Terms and conditions
THIS AGREEMENT ("Agreement") is between Arawest Telecom Ltd. , Olivoice (“we,” “us,” “Olivoice” or “Arawest”), Olivoice’s Agent (“Agent”) and the user (“you,” “user”, “Subscriber” or “Customer”) of Olivoice’s Residential or Small Business enhanced communications or telecommunications services and any related products or services (“Service”). Both the Service and any devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter or any other IP connection device (“Device” or “Equipment”), used in conjunction with the Service. By activating the Service, you acknowledge that you have read and understood, and you agree, to the terms and conditions of this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms. Also, by activating and/or using the Service, you agree that you are also bound by the terms of Olivoice’s applicable state and/or federal tariffs, rate schedules, and public disclosures, which are incorporated into this agreement by reference.
1. EMERGENCY SERVICES- 911 DIALING
1.1 Differences in Availability and Operation of Emergency Dialing Service (“911” or “E911”): You acknowledge and understand that the Service does NOT function or connect the same way as traditional copper, fiber or wireline telecommunications support for traditional 911 or E911 access to emergency services. The 911/E911 Services offered by the Company in conjunction with these services are available only on Olivoice-provided or other approved Devices as described herein, and only in specific areas, as specified by the Company, when ordering the service, you must activate 911 dialing.
Olivoice 911 dialing cannot be used in conjunction with any “Soft Phone” (“download”) application. You agree to inform any household residents, guests and other third persons who may be present at the physical location where you utilize the Service of the important differences in and limitations of Olivoice 911 Dialing compared with traditional 911 or E911 dialing from your Olivoice Service and Device(s). Each Device that you purchase from us will include a sticker concerning the potential non-availability of basic 911 or E911 (the ‘911 Sticker’). It is your responsibility, in accordance with the instructions that accompany each Device, to place the 911 Sticker on each Device that you use with the Service. If you did not receive a 911 Sticker with your Device, or you need additional 911 Stickers, please email us at support@olivoice.com and we will send you one.
1.2 Description of 911-Type Dialing Capabilities - Activation Required: You acknowledge and understand that you cannot dial 911 from this line unless and until you have received a confirming email regarding service activation generally and a primary number assignment associated with the geographic location you have provided and agree to maintain, please note that penalties may apply if you do not provide you precise address. Once you have received a confirming email that 911 dialing has been successfully activated according to this Agreement and any amendments hereto that may be posted from time to time on the Olivoice website, you may dial 911 as needed, provided that all other Service requirements, including but not limited to, power supply, broadband internet connection, internet service provider login or “timing out” (even with an automatic restart – that may cause a reassignment by your internet service provider of a different session-based internet address), and Service login are activated, operational and uninterrupted for the entire duration of the call. When you dial 911 from your designated physical location, your call is routed from the Olivoice network to the Public Safety Answering Point (PSAP) or to local emergency service personnel designated for the address that you listed at the time of activation and confirmation. Olivoice routes 911-type calls within certain geographic areas covering most of the USA and excluding (AK,HI, P.R.& U.S.V.I.), from Olivoice-provided devices and IP phone primary number assignments designated by Olivoice as geographically appropriate, as locations within such areas may be confirmed by Olivoice upon service activation. You acknowledge and understand that any 911-type calls made from any physical or geographical location other than the physical location designated and associated with the account, regardless where a caller or third party desires or requires emergency assistance, will fail. WHEN YOU DIAL 911 ON YOUR PHONE UTILIZING THE OLIVOICE SERVICE, YOUR CALL MAY BE ROUTED TO A DIFFERENT DISPATCHER THAN THAT USED FOR TRADITIONAL 911 DIALING. THE DISPATCHER WILL BE LOCATED AT EITHER THE PUBLIC SAFETY ANSWERING POINT (PSAP) OR WILL BE LOCAL EMERGENCY SERVICE PERSONNEL DESIGNATED FOR THE ADDRESS YOU LISTED AT THE TIME YOU REGISTERED FOR THE SERVICE.
As described herein, this 911-type dialing currently is NOT the same as traditional 911 or dialing, and at this time, does not necessarily include all of the capabilities of traditional 911 dialing. Note, in particular, that certain features of “E911” may not be available in your area or technically feasible via this Service. While certain call-back capabilities, if they are available, may function on this Service, any interruption – before, during or after any call -- in power supply, broadband internet connection, internet service provider login or “timing out” (even with an automatic restart – that may cause a reassignment by your internet service provider of a different session-based internet address), or Service login may cause these features to fail.
