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Terms of Service
THESE TERMS OF SERVICE, ALONG WITH THE POLICIES REFERENCED HEREIN (“AGREEMENT”), GOVERNS CUSTOMER’S USE OF SIMSIP, LLC’S (“SIMSIP” OR “COMPANY”) SERVICES. READ THIS AGREEMENT CAREFULLY, IN ITS ENTIRETY, BEFORE USING THE COMPANY SERVICE. YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT. FURTHERMORE, IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO: (1) REGISTER THE COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT, INCLUDING ANY AUTHORIZED AGENT/ EMPLOYEE OF SUCH ENTITY, AS USERS OF THE COMPANY SERVICE; AND (2) BIND THE COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT, INCLUDING ANY AUTHORIZED AGENT/ EMPLOYEE OF SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. HEREINAFTER, YOU, THE COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT, INCLUDING ANY AUTHORIZED AGENT/ EMPLOYEE OF SUCH ENTITY THAT WILL BE AUTHORIZED USERS OF THE COMPANY SERVICE WILL BE REFERRED TO AS “CUSTOMER”. IF YOU DO NOT HAVE SUCH AUTHORITY, ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT, OR DO NOT WISH TO BE BOUND BY THE TERMS CONTAINED IN THIS AGREEMENT, DO NOT USE, OR PERMIT ANYONE ELSE TO USE, THE COMPANY SERVICE. CUSTOMER’S USE OF THE COMPANY SERVICE WILL CONSTITUTE CUSTOMER’S ASSENT TO THIS AGREEMENT (OR RATIFICATION OF PREVIOUS ASSENT).
1. SERVICES PROVIDED; ADDITIONAL TERMS; CHANGES
1.1 Services Provided. Ordering. Company will provide the Customer with the Company’s service(s) (collectively, “Services”) in accordance with the plan ordered by Customer and submitted to SimSIP via email, submitting such service order form (“Service Order”) as SimSIP may require from time to time, signed electronically by Customer. The Company may accept or reject any Service Order in whole or in part. In the event that Company rejects a Service Order, it will so notify Customer by email. If Company accepts a Service Order in part only or with modifications, Company shall provide Customer with a “Revised Service Order” stating the terms acceptable to Company. Customer shall have five (5) business days from receipt of the Revised Service Order to return an electronically-signed copy of the Revised Service Order to Company. If Company rejects a Service Order, or if Customer fails to timely return a signed copy of a Revised Service Order, the affected order will not be effective and neither Party will have any obligation to the other with respect thereto. The Company’s current Service plans are posted at www.simsip.com/pricing (“Service Plans”). The “Company Service Description” is the description of Company’s standard Service then current as of the date of Customer’s ordering of the Company Service. Customer’s service order and any future Service Order shall be automatically incorporated into this Agreement effective as of the date of such Service Order.
1.2 Additional Terms. In order to obtain additional features of the Company Service and/or equipment offerings as Company may make available from time to time, Customer may be required to agree to additional terms (the “Additional Terms”) above those stated herein, which will be automatically incorporated into this Agreement effective as of such agreement and will apply with respect to Customer’s use of such specific additional feature or features elected.
The “Initial Term” of this Agreement will be stated on the Service Order as signed by Customer and accepted by Company, unless earlier terminated as provided for herein or unless otherwise stated in a Service Plan. The Service and Initial Term commences upon Customer’s execution of a Service Order. This Agreement will renew for successive periods of twelve (12) months, or such other period as may be specified in the Service Order (each a “Renewal Term”) unless either Party provides the other with written notice of its intention not to renew no later than sixty (60) days prior to the end of the Initial Term or then-current Renewal Term. The Initial Term and all Renewal Terms are collectively the “Term” of this Agreement.
3. USE OF THE SERVICE
3.1 System Requirements. In order to use the Service, Customer must, at Customer’s own expense, provide and utilize one or more industry standard, Service compatible devices, high speed broadband access, and certain software, and may be required to obtain updates or upgrades to the foregoing from time to time. Customer’s ability to use the Service may be affected by the performance of these items. Customer acknowledges and agrees that system requirements for the Service may change from time to time and that adherence to the system requirements is Customer’s responsibility. Customer is responsible for ensuring that its networks and systems are adequately secured against unauthorized intrusion or attack and for regularly backing up its data and files in accordance with good computing practices.
3.2 Registration. Customer is required to register prior to using the Services. Customer agrees that any registration information shall be accurate, correct, and up to date, and Customer agrees to maintain and promptly update its registration information, including but not limited to the physical location of each user. Customer shall be responsible for maintaining the security of any required user names and passwords (including both for the Customer/an “Account Administrator” and any users), and shall not disclose them to any third party. Customer shall be solely responsible to Company for all activities that occur under Customer’s account or subscription, including any unauthorized use. Customer agrees to notify Company immediately via phone at (320) 403-1990 upon becoming aware of any unauthorized use of Customer’s password, account, or subscription.
3.4 Scope of Use/ Fair Usage. Customer and all users of the Service under Customer’s account shall use the Service only as permitted in this Agreement and the Acceptable User Policy (“AUP”) posted at www.simsip.com/legal, and in accordance with applicable laws and regulations, including but not limited to laws regarding the export of data or software. Customer shall use the Service only for its internal business purposes or incidental personal communications, and shall not resell the Services to any party. Customer’s use of the Service may be subject to certain restrictions and limits, including without limitation as to number of users per subscription and storage, which if applicable will be communicated by Company. If Company determines that Customer has violated or is in violation of this provision, Company will so notify Customer and may, in its sole discretion, suspend or terminate Customer’s Service. In the event of such termination Customer shall remain bound by its payment obligations for the remainder of the then current month (or other specified term) of Customer’s Service Plan. Customer may not transfer its Service subscription to any other person, company or entity.
3.5 Prohibited Uses. Customer agrees not to use the Service in a manner that is actually or potentially libelous, threatening, harmful, harassing, indecent, obscene, in violation of the intellectual property rights of any party, is otherwise unlawful under any applicable law or regulation, or is in violation of the AUP, as the same may be posted from time to time. Customer agrees not to access or attempt to access the Service by any means other than the interface provided by Company, including but not limited to any automated means such as the use of scripts or web crawlers. Customer agrees not to use any trademark, service mark, trade name, or logo of any company or organization in conjunction with the Service in a manner that is likely or intended to cause confusion about the owner or authorized user of such mark, name, or logo.
3.6 Company’s Remedies for Prohibited Use. Company may take any lawful action it deems appropriate with respect to prohibited use of the Service or other use of the Service that it deems to be inappropriate, in violation of this Agreement or the AUP, or potentially disruptive to the Service or Company’s or its providers’ network(s), Company’s rights and interests, or the rights of other customers. Company’s remedies for Customer’s prohibited use of the Service include but are not limited to issuing warnings; terminating Customer’s Service, subscription, accounts, or users; disabling access to or suspending the Service, subscription, or accounts; or increasing the monthly rates charged Customer for the period of Customer’s prohibited use and the remainder of the Agreement’s term. Company may take such action without notice or liability to Customer or any other party, although Company shall have no obligation to take any such action.
3.7 Support. Company will provide Customer with technical consultation support for the term of the Service. Customer may access technical support by calling Company’s customer support at (320) 403-1990 or emailing at firstname.lastname@example.org.
3.8 Customer Proprietary Network Information. In the normal course of providing services to its users and customers, Company collects and maintains certain customer proprietary network information (“CPNI”) typical to the US communications industry. CPNI includes the types of telecommunications and interconnected VoIP services Customer currently purchases or subscribes to, how Customer uses those services (for example, Customer’s calling records), and billing information related to those services. Customer’s Company telephone number, name, and address do not constitute CPNI. Company does not sell, trade, or otherwise share Customer’s CPNI with anyone outside of Company and those parties authorized to represent Company to offer Company’s services or to perform functions on Company’s behalf related to Company’s services, except as the law may require or Customer may authorize. US federal law generally permits Company to use CPNI in its provision of the telecommunications and interconnected VoIP services Customer purchases or subscribes to, including billing and collections for those services. Company may also use or disclose Customer CPNI for legal or regulatory reasons such as to respond to a court order, to investigate fraud, to protect Company’s rights or property, to protect against the unlawful use of Company services, or to protect other users. Customer may elect to prohibit Company’s use of Customer’s CPNI to market services other than services of the same type that Customer already purchases from Company by providing Company with Customer’s “opt-out” notice within thirty (30) calendar days of Customer’s Service commencement via email at email@example.com. If Customer fails to do so within such timeframe, Customer will be deemed to have given Company consent to use Customer’s CPNI to market services other than services of the same type that Customer already purchases from Company. Restricting Company’s use of Customer CPNI will not affect Company’s provision of any service, nor will it necessarily eliminate all types of Company marketing.
