TERMS OF SERVICE
These Terms and Conditions (hereinafter the “Service(s)” shall govern all Service Quotes, Addendum(s) to Service Quotes and any other contracts or agreements entered between 9Dash9 / 9859039 Canada Corp., hereinafter referred to as “9Dash9” and its Customers.
Service(s) means provisioning of voices services, Internet access (including Shared Bandwidth and Dedicated lines), domestic, international and toll-free termination and origination, conferencing, hosting, server collocation, hardware sales and all related customer support services.
1.1 “Software” means any computer programs or code, software applications, and any other software provided by 9Dash9 to Customer pursuant to this Agreement.
2. SERVICES AND EQUIPMENT
2.1 9Dash9 shall provide Services to Customer on the terms and conditions set forth in this Agreement. 9Dash9’s obligations under this Agreement are expressly conditioned upon Customer’s landlord granting 9Dash9 or its designated agents, contractors or representatives access to the building phone room and roof areas as necessary in 9Dash9 judgment to deliver the Services and to install and maintain equipment.
2.2 Required Equipment. Customer understands and agrees that the Service requires certain equipment provided by Customer such as a SIP access device, personal computer, an Ethernet card and an appropriate operating system (the “Customer Equipment”), as well as certain equipment provided by 9Dash9 such as the Software, an edge access device, an IP phone or SIP gateway (the “9Dash9 Equipment”). Customer represents that it owns the Customer Equipment or otherwise has the right to use such equipment in connection with the Service.
2.3 Access to Customer’s Premises. Customer authorizes 9Dash9 and its employees, agents, contractors, and representatives to enter Customer’s premises (the “Premises”) to install, maintain, inspect, alter, repair, and remove the 9Dash9 Equipment. All such services shall be conducted at a time agreed to with Customer. If Customer is not the owner of the Premises, upon 9Dash9 request Customer shall supply 9Dash9 with the owner’s name and address, evidence that the Customer is authorized to grant access to the Premises on the owner’s behalf, and (if needed) written consent from the owner of the Premises. Customer also grants its consent to 9Dash9 to contact such owner for the purpose of entering into one or more Right of Access and/or Site Lease(s). If Customer does not provide access as provided herein, 9Dash9 shall, at its option, a) declare the full amount for the entire term due and payable immediately, or b) elect to terminate this agreement.
2.4 Ownership of Equipment. All 9Dash9 Equipment and Software shall at all times remain the property of 9Dash9 or its designee. Customer may not sell, transfer, lease, encumber or assign all or part of the 9Dash9 or Software, nor shall Customer relocate the 9Dash9 Equipment outside the Premises. Customer shall pay to 9Dash9 the full manufacturer’s suggested retail price for the replacement of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered or assigned 9Dash9 Equipment or part thereof, together with any incidental costs incurred by 9Dash9 relating to the replacement of the 9Dash9 Equipment. Customer hereby authorizes 9Dash9 to charge Customer’s Visa, MasterCard, or other credit card for any such charges. 9Dash9 may, at its option, install new or reconditioned 9Dash9 Equipment.
2.5 Back-up Requirements. The installation, use, inspection, alteration, maintenance, repair or removal of the 9Dash9 Equipment and software may result in service outage or potential damage to Customer’s Equipment. If Customer does not back-up all existing computer files by copying them to another storage medium prior to such activities, Customer understands and accepts the associated risks of not making such a backup. IN ANY EVENT, 9Dash9 SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF THE CUSTOMER’S EQUIPMENT, PERIPHERALS, SOFTWARE OR DATA.
2.6 Non-recommended Configuration. 9Dash9 has informed Customer of the recommended minimum computer hardware requirements, if any, (the “Minimum Requirements”) for efficiently operating the Service. If Customer allows the installation of the Service utilizing software/hardware that does not meet the Minimum Requirements (a “Non-recommended Configuration”), Customer agrees that (i) Customer shall not be entitled to support relating to any issues other than the quality of the signal delivered to Customer’s IP phone or SIP gateway, and (ii) the following limitations of liability shall apply: 9Dash9 DOES NOT REPRESENT OR WARRANT THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE CUSTOMER TO SUCCESSFULLY ACCESS, OPERATE OR USE THE SERVICE, NOT THAT ANY SUCH INSTALLATION WILL NOT CAUSE DAMAGE TO THE CUSTOMER’S EQUIPMENT, PERIPHERALS, SOFTWARE OR DATA. 9Dash9 DOES NOT ASSUME ANY LIABILITY WHATSOEVER FOR ANY DAMAGE OR FAILURE TO INSTALL, ACCESS OR USE THE SERVICE. The foregoing limitation of liability is in addition to and shall not limit any other limitation of liability set forth in this Agreement.
