END USER SERVICE AGREEMENT/MSA FOR SMBs
THIS END USER SERVICE AGREEMENT (this “Agreement”) by and between Dynamix Europe B.V., a Dutch corporation (“we”, “us” or “Company”), and you (“you”, “your,” or “Customer”) contains the rules, regulations, terms and restrictions pertaining to your use of Company’s On Demand Unified Communications services and any related products and/or services that you order from us (collectively, the “Service”).
BY CLICKING ON THE “I ACCEPT” BUTTON BELOW, AND/OR REGISTERING FOR AND USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, AS AMENDED FROM TIME TO TIME, AS WELL AS ALL OTHER AGREEMENTS, POLICIES AND GUIDELINES REFERENCED HEREIN, WHICH ARE INCORPORATED HEREIN BY REFERENCE.
We may from time to time, in our sole and absolute discretion, revise all or any portion of this Agreement and/or impose additional rules, regulations, or restrictions not expressly stated in this Agreement pertaining to the use of the Service. Notice of any such changes will be considered given and effective immediately upon our posting of such modifications or revised Agreement on the Website www.dynamix.nl/algemene-voorwaarden, or such other Website designated by us from time to time (“our site”). No further notice by us shall be required to effectuate a modification of this Agreement. Upon posting of a new or revised Agreement, the new or revised Agreement shall supersede the previously agreed to form(s) of Agreement.
Your continued use of the Services following our posting of any modifications constitutes your acceptance of the modifications. If you do not agree to the terms of any modification, do not continue to use the services and immediately notify us in writing of your termination of this Agreement in the manner described in the section below.
1. THE SERVICE.
1.1 Right to use.
We hereby grant you the right to use the Service during the Term strictly in accordance with the terms and condition of this Agreement.
1.2 Support.
We agree to provide you those levels of support in connection with your use of the Service set forth in, and subject to the terms and conditions of, the Technical Support Guide which will be made available to you by Dynamix.
1.3 Number Transfer on Service Termination.
For those Services that require this function, Local Number Portability (LNP) refers to the order from the Federal Communications Commission (FCC) requiring all telecom providers to allow customers to retain their phone numbers when changing service providers, as long as the customer stays within the same local calling zone. Instead of disconnecting service numbers, you may choose to port your number(s) “out” to another carrier. You initiate this by contacting a new service provider to initiate a “port-in”. The new service provider will then contact us with a “port- out” request. We will follow industry-sanctioned procedures to fulfill the port out request if: (a) such new service provider is able to accept such number; and (b) your account is completely current, including payment for all charges and applicable Termination Fees. Submitting a Port-out request to another service provider 60 days prior to the agreement end date will accelerate an early termination, described in Article 5.2, and all outstanding invoices and unbilled invoices during the contract term will be immediately due and payable.
1.4 Ownership and Risk of Loss.
You are responsible, at your sole cost and expense, for purchasing any and all required devices necessary for the use of the Service including, but not limited to, any IP phones, multimedia terminal adapter, analog telephone adapter and any other IP connection device (each, a “Device” and, collectively, “Devices”).
2. PROHIBITED USES; LIABILITY FOR CONTENT.
2.1 Service for Personal Use Only.
You are not authorized to resell or transfer the Service or any portion thereof to any other party without our prior written consent, which may be withheld at our sole discretion.
2.2 Excessive Use.
We reserve the right to immediately terminate or modify your Service if we determine, at our sole and absolute discretion, that your use of the Service is, or at any time was, inconsistent with normal business usage patterns. In addition, you will be required to pay for higher rates for commercial service for all periods in which your use of the Service was inconsistent with normal business use.
2.3 Unlawful Purposes.
You may only use the Service for lawful purposes in accordance with the terms and conditions of this Agreement. We reserve the right to terminate your Service with or without notice if, at our sole and absolute discretion, we determine that you have used the Service, or any portion thereof, for any unlawful purpose. In the event of such termination, you will be responsible for the full monthly charges to the end of the current term, including, without limitation, unbilled charges, plus the Termination Fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we determine at our sole and absolute discretion that you have used the Service for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities.
2.4 Inappropriate Conduct.
You shall not use the Service or any portion thereof in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior. We reserve the right to immediately terminate your Service if, at our sole and absolute discretion, we determine that you have used the Service or any portion thereof in any of the aforementioned ways. In the event of such termination, you will be responsible for the full monthly charges to the end of the current term, including, without limitation, unbilled charges, plus the Termination Fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or any portion thereof in any of the aforementioned ways, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities.
