Customer Terms of Service Agreement
Last Modified: December 14, 2020
These Cytracom Terms of Service andConditions, together with any exhibits or addendums, proposals, order forms, service activation forms, price schedules, policies, or other supplemental documents incorporated herein by reference and published by Cytracom from time to time (collectively, the “Agreement”) constitutes the entire agreement between Cytracom, LLC (“we,” “us” or “Cytracom”) and the party identified in the associated proposal or service activation form (“you,” “user,” “Customer”or “Subscriber”) regarding Cytracom’s Services (defined herein).
ANY ONE OF THE FOLLOWING ACTIONS CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THESE TERMS OF SERVICE AND CONDITIONS: (1) SIGNING A PROPOSAL OR SERVICE ACTIVATION FORM INDICATING THAT YOU HAVE READ AND ACCEPTED THE TERMS OF SERVICE AND CONDITIONS, (2) ACCEPTING THE TERMS OF SERVICE AND CONDITIONS ELECTRONICALLY DURING THE ORDERING PROCESS AND/OR UPON LOGGING ON TO USE THE SERVICES, OR (3) USING THE SERVICES AS DESCRIBED HEREIN. THROUGH ANY OF THESE ACTIONS YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT.
1.1 “Device” or “Equipment” means any IP telephone, multimedia terminal adapter, analog telephone adapter, switch, router, or any other IP connection device provided by Cytracom or used in conjunction with the Services.
1.2 “Documentation” means any documents, including user manuals, relating to the Services that are made available to Customer by Cytracom in any medium or manner.
1.3 “Services” means those services provided to you by Cytracom as described in any proposal, order form, or service activation form, or addendum thereto, including but not limited toVOIP services and any associated software, hardware or web-based platform.
1.4 “Software” means any proprietary software owned or licensed by Cytracom, or sub licensed by Cytracom under thisAgreement, which is provided to Customer or otherwise used by Customer in conjunction with the Services.
2. YOUR REPRESENTATIONS. By activating or using the Services and entering into this Agreement, you represent and warrant that you are at least eighteen (18) years of age or of legal age to enter into this Agreement. You represent and warrant that your primary residence or business address is in the United States or Canada. 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 providing false or incorrect information may result in delivery delays, the suspension or termination of the Services and the inability of a 911-dialed call to be correctly routed to emergency service personnel, as further explained below.
3.1 General. The Proposal,Service Activation Form, or on-line Order Form, which you and Cytracom agreed to (each, a “Service Plan Document”) and this Agreement comprise the entire agreement between you and Cytracom, and supersede all prior terms and conditions and all other prior or contemporaneous understandings, agreements and communications. You understand and acknowledge that Cytracom shall only provide Services to you pursuant to a Service Plan Document entered into by and between you and Cytracom. Each Service Plan Document is governed by thisAgreement and is hereby incorporated herein by reference. In the event of any conflict between thisAgreement and the terms of a Service Plan Document, the Service Plan Document shall govern. Cytracom shall provide you with the Services described in the Service Plan Document and as set forth in this Agreement
3.2 Restrictions. You 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 orServices 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 orServices in any auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting, or in any way to provide services or process data for the benefit of, or on behalf of, any third party other than the Customer; (e) use the Software or Services in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or in any similar way; (f) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Software or Services; or (g) transfer the Services to another party without the prior written consent ofCytracom. If we believe that you have used the Services or the Device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. Cytracom is able to provide the User, orLogin name, of the account through which any unlawful or inappropriate activity was conducted. You hereby consent to our forwarding of any such communications and information to the appropriate authorities. In addition,Cytracom will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.
3.4 Content. You are solely responsible for any liability that may arise from the content transmitted to any person, whether or not authorized by you, using the Services or the Device. You agree that you and anyone who uses the Services shall comply at all times with the laws, regulations, and written and electronic instructions for using the Services and the Device.
