FonePBX Worldwide Terms & Agreements
Copyright © 2015 FonePBX Worldwide.
1. THE PARTIES
This document "FonePBX Terms & Agreements", hereafter referred to as the "Agreement", is agreed between FonePBX Ireland Limited, with offices 10/13 Thomas Street, The Digital Hub, Dublin 8, Ireland, hereafter referred to as "FonePBX", and the person or party identified in the associated Registration Form or Reseller contract. In the case of a company application, this is the person signing on the company's behalf and who by registering acknowledges having power of representation for that company. This person is hereafter referred to as the "Customer". The "Customer" is required to provide the necessary identification and in the case of company applications, the registration number, as specified in the Registration Form on the FonePBX website (www.FonePBX.com).
2. PRELIMINARY TERMS
2.1. Electronic Signatures and Agreement(s): The Customer hereby agrees to the use of electronic communication in order to enter into contracts, place orders and other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the www.didww.com website. Furthermore, the Customer hereby waives any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
2.2. No Emergency Calls: by entering into this Agreement the Customer acknowledges and agrees that the FonePBX infrastructure does not and does not intend to support or carry emergency calls.
2.3. No Callback Calls: by entering into this Agreement the Customer acknowledges and agrees that the DID numbers provided by FonePBX cannot be used for callback applications.
2.4. Jurisdiction Restrictions: if the Customer is residing in a jurisdiction where it is forbidden by law to offer or use internet telephony, the Customer may not enter into this Agreement. By entering into this Agreement the Customer explicitly states that he has verified in his own jurisdiction if the use of internet telephony is allowed. The Customer shall be solely responsible, bear all costs (including reasonable lawyer's costs) and will hold FonePBX harmless, if he breaches the Jurisdiction restrictions.
2.5. FonePBX may at its sole discretion refuse a Customer application or order:
2.5.1. If the information provided is incomplete.
2.5.2. If FonePBX has reason to doubt the accuracy of the information, or it is not supported by the required identification or, in the case of company applications, the required authorization.
2.5.3. If the Customer is known to have committed fraud, or is bankrupt, or has given any reason to doubt his ability to meet their commitments under this Agreement.
3.1. FonePBX agrees to provide the Customer, and Customer agrees to purchase services from FonePBX under the terms and conditions set forth in this agreement.
3.2. This Agreement shall apply to all services provided by FonePBX warding, Termination, Inbound and Outbound SMS, Virtual PBX, access to an API, and may have additional terms and restrictions as specified in the relevant service appendices.
3.3. Customer acknowledges that the allocation of Numbers (DIDs and/or Toll-Free numbers) as part of the Service does not constitute a transfer of property or sale of numbering rights by FonePBX, and only constitutes a sale of right to use the Numbers exclusively as long as the Service is provided. As a result, Customer is not entitled to claim any such rights to the Numbers which will be reassigned to FonePBX immediately at the termination of the Service.
3.4. Service term is one or more full months, according to the service order, beginning on date that Service is activated. Service orders are renewed automatically for additional terms until cancelled.
4. ACCEPTABLE USE OF SERVICE
4.1. The Customer is prohibited from using the Service for callback calls, auto-dialing, continuous or extensive call forwarding, telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or fax or voicemail blasting purposes.
4.2. Customer agrees to indemnify FonePBX against any cost and/or damage and/or expense and/or claim and/or demand, including any made by a third party, arising out of the Customer's or End User's use of the service in violation of the Acceptable Use of Services, and all costs relating thereto, all of which will immediately be due and payable.
5. RESPONSIBILITIES AND OBLIGATIONS
5.1. FonePBX Worldwide.
5.1.1. FonePBX shall notify the Customer as soon as reasonably practical, of any changes in rates payable, or modification to the service offered.
5.1.3. FonePBX shall provide the Customer with reasonable technical and sales support, which FonePBX in its sole discretion shall consider necessary and appropriate.
5.1.4. FonePBX may from time to time make changes to equipment used to handle calls and provide the service. Such changes are at the sole discretion of FonePBX, and may be made without prior consent from the Customer.
