Service Terms and Conditions
1.1 These Terms of Service constitute the agreement (“Agreement”) between ComTech Systems, Inc. (“we,” “us” or “ComTech”) and the user (“you,” “user”, “Customer” or “Subscriber”) of ComTech’s business services and any related products or services (“Service”). This Agreement governs both the Service and any devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter, switch, router or any other IP connection device or general equipment (“Device” or “Equipment”), if and when provided by ComTech and used in conjunction with the Service.
1.2 Introduction. ComTech Cloud enables a hosted PBX and voice over IP (VOIP) service offering to customers. Some features are included as features that may be provisioned and managed via the ComTech portal software (“Customer Portal”), while other features may be provisioned as a custom configuration (“Custom Configuration”). ComTech shall bill according to the monthly recurring charges listed on the Service Activation Form provided to customer. All services are based on quantity purchased of services and/or licensed package.
Hosted Private Branch exchange (HPBX).
1.3 ComTech will enable a virtual HPBX Service that includes, but is not limited to the following features and/or capabilities.
(b) Music on hold (music not included)
(c) Group extension routing
(d) Call center features including call queues
(e) Voice mail
(f) Voice mail to e-mail and pager
(g) Call transfer
(h) Dedicated HPBX hosting including call recording (limits apply)
(i) And other features that ComTech may make available
(b) ComTech software also supports the ability to provision “bring your own” SIP device, although we do not provide technical support for such devices.
(b) Ability to add, modify, deactivate customer Hosted PBX’s
(c) Ability to view customer billing information generated by the Customer Portal
(d) Customer Administration
(e) Enable customer to administer their hosted PBX
(f) Customer Extension User
(g) Enable customer extension users to make configuration changes to their specific extension
1.7 ComTech Responsibility. ComTech represents it will exercise all reasonable efforts that will be required to procure equipment, configure services and work in conjunction with Customer, its vendors, providers and persons to ensure a successful implementation.
(a) Unlawful. You shall use the Service and the Device only for lawful purposes. We reserve the right to immediately terminate your Service if, in our sole and absolute discretion, we determine that you have used the Service or the Device for an unlawful purpose. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, ComTech will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.
(b) Inappropriate Conduct. You shall not use the Service or the Device in any way that is threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, or any similar behavior. We will provide you written notification in the event of such conduct and allow 30 days to cure. In the event that such conduct has not been cured ComTech reserves the right to terminate services. In the event of such termination, you will be responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will become immediately due and payable upon termination of your Service. If we believe that you have used the Service or the Device in any of the aforementioned ways, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You hereby consent to our forwarding of any such communications and information to these authorities. In addition, ComTech will provide information in response to law enforcement requests, subpoenas, court orders, to protect its rights and property and in the case where failure to disclose the information may lead to imminent harm to the customer or others.
(c) Use of Service and Device by Customers outside the United States. Although we encourage you to use of the Service to place calls to foreign countries from within the United States, we do not presently offer or support the Service in any countries other than the United States and Canada. If you use the Service or the Device outside of the United States or Canada, you will be solely responsible for any violations of local laws and regulations resulting from such use.
(d) Copyright; Trademark; Unauthorized Usage of Device; Firmware or Software. Copyright; Trademark. The Service and Device and any firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, and all Services, information, documents and materials on our websites are protected by trademark, copyright or other intellectual property laws and international treaty provisions. All of our websites, corporate names, service marks, trademarks, trade names, logos and domain names
(Collectively “marks”) are and will at all times remain our exclusive property. Nothing in this Agreement grants you the right or license to use any of our marks.
(e) Unauthorized Usage of Device; Firmware or Software. You have not been granted any license to use the firmware or software used to provide the Service or provided to you in conjunction with providing the Service, or embedded in the Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement. You expressly agree that the Device is exclusively for use in connection with the Service and that we will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose. We reserve the right to prohibit the use of any interface device that we have not provided to you. You hereby represent and warrant that you possess all required rights, including software and/or firmware licenses, to use any interface device that we have not provided to you. In addition, you shall indemnify and hold us harmless against any and all liability arising out of your use of such interface device with the Service. You shall not reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
(f) Tampering with the Device or Service. You shall not change the electronic serial number or equipment identifier of the Device or to perform a factory reset of the Device without our prior written consent. 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. In the event of such tampering ComTech will notify you in writing and allow you 30 days to cure such event. In the event that you have not cured this violation we reserve the right to terminate your service. In the event of such termination, you will remain responsible for the full month’s charges to the end of the current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable.
