TERMS AND CONDITIONS OF SERVICE FOR END-USERS
This agreement (“Agreement”) is between Axion Communications and the End-User (“End-User”) of Axion Communications’ products or services. Any Axion Communications services or products (“Services”) made available to End-User shall be governed by the terms and conditions herein. By activating the Services, End-User acknowledges receiving, reading and understanding this Agreement and accepts the terms and conditions herein. End-User acknowledges that they are of legal age to enter into this Agreement.
1. TERMS AND CONDITIONS.
The terms and conditions stated herein are in lieu of and replace any and all terms and conditions set forth in any documents issued by End-User, including, without limitation, purchase orders and specifications. Any additional, different, or conflicting terms and conditions on any such document issued by End-User at any time are hereby objected to by Axion Communications, and any such documents shall be wholly inapplicable to any sale made or Service rendered hereunder and shall not be binding in any way on Axion Communications. No waiver or amendment to this Agreement or these terms and conditions shall be binding on Axion Communications, unless made in writing expressly stating that it is such a waiver or amendment and signed by a duly authorized representative of Axion Communications.
a. Term. The term of this Agreement (“Term”) shall commence on the date on which any of the Services are first functioning (“Start Date”). The Term shall continue for the period referenced in each Service Agreement and the termination of one Service Agreement shall not affect the applicability of this Agreement to any other Service Agreement in effect. If written notice of termination is not delivered to Axion Communications at least 30 days before expiration of the then Term, then this Agreement shall continue in effect on an annual basis until terminated by either party at least 30 days before expiration of the then Term. The term “Term” shall include the initial period referenced in each Service Agreement and all extensions thereof.
b. Ninety Day Satisfaction Guarantee. End-User may terminate this Agreement upon providing written notice to Axion Communications within ninety (90) days of the Start Date. Should End-User choose to exercise this option, Axion Communications will reverse all charges for monthly Services charges, account activation fees, and installation fees. The End-User will not be reimbursed for line porting fees or toll-free number activation fees. The End-User is additionally responsible for returning any equipment purchased from Axion Communication in like-new condition, including the original packaging, at the End-User’s expense. Any equipment returned without the original packaging will be subject to a 15% re-stocking fee. Axion Communications reserves the right to reject the return of any equipment that it deems is not in like-new condition.
3. 911 EMERGENCY DIALING.
a. 911 Dialing. Axion Communications 911 Dialing will be implemented and operational with the Service. Service may not be used in any geographical area different from that reported to Axion Communications as the End-User’s installation site.
With 911 service, when you dial 911, your telephone number and registered address is simultaneously sent to the local emergency center assigned to your location, and emergency operators have access to the information they need to send help and call you back if necessary. By using this Service, you authorize us to disclose your name and address to third-parties involved with providing 911 Dialing to you, including, without limitation, call routers, call centers and local emergency centers.
b. Registration of Physical Location Required. For each phone number that you use for the Service, you must register with Axion Communications the physical location where you will be using the Service with that phone number.
When you move the Equipment 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.
c. Confirmation of Activation Required. Your 911 Dialing feature will not be activated for any phone line that you are using with the Service, unless and until you receive an email from us confirming that the 911 Dialing feature has been activated for that phone line.
d. Outages due to Electrical, Internet or other General Failures. End-User acknowledges that the Services will not function in the absence of electrical power, access to the Internet or other general failures associated with the VoIP network. End-User acknowledges that the Services will not function if there is an interruption of End-User’s broadband or high-speed Internet access service.
e. Non-Voice Systems. End-User acknowledges that the Services are not set up to function with out-dialing systems, including, but not limited to, home security systems, medical monitoring equipment, satellite television systems and some facsimile systems. By consenting to these terms and conditions, End-User waives any claim against Axion Communications for interruption or disruption of such systems by the Services.
In offering the Services, Axion Communications may supply Equipment to End-User. All Equipment shipments are F.O.B. Axion Communications’ facility. Axion Communications’ liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to End-User upon delivery to carrier. End-User will be provided with manufacturer’s warranty from the date of purchase of Equipment. End-User shall be required to obtain authorization from Axion Communications to return any Equipment. Axion Communications will replace Equipment only if the Equipment is deemed to be defective and covered under the warranty. Axion Communications will not cover replacement for lost, stolen, mistreated or modified equipment. Equipment returned by End-User that is not covered under warranty may be refused by Axion Communications, and End-User will be responsible to pay return shipping charges.
