Last updated: August 13, 2024
Terms of Service for Voxology, Inc., Voxology Integrations, Inc., Voxology Carrier Services, Inc., and Conferencing Services, Inc., ("Company").
These Terms of Service ("Agreement") are a legally binding Agreement between the entity or person agreeing to these terms ("Customer") and Company ("Parties"). In order to be eligible to use Company's Services and to access any such Services, you must review and accept the terms of this Agreement. Use of Company's services, execution of a Service Order, or accepting a pop-up or other prompt informing you of these Terms of Service, or any other similar mechanism indicates your acceptance of this Agreement.
Company may make changes to this Agreement from time to time. Unless otherwise agreed in writing, changes to this Agreement will become effective thirty (30) days after they are posted to the Company website, or at renewal of Customer's Term, whichever is later. In so much as Company creates new Services, with associated provisions in this Agreement and Customer provisions or utilizes such Services, such changes become effective immediately upon provisioning or usage. Company will provide notice to customers of the updated Agreement, through sending an email to the Primary Contact, as well as the Billing Contact used to deliver invoices; posting a notice on its web portal; and including a notice in its invoices. If Customer does not agree to the revised Agreement, Customer must notify Company it wishes to terminate this Agreement, in accordance with the terms below. Customer's continued use of the Services after such notification will constitute Customer's consent to such changes. Company will post any modification to this Agreement to: https://voxolo.gy/terms-of-service.
1. Services. Customer agrees to buy, and Company agrees to provide the selected Service(s) as ordered by customer on Company's website, or as set forth in any Service Order referencing this Agreement (the "Services").
2. Service Order. Customer may enter into a written Service Order with Company to establish a term agreement, establish special pricing, or otherwise modify the terms of Customer's relationship with Company.
3. Standards of Delivery. Company shall provision the Services such that Customer can access over the public Internet. Unless otherwise agreed, Service delivery is subject to the limitations of the Internet, and Company takes no responsibility for Internet failures (e.g. Internet transit outages and denial of service attacks). Unless otherwise specified, voice telephone services offered are non-interconnected VoIP services.
4. Limitations on Use. Within this Section, “Limitations on Use”, "Customer" shall mean both Customer and any ultimate user of the Services (an "End User").
a. Customer shall use Services only in a lawful manner, in accordance with this Agreement and in a manner that does not interfere with the contracts, business or operations of any third party.
b. Customer shall not use the Services in a fraudulent, harassing, discriminatory, libelous, defamatory or otherwise harmful manner. Customer shall not use the Service to threaten or incite violence; threaten or promote terrorism; engage in the targeted harassment of someone, or incite other people to do so; to sell, buy, or facilitate transactions in illegal or fraudulent goods or services, or those goods or services Customer is not authorized to transact.
c. Customer shall not transmit calls seeking operator service or directory assistance, unless purchasing a service expressly providing such functionality.
d. Customer shall not use the services for emergency notification or life-safety applications, absent an express written agreement with Company.
e. Company does not permit the use of the platform to create an automatic dialer for marketing calls. Customer agrees to not use the Services to place more than one (1) marketing call and/or text message within twenty four (24) hours of a human expressly initiating the interaction.
5. Emergency Service. Emergency service (such as Enhanced 911) is not included in the Company services unless the Customer has expressly purchased and configured the Emergency service. Customer agrees it will not use the service to contact emergency services unless it has purchased and configured these services, and then only in accordance with the configuration of the service. If Customer sends an emergency service call or message (such as a "911 call") without having purchased and configured the service for the number asserted as the Caller ID of the call, Company may, at its discretion, complete the call. If Company attempts to complete such a call, the Customer agrees to pay a $150.00 USD fee per call, in addition to Company's rate for the call.
6. Fees. Customer will pay all fees and expenses due according to the prices set forth on any applicable “Pricing Page” on Company’s website, or as otherwise established in a Service Order. All fees and expenses defined on the applicable Pricing Page, Service Order, or Addendum A are applicable unless specifically waived in a Service Order by the Company.
7. Fee Adjustments.
a. All United States rates shown on the Pricing Page may be changed upon thirty (30) days notice.
b. All rates outside of the United States may be changed upon seven (7) days notice.
c. In the event that circumstances outside the control of the Company cause a material increase in the Company’s cost to provide the Services, the Company may increase its prices, whether on its Pricing Page or in a Service Order, immediately upon prior notice to the Customer. If any change in fees causes a material and adverse effect to the terms of the Services provided to the Customer, then within ten (10) calendar days from the date of the foregoing notice from Company, Customer must provide written notice to Company that it rejects the changed fees. Within ten (10) calendar days thereafter, Company shall elect either to continue to provide the Services under the prior terms or terminate the applicable Service Order and/or the provision of Services, which decision shall be effective ten (10) calendar days after notice to Customer.
