1. INTRODUCTION. This ElectriFax VOIP Service Agreement, together with any operating rules, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to (collectively, the “Agreement”), constitutes the entire agreement between ElectriFax, Inc., an California Limited Liability company (hereinafter referred to as (“we,” “us” or “ElectriFax”) and the party set forth in the related registration order Form (herein after referred to as “you,” “user” or “Customer”) regarding ElectriFax’s Fax Service ?(as defined herein), and supersedes all prior agreements, discussions or writings between the parties regarding the subject matter of this Agreement. For purposes of this Agreement, the term “ElectriFax” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, attorneys and any other service provider that furnishes services or devices to you in connection with this agreement or the service or the device.
2. DEFINITION OF SERVICE. ElectriFax Broadband Phone Service is an enhanced voice communication service which uses a data network (like the Internet) to transport voice communications that have been converted into data packets. For purposes of this Agreement, the term “Service” shall mean ElectriFax Broadband Phone Service, including all Software, Equipment and other features, products and services provided by ElectriFax under the pricing plan that you have selected. For purposes of this Agreement, “Equipment” shall mean a ElectriFax-provided Telephone Adapter (“Adapter”) and accompanying Ethernet Cable.
3. REVISIONS TO TERMS AND PRICING. From time to time, we may revise the terms and conditions of this Agreement (including, without limitation, any of the policies incorporated by reference) and the pricing for the Service. Notice of revisions to the Agreement or pricing shall be posted on the ElectriFax Web site (“the Web site”) and deemed given and effective no earlier than on the date posted to the Web site and no later than the statutory waiting period if any. If you do not agree to the revision(s), you must notify ElectriFax in writing of your desire to terminate your Service immediately, subject to the Termination provisions provided in this Agreement By continuing to use the Service after revision(s) are in effect, you hereby accept and agree to all such revisions.
4. CUSTOMER REPRESENTATIONS. You represent and warrant that you are at least eighteen (18) years of age or, as applicable, the age of majority in the country, state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. You represent and warrant that your name, user name, contact information and registered location are true and correct and if for business use, you are authorized to act on behalf of your company. You understand that ElectriFax relies on the information you supply and that providing false or incorrect information may result in Service provisioning and delivery delays, the suspension or termination of your Service and the inability of a 911-dialed call to be correctly routed to emergency service personnel, as further explained below. You agree to promptly notify ElectriFax in writing whenever your personal or billing information changes (including, but not limited to, your name, address, e-mail address, telephone number, and credit card number and expiration date). You agree to be financially responsible for your use of the Service as well as for use of your account by others regardless of whether the person was authorized to use the service.
5. USE OF SERVICE AND DEVICE
5.1. Business Plans Service is provided to you as a business user, for your business and home office use. This means that you are not using it for any personal, residential, nonbusiness and nonprofessional purpose. This also means that you are not to resell or transfer the Service to any other person for any purpose or make any charge for the use of the Service, without express written permission from ElectriFax in advance. ElectriFax reserves the right to immediately terminate, change the calling plan, alter the price, or modify the Service if ElectriFax determines, in its sole discretion, that you are using the Service for non business or non-commercial use.
5.2 Residential Plans. If you subscribe to our residential services, we provide you with the service and the device solely for residential use. ElectriFax reserves the right to immediately terminate, change the calling plan, alter the price, or modify the Service if ElectriFax determines, in its sole discretion, that you are using the Service for non residential use.
5.3 User Responsibility. You agree that you are responsible for all use(s) related to your account. You understand this means that you accept full liability and responsibility for the actions of anyone who uses the Service via your account with or without your permission. You acknowledge that ElectriFax will be sending you information, including your Password, via e-mail over the Internet. You agree 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 you transmit over the Internet. In order to maintain the security of your Service, you should safeguard your 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 ElectriFax to authenticate customer calls and should not be shared.
6. LOCAL NUMBER PORTABILITY. In the event you are transferring an existing phone number that currently is subscribed to another carrier, the following terms and conditions apply:
6.1 Authorization. You hereby authorize ElectriFax to process your order for the Service and to notify your local service provider of your decision to switch your local services to ElectriFax and to transfer your telephone number, and represent that you are authorized to take these actions. You may be required to complete a letter of authorization, provide us with a copy of your most recent bill from your service provider, directly contact your present service provider as well as provide us with any other information required by your service provider to port your number. Failure to provide any information requested by ElectriFax or the third party service provider will delay the porting of the number to ElectriFax. ElectriFax shall not be responsible for any delay in the port of your number and will not provide credit for any such delays.
