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Terms of Service
Net2Phone Global Services, LLC (“We,” “our” or “Net2Phone”) may modify these Terms of Service without notice to you and such modifications shall be deemed effective immediately upon posting of the modified Terms of Service. You agree to review these Terms of Service periodically to be aware of such modifications and your continued access or use of Service constitutes your acceptance to be bound by the revised Terms of Service. Net2Phone and you may be referred to herein together as the “Parties” and individually as a “Party.”
- Rights Granted. Subject to the terms of these Terms of Service, Net2Phone grants you the right to use the Service. All rights not expressly granted under these Terms of Service are retained by Net2Phone.
- Signing up for the Service. Upon signing up for the Service and establishing a Service account (an “Account”) and at subsequent times as requested by Net2Phone, you agree to provide to Net2Phone your true, accurate, current, and complete personal name and/or business name, billing and shipping addresses, all addresses where the Service is to be used, emergency services registered addresses for all Equipment (“Emergency Services Location”), email address, contact phone number, credit card information, and other information which Net2Phone deems necessary to administer your Account or to provide the Service to you (“Account Information”). You represent and warrant that the Account Information you provide is accurate, current, and complete, and agree to promptly update any of the information if it changes. If you provide Account Information that is, or that Net2Phone suspects to be, false, inaccurate, not current, incomplete, fraudulent, or otherwise unlawful, Net2Phone has the right, in its sole discretion, to immediately suspend or terminate the Service to you.
- Additional Features and Services. Additional features and services may be added and made available to you in the future and will be governed by these Terms of Service and any applicable additional terms and conditions.
- Accounts. The Account owner will be the legal entity (e.g., corporation, partnership) that signs up for the Service with Net2Phone. If no legal entity is provided upon sign-up, then the Account owner will be the owner of the credit card (or alternative method of payment) used to open the Account. Subsequent changes to ownership must be supported by appropriate legal documentation. If Net2Phone is unable to determine the valid owner of the Account, Net2Phone reserves the right to suspend and/or terminate the Service.
- Prohibited Uses. Notwithstanding anything to the contrary contained herein, Net2Phone reserves the right, in its sole discretion, to immediately and without notice terminate the Service to you (and generally) for any use of the Service or any other action that causes a disruption in Net2Phone’s network integrity, or directly or indirectly threatens or compromises the security of Net2Phone, its vendors, or the Service, or that otherwise violates this Section 6. You agree that you will use the Service for your own internal use only, and will not resell, transfer or charge for the Service or Equipment without the express written permission of Net2Phone. Permitted use of the Service does not include certain activities including, but not limited to autodialing, robocalling, transmitting any material that contains viruses, time bombs, trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous, spoofing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, polling, transmitting any material that may infringe, misappropriate, or otherwise violate the foreign or domestic intellectual property rights or other rights of third parties, telemarketing (including without limitation charitable or political solicitation, junk faxing, fax spamming, calling/faxing any person through the use of distribution lists or otherwise who has not given specific permission to be included in such a process) or any other activity that would be inconsistent with reasonable business usage. These prohibitions shall not be construed to prevent autodialing, robocalling, and/or telemarketing by users of the CCaaS Services in accordance with the terms thereof. You shall not transmit through the Service any unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, indecent, or otherwise objectionable communications or material of any kind or nature. You further agree not to transmit any material that encourages conduct that could constitute a criminal offense, violate the intellectual property rights of others, give rise to civil or criminal liability or otherwise violate any applicable local, state, national or international statute, regulation, or other law. You agree that you will, at all times, comply with all applicable law. Applicable law includes, as applicable, the Telephone Consumer Protection Act and the Telemarketing Sales Rule, the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED Act”), the Truth in Caller ID Act, the Junk Fax Act, the CAN-SPAM Act, similar state laws, state laws regarding privacy and data subject rights, and the requirements of the Payment Card Industry Data Security Standard (“PCI DSS”). You further agree that you will not use a fax line to place voice calls. You agree that the Services are not intended for use with alarm systems or elevator telephone systems.
Additional Restrictions on USA Traffic:
You warrant and represent that you are neither a provider of ‘voice service’ as defined by 47 CFR Section 64.6300(n) nor are you a ‘foreign voice service provider,’ as defined by 47 CFR Section 64.6300(c). You warrant and represent that you are not an Intermediate Service Provider (ISP), as that term is defined by 47 CFR Section 64.6300(g). You warrant and represent that all traffic sent to Net2Phone shall be originated by you in the conduct of your legitimate business and on your equipment. You will not send to Net2Phone traffic as a voice service provider, a foreign voice service provider or intermediate service provider (meaning, traffic originated by third parties and transited by you).
You further warrant and represent that when placing telemarketing calls to end-users located in the United States:
- You will not make or transmit telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent.
- You will not make or transmit any non-emergency call using an automatic telephone dialing system (“autodialer”) or an artificial or prerecorded voice to a wireless telephone number unless you have received proper consent.
- You will not initiate or transmit a telephone solicitation to a residential telephone subscriber who has registered his or her telephone number on the national “Do-Not-Call” registry.
- You acknowledge that telemarketing calls can only be made between the hours of 8 a.m. and 9 p.m. (local time at the called party’s location).
- You will comply with limits on “abandoned calls” and employ other consumer-friendly practices when using automated telephone-dialing equipment, noting that a telemarketer must abandon no more than 3 percent of calls answered by a person and must deliver a prerecorded identification message when abandoning a call. Two or more telephone lines of a multi-line business are not to be called simultaneously. Telemarketers must not disconnect an unanswered telemarketing call prior to at least 15 seconds or four rings.
- You acknowledge that if you use an autodialer to sell services, then you must maintain records documenting compliance with call abandonment rules.
- All prerecorded messages, whether delivered by automated dialing equipment or not, must identify the name of the entity responsible for initiating the call, along with the telephone number of that entity that can be used during normal business hours to ask not to be called again.
- You must transmit caller ID information, when available, and must refrain from blocking any such transmission(s) to the end user. You may not alter the caller ID information with intent to deceive the recipient or disguise the origin of the call.
If any calls originated or otherwise transmitted by you to Net2Phone violate the terms of applicable law, then Net2Phone may, in its sole discretion, in addition to the remedies contained in these Terms of Service, suspend or terminate the Services immediately and freeze some and/or all prepaid monies remitted by you to Net2Phone until such time that Net2Phone, at its sole discretion, has determined it shall not be subject to any penalties, fines and/or “voluntary contributions” by the Federal Communications Commission and/or other third parties who have or may obtain a legal right of payment. Should Net2Phone be subject to any penalties, fines and/or “voluntary contributions,” Net2Phone may use any frozen payments as partial payment to the third party(ies) and Net2Phone may seek payment from you for any additional, required payments. You will cooperate with and promptly provide information requested in connection with any traceback requests.
Any use found to be inconsistent with any of the restrictions set forth herein may result in the immediate termination of the Service. You also understand that Net2Phone may immediately suspend or terminate Your right to use the Service, without liability of any kind, if (a) in Net2Phone's sole discretion, Your use of the Service exceeds what would be expected of normal business use, or (b) Your use of the Messaging Services is not typical of human message origination and termination or if there is an abnormal imbalance of inbound and outbound messaging. Net2Phone reserves the right, in its sole discretion, to block access to certain high cost/premium locations. Please contact Net2Phone Customer Support for more information. Nothing in these Additional Restrictions shall be construed to prevent autodialing, robocalling, and/or telemarketing by users of the CCaaS Services in accordance with the terms thereof.
- Intellectual Property Rights. You acknowledge and agree that any and all patents, copyrights, trademarks, logos, slogans, service marks, trade secrets, and all other intellectual property rights (collectively, "Proprietary Rights") in the Equipment and the Service are and shall remain the sole and exclusive property of Net2Phone and its licensors and suppliers. Nothing in these Terms of Service shall be construed to grant, transfer, or assign any Proprietary Rights to, or vest any Proprietary Rights in, you or any third party. You are only entitled to the limited use of the rights expressly granted to you in these Terms of Service, as may be amended from time to time. The Services, the systems and methods that it accesses, and/or the related services provided are covered by one or more patents or patents pending in the U.S. or elsewhere. You will not take any action to jeopardize, limit, or interfere with Net2Phone’s or a third party’s Proprietary Rights. You acknowledge and agree that any unauthorized use of the Proprietary Rights is a violation of these Terms of Service, as well as a violation of applicable intellectual property laws. You acknowledge and understand that all title and rights in and to any third-party content that may be accessed through the Service is the property of the respective content owners and may be protected by applicable intellectual property laws. You agree that any breach of the provisions regarding intellectual property ownership contained in these Terms of Service shall cause Net2Phone irreparable harm and Net2Phone may obtain injunctive relief and seek all other remedies available in law and in equity.
- No Modifications. You agree not to undertake, cause, permit, or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Equipment or the Service, or any component thereof. You agree not to misappropriate, intercept, capture, emulate, decrypt, or redirect the communications protocols used by Net2Phone for any purpose, including connecting to any computer server, PBX, or other device not authorized by Net2Phone or in a manner not authorized by Net2Phone.
- Telephone Number. Telephone numbers provided by Net2Phone to you (“Phone Number(s)”) are licensed to you pursuant to these Terms of Service. Net2Phone reserves the right to change or cancel international Phone Numbers at its sole discretion.
- Number Porting. Net2Phone cannot guarantee that requested telephone numbers will be available or that your existing provider will port your number(s). For porting numbers into your Account, please contact Net2Phone Customer Support. Net2Phone will use reasonable efforts to facilitate number transfers or port requests for you, provided that you comply with the necessary and specific procedures for porting between service providers. Net2Phone does not guarantee the successful porting of numbers to your Account. You acknowledge and understand that Net2Phone will not be liable for the failure or delay of any third party to cooperate in the porting of any telephone number, or for the unauthorized porting of any telephone number by a third party. For porting phone numbers out of your Net2Phone Account, follow the procedures of Your new service provider. You understand that porting phone numbers out of your Account does not automatically terminate your Account.
