FUTIVA, LLC HOSTED COMMUNICATIONS SOLUTIONS
TERMS AND CONDITIONS
These Hosted Communications Solutions Terms and Conditions (the “Agreement”) are entered
into by and between Futiva, LLC (“Provider”), an Illinois company, and the customer purchasing products
or services from Provider (“Customer”).
1. DEFINITIONS. The following terms will have the meanings set forth below.
1.1 “Customer Data” means any data, information or other materials of any nature
whatsoever provided to Provider by Customer or a User in the course of implementing or using the
Services.
1.2 “Service Descriptions” means user manuals and other documentation relating to the
Services that are made available to Customer by Provider in digital or hardcopy form, as updated from
time to time.
1.3 “Service Fee” or “Service Fees” means the monthly or annual fees set forth in the
Service Order to be paid by Customer to Provider as consideration for Provider’s provision to Customer
of the Services, but does not include usage fees, taxes or regulatory fees or surcharges, which Customer
must pay in addition to the Service Fees.
1.4 “Service Order” means an order for Services or products.
1.5 “Service Plan” means the monthly or annual subscription plan a Customer agrees to in
the Service Order.
1.6 “Service Order Addendum” means a Service Order agreed to by Customer subsequent
to the initial Service Order.
1.7 “Services” means the products or services that are being provided to Customer as described
in the Service Order, including any Additional Services set forth in a Service Order Addendum accepted
by Provider.
1.8 “Software” means any proprietary software owned by, licensed by or which Provider
has a right to sublicense that is used in or used to provide the Services. “Software” includes, without
limitation, any application that Provider makes available to the Customer for use on a mobile device.
1.9 “User” means a user of the software, client, mobile application or other web-based
application, equipment, feature or functionality provided by Provider in conjunction with the Services.
2. SERVICES.
2.1 Generally. Provider will provide the Services set forth in an accepted Service Order
subject to the terms and conditions of this Agreement. Provider hereby grants Customer limited,
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revocable, non-exclusive, non-transferable access to the Services for use by the number of Users set
forth in the Service Order, for Customer’s own internal business purposes. Provider grants Customer a
limited, revocable, non-exclusive, non-transferable right to use the Services Descriptions in connection
with its use of the Services. Each Service Order will be subject to Provider’s acceptance, which will be
deemed given if Provider thereafter provides the Services to Customer.
2.2 Conditions. Customer agrees that Provider’s obligations to provide the Services are
expressly conditioned upon (a) Customer’s payment of the fees as and when due, and (b) Customer’s
satisfaction of the technical requirements set forth in the Services Descriptions for the Services made
available to Customer by Provider, as the same may be updated by Provider from time to time.
2.3 Additional Services. Customer may request an increase in Users or additional Services
at any time during the Term (any such increase, “Additional Services”) by submitting a Service Order
Addendum setting forth the specific Additional Services desired. Each Service Order Addendum will
be subject to Provider’s acceptance, which will be deemed given if Provider thereafter provides the
Additional Services to Customer. Upon acceptance by Provider, such Service Order Addendum will be
deemed an amendment to the Agreement, subject to all of the terms and conditions herein, and the
Service Fees will be increased to reflect the Additional Services, subject to the same pricing and
payment terms as are set forth in the Service Order or the Service Order Addendum as applicable.
3. TERM. This Agreement will commence on the date Provider accepts the Service Order and will
continue for the period of time specified in the Service Order (the “Initial Term”). At the end of the Initial
Term, the Agreement will automatically renew for an additional one-year period (a “Renewal Term”), and
will renew at the end of each Renewal Term for an additional one-year Renewal Term, unless either party
provides the other party, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal
Term, written notification in accordance with Section 20.1 of its desire to cancel the Services. The Initial
Term and any Renewal Terms are collectively the “Term”.
4. TERMINATION.
4.1 Early Termination by Customer. If Customer terminates the Agreement, or some of
the Services provided under the Agreement, before the end of the Initial Term or any Renewal Term
(the “Terminated Term”), Provider will charge Customer, and Customer will pay, an early termination
charge equal to 100% of the monthly Service Fee for the terminated Services, multiplied by the number of
months remaining in the Terminated Term on the date of termination. The early termination charge is in
addition to the full monthly Service Fee payable for the month of, and months prior to, termination.
Provider will also charge Customer, and Customer will pay, (a) any unpaid recurring or non-recurring
charges waived by Provider at the beginning of or during the Terminated Term, and (b) the difference
between the MSRP and the price paid by Customer for any equipment purchased at the beginning of or
during the Terminated Term. If Customer or its User transfers or ports its phone number to a service provider
other than Provider, Customer must also contact Provider to terminate the Services provided to Customer
by Provider.
4.2 Termination by Provider.
(a) Provider is entitled, at its sole discretion, to suspend, terminate or change the Services
without advance notice upon any misuse of the Services in any way, Customer’s breach of the Agreement,
Customer’s failure to pay any sum due hereunder, suspected fraud or other activity by Customer or a User
that adversely affects the Services, Provider, Provider’s network or another customer’s use of the Services.
Provider will be entitled to determine, at its sole discretion, what
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Constitutes misuse of the Services, and Customer agrees that Provider’s determination is final and binding
on Customer. Provider may require, and if required, Customer will pay, an activation fee as a condition to
changing or resuming a terminated or suspended account.
(b) Provider is entitled to terminate any affected portion of the Services if: (i) Provider
is prohibited by law from providing such portion of the Services; or (ii) any material rate or term contained
herein and relevant to the affected Services is substantially changed by or as a result of any regulation
or order issued by any court of competent jurisdiction, the Federal Communications Commission (FCC),
any other local, state or federal government authority, or any carrier or Internet service provider.
(c) Upon termination of this Agreement under this Section 4.2, Customer will be
responsible for the full monthly Service Fee for the month in which termination occurs, in addition to any
accrued but unpaid usage and other charges.
5. FEES, BILLING AND TAXES.
5.1 Payment of Service Fees. Customer will pay the Service Fees for Services ordered by
Customer, and all other amounts due under the Agreement, pursuant to the terms of this Section 5.
