BroadTrack Voice Terms & ConditionsBY ACCEPTING THESE HOSTED COMMUNICATIONS SOLUTIONS TERMS AND CONDITIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS BELOW. ALL SERVICE ORDERS AND SERVICES ARE SUBJECT TO THESE TERMS AND CONDITIONS.
These Hosted Communications Solutions Terms and Conditions (the "Agreement") are entered into by and between Kingdom Telecommunications Inc. dba Kingdom Technology Solutions ("Provider"), a Missouri corporation, and the Client purchasing products or services from Provider ("Client").
1. DEFINITIONS. The following terms will have the meanings set forth below.
- 1.1 "Client Data" means any data, information or other materials of any nature whatsoever provided to Provider by Client or a User in the course of implementing or using the Services.
- 1.2 "Service Descriptions" means user manuals and other documentation relating to the Services that are made available to Client by Provider in digital or hardcopy form, as updated from time to time.
- 1.3 "Service Fee" or "Service Fees" means the monthly or annual fees set forth in the Service Order to be paid by Client to Provider as consideration for Provider's provision to Client of the Services, but does not include usage fees, taxes or regulatory fees or surcharges, which Client must pay in addition to the Service Fees.
- 1.4 "Service Order" means an order for Services or products.
- 1.5 "Service Plan" means the monthly or annual subscription plan a Client agrees to in the Service Order.
- 1.6 "Service Order Addendum" means a Service Order agreed to by Client subsequent to the initial Service Order.
- 1.7 "Services" means the products or services that are being provided to Client as described in the Service Order, including any Additional Services set forth in a Service Order Addendum accepted by Provider.
- 1.8 "Software" means any proprietary software owned by, licensed by or which Provider has a right to sublicense that is used in or used to provide the Services. "Software" includes, without limitation, any application that Provider makes available to the Client for use on a mobile device.
- 1.9 "User" means a user of the software, client, mobile application or other web-based application, equipment, feature or functionality provided by Provider in conjunction with the Services.
- 2.1 Generally. Provider will provide the Services set forth in an accepted Service Order subject to the terms and conditions of this Agreement. Provider hereby grants Client limited, revocable, non-exclusive, non-transferable access to the Services for use by the number of Users set forth in the Service Order, for Client's own internal business purposes. Provider grants Client a limited, revocable, non-exclusive, non-transferable right to use the Services Descriptions in connection with its use of the Services. Each Service Order will be subject to Provider's acceptance, which will be deemed given if Provider thereafter provides the Services to Client.
- 2.2 Conditions. Client agrees that Provider's obligations to provide the Services are expressly conditioned upon (a) Client's payment of the fees as and when due, and (b) Client's satisfaction of the technical requirements set forth in the Services Descriptions for the Services made available to Client by Provider, as the same may be updated by Provider from time to time.
- 2.3 Additional Services. Client may request an increase in Users or additional Services at any time during the Term (any such increase, "Additional Services") by submitting a Service Order Addendum setting forth the specific Additional Services desired. Each Service Order Addendum will be subject to Provider's acceptance, which will be deemed given if Provider thereafter provides the Additional Services to Client. Upon acceptance by Provider, such Service Order Addendum will be deemed an amendment to the Agreement, subject to all of the terms and conditions herein, and the Service Fees will be increased to reflect the Additional Services, subject to the same pricing and payment terms as are set forth in the Service Order or the Service Order Addendum as applicable.
- 4.1 Early Termination by Client. If Client terminates the Agreement, or some of the Services provided under the Agreement, before the end of the Initial Term or any Renewal Term (the "Terminated Term"), Provider will charge Client, and Client will pay, an early termination charge equal to 100% of the monthly Service Fee for the terminated Services, multiplied by the number of months remaining in the Terminated Term on the date of termination. The early termination charge is in addition to the full monthly Service Fee payable for the month of, and months prior to, termination. Provider will also charge Client, and Client will pay, (a) any unpaid recurring or non-recurring charges waived by Provider at the beginning of or during the Terminated Term, and (b) the difference between the MSRP and the price paid by Client for any equipment purchased at the beginning of or during the Terminated Term. If Client or its User transfers or ports its phone number to a service provider other than Provider, Client must also contact Provider to terminate the Services provided to Client by Provider.
- 4.2 Termination by Provider.
- (a) Provider is entitled, at its sole discretion, to suspend, terminate or change the Services without advance notice upon any misuse of the Services in any way, Client's breach of the Agreement, Client's failure to pay any sum due hereunder, suspected fraud or other activity by Client or a User that adversely affects the Services, Provider, Provider's network or another Client's use of the Services. Provider will be entitled to determine, at its sole discretion, what constitutes misuse of the Services, and Client agrees that Provider's determination is final and binding on Client. Provider may require, and if required, Client will pay, an activation fee as a condition to changing or resuming a terminated or suspended account.
- (b) Provider is entitled to terminate any affected portion of the Services if: (i) Provider is prohibited by law from providing such portion of the Services; or (ii) any material rate or term contained herein and relevant to the affected Services is substantially changed by or as a result of any regulation or order issued by any court of competent jurisdiction, the Federal Communications Commission (FCC), any other local, state or federal government authority, or any carrier or Internet service provider.
- (c) Upon termination of this Agreement under this Section 4.2, Client will be responsible for the full monthly Service Fee for the month in which termination occurs, in addition to any accrued but unpaid usage and other charges.
- 5.1 Payment of Service Fees. Client will pay the Service Fees for Services ordered by Client, and all other amounts due under the Agreement, pursuant to the terms of this Section 5.
- 5.2 Credit. The provision of Services is contingent upon establishment of and continuing credit approval by Provider. Client hereby consents to Provider's procurement of a credit score or report regarding Client. At any time during the Term, Provider is entitled to require a deposit or other acceptable form of security from Client, as it deems appropriate. In addition, if requested by Provider, Client agrees to provide, within two (2) business days of request, appropriate financial records to evaluate Client's continuing ability to pay. Provider may, immediately and without notice, suspend or terminate the Services if Client fails to comply with these security obligations. Upon a payment default by Client not cured in a timely manner, Provider will have the right to offset against any security or deposit held any amounts owed to Provider by Client, and to invoice and collect all other amounts owed.
- 5.3 Billing. Provider will provide Client with a monthly online billing statement for the Services provided each calendar month and bill all charges invoiced to Client's account. Such charges will include monthly service fees, storage charges, activation charges, equipment charges, toll charges, shipping charges, taxes, regulatory recovery fees and any other applicable charges. Monthly Service Fees will be paid in advance of each month's service; any variable charges associated with usage and any other applicable charges associated with such usage shall be billed in arrears. Billing for monthly Service Fees commences upon ordering of the Services, and monthly Services Fees will be billed pro rata in the months in which such Services commence. Client agrees to provide Provider with complete and accurate contact and payment information, which may include Client's credit card information, and Client agrees to advise Provider of any changes thereto. To the extent Client's payment method is by credit card, Client authorizes Provider to charge Client's credit card automatically to pay for Client's charges. If a charge to Client's credit card is declined or reversed, or if the account or credit card has expired or been suspended or closed, or if Client fails to provide Provider with accurate or complete credit card information, Provider may suspend or terminate the Services.
- 5.4 Late/Non-payment. If any charges for the Services are due but unpaid for any reason, Provider may suspend or terminate the Services and all accrued charges will be immediately due, plus a late fee of 1.5% per month. A fee may also be charged to activate a suspended or terminated account. No suspension or termination of the Services or of this Agreement will relieve Client from paying any amounts due hereunder.
- 5.5 Taxes. All Service Fees and other charges are exclusive of any taxes, surcharges, public utility fees and regulatory fees (including, without limitation, Universal Service Fees and E911 taxes). Such taxes and fees will be billed by Provider and paid by Client. Taxes and regulatory fees may increase during the Term, and Client will pay such increased fees commencing with the next monthly bill. Should Client claim an exemption of any taxes or regulatory fees, Client must provide official documented and certified proof of such exemption. In no event will Provider be liable for any taxes due by Client or its User, and Client will defend, indemnify and hold harmless Provider if any claim for taxes or fees is made. If any amounts paid for the Services are refunded by Provider, applicable taxes and regulatory fees may not be refundable.
- 5.6 Regulatory Recovery Fee. A regulatory recovery fee may be charged monthly to offset costs incurred by Provider in complying with inquiries and obligations imposed by federal, state and municipal regulatory authorities 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. The regulatory recovery fee may increase during the Term, and Client will pay such increased fee commencing with the next monthly bill.
- 5.7 Service Fee Changes. Provider may change the Service Fees, the types of Service Plans and any additional usage charges without advance notice. Provider will post such changes to its website (http://www.ktis.com). Notwithstanding the foregoing, the Service Fees agreed upon in Client's Service Order will not be increased during the Initial Term. With respect to any Renewal Term, the Client will be charged Provider's then-current Service Fees in effect at the commencement of the Renewal Term.
- 5.8 Availability. Client acknowledges and agrees that the Services may not be available 100% of the time. Additionally, Services will not be available in the event of interruption in Client's or its User's internet or broadband service. Provider will not credit Client for any interruptions in Service.
- 5.9 Discounts. From time to time in its sole discretion, Provider may offer promotions or discounts. Any promotion or discount codes must be provided to Provider upon purchase of the Services. Client will not be entitled to a subsequent credit for such promotions or discounts if not requested at the time of account creation or change of Service. Promotions and/or discounts may not be used cumulatively or be used for Services retroactively.
