Terms of ServiceSmart Start Your Move to Unified Communications
altaCloud Voice Terms of Service
as amended August 24, 2018
TERMS OF SERVICE
These Terms of Service together with the applicable Customer Order Form constitute the agreement (“Agreement”) between altaCloud solutions (“we,” “us” or “altaCloud solutions”) and the entity named as the customer on the Customer Order Form (“you,” “user” or “Customer”) for the altaCloud solutions altaCloud Voice Communication services and any related products or services
(“Service”). This Agreement governs both the Service and any Device(s), such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter or any other IP connection Device(s) (“Device(s)” or “Equipment”), used in conjunction with the Service and it applies to all lines on each altaCloud Voice account.
BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY NAMED AS THE CUSTOMER ON THE CUSTOMER AGREEMENT/ORDER FORM AND THAT YOU HAVE READ AND UNDERSTAND FULLY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1. EMERGENCY SERVICES – 911 DIALING
1.1 911 Dialing. altaCloud Voice 911 Dialing will be implemented and operational with the Service. Service may not be used in any address or geographical area different from that reported to altaCloud solutions as the Customer’s installation site. With E911 service, when you dial 911, your telephone number and registered address is simultaneously sent to the local emergency center assigned to your location, and emergency operators have access to the information they need to send help and call you back if necessary. By using this Service, you authorize us to disclose your name and address to third-parties involved with providing 911 Dialing to you, including, without limitation, third parties that own or manage call routers, call centers and local emergency centers.
1.2 Registration of Physical Location Required. For each phone number or device that you use for the Service, you must register the number or device with us to include the physical location where you will be using the Device with the Service and the applicable phone number of the Device. If you move the number or device(s) to another location, you must register the new location of the number or device. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near your old address and cause a delay or failure in ability to receive emergency services associated with 911 Dialing. To re-register your physical location, please email support@altaCloudVoice.com.
1.3 Confirmation of Activation Required. Your 911 Dialing feature will not be activated for any phone line that you are using with the Service, unless and until you receive an email from us confirming that the 911 Dialing feature has been activated for that phone line. Contact us if you do not receive an email after you believe you have registered a Device.
1.4 Service Outages.
(a) Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device(s) prior to utilizing the Service, including 911 Dialing.
(b) Service Outages Due to Internet Outage or Suspension or Disconnection of Broadband Service or ISP Service. Service outages or suspensions or disconnections of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.
(c) Service Outage Due to Disconnection of Your altaCloud Voice™ Account.Service outages due to disconnection of your account will prevent all Service, including 911 Dialing, from functioning.
(d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 Dialing feature, may not function. You acknowledge that altaCloud solutions is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing, which may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you disconnect the Service in accordance with this Agreement.
(e) Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
1.5 Re-Activation Required if You Change Your Number or Add or Port New Numbers. 911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number and the associated Device. 1.6 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
1.7 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither altaCloud solutions Corporation nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless altaCloud Voice™ , its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
1.8 Alternate 911 Arrangements. All customers should maintain an alternate means of accessing 911 services at all times.
2.1 Term. Service is offered on a term basis that begins on the date that
altaCloud solutions activates your Service and continues for the term specified in your Customer Order Form. Upon the expiration of the term of this Agreement, this Agreement along with any additional services purchased during the initial and any subsequent terms will renew automatically on a month to month basis for the pricing in effect as of the end of the term, unless either party notifies the other party in writing that it has elected to terminate such agreement at least sixty (60) days prior to the end of the then-current term.
If you want to terminate this Agreement early, you must provide written notice of termination at least 60 days prior; and you shall immediately pay early termination charges as follows:
No Penalty Cancellation Periods:
One year term – return in first month, no cancellation fee
Two year term – return in first two months, no cancellation fee Three year term – return in first three months, no cancellation fee Early Termination Penalties:
• Cancel within 11 months of terms end – one-time fee equal to three (3) months of service or 100% of the remaining balance of the term contract whichever is less
• Cancel within 22 months of a terms end – one-time fee equal to five (5) months of service or 100% of the remaining balance of the term contract, whichever is less
•Cancel within 33 months of a terms end – one-time fee equal to six (6) months of service or 100% of the remaining balance of the term contract, whichever is less.
You will be liable for usage based charges including but not limited to International calling charges, 411 charges, unbilled charges and other accrued usage charges that you incur on our service. Expiration of the term or termination of Service will not excuse you from paying all accrued usage charges and unpaid charges due under this Agreement.