5.2 Credit. The provision of Services is contingent upon establishment of and continuing
credit approval by Provider. Customer hereby consents to Provider’s procurement of a credit score or
report regarding Customer. At any time during the Term, Provider is entitled to require a deposit or
other acceptable form of security from Customer, as it deems appropriate. In addition, if requested by
Provider, Customer agrees to provide, within two (2) business days of request, appropriate financial
records to evaluate Customer’s continuing ability to pay. Provider may, immediately and without notice,
suspend or terminate the Services if Customer fails to comply with these security obligations. Upon a
payment default by Customer not cured in a timely manner, Provider will have the right to offset
against any security or deposit held any amounts owed to Provider by Customer, and to invoice and
collect all other amounts owed.
5.3 Billing. Provider will provide Customer with a monthly online billing statement for
the Services provided each calendar month and bill all charges invoiced to Customer’s account. Such
charges will include monthly service fees, storage charges, activation charges, equipment charges, toll
charges, shipping charges, taxes, regulatory recovery fees and any other applicable charges. Monthly
Service Fees will be paid in advance of each month’s service; any variable charges associated with
usage and any other applicable charges associated with such usage shall be billed in arrears. Billing for
monthly Service Fees commences upon ordering of the Services, and monthly Services Fees will be
billed pro rata in the months in which such Services commence. Customer agrees to provide Provider
with complete and accurate contact and payment information, which may include Customer’s credit
card information, and Customer agrees to advise Provider of any changes thereto. To the extent Customer’s
payment method is by credit card, Customer authorizes Provider to charge Customer’s credit card
automatically to pay for Customer’s charges. If a charge to Customer’s credit card is declined or reversed,
or if the account or credit card has expired or been suspended or closed, or if Customer fails to
provide Provider with accurate or complete credit card information, Provider may suspend or terminate
the Services.
5.4 Late/Non-payment. If any charges for the Services are due but unpaid for any reason,
Provider may suspend or terminate the Services and all accrued charges will be immediately due, plus
a late fee of 1.5% per month. A fee may also be charged to activate a suspended or
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terminated account. No suspension or termination of the Services or of this Agreement will relieve
Customer from paying any amounts due hereunder.
5.5 Taxes. All Service Fees and other charges are exclusive of any taxes, surcharges,
public utility fees and regulatory fees (including, without limitation, Universal Service Fees and E911
taxes). Such taxes and fees will be billed by Provider and paid by Customer. Taxes and regulatory fees
may increase during the Term, and Customer will pay such increased fees commencing with the next
monthly bill. Should Customer claim an exemption of any taxes or regulatory fees, Customer must
provide official documented and certified proof of such exemption. In no event will Provider be liable
for any taxes due by Customer or its User, and Customer will defend, indemnify and hold harmless
Provider if any claim for taxes or fees is made. If any amounts paid for the Services are refunded by
Provider, applicable taxes and regulatory fees may not be refundable.
5.6 Regulatory Recovery Fee. A regulatory recovery fee may be charged monthly to
offset costs incurred by Provider in complying with inquiries and obligations imposed by federal, state
and municipal regulatory authorities and the related legal and billing expenses. This fee is not a tax or
charge required or assessed by any government. The regulatory recovery fee will apply to every phone
number assigned, including toll free and virtual numbers. The regulatory recovery fee may increase
during the Term, and Customer will pay such increased fee commencing with the next monthly bill.
5.7 Service Fee Changes. Provider may change the Service Fees, the types of Service
Plans and any additional usage charges without advance notice. Provider will post such changes to its
website (http://www.anpi.com). Notwithstanding the foregoing, the Service Fees agreed upon in
Customer’s Service Order will not be increased during the Initial Term. With respect to any Renewal
Term, the Customer will be charged Provider’s then-current Service Fees in effect at the commencement
of the Renewal Term.
5.8 Availability. Customer acknowledges and agrees that the Services may not be available
100% of the time. Additionally, Services will not be available in the event of interruption in Customer’s
or its User’s internet or broadband service. Provider will not credit Customer for any interruptions in
Service.
5.9 Discounts. From time to time in its sole discretion, Provider may offer promotions or
discounts. Any promotion or discount codes must be provided to Provider upon purchase of the Services.
Customer will not be entitled to a subsequent credit for such promotions or discounts if not requested
at the time of account creation or change of Service. Promotions and/or discounts may not be used
cumulatively or be used for Services retroactively.
5.10 Billing Disputes. Customer must dispute any charges for the Services in writing to
within thirty (30) days of the date of the charge by Provider, or Customer
waives any objection and further recourse with regard to such charges. Notwithstanding the foregoing,
Customer shall pay all undisputed charges in accordance with this Agreement.
5.11 Usage Charges. Every call using the Services that originates or terminates in the Public
Switched Telephone Network (“PSTN”), including without limitation other VoIP networks, accrues
applicable toll charges. Customer will not be charged for monthly usage within the limits of its then current
Service Plan. Usage which exceeds the limits, if any, of Customer’s then-current Service Plan will
be charged to Customer in accordance with the Service Descriptions at the rates published. Calls to phone numbers outside the United States and Canada will also be charged
to the Customer in accordance with the Service Descriptions at the rates published at
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6. TELEPHONE NUMBER. Any telephone number provided by Provider (“Number”) to the Customer
will be leased and not sold. Provider reserves the right to change, cancel or move the Number should
Provider reasonably determine, its sole discretion, that it is required to do so as a result of its agreements
with its underlying services providers or for other business purposes related to the provision of the Services.
7. PRIVACY. The Services use the public Internet and third-party networks to transmit voice
communications and data. Provider is not liable for the interception, use or disclosure of Customer’s or its
User’s voice communications or data. Provider does not represent, warrant or covenant that the Services
will maintain the privacy or security of Customer’s or its Users’ voice communications or data. Customer
acknowledges and agrees that none of its Customer Data is considered “Customer Proprietary Network
Information” under the rules of the Federal Communications Commission. Customer agrees that Provider is
entitled to monitor Customer’s and Users’ use of the Services to protect, maintain, or improve the
Services; to prevent fraud or misrepresentation by affirmative acts and/or omissions; to protect Provider,
its customers or other third parties affiliated with Provider; or for any other good cause. If required by
law, Customer will inform its Users that Provider may monitor the Users’ communications and store and
use the Users’ personally identifiable information as necessary to provide the Services.
