GENERAL TERMS AND CONDITIONS
collectively, “MSA”) executed by Customer and Decibel, these General Terms and Conditions (“General Terms and Conditions”), any written amendments to the MSA executed by both Parties (“Amendments”), and any and all Service Orders accepted hereunder accepted by Decibel (collectively, “Agreement”).
Amendment(s): Any written amendment to the MSA, executed by both Parties, including any supplemental terms and conditions.
Confidential Information: All information regarding Decibel’s business which has been marked or is otherwise communicated as being “proprietary” or “confidential” or which reasonably should be known by Customer to be proprietary or confidential information under the circumstances. Without limiting the generality of the foregoing, Confidential Information shall include, even if not marked, the Agreement, all Licensed Software, promotional materials, proposals, quotes, rate information, discount information, subscriber information, network upgrade information and schedules, network operation information (including without limitation information about outages and planned maintenance) and invoices, as well as Decibel’s communications regarding such items.
Custom Installation: An extension, build or upgrade to the Decibel Network that Decibel deems required in order to provide the ordered Services at the requested Service Location(s).
Custom Installation Fee: A fee imposed on Customer resulting from the need to perform a Custom Installation. Custom Installation Fees may also be referred to as Construction Charges on a Service Order or invoice.
Customer: Means the customer purchasing Services from Decibel hereunder.
Customer-Provided Equipment (or CE): Any and all facilities, equipment or devices supplied by Customer or sold by Decibel to Customer for use in connection with the Services.
Demarcation Point: The point of interconnection between the Network and Customer’s provided equipment located at a Service Location. In some cases, the Demarcation Point shall be to the User Network Interface (UNI) port on Decibel Equipment at a Service Location.
Equipment: Equipment used for the provision of the Service.
Initial Term: Refers to the initial term of the Master Service Agreement.
Licensed Software: Computer software or code provided by Decibel or required to use the Services, including without limitation, associated documentation, and all updates thereto.
Network: Consists of the Decibel Equipment, facilities, fiber optic cable associated with electronics and other equipment used to provide the Services.
Notice: Written notice given pursuant to Section 13.5.
Onboarding Documents: All documents determined by Decibel at its sole discretion to be necessary in order to initiate Service including but not limited to: Customer Contact and Billing Information Form and a Letter of Authorization for Porting of numbers.
Party: A reference to Decibel or the Customer. Decibel and Customer may be referred to herein collectively as the “Parties”.
Professional Services: Custom installation, technical or other services provided by Decibel to Customer hereunder.
Sales Order: A Service Order.
Service Commencement Date: As defined in Section 3.5 of these General Terms and Conditions.
Service Order: A request for Decibel to provide Service(s) to a Service Location(s) submitted either electronically or on a Decibel designated form by Customer to Decibel. Service Orders become binding on Decibel when accepted by Decibel in writing. A Service Order may also be referred to as a Sales Order, an Add-on Order or an Add-on Service Order.
Service(s): A service provided by Decibel pursuant to the MSA or a Service Order.
Service Location(s): The Customer location(s) where Decibel provides the Services.
Service Term: The duration of time (commencing on the Service Commencement Date not the date such Service is ordered) for which Services are ordered, as specified in the MSA or a Service Order. If no term is specified in the MSA or Service Order then the default Service Term will be three (3) years. A renewal term may be referred to herein as a Renewal Service Term. The renewal periods will be the same length of time as the Initial Service Term unless specified otherwise. Service Terms may be extended by the Customer entering into subsequent Service Orders pursuant to Section 5.3, below. Service Term may also be referred to as the “Term”.
Decibel: References to Decibel in the Limitation of Liability, Disclaimer of Warranties and Indemnification Articles shall also include its directors, officers, employees, agents, Affiliates, suppliers, licensors, successors, and assigns, as the case may be.
Decibel Equipment: Any and all facilities, equipment or devices provided by Decibel (except where purchased or owned by Customer) or its authorized contractors at the Service Location(s) that are used to deliver any of the Services including, but not limited to, all terminals, wires, modems, lines, circuits, ports, routers, gateways, switches, channel service units, data service units, cabinets, and racks. Notwithstanding the above, inside telephone wiring within the Service Location and Equipment provided by or sold to Customer hereunder, whether or not installed by Decibel, shall not be considered Decibel Equipment.
Termination Charges: Charges that may be imposed by Decibel if, prior to the end of the applicable Service Term (a) Decibel terminates Services for cause or (b) Customer terminates Services without cause. The formula for calculating Termination Charges is set forth in Section 6.3 of these General Terms and Conditions.
Use Policies: Policies that Decibel may have adopted or may adopt from time to time governing the use or other aspects of the Service(s) or Decibel operations that that may limit or affect how Customer or end users can use the Service(s). Use Policies include without limitation, Decibel’s acceptable use policy and other security policies concerning the Services which are posted on Decibel’s website. All Use Policies are incorporated into this Agreement by reference
2. Agreement Revisions.
Decibel may change or modify the Agreement from time to time (including without limitation these General Terms and Conditions), and any related policies from time to time (“Revisions”) by posting such Revisions to the Decibel website at https://calldecibel.losh.com/terms. All such Revisions shall be effective upon posting to the website. If Decibel determines that the Revisions materially affect Services provided to Customer and except where the Revisions result from changes to a
Decibel tariff, if any, Decibel will use commercially reasonable effort to notify Customer of the Revisions via email or in the next applicable monthly invoice.
otherwise would not have incurred, Customer shall be responsible for such costs or expenses. Any other failure on the part of Customer to be ready to receive Service, or any refusal on the part of Customer to receive Service, shall not relieve Customer of its obligation to pay charges for any Service that is otherwise available for use.
3.3 Ownership, Impairment and Removal of Network. The Network is and shall remain the property of Decibel regardless of whether installed within or upon the Service Location(s) and whether installed overhead, above, or underground and shall not be considered a fixture or an addition to the land or the Service Location(s) located thereon. Customer agrees that it shall take no action that directly or indirectly impairs Decibel’s title to the Network, or any portion thereof, or exposes Decibel to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties. Nothing in this Agreement shall preclude Decibel from using the Network for Services provided to other Decibel customers. For a period of three (3) months following Decibel’s discontinuance of Service to the Service Location(s), Decibel retains the right to remove the Network including, but not limited to, that portion of the Network that is located in the Service Location. Customer is obligated to provide access to the facilities in order to remove the Network. To the extent Decibel removes such portion of the Network it shall be responsible for returning the Service Location(s) to its prior condition, reasonable wear and tear excepted.
3.4 Service Configuration; Engineering Review. Decibel will configure the Service (including, but not limited to, call-flow configuration) in connection with the installation of Services; provided, however, that Customer and/or the End User shall have sole responsibility for configuration with respect to all of its own CE, any and all end user or third party equipment and other networks, systems, equipment, facilities, or property not provided by Decibel. The MSA and each Service Order submitted by Customer may be subject to an engineering review in Decibel’s sole discretion. The engineering review will determine whether and to what extent a Custom Installation is required. Decibel will provide Customer written notification in the event Service installation at any Service Location will require an additional non-recurring Custom Installation Fee. In the event that the Custom Installation Fee exceeds five hundred dollars ($500), Customer will have five (5) business days from receipt of such Notice to reject the Custom Installation Fee and terminate, without further liability, the Service Order with respect to the affected Service Location(s). Custom Installation Fees of less than five hundred dollars ($500) do not require any Notice to the Customer and must be paid promptly after being invoiced. For certain Services, the engineering review may be conducted prior to Service Order submission. In such case, Customer will have accepted the designated Custom Installation Fee upon submission of the applicable Service Order regardless of the magnitude of the Custom Installation Fee. Customer agrees, at its sole expense, to provide the proper environmental and electrical and telecommunications connections for the Equipment and Services.
