PRIORITY CLOUD SERVICES END USER TERMS AND CONDITIONS
BEFORE USING THE PRIORITY COMMUNICATIONS SERVICES PLEASE READ THESE END USER TERMS OF SERVICE (THESE “TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE ENTITY IDENTIFIED AS THE “CUSTOMER” IN THE ORDER FORM (“CUSTOMER”).
PURSUANT TO THESE TERMS, CUSTOMER SHALL HAVE THE RIGHT TO USE THE PRIORITY COMMUNICATIONS SERVICES. THESE TERMS AND THE ORDER FORM TOGETHER CONSTITUTE A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND PRIORITY COMMUNICATIONS, INC., ITS AFFILIATES AND SUBSIDIARIES (“PRIORITY COMMUNICATIONS”) EFFECTIVE AS OF THE DATE OF CUSTOMER’S EXECUTION OF THE ORDER FORM. CUSTOMER IS ADVISED TO READ SECTION 7 CAREFULLY BEFORE USING THE SERVICE. THIS SECTION EXPLAINS THE OPERATION AND LIMITATIONS OF VOIP E911 EMERGENCY CALLS.
These Terms of Service govern and apply to Customer’s use of the Priority Communications Services and Equipment provided by Priority Communications as well as Customer’s access to the Priority Communications website (the “Website”).
1.1.) Installation, Initiation and Service: Priority Communications will begin installation, initiation and service only after it receives and accepts the following: (1) a duly executed Order Form; and (2) any amounts payable in advance in accordance with the applicable Order Form. Customer agrees that its purchase of the services is neither contingent upon the delivery of any future functionality or features nor dependent upon any discussions, oral or written, public comments made by Priority Communications with respect to future functionality, or features.
1.2.) Service Fees: Customer agrees to pay all monthly service charges, installation charges, set- up charges, usage-based charges, rental fees and other charges and fees (collectively, “Service Fees”) agreed to in each Order Form in the manner indicated therein.
1.3.) Invoicing: Customer will be invoiced one (1) month in advance for non-usage-based charges and in arrears for all usage-based charges unless otherwise indicated in the Order Form. “Service Activation Date” means the date on which a particular service is available for use.
Services shall be deemed accepted by Customer on the Service Activation Date. Priority Communications will notify Customer in accordance with the information provided by Customer or in the Priority Communications website Customer Portal.
1.4.) Payment: Unless otherwise stated in the Order Form, Service Fees are due fifteen (15) days from the date of the invoice. All Service Fees are quoted in United States currency and are based on Services ordered. Any payment not received from the Customer by the due date shall accrue at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid.
1.5.) Suspension of Service: If any Customer account is thirty (30) days or more overdue Priority Communications reserves the right to suspend or disable the Services, after providing notice to Customer without liability to Priority Communications, until such account is paid in full.
1.6.) Taxes and Regulatory Fees: Unless otherwise stated in the Order Form, Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, with the exception of Priority Communications’ income taxes, with respect to the services ordered. In addition to any taxes imposed by the government or regulatory agencies, Priority Communications reserves the right to charge other authorized regulatory fees, including, without limitation, E911 service fees, universal service fees, and regulatory recovery fees (“Fees”). Any imposition, modification or increases in Fees by a government or regulatory agency or that are intended to recover costs associated with government or regulatory programs shall become effective upon notice to Customer.
2.) Other Networks Approval and Usage: Priority Communications’ services require the ability to transmit data through third party networks and carriers, public and private (“Third Party Networks”). Customer acknowledges that use of or presence of third party networks and carriers may require approval of the owners or operators of such Third Party Networks, and will be subject to any terms and conditions that such Third Party Networks may establish. Customer understands that Priority Communications does not own or control the Third Party Networks, and agrees that Priority Communications shall not be responsible or liable for the performance or non-performance of the Third Party Networks, or within interconnection points between the Service and the Third Party Networks.
3.1.) Term of the Agreement: This Agreement commences on the date of execution of the Order Form by Customer and continues until all services expire or this Agreement is mutually canceled by the parties.
3.2.) Term of the Services: The services are offered for the initial term of service specified in the Order Form (the “Initial Service Term”). The Initial Service Term shall begin on the Service Activation Date (the “First Service”). Following the Initial Service Term, this Agreement shall automatically renew for additional terms equal to the Initial Service Term at the New Service Monthly Commitment (as such term is defined below) in effect at the time of renewal (each, a “Renewal Term”) unless and until either party notifies the other party in writing at least thirty
(30) days prior to the expiration of the Term in effect at the time that it does not wish to renew the Services. If, during the Initial Term or any Renewal Term, Customer adds any additional services to its use of the service, the amount of Customer’s monthly recurring charges shall increase the sum set forth in the original Customer Service Order Form (the “New Service Monthly Commitment”). The Service Term for any such additional services shall be coterminous with the Initial Service Term or any Renewal Term in effect at the time.