- 5.10 Billing Disputes. Client must dispute any charges for the Services in writing to ClientCare@ktis.com within thirty (30) days of the date of the charge by Provider, or Client waives any objection and further recourse with regard to such charges. Notwithstanding the foregoing, Client shall pay all undisputed charges in accordance with this Agreement.
- 5.11 Usage Charges. Every call using the Services that originates or terminates in the Public Switched Telephone Network ("PSTN"), including without limitation other VoIP networks, accrues applicable toll charges. Client will not be charged for monthly usage within the limits of its then-current Service Plan. Usage which exceeds the limits, if any, of Client's then-current Service Plan will be charged to Client in accordance with the Service Descriptions at the rates published at http://www.ktis.com. Calls to phone numbers outside the United States and Canada will also be charged to the Client in accordance with the Service Descriptions at the rates published at http://www.ktis.com.
8. LICENSE; PROHIBITED USES; CLIENT RESPONSIBILITIES; LIMITATIONS.
- 8.1 Client hereby grants to Provider a license to copy, store, record, transmit, display, view, print and use Client Data, solely to the extent necessary to provide the Services to Client. Except as expressly provided in this Section 8, Client grants to Provider no right, title, interest, or license in the Client Data. Client represents and warrants that it has all necessary consents and rights to provide personally identifiable information about its Users to Provider, and Client will provide such information upon reasonable request by Provider.
- 8.2 Client represents and warrants that it will not use the Services for any illegal, fraudulent, improper, or abusive purpose or in any way that interferes with Provider's ability to provide high-quality Services to other Clients, prevents or restricts other Clients from using the Services, or damages any of Provider's or other Clients' property. If Provider discovers use of the Services for anything other than the permitted uses in this Agreement or for any of the prohibited uses in this Agreement, Provider may at its sole discretion terminate or suspend all or part of Client's Services and charge any applicable fees for the Services used plus damages caused by such improper use. Prohibited uses include, but are not limited to: (a) behavior that is illegal, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious or invasive of another's privacy; (b) sending unsolicited messages or advertisements, including e-mail, voice-mail, text messages or faxes (commercial or otherwise) ("spamming"), or otherwise sending bulk or junk e-mail, voice-mail, text messages or faxes; (c) harvesting or otherwise collecting information about others, including e-mail addresses, without their consent; (d) negligently, recklessly, knowingly or intentionally transmitting any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware or any other programs that may be harmful or dangerous; (e) creating a false caller identity ("ID spoofing") or forged e-mail/text message address or header, or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the Services; (f) transmitting any material that may infringe, misappropriate, or otherwise violate the foreign or domestic intellectual property rights or other rights of third parties; (g) violating any U.S. or foreign law regarding the transmission of technical data or software exported through the Services; (h) using the Services in excess of what, in Provider's sole discretion, would be expected of normal business use, including without limitation allowing more than one user to use a single VoIP line or using a single VoIP line in excess of what would be expected of a single user; (i) using the Services in any way that interferes with other Clients' and third parties' use and enjoyment of the Services; (j) using or employing methods and/or devices that are designed or likely to take advantage of, bypass, exploit or otherwise avoid this use policy.
- 8.3 Client understands and agrees that: (a) it will be solely liable for any transmissions sent through the Services under its account or its User's account, including the content of any transmission sent through the Services under its account or its User's account; (b) it will abide by all applicable Provider policies, procedures and agreements related to the Services; and (c) it will not attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services through password mining or any other means.
- 8.4 Some of Provider's plans and other Services are offered on an "unlimited" basis. All unlimited plans: (a) may only be used for normal commercially reasonable business use; (b) are provided only for dialog between two individuals at one time per line; (c) are issued on a "one (1) user per line basis", meaning that only one registered User may be assigned to use the Services for any one line; and (d) are subject to additional usage charges, including but not limited to such charges associated with international calling, in accordance with the then-current rates posted to Provider's website (http://www.ktis.com). Unlimited plans may not be used for any of the following prohibited uses (which are in addition to the other prohibited uses applicable to all Services): (i) trunking or forwarding a Provider Number to another phone number capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system; (ii) spamming or blasting (e.g., sending bulk or junk voice-mails, e-mails, text messages or faxes simultaneously); (iii) bulk call-in lines (e.g., Client support or sales call centers, "hotlines", 900 numbers, sports-line numbers, etc.); or (iv) auto-dialing or "predictive" dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls). In addition, unusually high usage of the Services may impair Provider's ability to provide high-quality Services to others and/or indicate unauthorized use of the Services, in which case Provider may suspend or terminate Client's account or, upon prior notice, convert Client's account to a metered calling plan that charges significantly higher usage rates.
- 8.5 Client must report any unauthorized use of the Services to Provider immediately after Client discovers such use. Client is responsible for all use of the Services, whether authorized or unauthorized. Client will be responsible if any of its Users use the Services in a manner prohibited by this Agreement. Client will be responsible for any act or omission of a User that would be a breach of this Agreement if done by Client.
- 8.6 Client acknowledges and agrees that the right to use any Services is nonexclusive and nontransferable, and Client will not permit use of the Services other than for its internal business purposes. Nothing in this Agreement will pass to Client or any User title to any of the Services, any trade names, trade dress, trademarks, service marks, commercial symbols, copyrightable material, designs, logos and/or any other intellectual property of Provider or its vendors. Client will not challenge or attempt to register or otherwise protect any of Provider's intellectual property or other rights in the Services.
- 8.7 Client will not: (a) copy or adapt the Services for any purpose, except as specifically permitted under this Agreement; (b) use the Services except in accordance with all applicable laws and regulations, and except as set forth in this Agreement; (c) reverse engineer, translate, decompile, or disassemble the Services; (d) use the Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party other than a User; (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Services; or (f) delete, alter, cover, or distort any copyright or other proprietary notices or trademarks with respect to the Services.
- 8.8 Client understands and accepts that, in order to protect Client against fraudulent use of the Services, Provider may require Client to contact Provider in order to enable calling to certain calling destinations.
- 8.9 Client will execute such other documents, provide such other information, and affirmatively cooperate with Provider, all as may be reasonably required by Provider relevant to providing the Services.
10. ELECTRONIC RECORDING. Client agrees that there are federal and state statutes governing the electronic recording of telephone conversations and that Provider will not be liable for any illegal use of any recording services provided to Client or its Users. It is Client's responsibility to determine if the electronic recordings are legal under applicable federal and state laws and to comply with those laws. Client will defend, indemnify and hold harmless Provider for any claims, damages, fines, penalties or costs (including, without limitation, attorneys' fees) arising out of Client's or its User's failure to adhere to applicable electronic recording laws.
11. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF CLIENT COMMUNICATIONS. Client is solely responsible for maintaining the confidentiality of Client's account login information (including, without limitation, its Users' account login information), and will not allow a third party to use the Services. Client is solely responsible for any and all activities that occur under Client's account or its User's account, including, without limitation, fraudulent use of the account. Client and its Users must comply with laws regarding online behavior, acceptable content and the transmission of equipment and information under applicable export laws. Client also agrees to comply with applicable local rules or codes of conduct (including, if applicable, codes of conduct or policies imposed by employers) regarding online behavior and acceptable content. Use of the Services is void where prohibited. Client will immediately notify Provider of any unauthorized use of Client's account or its User's account or any other breach of security related to Client's account, its User's account or the Provider Services. Client and each User must "log off" at the end of each session. Provider is not liable for any loss or damage arising from Client's or its User's failure to comply with any of the foregoing obligations. In consideration for using the Provider Services, Client will: (a) provide certain current, complete and accurate information about Client and Users when prompted to do so by the Provider Services, and (b) maintain and update this information as required to keep it current, complete and accurate. Client agrees that Client is solely responsible for the content of all visual, written or audible communications ("Content") sent, displayed or uploaded by Client or a User in using the Services. Although Provider is not responsible for any such communications, Provider may reject or remove any Content that violates a law or this Agreement. Client or the User retains copyright and any other rights already held in Content that Client or the User submits, posts or displays on or through, the Services, or any music or ring-tones Client or a User uses in connection with the Service. Client understands and agrees that by displaying, exchanging or uploading Content to a Provider website, transmitting Content using the Services or otherwise providing Content to Provider, Client automatically grants (and warrants and represents that it has a right to grant) to Provider a world-wide, royalty-free, sub-licensable (so Provider affiliates, contractors, resellers and partners can deliver the Services) perpetual, irrevocable license to use, modify, publicly perform, publicly display, reproduce and distribute the Content in the course of offering the Services, including, without limitation, on associated websites ("Sites"). Furthermore, Client represents and warrants that it has all necessary consents and rights to transmit Content and other communications from its users to Provider.
12. RESPONSIBILITY FOR CONTENT OF OTHERS. Client acknowledges that Users may violate one or more of the above prohibitions, but Provider assumes no responsibility or liability for such violation. If Client becomes aware of misuse of the Services by any person, entity or organization, Client agrees to contact Provider Client Support at 877-556-1233 or ClientCare@ktis.com. Provider may investigate any complaints and violations that come to its attention and may take any action that it believes is appropriate, including, but not limited to, issuing warnings, removing the content or terminating accounts and/or User profiles. Under no circumstances will Provider be liable in any way for any data or other content available on a Site or actions taken while using the Services, including, but not limited to, any errors or omissions in any such data, content or activity or any loss or damage of any kind incurred as a result of the use of, access to or denial of access to any data, content or activities on a Site. Provider does not endorse and has no control over what Users post, submit to or do on a Site. Client acknowledges that Provider cannot guarantee the accuracy of any information submitted by any User of a Site, nor any personally identifiable information about any User. Provider reserves the right, in its sole discretion, to reject or remove content.
