TERMS AND CONDITIONS
TERMS AND CONDITIONS
PLEASE READ THESE TERMS & CONDITIONS (“TERMS”) CAREFULLY BEFORE YOU USE ANY EQUIPMENT OR SERVICES PROVIDED BY INTERACTIVETEL, LLC, DBA TOTALCX (“TOTALCX”). THESE TERMS SHALL APPLY TO ANY AGREEMENT (WRITTEN OR ORAL) BETWEEN TOTALCX AND CUSTOMER (“SUBJECT AGREEMENT”). UNLESS TOTALCX AGREES TO A SPECIFIC MODIFICATION TO THESE TERMS, THESE TERMS SHALL GOVERN ALL EQUIPMENT AND/OR SERVICES PROVIDED BY TOTALCX WHICH ARE UTILIZED BY YOU (“CUSTOMER”). YOUR ACKNOWLEDGEMENT OF THESE TERMS, EITHER ELECTRONICALLY OF BY WRITTEN SIGNATURE TO A SUBJECT AGREEMENT, IS AN ACKNOWLEDGEMENT THAT YOU, CUSTOMER, HAVE READ AND UNDERSTAND EACH OF THE TERMS AND CONDITIONS STATED IN THESE TERMS AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE EQUIPMENT OR SERVICES.
These Terms shall govern all matters related to TotalCX’s provision of services, including, but not limited to, Internet Access Services, Voice Over IP / Video Over IP, Wide Area Networking, Server Co-Location, training and consulting (“Services”) and all equipment related to the provision of Services or otherwise provided by TotalCX to Customer (“Equipment”), regardless of whether such use of Equipment or Services are ongoing.
- Confidential Information; Non-Solicitation.
1.1 Confidentiality. Customer acknowledges and agrees that its access to the Services and use of the Equipment contains confidential or proprietary information of TotalCX (“Proprietary Information”). Customer agrees that it shall maintain in confidence the Proprietary Information of TotalCX with the same standard of care which the Customer uses to safeguard its own proprietary information, but in no event less than reasonable care, regardless of the Proprietary Information marked or identified as confidential or proprietary when first disclosed. The obligations herein will not apply to any Proprietary Information which (i) is or becomes available to the public other than by breach of these Terms by Customer, (ii) is lawfully received by the Customer from a third party without confidentiality limitations, or (iii) is known to the Customer without any restriction as to use or disclosure prior to first receipt of same from TotalCX.
1.2 Non-Solicitation of Employees. During the term in which Services or Equipment are provided by TotalCX to Customer and for a period of six (6) months thereafter, each Customer agrees that, without TotalCX written consent, neither it nor any of its affiliates, subsidiaries, employees or representatives shall directly or indirectly solicit, hire or otherwise retain as an employee or independent contractor any person who, during the previous twelve (12) months, was an employee of TotalCX. Notwithstanding the foregoing, nothing in this Section 1.2 shall be construed to prohibit Customer from hiring any employee who, without solicitation or recruitment by the hiring party, responds to a general advertisement for employment in a newspaper or other media circulated to the public.
- Payment Terms.
Unless otherwise agreed by Subject Agreement, Payment for all non-recurring fees (including any early termination charge) shall be due in full within ten (10) days of the date on our invoice for such non-recurring fees. Payment for monthly fees are due in full within ten (10) days of the date on the respective monthly invoices. In addition, Customer shall pay all applicable taxes associated with the Services and Equipment, including but not limited to taxes on sales, use, and property, unless you provide us with a tax exemption certificate. Delinquent payments on any undisputed balance are subject to a late payment charge of the lower of one and one-half percent (1.5%) per month or portion thereof, or the maximum amount allowed by law. If Customer disputes any of the charges on the invoice, it must notify TotalCX immediately but in no event more than thirty (30) days of the date on our invoice. We may terminate any or all Services and remove all Equipment, without additional notice, if payment is not received when due. Without limiting the generality of the above, you agree to reimburse us for reasonable attorney’s fees and any other reasonable costs associated with collecting delinquent payments.
TotalCX products for specified dealership locations are selected based on average monthly sales provided by the Customer. A quarterly review of the average monthly sales will be conducted by TotalCX to ensure the product selected continues to be suitable and cost effective for both parties. At such time, where applicable, adjustments to the product selection will be discussed with the Customer and an amendment to this contract reflecting the mutually agreed upon product selection will be sent to the Customer for signature.