4. CUSTOMER’S CONTENT
4.1 Customer is solely responsible for the content of all information and communications, whether visual, written, audible, or of other nature, sent, displayed, uploaded, posted, published, or submitted by Customer while utilizing the Service (“Customer’s Content”) and for the consequences of doing so, including any loss or damage to Company or any third parties. Company has no responsibility to Customer or any third party for Customer’s Content.
4.2 Company reserves the right to, but shall have no obligation to, pre-screen, refuse, flag, filter, or remove any of Customer’s Content from the Service at Company’s discretion without notice or liability to Customer or any other party.
4.3 Customer shall retain copyright and any other intellectual property rights Customer holds in Customer’s Content. Customer shall remain solely responsible for protecting and enforcing such rights where applicable.
4.4 Customer hereby grants to Company a non-exclusive, world-wide, royalty free, sub-licensable, transferable, perpetual, irrevocable license to use, modify, adapt, translate, publish, publicly perform, publicly display, reproduce, prepare derivative works of, and distribute Customer’s Content solely for the purpose of providing and distributing the transmission of such Customer Content, as is necessary to the successful provision of the Service to Customer. Customer represents and warrants that it has all necessary rights, licenses, consents, and permissions to grant such license and permit such use.
4.5 Company may endeavor to store Customer’s voicemail, system configuration, sent or received call logs, and/ or instant messages as part of the Service, however Company is not obligated to do so and Company has no responsibility or liability for the deletion or failure to store any of the foregoing. Without limiting the foregoing, Company will not be obligated to provide any storage of the foregoing or similar information unless expressly agreed by Company in writing, at rates agreed by Company.
5. OTHER USERS’ CONTENT
5.1 Company does not control and shall have no liability or responsibility for the 1) conduct or 2) content of any information and communications, whether visual, written, audible, or of other nature, sent, displayed, uploaded, posted, published, or submitted by other users via the Service, including but by no means limited to advertisements or sponsored content (item (2) collectively referred to as “Other Users’ Content”).
5.2 Other Users’ Content may be protected by copyright and other intellectual property rights of such other users or other persons. Customer shall not copy, modify, rent, lease, sell, loan, distribute, or create derivative works based in whole or part upon Other Users’ Content unless specifically agreed to by the owners of such Other Users’ Content in a separate written agreement with Customer.
5.3 It is Company’s policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including in the United States the Digital Millennium Copyright Act) and to terminate the accounts or subscriptions of repeat infringers.
6. CHARGES AND PAYMENT
6.1 Charges. Company will charge Customer’s credit card, or such other payment mechanism as may be approved by Company, for the fees for the Service, including the Service per-user monthly fees and any other fees or charges (“Charges”) associated with Customer’s account. Company reserves the right to require credit approval prior to providing Company Services to Customer. Except as otherwise stated in a Service Plan or agreed by Company in writing, Charges will be billed monthly in advance on or about the first of each calendar month for the subsequent calendar month and Customer shall pay such Charges within thirty (30) days of the date of the applicable invoice; provided that Charges payable in advance for the first month of Service may be prorated on the first invoice generated for Customer. Usage based Charges (if applicable to a Service Plan) or other amounts not known or discernible by Company prior to a particular month will be billed on the first day of a subsequent month, and shall be paid within thirty (30) days of invoice. In the event that Services commence prior to the first day of a month or are terminated on other than the last day of a month, Charges will be prorated for partial month(s). Company may require Customer to retain credit card information on file with Company or to establish such other automatic payment method as Company may require, and Customer hereby authorizes the Company to automatically charge Customer’s credit card or other payment mechanism provided by Customer for all Charges. Customer will pay all bank charges, taxes, duties, levies and other costs and commissions associated with non-credit card methods of payment. Company may suspend performance of the Services for which payment is overdue until the overdue amount is paid in full. Overdue payments will be subject to a late payment fee of the lesser of five percent (5%) , or the maximum rate allowed by applicable law. Customer agrees that minutes used above the allocated amount in the plan stated on the Service Order, may incur overage fees. Overage fees will be posted on www.simsip.com/pricing and may be modified by Company from time to time. Customer will reimburse Company for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments.
6.2 Carry Over. Unused minutes in a service month do not carry over to the subsequent month.
6.3 Suspension for Non-Payment. If Customer fails to pay for a subscription with either a credit card or available account balance within fifteen (15) days of the due date, Company may thereafter, in its sole and absolute discretion, suspend Services to Customer without prior notice. Customer will be able to restore Service if, within thirty (30) days following suspension, Customer pays all amounts due for Service plus a “recovery fee,” the amount of which shall be posted on Company’s website from time to time. If, by the end of such 30-day period, Customer fails to pay all amounts then due plus the recovery fee in full, Company may terminate Service to the Customer upon written notice, and Company may thereafter release Customer’s telephone number(s) for reassignment. Customer will not be able to recover its telephone number(s) thereafter.
6.4 Billing Disputes. Except for those occurrences addressed in Section 7, Customer must dispute any Charges for the Services in writing within thirty (30) days after the date of the occurrence that forms the basis for the dispute; otherwise Customer waives any dispute or further recourse with respect to the applicable charges.
6.5 Taxes. Unless Customer provides Company with a current tax exemption certificate, Customer is solely responsible for paying all legally required taxes, including without limitation any state or local sales, excise, and/or other taxes and fees which may be levied upon the Service, except for any income tax assessed upon Company.
6.6 Regulatory Fees. Company may charge Customer any fees, assessments, surcharges or other amounts which may be assessed on the Company or on or in connection with the Services by any regulatory body or in connection with any regulatory program, including without limitation any applicable federal or state Universal Service Fund contributions. Company may also charge a monthly regulatory recovery fee to offset costs it incurs in complying with obligations imposed by, and inquiries made by, federal, state, and municipal regulatory bodies/governments and related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. If assessed by Company, the regulatory recovery fee will apply to every directly dialable telephone number (in certain cases referred to as DID-phone numbers) assigned to Customer, including toll free and virtual numbers.
7. SERVICE LEVELS AND SERVICE AVAILABILITY
7.1 Service Level. Company will use commercially reasonable efforts to ensure that the Service meets a Service Level Availability (SLA) of 99% uptime as stated in section 7.2, unless such failure is caused by events beyond Company’s control, such as those enumerated in section 7.3. Company makes no representation or warranty that the Service will be available at all times and temporary disruptions in Service shall not constitute a breach of this Agreement. EXCEPT AS EXPESSLY STATED IN THIS AGREEMENT, THE SERVICE IS PROVIDED ON A “BEST EFFORTS” BASIS, “AS IS,” AND “WITH ALL FAULTS.” NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE RELIEF SET FORTH IN SECTION 7.2 SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE FAILURE OR NON-PERFORMANCE OF THE SERVICE.
7.2 Service Availability and Credits. The Company SLA stated in terms of Service Availability shall be deemed to be in an outage condition if Customer is unable to receive and initiate VoIP communications traffic 99% of the time measured cumulatively on a calendar month basis (“Outage”). Customer is entitled to credit equal to the pro rata amount of Customer’s monthly fee per hour of any Outage (“Outage Credit”) in the event of an SLA Outage condition, not to exceed Customer’s monthly recurring charges for the month in which the SLA Outage occurs. An Outage shall be deemed to commence upon Company’s verification of the trouble as stated in the trouble ticket submitted by Customer; this verification will be conducted by Company’s network operator. An Outage shall be deemed to terminate upon the closing of the same trouble ticket (or the termination of the downtime, if sooner), less any time Company is awaiting additional information or premise testing from Customer. The duration of the Outage period and eligibility for Outage Credits will be determined at the sole discretion of Company, based upon Company’s internal records. Customer shall have the right to request Outage Credit(s) for a period of thirty (30) days after the date of the reported occurrence. Customer shall have the right to contest any calculations of credit(s) for a period of thirty (30) days after the application of such credit(s) to Customer’s account. The Outage Credits shall be Company’s sole liability and Customer’s sole remedy in the event of any Outage period or interruption of Service.
7.3 No Outage Credits. There shall be no Outage Credits for Outages:
(i) Caused directly or indirectly by the acts or omissions of Customer;
(ii) Caused by the failure of equipment or systems provided by Customer or any third party (not under the direction or control of Company);
(iii) Caused by a Force Majeure event as defined in Section 22.3;
(iv) Occurring with respect to a request or an order from Customer for a change in the Service; or
(v) Occurring while Customer is in breach of the Agreement.