3. INSTALLATION AND SOFTWARE LICENSES
3.1 Installation Process. 9Dash9 and or its agents may from time to time, supply 9Dash9 hardware/software to be installed within the customer premise as requested to deliver the service. Costs associated for the installation of services by 9Dash9 and or its agents to be defined within the Services Quote or additional quotes or addendums agreed to by the parties. Customer may choose to self-install the software, hardware and services at customer’s own risk and expense. 9Dash9 Technical and Trouble Support for customer self-installed services will be charged at the current prevailing wage for those services.
3.2 File Modification. As part of the installation process, system files on Customer’s computer may be modified. 9Dash9 does not represent, warrant nor covenant that such modifications will not disrupt the normal operations of Customer’s computer. For these and other reasons, 9Dash9 recommends, and Customer agrees, that Customer will back-up all files in accordance with Section 2.5 above prior to installation of the Service. If Customer does not back-up all existing computer files, Customer understands and accepts the associated risks of not doing so. 9Dash9 SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE RESULTING FROM THE ABOVE OR OTHER FILE MODIFICATIONS.
3.3.1 Non-exclusive License. If Software is provided, 9Dash9 grants to Customer a limited, non- exclusive license to use the Software, in object code form only, solely for the purpose of connecting Customer’s computer(s) or sip aware device to the Service. This license will permit such use by Customer and any person authorized by Customer to use the Service, provided that Customer shall be responsible for all uses of the Service as provided in this Agreement. This license will commence upon 9Dash9 acceptance of Customer’s subscription for the Service and will terminate immediately upon the expiration or termination of this Agreement for any reason. Customer will destroy all Software and any related written material, together with any copies, promptly upon the expiration or termination of this Agreement for any reason.
3.3.2 Copies. Customer may make a single copy of the Software solely for back-up purposes, provided that such copy contains the same copyright notices and proprietary markings as the original Software. Customer cannot engage in, nor permit, any other copying, or any translation, reverse engineering or reverse compiling, disassembly or modification of or preparation of any derivative works based on the Software, all of which are prohibited.
3.3.3 End User Licenses. Customer agrees to comply with the terms and conditions of all end user license agreements accompanying any software or plug-ins to such software distributed in connection with the Service. All end user licenses shall immediately terminate on the date that the Service expires or is otherwise terminated.
4.1 Fixed Monthly Service Fees. The cost for Services requiring a fixed monthly fee shall be as stated in the Service Quote and shall be payable monthly, in advance, plus all applicable taxes, tariffs, governmental assessments, surcharges and fees (collectively, the “Fixed Service Fee(s)”). The Fixed Service Fee for the first month of Service shall be due and payable prior to installation of Service and if commencement of Service occurs on other than the first calendar day of the month then the Fixed Service Fee will be prorated by the number of calendar days remaining in the month. Thereafter, the Fixed Service Fee is due and payable in advance on the first day of each month and shall be considered late if not received by 9Dash9 by the tenth calendar day of each month.
4.2 Variable Monthly Usage Fees. The cost for Services based on the usage by Customer and other variable factors shall be computed at the rates stated in the Service Quote and shall be payable monthly, using a cut-off date selected by 9Dash9 in arrears, plus all applicable taxes, tariffs, governmental assessments, surcharges and fees (collectively, the “Usage Fee(s)”). The rates for voice services set forth in the Service Quote shall be valid for the initial term, provided however, all rates for international services are subject to change at any time by 9Dash9 without prior written notice. 9Dash9 may, at its discretion, choose to adjust the rates for voice services to include the cost, if any, of tariffs, taxes or assessments as imposed upon 9Dash9 by any governmental agency. All Usage Fees are due and payable on the first day of the month billed and shall be considered late if not received by 9Dash9 by the tenth calendar day of such month. All rate changes become effective immediately and are posted on the 9Dash9 website located at www.9Dash9.com.