6.2 Activation. You agree and acknowledge that you must install and activate your Equipment prior to the date that the number switch becomes effective (“Port Effective Date”). You will be assigned a temporary telephone number until your transfer is completed. You may place and receive calls using this temporary number until such time as your phone number is transferred.
6.3 Limitation. ElectriFax has the right to refuse to import a number if, in its sole discretion and without incurring liability, it does not have the infrastructure to support the number.
7. SERVICE DISTINCTIONS. You acknowledge and understand that the Service is not a telephone service, and we provide it on a best efforts basis. Important distinctions exist between telephone service and the enhanced Service offering provided by ElectriFax. The Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal and State telecommunications regulatory agencies or judicial forums. Events beyond our control may affect our service, such as power outages, fluctuations in the internet, your underlying ISP or broadband service, or maintenance. We will act in good faith to minimize disruptions to your use of and access to our service but we shall not be liable in any manner whatsoever due to your unavailability of service.
7.1. EMERGENCY SERVICES – 911 DIALING. You acknowledge and understand that ElectriFax 911 dialing is different than traditional 911 service. See complete 911 disclosure posted on our Web site at WWW.VOIPTOSAVE.COM. YOUR SERVICE WILL NOT BE ACTIVATED UNTIL ElectriFax RECEIVES AN AFFIRMATIVE ACKNOWLEDGMENT THAT YOU HAVE READ AND UNDERSTOOD ElectriFax’S 911 DISCLOSURE AGREEMENT.
7.2. No 0+ or Operator Assisted Calling; May Not Support X11 Calling. You acknowledge and understand that the Service does not support 0+ or operator assisted calling, including, without limitation, collect calls, third party billing calls, 900, calling card calls or dial-around calls. Our Service may not support 311, 511, and other x11 services in one or more service areas.
7.4. No Directory Listing. The phone numbers you get from us will not be listed in any telephone directories. However, any phone numbers you transfer directly from your local phone company may be listed.
7.5. Incompatibility with Other Services.
7.5.1. Non-Voice Equipment Limitations. You acknowledge and understand that the Service is 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, you waive any claim you may have against ElectriFax for interference with or disruption of such systems due to the Service.
7.5.2. Certain Broadband, Cable Modem, and Other Services. There may also be other services with which our Service may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Service will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
8. LENGTH OF SERVICE
8.1. Service Term. We provide the Service for term that you have signed up for. Your term begins on the date you first ordered service, “Subscription Date”, or the date we successfully process your payment, whichever is later. It is not the day you receive the Equipment you ordered or the first time you use the Service. You are purchasing the Service for the full service term as set forth in the Order.
8.2. Automatic Renewal. The terms of this Agreement shall automatically renew for the same term unless you cancel your Service before the end of the current service term. See Termination of Service Section 8.4. The renewal begins on the day after the last day of your term.
8.3. Our right to disconnect. We have the right to suspend or discontinue service generally, or to disconnect the Service, at any time. In addition, we reserve the right to immediately disconnect the Service at any time without notice due to non-payment or unlawful or inappropriate use of the Service or, in the event your use of the service in anyway jeopardizes the integrity of ElectriFax’s network. In the event of non-payment of services, your services will be terminated in accordance with the particular rules of the state in which the telephone number is registered.
8.3.1. All of charges owed at the time of disconnection will be immediately payable. We will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.
8.4. Termination of Service. In order to terminate the Service, contact our Customer Care Department, via email at BILLING@VOIPTOSAVE.COM prior to expiration of the current service term. Please refer to the ElectriFax Cancellation Policy posted on our Web site at WWW.VOIPTOSAVE.COM.
9.1. Ownership and Risk of Loss. You will own the Device and bear all the risk of loss, theft, or damage regardless of the payment schedule selected for services and devices. Minimum Commitment Contracts for services and devices may include early termination fees. Returns of non-defective devices outside of the initial 30 day moneyback guarantee period will not be accepted. Refer to the Cancellation policy for more information.
9.2. Promotional Devices. Devices included in a service offering at no charge may be previously used equipment. Devices not returned upon cancellation of the Service will be charged to the customer. See Cancellation policy for details.