3.5 Service Start. Except as may otherwise be identified, the Service Commencement Date shall be the earliest of (a) the date Decibel completes installation and connection of the necessary facilities and equipment to provide the Service at a Service Location; (b) the date upon which Service has been made available; or (c) the date upon which Customer uses any Decibel Service. The prepayment of a Custom Installation Fee or any other deposit or prepayment for Services prior to receiving such Service does not by itself trigger the Service Commencement Date, Any failure of performance or delay attributable to Customer or Customer’s agents, representatives, or other contractors, or any failure, incompatibility, or unavailability on the part of Customer’s CE, facilities, or systems not provided by Decibel, shall not serve to delay the Service Commencement Date or otherwise excuse Customer from being required to make payment for the Service at such time as Decibel would be ready to provide the Service, regardless of whether Customer is ready to use the Service. In the event that Decibel installs dedicated connectivity for and to Customer, including, but not limited to, DSL, T-1s, DS3s, DIAs, Ethernet services, and fiber connectivity, and there has been any delay attributable (in Decibel’s sole discretion) to Customer that delays the Service Commencement date for more than five (5) business days past the date of the installation of such dedicated access, Decibel reserves the right to begin invoicing Customer for the dedicated access, and Customer agrees to pay for such charges.
3.6 Maintenance. Following the Service Commencement Date, Decibel will provide as much advance telephonic, written, or electronic notice as reasonably practicable with regard to any scheduled maintenance with respect to the Services. Notwithstanding the foregoing, in the event of an emergency, Decibel shall have the right to perform maintenance and/or restoration of its network, Decibel Equipment, and the Services immediately, and will make commercially reasonable efforts to notify Customer (by whatever means) as soon as reasonably practicable thereafter. Decibel will provide to Customer procedures and processes for reporting repair, problem, and maintenance requirements associated with the Services. If, upon responding to a Customer-initiated service call, Decibel determines that the source of the trouble or failure is a failure, malfunction, or inadequacy on the part of Customer, CE, or any other of Customer’s suppliers or contractors or third party equipment or network, Customer shall compensate Decibel at Decibel’s then-prevailing rates for time and materials expended during the service call. Customer’s sole and exclusive remedies with respect to any failure or delay of Decibel in providing any Service shall be as set forth in these General Terms and Conditions and Service Order for such Service.
3.7 Relocation of Services. If, during the term of this Agreement, a change (such as movement of Customer or an end user to a different location) requires movement of the location to which Service is provided, thereby necessitating a move of the Service, the following conditions will apply:
A. Customer will pay Decibel’s then-current non-recurring charges for Professional Services to facilitate the move of Services for Customer. The Professional Services provided will include: (1) Decibel’s provisioning of new Decibel Equipment (including, but not limited to, switches and routers); (2) Installation of the new Decibel Equipment at the Customer’s new location prior to the move; and (3) Reclamation of the existing Decibel Equipment from Customer’s old location after the move.
B. Customer and/or the End User will be required to pay Decibel its prevailing hourly rate for its employees or agents to move any Decibel-provided telephone handsets and any and all CE and other third party equipment and network facilities.
C. If Decibel is required to terminate the access facilities (including, but not limited to, T-1s, DS3s, DIAs, fiber, etc.) at the Customer’s old location and install new access facilities into a new location, Customer agrees to pay any and all charges assessed to Decibel by any third party for such reconfiguration or termination including any early termination charges or liquidated damages for early termination. Additionally, Customer acknowledges that Decibel’s costs for access facilities are based on geography, and in the event of such a move Decibel’s monthly-recurring cost for the new access facilities may be greater than the cost of the current access facilities. In the event that the monthly recurring cost of the new access facilities is greater than the current cost, Decibel reserves the right to charge Customer an additional access fee, and Customer agrees to pay such fee.
4. Billing and Payment
4.1 Charges. Except as otherwise expressly provided, Customer shall pay Decibel one hundred percent (100%) of any required Custom Installation Fee prior to the installation of Service. Customer further agrees to pay in advance all anticipated or actual charges associated with the Services, as set forth or referenced in the MSA or applicable Service Order(s) or invoice from Decibel. These charges may include, but are not limited to standard and custom non-recurring installation charges, monthly recurring service charges, usage charges including without limitation charges for the use of Decibel Equipment, per-call charges, charges for service calls, maintenance and repair charges, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated). Some Services may be invoiced after the Service has been provided to Customer. Decibel shall not be restricted from billing and collecting any charges incurred by Customer at any point over the lifetime of the Agreement or Service Order unless specifically barred by law. Notwithstanding any other provision of this Agreement to the contrary, Decibel shall be entitled to increase the monthly recurring charges or usage-based charges payable by Customer with respect to any Service upon thirty (30) days’ prior written or electronic notice to Customer.
4.2 Third-Party Charges. Customer may incur charges from third-party service providers that are separate and apart from, or based on the amounts charged by Decibel. These charges may include, without limitation, charges resulting from third party network charges or other services obtained from third-parties in order to provide Service to Customer. Customer agrees that all such charges, including all applicable taxes, are Customer’s sole responsibility. In addition, Customer is solely responsible for protecting the security of credit card information provided to others in connection with such transactions.
4.3 Payment of Bills. Except as otherwise indicated herein, Decibel will invoice Customer in advance on a monthly basis for all monthly recurring charges, recurring third-party pass-through fees and fees arising under the Agreement. Without limitation, usage charges relating to PBX Service, a cloud-based equivalent Service, or similar Services will also be billed in advanced. All other usage based charges will be billed monthly in arrears. Payment is due upon presentation of an invoice. Customer agrees that any and all charges will be charged to the credit card on file with Decibel without any additional notice or consent. Customer further agrees that any taxes and other charges, including but not limited to, account setup fees, adapter fees, Equipment charges, shipping and handling and other nonrecurring charges will be charged to Customer’s credit card without any additional notice or consent. Recurring charges will be billed and automatically charged to Customer’s credit card on the first day of every billing cycle. Payment will be considered timely made to Decibel if received within thirty (30) days of the invoice date. Any charges not paid to Decibel within such period will be considered past due. Customer shall make all payments due hereunder free and clear without deduction or withholding. If a Service Commencement Date is not the first day of a billing period, Customer’s first monthly invoice shall include any pro-rated charges for the Services, from the Service Commencement Date to the start of the next billing period. In certain cases, Decibel may agree to provide billing services on behalf of third parties, as the agent of the third party. Any such third-party charges shall be payable pursuant to any contract or other arrangement between the third party and Customer and/or Decibel. Decibel shall not be responsible for any dispute regarding these charges between Customer and such third party. Customer must address all such disputes directly with the third party.
4.4 Partial Payment. Partial payment of any bill will be applied to the Customer’s outstanding charges in amounts and proportions solely determined by Decibel. No acceptance of partial payment(s) by Decibel shall constitute a waiver of any rights to collect the full balance owed under the Agreement.