4.3 Installation Charge and Security Deposit. Charges for any hardware, software, installation, etc., shall be as stated in the Service Quote as a Non-Recurring Charges “NRC” and shall be due and payable upon ordering the service. An equipment deposit for 9Dash9 Equipment to be used as rental equipment within the Customer Premises shall be as stated in the Service Quote and shall be due prior to installation and shall be refunded to Customer upon termination of service, provided said 9Dash9 Equipment is returned in good working condition and in its original packaging.
4.4 Agreement to Pay. Monthly payments and any other amounts due to 9Dash9 May be charged to Customer’s Visa, MasterCard, American Express or other credit card, and/or electronically debited to Customer’s bank account, at Customer’s option. Customer agrees to pay all monthly Service Fees, Usage Fees, Installation Charges, NRC’s and Equipment Deposits. Customer hereby authorizes 9Dash9 to charge Customer’s Visa, MasterCard or other credit card and/or to electronically debit Customer’s bank account for all such fees, charges, taxes and payment transaction processing costs. 9Dash9 reserves the right to change the acceptable forms of payment at its discretion.
4.5 Late Payments/Failure to Pay. If any payment due to 9Dash9 is not received within 10 days of due date, an administrative charge of 5% of the amount due may be assessed and the Service may be discontinued.
4.6 If the Service is discontinued, Customer will be required to pay a reconnect fee of $150.00 in addition to all past due amounts before the Service is reconnected. The administrative charge is intended to be a reasonable advance estimate of 9Dash9 costs resulting from Customer’s late payments and non-payments, and is set in advance due to the difficulty inherent in determining the costs associated with any particular late payment or non- payment. 9Dash9 does not anticipate that Customer will fail to make payments on a timely basis. 9Dash9 does not extend credit to its Customer, and the administrative charge is not interest, a credit service charge nor a finance charge. In the event 9Dash9, at its sole discretion, elects to use the services of a third-party collection agency, the costs of such third-party collection agent shall be paid by the Customer.
4.7 Price Changes. 9Dash9 has the right to change its Service Fee at any time and upon 30 days’ notice unless otherwise stated in the Service Quote.
4.8 Additional Charges. The Service may allow Customer to access the Internet, on-line services and other information. Customer acknowledges that Customer may incur charges while using the Service in addition to those billed by 9Dash9. For example, Customer may incur charges because of accessing certain on-line services or purchasing or subscribing to certain other offerings. Customer agrees that all such charges, including all applicable taxes, are the sole responsibility of Customer.
4.9 Credit Inquiries. Customer authorizes 9Dash9 to make inquiries and to receive information about Customer’s credit experience from others, enter this information in Customer’s file, and disclose such information concerning Customer to appropriate third parties for reasonable business purposes. 9Dash9 reserves the right, in its sole discretion, to refuse to provide Service based upon lack of creditworthiness, or in the alternative to require a security deposit that will be returned to Customer, without interest thereon, upon the expiration or termination of Services assuming all amounts due 9Dash9 have been paid in full. 9Dash9 shall have the right to offset against the security deposit, in part or in full, for any amounts due 9Dash9.
4.10 Prepayment. Credit Limit: Customer’s initial credit limit hereunder shall be $0.00 USD (the “Credit Limit”). If Customer’s billed and unbilled charges for the Services are projected to exceed its Credit Limit (based on Supplier’s measurement of Customer’s daily usage run rate), or does exceed, its Credit Limit, Supplier may, at any time require security of its choice from Customer in an amount equal to Customer’s projected Billing Cycle usage run rate as a condition to continuing to provide the services. Invoice/Due Date/Payment Requirements: Usage Charges shall be invoiced monthly. Invoices shall be sent electronically to Company’s specified email address listed in Service Order. All undisputed Usage Charges under this Agreement shall be due and payable by Company to 9Dash9, without demand, two (2) days after the invoice date (the “Due Date”). Payment of undisputed charges shall be in immediately available funds paid via wire transfer to the financial institution specified in Attachment Notification Information. Each Party shall be responsible for all transaction charges assessed by, or on behalf of, its own bank.
