.
16.3. No Third Party Beneficiaries. The Agreement's benefits do not extend to any third party.
16.4. Governing Laws. The Agreement will be governed by the laws of New Jersey, without regard to its choice of law principles.
16.5. Dispute Resolution A. Arbitration. Any dispute arising out of or relating to the Agreement or Order may, at the option of the parties, be finally settled by arbitration. If, however, Subsection B (Waiver of Trial by Jury) below is held to be unenforceable by a court, then arbitration is mandatory. Any arbitration must be held in accordance with the rules of the CPR Institute for Dispute Resolution and governed by the United States Arbitration Act, 9 U.S.C. Sec. 1, et seq. All arbitration proceedings for disputes relating to Domestic Products or Services will be held in the Morris County, NJ. If the dispute relates to TouchTone's provision of Non-Domestic Products or Services, all arbitration proceedings will be conducted in the English language pursuant to the Rules of Conciliation and Arbitration of the International Chamber of Commerce ("ICC"). The place of arbitration for disputes related to Non-Domestic Products or Services is Morris County, NJ, USA. Any such arbitration proceeding will not include class action arbitration. B. Waiver of Trial by Jury. The parties mutually, expressly, irrevocably and unconditionally waive trial by jury and any right to proceed in a class action or other representative capacity for any proceedings arising out of or relating to an Agreement or Order. This Subsection survives the termination of an Agreement or Order. 16.6. Assignment. Customer may not assign any rights or obligations under an Agreement or Order without TouchTone's prior written consent, except that Customer may assign the Agreement, after 30 days prior written notice, to a parent company, controlled Affiliate, Affiliate under common control or an entity that has purchased all or substantially all of Customer's assets.
16.7. Amendments. The Agreement may only be amended in a writing signed by both parties' authorized representatives.
16.8. Notice. Notices required under the Agreement must be submitted in writing to the party's address listed in the Agreement or Order and, in the case of a dispute, notices must also be sent to:
TouchTone Communications Attn: Director of Operations P.O. BOX 135, Whippany, NJ 07981
16.9. Severability. If any provision of the Agreement is found to be unenforceable, the Agreement's unaffected provisions will remain in effect and the parties will negotiate a mutually acceptable replacement provision consistent with the parties' original intent.
16.10. Survivability. The terms and conditions of the Agreement regarding confidentiality, indemnification, warranties, payment, dispute resolution and all others that by their sense and context are intended to survive the expiration of the Agreement will survive.
16.11. Entire Agreement. The Agreement, including these Standard Terms and Conditions, all other referenced documents, annexes, Schedules and Tariffs, or exhibits, the related Orders and the parties' mutual nondisclosure agreement, constitutes the entire agreement and understanding between the parties and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, relating to its subject matter.
17. PROPOSED INFORMATION EXCHANGE. TouchTone Communications (“Carrier”) provides voice telecommunications services to Customer. In connection with voice traffic Carrier terminates to Customer, Customer wishes to receive and Carrier is willing to provide to Customer certain Identity Headers (defined below) for the limited purpose of protecting the rights or property of the Customer, or to protect users of the voice services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such services (the “Limited Purpose”) pursuant to Section 222(d)(2) of the Telecommunications Act of 1996 (the “Act”). The Identity Headers will be provided in the call signaling. The terms of this Agreement will apply to any affiliate of Carrier that terminates traffic to Customer.
17.1 STIR/SHAKEN. TouchTone has implemented the STIR/SHAKEN protocol across its IP voice network. For purposes of this Agreement, the following definitions apply: “Identity Header” means a SIP header containing a SHAKEN PASSport as specified in the STIR/SHAKEN specifications. “PASSport” is inserted into an Identity Header and contains information regarding the originating call such as attestation, calling Telephone Number, and information about the originating calling entity. “SHAKEN” means signature based handling of asserted information using tokens. “STIR” means Secure Telephone Identity Revisited. All customer calls utilizing the TouchTone voice communications network will be assigned a level of attestation indicating the call’s level of legitimacy (attestation A/Full, B/Partial, or C). If a Customer makes a formal request to upgrade their attestation level, they must agree to the Terms and Conditions set forth on any and all documents associated with the request including but limited to the Know Your Customer form and STIR/SHAKEN LOA.
17.3 Compelled Disclosure. Customer may disclose Identity Headers to the extent required pursuant to applicable federal, state or local law, regulation, court order, or other legal process, provided that the Customer has given the Carrier prior written notice of such required disclosure and, to the extent reasonably practicable, has given the Carrier an opportunity to contest such required disclosure at the Carrier’s expense. Moreover, if Customer must make such disclosure, it will attempt to maintain the confidentiality of the Identity Headers (e.g., pursuant to a protective order).
17.5 Term & Termination. Either Party may terminate this Agreement at any time by providing written notice to the other. Notwithstanding any such termination, each Party’s respective confidentiality and use obligations under this Agreement shall survive, with respect to any Identity Headers received prior to such expiration or termination. The Customer shall promptly return or certify that it has destroyed all material embodying the Identity Headers (in any form and including, by way of example and not limitation, all summaries or electronic versions thereof) upon the earlier of (a) the completion or termination of the dealings between the Parties, or (b) the Carrier’s written request.
17.7 Disclaimers. The Identity Headers will be provided in the call signaling. Carrier will merely pass through to Customer the unaltered Identity Headers Carrier receives from the providing party. Carrier is not responsible in any way for the content included in the Identity Headers.
17.9 Waiver. Any failure to enforce the other Party’s strict performance of any provision of this Agreement shall not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
17.11 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when delivered personally; (b) by overnight courier, when delivery is made, as evidenced by written verification of receipt or refusal to accept delivery; (c) by email transmission, upon acknowledgment of delivery of electronic transmission to the destination network or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth below or to such other address as either Party may specify in writing.
17.13 Governing Law. To the extent the Act does not apply, this Agreement shall be governed by and interpreted in accordance with the laws of the State of New Jersey, without regard to its choice of law principles.
1. Definitions: 1.1. Authorized Use: The use of the M2M Lines of Wireless Service that is permitted under this Agreement and set forth in the TouchTone Service Order (TSO). 1.2. Customer Product or Service: Any Customer product or service that Customer sells, leases or otherwise provides to its End Users and in which Customer has Embedded M2M Lines purchased under this Agreement. 1.3. Embedded: An M2M Line is “Embedded” if it: (i) is used exclusively for Machine-to-Machine data transmissions, and (ii) is used only within the functionality of the Customer Product or Service. 1.4. End User: An entity or person using a Customer Product or Service. 1.5. Equipment: Wireless data modems and similar devices and ancillary accessories used in conjunction with Wireless Service. 1.6. Legal Notice: Notice given in accordance with the requirements for “Legal Notices” set forth in the “Notices” section below. 1.7. Machine-to-Machine or M2M: The transmission of data using the Wireless Service between wireless devices and computer servers or other machines, or between wireless devices, with limited or no manual intervention or supervision. 1.8. M2M Line: An individual line of Wireless Service used for Machine-to-Machine transmission. 1.9. Wireless Service: Each and every radio service provided directly or indirectly by TOUCHTONE.
TERM OF AGREEMENT AND LINE TERM 2. Term; Early Termination Fees: 2.1. Term of Agreement (“Term”): TOUCHTONE COMMUNICATIONS (TouchTone) agrees to provide Wireless Service to Customer for an initial term as stated in the TouchTone Service Order (TSO), from the date this Agreement is executed by both Parties (“Effective Date”), and thereafter on a month-to-month basis unless canceled by either Party with at least 30 days written notice. Line Terms: The term for each Subscriber line begins on the date Wireless Service is activated for that line and continues for the term selected by the Customer or the Subscriber (“Line Term”). When the Line Term expires, Wireless Service continues on a month-to-month basis. Subscribers may change service plans without extending their line terms unless specific options in a service plan expressly require otherwise. Subscribers may take advantage of promotions or purchase Equipment at corporate pricing, after initial activation, however, this may require an extension of their Line Term. The contract will expire on the last day of the billing cycle subsequent to the completion of the contract term. 2.2 Service Cancellation: You can cancel a new line of Service, and if applicable, not pay an Early Termination Fee, if you cancel WITHIN 14 DAYS of activating that new line of Service ("Cancellation Period"). You remain responsible for all Charges incurred through the date of cancellation. To cancel Service during the Cancellation Period, you must return any TouchTone LTE/Machine-to-Machine Device you acquired at the time of activation. If the service is canceled after the 14 day trial period, TouchTone will charge the subscriber an early termination fee per line of service as follows. 2.3. Early Termination Fees (“ETF”): All cancelations of contract and non-contracts (month to month) must be done at the end of the billing cycle. For M2M Lines activated on Equipment provided by TouchTone, TOUCHTONE will charge an early termination fee (“ETF”) of $50.00 for each M2M Line terminated, or ported to another service provider, prior to the expiration of the Line Term. 3. TouchTone Service Order (TSO), Authorized Use and Fraudulent Use: 3.1. TOUCHTONE shall provide M2M Lines to Customer only under the terms and conditions set forth herein and in the TSO. Each TSO shall include, among other terms and conditions, the pricing details and the Authorized Use of the M2M Lines. 3.2. Use of Wireless Service for Remote Medical Monitoring Prohibited: Customer shall not use the Wireless Service for remote medical monitoring which, if agreed to by the Parties, would require additional terms and conditions. 3.3. Fraudulent or Unauthorized Use. It is Customer’s obligation to prevent (i) use of the Wireless Service by End Users and other third parties in violation of Section 3.1 or 3.2, and (ii) fraudulent or other unauthorized use of the Wireless Service or an MTN. Customer shall promptly notify TOUCHTONE in writing if there is actual or suspected use of the Wireless Service in violation of this Section.
4. Acknowledgement. Customer acknowledges and agrees: 4.1. that TOUCHTONE may at any time be engaged directly or indirectly, including through or in connection with products and services of its other customers, in soliciting actual or prospective customers for Wireless Service or other services, products or Equipment that could be the same as or similar to and compete with a Customer Product or Service; and 4.2. that Customer has had the opportunity to independently investigate the Wireless Service for use in connection with the Customer Product or Service and the Authorized Use and is not relying on any representation, guarantee, or statement of TOUCHTONE.
5. Equipment. 5.1. Except as may be set forth in the TSO, TOUCHTONE shall have no obligation to provide or sell Equipment to Customer hereunder and Customer shall provide its own Equipment. 5.2. Equipment Requirements. Customer shall ensure that all Equipment and applications utilized by its End Users in connection with the Wireless Service and each End User's use thereof shall at all times comply with the requirements outlined in Agreement. 5.3. Customer’s failure to do so may cause Customer’s transmissions to fail, be blocked or misrouted, use Wireless Service not intended by Customer and/or be subject to additional charges beyond those set forth in this Agreement. Customer hereby agrees to pay such additional charges. TOUCHTONE shall have no liability for Customer’s Equipment or Customer’s failure to maintain or meet requirements applicable to Customer’s Equipment. Under no circumstances shall TOUCHTONE be responsible for or obligated to make any changes to its equipment, operations, network or systems to accommodate Customer or any End User. 5.4 Equipment Purchased from TOUCHTONE. The following provisions apply to Equipment purchased directly from TOUCHTONE by Customer pursuant to this Agreement: (a) Shipping, Risk of Loss and Acceptance: Billing and shipping addresses must be in the TOUCHTONE licensed service area. Equipment will be shipped to the address designated on Customer’s order. Title and risk of loss pass to Customer and acceptance occurs upon receipt of the Equipment by Customer or Customer’s agent at the address designated on Customer’s order. TOUCHTONE may charge Customer for shipping. 5.5 Cancellation and Returns. You must return your TouchTone LTE/Machine-to-Machine Device in its original package with all original contents, undamaged and in good working condition with no material alterations to the Device's hardware or software. If you do not return your TouchTone LTE/Machine-to-Machine Device or if you return your TouchTone LTE/Machine-to-Machine Device in a damaged, altered or destroyed condition, we may take one or more of the following actions: (a) prevent your TouchTone LTE/Machine-to-Machine Device from working on any network; (b) charge you the Early Termination Fee(if your line of Service is subject to an early termination fee); (c) elect not to process your Service cancellation; or (d) charge you the suggested retail price or the cost to repair a damaged, destroyed, or non-returned TouchTone LTE/Machine-to-Machine Device, (which may be greater than the price you paid), plus any shipping and handling charges. Device Refunds and Restocking Fees: For TouchTone Wireless LTE/Machine-to-Machine and accessory returns and exchanges, speak to a TouchTone agent for details. Some TouchTone LTE/Machine-to-Machine Devices and accessories may not be refunded or exchanged, and you may be required to pay a restocking fee.
6. Account Implementation: In order for TOUCHTONE to implement the benefits of this Agreement (including the creation of any custom pricing, options, features or applications), Customer must provide certain information, such as name, mobile telephone number and account information of any M2M Lines Customer wants to activate under this Agreement. Following receipt of all necessary information, TOUCHTONE will complete Customer’s account implementation within 90 days.
7. Mobile Telephone Numbers. 7.1. Activation Process. (a) Customer shall make all requests for assignment of geographic MTNs by providing one or all the following values: area code and three-digit exchange, ZIP code, or City and State. Customer MTN activation and change requests will be assigned the next available number from the TOUCHTONE’ number inventory system at the time of activation. (b) TOUCHTONE shall use commercially reasonable efforts to make MTNs available for use by Customer at the time of activation within the areas served by the underlying carrier’s owned and operated network, based on Customer’s forecasts and twelve-month trending history. TOUCHTONE will fulfill orders for MTNs in a commercially reasonable expedient manner assigning one mobile telephone number (“MTN”) to each M2M Line. TOUCHTONE’s obligation to provide MTNs is subject to: (i) the availability of MTNs and the capacity of the underlying carrier’s network and systems; and (ii) reasonable delays if additional time is needed by the underlying carrier to comply with State or Federal MTN management requirements. TOUCHTONE shall have no liability for capacity limitations of the underlying network or systems or MTN shortages and has no obligation to construct additional capacity in its network or systems. 7.2. MTN Inventory, Activation Process Modifications, Rights in MTNs. (a) If Customer is using geographic MTNs, but Customer’s needs can be satisfied with a non-geographic number solution (e.g. 5XX numbers where the NPA begins with a “5” and there is no rate center associated with the MTN), Customer shall migrate to a non-geographic number solution for all new activations when the underlying carrier offers such a solution. The Customer’s existing lines using geographic numbers shall be eliminated through attrition only. (b) Customer may port its geographic MTNs from TOUCHTONE to another carrier, however Customer does not have any property right in the MTN. Customer may not port its non-geographic MTNs from TOUCHTONE to another carrier because non-geographic MTNs are not portable. TOUCHTONE may change, reassign or eliminate an MTN upon reasonable notice to Customer under certain circumstances, including fraud prevention, area code changes, and regulatory or statutory law enforcement requirements. Customer shall bear the cost of reprogramming End User and Customer Equipment, systems, Products and Services in connection therewith. Customer’s failure to perform such reprogramming may adversely affect Customer’s ability to provide its Products or Services, but Customer shall still be obligated to pay for the M2M Lines and Wireless Service as provided in this Agreement. 7.3. Equipment Location. All Equipment activated on M2M Lines at a fixed location must be located by Customer and End Users within the areas served by the underlying carrier’s owned and operated network. Equipment activated on M2M Lines which are mobile may roam on the networks of the underlying carrier’s roaming partners but shall not be permanently located in the roaming area. 7.4. Equipment on Terminated Lines (a) When a Customer M2M Line is terminated, Customer shall ensure that the Equipment that was activated on that Line (“Terminated Equipment”) does not register or attempt to register on the underlying carrier’s network. Customer shall immediately inform TOUCHTONE of all M2M Lines and Equipment that are terminated. If Terminated Equipment continues to attempt to register on the underlying carrier’s network, (i) Customer will incur and shall pay additional charges and fees, and (ii) if Customer fails to prevent Terminated Equipment from attempting to register within 30 days after notice from TOUCHTONE, TOUCHTONE shall have the right to charge Customer and Customer shall pay a monthly twenty-five-dollar ($25) fee for each unit of Terminated Equipment until the failure is corrected. (b) TOUCHTONE shall have the right to use over-the-air means to access Terminated Equipment for the purpose of downloading software or PRLs designed to disable Terminated Equipment to prevent attempts to contact the underlying carrier’s network.
8. Purchases by Customer (Authorized Contact(s)): Customer shall identify representatives authorized to purchase Wireless Service under this Agreement and to act on its behalf (“Authorized Contact(s)”) by providing their name(s), telephone number(s), and business and e-mail address(es) in writing to TOUCHTONE. Customer’s initial Authorized Contact(s) may be identified on the first page of the TSO Agreement. An Authorized Contact shall have full authority to handle all matters contemplated by the Agreement or relating to Customer’s account(s), unless otherwise specified by Customer in writing to TOUCHTONE. Customer may elect to designate a third party as an Authorized Contact provided it complies with the requirements set forth in the “Customer’s Use of Third Parties” section below.
