PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE
1. General Pricing and Fees
Broadvoice’s prices are shown in the Pricing Schedule and you will be charged based on the Plan and Options you select during the ordering process. A Subscriber who selects a “Month to Month” Plan (a “Monthly Subscriber”) will pay the monthly price(s) listed on the Pricing Schedule corresponding to the Plan and Options chosen by such Monthly Subscriber at the time of order. However, such monthly prices are subject at any time to increase to Broadvoice’s then current prices. A Subscriber who selects a “1, 2, or 3 Year Contract” Plan (a “Contract Subscriber”) will pay the monthly price(s) listed on the Pricing Schedule corresponding to the Plan and Options chosen by such Contract Subscriber at the time of order. Such monthly prices for Contract Subscribers are guaranteed for the initial 1, 2, or 3 Year Term. Following the initial Term, a Contract Subscriber will automatically renew for subsequent 1 Year Terms at the same rate, except where such renewals are prohibited by law. In addition to regular fees set forth in the Pricing Schedule, you agree to pay all other charges, including but not limited to network usage, applicable taxes, fees and surcharges, including charges imposed against Broadvoice by third party providers that it passes on to you. The taxes and surcharges may vary on a monthly basis and may change at any time without notice; any variations will be reflected in your monthly charge. When possible, Broadvoice will break out such charges on the monthly invoice.
2. Payment, Late Fees and Other Charges
There are no pro-rated refunds for unused time. Unless otherwise stated in the Pricing Schedule, Broadvoice will invoice and charge Subscribers monthly. Subscribers are responsible for paying monthly subscription fees while Services are suspended due to non-payment. In the event that an account is terminated for any reason with an outstanding balance, Broadvoice will continue to electronically charge any credit card on file for the outstanding balance until all balances are fully resolved. All disconnected accounts and all accounts suspended for non-payment are subject to a fifteen dollar ($15.00) reconnection fee. Subscribers are responsible for any disputed charges beyond sixty (60) days from the date of the charge. Any account which goes into collection status will be transferred to a collection agency and incur a twenty-five dollar ($25.00) processing fee and all other applicable fees and charges. Subscribers must pay a twenty-five-dollar ($25.00) service charge on disputed credit cards and credit card chargebacks.
Past due accounts will accrue a monthly charge of one and one-half percent (1.5%) of the past due balance or one dollar ($1.00), whichever is greater.
You are responsible for all charges attributable to your account incurred with respect to the Services. You agree to notify Broadvoice immediately, in writing or by calling the Broadvoice customer care line at 1-888-325-5875, if you become aware at any time that Services are being stolen or fraudulently used. You are responsible for all usage charges attributable to your account, even if incurred as the result of fraudulent or unauthorized use by third parties, until you report the theft or fraudulent use of the Services. You are solely responsible for securing all passwords and access numbers to guard against and prevent unauthorized access to Services by third parties. Broadvoice, may, but is not obligated to, detect or report unauthorized use or fraudulent use of Services. You agree to save, defend, indemnify and hold Broadvoice harmless from all claims, costs, liabilities and damages arising out of such fraudulent use.
2.1 International Calling. International calling is enabled by default. Customers may enable or disable it at any time by logging into their My Account page. All International calls are billed at their respective international rates which are updated on the first Tuesday of each month. Any and all call charges are rounded to the nearest whole penny. Each customer account is given a credit limit for international calls. If an international calling balance exceeds the credit limit prior to their next bill date, the account will be charged the balance immediately. Failure to pay will result in suspension of service. All international calls are subject to an FCC-mandated Universal Service Fund recovery charge. This rate changes quarterly based on the information located at the FCC Website.
2.2 Directory Assistance and Operator Services. Directory Assistance is charged at ninety-nine cents ($0.99) per call and ten cents ($0.10) per minute after two minutes. Directory Assistance is enabled by default on all new phone lines. Operator calls are billed at three dollars ($3.00) per call. Operator calling is disabled by default on all new phone lines, but may be activated using the My Account Dialing Options.