4.5 Credit Approval and Deposits. Initial and ongoing delivery of Services may be subject to credit approval. Customer shall provide Decibel with credit information requested by Decibel. Customer authorizes Decibel to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records. Customer represents and warrants that all credit information that it provides to Decibel will be true and correct. Decibel, in its sole discretion, may deny the Services based upon an unsatisfactory credit history. Additionally, subject to applicable regulations, Decibel may require Customer to make a deposit (in an amount not to exceed an estimated three (3) months charge for the Services) as a condition to Decibel’s provision of the Services, or as a condition to Decibel’s continuation of the Services. The deposit will not, unless explicitly required by law,
bear interest and shall be held by Decibel as security for payment of Customer’s charges. Decibel may apply the deposit to any delinquent Customer charges upon written Notice to Customer. If Decibel uses any or all of the deposit to pay an account delinquency, Customer will replenish the deposit by that amount within five (5) business days of its receipt of written Notice from Decibel. If the provision of Service to Customer is terminated, or if Decibel determines in its reasonable discretion that such deposit is no longer necessary, then the amount of the deposit (plus any required deposit interest) will be credited to Customer’s account or will be refunded to Customer, as determined by Decibel.
4.6 Taxes and Fees. Except to the extent Customer provides a valid tax exemption certificate prior to the delivery of Service, Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes, charges, surcharges and fees (however designated). Tax exemption certificates will not be applied retroactively to Services billed prior to the date the tax exemption certificate is received by Decibel and Decibel will not refund any payments for Taxes and surcharges made to Decibel even if Customer was eligible for an exemption from those Taxes. Customer also will be responsible to pay any Service fees, payment obligations and taxes that become applicable retroactively including but not limited to the loss of tax exempt status. In the event that any payment to be made to Decibel under this Agreement are subject to any reduction by reason of a required deduction or withholding of any tax, the Customer agrees to pay Decibel such further amounts as would have been necessary so that the aggregate net amount received by Decibel after deduction or withholding of any Taxes, shall be the same amount as would have been received by Decibel if there had been no requirement to deduct or withhold any Taxes.
4.7 Other Government-Related Costs and Fees. Decibel reserves the right to invoice Customer for any fees or payment obligations in connection with the Services imposed by governmental or quasi-governmental bodies in connection with the sale, installation, use, or provision of the Services, including, without limitation, applicable franchise fees, right of way fees and Universal Service Fund charges (if any), regardless of whether Decibel or its Affiliates pay the fees directly or are required by an order, rule, or regulation of a taxing jurisdiction to collect them from Customer.
4.8 Changes to Taxes and Fees. Taxes and other government-related fees and surcharges may be changed with or without notice, In the event that any newly adopted law, rule, regulation or judgment increases Decibel’s costs of providing Services, Customer shall pay Decibel’s additional costs of providing Services under the new law, rule, regulation or judgment.
4.9 Disputed Invoice. If Customer disputes any portion of an invoice by the due date, Customer shall pay the disputed charges, in addition to the undisputed portion of the invoice and submit a written claim, including all documentation substantiating Customer’s claim, to Decibel for the disputed amount of the invoice by the invoice due date. The Parties shall negotiate in good faith to resolve any billing dispute but Decibel shall make the final decision on any billing dispute at its sole discretion. Customer may not dispute any charge or invoice that were incurred by Customer more than one hundred and twenty (120) days prior to the date of the filing of a billing dispute. Decibel will refund/credit all valid disputes resolved in Customer’s favor as of the date the disputed charges first appeared on the Customer’s invoice.
4.10 Past-Due Amounts. Any payment not made when due will be subject to a late charge of 1.5% per month or the highest rate allowed by law on the unpaid invoice, whichever is lower. If Customer’s account is delinquent, Decibel may refer the account to a collection agency or attorney that may pursue collection of the past due amount and/or any Decibel Equipment which Customer fails to return in accordance with the Agreement. If Decibel is required to use a collection agency or attorney to collect any amount owed by Customer or any unreturned Decibel Equipment, Customer agrees to pay all costs of collection or other action, including attorneys’ fees and court costs. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to Decibel under the Agreement or at law or in equity.
4.11 Rejected Payments. Except to the extent otherwise prohibited by law, Customer will be assessed a service charge up to the full amount permitted under applicable law for any check or other instrument used to pay for the Services that has been rejected by the bank or other financial institution.
4.12 Fraudulent Use of Services. Customer is responsible for all charges attributable to Customer with respect to the Service(s), even if incurred as the result of fraudulent or unauthorized use of the Service. Decibel may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to Customer. Decibel reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent use of Customer’s Service at Decibel’s sole discretion.
4.13 Credit Card Information on File. Customer agrees that Decibel may charge Customer’s credit card for all amounts due to us without additional notice or consent. Customer agrees to provide a credit card number to Decibel and not a debit card. If Customer’s card is a combination credit card/debit card, Customer authorizes Decibel to use it as a credit card. Customer will also indemnify Decibel for any claims or expenses resulting from providing a debit card instead of a credit card.
5. Term
5.1 Agreement Term. Upon execution of the Agreement, Customer shall be allowed to submit Service Orders to Decibel during the Initial Term referenced on the MSA. After the expiration of the Initial Term, Decibel may continue to accept Service Orders from Customer under the Agreement, or require the Parties to execute a new agreement at its sole discretion. This Agreement shall continue in effect until the expiration or termination date of the later of the MSA or last Service Order (including automatic renewals) entered under the Agreement, unless terminated earlier in accordance with the Agreement.
5.2 Service Term. Each Service may have a Service Term as specified in the MSA (if the Initial Service Order was submitted with the MSA) or a subsequent Service Order, as may be applicable. The Service Term starts on the Service Commencement Date and may be of a different length of time than the Initial Term of the MSA.
5.3 Automatic Extension of Service Term. Parties agree that it is mutually beneficial to both Parties to have the Service Term run concurrently for all Services Decibel provides Customer. Therefore, unless specifically excluded in the Service Order, upon Decibel’s accepting an additional Service Order submitted by Customer that Service Term of the additional Service Order will run concurrently with the remaining term of this MSA. At Decibel’s sole discretion, Decibel may adjust the pricing upon thirty (30) days Notice to Customer on any Service(s) whose Service Term is extended by virtue of this provision. If such adjustment results in an increase in price for any Service(s) of more than three percent (3%) over the previous price, then Customer may cancel the Service(s) in question within thirty (30) days of Customer’s receipt of the Notice of price increase without any further penalty by giving Decibel Notice. After thirty (30) days from the Customer’s receipt of Decibel’s Notice of price increase, any cancelation of any Services by Customer would be subject to the early termination charges as provided Section 6.3, below.
5.4 Service Term Renewal. Upon the expiration of a Service Term, and unless otherwise agreed to by the Parties in the MSA or Service Order, the MSA and each Service Order shall automatically renew for successive periods of one (1) year (“Renewal Service Term(s)”), unless otherwise stated in these terms and conditions or prior Notice of non-renewal is delivered by either Party to the other at least thirty (30) days before the expiration of the Service Term or the then current Renewal Service Term. In the case when a prior Notice of non-renewal is submitted by Customer, upon expiration, Services will automatically continue to be provided on a month-to-month basis until a successor agreement is established. Effective at any time after the end of the Service Term and from time-to-time thereafter, Decibel may, modify the charges for Service subject to thirty (30) days prior written Notice to Customer.
6. Termination and Default
6.1 Termination for Convenience. Notwithstanding any other term or provision in this Agreement, Decibel shall have the right, in its sole discretion, to terminate any or all Service Order(s) at any time during the Service Term(s), upon sixty (60) days prior written Notice to Customer. Decibel may terminate this Agreement immediately upon Notice if Customer does not take any Service under this Agreement for twelve (12) consecutive months or longer.