8. LICENSE; PROHIBITED USES; CUSTOMER RESPONSIBILITIES; LIMITATIONS.
8.1 Customer hereby grants to Provider a license to copy, store, record, transmit, display, view,
print and use Customer Data, solely to the extent necessary to provide the Services to Customer. Except
as expressly provided in this Section 8, Customer grants to Provider no right, title, interest, or license
in the Customer Data. Customer represents and warrants that it has all necessary consents and rights to
provide personally identifiable information about its Users to Provider, and Customer will provide such
information upon reasonable request by Provider.
8.2 Customer represents and warrants that it will not use the Services for any illegal, fraudulent,
improper, or abusive purpose or in any way that interferes with Provider’s ability to provide highquality
Services to other customers, prevents or restricts other customers from using the Services, or
damages any of Provider’s or other customers’ property. If Provider discovers use of the Services for
anything other than the permitted uses in this Agreement or for any of the prohibited uses in this
Agreement, Provider may at its sole discretion terminate or suspend all or part of Customer’s Services
and charge any applicable fees for the Services used plus damages caused by such improper use.
Prohibited uses include, but are not limited to: (a) behavior that is illegal, obscene, threatening,
harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious or invasive of
another’s privacy; (b) sending unsolicited messages or advertisements, including e-mail, voice-mail,
text messages or faxes (commercial or otherwise) (“spamming”), or otherwise sending bulk or junk email,
voice-mail, text messages or faxes; (c) harvesting or otherwise collecting information about others,
including e-mail addresses, without their consent; (d) negligently, recklessly, knowingly or intentionally
transmitting any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware or
any other programs that may be harmful or dangerous; (e) creating a false caller identity (“ID spoofing”)
or forged e-mail/text message address or header, or otherwise attempting to mislead others as to the
identity of the sender or the origin of any communication made using the Services; (f) transmitting
any material that may infringe, misappropriate, or otherwise violate the foreign or domestic intellectual
property rights or other rights of third parties; (g) violating any U.S. or foreign law regarding the
transmission of technical data or software exported through the Services; (h) using the Services in excess
of what, in Provider’s sole discretion, would be expected of normal business use, including without
limitation allowing more than one user to use a single VoIP line or using a single VoIP line in excess
of what would be expected of a single user; (i) using the Services in
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any way that interferes with other customers’ and third parties’ use and enjoyment of the Services; (j)
using or employing methods and/or devices that are designed or likely to take advantage of, bypass,
exploit or otherwise avoid this use policy.
8.3 Customer understands and agrees that: (a) it will be solely liable for any transmissions
sent through the Services under its account or its User’s account, including the content of any transmission
sent through the Services under its account or its User’s account; (b) it will abide by all applicable
Provider policies, procedures and agreements related to the Services; and (c) it will 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.
8.4 Some of Provider’s plans and other Services are offered on an “unlimited” basis. All
unlimited plans: (a) may only be used for normal commercially reasonable business use; (b) are provided
only for dialog between two individuals at one time per line; (c) are issued on a “one (1) user per line
basis”, meaning that only one registered User may be assigned to use the Services for any one line; and
(d) are subject to additional usage charges, including but not limited to such charges associated with
international calling, in accordance with the then-current rates posted to Provider’s website
(http://www.anpi.com). Unlimited plans may not be used for any of the following prohibited uses (which
are in addition to the other prohibited uses applicable to all Services): (i) trunking or forwarding a Provider
Number to another phone number capable of handling multiple simultaneous calls, or to a private
branch exchange (PBX) or a key system; (ii) spamming or blasting (e.g., sending bulk or junk voicemails,
e-mails, text messages or faxes simultaneously); (iii) bulk call-in lines (e.g., customer support or
sales call centers, “hotlines”, 900 numbers, sports-line numbers, etc.); or (iv) auto- dialing or “predictive”
dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place
out-bound calls). In addition, unusually high usage of the Services may impair Provider’s ability to
provide high-quality Services to others and/or indicate unauthorized use of the Services, in which case
Provider may suspend or terminate Customer’s account or, upon prior notice, convert Customer’s
account to a metered calling plan that charges significantly higher usage rates.
8.5 Customer must report any unauthorized use of the Services to Provider immediately
after Customer discovers such use. Customer is responsible for all use of the Services, whether authorized
or unauthorized. Customer will be responsible if any of its Users use the Services in a manner
prohibited by this Agreement. Customer will be responsible for any act or omission of a User that would
be a breach of this Agreement if done by Customer.
8.6 Customer acknowledges and agrees that the right to use any Services is nonexclusive
and nontransferable, and Customer will not permit use of the Services other than for its internal business
purposes. Nothing in this Agreement will pass to Customer or any User title to any of the Services,
any trade names, trade dress, trademarks, service marks, commercial symbols, copyrightable material,
designs, logos and/or any other intellectual property of Provider or its vendors. Customer will not
challenge or attempt to register or otherwise protect any of Provider’s intellectual property or other rights
in the Services.
8.7 Customer will not: (a) copy or adapt the Services for any purpose, except as specifically
permitted under this Agreement; (b) use the Services except in accordance with all applicable laws and
regulations, and except as set forth in this Agreement; (c) reverse engineer, translate, decompile, or
disassemble the Services; (d) use the Services in any outsourcing, application service provider, timesharing
or service bureau arrangement, including, without limitation, any use to provide services or
process data for the benefit of, or on behalf of, any third party other than a User;
(e) cause or permit the disabling or circumvention of any security mechanism contained in or
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associated with the Services; or (f) delete, alter, cover, or distort any copyright or other proprietary
notices or trademarks with respect to the Services.
8.8 Customer understands and accepts that, in order to protect Customer against fraudulent
use of the Services, Provider may require Customer to contact Provider in order to enable calling to
certain calling destinations.
8.9 Customer will execute such other documents, provide such other information, and
affirmatively cooperate with Provider, all as may be reasonably required by Provider relevant to providing
the Services.
