Terms of Service
Rev 3.7, March 2014
These Terms of Service for Vonage Business Solutions, Inc. (this “Agreement”) is a legal agreement between you (either an individual or an entity that you are representing, hereinafter “you”) and Vonage Business Solutions, Inc. and its suppliers and licensors (collectively “VONAGE BUSINESS SOLUTIONS”) for the VONAGE BUSINESS SOLUTIONS Services (“Services”). Your use of the Services constitutes your agreement to the terms of this Agreement and you acknowledge that VONAGE BUSINESS SOLUTIONS would not agree to provide the Services without that assent. The Services include new products, product changes, upgrades, support and other services. You may only receive the Services if you are a Service subscriber in good standing with a valid, authorized payment method on file with VONAGE BUSINESS SOLUTIONS. You understand that you must obtain your own Internet connection in order to use the Services. We do not control your Internet access or the quality of your Internet connection. WE ARE NOT RESPONSIBLE FOR ANY THIRD PARTY PRODUCTS OR SERVICES, OR FOR PROBLEMS IN THE SERVICES CAUSED BY YOUR INTERNET CONNECTION OR THIRD PARTY PRODUCTS OR SERVICES NOR WILL WE CONTACT ANY OF THESE PROVIDERS ON YOUR BEHALF.
Unlimited calling applies only to calls made within the continental United States and Canada. Calls to Alaska, Hawaii and all non-Canadian international calls are subject to additional charges.
Additional VONAGE BUSINESS SOLUTIONS Services can be purchased by users you designate as administrators through the VONAGE BUSINESS SOLUTIONS user interface or by calling VONAGE BUSINESS SOLUTIONS Customer Care. You hereby authorize those users with administrative privileges to (i) add these Services to your VONAGE BUSINESS SOLUTIONS account and (ii) commit you to pay for these Services on a recurring monthly basis. You further authorize VONAGE BUSINESS SOLUTIONS to obtain payment of your then-current statement balance from you each month from your credit card account.
You may designate one or more users to be an account administrator with full administrative control of your account from the Vonage Business Solutions user interface. The primary administrator for your account is known as the “Superuser.” Upon creation of your account, the individual assigned to be the Superuser is the individual who entered into an agreement with Vonage Business Solutions through our online sign-up process or, if the agreement was not entered into online, the individual’s whose name is identified on your Vonage Business Solutions quote sheet. The Superuser: (i) has the ability to make any changes to the account (e.g., service additions, service deletions, assignment of users, account cancellations, updates to credit cards, etc.); and (ii) is the authorized individual on your account with respect to porting of your telephone numbers to a carrier other than Vonage Business Solutions. The Superuser may assign one or more additional administrators on the account and may re-assign “Superuser” status to another user. In the event that you wish to re-assign the Superuser designation on your account and the Superuser is unable to make the change, Vonage Business Solutions will require that you submit an email from the Superuser’s email address which is on file with Vonage Business Solutions or otherwise provide a written request via facsimile, on your letterhead and executed by an officer or owner of the company which you represent.
Administrators on the account have the ability to make changes to the account (e.g., service additions, service deletions, assignment of users, updates to credit cards, etc.) but may not (i) authorize an account cancellation, (ii) designate himself or herself as the Superuser, or (iii) designate any other user as an administrator.
Should you wish Vonage Business Solutions to provide information on your account with respect to a customer service record or actual call log details (other than through the user interface), such request may be made by the Superuser or any administrator on the account, but information provided by Vonage Business Solutions will only be transmitted to the email address on file for the Superuser.
The Superuser or any other administrator may designate the “Company Contact” for the account. The Company Contact is the individual who will receive all messages from Vonage Business Solutions concerning matters of general relevance to the account (notices of updates to the account, billing notices, maintenance alerts, etc.), which such notices are typically provided through electronic mail. Vonage Business Solutions will initially assign the Superuser to be the Company Contact.
1. PAYMENT & SERVICES.
1.1 Automatic Monthly Billing.
The Services are provided on a monthly basis, with an automatic monthly renewal unless you give us seventy-two (72) hours’ notice of cancellation prior to a scheduled billing date in accordance with the requirements of Section 2 below. You agree to pay VONAGE BUSINESS SOLUTIONS the recurring monthly service charges, set-up charges and usage charges, if applicable, for your use of the Services plus any applicable taxes as set forth in Section 1.4 below.
1.2 Payment Processing.
You agree to provide us with a valid email address and a valid payment method. You must advise us immediately if your email address changes and/or payment method changes or expires. Failure to comply may result in the immediate termination of Services. You authorize VONAGE BUSINESS SOLUTIONS to automatically bill the credit card you provided, until you cancel the Services in accordance with the requirements of Section 2 below. You agree that VONAGE BUSINESS SOLUTIONS may receive updated information about your account from the financial institution issuing your credit card. Under certain circumstances a customer may make payments by check. Those customers will be charged a $10 per month processing fee and will be required to maintain a non-interest bearing deposit, to be held on account, in the amount of one month’s total billings. This deposit will be adjusted as service levels increase or decline and will be refunded, less any past due balance, if you cancel your account.