2.3 Term. This Agreement is effective upon Subscriber’s acceptance as provided above and shall continue until terminated by Subscriber or Broadvoice pursuant to this Agreement.
2.4 Call Burst- Call Burst is the ability to make and receive calls above the subscribed capacity for Call Paths and SIP Trunks. This feature is active by default and billed at the rate of $0.029 per minute. This feature may be deactivated upon request.
3. Termination by Subscriber
Subscriber may terminate this Agreement at any time for any reason by providing Broadvoice with a thirty (30) day written notice in the form of a valid written termination request and paying all fees and other charges accrued or otherwise payable under the terms of this Agreement. Such thirty (30) day period begins on the date on which Broadvoice.com receives Subscriber’s valid written termination request Please refer to corresponding service exhibits for information regarding cancellation and termination fees. A written termination request is valid only if it includes your account number, main username, date you wish the service to be cancelled and is submitted using one of the following approved methods:
VIA EMAIL: email@example.com
VIA FAX: (818) 301-7465
VIA MAIL: Broadvoice
Attn: Cancellation Department
9221 Corbin Ave. Suite 260
Northridge, CA 913
4. Termination by Broadvoice
If, in Broadvoice’s sole and absolute discretion, (a) a Subscriber is in breach of any of the terms of this Agreement (including but not limited to the Acceptable Use Policy); (b) a Subscriber’s use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service, Broadvoice’s servers or other equipment, or the use and enjoyment of other users; (c) a Subscriber acts in an abusive or menacing manner when dealing with Broadvoice’s technical support staff, customer service staff, or any other Broadvoice employees or representatives; (d) Broadvoice receives an order from a court of competent jurisdiction to terminate a Subscriber’s Service; or, (e) Broadvoice for any reason ceases to offer the Service, then Broadvoice at its sole election may terminate or suspend such Subscriber’s Service immediately without notice. For a termination in accordance with this paragraph, Subscriber remains liable for all unpaid fees and other charges accrued or otherwise payable under the terms of this Agreement, including without limitation the equipment charges set forth herein, if applicable.
Broadvoice, in its sole and absolute discretion may refuse to accept a Subscriber’s application for renewal or re-subscription following a termination or suspension of such Subscriber’s use of the Service. If a Subscriber’s Service is terminated for any reason, such Subscriber, upon approval by Broadvoice, may enter into a new Agreement and must pay a new setup or activation fee as provided above. Upon the termination of a Subscriber’s use of the Service, Broadvoice has the right to immediately delete all data, files and other information stored in or for the Subscriber’s account without further notice to the Subscriber.
5. Emergency Services – 911 Dialing
5.1 Dialing 9-1-1. Broadvoice uses the same national 911 network that all traditional telephone companies use. Be aware that 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. Service outages or suspensions or disconnections of service by your bandwidth provider or ISP will prevent all Service, including 911 Dialing, from functioning. Disconnection of your account will prevent all Service, including 911 Dialing, from functioning. Your ISP, bandwidth 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 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 Broadvoice 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. 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.
You authorize us to disclose your name and address to third-parties involved with providing 911 Dialing to you, including, by way of illustration but not limitation, call routers, call centers, and local emergency centers.
5.2 Alternate 9-1-1 Arrangements. If you are not comfortable with the limitations of the 911 Dialing service, you should make arrangements for an alternate means of accessing traditional 911 or E911 services or disconnecting the Service. You understand that additional arrangements should be made to access emergency services. To access emergency services, you acknowledge and accept that it is your sole responsibility to purchase, with a third-party separately from Broadvoice, traditional wireless or wireline telephone service that offers access to emergency services. You further recognize that Broadvoice is not a replacement for your primary telephone service and you are hereby advised to maintain a traditional wireline or wire-based telephone service at all times. By agreeing to these terms of service and by your use of the Device, you acknowledge and accept that the Device may not support or provide emergency service at all times. You represent and warrant to Broadvoice that you already have made additional arrangements with a third party to access emergency services.