7.4 MAINTENANCE AND MODIFICATIONS TO SERVICE. Company may at any time and without liability modify, expand, improve, maintain, or repair the Service or Company facilities even if such activity might result in temporary suspension(s) of the operation of the Service. Company will use commercially reasonable efforts to minimize any disruption to the Service to Customer and shall use its best efforts to give Customer commercially reasonable notice of a maintenance period prior to the disruption by telephone (real-time or voicemail), or e-mail. Credits will not be issued with respect to such Service interruptions if Company has used commercially reasonable efforts to so notify Customer in accordance with this paragraph.
8. COMPANY’S IP RIGHTS
8.1 Company’s IP. Company reserves all rights, including, but not limited to, ownership, title, and all other rights and interest in, and to, any computer programs (in object or source code format or any other form), know-how, inventions, processes, databases, documentation, training materials and any other intellectual property and any tangible embodiments of it (collectively, “Intellectual Property”) that Company (i) owned prior to providing the Services under the Agreement, (ii) any Intellectual Property that Company develops, creates, or otherwise acquires independently of this Agreement, and (iii) any derivative works or Intellectual Property that Company develops, creates, or otherwise acquires while performing the Services under the Agreement.
8.2 Company and/or its licensors own all right, title, and interest in and to the Service, associated software, and the content of all information and communications, whether visual, written, audible, or of another nature presented by or on behalf of Company as part of the Service (“Company’s Content”). Customer shall not copy, modify, rent, lease, sell, loan, distribute, or create derivative works based in whole or part upon Company’s Content.
8.3 Nothing in this Agreement grants Customer any right to use any of Company’s trade names, trademarks, service marks, logos, domain names, trade dress, or other distinctive brand features.
8.4 Customer shall not remove, obscure, or alter any proprietary rights notices, such as copyright or trademark notices, attached to or contained within Company’s Content, the Service, or associated software or servers.
9. SOFTWARE LICENSE TERMS
The software and documentation provided or made accessible under this Agreement will be licensed to Customer by Company in accordance with and subject to the terms and conditions set forth in the Company’s or its licensors end user licenses, as the same may be posted on Company’s website or as otherwise provided to Customer from time to time (“License Terms”). The scope of the license granted shall be for the sole purpose of utilizing the Service for the specified number of users, in accordance with the terms of this Agreement, and for the duration of Customer’s subscription (until the effective date of termination of the Service).
10. SOFTWARE UPDATES
The Company software may automatically (push or pull – download) and install updates from Company and/ or affiliated equipment manufacturers from time to time. Updates may take the form of bug fixes, new or enhanced functionality, new software modules, and updated or new versions of the software, and are intended to improve or enhance the Service. Customer agrees to allow such updates to be promptly downloaded and installed as part of its utilization of the Service.
Company’s E911 Addendum, available at www.simsip.com/legal is a material part of this Agreement. Customer represents and warrants that it has read and understood the E911 Addendum, including all descriptions of the limitations and restrictions on 911/E911 services using Company’s nomadic VoIP Service or any other VoIP Service that Company may offer from time to time, and that it agrees to the same.
12. DID NUMBERS
Company will assign to Customer one or more DID/telephone numbers as provided for in Customer’s Service Plan. Customer is responsible for choosing the Service Plan that provides sufficient DIDs for its users, including without limitation in order to provide call back number and location information for 911 calls. Company reserves the right to change, cancel, withdraw, or move such numbers at its sole discretion immediately upon notice. Customer will surrender all rights to the DID/ telephone numbers and fax numbers upon termination of Customer’s Service if they have not been ported out in accordance with Section 13.2 below prior to such termination, and the numbers assigned to Customer may be reassigned upon termination of Customer’s Service. Company will not be liable for any direct or indirect damages or incidental costs arising out of such reassignment.
13. LOCAL NUMBER PORTABILITY
13.1 Porting In. Customer may elect to port an existing DID/ telephone number to Company (“Port-In”) for use with the Service. In the event Customer elects to Port-In a number, Company may, in its sole discretion, delay the effectiveness of Customer’s Service Order until the Port-In is complete or assign a temporary number from the DID/ telephone numbers then available to Company, which will be used until the Port-In is complete. Company will support all valid requests and will cooperate with Customer to perform any Port-In in accordance with Customer’s reasonable directions and Company’s operating procedures. Neither Company nor its providers are responsible for any delay, rejection, or false processing of Port-In requests to the extent such delay, rejection, or false processing is attributable to Customer, Customer’s prior provider, or any third parties.
13.2 Porting Out. Customer or a third-party provider acting as agent on behalf of Customer (“Requesting Party”) may request that Company port a number assigned to Customer by Company to a third-party provider (“Port-Out”). Company will support all such requests and will promptly cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party’s reasonable directions and Company’s standard operating procedures. In the event of any Port-Out, Customer agrees that until such time as the Port-Out is complete and Customer terminates the Service for such DID/ telephone number, Customer shall remain bound by the terms of this Agreement related to that DID/ telephone number. Once the Port-Out is complete, Customer must terminate the Services associated with such ported DID/telephone number in order to stop incurring charges for such DID/ telephone number. Customer recognizes and agrees that in the event of a Port-Out Customer shall remain responsible for paying the required monthly service fees in accordance with Section 20.1.
14. 711 DIALING
The Service, when used in the US, allows dialing 711 to reach Telecommunications Relay Services (TRS). In the event the user’s registered location is not the same as the user’s geographic location, 711 calls may not be routed to the correct TRS center for the user’s location.
15. SERVICE EXCLUSIONS
The Service does not include directory listings and operator and directory assistance and does not support 976 or 900 calls. The Service may not support 311, 411, 511, or other X11 calling (other than 911 and 711 as detailed in this Agreement) in all or certain service areas.
16. EXCLUSION AND DISCLAIMER OF WARRANTIES
16.1 COMPANY PROVIDES THE SERVICE, INCLUDING WITHOUT LIMITATION THE SOFTWARE, WEBSITES, SERVERS, CONTENT, SUBSCRIPTIONS, AND ACCOUNTS, ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER’S USE OF THE SERVICE IS AT CUSTOMER’S OWN RISK. NEITHER COMPANY NOR ITS LICENSORS OR SUPPLIERS MAKES ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH REGARD TO THE SERVICES OR OTHERWISE RELATED TO THE AGREEMENT. COMPANY DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SERVICES OR THAT THE SERVICES WILL PREVENT TOLL FRAUD. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
16.2 WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER COMPANY, ITS LICENSORS, NOR SUPPLIERS REPRESENT OR WARRANT THAT (I) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR PROVIDE ANY SPECIFIC RESULTS, (II) CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR VIRUS OR ERROR FREE, (III) INFORMATION OR CONTENT PROVIDED TO CUSTOMER THROUGH THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (IV) DEFECTS IN THE SERVICE WILL BE CORRECTED, OR (IV) THE SERVICE WILL HAVE ANY PARTICULAR UP-TIME, QUALITY OF SERVICE, OR QUALITY OF VOICE OR FAX COMMUNICATIONS.
16.3 WITHOUT LIMITING THE GENERALITY OF SECTION 16.1 ABOVE, NEITHER COMPANY, ITS LICENSORS, NOR SUPPLIERS SHALL HAVE ANY RESPONSIBILITY TO CUSTOMER FOR DAMAGE RESULTING FROM THE USE OF THE SERVICE, INCLUDING BUT NOT LIMITED TO DAMAGE TO ANY DEVICE OR LOSS OF DATA RESULTING FROM THE DOWNLOADING, OTHERWISE ACCESSING, OR USING ANY CONTENT, MATERIAL, OR DATA THROUGH THE SERVICE. DOWNLOADING, OTHERWISE ACCESSING, AND USING SUCH CONTENT, MATERIAL, OR DATA IS AT CUSTOMER’S OWN RISK.
16.4 COMPANY DOES NOT HAVE ANY RESPONSIBILITY FOR RETAINING ANY USER INFORMATION OR CONTENT OR COMMUNICATIONS BETWEEN USERS.
17. CONFIDENTIAL INFORMATION
Confidential Information shall be interpreted to mean that all Company business and/or technical information, pricing, discounts and other information or data, whether in tangible or other form if marked or otherwise expressly identified in writing as confidential shall be considered privileged and not for release to others. Information communicated verbally will qualify as Confidential Information if designated as confidential or proprietary at the time of disclosure and summarized in writing within thirty (30) days after disclosure. Confidential Information excludes information that: (i) is publicly available other than by an act or omission of Customer; (ii) subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information without restriction on its dissemination or disclosure; (iii) was known by Customer prior to its receipt as “Confidential Information” and was not received from a third party in breach of that third party’s confidentiality obligations; (iv) was independently developed by Customer without use of Company’s Confidential Information; or (v) is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, provided Customer makes prompt written notification to Company of the pending disclosure so that Company may attempt to obtain a protective order. In the event of a potential disclosure in the case of subsection (v) above, Customer will provide reasonable assistance to Company should Company attempt to obtain a protective order. Customer will protect such Confidential Information received from Company with no less care than the care it uses to protect its own Confidential Information, but in no event, with no less than a reasonable degree of care. Customer will not use or disclose Company’s Confidential Information except as permitted in this Section or for the express purpose of performing obligations under the Agreement. Customer’s confidentiality obligations will survive the termination of the Agreement. Upon termination of the Agreement, Customer will cease all use of Company’s Confidential Information and will promptly and in a manner of transmittal reasonably expected to protect the confidentiality of such information, return or, at Company’s request, and in a manner of destruction reasonably expected to protect the confidentiality of such information, destroy all Confidential Information, including all copies, in whatever form in Customer’s possession or under its control, including such Confidential Information stored on any electronic medium or device of any sort. Upon request, Customer will certify in writing its compliance with this Section.