2. 1(b) Other Term Commitments. If you elect to rent equipment from us or utilize a broadband Access Product such as a T-1 circuit, these services may have other early termination charges. These will be noted on your customer agreement.
2.2 altaCloud Voice™ Use of Service and Device(s). If you subscribe to altaCloud Voice™, the Service and Device(s) are provided to you as a business user. You shall not resell or transfer the Service or the Device(s) to another party without our prior written consent. You are prohibited from using the Service or the Device(s) for auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting. We reserve the right to immediately disconnect or modify your Service if we determine, in our sole and absolute discretion, that your use of the Service or the Device(s) is, or at any time was, inconsistent with normal small business or business travel usage patterns, or that you have at any time used the Service or the Device(s) for any of the aforementioned or similar activities.
2.3 Prohibited Uses.
(a) Unlawful. You shall use the Service and the Device(s) only for lawful purposes. We reserve the right to immediately disconnect your Service without notice, if, in our sole and absolute discretion, we have reason to believe that you have used the Service or the Device(s) for an unlawful purpose. In the event of such disconnection, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a disconnection fee, if applicable, all of which will become immediately due and payable upon disconnection of your Service. If we believe that you have used the Service or the Device(s) for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, altaCloud solutions and /or its carriers and/or its suppliers will provide information in response to law enforcement requests, lawful government requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.
(b) Inappropriate Conduct. You shall not use the Service or the Device(s) in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior. We reserve the right to immediately disconnect your Service without notice, if, in our sole and absolute discretion, we determine that you have used the Service or the Device(s) in any of the aforementioned ways. In the event of such disconnection, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus early termination fees and a disconnection fee, if applicable, all of which will become immediately due and payable upon disconnection of your Service. If we believe that you have used the Service or the Device(s) in any of the aforementioned ways, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, altaCloud solutions and its carriers will provide information in response to law enforcement requests, subpoenas, court orders, to protect it’s rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others . Furthermore, we reserve rights at law and equity to proceed against anyone who uses the Services illegally or improperly.
2.4 Copyright; Trademark; Unauthorized Usage of Device(s); Firmware or Software.
(a) Copyright; Trademark. The Service and Device(s) and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device(s), and all Services, information, documents and materials on our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) are and will at all times remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our marks.
(b) Unauthorized Usage of Device(s); Firmware or Software. You have not been granted any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device(s), other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that the Device(s) is exclusively for use in connection with the Service and that we will not provide any passwords, codes or other information or assistance that would enable you to use the Device(s) for any other purpose. We reserve the right to prohibit the use of any interface Device(s) that we have not provided to you. You hereby represent and warrant that you possess all required rights, including software and/or firmware licenses, to use any interface Device(s) that we have not provided to you. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use of such interface Device(s) with the Service. You shall not decompile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
2.5 Tampering with the Device(s) or Service. You shall not change the electronic serial number or equipment identifier of the Device(s) or perform a factory reset of the Device(s) without our prior written consent. We reserve the right to disconnect your Service if we believe, in our sole and absolute discretion, that you have tampered with the Device(s). In the event of such disconnection, you will remain responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a disconnection fee, if applicable, all of which will immediately become due and payable. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose. 2.6 Theft of Service. You shall not use the Service in a manner calculated to avoid altaCloud Voice™ policies and procedures. You shall not obtain or use the Services in an improper manner. You shall notify us immediately, in writing or by immediately calling our customer support line at 1.800.DIGITEL (800) 3444835, if the Device(s) is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device(s) theft, fraudulent use or unauthorized use of Service. Failure to do so in a timely manner may result in the disconnection of your Service and additional charges to you. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device(s) stolen from you and any and all stolen, fraudulent or unauthorized use of the Service. We reserve all of our rights at law and equity to proceed against anyone who uses the Services illegally or improperly.
2.7 Number Transfer on Service Disconnection. Upon the disconnection of your Service, we may, in our sole and absolute discretion, release to your new service provider the telephone number that you ported (transferred or moved over) to us from your previous service provider and used in connection with your Service if:
· Such new service provider is able to accept such number;
· Your account has been properly disconnected;
· Your account is completely current, including payment for all charges and applicable early termination and disconnection fees; and you request the transfer upon disconnecting your account.