13. EMERGENCY 911 SERVICES.
- 13.1 Service Limitations. The FCC requires that Provider provide E911 Service to all Clients who use Provider Services within the United States. Sections 13.2-13.8 apply to all Clients who use Provider Services within the United States. Section 13.9 applies to all Clients.
- 13.2 ACKNOWLEDGEMENT AND WARNING LABELS. CLIENT ACKNOWLEDGES THAT PROVIDER'S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL WIRELINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 13, AND CLIENT AGREES TO NOTIFY ALL POTENTIAL USERS WHO MAY PLACE CALLS USING CLIENT'S SERVICES OF THE 911 LIMITATIONS DESCRIBED HEREIN. PRIOR TO THE INITIATION OF SERVICE, PROVIDER WILL PROVIDE CLIENT WITH WARNING LABELS REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY DIALING. CLIENT AGREES TO PLACE SUCH LABEL ON OR NEAR EACH TELEPHONE OR OTHER CLIENT-PREMISES OR USER-PREMISES EQUIPMENT ON WHICH THE SERVICES MAY BE USED. IF ADDITIONAL LABELS ARE REQUIRED, CLIENT MAY REQUEST THEM FROM PROVIDER, AND PROVIDER WILL PROVIDE ADDITIONAL LABELS. PROVIDER WILL PROVIDE CLIENT WITH ADVISORY NOTICES REGARDING 911 EMERGENCY DIALING AND REQUEST ACKNOWLEDGMENTS FROM CLIENT. CLIENT WILL PROVIDE SUCH ADVISORY NOTICES TO ITS USERS. CLIENT AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT PROVIDER HAS ADVISED CLIENT OF THE CIRCUMSTANCES UNDER WHICH E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. CLIENT WILL PROVIDE SIMILAR ACKNOWLEDGEMENTS FROM ITS USERS UPON REQUEST BY PROVIDER. PROVIDER ADVISES CLIENT AND USERS TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
- 13.3 ELECTRICAL POWER. CLIENT ACKNOWLEDGES THAT THE SERVICES, INCLUDING WITHOUT LIMITATION E911 SERVICE, WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
- 13.4 INTERNET ACCESS. CLIENT ACKNOWLEDGES THAT THE SERVICES, INCLUDING WITHOUT LIMITATION E911 SERVICE, WILL NOT FUNCTION IF THERE IS AN INTERRUPTION OF CLIENT'S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
- 13.5 NON-VOICE SYSTEMS. CLIENT ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS SUCH AS HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, OR ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. PROVIDER WILL NOT BE LIABLE FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
- 13.6 E911 SERVICE. E911 SERVICE IS A MANDATORY COMPONENT OF ALL INBOUND/OUTBOUND TRADITIONAL FAX AND VOICE SERVICE PLANS. E911 SERVICE IS NOT OFFERED ON VIRTUAL NUMBERS, OUTSIDE THE UNITED STATES, ON TOLL-FREE NUMBERS OR ON SIMILAR SERVICE ACCESSORIES OR ADD-ON SERVICE PLANS. E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. E911 SERVICE IS TIED TO THE CLIENT'S REGISTERED SERVICE ADDRESS ASSOCIATED WITH THE ASSIGNED PHONE NUMBER; CLIENT IS RESPONSIBLE FOR PROVIDING PROVIDER WITH ADDRESS INFORMATION FOR CLIENT'S USERS. THE PROVIDER MOBILE APPLICATION USES THE DEVICE'S DIALER AND CELLULAR TELEPHONE SERVICE TO MAKE 911 CALLS. IF A DEVICE DOES NOT HAVE CELLULAR TELEPHONE SERVICE, THEN THE USER WILL NOT BE ABLE TO CALL 911 FROM THE PROVIDER MOBILE APPLICATION. CLIENT ACKNOWLEDGES THAT PROVIDER'S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE CLIENT'S OR USER'S REGISTERED SERVICE ADDRESS ASSOCIATED WITH THE ASSIGNED PHONE NUMBER. CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY PROVIDER WILL BE BASED UPON THE CLIENT'S OR USER'S REGISTERED SERVICE ADDRESS PROVIDED TO PROVIDER BY CLIENT. IN THE EVENT THAT THE REGISTERED SERVICE ADDRESS ASSOCIATED WITH THE ASSIGNED PHONE NUMBER IS INCORRECT, IS OUTDATED, OR IS NOT COMPLETE, A 911 CALL MAY BE ROUTED INCORRECTLY.
- 13.7 E911 SERVICE CHARGE. CLIENTS THAT ARE REQUIRED TO SUBSCRIBE TO PROVIDER E911 SERVICE WILL BE SUBJECT TO A MONTHLY E911 SERVICE CHARGE. THE MONTHLY E911 SERVICE FEE WILL BE IN ADDITION TO THE APPLICABLE SERVICE FEES FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR PROVIDER E911 SERVICE IS ASSESSED ON A "PER-LINE" (THAT IS, PER PHONE NUMBER BASIS), AND WILL BE SET AT A LEVEL THAT REIMBURSES PROVIDER FOR THE DIRECT COSTS IT INCURS IN PROVIDING PROVIDER E911 SERVICE, INCLUDING EXPENSES PROVIDER INCURS, EITHER DIRECTLY OR INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911 SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI) DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID (LIDB/CNAM) EXPENSES, AND ANY OTHER TAXES OR SURCHARGES DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE PROVISION OF SERVICES TO CLIENTS SUBSCRIBING TO THIS SERVICE. PROVIDER RESERVES THE RIGHT TO ADJUST THE LEVEL OF CHARGES ASSOCIATED WITH THE PROVISION OF E911 SERVICES TO REFLECT INCREASES OR DECREASES IN THE COSTS IT INCURS.
- 13.8 E911 CHARACTERISTICS. CLIENT ACKNOWLEDGES THAT PROVIDER E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE PROVIDER E911 SERVICES UNSUITABLE FOR SOME CLIENTS OR USERS. BECAUSE CLIENT AND USER CIRCUMSTANCES VARY WIDELY, CLIENT SHOULD CAREFULLY EVALUATE ITS OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON PROVIDER E911 SERVICE. CLIENT ACKNOWLEDGES THAT IT IS CLIENT'S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET CLIENT'S AND ITS USERS' EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH PROVIDER E911 SERVICE FROM TRADITIONAL, CIRCUIT-SWITCHED 911 SERVICE:
- E911 SERVICE WILL NOT FUNCTION IF CLIENT'S OR ITS USER'S DTA, PHONE OR VIDEOPHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF CLIENT'S OR ITS USER'S PROVIDER SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND OR OTHER INTERNET SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, CLIENT OR THE USER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE PROVIDER SERVICE, INCLUDING FOR E911 PURPOSES. E911 SERVICE MAY NOT FUNCTION IF CLIENT OR A USER RELOCATES EQUIPMENT OR USES A NON-NATIVE TELEPHONE NUMBER, OR FOR ANY OTHER REASON BEYOND PROVIDER'S CONTROL.
- AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY CHANGE OF AND UPDATE TO CLIENT'S OR A USER'S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO PROVIDER'S NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
- THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING PROVIDER E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE PROVIDER E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE PROVIDER NETWORK, THERE IS A POSSIBILITY THAT A PROVIDER 911 CALL WILL PRODUCE A BUSY SIGNAL, THE CALLER WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES OR THE LOCAL EMERGENCY SERVICE OPERATOR WILL TAKE LONGER TO ANSWER THE CALL THAN 911 CALLS PLACED VIA TRADITIONAL, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
- IF CLIENT OR ITS USER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE PROVIDER EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, PROVIDER E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
- 13.9 E911 LIMITATION OF LIABILITY AND INDEMNITY. CLIENT AGREES THAT PROVIDER WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING A PROVIDER SERVICE OR TO ACCESS OR REACH AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. CLIENT AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS PROVIDER, ITS OWNERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS, AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CLIENT OR A USER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, ACTIONS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) BY, OR ON BEHALF OF, CLIENT OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO 911 DIALING OR THE INABILITY TO ACCESS OR REACH EMERGENCY 911 SERVICES.
15. INDEMNIFICATION. Client will defend the Provider Parties, at Client's expense, against any third-party claim or action, and indemnify and hold harmless the Provider Parties from any and all losses, damages, liabilities, penalties, settlement obligations, costs, attorneys' fees and other legal expenses related to such third-party claim or action, arising from or related to: (a) Client's breach of this Agreement or an agreement between Client and a third party; (b) Client's violation, infringement or misappropriation of the third party's intellectual property or other rights in Client's use of the Services; (c) Client's violation of the third party's privacy, publicity, personality or other rights; (d) Client's fraud in use of the Services or fraud or misrepresentation regarding the nature or volume of Client's traffic; (e) Client's violation of an applicable law; (f) bodily injury, death or property damage to the extent such claim or action arises from the negligence, gross negligence or willful misconduct of Client, or in the case where strict liability applies; (g) Client's business, acts or omissions; or (h) acts or omissions by Users that, if done by Client, would constitute a breach of this Agreement. Client will not settle any claim or action without Provider's prior written consent. Provider will have the option, at its expense, to participate in the defense or settlement of the claim or action with counsel of its own choosing. If a conflict of interests arises or exists between the parties or if Provider has a good faith belief that its rights are being harmed by the counsel selected by Client, Provider will have the right to retain separate counsel to represent its interests at Client's sole cost and expense. Client will not settle any claim without Provider's prior written consent.