6.2 Termination for Cause. Decibel may temporarily suspend or permanently terminate one or more Service(s) without notice or liability to Customer: (a) in the event Customer: (i) fails to timely pay any amount due to Decibel (including without limitation submission of a required deposit); (ii) provides insufficient or fraudulent billing information, or (iii) violates any term of this Agreement, a Use Policy, or applicable laws or governmental rules or regulations; (b) by reason of an order of a court or regulatory or other governmental authority; (c) upon institution by or against Customer of a proceeding for relief under the Bankruptcy Code, the insolvency of Customer or the appointment of a receiver of Customer’s property; or (d) Decibel deems such action necessary to protect itself or third parties against fraud or to protect its personnel, agents, or Services provided, however, that such suspensions or termination of the Term shall not relieve Customer of its obligations to pay charges due for its remaining Term and early termination charges may apply as set forth in Section 6.3, below.
6.3 Early Termination. If (i) Customer cancels or terminates a Service under this Agreement or any Service Order prior to the end of the associated Service Term for any reason; or (ii) Decibel terminates this Agreement and/or any Service Order(s) for cause, then in addition to any other rights or remedies available to Decibel hereunder, at law, or in equity, Customer shall pay Decibel early termination charges (as liquidated damages and not as a penalty) equal to:
A. the aggregate fees, charges, expenses, and taxes payable by Decibel to any third party (including, but not limited to, liquidated damages, disconnection, early cancellation or termination charges payable to third parties) in connection with the cancellation or termination of the Service(s); and
B. the total of the nonrecurring charges and any monthly recurring charges multiplied by the number of months remaining on the Agreement/Service Order, plus the monthly average of any usage based charges (as determined by averaging the charges incurred the previous three (3) months) multiplies by the number of months remaining on the Agreement/Service Order. Customer must continue to pay all charges for Services until any disconnection upon cancellation or early termination occurs.
All early termination charges are due and payable within thirty (30) business days of the effective date of cancellation or termination, as applicable. Customer acknowledges and agrees that the cancellation charges and early termination charges are reasonable liquidated damages payable to Decibel, and do not represent or constitute a penalty, because actual damages would be difficult or impossible to ascertain. Customer acknowledges and agrees that the actual damages would be difficult or impossible to ascertain and waives any right it has to seek a showing of actual damages by Decibel. Upon cancellation, termination, or expiration of a Service Order, Decibel shall owe Customer no further duties, obligations, or consideration; provided, however, that cancellation, termination, or expiration shall not affect the rights, obligations, or liabilities of either Party that have arisen before the date of cancellation, termination, or expiration.
6.4 Effect of Expiration/Termination of a Service Order. Upon the expiration or termination of the MSA or a Service Order for any reason:
A. Decibel shall disconnect the applicable Service;
B. Decibel may delete all applicable data, files, electronic messages, or other information stored on Decibel’s servers or systems;
C. If Customer has terminated the MSA or a Service Order prior to the expiration of the Service Term for convenience, or if Decibel has terminated the MSA or the Service Order prior to the expiration of the Service Term as a result of material breach by Customer, Decibel may assess and collect from Customer applicable termination charges (if any);
D. Customer shall, permit Decibel to retrieve from the applicable Service Location any and all Decibel Equipment. If Customer fails to permit such retrieval or if the retrieved Decibel Equipment has been damaged and/or destroyed, Decibel may invoice Customer for the manufacturer’s list price of the relevant Decibel Equipment; and
E. Customer’s right to use applicable Licensed Software shall automatically terminate, and Customer shall be obligated to return all Licensed Software to Decibel.
6.5 Resumption of Service. If a Service has been suspended or discontinued by Decibel for cause and Customer requests that the Service be restored, Decibel shall have the sole and absolute discretion to restore such Service. At Decibel’s option, deposits, advanced payments, nonrecurring charges, and/or an extended Service Term may apply to restoration of Service.
6.6 Regulatory and Legal Changes. The Parties acknowledge that the respective rights and obligations of each Party as set forth in this Agreement upon its execution are based on applicable law and regulations as they exist on the date of execution of this Agreement. The Parties agree that in the event of any subsequent decision by a legislative, regulatory or judicial body, including any regulatory or judicial order, rule, regulation, decision in any arbitration or other dispute resolution or other legal or regulatory action that materially affects the provisions or ability to provide Services on economic terms of the Agreement, Decibel may, by providing written Notice to the Customer, require that the affected provisions of the Agreement be renegotiated in good faith. If Customer refuses to enter such renegotiations, or the Parties can’t reach resolution on new Agreement terms, Decibel may, in its sole discretion, terminate this Agreement, in whole or in part, upon written Notice to Customer.
7. Limitations of Liability; Disclaimer of Warrantees
7.1 Limitation of Liability.
A. THE AGGREGATE LIABILITY OF DECIBEL FOR ANY AND ALL LOSSES, DAMAGES AND CAUSES ARISING OUT OF THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE PERFORMANCE OF SERVICE, AND NOT OTHERWISE LIMITED HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED DIRECT DAMAGES EQUAL TO THE SUM TOTAL OF PAYMENTS MADE BY CUSTOMER TO DECIBEL DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE EVENT FOR THE SERVICE OR EQUIPMENT FOR WHICH DAMAGES ARE CLAIMED.
B. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, COVER, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND INTENTIONAL MISCONDUCT) OR OTHERWISE, EVEN IF DECIBEL WAS ADVISED OF THE POSSIBLITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLE FORESEEABLE. THIS SECTION SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY AND THE TERMINATION OF THIS AGREEMENT.
7.2 Disclaimer of Warranties.
A. Services shall be provided pursuant to the terms and conditions in the MSA, Service Orders, and these General Terms and Conditions, and are in lieu of all other warranties, express, implied or statutory, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, satisfactory condition or quality, title, and non-infringement. TO THE MAXIMUM EXTENT ALLOWED BY LAW, DECIBEL EXPRESSLY DISCLAIMS ALL SUCH EXPRESS, IMPLIED AND STATUTORY WARRANTIES.
B. Without limiting the generality of the foregoing, and except as expressly otherwise stated in this Agreement, Decibel does not warrant that the Services, Equipment sold or provided to Customer hereunder (including without limitation Decibel Equipment), or Licensed Software will be uninterrupted, error-free, or free of latency or delay, or that the Services, Decibel Equipment, or Licensed Software will meet customer’s requirements, or that the Services, Decibel Equipment, or Licensed Software will prevent unauthorized access by third parties. All Service and Equipment is sold “as is” and “with all faults” unless otherwise specified in writing.
C. In no event shall Decibel, be liable for any loss, damage or claim arising out of or related to: (i) stored, transmitted, or recorded data, files, or software; (ii) any act or omission of Customer, its users or third parties; (iii) interoperability, interaction or interconnection of the Services with applications, equipment, services or networks provided by Customer or third parties; or (iv) loss or destruction of any Customer hardware, software, files or data resulting from any virus or other harmful feature or from any attempt to remove it. Customer is advised to back up all data, files and software prior to the installation of Service and at regular intervals thereafter.
7.3 Disruption of Service. The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to severe injury to business, persons, property or environment (“High Risk Activities”). These High Risk Activities may include, without limitation, vital business or personal communications, or activities where absolutely accurate data or information is required.