3.5 Storage ofInformation. Cytracom is not obligated to store your communications logs, voicemails, faxes, e-mails, or other messages. Any storage is done only for your convenience. We have 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 theServices. Cytracom may establish limits as to the size of communications that may be transmitted or stored and the duration for which we store any communications.
3.6 Copyright; Trademark. TheServices, and any firmware or software used to provide the Services or provided to you in conjunction with providing the Services, or embedded in the Device, the Documentation, our web site, and all content, information, documents, and materials on our web site (collectively, the “content”) are our exclusive property and are protected by copyright, trademark, and other intellectual property laws and international treaty provisions. All corporate names, service marks, trademarks, trade names, logos, and domain names (collectively, the “marks”) are and will at all times remain our exclusive property. Nothing in this Agreement grants you any right or license to use or reproduce the content or the marks without our express written permission.
3.7 Use Outside theUnited States and Canada. Although we encourage you to use of the Services to place calls to foreign countries, we do not presently offer or support the Services in any countries other than theUnited States and Canada. If you use the Services or the Device outside of the United States or Canada, you will be solely responsible for any violations of local laws and regulations resulting from such use. Cytracom reserves the right to disconnect Services immediately if we determine, in our sole and absolute discretion, that you have used the Services or the Device outside of the United States or Canada.
3.8 Theft. You shall notify us immediately in writing or by calling our customer support line, if the Device is stolen or if you become aware at any time that your Services have been stolen or are otherwise being used in a fraudulent or unauthorized manner. You must provide your account number and a detailed description of the circumstances of the theft or fraudulent or unauthorized use. Failure to provide this information in a timely manner may result in the termination of your Services and additional charges to you. Until such time as we receive notice of the theft or fraudulent or unauthorized use, you will be responsible for all use of the Services and all fees incurred.
4. SERVICE DISTINCTIONS. TheServices are not telephone services, and we provide them on a best efforts basis. Important distinctions exist between telephone service and the Services, including but not limited to different regulatory treatment and potential limits on 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.
4.1 Emergency Services– 911 Dialing. You acknowledge and understand that Cytracom 911 dialing is different than traditional 911 service. A full 911 disclosure is attached as Addendum A to this Agreement. ACTIVATING YOUR E911 SERVICES VIA CYTRACOM’S WEBSITE IS AN ACKNOWLEDGEMENT THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT, INCLUDING ADDENDUM A – CYTRACOM’S 911 DISCLOSURE AGREEMENT.
4.2 No 0+ Or Operator Assisted Calling. TheServices 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 x11services (other than as expressly set forth herein) in one or more service areas.
4.3 No Directory Listing. The phone numbers you get from us will not be listed in any telephone directories. Phone numbers you transfer from your local phone company may be listed. Reverse directories may not permit the use of your phone number to look up your address.
4.4 Incompatibilities. 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, you waive any claim you may have against Cytracom for interference with or disruption of such systems due to the 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. We do 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.
4.5 Use Outside theU.S. As previously noted, there are limitations with regard to the Services’ access to 911dialing. The Services do not provide access to emergency services in any country outside of the United States. Cytracom disclaims any obligation to provide you with access to emergency services in any jurisdiction other than the United States.
5. DEVICES AND EQUIPMENT
5.1 Ownership and Device Credits. At the time you activate the Services, you will be given a number of credits corresponding to the number of seats purchased for your account, each credit being a dollar amount sufficient to obtain a standard Device (“Credit”). You may exchange multiple Credits for the corresponding number of standard Devices. You may also choose to purchase one or more upgraded Devices that deviate from the standard Device and will be charged an additional fee for such upgraded Device. You will own the Device and bear all risk of loss, theft, casualty, or damage to the Device, from the time it is shipped to you. In the event your Device does not work properly, you must promptly notify Cytracom and return it in exchange for a replacement Device of the same or higher value, at Cytracom’s sole discretion. Your only remedy for a defective Device is a replacement Device. Thirty-six (36) months following the activation of your Services, you will be allotted additional Credits corresponding to the number of seats purchased for your account and these Credits may be redeemed for upgraded or replacement Devices. To receive the maximum amount of your additional Credits, you must return your current Devices to Cytracom in conjunction with redemption of the Credits. In the event the Services are terminated, we reserve the right to request return of your current Devices or repayment of the full amount of your most recently redeemed Credits.