5. CUSTOMER CONDUCT
5.1 Prohibited Uses. Customer shall not use the Service or the 9Dash9 Equipment, directly or indirectly;
5.1.1 for any unlawful purposes; use of the Service for transmission or storage of any information, data or material in violation of any United States federal, state or local regulation or law is prohibited, such limitation shall include, without limitation, posting or disseminating content which is obscene, unlawful, threatening, defamatory, or infringes upon the intellectual property rights of any third party;
5.1.2 to post, transmit or disseminate objectionable information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law or regulation;
5.1.3 to access any other person’s computer, software or data without the knowledge and consent of such person;
5.1.4 to upload, post, publish, transmit, reproduce, create derivative works of, or distribute in any way, information, software or other material obtained through the Service which is protected by copyright or other proprietary rights without obtaining permission from the owner(s);
5.1.5 to copy, distribute, or sub-license any software provided by 9Dash9 except that Customer may make one copy of each software program for back-up purposes only;
5.1.6 to service, alter, modify or tamper with the 9Dash9 Equipment or Service or permit any other person to do the same unless such person is authorized by 9Dash9 to do so;
5.1.7 to restrict, inhibit or otherwise interfere with the ability of any other person to use or enjoy the Service, including, without limitation, posting or transmitting any information or software which contains a virus or other harmful feature, or generating levels of traffic sufficient to impede others\’ ability to send or retrieve information;
5.1.8 to knowingly disrupt the Service;
5.1.9 to resell the Service or otherwise charge others to use the Service; the Service is for personal use only and Customer agrees not to use the Service for operation as an Internet service provider or for any other business enterprise in competition with the Service;
5.1.10 to connect the SIP gateway to any computer outside of Customer’s Premises;
5.1.11 to allow or provide access to adult content material to anyone under the age of 18 years.
5.1.12 Fair Usage Policy. Calls to land lines and mobile devices are included in your subscription and subject to a fair usage limit of 1,000 minutes per subscriber line (sip trunk) per month. Upon exceeding the fair usage limit, 9Dash9 reserves the right to charge a rate of $0.015 per minute for any overages. In the case of US only bundled trunking services, rates (outside the U.S. and Canada) are charged at the current international rates listed at 9dash9.com/rates as applicable. 9Dash9 reserves the right to change this fair usage policy at any time. Your continued use of your subscription after expiry of the 30-day period shall constitute your acceptance to be bound by the terms and conditions of the 9Dash9 fair usage policy.
5.1.13 Call Flooding. To protect the integrity if its network, 9Dash9 may in its reasonable discretion, and without liability for damages of any type to Customer, its affiliates or End Users, temporarily block duplicate or repeated numbers dialed in succession, where 9Dash9 considers the number of attempts to be potentially harmful to the network. Termination. 9Dash9 reserves the right to immediately terminate this Agreement and the Service if Customer engages in any of the activities listed in Section 5.1 above or if Customer uses the Service or 9Dash9 Equipment contrary to any other 9Dash9 policy. Copies of such policies may be posted online at www.9Dash9.com.
5.2 This Section shall in no way limit 9Dash9 rights of termination pursuant to Section 7.2 of this Agreement. Customer agrees to indemnify, defend and hold harmless 9Dash9 against all claims and expenses (including reasonable attorneys’ fees) resulting from Customer’s use of the Services, including, without limitation, the activities listed in Section 5.1 above, or from any other violation of 9Dash9 policies by Customer. This provision shall survive the expiration or other termination of this Agreement.
6. SERVICE LEVEL COMMITMENT
6.1 Unless otherwise specified in a specific Rider, 9Dash9 will provide the following Up-Time commitments:
Core Services: 99.99%
Core services include all mission critical capabilities of the 9Dash9 platform needed to maintain overall call processing, including the ability route calls from Subscribers to a provider of PSTN termination and the ability to receive originating calls from a DID origination provider and route them to a Subscribers SIP device, or to Subscriber’s voicemail or any other system prompt or action as configured by Customer.
Supporting Services: 99%
Supporting services includes all non-mission critical capabilities of the 9Dash9 platform including Management Portals, Device Provisioning capabilities, and other back office management systems. Down-time is calculated from the time in which customer notifies 9Dash9 of an outage, until the time at which the service is reestablished. Downtime does not include outages that occur as a result of scheduled maintenance events.
Service Level performance commitment:
If uptime is below the agreed level of availability for the Service, the Customer is entitled to a credit in an amount equivalent to a percentage of the monthly recurring fee. The credit will be for the specific month for which the Service Level Goal was not met.