5. BILLING, CHARGES AND PAYMENT.
a. Payment. Upon purchase of the Service, End-User must provide a valid credit card number from an accepted issuer (American Express, Discover, MasterCard or Visa). End-User authorizes Axion Communications to charge the End-User credit card number for all charges arising from End-User’s use of the Services. End-User agrees to notify Axion Communications of any change to the credit card information including, but not limited to, changes in account number, expiration date or billing address. Axion Communications shall not be responsible for any charges made by the credit card issuer to End-User’s credit card account for exceeding credit limit, insufficient funds or any other reasons.
b. Credit Terms. All Services provided to End-User and covered by the Agreement shall at all times be subjected to credit approval or review by Axion Communications. End-User will provide such credit information or assurance as is requested by Axion Communications at any time. Axion Communications, in its sole discretion and judgment, may discontinue credit at any time without notice.
c. Billing. Axion Communications will send or make available to End-User a monthly on-line invoice for the Services and bill all charges invoiced to End-User’s account to the End-User credit card. Such charges shall include activation fees, monthly Service fees, shipping charges, disconnection fees, equipment charges, toll charges, taxes and any other applicable charges. Monthly Service fees are paid in advance of each month’s Service; toll charges and any other applicable charges are billed at the end of each month’s Service. Axion Communications reserves the right to charge the End-User credit card for toll charges at any time if End-User’s cumulative toll charges for the current month exceed two hundred fifty dollars ($250.00). Billing for monthly Service fees commences upon purchase of the Services, and the first month’s monthly Service fee shall be prorated to take into account any partial month that may occur as the result of the date monthly Service fees are initiated. Thereafter, billing for monthly phone Services will occur in advance of the month the Services are provided, whereas billing for any toll or long-distance charges will occur in arrears.
d. Late/Non-Payment. If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment or declined End-User credit card charges, Axion Communications may suspend or terminate the Services and all accrued charges shall be immediately due. Axion Communications may charge End-User interest (at 1.5% per month or the maximum allowable rate, whichever is less) on those unpaid charges and a late fee (to the extent allowable by law) of 10% of the past-due balance. If End-User fails to pay Axion Communications within thirty (30) days of billing date, Axion Communications has the right to disconnect the Services without notice and/or send to collection. Upon disconnect, End-User agrees to immediately pay all amounts owed to Axion Communications. Axion Communications reserves the right to charge End-User a $50.00 re-establishment of Service fee. Upon disconnect a valid credit or debit card will be required to reinstate Service. If payment is not made in full within sixty (60) days of billing date, End-User hereby consents to Axion Communications’ right to repossess the End-User Equipment to offset monies owed without liability for damage or trespass.
e. Taxes. Prices for the Services do not include any applicable customs duties, sales, use, value added, excise, federal, state, local, public utility or other similar taxes. All such taxes shall be paid by End-User and will be added to any amounts otherwise charged to End-User unless End-User provides Axion Communications with an appropriate exemption certificate. If any amounts paid for the Services are refunded by Axion Communications, applicable taxes may not be refundable.
At the present time, under the terms of Axion Communications’ VoIP phone service, federal excise taxes are applicable, as are sales taxes on any Equipment purchased by End-User.
f. Credits. End-User acknowledges and agrees that the Services are provided “as is, where is.” Credit allowances are at the sole discretion of Axion Communications.
g. Discounts. From time to time in its sole discretion, Axion Communications may offer promotions or discounts on activation or other fees. Any promotion or discount codes must be entered by End-User upon purchase of the Services. End- User shall not be entitled to a subsequent credit for such promotions or discounts, if not requested at the time of account creation or change of Service.
h. Billing Disputes. End-User must dispute any charges for the Services within thirty (30) days of receipt of the monthly on-line invoice or End-User waives any objection.
i. Application of Received Payments. Axion Communications will apply all payments received from End-User to the oldest outstanding invoice.
