READ THIS AGREEMENT CAREFULLY, IN ITS ENTIRETY, BEFORE USING THE SERVICES. REFERENCES IN THIS AGREEMENT TO “YOU” AND “YOUR” MEAN “CUSTOMER.” YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO: (1) REGISTER THE COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT, INCLUDING ANY AUTHORIZED AGENT/ EMPLOYEE OF SUCH ENTITY, AS USERS OF THE SERVICES; AND (2) BIND THE COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT, INCLUDING ANY AUTHORIZED AGENT/ EMPLOYEE OF SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. HEREINAFTER, YOU, THE COMPANY OR OTHER LEGAL ENTITY THAT YOU REPRESENT, INCLUDING ANY AGENT/ EMPLOYEE OF SUCH ENTITY THAT WILL BE AUTHORIZED USERS OF THE SERVICES WILL BE REFERRED TO AS “CUSTOMER”.
1. SERVICES PROVIDED; ADDITIONAL TERMS; CHANGES
1.1 Services Provided. Callifi will provide the Customer with the particular service(s) ordered by Customer, and the applicable Callifi Service Description, which is available at [www.Callifi.com]. The “Callifi Service Description” is the description of Callifi’s standard Services then current as of the date of Customer’s ordering of the Callifi Services (hereinafter collectively referred to as “Services”). Customer’s service order (whether executed in written or electronic form) and any future orders (collectively referred to as “Service Order”) shall be automatically incorporated into this Agreement by reference effective as of the date of such Service Order. Unless specifically requested by Customer in writing, the Services do not include international calling. All calls to international destinations will be blocked, unless Customer activates international calling by written request to Callifi. Customer will be responsible for all charges incurred for international calls at the rates prescribed in the applicable Service Order. Callifi reserves the right, without liability to Customer or to any third party, to block traffic to or from any international destination and/or to certain categories of numbers (e.g. 976, 900) or certain websites, in Callifi’s sole discretion, in order to comply with applicable law or to prevent damage to Callifi’s network or equipment, or to prevent fraud or other abuses.
1.2 Additional Terms. In order to obtain additional features of the Callifi Services and/or equipment offerings, Customer may be required to agree to additional terms (the “Additional Terms”) beyond those stated herein, which, with respect to Services, will be automatically incorporated into this Agreement by reference effective as of the date of Customer’s assent thereto (which assent may be in written or electronic form) and will apply with respect to Customer’s use of such specific additional feature or features elected. Also, with respect to certain equipment, additional terms and conditions may be applicable, and, if so, such terms will be provided to Customer upon delivery of the applicable Equipment. Customer’s acceptance of such equipment shall constitute its assent and agreement to such terms, and, if applicable, such terms shall be incorporated by reference herein.
1.3 Changes to the Service. Callifi may at its sole discretion modify the aspects, features, or functionality of any of the Services without prior notice.
2. TERM The initial term of this Agreement and the provision of the Services is 36 months (“Initial Term”), which shall automatically renew each year after the Initial Term, for consecutive one (1) year periods (“Renewal Terms”) at each anniversary thereof, unless extended pursuant to an executed Service Order that remains in effect by its express terms or as part of a Customer requested service modification requiring such extension, or terminated by Customer by providing Callifi with its written notice of intent to terminate this Agreement not less than thirty (30) days prior to the expiration of the then-current term (Initial or Renewal) in effect at that time and in accordance with Section 20, Termination. Notwithstanding the foregoing, the provision of the Services by Callifi to Customer shall commence upon Customer’s execution of an initial Service Order).
3. USE OF THE SERVICE3.1 System Requirements. In order to use the Services, Customer must, at Customer’s own expense, provide and utilize one or more industry standard, Service compatible devices, high speed broadband access, and certain software, and may be required to obtain updates or upgrades to the foregoing from time to time. Customer’s ability to use the Services may be affected by the performance of these items. Customer acknowledges and agrees that system requirements for the Services may change from time to time and that adherence to the system requirements is Customer’s responsibility. Customer is responsible for ensuring that its networks and systems are adequately secured against unauthorized intrusion or attack and for regularly backing up its data and files in accordance with good computing practices.
3.2 Callifi Equipment. To use the Callifi Services, Customer may also purchase certain Callifi equipment, as set forth in Attachment 1 to this Agreement.
