VoIP Terms of Service
These Terms of Service constitute the agreement (“Agreement”) between qcVoice Inc (“we,” “us” or “qcVoice”) and the user (“you,” “user,” “Customer,” “Client” or “Subscriber”) of Voice over IP (“VoIP”) and related business products or services (“Service”). By activation or using any Service, you represent that you are legally authorized to enter into this agreement, that you have read, understand, and fully accept the terms and conditions of this agreement. Furthermore you agree that qcVoice would not provide Service without your consent to this agreement.
You acknowledge that in order to use the Service you must provide your own Internet connection. qcVoice does not provide an Internet connection. We do not control nor are responsible for quality of your own Internet connection. Any assistance you require related to your Internet connection are outside of the scope of these VoIP Terms of Service.
This Agreement governs both the Service and any devices used to connect to the Service, such as an IP phone, (“Device” or “Equipment”). If you purchased Equipment from a dealer, retail store or provider other than qcVoice, you are a “Retail Customer” for purposes of this Agreement.
1.0 VoIP Service
Service is offered on a monthly or term basis as is determined in your Service activation or order form. The term begins on the date that qcVoice activates your Service and ends on the day before the anniversary date of your term. At the end of the initial term, this agreement automatically renews for a subsequent term unless you give us written notice of non-renewal at least ten (10) days before the end of the term in which the notice is given. You are responsible for all payments through the end of your current term, including, without limitation, unbilled charges, all of which become immediately due and payable upon non-renewal of your service. Expiration of the term or termination of Service will not excuse you from paying all accrued and unpaid charges due under this Agreement.
1.2 Use of VoIP Service
You shall not resell or transfer the Service to another party without our prior written consent. You are prohibited from using the Service for auto-dialing, excessive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax broadcasting, or voicemail broadcasting. We reserve the right to immediately terminate or modify your Service if we determine, in our sole discretion, that you have at any time used the Service for any of the aforementioned or similar activities.
1.3 Use of Fax Service
There are laws and regulations in Canada, the United States and other countries that regulate the sending of facsimiles. qcVoice expressly forbids any unlawful use of its services which may violate any applicable law or regulation including the Telephone Consumer Protection Act. It is solely the responsibility of you and your company to ensure that all such laws and regulations, including, without limitation, regulation of unsolicited advertising, are adhered to. You and your company expressly absolve qcVoice of all responsibility for their use of qcVoice Fax services and warrant that your use is in full compliance with all laws and regulations regarding sending facsimiles. You and your company represent and warrant that you will use reasonable efforts to enforce that you and your end-users (a) Only use qcVoice Fax services for lawful purposes and that use of qcVoice Fax services will be in compliance with all federal, state and local laws and regulations including, without limitation, the provisions of the Telephone Consumer Protection Act; (b) Will not use qcVoice Fax services to transmit any unlawful, harmful, threatening, abusive, libelous, vulgar, obscene, profane, hateful, or otherwise objectionable information of any kind, including, but not limited to, encouraging conduct that would constitute a criminal offense, infringe third party rights, give rise to civil liability or otherwise violate any local, state, federal or other law or regulation; (c) Will not use qcVoice Fax services to upload, post, reproduce or distribute, in anyway, any information, software or other material protected by copyright or any other intellectual property right without first obtaining the permission of such right holder; (d) Will comply with all applicable laws, regulations and conventions, including those related to data privacy, international communications, exportation of technical or personal data, and the sending of certain unsolicited facsimiles.
1.4 Right to Modify Services
qcVoice may, at its sole discretion, modify Services, including pricing, nature, function, or content of Services. Your continued use of Services constitutes your agreement now and in the future to any modifications.
1.5 Prohibited Uses
In the event of termination of your Service(s) for violation of Prohibited Uses, you will be responsible for all charges to the end of the current term, including, without limitation, unbilled charges, all of which will become immediately due and payable upon termination of your Service(s). If we believe that you have used the Service(s) for an unlawful, inappropriate, of other unacceptable use as determined by us, 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, qcVoice will provide information in response to law enforcement requests, subpoenas, court orders, to protect qcVoice's rights and property, and in any case where failure to disclose the information may lead to imminent harm to the customer or others.
You shall use Service(s) for lawful purposes only. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used any Service for an unlawful purpose.
(b) Inappropriate Conduct
You shall not use the Service(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 terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service in any of the aforementioned ways.