1.3 Fee Payments & Late Charges.
Except for usage based fees, all fees are due in advance on the first day of each billing period. All usage based charges (including charges for calls to Alaska, Hawaii and international calls) and any other non-recurring charges are due and payable in arrears on the first day of each billing period following the month they were incurred. You agree to pay for all equipment and set up fees at the time your request the Services. You agree to pay for the first month of Services upon your request for such Services. All payments, including payments paid in advance, are completely non-refundable. Failure to pay in full will result in immediate account suspension and VONAGE BUSINESS SOLUTIONS shall have no liability for such suspension under any circumstances. Accounts will be reactivated, at VONAGE BUSINESS SOLUTIONS’s sole discretion, only when the account balance is paid in full and a $25 reconnect fee is paid. VONAGE BUSINESS SOLUTIONS will assess an additional 1.5% (or the highest amount allowed by law, whichever is higher) per month late charge if your payment is more than 30 days past due. VONAGE BUSINESS SOLUTIONS may modify the Service fees at any time, but will provide at least thirty (30) days advance notice by postal mail, email or by publishing the new Service fees on the VONAGE BUSINESS SOLUTIONS website. Should you elect to make a payment to VONAGE BUSINESS SOLUTIONS by wire transfer, an additional charge of $10 shall apply. In the event that you present a check to VONAGE BUSINESS SOLUTIONS for payment that is returned by your bank for non-sufficient funds, you shall pay a processing fee of $25. You are responsible and liable for any fees, including attorney and collection fees, that VONAGE BUSINESS SOLUTIONS may incur in its efforts to collect any remaining balances from you. You also agree that you will be billed for and will pay any outstanding balances if you cancel the Services.
During any period of suspension for non-payment, Services will be unavailable to you until the account balance is paid in full. In the event that VONAGE BUSINESS SOLUTIONS is providing data backup service, call recording service, or any other service for which VONAGE BUSINESS SOLUTIONS is collecting or providing data, to you during a period of suspension, you will be unable to backup new data or record calls and you will be unable to access any data or recordings that have previously been stored by VONAGE BUSINESS SOLUTIONS.
Notwithstanding the foregoing, in the event that your use of the Services involves usage-based charges that in Vonage Business Solutions’s opinion are substantial, Vonage Business Solutions may, in its sole discretion, process charges against your payment method prior to your regular monthly billing cycle date and/or require a non-interest bearing deposit to secure your payment obligations under this Agreement. In the event that Vonage Business Solutions requires a deposit, the deposit will be in an amount determined by Vonage Business Solutions to be equal to your forecasted monthly usage charges. All deposits must be paid via a wire transfer and will be held on account during the term of this Agreement. This deposit may be adjusted as usage levels increase or decline and will be refunded, less any past due balance, if you cancel your account. Vonage Business Solutions may suspend your service at any time pending receipt of the required deposit.
Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility, universal service or other similar taxes. All such taxes shall be paid by you and will be added to any amounts otherwise charged to you unless you provide VONAGE BUSINESS SOLUTIONS with an appropriate exemption certificate. If any amounts paid for the Services are refunded by VONAGE BUSINESS SOLUTIONS, applicable taxes may not be refundable.
1.5 Invoice Discrepancies & Currency Conversion.
We deliver all invoices through email only. You agree to notify VONAGE BUSINESS SOLUTIONS about any billing problems or discrepancies within 30 days after they first appear on your account statement. If you do not bring them to VONAGE BUSINESS SOLUTIONS’s attention within 30 days, you agree that you waive your right to dispute such problems or discrepancies. All transactions are charged in U.S. dollars (USD). Please remember that orders placed with us will be converted from USD to your currency by your credit card company when they process the transaction. VONAGE BUSINESS SOLUTIONS cannot be held responsible for any adverse currency fluctuations.
1.6 Release of Numbers.
You acknowledge that in the event of any account termination or cancellation, all telephone numbers associated with your account are released and may not be available to you upon your reactivation. Similarly, the cancellation of individual services which have associated telephone numbers will result in the release of such numbers. You acknowledge that it is your responsibility to work with a third party provider to port out those numbers prior to your termination or cancellation of your account or termination of services.
1.7 Regulatory Recovery Fee.
A Regulatory Recovery Fee for every phone number assigned to your account will be charged monthly to offset costs incurred by VONAGE BUSINESS SOLUTIONS in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee will apply to every phone number assigned, including toll free and virtual numbers.
1.8 E911 Fee.
The FCC requires that Vonage Business Solutions provide emergency 911 services, and allows us to charge a recurring monthly fee that is used for the following: next generation costs required by the Federal Communications Commission (FCC) for supporting computer software and hardware upgrades that allow public safety answering points (PSAP) to send assistance to the registered location of a 911 caller. The $.99 monthly Emergency 911 Fee is charged for each Unlimited and Metered Extension and for each Secondary Line Appearance.
