Last Updated: 02/26/2024

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PURPOSE AND DEFINITIONS

Primevox is in the business of providing (Session Initiated Protocol) SIP based (Voice over Internet Protocol) VoIP services. Customer desires to utilize the goods and services provided by Primevox. Customer desires to purchase from Primevox, and Primevox desires to sell to Customer, VoIP services, in accordance with the terms and conditions set forth in this Agreement as well as defined by Federal Communications Commission (“FCC”) in 47 CFR 64.702.

 

“Service” shall mean those services described in the attached relevant Attachments which are incorporated herein by reference. “Service Date” shall mean the date of completion of provisioning and final testing of the Services, which date will be notified to the Customer by Primevox.

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1. TERM

The initial term of service shall begin on the date of signature on the Quote and continue for the listed term on the Quote. This Agreement, and all Services, shall automatically renew for the same term length listed on the Quote, unless one party notifies the other party at least thirty (30) days prior to the expiration of the current term of its intention to not renew this Agreement.

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2. DESCRIPTION OF SERVICES

Primevox, either directly or through its affiliates or underlying carriers, shall provide the Services, and Customer shall purchase and utilize the Services per the terms and conditions of this Agreement. The Parties may, by mutual written agreement, add and incorporate additional Services by executing additional Attachments and incorporating them herein.

 

3. ACCEPTABLE USE POLICY

By contracting for or using Services, in addition to any other agreements Customer(s) may have entered with Primevox, Customer(s) agree to be bound by the terms of this Acceptable Use Policy (“AUP”). Primevox reserves the right to modify this AUP at any time and in its sole discretion, with such modifications being effective once written notice is given. Any use of Services after such modification constitutes acceptance of the AUP as revised.

 

3.1. SUSPENSION. Any Customer that Primevox determines to have violated any element of this AUP may be subject to suspension or termination of service, with or without notice. Primevox has the right, but not the obligation, to take further action as it deems to be appropriate under the circumstances to eliminate or preclude repeated violations. Primevox shall not be liable for any damages of any nature suffered by any Customer, or any third party, resulting in whole or in part from Primevox’s exercise of its rights under this AUP.

 

3.2. PROHIBITED CONDUCT. Services must be used for lawful purposes only and in a manner consistent with their intended purpose. Users shall not use Services to distribute, transmit, receive, use, or store any type or kind of material:

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• in violation of any local, state, or federal laws and regulations; or

• that may adversely affect Services or other Primevox Customers.

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Customer is prohibited from sending the following types of SMS/MMS Messages:

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• Unsolicited Messages. SMS/MMS recipients must have explicitly opted in to receiving messages from Customer. The opt in process must be clearly explained in a way that the recipient was aware they would receive SMS/MMS messages. The following do not qualify as valid opt ins:

  • Collecting the recipient's phone number for another purpose (such as for validating payments) but then sending messages to that recipient

  • Purchasing, borrowing, renting, or otherwise obtaining the recipient's phone number or a lead list from a third party

  • Having the customer opt in for a transactional message (such as message on delivery of a package) and then subscribing them to a recurring campaign

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Primevox reserves the right to request proof of opt in at any time. Inappropriate Content.

 

• This includes but may not be limited to:

  • Sexual or pornographic

  • Considered abusive or harassing

  • Firearms (including fireworks)

  • Alcohol, tobacco or illegal drugs

  • Loans, loan forgiveness, credit repair, debt collection or tax related content

  • Gambling

  • Investment opportunities

  • Unsolicited real estate enquiries

  • Multilevel marketing or network marketing

  • Persistent receiving or sending of one-time passcodes from or on behalf of other service providers.

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• Not Adhering to Unsubscribe Requests. Recipients may choose to unsubscribe from any further messages from Customer by sending stop words such as STOP or UNSUBSCRIBE.

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• High Frequency of Messages to a Recipient. Customer may not send more than 10 messages to a recipient in any 24-hour period unless the following conditions are met:

  • ​The recipient has engaged in two-way communication over SMS such as for a chat feature

  • The customer has explicitly opted in to receiving frequent messages

 

• Misrepresenting Your Identity (spoofing). Customer may not represent or identify themselves as another individual or business in any way. More specifically, Customer may not use the message body or the phone number in a way that would lead the recipient to believe you are another individual or business.