(g) Theft of Service. You shall notify us immediately, in writing or by calling our customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen, fraudulently used or otherwise being used in an unauthorized manner. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft, fraudulent use or unauthorized use of Service. Until such time as we receive notice of the theft, fraudulent use or unauthorized use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen, fraudulent or unauthorized use of the Service.
1.11 Return of Device. (Does Not Apply to Customers who use Devices not provided by ComTech).
For all rented devices which are devices installed and billed monthly on your monthly re-occurring invoice/statement shall be returned to ComTech within 30 days of termination of your contract and must be in original condition, reasonable wear and tear excluded;
(b) Customer is responsible to pay all costs of uninstalling, shipping and insurance for returning device(s) back to ComTech.
1.12 Number Transfer on Service Termination. Upon termination of your Service, ComTech will release to your new service provider the BTNS (billing telephone numbers) associated with your account provided:
(b) Your account has been properly terminated.
(c) Your account is paid in full and completely current for all applicable charges.
(d) You request the transfer upon terminating your account.
1.13 Service Distinctions. VOIP service is based on a best efforts basis. Important distinctions exist between traditional telecommunications service and VOIP delivery of voice communications. VOIP service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect your rights of redress before regulatory agencies.
1.14 Ownership and Risk of Loss. You will be responsible for devices and bear all risk of loss of, theft of, casualty to or damage to devices, from the time they are shipped to you until the time when they are returned to us in accordance with this Agreement.
1.15 No 0+ or Operator Assisted Calling; May Not Support x11 Calling. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.
1.16 No Directory Listing. The phone numbers you obtain from us will not be listed in any telephone directories. Phone numbers transferred from your local phone company may, however, be listed. As a result, someone with your phone number may not be able to utilize a reverse directory to lookup your address.
1.17 Incompatibility with Other Services.
(b) Certain Broadband and Cable Modem Services. You acknowledge that the Service presently may not be compatible with some broadband services. 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.
(c) Fax Services. The Service may not be compatible with some facsimile machines or facsimile transmission systems. You may be required to maintain a telephone connection through your local exchange carrier in order to use any facsimile service.
2.2 Registration of Physical Location Required. For each phone number that you use for the Service, you must register with ComTech the physical location where you will be using the Service with that phone number. When you move the Device to another location, you must register your new location. If you do not register your new location, any call you make using the 911 Dialing feature may be sent to an emergency center near your old address. You will register your initial location of use when you subscribe to the Service. Thereafter, you may register a new location by following the instructions from the “911″ registration link on your ComTech web account dashboard features page. For purposes of the 911 Dialing feature, you may only register one location at a time for each phone line you use with the Service.
2.3 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.
2.4 How Emergency Personnel are contacted. We contract with a third party to use the address of your registered location to determine the nearest emergency response center and then forward your call to a general number at that center. When the center receives your call, the operator will not have your address and may not have your phone number. You must therefore provide your address and phone number in order to get help. Some local emergency response centers may decide not to have their general numbers answered by live operators 24 hours a day. If we learn that this is the case, we will send your call instead to a national emergency calling center and a trained agent will contact an emergency center near you to dispatch help. You hereby authorize us to disclose your name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location.
2.5 Possible Lack of Automatic Number Identification. It may or may not be possible for the local emergency personnel to automatically obtain your phone number when you use 911 Dialing. Our system is configured to send the automatic number identification information; however, one or more telephone companies, not us, route the traffic to the emergency response center and that center may not be capable of receiving and passing on that information. As a result, the operator who answers your 911 Dialing call may not be able to automatically obtain your phone number and call you back if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your phone number, or if the Service is not operational for any reason.
