TARIFF AND GUIDE – If a tariffed Service subject to this Agreement is de-tariffed then the tariff in effect at the time will continue to be part of this Agreement as set forth in www.onevoiceinc.com. If a non-tariffed Service subject to this Agreement becomes tariffed, then the terms of the new Tariff will govern. In the event of a conflict between any of the terms of the Agreement, the following order of precedence will apply: (i) the applicable Tariff (ii) the applicable Service Schedule or Order (which are not subject to tariffs) and (iii) these Terms and Conditions. These three parts are the entire agreement relating to the subject matter hereof and supersede all oral and written communications, proposals or prior agreements. This Agreement and any addenda hereto may not be modified unless in writing signed by both parties. As used herein, the term “Services(s)” refers to any Service or product provided to you pursuant to this Agreement.
TERM. The Agreement shall be effective as of the date the Service is available for activation (“Effective Date”) and shall continue until the completion of Term Commitments as set forth on the Service Order Forms. The Term shall automatically renew for periods equal in duration to the initial Term period unless (a) OVC notifies you within 60 days of the expiration of the Term or any renewal periods, or (b) you notify OVC in writing within 30 days before the expiration of the Term or any renewal periods. Subject to the Early Termination requirements below, you may also terminate this Agreement, prior to the end of the Term or any renewal periods at any time by giving 30 days’ written notice.
BILLING AND PAYMENT – Customer agrees to pay OVC for all Services upon receipt of the invoice. You will be billed monthly, and if authorized by you, the amount owed shall be charged to your credit card or automatically deducted from your bank account on the due date stated on the invoice. A Late Fee in an amount of 1.5% per month (or the maximum rate permitted by law) will be charged on all outstanding amounts not paid within thirty (30) days of the date set forth on the invoice. Notwithstanding the foregoing, You agree to pay the greater of (i) the total amount otherwise due for the month for all Services provided under this Agreement, or (ii) the Monthly Minimum Commitment, as set forth on the first page of the Agreement and/or on subsequent Service Orders. Such usage shall not include any taxes or surcharges. Upon our request, you agree to post a bond or provide a security deposit to assure payment. You also agree to pay OVC its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights under this Agreement.
TAXES – In addition to the rates and charges for the Services(s), Customer shall be responsible for the payment of any Federal, State and Local governmental agencies and municipalities taxes and surcharges (collectively, “Taxes”) imposed on or based upon the provision of Services. Taxes are not included in the quoted rates for Services, but will appear as separate line items. If you are exempt from a particular tax or surcharge, you must pay the tax or surcharge set forth in the monthly invoice unless you provide us with a valid exemption certificate. We may adjust prices or impose additional rates and charges to recover amounts we may be required by governmental or quasi-governmental authorities to collect from or pay to others to support statutory or regulatory programs (e.g., Universal Service Fund) during the term of this Agreement.
DISPUTES/JURISDICTION – If you have a dispute about an invoice or believe that the invoice is in error, you must notify us in writing within 45 days of the date of the invoice or you shall have waived your rights t dispute the charge(s). You remain responsible for paying the undisputed portions of the invoice by the due date. The Agreement is deemed made in, and subject to the laws and the exclusive jurisdiction of the courts of the Commonwealth of Virginia.
SERVICE PROVISIONING – We will use reasonable efforts to provide the applicable Services by the start dates you requested as set forth in the Service Orders. We may make changes to any Service provided that any such change does not materially adversely affect the Service. In the event Customer cancels installation prior to OVC incurring any charges, or initiating internal processing of Customer’s orders there shall be no termination charge. Where the internal process has been initiated, and the installation of facilities and/or equipment has been initiated prior to the cancellation of service, a payment of a $750.00 termination charge per installation in addition to any and all charges incurred by OVC, as agent or otherwise, related to initiation of such installation shall be due and owing by the Customer.