1.9 Unlimited Voice Services.
Unlimited voice services are provided solely for live dialog between two individuals. Unlimited voice services may not be used for conference calling, call forwarding, monitoring services, data transmissions, transmission of broadcasts, transmission of recorded material, or other connections which do not consist of uninterrupted live dialog between two individuals. If VONAGE BUSINESS SOLUTIONS finds that you are using an unlimited voice service offering for other than live dialog between two individuals, VONAGE BUSINESS SOLUTIONS may, at its option, terminate your service or change your plan to one with no unlimited usage components. VONAGE BUSINESS SOLUTIONS will provide notice that it intends to take any of the above actions, and you may terminate the Agreement. Notwithstanding the foregoing, you shall be entitled to use VONAGE BUSINESS SOLUTIONS conference calling services such as three way calling and VONAGE BUSINESS SOLUTIONS-provided conference calling bridges.
1.10 Metered Usage.
There are certain calls which will incur additional usage charges, such as calls to Alaska, Hawaii and international calls. In addition, certain features such as call forwarding from auto attendants to an outside number, calls to a queue, and each line on a conference bridge will all incur charges at the then current rate established by VONAGE BUSINESS SOLUTIONS. Metered usage is billed in full-minute increments, and actual usage is rounded up to the next full increment at the end of each call for billing purposes.
Customer is responsible to secure all credentials used to access the Services, including credentials used by telephones or softphones and credentials used by end users or administrators to access the Vonage Business Solutions user interface, as well as the media access control (MAC) address of telephones used by Customer. Customer acknowledges that placing telephones on a publicly accessible internet protocol address or a publicly accessible network will subject the Customer to a higher level of risk for fraudulent activity, as will use of the Services using a network that has not been secured using best practice measures. Customer acknowledges that Customer bears the risk of loss arising from any unauthorized or fraudulent usage of the Services. Vonage Business Solutions may, but shall not be required, to take action to prevent or terminate any fraud or abuse in connection with the Services.
1.11 Ancillary Services.
List and publish and caller name identification (i.e., caller ID with name) Services are provided by VONAGE BUSINESS SOLUTIONS are based on availability of such Services from VONAGE BUSINESS SOLUTIONS’s underlying providers. We do not guarantee that such Services are available for all numbers in all serving areas.
Each voicemail message recorded by VONAGE BUSINESS SOLUTIONS shall be retained for a minimum of three (3) months from the date the message was recorded. VONAGE BUSINESS SOLUTIONS retains the right to purge all voicemail messages after this minimum retention period.
Certain Services provided by VONAGE BUSINESS SOLUTIONS shall be subject to separate end-user license agreements (“EULA”). The terms of such EULAs shall be binding upon the parties to this Agreement. If any such EULAs, or any provisions in such EULAs, are held to be unenforceable for any reason, the terms of this Agreement shall apply with respect to the supply of that Service.
VONAGE BUSINESS SOLUTIONS may introduce new ancillary Services to new and existing customers. Such ancillary Services may sometimes be offered on a trial basis for a specified period of time during which no fees shall apply to Customer. In some cases, the terms of the free trial may involve an automatic re-enrollment at the end of the trial unless the customer opts out of the trial and/or cancels the service during the term of the free trial. In no event shall VONAGE BUSINESS SOLUTIONS impose service fees on Customer for ancillary services without providing customer the opportunity to opt-out of the trial and/or to cancel the ancillary Service during a no-cost trial period.
1.12 Notices from VONAGE BUSINESS SOLUTIONS.
VONAGE BUSINESS SOLUTIONS may provide you notice under this Agreement either by written document, email, voice mail or by publishing the information on the VONAGE BUSINESS SOLUTIONS website.
2. CANCELLATION OF SERVICES.
In the event that you subscribe to ancillary services provided by VONAGE BUSINESS SOLUTIONS, your election to cancel telephone service with VONAGE BUSINESS SOLUTIONS shall also cancel such ancillary Services. In the event that VONAGE BUSINESS SOLUTIONS is providing data backup, voicemail recording, call recording, or other such ancillary service to you, all of your data, including all recordings, will be deleted on or after the date that you cancel such service, without further notice to you. In the event that you cancel an end user account within the online Web user interface (located at https://my.vonagebusiness.com), the user data associated with such account on the ancillary service will be automatically deleted.
You may also cancel individual Services on your account at any time by contacting Vonage Business Solutions Customer Care during normal business hours. You acknowledge that the cancellation will be effective on the date you specify but in no event earlier than 72 hours after you provide notification to VONAGE BUSINESS SOLUTIONS. You will not receive any refund or partial refund or any credits for any charges already billed to your account. In the event you signed up for a minimum commitment period for the Services to be cancelled, you will be responsible for all charges for the entire minimum commitment period, all such fees will immediately accelerate and you authorize VONAGE BUSINESS SOLUTIONS to immediately bill all these fees to your payment method.