 

• Engaging in Fraud or Phishing for Information. Sending messages with fraudulent information or phishing to get confidential information from a recipient is explicitly prohibited.

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Customer is further prohibited from facilitating the violation of any of this AUP and from violating or facilitating the violation of another provider’s AUP, including distributing, transmitting, receiving, using, storing, or otherwise providing any product or service that violates this AUP or another provider’s AUP. Any time a Customer accesses another provider or network using the Services, such Customer must comply with the provider or network’s rules and policies. Customer agrees to indemnify, defend, and hold Primevox harmless from all claims, damages, losses, and expenses (including attorneys’ fees and expenses) resulting from or allegedly resulting from such Customer’s access or use of other providers or networks.

 

3.3. FAIR AND REASONABLE USE. Primevox offers plans for both Standard and Low Use Users. Plans are designed for normal commercial use and are not intended to represent typical usage by unique organizations such as call centers, resellers, fax messaging services, telemarketing firms, or for use without live dialog, such as transcription services, intercom or monitoring services (“Standard User”). Unauthorized or excessive use beyond that normally experienced by typical business customers violates this AUP and may cause extreme network capacity and congestion issues and interfere with Primevox’s network and third-party networks with whom Primevox connects for call initiation and completion services. As a guide, Customer(s) are in violation of this AUP when any of the following occur:

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• Outbound calling exceeds 2,000 minutes per Standard User per month pooled across all a customer’s Standard Users, there after a two (2) cent per minute rate will apply; or

• Combined inbound and outbound total calling exceeds 120 minutes per Low Use User per month, there after the user will be automatically upgraded to a Standard User; or

• Outbound SMS Messaging exceeds 250 messages per Standard User per month pooled across all a customer’s Standard Users, there after a two (2) cent per message rate will apply; or

• Outbound MMS Messaging exceeds 50 messages per Standard User (i.e., hosted seat) per month pooled across all a customer’s Standard Users, there after a two (2) cent per message rate will apply.

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In addition, Plans may not be used for any of the following prohibited uses (which are in addition to the other prohibited uses under this AUP or otherwise applicable to the Services):

 

• spamming or blasting (e.g., sending one hundred (100) or more bulk and/or junk voicemail or faxes simultaneously); or

• bulk call-in lines (e.g., customer support or sales call centers, “hotlines,” 900 numbers, sports- line numbers, etc.); or

• auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place outbound calls).

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Primevox reserves the right to review Customers’ accounts at any time for potential abuses of this AUP. Primevox may determine abnormal or abusive usage based on comparisons to the usage patterns of other customers. If it is determined that Customers violate this AUP, Primevox may invoice Customer, and Customer shall pay a per minute fee for excessive use at the then-current rates established by Primevox. In addition to such excessive use charges, if Primevox identifies excessive or abusive traffic patterns, Primevox reserves the right to change Customers’ applicable rate plan or suspend or terminate Service with or without notice.

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3.4. UNSUPPORTED AND INCORRECT USAGE OF THE TECHNOLOGY. Service is not intended to be used as an alternative to a POTS line for any Fire Alarm System, Security System, or Payment Terminal. Primevox does not and will not warrant or guarantee its Service if used for the purpose of servicing any of the systems stated above. Primevox is not liable for any damages, claims, losses, expenses, costs, and obligations, including without limitation, reasonable attorney’s fees and costs, which shall be paid as incurred, suffered directly or indirectly by any negligent, grossly negligent, or intentional wrongful acts made by Customer if using the Service for this purpose.