9. Use with Customer Product or Service Required: This Agreement specifically contemplates the purchase of M2M Lines of Wireless Service by Customer to be Embedded in the Customer Product or Service. Customer shall not provide Wireless Service to End Users independent of the Customer Product or Service. Except upon written agreement between the Parties, third parties (including agents, contractors or contract employees, and franchisees of Customer or of Customer’s parents and affiliates) may not purchase Wireless Service under this Agreement.
10. Customer Billing and Payments: 10.1. Monthly Bills: TOUCHTONE bills will be made available on a monthly basis, and Customer shall pay all fees and charges, including any applicable Taxes and Surcharges, as defined below. Monthly access fees and feature charges are generally billed in advance, while airtime overage and other usage charges are billed in arrears. Monthly billing cycles vary and may not correspond to calendar months. TOUCHTONE provides billing for third parties, and charges for third party services and applications may be placed on Customer’s bill. Customer has the option, at no cost, to block or restrict access to third-party services or applications that may involve a charge being placed on Customer’s bill. Customer shall pay all charges attributable to End User and other third party fraudulent use of the M2M Lines of Wireless Service. 10.2. Payment Terms: Customer shall pay all undisputed charges by the due date of each bill. Past due amounts shall be, to the extent permitted by the law of the state where Customer’s billing address is located, subject to a late payment fee of 1½% per month (18% annually) or $5 per month, whichever is greater. If payment by check or similar negotiable instrument is returned by a bank for any reason, TOUCHTONE will charge Customer a returned check fee. 10.3. Disputed Charges: In the event of disputed charges, Customer must, as soon as practicable following identification of such dispute, but not to exceed 60 days from the due date of the bill, provide written notice to TOUCHTONE, which shall include the date of the bill, disputed amounts, the reason for the dispute, and any supporting documentation. The Parties will use their good faith efforts to reconcile any disputed charges within 60 days of the date of notification, after which the Parties may invoke the process set forth in the “Dispute Resolution” section below. 10.4. Failure to Pay: TOUCHTONE may, upon prior written notice to Customer, suspend or terminate Wireless Service to some or all M2M Lines or deny new activations due to Customer’s failure to either make payment or dispute charges in accordance with the foregoing provisions regardless of any deposit provided by Customer. If TOUCHTONE sends Customer’s account to a collection agency, TOUCHTONE may also charge Customer for any fees that TOUCHTONE is charged by the collection agency, if it is permitted by the law of the state where Customer’s billing address is located 10.5. Billing Records: Upon reasonable notice from Customer, TOUCHTONE will provide copies of Customer’s billing records, to allow Customer to examine their accuracy. Such records shall be provided to Customer in electronic format within a mutually agreed-upon timeframe. If the records cannot be produced electronically or in any matter, or Customer disputes the authenticity of such records at a mutually convenient time. Such information shall be maintained by TOUCHTONE for a period of ninety (90) days from the date of payment and Customer may request copies no more than once per contract year, limited to those billing records created since the most recent examination. Customer shall be responsible for the costs of any such examination.
11. Taxes, Surcharges and Exemptions: If any federal, state, local or foreign tax, fee, assessment or other charge is required by law to be collected by TOUCHTONE (each, a “Tax”), or a serving carrier charges Tax on a roaming call, then TOUCHTONE may bill such Tax to Customer, and Customer shall pay such Tax. If TOUCHTONE incurs a tax (other than a net income tax) or other expense to comply with legal or governmental requirements, or other expense to provide or improve service to its customers, and TOUCHTONE bills a surcharge to recover or offset the cost of such expense (a “Surcharge”), then Customer shall pay such Surcharge. Taxes and Surcharges may change from time to time. With respect to any Tax other than a Tax charged by a serving carrier on a roaming call, if Customer provides TOUCHTONE with an exemption certificate in the form provided by law, or with other evidence of exemption acceptable to TOUCHTONE, then that specific Tax will not be collected from Customer. If an exemption applied by TOUCHTONE at Customer's request is found not to apply, then Customer shall upon demand pay TOUCHTONE the uncollected Tax and all related interest, penalties and additions to the Tax. TOUCHTONE shall not issue credits for a Tax that is billed prior to TOUCHTONE's receipt of evidence of exemption.
12. Bankruptcy/Insolvency/Creditworthiness: Either Party may terminate this Agreement upon Legal Notice if: (a) the other Party makes an assignment for the benefit of creditors, or admits in writing its inability to pay its debts as they mature; (b) a trustee or receiver of any substantial part of the other Party’s assets is appointed by any court; or (c) a proceeding is instituted under any provision of the Federal Bankruptcy Laws by or against the other Party, and such proceeding is acquiesced in or is not dismissed within 60 days or results in an adjudication in bankruptcy. Notwithstanding the above, Customer’s right to terminate pursuant to this section may only be invoked if TOUCHTONE is unable to provide Customer with Wireless Service under this Agreement as a result of the foregoing. If Customer terminates the Agreement pursuant to this section, it shall not be relieved of its obligation to pay for any Wireless Service used. At any time during the term of this Agreement, TOUCHTONE may require Customer to provide a deposit to secure payment based upon Customer’s creditworthiness or payment history with TOUCHTONE. Any such deposit shall not relieve Customer of its obligation to pay any TOUCHTONE bills. TOUCHTONE shall pay any interest required by law on such deposit.
13. WARRANTY DISCLAIMER. TOUCHTONE AND ITS AFFILIATES AND CONTRACTORS MAKE NO WARRANTIES WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS TO THE SUITABILITY, DURABILITY, FITNESS FOR USE, QUALITY, PERFORMANCE OR NON-INFRINGEMENT OF THE WIRELESS SERVICE OR EQUIPMENT OR THEIR USE IN CONNECTION WITH THE CUSTOMER PROVIDED EQUIPMENT OR THE CUSTOMER PRODUCT OR SERVICE. WITH RESPECT TO TOUCHTONE, CUSTOMER PURCHASES THE EQUIPMENT "AS IS." EQUIPMENT PURCHASED UNDER THIS AGREEMENT SHALL BE SUBJECT TO ANY WARRANTIES PROVIDED TO CUSTOMER BY THE EQUIPMENT MANUFACTURER.
14. LIMITATION OF LIABILITY. TOUCHTONE AND ITS AFFILIATES AND CONTRACTORS WILL HAVE NO LIABILITY TO CUSTOMER OR ANY END USER: A) IF CHANGES IN THE WIRELESS SERVICE OR IN THE UNDERLYING CARRIER’S NETWORK, SYSTEMS, OPERATIONS, EQUIPMENT, POLICIES OR PROCEDURES RENDER OBSOLETE OR OUTDATED ANY EQUIPMENT, HARDWARE, DEVICES OR SOFTWARE PROVIDED BY CUSTOMER TO END USERS IN CONJUNCTION WITH THEIR USE OF THE CUSTOMER PRODUCT OR SERVICE; B) FOR ANY CAUSES OF ACTION, LOSSES OR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF (I) MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, OR DEFECTS IN FURNISHING WIRELESS SERVICE, (II) FAILURES OR DEFECTS IN THE UNDERLYING CARRIER’S NETWORK OR SYSTEMS, (III) USE OF THE CUSTOMER PRODUCT OR SERVICE OR CUSTOMER’S EQUIPMENT, OR (IV) DISABLING OF EQUIPMENT PURSUANT TO SECTION 7.5(b). c) FOR ANY INJURY TO PERSONS OR PROPERTY, LOSSES (INCLUDING ANY LOSS OF BUSINESS), DAMAGES, CLAIMS OR DEMANDS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, USE OR INABILITY TO USE THE WIRELESS SERVICE OR EQUIPMENT, RELIANCE BY ANY END USER OR CUSTOMER ON ANY DATA PROVIDED OR OBTAINED THROUGH USE OF THE WIRELESS SERVICE OR EQUIPMENT, ANY INTERRUPTION, DEFECT, ERROR, VIRUS, OR DELAY IN OPERATION OR TRANSMISSION, ANY FAILURE TO TRANSMIT OR ANY LOSS OF DATA ARISING OUT OF OR IN d) CONNECTION WITH THIS AGREEMENT. IN NO EVENT SHALL TOUCHTONE OR ITS VENDORS BE LIABLE FOR LOSSES, DAMAGES, CLAIMS OR EXPENSES OF ANY KIND ARISING OUT OF THE USE OR ATTEMPTED USE OF, OR THE INABILITY TO ACCESS, LIFE SUPPORT OR MONITORING SYSTEMS OR DEVICES, 911 OR E911, OR OTHER EMERGENCY NUMBERS OR SERVICES.
15. LIMITATION OF DAMAGES. IN NO EVENT SHALL TOUCHTONE, ITS AFFILIATES AND CONTRACTORS BE LIABLE TO CUSTOMER, ANY END USER, OR ANY OF THEIR RESPECTIVE EMPLOYEES OR AGENTS, OR ANY THIRD PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
16. End User Service Agreement. Prior to authorizing any End User to access or use the Wireless Service or Customer Product or Service, Customer shall cause such End User to enter into a service agreement which contains the following provision, and which is otherwise reasonably satisfactory to TOUCHTONE: “End User EXPRESSLY UNDERSTANDS AND AGREES THAT IT HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH THE UNDERLYING WIRELESS SERVICE PROVIDER OR ITS AFFILIATES OR CONTRACTORS AND THAT End User IS NOT A THIRD-PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN Customer AND THE UNDERLYING CARRIER. IN ADDITION, End user ACKNOWLEDGES AND AGREES THAT THE UNDERLYING CARRIER AND ITS AFFILIATES AND CONTRACTORS SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO End User AND End User HEREBY WAIVES ANY AND ALL CLAIMS OR DEMANDS THEREFOR.”
17. Indemnification: 17.1. Mutual Indemnification: Each Party shall defend, indemnify, and hold harmless the other Party from any and all losses and damages claimed by a third party in any action or proceeding, against the indemnified Party alleging bodily injury (including death) or damage to property, caused by or alleged to have been caused by the negligence or other wrongful acts or omissions of the indemnifying Party, its employees and authorized agents while on the other Party’s premises, including any final monetary judgments, settlements, reasonable costs and reasonable attorneys’ fees awarded therein. 17.2. Customer Indemnity. TOUCHTONE shall not be liable for, and Customer shall defend, indemnify, hold harmless and forever discharge TOUCHTONE from, all damages (including personal injury or death and damage to property), claims, actions, losses, liabilities and other expenses (including reasonable attorneys’ fees), regardless of the time when they occur, that arise out of any action brought by an End User or other third party in connection with (i) it’s or Customer’s use of Wireless Service or the Customer Product or Service (used independently or in conjunction with the Wireless Service) or any Equipment or software used in conjunction therewith, (ii) any disabling of Equipment by TOUCHTONE, or (iii) any breach or violation of this Agreement by Customer including any representations and warranties provided herein. 17.3. Notice and Defense: The Party seeking indemnification shall: (a) provide the other Party with prompt Legal Notice of the claim; (b) allow the indemnifying Party to control the defense and settlement of the claim, provided, however, that the indemnifying Party shall not agree to any injunctive relief or settlement that obligates the indemnified Party to perform any obligation, make an admission of guilt, fault or culpability, or incur any expense, without such indemnified Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned; (c) have the right to obtain its own counsel at its own expense; and (d) provide reasonable cooperation to the indemnifying Party.
18. Customer’s Records and Audit. 18.1. Audit. Within ten (10) days after written request from TOUCHTONE, Customer shall provide photocopies of all business records evidencing Customer’s compliance with its obligations pursuant to this Agreement that TOUCHTONE may reasonably request including, but not limited to, records verifying the manner in which Customer uses the Wireless Service. 18.2. Violation of Authorized Use. If TOUCHTONE determines that M2M Lines have been used in a manner not permitted by the Authorized Use and Customer fails to cure such violation within thirty (30) days following Legal Notice from TOUCHTONE informing Customer of such violation, then, in addition to such other rights as TOUCHTONE may have under this Agreement or at law or in equity, TOUCHTONE shall have the following rights: a) to suspend or terminate such M2M Lines on notice to Customer; b) to retroactively bill Customer charges for such M2M Lines at TOUCHTONE’ standard non-discounted rates applicable to lines used in the manner such M2M Lines were used by Customer. Such charges shall be paid by Customer within thirty (30) days of the date of TOUCHTONE’ bill; c) if Customer continues using M2M Lines other than for the Authorized Use, TOUCHTONE may deny activation to new M2M Lines or may terminate this Agreement and any or all M2M Lines.
19. Governing Law: This Agreement and all claims relating to the relationship between CUSTOMER and TOUCHTONE, including all claims in tort, contract, at law or in equity will be governed by, construed, enforced and interpreted in accordance with the laws of the State of New Jersey without regard to the choice of law principles thereof. The Parties agree that any action related to this Agreement shall be brought and maintained only in a Federal or State court of competent jurisdiction located in New Jersey. The Parties agree that service of process, summons or notice or document by U.S. registered mail to such Party's respective address set forth herein, shall be effective service of process for any action, suit or proceeding in the domestic United States with respect to any matters to which it has submitted to jurisdiction as stated in this paragraph.
20. Compliance with Laws. 20.1. Customer shall comply with all federal, state and local laws, treaties, rules, regulations and ordinances applicable to the Customer Product or Service, including (i) all Federal Communications Commission rules and regulations, (ii) all privacy and security requirements, including those, if applicable, pertaining to medical devices or location-based services, and (iii) all consumer protection rules and regulations. Without limiting the scope of the foregoing, Customer agrees as follows: (a) it shall comply with Department of Treasury’s Office of Foreign Assets Control (OFAC) regulations to not provide the Wireless Service to any individual or entity appearing on the OFAC Specially Designated Nationals (SDN) list or that is the subject of an embargo or sanction; (b) all functionality provided by Customer does and will comply in all respects with the Communications Assistance for Law Enforcement Act (“CALEA”). Customer shall certify in writing on each anniversary of the Effective Date or on TOUCHTONE’ reasonable request, that it is in compliance with its obligations under this Section; (c) Customer shall comply with any federal, state and local laws, rules, regulations or legal requirements that apply to the manufacturing, marketing, sale or distribution of medical applications or medical devices in the United States, including the following and any related amendments, if applicable: (i) the Health Insurance Portability and Accountability Act (“HIPAA”); (ii) the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”); (iii) the Federal Food, Drug and Cosmetic Act (“FDC Act”); (iv) orders, rulings, guidance documents, policies, regulations and requirements of the U.S. Department of Health and Human Services and the U.S. Food and Drug Administration adopted under HIPAA, the HITECH Act or the FDC Act; (v) the Federal Trade Commission Act; (vi) orders, rulings, guidance documents, policies, regulations and requirements of the U.S. Federal Trade Commission; (vii) state laws and regulations regarding the adoption of policies and procedures to protect the privacy and security of personal information; (viii) state laws and regulations regarding the encryption of personal information; and (ix) state laws and regulations governing the unauthorized disclosure or breach of personal information, including breach notification laws. Customer shall also comply with any applicable laws, rules, regulations and policies related to software applications in any other countries where they are available. Customer agrees that it shall not seek any regulatory determination or decision relating to the medical applications and medical devices that may impose any legal obligations or restrictions on TOUCHTONE; (d) Customer acknowledges that the export, import, and use of certain hardware, software, and technological data provided under this Agreement is regulated by the United States and other governments and agrees to comply with all applicable laws and regulations, including the U.S. Export Administration Act, the regulations promulgated thereunder by the U.S. Department of Commerce, and any other applicable laws or regulations such as those that prohibit Equipment or Wireless Service from being used in or accessed by a national of Cuba, Iran, North Korea, Sudan, Syria or any other sanctioned or embargoed country. If Customer chooses to access or use the Equipment or Wireless Service or any website or portal maintained by TOUCHTONE from locations outside the United States, Customer does so on its own initiative and will be solely responsible for compliance with all applicable local use controls, laws and regulations, including those relating to the transmission of technical data exported from or imported to the United States or the country in which Customer is accessing or using the Equipment or Wireless Service or such website or portal. Customer acknowledges that TOUCHTONE has made no representations concerning the appropriateness or availability of the content on any website or portal maintained by TOUCHTONE (e) when accessed in locations outside the United States, and accessing same from locations where their contents are illegal is prohibited; and (f) if Customer elects to receive government funds, (1) Customer shall comply in all respects with any and all federal and state laws, rules, regulations and orders that apply to carriers receiving such funds, including, but not limited to, any exempting any certain class of End Users from assessment of any tax, fee, duty, surcharge or other tax-like charge (including, but not limited to, any restriction on the assessment of universal service fund surcharges or number portability fees against qualified, low-income subscribers), (2) TOUCHTONE shall have no obligation to Customer to make modifications or changes to any of its processes or procedures, the Wireless Service or the TOUCHTONE network used by Customer, in satisfaction of any federal or state requirements related to receipt of government funds, and (3) TOUCHTONE shall have no obligation to Customer to furnish, maintain or retain information in satisfaction of any federal or state requirements related to Customer’s receipt of government funds in the form of reports, records, maps, certifications, documentation or other forms of data. 20.2. TOUCHTONE shall comply with all federal, state and local laws, rules, regulations and ordinances to the extent applicable to the provision of Wireless Service under this Agreement.