8. Term and Effective Date. This Agreement shall be effective on the date it is accepted by Customer, and shall continue through the expiration date of the last effective Service Order, if any, or earlier termination in accordance herewith. Unless stated otherwise in the product or subscription plan description, Pricing Page, or applicable Service Order, the initial Term shall be month-to-month (the “Initial Term”). The term of each Service Order that specifies a specific term (i.e., not month-to-month) will renew automatically for subsequent terms equal in length to the Initial Term (each a “Renewal Term”) unless either party notifies the other in writing not less than thirty (30) calendar days prior to the end of the Initial Term (or Renewal Term, as applicable), that it wishes to terminate such Service. The termination of any individual Service or Service Order will not affect Customer’s obligations to accept and pay for all other contracted Services.
9. Credit Limit. Unless otherwise specified in a Service Order, all services shall be prepaid. Customer agrees that prepayments represent approximately one (1)month of expected service, and are not a deposit, and will not earn interest.
10. Committed Term or Usage. In the event Addenda or Service Order(s) incorporate a term or usage commitment or any discounted pricing associated with an Addenda or Service Order(s) for a term greater than one (1) month, this is a "take or pay" obligation on the part of the Customer such that Customer is absolutely and irrevocably required to pay for the committed dollar quantity and/or dollar value over the term of the commitment. This is in exchange for discounts and other contractual concessions. In the event that Customer fails to utilize the quantity and/or value over the term of the Agreement, or, if associated with a shorter period, over the specified period, Company may invoice Customer at the end of the period, or end of the term (at the discretion of Company), for one-hundred percent (100%) of the unutilized committed amount. Buyer shall pay the difference within thirty (30) days after the invoice date as a reasonable measure of the amount necessary to compensate the Company for its contractual concessions as part of this Agreement.
11. Minimum Fee. Company charges an account management fee of $1.00 USD per month. Company will waive the account management fee if Customer:
a. is subscribed to a plan with an annual fee;
b. utilizes at least $100.00 USD of service over the preceding twelve (12) months; or
c. charges for Services are incurred of at least $2.00 USD in the month.
12. Billing Procedures. All charges for Services provided pursuant to this Agreement shall be billed within sixty (60) days from the time the Services were used or shall be deemed to be waived by the billing Party. If at any time Customer pays Company an amount in excess of Customer’s actual obligations to Company under this Agreement, Company shall credit the amount of the overpayment towards Customer’s obligations next coming due on the overpaid account under this Agreement. Charges are considered billed when shown on an invoice, a usage summary, or in the Company's web portal, as available.
13. Late Payment Charge. In so much as Customer is granted payment terms, and fails to pay within those terms; or in so much as Customer is granted a credit line on a prepaid account or otherwise owes Company money and fails to return the account to prepaid status within seven (7) days, Customer shall pay a late payment penalty of five percent (5%) of the delinquent amount upon delinquency. Customer shall then pay late payment penalties of one and one-half percent (1.5%) of the delinquent amount once each month, or the highest lawful amount, whichever is less, on any amount overdue.
14. Payment and Disputes. Customer agrees to pay all undisputed amounts when due. Any bona fide dispute that Customer may have concerning an invoice must be brought to Company's attention by written notice, in hard copy or electronic format, within sixty (60) days of receipt of the invoice with sufficient evidence and documentation for Company to analyze the dispute. The email address for disputes is shown in Section 39, "Notices". Amounts for Services occurring more than sixty (60) days prior to a notice of dispute cannot be disputed. The billing records of both Parties may be used to resolve any dispute. The Parties shall cooperate in good faith to resolve any such disputes within a sixty (60) day period thereafter. If either Party brings legal action for the recovery of any amounts due from the other Party under the Agreement, the non-prevailing Party shall pay the prevailing Party's reasonable and documented attorneys' fees, collection and agency fees and costs actually incurred by the prevailing Party.
15. Payments to Company. Payments for services rendered at Company's standard rates may be paid by credit card or Automated Clearinghouse ("ACH"). Service orders may restrict payment to ACH or wire transfer. If service orders do not permit payment by credit card, and Company agrees to accept payment by credit card for all or part of a Customer's balance, Customer agrees to pay a 3% processing fee to Company. If Customer provides a credit card to Company, Customer authorizes Company to charge the credit card for all amounts due and owing to the Company, as well as any prepaid amount Customer authorizes through the web portal, or through orders placed by phone or in writing.
16. Invoices to Customer. If requested, invoices to Customer will be sent to the email address used to signup, unless later changed in the web portal, or by specific arrangement with Company.
