TERMS AND CONDITIONS OF SERVICE
These Terms and Conditions (the “Terms”) constitute an agreement between RemiPBX, Inc. (“RemiPBX”), and you as our customer (“Customer”). RemiPBX and Customer understand and agree that this Agreement, the Sales Order, Acceptable Use Policy and other policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to time (collectively, the “Agreement”) govern Customer’s purchase and use of services, equipment and licensing of software and firmware from RemiPBX. Customer and RemiPBX are sometimes collectively referred to herein as the “Parties,” or individually as a “Party”.
Any one of the following actions constitutes Customer’s acceptance and agreement to be bound by these terms and conditions: (1) accepting the terms and conditions electronically during the ordering process and/or upon logging on to use the Services, (2) Customer’s submission of an order, whether through the RemiPBX website (the “Website”), via e-mail or over the phone, (3) Customer’s use of the Services described herein, or (4) Customer’s execution of these Terms on the last page hereof. Through these actions Customer is agreeing to be bound by the terms of this Agreement and all terms and conditions incorporated by reference in this Agreement.
PURSUANT TO FCC REQUIREMENTS, REMIPBX IS REQUIRED TO ADVISE ITS CUSTOMERS OF ANY LIMITATIONS THAT E911 SERVICE MAY HAVE IN COMPARISON TO TRADITIONAL 911 SERVICE, WHICH ARE SET FORTH AT SECTION 11.1 BELOW AND IN 911 SERVICE LIMITATIONS & DISCLOSURE NOTICE, LOCATED ON THE WEBSITE AT: https://remipbx.com/E911-Disclosure.
Customer understands and agrees that it must obtain its own Internet connection in order to use the Services, and that RemiPBX does not control Customer’s Internet access or the quality of its Internet connection or service. REMIPBX IS NOT RESPONSIBLE FOR ANY THIRD-PARTY PRODUCTS OR SERVICES, OR FOR PROBLEMS IN THE SERVICES CAUSED BY CUSTOMER’S INTERNET CONNECTION OR THIRD-PARTY-PROVIDED PRODUCTS OR SERVICES.
1. DEFINITIONS.
1.1 “Customer Equipment” means all equipment provided by Customer or which is specifically identified as Customer Equipment on a Sales Order and is used in connection with the Services. “Customer Equipment” includes equipment sold by RemiPBX to Customer, but does not include any Rented Devices.
1.2 “Device” means a RemiPBX-provided telephone, telephone adapter (“Adapter”), router, or other device or equipment used with the Services.
1.3 “Documentation” means user manuals and other documentation relating to the Services, which are available to Customer by RemiPBX accessible on the Website or in the form of printed media.
1.4 “Rented Device” means any Device leased to Customer by RemiPBX or RemiPBX agents or any other third-party with or without a separate charge or fee in connection with the Services.
1.5 “Services” means the products and services that are being provided to Customer as described in any quote, order form or Sales Order, including, but not limited to, RemiPBX’s services, collaboration services, and any associated software, hardware or web-based platform. “Services” shall also include any additional services provided to Customer as described in any addendum or amendment.
1.6 “Software” means any proprietary software owned by, licensed by, or which RemiPBX has a right to sub-license in connection with this Agreement, which software is either provided to Customer under this Agreement or is used in or used to provide the Services.
2. REVISIONS TO TERMS AND PRICING.
With the exception of those rates specifically identified on a Sales Order as being fixed for the duration of the Initial Term, Customer understands and agrees that RemiPBX can prospectively change the rates and charges for its Services, and you agree to pay the then-applicable rates and charges for the Services you use in accordance with this Agreement. RemiPBX will publish applicable rates and rate changes (whether via email to your Company contact email address, or through other commercially reasonable means). RemiPBX will use commercially reasonable means to provide you with prior notice of any rate changes, but Customer acknowledges and agrees that it is responsible to review the then-applicable rates before using any RemIPBX Service, and to pay all then-applicable fees and charges based on your usage of the Services.
RemiPBX may change any of the other non-price terms of this Agreement, but only on a prospective basis after providing notice to you. RemiPBX will provide Customer thirty days’ written notice of any such changes that would have a materially adverse effect on you. Changes will become effective on the next business day following the 30-day notice period and, unless Customer has objected to any changes by delivering written notice to RemiPBX, Customer agrees to be bound by any changes after such 30-day notice period. RemiPBX reserves the right to make any and all changes to its Services and how it provisions them, without notice to Customer, in any way that does not have a material adverse effect on the Services.
3. CUSTOMER REPRESENTATIONS.
Customer represents and warrants that its primary business address is in the United States. Customer represents and warrants that this Agreement has been duly authorized by all necessary corporate action and the individual entering into this Agreement is authorized to act on behalf of the Customer. Customer represents and warrants that its name, user name, contact information and registered location are true and correct. Customer understands that RemiPBX relies on the information that Customer supplies and that providing false or incorrect information may result in Services provisioning and delivery delays, the suspension or termination of Services and the inability of a 911- dialed call to be correctly routed to emergency service personnel, as further explained below. Customer agrees to promptly notify RemiPBX whenever its billing information changes (e.g., name, address, e-mail address, telephone number, and payment method, including credit card number and expiration date, if applicable). Customer agrees to be financially responsible for its use of the Services, as well as for use of the Customer’s account by others, including those circumstances addressed in Section 5.7.
4. SALES ORDER. All Services will be described in written agreement (which may be an e-mail) for the purchase of the Services (the “Sales Order”), which will set forth as applicable: (i) the products, price(s), delivery, installation location(s) and other information about the Services, including any terms for any Rented Devices; (ii) any equipment being sold to Customer; (iii) any associated delivery or installation information; and (iv) any recommendations relating to systems standards to optimize the use of the Services. The Sales Order is subject to these Terms, and when executed by RemiPBX and Customer or Customer otherwise assent to receive the Services, becomes a binding contract between RemiPBX and Customer. Commencing on the Subscription Date (as defined below) for the applicable Customer location, RemiPBX will invoice Customer for the Services pursuant to the terms and conditions of each Sales Order and these Terms. Customer will pay for and receive from RemiPBX the Services pursuant to the terms and conditions of each Sales Order and these Terms. A Sales Order may only be amended in writing signed by both Customer and RemiPBX. Customer may increase the quantity of Services at existing Customer locations at any time during the Service Term (“Additional Services”) by entering into an addendum or change order that sets forth the specific Additional Services requested, by using those additional Services, or by communicating those requested Additional Services in writing to RemiPBX. Each such addendum or change order shall be subject to RemiPBX’s acceptance (including by the rendering of the Additional Services), and upon such acceptance shall be considered an amendment to this Agreement and subject to the terms herein. Fees for the Services will be increased to reflect the Additional Services, subject to the same pricing and payment terms as are set forth in the applicable Sales Order. Additional Customer locations must be contracted under new Sales Orders. Any reduction in Services under any then-applicable Sales Order must be agreed to in a new Sales Order signed by both Parties.