21. Confidential Information: 21.1. Use and Disclosure: Each Party shall hold in confidence Confidential Information received from the other Party for the term of this Agreement and a period of 2 years thereafter. “Confidential Information” means information (in written, graphic, oral or other tangible or intangible form) concerning the disclosing party’s business, customers, products, services, trade secrets and personnel, and designated as confidential by the disclosing party (if tangible information) by conspicuous markings or (if oral information) by announcement at the time of initial disclosure and written documentation thereof within 30 days thereafter, or if not so marked or announced and documented should reasonably have been understood as being confidential information of the disclosing party either because of other legends or markings, the circumstances of disclosure or the nature of the information itself. Confidential Information may include proprietary material as well as material subject to and protected by laws regarding secrecy of communications or trade secrets, and may include information acquired by the disclosing party from a third party under an obligation of confidentiality. Confidential Information also shall include the pricing and other terms and conditions of this Agreement, which both Parties shall be required to hold in confidence. Neither Party shall disclose Confidential Information of the other Party to any third party or use Confidential Information of the other Party for any purpose other than as specified in this Agreement. TOUCHTONE may share Confidential Information with its affiliates (together with TOUCHTONE, the “TOUCHTONE Companies”) solely for the purpose of offering Customer current and future products and services available from TOUCHTONE COMMUNICATIONS. The Parties may disclose Confidential Information of the other Party to their agents that have a need to know under this Agreement and are bound by non-disclosure obligations that are substantially similar to those set forth herein. Customer’s agents are subject to the additional requirements set forth in the “Customer’s Use of Third Parties” section below. 21.2. General Exclusions: The foregoing restrictions shall not apply to information to the extent that it: (a) is or becomes publicly available through no act or omission of the receiving Party; (b) was already in the lawful possession of the receiving Party without an obligation of confidentiality; (c) is lawfully disclosed to the receiving Party by a third party without restriction; (d) is required to be disclosed by subpoena or other legal process, limited to the extent required by the terms of such subpoena or other legal process; (e) is approved in writing by the disclosing Party for further disclosure; (f) is independently developed without reference to the Confidential Information and is so documented by the receiving Party; or (g) is required to port telephone numbers. TOUCHTONE shall not be deemed to have received Confidential Information of Customer solely because Customer receives, transmits, obtains or otherwise exchanges such information through the use of the Wireless Service, or a TOUCHTONE service to Customer involves the hosting, transport or other similar handling of such information. 21.3. Permitted Usage and Disclosure of Confidential Information: Nothing contained herein shall prevent either Party from using or disclosing Confidential Information for the purposes of disclosing general information about this Agreement in limited internal announcements to its employees.
22. Marks. 22.1. Customer hereby acknowledges that the underlying carrier owned and/or licensed name(s), trademarks, and service marks (“Underlying Carrier Marks”) are the sole property of the underlying carrier and/or its parents or affiliates, and are good, valid, and enforceable in law and equity. Customer shall not challenge or assist in challenging the validity of registrations thereof, or engage in any activities or commit any acts, directly or indirectly, which may contest, dispute or otherwise impair the right, title and interest of the underlying carrier or its parents or affiliates therein. Customer neither has nor shall acquire, any right, title or interest in or to the Underlying Carrier Marks. 22.2. Customer shall not use any of the Underlying Carrier Marks, or any language from which the Underlying Carrier Marks may be inferred or implied, for any reason unless the underlying carrier has expressly approved such usage in writing in advance. Any unauthorized direct or implied use of the Underlying Carrier Marks by Customer shall be a material breach of this Agreement and shall constitute an infringement of the Underlying Carrier Marks.
23. No Agency. The Parties are independent contractors. Customer is not authorized to act as an agent for or legal representative of TOUCHTONE and does not have and shall not represent that it has any authority to assume or create any obligation on behalf of TOUCHTONE.
24. Wireless Service Availability: Wireless Service uses radio technologies and is subject to transmission and service area limitations, interruptions and dropped calls caused by atmospheric, topographical or environmental conditions, cell site availability, Equipment or its installation, governmental regulations, system limitations, maintenance or other conditions or activities affecting Wireless Service operation. Wireless Service and/or features may not be available in all areas. Wireless Service is only available within each applicable plan coverage area, within the operating range of the wireless systems, and with Equipment that is authorized to operate on the underlying carrier’s network.
25. Enhancement of Wireless Service: Due to regulatory requirements regarding the underlying carrier’s network licenses, Customer shall obtain the underlying carrier’s prior approval and written agreement before it may install, deploy or use any regeneration equipment or similar mechanism (for example, a repeater) to originate, amplify, enhance, retransmit or regenerate Wireless Service. TOUCHTONE may terminate lines and, upon Legal Notice, may terminate this Agreement and pursue any other available remedies if Customer violates this section.
26. Use of Wireless Service and Equipment: In order to protect the underlying carrier’s network, operations and other customers, TOUCHTONE may suspend or terminate service to affected lines if Customer uses the Wireless Service or Equipment: (a) in an illegal or unauthorized manner (including “spamming” or other abusive messaging); (b) in a manner prohibited by the applicable plan, option, feature or application; or (c) in a manner that has an adverse impact on the underlying carrier’s network, operations or customers. If Customer continues using the Wireless Service in such a manner, TOUCHTONE may deny activation to new M2M Lines or, upon Legal Notice, may terminate this Agreement.
27. Assignment: Provided an assignee possesses the financial and operational capabilities to perform under this Agreement and agrees in writing to assume and fully discharge all of the duties and obligations of the assignor arising under this Agreement, either Party may assign this Agreement in its entirety, without the other Party’s consent, to either of the following: (a) any entity that controls, is controlled by or is under common control with the assigning Party; or (b) a successor in interest to all or substantially all of the assets and business of the assigning Party. Customer may not assign its rights or delegate its duties under this Agreement to any direct competitor of TOUCHTONE without the prior written consent of TOUCHTONE. Except for the foregoing, neither Party may assign its rights under this Agreement to any other entity without the prior written consent of the other Party, which shall not be unreasonably withheld, delayed or conditioned. Subject to the provisions of this section, this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns, if any, of the Parties hereto.
28. Termination: Except as otherwise expressly stated in this Agreement, either Party shall have the right to terminate this Agreement for default if (i) the defaulting Party fails to comply with any material term, condition, or obligation of this Agreement; (ii) the non-defaulting Party provides Legal Notice to the defaulting Party specifying the default; and (iii) the defaulting Party fails to cure such default within thirty (30) days after receipt of such notice. If the defaulting Party has commenced to cure the default but it cannot reasonably be cured within the thirty (30) day period, then the non-defaulting Party may not terminate this Agreement as long as the defaulting Party takes appropriate steps to cure the default at the earliest reasonable time. Notwithstanding the foregoing, there shall be only a ten (10) day cure period with respect to a default by Customer based on (a) a violation of any Federal Communications Commission rule or regulation that could adversely affect any Federal Communications Commission spectrum license held by the underlying carrier or any of its affiliates.
29. in the Wireless Service area; (b) failure to certify or re-certify Equipment as required by Section 5.2 and Attachment B, or (c) Customer’s failure to make payments under this Agreement. If TOUCHTONE, as the defaulting Party, fails to cure as provided above, and Customer exercises its right of termination, Customer shall nevertheless remain responsible for all accrued charges incurred for Wireless Service, up to and including the effective date of termination, as well as any applicable ETFs for each M2M Line that was not directly affected by the breach.
30. Force Majeure: Any failure of TOUCHTONE to perform hereunder shall be excused if caused by failure of a third-party wireless or telecommunications provider serving a particular area, power failure, national emergency, interference by any governmental agency, acts of God, strikes, other labor disturbance, severe weather conditions, fire, terrorism, riots, war, earthquakes, or any other causes beyond TOUCHTONE’s reasonable control.
31. Notices: Whenever this Agreement calls for a “Legal Notice” to be given, notice shall be given in writing and shall be valid and sufficient if dispatched by: (a) registered or certified mail, postage prepaid, (b) hand delivery or (c) a nationally recognized express courier, and addressed to the address(es) for the receiving Party designated on the cover page of this Agreement (as may be updated in writing from time to time by Legal Notice). Notice to Customer may be made to Customer’s designated Authorized Contact(s). Any notice given in accordance with the foregoing requirements shall be deemed effective upon delivery. All other notices and communications related to this Agreement may be made via mail or e-mail to an Authorized Contact, mail to the billing address on the account, and/or message with Customer’s monthly bill.
32. Governing Law, Venue and Jurisdiction: Subject to the provisions of the “Dispute Resolution and Mandatory Arbitration” section above, the validity, construction and performance of this Agreement shall be governed and interpreted in accordance with the laws of the State of New Jersey without reference to its conflict of laws or other rules that would require the application of the laws of another jurisdiction. Each Party submits to personal jurisdiction exclusively in Johnstown, PA, and waives all objections to a Pennsylvania venue.
33. Counterparts and Admissibility of Copies: This Agreement may be executed in counterparts each of which when executed and delivered shall be deemed to be an original and all of which together shall constitute one and the same instrument. An electronic or facsimile copy of the executed Agreement or counterpart shall be deemed, and shall have the same legal force and effect as, an original document.
34. No Waiver: Any forbearance or delay on the part of either Party in enforcing any rights under this Agreement shall not be construed as a waiver of such rights. Any grant of a waiver in one instance shall not be construed as a continuing waiver in all similar instances. No provision of this Agreement shall be considered waived unless expressly waived in writing, signed by the party against whom enforcement of such provision is sought.
35. Severability: If any provision of this Agreement is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect. Moreover, the Parties agree that the invalid, illegal or unenforceable provision shall be enforced to the maximum extent permitted by law in accordance with the intention of the Parties as expressed by such provision.
36. Survival: Termination of this Agreement shall not affect either Party’s accrued rights or obligations under this Agreement as they exist at the time of termination, or any rights or obligations that either expressly or by implication continue after this Agreement has ended.
37. Entire Agreement: a. This Agreement including any attachments and the terms and conditions of any plans, options, features, and applications (collectively, “Service Offerings”) selected by Customer, constitute the entire agreement between the Parties with respect to the subject matter hereof. The terms and conditions of this Agreement shall prevail over any conflicting terms and conditions of a Service Offering, except for terms and conditions that are specific to the use of the selected service. This Agreement shall not be amended or modified without specific written agreement signed by both Parties. In no event shall any terms and conditions be added or modified by purchase order. This Agreement supersedes all prior agreements for the provision of Embedded M2M Lines of Wireless Service between Customer and TOUCHTONE. b. If Customer has an existing agreement governing telemetry or M2M Lines which are not Embedded in a Customer Product or Service, the terms and conditions therein are independent of this Agreement, and such provisions shall continue to apply to Customer’s other telemetry lines under that Agreement unless otherwise expressly noted herein.
REGULATORY DISCLOSURES
Customer Consent to Use CPNI: [Not Applicable to Arizona customers.] TOUCHTONE COMMUNICATIONS may need Customer’s permission to share information about Customer as described below. The Federal Communications Commission (“FCC”) and various states require TOUCHTONE to protect certain information that is made available to it solely by virtue of Customer’s relationship with it. This information is known as Customer Proprietary Network Information ("CPNI"), and it includes information relating to the quantity, technical configuration, type, destination, location, and amount of use of Customer’s telecommunications services purchased (including specific calls Customer makes and receives) and related local and toll billing information. CPNI does not include subscriber lists or published information (listed or unlisted), such as Customer’s name, telephone number and address; such information is not subject to the CPNI rules’ use limitations. TOUCHTONE COMMUNICATIONS acknowledges that Customer has a right under federal and state law to protect the confidentiality of Customer’s CPNI, and to direct TOUCHTONE COMMUNICATIONS not to use Customer’s CPNI or to limit use and disclosure of and access to it, and TOUCHTONE COMMUNICATIONS has a duty to comply with the limitations Customer designates. By its signature on this Agreement, Customer grants TOUCHTONE COMMUNICATIONS permission, solely for the purpose of offering Customer current and future products and services available from TOUCHTONE COMMUNICATIONS, to use, to permit access to and to disclose Customer’s CPNI among TOUCHTONE COMMUNICATIONS and to their agents, contractors, and partners. Customer has a right to disapprove of these uses of CPNI, and may withdraw or limit this consent at any time by e-mailing TOUCHTONE at business.support@TouchTone.net. Customer’s consent will remain valid until TOUCHTONE receives such a notice withdrawing consent. Customer’s refusal or withdrawal of consent will not affect the provision of services to which Customer subscribes.