2.5 Reservation of Rights.
Notwithstanding anything to the contrary herein, we reserve the right to provide information in response to law enforcement requests, subpoenas, court orders and in any other manner that we deem necessary to protect our rights and property or where failure to disclose the information may lead to imminent harm to the you or others.
2.6 Content.
You shall be solely responsible for any and all liability that may arise out of any content transmitted by you or any other person, whether authorized or unauthorized, using your Service or any portion thereof (each such person, a “User”). You are solely responsible for ensuring that your use, as well as the use by all other Users, complies at all times with this Agreement and all applicable laws, regulations and written and electronic instructions for use. We reserve the right to terminate or suspend the Service and remove your or all Users’ content from the Service if we determine, at our sole and absolute discretion, that such use or content does not conform to the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Nothing in this Agreement shall be deemed to create any duty on our part to review and/or monitor your use of the Service to determine if a violation has occurred. Our action or inaction under this Agreement shall not constitute an approval by us of any of your or your User’s, activities or use of any content.
3. LIMITATIONS OF SERVICE.
3.1 Service Distinctions.
The Service is not a telecommunications service and we provide it on a best efforts basis. Important distinctions exist between telecommunications services and the Service that we provide. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.
3.2 911 and E911 Dialing Services.
The Service does not support traditional 911 or E911 access to emergency services. Trial and Demo accounts do not support 911 dialing.
3.3 Privacy.
The Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. We are not liable for, and hereby disclaim any and all liability resulting from any lack of privacy which may be experienced with regard to the Service. Please refer to our Privacy Policy that is posted on our Site for additional information. We agree that we will not knowingly or purposefully provide or sell any call detail records or any other personal information to any party except as expressly authorized herein.
3.4 Use of Service by Customers Outside the United States.
Although we encourage you to use of the Service to place calls to foreign countries from within the United States, we do not presently offer or support the Service in any countries other than the United States. If you use the Service outside of the United States, you will be solely responsible for any violations of local laws and regulations resulting from such use. We make no warranties or guarantees as to the quality or availability of services if used in any country other than the United States.
3.5 No 0+ or Operator Assisted Calling; May Not Support x11 Calling.
The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 511 and/or other x11 services in one or more (or all) service areas. You may be able to activate custom dialing strings/options for your account by contacting
support@dynamixcloud.com or your account executive.
3.6 Incompatibility With Phone Line Based Security Systems.
The Service may not be compatible with phone line based security systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. You are responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service.
3.7 Incompatibility With Certain Broadband and Cable Modem Services.
You acknowledge that the Service may not be compatible with your broadband service provider. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
3.8 No Fault Outage.
Shall mean any service outage resulting in whole or in part from any one or more of the following events: (1) Maintenance Windows and Planned Outages; (2) any failure or malfunction of an end user’s applications, equipment, facilities, cabling, switching, local area network (LAN), analog phone or analog phone adaptor (ATA) or any other equipment or services not provided by Company; (3) any outage resulting from the act, omission or fault on the part of the end user, customer, any third party contractor or vendor, or any other party other than Company; (4) any event or occurrence that results in “No Trouble Found” resolution to Trouble Tickets; (5) any event or outage lasting under 60 seconds in duration; (6) Trouble Tickets associated with new installations; (7) interruptions where the applicable customer or end user elects not to release the service for testing and repair and continues to use it on an impaired basis; (8) interruptions during any period when Company or its agents are not allowed access to the affected access lines: (9) master Trouble Tickets opened by Company or by a qualified third party on behalf of Company such as those in the case of a fiber cut; or (10) any force majeure event beyond the reasonable control of Company including, but not limited to, acts of God, natural disasters, cable cuts, government acts and regulation and national emergency.
4. CHARGES; PAYMENTS; TAXES.
4.1 Activation fees.
Upon subscribing to the Service, and each time you add additional seats to your service, you will be billed a onetime provisioning and setup fee. The foregoing fee covers your basic account configuration data and does not include any installation or training fees that you may be required to incur. This activation fee will be included in your service quote and is subject to change from time to time.