3.1 Installation and Ownership. All Equipment provided by TotalCX to Customer is and shall remain the sole and exclusive property of TotalCX. TotalCX and its agents reserve the right to file UCC Financing Statements at its sole discretion. TotalCX shall install the Equipment as soon as reasonably practicable after the execution of an agreement by Customer, provided that Customer shall cooperate in good faith in connection with such installation, including, but not limited to, obtaining any right, license, permit, easement, or right-of-way necessary and reasonable to install the Equipment and any associated wiring or Equipment.
3.2 Repair and Replacement. Customer and its agents shall not repair or tamper with the Equipment or remove the Equipment from the premises where it is installed or permit any third party from doing any of the preceding without TotalCX‘s prior written consent. In the event any theft, loss, or damage (excluding normal wear and tear) of the Equipment occurs while the Equipment is in your possession (including any of your employees, agents, or representatives) or installed at your premises, regardless of when or how such theft, loss, or damage occurs, Customer shall pay to repair or replace (at TotalCX’s option) the Equipment. For all Equipment lost or damaged beyond repair, Customer shall pay TotalCX the greater of the market price or the actual replacement cost for new Equipment when such Equipment is lost or damaged.
3.3 Liens. Customer shall make timely payments to all workmen, material, and other contractors. Customer shall take any and all other actions necessary to keep the Equipment free from third-party liens caused by the action or inaction of the Customer. If a third-party lien attaches to the Equipment as a result of any action or inaction of Customer, then TotalCX may (but shall not be obligated to) make any payment necessary to discharge the lien, and Customer shall promptly pay TotalCX the amount so paid, together with damages, reasonable attorney’s fees, witness fees, and court costs that TotalCX incurs because of the lien or its discharge.
3.4. Upon completion of the agreement, the Total Track server will be shipped back to TotalCX by the Subscriber, within 15 days of the agreement’s end date. A shipping label will be provided to the Subscriber. If TotalCX has not received confirmation of shipment within 15 days after the completion of the agreement, billing will continue until the server is shipped and TotalCX receives confirmation from the Carrier.
- Acceptable Use.
4.1 Customer agrees that it shall abide by TotalCX operating policies, which may be amended from time to time at TotalCX’s sole discretion, and Customer agrees to indemnify, hold harmless and defend TotalCX against any claims arising from a Customer Parties’ failure to follow these guidelines:
- Not to post or transmit any message anonymously or under a false name.
- Not to post or transmit any message which is libelous, defamatory or which discloses private or personal matters concerning any person.
- Not to post or transmit any message, data, image or program that is illegal.
- Not to post or transmit any message, data, image or program that would violate the intellectual property rights of others.
- Not to interfere with use of the internet by any other TotalCX customers or other users.
- Not to post or transmit any file which contains viruses, worms, “Trojan horses” or any other destructive features, regardless of whether damage is intended or unintended by Customer.
- Not to post or transmit any message that is harmful, threatening, abusive or hateful.
- Not to list or send unsolicited mass e-mailings.
- Customer agrees that its account shall be used solely by Customer, regardless of whether or not Customer has actual control over the acts of third parties. Customer agrees that it has the last clear chance to avoid usage by third parties, and Customer indemnifies and holds TotalCX harmless for their usage.
4.2 System Security. Customer is prohibited from utilizing our services to compromise our security or to tamper with our system resources or accounts on any of our computers, routers, terminal servers, modems, or other equipment at our site or any other. Use or distribution of tools designed for compromising security is prohibited. Examples of the tools include, but are not limited to, password guessing programs, cracking tools, or network probing tools. Any attempt to access our corporate assets is strictly prohibited. In order to assist in resolving security incidents, TotalCX reserves the right to release your name to other system administrators. TotalCX will also fully cooperate with law enforcement officials in investigating suspected violations, and Customer agrees to the release of any information of Customer by TotalCX that it deems necessary to comply with such investigation.
- Offensive or Adult Materials.
5.1 TotalCX does not endorse adult content material of any kind. Otherwise, TotalCX exercises no control over the content of materials, including but not limited to email, chat sessions, usenet news postings, web pages or other content produced by users/subscribers, accessed through the internet, including via TotalCX’s network. Some materials may be defamatory, inaccurate, abusive, obscene, profane, sexually oriented, threatening, racially offensive, discriminatory, or illegal and may be offensive to certain groups of individuals. IF CUSTOMER ALLOWS A CHILD UNDER 18 YEARS OF AGE TO ACCESS SERVICE TO TOTALCX’S NETWORK THROUGH CUSTOMER’S ACCOUNT, A PARENT OR LEGAL GUARDIAN MUST AUTHORIZE SUCH USE VERIFYING THAT THE PARENT OR LEGAL GUARDIAN UNDERSTANDS THAT THE CHILD WILL HAVE ACCESS TO SUCH MATERIALS AND THAT TOTALCX ACCEPTS NO RESPONSIBILITY OF MONITORING AND AND/OR CONTROLLING SUCH ACCESS.