If applicable, every call to or from Equipment using the Services that originates or terminates in the Public Switched Telephone Network (“PSTN”) or a third party SIP provider is subject to the then-applicable toll charges that are associated with the respective Plan ordered by End-User. As applicable, domestic long distance calls are billed in thirty (30) second increments after a sixty (60) second minimum. As applicable, calls to a phone number outside the United States and Canada to a non-Axion Communications account will be charged at the current rates published on the Axion Communications related website. The duration of each call from the US to international destination is to be calculated in thirty (30) second increments after a sixty (60) second minimum.
7. TELEPHONE NUMBER.
Telephone numbers provided by Axion Communications (“Number”) to the End-User shall be leased and not sold. End-User is not to use the Number with any other device other than the Equipment without the express written permission of Axion Communications. The End-User shall also be able to ‘port’ the number out of the Axion Communications network upon termination of Service if the End-User has maintained an account in good standing with Axion Communications.
8. LOST, STOLEN, ALTERED OR BROKEN
End-User shall not modify the Equipment in any way without the express written permission of Axion Communications. End-User shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, End-User is responsible for all lost, stolen or broken Equipment and may be required to purchase a replacement to continue Service. Replacement charges will be based on the fair retail price of Equipment, plus applicable shipping costs and taxes. End-User shall immediately notify Partner of any lost or stolen Equipment and shall cooperate with Axion Communications in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At Axion Communications’ sole option, failure to report lost or stolen Equipment in a timely manner will cause End- User to be responsible for all Service fees accrued until the time that Axion Communications is informed of the loss or theft and can effect a termination of the Services.
9. PROHIBITED USES.
Any use of the Services or any other action that causes a disruption in the network integrity of Axion Communications or its vendors, whether directly or indirectly, is strictly prohibited and could result in termination of the Services. End- User understands that neither Axion Communications nor its vendors are responsible for the content of the transmissions that may pass through the Internet and/or the Services. End-User agrees that it will NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the network. End-User agrees and represents that it is purchasing the Services and/or the Equipment for its own internal use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of Axion Communications. Use of Service shall not include certain activities including, but not limited to, any autodialing, continuous or extensive call forwarding, continuous connectivity, fax broadcast, fax blasting, telemarketing or any other activity that would be inconsistent with residential or small business usage, unless specifically agreed to otherwise in writing by Axion Communications and End-User.
No Infringing, Illegal, Threatening, Defamatory, and Offensive Uses. You may not use the Services to violate any Applicable Law. “Applicable Law” includes all applicable laws, rules and regulations applicable to you, your business or the subject matter of the Terms including without limitation, laws governing the use of individual information, deceptive and misleading advertising, electronic commercial communications, telemarketing and other similar laws, which include without limitation the U.S. Telephone Consumer Protection Act of 1991, U.S. Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and the Canada Anti-SPAM Legislation, if applicable, and each as amended. Without limiting the foregoing, you shall not use the Services for, or in connection with, the following:
Theft or infringement of copyrights, trademarks, trade secrets, or other types of intellectual property.
Fraud; forgery; or theft or misappropriation of funds, credit cards, or personal information.
Impersonation of any person or entity, including, but not limited to, Axion Communications personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity.
Harm minors in any way.
Use while driving or otherwise in an unsafe manner.
Making available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any Applicable Law or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities.
Making available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements).
Stalking or otherwise harassing any person or entity.
Export, re-export, or transfer of restricted software, algorithms or other data in violation of applicable export control laws.
Intentionally or unintentionally violate any applicable local, state, provincial, national or international law, treaty, or regulation, or any order of a court.
Deceptive practices such as posing as another service for the purposes of phishing or pharming.
Distributing any materials of a threatening or harmful nature, including without limitation threats of death or physical harm, or materials that are malicious, harassing, libelous, defamatory, or which facilitate extortion or harmful action.
Distributing any offensive materials, including without limitation obscene, pornographic, indecent or hateful materials and materials which promote gambling or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
Sending unwanted telemarketing, promotional or informational messages without having procured the necessary consents, right and license from the recipient(s) of your messages.
Sending messages in violation of the U.S. National Do Not Call Registry or related considerations under Applicable Law.
Send Protected Health Information unless allowed under Applicable Law.
Registering for more Accounts or associated Admin Logins or User Logins than for which fees have been paid or register for an Account on behalf of an individual other than yourself.
Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
Security and Interference. You may not use the Services to violate, attempt to violate, or knowingly facilitate the violation of the security or integrity of any network, electronic service, or other system that is accessible through, or in connection with, the Services. You shall not use the Services in a manner that interferes with any other party’s ability to use and enjoy the Services, that interferes with Axion Communications’ or its service partners’ ability to provide the Services, or that otherwise may create legal liability for Axion Communications or its service partners in Axion Communications’ sole discretion. You shall not use the Services to violate the acceptable use policy or terms of service of any other service provider, including, without limitation, any Internet service provider. Without limiting the foregoing, you shall not use the Services for, or in connection with, the following:
Hacking, cracking into, or otherwise using the non-public areas of the Services or any other system without authorization.
Unauthorized probes or port scans for vulnerabilities.
Unauthorized penetration tests, traffic that circumvents authentication systems or other unauthorized attempts to gain entry into any system.
Web crawling which is not restricted to a rate so as not to impair or otherwise disrupt the servers being crawled.
Unauthorized network monitoring or packet capture.
Forged or non-standard protocol headers, such as altering source addresses.
Denial of Service (DoS) attacks of any kind.
Distributing unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
Operating network services such as: open proxies; open mail relays; or open, recursive domain name servers.
Sharing or publishing content from the Services to cause, or have the consequence of causing, the user of the content to be in violation of the Terms and this Policy.
Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
Spam. You shall not use the Services for purposes of distributing text messaging “spam,” bulk unsolicited messages, or any other form of unsolicited electronic communications distributed on a bulk basis to recipients with which you have no preexisting business or personal relationship. You shall not use the Services to collect responses from spam. You shall not harvest, collect, gather or assemble information or data of users, including e-mail addresses, without their consent. You are solely responsible for obtaining all necessary and appropriate rights, licenses and consents from those person(s) and entity(ies) with whom you message or otherwise communicate with via the Services, prior to commencing any such messaging or communication. Additionally, you shall not use the Services to send unwanted messages to individuals who have asked to stop receiving messages through any medium. To the extent required by Applicable Law, you must track and record all such requests specific to your business. You must also provide recipients of those MMS/SMS messages you send via the Services with conspicuous notice of their ability to opt-out from receiving any future text messages, by texting STOP in a stand-alone message with no additional characters or punctuation. Without limiting the foregoing, you shall not use the Services for, or in connection with, the following:
Sending pyramid schemes.
Sending chain letters.
Sending any mail in contravention of Applicable Law.
Altering or obscuring mail headers or assuming the identity of a sender without the explicit permission of that sender.
Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.
Axion Communications’ platform responds programmatically to the keyword STOP.
10. UNLIMITED MINUTE USAGE PLANS; CHANGES TO THE AGREEMENT, SERVICES OR PLAN.
Axion Communications reserves the right to review usage of unlimited minute usage plans to ensure that there is no End-User abuse of such plans. End-User agrees to use unlimited minute plans for normal voice calls and will not employ methods or devices to take advantage of unlimited plans by using service excessively or for means not intended by Axion Communications. Axion Communications may terminate Service immediately if, in its sole discretion, End-User is abusively using the unlimited minute plan.
Axion Communications reserves the right to make changes to the terms and conditions of this Agreement, the Services and/or the Plan (“Change of Service”). In the event of a Change of Service, Axion Communications will post to the website currently located at . Notice will be considered received by End-Users and such changes will become binding to End-Users, on the date the changes are posted to the website (“Change Date”), and no additional notice will be required. Axion Communications will post all changes thirty (30) days in advance of the effective date of change, with the exception of international calling rates, which require only twenty-four (24) hours prior notice. If End-User does not send Axion Communications notification of its desire to terminate this Agreement or uses the Service after the Change Date, End-User is deemed to have accepted and consented to the Change of Service and conditions of the Service. If End-User does not consent to the Change of Service and terminates this Agreement, End-User will be responsible for any sums due hereunder in addition to any applicable Disconnection Fee. End-User may request a Plan change at anytime, subject to any applicable change of Service fee and additional terms and conditions. For a Plan change to a Plan that requires a purchase of the Equipment, an Equipment charge may apply. Axion Communications may decrease prices for the Services or Plans without providing any prior notice to End-User.