2.6 No Automated Location Identification. In most service areas, it is not possible at this time to transmit to the local emergency response center the address that you registered for 911 Dialing. You will need to state the nature of your emergency promptly and clearly, including your location (and possibly your telephone number), as the operator will not have this information. Emergency personnel will not be able to find your location if the call is not completed or is not forwarded, is dropped or disconnected, if you are unable to speak to tell the operator your location, or if the Service is not operational for any reason.
2.7 Re-Activation. Required if You Change Your Number or Add or Port New Numbers. 911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number.
3. Service Disruption
(a) Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing.
(b) Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or ISP Service. Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.
(c) Service Outage Due to Suspension or Termination of Your ComTech Account. Service outages due to suspension or termination of your account will prevent all Service, including 911 Dialing, from functioning.
(d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 Dialing feature, may not function. You acknowledge that ComTech is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing that may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you terminate the Service in accordance with this Agreement.
(e) Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
(f) Customer shall 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 ComTech IP Telephone Devices or at any point in your transmission path, the Service will not function until power is restored. 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. ComTech highly recommends installing a UPS (Uninterruptible Power Supply) on all internet access devices, network equipment and phone devices. ComTech also highly recommends installing a POTS (Plain Old Telephone Service) line from the local telephone company and placing on a readily accessible, standard analog telephone as a backup in the event of power failure. You should always have an alternate means of accessing traditional 911 services.
4. Charges; Payments; Taxes; Termination; Default
4.1 Payment and Collection. We will invoice you each month for Services rendered in the previous month. Full payment must be received by us no later than 12 days from the date of the invoice. Automatic payments will be debited from your bank account or credit card on the 11th day or the next business day if the 11th falls on a weekend or holiday. A finance Charge of 1.5% per month, or the maximum amount allowed by law will be assessed for any payments not received per this schedule. Adherence to this payment schedule is a material obligation under this Agreement.
4.2 Billing by credit card. If you choose this option; when the service is activated, you must provide us with your address, valid email address and a credit or debit card number from a card issuer that we accept. 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 any outstanding charges and terminate you 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. Timely payment by credit card is a material obligation under this Agreement. If your Service is terminated, you will remain fully liable to us for all charges pursuant to this Agreement.
4.3 Billing by ACH debit to your checking account. If you choose this option; when the service is activated, you must provide us with your address, valid email address, bank account and bank routing information including bank ABA#, bank name, bank address and bank phone number. Your subscription to the Service authorizes us to charge your bank account. This authorization will remain valid until 30 days after we receive written notice from you terminating our authority to charge your bank account, whereupon we will charge your bank account for any 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 bank account is declined, overdrawn, returned or reversed or your bank account is closed and you have not provided us with a valid replacement bank account or in case of any other non-payment of account charges. Timely payment by ACH to your bank account is a material obligation under this Agreement. If your Service is terminated, you will remain fully liable to us for all charges pursuant to this Agreement.
We reserve the right to stop accepting credit or debit cards from one or more issuers or providing ACH withdrawal to any banking institution. If your credit or debit card expires, you close your credit, debit or bank account, your billing address changes, or your credit or debit card or bank account is canceled and replaced on account of loss or theft, you must advise us at once. 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:
•Monthly service fees
•International usage charges
•Advanced features charges
•Interest and/or late fees
•Shipping / handling fees
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 on file with us. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $250. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on our website.
4.4 Billing Disputes. You must notify us in writing within seven days after receiving your invoice or credit or debit card statement if you dispute any ComTech charges or you will be deemed to have waived any right to contest such charges. All notices of disputed charges should be sent to: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 on file with us. We reserve the right to bill at more frequent intervals if the amount you owe to us at any time exceeds $250. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules found on our website.
7404-A Lindbergh Drive Gaithersburg, MD 20879
Attn: Hosted Billing Dept.
4.5 Termination. Discontinuance of Service. We reserve the right to suspend or discontinue the Service without cause along with a 90 day notice of such event. Customer will be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month’s charges.
4.6 Default. If Customer fails to comply with any material obligation under the Agreement, that failure shall constitute a default. ComTech shall notify the defaulting Party in writing of the default. If the default is not remedied within thirty (30) days after receipt of the notice of default sent, then ComTech may declare the Agreement terminated and terminate all Services.