5.3 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.
5.4 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 expressly disclaim any and all responsibility for the conduct of such 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 Broadvoice nor any of its officers, directors, members, 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 arise from our gross negligence, recklessness, or willful misconduct. You shall defend, indemnify, and hold harmless Broadvoice, its officers, directors, members, employees, affiliates, and agents and any other service provider who furnishes services to you in connection 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.
5.5 Unprovisioned 911 Calls. For each billing cycle, if a Subscriber places one or more 911 calls but does not have a valid 911 address on file with Broadvoice, Broadvoice shall charge $75 for each call placed. These charges are non-negotiable and Subscriber waives the right to dispute these valid charges.
As part of a service agreement, Broadvoice may provide Equipment to customers, including but not limited to IP telephones, Analog Telephone Adapters (ATAs) and routers. Equipment is provided to customers in two possible methods: Equipment Purchase, and Equipment Rental. Customer shall be required to obtain authorization from Broadvoice to return any Equipment. By using the equipment provided by Broadvoice you are agreeing to be bound by the terms of the one (1) year limited warranty as set out below. Do not use the product until you have read the terms of the warranty. If you do not agree to the terms of the warranty, do not use the produce and return it to Broadvoice immediately.
6.1 Equipment Purchases. Upon receipt of each Purchased Device, you will examine each Device, and unless you notify Broadvoice within five business days of your receipt of said Device to any issue with a Purchased Device, each Device is deemed to be in good working order at the time of receipt. Customer will be provided a twelve (12) month manufacturer’s warranty from the date of purchase of Equipment or Services. Broadvoice will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. Broadvoice will not cover replacement for lost, stolen or modified Equipment. Equipment returned by Customer that is not covered under warranty may be refused by Broadvoice, and Customer will be responsible to pay return shipping charges.
6.2 Equipment Rentals. This Rental Agreement is for the rental of certain telephone hardware (each a “Rental Device”) from Broadvoice (collectively, the “Rental Services”). Broadvoice is and will remain the owner of all rental paid or free rental devices. Broadvoice charges a recurring monthly fee for each Rental Device (collectively, the “Rental Fees”). As a part of your recurring bill from Broadvoice, you agree to pay the Rental Fees for all Rental Devices, using the same payment method and payment period as your payments for Broadvoice Office Services, as defined in your Broadvoice Agreement. In the event the rental devices are provided free of charge the rental fees will be $0. The Rental Services with respect to a Rental Device shall commence on the Rental Start Date and terminate upon the termination of the Broadvoice Service Agreement. Notwithstanding the above, at any time within thirty (30) days after the Rental Start Date, you may terminate the Rental Services with respect to a Rental Device immediately upon written notice from you to Broadvoice, without paying any Rental Fees for such Rental Device.
Upon any termination of the Rental Agreement or Rental Services, you agree to return or purchase a Rental Device (including all accessories and materials that were provided with the primary hardware device) consistent with Broadvoice’s written instructions and in accordance with the Return or Purchase Rights section of the service agreement, and that Rental Device will no longer be considered a Rental Device upon the completion of a return or purchase. If you do not return a Rental Device (subject to Broadvoice’s inspection and acceptance of the returned Rental Device in its reasonable discretion) within (30) days following the termination of the Rental Services for such Rental Device, you will be deemed to have purchased that device at the Broadvoice retail purchase price.
If you wish to upgrade a Rental Device, the replacement of the current Rental Device shall be deemed a termination of the Rental Services with respect to the current Rental Device and be subject to the termination provisions hereof, including the return or purchase provisions for the Rental Device set forth in the Return or Purchase Rights section of this Service Agreement; provided that the Rental Services for the current Rental Device shall be deemed to terminate, and the Rental Services of the replacement Rental Device shall commence, on the date the replacement Rental Device is recorded as delivered by a designated courier.
The Rental Fees for the Rental Services do not include additional services you may select, taxes, fees, international usage, and other additional services. Sales tax varies by jurisdiction of purchase or rental and may be calculated based on full retail price or Broadvoice cost price, as determined by the tax law in the jurisdiction of purchase or rental.