2.8 Service Distinctions. The Service is not a telecommunications service and we provide it on a best efforts basis. Things beyond our control may affect the Service, including, without limitation, power outages, fluctuations in the internet, network congestion and your underlying broadband service. Other things may affect Service, such as maintenance. We will act in good faith to minimize disruptions to your use of and access to Service. Important distinctions exist between telecommunications service and the Service offering that we provide. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.
2.9 Equipment; Ownership and Risk.
(a) Equipment. You acknowledge that use of the Services requires use of specific equipment compatible with the Service. You may choose to purchase the Devices from Us or a third party. You will be fully responsible for the operation, maintenance and repair of all Devices required to use the Services, and altaCloud solutions will not be responsible for any failure in functionality of the Devices or inability to use any features of the Service due to the equipment you use.
(b) Rental of Equipment. If you rent the equipment from altaCloud solutions pursuant to a Rental Agreement, You will bear all risk of loss of, theft of, casualty to or damage to the Device(s), from the time it is shipped to you until the time (if any) when it is returned to DIGITEL in accordance with this Agreement. If altaCloud solutions chooses to rent or lease Devices to you, you must meet our credit requirements and execute a Rental Agreement before altaCloud solutions provides the Devices. Upon any termination of Service or the Rental Agreement, You will return at your expense the Devices to altaCloud solutions in good working repair. Any failure to comply with the Rental Agreement may require you to return the Devices; you will remain responsible for payment of all amounts owed under this Agreement, even if you do not have Devices to use the Services.
2.10 No 0+ or Operator Assisted Calling; May Not Support x11 Calling. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls, 900 or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
2.11 Directory Listing. altaCloud solutions will work with phone directory providers to ensure that the requested telephone numbers are listed in appropriate telephone directories or 411 services as available.
2.12 Content. You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using your Service or Device(s) (each such person, a “User”). You shall assure that your and your User’s use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to disconnect or suspend your Services and remove your or your Users’ content from the Service, if we determine, in our sole and absolute discretion, that such use or content does not conform to the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Our action or inaction under this Section will not constitute any review or approval of your or Users’ use or content.
3. CHARGES; PAYMENTS; TAXES; DISCONNECTION
3.1 Billing. When the service is activated, you must provide us with a valid billing street address, billing email address and a credit or debit card number from a card issuer that we accept. We reserve the right to stop accepting credit or debit cards from one or more issuers. If your credit or debit card expires, you close your account, your billing address changes, or your credit or debit card is cancelled and replaced on account of loss or theft, you must advise us at once. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears) to your credit or debit card, including but not limited to: Activation Fees; Monthly Service Fees; Usage Charges; International Usage Charges; advanced feature charges; premium services/Add-Ons, equipment purchases; regulatory surcharges; Emergency 911 Cost Recovery; 911 fees; federal, state and/or local taxes; disconnection fees; and shipping and handling charges and all other fees set forth on any Customer Order Form. The above fees are defined as follows:
• Activation Fee – This fee covers charges for setting up your account and activating you on our system.
• Monthly Service Fee – This is the basic charge associated with your service. This fee includes the calling charges defined by your plan; the features associated with your plan and basic account services.
• Usage Charges:
• If you exceed the number of calling minutes on your plan, we will bill you for the minutes you use above your allowance in accordance with your agreement.
• Directory Assistance: $1.50 per call.
• Operator Assistance: $3.50 per call charge when a user dials 0 for network operator.
• Toll Free: $0.05 per minute for inbound calls to your toll free number.
• IP Fax Overage: Service includes up to 150 minutes per month. Overage is billed at $0.04 per minute of use.
• Conference Bridge Service: $0.04 per minute per port.
• LNP Cancellation Fee: $20 per phone number when cancellation is requested 48 hours or less prior to a confirmed port time.
• International Usage Charges – These are the fees associated with calls to locations outside of the U.S. Please visit our website for International calling rates.
3.2 Pricing. The amount of such fees and charges shall be published on our website and may change from time to time. We may change our pricing for Services you have already ordered upon at least forty-five days prior written notice. We may introduce new products and services at special introductory pricing. Introductory pricing may change at our discretion. Notification of monthly invoices will be sent to you via your email address on file with us or via US Mail. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $50. We bill usage charges in full minute increments that are rounded up to the next full minute unless otherwise set forth in the rate schedules found on our website. We bill fractional usage charges in full cents that are rounded up when the value is $.005 or more and down when the value is less than $.005, unless otherwise set forth in the rate schedules found on our website. You will be responsible for any charges for international usage, payphone calls to toll free numbers and directory assistance.