3.3.) Cancellation: This Agreement and any services may be cancelled by Priority Communications: (a) upon thirty (30) days written notice of a material breach to Customer if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3.4.) Early Termination: If Customer wishes to terminate the services under this Agreement prior to the expiration of the current Service Term and such termination is not due to Priority Communications’ breach, all recurring charges on the most current invoice which would otherwise be due through the end of the Service Term in effect at the time, including all applicable taxes shall be due and payable within thirty (30) days of the effective date of termination. The parties agree that these early termination charges are a reasonable estimate of anticipated actual damages and not a penalty.
4.) Rules of Use: Customer must at all times comply with Priority Communications’ Rules of Use. If Priority Communications becomes aware of Customer’s violation of the Rules of Use or illegal use of Priority Communications’ services, facilities, network or third party networks accessed through the Priority Communications network (including, in any case and without limitation, any use contrary to the Digital Millennium Copyright Act of 1998, 17 U.S.C. 512), or Priority Communications otherwise receives notice or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by Priority Communications or government authority. Any government determinations will be binding on Customer. If Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any violation of the Rules of Use or illegal use, Priority Communications may immediately suspend the services without further liability to Priority Communications.
Further, upon notice to Customer, Priority Communications may modify or suspend the service as necessary to protect its networks, customers or comply with any law or regulation. Under no circumstances will Customer take any actions in connection with its use of the services that could result in any harm or damage to the network, any third party network(s), Priority Communications’ premises, any equipment of Priority Communications or any other Priority Communications customer.
5.) Fraud: Customer agrees to notify Priority Communications promptly if it becomes aware of any fraudulent or unauthorized use of its account, service, or equipment. Priority Communications shall not be liable for any damages whatsoever resulting from fraudulent or unauthorized use of Customer’s account and the payment of all charges to Customer’s account shall be and remain the responsibility of Customer.
6.) Service Levels: Priority Communications will use commercially reasonable efforts to minimize service disruptions and outages. In the event of service disruptions or outages, Customer’s sole remedy, and Priority Communications sole obligation, shall be to provide the service level credits and/or remedies for the applicable Service in accordance with the Service Level Agreement. Priority Communications may update the Service Level Agreement from time to time upon notice to Customer.
7.) E911 Service: By use of the service, Customer acknowledges the limitations of E911 service as described in the E911 Policy. Customer agrees and acknowledges that while some individual services offer access to E911 service, others may not. Customer is advised to thoroughly understand the service and the options available. By accepting this Agreement, Customer acknowledges that it has received the information regarding the limitations of E911 services, understands them, and assumes the risks associated with the E911 limitations. Priority Communications may disclose to the FCC that Customer has acknowledged the E911 Disclosure by virtue of Customer having accepted this Agreement. Priority Communications may update the E911 Policy from time to time upon notice to Customer.
8.) Equipment: If so indicated on any Order Form, Priority Communications may rent or sell certain equipment to Customer. Such equipment shall be listed on the Order Form and/or on any other form signed by Customer. Any equipment rental or purchase shall be subject to the terms and conditions set forth in the Equipment Policy. Customer shall be solely responsible and liable for user’s compliance with this Agreement and the proper use of the equipment and the services.
9.) Confidentiality: As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as the terms and conditions of this Agreement. Confidential Information shall not include information which: (a) is known publicly; (b)
is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure to the extent legally permitted. The Receiving Party agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, the Disclosing Party shall be further entitled to seek injunctive relief.
10.) Resale: Customer represents and warrants that it will be the end user of the services. Customer shall not in any way resell, license or permit, or allow any third party to use the services without receiving Priority Communications’ prior written consent.
11.) Disclaimer of Warranties: Except as expressly provided herein, Customer acknowledges and agrees that the services are provided on an “As Is”, as available basis. Other than as expressly provided herein, Priority Communications DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR, NON- INFRINGEMENT OR TITLE TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Priority Communications does not warrant that the services will meet the Customer’s requirements or that the operation of the services will be uninterrupted or error-free. Further, Priority Communications does not warrant that all errors in the services can be corrected.
11.1.) Disclaimer of Third Party Actions and Control: Customer acknowledges and agrees that Priority Communications does not and cannot control the flow of data between Priority Communications’ network and Third Party Networks. Such flow depends on the performance of Third Party Networks and the services provided or controlled by third parties. Action or
inactions caused by these Third Party Networks can produce situations in which Customer’s connections may be impaired or disrupted. Although Priority Communications will use commercially reasonable efforts to remedy and avoid such events, Priority Communications cannot issue any warranties over these Third Party Networks or any disruptions that may occur. THEREFORE, WITHOUT LIMITING THE GENERALITY OF SECTION 11 ABOVE, PRIORITY COMMUNICATIONS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE, NONPERFORMANCE OR FAULTY PERFORMANCE OF THIRD PARTY NETWORKS.