1.3 Service Outage:
1.3.1 Power Outage: You acknowledge and understand that 911 dialing, like the Service as a whole, does not function in the event of a power failure. Should there be an interruption in the power supply, the Service and 911 dialing will not function until power is restored. A power failure or disruption may require the Customer to reset or reconfigure equipment, connections or logins, prior to utilizing the Service or 911 dialing.
1.3.2 Broadband Service Outage: You acknowledge and understand that service outages or interruptions by your broadband provider will prevent ALL Service including 911 dialing. Even a brief interruption in your broadband internet connection may cause the Service and 911 calling to fail until Customer resets or reconfigures equipment, connections or logins.
1.3.3 Service Outage Due to Suspension of Your Account: You acknowledge and understand that service outages due to suspension of your account as a result of billing issues will prevent ALL Service, including 911 dialing.
1.3.4 Other Service Outages: You acknowledge and understand that if there is a service outage for ANY reason, such outage will prevent ALL Service, including 911 dialing. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement. Please note that your broadband provider or other third party may intentionally or unintentionally block the ports over which the Service is provided or otherwise impede the usage of the Service. During this period your Service, including the 911 Dialing feature, may not function. You acknowledge that we are not responsible for the blocking of ports by your broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing.
1.3.5 Limitation of Liability and Indemnification: You acknowledge and understand that the Company’s liability is limited for any Service outage and/or inability to dial 911 from your line or to access emergency service personnel, as set forth in this document, and applicable Tariffs. We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by local emergency response centers. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS OLIVOICE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN CONNECTION WITH THE SERVICE, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
1.4 Requires Activation: You acknowledge and understand that 911 dialing does not function unless you have successfully activated 911 upon sign-up, and until such later date that such activation has been confirmed to you through a confirming email, and until you have carefully reviewed the email and, if indicated, have responded to any informational errors or discrepancies in such email, and, if applicable, such errors, if any, are corrected and the corrections confirmed in writing by Olivoice. YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU CANNOT DIAL 911 FROM THIS LINE UNLESS AND UNTIL YOU HAVE RECEIVED A CONFIRMING EMAIL. You agree to carefully review the confirmation email for any errors in your account information, and understand and acknowledge that Olivoice relies exclusively on you to provide and review the correct information for providing your Service.
1.5 Failure to Designate the Correct Physical Address: IF YOU DO NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE YOUR OLIVOICE EQUIPMENT WILL BE LOCATED AT THE TIME YOU REGISTER FOR THE SERVICE, 911 COMMUNICATIONS MAY BE MISDIRECTED TO AN INCORRECT LOCAL EMERGENCY SERVICE PROVIDER. NOTE THAT YOU MIGHT BE CHARGED A FINE IF YOU PROVIDED A WRONG OR AN INCPLETE PHYSICAL ADDRESS.
911 Dialing will not be activated unless and until you receive an email from us confirming that the 911 Dialing feature has been activated for your Olivoice service.
1.6 Requires Re-Activation if You Change Your Number: You acknowledge and understand that 911 dialing does not function if you change your phone number unless and until you have successfully re-activated 911 Dialing, and until such later date that such activation has been confirmed to you through a confirming email. 911 dialing must be re-activated.
1.7 Requires Re-Activation if You Move: You acknowledge and understand that 911 dialing does not function properly or at all if you move or change the physical location of your equipment to a different street address. Failure to provide the current and correct physical address and location of your Olivoice equipment will result in any 911 dialing that you may make being routed to the incorrect local emergency service center. You should update your physical address and location from your Olivoice online dashboard or by emailing us at support@olivoice.com
1.8 Possibility of Network Congestion and/or Reduced Speed for Routing 911: Due to the manner in which it is technically possible to provide the 911 dialing feature for the Olivoice Service at this time, you acknowledge and understand that there is a possibility of network congestion and/or reduced speed in the routing of a 911 communication made utilizing your equipment as compared to traditional 911 dialing over traditional public telephone networks.
1.9 Automated Number Identification: At this time in the technical development of Olivoice 911 dialing, it may or may not be possible for the Public Safety Answering Point (PSAP) and the local emergency personnel to identify your phone number when you dial 911. Olivoice’s system is configured in most instances to send the automated number identification information; however, the phone system routes the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and they are not yet always technically capable of doing so. You acknowledge and understand that PSAP and emergency personnel may or may not be able to identify your phone number in order to call you back if the call is unable to be completed, is dropped or disconnected, or if you are unable to speak to tell them your phone number and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.