5.2 Customer shall not to publish on or through TotalCX’s network any such offensive material described above, or to conduct business, activities or solicit activities prohibited by law.
5.3 If Customer is operating websites or online services directed to children or operators of websites or online services who have actual knowledge that the person from whom they seek information is a child, agrees:
5.3.1 To post prominent links on their websites to a notice of how they collect, use, and/or disclose personal information from children;
5.3.2 To notify parents that they wish to collect information from their children and obtain parental consent prior to collecting, using, and/or disclosing such information;
5.3.3 Not to condition a child’s participation in online activities on the provision of more personal information than is reasonably necessary to participate in the activity;
5.3.4 To allow parents the opportunity to review and/or have their children’s information deleted from the operator’s database and to prohibit further collection from the child; and to establish procedures to protect the confidentiality, security, and integrity of personal information they collect from children.
5.4 Customer, by agreeing to these Terms, releases TotalCX from all claims, including but not limited to those under the Children’s Online Privacy Protection Act (15 U.S.C. 6501 et seq), arising from Customer’s and other individuals’ exposure to material that you or such other individuals may find offensive.
- TotalCX’s Monitoring and Termination Rights.
6.1 Customer acknowledges that TotalCX cannot and does not screen content provided by any internet users of the Services, however, the parties agree that TotalCX has the right, but not the obligation, to remove from its server or block access over the internet to any communications and materials that TotalCX believes, in its sole and absolute discretion, violate any of the policies enunciated in these Terms, or any laws of any jurisdiction served by TotalCX. Customer also agrees that TotalCX may, in its sole discretion, terminate Customer’s account for any violation of the policies enunciated in these Terms.
6.2 TotalCX may disclose information regarding Customer’s use of the Services to comply with applicable laws, including without limitation the Electronic Communications Privacy Act (18 U.S.C. 2701 et seq.), to comply with appropriate government requests, to operate TotalCX systems properly or to protect TotalCX or its customers.
6.3 TotalCX will cooperate with law enforcement authorities in investigating suspected illegal activity. TotalCX reserves the right to report to law enforcement any suspected illegal activity of which it becomes aware.
6.4 If TotalCX receives a complaint or otherwise becomes aware of any possible violation of these Terms, it may, in its sole discretion, initiate an investigation. Customer agrees to cooperate with any such investigation.
6.5 Customer agrees that Customer may be liable for any damage to TotalCX, TotalCX’s Equipment, or TotalCX’s system that is associated with the delivery of the Services as well as any damage to third parties, in the event Customer or its officers, directors, managers, shareholders, members, owners, employees, agents, affiliates, or representatives engage in any conduct that is commonly referred to as access violations (hacking/cracking), data theft, spamming, mass emailing, junk emailing, “mail bombing,” “news-bombing,” automated bulk mailing of messages, content or communications or any other prohibited activity listed in these Terms.
6.6 WHEN USING SERVICES, DATABASES, COMPUTER SYSTEMS OR WEBSITES OF OTHERS PROVIDED VIA TOTALCX’S NETWORK, CUSTOMER AGREES TO COMPLY WITH ANY OF THEIR COPYRIGHT, TRADEMARK, PATENT, STATUTORY, COMMON LAW OR PROPRIETARY RIGHTS.
TOTALCX RESERVES THE RIGHT TO SUSPEND OR CANCEL SERVICE OR USE OF EQUIPMENT TO YOU (IN WHOLE OR IN PART) OR TO TAKE OTHER APPROPRIATE ACTION AT OUR SOLE DISCRETION, WITHOUT NOTICE, FOR VIOLATIONS OR SUSPECTED VIOLATIONS OF THESE TERMS OR THE POLICIES HEREIN. REFUNDS OR CREDITS WILL NOT BE ISSUED IN CONNECTION WITH ANY SUCH SUSPENSION OR CANCELLATION (EVEN IF NO VIOLATION IS ULTIMATELY FOUND).
- Third Party Transactions at Customer’s Peril.
Customer acknowledges and agrees that TotalCX does not operate, control or endorse any information, products or services on the internet, and that any entities that do offer such information, products or services are not affiliated with TotalCX. TotalCX shall not be liable to Customer or any third party for any cost or damage arising either directly or indirectly from any transaction involving third parties’ information, products or services.
- Downloading of Data or Files at Customer’s Peril.