- 16.1 Equipment Purchase. If Provider sells any equipment to Client, the terms of this Section 16 apply. All equipment shipments are Free On Board (FOB) Provider's or Provider's distributor's facility. Provider's liability for delivery will cease, and title (if applicable) and all risk of loss or damage will pass to Client upon delivery to the common carrier for shipment. Client shall be wholly responsible for insuring any products purchased from the time risk of loss or damage passes to Client. Provider will pass through to Client any warranty provided by the manufacturer of the equipment; PROVIDER MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY EQUIPMENT.
- 16.2 Equipment Return Policy. Client will be required to obtain authorization from Provider to return any equipment. Equipment returned by Client that is not covered under warranty or that does not bear a return authorization number may be refused. Provider will not replace lost, stolen or modified equipment. Client must pay all shipping and handling charges related to any equipment returns not covered under warranty. All returned equipment must be unmodified, in good working condition, in the original packaging and include all components, manuals, peripheral devices and all other accessories that were originally shipped with the equipment. Provider may decline Client's return or charge Client an additional fee for each missing item or for each item that Provider reasonably determines is modified, damaged or not in good working condition. Client must delete all data files stored on returned equipment. Client acknowledges that any data remaining on returned equipment cannot be recovered, and Client releases Provider of any liability for any lost, damaged or destroyed files, data or other information.
18. INTELLECTUAL PROPERTY. The Services and Software, and all intellectual property therein, are and will remain the exclusive property of Provider. Provider reserves all rights not expressly granted under this Agreement. The Software may contain third-party software that is subject to the terms and conditions of third-party licenses. Neither Client, Users nor any other third party has a right to inspect, possess, use, copy, or attempt to discover the source code of (or any portion of) the Software, except to the extent that Client, a User or a third party is expressly permitted to decompile the Software under applicable law and Client, the User or the third party notifies Provider in writing in advance of its intention to decompile the Software and its reason for doing so.
19. PORTAL UPGRADES; PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE. Provider may update the Client and User portals, and Client agrees that Service may be unavailable during the implementation of such updates. Upon expiration, cancellation or termination of the Services, Client and Users will relinquish and discontinue use of any accounts, Numbers, voice mail access numbers, and/or web portal Sites assigned to Client by Provider or its service providers.
- 20.1 NOTICES. Unless otherwise specified in this Agreement, any notice required or permitted to be given pursuant to this Agreement will be given in writing by overnight delivery service, sent via certified mail, return receipt requested, e-mailed, or delivered by hand, and such notice will be deemed to have been given and received when delivered or when delivery was refused, or with respect to electronic transmissions, at the time of transmission (unless the sender received a notice of transmission failure). Client consents to receive all notices in electronic form, and Provider may send any notice to Client at Client's latest physical address or e-mail address provided by Client. Provider may, in addition to all other methods of giving notice, send any notice to Client's mailbox in Client's account on the Provider Client Care Portal. Both parties agree that any agreements and notices made or provided by one or both parties in electronic form, and in accordance with this Agreement, are as legally binding as if made in physical written form. Client must send all notices to Provider via e-mail in accordance with the following:
20.3 NO CLASS ACTION. Client irrevocably waives any right Client may have to serve as a representative or as a private attorney general, or to participate as a member of a class of claimants, in any lawsuit, arbitration or other proceeding against any Provider Party arising from, related to or connected with this Agreement or any Service Order.
20.4 BINDING NATURE AND ASSIGNMENT. Client's rights and obligations in this Agreement will not be assigned, delegated or otherwise transferred in whole or in part without the prior written consent of Provider. Except as part of the sale of all or substantially of the assets for Provider or the assignment of this Agreement, or any rights or obligations thereunder, to any of Provider's affiliates (which will not require Client consent), Provider's rights and obligations in this Agreement will not be assigned, delegated or otherwise transferred in whole or in part without the prior written consent of Client, which will not be unreasonably withheld. For sake of clarity, Provider may assign, delegate and transfer some or all of its rights and obligations under this Agreement to its affiliates. Except as otherwise expressly provided herein, this Agreement will inure to the benefit of, and will bind, the heirs, executors, personal representatives, administrators, successors and permitted assigns of Provider and Client.
20.5 GOVERNING LAW. This Agreement and any related Service Orders will be governed by and construed according to the laws of the State of Missouri, without regard to its conflict of laws provisions. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
20.6 ARBITRATION. Any dispute or controversy arising out of or in connection with this Agreement or any related Service Order, or otherwise related to the Services, will be resolved by binding arbitration. The Federal Arbitration Act and federal arbitration law applies to this Agreement. The arbitration will be administered by the American Arbitration Association (AAA), conducted by one (1) arbitrator, and conducted in accordance with the AAA's Commercial Arbitration Rules. The arbitration will be conducted in Fulton, Missouri. The language of the arbitration will be English. The parties' briefs and other documents and the arbitrator's findings and decision will be confidential unless required to be disclosed by law. Neither party may use any finding or decision of the arbitrator in existing or subsequent litigation or arbitration involving any other person, entity or organization. The arbitrator must have sufficient experience in the matter(s) at issue. The arbitrator's decision will follow the plain meaning of the Agreement and will be final and binding. Neither party will have the right to appeal an error of law or fact. Each party will bear the cost of preparing and presenting its case. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. This agreement to arbitrate also requires Client to arbitrate claims against other parties relating to Services or products provided or billed to Client if claims are asserted against Provider in the same proceeding. Notwithstanding the foregoing, either party may bring suit in court to enjoin unauthorized access or trespass to its computer networks or any misappropriation, infringement or violation of its intellectual property rights. The arbitrator will have the exclusive power to rule on the formation, interpretation, applicability, validity or enforceability of this Agreement, including without limitation the validity or enforceability of this arbitration agreement. The arbitrator will not have the power to conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals. If any dispute or controversy arising out of or in connection with this Agreement or any related Service Order, or otherwise related to the Services, cannot lawfully be resolved by arbitration, the complainant must bring any claim or action in the state or federal courts for Fulton, Missouri, and the parties waive any objection based on personal jurisdiction, venue or inconvenient forum.
20.7 ENTIRE AGREEMENT, AMENDMENTS, CONFLICT, SEVERABILITY, WAIVER, SURVIVAL. This Agreement, all documents referred to herein and any related Service Order executed by the parties constitute the entire agreement between the parties and supersede any and all prior agreements and rates between the parties with respect to the subject matter hereof. No additions, deletions or modifications to this Agreement or any Service Order will be binding unless (a) made in a writing signed by duly authorized representatives of both parties or (b) agreed to by the party to be charged by electronic means. In the event of a conflict between any of the terms and conditions of this Agreement and any Service Order, the terms and conditions in the Service Order will prevail. The parties are independent contractors. Nothing contained herein will be construed as creating any agency, partnership, or other form of joint venture or enterprise between the parties. If any provision(s) of this Agreement or any related Service Order is held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby, and the parties further agree to substitute a valid provision that most closely approximates the economic effect of the invalid provision. The failure of either party to require performance by the other party of any provision hereof will not affect the right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken to be a waiver of the provision itself. To the extent permitted by applicable law, the parties agree to and do hereby waive any applicable statutory or common law that may permit a court to construe a contract against its drafter. No claim or cause of action may be asserted against either party more than three (3) months after the time the facts giving rise to the claim or cause of action are discovered or should have been discovered. In the event a suit is brought or an attorney or collection agency is retained by Provider to enforce the terms of this Agreement or any Service Order, or to collect any monies due hereunder, or to collect money damages for breach thereof, Provider will be entitled to recover, in addition to any other remedy available at law or in equity, reimbursement for attorneys' fees, court costs, collection costs, costs of investigation and other related expenses incurred in connection therewith. The terms and provisions contained in this Agreement and any related Service Order that, by their sense and context, are intended to survive the performance thereof by the parties hereto will survive the completion of performance and termination of this Agreement, including, without limitation, payment obligations, the limitations on damages and liability, ownership of intellectual property, and defense and indemnity obligations.
BroadTrack Voice Acceptable Use PolicyThis Acceptable Use Policy ("AUP" or "Policy") describes actions by Users that are prohibited by KINGDOM TELECOMMUNICATIONS INC. dba KINGDOM TECHNOLOGY SOLUTIONS and/or KTIS and its affiliates and subsidiaries ("KTI").
"Users" means any user or Customer of any and all KTI provided services ("Service" and/or "Services") that are provided by KTI pursuant to any applicable customer agreement, including, without limitation, any applicable terms of service and/or supplements to any applicable agreement(s) which Users must accept as a Condition to receiving any Services from KTI.
This Acceptable Use Policy is subject to change from time to time with such changes effective upon posting at www. KTIS.com. Users should refer to such website to ensure review and compliance with then-current version.