1.10 Automated Location Identification: At this time in the technical development of Olivoice 911 Dialing, it may not be always possible to transmit identification of your service address that you have listed to the Public Safety Answering Point (PSAP) and local emergency personnel for your area when you dial 911. You acknowledge and understand that you may need to state the nature of your emergency promptly and clearly, including your location, as PSAP personnel will NOT always have this information. You acknowledge and understand that PSAP and emergency personnel may not be able to find your location if the call is unable to be completed, is dropped or disconnected, if you are unable to speak to tell them your location, and/or if the Service is not operational for any reason, including without limitation those listed elsewhere in this Agreement.
1.11 Alternative 911 Arrangements: If you are not comfortable with the limitations of the 911 Dialing service, we strongly advise you to consider having alternate means of accessing traditional 911 or E911 services.
2. SERVICE
2.1 Term Service is offered on a calendar-month basis, for an initial term that begins on the date that Olivoice activates your Service and ends on the last day of the month of your activation. Subsequent terms of this Agreement automatically renew on a monthly basis without further action by you unless you give Olivoice notice of non-renewal at least ten [10] days before the end of the monthly term in which the notice is given. If you terminate Service prior to the end of a monthly term, you will be responsible for the full month’s charges to the end of the then-current term and any and all outstanding charges. Customer is responsible for, and shall pay, any applicable federal, state, municipal, local or other governmental sales, use, excise, value-added, personal property, public utility or other taxes, fees or charges now in force or enacted in the future, that arise from or as a result of Customer’s subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your account.
2.2.1 Residential Use of Service and Device If you have subscribed to Olivoice’s Residential services, the Service and Device are provided to you and your household as a residential user, for your personal, residential, non-business and non-professional use. This means that you are not using them for any commercial or governmental activities, profit-making or non-profit, or abusing the Service. If you fail to comply with these limitations, Olivoice reserves the right to immediately terminate or modify the Service, if Olivoice determines, in its sole discretion and in accordance with Applicable Law and/or the rules and regulations of appropriate state and federal regulatory bodies, that Customer’s Service is being used for non-residential or commercial use.
2.2.2 Small Business Use of Service and Device - Prohibition on Resale. If you have subscribed to Olivoice’s Small Business services, the Service and Device are provided to you as a small business user. This means that you are not to resell or transfer the service or device to any other person for any purpose. You agree that the Olivoice Small Business Plans are for ordinary and usual office voice communications and do not confer the right to use the service for auto-dialing, continuous or extensive Call Forwarding, telemarketing, fax or voicemail broadcasting, fax or voicemail blasting, or any type of automated or continuous use. Olivoice reserves the right to immediately terminate or modify the Service, if Olivoice determines, in its sole discretion, that Customer’s Service is being used for any of the aforementioned activities, in accordance with Applicable Law regarding such terminations.
2.2.3 Bundled Service: You acknowledge and agree that the Services are offered on a bundled basis (including local, toll, long distance and international service) and cannot be separated. You acknowledge that these services (local, toll, and long distance) are not available individually and that in order to maintain each of the services in the bundle, one must maintain the others on the same service line. Should you wish to change any of these service providers from Olivoice, You will terminate your Service with Olivoice.
2.3 Lawful Use of Service and Device
2.3.1 Prohibited Uses: You agree to use the Service and Device only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in Olivoice’s sole judgment the transmission, receipt or possession of such communication would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. In addition, you shall not use the Service or the Device in any way that is threatening, abusive, harassing, offensive, libelous, deceptive, fraudulent, invasive of another's privacy, or any other similar behavior.
Olivoice reserves the right to terminate your service immediately and without advance notice if Olivoice, in its sole discretion, believes that you have violated the above restrictions, or any Applicable Tariff term, leaving you responsible for the full month’s charges to the end of the current term, including without limitation unbilled charges, plus an equipment non-return fee, all of which immediately become due and payable, as may be permitted under Applicable Law. You are liable for any and all use of the Service and/or Device by any person making use of the Service or Device provided to you and agree to indemnify and hold harmless Olivoice against any and all liability for any such use that fails to comply with this Section 2.3.1. If Olivoice, in its sole discretion believes that you have violated the above restrictions, Olivoice may forward the objectionable material, as well as your communications with Olivoice and your personally identifiable information to the appropriate authorities for investigation and prosecution.