3. VONAGE BUSINESS SOLUTIONS’S RIGHT TO TERMINATE OR MODIFY SERVICES.
VONAGE BUSINESS SOLUTIONS may modify the terms of this Agreement or the Services, including but not limited to the price, content or nature of the Services, upon notice to you. Your continued use of the Services constitutes your agreement to those modified terms of this Agreement and you acknowledge that VONAGE BUSINESS SOLUTIONS would not agree to provide the Services without that assent. In the event VONAGE BUSINESS SOLUTIONS modifies the Agreement or the Services, you may terminate the Services as provided in Section 2, above. VONAGE BUSINESS SOLUTIONS may terminate this Agreement and any Services at any time upon notice to you, provided that in the event you have not violated any term of this Agreement, you will be entitled to receive the Services for any period for which you have already paid, or a pro-rata refund at VONAGE BUSINESS SOLUTIONS’s sole discretion. This Agreement will automatically terminate if you fail to comply with any term. No refund will be provided in the event that you have violated any term of this Agreement. No notice shall be required from VONAGE BUSINESS SOLUTIONS to effect such termination. Upon any termination of this Agreement (whether by you or VONAGE BUSINESS SOLUTIONS), you shall immediately discontinue use of the Services. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement.
In the event that VONAGE BUSINESS SOLUTIONS terminates this Agreement, the Services, or any ancillary Services, all of your data, including all recordings, will be deleted on or after the data that VONAGE BUSINESS SOLUTIONS cancels such services, without further notice to you.
4. SERVICE USE RESTRICTIONS.
4.1 Compliance with Laws.
You agree that you shall only use the Services in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights and restrictions concerning call recording, call monitoring, call interception and/or direct marketing or telemarketing. VONAGE BUSINESS SOLUTIONS may provide you with guidelines regarding compliance with applicable regulation(s); however, you are solely responsible for ensuring that your use of the Services is in compliance with such regulations. You may only use the Services for your own use. You may not use the Services in any way to provide, or as part of, any commercial service or application or in any way interfere with the users, services or equipment of the network. You may not attempt to, in conjunction with any device, software program or service, circumvent technological measures employed to control access to the Service. In addition to any other remedies available in equity or law to VONAGE BUSINESS SOLUTIONS, failure to comply with any of the terms and conditions in this Section 4 (Service Use Restrictions) shall result in immediate termination of the Services.
4.2 Fair Use.
While most reasonable uses of our Services in connection with the terms of this Agreement are permitted by VONAGE BUSINESS SOLUTIONS, there are certain uses that cause extreme network capacity issues and interference with the network. Any use of the Services or any other action that causes a disruption in the network integrity of VONAGE BUSINESS SOLUTIONS services or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services. Examples of such prohibited uses include, but are not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, constant dialing, iterative dialing, fax broadcast, fax blasting, telemarketing or any other activity that would be inconsistent with small business usage. You agree that you will NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the Services. You agree and represent that you are purchasing the Services and/or the equipment for your own internal use only, and shall not resell, transfer or make a charge for the Services or the equipment without the advance express written permission of VONAGE BUSINESS SOLUTIONS.
VONAGE BUSINESS SOLUTIONS reserves the right to review usage of unlimited minute usage plans to ensure that you are not abusing such plans. You agree to use unlimited minute plans for normal voice or fax calls and will not employ methods or devices to take advantage of unlimited plans by using the voice or fax services excessively or for means not intended by VONAGE BUSINESS SOLUTIONS. VONAGE BUSINESS SOLUTIONS may terminate service immediately if it determines, in its sole discretion, you are abusing the unlimited minute plan.
For purposes of this policy and your plan, “unlimited usage” means the combined number of inbound and outbound voice minutes and fax pages, but excluding all advertising and informational messages sent to you directly by VONAGE BUSINESS SOLUTIONS, as determined by us in our sole discretion. We reserve the right to at any time to enforce this policy in accordance with its terms. You agree that your level of usage of VONAGE BUSINESS SOLUTIONS’S unlimited service plans will be comparable to that of the average small business customer utilizing such plans. VONAGE BUSINESS SOLUTIONS deems usage that substantially exceeds the average volume of its other unlimited usage plan customers as abusive. You agree that VONAGE BUSINESS SOLUTIONS has the right to terminate your service or charge you additional fees if your usage is considered abusive in the sole discretion of VONAGE BUSINESS SOLUTIONS.
If it is determined that your usage is abusive, you agree to pay a per minute or per page fee of use in excess of those levels AT THE THEN-CURRENT RATE ESTABLISHED BY VONAGE BUSINESS SOLUTIONS, which is currently $.06 per minute and/or $.06 per facsimile page and, at VONAGE BUSINESS SOLUTIONS’s sole option, your service will be immediately terminated. THIS OVERAGE FEE APPLIES TO ALL PLANS INCLUDING THE UNLIMITED PLANS.
5. PERSONAL INFORMATION AND PRIVACY.
6. E-MAIL NOTIFICATION.
To let you know what new Services are available from time to time, VONAGE BUSINESS SOLUTIONS may send you and your employees emails describing the latest Services, how to access the Services and changes to the Services. You agree that as a Service subscriber, VONAGE BUSINESS SOLUTIONS may send you such emails to the addresses you provide. Because these emails are necessary for you to receive the Services, you will receive these emails even if you have opted out of receiving other email from VONAGE BUSINESS SOLUTIONS. If you do not want to receive these emails, you may cancel the Service at any time as provided in this Agreement.