8. Indemnification.
8.1 Indemnification Obligations. Customer shall indemnify, defend, and hold harmless Decibel and its parent company, affiliates, employees, directors, officers, and agents from and against any and all claims, demands, actions, causes of actions, damages, liabilities, losses, and expenses (including reasonable attorneys’ fees) (each a “Claim”) arising on account of or in connection with Customer’s use of, resale of or sharing of the Service provided under the Agreement, including with respect to: libel, slander, infringement of copyright, or unauthorized use of trademark, trade name, or service mark arising out of communications via the Service; for patent infringement arising from Customer’s combining or connection of CE to use the Service; and for damage arising out of the negligence, gross negligence or willful misconduct of Customer with respect to use of the Service.
8.2 Indemnification Procedures. In the event that Decibel claims indemnification under this Section 8, Decibel shall advise Customer of the Claim and shall cooperate to facilitate the defense or settlement of such Claim. Customer shall assume the defense of any Claim with counsel satisfactory to Decibel. Decibel may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. Customer shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires Decibel to take or refrain from taking any action or purports to obligate Decibel, then Customer shall not settle such claim without the prior written consent of Decibel, which consent shall not be unreasonably withheld, conditioned or delayed.
9. Equipment.
9.1 Decibel Equipment.
A. Ownership. Decibel may agree to deploy Decibel Equipment in connection with the provision of the Services. Decibel retains rights, title and interest in and to all Decibel Equipment that Decibel has deployed or Customer has rented from Decibel. Customer is strictly prohibited from encumbering in any way or granting any interest in Decibel’s Equipment to any third party. Customer agrees that this Agreement shall not grant Customer any property rights in any of the Decibel Equipment. Customer shall use Decibel Equipment solely in the conduct of its business, in a manner and for the use contemplated by the manufacturer thereof. Decibel shall be entitled to inspect the Equipment at reasonable times. Decibel may require markings to be affixed to the Equipment. Customer shall keep all Decibel Equipment free from any markings or labeling which might be interpreted as a claim of ownership thereof by Customer or any third party. Without the prior written consent of Decibel, Customer shall not assign, lend, pledge, transfer, or sublease any Decibel Equipment, permit to exist any security interest, lien or encumbrance with respect to any Decibel Equipment; or cause or permit any Decibel Equipment to be moved from the location specified in the Agreement. Any move of equipment to a new premise must be done by Decibel and shall be charged as a Professional Service on an individual case basis. Customer shall bear the risk of any loss, theft, damage or destruction to Decibel Equipment during the applicable Term under this Agreement that applies to Decibel Equipment. Customer shall obtain and maintain at its own expense insurance against the loss of or damage to all Decibel Equipment, including without limitation, loss by fire or other casualty. Customer acknowledges that Decibel may lease the Equipment from, or pledge any or all of its rights in Decibel Equipment to any entity or other financing source and in such event Customer shall comply with any and all directions from such financing source regarding the Decibel Equipment, including releasing the Decibel Equipment to such financing source upon written request by Decibel. Customer and Customer’s end users will not allow or cause any Decibel Equipment to be rearranged, moved, modified, repaired or relocated without Decibel’s written consent. All Decibel Equipment will be provided for the sole purpose of use in connection with the Service(s), shall remain the exclusive property of Decibel or its supplier, respectively, and shall be immediately returned to Decibel upon termination of the Service(s).
9.2 Customer Equipment.
A. Decibel shall have no obligation to install, operate, or maintain CE. Customer shall have sole responsibility for providing maintenance, repair, operation and replacement of all CE, inside telephone wiring and other Customer equipment and facilities on the Customer’s side of the Demarcation Point. Neither Decibel nor its employees, Affiliates, agents or contractors will be liable for any damage, loss, or destruction to CE, unless caused by the willful misconduct of Decibel. CE shall at all times be compatible with the Network as determined by Decibel in its sole discretion. In addition to any other service charges that may be imposed from time to time, Customer shall be responsible for the payment of service charges for visits by Decibel’s employees or agents to a Service Location when the Service difficulty or trouble report results from the use of CE or facilities provided by any party other than Decibel.
B. If Customer purchases Equipment from Decibel, the terms and conditions of such purchase shall be set forth on the applicable Service Order. If Customer is unable or unwilling to schedule or accept delivery or installation on the date Decibel tenders delivery or installation, Decibel shall have the right to initiate billing for the amounts due hereunder as of the date delivery or installation was tendered. Equipment prices and service charges are subject to change at Decibel’s sole discretion if Customer delays delivery or installation by more than ten (10) days.
10. Software and Services
10.1 License. If and to the extent that Customer requires the use of Licensed Software in order to use the Service supplied under the MSA or any Service Order, Customer shall have a personal, nonexclusive, nontransferable, and limited license to use such Licensed Software in object code only and solely to the extent necessary to use the applicable Service during the corresponding Service Term. All Licensed Software provided to Customer, and each revised version thereof, is licensed (not sold) to Customer by Decibel only for use in conjunction with the Service. Customer may not claim title to, or an ownership interest in, any Licensed Software (or any derivations or improvements thereto), and Customer shall execute any documentation reasonably required by Decibel, including, without limitation, end-user license agreements for the Licensed Software. Decibel and its suppliers shall retain ownership of the Licensed Software, and no rights are granted to Customer other than a license to use the Licensed Software under the terms expressly set forth in this Agreement.
10.2 Restrictions. Customer agrees that it shall not: (i) copy any the Licensed Software (or any upgrades thereto or related written materials) except for emergency back-up purposes or as permitted by the express written consent of Decibel; (ii) reverse engineer, decompile, or disassemble the Licensed Software; (iii) sell, lease, license, or sublicense the Licensed Software; or (iv) create, write, or develop any derivative software or any other software program based on the Licensed Software.
10.3 Updates. Customer acknowledges that the use of Service may periodically require updates and/or changes to certain Licensed Software resident in the Decibel Equipment or CE. If Decibel has agreed to provide updates and changes, such updates and changes may be performed remotely or on-site by Decibel, at Decibel’s sole option. Customer hereby consents to, and shall provide free access for, such updates deemed reasonably necessary by Decibel. If Customer fails to agree to such updates, Decibel will be excused from performance credits, and any and all liability and indemnification obligations regarding the applicable Service.
10.4 Intellectual Property Rights in the Services. Title and intellectual property rights to the Services are owned by Decibel, its agents, suppliers or affiliates or their licensors or otherwise by the owners of such material. The copying, redistribution, bundling or publication of the Services, in whole or in part, without express prior written consent from Decibel or other owner of such material, is prohibited.
10.5 Non-Availability of Traditional 911. Customer acknowledges and agrees that the voice Services are provided using Voice Over Internet Protocol (“VoIP”) do NOT support traditional 911 or E911 access to emergency services. Customer further acknowledges and agrees emergency dialing is NOT automatic, that Customer must separately take affirmative steps to activate such emergency dialing capabilities and that such emergency dialing is different in a number of significant ways from traditional 911 service. Customer shall inform ALL employees, staff, users, and other third persons who use Customer’s Service(s) of the non-availability of traditional 911 or E911 dialing and access from Decibel Service(s) and equipment. Decibel may rely on third parties for the forwarding of information underlying such routing and, accordingly, Decibel and Decibel’s third party provider(s), if any, disclaim any and all liability or responsibility in the event any such information or routing is incorrect. As described herein, this emergency dialing currently is NOT the same as traditional 911 or E911 calling, and does not necessarily include all of the capabilities of traditional 911 dialing. Neither Decibel nor Decibel’s officers, directors, employees, agents, suppliers, contractors, or vendors shall be held liable for any claim, damage, or loss, and Customer hereby waives any and all such claims, causes of action, liability, and damages arising from or relating to emergency dialing unless such claim, damage, cause of action, or loss directly results from Decibel’s gross negligence or intentional misconduct. Customer shall indemnify and hold harmless Decibel and Decibel’s officers, directors, employees, agents, suppliers, contractors, or vendors from any claim, cause of action, liability, or loss arising out of or related to misrouting of or inability to make emergency calls, including without limitation Customer’s failure to follow correct activation procedures for emergency calling or Customer supplying Decibel any inaccurate, outdated, or incorrect information in connection therewith.