 

4. E911 DISCLAIMER

The rules of the FCC require Primevox, like all Voice Over Internet Protocol (“VoIP”) service providers, to inform its customers of any differences between the 911 and E911 access capabilities available with VoIP service (the “Service”) as compared to the 911 and E911 access capability available with traditional wire line telephone service. (A copy of this FCC order adopting these rules is available at http://www.fcc.gov/cgb/voip911order.pdf.) It is important that Customer understands how these differences affect your ability to access 911 and E911 services. We ask that Customer carefully read this 911 and E911 Disclaimer. If Customer has any questions or concerns about the information contained in this Disclaimer, or if Customer does not understand anything discussed in this Disclaimer, Customer may contact Primevox’s Customer Support at (972) 600-1150 or support@primevox.net.

 

The FCC’s rules also require Primevox to obtain and keep a record on file showing that Customer has received and understood this 911 and E911 Disclaimer. As such, we cannot begin providing Service until Customer certifies that Customer has received and understood this 911 and E911 Disclaimer by signing the 911 and E911 Acknowledgment.

 

Primevox’s VoIP services are intended primarily for use within the domestic United States (“U.S”). VoIP telephony is fundamentally different from traditional telephone service and has inherent limitations. The Service, including 9-1-1 calling, may be unavailable or limited in some circumstances, including without limitation the circumstances described below. Customer certifies awareness of the Service limitations outlined below and that Service will not be used by anyone other than Customer without first notifying the end user of such limitations.

 

4.1. 9-1-1 LIMITATIONS OF SERVICE

 

4.1.1. Relocation of End User Devices. If Customer uses the Service in a location other than the Registered Location for that device, 9-1-1 calls may not be routed to the appropriate Public Safety Answering Point ("PSAP") for the end user’s current physical location.

 

4.1.2. Use of “Non-Native” Telephone Numbers. If Customer uses the Service with an assigned telephone number that is outside the rate center of the Registered Location, the PSAP for the Registered Location may not recognize the telephone number for call-back or other informational purposes.

 

4.1.3. Broadband Connection Failures. The Service will not be able to make calls if Customer loses connectivity to the Internet. Due to Internet congestion and/or network design issues, 9-1-1 calls placed through the Service may sometimes produce a busy signal, experience unexpected answering wait times, or take longer to answer than 9-1-1 calls placed through traditional (analog) telephone networks.

 

4.1.4. Loss of Electrical Power. Service will not operate if Customer has lost electric power for Service or for other Service-enabling equipment. After a power outage, Customer may need to reset or reconfigure enabling equipment or devices before being able to use the Service.

 

4.1.5. Updating Registered Locations in ALI Databases. If Customer does not correctly identify the physical location of the Service when defining the Registered Location, 9-1-1 calls made through the Service may not reach the correct PSAP. At initial activation of the Service, and following any update to Registered Locations, there may be some delay before complete and accurate information is passed to the local emergency service operator.

 

4.2. REGISTERED LOCATIONS. Primevox relies on the Registered Location of the Service at the time a 9-1-1 call is placed to route the call to the appropriate PSAP within the domestic U.S. and to provide the PSAP with Customer’s location. Customer should verify (Dial *933) and update the Registered Location information regularly as Registered Location information is not automatically updated. If Customer does not update the Registered Location or it is not complete, Primevox may attempt to route a 9-1-1 call based on earlier Registered Location information, which may not match Customer’s actual location and may cause a 9-1-1 call to be misrouted and/or provide a PSAP with incorrect location information. Always be prepared to provide your actual location to a call taker.

 

4.3. PSAP LIMITATIONS. The PSAP designated to receive 9-1-1 calls for a particular Registered Location through the Service may not have a system configured for all 9-1-1 services. The PSAP may not be able to capture, retain or otherwise determine the phone number, Registered Location, or physical location of the VoIP device placing the 9-1-1 call. Accordingly, Customer must be prepared to provide this information to the PSAP. Until and unless Customer does so, the emergency service operator may be unable to call Customer back or to otherwise assist Customer in the event of an emergency.

 

4.4. WARNING LABELS AND CERTIFICATIONS. Customer must notify end users of the Service about the 9-1-1 limitations of the Service as outlined in this Disclaimer. Primevox provides Customer with warning labels regarding the limitations or unavailability of 9-1-1 services. Customer should place labels on or near each VoIP device used to access the Service. Customer will acknowledge and complete all advisory notices and certifications received from Primevox regarding 9-1-1 service. Customer can download warning label here: https://Primevox.zendesk.com/hc/en-us/articles/360029220732-911-Warning-Labels

 

4.5. CUSTOMER CHOICE. Customer must carefully evaluate the individual circumstances in deciding whether to rely solely upon the Service for 9-1-1 calling or to make necessary provisions for access to emergency calling services (e.g. maintaining a conventional landline phone as a backup means of completing emergency calls).