4.2 Thirty Day Money Back Guarantee.
For the first thirty calendar days after your account goes into production, you may cancel your account and receive a refund for amounts paid to the Company for the Service under the following conditions:
- you have encountered technical problems with the Company’s service other than No Fault Outages as described in Section 3.8 and;
- the Company has not been able to resolve those problems within the first thirty five calendar (35) days after your account went into production, and
- you have used the service in compliance with the appropriate usage sections of the Company’s End User Service
You will be responsible for monthly charges for minutes of use on toll free metered plans as well as any international per-minute charges. Feature request or service modification requests are not considered technical problems.
4.3 Monthly Usage Fees.
Upon activation of the Service, you will be responsible for paying all applicable usage fees in connection with your use of the Service based on the fees published on our Price List posted on our Site, which prices are subject to change from time to time. The usage fees shall include, without limitation, monthly Service fees for use of the following features: calling, conferencing and other minute-based charges, international usage charges, domestic and other per minute usage charges, advanced feature charges, fees for equipment purchases, Termination Fees, and shipping and handling charges. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $500. Any international (non-US) usage charges shall be billed in increments that are rounded up to the nearest minute except as otherwise set forth in our Price List. Domestic (US) usage charges, including 8xx Toll Free numbers, will be billed in six second increments.
4.4 Fee for 911 Calls.
All accounts are required to complete a 911 call routing profile, and to keep that profile updated. If you do not complete a profile or keep the profile updated for changes to your account, we reserve the right to charge a $100 fee per 911 calls that are incorrectly routed.
4.5 Regulatory Recovery Fee.
A Regulatory Recovery Fee is charged monthly to offset costs incurred by Dynamix Unified Solutions in maintaining compliance with federal, state and municipal regulatory bodies, government inquiries and related legal expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee will apply to each user seat that includes a DID.
4.6 Minimum Monthly Charge.
Customer agrees to comply with an obligation as to a Minimum Monthly Charge equal to the initial order of seats and/or licenses during the term of the agreement. If you purchase more licenses and/or seats or add any of our additional services such as Cloud Services, Network Services, Managed Services and/or Faxing during your agreement term, these will increase the Minimum Monthly Charge for the remainder of your agreement. Other charges such as Setup Fees and Usage Based Charges will not be taken into account when computing the Minimum Monthly Charge. Reducing seats and/or licenses will not decrease your Minimum Monthly Charge.
4.7 Unlimited Plan Users.
We offer a variety of unlimited calling plans designed to simplify billing for our customers, however, unlimited calling plans are limited to Reasonable Business Use only. “Reasonable Business Use” is defined to mean normal usage as more fully described in the Company product literature. If the Service is subscribed for on an unlimited plan and we deem at our sole and absolute discretion that you are using a predictive dialer application or that you are otherwise abusing the unlimited plan feature, in addition to our other rights and remedies herein, we reserve the right to re-price the service or offer a new service plan in accordance to standard industry billing practices for such activities.
4.8 Invoicing and Payment Terms.
You will receive a monthly electronic invoice for all fees payable in connection with the Service. Your first monthly invoice will include actual usage charges for the first month of Service plus monthly recurring charges for the following month of Service. If the Service was initiated after the first day of the month, the first month of service will be billed at a pro-rated amount based on the date that the account was provisioned, Each monthly invoice thereafter will include an adjustment to the amount billed in the prior month for actual increases or decreases in your current month Service, plus monthly recurring charges for the next month. All fees are payable net 10 days from the date of the applicable invoice. Your failure to pay any fees due hereunder in a timely manner shall constitute a material breach of this Agreement. Late payments are subject to a minimum late charge of one and one-half percent (1.5%) per month from the date due until payment is received any you shall be responsible for reimbursing us for all costs that we incur to collect such amounts, including, without limitation, collection costs and attorney’s fees.
4.9 Method of Payment.
Upon activation of the Service, you must provide us with a valid email address and a credit or debit card number from a card issuer that is acceptable to us. We reserve the right to stop accepting credit or debit cards from one or more issuers. You must promptly notify us in the event that your credit or debit card expires, you close your credit account, your billing address changes, or your credit or debit card is cancelled and/or replaced on account of loss or theft. Regardless of the payment method that you select, your subscription to the Service authorizes us to charge your credit or debit card. You may terminate our authority to charge your credit and/or debit card upon thirty (30) days prior written notice. If you terminate our authority to charge your credit or debit card, then we may terminate the Service and charge your credit or debit card for any and all fees due including, but not limited, to any applicable Termination Fees and other outstanding fees and charges.