1. Services may be used only for lawful, proper and appropriate purposes.
2. Users must use any Service only in a manner that, in KTI's sole discretion, is consistent with the purposes of such Services. Users will not engage in any legal or illegal activity that either (i) harms KTI, the network operated by KTI, the Services and/or any User or (ii) interferes with the network operated by KTI and/or the provision or use of the Services by KTI or any User.
3. Services may not be used for illegal, improper, and/or inappropriate purposes, which include but are not limited to:
(a) using the service to violate any law, rule, or regulation; or
(b) engaging in threatening, abusive, harassing, defamatory, libelous, deceptive or fraudulent behavior;
(c) posting multiple messages similar in content to Usenet or other newsgroups, listservs, forums, e-mail mailing lists or other similar groups or lists;
(d) calling, messaging, storing, posting or transmitting harassing, threatening or abusive materials, e-mail or information;
(e) posting or transmitting any information or software that contains a virus, worm, cancelbot or other harmful component;
(f) without permission from the owner of a system or network, doing any of the following: (I) accessing the system or network, (ii) monitoring data or traffic, (iii) probing, scanning, and/or testing firewalls, (iv) testing the vulnerability of a system or network or (v) breaching the security or authentication routines of a system or network;
(g) relaying e-mail in an anonymous fashion or forging any TCP-IP packet header;
(h) mail bombing, flooding, overloading, attacking or otherwise interfering with a system or network;
(i) sending unsolicited calls, messaging, e-mailings (including, without limitation, commercial advertising and informational announcements) if such unsolicited activities could reasonably be expected to or do in fact provoke complaints;
(j) operating a server in connection with the Services in an "open relay" configuration (a configuration whereby a mail server processes email messages where neither the sender nor the recipient is a local user);
(k) falsifying User or other identifying information provided to KTI or to other Users of the Services;
(l) use of any Services in violation of any trademark, copyright, or any other intellectual property protection law or provision, or AUP policy of any third party provider; (m) use of any Services for the purposes of engaging in an activity in connection or conjunction with any pornographic and/or adult entertainment industry purpose, regardless of whether such activity is lawfully permitted;
(n) auto-dialing or predictive-dialing (sometimes referred to as "robo-dialing");
(o) continuous or extensive chat line or conference call participation,
(p) use of free conference calling or similar services that KTI in its sole discretion deems to participate in traffic stimulation practices or schemes that result in excessive charges;
(q) use of an open telephone line as a monitoring, intercom or similar service;
(r) repetitive and/or continuous messaging or calling to the same destination or number if such activity could reasonably be expected to or in fact does provoke complaints;
(s) long duration calls (defined as calls to the same number in excess of four continuous or cumulative hours within a 24-hour period) and/or calls placed to specific numbers/destinations f or the purpose of generating charges or fees for or with a third party;
(t) use of call Services which do not consist of uninterrupted live human voice dialog by and between natural human beings;
(u) restricting or inhibiting any other User or any other person from using and enjoying the Services and/or the Internet; or
(v) engaging in any of the foregoing activities by using the services of another provider or third party and channeling such activities through an account provided by KTI, or otherwise involving the Services or any KTI account in any way with or without another provider or third party for the purpose of facilitating the foregoing activities.
1. KTI reserves the right, at its sole discretion, to determine if a Service is being used for any of the foregoing purposes or activities.
2. Violation of this Policy may result in civil or criminal liability, and KTI in its sole discretion, in addition to any remedy that it may have at law or in equity, may immediately terminate permission for the User to use the Services, or any portion of the Services, and may charge User any applicable rates and cancellation or termination fees. In addition, KTI may investigate incidents that are contrary to this Policy and provide requested information to third parties who have provided notice to KTI stating that they have been harmed by a User's failure to abide by this Policy or the policies listed above. KTI may bring legal action to enjoin violations and/or collect damages caused by any violation of any part of this Policy.
3. Any violations or attempted violations of this Policy by any User (or any third party on behalf of any User) will constitute a violation of this Policy by the User and a material breach of any applicable customer agreement, including, without limitation, any applicable terms of service and/or supplements to any applicable agreement(s).
4. KTI's failure to enforce this policy in every instance in which it might have application does not amount to a waiver of KTI's rights.
5. IN NO EVENT WILL KTI BE LIABLE TO ANY USER OR THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES FOR ACTIONS TAKEN ORNOT TAKEN PURSUANT TO THIS POLICY, INCLUDING,WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR DATA, OR OTHERWISE, EVEN IF KTI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY IN FAVOR OF KTI IS IN ADDITION TO ANY LIMITATIONS SET FORTH IN ANY WRITTEN AGREEMENT BETWEEN KTI AND ANY APPLICABLE USER AND WILL APPLY WHETHER THE ACTION IN WHICH RECOVERY IS SOUGHT IS BASED IN CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), OR ANY APPLICABLE LAWS.
1. Nothing in this Policy will limit or be deemed a waiver of any rights or protections of KTI pursuant to any written agreement between KTI and any applicable User. This Policy will be read in connection with any such written agreement and not in conflict with any such agreement. This Policy, in connection with any such agreement, supersedes any other oral or written representations or agreements made by KTI and/or its representatives regarding the Services.
2. Subject to any arbitration, forum or choice of law provisions of any written agreement between KTI and any applicable User, (i) this Policy will be governed by, construed under and enforced in accordance with the laws of the State of Missouri without reference to its choice of law principles; and (ii)in the event any party brings a civil action or initiates legal proceedings of any kind related to this Policy (except for actions to enter or collect on judgments), Users consent to the exclusive personal jurisdiction and venue of the federal and state courts located in Jefferson City, Missouri.
3. If any provision of this Policy is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Policy will not be affected thereby.
Through our membership with the Communications Fraud Control Association, KTI has access to a comprehensive list of over 60,000 terminating international numbers confirmed as dialer locations and/or international revenue share fraud.
Our Customer Support Operations department has completed placing blocks on these terminating numbers in an attempt to prevent any fraudulent termination to these locations. In addition, KTI has included blocking terminating ANIs that have been verified as fraudulent by customers utilizing our network.
Through trending of recent fraudulent activity on the KTI network, we have also identified countries as highly fraudulent regions, with limited legitimate calling, and have blocked these country codes on our network. If your customers need to place legitimate calls to one of these terminating countries, please contact your dedicated account representative and we can work with you to open this terminating location for a limited time frame.
While it is impossible to eliminate the risk of toll fraud, we believe this action can assist with minimizing future financial impact to your company. You and your customers should still take fraud precautions to ensure proper security measures are in place on all end-user equipment. KTI will continue to monitor for fraudulent activity on our network and notify you of large, financially impacting circumstances as they occur.
As your long distance provider, KTI is committed to assisting you with identifying potential fraudulent activity that may affect your operations and finances. In our Network Operations Center, we have systems in place to monitor outbound International and Domestic anomalies, trends and activity directed to and from known fraudulent areas. KTI reserves the right to take action it deems necessary to reduce or eliminate fraud/abuse; however, you remain solely responsible for taking any action necessary to reduce or eliminate fraud/abuse.
As additional terminating countries and ANIs with high fraudulent activity are identified, they will be blocked as well. If you have any questions or need clarification on blocked destinations, please contact your dedicated account representative.
Internet Service Terms & Conditions1. GENERAL
Kingdom Technology Solutions, Kingdom Telecommunications Inc., KTIS and/or Kingdom Telephone Company ("Provider") provides, to Users/Subscribers who have agreed to the terms and conditions stated below, a wide variety of resources, products and services, which include shopping services, branded and personalized content and entertainment services, communication tools, Internet access services, online directories, administrative services, download areas, advertising, games and information, some or all of which may be accessed through a variety of means. This Online Access agreement ("Agreement") is a legal agreement between you and the Provider. The term "you" or "your" includes any of your subsidiaries, affiliates, employees and parent or legal guardian. It states the terms and conditions under which you may access the Provider's network and use the online services that the Provider makes available through that network ("service") and all hardware and/or software necessary to connect to the service ("software").
2. ACCESS AND AUTHORIZATION
(a) Access. Provider hereby grants you access to its web sites, content and services and the right to use such web sites, content and services subject to the terms of this Agreement.
(b) Permitted Users. You may permit other members of your organization or household to access this web site or Provider service provided that each such person abides by the terms and conditions of this Agreement. By permitting others to use your account, you assume all risk and liabilities resulting from their use. If you authorize a minor to use your account, you are fully responsible for the online conduct of the minor, for controlling the minor's access to and use of the Service, and for the consequences of any misuse. It is your responsibility to safeguard any personal identification number and password required to access the system. Your right to authorize others to use your account is not assignable or transferable.
(c) Content & Software. The Provider's web sites, content and services provide you access to a wide variety of information, shopping, communications, entertainment, games, advertising and other services, products, data and materials ("content"). Some of the content is owned by the Provider and/or its affiliates. Other portions are owned by non-Provider companies or third parties such as suppliers, vendors, and licensors (including content that is generated by users as further described in Section 14). Some portions of the Provider's web sites or Provider services may require you to download software ("software") in order that you may access the portions of the web sites or access the Provider's service. The software may be the property of the Provider or a supplier, vendor, or licensor to the Provider. The content and software are protected by a variety of laws governing the use of copyrights, trademarks, patents, or trade secrets. Subject to the rules and limitations set forth in the Terms, you are granted a limited, non-sublicensable right to access the web sites, the content and the software for your personal non-commercial use only, except as otherwise permitted. Without limiting the generality of the foregoing, no software or underlying information or technology may be downloaded or otherwise exported or re-exported.
