Terms of Service / General Service Agreement
GENERAL SERVICE AGREEMENT
1.
Definitions
The following capitalized terms, as
used in this Agreement, shall have the meanings set forth below:
"Activation” means when the Customer’s Service is available for
Customer’s use.
“Activation Date” means the date of Activation.
“Affiliate(s)” means, with respect to a Party, any entity that
Controls, is Controlled by or is under
common Control with the entity. “Control,” for purposes of this
definition, means the direct or indirect ownership or control of more
than fifty percent (50%) of the voting equity of the subject entity.
“Applicable Laws” means any and all applicable federal, state or local
laws, rules or regulations, including, but not limited to applicable
restrictions concerning call recording, call monitoring, call
interception and/or direct marketing or telemarketing.
“RUP” means the RingByName acceptable and reasonable use policy set
forth in Sections 18 & 19.
“Customer Equipment” means all equipment owned, leased or otherwise
provided by Customer, or which is specifically identified in one or
more Sales Orders as Customer Equipment, used in connection with the
Services. “Customer Equipment” includes equipment sold by RingByName to
Customer but does not include RingByName Equipment.
“Customer Premises” means the physical location(s) owned or leased by
Customer where Services are provided or RingByName Equipment will be
used or stored.
“E911 Disclosure” means the provisions set forth in the RingByName E911
Disclosure Notice and Acknowledgement posted on http://support.ringbyname.com/knowledgebase/articles/818811-e911-disclosure-statement or attached to and incorporated by reference
into a Sales Order stating RingByName’s
policies regarding the availability and limitations of E911 Service.
“Equipment Rental Agreement” means the written agreement between the
parties by which Customer leases RingByName Equipment from RingByName.
"In-App Purchase” means the Customer’s purchase of RingByName products
or services from within a mobile application made available on a
third-party online app store such as the Apple® App Store® or Google
Play™ online app stores, and where payment is processed by the
third-party online app store, or within its web applications.
"Sales Order” means a Sales Quotation as described in Section 2 that
has been accepted by an authorized representative of Customer and shall
automatically incorporate these Terms by reference. A Sales Order
arises once a Customer accepts a Sales Quotation following: (a)
initiation of the RingByName Services; or (b) upon Customer’s
successful addition of RingByName Products and/or Services via the
online process or via phone by a Customer administrator; and the Sales
Quotation is subsequently accepted by RingByName.
“Service” or “Services” means products or services provided or made
available by RingByName to Customer that are (a) set forth in a Sales
Order, or (b) purchased by Customer via In-App Purchase.
“Service Term” or “Term” means the period of time (commencing upon the
Activation Date) during which RingByName provides Services to Customer.
“Software” means proprietary software (including documentation relating
to such software) owned or licensed by RingByName, or which RingByName
has a right to sublicense under this Agreement, which software is
either provided to Customer under this Agreement or is used by Customer
in connection with the Services.
“Taxes and Fees” means any taxes and fees arising in any jurisdiction
imposed on or incident to the provision, sale or use of Service and
RingByName Equipment, including value added, sales, use, gross
receipts, excise, franchise, public utility or other taxes, fees,
duties or surcharges (including universal service, 911 and other
regulatory fees and surcharges), whether imposed on RingByName or a
RingByName Affiliate.
“RingByName” means InPhonex.com LLC dba RingByName.com, a Florida
corporation, or any Affiliate providing Services to Customer.
“RingByName Equipment” means all equipment that is used, leased or
otherwise provided by RingByName to Customer for use in connection with
the Services, including phone hardware (e.g., phones, routers, switches
and battery backup). RingByName Equipment does not include Customer
owned hardware or equipment or hardware and equipment that Customer
purchases through RingByName.
2.
Sales Agreement:
Services will be described in a
“Sales Quotation” that shall include: (i) the price, location, and
other information about the Services; (ii) the details relating to
equipment being offered for sale or lease to Customer; and (iii) if
applicable, associated installation, maintenance, shipping or delivery
requirements. Notwithstanding the foregoing, for In-App Purchases only,
the “Sales Quotation” shall be deemed to be the description of Services
presented to Customer and information provided by Customer within the
in-app sign-up process, prior to Customer’s confirmation of the
purchase of the Services. Upon acceptance of a Sales Order by
RingByName, RingByName will provide, and Customer will pay for and
receive from RingByName, each Service pursuant to the terms and
conditions of each Sales Order and this Agreement.
3.
Terms, Conditions and Policies.
These Terms
incorporate and include addenda and policies that are
set forth in an addendum, schedule, exhibit or amendment to a Sales
Order or this Agreement (collectively, the “Terms”). These Terms
supersede and replace all terms and conditions set forth in any
documents issued by Customer, including purchase orders and
specifications. RingByName reserves the right to change any of the
Terms at any time, but only on a prospective, not retroactive, basis.
RingByName will provide Customer thirty (30) days advance notice of
changes to the Terms that would have a materially adverse effect on
Customer. Notice may be provided via Customer’s invoice or by e-mail to
the most recent email address associated with Customer’s account.
Changes will become effective on the next business day following the
thirty (30) day notice period and Customer agrees to be bound by any
changes after such thirty (30) day notice period. Notwithstanding the
foregoing, notice of changes to third-party terms incorporated into
these Terms shall be governed by such third-party terms.
4.
Marketing Partners & Authorized Distributors.
RingByName may enter into marketing arrangements with marketing
partners (each a “Marketing Partner”) or resale/distribution agreements
with authorized distributors (each an “Authorized Distributor”) who
market RingByName Services to prospective customers who then subscribe
to these Terms of Service. When these Terms are accepted by a Customer,
the Customer is considered a customer of RingByName only with respect
to RingByName Services. As an example, if the distributor of internet
services also markets RingByName-branded solutions and a Customer
subscribes to both internet services and RingByName Services with
RingByName under these Terms, the customer is considered, with respect
to RingByName Services, only a customer of RingByName. The terms,
conditions and policies pursuant to a Marketing Partner or Authorized
Distributor’s contractual arrangement with Customer for other products
and services may differ from RingByName’s
Terms of Service, Privacy Policy and other policies applied by
RingByName to similarly situated customers, but such Marketing
Partner’s or Authorized Distributor’s terms, conditions and policies
will not apply to RingByName Services, nor supersede these Terms as
applicable to RingByName Services.
5.
Authorizations.
Customer shall provide RingByName,
at no cost to RingByName, all permissions, consents or authorizations
necessary to activate, maintain, inspect, and repair the products
and/or Services and any RingByName Equipment, including (if applicable)
the right to access and enter Customer’s Premises.
6.
High Speed Internet Connection Required.
Customer
understands, acknowledges, and agrees that: (i) Customer must have a
high-quality high speed internet connection to use the Services; and
(ii) RingByName is not providing an internet connection for Customer.
RingByName does not control and is not responsible for:(i) Customer’s
internet connection; (ii) the quality of Customer’s internet
connection; (iii) any third party products and/or services related to
Customer’s internet connection; or (iv) problems with the Services that
are caused by or related to Customer’s internet connection. RingByName
will not contact any of the internet providers and/or service or
product providers on Customer’s behalf.
7.
User Designation.
Customer may designate one or
more users to be an account administrator with full administrative
control of Customer’s account from the RingByName user interface. For
most RingByName customers, the primary administrator for your account
is known as the Company Administrator or, in some cases, a primary
administrator (collectively hereinafter, “Company Administrator”). The
individual assigned to be the Company Administrator is an individual
designated by Customer through the online sign-up process or, if the
agreement was not entered into online, the individual whose name is
identified on the Sales Order. The Company Administrator: (i) has the
ability to make changes to the Customer account (e.g., service
additions, service deletions, assignment of users, account
cancellations, updates to credit cards, etc.); and (ii) is the
authorized individual on Customer’s account with respect to
transferring (or “porting”) of your telephone numbers to a carrier
other than RingByName. The Company Administrator may assign one or more
additional administrators on the account and may re-assign “Company
Administrator” status to another user. In the event that Customer
desires information regarding a customer service record or actual call
log details, the information requests must come from Company
Administrator or an administrator. However, RingByName shall respond to
these requests by transmitting the requisite information to the email
address on file for the Company Administrator.
a.
Company Contact. The “Company Contact” for the
account is assigned through the sign-up process. The Company Contact
shall refer to the individual(s) who will receive messages from
RingByName concerning matters of general relevance to the account
(e.g., notices of updates to the account, billing notices, maintenance
alerts, etc.). Such notices are typically provided through electronic
mail. A Company Contact may or may not be the Company Administrator or
an administrator for the account.
b.
Reassigning Company Administrator Designation. In
the event that Customer seeks to re-assign the Company Administrator
designation on Customer’s account and the Company Administrator is
unable to make the change, RingByName requires that Customer either:
(i) submit an email from the Company Administrator’s email address on
file with RingByName; or (ii) provide a written request, on Customer’s
letterhead and executed by an officer or owner of the company which
Customer represents.
c.