 

4.6.LIMITATIONS OF LIABILITY AND INDEMNIFICATION. Primevox does not control how E911 calls are answered or handled by any local emergency response center. Primevox disclaims all responsibility for the actions and conduct of any and all national and local emergency response centers. Primevox relies entirely upon third parties to route E911 calls to local and national emergency response centers. Primevox disclaims any and all liability or responsibility in the event such third party data used to route the call is incorrect or produces an erroneous result. Neither Primevox nor its officers, directors or employees may be held liable for any claim, damage or loss, and Customer hereby waive any and all such claims or causes of action arising from or related to the E911 Services, unless such claims arose from Primevox’s gross negligence, recklessness, or willful misconduct. Customer, on its own behalf and on behalf of any third party, hereby agrees to defend, indemnify, and hold harmless Primevox, its officers, directors, employees, and agents from and against any and all claims, losses, damages, fines, penalties, costs and expenses (including attorneys' fees) relating to the absence, failure or outage of Primevox’s E911 Service, including without limitation the emergency dialing service or access to emergency service personnel.

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5. PRICING, BILLING and CAPS

For the Services provided pursuant to this Agreement, Customer shall pay Primevox per the pricing and provisions set forth in the Quote signed by Customer. Primevox may need to make legal or required corrections to any attachments from time to time but will only do so once a written agreement is approved by both parties. Any amendments made due to changes in Federal or State Law will become effective forty-eight (48) hours after notice to Customer.

 

5.1. Primevox shall provide a monthly invoice for the Services and the invoiced amounts shall be due and payable by Customer in U.S. Dollars in immediately available funds due within thirty (30) days upon receipt of the billing invoice.

 

5.2. BILLING PROCEDURE. Customer agrees to accept delivery of invoices electronically via the Internet and agrees to remit payment via Credit/Debit Card or Automated Clearinghouse (“ACH”) to Primevox Communications, LLC in care of: CHASE, or such other bank or account as Primevox may in writing direct Customer to remit payment.

 

5.3. In no event shall Primevox be liable for the fraudulent or illegal use of the Services by any customers or end-users of Customer, or for any amounts that Customer is unable to collect from its customers, end users or others.

 

5.4. Customer may, in good faith, dispute any invoiced amount. Customer shall submit to Primevox such dispute within thirty (30) days following receipt of such disputed invoice the written documentation identifying the disputed invoiced amounts. The dispute shall include Primevox-supplied Call Detail Records (CDR) for the disputed calls and the reason for the dispute. The Parties shall investigate the disputed invoiced amounts and Primevox may, at its sole discretion, issue a credit against future invoices. Failure to contest a charge within thirty (30) days of the date of the invoice will create an irrefutable presumption of the correctness of the charge, absent manifest error, defined as a clerical error obvious to both Parties.

 

5.5. Any amounts due hereunder that are not paid when due shall accrue interest at the rate of one and a half percent (1.5%) per month, or ten US dollars ($10) per month, whichever is higher or the maximum amount allowable by law, compounded daily, beginning with the day following the date on which payment was due, and continuing until paid in full. Further, Primevox shall have the right to set off any amounts due hereunder which are not paid when due against any amounts owed to Customer by Primevox or any of its affiliates pursuant to any other agreement or arrangement.

 

5.6. The line-item price on the Quote is the price, and will remain the price for the duration of the contract. Primevox may make billing adjustments for Services ONLY in the event of a violation of Primevox’s Acceptable Use Policy (“AUP”). However, a written agreement between Primevox and Customer must be made before any changes to price. One (1) month prior to the end of the contract, Primevox should begin discussions with Customer as to any pricing changes and/or contract changes to be implemented in the contract renewal, should it be renewed. If no agreement can be reached before end of contract, Customer and Primevox may jointly agree to implement a reasonable temporary pricing structure under terms of this existing Agreement, agreeable to both parties, until agreement can be reached. If no agreement can be reached, services will terminate thirty (30) days after discussions cease.