5.2 Usage. The Device is exclusively for use in connection with the Services. You have not been granted any license to use the Software other than a nontransferable, revocable license to use the Software in object code form (without modification) strictly in accordance with the Agreement. In the event you choose to utilize any device in conjunction with the Device that is not provided to you by Cytracom, including but not limited to interface devices, Cytracom shall have no responsibility for any damages you suffer as a result of using such additional device and you shall indemnify and hold us harmless against any and all liability arising out of such use. You shall not change the electronic serial number or equipment identifier of the Device or use the Device in a manner inconsistent with its intended purpose. You are solely responsible for maintaining theDevice and any additional equipment, including any necessary system or software upgrades, patches, or other fixes, which are or may be necessary to access theServices.
5.3 Customer-Provided Devices. Customer who utilize the Services without a Device provided by Cytracom are required to obtain approval for their device from Cytracom in writing.
6. BILLING AND FEES
6.1 Billing. At the time the Services are activated, you must provide a valid email address and a credit or debit card number that is accepted by Cytracom. Cytracom invoices for Services on a monthly basis during the term set forth in the Service Plan Document. Your initial invoice may be paid by check. All subsequent invoices will be billed to the credit or debit card we have on file. Cytracom reserves the right to stop accepting credit or debit cards from certain issuers and to request that you provide a different credit or debit card for billing purposes. Other than as provided herein, all charges will be billed on a monthly basis in advance to your credit or debit card, including but not limited to activation fees, monthly fees for Services, international usage charges, advanced feature charges, equipment purchases, termination fees, shipping and handling charges, applicable taxes, and surcharges. The amount of applicable fees and charges will be provided on your Service Plan Document, as well as your invoices, and may change from time to time. Monthly invoices will be sent to the email address you have provided. Cytracom reserves the right to charge your account more frequently than once per month in the event your charges exceed $1000. In the event your credit or debit card expires, you close your account, your billing address changes, or your credit or debit card is cancelled or replaced due to loss or theft, you must advise us immediately to avoid suspension or termination of the Services. 6.2Notices. In the event you provide a debit card for automatic withdrawals of your monthly charges, you 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. We may send notices to you periodically regarding your billing, but we are not obligated to do so and may cease or change the notices at any time.
6.3 Automatic charges. CYTRACOM RESERVES THE RIGHT, ANDYOU HEREBY EXPRESSLY AUTHORIZE CYTRACOM TO CHARGE YOUR CREDIT OR DEBIT CARD FORALL AMOUNTS DUE TO CYTRACOM WITHOUT ADDITIONAL NOTICE OR CONSENT. This authorization remains valid until thirty (30) days after we receive written notification from you terminating our authority to charge your credit or debit card. Upon receiving this notification we will charge your credit or debit card for the termination fee, if applicable, and any other outstanding charges and terminate the Services. We may terminate the Services at anytime in our sole and absolute discretion if any charge to your credit card is declined or reversed, your credit or debit card expires and you haven’t provided a new credit or debit card, or in the event of non-payment of any account charges. All fees are quoted and to be paid in United States dollars. The foregoing authorization shall not affect your obligation to pay all sums owing to Cytracom if Cytracom fails to, is unable to, or refrains from charging any such payment on file. If a charge is not made by Cytracom for whatever reason, the payment to Cytracom may be late or past due.
6.4 Amounts. Fees and charges will be provided initially on your Service Plan Document and may change from time to time. New pricing will be effective the next day following posting to the website and will be applied to the next full monthly term.