(A) If you terminate prior to the expiration of the Term or any renewal thereto, You agree to (a) pay for all Services provided prior to the date of termination, (b) refund any promotional credits provided by OVC and (c) pay a discontinuance fee (not a penalty) equal Monthly Recurring Charges (MRC) set forth in the Service Order Form(s) for the affected Service multiplied by the remaining months in the Service Order Term, or any renewal thereto.
(B) OVC, in addition to any other remedies, may immediately terminate this Agreement if you are in breach. Breach includes, but is not limited to (a) nonpayment of any amounts due; (b) the initiation of proceedings by or against you in bankruptcy; (c) the appointment of a receiver or trustee for you; or (d) your failure to comply with any of your obligations under this Agreement. We reserve the right to suspend or discontinue any Service without notice, written or otherwise: (i) anytime we have the right to terminate the Agreement; (ii) whenever required to protect our network or facilities, (iii) whenever any Service is used for illegal purposes or otherwise in violation of our usage policies; (iv) if we deem it necessary in order to comply with applicable laws or regulations, (v) Customer fails, after OVC’s request, to provide a bond or security deposit; (vi) Customer provides false information to OVC regarding the Customer’s identity, creditworthiness, or its planned use for the Services; or (vii) Customer interferes with OVC’s provision of service to any other customer.
(C) You may terminate this Agreement if OVC is in material breach of this Agreement, provided that written notice of the breach has been given to OVC and the breach has not been cured within thirty (30) days after the delivery of such notice. In such event, you shall pay for all Services provided prior to the termination but you are not responsible for paying the early discontinuance fee as set forth in subsection (A) above.
AUTHORIZED USE OF SERVICES – You shall bear the risk of loss arising from any unauthorized or fraudulent usages of the Services provided under this Agreement. OVC reserves the right, but is not required, to take any and all actions it deems appropriate (including blocking access to particular calling numbers or geographic areas) to prevent or terminate any fraud or abuse in connection with the Services; provided however that You shall not be responsible for such fraudulent or unauthorized usage if You (a) provide OVC with notice of such abuse or unauthorized usage, and (iii) OVC has the ability to correct or prevent the fraudulent or unauthorized usage, and (iii) OVC failed to take such corrective actions.
WARRANTY – We warrant that we will provide Services pursuant to the terms of this Agreement. WE HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTY OR MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THIS SECTION SURVIVES TERMINATION OF THE AGREEMENT.
NOTICES – Notices must be in writing. Any Notice to OVC must be delivered personally, overnight courier, registered or certified mail to the address set forth on the most recent monthly invoice. We will send Notices to Your Billing Address set forth on the Order Form, or by including it in your monthly invoice.
CREDIT – You shall provide OVC with the credit information as requested. OVC may require you to make a deposit at any time as a condition of initiating or continuing Services. Upon termination of this Agreement, the amount of the deposit will be credited to your outstanding balance. Any outstanding credit balance shall be refunded to you.
LIMITATION OF LIABILITY – NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES OF ANY NATURE WHATSOEVER FOR ANY REASON, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF CUSTOMER CLIENTS, GOODWILL ARISING IN ANY MANNER FROM THE AGREEMENT. THIS DOES NOT LIMIT YOUR RESPONSIBILITY FOR THE PAYMENT OF ANY AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT OUR LIABILITY, IF ANY, AND THE CUSTOMER’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES OF ANY KIND SHALL NOT EXCEED THE AMOUNT YOU PAID FOR THE SERVICE SUBJECT TO THE DAMAGES CLAIM DURING THE PERIOD THE DAMAGES OCCURRED. OUR ONLY LIABILITY FOR ANY FAILURE OF PERFORMANCE, INTERRUPTIONS OR OTHER INABILITY TO USE ANY SERVICE IS A CREDIT (FOR THOSE SERVICES WHERE CREDITS ARE GIVEN). You must bring any claim with respect to any Services provided by OVC within one year after the claim or cause of action has accrued or such claim or cause of action shall be barred. OVC is not responsible for any act of or representations made by an independent authorized Agent of OVC unless they are expressly approved by an officer of OVC in writing or contained in a document provided by OVC to You.