Adding Services. Additional Services can be
purchased by administrators through the RingByName user interface or by
calling RingByName Customer Care. Customer hereby authorizes those
users with administrative privileges to: (i) add Services to Customer’s
RingByName account; and (ii) commit Customer to pay for these Services
on a recurring monthly basis. Customer further authorizes RingByName to
obtain payment of Customer’s then-current statement balance from
Customer each month from Customer’s credit card account. Administrators
have the ability to authorize an account cancellation and make changes
to the account (e.g., service additions, service deletions, assignment
of users, updates to credit cards, etc.) but may not: (i) designate
himself/herself as the Company Administrator or (ii) designate any
other user as an administrator. The ability to purchase Additional
Services may restricted or unavailable for accounts opened via an
In-App Purchase.
8.
Equipment.
Customer understands and acknowledges that Activation of the Services
may require the use of certain Customer Equipment and/or RingByName
Equipment.
a.
Customer Equipment. Customer represents that it
owns or otherwise has the right to use the Customer Equipment in
connection with the Services. Customer shall be fully responsible for
the installation, maintenance, repair and operation of any Customer
Equipment. RingByName shall not be responsible for ensuring
compatibility of any Customer Equipment with RingByName Equipment.
b.
RingByName may, upon Customer’s request,
facilitate the provisioning of equipment from a third party supplier or
resell certain equipment. While RingByName recommends some equipment
brands and may facilitate Customer’s purchase of some equipment as an
accommodation, the original equipment manufacturer and not RingByName
shall be responsible for any equipment defects, if applicable.
RingByName will pass through all original equipment manufacturer
warranties for the equipment to you. RingByName shall have no liability
to Customer of any nature regarding such equipment. Please check the
equipment manufacturer’s website for warranty, return rules and other
terms and conditions applicable to such third party equipment.
c.
Equipment may not be returned to RingByName for
any reason. ALL EQUIPMENT SALES ARE FINAL. Equipment sold by RingByName
to Customer may be returned to the manufacturer solely in the event of
a defect which arises within the applicable warranty period, provided
Customer complies with the terms of this Section and the Return
Materials Authorization (“RMA”) policy. Prior to returning the
equipment, Customer must contact RingByName so that RingByName may
determine whether a defect exists, to process a warranty claim on
behalf of Customer, and to provide an RMA number. You must ship the
equipment to the address provided by RingByName in accordance with all
RMA procedures. You have ten (10) days after receipt of an RMA to ship
the equipment. You must pay all shipping fees. Once the equipment is
received, the original equipment manufacturer will handle the return in
accordance with its applicable warranty policy.
d.
RingByName Equipment. Customer will not: (i)
relocate, rearrange, repair or otherwise modify any RingByName
Equipment without RingByName’ prior written consent; or (ii) create or
allow any liens or other encumbrances to be placed on any RingByName
Equipment.
e.
Customer will use commercially reasonable efforts
to protect and maintain RingByName Equipment in a secure location at
the Customer Premises within conditions (including room temperature)
that are customary and reasonable for such equipment, and shall be
fully liable for all costs, charges or expenses associated with damage
to or loss of RingByName Equipment beyond normal wear and tear.
f.
During the Term of any applicable Service,
RingByName shall repair or replace defective RingByName Equipment
leased by Customer pursuant to an Equipment Rental Agreement in
accordance with, and subject to the terms set forth in the Equipment
Rental Agreement. Notwithstanding the foregoing, RingByName shall not
be obligated to replace RingByName Equipment if it is determined by
RingByName that Customer or another third party is responsible for the
defect.
g.
RingByName Equipment (and replacements) may be
refurbished equipment.
h.
Upon cancellation or termination of this Agreement
or any Service, Customer shall securely pack, ship and return to
RingByName all RingByName Equipment at Customer’s expense. RingByName
may invoice Customer, and Customer shall pay, for the full replacement
value of any RingByName Equipment that has not been timely returned to
RingByName in accordance with the terms of the Equipment Rental
Agreement.
9.
Software.
a.
Non-Exclusive License. If Software is provided by
RingByName in connection with Services, RingByName grants to Customer a
personal, limited, revocable, non-exclusive, non-assignable and
non-transferable license to use the Software, in object code form only,
solely for the purpose of using the Service(s). This license will
permit such use by Customer and any of its employees or contractors
(but only within the scope of their employment or services with
Customer) 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 commences upon RingByName’s
acceptance of the Sales Order for the Service and terminates
immediately upon the expiration or termination of this Agreement for
any reason. Customer shall return or destroy all Software and any
related written material, together with any copies, in its possession
or under its control promptly upon the expiration or termination of
this Agreement for any reason. Any attempt to sublicense, assign or
transfer any of the rights, duties or obligations under this license is
void and may result in termination by RingByName of this Agreement and
the license. No other licenses or rights to the Software are granted or
implied.
b.
Upgrades and Modifications. RingByName reserves
the right to upgrade the Software or discontinue support for earlier
versions of the Software at any time.
c.
End User Licenses. Certain Software RingByName
provides to Customer may contain third-party software (“Third-Party
Software”), including open source software. Use of such Third-Party
Software may be governed by separate copyright notices and license
provisions, which may be found or identified in documentation or on
other media delivered with the Third-Party Software and which are
incorporated by reference into this license. Notwithstanding any other
terms in this Section 9, such provisions shall govern the use of
Third-Party Software. Customer agrees to comply with the terms and
conditions of all end user license agreements accompanying any Software
(including Third-Party 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 this
Agreement is terminated.
d.
Copyright / Trademark / Unauthorized Usage of
Device, Firmware or Software. The Service(s), RingByName Equipment and
Software and all information, documents and materials on RingByName’s website(s) are protected by
trademark, copyright, patent and other intellectual property laws and
international treaty provisions. All website content, corporate names,
service marks, trademarks, trade names, logos and domain names of
RingByName are and shall remain the exclusive property of RingByName or
its Affiliates and nothing in this Agreement shall grant Customer the
right or license to use any of the foregoing. Customer agrees that the
RingByName Equipment is exclusively for use in connection with the
Service and that RingByName will not provide any passwords, codes or
other information or assistance that would enable Customer to use the
RingByName Equipment for any other purpose. If Customer decides to use
the Service through an interface device not provided by RingByName
(which RingByName reserves the right to prohibit in particular cases or
generally), Customer warrants and represents that it possesses all
required rights, including software and/or firmware licenses, to use
that interface device with the Service and Customer will indemnify,
defend and hold harmless RingByName from and against any and all
liability arising out of Customer’s use of such interface device with
the Service. Customer may not undertake, cause, permit or authorize the
modification, creation of derivative works, or translate, reverse
compile, disassemble, hack or reverse engineer, or otherwise attempt to
derive the source code from the binary code of the Software.
10.
Service Term and Service Cancellation.
a.
Service Term. The Services are provided on a
monthly basis. The Term will begin on the Activation Date. The Service
Term shall continue unless and until Customer provides notice of
cancellation of the Services in accordance with this Section 10 or
RingByName terminates the Services in accordance with the terms set
forth herein. Notwithstanding notice by a Party to terminate this
Agreement, Services will remain in effect through the effective date of
termination and the terms and conditions of this Agreement and the
applicable Sales Order(s) will continue to apply to such Services. Upon
termination of the applicable Service Term, RingByName will not be
obligated to furnish the Services to Customer.
b.
Notice of Cancellation. Customer acknowledges that
the Services automatically renew each month unless Customer provides
cancellation notice to RingByName at least seventy-two (72) hours prior
to a scheduled billing date (in accordance with the terms of Section 10
herein). If Customer provides notice of cancellation at least
seventy-two (72) hours prior to the next scheduled billing date, then
Customer shall not be billed for the next billing cycle. If Customer
provides notice of cancellation less than seventy-two hours prior to
the next scheduled billing date, then: (i) the cancellation shall be
effective within seventy-two (72) hours after Customer provides
cancellation notification to RingByName; and (ii) Customer shall be
billed for the next billing cycle in full. RingByName does not refund,
in whole or in part, or issue credits for any charges already billed to
Customer’s account. In the event Customer signed up for a minimum
commitment period for the Services being cancelled, Customer is
responsible for all Service Fees for the entire minimum commitment
period pursuant to an addendum to these terms. When Customer cancels
Customer’s Service, all fees will immediately accelerate and Customer:
(a) authorizes RingByName to immediately assess all fees to Customer’s
credit card or ACH account on file; or (b) upon demand by RingByName,
provide a certified check for all Service Fees.
c.
Cancellation Process. The Agreement may be
cancelled by Customer only through the Company Administrator or an
administrator by contacting RingByName Customer Care by telephone
during normal business hours. (If Customer contacts a Marketing Partner
or Authorized Distributor to cancel the Services or any portion
thereof, that Marketing Partner or Authorized Distributor will collect
the pertinent information and provide the information to RingByName to
effect cancellation in accordance with Customer’s instructions.)