11. LICENSE TO YOUR CONTENT.
In order to enable Axion Communication to send and deliver your messages and otherwise provide you the Services, you grant Axion Communications a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive right (including any moral rights) and license to use, distribute, reproduce Your Content (in whole or in part) for the purposes of operating and providing the Services to you. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Axion Communications, are responsible for all of Your Content that you Make Available on or in the Services.
12. OUR USE AND STORAGE OF CUSTOMER DATA.
Except as may otherwise be agreed by Axion Communications and you in writing, Axion Communications may periodically delete your Customer Data. Further, data storage is not guaranteed by us and you agree that we will not have any liability whatsoever for any damage, liabilities, losses, or any other consequences that you may incur relating to the loss or deletion of Customer Data.
You further acknowledge and agree that we may access or disclose Customer Data, including the content of communications stored on our systems, if: (i) we believe that disclosure is reasonably necessary to comply with any Applicable Law, legal process or government request, (ii) to enforce our agreements and policies, (iii) to protect the security or integrity of our Services, (iv) to protect ourselves, our other customers, or the public from harm or illegal activities, or (v) to respond to an emergency which we believe in good faith requires us to disclose data to assist in preventing a death or serious bodily injury.
Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Axion Communications retains the right to create reasonable limits on Axion Communications’ use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by Axion Communications in its sole discretion.
13. ACCESS AND DOWNLOADING FROM iTunes.
The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
a. Parties. You acknowledge and agree that (i) the Terms are concluded between you and Axion Communications only, and not Apple, and (ii) Axion Communications, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
b. Acknowledgement. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
c. Warranty. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by Applicable Law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Axion Communications and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Axion Communications.
d. Responsibility. You and Axion Communications acknowledge that, as between Axion Communications and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
e. Third Party. You and Axion Communications acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Axion Communications and Apple, Axion Communications, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
f. Subsidiaries. You and Axion Communications acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
g. Compliance. Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
14. ACCESS AND DOWNLOADING APPLICATIONS FROM OTHER APP STORES.
You acknowledge and agree that the availability of any software application downloadable via an App Store (each an “App”) as part of the Services is dependent on the App Store from which you received the application license. You acknowledge that the Terms are between you and Axion Communications and not with the App Store. Axion Communications, not the App Store, is solely responsible for the Company Properties, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Company Properties, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Company Properties, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
Either party may terminate this Agreement effective as of the term described in Section 2 upon thirty (30) days advance written notice. Axion Communications may terminate, suspend or reduce Service to End-User at any time, at Axion Communications’ sole discretion and without obligation of prior notice, if End-User’s account becomes past due, if End-User breaches this Agreement, if End-User or any employee or agent of End-User breaches Axion Communications’ Acceptable Use Policy, or if End-User violates any applicable law. If Axion Communications terminates pursuant to the preceding sentence, End-User shall immediately pay Axion Communications the early termination fee described in Section 16 for each Service described in the Service Agreement. Axion Communications may also terminate this Agreement upon written notice in the event that a Force Majeure Event (as defined below) prevents Axion Communications from performing its obligations hereunder, in which case, End-User shall have no claim against Axion Communications for any relocation expense or loss of business or other loss or damage. End-User may terminate this Agreement at any time upon ninety (90) days advance written notice and payment of the early termination fee described in Section 16 for each Service described in the Service Agreement. Cancellation by End-User before the Start Date is subject to a cancellation fee provided for in Section 16. Axion Communications may require an activation fee to change or resume a terminated or suspended account.
16. OTHER FEES.
Axion Communications, in its reasonable discretion, may charge End-User and End-User shall pay for the following when provided by Axion Communications, or when otherwise applicable pursuant to this Agreement: (a) Field Technician Dispatched (1 hour minimum) $135 per hour for normal business hours, $185 per hour for after hours, holidays and weekends, to the extent available; (b) disconnect/early termination: 50% of total of monthly Service fees for uncompleted portion of the term; (c) missed appointment, $100; (d) unpaid or dishonored check or rejected credit card payment, $35 (or legal limit); (e) reactivation fee per Service, $150 (f) pre-Start Date cancellation fee equal to the greater of $50 or 3.00% of the total amount that would have been paid by End-User during the entire term pursuant to this Agreement; and (g) past due amounts: finance charges of 1.5% per month (18% per year). This Section does not permit or excuse dishonored checks, rejected credit card payment requests, or late or past due payments.