- Confidentiality. During your service-term for the Services and for one (1) year thereafter, the Receiving Party (the Party and its affiliates, officers, directors, employees and attorneys receiving Confidential Information) shall hold the Disclosing Party’s (the Party or its affiliates, officers, directors, employees and attorneys disclosing Confidential Information) Confidential Information in confidence, shall use such Confidential Information only for the purpose of fulfilling its obligations under these Terms of Service, and shall use at least as great a standard of care in protecting the Confidential Information as it uses to protect its own Confidential Information. The Receiving Party may disclose Confidential Information only to those of its employees, agents or subcontractors who have a need to know it in order to perform its obligations under these Terms of Service. Each Party may disclose the other Party’s Confidential Information to a governmental or regulatory entity upon request. These restrictions on the use or disclosure of Confidential Information do not apply to any information which is independently developed by the Receiving Party or lawfully received free of restriction from another source having the right to so furnish such information; after it has become generally available to the public without breach of these Terms of Service by the Receiving Party; which at the time of disclosure was already known to the Receiving Party, without restriction, as evidenced by documentation in such Party's possession; or which the Disclosing Party confirms in writing is free of such restrictions. Upon written request, the Receiving Party will promptly delete, destroy or return to the Disclosing Party, all of the Disclosing Party’s Confidential Information in its possession. For purposes of this Section, “Confidential Information” means any information disclosed by or on behalf of the Disclosing Party to the Receiving Party that should reasonably be considered as confidential given the nature of the information and the circumstances surrounding its disclosure. Notwithstanding the foregoing, your hereby grant to Net2Phone the right to De-identify data which Net2Phone collects from you in the course of providing the Services to you or which you otherwise share with Net2Phone. “De-identify” means that the data cannot reasonably identify relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular company or individual person, including by removing, without limitation, the following identifiers: company names and the names of individuals, addresses, phone numbers and email addresses and any other information which could reasonably identify, when taken in the aggregate, a specific company or individual. Data that has been De-identified shall not be deemed Confidential Information, meaning that Net2Phone may use such De-identified data for any purpose permitted under applicable law.
- Payment and Money Back Guarantee. The Service is provided to you on a monthly prepaid basis. All pricing is in United States dollars. Upon your sign up for the Service, Net2Phone will charge your credit card (or alternative method of payment, as approved by Net2Phone) a deposit in an amount equal to the applicable monthly recurring fees and charges for one month of Service plus any applicable Equipment and other fees. For billing purposes, your start of Service date will commence on the earlier of (i) one month following your sign up for the Service; and (ii) the date of actual Service activation on the Net2Phone platform (“Service Date”). You are responsible and will be charged for all non-recurring fees (i.e., international calls, toll free numbers, etc.) incurred by you. Call charges are rounded up to the next full cent. By way of example, a 15-minute inbound toll-free call that is rated at $0.015 per minute will be rounded to a $0.23 charge in our billing system. You understand that your first invoice may be pro-rated. If you do not cancel the Service during the first thirty (30) days following Service activation (if permitted, as set forth below), then the deposit (less any non-recurring charges incurred by you) will be applied to the month of Service following the Service Date. If you are paying for the Service with a credit card, then you agree that prior to the provision of any Service by Net2Phone, you will provide Net2Phone with your credit card information and you authorize Net2Phone to bill your credit card on a monthly basis. You agree to advise and notify Net2Phone of any changes to your credit card information, such as credit card account number or expiration date changes. If the credit card on your Account is declined or fails for any reason, or if you otherwise fail to make payment by the applicable due date then, notwithstanding anything to the contrary contained herein, Net2Phone reserves the right to disconnect your Service immediately without notice and to terminate your Account (and Net2Phone reserves the right to continue to attempt charging your credit card for any outstanding Service charges and additional fees due and owing at the time). You are liable for any transactions or activities by you or anyone else that occur on Your Account, and in no event shall Net2Phone be liable for any unauthorized use of your Account. Any payments not received by the due date will bear interest at a rate of one and one-half percent (1½ %) per month or the maximum rate permitted by law, whichever is less, from the due date until paid in full.
If you are unsatisfied with the Service for any reason in the first thirty (30) days after Service activation, then you may cancel and be eligible for a refund of Equipment fees (less a re-stocking fee) and monthly recurring fees as long as you comply with the RMA instructions and Section 14, both of which are set forth below. This money back guarantee does not apply to: (i) non-recurring charges incurred by you; (ii) any renewals or add-on lines or services added after your initial order; and (iii) CCaaS Services. This money back guarantee does not apply if you are found to be in violation of these Terms of Service. Net2Phone reserves the right to revoke this money back guarantee at any time without prior notice. In order to be valid, any cancellation of Services by you, at any time, must be made in writing and sent to email@example.com.
- Taxes and Other Fees. Prices for the Service and Equipment do not include any customs, duties, sales, use, value added, excise, federal, state, local, public utility, universal service, E-911 taxes and fees or other surcharges and fees. All such taxes, surcharges and fees shall be paid by you and will be added to any amounts otherwise charged to you. If any amounts paid for the Service or Equipment are refunded by Net2Phone, applicable taxes, surcharges and fees may not be refundable. All taxes, surcharges, and fees are subject to change at any time.
Regulatory Recovery and Compliance Fees. We impose monthly Regulatory Recovery and Compliance Fees (“RRCF”) in order to recover expenses We incur in connection with, among other things, contributions to various funds and other fees and charges incurred as a result of our provision of the Service; HIPAA, PCI, CALEA and other compliance costs and fees; protection and registration of intellectual property; subpoenas and civil litigation demands; as well as legal and administrative expenses related to the above. RRCF is not a government-mandated charge or tax. The RRCF is a 9.0% charge. The RRCF is in addition to any other charges and surcharges associated with the Service, and is subject to the Universal Service Fund surcharge, and all other taxes and surcharges.
Cost Recovery Fees. We impose monthly Cost Recovery Fees (“CRF”) to recover fees imposed on Net2Phone by governmental entities in order to provide you with Service, as well as related administrative charges. The CRF is a 4.3% charge. Components of the CRF include: TRS, Federal Regulatory Fee, North American Numbering Plan Fee, Local Number Portability administration and others. The CRF is not a government-mandated charge or tax. The CRF is in addition to any other charges and surcharges associated with the Service, and is subject to the Universal Service Fund surcharge, and all other taxes and surcharges.
Emergency 911 Service Fee. We apply an Emergency 911 Service Fee of $0.99 per applicable Service element to recover costs associated with providing 911 service. This is not a government-mandated charge.
Universal Service Recovery Fee. Net2Phone is required to contribute to the Federal Universal Service Fund, which 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. Net2Phone reserves the right to recover these costs from its customers. Universal Service Fund rates are set by the Federal Communications Commission and are subject to change.
Administration Fee. You may also be subject to an Administration Fee which may be imposed to recover costs associated with, among other things, customer support, and Service/Equipment installation and configuration.
Reactivation Fee. Net2Phone reserves the right to charge You a $29.99 Reactivation Fee in the event Net2Phone suspends or terminates your Account due to non-payment.
- Equipment. In order to utilize the Service, you must use compatible telephone equipment and accessories (“Equipment”). If You do not possess compatible Equipment, you may purchase Equipment and/or rent Equipment from Net2Phone when you sign up for the Service. Purchase and rental of Equipment shall be pursuant to prevailing prices at the time of your sign-up for the Service. Renting Equipment is only permitted as part of a “Service Bundle.” You are responsible for the condition of the Equipment provided to you or which you otherwise utilize for the Service. Except for defects which arise within the applicable warranty period, you are responsible for replacing all lost, stolen or broken Equipment. Replacement charges for Equipment purchased or rented from Net2Phone will be based on the retail price of Equipment (as determined by Net2Phone), plus applicable shipping costs and taxes. You agree to immediately notify Net2Phone of any lost or stolen Equipment. Net2Phone's liability for delivery of Equipment shall cease and all risk of loss or damage shall pass to you, upon delivery to a common carrier for shipment. Equipment sold to you by Net2Phone or rented by you from Net2Phone (as well as replacement Equipment provided to you by Net2Phone) may be refurbished equipment. Other than as expressly set forth herein, Equipment may not be returned by you for any reason without prior approval of Net2Phone. All returned Equipment must be in its original packaging, fully functional, show no signs of excessive wear and tear (as determined by Net2Phone in its sole discretion), and be accompanied with all manuals, cords, wires, brochures, peripheral devices, and accessories that were originally shipped with the Equipment. Net2Phone may, in its sole discretion, decline your return and charge you for the full retail value of the Equipment. You are responsible for all return shipping charges for any Equipment returned to Net2Phone for any reason, including situations in which Equipment is covered under warranty. The Return Merchandise Authorization process is provided below. All returns that do not conform to the restrictions/procedures set forth in this Section 14 and/or the restrictions/procedures set forth in the Return Merchandise Authorization process set forth below may also be subject to an RMA Administrative Fee per piece of Equipment, that will vary depending upon the quality of the returned Equipment. If you are purchasing Equipment on a monthly payment plan or renting Equipment as part of a Service Bundle, then a separate agreement between you and Net2Phone is required. Please contact Net2Phone Customer Support for more information. You agree that Net2Phone’s maximum liability to you or to any third party for any damages arising out of, associated with or related to installation and/or configuration of Equipment and/or the Service, whether such installation and/or configuration is performed by Net2Phone or its contractors/subcontractors, is the amount paid by you to Net2Phone for such installation and/or configuration.
- Service Availability. Certain features or ancillary solutions related to the Service may be unavailable or subject to additional terms, restrictions and conditions. You acknowledge and agree that the Service may not be available 100% of the time. Credit allowances for interruption of the Service may be provided on a case-by-case basis at the sole discretion of Net2Phone and shall be your sole remedy for any Service interruptions. Net2Phone does not warrant that any descriptions, pricing, marketing materials, promotional flyers, advertisements, or other printed or electronic materials or information related to the Service or Equipment is accurate, complete, reliable or comprehensive. The Service Level Agreement for the Net2Phone Hosted PBX Service can be found below.
- Service Changes. You understand and agree that Net2Phone may make modifications or changes to the Service, which will not materially diminish the functionality of the Service, without prior notice to you.
- Emergency Services. See accompanying Emergency Services Conditions and Limitations for additional terms and conditions. Emergency Services are only offered in connection with the Hosted PBX and SIP Trunking services and are not available in all service areas. Emergency Service availability will be determined based upon the Emergency Services Location you provide to Net2Phone. For Hosted PBX Service, under no circumstances may you alter your caller ID Information. For SIP Trunking Service, when dialing Emergency Services, you must use as Caller ID the telephone number that was registered with the location of the handset making the call. Any alteration or failure to properly register the location of your telephone number, as the case may be, may result in difficulty accessing Emergency Services and further result in a $100 surcharge per Emergency Services call you make with such altered caller ID. A loss of electrical power at your location will result in loss of the Service (including Emergency Services) during such outage unless you have a backup system. If the connection to the wired broadband Internet over which your Service is provided is interrupted, you will not have access to the Service during that interruption and will not have access to Emergency Services during that interruption. In addition to the terms and conditions contained herein, Your use of Emergency Services is subject to the Emergency Services Conditions and Limitations set forth below. You represent and warrant that You have and will maintain at all times wireless or traditional wireline telephone service that will enable you to call Emergency Services and acknowledge that Net2Phone does not offer primary line or lifeline services. You represent and warrant that you will not use the Service in environments requiring fail-safe performance.