(c) Use of Service Outside of the United States
Although we encourage you to use of the Service to place calls to foreign countries from within the United States, we do not actively support the Service in countries other than the United States and Canada. If you use the Service(s) outside of the United States or Canada, you will be solely responsible for any violations of local laws and regulations resulting from such use. We reserve the right to terminate your Service immediately if we determine, in our sole and absolute discretion, that you have used the Service(s) outside of the United States or Canada in a manner that we determine is unacceptable.
1.6 Intellectual Property
(a) Copyright and Trademark
The Service(s) and any firmware or software used to provide the Service or provided in conjunction Service(s), including 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 Services(s), Device(s), Firmware and Software
You have not been granted any license to the Device, Firmware or Software, or anything else used in conjunction with our Service(s) other than a nontransferable, revocable license in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that any Device, Firmware, and software 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 for any other purpose. We reserve the right to prohibit the use of any interface device 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 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 with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
1.7 Tampering with the Device or Service
You shall not change the electronic serial number or equipment identifier of any Device or Service, or perform a factory reset of any Device without our prior written consent. We reserve the right to terminate your Service if we believe, in our sole and absolute discretion, that you have tampered with any Device or Service. 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.
1.8 Theft of Service
You shall notify us immediately, in writing or by contacting firstname.lastname@example.org, if the Device 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 contact us, you must provide your account number and a detailed description of the circumstances of the Device or Service theft, fraudulent use, or unauthorized use. Failure to do so in a timely manner may result in the termination 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 stolen from you and any and all stolen, fraudulent or unauthorized use of the Service.
1.9 Return of Device
(a) Retail Customers
A Retail Customer may only return the Device to the retail store, dealer or other provider from which the Retail Customer purchased the Device. All returns will be subject to the return policy of such retail store, dealer or other provider. We will not accept any Device returned to us from a Retail Customer.
(b) Non-Retail Customers
Non-Retail Customers may return the Device to us within fourteen (14) days of the termination of Service to receive a credit for any termination fee provided that (i) the Service is terminated within the first fourteen (14) days following the activation of the Service; (ii) the Device is in original condition, reasonable wear and tear excluded; (iii) the original proof of purchase are returned with the Device, together with the original packaging, all parts, accessories, and documentation; (iv) prior to returning the Device to us, you obtain a valid return authorization from email@example.com; (v) you pay applicable restocking fees; (vi) you pay all costs of shipping any equipment back to us. If you receive cartons or Devices that are visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. In such event, you must keep the original carton, all packing materials and parts intact in the same condition in which they were received from the carrier and contact firstname.lastname@example.org immediately.
1.10 Number Transfer on Service Termination
Upon the termination 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 (i) such new service provider is able to accept such number; (ii) your account has been properly terminated; (iii) your account is completely current, including payment for all charges and applicable termination fees; and (iv) you request the transfer upon terminating your account.
1.11 Service Distinctions
The Service is not a telecommunications service and we provide it on a best efforts basis. 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.
1.12 Ownership and Risk of Loss
You will own any Device that connects to our Service and bear all risk of loss of, theft of, casualty to or damage to such a Device, from the time it is shipped to you until the time (if any) when it is returned to us in accordance with this Agreement.
1.13 Operator Assist and x11 Calling
The Service may not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls 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.
1.14 Directory Listing
The phone numbers you obtain from us will not be listed in any telephone directories unless you have explicitly requested, have paid for any such listing, and such listing is possible in your geography. Phone numbers transferred from your local phone company may be listed. Reverse directory lookup of your phone number may not be possible and will not affect your consent to use Services.
1.15 Incompatibility with Other Services
(a) Security Systems
The Service is not compatible with security systems. You may be required to maintain an analog connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed. You are responsible for contacting any alarm monitoring company to test and maintain the compatibility of any alarm monitoring or security system.