5.2.1. Customer shall pay for the Services in accordance with the provisions set forth herein in Section 8.
5.2.2. The Customer shall ensure that it has all necessary approvals, permissions or authorizations for the services operated through FonePBX including those offered to its End Users. The Customer shall be responsible for the content, quality and delivery of services offered to its End Users, and for ensuring that these services comply with the laws and this Agreement.
5.2.3. The Customer shall provide FonePBX on request with information or material regarding the service operated through FonePBX, including those offered to its End Users or agents upon and to the extent of any request made by FonePBX.
5.2.4. The Customer shall ensure that services provided are not used for any unlawful purpose whatsoever including the transmission or offering of any information or services which are unlawful, abusive, harmful, threatening, defamatory, or which in any way infringe copyright, intellectual property rights, trademarks, or which is pornographic, or any other material that may cause offence in any way.
5.2.5. FonePBX may recover from the Customer, who will hold FonePBX harmless, all fines, claims or administrative expenses resulting charged by any other regulatory body, resulting from a breach of the law or this agreement.
5.2.6. The Customer specifically agrees to indemnify FonePBX against all costs and liabilities arising out of all claims which result from a breach, or an allegation of any breach of any of Customers' obligations set forth in this clause 5.2
5.2.7. The Customer shall co-operate with FonePBX any costs associated with such complaints, investigations, or enquiries or any action whether brought by FonePBX.
5.2.8. The Customer shall ensure that any third party using its facilities shall be bound by the terms of this Agreement.
5.2.9. The Customer is responsible for ensuring that no third party intellectual property right is infringed by its choice of DID number for a particular service and will hold FonePBX harmless against all costs and liabilities arising out of a breach or allegation of a breach of any such third party's intellectual property rights.
5.2.10. All notices, requests or other communications shall be in writing and addressed to the Customer by email. The Customer bears all responsibility concerning the reception of the FonePBX e-mails, he agrees to keep his email address updated at all time, and he will inform FonePBX of any modification of his email address within 24 hours of the moment of modification.
6.1. The Customer shall not assign the rights and obligations of this Agreement to any other party without the express permission in writing of FonePBX.
6.2. FonePBX may assign the rights and obligation of this Agreement to a third party without the prior consent of the Customer.
7. PROVISION OF SERVICES AND WARRANTIES
7.1. FonePBX will take steps to ensure its network and services are reasonably fault free, and that service is reasonably uninterrupted. However, FonePBX cannot provide a fault free service. FonePBX gives no warranty that its network or services shall be continuous, or will be free from faults.
7.2. FonePBXplied by statute.
7.3. The parties acknowledge that no representations, warranties or statements made prior to concluding this Agreement form any part of a contract, nor has induced either party into this Agreement.
7.4. The Customer acknowledges that:
7.4.1. The service provided by FonePBX was not designed for the Customer's individual requirements, and it is up to the Customer to decide if the service provided by FonePBX is of satisfactory quality and fit for the purpose for which it is used.
7.4.2. FonePBX is reliant on third parties for delivery of services, and therefore FonePBX can have no liability of whatever nature for any delay or fault to the delivery of same.
8. RATES, PRICES AND PAYMENT
8.1. All prices are stated on the applicable price list updated from time to time and posted on Customer's private account on the website. Customer is eligible to benefit from FonePBX's wholesale pricing of the applicable tier to the extent that Customer agrees to subscribe to a Minimum Monthly Charge ("MMC") of that pricing tier and to terms and conditions as described in the applicable MMC Appendix.
8.2. Service charges:
8.2.1. Recurring Fees are charged in advance based on the amount of full months in the order term, beginning from the date of Service activation.
8.2.2. Fees based on usage, such as voice termination minutes, Pay as You Go PSTN forwarding, Toll-Free origination minutes, and SMS are charged upon completion.
8.2.3. Fees based on usage, such as voice termination minutes, Pay as You Go PSTN
8.2.4. Customer is responsible for the full monthly payment when Services are cancelled within the monthly term.
8.3. FonePBX reserves the right to modify prices for Services during the period of this Agreement.
8.3.1. FonePBX may decrease prices for Services without any restrictions.
8.3.2. FonePBX may increase prices:
220.127.116.11. For Services based on a variable charge, changes are effective immediately and are updated in the pricelist associated with Customers' account on the FonePBX website.