CUSTOMER MAY CANCEL SERVICES ONLY THROUGH THIS METHOD. RINGBYNAME WILL
NOT ACCEPT CANCELLATION VIA EMAIL, FAX, SMS OR OTHER ELECTRONIC
METHODS. FAILURE TO CANCEL SERVICES IN ACCORDANCE WITH THIS SECTION
WILL RESULT IN ONGOING SERVICE CHARGES, FEES AND TAXES. RingByName will
provide Customer with email confirmation of the Services cancelled. If
Customer does not receive a confirmation of Service cancellation,
Customer must notify RingByName by sending an email to
service@ringbyname.com or contact RingByName Customer Care by telephone
at 855-345-7464.
Customer may also cancel individual Services on Customer’s account at
any time by contacting RingByName Customer Care during normal business
hours. Customer understands and acknowledges that the cancellation will
be effective on the date Customer specifies, but in no event earlier
than seventy-two (72) hours following cancellation notification to
RingByName. Moreover, Customer acknowledges that RingByName will not
refund, in whole or in part, or issue credits for any charges already
billed to Customer’s account.
d.
Ancillary Services. In the event Customer
subscribes to ancillary services provided by RingByName (including such
things as voicemail recording, call recording, etc.), cancellation of
the Services for any reason shall also result in the cancellation of
such ancillary services. In the event RingByName is providing voicemail
recording, call recording, or other such ancillary service, all of
Customer’s data, including all recordings, will be deleted on or after
the effective date of termination or cancellation. In the event that an
end user account is cancelled or terminated (whether by the Customer or
due to termination of the Services), the user data associated with such
end user account and related ancillary services will be deleted. Such
data will be available subject to RingByName’ retention policies and
could be as soon as the effective date of cancellation or termination.
e.
In-App Purchases. Sections 10(a) through (d) above
shall not apply for Services purchased via In-App Purchase. Services
purchased via In-App Purchase are provided on a monthly basis and the
Term will begin on the Activation Date. The terms of service for the
app store from which Customer downloaded the mobile application shall
govern renewals, refunds and cancellations of the Services, and such
terms are hereby incorporated by reference.
11.
Billing, Credit, Deposits and Payment.
a.
Billing and Payment Processing. Customer agrees to
pay RingByName the recurring monthly service charges, Taxes and Fees,
set-up charges and usage charges, if applicable, for Customer’s use of
the Services. Billing will commence on the Activation Date. Customer
agrees to provide RingByName with a valid email address, billing
address, and a valid payment method prior to activation of Service.
Customer shall advise RingByName immediately if Customer’s Company
Contact or Company Administrator email addresses change and/or if the
payment method changes or expires. Failure to comply may result in the
immediate suspension or termination of Services.
i.
Payments via Credit Card or ACH. Until Customer
cancels the Services in accordance with the requirements of Section 10
herein, Customer authorizes RingByName to: (a) automatically bill the
credit card Customer provided on the same day of each month; or (b)
automatically debit (charge) Customer’s checking account electronically
via ACH on the same day of each month. “ACH” shall mean the automated
clearing house, which is the nationwide network of banking institutions
that process electronic payments automatically between bank accounts.
Customer agrees that RingByName may receive updated information about
Customer’s account from the financial institution issuing Customer’s
credit card.
ii.
Alternative Payment Methods. Under certain
circumstances, RingByName may agree to accept alternative payment
methods. In such case, Customer shall agree to RingByName’s
reasonable requirements, as well as certain fees, related to the
aforementioned pre-approved, alternative payment methods. In such case,
Customer authorizes RingByName to either: (a) use information from the
check to make a one-time electronic transfer from Customer’s account as
soon as the Customer submits the payment; or (b) to process the check
as a check transaction, in which case Customer may not receive the
check back from Customer’s financial institution. In the event that
Customer presents a check to RingByName for payment that is returned by
Customer’s bank for non-sufficient funds, RingByName may suspend or
terminate the account. Customer shall pay a reconnect fee to
re-activate service as set forth in Section 11(c). Late payments and
returned checks are subject to late payment fees and returned check
fees, respectively.
b.
Security Deposit. RingByName reserves the right
any time during the Service Term, in its sole discretion, to require
Customer to maintain a non-interest bearing deposit, to be held on
account, in an amount determined in RingByName’ discretion based on
customer’s actual or anticipated billings to include usage charges. A
deposit may be required prior to the next billing date to continue the
Services (e.g., with instances of high international calling). The
deposit will be adjusted as Services and usage levels increase or
decline and will be refunded, less any past due balance or other
amounts due by Customer, at the end of the Service Term. In addition,
in the event that Customer’s use of the Services involves usage-based
charges that in RingByName opinion are substantial, RingByName may, in
its sole discretion, process charges against Customer’s payment method
prior to Customer’s regular monthly billing cycle date and/or require a
non-interest bearing deposit to secure Customer’s payment obligations
under this Agreement. All deposits must be paid promptly on demand and
will be held on account during the term of this Agreement. Customer
authorizes RingByName to offset any amounts due to RingByName against
the deposit.
c.
Payment of Invoices. Invoices are delivered
monthly. Except for usage based fees, all fees are due in advance on
the first day of each billing period. Fees may include monthly
recurring charges (“Service Fees”), and other non-recurring charges
including but not limited to, activation fees, porting fees, early
termination fees (“ETF”), intellectual property recovery fees (“RCIP”),
and government mandated pass through fees such as, but not limited to,
Universal Service Fees (“USF”), e911 fees and regulatory compliance
(collectively, “Fees”). All usage based charges (including charges for
calls to Alaska, Hawaii and international calls) are due and payable in
arrears on the first day of each billing period following the month
they were incurred. Customer agrees to pay for all equipment as the
equipment order is processed and set up fees upon acceptance of the
Sales Order. Customer agrees to pay for the first month of Services
upon Activation of the Services. All payments, including payments paid
in advance, are completely non-refundable. Failure to pay in full may
result in immediate account suspension and RingByName shall have no
liability for such suspension under any circumstances. Accounts will be
reactivated, at RingByName’s sole
discretion, after the account balance is paid in full and a Twenty-Five
Dollar ($25.00) reconnect fee is paid. All fees and charges (together,
“Service Fees”) and any other amounts due to RingByName may, at
Customer’s direction, be charged to Customer’s Visa, MasterCard,
American Express or valid debit card, and/or electronically debited to
Customer’s bank account, in which case Customer hereby authorizes
RingByName to charge Customer’s credit/debit card and/or to
electronically debit Customer’s bank account for all such fees, charges
(including termination-related charges), taxes and payment transaction
processing costs. Customer acknowledges that pre-paid credit cards are
not accepted and agrees not to provide pre-paid credit cards as a
payment method.
d.
Suspension of Services. Failure to pay in full may
result in immediate suspension of Services and RingByName shall have no
liability for such suspension under any circumstances. During any
period of suspension, Services and features and functions of the
Services (including, but not limited to call recording service and any
other service RingByName is providing) will be unavailable to Customer
until the account balance is paid in full. Customer will be unable to
record calls or access any data or recordings that have previously been
stored by RingByName.
e.
Disputes. If Customer reasonably disputes an
invoice, Customer must pay the undisputed amount and submit written
notice of the disputed amount (with details of the nature of the
dispute and the Services and invoice(s) disputed) to the address below
on or before the due date. In the event Customer intends to dispute
amounts already paid in full, Customer must submit notice of such
dispute in writing within ninety (90) days from the date of the invoice
(such date at the end of such period being the “Dispute Due Date”).
After receipt of notice of the dispute, RingByName shall undertake an
investigation of the dispute, so long as Customer has not waived its
rights pursuant to this paragraph to make the dispute. At the
conclusion of the investigation, RingByName will notify Customer of any
amount determined by RingByName to be correctly charged and such amount
will become immediately due and payable together with interest from the
date originally due. If the dispute notice is not sent by the Dispute
Due Date, Customer waives all rights to dispute the applicable charges,
unless otherwise provided by law. All billing disputes must be sent to:
RingByName.com
Billing Department (Disputes)
7206 NW 31st Street
Miami, FL 33122
If
Customer does not deliver full payment for all undisputed billed
charges by the due date, RingByName may restrict, suspend or terminate
use of the Services or RingByName Equipment. Customer shall also
reimburse RingByName for all reasonable attorneys’ fees and other costs
incurred by RingByName relating to collecting delinquent payments or
Customer’s non-payment breach of this Agreement. RingByName may also
apply any deposits or other payments made by Customer. If RingByName
applies any portion of a security deposit, Customer shall, within five
(5) days following written notice thereof from RingByName, replenish
the security deposit by the amount so applied by RingByName. If
RingByName restricts, suspends or terminates Customer’s Services,
RingByName may, at its sole option, choose to restore Customer’s
Services prior to the payment of all charges due. Such restoration
shall not be construed as a waiver of RingByName’s
right to (i) receive full payment for all charges due
or (ii) again restrict, suspend or terminate the Services at any time
for non-payment of any unpaid charges. The failure of RingByName to
restrict, suspend or terminate the Services for non-payment of any
charges shall not operate as a waiver or estoppel to restrict, suspend
or terminate Services of such account for non-payment of current or
future charges.
f.
Additional, Unrelated Charges. Customer
acknowledges that Customer may incur charges while using the Service in
addition to those billed by RingByName. For example, Customer may incur
charges as a result 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, and Customer covenants to timely pay all
such charges.
12.
In-App Purchases.
