Terms of Service
These Terms of Service (TOS) constitute the agreement (the “Agreement”) between Bitnetix Incorporated, a New York corporation doing business as SmartVox, (“we,” “us,” “Bitnetix,” or “SmartVox”), and the user (“you,” “user” or “Customer”) of our SmartVox® hosted Voice over Internet Protocol (“VoIP”) communications services and any related products or services (“SmartVox” or “Service”). This Agreement governs both the Service and any devices, such as a VoIP phone, analog telephone adapter or any other IP connection device, we provide to you in conjunction with the Service (each a “Device”) and it applies to all seats on your SmartVox account. You will be deemed to have entered into this Agreement by subscribing for or using the Service. This Agreement constitutes the entire agreement between you and SmartVox regarding the Service.
The Service is provided on a per seat basis. For each seat covered by your subscription to the Service, you will be entitled to one VoIP phone and one Direct Inward Dialing number (“DID”). Any VoIP phone or other Device that we provide to you will be selected at our discretion.
1.2 Basic Services
In consideration for the monthly service fee, each seat will be entitled to the following basic services throughout the term:
- Unlimited local and long-distance calling to or from the United State and Canada or 1000 minutes of incoming toll-free usage per month
- 3-way (or more) calling, call transfers, call waiting, blacklisting last caller, do-not-disturb, call pickup, caller ID, unlimited simultaneous inbound and outbound calls, voicemail system with voicemails sent as email attachments, and dial-by-name directory, “Follow Me” personal call menus and forwarding services for each person
- Interactive Voice Response (IVR) menus
- Queues for providing service on “first come, first served” basis to callers
- Ring Groups to ring multiple phones at once, in sequence, or a combination of the two
- Time Conditions and Time Based Routing to perform different actions based on the time of day
- Conferencing system with unlimited numbers of callers
- Direct Inward System Access (DISA) for accessing the office phone system remotely
- Custom Music (or other audio) on Hold with the ability to inject periodic messages
- Paging and Intercom services
- Voicemail Blasting to send a single voicemail message to multiple mailboxes simultaneously
- 24×7 customer support
For Services offered in lengths of one, two or three years, Service begins on the date that SmartVox activates your Service and ends on the day before the first, second or third anniversary of that date, respectively. If you terminate the Service within 30 days after activation, we will (subject to your compliance with your obligations under Section 1.8) refund all fees and other charges you may have paid to us in connection with the Service and you will not be responsible for any additional fees or charges. If you terminate the Service after the initial 30 day period and you have not elected to pay the monthly service fees for the entire amount of your contract term in advance, you will pay us an early termination fee of $325 per seat, plus a disconnection fee, if applicable, all of which will immediately become due and payable. If you terminate the Service after the initial 30 day period and you have paid the monthly service fees for the entire amount of your contract term in full in advance, you will pay us any applicable disconnection fee, which will immediately become due and payable. If you terminate the Service after the initial 30 day period, we will have no obligation to refund any monthly service fees or other fees or charges you may have paid to us in connection with the Service. Service offered on a month-to-month basis may be cancelled with 30 days notice and will not be charged a termination fee. Termination of the Service, expiration of the contract term or disconnection of Service will not excuse you from paying all accrued and unpaid fees due under this Agreement.
1.4 Use of Service
The Service is provided to you for your internal business purposes. You shall not resell or transfer the Service to another party without our prior written consent. You are responsible for supplying, operating and supporting the standard SIP based customer premise equipment for use with the Service. You acknowledge that the Service will not be used for any excessive business use including, but not limited to, auto-dialing, continuous or extensive call forwarding, continuous connectivity, fax broadcasting, fax blasting, telemarketing (including without limitation charitable or political solicitation or polling), automatic dialing, call centers, public calling centers or internet cafes or any other activity that would be inconsistent with normal small business usage patterns. We reserve the right to immediately disconnect or modify your Service if we determine, in our sole and absolute discretion, that you have at any time used the Service for any of the aforementioned or similar activities.