1. Description. In addition to the general Terms and Conditions for Communication Services contained in the Rental Equipment Form (“Order Form”), and the TouchTone Agreement / TouchTone Service Order (TSO) between TOUCHTONE and Customer, of which this Schedule is a part, Customer agrees that the following terms and conditions apply to equipment rentals provided to Customer by TOUCHTONE. "Agreement" and/or “Service Order” refers to the written contract signed by Customer for the rental of TouchTone equipment, its attachments, these Terms and Conditions, other documents incorporated by reference, and the related Order(s). Customer's use of a particular equipment and service is also governed by the related product or service-specific terms and conditions ("Product specific Terms"). These “Product specific Terms” can be found at www.touchtone.net/terms.html. Customer also acknowledges that these terms can be modified from time to time, and should regularly check this Website. 2. Products. The Rental Equipment services and pricing are only available on a Rental Equipment that supports TouchTone provided service(s). Customer agrees that these items are the property of TouchTone Communications and agrees to use said devices/equipment for means of using TouchTone Services exclusively. 2.1 Delivery and Return. Products will be delivered to the Customer location that Customer identifies, in writing. Customer is responsible for cost associated for loss and or return of TouchTone’s Rental Equipment should customer give TouchTone the incorrect shipping address. Upon termination Customer is responsible for the return of the Products to TouchTone within thirty (30) business days of termination, otherwise, Customer’s account will be charged with the full Equipment Replacement Value. All Products must be returned in the same condition as they were on the Effective Date, normal wear and tear excepted. If the Products are not returned to TouchTone within thirty (30) business days of termination, then notwithstanding the termination, Customer will be responsible for purchasing the rented device or devices(s) at the Equipment Replacement Value which is the full current retail price per phone and/or device. You can find retail prices listed on each manufacturer’s Website. If Customer later returns the equipment (within 6 months of Termination of Service) the Customer will receive a credit to their account. However, TouchTone will retain prorated monthly equipment rental charges of the device plus any applicable minimum usage requirements, taxes and the cost of repair for any damage (if applicable). In the event of damage or loss to the rental equipment for which Customer is responsible, Customer will promptly notify TouchTone and either pay (i) an amount equal to the Equipment Replacement Value, or (ii) the cost of repairing the equipment, if TouchTone determines that the equipment is repairable. If TouchTone determines that the equipment is not repairable, then option (i) above will apply. Customer understands TouchTone has no control over quality of coverage and network conditions. It is further understood that not all features can be used in all areas. 2.2 Rental Charges and Security Deposit. TouchTone will conduct a credit review/credit check and will inform customer of said requirements before start of service. By authorizing the Equipment Rental Form, Customer will authorize payment of all one-time fees, as well as all equipment monthly recurring charges. 2.3 Ownership and Use. The Products are the personal property of TouchTone, its designee or a third party provider, notwithstanding that the Products, or any part thereof, may be affixed or attached to Customer’s real property or any improvements thereon. Customer has no right or interest to the Products other than as provided herein and will hold the Products subject and subordinate to the rights of TouchTone. Customer will: (a) at its own expense, keep the Products free and clear of any claims, liens, and encumbrances of any kind; and (b) make no alterations or affix any additions or attachments to the Products, except as approved by TouchTone in writing. Customer will not remove, alter or destroy any labels on the Products and will allow TouchTone the inspection of the Products at any time. As between TouchTone and Customer, Customer will bear the entire risk of loss, theft, casualty, destruction or damage to the Products following delivery from any cause whatsoever (collectively, “Product Loss”), until returned to TouchTone. Customer will indemnify, defend and hold harmless TouchTone its affiliates, and contractors for any Product Loss. Customer agrees to advise TouchTone in writing within five business days of any Product Loss. In no event will Product Loss relieve Customer of the obligation to pay TouchTone any amounts due under this Agreement. 2.3 Software. Software licensor has retained title to the software Products. The software licensor, grants Customer a software license in the software according to the licensing agreement accompanying that software, which extends only to Customer's own internal business use of such software and only on or with the designated Rental Equipment and is not transferable or sublicensable. Software must be held in confidence and may not be reproduced unless specifically authorized by the software licensor. Customer is prohibited from reverse engineering, decompiling or disassembling the Products or otherwise attempting to derive the source code of the software. All Products are subject to and Customer will comply with all the terms and conditions set forth in the software licensor’s warranty and, end-user license. 3. Maintenance. All Products manufactured by third parties are subject to, and Customer will comply with, all the terms and conditions for maintenance and warranty provided by the manufacturer. 3.1 Maintenance and Safety Compliance. TouchTone or the Product manufacturer may change these Terms and Conditions at any time, and that change will be effective upon posting to the Web site. Customer is responsible for informing TouchTone of the existence, location and condition of any Hazardous Substances that may be in or around the TouchTone work area. "Hazardous Substance" means a substance regulated by any safety regulation and includes, without limitation, asbestos. Customer will indemnify and hold TouchTone harmless from any fines or other liability of TouchTone arising from hazardous substances. 4. Rates. 4.1 The rates and charges for Products and Services are set forth in the “Rental Equipment Form(s)”, the TouchTone Agreement, TouchTone Service Order (TSO), and are incorporated herein by reference. TouchTone may cease providing Services and demand return of Products if payment is not made when due. 4.2 Rate Changes & Discontinuance. TouchTone may discontinue providing Service or Products, or modify any or all rates or charges for Service or Products which have completed “Initial Term” (defined on the Rental Equipment Form) upon 30 days written notice to Customer. Upon expiration of the Initial Term and only if the Agreement is in effect at such time, TouchTone will continue to provide and Customer will continue to pay for the Service or Product on a month-to-month basis at the rates specified on the Equipment Rental Form (each, a “Renewal Term”). The Initial Term and any Renewal Terms will together constitute the (“Equipment Term”). Any Renewal Term of a Product or Service will continue until the earlier of: (i) termination by either Party upon written notice not less than thirty (30) days before the expiration of the then-current Initial Term (or Renewal Term); (ii) expiration or termination of the Agreement in accordance with its terms; or (iii) extension of the Term for a specific period of time under to a TouchTone-accepted Order Form or written amendment. The license to the Products and the maintenance Service are subject to termination as provided in the manufacturer’s maintenance terms and conditions and licensor’s warranty and end-user license. 5. Term & Termination. 5.1 Rental Equipment Term. The “Initial Term” for each Service or Product ordered can be a twelve (12) month, twenty-four (24) month, or thirty-six (36) month period of time for which a specific Service or Product will be provided by TouchTone for Customer use as specified in the applicable TouchTone accepted Rental Equipment Form (“Order Form”). 5.2 Service & Product Orders. Customer can obtain Products and Services only if Customer completes an Order Form and TouchTone accepts it. All orders are subject to availability. All Order Forms will be governed by the rates, terms and conditions set forth in the Order Form, as well as those listed on www.touchtone.net/terms.html (which may be modified at any time). Customer will pay all applicable charges set forth in the Rental Equipment Form plus any charges on any order form. TouchTone may reject any Order Form in its sole discretion. 5.3 Start of Service Date. The Initial Term for Products and Services will begin upon the Start of Service Date, or ‘Ship Date,’ whichever occurs first, for the accompanying Service (as defined on the TouchTone Service Order for that service). If a Customer adds Rental Equipment to existing Services, the term for the associated Service will be altered to be co-terminus with the Rental Equipment Initial Term. The associated Services will not be re-rated unless all three of the following occur; (a) The specified Service to be re-rated is beyond the Service Term or Minimum Service Term specified in the original Order Form and is now receiving Service on a month-to-month basis; (b) Customer submits an Order form to have the specified Service re-rated at the same time the Service is altered to be co-terminus with the Rental Equipment Initial Term; (c) TouchTone accepts the Order From to re-price the existing Service. 6. Miscellaneous. 6.1 Insurance. Customer will, provide and maintain, at Customer's own expense, at all times following delivery of the Products, the following insurance: (a) “All-Risk” property insurance covering the Products for the full replacement value, naming TouchTone or a third party provider designated by TouchTone as a loss payee; and (b) commercial general liability insurance with limits of not less than $1,000,000 per occurrence and aggregate and naming TouchTone as an additional insured, unless such insurance is required elsewhere in this Agreement at higher limits. Such insurance will be placed with insurers who have a minimum “Best’s” rating of A- VII (A- 7), and will contain a provision to give TouchTone thirty calendar days prior written notice before any cancellation or material change to that insurance. Customer will deliver to TouchTone insurance certificates evidencing such insurance prior to delivery of such Products.
This Service Order Agreement (the “Agreement”, “Order Form”, “Service Agreement”, “Service Order Form”) is between TouchTone Communications, Inc. (“TouchTone”) and the Customer. Services provided are based on the Terms and Conditions contained herein and are subject to change with updated versions of this document available for viewing and download on www.touchtone.net. Updated versions of this document will take effect on the first date of the month following posting of the updated version, with updated versions identified with the month and year they become effective. Customer should therefore check the site regularly for updated versions. Customer accepts said Terms and Conditions, as acknowledged by signature on the relevant Order Form, and agrees to be bound by them. BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ AND UNDERSTAND FULLY ITS TERMS AND CONDITIONS. Definitions: • “ANI” means Automatic Number Identification. • “Customer VoIP Application” means the Class 5 VoIP application provided by Customer in connection with TouchTone SIP Trunk service. • “CPE” means Customer Premise Equipment, or equipment located at the customer premise used in conjunction with TouchTone SIP Trunk service. • “DID/DOD” means a telephone number assigned by TouchTone to Customer for use by a Subscriber with TouchTone Two-Way SIP Trunk service. • “Directory Listings” means the listing of a Subscriber’s telephone number in the LEC directory for a Market. • “International” means anywhere outside of the continental United States, including Alaska and Hawaii. • “IP” means Internet Protocol. • “LNP” means local number portability. • “NANP” means the North American Dialing (or Numbering) Plan. • “NRC” means non-recurring charge. A cost for a facility or product that only occurs one time or is not periodically charged. • “Operator and Directory Assistance” means live or automated operator assistance floor the placement of Subscriber calls, listing services and/or relate directory information. • “PSTN” means the public switched telephone network. • “Rate Center” means a geographic area (determined by the applicable LEC) within a LCA or Market that is associated with one or more specific NPAA/NXX codes. • “RBOC” means Regional Bell Operating Company • “Registered Address” means the address provided by customer in either written format on (i) appropriate TouchTone order forms, (ii) entered into appropriate TouchTone portals or (iii) other written communication to Customer’s TouchTone representative, which represents the physical location from which TouchTone’s SIP Trunking service and TNs associated with this service will be used. • “SIP” is the signaling protocol used between VoIP networks to establish, control and terminate voice calls. • “Subscriber” means an individual, end-user or telephone device assigned a DID/DOD. • “TCP/IP” means Transmission Control Protocol using IP. • “TN” means a telephone number assigned by TouchTone to Customer (or that Customer ports to TouchTone) and used by Customer in connection with TouchTone SIP Trunk for service. • “Toll Free Number” or “TFN” means a telephone number that supports NADP and is assigned by TouchTone to Customer or that Customer ports to TouchTone for use with the TouchTone SIP Trunk. • “U.S. Domestic” means the continental United States (excluding Alaska and Hawaii). • “VoIP” means voice over Internet protocol. 1. Services Provided: Provided that Customer is not in default of its obligations stated herein, TouchTone shall provide Customer with the Service ordered in the TouchTone Service Order Form, which Service Order Form is incorporated herein by reference, for the Service Term, the Service Term being defined in Section 9. If Customer has purchased or leased Equipment from TouchTone or its certified third party vendor then the Customer must install Equipment in accordance with instructions provided by TouchTone (or its third party vendor). In addition TouchTone Equipment must be used solely for the purpose of Service utilization. Customer is solely responsible to obtain, use and operate any equipment not provided by TouchTone that may be used in association with the Service. 2. Service Description: TouchTone SIP Trunking service provides local and long distance voice services via the TouchTone Network. Monthly rate is as stated on your service agreement per SIP line (or trunk) plus any additional per minute charges to international landline or cellular numbers. TouchTone SIP Trunking service will route between a Customer’s IP address and either the PSTN or another IP address with TouchTone delivering traffic to or receiving traffic from the Customer’s gateway device or IP-PBX via an Internet protocol connection using Session Initiation Protocol (“SIP”) signaling. Each SIP Trunk enables a single concurrent call but can be oversubscribed with multiple TouchTone assigned DIDs being accessible via a dedicated trunk. These services require Customer to provide their own legitimate service address. Only TNs or TFNs provided by TouchTone, or ported to the TouchTone network, can be used in conjunction with this service. 2.1 Unlimited SIP Trunking Service: Unlimited SIP Trunking service includes unlimited local and long distance calling throughout the Continental United States, Puerto Rico, Canada, and the U.S. Virgin Islands. For per minute rates to all other international landline and cellular destinations refer to www.touchtone.net, or contact TouchTone Customer Service. Customers must sign and return a “Letter of Authorization” with “Credit Card Payment Approval/Authorization Form” in order to obtain service. (2.2) Metered SIP Trunking Service: TouchTone Metered SIP Trunking service provides inbound and outbound long distance services via a DID assigned by, or ported to TouchTone, via a TouchTone IP address. During the Order Term, Customer will pay TouchTone the rates and charges for a particular Product or Service as set forth in the Service Order Form. (2.3.) Service Activation and Interoperability Date: TouchTone will work with the Customer to establish an initial activation date upon which their SIP Trunk service will be activated. Customer will be notified of the Interoperability Date by TouchTone and billing will commence on the first day service is operational, or no later than two (2) days from scheduled Interoperability Date. 3. Service Limitations: TouchTone SIP Trunking service does not provide Class 5 functions and features (e.g. dial tone, call waiting, call forwarding, voicemail, etc.), nor will the service provide any of the following call types: 900, 976, or 1010xxx. Domestic and International Outbound as well as Directory Assistance calls are only available if the calls originating Automated Number Identification (ANI) is a TouchTone assigned DID or a DID that has been ported to the TouchTone network, or a DID that has been listed, by the Customer, as an ANI. Domestic, International, as well as Toll-Free Incoming calls are only available on DIDs assigned by TouchTone or a DID that has been ported to the TouchTone network. All special configurations are subject to TouchTone’s approval and TouchTone reserves the right to terminate this agreement where proper interoperability testing has not been completed when required. Any traffic deemed to jeopardize the integrity of TouchTone’s network may be blocked by TouchTone at the sole discretion on TouchTone. (3.1) Emergency Services Dialing: Customer will have access to either basic 911 or Enhanced 911 (E911) as their default emergency calling service as long as the call’s originating Automated Number Identification (ANI) is a TouchTone assigned DID or DID that has been ported to the TouchTone Network. With E911 service, when a caller from the Customer’s registered address dials the digits 9-1-1, the TouchTone telephone number and subscriber’s Registered Address is automatically sent to the local emergency center serving your location. 911 calls are routed to designated Public Safety Answering Points (PSAPs) such as your local or county police, fire, and rescue departments. E911 automatically provides PSAPs with the telephone number of the 911 call, and is also capable of transmitting the customer's name and home address to assist in dispatching emergency care. In limited circumstances, Customers equipped with E911 may have their calls routed to the national call center. Please see the description below for an explanation of when this would occur and how this service operates. With basic 911 service, when a caller from the Customer’s Registered Address dials the digits 9-1-1, the call is sent to the local emergency center serving your location. But operators answering the call will not have automatic access to the caller’s call-back telephone number or the Registered Address because the emergency center will not be equipped to receive, capture, or retain Customer’s assigned TouchTone telephone number and/or Registered Address. Accordingly, callers must be prepared to provide both call-back and address information. If the call is dropped or disconnected, or if the caller is unable to speak, the emergency operator answering the call will not be able to call the caller back or dispatch help to the caller’s address. As additional local emergency centers become capable of E911 functionalities, TouchTone will automatically upgrade customers from basic 911 to E911 service. We will not notify Customer of the upgrade. In limited circumstances, Customers equipped with basic 911 may have their calls routed to the national call center. Please see the description below for an explanation of when this would occur and how this service operates. Certain TouchTone customers do not have access to either basic 911 or E911. If Customer does not have access to either E911 or basic 911, emergency calls placed using the digits 9-1-1 will be sent to a national emergency call center. A trained agent at the emergency call center will ask for caller’s name, telephone number, and location and then transfer the caller to the appropriate local emergency center or otherwise determine the best way to provide emergency services to the caller. Like Basic 911, the trained operators answering calls in the national call center will not have automatic access to the caller’s telephone number or Registered Address information because the national call center is not equipped to receive, capture, or retain Customer’s TouchTone telephone number and Registered Address, so the caller must be prepared to provide this information. Customer’s 911 calls may also be sent to a national emergency call center if there is a problem validating the Registered Address provided by Customer during provisioning, if Customer is located in an area that is not covered by the land line 911 network, or if Customer has basic 911 or E911 service but these call fails to complete and are routed to the national emergency call center for failover purposes. DISCLAIMER OF LIABILITY: CUSTOMER ACKNOWLEDGES AND AGREES THAT TOUCHTONE’S SIP TRUNKING SERVICE IS INTERNET BASED, AND THAT 911 OR E911 SERVICES ARE DIFFERENT THAN THAT OF TRADITIONAL WIRELINE SERVICE; AND THAT THESE SERVICES WILL BE UNAVAILABLE SHOULD THEY LOSE POWER OR INTERNET ACCESS. IN ORDER FOR CUSTOMER TO HAVE ACCESS TO 911 AND/OR EMERGENCY SERVICES, CUSTOMER MUST PURCHASE A PSTN CONNECTION FROM THE LOCAL EXCHANGE CARRIER, OR SIMILAR SERVICE PROVIDER. CUSTOMER FURTHER AGREES THAT THE ABSENCE OF THIS FEATURE HAS BEEN FAIRLY AND ACCURATELY DESCRIBED, BEFORE AND AFTER THE INSTALLATION OF TOUCHTONE SIP TRUNKING SERVICE. FOR BASIC 911 OR E911 TO BE ACCURATELY ROUTED TO THE APPROPRIATE EMERGENCY RESPONDER, THE CUSTOMER MUST PROVIDE THE TN ASSOCIATED WITH THE SIP TRUNKING SERVICE FOR THE REGISTERED ADDRESS, IN THE ‘USERPART’ OF THE ‘FROM URI’ CONTAINED IN THE SIP ‘FROM’ HEADER. CUSTOMER ACKNOWLEDGES THAT TOUCHTONE’S SIP TRUNKING SERVICE MAY NOT SUPPORT BASIC 911 OR E911 DIALING IN THE SAME MANNER AS TRADITIONAL WIRELINE PHONE SERVICE. CUSTOMER AGREES TO INFORM OF THE POTENTIAL COMPLICATIONS ARISING FROM BASIC 911 OR E911 DIALING. SPECIFICALLY, CUSTOMER ACKNOWLEDGES AND AGREES TO INFORM ALL EMPLOYEES, GUESTS, AND OTHER THIRD PERSONS WHO MAY USE THE SERVICE THAT BASIC 911 AND E911 SERVICES WILL NOT FUNCTION IN THE CASE OF A SERVICE FAILURE FOR ANY OF THE FOLLOWING REASONS: (A) POWER FAILURES, (B) SUSPENDED OR TERMINATED HIGH SPEED INTERNET SERVICE, (C) SUSPENSION OF SERVICES DUE TO BILLING ISSUES, AND/OR (D) ANY OTHER SERVICE OUTAGES NOT DESCRIBED HEREIN. CUSTOMER FURTHER ACKNOWLEDGES THAT FAILURE TO PROVIDE A CORRECT PHYSICAL ADDRESS IN THE REQUISITE FORMAT MAY CAUSE ALL BASIC 911 OR E911 CALLS TO BE ROUTED TO THE INCORRECT LOCAL EMERGENCY SERVICE PROVIDER. FURTHERMORE, CUSTOMER RECOGNIZES THAT USE OF THE SERVICE FROM A LOCATION OTHER THAN THE LOCATION TO WHICH THE SERVICE WAS ORDERED, I.E., THE “REGISTERED ADDRESS,” MAY RESULT IN BASIC 911 OR E911 CALLS BEING ROUTED TO THE INCORRECT LOCAL EMERGENCY SERVICE PROVIDER. Limitation of Liability and Indemnification: As described herein, TouchTone SIP Trunking Service is NOT the same as traditional 911 or E911 dialing, and does not necessarily include all of the capabilities of traditional 911 and E911 dialing. YOU ACKNOWLEDGE AND UNDERSTAND THAT TOUCHTONE'S ENTIRE LIABILITY IS LIMITED TO THE PRICE OF THE SERVICES PROVIDED. IN NO EVENT SHALL TOUCHTONE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR UNDERLYING SERVICE PROVIDERS BE LIABLE FOR ANY COSTS OR DAMAGES ARISING EITHER DIRECTLY OR INDIRECTLY FROM THE USE OF TOUCHTONE'S SERVICES INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, OR FOR ANY LOSS OF REVENUE, PROFITS, USE, DATA, GOODWILL OR BUSINESS OPPORTUNITIES OF ANY KIND OR NATURE WHATSOEVER, ARISING IN ANY MANNER FROM ANY CAUSE OF ACTION OR CLAIM RELATING TO THIS AGREEMENT OR TO THE SERVICES PROVIDED BY TOUCHTONE (INCLUDING, BUT NOT LIMITED TO TOUCHTONE’S VoIP SERVICES AND/OR INABILITY OF YOU OR ANY USER OF YOUR TOUCHTONE VoIP SERVICE TO BE ABLE TO DIAL 911, TO ACCESS EMERGENCY SERVICE PERSONNEL, TO ACCESS THE CORRECT PUBLIC SERVICE ANSWERING POINT ASSOCIATED WITH YOUR TELEPHONE NUMBER, OR TO CORRECTLY ROUTE AN EMERGENCY CALL IF YOU MOVE YOUR EQUIPMENT OUTSIDE OF YOUR SERVICE ADDRESS) UNLESS IT IS PROVEN THAT THE ACT OR OMISSION PROXIMATELY CAUSING THE CLAIM, DAMAGE, OR LOSS CONSTITUTES GROSS NEGLIGENCE, OR INTENTIONAL MISCONDUCT ON THE PART OF TOUCHTONE OR ITS UNDERLYING SERVICE PROVIDERS. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS TOUCHTONE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER UNDERLYING SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THIS AGREEMENT, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEY FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF YOUR TOUCHTONE VoIP SERVICE. Release: By purchasing TouchTone’s SIP Trunking Service and signing the VoIP E-911 Service Form during your sign up process, you acknowledge that you have read and understand, and agree to the terms and conditions of this Agreement and that you hereby expressly release TouchTone, its directors, officers, employees, agents and underlying service providers from any and all liability associated with your use of TouchTone’s VoIP Services. Sole Remedy: Customer’s sole and exclusive remedies are expressly set forth in this VoIP E-911 Service Form. Some jurisdictions may not permit the exclusion or limitation of implied warranties, and some jurisdictions may not permit the limitations or exclusion of incidental or consequential damages, so certain of the above exclusions may not apply. In such jurisdictions, the liability of TouchTone, its directors, officers, employees, agents and underlying service providers shall be limited to the maximum extent permitted by law. Additional: CUSTOMER ALSO ACKNOWLEDGES THAT A $250 CHARGE PER CALL WILL APPLY IF A CALL TO 911 IS MADE WITH A NON-REGISTERED ANI DISPLAYED AS CALLER ID.