2.3.2 Use of Service and Device by Customers Outside the United States and Canada: While we encourage use of the Service within the United States and Canada to other countries, Olivoice does not presently offer or support the Service to customers located in other countries. If you remove the Device to a country other than the United States or Canada and use the Service from there, you do so at your own risk, including the risk that such activity violates local laws in the country where you do so. You are liable for any and all use of the Service and/or Device by any person making use of the Service or Device provided to you. Transport or sale of the Device outside of the United States or Canada may result in a violation of technology import/export laws or rules; compliance with which is your sole responsibility.
2.4 Loss of Service Due to Power Failure: You acknowledge and understand that the Service does not function in the event of power failure. Should there be an interruption in the power supply to your Device or at any point in your transmission path, the Service will not function until power is restored. A power failure or disruption may require the Customer to reset or reconfigure equipment including your Device or any connecting equipment in your transmission path prior to utilizing the Service. Power disruptions or failures will also prevent dialing to emergency service numbers including any 911 calling feature that may be activated in or accessed by your Service.
2.5 Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software: The Service and Device and any firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials provided or offered by Olivoice and on Olivoice’s website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively “marks”) of Olivoice are and shall remain the exclusive property of Olivoice and nothing in this Agreement shall grant you the right to right or license to use such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and that the Device is exclusively for use in connection with the Service. If you decide to use the Service through an interface device not provided by Olivoice, which Olivoice reserves the right to prohibit in particular cases or generally, you warrant and represent that you possess all required rights, including software and/or firmware licenses, to use that interface device with the Service and you will indemnify and hold harmless Olivoice against any and all liability arising out of your use of such interface device with the Service.
2.6 Tampering with the Device or service: You agree not to change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express permission from Olivoice in each instance. You shall not attempt to hack or otherwise disrupt the Service or make any use of the Service that is inconsistent with its intended purpose. Doing so shall constitute a violation of this Agreement and Olivoice reserves the right to terminate your service immediately and without advance notice if Olivoice, in its sole discretion, believes that you have violated the above restrictions, or any Applicable Tariff term, leaving you responsible for the full month’s charges to the end of the current term, including without limitation unbilled charges, plus an equipment non-return fee, all of which immediately become due and payable, as may be permitted under Applicable Law.
2.7 Theft of Service: You agree to notify Olivoice immediately, by calling the Olivoice customer service line, if the Device or Service is stolen or if you suspect or become aware at any time that your Service is being stolen or fraudulently used. You will be liable for all use of the Service using a Device or Access Code stolen from you and any and all stolen Service or fraudulent use of the Service until Olivoice is informed of the theft.
2.8 Delivery or Warranty of Device; Ownership of the Device: If Customer receives cartons and/or Devices that are visibly damaged, please note the damage on the carrier's freight bill or receipt and keep a copy. Keep the original carton, all packing materials and parts intact and contact Olivoice’s customer support department immediately. Warranty coverage varies depending on the type of Device that Customer chooses. Please refer to the Olivoice warranty materials included in the packaging of your Device(s). If Customer purchased the Device new from Olivoice and the Device included a limited warranty at the time of purchase, Customer must refer to the separate limited warranty document for information on the limitation and disclaimer of certain warranties. If Customer’s Device did not include a limited warranty from Olivoice at the time of purchase, Customer agrees that it accepts its Device “as is” and that Customer is not entitled to replacement or refund in the event of any defect.
2.9 Number Transfer on Service Termination: Olivoice may, solely at the Company’s discretion, release the telephone number used in connection with your Service provisioned by Olivoice to your new service provider, if such new service provider is able to accept such number, upon your termination of the Service, and provided (i) your account has been terminated; and (ii) you request the transfer upon terminating your account.
2.10 Service Distinctions: You acknowledge and understand that the Service has different technical limitations than a traditional telephone service. Technical differences exist between traditional telephone service and this Service offering provided by Olivoice. The Service may be subject to different regulatory treatment than traditional or wireline phone service. This treatment may limit or otherwise affect your rights and responsibilities before Federal and State regulatory agencies.
2.11 Ownership and Risk of Loss: You will own the Device and bear all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is returned to us in accordance with this Agreement.