9. USE AND STORAGE. Provider reserves the right to establish or modify general practices and
limits concerning use of the Services and Software, including, without limitation, the maximum number
of days that content will be retained by the Service and the maximum disk space or bandwidth capacity
that will be allotted on servers owned or operated by Provider on Customer’s behalf. Where practical,
Provider will provide Customer with prior notice of such new or modified practices; provided, however,
that Provider will have the absolute right to implement such new or modified practices without prior notice
in its sole discretion and without liability of any kind.
10. ELECTRONIC RECORDING. Customer agrees that there are federal and state statutes governing
the electronic recording of telephone conversations and that Provider will not be liable for any illegal use
of any recording services provided to Customer or its Users. It is Customer’s responsibility to determine if
the electronic recordings are legal under applicable federal and state laws and to comply with those laws.
Customer will defend, indemnify and hold harmless Provider for any claims, damages, fines, penalties or
costs (including, without limitation, attorneys’ fees) arising out of Customer’s or its User’s failure to
adhere to applicable electronic recording laws.
11. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF
CUSTOMER COMMUNICATIONS. Customer is solely responsible for maintaining the confidentiality of
Customer’s account login information (including, without limitation, its Users’ account login information),
and will not allow a third party to use the Services. Customer is solely responsible for any and all activities
that occur under Customer’s account or its User’s account, including, without limitation, fraudulent use of the
account. Customer and its Users must comply with laws regarding online behavior, acceptable content and
the transmission of equipment and information under applicable export laws. Customer also agrees to comply
with applicable local rules or codes of conduct (including, if applicable, codes of conduct or policies imposed
by employers) regarding online behavior and acceptable content. Use of the Services is void where
prohibited. Customer will immediately notify Provider of any unauthorized use of Customer’s account or
its User’s account or any other breach of security related to Customer’s account, its User’s account or the
Provider Services. Customer and each User must “log off” at the end of each session. Provider is not
liable for any loss or damage arising from Customer’s or its User’s failure to comply with any of the
foregoing obligations. In consideration for using the Provider Services, Customer will: (a) provide certain
current, complete and accurate information about Customer and Users when prompted to do so by the
Provider Services, and (b) maintain and update this information as required to keep it current, complete and
accurate. Customer agrees that Customer is solely responsible for the content of all visual, written or audible
communications (“Content”) sent, displayed or uploaded by Customer or a User in using the Services.
Although Provider is not responsible for any such communications, Provider may reject or remove any
Content that violates a law or this Agreement. Customer or the User retains copyright and any other rights
already held in Content that Customer or the User submits, posts or displays on or through, the Services,
or any music or ring-tones Customer or a User uses in connection with the Service. Customer understands
and agrees that by displaying, exchanging or uploading Content to a Provider website, transmitting
Content using the Services or
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otherwise providing Content to Provider, Customer automatically grants (and warrants and represents that it
has a right to grant) to Provider a world-wide, royalty-free, sub-licensable (so Provider affiliates, contractors,
resellers and partners can deliver the Services) perpetual, irrevocable license to use, modify, publicly
perform, publicly display, reproduce and distribute the Content in the course of offering the Services,
including, without limitation, on associated websites (“Sites”). Furthermore, Customer represents and
warrants that it has all necessary consents and rights to transmit Content and other communications from its
users to Provider.
12. RESPONSIBILITY FOR CONTENT OF OTHERS. Customer acknowledges that Users may
violate one or more of the above prohibitions, but Provider assumes no responsibility or liability for such
violation. If Customer becomes aware of misuse of the Services by any person, entity or organization,
Customer agrees to contact Provider Customer Support at 855-492-2300 or CustomerCare@anpi.com. Provider
may investigate any complaints and violations that come to its attention and may take any action that it
believes is appropriate, including, but not limited to, issuing warnings, removing the content or terminating
accounts and/or User profiles. Under no circumstances will Provider be liable in any way for any data or
other content available on a Site or actions taken while using the Services, including, but not limited to, any
errors or omissions in any such data, content or activity or any loss or damage of any kind incurred as a
result of the use of, access to or denial of access to any data, content or activities on a Site. Provider does
not endorse and has no control over what Users post, submit to or do on a Site. Customer acknowledges
that Provider cannot guarantee the accuracy of any information submitted by any User of a Site, nor any
personally identifiable information about any User. Provider reserves the right, in its sole discretion, to
reject or remove content.
13. EMERGENCY 911 SERVICES.
13.1 Service Limitations. The FCC requires that Provider provide E911 Service to all
Customers who use Provider Services within the United States. Sections 13.2-13.8 apply to all Customers
who use Provider Services within the United States. Section 13.9 applies to all Customers.
13.2 ACKNOWLEDGEMENT AND WARNING LABELS. CUSTOMER
ACKNOWLEDGES THAT PROVIDER’S EQUIPMENT AND SERVICES DO NOT SUPPORT 911
EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT
TRADITIONAL WIRELINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS
SECTION 13, AND CUSTOMER AGREES TO NOTIFY ALL POTENTIAL USERS WHO MAY
PLACE CALLS USING CUSTOMER’S SERVICES OF THE 911 LIMITATIONS DESCRIBED
HEREIN. PRIOR TO THE INITIATION OF SERVICE, PROVIDER WILL PROVIDE CUSTOMER
WITH WARNING LABELS REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911
EMERGENCY DIALING. CUSTOMER AGREES TO PLACE SUCH LABEL ON OR NEAR EACH
TELEPHONE OR OTHER CUSTOMER-PREMISES OR USER- PREMISES EQUIPMENT ON
WHICH THE SERVICES MAY BE USED. IF ADDITIONAL LABELS ARE REQUIRED,
CUSTOMER MAY REQUEST THEM FROM PROVIDER, AND PROVIDER WILL PROVIDE
ADDITIONAL LABELS. PROVIDER WILL PROVIDE CUSTOMER WITH ADVISORY NOTICES
REGARDING 911 EMERGENCY DIALING AND REQUEST ACKNOWLEDGMENTS FROM
CUSTOMER. CUSTOMER WILL PROVIDE SUCH ADVISORY NOTICES TO ITS USERS.