7. PORTED TELEPHONE NUMBERS ON SERVICE DISCONNECTION.
7.1 Single line Accounts.
You may be able to take, or “port,” your current telephone number(s) to another service provider. You will remain responsible for all charges and fees until you notify VONAGE BUSINESS SOLUTIONS of your election to cancel services in accordance with Section 2. Until you notify us of your intention to cancel, your Service and your Agreement with us will not terminate, you will remain a VONAGE BUSINESS SOLUTIONS customer, and you will continue to be responsible for all charges and fees associated with your VONAGE BUSINESS SOLUTIONS Service. You will not receive any refund or partial refund or any credits for any charges already billed to your account.
7.2 Multiple-line Accounts.
If you request that a new service provider port a number from us and you have multiple numbers assigned to your account and/or additional equipment on your account, you are required to inform us of your intent to terminate the specific affected Services on your account or we will continue to bill for such Services. You will continue to be responsible for all the charges and fees associated with the remaining Services on your VONAGE BUSINESS SOLUTIONS account. You will not receive any refund or partial refund or any credits for any charges already billed to your account.
Telephone numbers assigned by VONAGE BUSINESS SOLUTIONS for VONAGE BUSINESS SOLUTIONS’s facsimile service cannot be ported to a new service provider. VONAGE BUSINESS SOLUTIONS will use commercially reasonable efforts to facilitate a port of a facsimile number which was ported on your behalf to VONAGE BUSINESS SOLUTIONS by another service provider and you will be required to pay a porting fee to VONAGE BUSINESS SOLUTIONS of $100 per number.
7.3 Request for VONAGE BUSINESS SOLUTIONS to Port numbers.
If you request that VONAGE BUSINESS SOLUTIONS port a number from an existing service provider to VONAGE BUSINESS SOLUTIONS, VONAGE BUSINESS SOLUTIONS will use commercially reasonable efforts to assist you in porting that number. You acknowledge that service providers require verification of identity, as well as authorization and other reasonable information in order to port any numbers to VONAGE BUSINESS SOLUTIONS. You must correctly complete a letter of authorization, provide us with a copy of your most recent bill from such service provider, as well as provide us with any other information required by such service provider to port your number. Failure to provide any information requested by VONAGE BUSINESS SOLUTIONS or the third party service provider will delay the porting of the number to VONAGE BUSINESS SOLUTIONS. VONAGE BUSINESS SOLUTIONS shall not be responsible for any delay in the port of your number and will not provide credit for any such delays.
In some cases, VONAGE BUSINESS SOLUTIONS may permit you to submit documentation required to port numbers using a web-enabled user interface. You have the ability to obtain a printed copy of all porting documentation at no cost to you from the interface or by contacting VONAGE BUSINESS SOLUTIONS Customer Care. VONAGE BUSINESS SOLUTIONS will provide copies of the forms by facsimile or email. No additional software or hardware are required. You may withdraw your consent to submit your porting request electronically by contacting VONAGE BUSINESS SOLUTIONS Customer Care prior to our submitting the porting request to our partner. Your consent to electronic submission applies only to the specific porting request you submit through web-enabled interface.
8. DISCLAIMER OF WARRANTY & LIMITATION OF LIABILITY.
THE SERVICES ARE PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VONAGE BUSINESS SOLUTIONS FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. YOU ASSUME THE ENTIRE RISK ARISING OUT OF THE USE OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VONAGE BUSINESS SOLUTIONS, ITS SUPPLIERS, DISTRIBUTORS, RESELLERS, OR RETAILERS BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES EVEN IF VONAGE BUSINESS SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH VONAGE BUSINESS SOLUTIONS RELATED TO THIS AGREEMENT OR THE SERVICES/CONTENT SHALL BE CANCELLATION OF THE SERVICES. IN THE EVENT A COURT AWARDS DIRECT DAMAGES DESPITE THE FOREGOING, SUCH DAMAGES SHALL NOT EXCEED THE LESSER OF $250.00 OR THE AMOUNT YOU PAID TO VONAGE BUSINESS SOLUTIONS WITHIN THE LAST SIX MONTHS. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. VONAGE BUSINESS SOLUTIONS DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY CONTENT PROVIDED BY OR THROUGH VONAGE BUSINESS SOLUTIONS.
You agree to hold harmless, indemnify and defend VONAGE BUSINESS SOLUTIONS, its officers, directors, employees, distributors, resellers, retailers, and suppliers from and against any losses, damages, fines and expenses (including attorneys’ fees and costs) arising out of or relating to any claim that you have violated any term of this Agreement, including, without limitation, the requirements set forth in Section 4.1 of this Agreement.
10. NO ASSIGNMENT.
This Agreement is personal to you (or the company which you represent), and may not be assigned without VONAGE BUSINESS SOLUTIONS’s express written consent. If you are agreeing on behalf of a company, you represent that you are authorized to bind the company under this Agreement.