Service Level performance
95.1% – 95.9 % equals a 5% credit of monthly invoice
Below 95% equals a 10% credit of monthly invoice
Customer shall submit a claim for a Service Level credit no later than the end of the calendar month following the month for which the event occurred.
A customer is not entitled to receive a service credit in the following cases:
• If any downtime was caused by customer initiated actions whether implemented by customer or by 9Dash9 • If any downtime was caused by misuse by the customer and not a failure on the underlying network and physical host infrastructure directly and solely managed by 9Dash9 • If any downtime was due to Scheduled Maintenance and within the defined Maintenance Window announced • If any downtime was due to a Force Majeure event • If the customer had his account suspended for any day of the month under analysis caused by non-payment of the any fees • Downtime due to the acts or omissions of the customer, its employees, agents, third party contractors or vendors • If the downtime was caused by violations of the 9Dash9 Acceptable Use Policy. • Any event or condition not wholly within the control of 9Dash9.
Full Credit. Except as otherwise required by law, Customer is entitled to a full credit upon request only in the event of a complete failure of the Service due to technical malfunction of the system or network operated by 9Dash9 for a period of twenty-four (24) consecutive hours or more. To obtain a credit, Customer must request a credit in writing to 9Dash9 within thirty (30) days of the failure. Credits shall be applied against future fees payable by Customer for the Service.
6.2 Force Majeure. 9Dash9 shall have no liability, including as set forth in this Section, for interruption of the Service due to circumstances beyond 9Dash9 control, including, without limitation, acts of God, flood, natural disaster, regulation or governmental acts, fire, civil disturbances, strike or weather.
7. AUTOMATIC RENEWAL AND TERMINATION
7.1 Termination by Customer. The Terms of this Agreement shall be as stated in the Services Quote beginning on the date of Installation and shall automatically renew for a period equal to the initial term on each anniversary unless written notice of cancellation is received by 9Dash9 sixty (60) days prior to the end of each Term For all other Services billed by a Fixed Service Fee, Customer may only terminate prior to the end of the Term stated in the Services Quote by giving written notice to 9Dash9 and by payment of a Fixed Service Fee Termination Amount equal to the number of months remaining in the Term times the amount of the monthly Fixed Service Fee (“Fixed Service Fee Termination Amount”). For Services billed pursuant to Usage Fees Customer may only terminate prior to the end of the Term stated in the Service Quote by giving written notice to 9Dash9 and by payment of a Usage Fee Termination Amount equal to the number of months remaining in the Term times the average of the prior three (or if less than three months have elapsed, using the actual number of months elapsed) month’s Usage Fees (“Usage Fee Termination Amount”). All such types of Termination Fees described herein shall collectively or individually be known as Termination Fee(s). ANY TERMINATION NOTICE RECEIVED BY 9Dash9 WHICH IS NOT ACCOMPANIED BY THE PAYMENT OF THE APPLICABLE TERMINATION FEE SHALL BE NULL AND VOID;
7.2 Termination by 9Dash9 may terminate this Agreement immediately should Customer violate any of the terms of this Agreement. 9Dash9 may also terminate this Agreement for any other reason by providing Customer with written notice of such termination no later than thirty (30) days before the date of termination. In the event that 9Dash9 terminates this Agreement for any reason other than Customer’s violation of the provisions of Section
5.1, Service Fees and other charges will continue to accrue through the date of termination, but all prepaid Service Fees and charges for cancelled Service will be refunded. If termination is due to violation of the provisions of Section
5.1, the termination amount will be equal to the number of months remaining in the Term times the amount of the monthly Fixed Service Fee;
7.3 Customer Obligations. Customer agrees that upon termination of this Agreement;
7.3.1 Customer will pay 9Dash9 in full for Customer’s use of the Service and 9Dash9 Equipment up to the later of (i) the effective date of termination of this Agreement or (ii) the date on which the Service and the 9Dash9 Equipment have been disconnected and returned to 9Dash9 Customer agrees to pay 9Dash9 on a prorated basis for any use by Customer of the Service or 9Dash9 for a part of a month;
7.3.2 Customer will permit 9Dash9 its employees, agents, contractors and representatives to access Customer’s Premises during regular business hours to remove the 9Dash9 Equipment and other materials furnished.