10.6 911 Dialing and Notification on MLTS Systems. In compliance with FCC Rule 9.15 et seq., 47 C.F.R. § 9.15 et seq., for any Multi-Line Telephone System (“MLTS”) that Decibel first sold, leased or installed at Customer’s locations after February 16, 2020, such MLTS systems shall be configured so that:
A. 911 Dialing. Customer may directly initiate a call to 911 from any station equipped with dialing facilities, without dialing any additional digit, code, prefix, or post-fix, including any trunk-access code such as the digit 9, regardless of whether Customer is required to dial such a digit, code, prefix, or post-fix for other calls.
B. MLTS notification. The MLTS system provides an MLTS notification to a central location at the facility where the system is installed for the Customer or to another person or organization regardless of location. This MLTS notification will (a) be initiated contemporaneously with the 911 call, provided that it is technically feasible to do so, (b) not delay the call to 911, and (c) be sent to a location where Customer designates, which is where someone is likely to see or hear it. An MLTSnotification is an MLTS feature that can send notice to a central location at the facility where the MLTS system is installed or to another person reorganization regardless of location. Examples of MLTS notification include conspicuous on-screen messages with audible alarms for security desk computers using a client application, text messages for smartphones, and email for administrators. The MLTS notification shall include, at a minimum, the following information: (a) The fact that a 911 call has been made; (b) A valid callback number; and (c) The information about the caller’s location that the MLTS system conveys to the public safety answering point(“PSAP”) with the call to 911; provided, however, that the notification does not have to include a callback number or location information if it is technically infeasible to provide this information.
C.Dispatchable Location. In compliance withFCC Rule 9.15et seq., 47
C.F.R. § 9.15et seq., for any MLTS system that Decibel first sold, leased or installed at Customer’s location(s) after February 16, 2020 shall be configured such that dispatchable location of the caller is conveyed to the PSAP with 911 calls consistent with Sections10.6.C.i-iii, below. Dispatchable location is a location delivered to the PSAP with a 911 call that consists of the validated street address of the calling party, plus additional information such as suite, apartment or similar information necessary to adequately identify the location of the calling party.
i.Fixed Telephones. By January 6, 2021, on-premises fixed telephones associated with a Decibel MLTS system shall provide automated dispatchable location;
ii. On-Premises Non-Fixed Devices. By January 6, 2022, on-premises non-fixed devices associated with aDecibelMLTS system shall provide to the appropriate PSAP automated dispatchable location(as defined in Section 10.6.C, above), when technically feasible; otherwise, the MLTS system shall be configured to provide dispatchable location based on end user manual update, or alternative location information, which is location information(which may be coordinate-based) sufficient to identify the caller’s civic address and approximate in-building location, including floor level, in large buildings.
iii. Off-Premises Devices. By January 6, 2022, off-premises devices associated with a Decibel MLTS system shall provide to the appropriate PSAP automatic dispatchable location (as definedinSection10.6.C, above), if technically feasible; otherwise, the MLTSsystem shall be configured to provide dispatchable location based on end user manual update, or enhanced location information, which may be coordinate-based, consisting of the best available location that can be obtained from any available technology or combination of technologies at reasonable cost.
10.7 Authorization to Provide Information. Customer hereby authorize Decibel to disclose Customer’s name, address, telephone number, applicable dispatchable location information, and any other information as may be required by law that is associated with Customer’s MLTS system(s), devices used with the system(s), and information of users of the system(s) to third-party service providers, including, without limitation, call routers, call centers and PSAPs, in connection with 911 calls dialed or for the purpose of dispatching emergency services personnel to the location associated with the 911 call or otherwise provided or determined..
10.8 User’s Compliance. Customer agrees to comply, configure, manage and/or operate the MLTS system(s) covered by Sections 10.5 – Sections 10.7, above, along with any devices or telephones associated with the MLTS system(s) so that they fully comply with the requirements within these Sections and any applicable law. Customer also agrees that the limitations of liability set forth in Section 10.5, above, also apply to Sections 10.6 through 10.7, above.
11. Confidential Information and Privacy
11.1 Disclosure and Use. All Confidential Information disclosed by Decibel shall be kept by Customer in strict confidence and shall not be disclosed to any third party without Decibel’s express written consent. Notwithstanding the foregoing, such information may be disclosed (i) to Customer’s employees, affiliates, and agents who have a need to know for the purpose of performing this Agreement and/or using the Services (provided that in all cases Customer shall take appropriate measures prior to disclosure to its employees, affiliates, and agents to assure against unauthorized use or disclosure); or (ii) as otherwise authorized by this Agreement. Customer agrees to treat all Decibel Confidential Information in the same manner as Customer treats its own proprietary information, but in no case using a degree of care less than a reasonable degree of care.
11.2 Exceptions. Notwithstanding the foregoing, Customer’s confidentiality obligations hereunder shall not apply to information that: (i) is already known to Customer without a pre-existing restriction as to disclosure; (ii) is or becomes publicly available without Customer’s fault; (iii) is rightfully obtained by Customer from a third party without restriction as to disclosure, or is approved for release by written authorization of Decibel; or (iv) is required to be disclosed by law or regulation.
11.3 Remedies. Notwithstanding any other provision of this Agreement, the non-breaching Party shall be entitled to seek equitable relief to protect its interests pursuant to this Section 11, including, but not limited to, injunctive relief.
11.4 Monitoring of Services. Except as otherwise expressly set forth, Decibel assumes no obligation to pre-screen or monitor Customer’s use of the Service, including without limitation postings and/or transmission and Decibel assumes no responsibility for Customer’s use of the Service(s). Customer acknowledges and agrees that Decibel and its agents shall have the right to pre-screen and monitor such use from time to time or regularly and to use and disclose such results to the extent necessary to operate the Service properly, to ensure compliance with applicable use policies, to protect the rights and/or property of Decibel, or in emergencies, and that Decibel may disclose the same to the extent necessary to satisfy any law, regulation, or governmental request. Decibel shall have no liability or responsibility for content received or distributed by Customer or its users through the Service, and Customer shall indemnify, defend, and hold Decibel and its directors, officers, employees, agents, subsidiaries, affiliates, successors, and assigns harmless from any and all claims, damages, and expenses whatsoever (including reasonable attorneys’ fees) arising from such content attributable to Customer or its users. For the avoidance of doubt, the monitoring of data described in this Section 11.4 refers to aggregate data and types of traffic (protocol, upstream/downstream utilization, etc.). Decibel does not have access to the content of encrypted data transmitted across Decibel networks.
11.5 Survival of Confidentiality Obligations. The obligations of confidentiality and limitation of use described in this Section 11 shall survive the expiration and termination of the Agreement for a period of two (2) years (or such longer period as may be required by law).