5. USE OF SERVICES AND DEVICE.
5.1. Business Plans. Services are provided to Customer as a business user only, for Customer’s business and home office use. Customer (and its employees) shall not use the Services for any personal, residential, non-business and non-professional purpose. Customer shall not resell or transfer the Services to any other person for any purpose or make any charge for the use of the Services, without express written permission from RemiPBX in advance in each instance. RemiPBX reserves the right to immediately terminate, change the calling plan or modify the Services if RemiPBX determines, in its sole discretion, that Customer is using the Services for non-business or non-commercial use.
5.2. Restrictions. Customer shall not: (a) copy or adapt the Software or the Services for any purpose, except as specifically permitted under this Agreement; (b) use the Software or Services except in accordance with all applicable laws and regulations, and except as set forth in the Documentation; (c) reverse engineer, translate, decompile, or disassemble the Software or Services; (d) use the Software or Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party other than the Customer; or (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Software or Services.
5.3. User Responsibility. Customer agrees that it is responsible for all use(s) related to the account. Customer accepts full liability and responsibility for its actions or the actions of anyone who uses the Services via its account with or without Customer’s permission. Customer acknowledges that RemiPBX will be sending Customer information, including Customer’s Password, via e-mail over the Internet. Customer agrees that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt the information and telephone calls Customer transmits over the Internet. In order to maintain the security of the Services, Customer should safeguard Customer’s User IDs and Passwords, as well as the media access control (MAC) address of the Adapter. The MAC address is one of the pieces of information used by RemiPBX to authenticate customer calls and should not be shared.
5.4. Use of Services and Devices by Customers Outside the United States. While RemiPBX encourages use of the Services within the United States to other countries, RemiPBX does not presently offer or support the Services to Customers located in any countries other than the United States. The Services are only for use by persons or entities whose primary business address is in the United States. The Services are designed to work generally with unencumbered high-speed internet connections. However, if the high-speed internet connection Customer is using is outside the United States and/or Customer’s ISP places restrictions on the usage of VoIP services, RemiPBX does not represent or warrant that use of the Services by Customer is permitted by any other jurisdictions or by any or all the ISPs. If Customer removes a Device to a country other than the United States or use the Services from there, Customer does so at its own risk, including the risk that such activity violates local laws in the country where Customer is located. Customer will be solely responsible for any violations of local laws and regulations or violations of ISP terms of service resulting from such use. Customer also agrees to indemnify, defend and hold harmless RemiPBX for any claims, damages or expenses resulting from Customer’s use of the Services outside of the United States. RemiPBX reserves the right to disconnect Services immediately if RemiPBX determines, in its sole and absolute discretion, that Customer has used the Services or a Device in violation of applicable laws, including without limitation laws of jurisdictions outside the United States. Customer is solely liable for any and all use of the Services and/or Device by any person making use of the Services or Device provided to Customer.
5.5. Account Ownership. The owner of the account under which the Services are ordered shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Services with RemiPBX. If no legal entity is provided upon sign-up, the account owner shall be the owner of the credit card used to open such account, if applicable. Subsequent changes to ownership must be supported by appropriate legal documentation. RemiPBX shall not adjudicate ownership-related disputes, or any other internal business dispute. If RemiPBX is unable to determine the valid owner of the account, RemiPBX reserves the right to suspend or terminate the account and Services.
5.6. Prohibited Use of the Services. Customer agrees that it shall only use the Services in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights, and all laws, regulations, and applicable court and agency decisions and orders concerning call recording, call monitoring, caller ID usage, use of call technology, and/or direct marketing or telemarketing, including, without limitation, Section 5 of the FTC Act (15 U.S.C. § 45), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108), the Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. § 310 et seq.), the Telephone Consumer Protection Act (47 U.S.C. §§ 227), the Federal Communications Commission regulations (47 C.F.R. 64.1200 et seq.) and orders implementing the Telephone Consumer Protection Act, all federal and state Do Not Call and calling-time restriction laws and regulations. Customer is solely responsible for ensuring that its use of the Services is in compliance with all applicable laws and regulations. Customer shall use the Services only in a manner that complies with RemiPBX’s Acceptable Use Policy set forth on the Website: https://www.remipbx.com/acceptable-use-policy. Any use of the Services or any other action in violation of this Section 5 or that causes a disruption in the RemiPBX network integrity, or in RemiPBX’s determination threatens or compromises the security of RemiPBX, its vendors, its other customers or the Services, whether directly or indirectly, is strictly prohibited and permits RemiPBX to suspend the Services without prior notice at the sole discretion of RemiPBX if such immediate suspension is required to protect RemiPBX, its vendors, its other customers, the Services or other third parties, otherwise RemiPBX may provide reasonable notice prior to suspension. Customer further permits RemiPBX to disclose any information, including any Customer confidential information, to necessary authorities or third parties. RemiPBX shall have the right, in its sole, but reasonably exercised discretion, not to accept, transmit or deliver any messages or content that it reasonably believes contains inappropriate content or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including a law enforcement proceeding, process, or inquiry.
5.7. Fraudulent Use of the Services. Customer is solely responsible for any and all activities that occur under Customer’s account. Customer shall not transfer its login credentials accessing the Services to any third party. Customer agrees to notify RemiPBX if it becomes aware of any prohibited, fraudulent or unauthorized use of the Services, Customer’s account, Device or Customer Equipment. RemiPBX shall not be liable for any damages whatsoever resulting from any prohibited, fraudulent or unauthorized use of the Services, Customer’s account, Device or Customer Equipment, and Customer shall bear the risk of loss and assume all liability arising from any such prohibited, unauthorized or fraudulent usage, except to the extent such usage arose solely from RemiPBX’s gross negligence or willful misconduct. Any such prohibited, unauthorized or fraudulent use shall be deemed a material breach of the Agreement by Customer. Customer is responsible for implementing generally accepted security measures to protect all access points. Customer is responsible to secure all credentials used to access the Services, including credentials used by telephones or soft phones and credentials used by end users or administrators, as well as the media access control (MAC) address of telephones used by Customer. Customer is also solely responsible for terminating credentials and access for any end users no longer authorized by Customer to use the Services. Customer acknowledges that placing telephones on a publicly accessible internet protocol address or a publicly accessible network will subject the Customer to a higher level of risk for fraudulent activity. Customer shall not be excused from paying for the Services or any portion thereof on the basis that fraudulent calls, and any charges associated with such calls (e.g. long-distance charges), comprised a corresponding portion of the Services. In the event RemiPBX discovers or has reason to believe (i) suspicious or fraudulent calls being made, (ii) calling patterns or volumes materially outside of Customer’s regular usage patterns or (iii) other usage in violation of the Acceptable Use Policy, Customer consents to RemiPBX taking actions it deems reasonably necessary (including temporary suspension of the affected Services or blocking or limiting access to particular calling numbers or geographic areas), without notice to Customer, to prevent such calls from taking place, if such immediate suspension is required to protect RemiPBX, its vendors, its other customers, the Services or other third parties; otherwise RemiPBX may provide reasonable notice prior to suspension. Customer acknowledges and agrees that RemiPBX is under no obligation to do so, but may: (a) upon request investigate the authenticity of calls charged to Customer’s account or (b) take action to prevent such calls from being made. RemiPBX is not liable for any fraudulent calls processed by RemiPBX and billed to Customer’s account unless such calls are the result of RemiPBX’s gross negligence or willful misconduct.