17. Taxes. All pricing for Services and other charges due hereunder are exclusive of all applicable taxes, including value added tax, sales taxes, duties, fees, levies or surcharges (including where applicable any Universal Service Fund, or similar surcharges) imposed by, or pursuant to the laws, statutes or regulations of any governmental agency or authority. Except to the extent Customer provides a valid exemption certificate in a form acceptable to Company prior to the delivery of Service, all applicable taxes shall be the sole responsibility of Customer using the affected Services and paid promptly when due. Except as set forth herein, all amounts payable to Company under this Agreement shall be made without any deduction or counterclaim and, except to the extent required by any law or regulation, free and clear of any deduction or withholding on account of any tax, duty or other charges of whatever nature imposed by any taxing or governmental authority.
18. Suspension/Reduction/Termination.
a. In addition to any other rights at law or in equity, Company may suspend accounts automatically upon exhausting available credit limit and/or prepaid funds.
b. Company may also, upon five (5) business days written notice, suspend or limit the use of the Services in the event Customer:
i. fails to make undisputed payment when due;
ii. exceeds the Credit Limit: or
iii. becomes insolvent or ceases paying its debts generally when due.
In the event Customer fails to remedy this condition within ten (10) calendar days after receipt of written notice thereof, Company may, in its sole discretion, further suspend Customer’s use of the Services, reduce the use of the Services and/or terminate this Agreement in addition to any other rights at law or in equity.
c. Either party may terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) calendar days after receipt of written notice of the same.
d. Company may also suspend or terminate its Services, in its sole discretion, immediately and without prior notice for cause under the following circumstances (each such instance, in addition to 18.b.(i) above, being “For Cause”):
i. Company has reason to believe that Customer or any End User has violated or is violating any restriction contained in Section 4, “Limitations on Use”, of this Agreement (Limitations on Use);
ii. the Services have become illegal or impractical for any legal or regulatory reason, as determined in Company’s reasonable discretion;
iii. Customer fails to respond to a request by Company for a Know Your Customer account review, or call audit; or
iv. Customer becomes the subject of a voluntary or involuntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or
v. Company attempts to notify Customer under Section 39, “Notices”, and is unable to obtain a working email address for Customer within fourteen (14) days of such notice.
e. Either party may terminate this Agreement for convenience at the renewal of the Agreement, in accordance with Section 8, “Term and Effective Date”.
19. Effect of Termination. Upon the effective date of termination of this Agreement, Company will immediately cease providing the Services; and any and all payment obligations of Customer under this Agreement will immediately become due and payable. Upon the written request of a party, the other party will promptly return, or certify the destruction of, all Confidential Information of the requesting party then in its possession, and will not make or retain any copies of such Confidential Information, except as required to comply with any applicable legal or accounting record keeping requirement.
20. Survival. Upon expiration or termination, this Agreement shall survive with the exception of the following Sections (after all Fees have been paid according to this Agreement): Section 1, “Service”; Section 2, “Service Order”; Section 3, “Standards of Delivery”; Section 8, “Term and Effective Date”; Section 9, “Credit Limit”; Section 10, “Committed Term or Usage”; Section 11, “Minimum Fee”.
21. Limitations of Liability. Company shall not be liable for any loss or damage sustained by Customer, any interconnecting carriers, its customers or End Users due to any failure in or breakdown of the communication facilities associated with the Services, for any delay, interruption or degradation of the Services whatever the cause or duration thereof, or for any other cause or claim whatsoever arising under this Agreement unless such delay, interruption or degradation of the Services is caused by Company’s willful neglect.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, LOSS OF ANTICIPATED SAVINGS, LOSS OF CUSTOMERS, LOSS OF DATA, INTERFERENCE WITH BUSINESS OR COST OF PURCHASING REPLACEMENT SERVICES) SUSTAINED BY THEM OR ANY THIRD PARTIES IN USING THE SERVICES HOWSOEVER ARISING AND WHETHER UNDER CONTRACT, TORT OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, THIRD PARTY CLAIMS, LOSS OF PROFITS, LOSS OF CUSTOMERS OR DAMAGE TO REPUTATION OR GOODWILL).
Without limiting the obligation of Customer to pay for the Services, in no event will the liability of either Party exceed an amount equal to the charges incurred by Customer during the period the Services were adversely affected. Notwithstanding the foregoing, the above limitations shall not apply with respect to damages caused by willful misconduct or gross negligence; damages or recovery caused by a Party’s breach of any of its confidentiality obligations; and damages with respect to third party claims that are the subject of a Party’s indemnification obligations.
UNDER NO CIRCUMSTANCES SHALL COMPANY LIABILITY TO CUSTOMER HEREUNDER EXCEED THE LESSER OF (a) THE AVERAGE MONTHLY USAGE CHARGES PAID BY CUSTOMER FOR THE PARTICULAR SERVICE TO WHICH THE CLAIM PERTAINS (THE “AFFECTED SERVICE”), FOR THE THREE (3) CALENDAR MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE, OR (b) $5,000.00 USD.