6.5 Usage and Overages. All usage-based charges for the Services (including those charges based on number of users, number of locations, or otherwise) will be billed in increments that are rounded up to the nearest minute. Usage-based charges and any applicable overages (as described below) will be billed monthly in arrears. For the usage-based portion of the Services, your minute usage will be capped at the number of minutes equal to your aggregate number of users across all locations identified, multiplied by2500 minutes. By way of example only, if your Service Plan Document authorized10 users, your aggregate minute cap under the Service plan will be 25,000minutes. In the event that you exceed your aggregate minute usage cap under the terms of your Service Plan Document,Cytracom reserves the right to charge you for the applicable overages set forth on Cytracom’s Overage Rate Card, as may be amended by Cytracom from time to time, and which is incorporated herein by reference. Any overage charges applied asset forth on the Overage Rate Card shall be in addition to the other charges set forth in this Section 6.
6.6 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 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 amounts are in addition to payment for theServices will be billed to you. If you are exempt from payment of such taxes, you will provide us with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.
6.7 Billing Disputes. You must notify us 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 Cytracom 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 email address: billing@Cytracom.com.
6.8 Collection. In the event the Services are terminated, you remain fully liable to us for all charges incurred under this agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney’s fees.
6.9 Payphone charges. We reserve the right to charge you for any tolls or fees resulting from calls you receive from public pay phones.
6.10 Toll Free calls. If you elect to use any “TollFree” feature offered by Cytracom, we are entitled to recover from you any charges imposed on us either directly or indirectly in connection with toll free calls made to your number. We may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as deemed appropriate in our sole discretion. Unless otherwise agreed or otherwise indicated on Cytracom’s web site, Toll Free usage will be billed at$0.039 per minute.
6.11 Directory calls(411). You will be charged $1.50 for each call made to Cytracom directory assistance.
6.12 Conference Bridge calls. You will be charged $0.039 per minute for each caller who dials into a conference bridge operated by you. The per minute usage fee will be calculated based on the number of all participants, including both on network and off network participants.
7. REPRESENTATIONS ANDWARRANTIES
7.1 WARRANTIES. OTHER THAN AS EXPRESSLY SET FORTH INTHIS AGREEMENT, CYTRACOM MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICES OR DEVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, AND DISCLAIMS ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, ORANY WARRANTY ARISING BY USAGE OR TRADE, COURSE OF DEALING, OR COURSE OR PERFORMANCE, OR ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. CYTRACOM 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. CYTRACOM DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS, RESELLERS, 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 SERVICE AND DEVICE “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND INTHE EVENT OF ANY DEFECT. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE OR ANY PRICING THEREFOR, IF ANY, BY CYTRACOM, CYTRACOM’S WEBSITE, OR CYTRACOM’S AGENTS, REPRESENTATIVES, EMPLOYEES, OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND. 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 CYTRACOM TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
7.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL CYTRACOM 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, LOSSOF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICES, THE USE OFOR INABILITY TO USE THE SERVICES, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICES, ANY LOSS OF CUSTOMERS, LOSS OF BUSINESS OPPORTUNITIES, OR PERCEIVED REPUTATIONAL DAMAGE RESULTING FROM THE USE OF AND/OR INABILITY TO USE 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 USETHE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT. NOR SHALL CYTRACOM BE LIABLE FOR ANY DELAY OR FAILURE TO PROVIDE THE SERVICES, INCLUDING911 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 TOTHE 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,SERVICES, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO CYTRACOM OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND CYTRACOM’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. CYTRACOM SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO CYTRACOM’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 CYTRACOM’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. CYTRACOM’S LIABILITY FOR ANYACT OR OMISSION SHALL IN NO EVENT EXCEED THE SERVICE CHARGES WITH RESPECT TOTHE AFFECTED TIME PERIOD. THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, ANDANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT CYTRACOM WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE TO REIMBURSE CYTRACOM FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OFTHIS 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 CYTRACOM TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
7.3 INDEMNIFICATION. YOU ARE LIABLE FOR ANY AND ALL USEOF THE SERVICES 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 CYTRACOM AGAINST ANY AND ALL LIABILITY FOR ANY SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS CYTRACOM FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH,FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, LOSS OF CUSTOMERS OR BUSINESS OPPORTUNITIES, REPUTATIONAL 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 DIAL911 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 OFTHE DEVICE, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM OUR RECKLESSNESS OR WILLFUL MISCONDUCT. THIS SECTION SHALL SURVIVE THE AGREEMENT.