The Provider's services and this Agreement may change from time to time. Provider reserves the right, at Provider's sole discretion and without prior notice or liability, to discontinue or alter the service or any feature of the service including, without limitation, (a) restricting the time of availability, (b) restricting the availability and/or scope of the service for certain types of computers and operating systems, (c) restricting the procedures for or amount of access or use permitted, (d) restricting or terminating any user's right to access and use the service, and (e) changing system hardware and software. Any change is effective immediately upon a posting on the service, this web site, electronic mail, or conventional mail. By continuing to use the service, you accept any such changes. If any such changes are not acceptable to you, you may terminate this Agreement at any time as described in Section 11. You agree that the Provider shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site (or any portion thereof).
4. REGISTRATION, PASSWORD, & SECURITY
Whenever you provide us information on this web site or in the course of applying for any of the Provider's goods or services, you agree to: (a) provide true, accurate, current and complete information and (b) maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information that is, or we have reasonable grounds to suspect that the information is, untrue, inaccurate, not current or incomplete, Provider may without notice suspend or terminate your access to our web site and/or goods and services and refuse any and all current or future use of our web site and/or services. If any portion of our web site requires you to register or open an account you may also be asked to choose a password and a user name. Please select a password that would not be obvious to someone trying to guess your password, and change it regularly as an added precaution. You are responsible for maintaining the confidentiality of the password and account, and you are fully responsible for all activities that occur under your password or account identification. You agree to immediately notify the Provider of any unauthorized use of your password or account or any other breach of security. Without limiting any rights which the Provider may otherwise have, the Provider reserves the right to take any and all action, as it deems necessary or reasonable, to ensure the security of its network, web sites and your account, including without limitation terminating your account, changing your password, or requesting additional information to authorize transactions on your account. Notwithstanding the above, the Provider may rely on the authority of anyone accessing your account or using your password and in no event and under no circumstances shall the Provider be held liable to you for any liabilities or damages resulting from or arising out of (i) any action or inaction of the Provider under this provision, (ii) any compromise of the confidentiality of your account or password and (iii) any unauthorized access to your account or use of your password. You may not use anyone else's account at any time, without the permission of the account holder. The security of your personally identifying information is important to us. While there is no such thing as "perfect security" on the Internet, we will take reasonable steps to help ensure the safety of your personally identifying information. However, you understand and agree that such steps do not guarantee that use of the Provider's services or web site is invulnerable to all security breaches, and that the Provider makes no warranty, guarantee, or representation that use of any of our services or web sites is protected from viruses, security threats or other vulnerabilities.
5. SYSTEM RULES / ACCEPTABLE USE
(a) You agree to supply Provider with accurate and complete information and to inform Provider promptly of any change in such information.
(b) You are responsible for all use of your account. You must promptly inform Provider of the loss, theft, or unauthorized disclosure or use of your personal identification number or password. Until you notify Provider of such a breach of security, you remain liable for any unauthorized use of the service through your account.
(c) You agree to use the Provider's web sites, products and services and the content of such web sites, products and services (whether provided by us or others), as well as any software provided in connection with the aforementioned, in a manner consistent with all applicable laws and regulations. Additionally, you will not take any of the following actions with respect to the Provider's web sites, our products and services, related software, or content, nor will you use the Provider's web sites, software or services to upload, post, email, distribute, transmit, link, solicit or otherwise make available any content or use the Provider's web sites, products or services in any manner that:
- is unlawful, harmful to minors, threatening, harassing, abusive, defamatory, slanderous, vulgar, gratuitously violent, obscene, pornographic, indecent, lewd, libelous, invasive of another's privacy, or racially, ethnically or otherwise offensive, hateful or abusive;
- infringes someone else's patent, trademark, trade secret, copyright or other intellectual property or other rights;
- removes any proprietary notices or labels on the content;
- advocates or solicits violence, criminal conduct or the violation of any local, state, national or international law or the rights of any third party;
- advocates or solicits violence, criminal conduct or the violation of any local, state, national or international law or the rights of any third party;
- is deceptive in any way, such as an offer to sell fraudulent goods or contains an impersonation of any person or entity or misrepresents an affiliation with a person or entity;
- specifically advertises firearms or ammunition, tobacco, alcohol, illegal drugs, or other contraband;
- constitutes unsolicited or unauthorized advertising, junk or bulk e-mail (SPAM), chain letters, or any other unsolicited commercial or non-commercial communication;
- interferes with others using the Sites;
- is off-topic according to the description of the group, forum or webpage;
- contains software viruses, worms, time bombs, corrupted files, Trojan horses or any other computer code, files, or programs that are designed or intended to disrupt, damage, overburden, impair or limit the functioning of any software, hardware, network, server or communications systems or equipment;
- contains a charity request, petitions for signatures, chain letters or letters relating to a pyramid scheme;
- disrupts, interferes or inhibits any other user from enjoying the Sites or other affiliated or linked websites, material, contents, products and/or services.
- uses any robot, spider, or other such programmatic or automatic device, inducing but not limited to automated dial-in or inquiry devices, to obtain information from the Site or otherwise monitor or copy any portion of the Site, products and/or services;
- creates a false identity for the purpose of misleading others;
- prepares, compiles, uses, downloads or otherwise copies any user information and/or usage information for any portion thereof, or transmit, provide or otherwise distribute (whether or not for a fee) such information to any third party;
- uses any the Provider domain name as a pseudonymous return email address;
- contains any offer for unsolicited goods or services or any advertising or promotional materials, except in those areas specifically designated for such purpose (e.g., classified bulletin board);
- provides material support or resources (or conceals or disguises the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
- attempts to disable, bypass, modify, defeat or otherwise circumvent any of the digital rights management or other security related tools incorporated into the software or any Content or the Sites;
- reproduces, duplicates, copies, sells, trades, resells or exploits for any commercial purposes, any portion of the Sites or content, use of the web sites, or access to the web sites;
- publishes, publicly performs or displays, or distributes to any third party any content, including reproduction on any computer network or broadcast or publications media;
- systematically collects and uses any content including the use of any data mining, or similar data gathering and extraction methods;
- makes derivative uses of the web sites or the content;
- uses, frames, or utilizes framing techniques to enclose any portion of the web sites (including the images found at the sites or any text or the layout/design of any page or form contained on a page); and/or
- modifies, translates, decompiles, disassembles, uses reverse engineering or otherwise attempts to derive the source code for the computer systems and other technology that operate our web sites. For purposes of these Terms, "reverse engineering" shall include the examination or analysis of the web sites to determine the source code, structure, organization, internal design, algorithms or encryption devices of our Site's underlying technology.
- (d) Some of the Provider's services are provided on an oversubscribed basis.
- (e) Provider will endeavor to provide fair and equal access to all customers, clients and Subscribers.
- (f) Service Subscribers are strictly prohibited from "serving" any protocols from their connection without the express written consent of Provider.
- (g) Provider reserves the right to refuse to provide access to services to anyone.
The Provider's web sites, content, and services are provided on an "as-is", "as available" basis. Provider does not make, and expressly disclaims, any and all warranties, express or implied, in regard to any information, product, or service furnished by it under this agreement, including without limitation any and all implied warranties for merchantability or fitness for a particular purpose. In no event shall provider be liable for any indirect, incidental, consequential, special, punitive or any damages whatsoever, resulting from loss of use, data or profits, whether in an action of contract, negligence or other torturous action, arising out of or in connection with the use or performance of software, documents, provision of or failure to provide services, or information available from the services, even if advised of the possibility of such damages.
You agree to indemnify, defend and hold harmless the Provider and its underlying content and service providers, licensors and suppliers, and each of their respective subsidiaries, affiliates, officers, agents, and employees, from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, made by any third-party due to or arising out of Submitted Material or any other content you submit, post or upload to or transmit through the Provider's web sites or services, your use of the Provider's web sites or services, your connection to the Provider's web sites or services, your violation of these Terms, or your violation of any law or the rights of another. These obligations will survive any termination of your relationship with the Provider or your use of the Providers web sites, content or services. The Provider reserves the right to assume the defense and control of any matter subject to indemnification by you, in which event you will cooperate with the Provider in asserting any and all available defenses.
We recognize that you expect privacy. For this reason we have established specific guidelines and procedures for how your information is collected and maintained to protect against misuse or unauthorized release. We understand how important privacy and confidentiality are to you, our customer. We place great emphasis on ensuring the information you entrust to us remains protected, regardless of how we receive your personal information. We do not release the personal information you have entrusted to us to other people, companies or agencies without a signed consent form from you, except as required by law or subpoena by a court of competent jurisdiction. We may collect different types of personal and other information based on your use of our products and services and our business relationship with you.
Some examples include:
- Contact Information that allows us to communicate with you -- including your name, address, telephone number, and e-mail address;
- Billing information related to your financial relationship with us -- including your payment data, credit history, credit card number, Social Security numbers, security codes, and service history;
- Equipment, Performance, Provider Website Usage, Viewing and other Technical Information about your use of our network, services, products or websites.
- You give it to us when you purchase or interact with us about a product or service we offer or provide;
- We collect it automatically when you visit our websites or use our products and services;
- We obtain it from other sources, such as credit agencies.