3.2 Faxing: TouchTone SIP Trunking Service does not support faxing over IP, or faxing of any type. While Customer is welcome to use TouchTone SIP Trunking service for faxes, Customer understands that it is an AS-IS service and support, beyond basic assistance, cannot be given. Customer understands that TouchTone suggests customer acquires a land-line with their Local Exchange Provider (LEC) that is connected to the PSTN for use with Faxing. 3.3 Alarm Systems and Modems: TouchTone SIP Trunking Service is NOT compatible with alarm systems and modems. Customer understands that TouchTone recommends purchasing a land-line with their Local Exchange Carrier (LEC) for their market connected to the PSTN for use with any alarm system. 3.4 Service Moves: TouchTone Service requires a contracted Service Address. TouchTone Services may not be moved from a contracted Service address without written notification from the customer to TouchTone. Should Customer fail to notify TouchTone of a service move then TouchTone, at its sole discretion, may immediately suspend Customer service until such time as a Customer Move Order is processed. Customer understands that continuation of existing DIDs may be restricted by the location of the moved service. 3.5. Service Outages: (3.5.a) Service Outages Due to Power Failure or Disruption: If there is an interruption in the power supply, the Service will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the CPE prior to utilizing the Service. (3.5.b) Service Outages Due to Internet Outage, Suspension, or Disconnection of High speed Internet Service or Internet Service Provider ("ISP") Service: Service outages or suspensions or disconnections of service by your high speed Internet provider or ISP will prevent the SIP Trunk Service from operating. (3.5.c) Service Outage Due to Suspension or Disconnection of Your TouchTone Account: If the Customer’s account is suspended for any reason SIP Trunking Service will cease to work. (3.5.d) Service Outages Due to ISP or High speed Internet Provider Blocking Ports or Other Acts: You’re ISP, high speed Internet provider, or other third party may intentionally or inadvertently block the Internet ports over which the Service is provided or otherwise impede the usage of the service. If you suspect that this has happened to you, you should alert us to this situation and we will work with you to attempt to resolve the issue. During the period that the ports are being blocked or your service is impeded, your service may not function. You acknowledge that TouchTone is not responsible for the blocking of ports by any third party or any other impediment to your usage of the service, and any loss of service which may result. In the event you lose service as a result of the blocking of ports or any other impediment to your usage of the service, you will continue to be responsible for payment of the service charges unless, and until, you disconnect the service in accordance with this Agreement. (3.6.e) Other Service Outages: If there is a service outage for any reason, such outage will prevent all service from functioning. Such outages may occur for a variety of reasons, including, but not limited to, the reasons described elsewhere in this Agreement. 4. Service Availability: The Service is available throughout the Service Term, except in the case of scheduled maintenance of the TouchTone network and/or its underlying carrier’s network. TouchTone will use commercially reasonable efforts to provide prior notification via electronic mail (“email”) to Customer regarding any scheduled maintenance of Service. TouchTone may interrupt Service for unscheduled emergency maintenance without notice to Customer or Customer’s customers. 5. Interoperability Requirement: Customer must complete the Interoperability Worksheet/Certificate provided to them to identify all necessary interoperability requirements. TouchTone takes no responsibility for installation or configuration of customer Phone System, or any responsibility related to connecting a customer’s Phone System to any TouchTone provided equipment. TouchTone is not responsible for Service availability should Customer fail to complete the Interoperability Worksheet/Certificate. 6. IP originated and Terminated Traffic: All user traffic must be IP originated or IP terminated. “IP Originated” shall mean voice traffic which Customer represents and certifies as utilizing TCP/IP as a transmission protocol from the Customer’s originating equipment (i.e. SIP PBX, SIP Gateway, etc.) to a TouchTone gateway. Traffic identified as non-IP originated is subject to an additional $0.05 per minute charge. “IP Terminated” shall mean voice traffic which Customer represents and certifies as having the ability in utilizing TCP/IP as a transmission protocol from a TouchTone gateway to Customer’s equipment (i e. SIP PBX, SIP Gateway). 7. Porting Numbers: TouchTone will require a completed and signed Letter of Authorization (“LOA”) for any TNs or toll free numbers the customer wishes to port. In addition, TouchTone will require a recent, applicable copy of the Customer’s current phone bill which contains the Customer’s Billing Telephone Number (“BTN”) as well as a record of any numbers that need to be ported. Necessary LOA(s) and Bill Copy(s) must be received by TouchTone before TouchTone initiates the port request. 8. Service Agreement Term and Service Term: The initial Service Agreement Term shall be at least one (1) month and up to three (3) years from the Effective Date of the unique, or any, Service Order Form(s) signed by Customer, with the specific initial Term of the Service Agreement as stated on each such Order Form. The term of the Service Agreement will automatically renew for successive initial term period, or one (1) year, whichever is less, unless terminated in writing by TouchTone or by Customer pursuant to the Termination Section of this Agreement at least thirty (30) days prior to the expiration of the then existing Term of the Service Agreement. The initial Service Term for any TouchTone service(s) provided to Customer shall be at least one (1) month and up to three (3) years from the Service Commencement Date depending on the Service Term stated on the unique, or any, Order Form(s) signed by Customer. Upon expiration of a Service Term for a particular Service(s), the Service Term will automatically renew for successive initial term periods, or one (1) year periods, whichever is less, unless terminated in writing by TouchTone or by Customer pursuant to the Termination Section of this Agreement at least thirty (30) days prior to the expiration of the then existing Service Term. When the Term of the Service Agreement expires or is terminated, existing Services continue in effect for the remainder of the Service Term(s) and will continue to be governed by the Agreement. In the event of automatic renewal, TouchTone reserves the right to: (i) maintain the same prices and rates for the Service(s) as stated on affected Service Order Form or (ii) terminate the Service(s) as stated on affected Service Order Form or (iii) modify prices and rates for the Service(s). 9. Service Support: TouchTone provides support for the Services as described at www.touchtone.net. TOUCHTONE DOES NOT SUPPORT CUSTOMER SERVICES BEYOND THE TOUCHTONE POINT OF DEMARCATION. 10. CPE Purchase, Maintenance, Support, and Repair: Please see CPE Terms and Conditions found at www.touchtone.net. 11. Charges for Service: The monthly recurring charge(s) (“MRC”) and any non-recurring charge(s) (“NRC”) for Service is stated in said Service Order Form. Service charges are exclusive of applicable taxes and surcharges, including the Federal Universal Service Fund surcharge that TouchTone passes on to its Customers if it is charged to TouchTone. TouchTone reserves the right to review the Customer’s credit worthiness. At its sole discretion, TouchTone may require a security deposit to continue providing Service should Customer’s credit profile be unacceptable in TouchTone’s opinion. Additionally, at its sole discretion, TouchTone reserves the right to demand immediate payment by federal wire or transfer and block Customer’s voice traffic should TouchTone determine Customer’s usage exceeds their approved level of credit. Except for items outlined in this agreement, TouchTone shall not increase pricing during the initial Term of a Customer Order, but thereafter TouchTone may increase pricing upon at least thirty (30) days’ written notice. All rates and charges are subject to change immediately in the event there are mandated surcharges or taxes imposed by federal, state or governmental agency. Notwithstanding the foregoing, in the event of Regulatory Activity, TouchTone reserves the right, at any time with as much advance written notice as reasonably possible and without liability, to: (I) pass through to Customer all, or a portion of, any changes or surcharges or taxes directly or indirectly related to such Regulatory Activity; (ii) modify the Service, rates (including any rate guarantees), promotions, terms and/or conditions of this Agreement in order to conform to such action; or (iii) if such Regulatory Activity materially and adversely impairs the provision of Service under the Agreement, as reasonably determined by TouchTone, terminate the Agreement. Your first invoice will include partial/prorated monthly charges, a one month in advance service charge, and any one time set up fees. For each month thereafter, customers will be billed at the price listed on the Service Agreement for any monthly recurring charges on the first week of each month for the next 30 days of service and will be billed on the first week of each subsequent month for Services for the next 30 days, plus any charges which were accrued previously for any overages. If you attempt to terminate Service prior to the end of a monthly term, you will be responsible for the full month’s charges to the end of the then-current term, including without limitation unbilled charges, all of which immediately become due and payable. Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid accrued charges due in relation to the Agreement. 12. Disputed Invoice Charges. If Customer disputes a charge in good faith, it may withhold payment of that charge so long as Customer (A) makes timely payment of all undisputed charges; and (B) within 30 days of the invoice date, provides TouchTone with a written explanation of the reasons for Customer's dispute of the charge. Customer must cooperate with TouchTone to promptly resolve any disputed charge. If TouchTone determines, in good faith, that the disputed charge is valid, TouchTone will notify Customer and, within five business days of receiving notice, Customer must pay the charge. If the dispute relates to billing errors, TouchTone may credit or debit, as applicable, the net difference between any discovered overcharge or undercharge. This provision does not modify any other payment dispute provisions. 13. Additional Charges: Set Up Fee: Set up fees may apply. See Service Agreement for details. Disconnect Charges: For any request to disconnect or port out a TouchTone assigned TN, a one-time charge of $5 per TN may apply. LNP Charges: For cancelled LNP requests more than 48 hours before the FOC (Firm Order Commitment) Date, a one-time charge of $6 per TN may apply. For cancelled LNP requests within 48 hours of FOC, a one-time charge of up to $75 per TN may apply. For any request to reinstate a newly ported phone number to the original carrier within 24 hours, a one-time charge of up to $300 per number will be assessed. Payphone Surcharges: In the event the Customer’s 8XX Toll-Free TN receives any inbound calls originating from a Payphone, these calls will be subject to a charge per call. The charges are based on regulated FCC Payphone Compensation rules. These regulatory charges (approximately $0.60 per call) will be passed through directly to the customer. Call Duration Thresholds: Customer agrees that 90% of all incoming and outgoing calls shall have a six (6) second or greater call duration. If 10% or more of Customer’s completed calls are equal to or less than six (6) seconds in length during any billing cycle then TouchTone reserves the right to charge, and Customer shall pay, a $0.01 charge per short duration call. This charge will be in addition to Customer’s current rates. Enforcement will not be automatic, but will be at the discretion of TouchTone, should Customer have less than 90% of all calls as having duration of higher than 6 seconds in any given month. Individual products may have alternate call duration thresholds. If the service agreement or order form contains specific call duration thresholds then those thresholds found on that service agreement or order form will supersede those found in these Terms and Conditions. Inbound Minute Thresholds: If you have subscribed to TouchTone’s SIP Trunking Unlimited Service, the Service is provided to you as a business user. You are not to resell or transfer the service to any other person for any purpose, without express written permission from TouchTone in advance. You agree that the TouchTone plan does not confer the right to use the service for auto-dialing, continuous or extensive call forwarding, telemarketing (including without limitation charitable or political solicitation or polling), fax broadcasting or fax blasting, internet connections or other data applications (including access to corporate LANs). TouchTone reserves the right to immediately terminate or modify the Service, if TouchTone determines, in its sole discretion, that Customer’s service is being used for any of the aforementioned activities, or any other activities that would be inconsistent with normal usage patterns. If TouchTone determines that the usage is not consistent with normal voice applications, the Customer shall forfeit eligibility for rates under this plan, and TouchTone may adjust the charges to the “SIP Trunking Unlimited” plan, and all other calls, to reflect TouchTone’s standard rates per minute. This may be done at the discretion of TouchTone. Long Distance Minimum Threshold: For TouchTone’s SIP Trunking Metered Service, for any month in which the Customer does not accrue total usage charges greater than or equal to ten dollars ($10) per SIP Trunk, TouchTone reserves the right to charge Customer for any shortfall up to ten dollars ($10) per SIP Trunk. For example if Customer currently has 10 TouchTone SIP Trunks and in any given month accrues only $82 in total usage charges, TouchTone reserves the right to invoice Customer for the shortfall amount of $18. The enforcement of this minimum threshold is at the discretion of TouchTone should the customer’s long distance usage not reach the minimum threshold in any given month. Individual products may have alternate long distance minimum thresholds. If the service agreement or order form contains specific long distance minimum thresholds then those thresholds found on that service agreement or order form will supersede those found in these Terms and Conditions. Call Rating: All calls shall be rated as intrastate, interstate or international long distance. This distinction of interstate versus intrastate versus international long distance will be determined based on the Originating Automatic Number Identification (ANI) and Terminating ANI provided in the call signaling. TouchTone utilizes the value in the ‘FROM’ field in the SIP header as the Originating ANI for establishing the jurisdiction of the call (i.e. interstate versus intrastate versus international). However, in the event a value is present in any of the SIP header fields used for caller id (e.g. Remote Party ID, P-Assert-Identity), TouchTone may use this in lieu of the “FROM” field as the Originating ANI to determine the jurisdiction of a call. If TouchTone cannot accurately rate a call due to an invalid or omitted Originating ANI, and its rating jurisdiction is not international, TouchTone will default to rating the call at the prevailing intrastate long distance rate. TouchTone will determine the originating or terminating carrier by evaluating the Terminating ANI down to the NPA-NXX-X level. Customer is also required to maintain the originating ANI for all outbound calls and abstain from any level of ANI manipulation in the call signaling. International Rates: If no rate schedule is attached, international rates are available at www.touchtone.net. International per minute rates are subject to change and Customer should check for updates on a regular basis. TouchTone reserves the right to restrict dialing to high cost and/or high fraud international routes. Customers may request to have this block removed by filling out and submitting an International Block Waiver form found at www.touchtone.net. Interstate Rates: All interstate dialing will be billed at the quoted per minute rate as indicated on your Service Agreement. Rate information can be found at www.touchtone.net and are subject to change and therefore, should be checked by Customer frequently. Interstate rates are determined based on the State and/or jurisdiction of the ANI that is being out-pulsed by the Customer’s equipment compared to the State and jurisdiction of the dialed number. If both the out-pulsed ANI and the dialed number are not within the same State, then the call is considered interstate. If the call jurisdiction is considered indeterminate, the calls will be billed at the intrastate rate. Intrastate Rates: All intrastate dialing will be billed at the quoted per minute rate as indicated on your Service Agreement. Rate information can be found at www.touchtone.net and are subject to change and therefore, should be checked by Customer frequently. Intrastate rates are determined based on the State and/or jurisdiction of the ANI that is being out-pulsed by the Customer’s equipment compared to the State and jurisdiction of the dialed number. If both the out-pulsed ANI and the dialed number are within the same State, then the call is considered intrastate. 8XX Toll Free Inbound Rates: 800 origination service is only available to 8XX Toll Free DIDs provided by or ported to TouchTone’s network. 800 inbound calls are billed at the quoted per-minute rate as indicated on your Service Agreement, with the exception of calls originating from the following extended locations. The per-minute rates for these locations are subject to change at any time. Customer should check these rates on a frequent basis. • Alaska • Canada • Hawaii • Puerto Rico • US Virgin Islands
Directory Assistance: TouchTone’s SIP Trunking service may provide Directory Assistance (i.e. 411, XXX5551212). Specific per call or per minute of use rates may apply. RBOC / Wireless Thresholds for Flat Rate Charges: Customer agrees to maintain at least 70% of all domestic terminating traffic to a Regional Bell Operating Company ("RBOC") or Wireless PSTN providers. TouchTone shall have the right to apply a $0.04 per minute surcharge to the number of domestic minutes by which Non-RBOC "terminations" exceed 30% of total monthly terminating service minutes. A list of RBOC OCNs will be provided to the customer upon request. Individual products may have alternate RBOC/Non-RBOC thresholds. If the service agreement or order form contains specific RBOC/Non-RBOC thresholds then those thresholds found on that service agreement or order form will supersede those found in these Terms and Conditions.