3.5 Scope of Use/ Fair Usage. Customer shall use the Service only as permitted in this Agreement and in accordance with applicable laws and regulations, including but not limited to laws regarding the export of data or software. Customer shall use the Services only for its internal business purposes. Customer’s use of the Services may be subject to certain restrictions and limits, including without limitation as to conference ports, number of users per subscription, and storage, which if applicable will be communicated by Callifi. If Callifi determines that Customer has violated or is in violation of this provision, Callifi will endeavor to notify Customer and may, in its sole discretion, terminate Customer’s Services immediately and without notice. In the event of such termination Customer shall remain bound by its payment obligations for the remainder of the then current (Initial or Renewal) Term of the Agreement and shall also remain liable and responsible for its acts and/or omissions occurring prior to the date of termination. Customer may not transfer or assign its subscription or right to use the Services to any other company, entity, or other third party.
3.6 Prohibited Uses. Customer agrees not to use the Services in a manner that is actually or potentially libelous, threatening, harmful, harassing, indecent, obscene, in violation of the intellectual property rights of any party, or is otherwise unlawful under any applicable law or regulation. Customer agrees not to engage in any activity that interferes with or disrupts the Services or associated servers, networks, or software; prevents or restricts other customers from using the Services; or damages any Callifi or third-party property. Customer agrees not to use the Services in a manner that abuses or disrupts customer service, technical support, or company operations or otherwise interferes with the ability of other customers or third parties to access these services. Customer agrees not to reproduce, duplicate, copy, sell, trade, or resell the Services provided under Customer’s account(s) or use them in connection with the operation of a service bureau. Without limiting the foregoing, Customer agrees not to use the Services for autodialing or predictive dialing; continuous or extensive call forwarding; constant dialing; iterative dialing; fax broadcast; fax blasting; junk faxing; fax spamming; transmitting broadcasts or recorded material; sending unsolicited messages or advertisements; telemarketing; sending bulk and/ or junk email, voicemail, or faxes; call center operations or other bulk call-in lines; taking any action to attempt to mislead others as to the identity of the sender or the origin of any communication; or any other activity outside the scope of reasonable internal business usage. Customer agrees not to (1) re-classify or re-originate traffic or take any other action to intentionally make traffic appear as if it: (i) is anything other than the type of traffic delivered to such called party (including but not limited to making TDM originated traffic appear to be IP originated) or (ii) originated from a place or on a type of equipment different from the place or type of equipment from where it, in fact, originated; or (2) modify, alter, or delete in any manner calling party number information, originating point codes, or any other signaling information or call detail in connection with the transport and termination of traffic to the called party. Customer agrees not to access or attempt to access the Services by any means other than the interface provided by Callifi, including but not limited to any automated means such as the use of scripts or web crawlers. Customer agrees not to use any trademark, service mark, trade name, or logo of any third-party company or organization or of Callifi in conjunction with the Service in a manner that is likely or intended to cause confusion about the owner or authorized user of such mark, name, or logo.
3.7. Callifi’s Remedies for Prohibited Use. Callifi may take any lawful action it deems appropriate with respect to prohibited use of the Services or other use of the Services that it deems to be inappropriate, in violation of this Agreement, or potentially disruptive to the Services or Callifi’s network, Callifi’s rights and interests, or the rights of other customers. Callifi’s Remedies for Customer’s prohibited use of the Services includes, but is not limited to, issuing warnings; immediately and without notice terminating Customer’s use of and/or access to the Services, subscription, accounts, and/or users; disabling access to or suspending the Services, subscription, or accounts; or increasing the monthly rates charged Customer for the period of Customer’s prohibited use and the remainder of the Agreement’s term. Callifi may take any or all of the foregoing actions without notice or liability to Customer or any other party, although Callifi shall have no obligation to take any such action. If Callifi terminates Customer’s access to and/or use of the Services or this Agreement pursuant to this Section 3.7, Customer shall remain responsible for payment of 75% of monthly service fees for the remainder of the Agreement’s term pursuant to section 20.1. IF CUSTOMER CONSISTENTLY EXCEEDS 50,000 MINUTES PER MONTH OR 50 CONCURRENT CALLS AT ANY TIME, Callifi RESERVES THE RIGHT TO IMMEDIATELY suspend or terminate Customer’s access to and/or use of the Services per this Section 3.7. Callifi further reserves the right to terminate voice calls exceeding 6 hours duration and fax calls exceeding 3 hours duration without notice.