If Customer fails to cure its default within the applicable 30 day period, Client shall pay to ComTech within thirty (30) days after receipt of written notice all amounts due ComTech prior to the date of termination plus liquidated damages (which damages shall not be construed as a penalty) equal to the monthly payment amount multiplied times the number of months remaining in the term of the Agreement.
In the event of a dispute involving this Agreement, the prevailing party in any dispute shall have the absolute right to seek reasonable attorney’s fees and costs relating to the resolution of dispute.
4.7 Taxes. Customer is responsible for all applicable federal, state, provincial, 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 your 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 you as set forth in this Agreement. If you are exempt from payment of such taxes, you must provide us with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date we receive such certificate.
5. Equipment for Services
5.1 ComTech Provided Equipment (Equipment for Services Program). ComTech offers an EFS program whereas ComTech will provide goods and services to the customer and offer the payout to be made over an agreed period of time after which, when the final payment has been made, the customer will own equipment in full. All equipment provided by ComTech under this Agreement shall remain the property of ComTech until it is paid for in full. Customer agrees to allow ComTech to file a Uniform Commercial Code UCC-1 statement for the value of the equipment provided. ComTech equipment provided under this Agreement shall not be moved or transferred to a new location or locations without prior written permission from ComTech, which permission shall not be unreasonably withheld. In no event shall services provided under this agreement or any other agreement affect the responsibility of the customer to pay in full for equipment provided under EFS and it is understood the Equipment for Services is a stated equipment purchase option which at the end of such service term and fulfillment of its terms the customer shall have full rights and ownership of such equipment. On declaration by ComTech that the Customer is in default, all equipment then subject to this Agreement shall be surrendered and delivered to ComTech, and ComTech may take possession of the property wherever it may be found, and for that purpose may enter into the premises of Customer.
On default, Customer and Customer’s successor in interest, whether by operation of law or otherwise, shall have no right, title, or interest in the equipment under this Agreement for the possession or use of such equipment, and ComTech shall retain all sums paid by Customer under this Agreement with respect to all such equipment. Such sums should be considered earned. ComTech shall then proceed in accordance with this Agreement by seeking to sell the equipment to third parties for the highest bid and shall have the right to seek compensation for value lost from Customer based upon the default in the event of a shortfall at the time of the sale. Any surplus or deficiency resulting shall be paid to or be paid by Customer to or from ComTech. Rights and remedies of ComTech under this Agreement are not exclusive, but cumulative and in addition to any other rights and remedies provided by law.
6. Applications Transmission
6.1 It is ComTech’s recommendation that a network feasibility test be done prior to installation of VOIP to ensure the network architecture is sufficient to allow VoIP applications to transmit effectively. It is understood that VOIP services will be transmitted across Client provided data networks. Customer cabling must pass industry minimal requirements under National Electrical Codes 568B standards. Unless specifically outlined in our agreement, the understanding is that the Customer, not ComTech, will provide the integration and/or management of the IP network necessary for any of the systems or applications to operate and function successfully according to generally accepted industry standards for VOIP including all cabling, programming, configuration, IP addressing and enhancements required to deploy a successful and fully functional VOIP installation. This will include the customer’s responsibility to ensure proper switching architecture is in place that will support VLANS and or a dedicated Ethernet port to each IP phone.
7. General Charges
(a) Payphone Charges. If you use our “Toll Free” feature or any toll free feature that we offer in the future, we will be entitled to recover from you any charges imposed on us either directly or indirectly in connection with toll free calls made to your number. We may recover these amounts by means of a per-call charge, rounded up to the next cent, or in such other fashion as we deem appropriate for the recovery of these costs.
(b) Charges for Directory Calls (411). We will charge you a flat $3.00 per month for all calls made to directory assistance.
(c) Charges for Conference Bridge Calls: We will charge you per minute for each caller who calls into your conference bride. Your Conference Bridge per minute usage fee will be the lower of (i) 3.9 cents per minute, or (ii) the per minute Conference Bridge usage fee determined in your Service Activation Form. The usage fee will be calculated, per minute, based on all participants on the conference bridge, including on-network and off-network participants.