1.5 Prohibited Uses
You shall use the Service and any Devices only for lawful purposes. We reserve the right to immediately disconnect your Service without notice, if, in our sole and absolute discretion, we determine that you have used the Service or any Device for an unlawful purpose. In the event of such disconnection, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a disconnection fee, if applicable, all of which will become immediately due and payable upon disconnection of your Service. If we believe that you have used the Service or any Device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, SmartVox will provide information in response to law enforcement requests, lawful government requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.
(b) Inappropriate Conduct
You shall not use the Service or any Device 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 disconnect your Service without notice, if, in our sole and absolute discretion, we determine that you have used the Service or any Device in any of the aforementioned ways. In the event of such disconnection, you will be responsible for the full term’s charges, including, without limitation, unbilled charges, plus a disconnection fee, if applicable, all of which will become immediately due and payable upon disconnection of your Service. If we believe that you have used the Service or any Device 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. In addition, SmartVox will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others. Furthermore, SmartVox reserves all of its rights at law and equity to proceed against anyone who uses the Services illegally or improperly.
(c) High Risk Use
YOU ACKNOWLEDGE THAT THE SERVICE IS NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. YOU REPRESENT AND WARRANT THAT YOU AND YOUR END USERS WILL NOT USE THE PLAN SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT.
1.6 Copyright; Trademark; Unauthorized Usage of Device; Firmware or Software
(a) Copyright; Trademark
The Service and any Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in any Device, and all Services, information, documents and materials on our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, servicemarks, 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.
(b) Unauthorized Usage of Device; Firmware or Software.
You have not been granted any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in any Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that any Device is exclusively for use in connection with the Service and that we will not provide any passwords, codes or other information or assistance that would enable you to use any Device for any other purpose. We reserve the right to prohibit the use of any interface device that we have not provided to you. You hereby represent and warrant that you possess all required rights, including software and/or firmware licenses, to use any interface device that we have not provided to you. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
1.7 Tampering with Device or Service
You shall not change the electronic serial number or equipment identifier of any Device or to perform a factory reset of any Device without our prior written consent. We reserve the right to disconnect your Service if we believe, in our sole and absolute discretion, that you have tampered with any Device. In the event of such disconnection, you will remain responsible for the entire amount of the monthly service fees payable through the end of your contract term, including, without limitation, unbilled fees, plus the disconnection fee, if applicable, all of which will immediately become due and payable. 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.
1.8 Theft of Service
You shall not use the Service in a manner calculated to avoid SmartVox policies and procedures. You shall not obtain or use the Services in an improper manner. 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, you must provide your account number and a detailed description of the circumstances of the theft of any Device, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the disconnection of your Service and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service. SmartVox reserves all of its rights at law and equity to proceed against anyone who uses the Services illegally or improperly.
You are solely responsible for maintaining the confidentiality of all passwords, PINs, and security questions and answers associated with your use of the Service, are you solely liable for any transactions or activities by you or anyone else that occur on your account. You shall not attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means.
1.9 Ownership and Risk of Loss
Unless you have elected to pay the monthly service fees for your entire contract term in advance, SmartVox shall retain title to each Device until the expiration of your contract term at which time, subject to your payment in full of all fees and charges payable under this Agreement, title to each Device shall pass to you. If the Service is terminated for any reason prior to the expiration of the contract term, each Device must be returned to SmartVox within five days of the termination of Service and (i) each Device must be undamaged and in original condition, reasonable wear and tear excluded; and (ii) all parts, accessories, documentation and packaging materials must be returned. If any of these conditions are not met, you will be charged for each unreturned Device in the amount of $100.00. You are responsible for any and all costs and risks of return shipping of each Device. If you have elected to pay the monthly service fees for your entire contract term in advance, then title to each Device shall pass to you immediately upon payment in full of that amount and you have no obligation to return any Device to SmartVox upon termination of Service.