- Your Responsibilities. In order to use the Service, you must have properly configured and working Internet service and hereby agree, at your sole expense: to (1) obtain access to your own internet service with a third party provider separate to the Service; (2) be responsible for payment of internet connection and all equipment necessary to establish a connection to such internet service, as may be required to use the Service; and (3) pay Net2Phone for the Service.
- Recording and Monitoring Conversations; Voicemail Transcription. The Service allows you to record individual telephone conversations. You may also purchase tools that will allow you to monitor telephone conversations. The laws regarding the permissibility and notice and consent requirements for recording and monitoring conversations vary from state to state. You are solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using these features. Net2Phone expressly disclaims all liability with respect to your recording and/or monitoring of telephone conversations. You hereby agree to release, hold harmless, and fully indemnify Net2Phone from and against any damages or liabilities of any kind related to your recording and/or monitoring any telephone conversations using the Service.
The Voicemail Transcription feature converts audio voicemail messages into text, then emails the text to you and also displays the text in your Account dashboard. You hereby agree that, in connection with providing you the Service, Net2Phone and/or its licensor(s) have the right to record and store the audio content of such voicemails and to transcribe such content to text. You understand and agree that the Voicemail Transcription feature may not accurately transcribe voicemails. You are solely responsible for checking the original message and verifying the accuracy of the message when using such feature. Net2Phone expressly disclaims all liability with respect to the conversion of voicemails to text.
- Termination. In addition to Net2Phone’s right to terminate the Service as set forth in other sections of these Terms of Service or in other terms and conditions agreed by you, Net2Phone reserves the right to terminate the Service for convenience upon at least thirty (30) days’ notice to you. Net2Phone shall not be liable to you or any third party for terminating or suspending your use or access to the Service for any reason. If you are purchasing the Service on a month-to-month basis (i.e., the Service is not subject to a committed service term) then, subject to the applicable provisions in Section 12, you may cancel the Service for convenience upon at least thirty (30) days’ notice. If you terminate the Service in the middle of a billing cycle, or if Net2Phone terminates the Service as a result of your breach of these Terms of Service or other terms and conditions agreed by you, you shall not be entitled to any refund or pro ration of any pre-paid amounts, credits, or other amounts paid to Net2Phone prior to the termination or suspension date, and early termination fees may apply. Upon expiration, cancellation or termination of the Service, you shall relinquish and discontinue use of any voice mail access numbers, logins and/or web portals assigned to you by Net2Phone or its vendors. In order to be valid, any cancellation of Services by you, at any time, must be made in writing and sent to firstname.lastname@example.org.
- Disclaimer of Liability. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, THE SERVICE, INCLUDING BUT NOT LIMITED TO ANY AND ALL THIRD-PARTY SERVICES, EQUIPMENT, PROFESSIONAL SERVICES, SUPPORT SERVICES, AND OTHER SERVICES, ARE PROVIDED "AS IS" AND NET2PHONE MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE EXTENT THAT WE CANNOT DISCLAIM A WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. NEITHER NET2PHONE NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO NET2PHONE'S OR YOUR TRANSMISSION FACILITIES OR EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF YOUR DATA FILES, SOUND FILES, PROGRAMS, OR OTHER INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF NET2PHONE'S OR ITS VENDORS' NEGLIGENCE. NEITHER NET2PHONE NOR ITS VENDORS WILL BE LIABLE FOR MALFUNCTIONS OR FAILURES RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION, IMPROPER INSTALLATION, OR REPAIRS BY ANYONE. NEITHER NET2PHONE NOR ITS VENDORS WILL BE LIABLE FOR DELAYS OR INTERRUPTIONS IN ACCESS TO OR USE OF THE SERVICE.
NET2PHONE MAKES NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED. NET2PHONE IS NOT RESPONSIBLE FOR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICE OR THE INTERNET IN GENERAL. NET2PHONE IS NOT RESPONSIBLE FOR THE CONTENT OF TRANSMISSIONS OR FOR THE CONTENT OR FUNCTIONALITY OF ANY THIRD-PARTY NETWORK USED IN CONNECTION WITH THE SERVICE. NET2PHONE IS NOT OBLIGATED TO STORE YOUR COMMUNICATIONS LOGS, VOICEMAILS, CALL RECORDINGS, SCREEN RECORDINGS, VIDEO CALL RECORDINGS, WEB CHATS, TEXT MESSAGES OR FAXES. YOU AGREE THAT NET2PHONE HAS NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR THE DELETION OR FAILURE TO STORE ANY COMMUNICATIONS LOG INFORMATION, VOICEMAILS, CALL RECORDINGS, , SCREEN RECORDINGS, VIDEO CALL RECORDINGS, WEB CHATS, TEXT MESSAGES, FAXES AND/OR OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED BY THE SERVICE.
- Limitation of Liability. IN NO EVENT SHALL NET2PHONE, ITS PARENT, SUBSIDIARIES AND AFFILIATES, NOR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, RESELLERS, VENDORS, AGENTS, CONTRACTORS AND/OR LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF NET2PHONE HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY NET2PHONE. NET2PHONE'S TOTAL LIABILITY FOR ANY AND ALL DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED AND CAPPED IN THEIR ENTIRETY TO THE LESSER OF (X) THE MONTHLY FEES NET2PHONE CHARGED YOU DURING THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE DATE THAT THE EVENTS GIVING RISE TO THE ACTION OR CLAIM FIRST OCCURRED, AND (Y) TEN THOUSAND DOLLARS $10,000. THESE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE TERMINATION, CANCELLATION OR EXPIRATION OF YOUR SERVICE AND APPLY IN ANY AND ALL CIRCUMSTANCES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
- Indemnification. To the maximum extent permitted by applicable law, you shall indemnify and hold harmless, Net2Phone, its parent, subsidiaries and affiliates, and their respective officers, directors, , employees, licensors, vendors, contractors, agents and resellers, (the "Indemnified Parties") from and against any and all liability, claims, suits, demands (including but not limited to third-party subpoenas, government investigations or enforcement actions), losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys' fees) arising out of or related to: (1) the use of or reliance upon the Service by you or any third party acting upon your permission, knowledge, authority or direction, (2) a breach by you of these Terms of Service, (3) any negligent acts, omissions to act or willful misconduct by you or any third party acting with your permission, knowledge, authority or direction, (4)your inability to use the Service or failure or outage of the Service for any reason, including but not limited to those related to calling "911" or other emergency responders, (5) your use of the Service in violation of any applicable law, code, regulation, or ordinance, (6) Net2Phone’s use of your customers’ data as permitted by these Terms of Service; and/or (7) your misappropriation, breach, violation, or infringement of any right, title or interest of any third party, including but not limited to, contractual rights, intellectual property rights (including patent, trademark, copyright, and trade secret rights), rights of privacy, and rights of publicity and personality. The indemnification obligations set forth in his Section 24 are in addition to your other indemnification obligations set forth in other sections of these Terms of Service.
- Dispute Resolution. UNDER THIS CLAUSE YOU ARE AGREEING TO WAIVE YOUR RIGHT TO SUE IN COURT AND ARE AGREEING THAT ALL DISPUTES WILL BE DECIDED BY AN ARBITRATOR, EXCEPT WITH RESPECT TO THE LIMITED EXCEPTIONS SET FORTH BELOW IN THIS DISPUTE RESOLUTION SECTION. You agree that you may only resolve disputes with Net2Phone on an individual basis and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. You hereby acknowledge that class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are hereby waived by you. You agree that regardless of any statute or law to the contrary, any suit brought by you arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after the earlier of: (a) when such claim or cause of action arose; or (b) termination of Service to you, or be forever barred. These Terms of Service shall be governed by and construed in accordance with the laws of the State of New Jersey without giving effect to any conflict of law principles thereof which might require the application of the law of another jurisdiction. Any controversy or claim arising out of or relating to these Terms of Service or your use of the Service shall be settled by binding arbitration in accordance with the Commercial Rules of the American Arbitration Association (“Rules”). To begin an arbitration proceeding against Net2Phone, you must send a letter (via certified mail) to Net2Phone Global Services, LLC, 520 Broad Street, Newark, NJ 07102, Attention: Legal Department, requesting arbitration and describing your claim. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award the same damages and relief as a court. One arbitrator shall be chosen in accordance with the Rules. The Parties agree that all arbitration proceedings shall take place exclusively in the State of New Jersey, Essex County. You agree and submit to personal jurisdiction in New Jersey. Any award, order or judgment pursuant to such arbitration shall be deemed final and binding and may be enforced in any court of competent jurisdiction. Notwithstanding the obligation to arbitrate and any other provisions to the contrary herein, you and Net2Phone agree that: (a) with respect to claims for unpaid invoices, Net2Phone may take the dispute to small claims court, if such dispute qualifies for hearing by such court; (b) if you fail to timely pay amounts due, Net2Phone may send your account to a collection agency and the collection agency may pursue, in court, claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or these Terms of Service; (c) Net2Phone may bring suit in court to enjoin infringement or other misuse of intellectual property rights; and (d) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of Service may be brought in court by Net2Phone. If for any reason a claim proceeds in court rather than in arbitration, you and Net2Phone each waive any right to a jury trial.
- Force Majeure. Net2Phone shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, pandemic, earthquake, fire, flooding, fiber cuts, actions or inactions of third-party providers or suppliers, riots, sabotage, war, government requirements, or other events that are beyond Net2Phone's reasonable control.
- Assignment. Net2Phone may assign these Terms of Service and any of its rights and obligations hereunder at any time. You may not transfer or assign these Terms of Service or any of your rights or obligations under these Terms of Service without Net2Phone’s prior written consent. Any purported transfer or assignment on your part in violation of this section is void. Subject to the foregoing, these Terms of Service shall be binding on and inure to the benefit of the parties and their successors and permitted assigns.
- No waiver of rights; No third-party beneficiaries. Failure of either party at any time to require the other party’s performance of any obligation under these Terms of Service shall not affect the right to require performance of such obligation. Any waiver by either party of any breach of any provision hereof shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver or modification of the provision itself, or a waiver of modification of any right under these Terms of Service. These Terms of Service are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- Severability. If any part of these Terms of Service is held invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement.
