Special Terms and Conditions (USA)
Effective Data: November 1, 2018
Special Terms and Conditions
These terms and conditions shall constitute an integral part of the Agreement between the Customer and the Company. These terms and conditions shall be read in conjunction with the General Terms and Conditions and other applicable guideline, policy, notice, etc. Any previous communications, representations or agreements are superseded by this Agreement.
1. THE SERVICE.
1.1 General Description. The Services consist primarily of Voice over Internet Protocol services, which may be offered by the Company in a variety of forms and packages. The Services shall consist of a combination of software solutions, products, networks, services and hosting facilities (the “Network”), components of which the Company has been granted access and/or licenses to by third party licensors, suppliers, vendors, and subcontractors (“Third Party Vendors”).
1.2 Fees. The Services provided will be charged in accordance with the terms and conditions set forth on the Service Order Schedule.
1.3 Modifications to Service. The Company and any Third Party Vendor may modify, expand, decrease, improve, maintain and/or repair the Services or Network at any time by giving written notice and without liability to the Customer or any third party although such process may require a suspension of Services or increased rates.
1.4 Compatibility. Traffic carried by the Services must be IP originated. Customer acknowledges and agrees that the Services may not be compatible with all communication equipment.
1.5 Power Outages. The Services does not function in the event of power failure. Should there be a power interruption in the power supply, the Services will not function until power is restored. A power failure or disruption may require that Equipment be reset or reconfigured prior to utilizing the Services. Power disruptions or failures will also prevent dialing to emergency service numbers including any 911 calling feature that may be activated in or accessed by the Services.
1.6 International Direct Dialing. If Customer uses International Direct Dialing Service from the Company, exact rates for each destination can be referred to the Company’s website. International Direct Dialing Services and rates that the Company will charge Customer are subject to change with or without notice. The Company does not guarantee international call delivery and may block routes it determines may be improperly using the Services at any time.
2. E911 DISCLOSURE NOTICE AND ACKNOWLEDGEMENT–USA
This E911 Disclosure Notice and Acknowledgement (“E911 Acknowledgement”) is agreed, acknowledged and accepted by Customer in connection with Customer’s purchase and use of YOTO Business Voice System Service.
2.1 EMERGENCY SERVICES- 911 DIALING
2.1.1, Differences in Availability and Operation of Emergency Dialing Service (“911” or “E911”). The Customer acknowledge and understand that the Service does NOT function or connect the same way as traditional copper, fiber or wireline telecommunications support for traditional 911 or E911 access to emergency services. The 911/E911 Services offered by the Company in conjunction with these services are available only on the Company-provided or other approved Equipment as described herein, and only in specific areas, as specified by the Company, but the Customer acknowledge and understand that 911-type dialing is NOT automatic. When ordering the Service, the Customer must separately activate such 911-type dialing capabilities by specifically requesting them at the time of Service activation or thereafter, subject to th e Company, governmental and/or industry technical approval, availability and restrictions, as described herein. Such request must contain specific information as requested, and as may be modified by the Company in its sole discretion from time to time, and must be accompanied by the Customer’s acceptance of the specific term, conditions and responsibilities attendant thereto, including but not limited to maintenance and communication to the Company in advance of any changes in information relating to the physical location for which the 911-type capabilities may be activated, and/or authorized login, passwords and authorized users on the account.
The Company 911 dialing cannot be used in conjunction with any mobile apps The Customer agrees to inform any household residents, guests and other third persons who may be present at the physical location where the Customer utilize the Service as to the non-availability of traditional 911 or E911 dialing from the Company’s Service and Equipment. If the Customer activate 911-type dialing service from the Company, the Customer agrees to inform any household residents, guests and other third persons who may be present at the physical location where the Customer utilize the Service as to the important differences and limitations of the Company 911 dialing Service as compared with traditional 911 or E911 dialing, as set forth in this Acknowledgement, including without limitation the conspicuous posting on the device of any caution or warning materials as may be appropriate, and the Customer agrees to make reasonable efforts and use reasonable judgment in informing them of the proper and specific operation and requirements of the Service, if available, and/or to restrict third parties’ access to the Service for any purpose.