1.10 Porting Existing Numbers.
At your request, rather than having us provide a new DID for any seat, we will transfer an existing phone number for use with that seat at no additional expense subject to the following conditions:
- (a) You hereby authorize SmartVox to notify your existing service provider of your decision to switch your local, local toll and long distance services to SmartVox, and represent that you are authorized to take this action;
- (b) You agree and acknowledge that if the Device associated with the number to be transferred is set up prior to the date that the number switch becomes effective (“Port Effective Date”), you will be able to make outgoing calls only over that Device. In that case, you should keep another phone connected to an existing phone extension at your service location to receive incoming calls until the Port Effective Date, after which you will be able to both make and receive calls using the Service; and
- (c) You agree and acknowledge that if the Device associated with the number to be transferred is not activated as of the Port Effective Date, your existing phone service for the number you are transferring will be disconnected you will have no service for that line. Therefore, to avoid an interruption in your phone service, it is extremely important that you install the Device prior to, or on, the Port Effective Date.
1.11 Number Transfer on Service Termination
Upon termination of the Service, if you wish to have SmartVox release a telephone number that was ported in for you from a previous service provider, SmartVox will make reasonable efforts to do so, provided that: (i) your new service provider is able to accept such number, (ii) you make the request before your Service is terminated; and (iii) you have paid in full all fees and other charges payable under this Agreement.
1.12 Service Distinctions; Availability
The Service is not a traditional telecommunications service and we provide it on a best efforts basis. Things beyond our control may affect the Service, including but not limited to power outages, fluctuations in the internet, or your underlying broadband service. Other things may affect Service, such as maintenance and upgrades. SmartVox will act in good faith to minimize disruptions to your use of and access to Service. Important distinctions exist between telecommunications service and the Service offering 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.
You acknowledge and agree that the products or services, including without limitation the Plan Services, may not be available one hundred percent (100%) of the time. Credit allowances for interruption of the Service may only be provided on a case-by-case basis at the sole discretion of SmartVox and shall be Your sole remedy for any Service interruptions or other issues with the Service.
1.13 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, calling cards or 900calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
1.14 Incompatibility with Other Services
You understand and acknowledge that the Service may not be compatible with all non-voice communications equipment, including but not limited to home or business security systems, home or business security systems set up to make automatic phone calls, medical monitoring equipment, fax machines, satellite television systems and computer modems. You waive any claim against SmartVox for interference or disruption of such services and equipment due to the Services.
1.15 Use of Service and Device by Customers outside the United States
While the Service may be used within the United States to contact persons in other countries, SmartVox does not presently offer or support the Service to customers located in other countries. If you remove any Device to a country other than the United States, and use the Service from there, you do so at your own sole risk, including the risk that such activity violates local laws in the country where you do so. You are liable for any and all such use of the Service and/or Device by yourself or any person making use of the Service or Device provided to you and agree to indemnify and hold harmless SmartVox against any and all liability for any such use. Should the removal from the United States of any Device violate any export control law or regulation, you will be solely liable for such violation and agree to indemnify and hold harmless SmartVox against any and all liability for such violation. SmartVox reserves the right to terminate your Service immediately and without advance notice if it determines that you are using it outside the United States.
2 BILLING; PAYMENTS; DISCONNECTION; TAXES
We will bill all fees, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears), including but not limited to: activation fees; monthly service fees; international usage charges; advanced feature charges; advanced features/add-ons; subscriber line charge, universal service fund; 911 fees; federal, state and/or local taxes; disconnection fees; and shipping and handling charges. The amount of such fees and charges shall be published on our website and may change from time to time. SmartVox may introduce new products and services at special introductory pricing. Introductory pricing may change at SmartVox. discretion. Notification of monthly invoices will be sent to you via your email address on file with us. Any usage charges will be billed in increments that are rounded up to the nearest minute unless otherwise set forth in the rate schedules found on our website. The above fees are defined as follows:
- Activation Fee
- This fee covers charges for setting up your account and activating you on our system.