5.8 Reasonable Usage of Non-Metered Voice Services
Some of RemiPBX’s voice Service plans are offered on an “unlimited” basis. Unlimited voice services are provided solely for normal business use. Each Service line is meant to be used by a single registered user for calls between two or three (i.e. three-way conference calling) individuals. Unlimited voice services may not be used for any of the following prohibited uses:
- Trunking or excessive call forwarding especially to a PBX, Key System or other phone capable of handling multiple simultaneous calls.
- Monitoring services, or leaving your phone “connected” to be able to monitor the surroundings for excessive periods of time.
- Data transmissions, transmission of broadcasts, or transmission of recorded material.
- Blasting or spamming simultaneous voicemails or faxes.
- Autodialing, iterative dialing, or “predictive” dialing where software or other devices are used to continuously dial numbers or send other communications using your account.
- Excessive use of greater than 3,000 minutes of inbound/outbound minutes per month per user
If Customer uses an unlimited voice service offering for other than acceptable normal business use, RemiPBX may, at its option, increase the number of lines of Service in use and assess and collect those applicable charges for the period of time in which Customer’s usage exceeded normal business usage levels, suspend or terminate your service, and/or change Customer’s plan to a metered plan with no unlimited usage components.
6. LOCAL NUMBER PORTABILITY. In the event Customer is transferring an existing phone number to use with the RemiPBX Services that currently is subscribed to another carrier, the following terms and conditions apply:
6.1. Authorization. Customer hereby authorizes RemiPBX to process its order for the Services and to notify its local service provider of its decision to switch its local services to RemiPBX and to transfer its telephone number and represent that Customer is authorized to take these actions. Customer will be required to complete a letter of authorization, provide RemiPBX with a copy of the most recent bill from Customer’s service provider, as well as provide RemiPBX with any other information required by the service provider to port Customer’s number. Failure to provide any information requested by RemiPBX or the third-party services provider will delay the porting of the number to RemiPBX. Customer acknowledges that the porting of its numbers is dependent upon Customer’s cooperation and third parties, and not under the control of RemiPBX. RemiPBX shall not be responsible for any delay in the porting of Customer’s numbers and will not provide credit for any such delays.
6.2. Activation. Customer agrees and acknowledges that it must install and activate its Device prior to the date that the number switch becomes effective. Customer will be assigned a temporary telephone number until the transfer is completed. Customer may place and receive calls using this temporary number until such time as Customer’s phone number is transferred.
6.3. Limitation. RemiPBX has the right to refuse to import a number if, in its sole discretion, it does not have the infrastructure to support the number.
6.4. Unauthorized Port Outs. Customer acknowledges and agrees that telephone or facsimile numbers may be ported out from its Services or its account due to acts or omissions of third parties, and it may be difficult or impossible for RemiPBX to: (i) prevent such port-outs: (ii) retrieve numbers ported-out of Customer’s account; or (iii) port such numbers back into Customer’s account. RemiPBX has no responsibility or liability due to such port-outs.
7. INSTALLATION AND EQUIPMENT.
7.1. Installation Schedule and Process. RemiPBX will deliver, install, setup and test, and Customer will accept, the Services as specified in an applicable Sales Order.
7.2. Permissions and Consents. Customer shall provide RemiPBX, at no cost to RemiPBX, all reasonable or required permissions, consents or authorizations necessary to install, activate, maintain, inspect, alter, repair and replace the Services and any Device, including the right to access and enter Customer’s locations upon reasonable prior notice and agreement of Customer (not to be unreasonably withheld, conditioned or delayed).
7.3. Special Installation Costs. RemiPBX may charge, and Customer shall pay, all recurring and nonrecurring costs, charges and expenses incurred by RemiPBX for Customer’s benefit in connection with installation, delivery or implementation of the Services (collectively, the “Special Install Costs”). For clarification and by way of example, standard installation does not include (and the following may comprise a portion of any Special Install Costs) core drilling, wiring extensions for excessive distances, installation of new conduit runs, installation of water proof shielding, installation of aerial circuit runs, or removal of hazard materials, as determined by RemiPBX at its sole discretion. Special Install Costs will be invoiced to Customer as soon as practicable following the service date for the applicable Services.
7.4 Customer Equipment. Customer understands and acknowledges that installation and delivery of the Services may require the use of Customer Equipment. Customer represents that it owns or otherwise has the right to use the Customer Equipment in connection with the Services. Customer shall be fully responsible for the installation, maintenance, repair and operation of any Customer Equipment and shall ensure the compatibility of any Customer Equipment with the Devices. RemiPBX will work with Customer and provide guidance and applicable specifications relating to compatibility of the Customer Equipment. Customer will not (i) relocate, rearrange, repair, disconnect or otherwise modify the Services or any Device without RemiPBX’s prior written consent; or (ii) create or allow any liens or other encumbrances to be placed on any Rented Device. RemiPBX may make from time to time relating to systems standards and equipment to optimize the use of the Services. REMIPBX SHALL HAVE NO LIABILITY FOR ANY DAMAGES OR PROBLEMS ARISING AS THE RESULT OF CUSTOMER NOT ADHERING TO SUCH RECOMMENDATIONS.
7.5. Equipment Returns after Purchase. Equipment purchased by Customer from RemiPBX is considered Customer Equipment and may not be returned to RemiPBX for any reason. ALL EQUIPMENT SALES ARE FINAL. Any such equipment returned to RemiPBX may be refused. Equipment sold by RemiPBX to Customer may be returned to the manufacturer solely in the event of a defect which arises within the applicable warranty period, provided Customer complies with the terms of this Section and the Return Materials Authorization (“RMA”) policy terms provided by RemiPBX on the Website at https://www.remipbx.com/downloads/ReturnMaterialsAuthorization.pdf. Prior to returning the purchased equipment, Customer must contact RemiPBX to determine whether a defect exists, process a warranty claim on behalf of Customer and to provide an RMA number. Customer must ship the equipment, undamaged and in its original packaging and content to the address provided by RemiPBX in accordance with all RMA procedures. Customer has seven (7) days after receipt of an RMA to ship the equipment. Customer must pay all shipping fees. Once the equipment is received, the original equipment manufacturer will handle the return in accordance with the applicable warranty policy.