2.1.2, Description of 911-Type Dialing Capabilities – Activation Required. The Customer acknowledges and understands that 911-type dialing is NOT automatic. The Customer acknowledges and understands that the Customer cannot dial 911 from this line unless and until the Customer havs registered its location information and agree to maintain. Once the Customer have registered the location information, the Customer may dial 911 as needed, provided that all other Service requirements, including but not limited to, power supply, broadband internet connection, internet service provider login or “timing out” (even with an automatic restart that may cause a reassignment by the Customer’s internet service provider of a different session-based internet address), and Service login are activated, operational and uninterrupted for the entire duration of the call. When the Customer dial 911 from its designated physical location, the Customer’s call is routed from the Company network to the Public Safety Answering Point (PSAP) or to local emergency service personnel designated for the address that the Customer listed at the time of registration. The Company can only route 911-type calls within certain geographic areas, from the Company-provided Equipment and IP phone primary number assignments designated by the Company as geographically appropriate, as locations within such areas may be confirmed by the Company upon Service activation. The Customer acknowledges and understands that any 911-type calls made from any physical or geographical location other than the physical location designated and associated with the account, regardless where a caller or third party desires or requires emergency assistance, will fail. When the Customer dial 911 on its phone utilizing the Company’s Service, the Customer’s call might be routed to a different dispatcher than that used for traditional 911 dialing. The Dispatcher will be located at either the Public Safety Answering Point (PSAP) or will be local emergency service personnel designated for the address that the Customer listed at the time of registration for the Service.
As described herein, this 911-type dialing currently is NOT the same as traditional 911 or E911 dialing, and at this time, does not necessarily include all of the capabilities of traditional 911 dialing. Note, in particular, that certain features of “E911” may not be available in the Customer’s area or technically feasible via this Service. While certain call-back capabilities, if they are available, may function on this Service, any interruption before, during or after any call — in power supply, broadband internet connection, internet service provider login or “timing out” (even with an automatic restart that may cause a reassignment by your internet service provider of a different session-based internet address), or Service login may cause these features to fail.
2.2 Service Outage:
2.2.1 Power Outage. The Customer acknowledges and understands that 911 dialing, like the Service as a whole, does not function in the event of a power failure. Should there be an interruption in the power supply, the Service and 911 dialing will not function until power is restored. A power failure or disruption may require the Customer to reset or reconfigure equipment, connections or logins, prior to utilizing the Service or 911 dialing.
2.2.2 Broadband Service Outage. The Customer acknowledges and understands that service outages or interruptions by its broadband provider will prevent ALL Service including 911 dialing. Even a brief interruption in the Customer’s broadband Internet connection may cause the Service and 911 calling to fail until Customer resets or reconfigures equipment, connections or logins.
2.2.3 Service Outage Due to Suspension of Customer’s Account The Customer acknowledges and understands that service outages due to suspension of its account as a result of billing issues will prevent ALL Service including 911 dialing.
2.2.4 Other Service Outages. The Customer acknowledges and understands that if there is a service outage for ANY reason, such outage will prevent ALL Service, including 911 dialing. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Acknowledgement.
2.3. Failure to Designate the Correct Physical Address When Activating 911 Dialing. If the Customer do not correctly identify the actual location where its Equipment from the Company will be located at the time the Customer register for the Service, 911 communications may be misdirected to an incorrect local emergency service provider.
2.4. Change of Physical Location of Equipment. 911 dial will not function correctly if the Customer move its Equipment from the Company to a location other than that provided then the Customer registered for the Service. In such event, in order to have 911 calling routed correctly, the Customer must update its service address with the Company.
2.5. Requires Re-Activation if the Customer Move. The Customer acknowledges and understands that 911 dialing does not function properly or at all if the Customer moves or changes the physical location of its Equipment to a different street address. Failure to provide the current and correct physical address and location of the Customer’s Equipment from the Company will result in any 911 dialing the Customer may make being routed to the incorrect local emergency service provider.
2.6. Possibility of Network Congestion and/or Reduced Speed for Routing 911. Due to the manner in which it is technically possible to provide the 911 dialing feature for YOTO Business Voice System Service at this time, the Customer acknowledges and understands that there is a greater possibility of Network congestion and/or reduced speed in the routing of a 911 communication made utilizing its equipment as compared to traditional 911 dialing over traditional public telephone Networks. The Customer acknowledges and understands that its call may be routed to a different dispatcher than that used for traditional 911 dialing. The dispatcher will be located at either the public safety answering point (PSAP) or will be local emergency service personnel designated for the address the Customer listed at the time the Customer registered for the Service. The Customer acknowledges and understands that there may be a greater possibility that the general telephone number for the local emergency service provider will produce a busy signal or will take longer to answer, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.