- Monthly Service Fee
- This is the fee for the basic services described in Section 1.2.
- Usage Charges
- If you exceed the number of calling minutes covered under the monthly service fee, SmartVox will bill you for the minutes you use above your allowance. SmartVox also bills for calls to directory assistance and other information services.
- International Usage Charges
- These are the fees associated with calls to locations outside of the US and Canada.
- Advanced Features, Add-Ons, Premium Services
- SmartVox charges additional fees for enhanced features and services such as: call recording; call reporting services; call transcription services; fax services; security services; additional DIDs; additional E911 registrations; custom toll free numbers; and customized programming services.
- Universal Service Fund
- The Universal Service Fund (USF) provides support to promote access to telecommunications services at reasonable rates for those living in rural and high-cost areas, income-eligible consumers, rural health care facilities, and schools and libraries. All telephone companies that provide service between states and internationally, including wireless companies, must contribute a percentage of their revenues derived from these services to the USF.
- SmartVox is required to bill and collect local, state and federal taxes imposed on SmartVox customers by the various taxing authorities. SmartVox passes all taxes it collects on to the appropriate taxing authority.
- 911 Fees
- State and/or local governments may assess fees on SmartVox to pay for emergency services in your community. SmartVox bills and collects 911 fees from its customers and remits such fees to the appropriate authority. Depending on where you live, these fees can vary widely. SmartVox is committed to supporting public safety services and resources in your State.
2.2 Billing Disputes
You must notify us in writing within seven days after receiving your statement if you dispute any SmartVox charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be emailed to SmartVox at firstname.lastname@example.org.
2.3 Payment and Collection
Payment is due within 15 days of the invoice date. The due date is listed on all invoices. SmartVox runs billing on the first business day of the month. A variable grace period is provided such that payments must be received by SmartVox on or before the 20th of each month (or the next business day if the 20th falls on a weekend or holiday). Payments received after the grace period will be considered late and subject to a late fee as detailed in 2.3(b).
(b) Late Fees and Denied Charges
You agree and acknowledge that time is of the essence for payment of all fees and charges. Any fees or charges not paid when due shall incur interest at a rate of the lesser of: (i) eighteen percent (18%) per annum; or (ii) the highest rate allowed by Law. SmartVox’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as “Paid in Full,” “Accord and Satisfaction,” or similarly)) shall not waive, limit, or prejudice in any way SmartVox’s rights to collect any amount due. SmartVox may terminate the Services these TOS cover for non-payment if any fees or charges are not paid within thirty (30) days of the due date. Any ACH payment, credit card, debit card, or check transaction that is returned to SmartVox as unpayable by our bank or payment processor will result in a $25 recovery fee added to the Customer’s account.
If your Service is disconnected, you will remain fully liable to us for all fees pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney’s fees.
SmartVox will provide ten days advance notice prior to suspension or disconnection of service.
At the time you subscribe for the Service, you may elect to prepay the monthly service fees for your entire contract term in full. In that case, the entire amount of the monthly service fees will be due and payable in full prior to the activation of your Service. We will continue to bill you for all other fees and charges monthly in accordance with Section 2.3.
2.5 Disconnection; Discontinuance of Service
We reserve the right to suspend or discontinue the Service generally, or to disconnect your Service, at any time in our sole and absolute discretion. If we discontinue the Service generally, or disconnect your Service without a stated reason, you will only be responsible for charges accrued through the date of disconnection. If your Service is disconnected on account of your breach of any provision of this Agreement, you will be responsible for the entire amount of the monthly service fees payable through the end of your contract term, including, without limitation, unbilled fees, plus the disconnection fee, if applicable, all of which will immediately become due and payable. SmartVox will pursue collection for unpaid amounts on disconnected accounts and may report to credit bureaus.
State and local governments may assess taxes, surcharges and/or fees on your use of SmartVox. These charges may be a flat fee or a percentage of your SmartVox fees and may change from time to time without notice. These charges are based on the rates applicable to the address you provided to us. You are responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to you 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.