7.6. Equipment and Data Backup. As part of the Services installation process, system files on Customer Equipment may be modified to the extent required for operation of the Services. Such modifications may disrupt the normal operations of Customer Equipment, including the possible corruption or loss of data stored on computer(s). Customer understands and acknowledges that installation, use, inspection, alteration, maintenance, repair or removal of the Customer Equipment may result in temporary interruption to the Services or damage to Customer Equipment, software and loss of data. Customer covenants to back-up all existing computer files by copying them to another storage medium prior to the installation of Software. Customer acknowledges, understands and accepts the risks of not making such a backup, including the loss of some or all of Customer’s software or data, or damage to Customer Equipment. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, REMIPBX SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO, LOSS OF OR DESTRUCTION OF CUSTOMER’S EQUIPMENT, PERIPHERALS, SOFTWARE OR DATA DURING INSTALLATION, EXCEPT FOR DAMAGES CAUSED BY ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
8. FEES AND CHARGES.
8.1. To the extent not already stipulated in an applicable Sales Order between Customer and RemiPBX, RemiPBX will publish fees and charges on the Website. The fees and charges may change from time to time (except pricing will not change during a particular month of a Month-to-Month Contract). New pricing will be effective in accordance with Section 2 above, and may be applied to renewals of existing Services. RemiPBX may introduce new products and services at special introductory pricing. Introductory pricing will not be applied retroactively to existing Services and may be applied for only limited periods of time. Certain charges, such as Regulatory Recovery Fees, Universal Service Fund fees, and 911 fees, are subject to change from time to time and are applicable to ALL Customers in accordance with applicable law.
8.2. Billing increments. All billing policies are defined by the specific package Customer chooses. Please refer to your Sales Order or to the Website for current plans and pricing at https://remipbx.com/plans-pricing/. Customer’s plan and billing increments will be set forth in the applicable Sales Order. Additional billing policies are set forth in this Section 8 and in Section 9 below.
8.3. Taxes. Customer is responsible for, and shall pay all applicable federal, state, municipal, local or other governmental sales, use, excise, Universal service fees, 911, value-added, personal property, public utility and other taxes, fees (“Fees”) and charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Services. Such fees and charges are in addition to payment for the Services and will be billed to and paid by Customer. If Customer is exempt from payment of such taxes, Customer must provide RemiPBX with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date RemiPBX receives such certificate.
8.4. Activation Fee. One-time activation fees and any other installation fees that may apply are specified on the Sales Order or Website and vary by product and plan chosen.
8.5. Regulatory Recovery Fee. A Regulatory Recovery Fee shall be charged monthly to offset costs incurred by RemiPBX in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee may apply to every phone number assigned, including toll free and virtual numbers.
8.6. Reinstatement Fee. Reinstating any Services deactivated for non-payment of fees shall result in a reinstatement fee up to $25.00 per line.
8.7. Returned Check Fee. RemiPBX may charge up to the maximum amount permitted by law if Customer’s banking institution dishonors or reverses a check, draft, or other payment.
9. BILLING AND PAYMENT.
9.1. Billing. RemiPBX will charge Customer in advance for the Services. Upon subscribing to the Services, Customer must give RemiPBX a valid email address and an accepted payment method. RemiPBX reserves the right to stop accepting Customer’s payment method or Customer’s payments. Customer must advise RemiPBX immediately if the payment method expires, Customer closes its account, the billing address changes, Customer’s email address changes, or Customer’s payment method is canceled and replaced on account of loss or theft. Except for usage-based charges or other charges incurred in a given month not already billed on a pre-paid basis, RemiPBX will bill in advance to Customer’s payment method all charges, fees, taxes, and surcharges for the Service Term. Fees may also include activation fees, Fees, Regulatory Recovery Fee, porting fees, early termination fees (“ETF“), reinstatement fees, and returned check fees. RemiPBX reserves the right to charge all fees to Customer’s payment method. RemiPBX will bill monthly as due immediately usage-based charges and any other charges which RemiPBX decides to bill as due immediately. Bills will be posted to the customer portal and emailed to the email address on record. Any payment not made when due may be subject to a late payment fee equivalent to the lesser of (i) one and a half percent (1.5%) per month; or (ii) the highest rate allowed by law. RemiPBX’s acceptance of late or partial payments (regardless of how they are marked or designated, including without limitation as ‘Paid in Full’, ‘Accord and Satisfaction’, or similarly) will not waive, limit, or prejudice in any way RemiPBX’s rights to collect any amount due. RemiPBX may terminate the Services and this Agreement for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
9.2. Payment. When Customer subscribes to the Services, Customer authorizes RemiPBX to collect from the designated payment method. This authorization will remain valid and in effect until thirty (30) days after termination of the Services or this Agreement.
9.3. Collection. If RemiPBX disconnects the Services, Customer remains liable for all charges under this Agreement and all the costs incurred to collect all outstanding charges, including, without limitation, collection costs and actual attorney’s fees. Customer agrees to pay and shall be liable for any additional charges or fees applied to its billing account for any reason, including but not limited to, interest and charges due to insufficient credit. All charges owed at the time of disconnection will be immediately due and payable. RemiPBX may pursue collection for all unpaid amounts on disconnected accounts, including the costs and attorneys’ fees incurred in connection therewith, and may report these unpaid charges to credit bureaus.
9.4. Notices. Customer understands that it is difficult to distinguish between credit and debit cards. Customer agrees to waive its rights under Regulation E to receive ten (10) days advance notice regarding the amount that will be debited from Customer’s account. While RemiPBX may send messages about billing from time to time, RemiPBX is not obligated to do so.
9.5. Billing Disputes. Customer must notify RemiPBX in writing within seven (7) days after receiving its credit card statement or from the time funds are debited from its bank account to dispute any RemiPBX charges on that statement or that have been debited from its account, or such dispute will be deemed waived. Notification of all billing disputes shall be sent to: support@RemiPBX.com. RemiPBX will charge a late fee as described in Section 9.1 for a disputed amount if (1) it was not paid by the due date and (2) RemiPBX determines that Customer did not dispute the charge in good faith or otherwise with properly documented or substantiated basis.
9.6. Prepaid Services. All prepaid fees described in any quote or order form and other payments by Customer under this Agreement are non-refundable and non-creditable.
10. LENGTH OF SERVICE.
10.1. Service Term. RemiPBX provides the Services for the term for which Customer signs up, as reflected in Customer’s Sales Order or other written commitment by Customer (the “Initial Service Term”). The Initial Service Term begins on the date Customer first orders the Services, or the date payment is successfully processed, whichever is later (the “Subscription Date”). The Subscription Date is not necessarily the day Customer receives the Device ordered or the first time the Services are used. Customer is purchasing the Services for the full Initial Service Term as set forth in the Sales Order. In the event the Service Order is silent as to the duration of the Initial Service term, the default Initial Service term is one month.
10.2. Automatic Renewal. RemiPBX shall automatically renew the Services for the same term as the Initial Service Term on the anniversary of the Subscription Date unless Customer cancels the Services before the end of the current Service Term. See “Termination of Service” in Section 10.4 for termination procedures. The renewal begins on the day after the last day of the current Service Term. The renewal will be charged to Customer’s payment method on file, which may include any payment method automatically updated by Customer’s issuing bank. If Customer is paying by credit card and such credit card is declined, invalid, or payment is not made by the issuer of such credit card on the anniversary of Customer’s Subscription Date, without further notice RemiPBX reserves the right to automatically recharge the payment method until payment is received, the payment method is updated, or the Services are discontinued for nonpayment.