18. LIMITATION OF LIABILITY
IN NO EVENT WILL COMPANY OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, TOLL FRAUD, COST OF COVER, OR SUBSTITUTE GOODS OR PERFORMANCE. COMPANY’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF ALL COMPANY CHARGES MADE TO CUSTOMER FOR THE COMPANY SERVICE PAID OR PAYABLE UNDER THE AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY IN THIS SECTION ALSO WILL APPLY TO ANY LIABILITY OF COMPANY’S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONSULTANTS AND SUPPLIERS.
19.1 Customer agrees to indemnify, defend, and hold harmless Company, its affiliates, officers, directors, employees, consultants, agents, licensors, suppliers, and resellers from any and all third party claims, liability, damages, losses, expenses, and/ or costs (including but not limited to attorney’s fees and cost of suit) arising from or related to (i) Customer’s use of the Service, (ii) violation of this Agreement (including but not limited to fraudulent or illegal use of the Service), (iii) any negligent acts or omissions or willful misconduct of Customer, or (iv) infringement or violation of any intellectual property or other right of any person or entity in connection with this Agreement.
20.1 Termination for Cause. Company may terminate this Agreement and the Service associated herewith without notice and immediately upon Customer’s failure to comply with any provision of this Agreement. Upon such termination, Customer will remain responsible for payment of the monthly charges for the month in which termination occurs. Company will not prorate the charges under Customer’s Service Plan due to termination that is effective on other than the last day of the month.
20.2 Effect of Termination/ Expiration of Subscription. In the event of termination of this Agreement for cause, for any reason, or upon Customer providing the required notice of termination of Customer’s Company subscription, Customer shall immediately cease use of the Service and permanently destroy all copies of the software portion thereof within Customer’s possession or control. Such software must be end-user accessible and suited for such destruction without damaging any hardware associated therewith. All software licenses granted in conjunction with, and all subscriptions to the Service shall terminate immediately upon the termination of this Agreement. Upon termination, Company may deactivate or delete Customer’s account and all related information and files therein and/or bar any further access thereto, and Customer shall have no further access to any Customer-assigned DID/ telephone number (unless Port-Out of such phone number was completed prior to termination of this Agreement). All provisions concerning confidentiality, license grant and restrictions, IP ownership, warranty disclaimers, limitation of liability, and indemnity (as well as any other terms which, by their nature, are intended to survive termination) of this Agreement will survive the expiration of Customer’s Company subscription and any termination of this Agreement.
21. GOVERNING LAW AND DISPUTE RESOLUTION
21.1 Governing Law. The Agreement and any claims, disputes, or controversies arising out of or relating to the Agreement (“Disputes”) will be governed by the laws of the State of Minnesota applicable to contracts entered into and performed in Minnesota without regard to its choice of law principles, excluding choice of law principles and the United Nations Convention on Contracts for the International Sale of Goods.
21.2 Arbitration. Subject to Section 21.3, all Disputes, including without limitation those regarding the formation, interpretation, breach or termination hereof, or any issue regarding whether a Dispute is subject to arbitration hereunder, that cannot be settled by good faith negotiation between the parties within a reasonable period of time, will be conclusively determined by a final and binding arbitration proceeding to take place in Willmar, Minnesota. Such proceeding will be conducted in English and administered by JAMS pursuant to the JAMS Comprehensive Arbitration Rules and Procedures then in effect, or in the event one of the parties is located outside of the United States, pursuant to the JAMS International Arbitration Rules then in effect, before a panel of one arbitrator chosen in accordance with such rules. The arbitrator will not award punitive or exemplary damages, and will not have the authority to limit, expand or otherwise modify the terms of the Agreement. The ruling by the arbitrator may be entered in any court having jurisdiction over the parties or any of their assets. The parties will evenly split the cost of the arbitrator’s fees, but each party will bear their own attorneys’ fees and other costs associated with the arbitration. The parties agree that this arbitration provision may be enforced by injunction or other equitable order, and no bond or security of any kind will be required with respect to any such injunction or order. The parties, their representatives, other participants and the arbitrator will hold the existence, content and result of arbitration in confidence.
21.3 Injunctive Relief. Nothing in this Section will be construed to preclude either party from seeking provisional remedies, including but not limited to temporary restraining orders and preliminary injunctions, from any court of competent jurisdiction in order to protect its rights pending arbitration.
21.4 Time Limit. Actions on Disputes between the parties must be brought in accordance with this Section within one (1) year after the cause of action arises.
22.1 Compliance. The parties will observe all applicable laws and regulations, including export and re-export laws and regulations, when using the Service.
22.2 Assignment & Subcontractors. Company may assign the Agreement to any of its affiliated entities or to any entity to which Company may sell, transfer, convey, assign or lease all or substantially all of the assets or properties used in connection with its performance under the Agreement. Any other assignment of the Agreement or any rights or obligations under the Agreement without the express written consent of the other party will be invalid. Company may partner with others or subcontract any or all of its obligations under the Agreement, but will retain its responsibility to Customer for the timely performance of the work necessary to the provision of Service properly paid for by Customer.
22.3 Force Majeure. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including without limitation, fire, flood, Act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, and inability to secure materials, systems, subsystems, components, underlying services or transportation facilities (“Force Majeure”).
22.4 Notices. Any notice required or permitted under this Agreement shall be deemed properly made when delivered by email, messenger, overnight courier, or mailed via Certified or Registered Mail (Return Receipt Requested) if to Customer: to the information Company has on file; and if to Company: to SimSIP, LLC, 307 5th St SW, Ste 2, Willmar MN 56201, Attn: Allen Hillstrom. Notices will be considered effective when sent or posted.
22.5 Entire Agreement. The Agreement, including any Attachments, constitute the entire understanding of the parties with respect to the subject matter of the Agreement and will supersede all previous and contemporaneous communications, representations or understandings, oral and/or written, between the parties relating to that subject matter and will not be contradicted or supplemented by any prior course of dealing between the parties. If any provision of the Agreement is determined to be unenforceable or invalid by court decision, the Agreement will not be rendered unenforceable or invalid as a whole, and the original unenforceable provision will be changed only minimally as required for it to be enforceable and interpreted so as to best accomplish the objectives of the original provision within the limits of applicable law. The failure of either party to assert any of its rights under the Agreement, including, but not limited to, the right to terminate the Agreement in the event of breach or default by the other party, will not be deemed to constitute a continuing or permanent waiver by that party of its right to enforce each and every provision of the Agreement in accordance with their terms.
911/e911 Addendum - Service Limitations and Disclosure Notice
This “Notice” is a material part of the Terms of Service and the customer’s (“Customer,” “You/Your”) agreement for SimSIP, LLC’s (“SimSIP,” “We/us/our”) voice services. The Customer represents, warrants and agrees that it has read, understood and agrees to these limitations, restrictions and terms applicable to SimSIP’s VoIP services (the “Services”). Capitalized terms not defined in this Notice will have the meanings attributed to them in the Terms of Service.
1.0 As more fully detailed in this Notice, SimSIP Services’ 911 capabilities are subject to the following limitations and terms of service.
- YOUR 911 SERVICE MAY NOT WORK IF THERE IS A POWER OUTAGE.
- YOUR 911 SERVICE MAY NOT WORK IF YOUR BROADBAND CONNECTION IS DISRUPTED OR CONGESTED FOR ANY REASON, OR IF YOUR SERVICE IS TERMINATED OR SUSPENDED FOR ANY REASON INCLUDING BUT NOT LIMITED TO NON -PAYMENT.
- YOUR 911 SERVICE MAY NOT BE OPERATIVE UNTIL YOU INITIATE BILLING SERVICE WITH SIMSIP, AFTER ALL PORTS ARE COMPLETED OR NEW NUMBERS ARE ACTIVATED, OR IF YOU MOVE YOUR SERVICE ADDRESS WITHOUT NOTIFYING SIMSIP, LLC.