 

5.7. Customer agrees to pay Primevox all local, state, and federal taxes and/or service fees in connection with Services provided by Primevox. Primevox has the right to pass on to Customer any changes in taxes which may be incurred during the Term of Services.

 

5.8. Primevox may, at any time, validate the credit worthiness of Customer at any time during the Term using available verification procedures.

 

6. SECURITY DEPOSIT and RETAINER

On or before the Start Date (but in any case, prior to the Service Date) Customer may be required to provide Primevox with a security deposit retainer (“Deposit”) which shall be based on amounts equal to thirty (30) - or seven (7)- day anticipated usage, at Primevox’s discretion.

 

6.1. Primevox may draw upon the Deposit at any time to recover any amounts due and unpaid, in which case Customer shall immediately replenish the Deposit to its prior value. Primevox shall not waive any of its rights or remedies by drawing upon the Deposit to recover overdue or unpaid amounts. In the event Primevox draws upon the Deposit, it may suspend the provision of Services until Customer replenishes the Deposit to its original value.

 

6.2. If Customer’s payment history is or becomes reasonably unacceptable to Primevox, Primevox may require that Customer provide, modify, or increase the amount or form of the Deposit. The Customer shall have twenty-four (24) hours from the receipt of Primevox’s written request to comply with this request, and if Customer fails to do so, Primevox may immediately suspend the delivery of Services and/or terminate this Agreement without further notice or demand.

 

7. TERMINATION

7.1 In addition to any other rights at law or in equity, or those stated elsewhere in this Agreement, Primevox may immediately suspend the delivery of Services and/or terminate this Agreement in the event that Customer (i)fails to provide a Deposit as required in this Agreement; (ii)fails to make payment for prepaid domestic US service by the first of each month without any notice or fails to make payment for other measured services when due and to remedy such non- payment within (72) hours, along with a fifty (50) U.S. dollar reconnection fee, after receipt of written notice thereof from Primevox; (iii) becomes insolvent or bankrupt or ceases paying its debts generally as they mature; or (iv) commits a breach of any of the terms of this Agreement (other than the breach of the deposit or payment obligation as addressed in (i) and (ii) above) and fails to remedy such breach within three (3) days after receipt of written notice thereof from Primevox.

 

7.2. In the event of any termination of this Agreement, Customer shall pay Primevox for all Services rendered through and including the current Term, in addition to any other charges established by this Agreement. If any access or reciprocal fees to Primevox should arise, Primevox shall present these fees to Customer. If agreed to in writing by both Customer and Primevox, a price adjustment can be made.

 

7.3. In the case of early termination of the fixed term pursuant to this Agreement prior to the expiration of the term either by Primevox pursuant to this Paragraph or by Customer for any reason other than a material breach solely attributable to Primevox, Customer shall remain liable to Primevox for the monthly charges or minimum commitments agreed upon hereto for the remainder of the current Term, in addition to any other charges established by this Agreement.

 

7.4. Customer understands and agrees that any breach by Customer of its obligations under this Agreement shall also be deemed a breach by Customer of its obligations under any other agreements it has entered into with Primevox and/or its affiliates and understands and agrees that such breach shall authorize Primevox and/or any of its affiliates to immediately suspend performance under, and/or terminate, said agreements with Customer for default if such breach(es) have not been cured within the time provided for in this Agreement.