18.104.22.168. For all other Services upon written notice to Customer who will have 30 (thirty) days to reject the said price increase.
22.214.171.124.1. If Customer does not reject a price increase within this period Customer will be deemed to be agreed to and accepted by Customer.
126.96.36.199.2. In case Customer rejects a price increase FonePBX has the right to terminate the Service in accordance with clause 15.4 or to continue to provide the Service at the original price.
8.3.3. The relevant Service Order Form shall be deemed amended in accordance with a notice of price amendment.
8.4. FonePBX shall charge and Customer shall pay for the Services in accordance with the provisions set forth herein.
8.4.1. Customer shall transfer funds in U.S. Dollars into its FonePBX prepaid account to maintain a credit balance.
8.4.2. Payment may be made via credit card, PayPal or by wire transfer to FonePBX's designated bank account. The following terms apply:
188.8.131.52. FonePBX accepts payments in U.S. Dollars. A payment in any other currency will be converted by FonePBX to U.S. Dollars without notice to the customer. Foreign exchange rates vary and are determined by financial institutions. Client will pay all conversion fees to US dollars.
184.108.40.206. While paying by wire transfer, credit card or Paypal all transaction charges are to be borne by customer. FonePBX will recognize only net amounts received. It is customer's responsibility to determine what, if any charges are being applied to the payment.
220.127.116.11. A minimum of 500 U.S. Dollars applies to wire transfers.
18.104.22.168. By ordering any Service with FonePBX, Customer explicitly allows FonePBX to directly debit its prepaid account and in case there is insufficient credit in the account, to charge Customer's credit card(s) that FonePBX has on file, to settle any invoices.
8.4.3. If Customer credit balance is insufficient Services may be automatically suspended until further credit is applied. To avoid suspension of Services, Customer is advised to regularly check the status of its account, and have a valid credit card or alternative payment form updated on its FonePBX account at all times.
8.4.4. Customer shall not be entitled to a reimbursement of any prepaid charges.
8.4.5. Any interest earned by FonePBX on credit balances in Customer's account will accrue to FonePBX.
8.5. FonePBX's records shall constitute prima facie evidence of the data contained in such records and shall prevail, absent manifest error, over Customer's records. The Customer's call minutes shall be calculated according to CDR and Pricelist data logged by FonePBX in Customer's account.
8.7. Unless otherwise stated, all amounts payable to FonePBX under this Agreement are exclusive of any tax, except for taxes based on the net income of FonePBX. If under the applicable law the Customer must deduct any taxes from FonePBX receivables, the payment amount will automatically be increased to the extent that FonePBX final amount received is equal to the amount invoiced or otherwise due. Customer will provide FonePBX with the official statement by the tax authorities due to the obligation to pay any such taxes. The Customer shall also pay such taxes or provide FonePBX with the official statement by the tax authorities due to exemption from such taxes.
8.8. In the event that any sums due to FonePBX under this Agreement are not paid by the due date then FonePBX shall be entitled to charge interest at 10% over the base rate used by the European Central bank for her main refinancing operations, at that time.
8.9. In case the Customer does not fulfill his payment obligation under this Agreement after the date of a final notice, parties agree that FonePBX will be entitled to the application of the article 15.4 of this Agreement.
9. TECHNICAL SUPPORT
9.1. FonePBX may without liability, prior warning or consent of the Customer, suspend the service, in the event that it wishes to carry out maintenance, upgrade works, or back-ups. FonePBX will take steps to keep any consequent disruption to the service to a reasonable minimum.
9.2. In the event that the Customer becomes aware of any faults with the service, it shall notify FonePBX as soon as is practicably possible. * Porting of number is restricted to jurisdiction with agreement... fees apply
10. INTELLECTUAL PROPERTY RIGHTS
10.1. All Intellectual Property Rights owned by one party shall remain vested in such party, and for clarity, and avoidance of doubt.
10.1.1. All rights of any nature, trade name, documents, drawings and information including any access codes provided to the Customer, and information in FonePBX's database accessed by the End Users and the Customer remain vested in FonePBX.