9.3 Replacement of a Defective Device Equipment and devices purchased from ElectriFax will be covered by their respective factory warranties only. ElectriFax does not offer any warranty in addition to, or in replacement of any factory warranties. Prior to returning the equipment, you must contact ElectriFax at (718) 393 – 5570 so that ElectriFax may determine whether a defect exists and to receive an RMA number, which is required to be submitted along with the return. You must ship the equipment to the manufacturer at the address provided by ElectriFax in accordance with all RMA procedures. You have 7 days after receipt of an RMA to ship the equipment back to the manufacturer at the address we provide. You must pay all shipping fees. Once the manufacturer has received the equipment, a replacement will be sent to you. 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 you received them), then ElectriFax will charge you for the second device or for the missing parts.
9.4. Receipt of damaged devices. If you receive cartons or devices that are visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. You must also keep the original carton, all packing materials, and parts in the same condition in which you received them from the carrier. You must then contact our customer care department immediately at 212-477-7100 for return instruction.
9.5. Tampering with the Device. You may not change the electronic serial number or equipment identifier of your Device or perform a factory reset of your Device without first getting our written consent.
9.6. Prohibited Devices. You are prohibited from using ElectriFax services with any devices other than ElectriFax-approved devices received from retailers or from us.
10. FEES AND CHARGES
10.1. We will publish fees and charges on our Web site. These fees and charges may change from time to time. New pricing will be effective upon the earliest of its posting to the Web site or after expiration of the statutory waiting period if any and may be applied to renewals of existing services. We may introduce new products and services at special introductory pricing. Introductory pricing will not be applied retroactively to existing services. At our discretion, we may change introductory pricing.
10.2. Billing increments. All billing policies are defined by the specific package the customer chooses. Please refer to the Web site for exact billing policies.
10.3. Taxes. Taxes Customer is responsible for, and shall pay are any applicable federal, state, municipal, local or other governmental sales, use, excise, Universal Service Fees, value-added, personal property, public utility and other taxes, fees assessments 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 Service or a Device. Such amounts are in addition to payment for the Service or Device and will be billed to you. If Customer is exempt from payment of any such taxes, you will provide ElectriFax with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date ElectriFax receives such certificate. No credits shall be issued for taxes levied or paid prior to ElectriFax’s receipt of any such exemption certificate.
10.4. Charges for Directory Calls (411). We will charge you $1.25 for each call you make to ElectriFax directory assistance.
10.5. Activation Fee. One-time activation fees and any other activation fees that may apply are specified on the Web site and vary by product and plan chosen.
10.6 Regulatory Recovery Fee. A Regulatory Recovery Fee may be charged monthly to offset costs incurred by ElectriFax 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.
10.7 Reinstatement Fee. Reinstating any service deactivated for non-payment of services may result in a reinstatement fee (must specify exact amt)-up to $25.
11. BILLING AND PAYMENT
11.1. Billing. We will charge you in advance for each month during the term of service. When you subscribe to the Service, you must give us a valid email address and a payment method (credit card) that we accept. We reserve the right to stop accepting your payment method or your payments. You must advise us at once if your payment method expires, you close your account, your billing address changes, your email address changes, or your payment method is cancelled and replaced on account of loss or theft. Except for usage-based charges, which are billed in arrears, we will bill in advance to your payment method all charges, fees, taxes assessments, and surcharges for each month of the service term. We will bill monthly as due immediately usage-based charges and any other charges which we decide to bill as due immediately. Bills will be posted to the office manager portal and emailed to the email address on record.
11.2. Payment. When you subscribe to the Service, you authorize us to collect from your payment method. This authorization will remain valid until thirty (30) days after you terminate our authority to charge your payment method and you herein authorize us to charge your payment method for any charges billed in arrears notwithstanding the fact that your service has been terminated.
11.3. Collection. If we disconnect the Service, you will remain liable to us for all charges under this agreement and all the costs we incur to collect these charges, including, without limitation, collection costs and attorney’s fees. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest, charges due to insufficient credit, and merchant fees assessed to ElectriFax for any rejection or reprocessing of a charge.
11.4. Notices You understand that it is difficult for us to distinguish between credit and debit cards. You agree to waive your rights under Regulation E to receive ten (10) days advance notice from us regarding the amount that we will debit from your account. While we may send you messages about your billing from time to time, we are not obligated to do so. We may change or cease our messages at any time without notice to you.