Customer acknowledges and agrees that TotalCX cannot and does not guarantee or warrant that files available for downloading through certain Services will be free of infection, viruses, worms, trojan horses or other code that manifests contaminating or destructive properties. Customer acknowledges and agrees that it shall be solely responsible for implementing sufficient procedures to satisfy Customer’s particular requirements for accuracy of data input and output, and for maintaining a means external to TotalCX for the reconstruction of any lost data. Customer acknowledges and expressly recognizes that the internet contains unedited materials, some of which are unlawful, indecent, or offensive to Customer, and access to such materials by Customer is done at Customer’s sole risk.
- CRITICAL 911 NOTIFICATION.
Voice over Internet Protocol(“VoIP”) in relation to 911 services.
9.1 VoIP services allow you to make or receive telephone calls over the internet to or from the public switched telephone network similar to a traditional telephone service, yet there are important distinctions that the user needs to be aware of. These Terms & Conditions shall be deemed actual notice to Customer of these critical distinctions. Customer acknowledges and agrees that differences exist between traditional telephone service and VoIP-based voice services and that the emergency calls may be handled differently than emergency calls placed with traditional telephone service. CUSTOMER EXPRESSLY ACKNOWLEDGES AND CONSENTS TO THE LIMITATIONS OF THE E911/911 SERVICES, INCLUDING WITHOUT LIMITATION, THOSE DESCRIBED HEREIN, AND SHOULD CONSIDER ALTERNATE MEANS FOR ACCESSING TRADITIONAL EMERGENCY SERVICES.
9.2 Customer acknowledges that the E911/911 services may not be available in the event of a power failure, fraudulent use, failure of Customer’s equipment, service outage, or network or Internet congestion or outage, and Customer accepts the responsibility of confirming that its users have alternative means to make emergency calls in such circumstances. Customer further acknowledges and agrees that the E911/911 services rely on the networks, products, services and operations of third parties, including telecommunications carriers and Public Safety Answering Points (“PSAP”), and TotalCX is not responsible for the acts or omissions of any such third parties. Customer also agrees to notify its users of the nature and limitations of the E911/911 services as described in these Terms & Conditions. TotalCX will not be liable for any loss or damage (financial or otherwise). Customer acknowledges that some locations do not support E911 (i.e., automatically providing your telephone number and registered location) so you should always be prepared to provide your telephone number and actual location when dialing 911. CUSTOMER HEREBY AGREES TO RELEASE, INDEMNIFY, HOLD HARMLESS AND DEFEND TOTALCX AND EACH OF ITS AFFILIATES, SUBSIDIARIES, EMPLOYEES, SHAREHOLDERS, AGENTS, VENDORS, AND REPRESENTATIVES FROM ANY AND ALL CLAIMS THAT MAY ARISE FROM THE INABILITY OF CUSTOMER OR ITS USERS TO USE E911 SERVICES.
9.3 The provision of E911/911 shall be conditioned on Customer providing TotalCX with accurate location data, call back number, valid address or any other information required and requested by TotalCX in order to provide the E911/911 services. Customer shall provide this information in a timely manner and in a format required or requested by TotalCX. Customer shall update this information whenever necessary to reflect changes. Customer understands and acknowledges that should Customer fail to provide any such information, TotalCX may not be able to provide the E911/911 services, in whole or in part. CUSTOMER HEREBY AGREES TO RELEASE, INDEMNIFY, HOLD HARMLESS AND DEFEND TOTALCX AND EACH OF ITS AFFILIATES, SUBSIDIARIES, EMPLOYEES, SHAREHOLDERS, AGENTS, VENDORS, AND REPRESENTATIVES FROM ANY AND ALL CLAIMS THAT MAY ARISE FROM CUSTOMER’S FAILURE TO SATISFY THIS SECTION INCLUDING RESULTING FROM THE FAILURE OF CUSTOMER TO PROVIDE A CORRECT OR UPDATED ADDRESS TO TOTALCX.
9.4 Customer acknowledges and agrees that TotalCX, its affiliates, directors, officers, employees, agents, underlying local provider(s) or other public or private agencies and any third party providers will not be liable for any injury, death or damage to persons or property, or any other claim arising directly or indirectly out of, or relating in any way to the E911/911, including without limitation any inability on the part of the Customer or a user to access the E911/911 service, except to the extent such claims or causes of action arose from TotalCX’s gross negligence or willful misconduct.