CUSTOMER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT
PROVIDER HAS ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH E911
SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO
TRADITIONAL 911 EMERGENCY DIALING. CUSTOMER WILL PROVIDE SIMILAR
ACKNOWLEDGEMENTS FROM ITS USERS UPON REQUEST BY PROVIDER. PROVIDER
ADVISES CUSTOMER AND USERS TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING
TRADITIONAL 911 SERVICES.
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13.3 ELECTRICAL POWER. CUSTOMER ACKNOWLEDGES THAT THE SERVICES,
INCLUDING WITHOUT LIMITATION E911 SERVICE, WILL NOT FUNCTION IN THE ABSENCE
OF ELECTRICAL POWER.
13.4 INTERNET ACCESS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES,
INCLUDING WITHOUT LIMITATION E911 SERVICE, WILL NOT FUNCTION IF THERE IS AN
INTERRUPTION OF CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS
SERVICE.
13.5 NON-VOICE SYSTEMS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES
ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS SUCH AS HOME SECURITY
SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, OR ENTERTAINMENT
OR SATELLITE TELEVISION SYSTEMS. PROVIDER WILL NOT BE LIABLE FOR
INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
13.6 E911 SERVICE. E911 SERVICE IS A MANDATORY COMPONENT OF ALL
INBOUND/OUTBOUND TRADITIONAL FAX AND VOICE SERVICE PLANS. E911 SERVICE IS
NOT OFFERED ON VIRTUAL NUMBERS, OUTSIDE THE UNITED STATES, ON TOLL- FREE
NUMBERS OR ON SIMILAR SERVICE ACCESSORIES OR ADD-ON SERVICE PLANS. E911
SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. E911 SERVICE IS TIED TO THE
CUSTOMER’S REGISTERED SERVICE ADDRESS ASSOCIATED WITH THE ASSIGNED PHONE
NUMBER; CUSTOMER IS RESPONSIBLE FOR PROVIDING PROVIDER WITH ADDRESS
INFORMATION FOR CUSTOMER’S USERS. THE PROVIDER MOBILE APPLICATION USES THE
DEVICE’S DIALER AND CELLULAR TELEPHONE SERVICE TO MAKE 911 CALLS. IF A DEVICE
DOES NOT HAVE CELLULAR TELEPHONE SERVICE, THEN THE USER WILL NOT BE ABLE
TO CALL 911 FROM THE PROVIDER MOBILE APPLICATION. CUSTOMER ACKNOWLEDGES
THAT PROVIDER’S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT
EMERGENCY CALL TAKER IS THE CUSTOMER’S OR USER’S REGISTERED SERVICE
ADDRESS ASSOCIATED WITH THE ASSIGNED PHONE NUMBER. CUSTOMER
ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION
PASSED TO AN EMERGENCY OPERATOR BY PROVIDER WILL BE BASED UPON THE
CUSTOMER’S OR USER’S REGISTERED SERVICE ADDRESS PROVIDED TO PROVIDER BY
CUSTOMER. IN THE EVENT THAT THE REGISTERED SERVICE ADDRESS ASSOCIATED WITH
THE ASSIGNED PHONE NUMBER IS INCORRECT, IS OUTDATED, OR IS NOT COMPLETE, A
911 CALL MAY BE ROUTED INCORRECTLY.
13.7 E911 SERVICE CHARGE. CUSTOMERS THAT ARE REQUIRED TO SUBSCRIBE
TO PROVIDER E911 SERVICE WILL BE SUBJECT TO A MONTHLY E911 SERVICE CHARGE.
THE MONTHLY E911 SERVICE FEE WILL BE IN ADDITION TO THE APPLICABLE SERVICE
FEES FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR PROVIDER E911 SERVICE
IS ASSESSED ON A “PER-LINE” (THAT IS, PER PHONE NUMBER BASIS), AND WILL BE SET
AT A LEVEL THAT REIMBURSES PROVIDER FOR THE DIRECT COSTS IT INCURS IN
PROVIDING PROVIDER E911 SERVICE, INCLUDING EXPENSES PROVIDER INCURS, EITHER
DIRECTLY OR INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911
SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE,
LINE INFORMATION DATABASE AND CALLER ID (LIDB/CNAM) EXPENSES, AND ANY
OTHER TAXES OR SURCHARGES DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE
PROVISION OF SERVICES TO CUSTOMERS SUBSCRIBING TO THIS SERVICE. PROVIDER
RESERVES THE RIGHT TO
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ADJUST THE LEVEL OF CHARGES ASSOCIATED WITH THE PROVISION OF E911
SERVICES TO REFLECT INCREASES OR DECREASES IN THE COSTS IT INCURS.
13.8 E911 CHARACTERISTICS. CUSTOMER ACKNOWLEDGES THAT PROVIDER
E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM
TRADITIONAL, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE
PROVIDER E911 SERVICES UNSUITABLE FOR SOME CUSTOMERS OR USERS. BECAUSE
CUSTOMER AND USER CIRCUMSTANCES VARY WIDELY, CUSTOMER SHOULD
CAREFULLY EVALUATE ITS OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY
SOLELY UPON PROVIDER E911 SERVICE. CUSTOMER ACKNOWLEDGES THAT IT IS
CUSTOMER’S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF
TECHNOLOGIES BEST SUITED TO MEET CUSTOMER’S AND ITS USERS’ EMERGENCY
CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO
EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE
PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY
CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH PROVIDER E911 SERVICE
FROM TRADITIONAL, CIRCUIT-SWITCHED 911 SERVICE:
• E911 SERVICE WILL NOT FUNCTION IF CUSTOMER’S OR ITS USER’S DTA, PHONE
OR VIDEOPHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF CUSTOMER’S
OR ITS USER’S PROVIDER SERVICE IS NOT FUNCTIONING FOR ANY REASON,
INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND
OR OTHER INTERNET SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION
OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER
OUTAGE, CUSTOMER OR THE USER MAY BE REQUIRED TO RESET OR
RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE PROVIDER
SERVICE, INCLUDING FOR E911 PURPOSES. E911 SERVICE MAY NOT FUNCTION IF
CUSTOMER OR A USER RELOCATES EQUIPMENT OR USES A NON-NATIVE
TELEPHONE NUMBER, OR FOR ANY OTHER REASON BEYOND PROVIDER’S
CONTROL.
• AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY
CHANGE OF AND UPDATE TO CUSTOMER’S OR A USER’S PHYSICAL LOCATION,
THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION
INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS
INFORMATION IS TYPICALLY POPULATED INTO PROVIDER’S NOMADIC E911
DATABASES PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE
THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE
ACTIVATED WITHIN THIS SCHEDULE.
• THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING PROVIDER E911
EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911
SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR
LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW
THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING
THE PROVIDER E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN,
AND IN THE EVENT OF NETWORK CONGESTION ON THE PROVIDER NETWORK,
THERE IS A POSSIBILITY THAT A PROVIDER 911 CALL WILL PRODUCE A
BUSY SIGNAL, THE CALLER WILL
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EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES OR THE LOCAL
EMERGENCY SERVICE OPERATOR WILL TAKE LONGER TO ANSWER THE CALL
THAN 911 CALLS PLACED VIA TRADITIONAL, CIRCUIT-SWITCHED TELEPHONE
NETWORKS.
• IF CUSTOMER OR ITS USER DOES NOT CORRECTLY IDENTIFY THE ACTUAL
LOCATION WHERE THE PROVIDER EQUIPMENT WILL BE LOCATED AT THE TIME
OF ACTIVATION OF THE SERVICE, PROVIDER E911 COMMUNICATIONS MAY NOT
BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
13.9 E911 LIMITATION OF LIABILITY AND INDEMNITY. CUSTOMER AGREES
THAT PROVIDER WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE OR INABILITY TO
DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING A PROVIDER
SERVICE OR TO ACCESS OR REACH AN EMERGENCY SERVICE OPERATOR DUE TO THE
911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT.
CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS PROVIDER, ITS
OWNERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS,
AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER OR A
USER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, ACTIONS,
LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, ATTORNEYS’ FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD
PARTY OR USER OF THE SERVICE RELATING TO 911 DIALING OR THE INABILITY TO
ACCESS OR REACH EMERGENCY 911 SERVICES.
14. DISCLAIMER AND LIMITATION OF LIABILITY. PROVIDER DISCLAIMS ALL
WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ARISING FROM A COURSE OF DEALING
OR PERFORMANCE OR CUSTOM, WITH RESPECT TO THE SERVICES, EQUIPMENT, AND ANY
OTHER PROVIDER PRODUCTS, SERVICES OR EQUIPMENT PROVIDED HEREUNDER,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, PERFORMANCE IN AWORKMAN-LIKE MANNER, COMPLIANCE WITH
LAWS, QUALITY, ACCURACY, COMPLETENESS OR CURRENCY OF INFORMATION, SYSTEM
INTEGRABILITY, TITLE, QUIET ENJOYMENT AND NON-INFRINGEMENT. PROVIDER DOES
NOT REPRESENT,WARRANT OR COVENANT THAT THE PRODUCTS, SERVICES OR EQUIPMENT
PROVIDED WILL OPERATE UNINTERRUPTED, ERROR FREE OR WITHOUT DEGRADATION OR
LOSS OF DATA, OR BE SECURE. NEITHER PROVIDER NOR ITS SERVICE PROVIDERS WILL
BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION
OF CUSTOMER’S OR A USER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION,
INCLUDING, WITHOUT LIMITATION, ANY SUCH DATA IN PROVIDER’S POSSESSION, CUSTODY
OR CONTROL, THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER
METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF PROVIDER’S
OR ITS SERVICE PROVIDER’S NEGLIGENCE. IN NO EVENT WILL PROVIDER OR ITS
AFFILIATE, SERVICE PROVIDER, FACILITY OPERATOR OR CARRIER, OR THEIR RESPECTIVE
OWNERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY,
“PROVIDER PARTIES”) BE LIABLE FOR ANY DIRECT, ACTUAL, INDIRECT, CONSEQUENTIAL,
SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR ANY COST OF COVER OR LOST PROFITS
OF ANY KIND OR NATURE WHATSOEVER, ARISING FROM OR RELATED TO THIS
AGREEMENT OR A PROVIDER PARTY’S PERFORMANCE OR NONPERFORMANCE OF
OBLIGATIONS HEREUNDER, A FAILURE OF OR A DEFECT IN THE SERVICES, EQUIPMENT
OR ANY PRODUCT, A PROVIDER PARTY’S VIOLATION OF A THIRD PARTY’S RIGHT, OR A
PROVIDER PARTY’S ACTS OR OMISSIONS. PROVIDER WILL NOT BE
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LIABLE FOR THE ACTS OR OMISSIONS OF, A FAILURE OF OR A DEFECT IN ANY PRODUCT
OR SERVICE PROVIDED BY, OR VIOLATION OF ANY THIRD PARTY’S RIGHTS BY ANY THIRDPARTY
SERVICE PROVIDER, FACILITY OPERATOR OR CARRIER. THE PROVIDER PARTIES’
MAXIMUM TOTAL LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNTS PAID BY
CUSTOMER TO PROVIDER IN THE THREE (3) MONTHS PRECEDING THE DATE THE CLAIM
ACCRUED. THE PROVIDER PARTIES WILL NOT BE LIABLE IN ANY WAY TO ANY USER.
15. INDEMNIFICATION. Customer will defend the Provider Parties, at Customer’s expense, against
any third-party claim or action, and indemnify and hold harmless the Provider Parties from any and all
losses, damages, liabilities, penalties, settlement obligations, costs, attorneys’ fees and other legal expenses
related to such third-party claim or action, arising from or related to: (a) Customer’s breach of this
Agreement or an agreement between Customer and a third party; (b) Customer’s violation, infringement
or misappropriation of the third party’s intellectual property or other rights in Customer’s use of the
Services; (c) Customer’s violation of the third party’s privacy, publicity, personality or other rights; (d)
Customer’s fraud in use of the Services or fraud or misrepresentation regarding the nature or volume of
Customer’s traffic; (e) Customer’s violation of an applicable law; (f) bodily injury, death or property
damage to the extent such claim or action arises from the negligence, gross negligence or willful misconduct
of Customer, or in the case where strict liability applies; (g) Customer’s business, acts or omissions; or
(h) acts or omissions by Users that, if done by Customer, would constitute a breach of this Agreement.