- Publicity Rights. You agree that Net2Phone may identify you as a user of the Service in its business deals, press releases, marketing materials, electronic, printed, and broadcast advertising; newsletters, mailings, tradeshows, other promotional materials, on Net2Phone's website, or any other third-party website where Net2Phone or its designated agents may promote the Service. You hereby grant Net2Phone and its agents a worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.
- Interpretation. These Terms of Service, together with any quotes, order forms, service-term agreements or addenda, and any other documents incorporated or referenced herein, constitute the entire agreement between you and Net2Phone with respect to the Service and supersede all prior or contemporaneous understandings regarding such subject matter. Nothing in these Terms of Service shall be deemed or construed to constitute or create employment, partnership, association, joint venture, agency, or fiduciary relationship between the parties hereto. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Any terms and conditions specified in any email from you or handwritten on a quote, order form, service-term agreement, addendum or these Terms of Service, are void and have no legal effect.
- Net2Phone Native Call Center and Contact Center Services (collectively, “CCaaS Services”). The CCaaS Services offering includes, without limitation, platform software, services and minutes (if applicable), as set forth in the Documentation. In the event of a conflict between the terms set forth in this Section 32 and the terms set forth in any other section of these Terms of Service, then the terms set forth in this Section 32 shall control.
Subject to the terms and conditions set forth herein and the applicable CCaaS Quote, Net2Phone hereby grants you a revocable, limited, non-exclusive, non-sublicensable, and non-transferable license to access and use (and to permit the Authorized Users to access and use), for business and professional purposes only, the CCaaS Services during the term set forth in the service-term agreement you execute. You will not provide access to the CCaaS Services to any third party without Net2Phone’s prior written consent. Each Authorized User must create and use unique access credentials. You shall ensure that Authorized User IDs and passwords are not shared or used by more than one Authorized User. You are responsible for any unauthorized use of the CCaaS Services. You are responsible, at your sole cost and expense, to acquire, install and maintain all hardware, software and other equipment as may be necessary for you and each Authorized User to connect to, access and use the CCaaS Services. Net2Phone will provide to you, free of charge, 5x8 support for licensed CCaaS Services. You may purchase 24x7 support at an additional cost to you, as set forth in the applicable CCaaS Quote. Support details are described in the Documentation. The Documentation is incorporated into these Terms of Service by reference.
You are responsible for your use of Content with the CCaaS Services and for the interoperation between, and integration of, the Third–Party Services with the CCaaS Services. You have sole discretion whether to purchase or connect to any Third-Party Services and your use of such Third-Party Services is governed solely by the terms for those services. You grant Net2Phone permission to share Content with the Third–Party Service provider as necessary in order to provide the CCaaS Services to you. Net2Phone makes no representations, warranties or guarantees with respect to Third-Party Services, including but not limited to the continuing accessibility of such Third–Party Services or the continuing ability to use and integrate the Third–Party Services with the CCaaS Services. Net2Phone does not provide support for Third–Party Services.
You acknowledge that Net2Phone is not responsible for the creation, content, or use of the Content by You or any third party. You warrant and represent that: (i) the Content is accurate to the best of your knowledge; (ii) You acquired the Content by legal means; (iii) You have acquired the necessary consents to grant Net2Phone, its affiliates and contractors the right to use, modify, reproduce, and distribute the Content in order to provide and operate the CCaaS Services; (iv) You have the right to upload or otherwise share the Content with Net2Phone; and (v) Your uploading and use of the Content does not infringe on any rights of any third party. You and Net2Phone each agree to utilize reasonable and appropriate physical, technical, organizational, and administrative security measures to keep Content protected in accordance with industry standards. If you receive or process credit card information, you shall ensure that you and your Authorized Users do not store cardholder data within the CCaaS Services.
You assume all liability and responsibility for your use of the CCaaS Services and will comply with Applicable Law pertaining to the use of telephone, email, fax, text messages, automated telephonic equipment (for example, “Predictive Dialer”) and other telephony and telecommunications products and services. You are solely responsible for obtaining and documenting, in accordance with Applicable Law, appropriate consent of, or a release from, those persons or entities to whom or to which you intend to send communications using the CCaaS Services. You agree to periodically review the list of recipients to be contacted, to contact only those persons who you are legally permitted to contact from your customer data, and only in the manner permitted under Applicable Law, and to delete those recipients that no longer wish to receive communications from you. If you are advised by any person or entity that they do not wish to receive communications from you via the CCaaS Services, then you agree to promptly add those parties to your internal Do Not Call List, and you agree that you will thereafter stop calling such parties. If you are calling or texting to numbers in the United States, you will subscribe to the FCC's Reassigned Numbers Database and scrub all phone numbers to be called or texted against said database at least every thirty (30) days.
During the service-term and for a period of 30 days thereafter, you may export Content from the CCaaS Services. After such period, Net2Phone may delete Content in accordance with its standard schedule and procedures. If the service-term is terminated early, then the Content export period referenced above will begin on the date of termination of the service-term.
You agree to use Third–Party Services only in accordance with these Terms of Service, the Documentation and all Applicable Laws. If you receive a notice that a Third–Party Service must be removed, modified and/or disabled to avoid violating applicable law or third-party rights, then you will promptly do so and you will provide confirmation of same to Net2Phone in writing, upon Net2Phone’s request.
The CCaaS Service will allow you to record and monitor individual telephone conversations, texts, webchats, video calls and agent screens. The laws regarding the permissibility and notice and consent requirements for recording and monitoring conversations and other interactions vary from state to state. You are solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using these features. Net2Phone expressly disclaims all liability with respect to your recording and/or monitoring of telephone conversations and other interactions. You hereby agree to hold harmless and fully indemnify Net2Phone from and against any damages or liabilities of any kind related to your such recording and/or monitoring using the CCaas Services.
Net2Phone will provide you with the Professional Services identified in each CCaaS Quote and executed SOW. Each Statement of Work or CCaaS Quote shall contain the charges (on a time and materials basis unless otherwise stated in the SOW or CCaaS Quote) for the applicable Professional Services. The Professional Services may be performed by Net2Phone or by a Net2Phone-authorized partner. Net2Phone warrants that the Professional Services and support will be performed in a professional and workmanlike manner and in accordance with these Terms of Service and any applicable SOW or CCaaS Quote. Your sole and exclusive remedy for breach of this warranty shall be for Net2Phone (or the Net2Phone-authorized partner) to re-perform the non-conforming services.
For purposes of this Section 32, the following definitions apply:
"Applicable Law" means all federal, state and local laws, regulations, rules, ordinances, and directives. Applicable Law includes, as applicable, the Telephone Consumer Protection Act and the Telemarketing Sales Rule, the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED Act”), the Truth in Caller ID Act, the Junk Fax Act, the CAN-SPAM Act, similar state laws, state laws regarding privacy and data subject rights, and the requirements of the Payment Card Industry Data Security Standard (“PCI DSS”).
“Authorized Users” means your employees and independent contractors working for you or on your behalf for whom access to the CCaaS Services has been purchased.
“CCaaS Quote” means any quote accepted by you, which details, among other things, the CCaaS Services to be purchased.
“Content” means any files, documents, recordings, chat logs, transcripts, and similar data (including but not limited to customer data), as well as any other information provided, submitted or uploaded by or for you into the CCaaS Services. Content excludes Third–Party Services, Usage Data, and data that is aggregated and de-identified.
“Documentation” means any usage guides and policies that are provided to you or made accessible online by Net2Phone, as updated from time to time, in connection with the CCaaS Services.
“Professional Services” means professional services provided by Net2Phone to You pursuant to an SOW.
“SOW” means a document governed by these Terms of Service describing any Professional Services.
“Third–Party Services” means a service that interoperates with the CCaaS Services, that may provide the capability for You to link to or integrate with third party sites or applications separately accessed by you and not purchased from Net2Phone.
“Usage Data” means any information or data associated with or collected from you and Authorized Users relating to the usage or results of the CCaaS Services.
- Net2Phone Bot. You acknowledge that the Services hereunder include the Net2Phone digital assistant Net2Phone Bot (“Net2Phone Bot”). If you use Net2Phone Bot or other applicable features of the Service (such as Messaging Services), you will obtain the needed level of prior express consent from a customer/prospective customer before sending any texts using Net2Phone Bot. You will honor any opt outs as required by the TCPA. In fact, you agree (a) not to send any text except in response to a customer/prospective customer text, and (b) only to send one text in response to each one text sent by the customer/prospective customer. While Net2Phone may, in its sole discretion, provide you with templates and examples for these program components, you agree that Net2Phone does not provide you with legal and compliance advice and you are solely and exclusively responsible for your compliance with law, regulation, and industry standards.
- Five9 Services. If you purchase Five9 services through Net2Phone, then you agree that the following terms and conditions apply to your relationship with Five9. For purposes of this Section 34, you are referred to as “Customer”:
Services and Use. “Services” means the proprietary hosted virtual call center software and system provided by Five9, Inc. (“Five9”). Customer agrees not to (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make the Services available to any third party in any way; (ii) reverse engineer, modify or make derivative works based upon the Services; (iii) input personally identifiable information or other sensitive or protected information into the virtual contact center database fields other than phone numbers; or (iv) use the Services for any purpose other than to support your call center business.
Data Use and Retention. During the normal operation of the Services, Five9 will collect and store on its systems certain information and data provided or collected by the Customer (“Customer Data”). Customer authorizes Five9 to store Customer Data on its secure internal systems and to use and copy Customer Data solely for the purpose of providing the Services to Customer. Additionally, Customer agrees that Five9 may use non-individually identifiable Customer Data in perpetuity to test, analyze and improve the Services. Five9 will not resell or share any Customer Data with a third party without Customer’s express written authorization. Five9 retains the right to periodically purge Customer Data from Five9’s servers to maximize system performance as set forth and can be found at www.five9.com/4433.
Customer Responsibilities and E911 Limitations. Customer understands that, to the extent any E911 services are offered as part of the Services (“E911 Services”), such E911 Services will not function or will not function properly: (i) if a Customer user attempts a 9-1-1 call from a location different from the Customer user’s then current address provided to Five9’s E911 service provider by Customer; (ii) during any disruption of power at Customer’s location; (iii) during any disruption of internet connectivity to Customer’s location; (iv) during any period in which Five9, Five9’s E911 provider, or Customer’s local exchange carrier has cancelled or suspended delivery of services to Customer for any reason (including suspension or cancellation for failure to pay or Customer’s default); (v) during any period of E911 outage or failure due to events beyond Five9’s or its service provider’s reasonable control; (vi) if incorrect or invalid Customer user address information is provided or is not updated accurately; or (vii) if Customer equipment fails to function, is not properly configured or is defective.