- YOUR 911 SERVICE WILL NOT WORK IF YOU MOVE YOUR PHONE TO A NEW LOCATION WITHOUT UPDATING YOUR ADDRESS IN THE SYSTEM
- YOUR 911 SERVICE MAY NOT WORK IF YOU USE SIMSIP FOR REMOTE USE OR WITH REMOTE APPS.
- YOUR 911 SERVICE MAY NOT WORK IF THE TELEPHONE NUMBER PROGRAMMED ON THE IP PHONE IS FROM A DIFFERENT GEOGRAPHIC RATE CENTER THAN WHERE THE IP PHONE IS PHYSICALLY LOCATED.
- YOUR 911 SERVICE MAY NOT WORK IF YOU INCORRECTLY ENTERED THE USER LOCATION IN YOUR ACCOUNT.
- YOUR E911 SERVICE MAY NOT WORK IF THE TELEPHONE NUMBER PROGRAMMED ON THE IP PHONE BEGINS WITH A TOLL FREE PREFIX (800, 811, 822, 833, 844, 855, 866, 877, 880, 881, 882, 888, 889)
2.0 EMERGENCY SERVICES – E911 CALLING
2.1 Non-Availability of Traditional 911 or E911 Calling Service
SimSIP “911/E911 Service” is a mandatory component of all SimSIP voice Services. SimSIP 911/E911 Service enables Customers to communicate with emergency services by dialing 911. By signing an order form for SimSIP Services the Customer acknowledges and agrees however that SimSIP 911/E911 Service is different in important ways from traditional landline 911 and cellular/wireless 911. SimSIP 911/E911 services may not be sufficient to meet the needs of every Customer. Customer acknowledges that it is Customer’s responsibility to determine the technology or combination of technologies best suited to meet Customer’s emergency calling needs and to make any arrangements necessary to access such services. Customer therefore acknowledges and agrees that the SimSIP Service does NOT support traditional 911 or E911 access to emergency services. Customer shall inform ALL employees, staff, users, and other third persons who may be present at Customer’s physical location(s) where Customer uses SimSIP Service (collectively, “Users”) of the non-availability of traditional 911 or E911 dialing and access from SimSIP Service and equipment. If Customer activates SimSIP emergency dialing service, Customer shall inform ALL Users.
2.2 Description of Emergency Dialing Capabilities
2.2.1 Activation Required
(a) SimSIP offers emergency dialing service in the United States (but may not offer such service in all areas of the United States) that is different in a number of important ways from traditional 911 service. While SimSIP’s voice products are configured to permit 911 services, 911 emergency dialing is NOT automatic. SimSIP will enable direct 911 dialing and other features required by law for the systems it installs and complete the set up for such functionality at the Customer’s main number(s) at the time of initial installation. Thereafter, Customer must affirmatively and successfully activate the 911 emergency dialing features on each User device by following the instructions provided by SimSIP, and Customer must update (or ensure that the User updates) the location of each device in accordance with the provisions of this Notice. Customer is solely responsible for determining the number of User devices and/or lines to be used in connection with its SimSIP Services, and following SimSIP’s initial installation and set-up as described herein, for proper activation, use and updating of the same. When Customer dials 911, the 911 call is routed from SimSIP’s network to the Public Safety Answering Point (PSAP) or local emergency service personnel designated for the physical address Customer provided SimSIP at the time of activation of Service and/or as updated by Customer by contacting SimSIP Support. Customer acknowledges and agrees that 911 calls made via SimSIP Service may be routed to the general telephone number for the PSAP or local emergency service provider, and may not be routed to the 911 dispatcher(s) who is specifically designated to receive incoming 911 calls using traditional 911 dialing.
(b) SimSIP relies on third parties for the forwarding of information underlying the routing of 911 calls and, accordingly, SimSIP and SimSIP’s third party service provider(s) disclaim any and all liability or responsibility in the event any such information or routing is incorrect. As described herein, this emergency dialing on SimSIP Service is NOT the same as traditional 911 or E911 calling, and does not necessarily include all of the capabilities of traditional 911 dialing.
(c) Neither SimSIP nor SimSIP’s officers, directors, employees, agents, suppliers, contractors, or vendors shall be held liable for any claim, damage, or loss, and Customer hereby waives any and all such claims, causes of action, liability, and damages arising from or relating to emergency dialing unless such claim, damage, cause of action, or loss directly results from SimSIP’s gross negligence or intentional misconduct. Customer shall indemnify and hold harmless SimSIP and SimSIP’s officers, directors, employees, agents, suppliers, contractors, or vendors from any claim, cause of action, liability, or loss arising out of or related to misrouting of or inability to make emergency calls, including, without limitation, Customer’s failure to follow correct activation procedures for 911 emergency calling or Customer supplying SimSIP or any of its third party service providers with any inaccurate, outdated, or incorrect information in connection therewith.
2.3 Service Outage
2.3.1 Power Failure or Disruption
Customer acknowledges and agrees that emergency dialing will not function in the event of a power failure or disruption. If there is an interruption in the power supply, a power surge, or a power failure, the Service and emergency dialing will not function until power is restored. Customer acknowledges and agrees that a power failure, power surge, or power disruption may require Customer to reset or reconfigure equipment prior to using the Service or being able to make emergency 911 calls.
2.3.2 Service Suspension or Termination by SimSIP or Broadband Service Provider
Customer acknowledges and agrees that a Service outage or suspension (including, without limitation, suspension of Service due to billing issues or delinquent or unpaid invoices) or termination of Service by SimSIP, or by the provider of Customer’s broadband Internet services, will prevent ALL Service, including the ability to make emergency 911 calls.
2.3.3 Other Service Outages
Customer acknowledges and agrees that if there is a Service outage for ANY reason, such outage will prevent ALL Service, including the ability to make emergency 911 calls. Such outage may occur for a variety of reasons, including, without limitation, those reasons described elsewhere in this 911/E911 Disclosure Notice or the SimSIP Terms of Service posted at www.simsip.com/legal.
2.4 Registered Location
2.4.1 Registered Location Required
All Customers ARE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF ALL EQUIPMENT USED WITH THE SERVICE WITH SIMSIP AT THE TIME OF SERVICE ACTIVATION AND AT THE TIME THAT ANY DEVICE USING THE SERVICE IS RELOCATED. SimSIP will complete the initial 911 registration for all main numbers, users, lines and devices. SimSIP will obtain the correct information from the Customer and will complete the initial registration. It is the Customers responsibility to verify and validate the information after registration. Assistance may be obtained through SimSIP’s support web portal or by calling SimSIP customer service at (320) 403-1990; however, following the initial system installation described above, Customer is solely responsible for the inputting of the required location information for each number, line or device using the SimSIP Service. Such physical location shall include, at a minimum, the street address, floor and unit/suite/apartment/room number at which such equipment is used. Customer agrees to ensure that the physical location of its equipment is correct and to update immediately the location whenever the physical location of any device using the Service changes. Customer acknowledges and agrees that updates may incur a fee, and Customer agrees to pay all such fees as invoiced by SimSIP. Customer further acknowledges and understands that any location information passed to emergency personnel by SimSIP will be based upon the physical location provided by Customer to SimSIP.
2.4.2 Failure to Designate and Identify the Correct Physical Address When Activating 911
Customer acknowledges and agrees that Customer’s failure to provide and keep current Customer’s correct physical location(s) will result in any 911 call or other emergency communication made by Customer and/or from Customer’s actual location (if different from the location previously supplied to SimSIP by Customer) being routed to the incorrect local emergency service provider. Customer’s physical location(s) may NOT be a post office box, mail drop, or similar address. Neither SimSIP nor Customer shall assume under any circumstances that Customer’s physical office location for emergency 911 calling purposes is the same as Customer’s billing address, and Customer must register such physical location even if the addresses are the same.
2.4.3 Re-Activation Required in Event of Change, Add or Port New Numbers
Customer acknowledges and agrees that emergency 911 calls do not function with respect to telephone numbers that Customer changes, adds, and/or ports to Customer’s SimSIP account unless and until Customer successfully activates the 911 calling feature for each such changed, newly added, and newly ported telephone number. Even if Customer successfully activates 911 emergency dialing with other telephone numbers through which Customer receives Service from SimSIP, Customer acknowledges and agrees that Customer MUST separately activate emergency 911 calling for any and all changed or newly added or ported telephone number. If Customer does not purchase E911 services for additional DIDs, emergency dialing may not function, or may not function fully, from those additional DIDs. If 911 is called from these additional DIDs, calls may be routed to the National Emergency Services Call Center, and each call so routed will incur additional fees for each call. The rates for calls routed to the National Emergency Services Call Center may be listed at www.simsip.com/pricing from time to time.