Customer will not settle any claim or action without Provider’s prior written consent. Provider will have
the option, at its expense, to participate in the defense or settlement of the claim or action with counsel
of its own choosing. If a conflict of interests arises or exists between the parties or if Provider has a good
faith belief that its rights are being harmed by the counsel selected by Customer, Provider will have the
right to retain separate counsel to represent its interests at Customer’s sole cost and expense. Customer will
not settle any claim without Provider’s prior written consent.
16. EQUIPMENT.
16.1 Equipment Purchase. If Provider sells any equipment to Customer, the terms of this
Section 16 apply. All equipment shipments are Free On Board (FOB) Provider’s or Provider’s distributor’s
facility. Provider’s liability for delivery will cease, and title (if applicable) and all risk of loss or damage
will pass to Customer upon delivery to the common carrier for shipment. Customer shall be wholly
responsible for insuring any products purchased from the time risk of loss or damage passes to Customer.
Provider will pass through to Customer any warranty provided by the manufacturer of the equipment;
PROVIDER MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY
EQUIPMENT.
16.2 Equipment Return Policy. Customer will be required to obtain authorization from
Provider to return any equipment. Equipment returned by Customer that is not covered under warranty
or that does not bear a return authorization number may be refused. Provider will not replace lost,
stolen or modified equipment. Customer must pay all shipping and handling charges related to any
equipment returns not covered under warranty. All returned equipment must be unmodified, in good
working condition, in the original packaging and include all components, manuals, peripheral devices
and all other accessories that were originally shipped with the equipment. Provider may decline Customer’s
return or charge Customer an additional fee for each missing item or for each item that Provider
reasonably determines is modified, damaged or not in good working condition. Customer must delete
all data files stored on returned equipment. Customer acknowledges that any data remaining on returned
equipment cannot be recovered, and Customer releases Provider of any liability for any lost, damaged or
destroyed files, data or other information.
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17. MOBILE APPLICATION. Provider may make a mobile application for the Services available
to Customer. Subject to this Agreement, Provider grants to Customer a limited, personal, revocable, nonexclusive,
non-transferable and non-sublicensable license to install and use the mobile application during
the Term. Customer has no other rights in or to the mobile application. The mobile application is licensed,
not sold. The terms of this Agreement apply to any updated, upgraded or new versions of the mobile
application. Use of the mobile application constitutes use of the Services. Provider may require Users to
agree to additional terms and conditions governing use of the mobile application, and Customer agrees
that its Users will not be permitted to use the mobile application unless they agree to such terms and
conditions. Customer agrees that from time to time and without notice Provider may amend, modify, update
or upgrade the mobile application or create new versions of the mobile application. Customer agrees that
Provider may automatically update the version of the mobile application that a User is using on a mobile
device. Customer consents, on behalf of itself and its Users, to such updating on mobile devices. Updates
may cause Customer or a User to lose data, and Provider will not be liable for such loss. Customer agrees
that Provider has no obligation to provide support, maintenance or updates for or to the mobile application.
To the extent the mobile application contains any third-party software, Customer’s and User’s rights and
obligations with respect to such software will be subject to and governed by the third party’s terms and
conditions. Provider does not make a representation or warranty that the mobile application will operate
on any particular device or operating system. The mobile application is commercial computer software,
and to the extent any U.S. government agency uses the mobile application, the U.S. government is only
granted the limited rights granted to all other Provider customers. Provider is not a wireless licensee of the
FCC, and the mobile application will not be able to provide access to E911 service unless Customer
subscribes to wireless service that complies with the FCC’s E911 program, as further explained in Section
13.6.
18. INTELLECTUAL PROPERTY. The Services and Software, and all intellectual property therein,
are and will remain the exclusive property of Provider. Provider reserves all rights not expressly granted
under this Agreement. The Software may contain third-party software that is subject to the terms and
conditions of third-party licenses. Neither Customer, Users nor any other third party has a right to inspect,
possess, use, copy, or attempt to discover the source code of (or any portion of) the Software, except to
the extent that Customer, a User or a third party is expressly permitted to decompile the Software under
applicable law and Customer, the User or the third party notifies Provider in writing in advance of its
intention to decompile the Software and its reason for doing so.
19. PORTAL UPGRADES; PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE.
Provider may update the Customer and User portals, and Customer agrees that Service may be unavailable
during the implementation of such updates. Upon expiration, cancellation or termination of the Services,
Customer and Users will relinquish and discontinue use of any accounts, Numbers, voice mail access
numbers, and/or web portal Sites assigned to Customer by Provider or its service providers.
20. MISCELLANEOUS.
20.1 NOTICES. Unless otherwise specified in this Agreement, any notice required or permitted
to be given pursuant to this Agreement will be given in writing by overnight delivery service, sent via
certified mail, return receipt requested, e-mailed, or delivered by hand, and such notice will be deemed
to have been given and received when delivered or when delivery was refused, or with respect to
electronic transmissions, at the time of transmission (unless the sender received a notice of transmission
failure). Customer consents to receive all notices in electronic form, and Provider may send any notice
to Customer at Customer’s latest physical address or e-mail address provided by Customer. Provider
may, in addition to all other methods of giving notice, send any notice to Customer’s mailbox in
Customer’s account on the Provider Customer Care Portal. Both parties agree that any agreements and
notices made or provided by one or both parties in electronic
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form, and in accordance with this Agreement, are as legally binding as if made in physical written
form. Customer must send all notices to Provider via e-mail in accordance with the following:
To report misuse or fraudulent use of Service: CustomerCare@anpi.com
To submit a billing dispute: BillingDisputes@anpi.com
To terminate Service: CustomerCare@anpi.com
All other notices: CustomerCare@anpi.com
20.2 FORCE MAJEURE. Provider’s performance of any part of this Agreement will be
excused to the extent that it is hindered by flood, fire, natural disaster, strike, riot, war, terrorism,
hostile attack, governmental action, cable cuts, supplier shortages, breaches, or delays, Provider’s inability
to perform as a result of actions or inactions of third parties, Customer, a User or Provider’s vendors,
including, without limitation, Customer’s failure to provide or maintain a circuit with respect to an order
for Service, or any other cause (whether similar or dissimilar to those listed) beyond Provider’s reasonable
control (a “Force Majeure”). Provider may terminate the Services without liability if a Force Majeure
hinders Provider’s performance for more than five (5) days.