3.3 Billing Disputes. You must notify us in writing within fourteen days after receiving your billing statement if you dispute any altaCloud solutions altaCloud Voice charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to:
altaCloud Voice Customer Care Billing Department
9191 Cullowhee Mountain Road
Cullowhee, NC 28723
3.4 Payment and Collection.
(a) Payment. We accept payment by company check. If you choose to be billed automatically by credit card or debit card, your subscription to the Service authorizes us to charge your credit or debit card. This authorization will remain valid until 60 days after we receive written notice from you terminating our authority to charge your credit or debit card, whereupon we will charge your credit or debit card for the termination fee, if applicable, and any other outstanding charges and terminate your Service. We may terminate your Service at any time in our sole and absolute discretion if any charge to your credit or debit card is declined or reversed, your credit or debit card expires and you have not provided us with a valid replacement credit or debit card or in case of any other non-payment of account charges. Fees charged under this Agreement may be increased or a security payment may be required as a result in any change in your creditworthiness or failure to pay amounts owed under this Agreement or any other agreement between You and Us.
(b) Collection. If your Service is terminated, you will remain fully liable to us for all charges pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney’s fees.
3.5 Termination; Discontinuance of Service. We reserve the right to suspend or discontinue the Service in our sole and absolute discretion with 60 days notice or upon ten days prior written notice if based upon your material uncured breach of this Agreement, including nonpayment under this Agreement or any other agreement between You and Us. If we discontinue the Service generally, or terminate your Service without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month’s charges. If we discontinue our Services, we will assist you in the transition of your service to another provider or release your numbers for port out. If your Service is terminated on account of your breach of any provision of this Agreement, you will be responsible for the full month’s charges to the end of the current month, including, without limitation, unbilled charges, plus the termination fee equal to three (3) months of service, all of which will immediately become due and payable. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.
3.6 Taxes. You are responsible for all applicable federal, state, provincial, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to you or your credit card as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate Federal excise taxes and any other applicable taxes and charges cannot be refunded.
4. CONFIDENTIALITY Each party (the receiving party) agrees: (a) to maintain the confidentiality of the other party’s (the disclosing party’s) Confidential Information; (b) not to disclose, use or permit any third party or entity access to, the disclosing party’s Confidential Information (or any portion thereof) without prior written permission of the disclosing party; (c) to ensure that any employees, agents or contractors, or any third parties who receive access to the disclosing party’s Confidential Information, are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing or otherwise revealing such Confidential Information; and (d) to utilize the Confidential Information of the disclosing party solely in accordance with the provisions of this Agreement. Without limiting the foregoing, the receiving party agrees to use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own confidential information of similar importance, but in no event, less than a reasonable degree of care. For purposes of this Agreement, Confidential Information means any nonpublic proprietary information of the disclosing party or its suppliers that has economic value by not being generally known in the marketplace. Each party agrees the Services constitute the Confidential Information of altaCloud solutions and its suppliers. If the receiving party is ordered or reasonably expects to be ordered by a court of competent jurisdiction or a duly authorized regulatory agency to disclose the disclosing party’s Confidential Information, then prior to such disclosure the receiving party shall inform the disclosing party of such order or its reasonable expectation that such order will issue, and the receiving party shall provide the disclosing party with all available information and assistance that the disclosing party may request (at no expense to the receiving party) in contesting such order.
5. LIMITATION OF LIABILITY; INDEMNIFICATION; WARRANTIES
5.1 Limitation of Liability. We will not be liable for any delay or failure to provide the Service, including, without limitation, 911 Dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following:
• an act or omission of an underlying carrier, service provider, vendor or other third party;
• equipment, network or facility failure;
• equipment, network or facility upgrade or modification;
• force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions;
• equipment, network or facility shortage;
• equipment or facility relocation;
• service, equipment, network or facility failure caused by the loss of power to you;
• outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party;
• any act or omission by you or any person using the Service or Device provided to you; or
• any other cause that is beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 Dialing) to be connected or completed, or forwarded.
Our aggregate liability under this Agreement will in no event exceed the Service charges with respect to the time period during which the Service experienced inadequate service.