Sections 11(a), (b), (c), (e),
and (f) above shall not apply for Services purchased via In-App
Purchase. The terms of service for the app store from which Customer
downloaded the mobile application shall govern payment for the
Services, and such terms are hereby incorporated by reference. Failure
to comply with such terms may result in the immediate suspension or
termination of Services. Due to payment notification requirements of
certain app store platforms, Customer may be required to open their
mobile app to enable automatic delivery of their monthly subscription
payment notification to RingByName. If Customer fails to open (or if
Customer deletes) their mobile app within fourteen (14) days after the
end of the prior monthly subscription period, RingByName may not
receive payment notification despite Customer’s account having been
charged by the app store platform. If RingByName does not receive
payment notification within fourteen (14) days after the end of the
prior monthly subscription period for any reason, Customer’s account
may be suspended or terminated.
13.
Taxes and Fees.
Prices for Services do not
include, and Customer is responsible for, all Taxes and Fees. Customer
may also be charged taxes by a Marketing Partner or Authorized
Distributor for non-RingByName products and services sold or licensed
by that Marketing Partner or Authorized Distributor in connection with
Customer’s order for RingByName Services. In addition, a regulatory
recovery fee for every phone number assigned to Customer’s account will
be charged monthly to offset costs incurred by RingByName in complying
with inquiries and obligations imposed by federal, state and municipal
regulatory bodies/governments and related legal and billing expenses.
This recovery fee may also include recovery of costs for legal,
intellectual property, cybersecurity, compliance and other related
expenses, including those related to number portability, customer
privacy protection and anti-fraud protection. This fee is not a tax or
charge required or assessed by any government and may be recovered by
RingByName through imposition of a surcharge on cost of the Service.
The Regulatory Recovery Fee will apply to every phone number assigned,
including toll free and virtual numbers. Customer may present
RingByName with an exemption certificate eliminating Customer’s and RingByName’s liability to pay certain Taxes and
Fees. If any amounts paid for the Services are refunded by RingByName,
Marketing Partner or Authorized Distributor, applicable taxes may not
be refundable. The foregoing shall not apply to In-App Purchases. The
terms of service for the app store from which Customer downloaded the
mobile application shall govern taxes and fees for the Services, if
any, and such terms are hereby incorporated by reference.
a.
Regulatory and Legal Changes. RingByName may
discontinue, limit, modify any Service, or impose additional
requirements to the provision of any Service, as may be reasonably
required to comply with any Applicable Laws. If changes in Applicable
Laws materially and adversely affect delivery of Service (including the
economic viability thereof) or would impose further compliance
requirements, then RingByName will provide notice to Customer (in
accordance with Section 34(e)) to the extent that said changes impact
Customer’s obligations and details of regulatory changes
14.
Metered Usage.
There are certain calls which will incur additional usage charges, such
as calls to Alaska, Hawaii and international calls. In addition,
certain features such as call forwarding from auto attendants to an
outside number, calls to a queue, and each line on a conference bridge
will incur charges at the then current rate established by RingByName.
Metered usage is billed in full-minute increments, and actual usage is
rounded up to the next full-minute increment at the end of each call
for billing purposes. Calls to Alaska, Hawaii and international calls
may not be made available for certain types of Services
15.
Bundled Usage.
RingByName or its Marketing Partners or Authorized Distributors may
offer bundled plans which include a defined combination of services and
which may offer a specified number of minutes or unlimited usage
(subject to Sections 18 and 19 herein). Bundled plans may also include
usage based charges that differ from other RingByName, Marketing
Partner or Authorized Distributor plans. In some bundled plans, the
number of minutes used may be aggregated into a pool of minutes
available to extensions on an account with excess usage charges
applying for any usage above the allotted aggregate minutes at a
specified rate.
16.
Unlimited Calling & Unlimited Voice Services.
For unlimited calling plans, unlimited calling applies only to calls
made within the continental United States and Canada. Calls to Alaska,
Hawaii and all non-Canadian international calls are subject to
additional charges. Unlimited voice services are provided solely for
live dialog between two individuals. Unlimited voice services may not
be used for conference calling, call forwarding, monitoring services,
data transmissions, transmission of broadcasts, and transmission of
recorded material, outbound call center, telemarketing, predictive
dialing, or other connections which do not consist of substantially
uninterrupted live dialog between individuals. If RingByName finds that
Customer is using an unlimited voice service offering for other than
live dialog between two individuals, RingByName may, at its option,
terminate Customer’s service or change Customer’s plan. RingByName may
provide commercially reasonable written or email notice that it intends
to take any of the above actions. Notwithstanding the foregoing,
Customer shall be entitled to use RingByName conference calling
services such as three way calling and RingByName-provided conference
calling bridges. See Section 17 below for additional limitations
pertaining to Customer’s use of unlimited voice services.
17.
Ancillary Services.
Caller name identification (i.e., caller ID with name) Services
provided by RingByName are based on availability of such Services from RingByName’s underlying providers. RingByName
does not guarantee that such Services are available for all numbers in
all serving areas.
Each voicemail message recorded by RingByName shall be retained for a
minimum of three (3) months from the date the message was recorded.
RingByName retains the right to purge all voicemail messages after this
minimum retention period.
Certain services provided by RingByName shall be subject to separate
end-user license agreements (“EULAs”). The terms of such EULAs shall be
binding upon the parties to this Agreement. If any such EULAs, or any
provisions in such EULAs, are held to be unenforceable for any reason,
the terms of this Agreement shall apply with respect to the supply of
that Service.
RingByName may introduce new ancillary Services to new and existing
customers. Such ancillary Services may sometimes be offered on a trial
basis for a specified period of time during which fees may or may not
apply to Customer. In some cases, the terms of a trial may involve an
automatic re-enrollment at the end of the trial unless the customer
opts out of the trial and/or cancels the service during the term of the
trial. In no event shall RingByName impose service fees on Customer for
ancillary services without providing Customer the opportunity to
opt-out of the trial and/or to cancel the ancillary Service during a
no-cost trial period.
18.
Use of the Services.
Customer shall use the
Services only in a manner that fully complies with all Applicable Laws,
as well as the terms and conditions of this Agreement. Use of the
RingByName Equipment, the Services or other action that is in violation
of this Section 18 or Section 19 or that causes a disruption in the
RingByName network integrity, or in RingByName’s
determination threatens or compromises the security of RingByName, its
vendors, its other customers or the Services whether directly or
indirectly, is strictly prohibited and permits RingByName to suspend or
terminate the Services without prior notice at the sole discretion of
RingByName and further permits RingByName to disclose any relevant
information, including Customer Confidential Information, to necessary
authorities or third parties. RingByName shall have the right, in its
sole, but reasonably exercised discretion, not to accept, transmit or
deliver any messages or content that it reasonably believes contains
inappropriate content or that is, or could reasonably become, the
subject of any legal, regulatory, or other governmental proceeding or
process, including a law enforcement proceeding, process, or inquiry.
19.
Service Use Restrictions.
a.
Commercial Use. Customer agrees and represents
that Customer is purchasing the Services and/or the equipment for
Customer’s internal use only, and Customer shall not resell, transfer
or make a change to the Services without the advance express written
permission of RingByName. Customer shall not in any way interfere with
other users, the services or equipment of the network or use the
Services in any way for (or as part of) any commercial service or
application. Customer may not attempt to, in conjunction with any
device, software program or service, circumvent technological measures
employed to control access to the Service.
b.
Fair Use. RingByName’s
business service plans and features are for normal, reasonable business
use and consistent with the types and levels of usage by typical
customers on the same business calling plan. “Typical” refers to the
calling patterns of at least 95% of RingByName’s
business customers on the same business calling plan. Certain calling
and messaging plans, including unlimited calling and messaging plans,
are designed for normal commercial use and are not intended to
represent typical usage by unique organizations such as call centers,
resellers, fax messaging services, telemarketing firms, or for use
without live dialog, such as transcription services, intercom or
monitoring services. Unauthorized or excessive use beyond that normally
experienced by typical, similarly situated business customers may cause
extreme network capacity and congestion issues and interfere with RingByName’s network and the third party
networks with which RingByName connects for call initiation and
completion services. Any use of the Services or any other action that
causes a disruption in the network integrity of RingByName services or
its vendors, whether directly or indirectly, is strictly prohibited and
may result in termination of the Services.
c.
Evaluation of Usage. RingByName evaluates Customer
usage in comparison to typical levels of permissible usage engaged in
by RingByName’s customers (business use
under business service plans or affiliate use under co-branded business
service offers or business plans). Co-branded use is defined as RingByName’s service that is provided by a third
party partner under that third party partner’s marketing brand, with or
without reference to RingByName.
The following is a non-exhaustive list of impermissible uses under RingByName’s business plans and is considered
outside of normal use, whether obtained directly from RingByName, an
authorized reseller, or from a co-branded RingByName partner:
Resale to
others;
Auto-dialing or fax/voice blasts;
Without live dialog, including use as a monitor or for transcription
purposes;
Continuous or extensive call forwarding;
Continuous connectivity;
Constant dialing;
Iterative dialing;
Fax broadcast;
Fax blasting; and
Telemarketing involving practices that are in violation of any law or
regulation or any other activity that would be inconsistent with small
business usage.
d.