(b) Certain Broadband and Cable Modem Services
You acknowledge that the Service presently may not be compatible with some broadband services. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
2.0 Emergency Services (911/e911)
2.1 Non-Availability of Traditional Dialing Service
Service does not support traditional 911 or E911 access to emergency services in all locations. Where we do not offer traditional 911 or E911 access, we offer a feature known as “911 Dialing.” 911 Dialing is a limited emergency calling service available only on qcVoice certified Devices or Equipment. The 911 Dialing feature may not work at all when used in conjunction with a Soft Phone, Virtual Numbers or Subscriber provided Customer Premise Equipment. Our 911 Dialing feature is not automatic; you must separately take affirmative steps to register the address where you will use the Service in order to activate the 911 Dialing feature. You must do this for each qcVoice phone number that you obtain. The 911 Dialing feature of the Service is different in a number of important ways from traditional 911 or E911 service. You shall inform any employee, user, guest and other third persons who may be present at the physical location where you utilize the Service of (i) the non-availability of traditional 911 or E911, and (ii) the important differences in and limitations of the 911 Dialing feature as compared with traditional 911 or E911 dialing.
2.2 Registration of Physical Location Required
For each phone number that you use for the Service, you must register with qcVoice, the physical location where you will be using the Service with that phone number. When you move a Device to another location, you must register the new location. 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. You will register your initial location of use when you subscribe to the Service. Thereafter, you may register a new location by following the instructions from the “911” registration link on your qcVoice VoIP web account login features page. For purposes of the 911 Dialing feature, you may only register one location at a time for each phone line you use with the Service.
2.3 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.
2.4 How Emergency Personnel are Contacted
We contract with a third party to use the address of your registered location to determine the nearest emergency response center and then forward your call to a general number at that center. When the center receives your call, the operator will not have your address and may not have your phone number. You must therefore provide your address and phone number in order to get help. Some local emergency response centers may decide not to have their general numbers answered by live operators 24 hours a day. If we learn that this is the case, we will send your call instead to a national emergency calling center and a trained agent will contact an emergency center near you to dispatch help. You hereby authorize us to disclose your name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location.
2.5 Service Outages
(a) 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 prior to utilizing the Service, including 911 Dialing.
(b) Due to Internet Outage, Suspension or Termination of Broadband, or ISP Service
Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.
(c) Service Outage Due to Suspension or Termination of Your qcVoice Account
Service outages due to suspension or termination 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 qcVoice 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 terminate 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.
2.6 Re-Activation Required if You Change, 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.
2.7 Network Congestion Effect on Emergency 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.
2.8 Possible Lack of Automatic Number Identification
It may or may not be possible for the local emergency personnel to automatically obtain your phone number when you use 911 Dialing. Our system is configured to send the automatic number identification information; however, one or more telephone companies, not us, route the traffic to the emergency response center and that center may not be capable of receiving and passing on that information. As a result, the operator who answers your 911 Dialing call may not be able to automatically obtain your phone number and call you back if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your phone number, or if the Service is not operational for any reason.
2.9 No Automated Location Identification
In most service areas, it is not possible at this time to transmit to the local emergency response center the address that you registered for 911 Dialing. You will need to state the nature of your emergency promptly and clearly, including your location (and possibly your telephone number), as the operator will not have this information. Emergency personnel will not be able to find your location if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your location, or if the Service is not operational for any reason.
2.10 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 qcVoice 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 qcVoice, 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, attorney’s 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.
2.11 Alternate 911 Arrangements
If you are not comfortable with the limitations of the 911 Dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Service.
3.0 Fair Use Policy
3.1 Fair Use
While most reasonable uses of Service(s) in connection with the terms of this Agreement are permitted by qcVoice, there are certain uses that cause extreme network capacity issues and interference with the network. Any use of the Services or any other action that causes a disruption in the network integrity of Service, qcVoice, or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services. Examples of such prohibited uses include, but are not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, constant dialing, iterative dialing, fax broadcast, fax blasting, telemarketing or any other activity that would be inconsistent with business usage. You agree that you will NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the Services. qcVoice reserves the right to review usage of unlimited minute usage plans to ensure that you are not abusing such plans. You agree to use unlimited minute plans for normal business use and will not take advantage of unlimited plans by using services excessively or for means not intended. qcVoice may terminate service immediately if it determines, in its sole discretion, you are abusing any Service.
For purposes of this policy and your Service, “unlimited usage” means the combined number of inbound and outbound voice minutes and/or fax pages, as determined by us at our sole discretion. We reserve the right to, at any time, enforce this policy. You agree that your usage of qcVoice’s unlimited plans will be comparable to that of the average business customer. qcVoice deems usage which substantially exceeds the average volume of its other unlimited usage plan customers as abusive. You agree that qcVoice has the right to terminate your service or charge you additional fees if your usage is considered abusive. If it is determined that your usage is abusive, you agree to pay a per minute or per page fee for use in excess of those levels at the then-current rate established by qcVoice. This rate is currently $0.039 per minute and/or $0.15 per facsimile page.