12. Use of Service and Privacy Policies
12.1 Prohibited Uses and Decibel Use Policies. Customer is prohibited from using, or permitting the use of, any Service (i) for any purpose in violation of any law, rule, regulation, or policy of any government authority; (ii) in violation of any Use Policy (as defined below); (iii) for any use as to which Customer has not obtained all required government approvals, authorizations, licenses, consents, and permits; or (iv) to interfere unreasonably with the use of Decibel Service by others or the operation of the Network. Customer is responsible for assuring that any and all of its users comply with the provisions of the Agreement. Decibel reserves the right to cooperate with law enforcement authorities and/or to act immediately and without notice to terminate or suspend the Services and/or to remove from the Services any information transmitted by or to Customer or users, if Decibel determines that such use is prohibited as identified herein, or information does not conform with the requirements set or Decibel reasonably believes that such use or information may violate any laws, regulations, or written and electronic instructions for use. Furthermore, to the extent applicable, Services shall be subject to Decibel’s Use Policies. The Use Policies and other security policies concerning the Services are posted on Decibel website. Decibel may update its Use Policies from time-to-time, and such updates shall be deemed effective immediately upon posting, with or without actual notice to Customer. Decibel’s action or inaction in enforcing acceptable use shall not be constitute as review or approval of Customer’s or any other users’ use or information.
12.2 Privacy Policy. Decibel’s commercial privacy policy may apply to Decibel’s handling of Customer confidential information. Decibel’s privacy policy is available on Decibel’s website. Decibel is not responsible for any information provided by Customer to third parties. Such information is not subject to the privacy provisions of this Agreement. Customer assumes all privacy and other risks associated with providing personally identifiable information to third parties, including without limitation, via the Services.
12.3 Resale. In the event that Customer purchases Service(s) for resale, Customer shall be solely responsible for the interaction between Customer and Customer’s customers with respect to the Services. Customer will cooperate with Decibel to enable Decibel to fulfill its operations under this Agreement and the applicable Service Orders. The following terms and conditions shall apply to Customer’s rights and responsibilities as an authorized reseller of the Services:
A. Customer is solely responsible for obtaining all licenses, approvals, and regulatory authority for its use and operation of the Services and the provision of Services to its end users. In connection with its resale of the Services, Customer is solely responsible for all billing, billing adjustments/credits, customer service, creditworthiness and other service-related requirements of its end users, and Decibel shall have no liability to Customer’s end users under this Agreement. Customer’s payment obligations hereunder are not contingent upon Customer’s ability to collect payments or charges from its end users or any other third party. Pursuant to a separate agreement that the Parties agree upon, Decibel and Customer may enter into an arrangement whereby Decibel directly bills some of Customer’s end users under the Decibel name.
B. Decibel may suspend any or all of the Services immediately and/or terminate the Agreement if: (a) Customer fails to comply with any applicable foreign, federal, state or local law or regulation applicable to Customer’s resale of the Services; (b) Customer or its end user(s) commit any illegal acts relating to the subject matter of this Agreement; or (c) Customer uses the Services for any purpose or in any manner other than as prescribed in this Agreement. During any period of suspension pursuant to the foregoing sentence, no Service outage or interruption shall be deemed to occur. Customer shall: (i) be liable to Decibel for any damages caused by any acts of Customer or its end users, in connection with its use or resale of the Services; and (ii) indemnify, defend and hold Decibel, its Affiliates, agents, and contractors harmless from and against any third party (including end users’) claims, actions, damages, liabilities, costs, judgments or expenses (including attorney fees) arising out of or relating to Customer’s or end user’s use, resale or modification of the Services or Customer’s failure to comply with any regulatory filing or reporting requirements or failure to make any required regulatory or contributory payments (including but not limited to universal service support mechanisms).
C. Customer shall not be excused from paying for Services on the basis that fraudulent calls, unauthorized use or other usage of the Service comprised a portion (or all) of Customer’s utilization of the Service. Customer shall protect, defend, indemnify, and hold harmless Decibel, its officers, directors, employees, contractors, and agents, from and against any and all liabilities, allegations, claims, losses, damages, expenses (including reasonable attorney’s fees and costs), judgments, and causes of action arising from or related to fraudulent calls, unauthorized use or usage of the Service to the extent that the person or entity claiming the calls or usage to be fraudulent is (or had been at the time of the call or usage) a user or other person or entity that would have had access to the Service through Customer. Decibel shall be entitled to take immediate action without notice or liability to Customer as it deems necessary in its sole discretion to prevent fraudulent calls or other usage of the Service; provided, however, that Decibel is under no obligation to undertake such action.
12.4 Combatting Illegal Traffic. Customer agrees that it is taking affirmative, effective measures to prevent its use or its existing, new and renewing customers from using Customer’s Services, upon which the Decibel network is used to provide such Services, to originate illegal calls, including knowing its users and its customers and exercising due diligence in ensuring that Customer’s users and its customers are not using Services to originate illegal traffic.
A. Robocall Mitigation Database Listing. If Customer is a Voice Service Provider (as this term is defined and interpreted under the FCC ‘s orders and rules that implement 47 C.F.R. § 6300 et seq.) that furnishes voice communications using NANP resources, Customer certifies that it is listed in the FCC’s Robocall Mitigation Database (47 C.F.R. § 64.6305).
B. Call Monitoring. In addition to the provisions in Section 11.4, above, Customer understands that Decibel may (or will, if required by the FCC) screen Customer’s call traffic using third-party reputation analytics of Caller ID, and that Decibel may reject such call traffic back to the Customer or block Customer’s call traffic based on call analytics.
C. Prompt Response and Cooperation with Traceback Requests. Customer agrees to investigate and respond fully and with 24 hours (or sooner if requested) to all traceback requests from and/or efforts of Decibel, any governmental, regulatory, or law enforcement agency, including without limitation the FCC, Federal Trade Commission, Department of Justice, criminal or civil law enforcement, and/or the Industry Traceback Group (“ITG”), and cooperate with such entities in investigating and promptly stopping any illegal robocallers that use Customer’s Services.
D. Cooperation to Implement Evolving Regulatory and Industry Requirements. Customer understands that the industry practices, policies or requirements that are designed to combat illegal robocalling and spoofing, or otherwise implement STIR/SHAKEN authentication framework are rapidly evolving. Customer agrees to (a) respond fully and in a timely manner to any requests by Decibel to implement practices, policies or requirements adopted, imposed and/or proposed by Decibel, any governmental, regulatory, or law enforcement agency, including without limitation the FCC, Federal Trade Commission, Department of Justice, or law enforcement, and/or the ITG or industry in general that are designed to combat illegal robocalling and spoofing, or otherwise implement STIR/SHAKEN authentication framework, and (b) cooperate with Decibel in implementing such practices, policies or requirements.
12.5 Violation. Any breach of this Section 12 shall be deemed a material breach of this Agreement. In the event of such material breach, Decibel shall have the right to restrict, suspend, or terminate immediately any or all Service Orders, without liability on the part of Decibel, and then to notify Customer of the action that Decibel has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement.
12.6 Customer Consent to Use of Customer Proprietary Network Information. Under federal law, Customer has the right, and Decibel has a duty, to protect certain information about Customer such as the quantity, technical configuration, type, destination, amount of usage, and bill details that Decibel maintains about Customer derived solely through its customer-carrier relationship. This type of information is known as Customer Proprietary Network Information (“CPNI”). By signing the MSA, Customer consents to the sharing of its CPNI with Decibel and its successors-in-interest, affiliates, agents, joint venture partners and independent contractors solely for the purpose of developing or bringing to Customer’s attention any products and services that are outside the category of services to which the customer subscribes. This consent is valid until revoked by Customer. To revoke this consent at any time, which will not affect the provision of any Services to which Customer subscribes, Customer must provide Notice, pursuant to 13.5 below, to Decibel and provide the following information: (i) Customer name, (ii) Service billing address, (iii) telephone number(s), including area code(s), and (iv) Service account number.