Review of Unlimited Usage. RingByName reserves the
right to review usage of unlimited usage plans to ensure that customers
are not abusing such plans. Customer agrees to use unlimited voice
plans for normal voice and/or text message related communications with
aggregate usage that falls within the range of similarly situated
business customers. Use of unlimited “paperless facsimile” service must
also fall within the normal range of similarly situated business
customers and shall in no event exceed 500 transmitted pages sent or
received per month. In addition, Customer agrees that Customer will not
employ methods or use devices to take advantage of unlimited plans by
using the Services excessively or for means not intended by RingByName.
RingByName may terminate service immediately if it determines, in its
sole discretion, Customer is abusing an unlimited minute plan.
RingByName deems usage that substantially exceeds the average volume of
its other unlimited usage plan customers as abusive. Customer agrees
that RingByName has the right to terminate Customer’s service and/or
charge Customer additional fees if Customer’s usage is considered
abusive in the sole discretion of RingByName.
e.
Excessive Usage. If it is determined that
Customer’s usage is abusive, Customer agrees to pay a per minute, per
text message, or per page fee for use in excess of typical levels at
the then current rate established by RingByName, of at least $.06 per
minute for voice calls and/or $.06 per facsimile page. At RingByName’s sole option, Customer’s service may
be immediately terminated. THIS OVERAGE FEE APPLIES TO ALL PLANS
INCLUDING THE UNLIMITED PLANS. A Customer’s aggregate usage may be
considered outside of normal use if involves excessive:
Number of calls made to a conference calling service during a month;
Number of calls terminated and re-initiated consecutively, which, in
the aggregate, result in excessive call lengths during a specific time
frame;
Number of text messages;
Number of inbound domestic toll free calling patterns during a month; or
Other abnormal calling patterns indicative of an attempt to evade
enforcement of this Reasonable Use Policy
Based on such a combination, RingByName may determine that abnormal,
unreasonable or impermissible usage is occurring when compared to
typical customers on the same calling plan, and may take appropriate
steps described below to enforce this Section 18 and Section 19, as
well as the Terms of Service. If, in RingByName’s
sole discretion, RingByName affords Customer the opportunity to correct
Customer’s abnormal usage patterns and Customer fail to immediately
conform to normal use, RingByName may exercise its right to transfer
Customer’s service to a more appropriate plan, charge applicable rates
for that plan, implement other limitations or suspend or terminate
Customer’s service with or without notice.
f.
Prohibited Use of the Services.
Customer may not use any automated means to manipulate our Service or
use our Service to violate any law, rule, regulation or any third
parties intellectual property or personal rights. By way of example,
Customer shall not use our Service or our device to:
Impersonate another person;
Send bulk unsolicited messages;
Use robots, data mining techniques or other automated devices or
programs to catalog,
Download, store or otherwise reproduce or distribute information from
our Service or use any automated means to manipulate our Service;
Violate any law, rule or regulation;
Violate any third party’s intellectual property or personal rights; or
Exceed Customer’s permitted access to our Service.R
RingByName may remove or block all communications if RingByName
suspects a violation of this Agreement, or if RingByName thinks it
necessary in order to protect RingByName’s
Service, or RingByName, its parent, affiliates, directors, officers,
agents, and employees from harm.
g.
For Lawful and Appropriate Purposes Only; RingByName’s Rights. Customer may not use our
Service or devices in any way that is illegal, improper or
inappropriate. The following is a non-exhaustive list of examples of
illegal, improper, or inappropriate uses of our Service and or devices:
Threatening;
Abusive;
Harassing;
Defamatory;
Libelous;
Deceptive; and
Invasive of another’s privacy or any similar behavior
20.
Fraudulent Use of Service.
Customer shall bear the
risk of loss and assume all liability arising from prohibited,
unauthorized or fraudulent usage of Services. Any such prohibited,
unauthorized or fraudulent use shall be deemed a material breach of the
Agreement by Customer. Customer is responsible to secure all
credentials used to access the Services, including credentials used by
telephones or softphones and credentials used by end users or
administrators, as well as the media access control (MAC) address of
telephones used by Customer. Customer acknowledges that placing
telephones on a publicly accessible internet protocol address or a
publicly accessible network will subject the Customer to a higher level
of risk for fraudulent activity. Customer shall not be excused from
paying for Services or any portion thereof on the basis that fraudulent
calls, and any charges associated with such calls (e.g. long distance
charges), comprised a corresponding portion of the Services. In the
event RingByName discovers fraudulent calls being made, Customer
consents to RingByName taking actions it deems reasonably necessary
(including blocking access to particular calling numbers or geographic
areas), without notice to Customer, to prevent such calls from taking
place. Customer acknowledges and agrees that RingByName: (a) is under
no obligation to investigate the authenticity of calls charged to
Customer’s account, (b) is under no obligation to take action to
prevent such calls from being made, and (c) is not liable for any
fraudulent calls processed by RingByName and billed to Customer’s
account.
21.
No Resale.
Customer represents and warrants that
it will be the ultimate end user of the Service. Customer shall not in
any way resell, license, permit nor allow
any third party to use the Services without receiving RingByName’s prior written consent.
22.
Third Party Networks.
In some cases, RingByName
may utilize the public Internet and third party networks outside of its
control in conjunction with the provision and maintenance of the
Services and its websites. In such cases, RingByName makes no
representation that the Internet or any such third party network will
adequately secure or protect the privacy of Customer or any end user’s
personal information, and RingByName expressly denies any associated
liability. Actions or inactions caused by these third party networks
can result in situations in which RingByName customers’ connections may
be impaired or disrupted. Although RingByName will use commercially
reasonable efforts to remedy or avoid such events, RingByName expressly
disclaims warranties with respect to these third party networks or any
disruptions that may occur thereon. Unless required by law, subpoena,
court order, warrant or other valid government request, RingByName will
only share Customer’s personally identifiable information with other
RingByName entities and/or business partners (including Marketing
Partners and Authorized Distributors) that are acting on RingByName’s behalf to perform the activities
described herein and in accordance with the RingByName Privacy Policy,
located at https://www.RingByName.com/privacy_policy/.
23.
Required Maintenance.
RingByName reserves the
right to perform repair and maintenance or to upgrade, update or
enhance (collectively, the “Maintenance”) its network, infrastructure,
website(s), Services and/or RingByName Equipment with or without prior
notice or liability to Customer, even if the Maintenance causes a
partial or full disruption of the Services; provided, however, and
subject to RingByName’s business needs,
RingByName shall use commercially reasonable efforts to perform the
Maintenance in a manner so as to avoid unduly interfering with
Customer’s use of the Services, including by providing reasonable
commercial notice where feasible.
24.
Suggestions and Feedback.
In the event that
Customer provides RingByName with suggestions, enhancement requests,
recommendations, proposals, documents, or other feedback with respect
to the Services or Software (collectively, “Suggestions”), Customer
grants RingByName and its Affiliates a royalty-free, worldwide,
irrevocable, perpetual license to use, modify, and distribute such
Suggestions in connection with efforts to improve, enhance or modify
the Services or Software without compensation to Customer or
attribution of any kind.
25.
Default and Remedies.
Customer Default. If Customer either (a) fails to make any payment when
due and such failure continues for five (5) business days after written
notice from RingByName, or (b) fails to observe or perform any other
material term of this Agreement and such failure continues for thirty
(30) days after written notice from RingByName, then RingByName may
elect to: (i) terminate this Agreement and/or any Sales Order, in whole
or in part; (ii) immediately suspend Customer’s Service, in whole or in
part; and/or (iii) pursue all remedies RingByName may have at law or in
equity.
Suspension of Services. Notwithstanding any other provision of this
Agreement, RingByName may suspend Customer’s right to access or use any
portion or all of the Service immediately and without liability to
Customer in any of the following circumstances: (i) Customer’s use of
the Service violates and Applicable Laws or the RUP; (ii) RingByName is
legally required to suspend or terminate Service; (iii) Customer’s use
of the Service poses a security risk to the Service or any third party
or may subject RingByName or any third party to liability; (iv) the
occurrence or threat of any other event or circumstance for which
RingByName reasonably believes that suspension of Service is necessary
to protect the RingByName (or other third-party) network, systems or
customers; or (v) Customer’s failure to make payment (as set forth in
Section 11).
RingByName Default. If RingByName fails to observe or perform any
material term of this Agreement, Customer may terminate any applicable
Sales Order only after Customer has delivered written notice of such
failure to RingByName, such notice to contain reasonable detail
describing any breach, and RingByName has failed to remedy such failure
within thirty (30) business days of its receipt of Customer’s written
notice.
26.
RIGHT TO TERMINATE OR MODIFY SERVICES.
RingByName
may modify the Services, including but not limited to the price,
content or nature of the Services, upon written- notice to Customer.
Customer’s continued use of the Services constitutes Customer’s
agreement with the modified Services.
27.
Warranty Disclaimer.