10.3. Right to Disconnect. Customer understands and agrees that RemiPBX has the right to suspend, terminate or disconnect any part of the Services generally at any time if RemiPBX determines or reasonably believes that Customer: (a) failed to make payment when due; (b) is violating or violated any applicable law; (b) materially breached this Agreement; (c) used fraudulent means to pay for the Services, including use of a fraudulent credit card; or (d) abused or harassed (verbally or otherwise) any RemiPBX employee, contractor, agent or representative. Further, this Agreement may be suspended, terminated or Services disconnected if (e) RemiPBX is ordered to do so by law enforcement, court order or other governmental agency; (f) Customer commences a legal action, proceeding or participated in a class action lawsuit against RemiPBX; (g) Customer files a petition in bankruptcy and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over Customer or its material assets; or (h)
RemiPBX reasonably believes that such action is necessary to protect, maintain, or improve the Services, to prevent fraud or misrepresentation, to protect RemiPBX, its customers or other third party RemiPBX affiliates, or for any other good cause.
10.4. Termination of Services. In order to terminate the Services, contact RemiPBX’s Support Team, via email at support@remipbx.com or by calling (401) 240-2919 thirty (30) days prior to expiration of the current Service Term. Please refer to the RemiPBX Cancellation Policy posted on the Website at: https://www.remipbx.com/cancellation-policy.
11. SERVICE DISTINCTIONS. Customer acknowledges and understands that the Services are not a telephone service, and RemiPBX provides the Services on a best efforts basis. Important distinctions exist between telephone service and the Services offering provided by RemiPBX. The Services are subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect Customer’s rights of redress before federal and state telecommunications regulatory agencies or judicial forums. Events beyond RemiPBX’s control may affect the Services, such as power outages, fluctuations in the Internet, the underlying ISP or broadband service, or maintenance. RemiPBX will act in good faith to minimize disruptions to Customer’s use of and access to the Services, however, RemiPBX makes no representation that the Services will be interruption free.
11.1. EMERGENCY SERVICES – 911 DIALING. Customer acknowledges and understands that RemiPBX 911 dialing is different than traditional 911 service. See complete 911 disclosure posted on the Website at https://remipbx.com/E911-disclosure. CUSTOMER’S SERVICES WILL NOT BE ACTIVATED UNTIL REMIPBX RECEIVES AN AFFIRMATIVE ACKNOWLEDGMENT THAT CUSTOMER HAS READ AND UNDERSTANDS REMIPBX’S 911 DISCLOSURE AGREEMENT.
11.2. No 0+ or Operator Assisted Calling; May Not Support X11 Calling. Customer acknowledges and understands that the Services do not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, calling card calls or dial-around calls. The Services may not support 311, 511, and other x11 services in one or more service areas.
11.3. No Directory Listing. The phone numbers Customer receives from RemiPBX will not be listed in any telephone directories. However, any phone numbers Customer transfers (ports) from its local phone company may be listed.
11.4. Incompatibility with Other Services.
11.4.1. Non-Voice Equipment Limitations. Customer acknowledges and understands that the Services are not compatible with all non-voice communications equipment, including but not limited to, some home and office security systems that are set up to make automatic phone calls, emergency phones in elevators, some aspects of satellite TV systems, digital entertainment systems, fax machines, modems and medical monitoring devices. By accepting this Agreement, Customer waives any claim it may have against RemiPBX for interference with or disruption of such systems due to the Services.
11.4.2. Certain Broadband, Cable Modem, and Other Services. There may also be other services with which the Services may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using the Services. RemiPBX does not warrant that the Services will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Services with any particular broadband service.
11.5 Use Outside of the United States. RemiPBX’s Services do not provide access to emergency services in any country outside of the United States. RemiPBX disclaims any obligation to provide Customer with access to emergency services in any jurisdiction other than the United States.
12. DEVICES.
12.1. Ownership and Risk of Loss. Customer will own the Device (other than Rented Devices) and bear all the risk of loss, theft, or damage regardless of the payment schedule selected for Services and Devices. Month-to-Month Contracts for Services and Devices may include early termination fees. Returns of non-defective Devices outside of the initial 30-day money-back guarantee period will not be accepted. Refer to the Cancellation policy for more information found at: https://www.remipbx.com/cancellation-policy.
12.2. Rented Devices. Section 12.1 above will not apply to Rented Devices. Unless otherwise agreed upon, Customer agrees that within thirty (30) days after the expiration of the Service Term of any Device Rental Agreement or termination of this Agreement, Customer will promptly return all Rented Devices to RemiPBX. Customer will be responsible for (i) any damage to the Rented Devices as assessed by RemiPBX upon receipt, (ii) the replacement cost of such Rented Devices if it is lost, misplaced, not delivered or stolen during transit, and (iii) shipping/handling costs. Customer agrees to pay the full retail cost for the repair or replacement of any Rented Device or part that is lost, stolen, damaged, modified, sold, transferred, leased, encumbered or assigned together with any costs incurred by RemiPBX in obtaining or attempting to obtain possession of any Rented Devices.
12.3. Promotional Devices. Devices included in a Services offering at no charge may be previously used equipment. Unless otherwise provided in a Month-to-Month Contract, Promotional devices not returned upon cancellation of the Services will be charged to the Customer. See Cancellation Policy for details.
12.4. Replacement of a Defective Device. Devices purchased from RemiPBX will be covered by their respective factory warranties, if any. RemiPBX does not make any warranty or representation for Devices in addition to, or in replacement of any manufacturer and factory warranties. If a factory warranty applies, then prior to returning the Device, Customer must contact RemiPBX at support@remipbx.com so that RemiPBX may determine whether a defect exists and to receive an RMA number, which is required along with the return. Customer must ship the Device to the manufacturer at the address provided by RemiPBX in accordance with all RMA procedures. Customer has seven (7) days after receipt of an RMA to ship the Device back to the manufacturer at the address RemiPBX provides. Customer must pay all shipping fees. Once the manufacturer has received the Device, a replacement will be sent to Customer in accordance with the factory warranty, if any. If an advance replacement is provided and the factory has not received the defective Device within 14 days or it was not in a returnable condition (original carton, all packing materials and parts in the same condition in which Customer received them), then RemiPBX will charge Customer for the second Device or for the missing parts.
12.5. Receipt of Damaged Devices. If Customer receives cartons or Devices that are visibly damaged, Customer must note the damage on the carrier’s freight bill or receipt and keep a copy. Customer must also keep the original carton, all packing materials, and parts in the same condition in which Customer received them from the carrier. Customer must then contact RemiPBX’s Customer Care Department immediately at support@remipbx.com for return instruction.
12.6. Tampering with the Device. Customer may not change the electronic serial number or equipment identifier of any Device or perform a factory reset of any Device without prior written consent from RemiPBX.