 

7.5. CANCELLATION FOR CAUSE BY PRIMEVOX. Primevox may discontinue the furnishing of any and/or all Services to a Customer, without incurring any liability, immediately and without notice if Primevox deems, in its reasonable discretion, that such action is necessary to prevent or to protect against fraud, tricks, tampering, schemes, false or invalid numbers, false credit devices, electronic devices, or any other fraudulent means or devices or to otherwise protect its personnel, agents, facilities or services or to protect against actual or potential adverse financial effect. Primevox may discontinue the furnishing of any and/or all Services to a Customer, without incurring any liability, immediately and without notice if Customer refuses to furnish information to Primevox regarding the Customer's creditworthiness, its past or current use of Primevox's VoIP Services, the jurisdictional nature or characteristics of the Services or its planned use of Services. Primevox may discontinue the furnishing of any and/or all Services to a Customer, without incurring any liability, immediately and without notice if Customer provides false information to Primevox regarding the Customer's identity, address, creditworthiness, past or current use Primevox’s VoIP Services, jurisdictional nature or characteristics of the Services or its planned use of Services.

 

8. USE OF SERVICES, CUSTOMER RESPONSIBILITIES

8.1. DID TELEPHONE NUMBERS. Primevox will make available to Customer all reasonably requested Direct Inward Dialing (DID) Telephone Numbers where Primevox has access to such numbers. The DID telephone numbers service is provided as an aggregated transport service only. It is understood that it is the Customer’s responsibility to test the numbers assigned to Customer prior to allowing usage by the Customer or the Customer’s end user.

 

8.2. TELEMARKETING TRAFFIC. Customer cannot terminate this Agreement as a result of telemarketing traffic or any fax broadcasts, including any traffic that would violate the Telephone Consumer Protection Act ("TCPA"), which prohibits the sending of facsimile advertisements without the prior consent of the recipient.

 

8.3. SINGLE NUMBER COMPLAINT. In the event Customer experiences a single number complaint or a single end user complaint and such complaint is referred to Primevox, Primevox will perform reasonable efforts to isolate the problem. Primevox by practice and policy will not perform any alternate routing of egress trunks based upon a single number or single end user complaint. However, Primevox will attempt to find if the problem correlates across multiple customers in order to perform any necessary corrective actions. If Primevox determines that an issue is related to a single number or single end user, Primevox will perform any necessary and reasonable corrective actions to resolve the issue.

 

8.4. TRAFFIC CONTROL BY CUSTOMER. In addition to any other term and conditions of this Agreement, Customer shall bear the following responsibilities in connection with Primevox’s provision to Customer of Service:

 

8.4.1.  In the event Customer is not using Primevox supplied equipment, but rather using Customer’s own equipment, Customer shall remain responsible to manage and maintain such equipment

 

8.4.2. Customer shall screen and block calls destined to (a) invalid single numbers, (b) unassigned numbers or (c) numbers with invalid formats.

 

8.4.3. Customer shall manage and correct, as necessary, any fraudulent calling patterns or calling patterns perceived as fraudulent that may harm or adversely affect Primevox or its network. In the event Customer fails to comply with the requirements described above, Primevox shall have the right (but not the obligation) to take protective action against Customer in order to protect Primevox's egress network. Protective action may include, without limitation, the temporary blocking of Customer’s traffic until the applicable problem is resolved (at Primevox's reasonable discretion).

 

9. GENERAL

9.1. LIMITED PERFORMANCE WARRANTY. Primevox shall provide services in a manner consistent with industry standards and practices and in accordance with any Attachment made part of this Agreement during the Term.

 

9.2. LIMITATION OF LIABILITY. Customer acknowledges that Primevox has no control over how a foreign administration or third-party carrier establishes its own rules and conditions pertaining to VoIP services. Primevox will make every reasonable effort to ensure quality of service and uptime, however Primevox is not responsible for service interruptions as a result of customer equipment issues or customer connection issues that are beyond the control of Primevox. Primevox is liable for the actions of all its employees if those actions cause harm to the Customer or the Customer's property. Primevox will put forth reasonable effort to rectify any situation where outage, damage, or loss of service occur, and said situation is under the control of Primevox. Whenever Primevox has no control or ownership over an issue, Customer understands Primevox is not liable.