12.7 CALEA. Decibel intends to fully comply with the Communications Assistance for Law Enforcement Act (“CALEA”). By using the Service, Customer hereby agrees and consents to Decibel’s right to monitor and otherwise disclose the nature and content of Customer’s communications if and as required by CALEA without any further notice to Customer.
13. Miscellaneous.
13.1 Dispute Resolution and Binding Arbitration.
13.1.1 Arbitration. Decibel and Customer agree to arbitrate any and all disputes and claims between Customer and Decibel. This agreement to arbitrate is intended to be given the broadest possible meaning under the law and includes, but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between Customer and Decibel, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which Customer are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision.
13.1.2 Informal Resolution of Disputes. Decibel’s customer care department can resolve most customer concerns quickly and to Customer’s satisfaction. If Customer has a dispute or claim against Decibel, Customer must first contact the Decibel customer care department at (417) 887-0404. In the event Customer’s dispute or claim is not resolved to Customer’s satisfaction, Customer may seek to have that dispute or claim resolved as set forth below.
13.1.3 Mediation. At the written request of a Party, each Party will appoint a knowledgeable, responsible representative to meet and negotiate in good faith to resolve any dispute or claim arising out of or relating to this Agreement. The Parties intend that these negotiations be conducted by non-lawyer, business representatives. The location, format, frequency, duration, and conclusion of these discussions shall be left to the discretion of the representatives. Upon agreement, the representatives may utilize other alternative dispute resolution procedures such as mediation to assist in the negotiations. Discussions and correspondence among the representatives for purposes of these negotiations shall be treated as confidential information developed for purposes of settlement, exempt from discovery, and shall not be admissible in the arbitration described below or in any lawsuit without the concurrence of all Parties. Documents identified in or provided with such communications, which are not prepared for purposes of the negotiations, are not so exempted and may, if otherwise discoverable, be discovered or otherwise admissible, be admitted in evidence, in the arbitration or lawsuit.
13.1.3 Formal Notice of Disputes. A Party who intends to seek arbitration must first send to the other party a written Notice of dispute that describes the nature and basis of the dispute or claim and set forth the specific relief sought (“Notice of Dispute”). A Notice of Dispute must comply with the Notice provisions in Section 13.5, below. If the Parties do not reach an agreement to resolve the dispute or claim within ten (10) days after the Notice of Dispute is received, Customer or Decibel may commence an arbitration proceeding. The amount of any settlement offer made by Customer or Decibel shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Decibel is entitled.
13.1.4 Arbitrator and Arbitral Rules. The arbitration shall be administered by the American Arbitration Association (“AAA”). Either Party may contact the AAA by telephone at 1-800-778-7879, by email at Web sitemail@adr.org, or by mail at 335 Madison Avenue, Floor 10, New York, New York 10017. The arbitration shall be or by calling the AAA at 1-800-778-7879. governed by the AAA’s Commercial Dispute Resolution Procedures and SupplementaryProcedures for Consumer Related Disputescollectively,“AAARules”), as modified by this Agreement. The AAA Rules are available atwww.adr.org or by calling the AAAat1-800-778-7879.
13.1.5Waiver of Jury Trialand Waiver of Class Actions. Parties agree that Parties are waiving the right to a trial by jury. Parties agree that the arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. Parties agree that Customer andDecibelmay bring claims against the other Party only in its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. Parties agree that, unless both Parties agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.
13.1.6Statute of Limitations. Customer must contact us within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subjecttoSection4, above, of these Terms and Conditions), orCustomerwaivesthe right to pursue a claim based upon such event, facts, or dispute
13.1.7 Exceptions to Arbitration Agreement. Parties agree: (a)Customer may take the dispute to small claims court, if Customer’s dispute qualifies for hearing by such court;(b) ifCustomerfailsto timely pay amounts due, Decibel may assignCustomer’saccount for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement; (c) Customer orDecibelmay take any disputes over the validity of any Party’s intellectual property rights to a court of competent jurisdiction; (d)any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and (e) either Party may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property ofCustomerorDecibel, pending the completion of arbitration.
13.2Construction.In the event that any portion of the Agreement is held to be invalid or unenforceable, the Parties shall replace the invalid or unenforceable portion with another provision that, as nearly as possible, reflects the original intention of the Parties, and the remainder of the Agreement shall remain in full force and effect.
13.3Force Majeure. Except for Customer’s obligation to make timely payments, neither Party shall be liable to the other Party or any third party for any delay, failure in performance, loss, or damage to the extent caused by force majeure conditions such as acts of God, fire, flood, explosion, power blackout, cable cut, pole hits, acts of regulatory or governmental agencies, unavailability of right-of-way, third party services or materials, or other causes beyond the Party’s reasonable control.
13.4 Assignment or Transfer. Customer shall not assign any right, obligation or duty, in whole or in part, nor of any other interest hereunder, without the prior written consent of Decibel. All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party. Nothing herein is intended to limit Decibel’s use of third-party consultants and contractors to perform services.
13.5 Notices. Any notice sent pursuant to the Agreement shall be deemed given and effective only when sent by USPS certified mail (return receipt) or overnight delivery to the address specified on the MSA for Customer or for Decibel to: 2037 West Woodland Street, Springfield, MO 65807.. Each Party shall notify the other Party in writing of any changes in its address.
13.6 Entire Understanding. The Agreement, together with any applicable Tariffs, constitutes the entire understanding of the Parties related to the subject matter hereof. The Agreement supersedes all prior agreements, proposals, representations, statements, or understandings, whether written or oral, concerning the Services or the Parties’ rights or obligations relating to Services. Any prior representations, promises, inducements, or statements of intent regarding the Services that are not embodied in the Agreement are of no effect. No subsequent agreement among the Parties concerning Service shall be effective or binding unless it is made in writing by authorized representatives of the Parties. Terms or conditions contained in any Service Order, or restrictive endorsements or other statements on any form of payment, shall be void and of no force or effect.
13.7 Survival. The rights and obligations of either Party that by their nature would continue beyond the termination or expiration of a Service Order or this Agreement, including without limitation this Section and Sections 6, 7, 8, 11and 13 herein, shall survive termination or expiration of the Agreement or Service Order.
13.8 Choice of Law and Venue. This Agreement shall be governed by the laws of the State of Missouri without reference to its choice of law provisions. Any and all suits and claims pertaining to this Agreement shall be brought solely in the state and federal courts located in Greene County in the State of Missouri.
13.9 No Third Party Beneficiaries. This Agreement does not expressly or implicitly provide any third party (including users) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege.
13.10 Parties’ Authority to Contract. The persons whose signatures appear on the MSA represent and warrant that they are duly authorized to enter into the Agreement on behalf of the Parties name therein.
13.11 No Waiver; Severability; Execution in Parts. No failure by Decibel to enforce any right(s) hereunder shall constitute a waiver of such right(s). This Agreement may be executed in counterpart copies. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. This invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement
13.12 Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
13.13 Headings. The section headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof.
13.14 Export Compliance. Customer agrees to comply with U. S. export laws concerning the transmission of technical data and other regulated materials via the Service. Customer agrees to comply with applicable local, state and federal regulations governing the locality in which the Equipment and Services are used.