10.1.2. Information provided to the Customer by FonePBX pursuant to this Agreement, pertaining to the Customer's End Users is the property of the Customer.
10.2. The Customer shall not use FonePBX Worldwide's name, trademarks, or copyrights in any way that implies any approval or connection with the services or products offered by the Customer.
10.3. Any right to use the services, and/or any software related to the services, granted by FonePBX to Customer will only be perceived as a personal, limited, non-exclusive and non transferable license of use by FonePBX of the services, and/or any software related to the services, for the designated purpose only.
11.1. During and after the period while this Agreement remains in force, both parties shall not disclose to any third party the information gained in connection with this Agreement, nor the terms and payments due, but each parties may disclose to its officers and employees such information as may be required for them to fulfill their proper performance of their duties, and may be used in the proper exercise of its rights and obligations under this Agreement.
11.2. The obligations of confidence and restrictions on disclosure shall not apply in the following circumstances:
11.2.1. Where such information was already known prior to this Agreement.
11.2.2. Where such information was already in the public domain, save as a result of a breach of Clause 11.1..
11.2.3. Where a third party, who did obtain the same from the disclosing party, disclosed such information to it lawfully; or
11.2.4. Where disclosure is required by law.
11.3. The Customer shall ensure that the confidentiality provisions of this Agreement bind all its employees and agents and shall indemnify FonePBX against loss or damage suffered as a result of a breach of confidence by employees or agents.
11.4. FonePBX shall have the unconditional and irrevocable right to to disclose the identity and address of Coustomer and Enduser in the event of any complaint received from any regulatory or governmental body, or any licensed telecommunications carrier, in connection with services offered by the Customer.
12. LIMITATION OF LIABILITY
12.1. FonePBX shall not be liable for any indirect, incidental, special or consequential damages or for interrupted communications, lost data, or loss of profit, or economic loss arising out of or in connection with this Agreement and in particular shall not be liable for any delay in rectification of any such problem.
12.2. Direct damages. FonePBX can only be held liable for direct damages resulting from an attributable and faulty failure to perform its obligations under these Terms of Service. Direct damages in this respect exclusively mean:
12.2.1. All reasonable costs incurred by the Customer in order to have FonePBX perform its obligations under the Terms of Service.
12.2.2. All reasonable costs incurred by the Customer in order to prevent or limit any direct damages as meant in this article.
12.2.3. All reasonable costs incurred by the Customer in order to establish the nature and scope of the direct damages as meant in this article.
12.3. Maximum amount. Direct damages caused as a result of FonePBX's breaches of this Agreement shall in any event be limited to the previous 1 months revenue generated by the Customer, and received by FonePBX, but in no event shall exceed 3,000 U.S. Dollars for any one event or series of events.
12.4. FonePBX shall have no liability to the Customer in respect of any demand or claim where:
12.4.1. The demand or claim arises as a result of the Customer's and/or End-User's negligence, misconduct or breach of this Agreement.
12.4.2. If the Customer does not immediately notify FonePBX of any claim.
12.4.3. If the Customer does not give FonePBX full authority to deal with the claim, or does not provide all information requested by FonePBX and complete and proper co-operation for FonePBX to defend the claim.
13. FORCE MAJEURE
13.1. FonePBX shall not be liable for any interruption, delay or failure in service resulting from any matter or event outside of its control, to include, but not limited to any act of god, inclement weather, storm, flood, drought, lightning, fire, power failure, shortage of power, disturbance to power supplies, disconnection damage or disturbance to telecommunications connections and cables, trade dispute, government action, embargoes, termination of or refusal to grant a license, damage to or loss of equipment or interruption, failure or delay in any service provided to us by any third party including governmental or regulatory authority or telecommunications operator, war, military operations, or riot.