9.5 IP Desk Phones and Soft Phones – With traditional PSTN services, your 911 call is routed to the appropriate local PSAP based on your automatically generated location information. For E911/911 services provided in the United States of America, the Customer affirmatively acknowledges (and agrees to maintain similar affirmative acknowledgements from its End Users) that TotalCX does not provide traditional E911/911 services and that the services are subject to the following limitations:
- a) EMERGENCY SERVICE RESPONDERS MAY NOT AUTOMATICALLY KNOW THE NUMBER OR LOCATION. Unlike traditional emergency 911 services, when Customer’s End Users call 911 using IP Desk Phones or Soft Phones, the emergency personnel receiving the call may not be able to automatically identify the phone number or the physical address from which the call originates. End User might need to tell the emergency personnel the nature of the emergency, give them the phone number, and describe the physical location. If the call is dropped for any reason, emergency personnel may not be able to call back or find the location.
- b) THE CALL MAY NOT REACH THE CORRECT EMERGENCY SERVICE IF THE SERVICE REGISTERS AN INCORRECT SERVICE ADDRESS. If Customer or End User provides an incorrect physical address, emergency calls may be routed to the incorrect emergency service provider. The emergency personnel may not be able to respond to the emergency, transfer the call to the geographically appropriate emergency center or otherwise provide assistance.
- c) THE CALL MAY NOT REACH THE CORRECT EMERGENCY SERVICES IF THE TELEPHONE NUMBER DOES NOT MATCH END USER’S ACTUAL GEOGRAPHIC LOCATION. Emergency service personnel cannot accurately track the location through TotalCX’s system and it is therefore important that the location registration remains updated. For example, if End User utilizes its telephone equipment in Virginia where the area code is 703, but the assigned Number has an area code of 212, an area code associated with New York City, when the End User dials 911, it may not be able to reach any emergency personnel. Even if the End User does reach emergency personnel, it may not be calling the emergency personnel near the End User’s actual location (the Virginia caller may be calling emergency services located in New York) and the emergency personnel may not be able to transfer the call to respond to the emergency, or otherwise provide assistance.
- d) THE CALL MAY NOT REACH THE CORRECT EMERGENCY SERVICES IF THE EQUIPMENT IS MOVED TO A LOCATION DIFFERENT FROM THE ADDRESS INITIALLY REGISTERED. It is important that the location of the IP Desk Phone or soft phone is accurately registered every time the equipment is moved. If the equipment is moved to another location without reregistering, when a call is made to 911, the call may not reach any emergency personnel. Even if emergency personnel is reached, the call may not be completed to the emergency personnel near the actual location if the location has not been updated and emergency personnel may not be able to transfer the call, respond to the emergency, or otherwise provide assistance.
- e) THE CALL MAY NOT REACH THE CORRECT EMERGENCY SERVICES IF THE NEW LOCATION IS NOT RE-REGISTERED OR CUSTOMER CALLS 911 WITHIN 48 HOURS OF UPDATING ITS LOCATION. It is important that the location of the IP Desk Phone or Soft Phone is accurately registered every time the equipment is moved. Location changes may take up to 48 hours for the location change to be reflected in TotalCX’s records. During that time, the calls may not reach any emergency service provider or may not reach the correct emergency services provider.
9.6 The following provisions also apply to Emergency Services provided in the UNITED STATES OF AMERICA:
- a) Customer agrees to provide its End Users with either (i) stickers that can be affixed to each enabled device and explain the limitations of the Emergency Services; or (ii) notice by other conspicuous means that explain the limitations of E911/911 services. CUSTOMER AGREES TO INDEMNIFY AND DEFEND TOTALCX AND ALL OF ITS AFFILIATES, SUBSIDIARIES, EMPLOYEES, SHAREHOLDERS, AGENTS, VENDORS, AND REPRESENTATIVES FROM ANY AND ALL CLAIMS, THAT MAY ARISE FROM CUSTOMER’S OR END USERS’ FAILURE TO AFFIX THE LABELS OR PROVIDE NOTICE AS PROVIDED IN THIS SUBSECTION (A).
- b) Customer acknowledges that only the following dial digit plans are acceptable for completion of emergency calls: (1) 911, (2) 1911, (3) +911, and (4) +1911.
- c) If a call is made from a non-provisioned or improperly provisioned telephone number, the call will not be automatically routed to the correct PSAP. Instead, that call will be handled by the backbone provider 24/7 Emergency Call Center (ECC). Customer acknowledges that for emergency call routing involving the ECC, TotalCX has no ability to assist the caller in the event that (i) the caller cannot speak or identify their address; (ii) the data connectivity between the address database and the ECC is interrupted; or (iii) TotalCX cannot provide the endpoint location information. Customer must also pay a per-call ECC charge of US$__. Customer acknowledges responsibility for all ECC charges even if erroneous calls are placed by unknown persons accidentally or purposefully. The Parties acknowledge that this additional fee represents a good faith estimate of the additional cost, which will be incurred by TotalCX and not a penalty. TotalCX may terminate the agreement, if Customer fails to correct non-provisioned or improperly provisioned telephone numbers and addresses, resulting in the imposition of repeated monthly additional fees.