7.3.3 Customer will ensure the return of all 9Dash9 Equipment to 9Dash9 Customer will return or destroy all copies of any software provided to Customer pursuant to this Agreement. If the 9Dash9 Equipment is not returned, Customer agrees to pay the charges referred to in Section 2.4 above and 9Dash9 shall have the right to charge such amounts to Customer’s Visa, MasterCard or other credit card, or to electronically debit Customer’s bank account;
7.3.4 Non-Appropriations. Customer intends to continue this Agreement for its entire Term and to satisfy its obligations hereunder. For each fiscal period for Customer: (a) Customer agrees to include in its budget request appropriations sufficient to cover Customer’s obligations under this Agreement; (b) Customer agrees to use all reasonable and lawful means to secure these appropriations, including but not limited to applying for Universal Service Fund Discounts as described in the Federal Communications Commission Docket No. 96-45; (c) Customer agrees it will not use non-appropriations as a means of terminating this Agreement in order to acquire functionally equivalent products or services from a third party. Customer reasonably believes that sufficient funds to discharge its obligations can and will lawfully be appropriated and made available for this purpose. In the event that Customer is appropriated insufficient funds, by appropriation, appropriation limitation or grant, to continue payments under this Agreement and has no other funding source lawfully available to it for such purpose (as evidenced by notarized documents provided by Customer and agreed to by 9Dash9), Customer may terminate this Agreement without incurring an Early Termination Charge by giving 9Dash9 not less than 30 days’ prior written notice. Upon termination and to the extent of lawfully available funds, Customer will remit all amounts due and all costs reasonably incurred by 9Dash9 through the date of termination.
7.3.5 Customer, upon request by 9Dash9 made not more frequently than monthly, shall provide information regarding the number of desktop and/or portable computers connected to the 9Dash9 Services during any month.
7.4 Retention of Rights. Nothing contained in this Agreement shall be construed to limit 9Dash9 rights and remedies available at law or in equity. Customer, upon request by 9Dash9 shall provide information in a timely fashion regarding the brand/model of phone system(s), the number of desktop, portable or mobile devices and/or applications (apps) connected to the 9Dash9 Service. 9Dash9 reserves the right to delete all data, files, electronic messages or other information any reason arising out of or related in any way to the use of the Service and/or 9Dash9 Equipment by Customer or otherwise arising out of the use of Customer’s computer.
7.5 Survival. The terms set forth in Sections 2,3, and 4 shall survive the termination of this Agreement.
There may be some content on the Internet or otherwise available through the Service which may be offensive to some individuals or which may not be in compliance with all local, state, or federal laws, regulations, and other rules. 9Dash9 assumed no responsibility for the content contained on the Internet or otherwise available through the Service. All content accessed by the Customer through the Service is access and used by the Customer at Customer’s own risk and 9Dash9 and each of its representatives, affiliates, subcontractors, employees, and agents, shall have no liability whatsoever for any claims, losses, actions, damages, suits, or proceedings arising out of or otherwise relating to access to such content by the Customer or the Customer’s employees, affiliates, agents, or representatives. 9Dash9 specifically disclaims any responsibility for the accuracy, quality, and confidentiality of information obtained through the Service.
Customer acknowledges that Customer is executing this Agreement on behalf of all persons who use the Service and/or 9Dash9 Equipment through Customer’s computer(s), phone systems, PBXs and other telecommunications equipment. Customer shall have sole responsibility for ensuring that all such other users understand and comply with the terms and conditions of this Agreement. Customer further acknowledges and agrees that Customer is solely responsible and liable for any and all breaches of the terms and conditions of this Agreement whether such breach is the result of use of the Service and/or the 9Dash9 Equipment by Customer or any other user of Customer’s computer(s), phone systems, PBXs and other telecommunications equipment. Customer agrees to indemnify, defend and hold harmless 9Dash9 against all claims and expenses (including reasonable attorneys\’ fees) arising out of the use of the Service and/or 9Dash9 Equipment by any other user of Customer’s computer(s), phone systems, PBXs and other telecommunications equipment.