12.7. Prohibited Devices. Customer is prohibited from using the Services with any devices other than RemiPBX-approved Devices received from RemiPBX approved retailers or from RemiPBX.
13. SOFTWARE.
13.1. Non-Exclusive License. If Software proprietary to RemiPBX is provided by RemiPBX in connection with the Services, RemiPBX grants to Customer a personal, limited, revocable, non-exclusive, non-assignable and non-transferable license to use the Software, in object code form only, solely for the purpose of using the Services. This license will permit such use by Customer and any of its employees or contractors (but only within the scope of their employment or services with Customer) authorized by Customer to use the Services, provided that Customer shall be responsible for all uses of the Services as provided in this Agreement. This license commences upon RemiPBX’s acceptance of the Sales Order for the Services and terminates immediately upon the expiration or termination of this Agreement for any reason. Customer shall return or destroy all Software and any related written material, together with any copies, in its possession or under its control promptly upon the expiration or termination of this Agreement for any reason. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this license is void and may result in termination by RemiPBX of this Agreement and the license. No other licenses or rights to the Software are granted or implied.
13.2. End User Licenses. Certain Software RemiPBX provides to Customer may contain third-party software (“Third-Party Software”), including open source software. Use of such Third-Party Software may be governed by separate copyright notices and license provisions, which may be found or identified in documentation or on other media delivered with the Third-Party Software and which are incorporated by reference into this license. Notwithstanding any other terms in this Section 13.2, such provisions shall govern the use of Third-Party Software. RemiPBX shall provide or make available to Customer all end user license agreements pertaining to Software (including Third-Party Software) or plug-ins to Software that are provided in connection with the Services. RemiPBX shall ensure that such end user license agreements grant Customer the right to use such Software as necessary for Customer to use the Services in accordance with this Agreement. Customer agrees to comply with the terms and conditions of all end user license agreements that are provided or made available to Customer for any Software (including Third-Party Software) or plug-ins to such Software distributed in connection with the Services. All end user licenses shall remain in effect for so long as the Services are provided by RemiPBX, but immediately terminate on the date that the Services expires or this Agreement is terminated or are otherwise terminated in accordance with such Third-Party Software licenses.
13.3. Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software. The Services, Software and all information, documents and materials on the Website are protected by trademark, copyright, patent and other intellectual property laws and international treaty provisions. All such Websites, Website content, corporate names, service marks, trademarks, trade names, logos and domain names of RemiPBX are and shall remain the exclusive property of RemiPBX or its affiliates and nothing in this Agreement shall grant Customer the right or license to use any of the foregoing. All information, documents and materials on the Website(s) of Customer and/or its affiliates are protected by trademark, copyright, patent and other intellectual property laws and international treaty provisions. All such Websites, Website content, corporate names, service marks, trademarks, trade names, logos and domain names of Customer and/or its affiliates are and shall remain the exclusive property of Customer or its affiliates and nothing in this Agreement shall grant RemiPBX or its affiliates the right or license to use any of the foregoing. If Customer decides to use the Services through an interface device not provided or expressly approved by RemiPBX (RemiPBX reserves the right to reasonably prohibit such devices in particular cases or generally), Customer warrants and represents that it possesses all required rights, including software and/or firmware licenses, to use that interface device with the Services and Customer will indemnify, defend and hold harmless RemiPBX from and against any and all liability arising out of Customer’s use of such interface device with the Services. Customer may not undertake, cause, permit or authorize the modification, creation of derivative works, or translate, reverse compile, disassemble, hack or reverse engineer, or otherwise attempt to derive the source code from the binary code of the Software.
14. THIRD PARTY NETWORKS.
In some cases, RemiPBX may utilize the public Internet and third-party networks outside of its control in conjunction with the provision and maintenance of the Services and its Websites. In such cases, RemiPBX makes no representation that the Internet or any such third-party network will adequately secure or protect the privacy of Customer or any end user’s personal information, and RemiPBX expressly denies any associated liability. Actions or inactions caused by these third-party networks can result in situations in which RemiPBX customers’ connections may be impaired or disrupted. Although RemiPBX will use commercially reasonable efforts to remedy or avoid such events, RemiPBX expressly disclaims warranties and all liability with respect to these third-party networks or any disruptions that may occur thereon, and Customer understands and agrees that this limitation of liability is a material term of this Agreement and a material inducement for RemiPBX to provide its Services to Customer at the agreed-upon rates.
15. REQUIRED MAINTENANCE.
RemiPBX reserves the right to perform repair and maintenance on or upgrade, update or enhance (collectively, the “Maintenance”) its network, infrastructure, Website(s), and Services. RemiPBX shall use commercially reasonable efforts to perform the Maintenance in a manner so as to avoid unduly interfering with Customer’s use of the Services, including by providing reasonable commercial notice where feasible.
16. CUSTOMER DATA.
RemiPBX will use commercially reasonable efforts to protect the security of Customer data (“Customer Data”) consistent with the FCC’s CPNI rules and RemiPBX’s CPNI policy.
17. MANAGEMENT OF CUSTOMER DATA AND COMPUTER.
17.1. System Management and Services Performance. Customer is solely responsible for obtaining, installing, configuring and maintaining suitable equipment, including its computer and telephone and software, including any necessary system or software upgrades, patches or other fixes which are or may become necessary to access the Services and to operate Customer’s computer. RemiPBX will only provide technical assistance with respect to Customer’s RemiPBX-provided Adapter.
17.2. Monitoring of Network Performance. RemiPBX automatically measures and monitors network performance. RemiPBX also will access and record information about Customer’s public IP address and settings and the installation of the Software in order to provide customized technical support. No adjustments to Customer’s computer settings will be made without its permission. Customer hereby consents to RemiPBX’s monitoring of its Internet connection and network performance, and the access to and adjustment of Customer computer settings, as set forth above, as they relate to the Services.
17.3. Storage of User Information. Except as required by applicable law, RemiPBX is not obligated to store Customer’s communications logs, voicemails, faxes, e-mails, or other messages and does so only as a convenience to Customer. Customer agree that RemiPBX has no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, e-mails, messages, and/or other communications maintained or transmitted by the Services. Customer acknowledges and agrees that RemiPBX may establish limits as to the size of communications that RemiPBX transmits or stores and the duration for which RemiPBX stores any communications
17. RECORDING CONVERSATIONS.
Certain RemiPBX Services provide a function that allows the recording individual telephone conversations. The laws regarding the notice, notification, and consent requirements for recording conversations vary from state to state. Customer is solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using this feature. RemiPBX expressly disclaims all liability with respect to any recording of telephone conversations by Customer. Customer hereby agrees to indemnify, defend and hold RemiPBX harmless from and against any damages or liabilities of any kind related to Customer (or its employees, agents and representatives) recording of any telephone conversations using the Services. Customer agrees that RemiPBX, may at its sole discretion, record any call between RemiPBX and Customer for quality control purposes.