RINGBYNAME PROVIDES THE
SERVICES, EQUIPMENT AND SOFTWARE ON AN “AS IS” AND “AS AVAILABLE” BASIS
WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND (EXCEPT FOR ANY THIRD
PARTY MANUFACTURER WARRANTIES THAT MAY BE APPLICABLE TO EQUIPMENT
PURCHASED BY CUSTOMER FROM RINGBYNAME), WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. RINGBYNAME MAKES
NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER REQUIREMENTS,
SPECIFICATIONS, EXPECTATIONS OR THAT THE SERVICES WILL BE
UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, THAT ANY DEFECTS IN THE
SERVICES WILL BE CORRECTED, THAT THE SERVICES WILL OPERATE IN
COMBINATION WITH CUSTOMER CONTENT, CUSTOMER APPLICATIONS, OR WITH ANY
OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY RINGBYNAME.
CUSTOMER ACKNOWLEDGES THAT RINGBYNAME DOES NOT CONTROL THE TRANSFER OF
DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS
INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. RINGBYNAME IS
NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO
INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICES OR THE INTERNET IN
GENERAL, OR FOR ANY ISSUES RELATED TO THE PERFORMANCE, USE, OPERATION
OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER’S USE, CUSTOMER
CONTENT, CUSTOMER APPLICATIONS, OR THIRD PARTY CONTENT. RINGBYNAME
DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE RELIABILITY,
ACCURACY, COMPLETENESS, CORRECTNESS OR USEFULNESS OF THIRD PARTY
CONTENT. TO THE EXTENT THAT RINGBYNAME CANNOT DISCLAIM ANY WARRANTIES
IN CERTAIN JURISDICTIONS, THE SCOPE AND DURATION OF SUCH WARRANTY WILL
BE THE MINIMUM PERMITTED UNDER SUCH LAW. ALTHOUGH REASONABLE EFFORTS
ARE MADE TO PROVIDE SECURITY FOR VOICEMAILS AND FAX TRANSMISSIONS,
RINGBYNAME MAKES NO GUARANTEES OR WARRANTIES OF SECURITY.
28.
Limitation of Liability
NEITHER RINGBYNAME, NOR
ITS AFFILIATES, VENDORS, SUPPLIERS, DISTRIBUTORS, CHANNEL AND OTHER
MARKETING PARTNERS OR OTHER REPRESENTATIVES SHALL BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES,
REPLACEMENT COSTS, OR ANY LOSS OF REVENUE OR PROFITS, CONTENT, DATA, OR
DATA USE, EVEN IF RINGBYNAME HAS BEEN INFORMED IN ADVANCE OF SUCH
DAMAGES OR SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN BY
RINGBYNAME. RINGBYNAME’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING
OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR
OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO
RINGBYNAME UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM SUBJECT TO THIS
SECTION 28. THE PARTIES ACKNOWLEDGE AND ACCEPT THE REASONABLENESS OF
THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION
28.
29.
Indemnification
Customer agrees to defend,
indemnify and hold harmless RingByName from and against any loss,
damage or costs (including reasonable attorney’s fees) incurred in
connection with claims made or brought against RingByName by a third
party arising from or relating to: (i) any act, error, omission, fault,
negligence, or misconduct of Customer or any user of the Services,
Software or RingByName Equipment, whether authorized or unauthorized by
Customer; (ii) Customer’s breach of any obligation, warranty,
representation, or covenant of this Agreement or the RUP; (iii) any
claim by any employee or invitee of Customer or user other than a claim
based on the gross negligence or willful misconduct of RingByName; (iv)
any claim by any customer of Customer, end user or other third party
relating to, or arising from, Customer Data or Customer’s use of the
Services, Software or RingByName Equipment; or (v) violation of any
Applicable Laws by Customer or any Customer employee, contractor or
agent.
30.
Confidentiality.
"Confidential Information” means all nonpublic information relating to
a Party or its Affiliates that (i) if provided in writing, is marked or
labeled as confidential or proprietary, or (ii) if provided verbally,
is designated as confidential at the time of disclosure, or (iii) even
if not so marked, labeled or identified, given the nature of the
information or the circumstances surrounding its disclosure, reasonably
should be considered as confidential. Confidential Information
includes, without limitation, all nonpublic information relating to (i)
a Party’s or its Affiliates’ technology, customers, employees, business
plans, agreements, finances and other business affairs, (ii) the
RingByName network or service delivery platform, and (iii) the terms of
any Sales Order. Confidential Information does not include any
information that (i) has become publicly available without breach of
this Agreement, (ii) was known to the Party receiving Confidential
Information under this Agreement (the “Receiving Party”) at the time of
its receipt from the Party disclosing the Confidential Information (the
“Disclosing Party”) or its Affiliates as shown by documentation
reasonably acceptable to Disclosing Party, (iii) is received from a
third party who did not acquire or disclose such information by a
wrongful or tortious act, or (iv) was independently developed by the
Receiving Party without use of any Confidential Information as shown by
documentation reasonably acceptable to Disclosing Party.
Each Party hereby agrees to hold Confidential Information in strict
confidence and shall, in any case, protect such Confidential
Information with no less diligence than that with which it protects its
own confidential or proprietary information of a similar nature. The
Receiving Party agrees not to use any Confidential Information of the
Disclosing Party for any purpose unrelated to the Services. Each Party
may disclose the Confidential Information of the other Party on a “need
to know basis” and then only to its (and, in the case of RingByName,
its Affiliates’) directors, officers, advisors, employees and other
legal, business or financial partners or representatives; provided that
all such persons are subject to written confidentiality agreements
which contain provisions which are no less restrictive than the
provisions of this Section 30. In addition, RingByName may disclose
this Agreement under a comparable non-disclosure agreement in response
to a third party due diligence request supporting a financing or
non-ordinary course of business corporate transaction.
If the Receiving Party is legally compelled by any means (including
deposition, interrogatory, request for documents, subpoena, civil or
regulatory investigative demand or similar process) to disclose
Confidential Information of the Disclosing Party, subject to applicable
laws, the Receiving Party must provide the Disclosing Party with prompt
written notice of such legal requirement in order to allow the
Disclosing Party to seek a protective order or other appropriate remedy
or waive compliance with this Section 30.
Upon the termination or expiration of this Agreement, or at any time
upon the request of the Disclosing Party, the Receiving Party shall, at
the Disclosing Party’s option, return or destroy (and certify as to
such destruction) all Confidential Information of the Disclosing Party
in its control or possession, other than copies which the Receiving
Party may be required to maintain under applicable law or regulation.
31.
EMERGENCY 911 SERVICES. BY USING THE SERVICE
AND/OR RINGBYNAME EQUIPMENT, CUSTOMER ACKNOWLEDGES THE LIMITATIONS OF
RINGBYNAME E911 SERVICE AS DESCRIBED IN THE E911 DISCLOSURE, AS WELL AS
THOSE SET FORTH IN THIS SECTION 31. CUSTOMER AGREES AND ACKNOWLEDGES
THAT WHILE MOST RINGBYNAME SERVICES OFFER ACCESS TO E911 SERVICE,
OTHERS MAY NOT. CUSTOMER IS ADVISED TO THOROUGHLY READ AND UNDERSTAND
THE E911 DISCLOSURE AND THE OPTIONS AVAILABLE. CUSTOMER ACKNOWLEDGES
THAT IT HAS RECEIVED THE E911 DISCLOSURE AND HAS READ, UNDERSTANDS AND
AGREES TO THE TERMS AND CONDITIONS OF THE E911 DISCLOSURE, AND ASSUMES
THE RISKS ASSOCIATED WITH THE RINGBYNAME E911 SERVICE LIMITATIONS.
32.
Local Number Portability.
a.
Number Transfer on Service Activation. In the
event Customer is not utilizing a new phone number or numbers for the
Services, but rather is transferring existing phone number(s) which
currently is subscribed to a carrier other than RingByName to
RingByName, the terms and conditions of this section shall apply:
Customer hereby authorizes RingByName to notify Customer’s current
local telephone company or other service provider of its decision to
switch local, local toll and long distance services to RingByName and
represents that Customer is authorized to take this action;
Customer acknowledges that service providers require verification of
identity, as well as authorization and other reasonable information in
order to transfer (or “port”) any numbers to RingByName. Customer must
correctly complete a letter of authorization, provide RingByName with a
copy of Customer’s most recent bill from such service provider, and
provide RingByName with any other information required by such service
provider to port Customer’s number to RingByName. FAILURE TO PROVIDE
ANY INFORMATION REQUESTED BY RINGBYNAME OR THE THIRD PARTY SERVICE
PROVIDER WILL DELAY THE PORTING OF THE NUMBER TO RINGBYNAME. RINGBYNAME
SHALL NOT BE RESPONSIBLE FOR ANY DELAY IN THE PORT OF CUSTOMER’S NUMBER
AND WILL NOT PROVIDE CREDIT FOR ANY SUCH DELAYS.