22. Indemnification. Each Party shall defend, indemnify and hold harmless the other Party and their respective officers, directors, employees, and agents against and from any loss, liability, damage, claim, demand, including without limitation, reasonable attorneys’ fees arising out of or relating to claims, complaint, action, proceeding or suit of a third party (including any investigation by a governmental agency or authority), that arise or relate in whole or part to the gross negligence or willful misconduct of the indemnifying Party, its employees, or agents, occurring in the performance of this Agreement.
23. NO WARRANTIES. EACH PARTY ASSUMES TOTAL RESPONSIBILITY FOR AND ALL RISK ARISING FROM ITS (AND ITS CUSTOMERS AND/OR END USERS) USE OF, AND INABILITY TO USE, THE SERVICES. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS SET FORTH HEREIN, COMPANY MAKES NO WARRANTY OR REPRESENTATION OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR OF ANY OTHER KIND, EXPRESS OR IMPLIED. NO ADVICE OR INFORMATION PROVIDED BY IT WILL CREATE A WARRANTY.
24. Capacity. Unless Company has entered into a Service Order expressly providing committed capacity, Company may adjust capacity available to Customer at any time, without notice.
25. Fraudulent Usage. Customer shall not withhold any payment due to Company on the basis that part or all of the underlying usage was made by, or caused to be made by, third parties. Company is not responsible for monitoring Customer’s usage. Company's fraud and credit controls exist to provide Customer with a "backstop" to reduce fraud, and are provided without warranty or guarantee.
26. Account Security. Customer is responsible for the security of its account. Customer shall select secure passwords, and save them in a secure location. Customer is responsible for any and all activity taking place as the result of the use of its account passwords, PINs, port out PINs, API keys, third-party accounts used for single sign on, and any other credentials.
27. Assignment. This Agreement is personal to each of the Parties and may not be assigned or transferred by either Party without the prior written consent of the other Party; except that Company may assign this Agreement without consent to: (a) any affiliated entity; (b) a successor in interest whether by merger, reorganization or otherwise; or (c) a purchaser of all or certain assets. Notwithstanding the foregoing, Company may assign any receivable that arises under this Agreement, any right to receive payment related to that receivable and any interest in that receivable or right to receive payment.
28. Force Majeure. No failure or omission by either Party to carry out or observe any of the terms and conditions of this Agreement (other than any payment obligation) shall give rise to any claim against such Party or be deemed a breach of this Agreement if such failure or omission arises from an act of God, including earthquake, flood, volcanic eruption, strike, labor disputes, war, civil unrest, acts or omissions of carriers or suppliers, an act of government, any cause reasonably beyond the control of a Party, or any other circumstance commonly known as force majeure.
29. Confidentiality. Through the term of this Agreement, and for a period of two (2) years from the termination of this Agreement, each Party shall maintain the confidentiality of all information or data of any nature (“Information”) provided to it by the other Party hereto provided such Information contains a conspicuous marking identifying it as “Confidential” or similar marking or which is inherently of a confidential or proprietary nature (i.e. without limitation, technical, financial and business information and models, names of customers or partners (whether potential or existing), proposed business deals, corporate strategies, cost and pricing data, market and/or financial projections). In the case of oral information, such Information is characterized as “Confidential” if identified in writing in a communication sent by the disclosing Party to the other Party within fifteen (15) days of disclosure thereof. Each Party shall use the same efforts (but in no case less than reasonable efforts) to protect the Information it receives hereunder as it accords to its own confidential and proprietary information. The above requirements shall not apply to Information which is already in the possession of the receiving Party through no breach of an obligation of confidentiality to the disclosing Party or any third party, is already publicly available through no breach of this Agreement, is derived from Customer usage, or has been previously independently developed by the receiving Party. This Agreement shall not prevent any disclosure of Information pursuant to applicable law or regulation, provided that prior to making such disclosure, the receiving Party shall use reasonable efforts to notify the disclosing Party of this required disclosure.
30. Customer Data. "Customer Data" consists of the information Customer supplies to Company over the course of utilizing Company's Services. Telephone numbers, in and of themselves, do not constitute Customer Data.
31. Intellectual Property. This Agreement does not transfer to Customer any Company Technology. All right, title and interest in and to Company Technology and to data derived from usage of Company Technology will remain the sole property of the Company. Similarly, this Agreement does not transfer to Company any Customer Data, and the right, title and interest in and to Customer Data will remain the sole property of Customer. Company and Customer each agree that they will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets of the other party.
32. Licenses. Company agrees that, if in the course of accessing and using the Services, it is necessary for Customer to use certain items of Company Technology, then Customer is hereby granted a limited, nonexclusive, personal, royalty-free license, during the term of this Agreement, to use the Company Technology solely for purposes of accessing and using the Services. Customer shall have no right to use the Company Technology for any purpose other than accessing and using the Services in accordance with this Agreement. Customer agrees that, if in the course of providing the Services and any related customer support, it is necessary for Company to access certain items of Customer Data, then Company is hereby granted a limited, nonexclusive, personal, royalty-free license, during the term of this Agreement, to access the Customer Data solely for such purpose. Company shall have no right to access or use the Customer Data for any purpose other than providing the Services, deriving data therefrom, and providing related customer support in accordance with this Agreement.