11.5. Billing Disputes You must notify ElectriFax in writing within seven (7) days after receiving your credit card statement or from the time funds are debited from your bank account if you dispute any ElectriFax charges on that statement or that have been debited from your account, or such dispute will be deemed waived. Notification of all billing disputes shall be sent to the following address: BILLING@VOIPTOSAVE.COM.
12. PRICING AND PAYMENT.
12.1. Prices and Fees. ElectriFax fees and charges for the Service are supplied to you during the ordering process unless otherwise provided for in this Agreement. You agree to pay the applicable one-time and recurring charges. You further agree that any taxes and other charges, including but not limited to, account setup fees, Adapter fees, Equipment charges, shipping and handling and other nonrecurring charges will be charged to your credit card. Recurring charges will be billed and automatically charged to your credit card on the first day of every billing cycle. Your billing cycle will begin on the anniversary date of your subscription date as defined in section 8.1.
12.3. YOU AGREE THAT WE MAY CHARGE YOUR CREDIT CARD FOR ALL AMOUNTS DUE TO US WITHOUT ADDITIONAL NOTICE OR CONSENT. You agree to provide a credit card and not a debit card. If your card is a combination credit card/debit card, you authorize us to use it as a credit card. You also agree to indemnify us for any claims or expenses resulting from providing a debit card instead of a credit card. If your credit card is declined, is invalid or payment is not made by the issuer of your credit card at the time that a charge is attempted, you will not be able to use the Service until your account is paid in full. (911??)
12.4 Credit Balance Account. Your credit balance account has been established to cover incidental charges on your account that are not covered by your subscription fee. For example, international calls, toll free charges, Directory Assistance calls and taxes related to these calls are automatically charged to your credit balance account. A certain credit limit will be set on your account based upon your service plan and credit history. When the balance of your credit account reaches the credit limit, your account will be unable to make additional calls until the balance is paid down. You can make payments to reduce your credit balance account at any time through your customer portal. Any credit balance used as of your subscription renewal or monthly anniversary date will be charged to the credit card on file.
12.5. Discontinuation of Service for Nonpayment. The Service to you may be denied or discontinued without notice (?) at any time in the event your credit card provider denies or discontinues providing credit to you for any reason, or you fail to provide us with a new credit card expiration date before the existing one expires. If your credit card fails for any reason during the ordering process, or any regular or monthly billing process, you will have 24 hours to provide ElectriFax your new credit card information. If the credit card issue is not resolved within 48 hours, ElectriFax will deactivate the Service. If your credit card is approved within 24 hours, your calling plan and billing cycle will remain unchanged. We reserve the right upon notice to modify the per minute calling plan at any time. You agree to pay all charges owed to ElectriFax, including but not limited to the reinstatement fee for reactivated services. In the event ElectriFax utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all expenses incurred to recover such monies, including attorneys’ fees.
12.6. Promotions. ElectriFax may limit the number of promotions you may be eligible for in a given period. Promotions may be cancelled by ElectriFax at any time.
12.7 Cancellation Policy. ElectriFax cancellation policies are outlined in the Cancellation Policy posted at our Web site at VOIPTOSAVE.com and are incorporated into this policy with this reference. All cancellation requests must be submitted in the form of an email ticket to BILLING@VOIPTOSAVE.COM and must be made prior to the expiration of the Service term. See the cancellation policy for details. Changes to the Cancellation Policy may be made at any time without notice to you and is effective upon posting to our Web site.
13. Acceptable Use Policy. You agree to comply with the ElectriFax Acceptable Use Policy (“AUP”) which is posted on our Web site at VOIPTOSAVE.com and is incorporated into this policy with this reference. Changes to the AUP may be made at any time without notice to you and is effective upon posting to our Web site.
14. MANAGEMENT OF YOUR DATA AND COMPUTER.
14.1. System Management and Service Performance. You are solely responsible for obtaining, installing, configuring and maintaining suitable equipment, including your 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 Service and to operate your computer. ElectriFax will only provide technical assistance with respect to your ElectriFax-provided Adapter.
14.2. Monitoring of Network Performance. ElectriFax automatically measures and monitors network performance. We also will access and record information about your computer’s profile and settings and the installation of the Software in order to provide customized technical support. No adjustments to your computer settings will be made without your permission. You hereby consent to ElectriFax’s monitoring of your Internet connection and network performance, and the access to and adjustment of your computer settings, as set forth above, as they relate to the Service.