 

9.3. LIMITATION OF PRIMEVOX'S LIABILITY FOR ONLINE OR API (WEB-BASED) SERVICES. Primevox warrants its services under the terms of this contract as fully functional over a sufficient internet connection. Customer acknowledges and accepts that communications and transactions conducted online may not be absolutely secure, that there may be a system failure that may limit Customer's accessibility to online Services and that on-line Services are not guaranteed to be error free. By enrolling in and using such online Services, Customer agrees to accept responsibility and risk associated with the use of such online Service and the Internet generally, specifically for services outside of the control of Primevox. Customer shall be responsible for any and all charges and damages arising out any non Primevox provided services, and shall indemnify Primevox, and hold and save Primevox harmless, from any and all such charges and damages, including reasonable attorneys' fees and costs which shall be paid as incurred, where such charges are for Customer issues that originate outside of the control of Primevox. Primevox is responsible for its connectivity and equipment, and the Customer is responsible for its own equipment

 

9.4. LIMITATION OF PRIMEVOX'S LIABILITY FOR MISUSE OF CUSTOMER'S SERVICE. Primevox shall not be liable for the use, misuse, or abuse of a Customer's Service or Customer's facilities by the Customer, the Customer's agents, or its employees, or any third parties including, without limitation, members of the public who are not employed by Primevox or agents of Primevox. Primevox may work with Customer, if requested, to recommend possible solutions to reduce unauthorized use of the Services and Customer's facilities. Primevox does not, however, warrant or guarantee that its recommendations will prevent unauthorized use, and the Customer is responsible for controlling access to, and use of, the Services and its own communications facilities. Customer shall remain solely responsible for any and all charges and damages arising out of any wrongful conduct by the Customer as described in this section, and shall indemnify Primevox, and hold and save Primevox harmless, from any and all such charges and damages, including reasonable attorneys' fees and costs which shall be paid as incurred.

 

9.5. COOPERATION. Customer and Primevox agree that, if another carrier and/or regulatory agency determines that it is necessary to audit the traffic which is the subject of the Agreement, Customer and Primevox will cooperate in any such investigation. This does not prohibit Customer from challenging the charges assessed by the third party or the classification of its traffic being subject to access charges.

 

10. REGULATORY and LEGAL COMPLIANCE

The rates set forth in this Agreement are subject to the imposition of new regulations, modification of existing regulation, new interpretation, application or enforcement of, or exercise of authority related to, any regulation or finding of any federal, state, and/or local regulatory agency, legislative body, or court of competent jurisdiction, including, without limitation, the imposition of any charges (such as USF charges), surcharges, and/or taxes in reliance on, or as a result of, the same (collectively, “Regulatory Activity”).

 

10.1. Primevox reserves the right, at any time, (i) to pass through to Customer all, or a portion of, any charges, surcharges, or taxes directly or indirectly related to such Regulatory Activity; and/or (ii) modify the rates and/or other terms and conditions of this Agreement to reflect the actual cost impact of such Regulatory Activity, including, without limitation, the actual cost impact of any actions by third parties in connection with such Regulatory Activity. Customer and Primevox shall acknowledge such changes in writing, with details of the increase.

 

10.2. Customer represents and warrants that all traffic Customer delivers to Primevox for termination is originated on IP-based endpoints, such as VoIP-enabled on premises PBX, Digital or Analog VoIP Gateways, Digital or Analog Telephone Adapters and similar voice packet producing devices.

 

10.3. Customer understands and acknowledges that Primevox will rely upon such representation to assign local telephone numbers to Customer and/or route Customer’s traffic for termination as local calling.

 

10.4. Customer shall promptly pay to Primevox all access charges, reciprocal compensation, and/or any other reasonable charges, surcharges and/or taxes billed to Primevox by a third party, or remitted by Primevox to a third party, that are associated with any of Customer’s traffic delivered or facilities utilized pursuant to this Agreement, including but not limited to any retroactive charges (collectively, “Additional Charges”), and that are not already reflected in the rates charged by Primevox for the Services rendered pursuant to this Agreement.

 

10.5. Although Primevox shall not have any obligation to challenge any Additional Charges levied by a third party, if Primevox successfully challenges imposition of any Additional Charges by a third party, it will refund to Customer any Additional Charges previously paid by Customer to Primevox that were subject to such successful challenge.