2.4.4 Re-Activation Required in Event of Location Change
Customer acknowledges and agrees that emergency 911 calling will not function properly or at all if Customer moves, relocates, or otherwise changes Customer’s physical office location(s) or the location of any device used with the Service to any different street address, unless and until Customer successfully activates the emergency 911 calling capability at each such physical location. Even if Customer successfully activates emergency dialing from Customer’s previous physical location(s), Customer acknowledges and agrees Customer MUST re-activate emergency dialing for any new physical location of any device, and Customer shall pay all fees associated therewith upon invoice by SimSIP. Customer acknowledges and agrees that Customer’s failure to provide SimSIP with Customer’s updated and correct physical location(s) will result in any emergency 911 calls being routed to the incorrect local emergency service provider. Neither SimSIP nor Customer shall assume under any circumstances that Customer’s physical office location for emergency 911 calling purposes is the same as Customer’s billing address for receipt of invoices. Customer acknowledges and agrees that the effectiveness of location registrations or updates may be delayed for reasons outside of SimSIP’s control.
2.5 USE OF SIMSIP’S SERVICE OUTSIDE THE UNITED STATES.
CUSTOMER ACKNOWLEDGES THAT ANY CALLER USING THE SERVICE FROM ANY LOCATION OUTSIDE THE UNITED STATES WILL BE UNABLE TO USE OR ACCESS E911 SERVICE OR PLACE ANY E911 EMERGENCY CALLS.
2.6 Automated Number Identification
Customer acknowledges and agrees that it may not be possible for the Public Safety Answering Point (PSAP) and the local emergency personnel to identify Customer’s telephone number when Customer dials 911 via SimSIP E911 Service. Customer acknowledges and agrees that PSAP and emergency personnel may be unable to identify Customer’s telephone number in order to call Customer back in the event that an emergency call is unable to be completed, is dropped, or disconnected, or if a caller is unable to speak to provide the telephone number from which the caller is calling, and/or if the Service is not operational for any reason including, without limitation, the reasons and situations listed elsewhere in this E911 Disclosure Notice and the SimSIP Terms of Service. Customer further acknowledges that the caller’s device must have been assigned a Direct Inward Dialing (DID) number in order for number information to be transmitted to the PSAP, and Customer is solely responsible for having ordered and activated sufficient DID numbers for its end users.
2.7 Automated Location Identification
Customer acknowledges and agrees that it may not be possible to transmit identification of the Customer physical office location address to the PSAP and local emergency personnel for Customer’s area when Customer or any caller at Customer’s premises dials 911. Customer acknowledges and agrees that a caller must state the nature of the emergency promptly and clearly, including the caller’s specific physical location, as PSAP and emergency personnel may NOT have this information. Customer acknowledges and agrees that PSAP and emergency personnel may not be able to find a caller’s location if the call is unable to be completed, is dropped, or disconnected, or if the caller is unable to speak to provide the location from which the caller is calling and/or if the Service is not operational for any reason including, without limitation, those reasons and situations listed elsewhere in this E911 Disclosure Notice and the SimSIP Terms of Service.
2.8 Multiline Systems
Customers whose Services involve multiple phone lines, seats, DIDs, trunks, channels or similar end user access points will designate a location (including email and/or mobile phone number) to receive notification whenever a 911 call is placed using Customer’s Services, and at which an employee, contractor or other person(s) designated by Customer is likely to see such notification 24/7/365. Customer will ensure that such information remains up-to-date in its account and applicable system software or hardware, and shall notify SimSIP promptly upon any change in such information.
2.8.2 Multiline System Management
Customer will be responsible for managing and directing the configuration and operation of any multi-line, multi-trunk or multi-channel voice Service ordered by Customer. Without limiting the generality of the foregoing, Customer will be responsible for managing its use of the Services and its operation of all equipment and devices used with the Services in accordance with all applicable laws, including without limitation, Kari’s Law, RAY BAUM’s Act, and the implementing regulations of the Federal Communications Commission, as well as applicable state laws in Customer’s location(s). Customer’s obligations shall include, without limitation, (a) designating one or more administrators who are authorized to order seats, channels, trunks, lines or other modifications to the Service, or to reconfigure hardware used with the Service; (b) determining the number of lines, seats, channels, trunks and or DID numbers required for Customer’s needs, the assignment and re-assignment of lines, seats, channels, trunks and/or DID numbers among its End Users, changes in the number, location or other characteristics of lines, seats, channels or trunks required; and (c) the day-to-day operations of the Service. Customer acknowledges and agrees that a separate DID and E911 location must be purchased and assigned to each device that is capable of or configured to place outbound calls to the public switched telephone network in order for 911 services to function properly for such device.
2.9 Alternative 911 Arrangements
Customer acknowledges and agrees that SimSIP does not offer primary line or lifeline services. SimSIP strongly urges Customer to always maintain means of accessing traditional E911 emergency services from all Customer locations and take appropriate measures and precautions to ensure such emergency services are available to Customer and callers at Customer’s premises. Customer should always open a ticket by emailing firstname.lastname@example.org or calling (320) 403-1990 to maintain updated E911 information with SimSIP.
3.0 Warranty Disclaimer, Limitation of Liability and Indemnification
Except as otherwise expressly stated in this Notice or the Terms of Service, the emergency services are provided on an “as is” basis. SIMSIP EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE EMERGENCY SERVICES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Customer acknowledges and agrees that, to the fullest extent permitted by applicable law, SimSIP shall not be liable for any inability to complete emergency 911 calls from any Customer line or Customer site or to access emergency service personnel, for any reason whatsoever, except to the extent that such failure is caused by SimSIP’s gross negligence or willful misconduct. This disclaimer of liability is in addition to the limitations of liability set forth in the Terms of Service available at www.simsip.com/legal.
CUSTOMER SHALL PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS SIMSIP, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, CONTRACTORS, AND AGENTS AND ANY OTHER SERVICE PROVIDER THAT FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SIMSIP SERVICE, FROM ANY AND ALL CLAIMS, LAWSUITS, LOSSES, DAMAGES, LIABILITY, FINES, PENALTIES, COSTS, AND EXPENSES INCLUDING, WITHOUT LIMITATION, ATTORNEY’S FEES AND COSTS, ARISING FROM, OR RELATED TO, ANY ABSENCE, FAILURE, OR OUTAGE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, EMERGENCY 911 CALLING AND/OR INABILITY OF CUSTOMER OR ANY CUSTOMER EMPLOYEE, THIRD PERSON OR PARTY, OR USER OF SIMSIP’S SERVICE TO BE ABLE TO CALL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL. IN NO EVENT SHALL SIMSIP BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES RELATED TO CUSTOMER’S USE OF OR INABILITY TO USE E911 SERVICES.
Customer agrees and acknowledges that SimSIP has entered into the Terms of Service and/or any other agreement or service order with Customer and is providing its Service in reliance upon the limitations and exclusions of liability and the disclaimers set forth in this E911 Disclosure Notice, including, without limitation, this Section and the SimSIP Terms of Service, and that the same form an essential basis of the agreement between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in the Terms of Service, any Service Order and this E911 Disclosure Notice, including, without limitation, this Section, shall survive and apply even if found to have failed their essential purpose; and Customer hereby waives its right to contest the enforceability of any provision of this E911 Disclosure Notice by reason of such failure.
Acceptable Use Policy
PLEASE REVIEW THIS ACCEPTABLE USE POLICY CAREFULLY
THE TERMS OF THIS ACCEPTABLE USE POLICY (“AUP”) ARE APPLICABLE TO CUSTOMER’S USE OF THE SERVICES PROVIDED BY SIMSIP, LLC (“SIMSIP”), AND IS A MATERIAL PART OF THE TERMS OF SERVICE. THIS AUP IS FURTHER APPLICABLE TO ALL USERS OF SIMSIP’S WEBSITE, PRODUCTS AND SERVICES (COLLECTIVELY, “SERVICES”).
This AUP describes actions that SimSIP prohibits when any party uses SimSIP’s services (“Services”). This AUP is incorporated by reference and governed by the terms and conditions applicable to Customer’s use of SimSIP’s Services. This AUP is applicable to Customer whether or not Customer has agreed to such terms and conditions, and Customer may not use the Services without agreeing to this AUP. Customer’s use of SimSIP’s Services shall be deemed to be Customer’s acceptance of this AUP. Capitalized terms not otherwise defined herein will have the meanings attributed to them in the Terms of Service, or any other agreement, schedule or service order entered into by the parties.