15. LIMITATION ON WARRANTIES, REMEDIES AND LIABILITY, INDEMNIFICATION
15.1.1 ElectriFax MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICE OR DEVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. ElectriFax DOES NOT WARRANT THAT THE SERVICE OR DEVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. ElectriFax DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. CUSTOMER AGREES THAT IT ACCEPTS THE DEVICE “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND FROM ElectriFax 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 ElectriFax TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
15.1.2. NO CREDIT ALLOWANCES FOR INTERRUPTION OF ElectriFax SERVICE. WE WILL NOT GIVE YOU CREDIT FOR ANY INTERRUPTION OF ElectriFax SERVICE, INCLUDING INTERNATIONAL CALLING SERVICES.
15.2. LIMITATION OF LIABILITY
15.2.1. IN NO EVENT SHALL ElectriFax BE LIABLE TO YOU, YOUR REPRESENTATIVES, OR AUTHORIZED ASSIGNS OR ANYONE ELSE 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 SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICE, 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. NOR SHALL ElectriFax BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICE, 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 ElectriFax OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND ElectriFax’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. ElectriFax SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO ElectriFax’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 ElectriFax’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. ElectriFax’S LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD. 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 ElectriFax WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE TO REIMBURSE ElectriFax 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 ElectriFax TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
16. INDEMNIFICATION AND WAIVER OF CLAIMS
16.1.1. YOU ARE LIABLE FOR ANY AND ALL USE OF THE SERVICE AND/OR DEVICE BY YOURSELF AND BY ANY PERSON MAKING USE OF THE SERVICE OR DEVICE, AND YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS ElectriFax AGAINST ANY AND ALL LIABILITY FOR ANY SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS ElectriFax 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 OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, 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 FROM OUR GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT. . THIS SECTION SHALL SURVIVE THE AGREEMENT.
17. CONTENT You are liable for any liabilities that may arise from the content you transmit to any person, whether or not you authorize it, using the Service or Device. You promise that you and anyone who uses the Service and all your and their content comply at all times with all laws, regulations, and written and electronic instructions for using the Service and the Device.
18. MISCELLANEOUS LEGAL CONSIDERATIONS
18.1. Governing Law This Agreement and the relationship between you and ElectriFax shall be governed by the laws of New York without regard to its conflict of law provisions.
18.2. No Waiver of Rights Our failure to exercise or enforce any right or provision of this agreement will not constitute a waiver of the right or provision. ElectriFax reserves all of its rights at law and equity to proceed against anyone who uses the Services or Device illegally or improperly. All determinations by ElectriFax under this Agreement and exercise of its rights are made and done in our sole and absolute discretion.
18.3. No Third Party Beneficiaries If you are not a party to this Agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action. This Agreement does not create any other third party beneficiary rights
18.4. Entire Agreement This Agreement, the order, the applicable service description, the AUP, or any of the references herein to the content of ElectriFax’s website constitutes the entire agreement between you and ElectriFax and govern your use of the Service, superseding any prior agreements between you and ElectriFax and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No changes to this Agreement, except as authorized herein, shall be binding upon either you or ElectriFax unless they are signed by the parties.
18.5. Severability If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. This invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this agreement.
19. DISPUTE RESOLUTION AND BINDING ARBITRATION
19.1. It is important that you read this entire section carefully. This section provides for resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury.
19.2. Arbitration ElectriFax and you agree to arbitrate any and all disputes and claims between you and ElectriFax. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes, but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between you and ElectriFax, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision. References to “ElectriFax,” “us” and “you” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this agreement or any prior agreements between you and ElectriFax.
19.3. Informal Resolution of Disputes Our customer care department can resolve most customer concerns quickly and to the customer’s satisfaction. If you have a dispute or claim against us, you should first contact the ElectriFax customer care department at (800) 983-4289. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved as set forth below.
19.4. Formal Notice of Disputes A party who intends to seek arbitration must first send to the other party a written Notice of Dispute.
19.4.1. A Notice of Dispute to ElectriFax must be sent to ElectriFax by certified mail addressed to 1000 Stanley AVE, Brooklyn NY 11208.