20.3 NO CLASS ACTION. Customer irrevocably waives any right Customer may have to
serve as a representative or as a private attorney general, or to participate as a member of a class of
claimants, in any lawsuit, arbitration or other proceeding against any Provider Party arising from, related to
or connected with this Agreement or any Service Order.
20.4 BINDING NATURE AND ASSIGNMENT. Customer’s rights and obligations in this
Agreement will not be assigned, delegated or otherwise transferred in whole or in part without the prior
written consent of Provider. Except as part of the sale of all or substantially of the assets for Provider or
the assignment of this Agreement, or any rights or obligations thereunder, to any of Provider’s affiliates
(which will not require Customer consent), Provider’s rights and obligations in this Agreement will not be
assigned, delegated or otherwise transferred in whole or in part without the prior written consent of Customer,
which will not be unreasonably withheld. For sake of clarity, Provider may assign, delegate and transfer
some or all of its rights and obligations under this Agreement to its affiliates. Except as otherwise
expressly provided herein, this Agreement will inure to the benefit of, and will bind, the heirs, executors,
personal representatives, administrators, successors and permitted assigns of Provider and Customer.
20.5 GOVERNING LAW. This Agreement and any related Service Orders will be governed
by and construed according to the laws of the State of Illinois, without regard to its conflict of laws
provisions. The U.N. Convention on Contracts for the International Sale of Goods will not apply to
this Agreement.
20.6 ARBITRATION. Any dispute or controversy arising out of or in connection with
this Agreement or any related Service Order, or otherwise related to the Services, will be resolved by
binding arbitration. The Federal Arbitration Act and federal arbitration law applies to this Agreement.
The arbitration will be administered by the American Arbitration Association (AAA), conducted by
one (1) arbitrator, and conducted in accordance with the AAA’s Commercial Arbitration Rules. The
arbitration will be conducted in Springfield, Illinois. The language of the arbitration will be English.
The parties’ briefs and other documents and the arbitrator’s findings and decision will be confidential
unless required to be disclosed by law. Neither party may use any finding or decision of the arbitrator in
existing or subsequent litigation or arbitration involving any other person, entity or organization.
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The arbitrator must have sufficient experience in the matter(s) at issue. The arbitrator’s decision will
follow the plain meaning of the Agreement and will be final and binding. Neither party will have the
right to appeal an error of law or fact. Each party will bear the cost of preparing and presenting its
case. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction.
This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to
Services or products provided or billed to Customer if claims are asserted against Provider in the same
proceeding. Notwithstanding the foregoing, either party may bring suit in court to enjoin unauthorized
access or trespass to its computer networks or any misappropriation, infringement or violation of its
intellectual property rights. The arbitrator will have the exclusive power to rule on the formation,
interpretation, applicability, validity or enforceability of this Agreement, including without limitation the
validity or enforceability of this arbitration agreement. The arbitrator will not have the power to conduct
any form of class or collective arbitration nor join or consolidate claims by or for individuals. If any
dispute or controversy arising out of or in connection with this Agreement or any related Service Order,
or otherwise related to the Services, cannot lawfully be resolved by arbitration, the complainant must
bring any claim or action in the state or federal courts for Springfield, Illinois, and the parties waive any
objection based on personal jurisdiction, venue or inconvenient forum.
20.7 ENTIRE AGREEMENT, AMENDMENTS, CONFLICT, SEVERABILITY,
WAIVER, SURVIVAL. This Agreement, all documents referred to herein and any related Service
Order executed by the parties constitute the entire agreement between the parties and supersede any
and all prior agreements and rates between the parties with respect to the subject matter hereof. No
additions, deletions or modifications to this Agreement or any Service Order will be binding unless (a)
made in a writing signed by duly authorized representatives of both parties or (b) agreed to by the
party to be charged by electronic means. In the event of a conflict between any of the terms and
conditions of this Agreement and any Service Order, the terms and conditions in the Service Order will
prevail. The parties are independent contractors. Nothing contained herein will be construed as creating
any agency, partnership, or other form of joint venture or enterprise between the parties. If any
provision(s) of this Agreement or any related Service Order is held to be invalid, illegal, or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be affected or
impaired thereby, and the parties further agree to substitute a valid provision that most closely
approximates the economic effect of the invalid provision. The failure of either party to require
performance by the other party of any provision hereof will not affect the right to require such performance
at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken
to be a waiver of the provision itself. To the extent permitted by applicable law, the parties agree to
and do hereby waive any applicable statutory or common law that may permit a court to construe a
contract against its drafter. No claim or cause of action may be asserted against either party more than
three (3) months after the time the facts giving rise to the claim or cause of action are discovered or
should have been discovered. In the event a suit is brought or an attorney or collection agency is
retained by Provider to enforce the terms of this Agreement or any Service Order, or to collect any
monies due hereunder, or to collect money damages for breach thereof, Provider will be entitled to
recover, in addition to any other remedy available at law or in equity, reimbursement for attorneys’
fees, court costs, collection costs, costs of investigation and other related expenses incurred in connection
therewith. The terms and provisions contained in this Agreement and any related Service Order that, by
their sense and context, are intended to survive the performance thereof by the parties hereto will survive
the completion of performance and termination of this Agreement, including, without limitation, payment
obligations, the limitations on damages and liability, ownership of intellectual property, and defense and
indemnity obligations.
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BY ACCEPTING THESE HOSTED COMMUNICATIONS SOLUTIONS TERMS AND
CONDITIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO
THE TERMS AND CONDITIONS BELOW. ALL SERVICE ORDERS AND SERVICES ARE SUBJECT
TO THESE TERMS AND CONDITIONS.
I have read and agree to the terms and conditions stated above regarding the services provided to my company
by Futiva, LLC.
____________________________________ _________________________________
Customer’s Signature Date
____________________________________
Title
____________________________________ _________________________________
Futiva, LLC. Representative Date
___________________________________
Title