2.12 No compatibility with other equipment or services: All non-voice communications equipment, including but not limited to, home security systems that are set up to make automatic phone calls, fax machines, modems and medical monitoring devices, are not compatible with the Service. By accepting this Agreement, you waive any claim against Olivoice for interference with or disruption of such systems due to the Olivoice service.
You also acknowledge that the Service presently is not compatible with AOL cable broadband service and there may be other services with which the Service may be determined to be incompatible. You further acknowledge that some providers of broadband service may provide modems that prevent the transmission of communications using the Service. 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 Service with any particular broadband service.
3. CHARGES; PAYMENTS; TAXES; TERMINATION
3.1 Billing: When the service is activated, you must provide us with a valid email address and a credit or debit card number from Visa or MasterCard. We reserve the right to stop accepting credit or debit cards from any issuer. If your credit or debit card expires, you close your account, your billing address changes, or your credit or debit card is cancelled and replaced on account of loss or theft, you must advise us immediately. We will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which we decide to bill in arrears) to your credit or debit card, including but not limited to:
activation fees; monthly Service fees; usage charges; international usage charges; advanced feature charges; equipment purchases; regulatory recovery fee; Emergency 911 Cost Recovery, taxes; 911 fees, termination fees; and shipping and handling charges.
The amount of such fees and charges shall be published on our website and may change from time to time. Notification of monthly invoices will be sent to you via your email address that you provided upon sign-up (Unless you changed your email later, which requires notification from your side). We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $25. Any usage charges will be billed in increments that are rounded up to the nearest full minute except as otherwise set forth in the rate schedules found on our website.
3.2 Payment and Collection
3.2.1 Payment: We only accept payment by credit or debit card. Your subscription to the Service authorizes us to charge your credit or debit card. This authorization will remain valid until 30 days after we receive written notice from you terminating our authority to charge your credit or debit card, whereupon we will charge your credit or debit card for the termination fee, if applicable, and any other outstanding charges and terminate your Service. We may terminate your Service at any time in our sole and absolute discretion if any charge to your credit or debit card is declined or reversed, your credit or debit card expires and you have not provided us with a valid replacement credit or debit card or in case of any other non-payment of account charges.
3.2.2 Collection: If your Service is terminated, you will remain fully liable to us for all charges pursuant to this Agreement and any and all costs we incur to collect such amounts, including, without limitation, collection costs and attorney's fees.
3.2.3 Notices: You understand that it is difficult for us to distinguish between credit and debit cards. You agree to waive your rights regarding the ten days advance notice from Olivoice regarding the amount that Olivoice will debit from your account. We may send you messages about your billing from time to time, but we are not obligated to do so. Olivoice may change or cease its messages at any time without notice to you.
3.3 Termination: Discontinuance of Service: We reserve the right to suspend or discontinue the Service generally, or to terminate your Service, at any time in our sole and absolute discretion. If we discontinue the Service generally, or terminate your Service 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 your Service is terminated on account of your breach of any provision of this Agreement, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, which will immediately become due and payable.
3.4 Taxes:You are responsible for, and must pay, any applicable federal, state, local, or other governmental sales, use, excise, public utility, or other taxes, fees, or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or associated equipment. These amounts are in addition to payment for the Service or equipment and will be billed to your credit or debit card as set forth in this Agreement.
3.5 Money Back Guarantee: Limitations and Conditions.
Olivoice offers all subscribers a twenty-one (21) day money back guarantee from the date of activation of the Service. We will refund the activation fee, the monthly charge for the first month of Service and the phone adaptor fee provided that:
3.6 Billing Disputes: You must notify us in writing within seven days after receiving your credit or debit card statement if you dispute any Olivoice charges on that statement or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to: billing@olivoice.com you can also call us at 1-877-777-8236.
4. WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION
4.1 Limitation of Liability: Olivoice shall not be liable for any delay or failure to provide the Service, including 911 dialing, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following: 1.) act or omission of an underlying carrier, service provider, vendor or other third party; 2.) equipment, network or facility failure; 3.) equipment, network or facility upgrade or modification; 4.) force majeure events such as (but not limited to) acts of god; strikes; fire; war; riot; government actions; 5.) equipment, network or facility shortage; 6.) equipment or facility relocation; 7.) service, equipment, network or facility failure caused by the loss of power to Customer; or 8.) any other cause that is beyond Olivoice’s control, including without limitation the failure of an incoming or outgoing communications, the inability of communications to be connected or completed, including 911 dialing, or degradation of voice quality. Olivoice’s liability for any failure or mistake shall in no event exceed Service charges with respect to the affected time period.