 

10.6. Even if Customer elects to transition the affected Services to another carrier, Customer shall still be responsible for paying all Additional Charges billed to or remitted by Primevox up to and including the final transition date. The Parties agree to cooperate on the scheduling of any such transition, but such transition shall be subject to all the terms in this Agreement, including those regarding early termination.

 

10.7. DISCLAIMER OF DAMAGES. IN NO EVENT SHALL Primevox, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SERVICE, INCLUDING INABILITY TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY SERVICE PERSONNEL THROUGH THE SERVICE. THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER THEORIES OF LIABILITY AND APPLY WHETHER OR NOT Primevox WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.

 

10.8. INDEMNIFICATION. Customer, on behalf of its employees and assigns, agrees that it shall indemnify, defend and hold harmless Primevox and its officers, directors, employees, and agents (collectively the “Primevox Indemnitees”) from and against any and all third party damages, claims, losses, expenses, costs, obligations, and liabilities, including without limitation, reasonable attorney's fees and costs which shall be paid as incurred suffered directly or indirectly by any of the Primevox Indemnitees, by reason of or arising out of any negligent, grossly negligent, or intentional wrongful acts by Customer. Primevox, on behalf of its employees and assigns, agrees that it shall indemnify, defend and hold harmless Customer and its officers, directors, employees, and agents (collectively the “Customer Indemnitees”) from and against any and all third party damages, claims, losses, expenses, costs, obligations, and liabilities, including without limitation, reasonable attorney's fees and costs, which shall be paid as incurred, suffered directly or indirectly by any of the Customer Indemnitees by reason of or arising out of any negligent, grossly negligent, or intentional wrongful acts by Primevox.

 

10.9. NO WARRANTIES ON SERVICE. Primevox MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE. Primevox DOES NOT WARRANT THAT THE SERVICE WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA, OR INFORMATION, IF CAUSED BY EQUIPMENT OR AN EVENT OUTSIDE OF THE CONTROL OF Primevox. NEITHER Primevox NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO Primevox OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION CAUSED BY CUSTOMER, Primevox’s SERVICE PROVIDERS OR VENDORS THAT ARE OUTSIDE THE CONTROL OF Primevox, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF UNINTENTIONAL ACCIDENT OR NEGLIGENCE. STATEMENTS AND DESCRIPTIONS CONCERNING THE SERVICE OR DEVICE, IF ANY, BY Primevox OR Primevox’S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A WARRANTY OF ANY KIND.

 

10.10. NO THIRD-PARTY BENEFICIARIES. No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third-party beneficiary rights. However, Primevox may transfer this agreement to a third party in the event of a sale of Primevox to a third party, or a party to this agreement, or in the event of a change of control in the ownership of Primevox.

 

11. GOVERNING LAW/RESOLUTION OF DISPUTES

11.1. MANDATORY ARBITRATION. Any dispute or claim between Customer and Primevox arising out of or relating to the Service or Device provided in connection with this Agreement shall be resolved by arbitration before a single arbitrator administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in Dallas, Texas and shall be conducted in English. The arbitrator's decision shall follow the plain meaning of the relevant documents and shall be final and binding. Without limiting the foregoing, the Parties agree that no arbitrator has the authority to: (i) award relief more than what this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually, and Customer will not bring, or join any class action of any kind in court or in arbitration or seek to consolidate or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.

 

11.2. GOVERNING LAW. The Agreement and the relationship between you and Primevox shall be governed by the laws of the State of Texas without regard to its conflict of law provisions. To the extent court action is initiated, it is agreed that personal and exclusive jurisdiction of the courts shall be located in Dallas County, Texas and The Parties hereby waive any objection as to venue or inconvenient forum. The failure of Primevox to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the Parties nevertheless agree that the court should endeavor to give effect to the Parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.

 

11.3. ENTIRE AGREEMENT. This Agreement and the associated Attachments constitute the entire agreement between Customer and Primevox and governs Customer’s use of the Service, superseding any prior agreements between Customer and Primevox and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No amendment to this Agreement shall be binding upon the Parties unless set forth in writing signed by Primevox and Customer.

 

11.4. SEVERABILITY. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.