2.7 Charges for Directory Calls (411)
We will charge you for each call made to directory assistance, subject to the current rate.
3 EMERGENCY SERVICES / 911 DIALING
3.1 911 Dialing
All of our customers have access to either basic 911 or Enhanced 911 (E911) service. With E911service, when you dial 911, your telephone number and registered address are simultaneously sent to the local emergency center assigned to your location, and emergency operators have access to the information they need to send help and call you back if necessary. Customers in locations where the emergency center is not equipped to receive your telephone number and address have basic 911. With basic 911, the local emergency operator answering the call will not have your call back number or your exact location, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is not completed or is not forwarded, is dropped or disconnected, or if you are unable to speak. You authorize us to disclose your name and address to third-parties involved with providing 911 Dialing to you, including, without limitation, call routers, call centers and local emergency centers.
3.2 Notify All Users
You should inform any residents, guests and other third persons who may be present at the physical location where you utilize the Service of the important differences in and limitations of 911 Dialing as compared with basic 911 or E911.
3.3 Registration of Location
The Service is provided at a specific permanent address and not available as a nomadic offering. For each primary phone number that you use for 911 Dialing, you must register with SmartVox the physical location where you will be using the Service with that phone number. When you move the Device to another location, you must register your new location. If you do not register your new location, any 911 calls you make using our 911 Dialing may be sent to an emergency center near your old address. You must register your initial location of use when you subscribe to the Service. Before you move to another location, you must notify SmartVox to determine if service can be provided at your new permanent address. Service will only be provided at locations where E911 connectivity is available. Our 911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number and receive confirmation from SmartVox.
All calls to 911 will be charged a $100 service fee unless your outbound caller ID number is registered with our system as listed in this paragraph. This includes, but is not limited to, calls for which there is no registration, calls for which the registration address is not current, and calls for which the registration is for an incorrect or outdated phone number.
911 Dialing will not be activated for any phone line that you are using with the Service, unless and until you receive an email from SmartVox confirming that 911 Dialing has been activated for that primary phone number. The activation may take up to three days to complete.
3.5 Service Outages
(a) Service Outages Due to Power Failure or Disruption
Dependent upon your location, network backup power systems may be in place during the event of a power failure. The Device provided may also provide limited battery backup. Consult with SmartVox to determine whether or not your Device has battery backup.
(i) Device with battery backup
Battery backup on qualifying Devices is limited. Excessive use during a power outage will result in shortened life of the internal battery. The Device will provide indication of low battery voltage. Customer should contact SmartVox for instructions or replacement. Failure of network power backup systems or the Device battery backup during a power failure or disruption will prevent all service, including 911 Dialing, from functioning.
(ii) Device without battery backup
Devices that do not have a battery backup cannot support 911dialing in 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 911Dialing.
(b) Service Outages Due to Internet Outage or Suspension or Disconnection of Broadband Service or ISP Service
Service outages or suspensions or disconnections of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.
(c) Service Outage Due to Disconnection of Your SmartVox Account
Service outages due to disconnection of your account will prevent all Service, including 911 Dialing, from functioning.
(d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts
Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 Dialing feature, may not function. You acknowledge that SmartVox is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing, which may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you disconnect the Service in accordance with this Agreement.
(e) Other Service Outages
If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. SUCH OUTAGES MAY OCCUR FOR A VARIETY OF REASONS, INCLUDING, BUT NOT LIMITED TO, THOSE REASONS DESCRIBED ELSEWHERE IN THIS AGREEMENT.
3.6 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.