33. Advertising and Publicity. Customer agrees that, during the term of this Agreement, Company may publicly refer to Customer, orally and in writing, as a customer of Company. Customer grants Company the right to use Customer's name, logo, and a description of Customer's use case(s) on Company's website, and in marketing, promotional and investment materials, subject to Customer's standard trademark usage guidelines if Customer expressly provides to Company.
34. Primary Contact. When signing up online, Customer provides a name and email address to create an account. This account information is known as the Primary Contact. It can be changed by contacting Company to request a change. Customers who do not sign up online must execute a Service Order. Unless the Service Order expressly defines a Primary Contact, the Billing Contact is considered the Primary Contact.
35. Billing Contact. Customer may provide a Billing Contact to whom Company will direct invoice emails.
36. Technical Contact. Customer may provide a Technical Contact to whom Company is encouraged to direct technical inquiries.
37. Emergency Contact. Customer shall provide Company with a twenty-four (24) hour emergency contact, to be used to address violations of the Terms of Service, technical interoperability issues, or other emergencies. If an Emergency Contact has not been provided, the Emergency Contact will be the Primary Contact, unless a Technical Contact has been provided.
38. Contact Authorization. When Customer provides contact information for a contact, whether in writing or in the web portal, Customer authorizes Company to disclose Customer Information, as well as Customer Proprietary Network Information, as defined by the Federal Communications Commission, to the contact.
39. Notices. Notices to Customer must be sent to the Primary Contact via email, to their email address as defined in Section 34, “Primary Contact”. Notices to Company must be sent to agreement-notice (at) voxolo.gy, unless they are a billing dispute, which should be sent to billing-dispute (at) voxolo.gy. Notices to Company shall be deemed to have been received by the Company when an automated email acknowledgement is generated by Company. Notices to Customer shall be deemed to have been received as long as the sender does not receive a system notification of no delivery. If emails to Primary Contact receive a notification of no delivery, Company may utilize the Billing Contact, Technical Contact, or Emergency Contact to notify Customer. If all email addresses in possession of Company result in a system notification of no delivery, Company may attempt to notify customer by certified mail to any address that has been provided by Customer to Company. Such notice shall be deemed to have been received by the addressee on the fifth (5th) business day following the mailing or sending thereof.
40. SMS and MMS Messages.
a. Consent. Customer consents to Company sending Customer text message (aka "SMS") notifications as part of consuming Company's service.
b. Cost. Customer is responsible for any charges incurred in connection with receipt of text messages messages on Customer's mobile device(s). Message and data rates may apply.
c. Opt Out. Customer may opt out of text message notifications by replying to a message with the word
STOP.
41. Dispute Resolution. Any non-billing dispute, controversy or claim (collectively, a “Dispute”) arising out of or relating to this Agreement will first be escalated to a Manager or Director of the respective Parties. Should resolution not occur within fifteen (15) business days of such escalation, the Dispute will be escalated to the Executive level of the respective Parties. If the Dispute cannot be resolved within fifteen (15) business days of escalation to the Executive level, the Parties may exercise any and all available remedies at law or equity or may request that the Dispute be settled by binding arbitration, which shall be governed by Delaware law, with venue in Wilmington, Delaware, United States of America. In the event the Parties mutually agree to binding arbitration, the cost of arbitration, including fees and expenses of the arbitrator, shall be shared equally by the Parties.
42. Compliance with Laws. This Agreement is contingent upon the obtaining and the continuance of such approvals, consents, governmental and regulatory authorizations, licenses and permits as may be required or deemed necessary by the Parties, and the Parties shall use commercially reasonable efforts to obtain and continue the same in full force and effect. Customer shall not use the Services in any manner or for any purpose that constitutes a violation of any applicable law, regulation, statute, ordinance, or other legal requirement in any jurisdiction in which the Services are being provided. In the event of a change in applicable law, including, but not limited to, rulings by the Federal Communications Commission or the Federal Trade Commission, that materially affects any term of this Agreement or the rights or obligations of either Party hereunder, the Parties shall promptly renegotiate in good faith the affected provisions of the Agreement within thirty (30) days to the extent necessary to comply with the change in applicable law. The Parties agree that all Services are being provided pursuant to the rates, terms and conditions set forth in this Agreement (including any Service Orders) and not pursuant to any tariff on file with any regulatory authority. The Parties further agree that the rates, terms and conditions set forth herein and in any Service Orders shall take precedence over any inconsistent rates, terms and conditions in any federal, state or similar tariff, that neither Party shall have the right to assert the preeminence of its tariffs over any rate, term or condition set forth in this Agreement or the Service Orders and that any such action by either Party shall be deemed a material breach hereof. Customer hereby acknowledges its awareness of the pertinent laws, rules and regulations governing its use of the Services, including without limitation: (a) the U.S. national do-not-call requirements and rules set forth in 47 CFR §64.1200 and 16 CFR Part 310 (as such rules may be amended); (b) the Federal Communications Commission’s CPNI rules set forth in 47 CFR § 64.2001 et seq. (as such rules may be amended); (c) the Federal Trade Commission’s Telemarketing Sales Rule; (d) the Federal Communications Commission’s Telephone Consumer Protection Act; (e) the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act; and (f) the Federal Communications Commission's regulations associated with Intermediate Providers and Robocall Mitigation. Customer shall indemnify Company against any violation or alleged violation of the terms of this Section, “Compliance with Laws”.