Customer agrees and acknowledges that if the Services are set up prior
to the date that the number transfer becomes effective (“Port Effective
Date”), Customer may only be able to make outgoing calls using the
Services. In such event, Customer should keep another phone connected
to the existing phone number to receive incoming calls until the Port
Effective Date, after which Customer will be able to both make and
receive calls using the Service. Customer agrees and acknowledges that
if the Activation Date has not occurred as of the Port Effective Date,
its existing phone service for the number being transferred may be
disconnected and Customer may have no service for that number.
Therefore, to avoid an interruption in Customer’s phone service,
Services must be activated prior to the Port Effective Date. An
estimate of the Port Effective Date will be sent to Customer via e-mail
by RingByName.
b.
Number Transfer on Service Termination. After the
Activation Date, RingByName or its providers may receive requests from
other telephony providers (“Requesting Party”) acting as agents on
Customer’s behalf to port a telephone number currently assigned to
Customer to a third party provider (“Port-Out”). RingByName will
support all such requests and will cooperate with the Requesting Party
to perform any Port-Out in accordance with the Requesting Party’s
reasonable directions and RingByName’s or
its vendors’ standard operating procedures. Until the effective date of
Customer’s proper termination (in accordance with the terms of this
Agreement), Customer will: (a) remain a RingByName customer; and (b) be
responsible for all charges and fees associated with Customer’s
RingByName Service. Customer will not receive any refund or partial
refund or any credits for any charges already billed to Customer’s
account. RingByName assumes no liability for costs associated with any
numbers that cannot be ported or that Customer chooses not to port.
Customer acknowledges that in the event of any account termination or
cancellation, all telephone numbers associated with Customer’s account
may be released. Similarly, the cancellation of individual services
that have associated telephone numbers will result in the release of
such numbers. Customer acknowledges that it is Customer’s
responsibility to work with a third party provider to port out those
numbers prior to Customer’s termination or cancellation of Customer’s
account or termination of Services.
c.
Ported Telephone Numbers Upon Cancellation.
Cancellation. If Customer requests that a new service provider port a
number from RingByName, then Customer is required to inform RingByName
of Customer’s intent to terminate the specific affected Services on
Customer’s account or RingByName will continue to bill for such
Services. Customer will continue to be responsible for all the charges
and fees associated with the remaining Services on Customer’s
RingByName account. Customer will not receive any refund or partial
refund or any credits for any charges already billed to Customer’s
account.
Consent & Electronic Submission. In some cases, RingByName may
permit Customer to submit documentation required to port numbers using
a web-enabled user interface. Customer may withdraw Customer’s consent
to submit Customer’s porting request electronically by contacting
RingByName Customer Care prior to our submitting the porting request to
the carrier. Customer’s consent to electronic submission applies only
to the specific porting request Customer submit through web-enabled
interface.
Facsimile Service. Numbers assigned by RingByName for RingByName’s facsimile service cannot be ported
to a new service provider without the assistance and cooperation of
RingByName’ underlying partner. RingByName will use commercially
reasonable efforts to facilitate a port of a facsimile number which was
ported on Customer’s behalf to RingByName by another service provider.
Customer may be required to pay a porting fee to RingByName not to
exceed One Hundred Dollars ($100.00) per facsimile number ported.
Beta Services and Software. Certain Services or Software may be
designated or offered as a “beta” version (“Beta Version”) of a Service
or Software, which may or may not be released as a full commercial
service in the future. Except as otherwise indicated under separate
terms and conditions that may apply to such Beta Versions, RingByName
shall not charge for such Beta Versions, but reserves the right to
charge for subsequent versions of the Beta Version, including any
potential commercial releases. Customer acknowledges and agrees that
the Beta Version may contain, in RingByName’s
sole discretion, more or fewer features or different licensing terms
than a subsequent commercial release version of the Beta Version.
RingByName reserves the right not to release later commercial release
versions of the Beta Version. Without limiting any disclaimer of
warranty or other limitation stated in these Terms (or any separate
terms and conditions that would otherwise be applicable to such Beta
Versions), Customer agrees that Beta Versions are not considered by
RingByName to be suitable for commercial use, and that may contain
errors affecting their proper operation. CUSTOMER ACKNOWLEDGES AND
AGREES THAT USE OF ANY BETA VERSION MAY EXHIBIT SPORADIC DISRUPTIONS
THAT HAVE THE POTENTIAL TO DISRUPT CUSTOMER’S USE OF ANY SERVICES OR
SOFTWARE. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, INCLUDING
RINGBYNAME SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM CUSTOMER’S
USE OF ANY BETA VERSION. The fact and existence of any Beta Version
shall be deemed to be RingByName Confidential Information under this
Agreement.
33.
General.
Asignment. This Agreement inures to and is
binding upon the Parties’ successors and permitted assignees. Customer
shall not assign this Agreement without RingByName’s
prior written consent, not to be unreasonably conditioned, withheld or
delayed; provided that Customer may, without consent, but with
reasonable prior written notice, assign its rights and obligations
hereunder to any parent, affiliate or subsidiary of Customer or
pursuant to any merger, acquisition, reorganization, sale or transfer
of all or substantially all its assets; provided, however, that any
proposed assignee shall be at least as creditworthy as Customer (as
reasonably determined by RingByName), shall agree in advance and in
writing to assume and be bound by all provisions of this Agreement, and
shall deliver to RingByName fully-executed documents reasonably
acceptable to RingByName establishing the terms of such an assignment.
Any assignment by Customer other than as permitted by this Section
34(a) shall be void and of no force or effect.
Force Majeure. Neither Party is liable for any failure of performance
(other than for delay or performance in the payment of money due and
payable hereunder) to the extent such failure is due to any cause or
causes beyond such Party’s reasonable control, including acts of God,
fire, explosion, vandalism, cable cut, adverse weather conditions,
governmental action, acts of terrorism or strikes and similar labor
difficulties. Either Party’s invocation of this clause will not relieve
Customer of its obligation to pay for any Services actually provided or
permits Customer to terminate any Services except as expressly provided
herein. In the event such force majeure event prevents the availability
or material use of the affected portion of Services and such event
continues for more than ten (10) consecutive days, either Party may
terminate the affected portion of the Services without liability.
Intellectual Property and Publicity. Except as explicitly granted
herein, neither Party is granted a license or other right (express,
implied or otherwise) to use any trademarks, copyrights, service marks,
logos, trade names, patents, trade secrets or other form of
intellectual property of the other Party or its affiliates without the
express prior written authorization of the other Party. Customer will
not issue any press release or other public statement relating to this
Agreement, except as may be required by law or agreed by RingByName in
a writing signed by an authorized representative of RingByName’s Corporate Communications
department. Customer agrees that RingByName may identify Customer using
its name, trademarks and/or logos in its marketing collateral,
presentations and websites, provided that Customer may revoke such
right with written notice to RingByName at any time.
Nonexclusive. This Agreement is non-exclusive. Nothing in this
Agreement prevents either Party from entering into similar arrangements
with other persons or entities.
Notices. Except as otherwise provided in this Agreement,
To Customer: In the event RingByName is required or desires to provide
Customer with notice under this Agreement, it will provide electronic
notice to the e-mail address on file for the Company Contact and/or
Company Administrator. In the event Customer changes its e-mail address
for notice purposes, Customer shall advise RingByName immediately in
writing. Customer hereby agrees to electronic delivery of all required
notifications, including invoices, unless otherwise expressly provided
herein.
To RingByName: Any notice required or given under this Agreement to
RingByName (except for billing dispute as described in Section 11) will
be in writing and delivered to RingByName as follows:
RingByName:
Attn: Legal Department
7206 NW 31st Street
Miami, FL 33122
Such address and contact information may be changed by either Party by
prior written notice to the other Party in accordance with this
paragraph. A notice will be deemed to be duly given (i) on the date of
delivery if personally delivered by hand or by a nationally recognized
overnight express courier, or (ii) upon the third day after such notice
is deposited in the United States mail, if mailed by registered or
certified mail, postage prepaid, return receipt requested. For clarity,
e-mail or fax notices are informational only and shall not constitute
formal notice.
Facsimile and Electronic Transmission; Counterparts. Sales Orders, and
other documents that may be executed in connection with the Services
(collectively “Service Documentation”), may be executed and delivered
by facsimile or electronic transmission, and upon receipt, such
transmission shall be deemed the delivery of an original. Service
Documentation may be executed in several counterparts, each of which
when executed shall be deemed to be an original, and such counterparts
shall each constitute one and the same instrument.
Electronic Communications and Consent to use of Electronic Signatures
and Records. As a convenience and courtesy to you, RingByName provides
access to its Services online which may require Customer to enter into
agreements or receive notices electronically. Accordingly, Customer
acknowledges and agrees that by clicking “I Agree” or “I Accept”
anywhere on a RingByName website:
Customer agrees to conduct electronically the particular transaction
into which Customer thereby enters including, without limitation,
entering into this Agreement;
Customer has read and understands the electronic copy of electronic
contracts, notices and records, including, without limitation, this
Agreement, and any policies and any amendments hereto or thereto;
Customer agrees to, and intends to be bound by, the terms of the
particular transaction into which Customer thereby enters;
Customer is capable of printing or storing a copy of electronic records
of transactions into which Customer enters including, without
limitation, this Agreement and any amendments hereto;
Customer agrees to receive electronically information about the
Services and other electronic records into which Customer thereby
enters including, without limitation, this Agreement; and
Customer agrees that any personally identifiable information that
Customer provides may be used by RingByName and its Authorized
Distributors or Marketing Partners in accordance with the RingByName
Privacy Policy located at https://www.RingByName.com/privacy_policy/.