18. LIMITATION ON WARRANTIES, REMEDIES AND LIABILITY, AND INDEMNIFICATION.
18.1. WARRANTIES.
18.1.1 REMIPBX MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICES OR DEVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. REMIPBX DOES NOT WARRANT THAT THE SERVICES OR DEVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. REMIPBX DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF. CUSTOMER AGREES THAT IT ACCEPTS THE SERVICES AND DEVICE “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND IN THE EVENT OF ANY DEFECT. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST REMIPBX TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
18.1.2. REMIPBX WILL NOT GIVE CUSTOMER CREDIT OR REFUND FOR ANY INTERRUPTION OF THE SERVICES, INCLUDING INTERNATIONAL CALLING SERVICES.
18.2. LIMITATION OF LIABILITY.
18.2.1. IN NO EVENT SHALL REMIPBX BE LIABLE TO CUSTOMER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES OR ASSIGNS FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICES, THE USE OF OR INABILITY TO USE THE SERVICES, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICES, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT.
18.2.2. REMIPBX SHALL NOT BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICES, INCLUDING 911 DIALING, AT ANY TIME OR FROM TIME TO TIME, OR FOR ANY INTERRUPTION OR DEGRADATION OF VOICE QUALITY CAUSED BY ANY REASON INCLUDING BUT NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, EQUIPMENT, NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION, FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO: ACTS OF GOD, ADVERSE WEATHER, STRIKES, FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICE, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO REMIPBX OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND REMIPBX’S CONTROL, INCLUDING WITHOUT LIMITATION THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS TO BE CONNECTED OR COMPLETED, INCLUDING 911 DIALING, OR DEGRADATION OF VOICE QUALITY. REMIPBX SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO REMIPBX’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF REMIPBX’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS.
18.2.3. EXCEPT AS SET FORTH HEREIN, THE TOTAL CUMULATIVE LIABILITY OF REMIPBX UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE PREVIOUS SIX (6) MONTHS. LIMITATIONS UNDER THIS SECTION 18.2.3 (DIRECT DAMAGES) WILL NOT APPLY TO REMIPBX’S LIABILITY RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE ANY LIABILITY WHICH MAY NOT BE RESTRICTED, LIMITED OR EXCLUDED PURSUANT TO APPLICABLE LAW.
18.2.4. THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT REMIPBX WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, CUSTOMER AGREES TO REIMBURSE REMIPBX FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST REMIPBX TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
19. INDEMNIFICATION AND WAIVER OF CLAIMS.
19.1. INDEMNIFICATION.
19.1.1. CUSTOMER IS LIABLE FOR ANY AND ALL USE OF THE SERVICES AND/OR DEVICE BY ITSELF AND BY ANY PERSON MAKING USE OF THE SERVICES OR DEVICE, AND CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS REMIPBX AGAINST ANY AND ALL LIABILITY FOR ANY CLAIMS THAT ARISE OUT OF ITS USE OR MISUSE OF THE SERVICES, INCLUDING ANY CLAIMS THAT SUCH USE FAILS TO COMPLY WITH THIS AGREEMENT OR APPLICABLE LAW. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS REMIPBX AND ITS OWNERS, OFFICERS, AND EMPLOYEES FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, ATTORNEYS’ FEES, AND ANY AND ALL OTHER DAMAGES AND COSTS OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICES, THE USE OF OR INABILITY TO USE THE SERVICES, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICES, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE EXCLUSIVELY FROM REMIPBX’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
20. REGULATORY AND LEGAL CHANGES.
RemiPBX may discontinue, limit, modify any Services, or impose additional requirements to the provision of any Services, as may be reasonably required to comply with any applicable laws. If changes in applicable laws materially and adversely affect delivery of Services (including the economic viability thereof), RemiPBX will provide notification to Customer and the Parties will use good faith efforts to negotiate appropriate changes to this Agreement. If the parties cannot reach agreement within thirty (30) days after RemiPBX’s notice requesting renegotiation, RemiPBX may, on a prospective basis after such 30-day period, pass any increased costs resulting from such changes on to Customer; provided, however, that RemiPBX shall provide Customer written notice of any increased costs or charges and Customer may upon notice given to RemiPBX within sixty (60) days after delivery of the notice of the increased charges terminate Services without liability for an early termination fee or charge. If Customer does not terminate Services within such 60-day period, Customer’s termination right shall expire, and Customer shall be obligated to accept and pay for the Services until expiration or termination of the Service Term.
21. DISPUTE RESOLUTION; BINDING ARBITRATION.
21.1. Management Resolution. In the event Customer or RemiPBX has a dispute or claim against the other (except with respect to invoice disputes addressed in Section 9), the disputing Party shall provide written notice in accordance with the provisions of this Agreement. Customer and RemiPBX agree to escalate disputes to their respective management, who will use commercially reasonable efforts to resolve the dispute by consulting with each other in good faith to reach an equitable resolution satisfactory to both parties within thirty (30) days of the receipt of notice. Neither Party shall pursue or commence proceedings regarding the dispute in any court, administrative arbitral or other adjudicative body prior to engaging in such consultations and negotiations.
21.2. Binding Arbitration. If negotiations fail to resolve the dispute within thirty (30) calendar days, and/or small claims court is not a valid option due to the size or nature of the claim, all disputed claims (except for claims relating to intellectual property rights, indemnity, or confidentiality obligations, fraudulent or unauthorized use, theft, or piracy of service, or matters relating to injunctions or other equitable relief) must be resolved by binding arbitration before a single arbitrator in accordance with the rules of the American Arbitration Association (“AAA”) then in effect. This agreement to arbitrate is intended to be given the broadest possible meaning under applicable laws. The initiation of an arbitration dispute shall not otherwise prevent RemiPBX or Customer from terminating Services in accordance with these Terms.
21.3. Notice. A Party who intends to seek arbitration must first send to the other Party a written notice of dispute, which must describe the nature and basis of the dispute and set forth the specific relief sought. If an agreement to resolve the dispute is not reached, an arbitration proceeding may be commenced by downloading or copying a form from the AAA website (http://www.adr.org). The amount of any settlement offer made by Customer or RemiPBX shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or RemiPBX is entitled.
21.4. Location. All hearings conducted as part of the arbitration shall take place in Providence, Rhode Island. If Customer’s claim is in excess of $10,000, the right to a hearing will be determined by the AAA rules.
21.5. Costs. Each Party will be responsible for its own costs incurred in the arbitration, including arbitration filing fees and attorneys’ or expert witness’s fees. The arbitrator’s costs and expenses shall be shared equally between the Parties. If a Party elects to appeal an award, the prevailing Party in the appeal shall be entitled to recover all reasonable attorneys’ fees incurred in that appeal.
21.6. Waiver of Jury Trial. Customer and RemiPBX agree that, by entering into this agreement, Customer and RemiPBX are waiving the right to a trial by jury. Customer and RemiPBX agree that the arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. The arbitrator may not award special, indirect, punitive, incidental or consequential damages. CUSTOMER AND REMIPBX AGREE THAT CUSTOMER MAY BRING CLAIMS AGAINST REMIPBX ONLY IN CUSTOMER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THAT CUSTOMER EXPRESSLY WAIVES ITS RIGHT TO BRING A CLASS ACTION SUIT. Customer and RemiPBX agree that the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding.