7.4 No Third Party Beneficiaries. No provision of this Agreement provides any person or entity not a party to thisAgreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
7.5 Recording Conversations. Cytracom provides a function that allows a user or subscriber to record individual telephone conversations. The laws regarding the notice and notification requirements of such recorded conversations vary from state to state. You are solely responsible for applying the local laws in the relevant jurisdiction when using this feature.
8. TERM AND TERMINATION
8.1 Term. TheServices are offered on a monthly basis or for such longer term as set forth in the Service Plan Document. The term begins on the day Cytracom activates your Services. Cytracom shall automatically renew the Services for additional terms as set forth in the Service Plan Document (and if not set forth in theService Plan Documents, for successive one (1) month terms) unless you provide Cytracom with written notice of an intention not to renew at least thirty (30)days prior to the end of the then-current term of Services. You are purchasing the Services for the full term as set forth in the Service PlanDocument. In the event that you attempt to terminate the Services prior to the end of the term set forth in the Service Plan Document (including any renewal period as set forth in this Agreement or in the Service Plan Document), you will be responsible for the full charges to the end of the then-current term, including, without limitation, un billed charges, all of which will immediately become due and payable.
8.2 Termination. We reserve the right to suspend, discontinue, or terminate the Services and this Agreement at any time and for any reason in our sole and absolute discretion. In the event that we terminate the Services without a stated reason, you will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month’s charges. If the Services are discontinued or terminated asa result of your breach of this Agreement, you will be responsible for the full charges to the end of the current term, including, without limitation, un billed charges and any applicable termination fee, all of which will immediately become due and payable.
8.3 Device. If the Services are terminated, we reserve the right to request return of your current Devices or repayment of the full amount of your most recently redeemed Credits.
8.4 Number Transfer. Upon termination of the Services, we may, in our sole and absolute discretion, release to your new service provider the telephone number that you ported (transferred or moved over) to us from your previous service provider and used in connection with the Services if your new service provider is able to accept such number, your account was terminated properly, your account is current and all charges and applicable termination fees have been paid, and you request the transfer at the time theServices are terminated.
9. DISPUTE RESOLUTION
9.1 Informal Resolution of Disputes. OurCustomer 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 CYTRACOM Help Center at (877) 411-2987 and provide in detail, including documents or analysis supporting your position, the basis of your claim. Customer care shall be provided with 14 days in which to research and respond to your claim. 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.
9.2 Mediation. In the event any dispute or claim is unresolved pursuant to Section 9.1, the matter will be submitted to a mutually agreeable and recognized mediation service and you and Cytracom will jointly participate in the mediation process. If settlement cannot be reached through mediation, you and Cytracom will have the right to take such action as deemed appropriate, subject to Sections 9.3 and 9.4.
9.3 Arbitration. Cytracom and you agree to arbitrate any and all disputes and claims between you and Cytracom arising out of or relating to the Services or the Device that remain unresolved following the procedures outlined in Section 9.1 and 9.2. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. You and Cytracom are waiving the right to a trial by judge or juryThis 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 Cytracom, 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“CYTRACOM,” “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 Services under this agreement or any prior agreements between you and Cytracom.
9.4 Formal Notice of Disputes. A party who intends to seek arbitration must first send to the other party a written “Notice of Dispute” setting forth in detail, including submission of supporting documentation, the grounds of your dispute. The Notice of Dispute to Cytracom must be sent to Cytracom, attention “Legal,” by certified mail addressed to 450 Century Pkwy, Suite 100, Allen, TX 75013. 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 Cytracom do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice ofDispute is received, you or Cytracom may commence an arbitration proceeding.