- Provide you with the best customer experience possible;
- Provide the services you purchase, and to respond to your questions;
- Communicate with you regarding service updates, offers, and promotions;
- Deliver customized content and advertising that may be of interest to you;
- Address network integrity and security issues;
- Investigate, prevent or take action regarding illegal activities, violations of our Terms of Service or Acceptable Use Policies; and
- Provide local directory and directory assistance.
9. EDITORIAL CONTROL
The Provider reserves the right to monitor transmissions, other than private electronic communications, as necessary to provide service and otherwise to protect the rights and property of the Provider. Notwithstanding the foregoing, the Provider does not have the practical ability to restrict conduct, communication, or content that might violate this Agreement before transmission on the service, nor does Provider assume any liability for any action or inaction with respect to such conduct, communication, or content.
10. PROPRIETARY RIGHTS
(a) Software. The software and any accompanying documentation and written materials are the sole and exclusive property of Provider or its licensor and are protected by copyright and trade secret law and international treaties.
(b) Content. You acknowledge that the Service contains information, software, photos, video, graphics, sound, music, and other material ("content") that are protected by copyright, trade mark, trade secret, and other intellectual property law and that the rights in such content are valid and protected in all forms, media, and technologies that now exist or that may be developed in the future. You may not modify, publish, distribute, transmit, transfer or sell, create derivative works, or in any way exploit any of the content, in whole or in part. Except as allowed by U.S. copyright law, you may not upload, post, reproduce, or distribute any content protected by copyright or other proprietary rights without the permission of the copyright owner.
(c) Third Party Content and Services
- You may only upload or otherwise distribute via the service, content that is not subject to any copyright or other proprietary rights protection or for which you have the owner's express authorization for such on-line distribution. The unauthorized uploading or distribution of copyrighted or other proprietary content constitutes a breach of this Agreement, and could subject you to criminal prosecution, personal liability for any damages arising from any infringement, and to termination of this Agreement.
- Any opinions, advice, statements, services, offers, or other content expressed or made available by third parties are those of the respective authors, owners, or distributors and not of Provider. In no event will Provider be liable for any loss or damage caused by a user's reliance on content obtained through the Service.
- The Service may permit you to receive information and order and receive merchandise and services directly from businesses that are not owned or operated by Provider. The purchase, payment, warranty, delivery, and any other terms concerning such information, merchandise, and services are solely between you and such businesses.
- Export. The U.S. export control laws regulate the export and re-export of technology originating in the United States, including the electronic transmission of information and software to foreign countries and foreign nationals. You agree to comply with these laws and not to transfer by electronic transmission or otherwise, and content derived from the Service without obtaining any required government authorization. You further agree not to upload to the Service any data or software that cannot be exported without prior written government authorization, including without limitation, certain types of encryption software.
The Provider does not warrant that information, graphic depictions, product and service descriptions or other content of its web sites is accurate, complete, reliable, updated, current, or error-free. Despite our efforts, it is possible that a price for a product or service offered on our web sites may be inaccurate or the product or service description may contain an inaccuracy. In the event the Provider determines that a product or service contains an inaccurate price or description, the Provider reserves the right to take any action it deems reasonable and necessary, in its sole discretion, to rectify the error, including without limitation canceling your order or your service, unless prohibited by law. The Provider may make improvements or changes to any of its content, information products, services, or programs described on its web sites at any time without notice. You agree to notify the Provider immediately if you become aware of any pricing or descriptive errors or inconsistencies with any products or services you order through its web sites and comply with any corrective action taken by the Provider.
12. THIRD PARTY PRODUCTS & SERVICES
Parties other than the Provider may offer and provide products and services on or through its web sites. Except for the Provider's branded information, products or services that are identified as being supplied by the Provider, the Provider does not operate, control, or endorse any information, products, or services on its web sites or accessible through its web sites in any way. The Provider is not responsible for examining or evaluating, and the Provider does not warrant the offerings of, any of these businesses or individuals or the content of their websites. The Provider does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use. The Provider's web sites may contain links to other websites not operated by the Provider. The links are provided for your convenience. The inclusion of any links to other websites does not imply affiliation, endorsement or adoption by the Provider of those web sites or the contents therein. We are not responsible for the contents, links or privacy of any linked web site. Access to any other web sites linked to the Provider's web sites is at your own risk. When leaving the Provider's web sites, you should carefully review the applicable terms and policies, including privacy and data gathering practices, of that third-party website.
13. ONLINE ORDERS
In order to protect the Provider and its customers from fraudulent activity, the Provider may implement reasonable procedures regarding any online orders including but not limited to validating information provided or limiting the amount of equipment and/or services that may be ordered online by a single individual or entity. The Provider reserves the right to further limit quantities or to cancel or reject orders at its sole discretion.
14. USER SUBMITTED CONTENT
The Provider's web sites may have "publicly accessible areas" such as message boards, forums, member profiles, yellow pages, job folders or other features that allow users to post Content that will be accessible by the public or the user population generally. With respect to any message, data, image, text, photos, graphics, audio, video or other material you elect to post to such publicly accessible areas of our Site, while you retain any and all of your lawfully owned rights in such Content, you grant the Provider a royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content which you provide (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed and to exercise the same rights with respect to such works. You also permit any user of our Site to access, display, view, store, distribute, perform, reproduce and prepare derivative works of, such Content that you have placed in publicly accessible areas of our Site. No compensation will be paid to you or to any other person or entity with respect to the posting or use of your Content. The Provider is under no obligation to post or use any Content you may provide and the Provider may remove your Content at any time in its sole discretion. You agree that the Provider is not under any obligation of confidentiality, express or implied, with respect to your Content. You represent and warrant that you own or otherwise control all necessary rights to the Content that you post, that such Content is accurate, that use of the Content you supply does not violate these Terms, specifically including without limitation the requirements of Section 14 (Acceptable Use), and will not cause injury to any person or entity, and that you will indemnify the Provider for all claims resulting from the Content you supply. The Provider does not generally pre-screen or control Content posted by users of our web sites, and, therefore, does not guarantee the accuracy, integrity or quality of such Content. The Provider shall have the right (but not the obligation) in its sole discretion to monitor, refuse or remove any Content that is available via our Site for any or no reason, including that any Content violates these Terms or is otherwise objectionable. We take no responsibility and assume no liability for any Content uploaded, transmitted, or downloaded by you or any third party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography, or profanity you may encounter. As the Provider of the web sites, we are only a forum and are not liable for any statements, representations, or Content provided by web site users. Any opinions, advice or recommendations expressed therein are those of the users providing such Content and not those of the Provider. We do not endorse any Content or any opinion, recommendation or advice expressed therein. It is not our intent to discourage you from taking controversial positions or expressing vigorously what may be unpopular views; however, we reserve the right to take such action as we deem appropriate in cases where the web sites are used to disseminate statements that are harmful or inflammatory.
15. USER SUBMITIONS TO THE PROVIDER
You agree not to propose, post or submit to the Provider ideas, concepts, copy, proposals, inventions, methods or techniques for new or proposed services or products (collectively referred to as "Submitted Material ") through the Provider's web sites. In the event you do so, you hereby grant to the Provider a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free license to use all such Submitted Material in any manner whatsoever without compensation or attribution to you. You also grant to the Provider the right, at its sole discretion, to use your name in connection with the Submitted Materials and other information as well as in connection with all advertising, marketing and promotional material related to such material and information. Use of such Submitted Material shall not require permission from or payment to you or to any other person or entity. You agree that the Provider is not under any obligation of confidentiality, express or implied, with respect to the Submitted Material. You agree that you shall have no recourse against the Provider for any alleged or actual infringement or misappropriation of any proprietary right in Submitted Material and that the submission of any Submitted Material to the Provider, including the posting of materials to any forum or interactive area on the Provider's web sites, irrevocably waives any and all "moral rights" in such materials. You represent and warrant that you own or otherwise control all of the rights to the Submitted Material that you post, that the Submitted Material is accurate and, that use of the Submitted Material you supply does not violate these Terms and will not cause injury to any person or entity.
16. NETWORK SECURITY
Violating the security of the Provider's network or network assets is prohibited and may result in criminal and civil liability. The Provider may investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of security violations include, without limitation, unauthorized access to or use of data or systems including any attempt to probe, scan, or test the vulnerability of the Provider's network or network assets or to breach security or authentication measures, unauthorized monitoring of data or traffic, interference with service to any user, host, or network including, without limitation, mail bombing, news bombing, other flooding techniques, deliberate attempts to overload a system, forging any TCP-IP packet header, e-mail header, or any part of a message header, except for the authorized use of aliases or anonymous remailers, and using manual or electronic means to avoid any use limitations. The Provider reserves the right to take whatever steps are necessary to protect and preserve the integrity of its network.
17. NETWORK MANAGEMENT PRACTICES
The Provider does not currently manage or alter any Subscriber's predefined service plan connection speed or quality of service, regardless of the amount or type of a Subscriber's traffic in any given period of time. However, the Provider reserves the right to manage any Subscriber's connection speed or quality of service if that Subscriber's online activity hampers the ability of the Provider to maintain its predefined service level parameters to other service Subscribers on its network. The Provider will make every effort to contact the affected Subscriber(s) should such service management or alteration become necessary and notify them of corrective measures they can take to avoid continuing service management or alteration. The Provider will make reasonable efforts to maintain its network quality and capacity levels to maintain predefined levels of service for every Subscriber on its network. However, service Subscribers may experience occasional service quality degradation due to changes in environmental conditions, unanticipated surges in traffic volume, acts of God, unauthorized network attacks from sources inside or outside its network, and/or any other event or circumstance beyond the Provider's reasonable foresight or control.