11. OTHER IMPORTANT PROVISIONS.
11.1 Dispute Resolution.
Purpose. If you have a Dispute (as defined below) with VONAGE BUSINESS SOLUTIONS that cannot be resolved through an informal dispute resolution with VONAGE BUSINESS SOLUTIONS, you or VONAGE BUSINESS SOLUTIONS may elect to arbitrate that Dispute in accordance with the terms of this Dispute Resolution provision rather than litigate the Dispute in court. Arbitration means you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury.
Definitions. The term “Dispute” means any dispute, claim, or controversy between you and VONAGE BUSINESS SOLUTIONS regarding any aspect of your relationship with VONAGE BUSINESS SOLUTIONS, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Dispute Resolution provision (with the exception of the enforceability of the class action waiver clause provided in this paragraph). “Dispute” is to be given the broadest possible meaning that will be enforced. As used in this Dispute Resolution provision, “VONAGE BUSINESS SOLUTIONS” means VONAGE BUSINESS SOLUTIONS, Inc., and its parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents.
Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or VONAGE BUSINESS SOLUTIONS elect to resolve your Dispute through arbitration pursuant to this Dispute Resolution provision, the party initiating the arbitration proceeding may initiate the arbitration proceeding with American Arbitration Association (“AAA”), 335 Madison Ave., Floor 10, New York, NY 10017-4605, 1-800-778-7879, www.adr.org under the Commercial Arbitration Rules of the AAA.
Arbitration Procedures. Because the Service(s) provided to you by VONAGE BUSINESS SOLUTIONS concerns interstate commerce, the Federal Arbitration Act (“FAA”), not state arbitration law, shall govern the arbitrability of all Disputes. However, applicable federal law or the law of the state where you receive the service from VONAGE BUSINESS SOLUTIONS may apply to and govern the substance of any Disputes. Any state statutes pertaining to arbitration shall not be applicable under this Dispute Resolution provision.
If there is a conflict between this Dispute Resolution provision and the rules of the arbitration organization chosen, this Dispute Resolution provision shall govern. If the arbitration organization that you select will not enforce this Dispute Resolution provision as written, it cannot serve as the arbitration organization to resolve your dispute with VONAGE BUSINESS SOLUTIONS. If this situation arises, the parties shall agree on a substitute arbitration organization. If the parties are unable to agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will enforce this Dispute Resolution provision as written. If there is a conflict between this Dispute Resolution provision and the rest of this Agreement, this Dispute Resolution provision shall govern.
A single arbitrator will resolve the Dispute. You should know that participating in arbitration may result in limited discovery depending on the rules of the arbitration organization that is chosen to resolve the Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. An award rendered by the arbitrator may be entered in any court having jurisdiction over the parties for purposes of enforcement.
If an award granted by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the same arbitration organization by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the arbitration organization. The arbitration organization will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right which exists under the FAA.
Restrictions: YOU MUST CONTACT US WITHIN THREE (3) MONTHS OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS, OR DISPUTE.
ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS SIMILARLY SITUATED UNLESS THE STATUTE UNDER WHICH YOU ARE SUING PROVIDES OTHERWISE.
ALL PARTIES WAIVE ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR MULTIPLIED DAMAGES ARISING FROM OR OUT OF ANY DISPUTE WITH VONAGE BUSINESS SOLUTIONS UNLESS THE STATUTE UNDER WHICH THEY ARE SUING PROVIDES OTHERWISE.
Location of Arbitration. The arbitration will take place in the City of Atlanta, State of Georgia.
Payment of Arbitration Fees and Costs. THE PARTY INITIATING THE ARBITRATION WILL ADVANCE ALL ARBITRATION FILING FEES AND ARBITRATOR’S COSTS AND EXPENSES. EACH PARTY IS RESPONSIBLE FOR ALL ADDITIONAL COSTS SUCH PARTY INCURS IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN FAVOR OF THE PARTY INITIATING THE ARBITRATION, THE OTHER PARTY SHALL REIMBURSE THE FEES AND COSTS ADVANCED ONLY UP TO THE EXTENT AWARDABLE IN A JUDICIAL PROCEEDING. IF THE ARBITRATION PROCEEDING IS NOT DETERMINED IN FAVOR OF THE PARTY INITIATING THE ARBITRATION, THE OTHER PARTY SHALL NOT BE REQUIRED TO REIMBURSE THE OTHER FOR ANY OF THE FEES AND COSTS ADVANCED BY VONAGE BUSINESS SOLUTIONS. IF A PARTY ELECTS TO APPEAL AN AWARD TO A THREE-ARBITRATOR PANEL, THE PREVAILING PARTY IN THE APPEAL SHALL BE ENTITLED TO RECOVER ALL REASONABLE ATTORNEYS’ FEES AND COSTS INCURRED IN THAT APPEAL. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARBITRATION PROVISION, VONAGE BUSINESS SOLUTIONS WILL PAY ALL FEES AND COSTS THAT IT IS REQUIRED BY LAW TO PAY.