Public Safety Answering Point. Five9’s E911 service provider uses commercially reasonable efforts to deliver every 9-1-1 call with the enhanced location data provided by Customer to the appropriate Public Safety Answering Point (“PSAP”). There are limitations placed upon Five9’s E911 service provider by the PSAPs. Each of the approximately 6,000 PSAPs must individually agree to accept a 9-1-1 call with a VoIP type service. Customer acknowledges that PSAPs fall into three categories: (i) those that accept VoIP calls with location data on 9-1-1 equipment; (ii) those that accept VoIP 9-1-1 calls without location data on administrative lines; and (iii) those that do not accept VoIP 9-1-1 calls. In the case of (iii) VoIP 9-1-1 calls are routed to the next closest PSAP that accepts VoIP 9-1-1 calls.
CUSTOMER SPECIFICALLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, ANY AND ALL CLAIMS OR CAUSES OF ACTION, ARISING FROM OR RELATING TO FIVE9'S SERVICES OR ANY OTHER SERVICE PROVIDED HEREUNDER TO CONTACT A PSAP OR OTHER EMERGENCY SERVICES PERSONNEL AND FIVE9 WILL NOT BE LIABLE FOR ANY LOSS (WHETHER DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL) THAT MAY ARISE FROM THE USE, MISUSE, OR OPERATION, OF THE E911 SERVICES BY CUSTOMER. FURTHER, CUSTOMER ACKNOWLEDGES THAT NEITHER FIVE9 NOR PARTNER WILL NOT BE LIABLE FOR ANY CLAIMS ARISING FROM ANY EFFORTS UNDERTAKEN BY FIVE9, ITS THIRD PARTY SUPPLIER, OR THE EMERGENCY RELAY CENTER (“ERC”) TO CORRECT ANY FAILED CUSTOMER EMERGENCY 911 CALLS, INCLUDING BUT NOT LIMITED TO THOSE THAT ARE A RESULT OF INVALID OR INCOMPLETE USER LOCATION DATA; ARE A RESULT OF INTERRUPTIONS IN VOICE CONNECTIVITY; OR WHICH THE ERC IS UNABLE TO RE-ROUTE TO THE APPROPRIATE PSAP DUE TO LACK OF CORRECT OR VALID LOCATION INFORMATION.
Customer will defend Five9, its shareholders, directors, officers, employees and agents ( “Five9 Indemnitees”) from and against any action, claim, or proceeding brought against them by a third party, and will indemnify Five9 Indemnitees for any finally-awarded damages and costs, including reasonable attorney's fees, arising out of or relating to Customer’s unauthorized or incorrect use, operation, or modification of any E911 services provided under this Agreement, including claims arising from Customer’s failure to provide location data necessary for proper E911 call routing.
Legal and Regulatory Compliance. Customer agrees to comply with all federal, state and/or local law related to or connected with providing, selling, licensing and delivering information services and telecommunications services and products. Customer assumes all liability and responsibility for its use of the Services in compliance with any federal, state or local laws, rules or regulations pertaining to the use of telephones, email, fax, automated telephonic equipment (e.g. “Predictive Dialer”) and other telephony and telecommunications products and services. Customer’s limitations on its use of the Services may include but are not limited to: advertisements; delivering artificial or prerecorded telephonic messages to homes without the prior consent of the called party; and restrictions on the time of day in which such calls are permissible. A violation of any such laws may result in substantial penalties and other sanctions. Any person intending to use the Services for solicitation purposes and/or for any other purpose regulated by federal, state or local laws should consult with his or her own legal counsel, prior to entering into this Agreement to determine the extent of permissible activities. Customer agrees that Five9 will not be responsible for Customer's illegal or fraudulent use of the Services, and Customer indemnifies Five9 for any claims, liabilities or expenses (including attorneys’ fees) incurred by Five9 based upon Customer’s illegal or fraudulent use of the Services.
Suspension or Termination by Five9. Five9 may suspend or cancel Customer’s access to the Services if Five9 has a good faith belief that Customer (x) is using the Services in a manner that may cause immediate and ongoing harm to Five9 or to a third party, including but not limited to, actions that violate federal, state or local laws, rules or regulations, such as compliance with "Do Not Call Lists"; (y) is compromising the security of the Services and the privacy of Five9's other customers; or (z) is engaging in other activity not specifically identified herein that could reasonably be construed as causing or potentially causing harm to Five9 or a third party.
Consents. Customer is solely responsible for obtaining the consent of or a release from those persons or entities, to whom or to which Customer intends to send communications using the Services. Customer agrees to periodically review the list of recipients to be contacted, to contact only those persons who the Customer is legally permitted to contact from Customer’s customer data, and only in the manner permitted, under federal, state and local law, and to delete those recipients that no longer wish to receive communications from Customer.
"Do Not Call" Compliance. If Customer is advised by any party that they do not wish to receive communications from Customer via the Services, then Customer agrees to promptly add those parties to its internal company-specific Do Not Call List in the Services account, and thereafter refrain from calling such parties until such time as Customer’s policies require.
Call Recordings. Customer acknowledges and understands that if it subscribes to call recording features that calls will be recorded at all times including when a call is placed on hold or after a call is transferred to another party. Customer agrees that when using the call recording features it will comply with all notice/consent and privacy requirements pursuant to applicable law.
Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL FIVE9 BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE OR OTHER SIMILAR GENERAL DAMAGES, LOSSES OR COSTS ARISING OUT OF OR RELATING TO THIS AGREEMENT NOR SHALL FIVE9’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED ALL FEES PAID BY CUSTOMER FOR ANY FIVE9 SERVICES IN THE ONE (1) YEAR PERIOD PRIOR TO THE DATE OF THE EVENT THAT GAVE RISE TO THE LIABILITY.
Disclaimer of Five9 Warranties. FIVE9 IS PROVIDING THE SERVICES AS HOSTED SERVICES AND THE SERVICES ARE DELIVERED ON AN “AS IS” AND “AS AVAILABLE” BASIS. FIVE9 DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR THAT ALL COMMUNICATIONS WILL BE DELIVERED, NOR DOES FIVE9 MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICES. FIVE9 MAKES NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICES. Customer understands that the Services may be inaccessible or inoperable due to scheduled periodic maintenance and upgrades pursuant, or for reasons beyond Five9's reasonable control including but not limited to (i) Customer or Five9 equipment malfunctions; or (ii) service interruptions caused by independent telecommunications providers that provide voice and data connectivity to Five9’s or the Customer’s data centers.
Ownership of Materials and Rights. All rights not granted by Five9 herein are expressly reserved. The Services are proprietary to Five9 and are protected by intellectual property laws and international intellectual property treaties. Except for the access to and use the Services granted to Customer in this Agreement, nothing in this Agreement shall convey, transfer or assign any right, title or interest in the Services to Customer.
Data Protection-GDPR. To the extent that You are processing information through the Five9 virtual contact center software as a service platform that is subject to the regulatory authority of the European Union and the United Kingdom, the terms of the Data Protection Agreement found here will apply.
- HIPAA. A list of HIPAA eligible services offered through the Service (“HIPAA Eligible Services”) can be found here and is subject to change in the sole discretion of Net2Phone. If you are a Covered Entity or Business Associate as defined by the Health Insurance Portability and Accountability Act of 1996 (as amended), you agree that your use of the HIPAA Eligible Services for any purpose or in any manner involving Protected Health Information (as defined by HIPAA) is governed by the Net2Phone business associate agreement which can be found below. Your acceptance of these Terms of Service also constitutes your signature on the HIPAA Business Associate Agreement. You further agree not to provide Protected Health Information to us except through the HIPAA Eligible Services.
- Messaging Services. Short Message Service (“SMS”), Multimedia Messaging Service (“MMS”), and related messaging services (collectively, the "Messaging Services") offered by Net2Phone to you are subject to the additional terms and conditions set forth below. By registering your brand(s) and campaign(s), you agree that, notwithstanding anything to the contrary contained in the service-term agreement(s) you executed in connection with your use of the Services, the registration fee(s) and monthly usage fees referenced below apply in addition to any monthly recurring charges you previously agreed to. Additionally:
- You agree to pay the registration fee(s) and monthly usage fee(s) for Messaging Services in accordance with the prices displayed in the list of campaigns at the time of registration. You also agree that you shall be charged and pay any and all additional costs, fees, fines, penalties, charges, surcharges, or other similar charges Net2Phone incurs from any governmental body, regulatory body or telecommunication provider as a result of your use of the Messaging Services. In the event you cancel the Messaging Services, you may still be billed for monthly usage fees beyond your cancellation date in accordance with the requirements of the telecommunication providers and/or The Campaign Registry. The registration fee(s) and monthly usage fees are subject to change upon email notice and are non-refundable.
- Net2Phone may change or suspend the Messaging Services or any features thereof at any time upon notice to you, which may be effectuated via email.
- You agree that you are solely responsible for compliance with all relevant laws, including, without limitation, the Telephone Consumer Protection Act (“TCPA”), as well as all industry guidelines related to the sending of text messages.
- Net2Phone reserves the right to block or limit the Messaging Services, in its sole discretion, based on a determination of potential fraud or misuse (including but not limited to use of the Messaging Services in a way that is not typical of human message origination and termination or if there is an abnormal imbalance of inbound and outbound messaging). You agree to cooperate with Net2Phone to the best of Your ability in the investigation related to potential fraud or misuse.
- You agree that the “10DLC Data” you provide is part of “Account Information” as set forth in these Terms of Service and that we may use (to the extent required to provide or improve the Messaging Services) and transmit 10DLC Data to The Campaign Registry. “10DLC Data” means all data and other information provided by you to Net2Phone for the registration of 10-Digit Long Code message campaigns.
- Miscellaneous. This electronic document and any other electronic documents, policies, and guidelines incorporated herein will be: (1) deemed for all purposes to be a "writing" or "in writing," to comply with all statutory, contractual, and other legal requirements for a writing; (2) legally enforceable as a signed writing; and (3) deemed an "original" when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
In order to protect the integrity of its trademarks, Net2Phone prohibits You from using any trademark or service mark appearing on the Site without the prior written consent of Net2Phone or the third-party owner of such mark. Net2Phone and the Net2Phone design logo are registered trademarks and/or service marks of Net2Phone or its parent, affiliates or subsidiaries. Other trademarks appearing on the Site or other sites linked to from the Site are the property of Net2Phone or their respective owners, who may or may not be affiliated with or connected to Net2Phone or the Services corresponding to the Site.
Notwithstanding the termination of the Service any reason, Sections 7, 11, 17, 21, 22, 23, 24, 25, 28, 31, 32, 34, 35, 36 and 37 of these Terms of Service and any other sections or clauses that, by their nature should survive termination, will continue to apply.