9.7 For services provided in CANADA, Customer affirmatively acknowledges and expressly consents that TotalCX does not provide traditional E911/911 services and that the E911/911 services are subject to the following additional limitations:
- a) With traditional phone service, Customer’s End User’s 911 call is sent directly to the nearest emergency response center. With IP Desk Phones or Soft Phones over VoIP Services, your 911 call is forwarded to a national emergency call center that routes your call to the appropriate local PSAP based on information provided by the user of the system. This is different from the PSAP that would answer a traditional 911 call, and consequently, you may be required to provide your name, address, and callback telephone number to the E911 service, so that it may route the call to the correct PSAP, and provide accurate location identification.
- b) Making 911 calls. Traditional phone services 911 calls are routed to PSAP which can determine the location from where the call was placed. With VoIP Services, E911 calls are forwarded to a national emergency call center that routes your call to the appropriate local PSAP. This third party service requires additional information such as name, address, and telephone number to the third party to route the call to the proper PSAP, and also provide the dispatcher with this information for assistance. In the event the user does not provide this information in the softphone, the 911 call will still be established, but calls may incur additional charges to triage and route the call to appropriate PSAP.
- c) E911 PROCESS. If a Customer places a 911 call through our system, it is designed to provide the emergency service operator with the name, address, callback telephone number and preferred language associated with the user settings. As VoIP differs from traditional phone services the emergency service operator may not be able to process the required information as a result the Customer dialing the 911 call should inform the dispatcher of their location. If this information is not or cannot be conveyed emergency services may not be able to locate the caller or the location of the emergency.
- d) Remain on the Line. Please remain on the line with the Emergency Service Operator. If you are disconnected from the emergency service operator the operator may not be able to locate you. If you are disconnected, call them back as soon as possible.
- e) Customer is responsible for providing, maintaining, and updating correct contact information (including name, address and telephone number) with his or her account. If Customer does not correctly identify the actual location where he or she is located, or if Customer’s account information has recently changed or has otherwise not been updated, 911 calls may be misdirected to an incorrect emergency response site.
9.8 Busy Signals. If you receive a busy signal keep attempting to call the emergency services until you are connected.
9.9 Making 911 Calls from a Mobile Phone – If you dial 911, the call will be routed to your mobile carrier and the mobile carrier will handle the provision of the 911 Services. In instances where wireless does not have service 911 the user will not be able to make 911 calls.
9.10 911 Failure. 911 calls may be unable to connect due to certain Technical Failures, such as.
- a) Failure of the system access equipment.
- b) Improper configuration.
- c) Power outage
- d) Carrier outage
- e) Disconnection or suspension of services as provided in the agreement.
- f) Internet outages (including network congestion and loss or degradation of Internet services)
DUE TO THE LIMITATIONS INHERENT IN CONTACTING 911 VIA THE VOIP IT IS BEST PRACTICE TO USE A TRADITIONAL PHONE SERVICE TO CALL 911, WHERE POSSIBLE.
- No Warranty.
THE SERVICES AND EQUIPMENT ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND. FURTHER, TOTALCX HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING AND USAGE OF TRADE. NO ADVICE OR INFORMATION GIVEN BY TOTALCX OR ANY OF TOTALCX’S EMPLOYEES, AGENTS, OR REPRESENTATIVES SHALL CREATE A WARRANTY OF ANY KIND. TOTALCX DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR ANY INFORMATION OR MATERIAL ACCESSIBLE AS PART OF THE SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL CONTENTS OR COMPONENTS. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES AND EQUIPMENT USED ARE AT THE CUSTOMER’S SOLE RISK. TOTALCX DOES NOT GUARANTEE THE SECURITY OF ITS PORTAL OR THE SERVICES OR THE PREVENTION FROM LOSS OR ALTERATION OF, OR IMPROPER ACCESS TO, ANY INFORMATION OR DATA RETRIEVED IN THE COURSE OF PROVIDING THE SERVICES.
- Limitation of Liability.