2.7. Automated Number Identification: At this time in the technical development of the Company’s 911 dialing, it may or may not be possible for the Public Safety Answering Point (PSAP) and the local emergency personnel to identify the Customer’s phone number when the Customer dial 911. The Company’s system is configured in most instances to send the automated number identification information; however, the phone system routes the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and they are not yet always technically capable of doing so. The Customer acknowledges and understands that PSAP and emergency personnel may or may not be able to identify its phone number in order to call the Customer back if the call is unable to be completed, is dropped or disconnected, or if the Customer are unable to speak to tell them its phone number and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Acknowledgement.
2.8. Automated Location Identification. At this time in the technical development of the Company 911 Dialing, it may not be possible to transmit identification of the Customer’s service address that the Customer has listed to the Public Safety Answering Point (PSAP) and local emergency personnel for its area when the Customer dial 911. The Customer acknowledges and understands that the Customer may need to state the nature of its emergency promptly and clearly, including its location, as PSAP personnel will NOT have this information. The Customer acknowledges and understands that PSAP and emergency personnel may not be able to find its location if the call is unable to be completed, is dropped or disconnected, if the Customer are unable to speak to tell them its location, and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Acknowledgement.
2.9. Alternative 911 Arrangements. The Customer acknowledges that this Service is not offered as a primary line or lifeline service. The Customer should always have an alternative means of accessing traditional E911 services.
2.10. No compatibility with other equipment. All non-voice communications equipment, including but not limited to, home security systems that are set up to make automatic phone calls, fax machines, modems and medical monitoring devices, are not compatible with the Service. By accepting this Acknowledgement, the Customer waives any claim against the Company for interference with or disruption of such systems due to the Services.
3. CUSTOMER NETWORK FACILITIES AND EQUIPMENT.
The Company may provide the acquisition, configuration, installation and testing of the Equipment from the Third Party Vendor if such Services are purchased by the Customer. The Company does not warrant that the Equipment will be free from vulnerability, intrusion, attack, or other damage. The Company does not warrant that the operation of the Equipment will be uninterrupted or error-free. The Company resells the Equipment from the third party hardware manufacturer and provides no warranty except the manufacturer’s warranty (if any).
The Customer can also use its own equipment if the equipment is approved and compatible with the Company’s Services. Customer shall be solely responsible for the acquisition, installation, testing, maintenance and security of its own equipment and network facilitates needed to utilize the Services, including facilities between Customer’s Point of Presence (“POP”) and Customer’s users.
4. DATABASE UPDATES
Customer shall furnish all information reasonably requested by the Company in order for the Company to provide each Service. Customer shall ensure that all information and data that it has given or that it will give to the Company, including but not limited to Customer’s billing information, mailing address and email address, is current and accurate at all times. The Company shall have no responsibility to verify the accuracy of any information provided by Customer and shall have no liabilities or obligations relative to any amount billed or notices delivered incorrectly as a result of inaccurate information provided by Customer and Customer’s failure to correct or update the same.
5. UNLAWFUL AND PROHIBITED USE.
5.1 Automated Calling Prohibition. Unless Customer purchases the short duration calling Service from the Company, Customer agrees that all calls it originates through the Services shall be initiated by a human user and conducted by that human user. Unless otherwise agreed upon in writing, Customer agrees that it shall not use the Services to initiate any automated communication. Customer shall ensure that any and all automatic Calling shall be at all times conducting in compliance with federal, state and local, laws regulations and rules.
5.2 General Prohibitions. Customer is expressly prohibited from using the Services in a manner that would, in any way, constitute or encourage conduct that is improper, including uses that are criminal in nature, that may give rise to a civil liability, or that otherwise violates any applicable laws or regulations. Examples of such improper uses include, without limitation, attempts at phishing or otherwise improperly attempting to gain access to financial information and making calls to numbers included in a government Do Not Call List. In addition, Customer is expressly prohibited from using the Services: (a) for any abusive or fraudulent purpose; (b) in a manner that enables Customer to avoid any obligation to pay for the Services; (c) in a manner that is deemed to interfere with, disrupt, or present a risk to the Services, Network, software, property, or security of the Company, its customers, its Third Party Vendors or other third parties, whether directly or indirectly; (d) in a manner that results in usage inconsistent with the Company‘s expectations or the purpose for which the Company is providing the Services; and/or (e) in a manner that may violate this STC, or the policies of the Company. Customer shall provide, at its cost, all reasonably necessary security equipment, software, facilities and other apparatuses to ensure that the Services are not used in a fraudulent or unauthorized manner, whether by Customer and any third party.