Severability. If any clause within this Dispute Resolution provision (other than the class action waiver clause identified above) is found to be illegal or unenforceable, that clause will be severed from this Dispute Resolution provision, and the remainder of this Dispute Resolution provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Dispute Resolution provision will be unenforceable, and the dispute will be decided by a court.
In the event this entire Dispute Resolution provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Dispute Resolution provision, you and VONAGE BUSINESS SOLUTIONS have each agreed to waive, to the fullest extent allowed by law, any trial by jury.
Exclusions from Arbitration. YOU AND VONAGE BUSINESS SOLUTIONS AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS; AND (2) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF A SERVICE.
Continuation. This Dispute Resolution provision shall survive the termination of your customer relationship with VONAGE BUSINESS SOLUTIONS.
11.2 Complete Agreement.
This Agreement shall constitute the complete and exclusive agreement between us, notwithstanding any variance with any purchase order or other written instrument submitted by you, whether formally rejected by VONAGE BUSINESS SOLUTIONS or not. The acceptance of any purchase order is expressly made conditional on your consent to the terms set forth herein and any additional terms in your purchase order or similar document shall be null and void. The terms and conditions contained in this Agreement may not be modified by you except in a writing duly signed by you and an authorized representative of VONAGE BUSINESS SOLUTIONS. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. VONAGE BUSINESS SOLUTIONS is not liable for editorial, pictorial, or typographical errors in this communication.
You may be required to purchase telecom equipment in order to utilize the Services. Procuring and maintaining that equipment is your sole responsibility. VONAGE BUSINESS SOLUTIONS may, at your request, facilitate the provision of equipment from a third party supplier or resell certain equipment. While we suggest and resell some equipment brands and facilitate your purchase of some equipment as an accommodation, the original equipment manufacturer and not VONAGE BUSINESS SOLUTIONS shall be responsible for any equipment defects, if applicable. VONAGE BUSINESS SOLUTIONS will pass through all original equipment manufacturer warranties for the equipment to you. VONAGE BUSINESS SOLUTIONS shall have no liability to you of any nature regarding such equipment. Please check the equipment provider’s website for warranty, return rules and other terms and conditions applicable to such third party equipment supplier. Equipment may not be returned to VONAGE BUSINESS SOLUTIONS for any reason. ALL EQUIPMENT SALES ARE FINAL. Equipment may be returned to the manufacturer solely in the event of a defect which arises within the applicable warranty period, provided you comply with the terms of this Section and the manufacturer’s Return Materials Authorization (“RMA”) policy. Prior to returning the equipment, you must contact VONAGE BUSINESS SOLUTIONS so that VONAGE BUSINESS SOLUTIONS may determine whether a defect exists and to receive an RMA number, which is required along with the return. You must ship the equipment to the manufacturer at the address provided by VONAGE BUSINESS SOLUTIONS in accordance with all RMA procedures. You have 10 days after receipt of an RMA to ship the equipment back to the manufacturer at the address we provide. You must pay all shipping fees. Once the manufacturer has received the equipment, the original equipment manufacturer will deal with the equipment under its applicable warranty policy.
12. EMERGENCY SERVICES- 911 DIALING & NON-VOICE SYSTEMS.
12.1 Non-Availability of Traditional 911 or E911 Dialing Service.
At Vonage Business Solutions 911 dialing service operates differently than traditional 911. You agree to inform any business invitees, guests and other third persons who may be present at the physical location where you utilize the Service of the non-availability of traditional 911 or E911 dialing from your Vonage Business Solutions’ Service and equipment. The physical location where you utilize the service must be the actual physical street address where the equipment is located, not a P.O box, mail drop or similar address.
12.2 Description of 911-Type Dialing Capabilities – Activation Required.
Vonage Business Solutions offers 911-type dialing service in certain areas within the U.S. (but may not offer such service in certain areas of the U.S. or non-U.S. locations) that differs from traditional 911 services. When you dial 911 your call is routed from the Vonage Business Solutions network to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the address that you listed at the time of activation. If you make changes to your 911 address using the Vonage Business Solutions online web user interface https://my.vonagebusiness.com, your call may be routed to a different PSAP or local emergency service personnel, who may ask you to provide your location and other information.
Calls dialed by handset extensions included in your account with Vonage Business Solutions will be routed from the Vonage Business Solutions’ network to the PSAP or local emergency service personnel designated for the address that you listed at the time of activation. In the event that your equipment is used in multiple locations, or in the event that one or more items of equipment are used in multiple locations, end users designated as administrators on your account may, at your option, create additional service locations and associate your equipment to specific locations for the purposes of routing calls to the local PSAPs for such locations. Individual end users may assign and re-assign their current location on an as-needed basis, provided however, that the -”Super-user-”, or System Administrator has previously activated that functionality. Updates can be made at https://my.vonagebusiness.com. It is your sole responsibility to make these changes and to ensure that all business invitees, household residents, guests and other third persons who may be present at the physical location(s) where you utilize the Service are aware of this option.
For any Vonage Business Solutions extensions assigned to a non-US 911 location, calls placed to 911 will be routed to a US-based call center that may not be able to offer local emergency assistance to the caller.