19.4.2. A Notice of Dispute to you must be sent to you by certified mail at the last mailing address that you registered with ElectriFax.
19.4.3. The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and ElectriFax do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice of Dispute is received, you or ElectriFax may commence an arbitration proceeding. The amount of any settlement offer made by you or ElectriFax shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or ElectriFax is entitled.
19.5. Arbitrator and Arbitral Rules The arbitration shall be administered by the American Arbitration Association (“AAA”). You may contact the AAA by telephone at 1-800-778-7879, by email at Web firstname.lastname@example.org, or by mail at 335 Madison Avenue, Floor 10, New York, New York 10017. The arbitration shall be governed by the AAA’s Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879.
19.6. Waiver of Jury Trial You and ElectriFax agree that, by entering into this agreement, you and ElectriFax are waiving the right to a trial by jury.
19.7. Waiver of Class Actions You and ElectriFax 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. You and ElectriFax agree that you and ElectriFax may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You and ElectriFax agree that, unless you and ElectriFax agree otherwise, 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. If this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.
19.8. Statute of Limitations You must contact us within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to section 8 of the agreement), or you waive the right to pursue a claim based upon such event, facts, or dispute.
19.9. Exceptions to Arbitration Agreement You and we agree: (a) you may take your dispute to small claims court, if your dispute qualifies for hearing by such court; (b) if you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement; (c) you or we may take any disputes over the validity of any party’s intellectual property rights to a court of competent jurisdiction; (d) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and (e) either you or we may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of you or ElectriFax, pending the completion of arbitration.
19.10. Modification of Arbitration Provision Despite section 20 or any other provision in this agreement to the contrary, if ElectriFax makes any substantive change to this arbitration provision, you may reject any such change and require ElectriFax to adhere to the language in this provision.
21. EXPORT COMPLIANCE. You agree to comply with U. S. export laws concerning the transmission of technical data and other regulated materials via the Service. You agree to comply with applicable local, state and federal regulations governing the locality in which the Device and Services are used.
22. ASSIGNMENT. ElectriFax may assign all or part of its rights or duties under the Agreement without notifying you. If we do that, we have no further obligation to you. You may not assign the Agreement or the Service or Device without our prior written agreement.
23. SURVIVAL. The provisions of this Agreement relating to indemnification, limitations on liability, warranty limitations and disclaimers, resolution of disputes, billings and your obligation to pay for the Service provided and any additional usage charges, shall survive the termination of the Agreement and the termination of the Service.
24. CALEA. ElectriFax intends to fully comply with the Communications Assistance for Law Enforcement Act (“CALEA”). By using the Service, you hereby agree and consent to ElectriFax’s right to monitor and otherwise disclose the nature and content of your communications if and as required by CALEA without any further notice to you.
25. FORCE MAJEURE (EVENTS BEYOND ElectriFax’S CONTROL) ElectriFax shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of ElectriFax’s best efforts.
26. SOFTWARE COPYRIGHT Any software used by ElectriFax to provide the Service and any software provided to you in conjunction with providing the Service is protected by copyright law and international treaty provisions. You may not copy the software or any portion of it.
27. COPYRIGHT AND TRADEMARK; COPYRIGHT INFRINGEMENT; DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE
Our Web site content, our materials, services, logs, service marks and trademarks are protected by trademark, copyright, or other intellectual property laws, and international treaty provisions. Infringement by you may result in civil or criminal prosecution.
Once any of the Onboarding Agreements have been executed, by Customer, all of the Agreements shall be binding on the Customer for the initial term. If, within the initial thirty (30) days after executing any of the Agreement(s) Customer elects to cancel the Agreement(s), Customer shall pay to ElectriFax an early termination fee as follows: 1) MRC: The amount of the monthly recurring charge (“MRC”) for the first month plus any installation and set-up incurred by ElectriFax. If Customer cancels thirty (30) days after execution, Customer shall pay a penalty of 50% of the total contractual commitment remaining at the time of the cancellation. In addition to the MRC, Customer shall be responsible for any Non-Recurring Charges (“NRC”) as follows: If cancelled within thirty (30) days following execution Customer shall pay a Restocking Fee equal to 30% of the cost of the equipment. If cancelled after thirty (30) days the Restocking Fee shall be assessed at 90% of the cost of the equipment.