43. Traceback. A Traceback Consortium is appointed by the FCC under the TRACED Act, and may also apply to similar bodies appointed by regulators in other countries, for calls originating from or terminating to other countries. Customer agrees that it will timely and in good faith: (a) cooperate with tracebacks; (b) respond promptly to requests for Traceback Information received from a traceback consortium administrator; (c) respond to “Do Not Originate” or “Trace Forward” requests made by a traceback consortium; (d) respond to traceback and "Do Not Originate" requests from licensed telephone companies; (e) respond to requests for traceback or telephone number holder identity from law enforcement agencies. Customer agrees that Company may do the same.
44. Know Your Customer. Customer certifies it is the End User of any communications services for the purposes of regulatory compliance. If Customer resells the services, Customer agrees to the additional provisions in Addendum A.7, “For Resale”.
45. Content. Customer acknowledges that Company exercises no control over the content of the information passing through the Customer’s and each End User’s systems and that it is the sole responsibility of Customer to ensure that the information it and all End Users transmit and receive complies with the covenants contained in this paragraph. Although Company does not have a policy of monitoring its customers’ specific use of the Services (e.g., listen to voice files; review caller ids, destination numbers or agent numbers; etc.), Company reserves the right to monitor and/or record any aspect of Customer’s use of the Services for quality assurance, and to ensure compliance with this Agreement and applicable laws. Customer, for itself and each End User, acknowledges and consents to such monitoring and/or recording, and covenants to advise End Users of the fact that such monitoring and recording may occur. In so much as Customer configures Company's system to record calls to Customer's storage, Customer authorizes Company to access such recordings for the purposes of quality assurance and to respond to Customer's requests for recording access.
46. Severability and Waiver. If any part or provision of this Agreement is or becomes illegal, invalid or unenforceable, that part or provision shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the validity or enforceability of the remaining parts or provisions of this Agreement. No waiver by either Party to any provisions of this Agreement shall be binding unless made in writing.
47. Relationship of the Parties. The relationship between the Parties is that of independent contractors and not of partners, affiliates, or the like. Nothing contained in this Agreement or Addenda shall be deemed to constitute a partnership between them, a joint venture, or a merger of their assets or their fiscal or other liabilities or undertakings. Neither Party shall have the right to bind the other Party, except as expressly provided for herein.
48. Governing Law. This Agreement shall be governed by the laws of the State of Delaware without reference to its principles of conflict of laws. 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 Wilmington, Delaware, United States of America. Each Party hereby irrevocably consents to the jurisdiction and venue of such courts.
49. Privacy Policy. Customer acknowledges the Company’s Privacy Policy, which is located at: https://voxolo.gy/privacy.
50. Entire Agreement. This Agreement, including any Addenda hereto, and any Service Order, represents the entire agreement between the Parties relating to the subject matter of the Agreement and supersedes and cancels all previous negotiations, agreements or commitments (whether written or oral) with respect to the subject matter hereof. Notwithstanding the foregoing, any financial documents and/or representations provided by Customer pertaining to the credit application and/or financial information shall be deemed a part of this Agreement and Customer shall be responsible for advising the other Party of a material change in Customer’s financial condition. Except through the update process listed above, and as otherwise agreed herein, this Agreement may only be modified by a writing signed by authorized representatives of both Parties. The headings in this Agreement are for convenience of reference and shall not affect its construction or interpretation. In the event of any conflict, inconsistency or ambiguity between the terms of this Agreement, the Addenda and/or any tariffs, the interpretation shall be resolved by giving precedence to such documents in the following descending order: (a) the Service Order; (b) attached Addenda; (c) the Company's Privacy Policy; (d) this Agreement; (e) any tariffs.
The following additional terms apply, based on the Services purchased and their use:
A.1. For recurring Services:
a. In Advance. Recurring charges may, at Company's discretion, be charged at the beginning of the period for which the charges are applicable.
b. No Proration. For monthly recurring services canceled or removed from the account after the monthly renewal date, Company will not prorate service; the entire monthly fee shall be due. For annual services, Company will, upon Customer request, re-rate the service based on advertised retail monthly pricing, and offer proration thereon.
c. Cancellation. Customer may request cancellation from the customer portal; or by contacting the Customer Experience Team through the Customer Experience web interface. Company may, at its discretion, accept cancellation notices by email from the primary contact.