INDEMNIFICATION – Customer shall defend, indemnify and hold OVC harmless from and against all claims, demands, actions, causes of action, judgments, costs and reasonable attorney’s fees and expenses of any kind or nature for any and all damages of any kind arising from or related to any use of the Services or otherwise arising under this Agreement.
FORCE MAJEURE – Except with respect to Customer’s payment obligations, neither party shall be liable to the other party for any delay or failure in performance under this Agreement to the extent such delay or failure is caused by fire, flood, explosion, accident, war, terrorist act, epidemic, strike, embargo, governmental requirements, civil or military authority, Act of God, inability to secure material or labor or other causes beyond its reasonable control. Any such delay or failure shall suspend the Agreement until the Force Majeure ceases.
WAIVER – OVC’s failure to insist upon strict performance of the terms of this Agreement or to exercise any rights or remedies hereunder shall not waive any of the OVC’s rights to require strict performance of such terms, to asset any of the same rights, or to rely on any such terms any time thereafter.
RELATIONSHIP OF PARTIES – OVC and Customer are independent contracting parties. This Agreement shall not constitute the parties as principal and agent, partners, joint ventures, or employer and employee. Neither party shall have, or hold itself as, having the power or authority to bind or create liability for the other by its intentional or negligent acts(s).
SEVERABILITY – In the event that one or more of the provisions herein shall for any reason be held to be illegal or unforeseeable, this Agreement shall be revised only to the extent necessary to make such provision(s) legal and enforceable; provided, however, that this Agreement as revised is consistent with the parties’ original intent.
ASSIGNMENT – Customer may not assign or transfer this Agreement or any rights or obligations without the prior written consent of OVC. An assignment shall be deemed to include any change of voting or management control of Customer.
ENTIRE AGREEMENT – This Agreement constitutes the entire understanding of the parties with resp
ACCEPTABLE USE POLICY:
One Voice Communications, Inc. (“OVC”) is committed to complying with the laws and regulations regarding the use of the Internet, e-mail and text messaging and preserving for all of Customers the ability to use OVC’s (and its third-party suppliers) network and the Internet without interference or harassment from other uses. This Acceptable Use Policy (“AUP” or “Policy”) is designed to meet this goal.
Please read this AUP carefully. Upon your use of OVC’s applicable Services, you agree to comply with this AUP and remain responsible for all of your users. OVC reserves the right to change or modify the terms of this AUP at any time, effective when posted on OVC’s website at www.onevoiceinc.com. Customer’s use of OVC Services after changes of the AUP are posted shall constitute acceptance of any changed or additional terms. OVC encourages Customers and their users to review any changes to this Policy regularly.
This AUP applies to all OVC applicable services that provide (or include) access to the Internet or are provided over the Internet or wireless data networks that are pursuant to any applicable Order, including, without limitation, any applicable terms of service and/or supplements to any applicable agreement(s) (which Customer and/or its users must accept as a condition to receiving any Services from OVC). Where there is a conflict between your Order or Agreement and this AUP as to governing laws or warranties or disclaimers, your Agreement will control.
You must use our Services in accordance with the terms of this policy and your Agreement as modified by your specific Order, and in accordance with all applicable laws and regulations. Use of the Services for any other purpose that is unlawful or in any manner which could damage, disable, overburden or impair the operations of OVC, its network or Services, or in any way negatively impacts OVC is strictly prohibited.
Below is a non-exhaustive list of prohibited activities:
- Unlawful Activities. OVC Services shall not be used in any illegal activity that is criminal, civil or administrative violation of any applicable local, state, federal or international treaty, court order, ordinance, regulation or administrative rule.