14. Billing Increments: Billing increments are set forth below.
Terminating Destination - US Domestic (Continental US) - 6 second initial billing increments, 6 second additional billing increments
Terminating Destination - International (including AK and HI) - 30 second initial billing increments, 6 second additional billing increments
Terminating Destination - Mexico - 60 second initial billing increments, 60 second additional billing increments
15. Billing and Payment: TouchTone shall invoice Customer for Service rendered at the rates stated in said Order Form. Invoices shall include all applicable federal, state, and local taxes. All such taxes, and all use, sales, commercial, gross receipts, privilege, surcharges, or other similar taxes, license fees, miscellaneous fees, and surcharges, whether charged to or against TouchTone, Inc. which shall be payable by the Customer. However, if Customer provides proof of its specific tax exempt status, TouchTone shall not charge applicable taxes due to such exemption. Customer shall supply TouchTone a valid and properly executed tax exemption certificate(s). In such cases the Customer remains responsible for, and agrees to pay, any and all remaining non-exempt charges; tax exemption status validation is solely the responsibility of the Customer and TouchTone will not be obligated to consider any retroactive tax exemption. TouchTone shall commence billing for the monthly recurring charges and usage (the Service) on the Service Commencement Date. Your first bill may be higher than you expected. First and second month charges for the recurring Service(s) are billed upon Service Commencement. Where applicable, service charges for the first partial month of service will be pro-rated and billed. Call usage charges are billed after the actual calls and usage has occurred. Payments are due within thirty (30) days of the invoice date. After thirty (30) days of nonpayment, all fees will accrue interest at a rate of one and one-half percent (1.5%) per month or any part thereof, or the highest rate allowed by applicable law, and customer shall pay all collection costs incurred by TouchTone (including, without limitation, reasonable attorney’s fees). At any point beyond provided invoice due date, where Customer has failed to make satisfactory payment as so judged by TouchTone, then TouchTone may give Customer written notification that Customer has committed a material breach of the Agreement due to non-payment. Said notification will be provided a minimum of five (5) business days prior to Service suspension or termination. Customer must pay all outstanding charges, within said notice period, to avoid suspension or termination of Service. If Service is terminated due to non-payment, then the Termination fees described in the Material Breach Section shall apply. In its sole discretion, TouchTone may: (I) require a security deposit to continue the provisioning of Service(s) if Customer’s approved level of credit is deemed insufficient; (ii) change payment terms, billing cycle, and/or Due Date; (iii) demand immediate payment by wire or other means and discontinue Service(s) without notice should Provider determine Customer’s usage exceeds their approved level of credit; (iv) immediately block Customer’s Service(s) if a Customer’s pre-paid balance is depleted or is at a level that cannot cover Customer’s estimated traffic during the time required for the Customer to replenish their prepaid balance, or if Customer refuses to make any requested payments. TouchTone retains the right to bill, including any amended or corrected billing, for the Service(s) for a period of up to twelve (12) months, commencing from the date the billed Service(s) were provided to Customer. TouchTone shall retain such billing rights for this twelve (12) month period notwithstanding any prior billing to Customer for the same period(s) and regardless of any otherwise conflicting billing conditions in this Agreement. Customer agrees that for the duration of this twelve (12) month period, TouchTone shall not be deemed to have waived any rights with regard to billing for the provided Service(s) that are subject to this period, nor shall any legal or equitable doctrines apply, including estoppels or laches. 16. Resumption of Service: If Customer requests that Service be restored after a suspension or termination, TouchTone has the sole and absolute discretion to restore such Service and may condition restoration upon satisfaction of such conditions as TouchTone determines is necessary for its protection, including requiring Customer to execute a new agreement, pay all past due statements in full, pass TouchTone’s credit approval, and/or make advance payments. New nonrecurring charges also may apply to restore Service. 17. Additional NRC (if applicable): In addition to the standard NRC listed above, the following NRCs, if applicable, will apply: Service Reinstatement Fee: $200.00 plus any charges imposed by underlying carrier(s) Missed Appointment Fee: $200.00 Rejected Credit Card/Unpaid Check: $40.00 (or legal limit) Relocation: Relocation within same rate center is $75.00; Relocation to new rate center is $275.00 Upgrade Charge: Dependent on specific upgrade Downgrade Charge: Dependent on specific downgrade 18. Inside Wiring for VoIP Component: It will be the customer's responsibility to provide any needed internal wiring or extensions (and required conduit, facilities, power, etc) for the Equipment and phones required to use the service. 19. Material Breach: TouchTone or Customer may terminate this Agreement and the Service(s) provided hereunder in the event of a material breach that is not cured within thirty (30) days following the delivery of written notice specifying said breach, except in the case of serious material breaches, so judged by TouchTone. Such notice from Customer must be in the form of an email sent to voip.support@touchtone.net, with “Notice of Material Breach” in the subject line of the email and Customer’s contact information and detailed explanation, including supporting documentation if available, in the body of the email. Such notice from TouchTone shall be in the form of an email to the Customer. (19.1) In the event of an uncured material breach by TouchTone: The Agreement and Service(s) shall be terminated without further liability to the Customer, however, in such cases Customer shall remain responsible for a lump sum equal to: (a) the applicable monthly charges, plus (b) charges for Service(s) actually and properly received prior to the date of Breach notification, (c) one hundred percent (100%) of the past due balance at the time of termination, and (d) any non-recurring charges originally waived by TouchTone. (19.2) In the event of an uncured material breach by Customer: If the customer is found to be in material breach, such as early termination of this Agreement, the following termination fees shall apply: (a) the applicable monthly charges and monthly minimums usage requirements (b) an early termination fee of $50 per voice line if your Service is cancelled before completion of the term (this fee is subject to applicable state and local laws) (c) charges for Service(s) received prior to the date of Breach notification, (d) one hundred percent (100%) of the past due balance at the time of termination, and (e) any non-recurring charges originally waived by TouchTone. Customer understands that these fees are not a penalty, but are part of our rates and/or actual costs incurred by TouchTone. 20. Termination: Upon termination of the Service Agreement and/or the Service(s) not due to a material breach, TouchTone will disconnect, or will cause to be disconnected, the Service(s) if notified by the Customer in writing via email to voip.support@touchtone.net, or fax, with confirmation of receipt, no less than thirty calendar (30) days notice prior to termination of the Agreement and/or Service(s). In all such cases, Customer retains the sole responsibility for notifying TouchTone of any and all requests for termination or disconnection of Service(s), including but not limited to the porting out of billable telephone numbers (also referred to as “DIDs”), whether port outs are known or unknown by Customer; and, Customer remains responsible for all billable charges related to terminated Service(s) until TouchTone is notified in writing as specified. Any request by Customer for cancellation or termination at any time within the Service Agreement Term and/or Service Term set forth in this Agreement, including: prior to installation, or at any time prior to the Service Commencement or Activation Date, or in the case of early termination by Customer, will be considered a Material Breach by the Customer and shall be subject to the applicable Material Breach provisions as outlined in the Material Breach section of this agreement. In the event TouchTone determines, in its sole discretion, that Customer’s ongoing use of Service(s) or the specific method or technology utilized by the Customer places TouchTone’s network, other customers, partners or the overall businesses of each in jeopardy, TouchTone reserves the right to terminate Service(s) immediately without notification. TouchTone reserves the right to increase pricing with thirty (30) days written notice. In this event, Customer has the option to terminate the Agreement without penalty. Customer will still be responsible for any applicable monthly charges for services rendered, and one hundred percent (100%) of the past due balance at the time of termination. 21. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES (21.1) Limitation of Liability: We will not be liable for any delay or failure to provide the Service, including 911 or E911 Dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following: • an act or omission of an underlying carrier, service provider, vendor or other third party; • equipment, network or facility failure; • equipment, network or facility upgrade or modification; • 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; • equipment, network or facility shortage; • equipment or facility relocation; • service, equipment, network or facility failure caused by the loss of power to you; • outage of, or blocking of ports by, your ISP or high speed Internet service provider or other impediment to usage of the Service caused by any third party; • any act or omission by you or any person using the Service or Device provided to you; or • 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. Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period. IN NO EVENT WILL TOUCHTONE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY, 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 THE INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 OR E911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP, OR ANY OTHER ASPECT OF THE SERVICE. 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. (21.2) Indemnification: You shall defend, indemnify, and hold harmless TouchTone, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party or user, authorized or not, of the Service, anything relating to the Services, including, but not limited to, Network Availability, 911 or E911 Dialing, or the CPE. (21.3) No Warranties on Service: WE MAKE NO 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 CUSTOMER'S 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 TOUCHTONE NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF TOUCHTONE'S OR ITS SERVICE PROVIDER'S OR VENDORS' NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY TOUCHTONE OR TOUCHTONE'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. 22. Survivability: The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive. 23. Miscellaneous: Customer acknowledges and understands that Customer is to receive the Service detailed in this Agreement and the Customer is not relying on any affirmation of fact, promise or description from any person or entity, nor any other oral or written representation other than what is contained in this Agreement. Handwritten alterations or additions to this agreement made by Customer will not be considered part of this Agreement. This Agreement may only be modified, or any rights under it waived, by a separate written document executed by both parties. This Agreement shall be governed by, construed under, and enforced in accordance with, the laws of the State of New Jersey without reference to its choice of law principles. For any action or suit to enforce any right or remedy of this Agreement, (except for actions to enter or collect on judgments) the parties consent to exclusive jurisdiction and venue in the courts of Morris County, New Jersey and the prevailing party shall be entitled to recover its costs, including reasonable attorney’s fees. In the event of a conflict between this Agreement and any applicable tariff, the tariff shall prevail. Customer may not assign this Agreement without TouchTone’s prior written consent. This Agreement shall be binding on the parties hereto and their respective personal and legal representatives, successors, and permitted assigns. If any provision of this Agreement is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby. Customer signatory certifies that (s)he is an officer or certified representative of the Customer, and as such is authorized to enter into this binding Agreement. In the event any specified time frame or deadline denotes calendar days, it is agreed that when the last date of required action or response falls on a weekend or holiday, the action and/or deadline shall automatically extend to the next business day. Agreement headings are provided for reference purposes only. Any failure by TouchTone to enforce any right shall not be deemed a waiver of any such right. THIS AGREEMENT, TOGETHER WITH ANY ATTACHMENTS, INCLUDING ANY SCHEDULES, ADDENDUMS, PRICE LISTS, SERVICE ORDERS, TERMS AND CONDITIONS, SERVICE LEVEL AGREEMENTS, AND ACCEPTABLE USE POLICIES, WHICH MAY BE POSTED AT WWW.TOUCHTONE.NET, AND WHICH ARE INCORPORATED HEREIN BY REFERENCE, CONSTITUTE THE ENTIRE UNDERSTANDING BETWEEN THE CUSTOMER AND TOUCHTONE, INC, WITH RESPECT TO THE SERVICE(S) PROVIDED HEREIN. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT CUSTOMER IS NOT RELYING ON ANY AFFIRMATION OF FACT, PROMISE OR DESCRIPTION FROM ANY PERSON OR ENTITY, NOR ANY OTHER ORAL OR WRITTEN REPRESENTATION OTHER THAN WHAT IS CONTAINED IN THIS AGREEMENT AND ANY INCORPORATED DOCUMENTS. 24. Acceptable Use Policy: All use of Service must comply with TouchTone’s Acceptable Use Policy (“AUP”), which is posted at www.touchtone.net, and is incorporated herein by reference. By accepting TouchTone Service, Customer agrees to comply with this AUP and any subsequent modifications thereto. TouchTone reserves the right to modify this AUP from time to time, effective upon posting the AUP as modified at the URL shown above. Violation of the AUP shall be considered a material breach of this Agreement pursuant to Section 23. 25. RFC 3621 Compliance: This service is based on RFC 3261 – “SIP-Session Initiation Protocol” and requires Customer to conform to this standard. In the event TouchTone determines that Customer is in violation of RFC 3261 and this violation prevents TouchTone from accurately rating or billing Customer’s calls, TouchTone reserves the right to bill the customer based on their estimated usage and rates, based on TouchTone’s discretion. 26. Resale Prohibition: The Service provided shall be for Customer use only with no authorization for the Customer to resale service to others. Customer agrees to comply with said prohibition and understands should Customer fail to adhere to this provision TouchTone shall immediately terminate Customer’s service. Additionally, TouchTone shall find Customer in breach of contract with full termination penalties due as outlined in sections 20-21 of this agreement. Customer will also be liable for any additional charges and damages which may be incurred as a result of unauthorized resale. 27. Dispute Resolution Process and Applicable Law: (27.1) Arbitration: It is the mutual desire of the parties to promptly and fully resolve any dispute arising in connection with this Agreement in good faith, confidentially, and informally with minimal transaction costs and no public statement may be made by any party regarding any such dispute. If either party determines that the dispute cannot be resolved informally, then such party shall initiate an escalation process by giving written notice (“Escalation Notice”) to the other party. Each party shall name one executive as its representative, to be a person knowledgeable of the subject matter in dispute and someone with authority to discuss the dispute (hereinafter the “Officers”). The Officers shall meet in person or by conference call, together with any persons assisting them, within fifteen (15) days after delivery of the Escalation Notice. All negotiations conducted by the Officers are confidential and shall be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and any state rules of evidence. The Officers shall conduct such additional meetings as they deem necessary to exchange relevant information, will appoint staff to engage in resolution of any disputed facts, and will attempt to resolve the dispute. Should the Officers be unable to resolve the dispute within such fifteen (15) days, or within such additional time as the parties may otherwise agree to in writing, either party may demand mediation, whereupon the parties shall, in good faith, mediate the dispute no later than thirty (30) days after such demand through the services of a mutually selected mediator, the cost of whom shall be borne equally by the parties, at a date and location selected by the mediator after consultation with the parties. If the dispute is not resolved after applying the escalation procedures set forth above, the parties agree to waive any right to trial by jury in any judicial proceeding arising under or related to the subject matter of this Agreement, and agree to submit all controversies, claims and matters of difference to arbitration according to the commercial rules and practices of the American Arbitration Association (“AAA”). Arbitration hereunder shall occur within sixty (60) days of the date of submission before a single neutral arbitrator having significant experience in the subject matter of this Agreement and who will selected in accordance with AAA rules. Arbitration proceedings shall take place in Morris County, New Jersey. Discovery shall be permitted, including the use of interrogatories, requests for admission and production of documents and depositions. If the amount claimed to be in dispute is less than $500, 000 all applicable expedited procedures of the AAA shall apply. The arbitrator’s fees and costs of the arbitration shall be borne by the party against whom the award is rendered, except that if the arbitrator issues a split decision, granting partial relief to both parties, the arbitrator shall equitably allocate the arbitrator’s fees and other costs. Each party shall pay its attorney’s fees related to any dispute related to this Agreement. The arbitration award shall be final and binding on both parties of this Agreement, shall not be subject to any appeal and shall be enforceable in any court of competent jurisdiction. (27.2) Governing Law: This Agreement shall be governed by, construed under and enforced in accordance with the laws of the State of New Jersey without reference to its choice of law principles. In the event any party brings a civil action or initiates judicial proceedings of any kind related to this Agreement (except for actions to enter or collect on judgments), the parties consent to the exclusive personal jurisdiction and venue of the courts in Morris County, New Jersey. 28. EXPORT CONTROLS: You agree to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U. S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security (the "U.S. Export Controls"). Without limiting the generality of the foregoing, you expressly agrees that you shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Service or any direct product thereof to any destination, company or person restricted or prohibited by U. S. Export Controls. 29. Content: You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using your Service or Device (each such person, a "User"). You shall assure that you and your Users’ use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to disconnect or suspend your Services and remove your or your 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. Our action or inaction under this Section will not constitute any review or approval of your or Users’ use or content. You agree to use the Service only for lawful purposes. You agree not to use the Service for transmitting or receiving any communication or material of any kind when in TouchTone’s sole judgment the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. TouchTone reserves the right to terminate your service immediately and without advance notice if TouchTone, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for the full month’s charges to the end of the current term, including without limitation unbilled charges, all of which immediately become due and payable and may at TouchTone’s discretion be immediately charged to your credit card. You are liable for any and all use of the Service by yourself and by any person making use of the Service provided to you, and agree to indemnify and hold harmless TouchTone against any and all liability for any such use. If TouchTone, in its sole discretion believes that you have violated the above restrictions, TouchTone may forward the objectionable material, as well as your communications with TouchTone and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding. 30. COPYRIGHT INFRINGEMENT; DIGITAL MILLENIUM COPYRIGHT ACT (DMCA) NOTICE: Materials may be made available via the Service by third parties not within our control. We are under no obligation to, and do not, review content posted on the Service for the inclusion of illegal or impermissible content. However, we respect the copyright interests of others. It is our policy not to permit materials known by us to infringe another party's copyright to remain on the Service. If you believe any materials on the Service infringe a copyright, you should provide us with written notice that at a minimum contains: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (v) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. All DMCA notices should be sent to our designated agent as follows: TouchTone Legal Department, Attn: DMCA Notices – VoIP, P.O. Box 135, Whippany, NJ 07981. For more information please call TouchTone Customer Service at 1-800-266-4006.