9.5 Arbitrator and Arbitral Rules. The arbitration shall be administered by the American Arbitration Association (“AAA”). The arbitration shall be governed by the AAA’s Commercial Dispute ResolutionProcedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement. The arbitrator’s decision will be based on the plain meaning of the relevant documents and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides, or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually. You may not bring claims as a plaintiff or class member in any purported class or representative proceeding. All claims for arbitration shall be submitted to and heard by an office of AAA in Collin County, Texas.
9.6 Statute of limitations. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or relating to the Services or the Device must be filed within six (6)months of the date of occurrence of the event or facts giving rise to the dispute, or you waive the right to pursue a claim based upon such event, facts, or dispute.
10. GENERAL PROVISIONS
10.1 Severability. In the event any portion of thisAgreement is held legally invalid or unenforceable, the remaining portions will remain valid and enforceable.
10.2 Entire Agreement. This Agreement, including all exhibits or addendums, proposals, order forms, service activation forms, price schedules, policies, or other supplemental documents incorporated herein by reference, including any Service Plan Document, as well as all future modifications, constitutes the sole agreement between you and Cytracom relating to the subject matter hereof and supersedes all previous writings and understandings.
10.3 Assignment. Cytracom 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 Services or Device without our prior written agreement.
10.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, United States of America, excluding its conflict of laws principles.
10.5 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.
10.6 Force majeure. Cytracom 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 Cytracom’s best efforts.
10.7 Privacy. Cytracom utilizes, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Cytracom is not liable for any lack of privacy which maybe experienced with regard to the Services. In accordance with applicable law, you hereby expressly agree that we may contact you via email, phone call, text message, or any other method of communication, and that we may use any information that you provide to us, for the purposes of fulfilling our duties under this Agreement as well as for marketing and promotional purposes, customer service purposes, system maintenance purposes, billing and collections purposes, survey purposes, and/or returning messages from you or your staff.Any and all phone, data, and other communications rates by your communications vendors may apply. You agree that we may disclose any information to comply with applicable law or regulation or with valid legal process including subpoenas, court orders, or search warrants.
10.8 Changes to this Agreement. Cytracom may change the terms of this Agreement from time-to-time. If we make any changes to the terms of this Agreement, we will notify you by revising the last updated date at the top of this Agreement, and, though no further notice shall be required, in some cases, we may provide you with additional notice (such as adding a statement to your invoices, sending you an email notification, or providing a banner notification on Cytracom’s website). Your continued use of the Services shall constitute your consent and agreement to, and acceptance of, the changes. Updated versions of the Agreement will be binding on you on the date they are posted as set forth herein. Updated versions of the Agreement will supersede all previous versions of the Agreement as well as any previously agreed upon terms of service to the extent they are inconsistent with the updated Agreement.
EMERGENCY SERVICES –911 DIALING
IF YOU ARE NOT COMFORTABLE WITH THE LIMITATIONS OF THE 911 DIALING SERVICE, YOU SHOULD CONSIDER HAVING AN ALTERNATE MEANS OF ACCESSING TRADITIONAL 911 OR E911 SERVICES OR TERMINATING THE SERVICES.
1.1 Non-Availability of Traditional 911 or E911 Dialing Service. The Services do not support traditional 911 or E911 access to emergency services in all locations. Where we do not offer traditional 911or E911 access, we offer a feature known as "911 Dialing" which is a limited emergency calling service available only on Cytracom -certified Devices or Equipment. The 911 Dialing feature may not work at all when used in conjunction with a Soft Phone, Virtual Numbers or Subscriber provided CustomerPremise Equipment. Our 911 Dialing feature is not automatic; you must separately take affirmative steps, as described in this Agreement and on our website, to register the address where you will use the Services in order to activate the 911 Dialing feature. You must do this for each Cytracom, LLCDevice that you obtain. The 911 Dialing feature of the Service is different in a number of important ways from traditional 911 or E911 service as described below. You shall inform any guests and other third persons who may be present at the physical location where you utilize the Service of (i) the non-availability of traditional 911 or E911, and (ii) the important differences in and limitations of the Cytracom 911 Dialing feature as compared with traditional 911 or E911 dialing. The documentation that accompanies each Device that you purchase may include a sticker concerning the potential non-availability of traditional 911 or E911 dialing (the "911Sticker") that may be obtained and utilized at your option. It is your sole responsibility, in accordance with the instructions that accompany eachDevice, to place the 911 Sticker on each Device that you use with the Services.If you require additional 911 Stickers, please email us at email@example.com with your account name and how many you need.