5.2 Disclaimer of Liability. IN NO EVENT WILL DIGITEL, ITS OFFICERS,
DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE
PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL,
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER
DAMAGES, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, WRONGFUL
DEATH, PROPERTY DAMAGE, LOSS OF DATA, LOSS OF REVENUE OR PROFITS,
OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR
INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO ACCESS
EMERGENCY SERVICE PERSONNEL THROUGH THE 911 DIALING SERVICE OR
TO OBTAIN EMERGENCY HELP. THE LIMITATIONS SET FORTH HEREIN APPLY
TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY,
PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY
AND APPLY WHETHER OR NOT WE WERE INFORMED OF THE LIKELIHOOD OF
ANY PARTICULAR TYPE OF DAMAGES OR SUCH DAMAGE OR LOSS WAS FORESEEABLE
5.3 Indemnification. You shall defend, indemnify, and hold harmless altaCloud solutions, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party or user of the Service, relating to the Services, including, without limitation, 911 Dialing, or the Devices.
5.4 No Warranties on Service. THE SERVICES AND DEVICES ARE PROVIDED AS
IS, WHERE IS WE MAKE NO WARRANTIES AND HEREBY DISCLAIM ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE OR
DEVICE FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY
WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE
OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET
CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING THE FOREGOING, WE DO
NOT WARRANT THAT THE SERVICE OR DEVICE WILL BE WITHOUT FAILURE,
DELAY, INTERRUPTION, ERROR, AND DEGRADATION OF VOICE QUALITY OR
LOSS OF CONTENT, DATA OR INFORMATION. NEITHER DIGITEL NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS, OR ANY OTHER
SERVICE PROVIDER OR VENDOR WHO FURNISHES SERVICES DEVICES, OR
PRODUCTS TO CUSTOMER IN CONNECTION WITH THE SERVICE, WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO OUR OR YOUR TRANSMISSION
FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO,
OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES,
PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT,
FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF
WHETHER SUCH DAMAGE OCCURS AS A RESULT OF DIGITEL’S OR ITS SERVICE
PROVIDER’S OR VENDORS’ NEGLIGENCE. STATEMENTS AND DESCRIPTIONS
CONCERNING THE SERVICE OR DEVICE, IF ANY, BY DIGITEL OR DIGITEL’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
5.5 No Third Party Beneficiaries. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
6.1 Governing Law. The Agreement and the relationship between you and us are governed by the laws of the State of Georgia without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 5.2, you submit to the personal and exclusive jurisdiction of the State and Federal courts located within the State of Georgia and waive any objection as to venue or inconvenient forum.
6.2 Mandatory Arbitration and No Jury Trial. Any dispute or claim between you and any of your users and us arising out of or relating to the Service or Device(s) that cannot be amicably resolved will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Asheville, North Carolina. The arbitrator’s decision will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION OR REQUEST FOR
ARBITRATION ARISING OUT OF OR RELATED TO THE SERVICE MUST BE FILED
WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR
BE FOREVER BARRED. THIS ARBITRATION PROVISION CONSTITUTES A
WAIVER OF ANY RIGHT TO A JURY TRIAL AND AN AGREEMENT TO BE SUBJECT TO JURISDICTION IN, AND CONDUCT ARBITRAL PROCEEDINGS IN, North Carolina.
6.3 No Waiver of Rights. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
6.4 Entire Agreement. This Agreement, including any future modifications as may occur within the terms of the Agreement, and the rates for Services found on our website constitute the entire agreement between you and altaCloud solutions for altaCloud Voice™ services and govern the use of the Service by you, employees, members of your household, and guests. This Agreement supersedes any prior agreements between you and altaCloud solutions for altaCloud Voice™ services and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter, except to the extent You have financed the purchase of any Equipment pursuant to a Rental Agreement. 6.5 Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
7. FUTURE CHANGES TO THIS AGREEMENT
We may change the services descriptions and related terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on www.digitel.net. Such changes will become binding on you on the date they are posted to our website and no further notice by us is required upon your continued use of the Service. The Agreement as and when posted supersedes all previously agreed to electronic and written terms of service. In our discretion, we may provide notice to you of any changes at the address and individual set forth on the applicable Customer Order Form or such other contact information designated by Customer from time to time.
You may download the document here: altaCloud Voice Terms of Service
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