5.3 Rights. If the Company determines, in its sole discretion, that Customer is or any of its customers are using the Services in a manner that violates or is contrary to this Clause, then the Company, as well as any effected Third Party Vendors, shall have the right, without liability, to block, suspend or terminate the Services, or any part thereof, with written notice. Customer shall be responsible for any liabilities and obligations arising from Customer’s use of the Services that is contrary to, or violates this Clause. If the Company, in its sole discretion, believes that Customer’s actions or omissions may be considered criminal in nature, the Company may forward personally identifiable information to the appropriate authorities for investigation and prosecution. Customer hereby consents to such forwarding.
5.4 Suspicious Activity Service Termination. In addition to and not to limit any other rights of the Company, the Company has right to suspend or terminate Service if the Company, in its sole discretion, believes that any activity on the Customer account is or could be suspicious in nature.
6. AUDIT AND LAW ENFORCEMENT.
The Company reserves the right to audit, track or monitor Customer’s use of the Services to (a) enforce the provisions of this STC; (b) conform to legal requirements or comply with legal process; (c) protect and defend the rights or property of the Company or any Third Party Vendors; (d) respond to request for identification in connection with a claim of copyright or trademark infringement, or unlawful activity; (e) act to protect the interests of the Company‘s customers or such Customer’s users; (f) conform to the Company‘s contractual obligation with any Third Party Vendor; or (g) provide the Services. Customer agrees that this STC are sufficient notice to Customer of such monitoring to the extent any notice is required under applicable federal or state law.
The Services utilizes the public Internet and third party networks. The Company and its Third Party Vendors shall not be liable for any lack of privacy which may be experienced by Customer with regard to the Services. Customer shall be solely responsible for any liabilities arising from Customer’s lack of privacy.
Neither the Company nor any of its Third Party Vendors operate or control the content transported by the Services. As such, neither the Company nor any of its Third Party Vendors shall have any liability or responsibility for the content of any communication or information transmitted via the Services.
9. LOCAL NUMBER PORTABILITY (LNP).
If Customer desires to port a number either to or from the Company‘s Network, Customer shall execute and/or deliver to the Company all documents and information requested by the Company, including, but not limited to, all required Letters of Authorization (“LOA”). Customer acknowledges and agrees that the Company shall have the right to refuse to port any number to its Network for any reason. Customer agrees that the Company, in its sole discretion, may port a number to any Third Party Vendor selected by the Company in order to provide the Services, and that may be required to be named as the Customer of Record for such number. The Company will make reasonable commercial efforts to execute all port requests; however, the Company has no control over any porting process (either to or from the Company‘s Network). As such, the Company makes no guaranties or warranties that a number will be ported on a particular day, or that a submitted port request will actually result in the number being ported. The Company will inform Customer of port dates when such dates are known to the Company. The Company reserves the right to change the port date in its sole discretion by giving the Customer written notice Customer agrees to comply with all applicable rules, regulations and orders, including but not limited to all FCC and public utility commission rules regarding number porting. The Company makes no warranty that the Services associated with a number will be uninterrupted or error free during any porting process. Customer acknowledges that, if any account associated with the number being ported is canceled or suspended prior to the port date, such number may not be eligible for porting. It is Customer’s sole responsibility and obligation to timely cancel its account(s) with the provider from which the number is being ported, and Customer shall be solely responsible for any contractual obligations it has with such provider and any applicable fees and charges, including early termination fees. Number porting is done at the Customer’s sole risk. Under no circumstances shall the Company be liable for any damages, including, without limitation, loss of profits, associated with porting or not porting a number. Customer agrees to comply with all LNP policies established from time to time by the Company. The Company may modify its LNP policies at any time by giving thirty (30) calendar days’ notice to the Customer to that effect and Customer agrees to comply with all such modifications.
Certain Services provide functionality that allows the Customer to record audio and data shared during the call. The Customer is solely responsible for complying with all applicable laws in the relevant jurisdictions while using recording functionality. The Company disclaims all liability for the Customer’s recording of audio or shared data, and the Customer agrees to hold the Company harmless from damages or liabilities related to the recording of any audio or data. The Company does not guarantee the availability or entirety of the recording data.