18. NETWORK PERFORMANCE
It is understood by the service Subscriber that the Provider's individual service plan descriptions, either verbal, written or electronic, are provided for the Subscriber's information and comparison purposes only and are not to be construed as guarantees by the Provider of service or network performance. Connection upload and download speeds given for each service plan are the speeds at which that service plan is configured on the Provider's network and/or the Subscriber's premise equipment and are not to be construed as the speed or quality of service the Subscriber will experience on the Internet as a whole. The Subscriber understands that the Provider's service is provided on a "best effort" basis and that the Provider will make all reasonable effort to maintain its network in a manner that best ensures every service Subscriber's predefined service plan speeds and quality of service. It is understood by the service Subscriber that their actual connection speed and service level may vary by as much as 25% from the Provider's published service plan speeds and/or quality of service descriptions due to the distance between the service Subscriber's premise equipment and the Provider's primary network connection access point, network traffic volume at any given time, environmental conditions, acts of God, unauthorized attacks from sources inside or outside its network and/or any other event or circumstance beyond the Provider's control. It is further understood by the Subscriber that the Provider has no control over the quality of service provided beyond its LAN network boundaries. The Provider has no control over the quality or speed of service provided by any other Internet Service Provider's (ISP's) network or the World Wide Web as a whole. It is understood that the Provider is only capable of controlling the service experience on its own LAN network up to and including the Provider's Internet/WAN gateway.
19. GENERAL USE & STORAGE LIMITS
You acknowledge that the Provider may establish general practices and limits concerning use of its web sites and services, including without limitation the maximum number of days that email messages, message board postings or other uploaded Content will be retained by the Provider's web sites and services, the maximum number of email messages that may be sent from or received by an account on the Provider's web sites or services, the maximum size of any email message that may be sent from or received by an account by the Provider's web sites or services, the maximum disk space that will be allotted on the Provider's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the Provider's web sites or services in a given period of time. Your use of the Provider's web sites or services constitutes your consent to allow the Provider to store electronic communications on its servers. You agree that the Provider has no responsibility or liability for the deletion or failure to store any messages and other communications or other content maintained or transmitted via the Provider's web sites or services. You acknowledge that the Provider reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that the Provider reserves the right to modify these general practices and limits from time to time.
The Provider reserves the right but does not assume the obligation to strictly enforce these Terms, including without limitation by issuing warnings, suspension, or termination of access to the Provider's web sites and/or services, and/or by removing, screening, or editing of Content, or by engaging in self-help and active investigation, litigation and prosecution in any court or other appropriate venue. The Provider may access, use, and disclose transaction information and any Content provided by you to comply with the law (e.g., a lawful subpoena) or based on the Provider's reasonable judgment that disclosure is necessary, or to enforce or apply our agreements (including these Terms), to initiate, render, bill, and collect for services, to protect our rights or property, or to protect users of the Provider's services, the Provider's web sites and services and other persons or entities from fraudulent, abusive, or unlawful use of the Provider's web sites or services. INDIRECT, ATTEMPTED OR ACTUAL VIOLATIONS OF THESE TERMS OR ANY RELATED POLICY BY YOU OR ANY THIRD- PARTY ON YOUR BEHALF SHALL BE CONSIDERED VIOLATIONS OF THESE TERMS BY YOU.
21. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE PROVIDER, ITS EMPLOYEES, OFFICERS, REPRESENTATIVES, SERVICE PROVIDERS, SUPPLIERS, LICENSORS, AND AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (i) THE USE OR INABILITY TO USE THE PROVIDER'S WEB SITES, SERVICES, OR CONTENT, MATERIALS, SOFTWARE, INFORMATION OR TRANSACTIONS PROVIDED ON OR THROUGH THE PROVIDER'S WEB SITES OR SERVICES, OR (ii) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE PROVIDER'S WEB SITES, CONTENT, MATERIALS, SOFTWARE, INFORMATION, PRODUCTS, OR SERVICES ON OR AVAILABLE THROUGH THE PROVIDER'S WEB SITES, CONTENT OR SERVICES, (iii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY PRODUCTS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE PROVIDER'S WEB SITES OR SERVICES; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (v) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OUR SITE; (vi) THE DELAY OR FAILURE IN PERFORMANCE RESULTING FROM AN ACT OF FORCE MAJEURE, INCLUDING WITHOUT LIMITATION, ACTS OF GOD, NATURAL DISASTERS, COMMUNICATIONS FAILURE, GOVERNMENTAL ACTIONS, WARS, STRIKES, LABOR DISPUTES, RIOTS, SHORTAGES OF LABOR OR MATERIALS, VANDALISM, TERRORISM, NON-PERFORMANCE OF THIRD PARTIES OR ANY REASONS BEYOND THEIR REASONABLE CONTROL; OR (vii) ANY OTHER MATTER RELATING TO THE PROVIDER'S WEB SITES, CONTENT OR SERVICES, EVEN IF THE PROVIDER OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE PROVIDER'S WEB SITES, CONTENT OR SERVICES IS TO STOP USING THE WEB SITES, CONTENT AND/OR SERVICES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY, IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF THE PROVIDER UNDER SUCH CIRCUMSTANCES FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
22. SUSPENSION / TERMINATION
You agree that the Provider may immediately terminate or suspend your account, any associated email address, and access to all or any part of the Provider's web sites, content or services, or change your password without notice. Cause for such termination, suspension or change shall include, but not be limited to, (a) breaches or violations of these Terms or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Provider's web sites, content, or services (or any part thereof,) (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, and/or (g) engagement by you in fraudulent or illegal activities. Termination of your account includes (or, if the Provider elects instead to suspend your account, may include any one or more of the following) (a) removal of access to all web site, content or service offerings, (b) deletion of your password and all related information, files and other content associated with or inside your account (or any part thereof) and (c) barring of further use of the Provider's web sites, content or services. You agree that all terminations and suspensions for cause shall be made at the Provider's sole discretion and that the Provider shall not be liable to you or any third party for any termination or suspension of your account, loss of storage, any associated email address, or access to the Provider's web sites, content or services. Further, the Provider reserves the right, to immediately terminate or suspend your account, any associated email address, and access to the Provider's web sites, content or services at any time, for any reason and without notice to you at the Provider's sole discretion. IN THE EVENT THAT THE PROVIDER SUSPENDS OR TERMINATES YOUR ACCESS OR SERVICE, MONTHLY SERVICE FEES AND/OR ANY PREPAID CHARGES WILL NOT BE REFUNDED OR PRORATED
23. TRADEMARK OR SERVICE MARKS
Trademarks that are used or displayed on the Provider's web sites, content, equipment or services are owned by the Provider or by third parties other than the Provider. The Provider's trademarks may not be copied or used, in whole, partial or modified form, without the prior written permission of the Provider or, if applicable, its licensor. In addition, the Provider's custom graphics, logos, button icons, scripts, and page headers are covered by trademark, trade dress, copyright or other proprietary right law, and may not be copied, imitated, or used, in whole, partial or modified form, without the prior written permission of the Provider. Other trademarks, service marks, registered trademarks, product and service names, and company names or logos that appear on the Provider's web sites, content, equipment or services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by the Provider. You may not use any metatags or any other "hidden text" utilizing the Provider's name, trademark, or product/service name without the Provider's express written consent.
24. CHARGES AND PAYMENT
(a) Service Fees; Taxes. Provider may charge you a monthly service fee for Provider services to which you Subscriber plus any applicable sales, use, value-added, personal property, or other governmental tax imposed on the service. Current rates are available online or by telephone or e-mail to Provider's Customer Service. Rate changes are effective on the 1st day of the month immediately following publication of the rates online.
(b) Payment. Payment may be made by credit card, check or money order. If you choose to pay by credit card, Provider may automatically bill the monthly service fee to your credit card account on the tenth (10th) day of each month. If you choose to pay by check or money order, we will send you notification that the amount is due and payable within twenty-one (21) days after the date of the invoice. A $3.00 late charge will be added to a delinquent account to cover the additional cost of processing and mailing a delinquent notice. Accounts that are unpaid for thirty (30) days will be suspended and may not be used. Files pertaining to accounts that are unpaid for sixty (60) days will be automatically archived. Files pertaining to accounts that are unpaid for ninety (90) days will be purged.
(c) Equipment and Connect Charges. You are responsible for obtaining, installing, maintaining, and operating all computer, television and telephone equipment and service access lines and for all such other charges that may be necessary to access the service.
The Provider's failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms shall be governed and construed in accordance with the laws of the State of Missouri applicable to agreements made and to be performed in Missouri. You agree that any legal action or proceeding between the Provider and you for any purpose concerning these Terms or the parties' obligations hereunder shall be brought exclusively in a federal or state court of competent jurisdiction sitting in Missouri. Neither the course of conduct and/or course of dealing between the parties nor trade practice shall act to modify any provision of this Agreement. The Provider may assign its rights and duties under this Agreement to any party at any time without notice to you. Your rights and duties under these Terms are not assignable by you without written consent of the Provider. These Terms do not provide any third party with a remedy, claim, or right of reimbursement. You must file any claim or suit related to the Provider's web sites, content or services within one year after it arises.