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Emergency Services Conditions and Limitations
YOUR SAFETY IS OF THE UTMOST IMPORTANCE TO NET2PHONE. THIS IS WHY THE HOSTED PBX AND SIP TRUNKING SERVICE OFFERINGS OFFER AN EMERGENCY CALLING FEATURE THAT PERMITS YOU TO DIAL EMERGENCY SERVICES TO REACH EMERGENCY PERSONNEL. HOWEVER, THE EMERGENCY SERVICES-TYPE SERVICE OFFERED THROUGH THE HOSTED PBX AND SIP TRUNKING SERVICE OFFERINGS IS FUNDAMENTALLY DIFFERENT IN SEVERAL IMPORTANT WAYS FROM TRADITIONAL WIRELINE AND WIRELESS EMERGENCY ACCESS SERVICES. NET2PHONE EMERGENCY SERVICES-TYPE SERVICE IS NOT A REPLACEMENT TO THE TRADITIONAL LOCAL WIRELINE EMERGENCY SERVICES OFFERED OVER THE PUBLIC SWITCHED TELECOMMUNICATIONS NETWORK AND WIRELESS EMERGENCY SERVICES IN YOUR LOCAL SERVICE AREA. NET2PHONE AND ITS THIRD-PARTY UNDERLYING PROVIDERS CANNOT GUARANTEE THE RELIABILITY OF THE EMERGENCY SERVICES-TYPE DIALING FEATURES OF THE HOSTED PBX AND SIP TRUNKING SERVICE OFFERINGS. FOR HOSTED PBX SERVICES, NET2PHONE'S LIMITED EMERGENCY SERVICES-TYPE SERVICE IS AVAILABLE ONLY ON NET2PHONE AUTHORIZED HOSTED PBX EQUIPMENT (HEREINAFTER REFERRED TO AS “EQUIPMENT”), AND FOR SIP TRUNKING SERVICES, ONLY ON SUPPORTED SIP DEVICES (HEREINAFTER REFERRED TO AS “DEVICE”). YOU MUST PROPERLY ACTIVATE AND INSTALL YOUR EQUIPMENT/DEVICE AND ENSURE THAT THE INFORMATION YOU PROVIDE TO NET2PHONE IS ACCURATE. YOU MUST ALSO INFORM ANY OTHER PERSONS WHO MAY BE PRESENT AT THE PHYSICAL LOCATION WHERE YOU UTILIZE THE SERVICE OF THE CONDITIONS AND LIMITATIONS OF THE SERVICE’S EMERGENCY SERVICES-TYPE DIALING AND THE NON-AVAILABILITY OF TRADITIONAL EMERGENCY SERVICES FROM YOUR EQUIPMENT/DEVICE AND SERVICE. YOU ACKNOWLEDGE AND UNDERSTAND THAT NET2PHONE HAS APPRISED YOU OF THE CONDITIONS AND LIMITATIONS OF THE EMERGENCY SERVICES AS SET FORTH HEREIN. NET2PHONE STRONGLY RECOMMENDS THAT YOU ALWAYS MAINTAIN AN ALTERNATE MEANS OF REACHING AN EMERGENCY SERVICES OPERATOR IN CASE OF AN EMERGENCY.
Service Outage, Power Failure or Disruption
Your emergency services-type dialing will not function in the event of a power failure or disruption in Service. Should there be an interruption in power or broadband connection (including wireless broadband connection where applicable) for any reason whatsoever, the Service and emergency services-type dialing will not function unless and until power and service is fully restored. In the event of a power failure, you may be required to reset your Equipment, Device, routers, modems and/or switches prior to utilizing the Service or dialing emergency services. Service outages or termination of service by your broadband provider and/or ISP or by Net2Phone will prevent ALL Service including emergency services dialing. You acknowledge and understand that if there is a service outage for ANY reason, such outage will prevent ALL Service, including emergency services dialing.
Use of TDD or TTY Devices
Your emergency services-type service may not be fully compatible with all types of TDD or TTY devices for the hearing impaired and where such devices are used to make calls, neither Net2Phone nor Net2Phone's third party providers hold themselves out as providing or enabling Net2Phone to provide emergency services compatible with any TDD/TTY or other hearing-impaired devices.
Connecting Your Equipment/Device
The emergency services-type service will not function unless you have successfully configured and connected your Equipment or Device and provided accurate and updated information to Net2Phone. Even if you properly connect your Equipment or Device and receive a dial tone, there may still be a delay in time when your emergency services -type dialing feature is fully activated. You cannot dial emergency services unless and until you have confirmation that your Equipment or Device is operational as described herein, and your billable service has begun.
Failure to Designate the Correct Service Address When Activating Emergency Services Dialing or Moving Your Equipment or Device
Your Service Address is the physical address that you provided during the sign-up process. The Service Address is the physical location from where you intend to use your Equipment or Device. Where the Service Address is visible to the emergency response operator, this is where emergency personnel will be sent to if you cannot communicate your actual physical location if different from your Service Address.
For Hosted PBX service, if you have more than one handset at your Service Address and each handset has a different number, you must make sure that the Service Address corresponds to each number where your handset is physically located. If you move your handset to a location other than your primary Service Address, you may not be able to place emergency calls or your calls could be misrouted to the incorrect emergency operator or incorrect emergency service personnel, or emergency personnel could be dispatched to the wrong address.
For SIP Trunking service, you must make sure to register a unique phone number with Net2Phone for each handset being utilized with your Device, provide and register with Net2Phone the accurate location of the handset, and make sure that when dialing emergency services, you send the proper phone number which has the Service Address of the handset’s registered location. If you send a phone number that wasn’t registered for emergency services or with another address other than the service address of the handset placing the call, you may not be able to place emergency calls or your calls could be misrouted to the incorrect emergency operator or incorrect emergency service personnel, or emergency personnel could be dispatched to the wrong address.
Net2Phone does NOT recommend that you use the Equipment or Device to dial emergency access services if you move your Equipment or Device away from your registered Service Address.
Changing Your Service Address and Use of Service Outside the United States/Canada
If you want to change your registered Service Address, you must contact Net2Phone's Customer Service at email@example.com to update your address and determine whether emergency services -type services are available at the new location. Emergency services-type dialing is not available in all service areas. Emergency service-type service will NOT function outside of the United States/Canada, unless otherwise specifically agreed to in writing with Net2Phone. If Emergency service-type service is available at your new Service Address, it may be necessary for Net2Phone to assign a new phone number to you.
There is a greater possibility of network congestion and/or reduced speed in the routing of an emergency services call made from your Service as compared to traditional emergency services dialing over wireline or wireless public telephone networks.
Automated Number Identification
The emergency dispatcher or administrative operator may not be able to identify your phone number when you dial emergency services using the Service. Existing emergency response systems are not always technically capable of receiving and/or passing routing information properly. Accordingly, emergency personnel may not be able to identify your phone number in order to call you back if your call is not completed, dropped or disconnected, or if you are unable to speak to tell the emergency dispatcher or operator your phone number and/or if the Service is not operational for any reason. If you enable any call redirection services with your Service such as Call Forwarding or Call Block, emergency personnel may not be able to call you back if your call is disconnected for any reason.
Automated Location Identification
Emergency personnel will be dispatched to your registered Service Address. This may or may not be the actual physical location of your Equipment or Device if you registered an incorrect or false Service Address or moved the Equipment or Device without updating your registered Service Address with Net2Phone. If you dial emergency services, you must immediately tell the dispatcher your location (or the location of the emergency, if different). You must also not disconnect the line as the dispatcher may need a phone number to use to call you back. If you are unable to speak and describe your location, the emergency dispatcher may not be able to locate you or dispatch emergency personnel to the correct location. You will need to state the nature of the emergency promptly and clearly, including your location. You acknowledge and understand that emergency operators and emergency personnel will not be able to find your location if the call is not completed, dropped or disconnected, if you are unable to speak to tell them your location and/or if the Service is not operational for any reason.
Security Systems and other Non-voice Communications Equipment
You hereby waive any claim against Net2Phone and Net2Phone's third party providers for interference with or disruption of your security systems and any and all other communications or electronic equipment that may occur due to your use of the Services and Equipment or Device.
Local Number Portability
These Conditions and Limitations of Emergency Services apply even if you are porting your number to the Service. If your Equipment or Device is not yet activated as of the port effective date (the date on which your phone service is transferred to the Service), your existing phone service for the number you are transferring will be disconnected and you will have no service for that line. To avoid an interruption in your phone service, it is extremely important that you properly install your Equipment or Device prior to, or on, the port effective date. An estimate of the port effective date will be provided to you by Net2Phone via e-mail following your completion of the ordering process.
Limitation of Liability and Indemnification
You acknowledge that the emergency services-type dialing offered in connection with the Services is NOT the same as traditional emergency services dialing, and does not necessarily include all of the capabilities of traditional emergency services dialing. You further acknowledge that the emergency services offered in connection with the Services may not work under all circumstances and is not as reliable as traditional emergency services dialing.
IN NO EVENT SHALL NET2PHONE, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR UNDERLYING SERVICE PROVIDERS BE LIABLE FOR ANY COSTS OR DAMAGES, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, RELIANCE OR SPECIAL DAMAGES, ARISING IN ANY MANNER FROM ANY CAUSE OF ACTION OR CLAIM RELATING TO THE FAILURE OF THE SERVICE'S EMERGENCY SERVICES-TYPE DIALING AND/OR INABILITY OF YOU OR ANY USER OF YOUR SERVICE TO BE ABLE TO DIAL EMERGENCY SERVICES , TO ACCESS EMERGENCY SERVICE PERSONNEL, TO ACCESS THE CORRECT PUBLIC SERVICE ANSWERING POINT ASSOCIATED WITH YOUR TELEPHONE NUMBER, OR TO CORRECTLY ROUTE AN EMERGENCY CALL. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS NET2PHONE, ITS PARENT, AFFILIATES AND SUBSIDIARIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS AND UNDERLYING SERVICE PROVIDERS, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEY FEES) ARISING OUT OF OR RELATED TO THE FAILURE OF THE SERVICE'S EMERGENCY SERVICES-TYPE DIALING AND/OR INABILITY OF YOU OR ANY USER OF THE SERVICE TO BE ABLE TO DIAL EMERGENCY SERVICES, TO ACCESS EMERGENCY SERVICE PERSONNEL, TO ACCESS THE CORRECT PUBLIC SERVICE ANSWERING POINT ASSOCIATED WITH YOUR TELEPHONE NUMBER, OR TO CORRECTLY ROUTE AN EMERGENCY CALL.