10.1 Exclusions. UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT OR OTHERWISE PROHIBITED BY LAW, NEITHER 9Dash9 IT’S OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, NOR ANY OWNER OR MANAGER OF THE BUILDING OR LAND IN WHICH CUSTOMER’S PREMISES IS LOCATED SHALL HAVE ANY LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR:
10.1.1 ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, THE USE OF THE SERVICE BY CUSTOMER OR ANY OTHER USE OF THE 9Dash9 EQUIPMENT OR SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE RESULTING FROM OR ARISING OUT OF CUSTOMER’S RELIANCE ON OR USE OF THE SERVICE OR 9Dash9 EQUIPMENT OR SOFTWARE, OR THE MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION OR ANY FAILURE OF PERFORMANCE OF THE SERVICE OR 9Dash9 EQUIPMENT OR SOFTWARE; OR
10.1.2 ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS (INCLUDING LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE 9Dash9 EQUIPMENT OR SOFTWARE, OR SERVICE OR A THIRD PARTY INFRINGES UPON THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY.
10.2 Application. The liability limitations set forth in this Section 10 apply to the acts, omissions and negligence of 9Dash9 (and its officers, directors, employees, agents, contractors and representatives) which, but for this provision, would give rise to a cause of action in contract, tort or any other legal doctrine. However, the liability limitations set forth in this Section 10 shall apply to liability for personal injury or death only to the extent applicable law does not prohibit such limitation.
10.3 No Third Parties. No third-party owner or manager of Customer’s building or land is a party to this Agreement. Thus, no such owner or manager shall be responsible for, nor shall be liable for, the quality of the Service or 9Dash9 Equipment.
10.4 Sole Remedies. Customer’s sole and exclusive remedies under this Agreement are as set forth in this Agreement.
11. E911 – The Federal Communications Commission (“FCC”) requires that 9Dash9 provide E911 Service to all customers who use 9Dash9 Services within the United States.
11.1 CUSTOMER ACKNOWLEDGES THAT 9Dash9 EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL LAND LINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 10 AND CUSTOMER HEREBY AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICES, WHO MAY PLACE CALLS USING CUSTOMER’S SERVICES, OF THE 911 LIMITATIONS DESCRIBED HEREIN. CUSTOMER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT 9Dash9 HAS ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH 9Dash9 E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. 9Dash9 ADVISES CUSTOMER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
11.2 CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
11.3 CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION PROPERLY IF THERE IS AN INTERRUPTION OR A LACK OF BANDWIDTH OF CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
11.4 CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUT DIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. CUSTOMER HEREBY WAIVES ALL CLAIMS AGAINST 9Dash9 FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
11.5 9Dash9 E911 SERVICE IS A MANDATORY COMPONENT OF ALL INBOUND/OUTBOUND FAX AND VOICE SERVICE PLANS. E911 SERVICE IS NOT OFFERED ON INTERNATIONAL NUMBERS, TOLL FREE NUMBERS OR SIMILAR SERVICE ACCESSORIES OR ADD-ON PLANS. E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. CUSTOMERS WHO SUBSCRIBE TO 9Dash9 E911 SERVICE WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF THEIR EQUIPMENT (ATA or IP PHONE) WITH 9Dash9 EITHER ON THE 9Dash9 USER PORTAL, INITIAL ORDER FORMS OR BY CALLING CUSTOMER SERVICE, AND AGREE TO UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES. CUSTOMER ACKNOWLEDGES THAT 9Dash9 ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY REGISTERED FOR THE ACCOUNT. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY 9Dash9 WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO 9Dash9 BY CUSTOMER.
11.6 CUSTOMER ALSO ACKNOWLEDGES THAT 9Dash9 E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE 9Dash9 E911 SERVICES UNSUITABLE FOR SOME CUSTOMERS. BECAUSE EACH CUSTOMER’S CIRCUMSTANCES MAY VARY WIDELY, CUSTOMERS SHOULD CAREFULLY EVALUATE THEIR OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON 9Dash9 E911 SERVICE. CUSTOMER ACKNOWLEDGES THAT IT IS CUSTOMER’S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET CUSTOMER’S EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH 9Dash9 E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
** 9Dash9 E911 SERVICE WILL NOT FUNCTION IF CUSTOMER’S ATA or IP PHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF CUSTOMER’S 9Dash9 SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, CUSTOMER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE 9Dash9 SERVICE, INCLUDING FOR E911 PURPOSES.
** AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY CHANGE OF AND UPDATE TO CUSTOMER’S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO 9Dash9 NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
** THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING 9Dash9 E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE 9Dash9 E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE 9Dash9 NETWORK, THERE IS A POSSIBILITY THAT A 9Dash9 E911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
** IF A CUSTOMER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE 9Dash9 EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
11.7 CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT 9Dash9 WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING 9Dash9 OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS 9Dash9 ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
Indemnification Obligation. Customer shall defend (with counsel reasonably acceptable to 9Dash9 indemnify and hold harmless 9Dash9 and 9Dash9 officers, directors, employees, agents, contractors and representatives from and against any and all claims and expenses, including reasonable attorneys’ fees).
Customer agrees that 9Dash9 and/or its agents may, from time to time, collect information regarding Customer’s use of the Service and activities on the Internet. Customer agrees that such information may be shared with third parties provided that (i) 9Dash9 does not disclose any personally identifiable information to others except, as allowed by law and (ii) otherwise complies with applicable privacy laws. Customer expressly grants 9Dash9 the right to disclose information relating to Customer and/or Customer’s account in response to a subpoena issued in a civil or criminal investigation, litigation, court order or a civil investigation by a governmental entity.
14. FRAUDULENT CALLS
In the event Customer connects the Services to the public switched network, Customer is solely responsible for selection, implementation and maintenance of security features for protection against unauthorized calling, and 9Dash9 shall have no liability therefore. Customer is solely responsible for payment of long distance, toll and other telecommunications charges incurred through use of the Services being provided here under. Customer shall indemnify and hold 9Dash9 harmless from all costs, expenses, claims or actions arising from fraudulent calls of any nature carried by means of the Services. Customer shall not be excused from paying 9Dash9 for Services provided to Customer or any portion thereof on the basis that fraudulent calls comprised a corresponding portion of the Services. In the event 9Dash9 discovers fraudulent calls being made, nothing contained herein shall prohibit 9Dash9 from taking immediate action, without notice to Customer that is reasonably necessary to prevent such calls from taking place. Notwithstanding, it is understood that 9Dash9 is under no obligation to investigate the authenticity of calls charged to Customer’s account and shall not be liable for any fraudulent calls processed by 9Dash9 and billed to Customer’s account.
15.1 Controlling Law; Venue. The validity, performance, and of this Agreement will be governed and construed in accordance with the laws of the United States and the state of Colorado, without regard to its conflicts of law provisions. The parties will voluntarily appear before and hereby consent and submit to the exclusive jurisdiction of the state and federal courts located in Denver, CO. If any dispute, litigation, or other action arises between the parties with respect to the matters covered by this Agreement, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys\’ fees, expert witness fees and out of pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
15.2 Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally, (ii) by commercially established courier service upon delivery or, if the courier attempted delivery on a normal business day and delivery was not accepted, upon attempted delivery, (iii) by facsimile transmission when confirmed by facsimile transmission, or (iv) by certified or registered mail, return receipt requested, ten (10) calendar days after deposit in the mail. Such notices shall be sent to the addresses set in the Services Quote or such other address as a party hereto shall notify the other party of in writing to 9Dash9: 4901 E. Dry Creek Rd. #170, Centennial, CO 80122 Telephone: 866.725.9975 Email: support@9Dash9.com Attention: Billing Dept.
15.3 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
15.4 Headings. The headings in this Agreement are inserted for convenience and do not constitute a part of the Agreement, nor modify or limit any of the terms.
15.5 Waiver; Amendment; Modification. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by the party against whom such waiver or consent is asserted. The waiver by either party of, or consent of either party to, a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach by the other party. This Agreement may be amended or modified only by mutual agreement of authorized representatives of the parties in writing.
15.6 Enforceability of Provisions. To the extent any provision or portion of this Agreement is determined to be invalid, illegal or unenforceable, such provision or portion shall be severed or deleted from this Agreement or limited so as to give effect to the intention of the parties insofar as possible. The invalidity or unenforceability of any provision or portion hereof shall not affect the validity or enforceability of any other provision or this Agreement as a whole.
15.7 Assignment. 9Dash9 may assign its rights and obligations under this Agreement to any party without the consent of Customer. Customer may not assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of 9Dash9.
15.8 Entire Agreement. This Agreement, including the Services Quote and attachments hereto, constitutes the entire agreement between the parties regarding its subject matter. This Agreement supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. No other representation, warranty, term or condition, other than as expressly set forth in this Agreement, shall be binding on 9Dash9.