17. INSTALLATION & TRAINING.
Unless explicitly stated in the Service Agreement, installation and training is conducted during normal business hours and is conducted in one day. The End-User may request installation training be conducted after-hours or over the course of multiple days for an additional fee.
18. TECHNICAL SUPPORT.
Axion Communications will make available technical support to End-Users via telephone and e-mail for the Services and the Equipment provided. Support for other applications and uses is not provided or implied unless agreed to in writing by Axion Communications and End-User.
In the event of End-User’s breach of the terms of the Agreement, including, without limitation, failure to pay any sum due hereunder, End-User shall reimburse Axion Communications for all attorneys’ fees, court, collection and other costs incurred by Axion Communications in the enforcement of Axion Communications’ rights hereunder and Axion Communications may keep any deposits or other payments made by End-User.
End-User agrees to defend, indemnify and hold Axion Communications, its affiliates and its vendors harmless from any claims or damages relating to this Agreement.
21. DISCLAIMER OF CONSEQUENTIAL DAMAGES.
In no event shall Axion Communications or its vendors be liable for any special, incidental, indirect, punitive or consequential damages or for any other commercial damages or losses, including, but not limited to, loss of data, loss of goodwill, loss of revenue or profits, or arising out of or in connection with the use or inability to use Services or Equipment provided hereunder whether due to a breach of contract, breach of warranty, the negligence of Axion Communications or its vendors or otherwise, even if Axion Communications has been informed of the possibility of such damages.
22. WARRANTY AND LIABILITY LIMITATIONS.
EXCEPT AS PROVIDED BELOW, AXION COMMUNICATIONS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED AND WAIVED TO THE FULLEST EXTENT PERMITTED BY LAW. Neither Axion Communications nor its vendors will be liable for unauthorized access to Axion Communications’ or End-User’s transmission facilities or premise equipment or for unauthorized access to or alteration, theft or destruction of End-User’s data files, programs, procedures or information through accident, fraudulent means or devices, or and other method, regardless of whether such damage occurs as a result of Axion Communications’ or its vendors’ negligence. Any claim against Axion Communications must be made within ninety (90) days of the event of the claim and Axion Communications has no liability thereafter. Axion Communications’ liability is limited to repair, replacement, credit or refund. Axion Communications may elect to provide a refund in lieu of credit, replacement or repair. All warranties cover only defects arising under normal use and do not include malfunctions or failures resulting from misuse, abuse, neglect, alteration, modification, improper installation, or repairs by anyone other than Axion Communications. In no event shall Axion Communications’ total liability hereunder exceed the amounts paid by the End-User to Axion Communications in the prior twelve (12) months from the date of claim.
a. IP Phones. Axion Communications warrants that IP desk phones purchased from Axion Communications will be free from defects in material and workmanship for such time that the End-User is an active customer of Axion Communications. Analog adapters, conference phones and wireless phones are not included in this warranty.
b. Fraud Liability. Hosted PBX customers are not liable for the local or international toll charges and associated taxes or services fees if their hosted PBX system is compromised by a third party and said party uses the hosted PBX system to make international calls. This limitation of liability does not apply to SIP trunking customers.
23. EXPORT COMPLIANCE.
End-User agrees to comply with U. S. Export laws concerning the transmission of technical data and other regulated materials via the Services. End-User agrees to comply with applicable local, state and federal regulations governing the locality in which the Equipment and Services are used.
24. PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE.
Upon expiration, cancellation or termination of the Services, End-User shall relinquish and discontinue use of any numbers, voice mail access numbers and/or web portals assigned to End-User by Axion Communications or its vendors.
25. SOFTWARE COPYRIGHT.
Any software used by Axion Communications in connection with the Services and any software provided to End-User in conjunction with providing the Services are protected by copyright law and international treaty provisions. End-User may not copy the software or any portion of it.
The provisions of Sections 4, 5, 7, 15, 16, 17, 18 and 20 shall survive any termination of the Agreement.