8. Limitation of Liability; Indemnification; Warranties
8.1 Limitation of Liability. We will not be liable for any delay or failure to provide 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:
(a) an act or omission of an underlying carrier, service provider, vendor or other third party;
(b) equipment, network or facility failure;
(c) equipment, network or facility upgrade or modification;
(d) force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions;
(e) equipment, network or facility shortage;
(f) equipment or facility relocation;
(g) service, equipment, network or facility failure caused by the loss of power to you;
(h) outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party;
(i) any act or omission by you or any person using the Service or Device provided to you; or
(j) any other cause that is beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication, the inability of communications (including, without limitation, 911 Dialing) to be connected or completed, or forwarded;
(k) Our aggregate liability under this agreement will in no event exceed the Service charges with respect to the affected time period;
8.2 Disclaimer of Liability and Indemnification. We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither ComTech nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless ComTech, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorney’s fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
8.3 Disclaimer of Liability for Damages. In no event will ComTech, its officers, directors, employees, affiliates or agents or any other service provider who furnishes services to you in connection the service be liable for any direct, incidental, indirect, special, punitive, exemplary or consequential damages, or for any other damages, including but not limited to personal injury, wrongful death, property damage, loss of data, loss of revenue or profits, or damages arising out of or in connection with the use or inability to use the service, including inability to access emergency service personnel through the 911 dialing service or to obtain emergency help. the limitations set forth herein apply to claims founded in breach of contract, breach of warranty, product liability, tort and any and all other theories of liability and apply whether or not we were informed of the likelihood of any particular type of damages.
8.4 Indemnification and Survival.
(a) Indemnification. You shall defend, indemnify, and hold harmless ComTech, 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, attorney’s fees) by, or on behalf of, you or any third party or user of the Service, relating to the Services, including, without limitation, 911 Dialing, or the Device.
(b) Survival. The provisions of this Agreement that by their sense and context are intended to survive the termination or expiration of this Agreement shall survive.
8.5 Warranties on Service.
(a) We make no warranties, express or implied, including but not limited to, any implied warranties of merchantability, fitness of the service or device for a particular purpose, title or non-infringement or any warranty arising by usage of trade, course of dealing or course of performance or any warranty that the service will meet customer’s requirements. Without limiting the foregoing, we do not warrant that the service or device will be without failure, delay, interruption, error, degradation of voice quality or loss of content, data or information. Neither ComTech nor its officers, directors, employees, affiliates or agents, or any other service provider or vendor who furnishes services devices, or products to customer in connection with the service, will be liable for unauthorized access to our or your 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 ComTech’s or its service provider’s or vendors’ negligence. Statements and descriptions concerning the service or device, if any, by ComTech or ComTech’s agents or installers are informational and are not given as a warranty of any kind.
(b) Warranty. ComTech’s provision of Service Terms is contingent upon Customer’s proper use and care of the Products and proper maintenance of the network and internetworking components, network operating environment and cabling infrastructure and proper reporting of service issues and outages. ComTech shall have no obligation to provide Warranty, Service or maintenance in the event of:
(a) Network and Hardware alterations, modifications, customizations, unauthorized repairs, or any additions or changes to functionality or configuration of the network architecture not certified by ComTech;
(b) Attachment of third party Hardware or Software not certified by ComTech, or use of the Products in combination with any third party Software, Hardware or other systems not certified by ComTech;
(c) Misuse, accident, or damage resulting from acts of nature, neglect; failure to follow prescribed maintenance procedures;
(d) Failure to provide and maintain the specified environmental operating conditions for the Products;
(e) Failure to conform to best applied practices for a Voice over IP (VoIP) networked operating environment;
(f) Relocation of Products, unless otherwise agreed in writing;
(g) Failure to maintain proper backup and recovery procedures;
(h) Failure to protect and secure such areas as external and internal threats, access and security policy issues;
(i) Bandwidth saturation or other resource exhaustion or outage caused by malicious traffic such as Viruses, Worms, Trojan horses, Denial of Service (DOS) attacks, etc.;
(j) Failure to maintain premise cabling, network infrastructure, internet availability;
(k)Failure to implement and maintain Quality of Service policies and Carrier Service Level Agreements resulting in performance issues such as packet loss, delay, jitter and echo;
(l) Failure to report to ComTech promptly any service issues or outages by initiating a service ticket with the ComTech service department at (301) 670-1900(301) 670-1900 or email@example.com;
(c) Device Warranties. Except as set forth herein, if you received the Device new from us and the Device included a limited warranty at the time of receipt, you must refer to the separate limited warranty document provided with the Device for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation.