4.10 Payment by Credit Card.
You will be charged on the first day of the month for any charges incurred in the previous month. If any charge to your credit or debit card is declined or reversed or if your credit or debit card expires and you have not provided us with a valid replacement credit or debit card within three (3) days, we reserve the right to suspend the Service until the applicable information is provided
4.11 Advance Payment.
If Customer has selected one of the advance payment options during the Service Order/Proposal process, Customer agrees to make the advance payment within 30 days of the invoice date in exchange for the advance payment discount. If Customer reduces their Service during the Seat Term, no refunds will be made. If Customer makes additions to the Service during the Seat Term, those Services will be invoiced separately. Advance payments exclude Services for which there are separate usage charges such as Toll Free and International Long Distance. These Services will be invoiced separately.
4.12 Payment by ACH, Wire Transfer or Check.
Customers with total Service billings in excess of $1,000 per month may request to make payments via ACH, wire transfer or check. Our approval may be withheld in our sole discretion with or without reason and may be conditioned upon a satisfactory review of your credit and the posting of a security deposit in an amount that we deem reasonable. If any payment by check does not clear due to insufficient funds, you shall pay us a NSF fee in the amount of $50 in addition to any other fees payable hereunder.
4.13 Billing Disputes.
All payments to us are nonrefundable. You must notify us in writing within fifteen (15) days of the invoice date if you dispute any of our charges for that month or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to: Customer Care Billing Department –
billing@dynamixcloud.com. If you dispute a charge to your credit card issuer that, in our sole discretion, is a valid charge under the provisions of this Agreement, you agree to pay us an additional Investigatory Fee in the amount of $100.00.
4.14 Taxes.
You are responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or any Devices. Such amounts are in addition to payment for the Service or any Devices and will be billed to your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.
5. TERM; TERMINATION; TERMINATION FEES.
5.1 Term.
The term shall commence on the date that we activate your Service (the “Effective Date”) and continue until terminated by You or by Us. For those customers who sign up for one or more year term, (“Term”) the term shall end at the selected number of years after the Effective date, depending on which term you selected. For those customers who do not select a term and use the Service for more than three (3) consecutive months, your Term will be two (2) years voice services and three (3) years for other services, our standard Term for Service. For customers whose 1, 2 or 3 year term has expired, the Service shall automatically renew on a 2 year term. Following the Term, the Service and this Agreement shall automatically renew on the same basis of the Term unless you i) sign up for another one or more year term agreement or ii) give us written notice of non-renewal at least ninety (90) days prior to the end of the then current term. Each month of Service from the Effective Date through the cancellation date shall be collectively referred to as “the Term.”
5.2 Early Termination by You or by Us for Cause.
If you terminate the Service prior to the end of the Term or if we terminate your Service as a result of your breach of any provision of this Agreement, you will be responsible for immediately paying us the following fees and charges: (a) all fees and expenses incurred through the date of termination, (b) all unbilled charges for the remainder of the Term, (c) if your account is on a month to month term and has been in service less than twelve months from the effective date an early Termination Fee in the amount of $500 per account, and (d) if your account is on a one or more year term, a cancellation fee equal to the balance of the Seat Term cost which is defined as the last full month’s invoice amount for the Offer Seat times the number of whole remaining months in the Seat Term plus the prorated amount for any partial remaining month. In addition, customers on month to month plans will be responsible for the next full month’s charges in the event that you do not provide the requisite ten-day notice of termination prior to the expiration of the then-current term. You must have at least one active seat for your account to be considered to be in good standing. In the event you choose to reduce the number of active seats and/or licenses on your account to zero, your account will automatically be terminated within 30 days and all fees, contractual balances and all unbilled charges are subject to MMC (“Minimum Monthly Charge”) described in Article 4.6, will be due.
5.3 Early Termination by Us Without Cause.
We reserve the right to suspend or discontinue your Service at any time with or without cause in our sole and absolute discretion. If we discontinue the Service prior to the expiration of the Term without cause or terminate your Service without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month’s charges.
6. LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES.
6.1 Exclusions from Liability.
Under no circumstances shall we or our suppliers be liable for any delay or failure to provide the Service, including 911 Dialing, or any interruption or degradation of voice quality that is caused by any of the following: (i) an act or omission of an underlying carrier, service provider, vendor or other third party; (ii) equipment, network or facility failure; (iii) equipment, network or facility upgrade or modification; (iv) force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions; (v) equipment, network or facility shortage; (vi) equipment or facility relocation; (vii) service, equipment, network or facility failure caused by the loss of power to you; (viii) outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party; (ix) any act or omission by you or any person using the Service or any portion thereof; or (x) any other cause that is beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 Dialing) to be connected or completed, or forwarded.