CONSENT TO MONITORING AND DISCLOSURE TouchTone is under no obligation to monitor the information residing on or transmitted to this server. However, anyone using this server agrees that TouchTone may monitor the server contents periodically to (1) comply with any necessary laws, regulations or other governmental requests; (2) to operate the server properly or to protect itself and its users. TouchTone reserves the right to modify, reject or eliminate any information residing on or transmitted to its server that it, in its sole discretion, believes is unacceptable or in violation of these Terms and Conditions.
Should any user of information on this server provide TouchTone with information, including but not limited to feedback, data, answers, questions, comments, suggestions, plans, ideas or the like, such information shall be deemed to be non-confidential and TouchTone assumes no obligation to protect such information from disclosure. The submission of such information to TouchTone shall in no way prevent the purchase, manufacture or use of similar products, services, plans and ideas by TouchTone for any purpose whatever and TouchTone shall be free to reproduce, use, disclose and distribute the information to others without restriction.
DISCLAIMER OF LIABILITY THE USER OF THIS SYSTEM ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS SERVER AND THE INTERNET GENERALLY. TOUCHTONE AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS, EXPRESS OR IMPLIED, WITH REGARD TO THE INFORMATION ACCESSED FROM, OR VIA, THIS SERVER OR THE INTERNET, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. TOUCHTONE DOES NOT ASSUME ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION, APPARATUS, PRODUCT OR PROCESS DISCLOSED ON THE SERVER OR OTHER MATERIAL ACCESSIBLE FROM THE SERVER. IN NO EVENT SHALL TOUCHTONE BE LIABLE FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE INFORMATION ON THIS SERVER OR THE INTERNET GENERALLY.
NO WARRANTIES Any TouchTone material on this server may include technical inaccuracies or typographical errors. TouchTone has the right to make changes and updates to any information contained within this server without prior notice. THE INFORMATION PROVIDED ON THIS SERVER IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION GIVEN BY TOUCHTONE COMMUNICATIONS, INC., ITS AFFILIATES OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY WARRANTY. NEITHER TOUCHTONE NOR ITS AFFILIATES WARRANTS THAT THE INFORMATION ON THIS SERVER OR ON THE INTERNET GENERALLY WILL BE UNINTERRUPTABLE OR ERROR FREE OR THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE FROM THIS SERVER IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
DISCLAIMER OF ENDORSEMENT Reference herein to any products, services, processes, hypertext links to third parties or other information by trade name, trademark, manufacturer, supplier or otherwise does not necessarily constitute or imply its endorsement, sponsorship or recommendation by TouchTone. Product and service information is the sole responsibility of each individual vendor. The TouchTone name and logo and other trademarks and trade names owned by TouchTone may not be used in any commercial manner without the prior written consent of TouchTone.
1. GENERAL
1.1 Applicability. Thank you for selecting TouchTone as your provider for communications services. These Terms and Conditions contain general provisions that apply to all TouchTone Products and Services sold under a TouchTone Agreement or TouchTone Service Order (TSO). "Agreement" and/or “Service Order” refers to the written contract signed by Customer for the purchase of TouchTone Products and Services, its attachments, these Terms and Conditions, other documents incorporated by reference, and the related Order(s). Customer's use of a particular TouchTone Product or Service is also governed by the related product or service-specific terms and conditions ("Product specific Terms").
1.2 Definitions
A. "Affiliate" is a legal entity that directly or indirectly controls, is controlled by, or is under common control with the party. An entity is considered to control another entity if it owns, directly or indirectly, more than 50% of the total voting securities or other such similar voting rights.
B. "Commencement Date" is the first day of the first bill cycle in which TouchTone bills monthly recurring charges or usage charges. Unless defined otherwise in the Agreement, the Term begins on the Commencement Date.
C. "Effective Date" is the date both parties have signed the Agreement.
D. "Order" means a written, electronic or verbal order, submitted or confirmed by Customer and accepted by TouchTone that identifies specific TouchTone Products and Services and the quantity ordered. Verbal Orders are deemed confirmed upon Customer's written acknowledgement or use of Products or Services. "Order Term" is the term designated for an individual Order.
E. "Product(s)" includes equipment, hardware, software, cabling or other materials sold or leased to Customer by or through TouchTone as a separate item from, or bundled with, a Service.
F. "Service(s)" means communications services, including basic or telecommunications services, information or other enhanced services, provided to Customer by or through TouchTone under the Agreement, excluding Products
G. "TouchTone" as used in these Terms and Conditions means the company TouchTone identified in the Agreement or Order as providing the specific Products or Services. H. "TouchTone Schedule(s)" refers to Schedules that contain the terms and conditions governing TouchTone's provision of certain Services.
2. TERM
"Term" as used in these Terms and Conditions refers to the term defined in the Agreement. These Terms and Conditions apply from the Effective Date until all Orders issued during the Term have expired or terminated.
3. CHARGES
3.1 Orders
A. Rates. During the Order Term, Customer will pay TouchTone the rates and charges for a particular Product or Service as set forth in the Agreement.
B. Cancellation. TouchTone will notify Customer of rejected Orders. Customer may cancel an Order at any time before TouchTone ships the Order or begins performance, but Customer must pay any actual costs incurred by TouchTone due to Customer's cancellation.
C. Customer Purchase Orders. The terms and conditions in any Customer-issued purchase order accepted by TouchTone will have no force or effect other than to denote quantity and the Product or Service requested.
3.2 Invoicing
A. Commencement of Invoicing. Unless otherwise specified in the Agreement, TouchTone may begin invoicing Customer in full for non-recurring and recurring charges on the later of:
1. The date the Products or Services are installed and made available;
2. The delivery date specified in the Order.
B. Delays. If TouchTone cannot deliver the Product or Service by the delivery date specified in the Order due to a Customer-caused delay, TouchTone may bill Customer as of the delivery date specified in the Order, or if no date is specified, any time after 30 days from the Effective Date.
3.3 Fixed Rates and Percentage Discounts. Except as expressly stated otherwise in the Agreement, rates that are stated as a flat or fixed recurring or non-recurring charge will not change during the Term if TouchTone increases or decreases the list rate in a Schedule or price list. If pricing is shown in the Agreement as a percentage discount off of a Schedule rate or list price, the percentage discount is fixed for the Term, but TouchTone may modify the underlying Schedule rate, Tariff rate or list price to which the percentage discount is applied on no less than one day's notice.
3.4 Rate Adjustments. TouchTone may adjust, at any time, its rates and charges or impose additional fees, charges or surcharges on Customer to recover amounts that it is required by governmental or quasi-governmental authorities to collect on their behalf, or to pay to others in support of statutory or regulatory programs, plus a commercially reasonable amount to recover the administrative costs associated with such charges or programs. Examples of such charges include, but are not limited to, state and federal Carrier Universal Service Charges, PICC Fees (typically $7.76/mo per additional business line), Carrier Cost Recovery Fees (typically $6.44/mo per customer account), Universal Regulatory Disposition Fee charges (typically $8.89/mo per customer account), Economic Adjustment Assessment (up to 3.27% of billed services before tax), Telecom Connectivity Fee (up to 1.96% of billed services before tax), Toll Free Service Charges (typically $3.99/mo per toll free number) or as separately stated within the Customer’s Telecommunications Service Order (TSO), Account Code Maintenance Fees (fees vary; for exact breakdown please call TouchTone Customer Service at 800-266-4006), Compensation to Payphone Providers, International Mobile Termination Charges, E911 or Wireless Local Number Portability surcharges, as applicable. TouchTone may impose additional charges or surcharges, or establish new rate elements, to recover amounts TouchTone is charged for terminating or originating a call to wireless carriers. TouchTone will charge $5.98 per month to all business customers who choose to receive paper invoices through the mail. To avoid this paper invoice fee, customers can sign up for paperless invoices for free through TouchTone’s E-bill site at www.touchtone.net/myaccount. Once a customer has enrolled in paperless invoices, the above charges will be automatically waived from their account. For customers that request their invoice and/or call detail records (CDR) on CD, TouchTone will charge a fee of $50 per month per CD. To avoid this fee, customers can retrieve their invoices and/or call record details via FTP site, which will be provided to them by TouchTone. Based on section 3.4, if TouchTone’s underlying costs change TouchTone reserves the right to raise or otherwise modify the rates it charges for domestic service upon thirty (30) calendar days notice and international service, including Canada and Mexico, upon five (5) days notice to the other Party.
3.5 Taxes. TouchTone's rates and charges for Products and Services do not include taxes. Except for TouchTone's income taxes and employment taxes, Customer will pay all taxes, including, but not limited to, sales, use, gross receipts, excise, property, bypass or other local, state, national taxes or charges imposed on or based upon the provision, sale or use of Products and Services.
3.6 Minimum Usage. All dedicated voice service customers who are using voice services may be required to meet a total monthly billing requirement (as indicated in the Agreement) in total call usage charges per month for the length of the contract. This does not include any local loop charges, taxes, or any other miscellaneous charges. If the customer does not meet this requirement on any month under the contract, the Customer will be billed the monthly local loop charge, any other miscellaneous monthly recurring charges, plus the difference to bring call usage charges to the minimum amount (as indicated in the Agreement). Customers who use dedicated data services are required to pay the monthly local loop charge plus monthly bandwidth fees for the length of the contract.
3.8 Short Duration Calls. Short Duration surcharges are defined as follows: A short duration call is defined as a call equal to or less than six (6) seconds in length. If more than 20% of your completed calls in any given billing cycle are defined as short duration calls, then TouchTone will charge an additional $0.01 surcharge per short duration call over the 20% of total monthly terminating service minutes. Individual products may have alternate call duration thresholds. If the service agreement or order form contains specific call duration thresholds then those thresholds found on that service agreement or order form will supersede those found in these Terms and Conditions.
3.9 Non-RBOC surcharges are defined as follows: Customer agrees to maintain at least 70% of all domestic terminating traffic to a Regional Bell Operating Company ("RBOC"). TouchTone shall have the right to apply a $0.04 per minute surcharge to the number of domestic minutes by which Non-RBOC "terminations" exceed 30% of total monthly terminating service minutes. A list of RBOC OCNs will be provided to the Customer upon request. Individual products may have alternate RBOC/Non-RBOC thresholds. If the service agreement or order form contains specific RBOC/Non-RBOC thresholds then those thresholds found on that service agreement or order form will supersede those found in these Terms and Conditions.
4.1 Payment Date. Payment is due within twenty-five (25) days of TouchTone's invoice date (“Due Date”). Customer must pay all undisputed amounts no later than the due date indicated on the invoice. Except as prohibited by an applicable Tariff, state law or regulation, if Customer fails to make such payment by the due date indicated on the invoice, TouchTone may suspend or terminate the Products or Services. Customer may not offset disputed amounts from one invoice against payments due on another account.
4.2 Interest Charges. All items not subject of a bona fide dispute that remain unpaid 30 days after the due date are subject to interest at a rate equal to the lesser of 1 1/2% per month, or the maximum rate allowed by law or the applicable Tariff.
4.3 Disputed Invoice Charges. If Customer disputes a charge in good faith, it may withhold payment of that charge so long as Customer (A) makes timely payment of all undisputed charges; and (B) within 30 days of the invoice date, provides TouchTone with a written explanation of the reasons for Customer's dispute of the charge. Customer must cooperate with TouchTone to promptly resolve any disputed charge. If TouchTone determines, in good faith, that the disputed charge is valid, TouchTone will notify Customer and, within five business days of receiving notice, Customer must pay the charge. If the dispute relates to billing errors, TouchTone may credit or debit, as applicable, the net difference between any discovered overcharge or undercharge. This provision does not modify any other payment dispute provisions.
5. CREDIT APPROVAL
TouchTone's provision of Products and Services is subject to credit approval of Customer, and TouchTone may require a deposit or other form of security during the credit approval process. Additionally, if during the term of the Agreement or Order Customer's financial circumstance or payment history becomes reasonably unacceptable to TouchTone, TouchTone may require adequate assurance of future payment, including a deposit or additional deposit, advance payment or other form of security.
6. WARRANTIES
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR THE APPLICABLE SERVICE LEVEL AGREEMENT, PRODUCTS AND SERVICES ARE PROVIDED "AS IS" AND TOUCHTONE DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED AND IN PARTICULAR DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES RELATED TO EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE.
6.1 REMEDY: If a portion of the SERVICES fails to conform to telecommunications industry standards for a period of four (4) hours or more during seven (7) or more days during the calendar year or one single incident for three (3) calendar days or more, after written notice thereof by Customer to TouchTone, customer may terminate the affected portion of SERVICES without a cancellation charge provided Customer shall continue to be obligated to pay TouchTone for (a) the terminated portion of the SERVICES rendered through the date of termination, less all credits issued by TouchTone for periods of non-performance, and (b) for the unaffected SERVICES on an on-going basis. Notice is to be provided by Customer following each outage event; notice must provide TouchTone reasonable supporting information substantiating customer’s claims. Written notice is to be provided by Customer to Touchtone within 48 hours of each outage event; notice must provide TouchTone reasonable supporting information substantiating customer’s claims. Notwithstanding the foregoing, Customer’s credit and termination rights shall not apply in the event the failure of any SERVICES was caused or contributed to, directly or indirectly, by (i) any act or omission of Customer or its own customers, affiliates, representatives, invitees, licensees, or vendors, (ii) Customer or third party provided equipment or services, (III) LEC SERVICES (whether provided by TouchTone or contracted for separately by Customer); or (iv) any other event(s) detailed in Section 14 FORCE MAJEURE, of this Agreement. In addition, Customer agrees to pay TouchTone, at TouchTone’s then-current rates, for any trouble shooting and repair work performed by TouchTone and finally determined to be caused by an item(s) under (i) or (ii) of this section 6(a). THE FOREGOING SECTION 6 AND THIS SECTION 6(a) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR REMEDIES, EXPRESS, STATUTORY, OR IMPLIED INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILIY AND FITNESS FOR A PRTICULAR PUPOSE, EXCEPT AS MAY BE EXPRESLLY PROVIDED ELSEWHERE HEREIN.
7.1 Equipment or Software not provided by TouchTone. Customer is responsible for any items not provided by TouchTone (including, but not limited to, equipment or software) that impair Product or Service quality. Upon notice from TouchTone of such an impairment, Customer will promptly cure the problem. Customer will continue to pay TouchTone for Products and Services during such impairment or related suspension. If the impairment interferes with the use of TouchTone's network by TouchTone or third parties, TouchTone, in its reasonable discretion, may suspend or disconnect the affected Products and Services without advance notice to Customer, although TouchTone will provide advance notice where practical. At Customer's request, TouchTone will troubleshoot the impairment at TouchTone's then current time and materials rates. TouchTone is not liable if a commercially reasonable change in Products or Services causes equipment or software not provided by TouchTone to become obsolete, require alteration, or perform at lower levels.