6.3 Rental Device Ownership; Damage and Loss. Broadvoice is and will remain the owner of each Rental Device unless title is conveyed to you in writing following Broadvoice’s confirmation to you of its receipt of your payment in full of the purchase price for the Rental Device. You will not grant any third party any right to use, possess, or control any Rental Device, sublease any Rental Device, attempt to dispose of any Rental Device, grant any interest or right in a Rental Device to any third party, or otherwise do anything that undermines Broadvoice’s ownership of each Rental Device. Broadvoice may, without notifying you, assign Broadvoice’s interest in any Rental Device, and in that event, Broadvoice’s assignee will have all of Broadvoice’s rights in the Rental Device under this Agreement, but none of Broadvoice’s obligations. You agree not to assert against Broadvoice’s assignee any claims, offsets, or defenses you may have against Broadvoice. Upon Broadvoice’s request, you will execute and deliver to Broadvoice any documents or forms for protecting Broadvoice’s ownership and interest in each Rental Device, including finance statements under the Uniform Commercial Code.
Upon receipt of each Rental Device, you will examine each Rental Device, and unless you notify Broadvoice within five business days of your receipt of a Rental Device to any issue with a Rental Device, each Rental Device is deemed to be in good working order at the time of receipt. Broadvoice covers Rental Devices with an extended manufacturer’s warranty in perpetuity as long as the customer is active and in good standing with Broadvoice. Broadvoice will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. In the event that any Rental Device delivered to you is stolen, lost, damaged, or transferred to any third party, regardless of the circumstances or cause, you will immediately notify Broadvoice in writing and pay Broadvoice a purchase price equal the full Broadvoice retail price.
6.4 Return or Purchase Rights. When you return a Rental Device or Free Rental Device, you agree to return a fully functional and non-damaged Device beyond normal wear and tear to Broadvoice. You agree to pay all shipping and handling charges related to any Rental Device and related hardware returns. All returned Devices and related hardware must be fully functional, include all components, manuals, peripheral devices, and all other accessories that were originally shipped with the Device. At our discretion, we may decline your return or charge you an additional fee of thirty dollars ($30) for each missing item or for each item that we determine is damaged or not in good working condition. Before returning any Device or hardware that has data in its memory, please transfer all files you wish to retain to another file source. Once the hardware is returned, your files cannot be recovered and you release us of any liability for any lost, damaged, or destroyed files, data, or other information.
6.5 Other Remedies. If you are obligated to return or purchase a Rental Device or Free Rental Device subject to this Return or Purchase Rights section of this Agreement, and you have not returned a Rental Device or Free Rental Device or you have defaulted in any obligation to pay the purchase price due for a Device to be purchased, Broadvoice may, in addition to those remedies available at law, in equity, or as otherwise set forth in this Agreement, take possession of any or all Rental Devices without demand, notice, or legal process, wherever each Rental Device may be located, and you hereby waive any and all damages occasioned by that taking of possession.
Standard Warranty Exclusions. The Standard Warranty does not apply and is void with respect to: (a) cosmetic damage, (b) product that has been improperly installed or maintained, (c) costs of any installation or deinstallation, (d) Hardware not manufactured or supplied by Broadvoice, (e) failures or defects caused by misuse, abuse, accidents, physical damage, abnormal operation, improper handling and storage, neglect, exposure to fire, fluids, biological waste, hazardous materials, chemicals, excessive moisture or dampness, extreme changes in climate or temperature, spills of food or liquids, or alterations, (f) problems caused by the End User network (e.g., connectivity, coverage or other signal reception problems), (g) floods, (h) acts of God, (i) riots, (j) Hardware from which warranty stickers, electronic serial numbers and/or serial labels have been removed, altered or rendered illegible, (k) Hardware operated outside published environmental parameters, (l) performance of Hardware in combination with other items not manufactured or supplied by Broadvoice, (m) any Hardware which has been opened, repaired, modified or altered by anyone other than Broadvoice or a Broadvoice authorized service center, (n) engraving; (o) Accessories and materials subject to normal wear and tear, or (p) other circumstances beyond the reasonable control of Broadvoice.