Basis of Bargain; Failure of Essential Purpose. Customer acknowledges
and agrees that RingByName has established its prices and entered into
this Agreement in reliance upon the limitations and exclusions of
liability and the warranty disclaimers set forth in this Agreement, and
that they are an essential basis of the bargain between the parties and
are material terms of this Agreement. The Parties agree that the
limitations and exclusions of liability and warranty disclaimers
specified in this Agreement will survive and apply even if found to
have failed their essential purpose, and Customer hereby waives its
right to contest the enforceability of any provision of this Agreement
by reason of such failure.
No Commitments. Customer represents that RingByName has made no
commitments or promises orally or in writing with respect to delivery
of any future features or functions. In relation to any future features
or functions, all presentations, RFP responses, and/or product roadmap
documents, information or discussions, either prior to or following the
date herein, are informational only, and are not the basis for, nor
part of this this Agreement or any Sales Order. RingByName has no
obligation to provide any future releases or upgrades or any features,
enhancements or functions, unless specifically agreed to by both
Parties. Customer acknowledges that its purchasing decisions are not
based upon any future features or functions.
Survival, Modification. The terms and conditions of this Agreement will
survive the expiration or other termination of this Agreement to the
fullest extent necessary for their enforcement and for the realization
of the benefit thereof by the Party in whose favor they operate. Except
for the rights of RingByName in Section 1, all modifications,
amendments, supplements to or waivers of this Agreement must be in
writing and executed by authorized representatives of both parties.
Relationship of the Parties. The relationship of RingByName and
Customer shall not be that of partners, agents or joint venturers for one another, and nothing contained
in the Agreement shall be deemed to constitute a partnership or agency
agreement between the Parties for any purposes. RingByName and Customer
shall be independent parties and shall discharge their contractual
obligations at their own risk subject to the terms of this Agreement.
Third Party Services. RingByName may use or rely on one or more
licensors, service providers, and/or equipment providers or equipment
lessors whose products, equipment and/or services are provided in
conjunction with, or incorporated into, the Services and/or RingByName
Equipment (“Third-Party Services”). Each provider of such Third-Party
Services (a “Third-Party Service Provider”) is expressly made a third
party beneficiary under the applicable Sales Orders and this Agreement
and shall have the right to enforce the terms and conditions of the
Sales Orders and this Agreement respecting any terms affecting such
Third-Party Service Provider as if such Third-Party Service Provider
were a party to the Sales Order and/or this Agreement. No other third
party beneficiaries of this Agreement are intended by the Parties.
Further, Third-Party Services may be governed by separate legal terms
and conditions, which may be found or identified in documentation or on
other media delivered with the Third-Party Services and which are
incorporated by reference into these Terms and shall govern the use of
Third-Party Services. Customer agrees to comply with such terms and
conditions of all Third-Party Services and Third-Party Service
Providers. Any non-compliance with terms and conditions of Third Party
Service Providers shall be considered non-compliance with these Terms.
Waiver. The failure of either Party to enforce compliance with a
provision of this Agreement shall not be construed as a general waiver
of such provision or any other provision.
Severability. If any term, covenant or condition contained in this
Agreement or any Sales Order is, to any extent, held invalid or
unenforceable in any respect under the laws governing this Agreement,
the remainder of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
Governing Law. The laws of the State of Florida will govern this
Agreement, without reference to its principles of conflicts of laws.
Because this agreement is a transaction in interstate commerce, the
Federal Arbitration Act (“FAA”), and not state arbitration law, shall
govern the interpretation, validity and enforceability of the
arbitration provision in Section 34, below.
Entire Agreement. This Agreement supersedes any prior or
contemporaneous agreements, statements, understandings, writings,
commitments, or representations concerning its subject matter, as
between Customer and RingByName.
Export Controls. Customer agrees to comply fully with all relevant
export laws and regulations of the United States, including the U.S.
Export Administration Regulations, administered by the Department of
Commerce. Customer also expressly agrees that it shall not export,
directly or indirectly, re-export, divert, or transfer any portion of
RingByName Service, Equipment or Software to any destination, company,
or person restricted or prohibited by U.S. export controls.
34.
Dispute Resolution; Binding Arbitration.
Written Notice. In the event either Party has a dispute or claim
against the other Party (except with respect to invoice disputes which
are addressed in Section 11(e)), the disputing Party shall provide
written notice to the other Party in accordance with the provisions of
Section 33(e), above.
Initial Escalation to Management. The Parties agree to escalate
disputes to their respective management, who will use commercially
reasonable efforts to resolve the dispute by consulting with each other
in good faith to reach an equitable resolution satisfactory to both
parties within thirty (30) days of the receipt of notice. Neither Party
shall pursue or commence proceedings regarding the dispute in any
court, administrative arbitral or other adjudicative body prior to
engaging in such consultations and negotiations.
Resolution in Small Claims Court. In the event the dispute is not
resolved, and the claim falls within the dollar limit allowed by
applicable state law along with any other jurisdictional requirements,
either Party may seek to have that dispute resolved in small claims
court in any state in which Services are provided to the Customer by
RingByName.
Binding Arbitration. If negotiations fail to resolve the dispute within
thirty (30) calendar days, and/or small claims court is not a valid
option due to the size or nature of the claim, all disputed claims
(except for claims set forth in subsection (e) below) must be resolved
by binding arbitration before a single arbitrator in accordance with
the commercial rules of the American Arbitration Association (“AAA”)
(available on the AAA website, www.adr.org/aaa) in effect as of the
date this Agreement goes into effect. This agreement to arbitrate is
intended to be given the broadest possible meaning under Applicable
Laws. The initiation of an arbitration dispute shall not otherwise
prevent RingByName or Customer from terminating Services in accordance
with the Terms.
Disputes About This Agreement to Arbitrate.
Disputes about the arbitrability of any
claims and/or the scope, enforceability, or validity of this
arbitration agreement shall be decided by an arbitrator.
Disputes That Need Not Be Arbitrated. Disputed claims involving either
Party’s intellectual property rights, indemnity, or confidentiality
obligations; fraudulent or unauthorized use, theft, or piracy of
service; or matters relating to injunctions or other relief may be
resolved by binding arbitration as set forth in subsection (d), but are
not required to be resolved by binding arbitration and may be heard in
a court of law, at the option of the entity asserting the disputed
claim.
Notice for Commencing Arbitration. If an agreement to resolve the
dispute is not reached, an arbitration proceeding may be commenced by
downloading or copying a form from the AAA website
(http://www.adr.org). The amount of any settlement offer made by
Customer or RingByName shall not be disclosed to the arbitrator until
after the arbitrator determines the amount, if any, to which Customer
or RingByName is entitled.
Location. All hearings conducted as part of the arbitration shall take
place at a location, convenient to Customer, based upon Customer’s
billing address (or, if no business address is provided, your service
address). If Customer claim is for $10,000 or less, Customer or
RingByName may request that the arbitration be conducted solely on the
basis of documents submitted to the arbitrator or through a telephonic
hearing. If either party objects, then the arbitrator shall proceed to
an in-person hearing as established by the AAA Rules. If Customer claim
is in excess of $10,000, the right to a hearing will be determined by
the AAA rules.
Costs. Each Party will be responsible for its own costs incurred in the
arbitration, including arbitration filing fees and attorneys’ or expert
witness fees. The arbitrator’s costs and expenses shall be shared
equally between the Parties. If a Party elects to appeal an award or
seeks to vacate the award in court, the prevailing Party in the appeal
or judicial proceeding shall be entitled to recover all reasonable
attorneys’ fees incurred in that appeal or judicial proceeding.
Waiver of Jury Trial. Customer and RingByName agree that, by entering
into this agreement, Customer and RingByName are waiving the right to a
trial by jury. Customer and RingByName agree that the arbitrator may
award relief only in favor of the individual Party seeking relief and
only to the extent necessary to provide relief warranted by that
Party’s individual claim. The arbitrator may not award special,
indirect, punitive, incidental or consequential damages. CUSTOMER AND
RINGBYNAME AGREE THAT CUSTOMER MAY BRING CLAIMS AGAINST RINGBYNAME ONLY
IN CUSTOMER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS
MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THAT
CUSTOMER EXPRESSLY WAIVES ITS RIGHT TO BRING A CLASS ACTION SUIT.
Customer and RingByName agree that the arbitrator may not consolidate
more than one person’s or entity’s claims, and may not otherwise
preside over any form of a representative or class proceeding.
Severability. If any term, covenant, or condition contained in this
dispute resolution/arbitration provision, is, to any extent, held
invalid or unenforceable in any respect under the laws governing this
dispute resolution/arbitration provision, the remainder of this dispute
resolution/arbitration provision shall be valid and enforceable to the
fullest extent permitted by law.
END OF TERMS OF SERVICE