Axion Communications communicates with its End-Users primarily via email. Notices to End-User shall be sent to the email address specified by End-User at the time of registration for the Services or as subsequently specified by End-User (“Email Address”). End-User is responsible for notifying Axion Communications of any Email Address changes. End-User agrees that sending a message to the Email Address is the agreed upon means of providing notification. Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that End-User read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided hereunder.
28. FORCE MAJEURE.
Axion Communications shall not be liable for any delay in performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, riot, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or from any other cause beyond the reasonable control of Axion Communications
29. GOVERNING LAW / RESOLUTION OF DISPUTES.
a. Mandatory Arbitration. Any dispute or claim between End-User and Axion Communications arising out of or relating to the Service or Equipment provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules . The arbitrator’s decision shall follow the plain meaning of the relevant documents, and shall 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 and End-User will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. End-User acknowledges that this arbitration provision constitutes a waiver of any right to a jury trial to the extent permitted by law.
b. Governing Law. The Agreement and the relationship between you and Axion Communications shall be governed by the laws of the State of California without regard to its conflict of law provisions. End-User and Axion Communications agree to submit to the exclusive jurisdiction of the courts in Ventura County, California for purposes of entering any arbitration award hereunder or for any other litigation hereunder.
c. Waiver. The failure of Axion Communications to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
d. Severability. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
e. Survival. End-User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
30. USE OF NAME.
End-User hereby grants to Axion Communications during the term, a limited, world-wide, non-exclusive, non-transferable, royalty-free, revocable license, without the right to sublicense, to use the End-User’s company name and trademarks, trade names and logos (the “Intellectual Property”) on the Axion Communications’ website and other advertising and marketing materials. Nothing in this Agreement shall give Axion Communications any right, title, or interest in the Intellectual Property, other than the license rights granted herein.
Axion Communications may use the Intellectual Property only in connection with this Agreement and shall: (i) mark its use of the Intellectual Property with the symbol ® or as appropriate; (ii) include the appropriate trademark attribution in reasonably close proximity to its first use of the Intellectual Property in any document or on a screen display; (iii) use the Intellectual Property so that each mark creates an impression that is separate and distinct from any other mark; (iv) not alter the Intellectual Property in any way, including, but not limited to, skewing, changing the color, rotating, separating logo elements or changing a typeface; and (v) not use the Intellectual Property in any way that would disparage or injure End-User or its reputation for high quality.
Axion Communications agrees that the End-User is the sole owner of the Intellectual Property and all associated goodwill. Axion Communications shall not: (i) attempt to adopt or register any mark or logo identical or substantially similar to any of the Intellectual Property, including, without limitation, any translation or transliteration thereof, or any other variants substantially similar to any Intellectual Property in appearance, pronunciation or meaning; (ii) remove, alter, or add to any of the Intellectual Property; or (iii) incorporate any of the Intellectual Property into its own trademarks, product names, service marks, company names, slogans, or any other similar designations for use on or in connection with any products or services likely to cause confusion with or dilute the Intellectual Property.
In case of termination of this Agreement, or upon written request of End-User, Axion Communications shall discontinue use of such Intellectual Property in any form, on any sign, advertising or product, and thereafter shall not use the Intellectual Property directly or indirectly in connection with its business, nor use any other name, title, or expression so nearly resembling the Intellectual Property as would be likely to lead to confusion or uncertainty or to deceive the public.
Axion Communications utilizes the public Internet and third party networks to provide voice and video communication services.
Accordingly, Axion Communications cannot guarantee the security of voice and video communications of End-User. Axion Communications is committed to respecting End-User’s privacy. Once End-User chooses to provide personally identifiable information, it will only be used in the context of the End-User’s relationship with Axion Communications. Axion Communications will not sell, rent, or lease End-Users’ personally identifiable information to others. Unless required by law or subpoena or if End-User’s prior permission is obtained, Axion Communications will only share the personal data of End-User with business partners that are acting on Axion Communications’ behalf to complete the activities described herein. Such Axion Communications entities and/or national or international business partners are governed by Axion Communications’ privacy policies with respect to the use of this data. Upon the appropriate request of a government agency, law enforcement agency, court or as otherwise required by law, Axion Communications may disclose personally identifiable information.
32. ENTIRE AGREEMENT.
The terms and conditions of this Agreement constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. This Agreement shall be binding upon the heirs, successors, and assigns of Axion Communications and End-User.