1.2 Registration ofPhysical Location Required. Foreach phone number that you use for the Services, you must register withCytracom the physical location where you will be using the Services with that phone number. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near your old address. You will register your initial location of use when you subscribe to the Services. Thereafter, you may register a new location by following the instructions from the "911" registration link on your Cytracom web account dashboard features page. For purposes of the 911 Dialing feature, you may only register one location at a time for each Device you use with the Services.
1.3 Confirmation of Activation Required. Your 911 Dialing feature will not be activated for any Device that you are using with theServices, unless and until you take the appropriate steps to activate the 911 Dialing feature for that Device.
1.4 How Emergency Personnel are contacted. We contract with a third party to use the address of your registered location to determine the nearest emergency response center and then forward your call to a general number at that center. When the center receives your call, the operator will not have your address and may not have your phone number. You must therefore provide your address and phone number in order to get help. Some local emergency response centers may decide not to have their general numbers answered by live operators 24 hours a day. If we learn that this is the case, we will send your call instead to a national emergency calling center and a trained agent will contact an emergency center near you to dispatch help. You hereby authorize us to disclose your name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location.
1.5 Service Outages. (a) Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Services, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Services, including 911 Dialing. (b) Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or ISPService. Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Services, including 911 Dialing, from functioning. (c) Service Outage Due to Suspension or Termination of YourCytracom, Account. Service outages due to suspension or termination of your account will prevent all Services, including 911 Dialing, from functioning. (d)Service Outages Due to ISP or Broadband Provider Blocking of Ports or OtherActs. Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Services are provided or otherwise impede the usage of the Services. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Services are impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Services, including the 911 Dialing feature, may not function. You acknowledge that Cytracom is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Services, and any loss of service, including 911 dialing that may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Services, you will continue to be responsible for payment of the Service charges unless and until you terminate the Services in accordance with this Agreement. (e) Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Services, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
1.6 Re-Activation Required if You Change Your Number or Add or Port New Numbers. 911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use foreach changed, newly added or newly ported phone number.
1.7 Activation Required for New or Added Devices. 911 Dialing does not function for any new Device added to your account, unless and until you take the appropriate steps to activate the 911 Dialing feature for that Device.
1.8 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls. There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Services as compared to traditional 911 dialing over traditional public telephone networks.
1.9 Possible Lack of Automatic Number Identification. It may or may not be possible for the local emergency personnel to automatically obtain your phone number when you use 911 Dialing. Our system is configured to send the automatic number identification information; however, one or more telephone companies, not us, route the traffic to the emergency response center and that center may not be capable of receiving and passing on that information. As a result, the operator who answers your 911 Dialing call may not be able to automatically obtain your phone number and call you back if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your phone number, or if the Services are not operational for any reason.
1.10 No Automated Location Identification. Inmost service areas, it is not possible at this time to transmit to the local emergency response center the address that you registered for 911 Dialing. You will need to state the nature of your emergency promptly and clearly, including your location (and possibly your telephone number), as the operator will not have this information. Emergency personnel will not be able to find your location if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your location, or if the Services are not operational for any reason.
1.11 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither Cytracom nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our recklessness or willful misconduct. You shall defend, indemnify, and hold harmless Cytracom, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorney's fees)by, or on behalf of, you or any third party relating to the absence, failure or outage of the Services, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Services to be able to use 911 Dialing or access emergency service personnel.