The Customer’s recorded audio files may be accessed and downloaded from the Company’s authorized channel, including but not limited to online portal with one authorized static IP address provided by the Customer. The Company reverses the right to deny the access of the Customer’s recorded audio files for whatever reason. The recording files will be automatically cleared on the last day of each month unless further agreed by the Company and the Customer in writing.
11. AUDIO CONFERENCE SERVICE
11.1 Dial–in Numbers
If Company provides Customer with dial-in service numbers, Customer agrees to the following:
a) That Customer does not own the dial-in service numbers, or, network addressing information and that Customer will not transfer it to anyone else or try to do so; and
b) That Company reserves the right to withdraw or change such numbers or network addressing information without giving Customer advance notice or at the end of the Contract.
c) That Company reserves the right to reclaim any dial-in numbers provided for Services (“Dial-In Numbers”) if such Dial-In Numbers are “inactive” for 30 calendar days. The term “inactive” is defined as no usage on a specific number/service and no upcoming reservations scheduled for such number/service.
11.2 Responsibility For The Customer’s Conference Room
The Customer is responsible for maintaining the confidentiality of its audio conference room and personal identification numbers (PIN) used in accessing different conference rooms with the Services and for all uses of the Services in association with the Customer’s rooms whether or not authorized by the Customer. The Customer agrees to immediately notify the Company of any unauthorized use of its audio conference room of which the Customer becomes aware. The Company may change the PIN for the Customer upon requested.
11.3.1 The Company shall provide no warranty to Customer but will provide support services for Customer during the Service term, including 24/7 Customer Service hotline, IT support and Backup conference service standby.
11.3.2 The Customer understands and agrees that the Company’s Services are provided “As Is” and “As Available”. The Company makes no warranty or representation regarding any information, materials, goods or services obtained through Company’s Services or that Company’s Services will meet any of the Customer’s requirements or be uninterrupted, timely, secure or error free. The Company is not liable for the Company’s or omissions of other service providers, for any information or content of communications, third party services, equipment failure or causes beyond Company’s reasonable control.
12. COPYRIGHT, TRADEMARK AND UNAUTHORIZED USE.
The Service and any Equipment, firmware or software used to provide the Services or provided to Customer in conjunction with the Services, and all information, documents and materials provided or offered by the Company may be protected by trademark, copyright or other intellectual property laws and international treaty provisions. Customer is only granted a nontransferable, revocable license to use such equipment, firmware or software, information, documents and materials (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and exclusively for use in connection with the Services. Any Equipment, firmware or software, information, documents and materials provided by the Company to Customer pursuant to this Agreement shall be included in the Service Order Schedule. These terms of Services shall not be construed to grant Customer any right to use the Company‘s, or its parent company’s or Affiliates’, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “Marks”) or otherwise refer to the same in any marketing, promotional or advertising materials or activities. Customer agrees that the Company may identify Customer as a customer of the Company and recipient of the Services for the purposes of marketing the Company‘s Services. Further, Customer hereby grants the Company the right to use Customer’s logo/trademark on its website and other material solely for the purpose of advertising the sales by the Company of similar services to third parties.
13 COMMERCIAL USE
All products and Services offered hereunder are for commercial (business) use by Customer. Resale of Service, use of the equipment, products, services, hardware and software provided hereunder, whether provided by the Company at no Charge or for Charge, is prohibited and Customer shall use its best efforts to ensure that the equipment, products, services, hardware and software offered hereunder are used only for the purposes intended. Resale without the express written consent of the Company, will subject Customer to termination of this Agreement.
In addition to any other indemnification provisions herein, Customer agrees to indemnify and hold the Company, the Third Party Vendors, and the parent companies, sister companies, employees, contractors, directors, officers and shareholders of the same, harmless from and against any and all claims, liabilities, losses, judgments, damages and expenses, including without limitation attorneys’ fees and costs of litigation, incurred or suffered by such party relating to Customer’s or its Customer users acts or omissions, consumption, use and/or resale of the Service(s) and/or breach of these terms of service, including, without limitation, any claims asserted by any third party. The Company shall promptly notify Customer in writing of any claim for which it is obligated under this indemnity and for which the Company may seek indemnification.