If Customer ordered a T-1 Line or internet circuit as part of the service that he ordered from ElectriFax and cancelled the order prior to installation, Customer shall be charged a $150.00 Processing Fee. If Customer cancels the T-1 or internet circuit following installation, Customer shall pay 100% of the remaining contractual amount.
ElectriFax ONSITE TERMS
Onsite installation assistance (placement of phones and server, user training)
Cat 5e or better cabling to each IP telephone
Ample, grounded power for each server
UPS (Uninterruptible Power Supply) and fault protection is highly recommended
Internet or Wide Area Network (WAN) to support desired remote or interoffice VoIP, including appropriate firewall configuration and Quality of Service mechanisms
ElectriFax SUPPORT DESCRIPTION:
30 days of extended care after installation
One year of technical support for products sold or installed by ElectriFax
Includes one Silver Subscription for each telephone and analog station port
Administrator or IT support (some technical capability required)
Remote, email, web, and business hour telephone support (business hours are Monday through Friday from 9:00 AM to 5:00 PM New York time)
Onsite time and materials labor is $125.00 per hour plus travel
ElectriFax hereby agrees to support the equipment as listed. This contract is subject to the following terms and conditions:
1) Duration: shall be effective from the date of installation and shall remain in effect for one (1) year or until terminated as set forth in this agreement.
2) Performance: ElectriFax agrees to exercise Digium and other ElectriFax manufacturers’ (hereafter Manufacturers) warranties in order to maintain telephone system in good working order when system subjected to normal use and service, as long as customer shall not be in default of any provision of this agreement between the parties. ElectriFax agrees to repair or replace equipment which has become defective through normal wear and usage. This ElectriFax Care Agreement does not include labor and material costs for relocation, rearrangement, addition to or removal of equipment, for which the customer agrees to pay additional charges in accordance with ElectriFax current rates for such services. Hourly Rate – Per Call: ElectriFax will provide support during our regular business hours (9:00 am to 5:00 pm, Monday to Friday excluding Holidays). The hourly labor rate is $125.00 per hour (or current rate) minimum two (2) hour charge, does not include a minimum of one (1) hour for travel time, see travel time rate below. Overtime Rate – Per Call / Hourly Rate: ElectriFax will provide support after normal business hours (9:00 am to 5:00 pm, Monday to Friday excluding Holidays) upon customer’s request. The hourly labor rate is $187.50 per hour (or current rates) with a minimum of two (2) hour charge, does not include a minimum of one (1) hour for travel time, see travel time rate below. Travel Time Rate – Per Call / Hourly Rate: ElectriFax travel rate is $45.00 per hour and shall not be billed when servicing systems remotely. Travel fees such as airfare are extra.
3) Exclusions: This agreement does not cover parts damaged due to lightning, water, flood, storm or any other force of nature, power surges or brownouts, accident, negligence, vandalism, abuse, misuse, theft, work performed on or modifications made to equipment by any person not employed by ElectriFax Customer’s failure to maintain the environmental and/or electrical conditions for the equipment set forth in the manufacturer’s specifications, damage or diminution caused by any Host System to which the equipment is attached, or damage or diminution caused by peripheral devices attached to the equipment. Any damage to, or destruction of the equipment or any portion thereof, occurring to the fault, negligence or omission of the customer shall void this contract and shall be the responsibility of the customer, to be covered under ElectriFax Standard Hourly Rates.
4) ElectriFax, a New York company, agrees to assist with Manufacturers’ warranties to replace standard parts and to supply properly trained technicians to service the customers’ telecommunications systems. Customer agrees that express shipping (next day delivery) will be billed to the customer’s account should next day replacement be desired and a part not be available in stock. ElectriFax will exhaust all ElectriFax distribution channels in an effort to replace parts.
5) Equipment Failure defined: ElectriFax will respond to an emergency service call (defined as no incoming or outgoing telephone service or primary answering position out of service), and for regular maintenance services (non-emergency) during normal business hours (9:00am to 5:00pm Monday through Friday, except weekends and holidays). Non-Emergency service outside of normal business hours will be provided (at customer’s request) during the warranty period at ElectriFax current rates for such services. Target response time is within four business hours.
6) Time and Place of Maintenance Work: Maintenance work shall be performed remotely using ElectriFax approved remote access technology. At the sole discretion of ElectriFax work may be performed at the location of the equipment (or at a ElectriFax location) and customer shall furnish air conditioning, heat, light and power at these locations. ElectriFax regular business hours are 9:00am to 9:00pm, Monday through Friday New York time excluding holidays. Services performed due to customers operational requirements, outside the aforementioned normal working hours will be invoiced in accordance with rates indicated in the above agreement.