12.3 Service Outage.
You acknowledge and agree that (a) 911 dialing does not function in the event of a power failure or disruption. If an interruption in the power supply occurs, the Service and 911 dialing will not function until power is restored and you may have to reset or reconfigure equipment prior to utilizing the Service or 911 dialing; (b) service outages or suspension or termination of service by your broadband provider and/or ISP or by Vonage Business Solutions will prevent ALL Service including 911 dialing; (c) service outages due to suspension of your account as a result of billing issues will prevent ALL Service, including 911 dialing; (d) if there is a service outage for ANY reason, such outage will prevent ALL Service, including 911 dialing; and (e) Vonage Business Solution’s liability is limited for any Service outage and/or inability to dial 911 from your line or to access emergency service personnel.
12.4 Possibility of Network Congestion and/or Reduced Speed for Routing or Answering 911.
You acknowledge and agree that (a) network congestion and/or reduced speed in the routing of a 911 communication made utilizing your equipment may be greater than that experienced when using traditional 911 dialing over traditional public telephone networks; (b) 911 dialing from your equipment will be routed to the general telephone number for the local emergency service provider (which may not be answered outside business hours), and may not be routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls at such local provider’s facilities when such calls are routed using traditional 911 dialing; and (c) the general telephone number for the local emergency service provider may produce a busy signal or may take longer to answer, as compared to those 911 calls routed to the 911 dispatcher(s) who are specifically designated to receive incoming 911 calls using traditional 911 dialing.
12.5 Automated Number Identification.
Technical limitations may make it impossible for the Public Safety Answering Point (PSAP) and the local emergency personnel to identify your phone number when you dial 911. The local emergency operators answering the call may not see your telephone number or your registered address. The emergency center may not be equipped to receive, capture or retain your telephone number and registered address, so you must be prepared to give them this information. Until you give the operator your phone number, he/she may not be able to call you back or dispatch help if the call is dropped or disconnected, or if you are unable to speak. Vonage Business Solutions’ system is configured to send the automated number identification information; however, one or more telephone companies that route the traffic to the PSAP, and the PSAP itself, may not be able to receive the information and pass it along. You acknowledge and agree that PSAP and emergency personnel may or may not be able to identify your phone number in order to call you back if (a) the call is unable to be completed; (b) the call is dropped or disconnected; c) you are unable to speak to tell the dispatcher the location of your phone number and/or (d) the Service is not operational for any reason.
12.6 Limitation of Liability and Indemnification Related to E/911 Services.
Vonage Business Solutions relies on third parties for the forwarding of information underlying such routing. Vonage Business Solutions and its third party provider(s) disclaim any and all liability in the event such forwarded information or routing is incorrect. Vonage Business Solutions and its officers, directors or employees may not be held liable for any claim, damage, loss or other cause of action, and you hereby waive any and all claims, damages, loss or causes of action, arising from or relating to Vonage Business Solutions’ 911 dialing.
You agree to defend, indemnify and hold harmless Vonage Business Solutions, its officers, directors, employees, affiliates, agents and its third party provider(s) from any and all third party claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of, or resulting from (a) your failure to correctly activate 911 calling; (b) your provision to Vonage Business Solutions of incorrect information in connection with your 911 calling or service; (c) misrouted 911 or E911 calls; or (d) the absence, failure or outage of the Service, including 911 dialing and/or inability of any user of your Service to be able to dial 911 or to access emergency service personnel.
12.7 Alternative 911 Arrangements.
You acknowledge and agree that (a) Vonage Business Solutions does not offer primary line or lifeline services; (b) the equipment and Services do not support 911 emergency dialing or other emergency functions; and (c) users of the Services, who may place calls using your phone services, need to be notified of the 911 limitations.
VONAGE BUSINESS SOLUTIONS ADVISES YOU TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES SUCH AS TRADITIONAL TELEPHONES AND CELLULAR PHONES. YOU SHOULD ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 OR E911 SERVICES.
13. CONSENT TO USE OF ELECTRONIC SIGNATURES AND RECORDS
As a convenience and courtesy to you, VONAGE BUSINESS SOLUTIONS provides access to its Services online which may require you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree that by clicking “I Agree” or “I Accept” anywhere on a VONAGE BUSINESS SOLUTIONS website:
13.1 You agree to conduct electronically the particular transaction into which you thereby enter including, without limitation, entering into this Agreement;
13.2 You have read and understand the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, and any policies and any amendments hereto or thereto;
13.3 You agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter;
13.4 You are capable of printing or storing a copy of electronic records of transactions into which you enter including, without limitation, this Agreement and any amendments hereto; and,
13.5 You agree to receive electronically information about the Services and other electronic records into which you thereby enter including, without limitation, this Agreement.
14. VENUE/GOVERNING LAW
This Agreement will be governed by and construed in accordance with the laws of the State of Georgia without regard to conflicts-of-laws principles. By using the Services, you hereby agree that the exclusive jurisdiction for any and all disputes regarding these Terms shall lie in the federal, state, and local courts of Atlanta, Georgia.
Rev 3.7, March 2014