By purchasing the Service, You hereby expressly release Net2Phone, its parent, subsidiaries and affiliates, and their respective directors, officers, employees, agents and underlying service providers from any and all liability associated with Your use of the emergency services-type service offered or provided through the Service.
Your sole and exclusive remedies are expressly set forth in the Terms of Service including these Conditions and Limitations of Emergency Services. Some jurisdictions may not permit the exclusion or limitation of implied warranties, and some jurisdictions may not permit the limitations or exclusion of incidental or consequential damages, so certain of the above exclusions may not apply. In such jurisdictions, the liability of Net2Phone, its directors, officers, employees, affiliates, agents and underlying service providers shall be limited to the maximum extent permitted by law.
RMA INSTRUCTIONS AND FEES
To Receive an RMA for Hosted PBX Equipment
- Contact support at firstname.lastname@example.org to begin the process.
- Provide the following to a support technician: Account name, Account shipping address, contact email address, RMA type, product name, serial number and MAC address (if applicable), and a reason for return of the product.
- A NET2PHONE support technician will troubleshoot the problem with you to verify issues.
- An RMA number will be provided to t you for the return of the product(s) under warranty. You must then provide a replacement shipping address.
- All replacements will be of like kind or better condition at the discretion of NET2PHONE.
Returning RMA Products
- All products are to be returned with the original manufacturer’s packaging.
- All original parts and materials (cords, connectors, power supplies, CD’s, books, etc.) must be included.
- The product must be packed properly in a shipping box, with the RMA number visible on the outside.
- You are responsible for freight back to NET2PHONE, unless otherwise agreed in writing.
- Product must be returned to Net2Phone within 10 business days of receiving an RMA number.
Product should be returned to:
8 Shelter Drive, Dock 1
GREER SC 29650
Product (s) returned without an RMA number may be immediately returned to you at your cost or subject to a $12 “unknown product fee,” in Net2Phone’s sole discretion.
For further information regarding Advance Replacement and Return For Credit policies and charges, please contact Net2Phone Customer Support.
A $40.00 re-stocking fees applies per piece of Equipment. Shipping and handling charges are not refundable. A charge for the full retail price of the Equipment (as determined by Net2Phone) will be made to your Account if the Equipment is not returned within 10 business days of your receiving an RMA number or if the Equipment is not returned in accordance with the RMA instructions and Section 14 above.
RMA Administrative Fee – Will vary depending upon the quality of the returned Equipment.
SERVICE LEVEL AGREEMENT – NET2PHONE HOSTED PBX
The following Service Level Agreement (“SLA”) defines Net2Phone’s sole responsibility and your sole remedy regarding interruptions in Net2Phone’s Hosted PBX Service.
“Base Phone Terminal Fee” means the base monthly recurring fee paid by you for a Hosted PBX Phone Terminal and excludes fees associated with add-on features and usage-based charges.
“Planned Network Maintenance” means normal maintenance scheduled for the upgrade of Net2Phone’s network and platform used to deliver the Hosted PBX Service to you. Scheduled Maintenance may occur at any time during our maintenance window of 12:00AM – 5:00AM ET.
“Urgent Network Maintenance” means Net2Phone’s efforts to correct network conditions that are likely to cause service outages or severe network performance degradation impacting multiple customers and requiring immediate action. Urgent Maintenance may degrade the quality of the Hosted PBX Service including possible outages. Net2Phone’s policy is to notify you with as much advance notice as possible under the circumstance prior to performing such maintenance.
All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Terms of Service.
A credit allowance will be given for interruptions in the Hosted PBX Service preventing inbound or outbound calling in excess of 30 minutes. The time attributed toward Hosted PBX Service unavailability begins when a trouble ticket reporting the outage is opened by you with Net2Phone and ends when the affected Hosted PBX Service is again operational. Two or more interruptions of 15-minutes or more during any one 24-hour period will be combined into one cumulative interruption.
Length of Interruption Per Calendar Month
Credit Per Affected Phone Terminal
30 minutes to 1 hour
1 days’ Base Phone Terminal Fees
1 hour 1 minute to 24 hours
3 days’ Base Phone Terminal Fees
24 hours or more
15 days’ Base Phone Terminal Fees
No credit allowance will be made for any interruption in Hosted PBX Service:
- Due to Planned Network Maintenance or Urgent Network Maintenance
- Due to your noncompliance with the provisions of Net2Phone’s Terms of Service (including its payment terms)
- Due to the failure of power at your premises
- Due to the failure of Equipment or router/networking equipment
- Due to the failure of equipment, systems, connections or services not provided by Net2Phone (including service interruption by your internet service provider)
- Due to circumstances or causes beyond the reasonable control of Net2Phone
- During any period in which Net2Phone is not given full and free access to your premises
*Your inability to access the web-based voice portal will not give rise to service credits.
Other Terms and Conditions
The total combined credits applied to your Account in any given month will not exceed your total Base Phone Terminal Fees for such month.
For purposes of calculating the service credit, one (1) day credit is equal to 1/30.33 of your Base Phone Terminal Fees at the time of the outage for the Hosted PBX services adversely affected.
Request for credits must be made in writing to Net2Phone within thirty (30) days from the date that you opened the trouble ticket reporting the service interruption. Net2Phone will investigate the claim and, if validated, will issue a credit within two (2) billing cycles. you will cooperate with Net2Phone in any service interruption investigations.
Net2Phone reserves the right to change, amend, or revise this SLA at any time. Changes or revisions to this SLA will be deemed effective upon posting the applicable revision on the Site.
HIPAA Business Associate Agreement
To the extent that you disclose Protected Health Information to Net2Phone Global Services, LLC (“Business Associate”), or Business Associate handles Protected Health Information on your behalf, in connection with services or products provided to you, or as otherwise required or allowed by the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, codified at 42 U.S.C. §1320d through d-9, as amended, ("HIPAA"), you and Business Associate agree to the following terms and conditions, which are intended to comply with HIPAA, the Health Information Technology for Economic and Clinical Health Act ("HITECH Act") and their implementing regulations. The privacy and security provisions of this BA Agreement shall be applicable to Business Associate only in the event and to the extent Business Associate meets, with respect to you, the definition of a Business Associate set forth at 45 C.F.R. §160.103, or applicable successor provisions.
You acknowledge that Business Associate has no obligation to protect Protected Health Information under this BA Agreement to the extent that you create, receive, maintain or transmit such Protected Health Information outside of Business Associate’s Services that Business Associate has designated as HIPAA-eligible. For example, Business Associate’s text messages and other short message service methods (“SMS”) are not intended to be covered by this BA Agreement and you agree not to transmit Protected Health Information via SMS services provided by Business Associate.
Now, therefore, in consideration of the foregoing and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree to the provisions above and as follows:
"BA Agreement" shall mean this HIPAA Business Associate Agreement.
"Business Associate" shall generally have the same meaning as the term "business associate" at 45 C.F.R. §160.103, and in reference to the party to this BA Agreement, shall mean the entity named as Business Associate above, which may also be a Subcontractor of yours.
"HIPAA Rules" shall mean the Privacy, Security, Breach Notification, Administrative, and Enforcement Rules at 45 C.F.R. Parts 160, 162, and 164, as amended from time to time.
"Service Agreement" shall mean the Terms of Service and any other separate agreement(s) between the parties in which Business Associate performs functions or activities on behalf of you.
“Third Party Services” means services re-sold by Business Associate to you that are provided by third parties.
Other Definitions: The following terms used in this BA Agreement shall have the same meaning as those in the HIPAA Rules: Breach, Covered Entity, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Limited Data Set, Minimum Necessary, Notice of Privacy Practices, Protected Health Information (to the extent such Protected Health Information is created, transmitted, received, used, disclosed, accessed or maintained by Business Associate), Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use. Other terms shall have the definitions set forth in this BA Agreement.
2. Obligations and Activities of Business Associate
Business Associate agrees to not Use or Disclose Protected Health Information other than as permitted or required by this BA Agreement, as Required by Law, or as contemplated by the Service Agreement.
Business Associate agrees to use appropriate safeguards, including compliance with Subpart C of 45 C.F.R. Part 164 with respect to electronic Protected Health Information, to prevent Use or Disclosure of the electronic Protected Health Information other than as permitted by this BA Agreement.
Business Associate agrees to report to your Privacy Official any Use or Disclosure of Protected Health Information not provided for by this BA Agreement of which it becomes aware, including Breaches of Unsecured Protected Health Information as required by 45 C.F.R. §164.410, and any Security Incident of which it becomes aware. For reports of incidents constituting a Breach, the report shall include, to the extent available, the identification of each Individual whose Unsecured Protected Health Information has been, or is reasonably believed by Business Associate to have been, accessed, acquired, or Disclosed during such Breach. Security Incidents that do not result in any unauthorized access, use, disclosure, modification, destruction of information or interference with system operations will be reported in the aggregate upon written request of you in a manner and frequency mutually acceptable to the parties. Business Associate hereby reports to you that incidents including, but not limited to, ping sweeps or other common network reconnaissance techniques, attempts to log on to a system with an invalid password or username, denial of service attacks that do not result in a server being taken off-line, and similar minor unsuccessful Security Incidents may occur from time to time.
In accordance with 45 C.F.R. §§164.502(e)(1)(ii) and 164.308(b)(2), if applicable, Business Associate agrees to ensure that subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of Business Associate agree to the same restrictions and conditions that apply through this BA Agreement to Business Associate with respect to such information. The parties agree that the written terms of the subcontractor agreements need not be identical to this BA Agreement, provided that the restrictions and conditions applicable to Protected Health Information are the same.
To the extent Business Associate has Protected Health Information in a Designated Record Set, and only to the extent required by HIPAA, Business Associate agrees to make available Protected Health Information in a Designated Record Set, to you as necessary to satisfy your obligations under 45 C.F.R. §164.524. The parties agree and acknowledge that it is your responsibility to respond to all such requests.
Business Associate agrees to make Protected Health Information available for purposes of any amendments to Protected Health Information in its possession contained in a Designated Record Set as agreed to by a Covered Entity pursuant to 45 C.F.R. §164.526 or take other measures as necessary to satisfy your obligations under 45 C.F.R. §164.526. The parties agree and acknowledge that it is your responsibility to respond to all such requests.
Business Associate agrees to maintain and make available to you the information required to provide an accounting of disclosures by Business Associate as necessary to satisfy your obligations under 45 C.F.R. §164.528. The parties agree and acknowledge that it is your responsibility to respond to all such requests.
To the extent, under the terms of the Service Agreement, Business Associate is required to carry out one or more of your obligations under Subpart E of 45 C.F.R. Part 164 of the HIPAA Rules, Business Associate agrees to comply with the requirements of Subpart E that apply to you in the performance of such obligations.