7.2 Software License
A. Licensing Requirements. Where software is provided with the Product or Service, Customer is granted a non-exclusive and non-transferable license or sublicense to use the software, including any related documentation, solely to enable Customer to use the Products and Services in accordance with the applicable licensing requirements. TouchTone may suspend, block or terminate Customer's use of any software if Customer fails to comply with any applicable licensing requirement.
B. Prohibitions. Except as provided under the applicable licensing terms and conditions, Customer, as licensee, is not granted any rights to: 1. Use the software on behalf of third parties or for time share or service bureau activities;
2. Any source code, and will not reverse engineer, decompile, modify, enhance, or copy TouchTone-provided software, or prepare any derivative works from such software; or
3. Modify the Products or Services, or combine the Products and Services with any other products or services not provided by TouchTone.
C. Copies. If TouchTone authorizes in writing the making of any software copies, the copies must reproduce the copyright or any other proprietary legends appearing on the original copy.
D. Breach of Licensing Requirements. Customer will indemnify, defend and hold TouchTone harmless from and against any third party claims arising out of Customer's breach of the licensing requirements in this Section 7.2.
7.3 Title to Software or Equipment. TouchTone or its suppliers retain title and property rights to TouchTone-provided software and equipment, whether or not they are embedded in or attached to real or personal property. Unless specifically stated in the Agreement, Customer neither owns nor will acquire any right of ownership to any TouchTone-provided hardware or software, including, but not limited to, copies, and any related patents, copyrights, trademarks, or IP addresses assigned to Customer. Upon termination or expiration of the Agreement or any Order, Customer will surrender and immediately return the TouchTone provided equipment and software, including all copies, to TouchTone or provide TouchTone access to reclaim such equipment and software.
8. USE OF NAME, SERVICE MARKS, TRADEMARKS
9.2 Use of Products and Services
A. Abuse and Fraud. Customer will not: (1) use Products or Services for fraudulent or destructive purposes, including, but not limited to, unauthorized or attempted access, alteration, abuse or destruction of information; or (2) use Products or Services in such a manner that causes interference with another’s use of the TouchTone network. Customer will promptly cooperate with TouchTone to prevent unauthorized access by third parties of the Products and Services via Customer's facilities.
B. NO RESALE. Customers may not resell Service without a legal and written agency agreement with Touchtone. Customers may not retransmit the Service or make the Service available to anyone without Touchtone’s prior written consent.
C. Foreign Telecommunications Administrations. For certain international Products and Services, Customer must comply with any limitations or prohibitions imposed by Foreign Telecommunications Administrations ("FTAs") upon the FTA-provided portion of end-to-end international services.
D. Failure to Comply. If Customer fails to comply with any provision of this Section, Customer releases TouchTone from all liabilities or obligations in connection with the affected Product or Service, and Customer will indemnify TouchTone for all costs or damages that TouchTone incurs as a result of Customer's noncompliance. 10. CONFIDENTIAL INFORMATION
10.1 Nondisclosure Requirements. If the parties have not executed a mutual nondisclosure agreement, this provision will govern their exchange of information. Each party will not disclose any confidential information received from the other party, or otherwise discovered by the receiving party, to any third party, except as expressly permitted in this Agreement. This obligation will continue until two years after this Agreement terminates. Confidential information includes, but is not limited to, pricing and terms of the Agreement, and information relating to the disclosing party's technology, business affairs, and marketing or sales plans (collectively the "Confidential Information"). Each party may disclose Confidential Information to its subsidiaries, affiliates, agents and consultants with a need to know, if they are not competitors of the disclosing party and are subject to a confidentiality agreement at least as protective of the disclosing party's rights as this provision. The parties will use Confidential Information only for the purpose of performing under this Agreement or for the provision of other TouchTone services. The foregoing restrictions on use and disclosure of Confidential Information provision of other TouchTone services. The foregoing restrictions on use and disclosure of confidential provision of other TouchTone services. The foregoing restrictions on use and disclosure of Confidential Information do not apply to information that: (A) is in the possession of the receiving party at the time of its disclosure and is not otherwise subject to obligations of confidentiality; (B) is or becomes publicly known, through no wrongful act or omission of the receiving party; (C) is received without restriction from a third party free to disclose it without obligation to the disclosing party; (D) is developed independently by the receiving party without reference to the Confidential Information, or (E) is required to be disclosed by law, regulation, or court or governmental order.
10.2 Customer Proprietary Network Information. As TouchTone provides Products and Services to Customer, TouchTone develops information about the quantity, technical configuration, type, destination, amount of Products and Services Customer uses, and other information found on Customer's bill ("Customer Proprietary Network Information" or "CPNI"). Under federal law, Customer has a right, and TouchTone has a duty, to protect the confidentiality of CPNI. To serve Customer in the most effective and efficient manner, TouchTone may use or share CPNI with TouchTone Affiliates for purposes of determining and offering other TouchTone products and services that may interest Customer. Customer permission to use CPNI for this purpose is valid until revoked. However, if at any time Customer seeks to stop TouchTone from using CPNI to offer products and services that are unrelated to the Products and Services Customer currently receives from TouchTone, Customer may call 1-800-266-4006. Denial of approval for TouchTone to use CPNI will not affect the provision of any current Products or Services to which Customer subscribes.
11.1 Direct Damages. Each party's maximum liability for damages caused by its failure(s) to perform its obligations under the Agreement is limited to: (A) proven direct damages for claims arising out of personal injury or death, or damage to real or personal property, caused by the party's negligent or willful misconduct; or (B) proven direct damages for all other claims arising out of the Agreement, not to exceed in any 12 month period an amount equal to Customer's total net payments for the affected Products and Services in the month preceding the month in which the injury occurred. Customer's payment obligations, liability for early termination charges, and the parties' indemnification obligations under this Agreement are excluded from this provision. Liability limitations for individually-liable services are covered in the applicable Product Terms and Conditions.
11.2 Consequential Damages. NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT. CONSEQUENTIAL, INCIDENTAL, AND INDIRECT DAMAGES INCLUDE, BUT ARE not LIMITED TO, LOST PROFITS, LOST REVENUES, AND LOSS OF BUSINESS OPPORTUNITY, WHETHER OR NOT THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. THIS LIMITATION OF LIABILITY DOES NOT APPLY TO CLAIMS ARISING FROM THE PARTIES' INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT.
11.3 Unauthorized Access. Except for physical damage to Customer's transmission facilities or Customer premise equipment directly caused by TouchTone's negligence or willful misconduct, TouchTone is not responsible for unauthorized access to Customer's transmission facilities or Customer premise equipment by individuals or entities, or for unauthorized access to, or alteration, theft, or destruction of Customer's data files, programs or other information through accident, wrongful means or any other cause.
11.4 Liability for Content. TouchTone is not responsible for the content of any information transmitted by, or received through, TouchTone's provision of the Products and Services.
12.1 Personal Injury, Death or Damage to Personal Property. Each party will indemnify and defend the other party, its directors, officers, employees, agents, affiliates, and their successors from and against all third party claims for damages, losses, or liabilities, including reasonable attorney's fees, arising directly from performance of the Agreement and relating to personal injury, death, or damage to tangible personal property that is alleged to have resulted, in whole or in part, from the negligent or willful acts or omissions of the indemnifying party or its subcontractors, directors, officers, employees or authorized agents.
12.2 Transmission over TouchTone Network. Customer will indemnify and defend TouchTone from and against all loss, liability, damage and expense, including attorney's fees, resulting from any third party claims alleged to arise in any way from information, data, OR messages transmitted over the TouchTone network by Customer, OR Customer's own customers or agents, including, but not limited to: (A) claims for libel, slander, invasion of privacy, infringement of copyright, and invasion OR alteration of private records or data; (B) claims for infringement of patents arising from the use of equipment, hardware OR software not provided by TouchTone; and (c) claims based on transmission and uploading of information that contains viruses, worms, OR other destructive media OR other unlawful content.
12.3 Intellectual Property. Subject to Sections 12.4 and 12.5 below, TouchTone will defend and pay all court awarded damages for claims enforceable in the United States alleging that Services as provided infringe any third party United States patent or copyright or contain misappropriated third party's trade secrets. For any third party claim that TouchTone receives, OR to minimize the potential for a claim, TouchTone may at its option and expense either:
A. Procure the right for Customer to continue using the Services
B. Replace or modify the Services with comparable Services;
C. Or terminate the Service.
12.4 Intellectual Property Indemnification Limitations. TouchTone's obligations under Section 12.3 above will not apply to the extent that the infringement or violation is caused by: (A) a modification to TouchTone-provided software equipment or Services by Customer (or any person or entity acting on Customer's behalf); (B) services provided to or through TouchTone by a third party; (C) the combination of TouchTone-provided Services by Customer (or any person or entity acting on Customer's behalf) with other third party products; (D) functional or other specifications that were provided by or requested by Customer; or (E) Customer's continued use of infringing Services after TouchTone provides reasonable notice to Customer of the infringement.
12.5 Rights of Indemnified Party. To be indemnified, the party seeking indemnification under this Section must promptly notify the other party in writing of the claim (unless the other party already has notice of the claim) and give the indemnifying party full and complete authority, information and assistance for the claim's defense and settlement. The indemnifying party will retain the right, at its option, to settle or defend the claim, at its own expense and with its own counsel. The indemnified party will have the right, at its option, to participate in the settlement or defense of the claim, with its own counsel and at its own expense, but the indemnifying party will retain sole control of the claim's settlement or defense. To be indemnified under this Section, the party seeking indemnification must not, by any act, including but not limited to any admission or acknowledgement, materially prejudice the indemnifying party's ability to satisfactorily defend OR settle the claim.
13.1 TouchTone Right to Terminate
A. TouchTone may immediately suspend OR terminate Products OR Services OR the Agreement if:
1. Customer fails to cure its default of the payment terms in Section 4 above; or
2. Customer fails to cure any other material breach of the Agreement within 30 days after receiving TouchTone's written notice; or
3. Customer fails to comply with applicable law or regulation and Customer's noncompliance prevents TouchTone's performance under the Agreement.
B. If TouchTone terminates the Agreement under Section 13.1, Customer will be liable for any Products and Services provided up to the date of termination, whether or not invoiced by the termination date, as well as any applicable early termination or shortfall liabilities.
13.2 Customer Right to Terminate. If TouchTone materially fails to provide Products or Services, Customer may terminate the affected Products or Services without early termination liability if Customer provides TouchTone with written notice of the failure and a reasonable opportunity to cure within 30 days from receipt of notice. If TouchTone fails to cure, then Customer may terminate the affected Products or Services effective 30 days after TouchTone's receipt of Customer's written notice to terminate. TouchTone's material failure does not include a failure caused by circumstances not within TouchTone's sole control, including, but not limited to, a failure caused by a local exchange carrier, local utility, access transport provider other than TouchTone, Customer-provided software or equipment, or Customer.
13.3 Order Term Termination Liability
A. Calculation of Early Termination Liability. Certain Products and Services may be priced based on a minimum Order Term, which may be identified as an "Order Term," "Access Term Plan," or similar language. If TouchTone terminates any Services due to Customer’s default, or if Customer terminates an Order in whole or in part before the expiration of the Order Term, then Customer will pay to TouchTone an early termination charge equal to:
(1) All recurring and non-recurring charges specified in the applicable TouchTone Service Order (TSO) for the balance of each Service’s specified Term, plus;
(2) Any charges levied by the underlying service provider in connection with the termination that TouchTone does not recover under clause (1) of this Section 13.3. Customer shall also be liable to TouchTone for all non-recurring and recurring charges that were waived or discounted by TouchTone. Customer agrees that TouchTone’s damages will be impossible to ascertain if any Service is terminated and that the foregoing early termination charge establishes liquidated damages and is not a penalty. Any and all terminations during a monthly billing cycle become effective on the last day of that billing cycle. Customer will be responsible for all fees and charges incurred until then and will not be entitled to any partial-month credits or refunds. Customer will be responsible for all early termination charges, and for all fees and charges through the end of that billing cycle, payable in full on the due date for that billing cycle.
B. Waiver of Order Term Liabilities. Upon prior approval of TouchTone, Customer will not be liable for the early termination charges in Sections 13.3.A above, if Customer orders another Service of the same or greater monthly price with an Order Term no less than the remaining months in the initial Order Term (or one year, whichever is greater) at the same time Customer provides TouchTone with the termination notice. Such approval will be in TouchTone's reasonable discretion and based upon financial and other business considerations.
C. Repayment of Credits or Waived Charges. If TouchTone terminates an Order or the Agreement due to Customer's material breach or Customer terminates an Order or the Agreement before the end of the Term (unless due to TouchTone's material breach), Customer will repay TouchTone a pro-rata portion of any credits issued or charges waived, based upon the number of months remaining in the Term at the time of termination. This provision does not apply to service level credits issued for Service outages.
13.4 Disconnection Notice
A. Notice Requirement. For Domestic Services, TouchTone will have up to 30 days to complete disconnection. FOR non-Domestic Services, TouchTone may require a longer period. Customer will be responsible for all charges through the later of the 30th day after TouchTone received the disconnect notice, or the date Customer stops using the Services.
B. Forms Required. For written notice of disconnect to be effective, Customer must provide information necessary for TouchTone to complete the disconnect, such as a completed Disconnect Firm Order Commitment ("FOC") for Customer-provided access. Failure to provide such required information may result in TouchTone's revocation of Connecting Facility Assignments ("CFA") from TouchTone to the Local Exchange Carrier ("LEC") and Customer will be liable for any resulting charges imposed on TouchTone by the LEC.
14. FORCE MAJEURE
15. CONFLICTS PROVISION
16. MISCELLANEOUS
16.1 Independent Contractor. TouchTone provides the Products and Services in this Agreement as an independent contractor. Nothing in this Agreement will create an employer-employee relationship, association, joint venture, partnership, or other form of legal entity or business enterprise between the parties, their agents, employees or affiliates.
16.3 No Third Party Beneficiaries. The Agreement's benefits do not extend to any third party.
16.4 Governing Laws. The Agreement will be governed by the laws of New Jersey, without regard to its choice of law principles.
16.5. Dispute Resolution
A. Arbitration. Any dispute arising out of or relating to the Agreement or Order may, at the option of the parties, be finally settled by arbitration. If, however, Subsection B (Waiver of Trial by Jury) below is held to be unenforceable by a court, then arbitration is mandatory. Any arbitration must be held in accordance with the rules of the CPR Institute for Dispute Resolution and governed by the United States Arbitration Act, 9 U.S.C. Sec. 1, et seq. All arbitration proceedings for disputes relating to Domestic Products or Services will be held in the Morris County, NJ. If the dispute relates to TouchTone's provision of Non-Domestic Products or Services, all arbitration proceedings will be conducted in the English language pursuant to the Rules of Conciliation and Arbitration of the International Chamber of Commerce ("ICC"). The place of arbitration for disputes related to Non-Domestic Products or Services is Morris County, NJ, USA. Any such arbitration proceeding will not include class action arbitration.
B. Waiver of Trial by Jury. The parties mutually, expressly, irrevocably and unconditionally waive trial by jury and any right to proceed in a class action or other representative capacity for any proceedings arising out of or relating to an Agreement or Order. This Subsection survives the termination of an Agreement or Order.
16.6 Assignment. Customer may not assign any rights or obligations under an Agreement or Order without TouchTone's prior written consent, except that Customer may assign the Agreement, after 30 days prior written notice, to a parent company, controlled Affiliate, Affiliate under common control or an entity that has purchased all or substantially all of Customer's assets.
16.7 Amendments. The Agreement may only be amended in a writing signed by both parties' authorized representatives.
16.8 Notice. Notices required under the Agreement must be submitted in writing to the party's address listed in the Agreement or Order and, in the case of a dispute, notices must also be sent to:
TouchTone Communications
Attn: Contract Administration
P.O. BOX 135, Whippany, NJ 07981
16.9 Severability. If any provision of the Agreement is found to be unenforceable, the Agreement's unaffected provisions will remain in effect and the parties will negotiate a mutually acceptable replacement provision consistent with the parties' original intent.
16.10 Survivability. The terms and conditions of the Agreement regarding confidentiality, indemnification, warranties, payment, dispute resolution and all others that by their sense and context are intended to survive the expiration of the Agreement will survive.
16.11 Entire Agreement. The Agreement, including these Standard Terms and Conditions, all other referenced documents, annexes, Schedules and Tariffs, or exhibits, the related Orders and the parties' mutual nondisclosure agreement, constitutes the entire agreement and understanding between the parties and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, relating to its subject matter.
You represent that you have carefully reviewed these Terms and Conditions and fully understand each and every one of them. You further represent that you have full authority to execute the TouchTone Agreement and that the Agreement represented by this and related documents constitute the legal, valid and binding obligation of the Customer, fully enforceable against the Customer in accordance with these Terms and Conditions.