22. GENERAL.
22.1. Assignment. This Agreement inures to and is binding upon the Parties’ successors and permitted assignees. Customer shall not assign this Agreement without RemiPBX’s prior written consent, not to be unreasonably conditioned, withheld or delayed; provided that Customer may, without consent, but with reasonable prior written notice, assign its rights and obligations hereunder to any parent, affiliate or subsidiary of Customer or pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets; provided, however, that any proposed assignee shall be at least as creditworthy as Customer (as reasonably determined by RemiPBX), shall agree in advance and in writing to assume and be bound by all provisions of this Agreement, and shall deliver to RemiPBX fully-executed documents reasonably acceptable to RemiPBX establishing the terms of such an assignment. Any assignment by Customer other than as permitted by this Section 22.1. shall be void and of no force or effect.
22.2. Force Majeure. Neither Party is liable for any failure of performance (other than for delay or performance in the payment of money due and payable hereunder) to the extent such failure is due to any cause or causes beyond such Party’s reasonable control, including acts of God, fire, explosion, vandalism, cable cut, denial of service attacks, adverse weather conditions, governmental action, acts of terrorism or strikes and similar labor difficulties. Either Party’s invocation of this clause will not relieve Customer of its obligation to pay for any Services actually provided or permits Customer to terminate any Services except as expressly provided herein. In the event such force majeure event prevents the availability or material use of the affected portion of Services and such event continues for more than thirty (30) consecutive days, either Party may terminate the affected portion of the Services without liability, other than Customer’s obligation to pay for any Services actually provided.
22.3. Intellectual Property and Publicity. Except as explicitly granted herein, neither Party is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or other form of intellectual property of the other Party or its affiliates without the express prior written authorization of the other Party. Neither Party will issue any press release, identify the other Party using its name, trademarks and/or logos in its marketing collateral, presentations and websites, or make any other public statement(s) relating to this Agreement, except as may be required by law or agreed by the non-disclosing Party in writing signed by an authorized representative. Either Party may, may revoke such right with written notice to the other Party at any time.
22.4. Nonexclusive. This Agreement is non-exclusive. Nothing in this Agreement prevents either Party from entering into similar arrangements with other persons or entities.
22.5. Notices. Except as otherwise provided in this Agreement (e.g., billing disputes as described in Section 9), any notice required or given under this Agreement to a Party will be in writing and delivered as follows:
To RemiPBX:
RemiPBX
P.O. Box 375
North Attleboro, MA 02761
To Customer:
At the physical address associated with the Customer’s account.
Such address and contact information may be changed by either Party by prior written notice to the other Party in accordance with this paragraph. A notice will be deemed to be duly given (i) on the date of delivery if personally delivered by hand or by a nationally recognized overnight express courier, or (ii) upon the third day after such notice is deposited in the United States mail, if mailed by registered or certified mail, postage prepaid, return receipt requested. For clarity, e-mail or fax notices are informational only and shall not constitute formal notice.
22.6. Facsimile and Electronic Transmission; Counterparts. These Terms and Sales Orders, and other documents that may be executed in connection with the Services (collectively “Service Documentation”), may be executed and delivered by facsimile or electronic transmission, and upon receipt, such transmission shall be deemed the delivery of an original. Service Documentation may be executed in several counterparts, each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument.
22.7. Electronic Communications and Consent to use of Electronic Signatures and Records. By ordering, purchasing or using the Services, Customer agrees that RemiPBX may provide to Customer by use of electronic communications any required notices, agreements and other information concerning RemiPBX, including changes to these Terms. In addition, by clicking “I Agree” or “I Accept” (or similar) anywhere on the Website Customer agrees and acknowledges to conduct business electronically and be bound by the applicable agreement, document or transaction.
22.8. Basis of Bargain; Failure of Essential Purpose. Customer acknowledges and agrees that RemiPBX has established its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability and the warranty disclaimers set forth in this Agreement, and that they are an essential basis of the bargain between the parties and are material terms of this Agreement. The Parties agree that the limitations and exclusions of liability and warranty disclaimers specified in this Agreement will 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 Agreement by reason of such failure.
22.9. No Commitments. Customer represents that RemiPBX has made no commitments or promises orally or in writing with respect to delivery of any future features or functions. In relation to any future features or functions, all presentations, RFP responses, and/or product roadmap documents, information or discussions, either prior to or following the date herein, are informational only, and are not the basis for, nor part of this Agreement or any Sales Order. RemiPBX has no obligation to provide any future releases or upgrades or any features, enhancements or functions, unless specifically agreed to by both Parties. Customer acknowledges that its purchasing decisions are not based upon any future features or functions.
22.10. Survival, Modification. The terms and conditions of this Agreement will survive the expiration or other termination of this Agreement to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the Party in whose favor they operate. Except for the rights of RemiPBX in Section 2, all modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by authorized representatives of both parties.
22.11. Relationship of the Parties. The relationship of RemiPBX and Customer shall not be that of partners, agents or joint venturers for one another, and nothing contained in the Agreement shall be deemed to constitute a partnership or agency agreement between the parties for any purposes. RemiPBX and Customer shall be independent parties and shall discharge their contractual obligations at their own risk subject to the terms of this Agreement.
22.12. Waiver. The failure of either Party to enforce compliance with a provision of this Agreement shall not be construed as a general waiver of such provision or any other provision.
22.13. Severability. If any term, covenant or condition contained in this Agreement or any Sales Order is, to any extent, held invalid or unenforceable in any respect under the laws governing this Agreement, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
22.14. Governing Law. The laws of the Commonwealth of Massachusetts will govern this Agreement, without reference to its principles of conflicts of laws. Because this agreement is a transaction in interstate commerce, the Federal Arbitration Act (“FAA“), and not state arbitration law, shall govern the interpretation and enforcement of the arbitration provision in Section 21.
22.15. Entire Agreement. This Agreement, together with the applicable Sales Order(s), contains the entire understanding of the parties hereto and, supersedes any prior or contemporaneous agreements, statements, understandings, writings, commitments, or representations, oral or written concerning its subject matter, as between Customer and RemiPBX.
22.16. Export Controls. Customer agrees to comply fully with all relevant export laws and regulations of the United States, including the U.S. Export Administration Regulations, administered by the Department of Commerce. Customer also expressly agrees that it shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Services, Equipment or Software to any destination, company, or person restricted or prohibited by U.S. Export Controls.
22.17. Order of Precedence. In the event of any conflict between the documents comprising this Agreement, precedence will be given to the documents in the following descending order: (i) the applicable Sales Order; (ii) the main body of these Terms; (iii) any policies incorporated herein by reference; and (iv) and any other document expressly referred to in this Agreement which governs the Services.
Last Revised February 10, 2022