3.8 Support. Callifi will provide Customer with technical consultation support for the term of the Services. Customer may access technical support by calling Callifi’s customer telephone support at 1-888-492-2554 or 1-212-423-1234, which is available weekdays during the hours of 9:00 AM to 5:00 PM EST, or via email at firstname.lastname@example.org.
3.9 Customer Proprietary Network Information. In the normal course of providing services to its users and customers, Callifi collects and maintains certain customer proprietary network information (“CPNI”) typical to the industry. CPNI includes the types of telecommunications and interconnected VoIP services Customer currently purchases or subscribes to, how Customer uses those services (for example, Customer’s calling records), and billing information related to those services. Customer’s Callifi telephone number, name, and address do not constitute CPNI. Callifi does not sell, trade, or otherwise share Customer’s CPNI with anyone outside of Callifi and those parties authorized to represent Callifi to offer Callifi’s services or to perform functions on Callifi’s behalf related to Callifi’s services, except as the law may require or Customer may authorize. Federal law generally permits Callifi to use CPNI in its provision of the telecommunications and interconnected VoIP services Customer purchases or subscribes to, including billing and collections for those services. Callifi may also use or disclose Customer CPNI for legal or regulatory reasons such as to respond to a court order, to investigate fraud, to protect Callifi’s rights or property, to protect against the unlawful use of Callifi services, or to protect other users.Customer may elect to prohibit Callifi’s use of Customer’s CPNI to market services other than Services of the same type that Customer already purchases from Callifi by providing Callifi with Customer’s “opt-out” notice within thirty (30) calendar days of the Effective Date to email@example.com. If Customer fails to do so within such timeframe, Customer will be deemed to have given Callifi consent to use Customer’s CPNI to market services other than Services of the same type that Customer already purchases from Callifi. Restricting Callifi’s use of Customer CPNI will not affect Callifi’s provision of any service, nor will it necessarily eliminate all types of Callifi marketing.
3.10 Web access. Certain pages on the Callifi Communications website (“Site”) along with Customer’s account may be accessed exclusively through the use of a unique Personal Identification Number (“PIN”). Customer is solely responsible for all uses of the Site, the Services, Customer’s account, and the unique PIN. If Customer’s account is accessed by an unauthorized party or fraudulently used, Customer will immediately notify Callifi in writing of such unauthorized and/or fraudulent use. Callifi has the right to interrupt, restrict or terminate Services to Customer’s account, without notice if Callifi suspects fraudulent or abusive activity. Customer agrees to cooperate with Callifi in any fraud investigation and to adopt any fraud prevention measures prescribed by Callifi. Customer shall be fully responsible for charges related to, and shall not be excused from paying Callifi for, Services provided on the basis that fraudulent calls comprised all or a portion of Services.
4. CUSTOMER’S CONTENT
4.1 Customer is solely responsible for the content of all information, communications, materials and files, whether visual, written, audible, or of other nature, sent, displayed, uploaded, posted, published, or submitted by Customer while utilizing the Services (“Customer’s Content”) and for the consequences of doing so, including any loss or damage to Callifi or any third parties, including but not limited to violations of third-party intellectual property rights, copyrights or other interests in such information, communications, materials and files. Callifi has no responsibility to Customer or any third party for Customer’s Content or Customer’s violations of any rights that a third party may have in Customer’s Content. Customer agrees to indemnify, defend and hold harmless Callifi for any damage to or infringement on the rights of a third party related to Customer’s Content, pursuant to Section 19.1.
4.2 Callifi reserves the right to, but shall have no obligation to, pre-screen, refuse, flag, filter, or remove any of Customer’s Content from the Services at Callifi’s discretion without notice or liability to Customer or any other party.
4.3 Customer shall retain copyright and any other intellectual property rights Customer holds in Customer’s Content. Customer shall remain solely responsible for protecting and enforcing such rights where applicable.