- Violation of Intellectual Property Rights. OVC Services shall not be used to publish, submit/receive, upload/download, post, use, copy or otherwise reproduce, transmit, re-transmit, distribute or store any content/material or to engage in any activity that infringes, misappropriates or otherwise violates the intellectual property rights or privacy or publicity rights of OVC or any individual, group or entity, including but not limited to any rights protected by any copyright, patent, trademark laws, trade secrets, trade dress, privacy rights or other intellectual property rights.
- Threatening Material or Content. OVC Services shall not be used to host, post, transmit or re-transmit any content or material that harasses or threatens the health or safety of others. In addition, for those OVC Services that utilized OVC provided web-hosting, OVC reserves the right to decline to provide such services if the content is determined by OVC to be obscene, indecent, hateful, malicious, racist, defamatory, fraudulent, libelous, treasonous, excessively violate or promoting the use of violence or otherwise harmful to others.
- Inappropriate Interaction with Minors. OVC complies with all applicable laws pertaining to the protection of minors, including when appropriate, reporting cases of child exploitation to the National Center of Missing and Exploited Children.
- Child Pornography. OVC Services shall not be used to publish, submit/download, post, use, copy or otherwise produce, transmit, distribute or store child pornography. Suspected violations of this prohibition may be reported to OVC at the following email address firstname.lastname@example.org. OVC shall report any discovered violation of this prohibition to the National Center of Missing and Exploited Children and take steps to remove child pornography (or otherwise block access to the content determined to contain child pornography) from its servers.
- Unauthorized Access. Any attempts to use or gain unauthorized access to data, accounts, hosts, servers, systems or networks of others, nor relay communications through any third party without the owner’s authorization.
- Unauthorized Testing. Any unauthorized probe, scan or testing of the vulnerability of our systems or network without our prior consent.
- Retaliation against OVC. Engage in any conduct that may result in retaliation against our site, network or Services, OVC employees (e.g.by engaging in behavior that results in any server being the target of a denial of service attack, IP address blacklisting or similar act).
- Resale. Reselling Services that are not available for resell.
- Viruses. Contains viruses, corrupted files, or any similar software or program that may cause damage to our network or operation of other’s computers.
- “Usage ” plans are to be used in a manner that is consistent with the purposes of such Services.
- OVC SIP Trunking plans include usage that includes Inbound and Outbound calling to the Continental USA (US-48). Usage for maximum calling for these plans is defined as 2500 minutes per channel (aka line).
- OVC Hosted PBX (Hosted VoIP) plans include usage that includes Inbound and Outbound calling to the Continental USA (US-48). Maximum calling is defined as 1000 minutes per user (aka subscriber).
- Unsolicited calls. The sending unsolicited calls if such unsolicited activities could reasonably be expected to or do in fact provoke complaints.
- Falsifying Information. Falsifying user or other identifying information provided to OVC or to other users of the Services;
- Other Prohibitions.
- auto-dialing or predictive-dialing (sometimes referred to as “robo-dialing”);
- continuous or extensive chat line or conference call participation,
- use of free conference calling or similar services that OVC in its sole discretion deems to participate in traffic stimulation practices or schemes that result in excessive charges.
- use of an open telephone line as a monitoring, intercom or similar service;
- repetitive and/or continuous calling to the same number if such activity could reasonably be expected to or in fact does provoke complaints;
- long duration calls (defined as calls to the same number in excess of four continuous or cumulative hours within a 24-hour period) and/or calls placed to specific numbers / destinations for the purpose of generating charges or fees for or with a third party;
- use of call Services which do not consist of uninterrupted live human voice dialog by and between natural human beings;
- Customer shall not: (1) re-classify or re-originate traffic or take any other action to make traffic appear as if it: (i) is anything other than the type of traffic deliver to Customer (including but not limited to making TDM originated traffic appear to be IP originated) or (ii) originated from a place or on a type of equipment different from the place or type of equipment from where it, in fact, originated; or (2) modify, alter, or delete in any manner calling number information, originating point codes or any signaling information, or call detail in connection with the transport and termination of traffic to the called party. Upon OVC’s request, Customer shall certify in writing its continued compliance with this Policy. If Customer is found to be in violation of the above policy then Customer must demonstrate to OVC’s satisfaction that all traffic is compliant to this policy or Customer may be subject to penalties assessed retroactively to include all instances of policy violation.