7) Reporting trouble: Trouble issues may be reported by email to email@example.com or by telephone to (718) 393 – 5570.
8) Customer Assistance: Customer agrees to furnish the ElectriFax personnel or authorized representatives all pertinent information related to the reported malfunction and to afford them at their personal request, access to the equipment as required for the performance of this agreement. Customer agrees to provide remote access to the maintained equipment.
9) Unauthorized Maintenance: If other than ElectriFax authorized representatives perform any repair or maintenance service on the equipment while the equipment is under the terms of this agreement, which in the opinion of ElectriFax increases the maintenance of the covered system, ElectriFax will notify the customer and will adjust the monetary terms of this agreement at ElectriFax its own discretion. ElectriFax at its option, may terminate this agreement at any time.
10) Limitation of Liability: ElectriFax shall be excused from performance of its obligations under this contract to the extent that it is prevented, hindered, delayed or otherwise made impracticable by reason of acts of God, acts of Government, acts of omissions of third parties, flood, storm, riot, vandalism, fire, lightning, strike, non availability or backorder of parts, explosion, war, civil strife or any other cause beyond reasonable control of ElectriFax. During the term of the contract, ElectriFax will maintain any part supplied under this contract on the same terms and conditions as the equipment. ElectriFax disclaims all other warranties and conditions, expressed implied, statutory of any nature whatsoever, concerning the services and materials provided in liability, negligence or otherwise for any punitive, special, indirect, incidental or consequential damages for loss; damage or expense directly or indirectly arising from use of or inability to use the equipment either separately or in combination with any other equipment or from any other cause whether or not ElectriFax has received notice of the possibility or certainty of such damages or losses, including but not limited to loss of profit and/or loss of use.
11) Payment: The annual service maintenance charges set forth in the attached quote shall be due and payable for this Support Agreement to be valid. Unless otherwise specified, payments shall be sent to ElectriFax, 694 Myrtle Ave #150 Brooklyn NY 11205.
12) Toll Fraud Disclaimer/Warning: ElectriFax agrees to assist customer with manufacturer recommendations and ElectriFax will assist in implementation of theft and security counter measures and recommendations that if followed by the customer, will help minimize the risk to toll fraud, but ElectriFax cannot insure that toll fraud will not occur. ElectriFax makes no representations, claims, guarantees, or express or implied warranties that it can configure, program, or maintain equipment in a manner so as to make it immune from fraudulent intrusions into and/or unauthorized use of the system, including but not limited to DISA, Auto Attendant, Voice Mail, RMATS, 800 and 900 services, as well as 10XXX numbers as possible. Customer hereby assumes all risk of such fraudulent or unauthorized use or intrusion. ElectriFax makes no representations, claims, guarantees expressed or implied that it can maintain this equipment in a manner so as to make it immune from, or prevent unlawful and/or unauthorized utilization of the equipment that may result in the invasion of one’s rights to privacy. ElectriFax hereby advises customer that such unlawful and/or unauthorized use is possible and customer assumes the risk of such usage.
13) Local Service Provider, WAN service problems: ElectriFax will not charge customer for the diagnosis of a local service provider (e.g. Qwest) related call if the problem originates with the local service provider, and the diagnosis takes one hour or less in duration. ElectriFax will contact the local service provider or their authorized agent to schedule the local service provider’s repair service to correct problem. If diagnosis is in excess of one hour for a local service provider problem, ElectriFax will provide service at an agreed upon discounted rate not to exceed 85% of our regular rates.
14) Modifications, Additions, or Changes (MAC): of customers equipment may be made by mutual agreement of the parties named above, and the Support Agreement may be amended accordingly. Since this Support Agreement is governed by the laws of the State of New York all amendments must be in writing and be signed, both parties. 15) Authority to Sign: The person signing this Agreement on behalf of the Customer hereby warrants that they have full and complete authority from said corporation, proprietorship, or partnership, to sign this Agreement and to obligate the corporation, proprietorship, or partnership hereunder. Said Party shall be liable for all sums that may be due and owing to ElectriFax hereunder, including attorney’s fees and costs. This constitutes the entire agreement between the parties.