Business Associate agrees to make its internal practices, books, and records related to Business Associate's use and disclosure of Protected Health Information received from you available to the Secretary for purposes of determining compliance with the HIPAA Rules.
3. Permitted Uses and Disclosures of Protected Health Information by Business Associate
Business Associate may use or disclose Protected Health Information as necessary to perform the services set forth in the Service Agreement, as permitted in this BA Agreement or the Service Agreement, and as otherwise permitted by the HIPAA Rules, including for purposes related to treatment, payment, and health care operations and for public health purposes.
Business Associate may Use or Disclose Protected Health Information as Required By Law or as permitted by 45 C.F.R. §164.512.
Business Associate agrees to make uses and disclosures and requests for Protected Health Information consistent with the requirements in the HIPAA Rules regarding Minimum Necessary uses and disclosures. you represent and warrant that its Minimum Necessary policies and procedures and the Notice of Privacy Practices are consistent with, and not more stringent than, the HIPAA Rules or, to the extent that a Covered Entity's Notice of Privacy Practices or policies and procedures regarding the Minimum Necessary requirements of the HIPAA Rules impose additional particular restrictions on Business Associate, you agree to provide such policies to Business Associate in writing prior to requesting that Business Associate perform a particular function or activity on behalf of you that would be affected by such policies and procedures.
Business Associate may use Protected Health Information to create de-identified information that may be used and disclosed by Business Associate as Business Associate deems appropriate, provided that the information is de-identified in accordance with the HIPAA Rules.
Business Associate may use Protected Health Information to provide Data Aggregation services. Business Associate may also use Protected Health Information to create, use and disclose a Limited Data Set consistent with the HIPAA Rules.
Business Associate may use and disclose Protected Health Information to report violations of law to appropriate Federal and State authorities, in a manner consistent with the HIPAA Rules.
Business Associate may not use or disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by you, except for the specific uses and disclosures set forth below.
Business Associate may use Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate.
Business Associate may disclose Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate, provided that the disclosures are Required By Law or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required By Law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
4. Your Obligations
(a) You shall notify Business Associate, in writing and in a timely manner, of any limitations in the Notice of Privacy Practices of a Covered Entity under 45 C.F.R. §164.520, and its policies regarding the "Minimum Necessary" requirements in 45 C.F.R. §164.502(b), to the extent that such limitations may affect Business Associate's Use or Disclosure of Protected Health Information, and shall notify Business Associate in writing of any material changes thereof.
(b) You shall notify Business Associate, in writing and in a timely manner, of any changes in, or revocation of, permission by Individual to Use or Disclose Protected Health Information, if such changes may affect Business Associate's Use or Disclosure of Protected Health Information.
(c) You shall notify Business Associate, in writing and in a timely manner, of any restriction on the Use and/or Disclosure of Protected Health Information to which you have agreed or is required to abide by, to the extent that such restriction may affect Business Associate's Use or Disclosure of Protected Health Information.
(d) You agree to comply with all applicable state and federal privacy, security, and consumer protection laws and regulations, including the HIPAA Rules and the Telephone Consumer Protection Act, as amended and implemented by rule and regulation (“TCPA”). You agree to obtain any patient authorizations or consents that may be required under state or federal law or regulation in order to transmit Protected Health Information to Business Associate and to enable Business Associate and its subcontractors and agents to Use and Disclose Protected Health Information as contemplated by this BA Agreement and the Service Agreement, including consents and authorizations relating to mental health, HIV, substance use disorders, and other particularly sensitive conditions.
(e) You may not ask Business Associate to Use or Disclose Protected Health Information in any manner that would not be permissible under applicable laws and rules, including the HIPAA Rules, if done by you, except that Business Associate may use and disclose Protected Health Information for its proper management and administration, data aggregation, and other activities permitted by this BA Agreement and the Service Agreement.
(f) Text Messaging/SMS Disclaimer and Indemnification: You acknowledge that it is not permitted to use Business Associate’s SMS solution to transmit Protected Health Information. In the event that you violate this restriction, you are solely responsible for compliance with applicable laws and rules regarding communicating with Individuals and others via SMS including, but not limited to, HIPAA, TCPA, Medicare, and Joint Commission compliance. you are solely responsible for obtaining appropriate written authorization from Individuals to communicate via SMS, including obtaining acknowledgement of the risks of such transmissions. You are solely responsible for compliance with the HIPAA Rules with respect to Business Associate’s SMS services. You agree that Business Associate shall have no liability for any Breach of Protected Health Information transmitted via SMS. You indemnify and holds Business Associate harmless for any and all losses, liabilities, claims, fines, damages, penalties, costs, and expenses arising from or related to your use of Business Associate’s services in violation of this BA Agreement. This paragraph continues to apply and survives the expiration or termination of this BA Agreement and the Service Agreement.
5. Term and Termination
Except as otherwise provided herein, the term of this BA Agreement shall coincide with the Service Agreement, including any renewals, and shall be terminable in accordance with the termination or expiration provisions of the Service Agreement, or the date either party terminates for cause, as authorized in paragraph (b) of this Section, whichever is sooner.
(b) Termination for Cause
Upon a party's reasonable determination of a material breach of this BA Agreement by the other party, the non-breaching party shall provide written notice to the breaching party and may terminate this BA Agreement if the breaching party does not cure the breach or end the violation within 30 days of receipt of such notice.
(c) Effect of Termination
(i) Except as provided below in Subsection 5(c)(ii) of this BA Agreement, upon termination of this BA Agreement, for any reason, Business Associate shall destroy all Protected Health Information received from you, or created or received by Business Associate on behalf of you, that Business Associate still maintains in any form. Business Associate shall retain no copies of the Protected Health Information, except as provided in sub-clause (ii) directly below.
(ii) In the event that Business Associate determines that it, or a subcontractor or agent, needs to retain Protected Health Information because destruction is infeasible, Business Associate, or the subcontractor or agent, may retain such Protected Health Information. Upon termination of this BA Agreement for any reason, Business Associate, or the subcontractor or agent, with respect to Protected Health Information received from you, or created, maintained, or received by Business Associate, subcontractor or agent, on behalf of you, shall:
Retain only that Protected Health Information for which destruction is infeasible;
Destroy the remaining Protected Health Information that Business Associate, subcontractor or agent, still maintains in any form;
Continue to use appropriate safeguards to comply with Subpart C of 45 C.F.R. Part 164 with respect to electronic Protected Health Information to prevent Use or Disclosure of the Protected Health Information, other than as provided for in this Section, for as long as Business Associate, subcontractor or agent, retains the Protected Health Information;
Not Use or Disclose the Protected Health Information retained by Business Associate, subcontractor or agent, other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out in this BA Agreement which applied prior to termination; and
Destroy the Protected Health Information retained by Business Associate, subcontractor or agent, when it is no longer needed by Business Associate, subcontractor or agent, for its proper management and administration or to carry out its legal responsibilities.
(d) Business Associate's rights and obligations under this Section 5 shall survive the termination of this BA Agreement and shall end when all of the Protected Health Information provided by you to Business Associate, or created or received by Business Associate on behalf of you, is destroyed.
6. Interpretation and Amendment of this BA Agreement
7. No Third Party Rights/Independent Contractors
Nothing express or implied in this BA Agreement is intended to confer, nor shall anything herein confer, upon any person other than you, Business Associate and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever. The parties declare that they are independent contractors and not agents of each other.
Any notice required or permitted by this BA Agreement to be given or delivered shall be in writing and shall be deemed given or delivered if delivered in person, or delivered by courier or expedited delivery service, or delivered by registered or certified mail, postage prepaid, return receipt requested to the address set forth below. Each party may change its address for purposes of this BA Agreement by written notice to the other party.
9. Governing Law/Venue/Dispute Resolution
The governing law, venue and dispute resolution provisions of the Service Agreement shall apply to this BA Agreement.
10. Binding Nature and Benefits
This BA Agreement binds and benefits the parties, and their respective successors, and their assigns. Either party may assign this agreement upon written notice to the other party, if and to the extent assignment of the Service Agreement is permissible.
Whenever possible, each provision of this BA Agreement shall be interpreted so as to be effective and valid under applicable law. If any provision of this BA Agreement should be prohibited or found invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the other of such provision or the remaining provisions of this BA Agreement.
(a) NOTWITHSTANDING ANY PROVISION IN THE SERVICE AGREEMENT TO THE CONTRARY, EXCEPT FOR A VIOLATION OF SECTION 4(f) HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, LOSS OF DATA, OR CIVIL OR CRIMINAL PENALTIES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY TO ANY CLAIM, INCLUDING WITHOUT LIMITATION CLAIMS BASED IN STATUTE, COMMON LAW, CONTRACT, WARRANTY, FIDUCIARY DUTY, NEGLIGENCE OR OTHER TORT, OR STRICT LIABILITY. THIS LIMITATION OF LIABILITY SHALL ALSO APPLY AND SURVIVE AFTER TERMINATION OF THIS BA AGREEMENT AND THE SERVICE AGREEMENT.
(b) NOTWITHSTANDING ANY PROVISION IN THE SERVICE AGREEMENT TO THE CONTRARY, BUSINESS ASSOCIATE HAS NO LIABILITY FOR THIRD PARTY SERVICES, AND BUSINESS ASSOCIATE'S AGGREGATE LIABILITY TO YOU UNDER THIS BA AGREEMENT SHALL NOT EXCEED THE LESSER OF (x) THE AMOUNT ACTUALLY PAID TO BUSINESS ASSOCIATE IN THE TWELVE (12) MONTHS PRIOR TO THE INCIDENT GIVING RISE TO THE LIABILITY OR (y) $10,000, AND SUCH AMOUNT SHALL BE YOUREXCLUSIVE REMEDY FOR ANY DAMAGES. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY TO ANY CLAIM, INCLUDING WITHOUT LIMITATION CLAIMS BASED IN STATUTE, COMMON LAW, CONTRACT, WARRANTY, FIDUCIARY DUTY, NEGLIGENCE OR OTHER TORT, OR STRICT LIABILITY. THIS LIMITATION OF LIABILITY SHALL ALSO APPLY AND SURVIVE AFTER TERMINATION OF THIS BA AGREEMENT AND THE SERVICE AGREEMENT.13. Information blocking
Nothing in this BA Agreement shall be construed as imposing any responsibility upon Business Associate to ensure that you conform to laws and regulations prohibiting information blocking or requiring you to maintain Protected Health Information for any length of time. You are solely responsible for ensuring compliance with such laws and regulations.
Updated July 2022