6.2 Limitation of Consequential Damages.
IN NO EVENT SHALL WE OR OUR SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
6.3 Limitation of Direct Damages.
THE AGGREGATE LIABILITY OF US AND OUR SUPPLIERS TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE AMOUNT YOU ACTUALLY PAID TO US UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE FEES FOR THE SERVICE SET BY US UNDER THIS AGREEMENT HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. ACCORDINGLY, YOU RELEASE US AND OUR SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED IN THIS AGREEMENT.
6.4 Disclaimer of Warranties.
YOUR USE OF THE SERVICE IS AT YOUR OWN RISK AND IS PROVIDED ON AN “AS IS” BASIS. NEITHER WE NOR OUR SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER WE NOR OUR SUPPLIERS SHALL BE LIABLE FOR UNAUTHORIZED ACCESS TO ANY TRANSMISSION FACILITIES, DEVICES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, ANY OF YOUR, OR YOUR USERS’, DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION WHETHER CAUSED BY ACCIDENT, FRAUDULENT MEANS OR ANY OTHER METHOD, REGARDLESS OF THE CAUSE OR THE PARTY DETERMINED TO BE AT FAULT. ANY AND ALL STATEMENTS OR DESCRIPTIONS MADE BY US AND/OR OUR EMPLOYEES OR AGENTS PERTAINING TO THE SERVICE OR ANY DEVICE ARE FOR INFORMATIONAL PURPOSES ONLY AND SHALL NOT BE DEEMED TO PROVIDE A WARRANTY OF ANY KIND.
7. PROPRIETARY RIGHTS.
7.1 Copyright; Trademark.
The Service, all firmware or software used to provide the Service or provided to you in conjunction with providing the Service, and all Services, information, documents and materials on our Site are protected by trademark, copyright or other intellectual property laws and international treaty provisions. Our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) are and will at all times remain our exclusive property.
Nothing in this Agreement grants you the right or license to use any of our marks.
7.2 Unauthorized Usage of Software.
You have not been granted any license to use the software in conjunction with you providing the Service to a third party, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You hereby represent and warrant that you possess all required rights, including software and/or firmware licenses, to use any interface device that we have not provided to you. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
7.3 Tampering with the Service.
You shall not tamper with or reverse compile any software associated with the Service without our prior written consent. We reserve the right to terminate your Service if we believe, in our sole and absolute discretion, that you have tampered with the software. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose.
7.4 Theft of Service.
You shall notify us immediately, in writing or by calling our customer support line, if any Device is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write to us you must provide your account number and a detailed description of the circumstances of the theft, fraudulent use or unauthorized use of the Service. Failure to do so in a timely manner may result in our termination of your Service for breach and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service.
8. MISCELLANEOUS.
8.1 Indemnification.
You shall defend, indemnify, and hold harmless us, and our officers, directors, employees, affiliates, agents and suppliers from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorney’s fees and costs) by, or on behalf of, you or any third party or user of the Service, relating to the Services, including, without limitation, 911 Dialing, or any Device.
8.2 No Third Party Beneficiaries.
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
8.3 Notices.
We reserve the right to send notices to end users, which can include but are not limited to Newsletters, Announcements, Promotions and Incentives. We also reserve the right to use the method of electronic communication that we deem appropriate to deliver such notices.
8.4 Governing Law.
The Agreement and the relationship between you and us are governed by the laws of the Netherlands without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent herewith, you shall submit to the personal and exclusive jurisdiction of the courts located within the Netherlands and waive any objection as to venue or inconvenient forum.
8.5 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 any portion thereof will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Fort Lauderdale, FL. 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, THE NETHERLANDS.
8.6 Survival.
All provisions of this Agreement relating to our intellectual property rights, limitation and exclusion of liability and warranties, your indemnification obligations and your obligation to make payments hereunder will survive the termination or expiration of the Agreement.
8.7 No Waiver of Rights.
Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
8.8 Entire Agreement.
This Agreement and the other agreements, policies and guidelines referenced herein, including any future modifications as may occur to such documents constitute the entire agreement between you and us and govern the use of the Service by you and authorized members of your
company. This Agreement supersedes any prior agreements between you and us and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
8.9 Severability.
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
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