3.2 Unlimited Usage
Unlimited usage does not include International calls. 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, transmission of recorded material, or other connections which do not consist of uninterrupted live dialog between two individuals. If qcVoice finds that you are using an unlimited service for other than live dialog between two individuals in absence of subscription to any advanced features which would allow such use, qcVoice may, at its sole discretion, terminate your service or change your unlimited usage plan to a metered usage plan. Notwithstanding the foregoing, you shall be entitled to use qcVoice conference calling services such as three way calling and qcVoice-provided conference bridges.
3.3 Metered Usage
There are certain calls which will incur additional usage charges, such as calls to Alaska, Hawaii and International calls regardless if you subscribe to an Unlimited Usage plan. The Rates for International calls are available upon request. 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 all incur charges at the then current rate established by qcVoice. Metered usage is billed in full-minute increments, and actual usage is rounded up to the next full increment at the end of each call for billing purposes. You are responsible to secure all credentials used to access Services, including credentials used by telephones or softphones and credentials used by end users to access the qcVoice Services, as well as the media access control (MAC) address of telephones you use. You acknowledge 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, as will use of the Services using a network that has not been secured using best practice measures. You acknowledge that you bear the risk of loss arising from any unauthorized or fraudulent usage of the Services.
4.0 Billing and Termination
When the service is activated, you must provide us with a valid email address and a credit card number from a card issuer that we accept. We reserve the right to stop accepting credit from one or more issuers. If your credit or debit card expires, you close your account, your billing address changes, or your credit card is canceled and replaced on account of loss or theft, you must advise us at once by contacting email@example.com. 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 (i) activation fees; (ii) monthly Service fees; (iii) international usage charges; (iv) advanced feature charges; (v) equipment purchases; (vi) termination fees; and (vii) shipping and handling charges.
The amount of such fees and charges may change from time to time. All payments, including payments made in advance are completely non-refundable. Notification of monthly invoices will be sent to you via your email address on file with us. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $500. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in our rate schedules.
4.2 Billing Disputes
You must notify us in writing within seven days after receiving your credit card statement if you dispute any qcVoice 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: qcVoice Inc, PO Box 4409, New York NY 10163.
4.3 Payment and Collection
We only accept payment by credit card, unless other payment terms have been explicitly agreed to in writing by qcVoice. Your subscription to the Service authorizes us to charge your credit card. This authorization will remain valid until 30 days after we receive written notice from you terminating our authority to charge your credit card, whereupon we will charge your credit 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 card is declined or reversed, your credit card expires and you have not provided us with a valid replacement credit card or in case of any other non-payment of account charges.
(b) Late Charges
Failure to make payments in full may lead to suspension or termination of Service. Accounts may be reactivated at qcVoice’s sole discretion after your account is paid in full. A $25 per line reconnect fee will apply in the event your service is suspended or terminated. In addition, a late fee in the amount of 1% (or the highest amount allowed by law, whichever is higher), will apply if your payment is more than 30 days past due.
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.
4.4 Termination and Discontinuance of Service
We reserve the right to suspend or discontinue the Service generally, or to terminate your Service, at any time in our sole and absolute discretion. 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 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 plus any charges through the end of the current term of service, including, without limitation, unbilled charges, plus the termination fee, if applicable, all of which will immediately become due and payable.
4.5 Release of Numbers following Termination or Discontinuance
You acknowledge that in the event of any account termination or cancellation, all telephone numbers associated with your account are released and may not be available to you upon your reactivation. Similarly, the cancellation of individual services which have associated telephone numbers will result in the release of such numbers. You acknowledge that it is your responsibility to work with a third party provider to port out those numbers prior to your termination or cancellation of your account or termination of services
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 and will be billed to 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 and are able to validate it.
4.7 Regulatory Fees
A Regulatory Recovery Fee for every phone number assigned to your account may be charged monthly to offset costs incurred by qcVoice to complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee will apply to every phone number assigned, including toll free and virtual numbers.
4.8 Emergency Services Fees
Emergency Service fees are those required by the Federal Communication Commission (FCC) in connection with providing 911, E911, or 911 Dialing. You agree that these fees will be included and shall be collected in addition to your monthly billing.