13.2. FonePBX will not accept any liability for the consequences arising out of a force majeure event.
14.1. Without prejudice to any other indemnity referred to in this or any other Agreement, the Customer agrees to indemnify FonePBX and its parent, subsidiaries, affiliates, officers and employees against any claim or demand, including any made by a third party, arising out of the Customer's or End User's use of the service and all costs relating thereto. The Customer agrees not to hold FonePBX and its parent, subsidiaries, affiliates, officers and employees responsible for any direct or indirect damage resulting from the use of FonePBX software or services, in particular, but not limited to; the use or impossibility to use the Service, confidence in information obtained, errors and omissions, defects, viruses, delay in transmission, interruption of service or loss of data.
14.2. The Customer agrees to indemnify FonePBX, and its parent, subsidiaries, affiliates, officers and employees against any claim or demand, arising from any act of the Customer or third party including but not limited to:
14.2.1. A breach or allegation of breach of the conditions of this Agreement.
14.2.2. Negligence, misconduct or any allegation of negligence or misconduct by the Customer or by any third party.
14.2.3. The marketing or promotion undertaken by or on behalf of the Customer.
14.2.4. The service content provided or marketed by or on behalf of the Customer, and all costs relating thereto.
15. TERM & TERMINATION
15.1. Term. The Agreement will be effective as of the date of the Customer acceptance thereof, and will remain effective until terminated by either party as set forth in these Terms of Service.
15.2. Either party shall be entitled to terminate this Agreement by giving to the other not less than one (1) month notice of termination
15.3. Consequences of Termination. Upon termination of the Agreement for any reason all licenses and rights to use the VoIP service shall terminate and the Customer will cease any and all use of the VoIP service.
15.4. FonePBX may terminate this Agreement with immediate effect by giving notice at any time, if:
15.4.1. The Customer does not comply with the terms of this Agreement.
15.4.2. The Customer says, or appears to intend, that it will not abide by the terms of this Agreement.
15.4.3. The Customer ceases trading, convenes a meeting of, or comes to an arrangement with its creditors, has distress or other seizure levied over any of its assets or does not satisfy any demand for payment from any legal person.
15.4.4. Any step is taken to wind up or dissolve the Customer, a receiver, and/or manager or administrator appointed over any assets.
15.4.5. FonePBX believes the Customer has allowed services to be used for any unlawful purpose or any use prohibited by this Agreement.
15.5. FonePBX recessive billing or is in violation of that Customer's responsibilities and obligations as per Section 5.2 of this Agreement. Customer will remain responsible for all charges through the end of the current Service Term, including unbilled charges, plus a disconnection fee, if applicable, all of which will immediately be due and payable.
15.6. Either party may terminate this Agreement if:
15.6.1. Either party has committed a breach of the Agreement, and fails to remedy the breach within 30 days of notice requiring it to do so, and;
15.6.2. Either party takes any steps to wind up or dissolve, or a receiver and/or manager or administrator is appointed over any assets.
15.7. Survival. All provisions which must survive in order to give effect to their meaning shall survive any expiration or termination of the Agreement, including without limitation, all of the Customer's representations, warranties and indemnification obligations.
16.1. This Agreement represents the entire understanding between the two parties. No other prior arrangements, representations or understandings, orally or in writing shall have any validity.
16.2. FonePBX may vary any provision in this Agreement, without prior consent from the Customer, if such change is required because of regulatory, insurance, safety or statutory changes made after services are provided.
16.5. Ownership: All DID numbers leased and registered to Customer's account by FonePBX remain under FonePBX
16.6. Any error, omission or typographical error in any quotation, offer, sales information, invoice, or document supplied by FonePBX shall be subject to correction on notice from FonePBX and without liability.
16.7. FonePBX's rights and powers under this Agreement are not affected if it fails to or chooses not to enforce any of them at any time. If any part of this Agreement is not enforceable it will not affect the remainder.
16.8. Applicable Law. The Agreement shall be governed by and construed in accordance with Irish Law. This Agreement shall be governed by Irish law and the Customer consents to the exclusive jurisdiction of the Irish courts in all matters regarding it.
16.9. Competent Court. The Customer consents to the exclusive jurisdiction of the Irish courts in all matters relating to Agreement.
16.10. Both parties agree that they have no joint venture, partnership, or agency relationship as a result of this Agreement. Neither party shall make any offer, guarantee, or warranty to any third party, in regard to the services, that purports to bind the other party.
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