TOTALCX’S LIABILITY UNDER THESE TERMS SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED PER CLAIM (OR IN THE AGGREGATE DURING ANY TWELVE (12) MONTH PERIOD) AN AMOUNT EQUAL TO THE TOTAL PAYMENTS MADE BY CUSTOMER FOR THE SERVICE UNDER THESE TERMS DURING THE THREE (3) MONTHS PRECEDING THE MONTH IN WHICH THE DAMAGE OCCURRED OR, IF APPLICABLE, TO THE PERFORMANCE STANDARD REMEDIES SET FORTH IN OUR ATTACHED SYSTEM PERFORMANCE STANDARDS. THIS PROVISION SHALL NOT LIMIT THE CUSTOMER’S RESPONSIBILITY FOR THE PAYMENT OF ALL PROPERLY DUE CHARGES UNDER THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL TOTALCX BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM CUSTOMER’S USE OF OR INABILITY TO USE THE SERVICES OR EQUIPMENT OR TO ACCESS THE INTERNET OR E-MAIL SERVICES OR ANY PART THEREOF, OR CUSTOMER’S RELIANCE ON OR USE OF INFORMATION, SERVICES, OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICES OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATIONS OR TRANSMISSION, ANY FAILURE OF PERFORMANCE, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF CUSTOMER’S ACCOUNT, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, COST OF SUBSTITUTE EQUIPMENT OR SERVICES, OR LOSS OF PROFITS OR GOODWILL, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION APPLIES TO ANY AND ALL CLAIMS MADE IN CONNECTION WITH THESE TERMS, WHETHER ARISING IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), OR BY ANY OTHER FORM OF ACTION.
Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states TotalCX’s liability is limited to the full extent permitted by law.
- Recorded Calls.
Customer shall train and inform all of its employees, agents, and personnel that TotalCX’s services may include the recording of all calls. Furthermore, Customer shall determine the requirements of any applicable state or local laws which may apply to the calls recorded using TotalCX’s services and inform TotalCX of any requirements. Customer is required to comply with any laws of any state or jurisdiction Customer operates using such services, which may include, informing parties (Customer’s customers, etc.) prior to recording, that all calls will be recorded. CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS TOTALCX AND ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, AFFILIATES, AND REPRESENTATIVES FROM AND AGAINST ANY CLAIM, LIABILITY, PENALTY, JUDGMENT, DAMAGE, ACTION, LOSS OR EXPENSE, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, WITNESS FEES, AND COSTS OF LITIGATION, ARISING OUT OF OR IN CONNECTION WITH ANY ACTUAL OR THREATENED CLAIM, SUIT, ACTION OR PROCEEDING RELATING TO ANY BREACH OR ALLEGED BREACH OF CUSTOMER’S OBLIGATION TO COMPLY WITH APPLICABLE LAW AS TO RECORDING OF CALLS.
CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS TOTALCX AND ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, AFFILIATES, AND REPRESENTATIVES FROM AND AGAINST ANY CLAIM, LIABILITY, PENALTY, JUDGMENT, DAMAGE, ACTION, LOSS OR EXPENSE, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, WITNESS FEES, AND COSTS OF LITIGATION, ARISING OUT OF OR IN CONNECTION WITH ANY ACTUAL OR THREATENED CLAIM, SUIT, ACTION OR PROCEEDING RELATING TO (A) ANY BREACH OR ALLEGED BREACH OF ANY OF CUSTOMER’S OBLIGATIONS UNDER THESE TERMS OR THE POLICY BY IT OR ITS OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, MEMBERS, OWNERS, EMPLOYEES, AGENTS, AFFILIATES, AND REPRESENTATIVES (COLLECTIVELY, THE “CUSTOMER PARTIES”), (B) ANY USE OR MISUSE OF THE SERVICES OR EQUIPMENT BY THE CUSTOMER PARTIES, WHETHER OR NOT AUTHORIZED; AND (C) THE PERFORMANCE BY TOTALCX OF ITS OBLIGATION UNDER THESE TERMS TO MONITOR TELEPHONE CALLS AND RECORDING ACTIVITY AND USAGE PATTERNS OF CUSTOMER’S EMPLOYEES AND OTHER USERS OF TOTALCX COMPUTER SYSTEMS AND SUCH OTHER ACTIVITY ENGAGED IN BY THE CUSTOMER PARTIES.
- Force Majeure.
TotalCX shall not be liable or deemed to be in default for any delay or failure in performance under these Terms or Subject Agreement for any interruption of service resulting directly or indirectly from any act of God, civil or military authority, acts of public enemy, acts of government, war, riots, civil disturbances, insurrections, accidents, fire, explosions, floods, earthquakes, lightning, the elements, natural disaster, pest damage, strikes, labor disputes, shortages of materials or supplies, magnetic interference, power surges or failures, interruptions of electrical power or other utility service, fuel or energy shortages, failure of transportation or communication, unavailability of any telecommunications service or connection to any telecommunications service, third party nonperformance (including, without limitation, the failure of performance of common carriers, interexchange carriers, local exchange carriers, suppliers, and subcontractors), unauthorized use of the equipment or services, delay in Customer reporting problems or furnishing information or materials, or any other cause beyond our reasonable control whether or not similar to the foregoing.