4.9 Termination Fee
You may be charged a termination fee specified per phone number or device if your Service is terminated for any reason during the Term following the activation of your Service.
4.10 Payphone Charges
If you use our “Toll Free” feature or any toll free feature that we offer in the future, we will be entitled to recover from you any charges imposed on us either directly or indirectly in connection with toll free calls made to your number. We may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion, as we deem appropriate for the recovery of these costs.
4.11 Charges for Directory Calls (411)
We will charge you and you agree to pay for each call made to directory assistance where available.
4.12 Charges for Conference Bridge Calls
We will charge you per minute for each caller who calls into your conference bridge. Your Conference Bridge per minute usage fee will be the lower of (i) 3.9 cents per minute, or (ii) the per minute Conference Bridge usage fee determined in your Service Activation Form. Per minute usage fees will be calculated based on all participants on the conference bridge, including on-network and off-network participants.
5.0 Liability, Indemnification, and Warranties
5.1 Limitation of Liability
We will not be liable for any delay or failure to provide the Service, including 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: (i) an act or omission of an underlying carrier, service provider, vendor or other third party; (ii) equipment, network or facility failure; (iii) equipment, network or facility upgrade or modification; (iv) 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; (v) equipment, network or facility shortage; (vi) equipment or facility relocation; (vii) service, equipment, network or facility failure caused by the loss of power to you; (viii)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; (ix) any act or omission by you or any person using the Service or Device provided to you; or (x) 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 affected time period.
5.2 Disclaimer of Liability for Damages
IN NO EVENT WILL QCVOICE, 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.
5.3 Indemnification and Survival
You shall defend, indemnify, and hold harmless qcVoice, 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, attorney’s 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 any Device.
The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.
5.4 No Warranties on Service
WE MAKE NO 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 QCVOICE 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 QCVOICE’S OR ITS SERVICE PROVIDER’S OR VENDORS’ NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY QCVOICE OR QCVOICE’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.
5.5 Device Warranties
(a) Limited Warranty
Except as set forth herein, if you received the Device new from us and the Device included a limited warranty at the time of receipt, you must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation.
(b) No Warranty
If your Device did not include a limited warranty from us at the time of receipt, you are accepting the Device “as is”. You are not entitled to replacement, repair or refund in the event of any defect.
OTHER THAN WARRANTIES AS TO THE DEVICE EXPRESSLY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE AND THE RETAIL CUSTOMER LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS OF THE 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 DEVICE OR ANY FIRMWARE OR SOFTWARE IS “ERROR FREE” OR WILL MEET CUSTOMER’S REQUIREMENTS. THE FOREGOING WILL NOT BE DEEMED TO LIMIT ANY DISCLAIMER OR LIMITATION OF WARRANTY SET FORTH IN THE DOCUMENTATION PROVIDED WITH THE DEVICE.
5.6 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.
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 Service (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 terminate or suspend your Services and remove you 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.
5.8 Recording Conversations
qcVoice may provide a function that allows a user or Subscriber to record individual telephone conversations. The laws regarding the notice and notification requirements of such recorded conversations varies from state to state. Subscriber is solely responsible for applying the local laws in the relevant jurisdiction when using this feature.
6.1 Governing Law
The Agreement and the relationship between you and us are governed by the laws of the New York state 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 this Agreement, you shall submit to the personal and exclusive jurisdiction of the courts located within New York State and waive any objection as to venue or inconvenient forum.
6.2 Mandatory Arbitration and No Jury Trial
Any dispute or claim between you, any guest, or employee of you and us arising out of or relating to the Service may 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 New York, New York. The arbitrator’s decision will follow the plain meaning of the relevant documents, and 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 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. All claims shall be arbitrated individually. You shall not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. 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, NEW YORK, NEW YORK.
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 constitute the entire agreement between you and qcVoice and govern the use of the Service by you, members of your business, employees and guests. This Agreement supersedes any prior agreements pertaining to the Service between you and qcVoice and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
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.
7.0 Future Changes
7.1 Future Changes
We may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on our website. qcVoice will make best efforts to notify Customers in advance via email regarding changes to the terms and conditions of this Agreement. 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, including, without limitation, any terms included with the packaging of a Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including, without limitation, any written terms enclosed within the packaging of the Device.