4.2 No Consequential Damages: In no event shall Olivoice, its officers, directors, employees, affiliates or agents or any other service provider who furnishes services to Customer in connection with this Agreement or the Service be liable for any incidental, indirect, special, punitive, exemplary or consequential damages, or for any damages, including but not limited to loss of data, loss of revenue or profits, or arising out of or in connection with the use or inability to use the Service, including inability to be able to dial 911 or to access emergency service personnel through the Service. The limitations set forth herein apply to claims founded in breach of contract, breach of warranty, products liability, tort and any and all other theories of liability and apply whether or not Olivoice was informed of the likelihood of any particular type of damages.
4.3 Indemnification: Customer agrees to defend, indemnify, and hold harmless Olivoice, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys fees) by, or on behalf of, Customer or any third party or user of Customer’s Service, relating to this Agreement, the Services, including 911 dialing, or the Device. This paragraph shall survive termination of this Agreement.
4.4 No Warranties on Service: Olivoice makes no warranties, express or implied, including but not limited to, any implied warranties of merchantability or fitness of the Service or the Device for a particular purpose. Olivoice does not warrant that the Service will be without Service failure, delay, interruption, error, and degradation of voice quality or loss of content, data or information. Neither Olivoice nor its officers, directors, employees, affiliates or agents or any other service provider or vendor who furnishes services or products to Customer in connection with this Agreement or the Service will be liable for unauthorized access to Olivoice’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 Olivoice’s or its service provider’s or vendors’ negligence. Statements and descriptions concerning the Service or Device, if any, by Olivoice or Olivoice’s agents or installers are informational and are not given as a warranty of any kind.
4.5 No Third Party Beneficiaries: No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
4.6 Content: You are liable for any and all liability that may arise out of the content transmitted by or to you or Users using the Services. You shall assure that your or User’s use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. Olivoice reserves the right to terminate or suspend affected Services, and/or remove Your or Users’ content from the Services, if Olivoice determines that such use or content does not conform with the requirements set forth in this Agreement or interferes with Olivoice’s ability to provide Services to you or others or receives notice from anyone that Your or Users’ use or Content may violate any laws or regulations. Olivoice’s actions or inaction under this Section shall not constitute review or approval of Your or Users’ use or Content. You will indemnify and hold Olivoice against any and all liability arising from the content transmitted by or to you or to Users using the Services. A “User” means any person, whether authorized or unauthorized, using the Service and/or Device provided to you.
5. GOVERNING LAW / RESOLUTION OF DISPUTES
5.1 Mandatory Arbitration: Any dispute or claim between Customer and Olivoice arising out of or relating to the Service or Device 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 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 arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually and Customer will not bring, or join a punitive or certified class action to arbitration or seek to consolidate or bring previously consolidated claims in arbitration. Customer acknowledges that this arbitration provision constitutes a waiver of any right to a jury trial.
5.2 Governing Law: The Agreement and the relationship between you and Olivoice shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. You and Olivoice agree to submit to the personal and exclusive jurisdiction of the courts located within Massachusetts. The failure of Olivoice to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. You agree 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. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
6. PRIVACY
Olivoice Service may utilize, in whole or in part, the public Internet and third party networks to transmit voice and other communications. Olivoice is not liable for any lack of privacy that may be experienced with regard to the Service. Please refer to our Privacy Policy at www.Olivoice.com for additional information.
7. CHANGES; NOTICES
Except where expressly prohibited by law, the Customer agrees to accept notices to this agreement electronically, either by email or by web site posting. Notices to Customer of any changes to these “Terms of Service” shall be considered given by posting to the “Service Announcements” section of the Olivoice website. Notice will be considered received by Customer, and such changes will become binding on Customer, on the date posted to the Olivoice Web Site and no further notice by Olivoice is required.
8. ENTIRE AGREEMENT
This Agreement, the accompanying work order, any Terms of Services or other rules now or hereafter specified by Olivoice for the Service, public disclosures and/or any applicable tariff(s) on file with the applicable state utility commission or FCC shall constitute the entire agreement between Olivoice and Customer with respect to the subject matter hereof, and supersedes all previous written agreements between Olivoice and Customer with respect to the services provided hereunder. Acceptance of the Service shall constitute acceptance of the terms and conditions herein.
Version 2: 8/2/2006.