3.7 Disclaimer of Liability and Indemnification
We do not have any control over whether, or the manner in which, calls using our 911 Dialing are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. NEITHER SMARTVOX NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS MAY BE HELD LIABLE FOR ANY CLAIM, DAMAGE, OR LOSS, AND YOU HEREBY WAIVE ANY AND ALL SUCH CLAIMS OR CAUSES OF ACTION, ARISING FROM OR RELATING TO OUR 911 DIALING SERVICE UNLESS SUCH CLAIMS OR CAUSES OF ACTION AROSE FROM OUR GROSS NEGLIGENCE, RECKLESSNESS OR WILLFUL MISCONDUCT. You shall defend, indemnify, and hold harmless SmartVox, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys. fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
3.8 Alternate 911 Arrangements
If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or disconnecting the Service.
4 LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES
4.1 Limitation of Liability
We will not be liable for any delay or failure to provide the Service, including 911Dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
- an act or omission of an underlying carrier, service provider, SmartVox or other third party; equipment, network or facility failure;
- equipment, network or facility upgrade or modification;
- force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions;
- equipment, network or facility shortage;
- equipment or facility relocation;
- service, equipment, network or facility failure caused by the loss of power to you;
- outage of, or blocking of ports or other impediment to usage of the Service caused by any third party;
- any act or omission by you or any person using the Service or any Device; or
- any other cause that is beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications including, without limitation, 911 Dialing, to be connected or completed, or forwarded.
Our aggregate liability under this Agreement will in no event exceed the total fees and charges paid by the Customer under this Agreement.
4.2 Disclaimer of Liability for Damages
IN NO EVENT WILL SMARTVOX, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, COMPENSATORY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
4.3 Indemnification and Survival
You shall defend, indemnify, and hold harmless SmartVox, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys. fees) by, or on behalf of, you or any third party or user of the Service, relating to the Services, including, without limitation, 911 Dialing, or any Device.
The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.
4.4 No Warranties on Service
WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. NEITHER SMARTVOX NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES DEVICES, OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF SMARTVOX OR ITS SERVICE PROVIDER’S OR VENDORS. NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY SMARTVOX OR SMARTVOX’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
4.5 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.
You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using your Service or Device (each such person, a “User”). You shall assure that your and your User’s use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to disconnect or suspend your Services and remove your or your Users. content from the Service, if we determine, in our sole and absolute discretion, that such use or content does not conform with the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Our action or inaction under this Section will not constitute any review or approval of your or Users. use or content.
5.1 Entire Agreement
This Agreement, including any future modifications to its terms, and the rates for services found on our web site constitute the entire agreement between you and SmartVox and governs your use of the Service, superseding any prior agreements between you and SmartVox and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
5.2 Modification of Terms
SmartVox reserves the right to modify the terms and conditions of this Agreement from time to time. By subscribing to the Service, you agree that we may provide to you by use of electronic communications required notices, agreements, and other information concerning SmartVox, including changes to this Agreement. We may give you notice of a change by posting the change on our website or by sending it to you via your email address on file with us. Such notices will be considered given and effective on the date posted or sent. These changes will become binding on you on the date they are posted or sent and we are not required to give you further notice in order for you to continue using the Service. By continuing to use the Service after the modifications are in effect, you accept and agree to all revisions. If you do not agree to the modifications, you must terminate the Service immediately.
5.3 Legal Age
You represent and warrant that you are of legal age to enter into this Agreement and that you have read and understand fully its terms and conditions.
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
The Service utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. SmartVox is not liable for any lack of privacy, which maybe experienced with regard to the Service.
You understand, acknowledge, and agree that from time-to-time during the term of this Agreement SmartVox may, in its sole and absolute discretion, delegate performance of some or all of its rights and obligations hereunder to third parties selected by SmartVox. You hereby consent to such subcontracting activity, provided that SmartVox shall remain accountable to you for the performance of any such obligations.
5.7 No Waiver
The failure of SmartVox to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
5.8 Governing Law; Forum
This Agreement and the relationship between you and SmartVox shall be governed by the laws of the State of New York without regard to its conflict of law provisions. You agree to submit to the personal and exclusive jurisdiction of the courts located within the State of New York and waive any objection as to venue or inconvenient forum. You 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 year after such claim or cause of action arose or be forever barred.