12.) Limitation of Liability: In the performance of this Agreement, Priority Communications’ liability shall be limited to the amount of half of one month’s payment due under this Agreement. Customer indemnifies and holds Priority Communications harmless in respect to any allegation, claim, loss, or expense Customer or any third party suffers arising directly or indirectly from the performance of this Agreement. Customer indemnifies and holds Priority Communications harmless in respect to any allegation or claim as to any indirect or consequential loss or expense suffered by Customer or a third party including but not limited to loss of turnover, profits, business, goodwill, opportunity, or any liability to the customer or a third party. Customer indemnifies and holds Priority Communications harmless for any allegation or claim for loss or damage sustained by Customer or a third party where Priority Communications has failed to meet a delivery date or cancels or suspends the supply of goods or services. Except as otherwise expressly stated in these terms and conditions, Priority Communications is not liable for any loss or damage of any kind however caused which is suffered or incurred by the customer in connection with goods or services provided to the customer, this Agreement, the non-availability of goods or services for any reason, any act or omission of Priority Communications or the provision of inaccurate, incomplete, or incorrect information by Customer, or for any other reason whatsoever.
13.) Customer’s Indemnification of Priority Communications: The Customer agrees to indemnify and hold Priority Communications harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Priority Communications by a third party arising from or relating to: (i) any act, error, omission, fault, negligence, or misconduct of Customer or any user of the services or equipment;
(ii) Customer’s material breach of the Rules of Use; (iii) any claim by any employee or invitee of Customer or user; (iv) any claim by any customer of Customer, User, or any other third party relating to, or arising from, Customer’s use of the services or equipment; or (v) violation of any law or regulation by Customer, any User, or any Customer employee, contractor, or agent.
14.) Force Majeure: Priority Communications will not be liable for any failure or delay in its performance under the Agreement, due to any cause beyond its reasonable control, including any act of war, act of God, earthquake, flood, embargo, riot, sabotage, terrorist attack, cyber-attack (hacking and DDOS), acts of public enemies, civil disturbances or general restraint or arrest of government and people, boycott, strike (including a general strike), lockout or other similar industrial disturbance, service interruption by a telecommunications services provider, or connectivity delays with internet providers outside of Priority Communications’ reasonable control, provided that Priority Communications (a) gives Customer notice of such cause and (b) uses reasonable commercial efforts to correct such failure or delay in performance.
15.) No Lease: Except as otherwise provided herein, the Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any interest whatsoever (leasehold or otherwise) in any premises, real or personal property, equipment or servers of Priority Communications or in any personal property or server space leased by Priority Communications (except for the Equipment rental), and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations, or ordinances.
16.) Government Regulations: Customer will not use the Priority Communications network or the services to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations to whose jurisdiction Customer is subject.
17.) Assignment: Customer shall not assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of Priority Communications, except to a party that acquires all or substantially all of Customer’s assets as part of a corporate merger or acquisition. The Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. Priority Communications reserves the right to assign its rights or delegate its duties under this Agreement in whole or in part without notice to Customer.
19.) Choice of Law: The Agreement will be governed by and construed in accordance with the laws of the State of Indiana. If a dispute arises between the parties to this Agreement regarding the performance, interpretation, or cancellation of this Agreement, Priority Communications shall be entitled to recover its costs and attorneys’ fees.
20.) Forum Selection: Any and all disputes between the parties shall be litigated in the Superior Court of Hamilton County, Indiana, or the District Court for the Southern District of Indiana.
21.) Entire Agreement: This Agreement and any Order Form(s), including any Terms and Conditions issued pursuant to the Order Form(s), issued hereunder represent the complete agreement and understanding of the parties with respect to the subject matter hereof and supersede, to the extent of any conflict, any other agreement or understanding, written or oral, between the parties with respect to the subject matter hereof. In the event of an inconsistency between the terms and conditions of the Order Form, these Terms of Service and the Order Form(s) now or hereafter appended hereto, the terms of the Order Form shall govern. Both parties represent and warrant that they have full corporate power and authority to execute and deliver each Order Form and to perform their obligations under the Agreement and that each person whose signature appears on the Proposal, these Terms of Service (if applicable) and any Order Form is duly authorized to execute such document on behalf of the respective party.
22.) Surviving Provisions: The parties agree that any limitations of liability, exclusions, and disclaimers of warranties and indemnification obligations are essential to the parties’ entering into this Agreement; will survive the termination of the Agreement and will apply even if the Agreement is found to have failed of its essential purpose.
23.) Severability: If any provision or provisions contained within this Agreement are determined to be unlawful, invalid, or unenforceable, those provisions may be severed without prejudice to the validity and enforceability of the remaining provisions of this Agreement.