EACH RENTAL DEVICE AND ANY TELEPHONE HARDWARE PURCHASED IN CONNECTION WITH THIS RENTAL AGREEMENT IS PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE EXTENT PERMITTED BY LAW, THIS WARRANTY AND THE REMEDIES SET FORTH ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. BROADVOICE DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS, TO THE EXTENT PERMITTED BY LAW. IN SO FAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, BROADVOICE LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THIS EXPRESS WARRANTY AND, AT BROADVOICE’S OPTION, THE REPAIR OR REPLACEMENT SERVICES DESCRIBED BELOW. SOME STATES (COUNTRIES AND PROVINCES) DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY (OR CONDITION) MAY LAST, SO THE LIMITATION DESCRIBED ABOVE MAY NOT APPLY TO YOU. BROADVOICE MAKES NO REPRESENTATIONS OR WARRANTIES THAT ANY RENTAL DEVICE WILL BE DELIVERED TO YOU BY A PARTICULAR DATE OR IS FREE OF RIGHTFUL CLAIMS OF ANY THIRD PARTY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS (INCLUDING PATENT AND TRADE SECRET RIGHTS). THE ENTIRE RISK ASSOCIATED WITH THE USE OF ANY RENTAL DEVICE SHALL BE BORNE SOLELY BY YOU.
7. Service Location Access and Installation
Please refer to your Service Order(s) for specific Installation terms.
7.1 Scope of Work. Broadvoice’s installation services include a pre-installation site survey, on-site installation of equipment, and basic training of how to use the service. Unless otherwise stated in the Service Order, on-site Installation and Training includes four hours on-site for installation and basic training of Customer and/or their authorized representatives. Broadvoice will schedule one or more installation visits with Customer. Customer’s authorized representative must be present during installation. If during the course of installation Broadvoice determines additional time/work is necessary to enable Broadvoice to deliver the Services to the Service Location, Broadvoice will notify Customer of any additional charges. If Customer does not agree to pay such NRCs by executing a revised Service Order within five business days of receiving the same, Customer and Broadvoice shall each have the right to terminate the applicable Service Order. Customer shall connect Customer’s computer or network to applicable Broadvoice-provided Equipment to enable access to the Services.
7.2 Scheduling. Customer understands that installation involves extensive planning, coordination and equipment preparation. Broadvoice will work to accommodate Customer’s schedule for installation whenever possible. Scheduled installations that are cancelled or postponed by Customer within 48 hours of install date may incur an Install Cancellation Fee of $500, plus any applicable non-refundable travel expenses.
7.3 Location Access. Broadvoice and any underlying providers and contractors will require reasonable access to each service location listed on a Service Order (“Service Location”) as necessary to review, install, inspect, maintain or repair any Equipment or Materials necessary to provide the Internet Services. If Customer owns or controls the Service Location(s), Customer grants Broadvoice and its underlying providers permission to enter the Service Location(s) for the exercise of such right. If a Service Location is not owned and/or controlled by Customer, Customer will obtain, with Broadvoice ‘s assistance, appropriate right of access. If such right of access for Broadvoice is not obtained by either party, then Broadvoice ‘s obligations with respect to such Service Location shall be considered null and void.
7.4 Site Survey; Subsequent Interference. Broadvoice may perform an installation review of each Service Location prior to installation of the Services. Upon request, Customer shall provide Broadvoice with accurate site and/or physical network diagrams or maps of a Service Location, including electrical and other utility service maps, prior to the installation review. If Broadvoice determines that safe installation and/or activation of one or more of the Services will have negative consequences to Broadvoice ‘s or its underlying provider’s personnel or Network or cause technical difficulties to Broadvoice or its customers, Broadvoice may terminate the Service Order effective upon written notice to Customer or may require Customer to correct the situation before proceeding with installation or activation of the Services. Installations cancelled within 48 hours of install date or after Broadvoice personnel are on site may incur an Install Cancellation Fee of $500, plus any applicable non-refundable travel expenses.