If your Device did not include a limited warranty from us at the time of receipt, you are accepting the Device “as is”. You are not entitled to replacement, repair or refund in the event of any defect.
(d) Disclaimer. Other than warranties as to the device expressly set forth in the documentation provided with the device and the retail customer limited warranty expressly set forth herein, we make no warranties of any kind, express or implied, and specifically disclaim any warranty of merchantability, fitness of the device for a particular purpose, title or non-infringement or any warranty arising by usage of trade, course of dealing or course of performance or any warranty that the device or any firmware or software is “error free” or will meet customer’s requirements. The foregoing will not be deemed to limit any disclaimer or limitation of warranty set forth in the documentation provided with the device. Device warranties do not apply to business customers.
9.1 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.
9.2 Content. You will be liable for any and all liability that may arise out of the content transmitted by you or to any person, whether authorized or unauthorized, using your Service or Device (each such person, a “User”). You shall assure that your and your User’s use of the Service and content comply at all times with all applicable laws, regulations and written and electronic instructions for use. We reserve the right to terminate or suspend your Services and remove your or your Users’ content from the Service, if we determine, in our sole and absolute discretion, that such use or content does not conform to the requirements set forth in this Agreement or interferes with our ability to provide Services to you or others. Our action or inaction under this Section will not constitute any review or approval of your or Users’ use or content.
9.3 Recording Conversations. ComTech provides a function that allows a user or Subscriber to record individual telephone conversations. The laws regarding the notice and notification requirements of such recorded conversations vary by state to state. Subscriber is solely responsible for applying the local laws in the relevant jurisdiction when using this feature.
9.4 Governing Law. The Agreement and the relationship between you and us is governed by the laws of the State of Maryland without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 5.2, you shall submit to the personal and exclusive jurisdiction of the courts located within the State of Maryland and waive any objection as to venue or inconvenient forum.
9.5 Mandatory Arbitration and No Jury Trial. Any dispute or claim between you, any member of your household or any guest or employee of you and arising out of or relating to the Service or Device will be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration will take place in Montgomery County, Maryland. The arbitrator’s decision will follow the plain meaning of the relevant documents, and will be final and binding. Without limiting the foregoing, the parties agree that no arbitrator has the authority to: (i) award relief in excess of what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the service must be filed within one (1) year after such claim or cause of action arose or be forever barred. All claims shall be arbitrated individually. You shall 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. This arbitration provision constitutes a waiver of any right to a jury trial and an agreement to be subject to jurisdiction in, and conduct arbitral proceedings in, Montgomery County, New Jersey.
9.6 No Waiver of Rights. Our failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
9.7 Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.
9.8 Future Changes to This Agreement. We may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on www.comtechcloud.com. ComTech will make best efforts to notify Customers in advance via email regarding changes to the terms and conditions of this Agreement. Such changes will become binding on you on the date they are posted to our website and no further notice by us is required upon your continued use of the Service. The Agreement as and when posted supersedes all previously agreed to electronic and written terms of service, including, without limitation, any terms included with the packaging of the Device and also supersedes any written terms provided to Retail Customers in connection with retail distribution, including, without limitation, any written terms enclosed within the packaging of the Device.
10. Entire Agreement. This Agreement, including any future modifications as may occur within the terms of the Agreement, and the rates for Services found on our website, constitute the entire agreement between you and ComTech and govern the use of the Service by you, members of your business, employees and guests. This Agreement supersedes any prior agreements between you and ComTech and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.