THIS AUP IS SUBJECT TO CHANGE FROM TIME TO TIME IN SIMSIP’S SOLE DISRECTION WITH SUCH CHANGES BEING EFFECTIVE UPON POSTING AT www.simsip.com/legal (OR SUCH SUCCESSOR SITE AS DESIGNATED BY SIMSIP). ANY USE OF THE SERVICES AFTER SUCH MODIFICATION SHALL CONSTITUTE ACCEPTANCE OF SUCH MODIFICATION. “CUSTOMER” MEANS CUSTOMERS OF SIMSIP AND THEIR CUSTOMERS, EMPLOYEES, CONTRACTORS, INVITEES AND/OR END USERS.
I. Restricted Actions
A. Customer agrees that the Services are provided solely for Customer’s legitimate business communications and information service or incidental personal communications needs. Customer shall not, and shall take commercially reasonable steps to ensure that persons using or accessing the Services under Customer’s account (“End Users”) do not, use any Service for any other purpose.
B. Customer agrees not to do any of the following, or allow others to do any of the following:
(1) use the Service in a manner that is actually or potentially libelous, defamatory, threatening, harmful, harassing, indecent, obscene, in violation of any third-party intellectual property rights or privacy rights of any person, or otherwise unlawful under any applicable law or regulation (including, without limitation, laws and regulations regarding the transmission of data or software);
(2) misrepresent an affiliation with, or otherwise impersonate, any person or organization or otherwise attempt to mislead others as to the identity of the sender or the origin of any communication using the Services;
(3) upload or otherwise transmit files that contain malware (including, but not limited to, viruses, Trojan horses, worms, time bombs, and spyware) or corrupted data;
(4) download a file or software or include in the Service any content, software, files or links that Customer knows, or has reason to believe, cannot be distributed legally over the Service;
(5) post or transmit “spam;” transmit unsolicited messages, calls, advertising, telemarketing, chain letters, bulk email, or texts or engage in other similar activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, but not limited to, the CAN-SPAM Act, the Telephone Consumer Protection Act, Truth in Caller ID Act, and the Do-Not Call Implementation Act, or use the Services in any manner that violates the Mobile Marketing Association guidelines and/or best practices, carrier guidelines, any other industry standard;
(6) use the Service for autodialing or predictive dialing; continuous or extensive call forwarding; constant dialing; iterative dialing; fax broadcast; fax blasting; junk faxing; fax spamming; transmitting broadcasts or recorded material; sending unsolicited messages or advertisements; telemarketing; sending bulk and/ or junk email, voicemail, or faxes; call center operations or other bulk call-in lines;
(7) transmit information that has been obtained through internet harvesting methods or any other unlawful electronic collection of addresses or any other public or private source;
(8) provide and/or transmit information through the Services (whether visual, written or audible) that are not complete, accurate and updated for any opt-outs, as applicable and required by law;
(9) advocate illegal activity or discuss an intent to commit an illegal act;
(10) seek to exploit or harm children by exposing them to inappropriate content, asking for personal information, or otherwise;
(11) access or attempt to access the Service by any means other than an interface provided by SimSIP or bypass or attempt to bypass the measures SimSIP may use to prevent or restrict access to the Service, including but not limited to any automated means such as the use of scripts or web crawlers or use the Services in any other manner that poses a security or service risk to SimSIP or its users;
(12) make any use of the Service for reasons other than Customer’s own legitimate internal business requirements, and make no use of the Service for residential or more than incidental personal uses, including without limitation, gaming, streaming, or any other non-business purposes;
(13) engage in any other conduct that (a) prevents, restricts or inhibits anyone’s use or enjoyment of the Service or which, as determined by SimSIP, may harm SimSIP or users of the Service or expose them to liability, damages or danger; (b) interferes with, disrupts, disables, damages, or overburdens the Service or associated servers, networks, or software, or (c) damages any SimSIP or third party property or information, including, without limitation, SimSIP’s confidential or proprietary information, SimSIP’s or a third party’s intellectual property, and/or content owned or created by any other user of the Services;
(14) reproduce, duplicate, copy, transfer, modify, license, sell, trade, or resell the Service, any deliverables provided by SimSIP related to the Service or any other SimSIP intellectual property, unless SimSIP expressly agrees otherwise in writing;
(15) reverse engineer, disassemble, decompile, or otherwise attempt to derive source code from the Service and/or software (if any);
(16) transfer Customer’s subscription to the Service to any other company or entity without the prior written consent of SimSIP;
(17) use any trademark, service mark, trade name, or logo of any company or organization in conjunction with the Service in a manner that is likely or intended to cause confusion about the owner or authorized user of such mark, name, or logo;
(18) mislead any party as to the origination of any call or other traffic, including without limitation (a) by modifying, altering, or deleting in any manner (i) calling party number information, (ii) originating point codes, or (iii) any other signaling information or call detail in connection with the transport and termination of traffic to the called party; or (b) by re-classifying or re-originating traffic or take any other action to make traffic appear as if it: (i) is anything other than the type of traffic delivered to such party (including but not limited to making TDM originated traffic appear to be IP originated), (ii) originated from a place or on a type of equipment different from the place or type of equipment from where it, in fact, originated;
(19) modify, alter, or delete in any manner calling party number information, originating point codes, or any other signaling information or call detail in connection with the transport and termination of traffic to the called party;
(20) launch or facilitate, whether intentionally or unintentionally, a denial of service attack on any of the Services or any other conduct that adversely impacts the availability, reliability, or stability of the Services;
(21) submit any false or inaccurate data on any order form, contract or online application, including the fraudulent use of credit cards; or
(22) use the Service, or any component of the Services, in any manner not authorized by SimSIP.
C. Improper and/or inappropriate uses of the Services also include, but are not limited to:
- continuous or extensive chat line or conference call participation, use of free conference calling or similar services that SimSIP in its sole discretion deems to participate in traffic stimulation practices or schemes that result in excessive charges;
- 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 for the purpose of generating charges or fees for or with a third party;
- use of Services for streaming, gaming, accessing or transmitting obscene or indecent content, or other purely personal, entertainment purposes; or
- any fraudulent, harassing or otherwise unlawful activities.
II. IN ADDITION, CUSTOMER HAS READ, UNDERSTOOD, AND AGREES TO THE FOLLOWING:
A. CUSTOMER IS RESPONSIBLE FOR ENSURING THAT CUSTOMER NETWORKS AND SYSTEMS ARE ADEQUATELY SECURED AGAINST UNAUTHORIZED INTRUSION OR ATTACK AND REGULARLY BACKING UP CUSTOMER DATA AND FILES IN ACCORDANCE WITH GOOD COMPUTING PRACTICES.
B. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THE SERVICE DESCRIPTION OR APPLICABLE TERMS OF SERVICE: (I) CUSTOMER SHALL INFORM ANY USER USING THE SERVICE OF THE LIMITATIONS ON 911/E911 SERVICES DETAILED IN THE 911/E99 ADDENDUM, AVAILABLE AT www.simsip.com/legal INCLUDING THAT 911/E911 SERVICE MAY FUNCTION DIFFERENTLY OR MAY BE LIMITED OR UNAVAILABLE, AND SIMSIP, ITS AFFILIATES AND SUBCONTRACTORS AND SUPPLIERS ARE NOT LIABLE IN ANY WAY FOR ANY SUCH CALLS.
C. CUSTOMER IS RESPONSIBLE FOR USE OF THE SERVICE BY ALL END USERS, INCLUDING WITHOUT LIMIATION, CUSTOMER’S PERSONNEL, EMPLOYEES, SUBCONTRACTORS, OR ANY OTHER PERSON USING THE SERVICE VIA CUSTOMER’S SUBSCRIPTION TO THE SERVICE, WHETHER OR NOT KNOWN OR APPROVED BY CUSTOMER, AND ANY SUCH USE SHALL BE DEEMED A USE BY CUSTOMER. SIMSIP MAY INVESTIGATE COMPLAINTS OR SUSPECTED VIOLATIONS OF THE AUP AND, IF SIMSIP REASONABLY DETERMINES THERE IS A VIOLATION, SIMSIP MAY, WITHOUT ANY LIABILITY OR PENALTY TO SIMSIP, TAKE ANY ACTION, IN SIMSIP’S SOLE DISCRETION, TO REMEDY THE VIOLATION INCLUDING REMOVING CUSTOMER DATA OR RESTRICTING, SUSPENDING OR TERMINATING CUSTOMER’S ACCESS TO THE SERVICE. WHERE SIMSIP REASONABLY BELIEVES THAT SUCH VIOLATION WOULD EXPOSE SIMSIP TO CIVIL, REGULATORY OR CRIMINAL LIABILITY OR OTHERWISE CREATE A SECURITY RISK, SIMSIP MAY TAKE ACTION IMMEDIATELY WITHOUT PRIOR NOTICE TO CUSTOMER.