A.2. For telephone numbers:
a. “Phone Number Porting Fees” in the amount of $5.00 USD per telephone number will be charged for each request to port out any Company assigned (i) non-US telephone number at any time, or (ii) any US telephone number within the six (6) months of the number being assigned to the Customer.
b. If an account is suspended for any reason for more than ten (10) consecutive calendar days, Company may release the telephone number(s) associated with that account. Customer may be unable to reactivate the telephone number(s). If a customer is able to reactivate the telephone number(s), Customer will be charged for the telephone number(s) as if they were active during the period of inactivity, as well as any telephone number setup fees.
c. Customer agrees to set and manage a port out PIN for Customer's account and/or telephone number(s).
A.3. For call origination and termination Services:
a. “Short Duration Ratio Surcharge” in the amount of $0.015 USD per call will be charged if more than fifteen percent (15%) of the calls placed or received by Customer during any given billing period have a call duration of six (6) seconds or less.
b. “Urban/Rural Ratio for Blended Rates” if Customer has a blended (i.e., flat) rate and, during any applicable billing period, the cumulative amount of minutes terminated to or originated by (i) non Regional Bell Operating Company (RBOC) providers and (ii) non Wireless PSTN providers (collectively, “Non-Qualifying Minutes”) exceeds twenty-five percent (25%) of the total minutes terminated to all providers for such period, a surcharge of $0.06 USD per minute will be charged to the number of Non-Qualifying Minutes.
A.4. For call termination services purchased on a usage (per minute) basis:
a. Notwithstanding any other provision of this Agreement, Company can, at any time, decline to complete any or all calls for any reason.
A.5. For Event Conferencing Services:
a. Capacity Limitations. Company reserves the right to apply limits to the Service, such as the number of people who can participate in an event at one time, the length of a conference, the hours during which an event can be held, and any other limits Company chooses to implement.
b. Marketing. For every event listing, message or campaign distributed via or hosted on the Service, Company may add a link to or image of Company and a statement including but not limited to "Find out why Customers Choose [Company]" or "Event Powered by [Company]" in the footer, event feedback page or other similar locations that do not unreasonably obscure the message or campaign. Company may not contact registrants of events except registrants who opt in to Company's messaging. Company may contact registrants who opt in to Company's marketing via phone or email and reference the customer, presenters and/or events attended.
A.6. For Recording and Transcription:
a. Recording Laws. Customer understands all applicable laws and regulations associated with recording audio and/or video, and is adhering to them.
b. Recording Authorization. Customer authorizes audio and/or video recording as applicable. Recording Storage. Company shall endeavor to retain recordings for seven (7) days. Customers wishing any other storage retention should make express arrangements with Company.
c. Transcription. Customer understands that transcription, in so much as transcriptions are stored, may be considered recordings, and will comply with all provisions, rules, regulations, and laws applicable to recordings.
A.7. For Resale:
In so much as Customer is not the End User of the product purchased from Company:
a. Registration. Customer agrees to register as a reseller with Company.
b. Know Your Customer. Customer agrees to maintain records of its customers adequate to meet its obligations under the TRACED Act to demonstrate the identity of the end user for any telephone number or for any telephone call.
c. End User Profiles. Customer agrees to maintain Know Your Customer records within Company's system. This permits an automated means for the Company to perform End User audits, without direct interaction of the Customer. Company agrees to notify Customer of each End User audit.
d. End User Identity API. In so much as Company offers an Application Programming Interface (API), in order to allow Customer to respond to End User audit requests, Customer may meet its obligation to maintain information in Company's system by maintaining an API endpoint that can provide this information to Company without human intervention upon advance approval of Company.
A.8. For SMS/MMS Messages:
For products incorporating text and multimedia messages:
a. Consent. Customer certifies it has consent from recipients for any text message(s) it sends as part of consuming Company's service.
b. Cost. Customer certifies it has notified recipients they are responsible for any charges incurred in connection with receipt of text messages messages on Customer's mobile device(s) and that message and data rates may apply.
c. Opt Out. Customer certifies text message recipients may opt out of text message notifications by replying to a message with the word
STOP.
d. Best Practices. Customer understands and agrees it will comply with CTIA - The Wireless Association's Messaging Principles & Best Practices, as well as any applicable Short Code, Toll-Free or 10DLC rules or regulations.