- Governing Law; Jurisdiction.
These Terms and all the rights of the parties hereunder shall be governed in all respects by the laws of the State of Texas, except for its conflict of law provisions. The venue and jurisdiction for any litigation, court case, or arbitration (should the parties jointly elect arbitration in writing) shall be Harris County, Texas. Each of TotalCX and Customer submits to the jurisdiction of any state or Federal court sitting in Harris County, Texas, in any lawsuit, action, or proceeding arising out of or relating to the Services. Each party waives any claim of improper venue or inconvenient forum. Each of TotalCX and Customer hereby waive trial by jury in any court in any suit, action, or proceeding on any matter arising in connection with or in any way related to the transactions governed by these Terms. Each of TotalCX and Customer acknowledge that it makes this waiver, and all other waivers set forth in this agreement knowingly, willingly, and voluntarily and only after an extensive review of these waivers with your attorney.
16.1 Continuing Obligations. Any termination of Services or use of Equipment pursuant to these Terms or Subject Agreement shall not relieve either party of obligations previously incurred, including but not limited to payment of fees and warranty, confidentiality, and indemnities as provided herein.
16.2 Material Breach. Subject to the provisions of this Section 16, in the event of a material breach either party may terminate the Services or use of Equipment without liability by giving the other, defaulting party written notice of the breach and the non-defaulting party’s intention to terminate the Services or use of Equipment on thirty (30) days written notice unless said breach is cured. If, prior to such termination date, the defaulting party cures the breach, then the notice of termination shall be withdrawn and the Services or use of Equipment shall continue. Otherwise, the Services or use of Equipment will terminate automatically effective on the thirty-first day after notice.
16.3 Post-Termination Rights.
16.3.1 Fees Owed to TotalCX. After termination by any party for any reason, TotalCX shall retain the right to recover all accrued charges due and owing by Customer to TotalCX.
16.3.2 Customer’s Continued Indemnification. Customer’s indemnification of TotalCX under provisions within these Terms shall survive expiration or earlier termination.
- Release of News, Information and Advertisement.
Neither party shall, without the prior written consent of the other, release any information to which these Terms apply nor make any news releases or public announcements relating to these Terms or the terms of any Subject Agreement.
All notices shall be in writing and shall be deemed given when personally delivered or sent by registered mail, return receipt requested, postage prepaid, or by facsimile, cable or telex confirmed by letter, addressed as follows to: InteractiveTel d.b.a. TotalCX, 15201 Mason Rd., Suite 1000-222, Cypress, TX 77433, Attn: Jack Behar. Customer shall provide TotalCX with a current address and designated person of contact. Customer shall provide TotalCX with any changes to its current address and person of contact.
Customer is responsible for payment of all local, state or Federal taxes, surcharges or fees due for services and products provided by TotalCX. These charges are subject to change and will be adjusted on Customer’s bill as necessary. If Customer is tax exempt appropriate documentation must be provided to TotalCX to make the appropriate adjustments to billing and reporting.
- No Partnership.
The commercial relationship between TotalCX and Customer does not create an agency, joint venture or partnership between. Neither party shall impose or create any obligation or responsibility, express or implied, or make any promises, representations or warranties on behalf of the other party, other than as expressly provided in these Terms or Subject Agreement.
21.1 No delay on the part of either party in exercising any of its respective rights hereunder or the failure to exercise the same nor the acquiescence in or waiver of a breach of any term, provision or condition of these Terms or Subject Agreement shall be construed to operate as a waiver of any such rights or acquiescence thereto, except for the specific instance of delay, waiver or acquiescence.
21.2 The rights and obligations hereunder may not be assigned by Customer without the prior written consent of TotalCX.
21.3 Section and paragraph headings used in these Terms are for convenience only and are not to be deemed or construed to be part of these Terms.
21.4 If any term or provision of these Terms or Subject Agreement, or the application thereof to any person or under any circumstance, shall to any extent be invalid or unenforceable, the remainder of these Terms and Subject Agreement, or the application of such terms to the persons or under circumstances other than those as to which it is invalid or unenforceable, shall be considered severable and shall not be affected thereby, and each term of these Terms or Subject Agreement shall be valid and enforceable to the fullest extent permitted by law. The invalid or unenforceable provisions shall, to the extent permitted by law, be deemed amended and given such interpretation as to achieve the economic intent of these Terms and any such Subject Agreement.