D. IF CUSTOMER USES OR ACCESSES THE SERVICE, CUSTOMER ACCEPTS THE RESPONSIBILITY ON BEHALF OF ITSELF AND ITS END USERS USING THE SERVICE TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS, SIMSIP SHALL HAVE NO LIABILITY TO CUSTOMER OR ANY OTHER THIRD PARTY IF CUSTOMER FAILS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
E. VIOLATIONS OF THIS AUP ARE CONSIDERED MATERIAL VIOLATIONS OF CUSTOMER’S AGREEMENT WITH SIMSIP AND OF SIMSIP’S TERMS OF SERVICE. IN THE EVENT OF A VIOLATION OF THIS AUP, SIMSIP MAY SUPSEND SERVICE TO CUSTOMER WITHOUT NOTICE, AND MAY PURSUE ALL OTHER REMEDIES PROVIDED IN SIMSIP’S TERMS OF SERVICE, AS THE SAME MAY BE POSTED FROM TIME TO TIME AT WWW.SIMSIP.CLOUD/LEGAL.
I. COLLECTION OF INFORMATION
We collect information when you visit our websites, use our apps, contact us, and when you subscribe to and use our service (the “Service”).
We collect information you provide directly to us, when, for example, you purchase, use or sign up for one of our products or services, when you request us to contact you, or through other interactions with us. This includes personal information (information either on its own or in conjunction with other data that enables a specific person to be identified, such as your name, email address, phone number, postal address, Social Security number, and date of birth), a username and password, payment information, and communications you send to us. We also collect non-identifying information that by itself cannot be used to identify a specific person.
We also collect information automatically. We collect information when you use our service. This includes information about your use of the Service, calls you make and receive, text messages you send and receive, websites you visit, applications you use, and network and device information, including location, Internet protocol (IP) address and connection speed, telephone number, device and advertising identifiers, browser type, and operating system. Additionally, calls made using our nomadic VoIP Service may be subject to packet capture, under which all or part of the conversation may be accessed by or audible to us. We generally do not access captured packets except as necessary to provide the Service and ensure call quality. However, the ability to capture packets and call content may be made available to law enforcement in accordance with law.
We may collect geolocation data if you use location services. If your device is equipped with GPS or can connect with wireless access points or hot spots, or if your device is also a phone that communicates with cell towers or satellites, then your device is able to use these features to determine its precise geographic location. Your precise geographic location is considered your personal data.
We also collect information when you visit our sites, including through cookies and similar technology. This includes your IP address, telephone number, device and advertising identifiers; browser and platform type, operating system, connection speed and other attributes; pages that you visit before and after visiting our sites; the date and time of your visit; information about the links you click and pages you view within the sites and screen recordings.
We also allow advertising companies to collect information about your activity on our websites, for example through cookies, ad identifiers, pixels, web beacons and social network plugins, to help us provide more relevant advertisements on our website and on others’ sites and apps. The use of information collected about your visits over time and across different websites, apps and devices is known as “interest-based advertising.” Please see Section V below for more information with regard to the use of your information for these purposes.
We collect info when you contact us. When you request support from us, we may also collect information such as login credentials, contact information, or other information you or we believe is helpful to solving the issue. When you contact us or we contact you, we may monitor or record that communication for quality assurance, training and security purposes.
In addition to the other information described herein, please see our 911 Addendum. Our nomadic VoIP Service, when activated by you in accordance with the 911 Addendum, provides location and telephone number information to emergency call takers when you or a user of your services dials 911.
SimSIP does not sell products or services for purchase by children and SimSIP does not knowingly solicit or collect personal data from children under the age of sixteen without obtaining verifiable parental consent.
We collect information about you from others. We may obtain information about you from other sources, including from companies that collect consumer information such as demographic and interest data. In addition, if you access third-party services from our sites, to log into our sites, or to share information about your experience, we may collect information from these third-party services.
II. USE OF INFORMATION
We use the information we collect to deliver Service, to market to you, and for other business purposes, including to:
• Carry out core activities relating to our Services, such as billing and collections, preventing fraud, preventing violations of our acceptable use policy, troubleshooting, quality control and analytics
• Fulfill your requests for products, services, information and customer support;
• Determine products and services that may interest you and market them to you, including on SimSIP sites and apps and on others’ sites, services, apps and devices as described in Section V below;
• Analyze the use of the sites and Service for our purposes, such as product and service enhancements;
• Research and develop new products and services;
• Authenticate you;
• Customize the content you see when you use our sites;
• Secure and improve our network and Services;
• Detect and prevent potentially prohibited, fraudulent or illegal activities and otherwise in accordance with our Terms of Service; and
• For any other purposes disclosed to you at the time we collect your information or with your consent.
III. DISCLOSURE OF INFORMATION
We share information about you with vendors and partners who do work on our behalf and for other business purposes. SimSIP does not sell, rent or lease its customer lists to third parties. We may also share certain information about you with affiliates for marketing.
• Authorized service providers and partners. We share your information with service providers and partners that help us with a variety of things, including development and delivery of our sites, apps and service. This includes services provided by others to help us with analytics, including Google Analytics, which may include storing and accessing cookies and other information on your computer or wireless device.
• Business transfers. We may share your information in connection with a substantial corporate transaction, such as a merger, consolidation, asset sale, or in the unlikely event of bankruptcy.
• Legal purposes. We may disclose information, subject to relevant data protection laws, (1) to respond to subpoenas, court orders, legal process, law enforcement requests, legal claims or government inquiries, including local regulations requiring proof of residence or other documentation, and in emergencies such as those involving the danger of death or serious injury to any person; (2) to advance, protect or defend the rights, interests, property, safety, and security of SimSIP, our affiliates, users, or the public; (3) to identify, protect against, and address unauthorized or unlawful use of our sites, Services or network; and (4) to outside auditors and regulators.
• Collections. We may disclose information to collection agencies to obtain payment for SimSIP-billed products and Services.
• Aggregated and De-identified Information. We may aggregate or otherwise de-identify information and use it for our own purposes or share it with third parties for their own purposes.
• With your consent. We may share information for any other purposes disclosed to you at the time we collect the information or pursuant to your consent.
If you access third-party services, such as Facebook, Google, or Twitter, through our sites, to log in or to share information about your experience with others, these third-party services may be able to collect information about you and they may notify your connections on the third-party services about your use of the site or app, in accordance with their own privacy policies.
SimSIP has technical, organizational and physical safeguards in place to help protect against unauthorized access to, use or disclosure of the information we collect and store. We use reasonable measures to help protect information from loss, theft, misuse and unauthorized access, disclosure, alteration and destruction. You should understand that no security program, data storage system or transmission of data over the Internet or any other public network can be guaranteed to be 100 percent secure, and we cannot guarantee that our safeguards will prevent every unauthorized attempt to access, use or disclose that information. Therefore, you acknowledge the risk that third parties may gain unauthorized access to your information. If you become aware of a security issue, please contact us.
V. COOKIES AND OTHER WEBSITE TOOLS
Depending on the service your use, SimSIP may share certain information, including unique marketing identifiers, email addresses and mobile phone numbers, with social networks and marketing partners for marketing, advertising and analysis purposes, including the delivery of advertising campaigns and preparing and sharing aggregate business and marketing reports, demographic profiling and to deliver targeted advertising about products and services. You may see third-party advertisements on our websites. Some advertisements are chosen by companies that place advertisements on behalf of other advertisers. These companies, often called ad servers, may place and access cookies on your device to collect information about your visit. The information they collect from our sites is in a form that does not identify you personally. This information may be combined with similar data obtained from other websites to help advertisers better reach their targeted audiences. Targeting may be accomplished by tailoring advertising to interests that they infer from your browsing of our sites and your interaction with other websites where these ad servers also are present.
VI. YOUR CHOICES
You have choices about certain ways we use and share information about you.
Marketing. You have choices about receiving marketing from SimSIP. If you would like to be removed from SimSIP’s email marketing list, you can opt-out by following the unsubscribe instructions, usually found at the bottom of the emails.
Website information used for interest-based advertising. You have a choice about whether certain information collected on websites, including SimSIP sites, is used to customize advertisements you see on the internet. Click on the icon in or around an advertisement and follow the instructions for opting out. Similarly, settings on your mobile devices let you limit the collection and use of information from your device for advertising purposes. You can also set up cookie controls through many browser settings. Because each web browser is different, please consult the instructions provided by your web browser (typically in the “help” section). If you choose to refuse, disable, or delete these technologies, some of the functionality of our apps or sites may no longer be available to you.
Do-Not-Track Signals and Similar Mechanisms. Some web browsers transmit “do-not-track” signals to websites. Because of differences in how web browsers incorporate and activate this feature, it is not always clear whether users intend for these signals to be transmitted, or whether they even are aware of them. We currently do not take action in response to these signals.
VII. INTERNATIONAL USERS