The following fees are also applicable to SMS/MMS messaging and passed through to Customer:
e. SMS Carrier Fees. "SMS Carrier Fees" are defined by wireless carriers for termination of SMS or MMS messages to the wireless carrier's customers. These surcharges are set by wireless carriers; Customer acknowledges Company cannot control them. These surcharges also include any fines or penalties assessed by the wireless carrier(s) for non-compliance with SMS or MMS rules and regulations.
f. SMS Carrier Fee Estimates. SMS Carrier Fees are charged at the time of usage, as an estimate of what SMS Carrier Fees are likely to be charged by wireless carriers. For customers with Carrier Fees greater than $500.00 USD per month, Company will make an adjustment when actual carrier fees are known. For customers with less than or equal to $500.00 USD per month, Company reserves the right to not make adjustments when it receives actual fees.
g. Campaign Registration. Fees charged by wireless carriers or campaign registration services for brand and campaign registration and vetting.
A.9. For Testing Services:
a. Authorization. Customer certifies it is authorized to test against the targets of the test. Customer further warrants it will notify its underlying service provider(s) in advance of any tests reasonably expected to create load upon underlying infrastructure.
b. Underlying Infrastructure Costs. Customer acknowledges testing may result in increased usage of Customer's infrastructure, which may result in costs to the Customer from Customer's underlying service provider(s). Customer agrees these costs are the sole responsibility of Customer.
c. Production Testing. Customer acknowledges testing in a live environment or in a manner that accesses live services can damage, impair, or interfere with Customer's normal business operations. Company will have no liability to Customer for any damages, costs, expenses or charges of any kind resulting from any test. Customer acknowledges and agrees it alone will have sole and exclusive liability for any damages, costs, expenses, or claims arising from any testing of its environment.
The following additional terms apply, in the form of a Service Level Agreement ("SLA"):
B.1. General Standard. Company will use reasonable efforts under the circumstances to maintain its overall network quality. The quality of Service provided hereunder shall be consistent with VoIP carrier industry standards, government regulations and sound business practices.
B.2. Interruptions. For the purposes of this SLA, an Interruption means a complete loss of a Service, such that the Service is unusable for its intended use, resulting from the failure of any component or Service to be provided by the Company. Nor shall the Interruption credit apply when:
a. Service is interrupted by the negligence or willful act of Customer;
b. when Company suspends or terminates Service because of Customer’s nonpayment of bills, unlawful or improper use of the facilities or Service, or any other reason covered by the Agreement;
c. when Company suspends Service because of suspected fraud, or because of fraud or credit controls; or
d. as set forth in Section B.5, "Limitations on Credit Allowances".
B.3. Credit for Interruptions. An Interruption period begins when Customer reports a Service, facility, or circuit to be interrupted through the opening of a trouble ticket and makes it available for testing and repair. An Interruption period ends when the Service, facility, or circuit is operative. If Customer reports a Service, facility, or circuit to be inoperative but declines to make it available for testing and repair, it is considered to be impaired, but not Interrupted.
For calculating credit allowances, every month is considered to have thirty (30) days and every year three-hundred-sixty (360) days. A credit allowance is applied on a pro rata basis against any recurring charges for the affected Service and is dependent upon the length of the Interruption. Only those facilities or Services on the Interrupted portion of the circuit or Service will receive a credit.
A credit allowance will be given when an Interruption of twenty-six (26) seconds or more occur in any calendar month. The credit will be given promptly upon written request of Customer, provided that such request is no later than ten (10) business days after the last such Interruption was reported by Customer to Company customer support. Credit allowances will be calculated as follows:
One-thirtieth (1/30th) (i.e., one (1) day) of the monthly recurring charges for the affected Service.
Two (2) or more separate Interruptions of twenty-six (26) seconds or more during any one (1) twenty-four (24) hour period shall be considered a single (1) Interruption.
For an Interruption to be a separate event, there must be one (1) intervening twenty-four (24) hour period of proper operations.
B.4. Maximum Credit. Credits attributable to any thirty (30) day period for Interruptions of Service shall not exceed twenty-five percent (25%) of the monthly recurring charges for the affected Service. The credits shall be Company’s sole liability and Customer’s sole remedy in the event of any Interruptions.
B.5. Limitations on Credit Allowances. No credit allowance will be made for:
a. Interruptions arising from the acts or omissions of, or non-compliance with the provisions of the Agreement or any schedule thereto by Customer or any authorized user;
b. Interruptions due to any party other than Company or for events happening on any other party’s network, including but not limited to internet service providers or other common carriers connected to, or providing service connected to, the Service of Company or to Company's facilities;
c. Interruptions related to network capacity, such as "fast busy" events or "all circuits are busy";
d. Interruptions due to the failure or malfunction of non-Company equipment, including Service connected to Customer provided electric power;
e. Interruptions of Service during any period in which Company is not given full and free access to its facilities and equipment for the purpose of investigating and correcting Interruptions;
f. Interruptions of Service during any scheduled maintenance period or when Customer has released Service to Company for maintenance purposes or for implementation of a Customer order for a change in Service arrangements;
g. Interruptions of Service due to force majeure events beyond the reasonable control of Company.