7.5 Site Preparation. Customer shall be responsible for necessary preparations at its location(s) for delivery and installation of Equipment and the installation and ongoing provision of Services, including the relocation of Customer’s equipment, furniture, and furnishings as necessary to access the Equipment or Services. Broadvoice reserves the right to cancel an installation if Customer’s preparations are not complete, or Customer’s site information provided is not accurate.
7.6 Ongoing Visits. Broadvoice and its underlying provider will need periodic access for inspection, operation, and maintenance of the Network. Except in emergency situations, Broadvoice will obtain approval from Customer (not to be unreasonably withheld or delayed) before entering Customer Premises. At Broadvoice’s request, Customer, or a representative designated by Customer, will accompany Broadvoice ‘s employees or agents into any unoccupied unit for any purpose relating to the Equipment.
7.7 Self-Install. With some Broadvoice products, Customer may have the option to either install services themselves (“Self-Install”), or pay for a Professional Install Broadvoice installation services. Customers that choose to self-install may access Broadvoice Support services by phone or email. If inside wiring or inside wiring repair is required, you must contract with a third party professional for such work at your own cost. Faulty or lack of inside wiring is not grounds for cancellation of your contract. A required professional installation, need for special equipment in order to establish a connection or incompatible wiring or phone system is not grounds for cancellation of the Services or this Agreement
8. Warranties and Limitations of Liability
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE, EQUIPMENT, AND SOFTWARE SUPPLIED HEREUNDER ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY SOFTWARE OR EQUIPMENT PROVIDED BY BROADVOICE (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH SOFTWARE OR EQUIPMENT). BROADVOICE (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS, AND SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICE, SOFTWARE, AND EQUIPMENT WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION GIVEN BY BROADVOICE OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. USE OF BROADVOICE TECHNICAL SUPPORT IS AT YOUR OWN RISK AND IS NOT WARRANTED. BROADVOICE DOES NOT WARRANT OR GUARANTEE THAT VOIP SERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF BROADVOICE HAS ACCEPTED YOUR ORDER FOR VOIP SERVICE. THE PROVISIONING OF VOIP SERVICE IS SUBJECT TO CIRCUIT AVAILABILITY AND OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, NEITHER YOU NOR BROADVOICE SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY PROVIDED EQUIPMENT, PURSUANT TO THE TERMS OF THIS AGREEMENT).
BROADVOICE DOES NOT WARRANT THAT THE SERVICE, SOFTWARE, OR EQUIPMENT PROVIDED BY BROADVOICE WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH, OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED OR ERROR-FREE. BROAVOICE SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. BROADVOICE MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICE, THE SOFTWARE, THE EQUIPMENT, OR THE INTERNET. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICE, THE SOFTWARE, THE EQUIPMENT, AND THE INTERNET GENERALLY. YOU AGREE NOT TO USE THE SERVICE, THE SOFTWARE, OR THE EQUIPMENT IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.
IN NO EVENT SHALL BROADVOICE (OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, PARENT, SUBSIDIARIES, OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS, OR SUPPLIERS BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOSS OF REVENUE, OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE, OR INABILITY TO USE THE SERVICE, THE SOFTWARE, OR THE EQUIPMENT,REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR STRICT LIABILITY, EVEN IF BROADVOICE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION 7 ALSO APPLY TO BROADVOICE’S THIRD PARTY LICENSORS, PROVIDERS, AND SUPPLIERS AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.
ANY RIGHTS OR LIMITS STATED HEREIN ARE THE MAXIMUM FOR WHICH BROADVOICE (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), BROADVOICE’S THIRD PARTY LICENSORS, PROVIDERS, AND SUPPLIERS ARE COLLECTIVELY RESPONSIBLE.
THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
BROADVOICE RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICE, THE SOFTWARE, OR THE EQUIPMENT, OR FOR YOUR BREACH OF THE AGREEMENT (INCLUDING ANY POLICIES RELATING TO THE SERVICE)WITHOUT (A) INCREASING ANY OF THE LIABILITIES OR OTHER OBLIGATIONS BROADVOICE (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS, OR SUPPLIERS ARE OTHERWISE SUBJECT TO PURSUANT TO THIS AGREEMENT OR SUBJECTING BROADVOICE (OR ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, OR AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS, OR SUPPLIERS TO ANY ADDITIONAL LIABILITIES OR OTHER OBLIGATIONS, OR (B) INCREASING ANY OF THE RIGHTS YOU ARE OTHERWISE ENTITLED TO PURSUANT TO THIS AGREEMENT OR PROVIDING YOU WITH ANY ADDITIONAL RIGHTS, THE MAXIMUM AGGREGATE LIABILITY OF BROADVOICE (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID TO BROADVOICE FOR SERVICE.
You agree to defend, indemnify and hold harmless Broadvoice and its officers, directors, members, and employees from and against all liabilities, costs, and expenses, including reasonable attorney’s fees, related to or arising from: (a) any violation of applicable laws, regulations, or this Agreement by you (or any parties who use your account, with or without your permission, to access the Service); (b) the use of the Service, the Software, the Equipment, or the Internet or the placement or transmission of any message, information, software, or other materials on the Internet by you (or any parties who use your account, with or without your permission, to access the Service); (c) negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Service); (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the active negligence or willful misconduct of the other party; or, (e) claims for infringement of any intellectual property rights arising from the use of the Service, the Software, the Equipment, or the Internet
You agree not to assign or otherwise transfer this Agreement, in whole or in part, including the Software or your rights or obligations under it. Any attempt to do so shall be void. Broadvoice may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed
11. Choice of Law
You and Broadvoice agree that the substantive laws of the state of California, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement, except to the extent such law is inconsistent with Federal law. To the fullest extent permitted by law, you and Broadvoice agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred
12. Attorney’s Fees
If any of the Parties shall bring an action or proceeding to enforce this Settlement Agreement, the prevailing party shall be entitled to an award of actual attorneys’ fees and costs.
Broadvoice’s failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
14. Things Beyond Broadvoice’s Control
Broadvoice will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, of other things we do not control, or an inability to obtain necessary equipment or services.
15. Entire Agreement
This Agreement, including all policies posted on Broadvoice’s website, which are fully incorporated into this Agreement by reference, constitutes the entire agreement between you and Broadvoice with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.
Notices by Broadvoice to you shall be deemed given: (a) when sent to your primary contact email address; (b) when deposited in the United States mail addressed to you at the address you have specified in your account options; or, (c) when hand delivered to your home, as applicable
17. Acceptable Use
Subscriber agrees to use the VOIP Service in accordance with Broadvoice’s Acceptable Use Policy (“Acceptable Use Policy”), published at http://www.broadvoice.com/acceptableuse. Broadvoice reserves the right to make changes to the Acceptable Use Policy without notice
All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination, cancellation, or expiration of this Agreement, including without limitation, those provisions relating to Warranties and Limitation of Liability, and Indemnification, shall survive such termination, cancellation, or expiration.
20. Electronic Communications
When you visit broadvoice.com, sign up for service with us, or send e-mails to us, you are communicating with us electronically. By doing so, you consent to receive communications from us electronically in return. It is the responsibility of the subscriber to maintain and update a valid email address with Broadvoice at all times. Broadvoice will not be held responsible for interruptions in service or cancellation of service for non-payment due to an email not being received by the subscriber or filtered out by the email provider being utilized by the subscriber. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Broadvoice sends regular account notifications, balance notifications, and subscription renewal emails which cannot be opted out of. Subscribers may opt out of optional email correspondences, such as periodic newsletters and feature update announcements by clicking a link at the bottom of the email correspondence.