- engaging in any of the foregoing activities by using the services of another provider or third party and channeling such activities through an account provided by OneVoice, or otherwise involving the Services or any OVC account in any way with or without another provider or third party for the purpose of facilitating the foregoing activities.
- OneVoice reserves the right, at its sole discretion, to determine if a Service is being used for any of the foregoing purposes or activities.
- Any call originated on the OneVoice network is subject to inspection and investigation if the call is suspected of being fraudulent, abusive, or illegal. Calls meeting any of these criteria will be blocked. If these conditions are repeated, becoming excessive, the subscriber may be disconnected from OneVoice network, may be subject to further investigation by the FCC for enforcement of the TRACED Act and the subscriber may be subject to fines and penalties imposed by the FCC or the jurisdictional court.”
- Violation of this Policy may result in civil or criminal liability, and OVC in its sole discretion, in addition to any remedy that it may have at law or in equity, may immediately terminate permission for the user or Customer to use the Services, or any portion of the Services, and may charge user or Customer any applicable rates and cancellation or termination fees. In addition, OVC may investigate incidents that are contrary to this Policy and provide requested information to third parties who have provided notice to OVC stating that they have been harmed by a user or Customer’s failure to abide by this Policy or the policies listed above. OVC may bring legal action to enjoin violations and/or collect damages caused by any violation of any part of this Policy. In addition, if 10% or more of completed calls are equal to or less than 6 seconds in duration (“Short Duration Calls”), OVC may charge and Customer agrees to pay a surcharge equaled to $.039 for each Short Duration Call. Such surcharge will be in addition to the agreed upon usage rates set forth in the applicable Order.
4.Any violations or attempted violations of this Policy by any Customer or user (or any third party on behalf of any user) will constitute a violation of this Policy by the Customer or user and a material breach of any applicable Agreement or Order, including, without limitation, any applicable terms of service and/or supplements to any applicable agreement(s).
5OVC’s failure to enforce this policy in every instance in which it might have application does not amount to a waiver of OVC’s rights.
6 IN NO EVENT WILL OVC BE LIABLE TO ANY CUSTOMER OR USER OR THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES FOR ACTIONS TAKEN OR NOT TAKEN PURSUANT TO THIS POLICY, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR DATA, OR OTHERWISE, EVEN IF ONEVOICE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY IN FAVOR OF OVC IS IN ADDITION TO ANY LIMITATIONS SET FORTH IN ANY WRITTEN AGREEMENT BETWEEN OVC AND ANY APPLICABLE CUSTOMER OR USER AND WILL APPLY WHETHER THE ACTION IN WHICH RECOVERY IS SOUGHT IS BASED IN CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), OR ANY APPLICABLE LAWS.
Subject to the terms of the Agreement, or the applicable Orders, we do not claim any right or interest in your content and assume no responsibility of any kind for your content. Custody, possession, control and security of all your content, regardless of its nature, is your responsibility, and you are liable in all respects for your content. “Content” means any communications or information that may be generated, stored, cached, copied, published, transmitted or otherwise used by or made available by you through your use of the Service, such as web sites, software, data, documents, music, graphics, photographs, images, sounds, videos, messages, Customer Materials and any other like materials. You may not use the Services to download, publish, distribute, or otherwise copy or use any Content in any manner protected by copyright law unless you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner; or you are otherwise permitted by established copyright law to use, distribute or copy the work in any manner. Your use of our Service is not edited, censored or otherwise controlled by us, however, we do reserve the right to remove content, disable sites, or suspend or terminate Services if we determine, in our discretion, that Content or user practices are harmful, offensive, or otherwise in violation of law, applicable Service terms or this AUP.