4.4 Customer hereby grants to Callifi a non-exclusive, worldwide, royalty free, sub-licensable, transferable, perpetual, irrevocable license to use, modify, adapt, translate, publish, publicly perform, publicly display, reproduce, prepare derivative works of, and distribute Customer’s Content solely for the purpose of providing and distributing the transmission of such Customer Content, as is necessary to the successful provision of the Service to Customer. Customer represents and warrants that it has all necessary rights, licenses, consents, and permissions to grant such license and permit such use.
4.5 Callifi will endeavor to store Customer’s voicemail, sent or received call logs, recorded/stored calls, and/ or instant messages as part of the Services; however Callifi is not obligated to do so and Callifi has no responsibility or liability for the deletion or failure to store any of the foregoing.
5. OTHER USERS’ CONTENT
5.1 Callifi does not control and shall have no liability or responsibility for the 1) conduct or 2) content of any information and communications, whether visual, written, audible, or of other nature, sent, displayed, uploaded, posted, published, or submitted by other users via the Services, including but by no means limited to advertisements or sponsored content (item (2) collectively referred to as “Other Users’ Content”).
5.2 Other Users’ Content may be protected by copyright and other intellectual property rights of such other users or other persons. Customer shall not copy, modify, rent, lease, sell, loan, distribute, or create derivative works based in whole or part upon Other Users’ Content unless specifically agreed to by the owners of such Other Users’ Content in a separate written agreement with Customer.
5.3 It is Callifi’s policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including in the United States the Digital Millennium Copyright Act) and to terminate the accounts or subscriptions of repeat infringers. If you are a copyright owner or an agent thereof and believe that any audio content or other content on or transmitted through the Services by a third party infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing Callifi’s copyright agent with the following information in writing (See 17 U.S.C 512(c)(3) for further detail):i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Callifi to locate the allegedly infringing material;iv. Information reasonably sufficient to permit Callifi to contact you, such as an address, telephone number, and, if available, an email address;v. A statement that you have a good faith belief that use of the applicable materials in the manner complained of is not authorized by the copyright owner, its agent, or the law; andvi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.Callifi’s designated copyright agent to receive notifications of claimed infringement is: [Raphael Abada firstname.lastname@example.org]. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid under applicable law.
6. CHARGES, FEES AND PAYMENT6.1 Charges and Fees.
Callifi will charge Customer’s credit card, or such other payment mechanism as may be approved by Callifi in writing, for the fees for the Services, including monthly fees and any other fees or charges associated with Customer’s account (collectively, “Fees”). Callifi shall bill Customer on a monthly basis beginning on the date that the Services commence (“Commencement Date”), and the payment of all Fees shall be due on or before the same day of the month corresponding to the Commencement Date for each of the following months during the term of this Agreement or thereafter (as applicable). Callifi will bill and Customer shall pre-pay for the Fees for the Services on a monthly basis, as provided above. Callifi will bill any other Fees or charges monthly in arrears, as provided above, unless otherwise agreed or specified in writing by Callifi. Unless otherwise agreed by Callifi, Callifi will charge Customer for equipment upon receipt of Customer’s order for such equipment. Customer will pay all bank charges, taxes, duties, levies and other costs and commissions associated with non-credit card methods of payment. Callifi may suspend performance of the Services for which payment is overdue until the overdue amount is paid in full. Overdue payments will be subject to a late payment charge of the greater of one and one half percent (1.5%) per month, or the maximum rate allowed by applicable law. Customer will reimburse Callifi for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments. Except for those occurrences addressed in Section 7, Customer must dispute any charges for the Services in writing within thirty (30) days after the invoice date; otherwise Customer waives any dispute or further recourse with respect to the applicable charges. For Accounts paid via credit or debit card, if Customer’s credit or debit card should be declined for any reason, Callifi will make up to two attempts to charge it again over the following two days. If the credit or debit card is declined on the third try, Customer’s account will be terminated, and Callifi shall be entitled to any and all other remedies available under this Agreement and/or applicable law. Notwithstanding this Section 6.1, if Customer’s debit or credit card is declined within 30 days of the date Customer’s account was opened, the account will be canceled immediately and the phone number on Customer’s account may be removed from the account.
6.2 Taxes. Unless Customer provides Callifi with a current tax exemption certificate, Customer is solely responsible for paying all legally required taxes, including without limitation any state or local sales, excise, and/or other taxes and fees which may be levied upon the Services and/or Customer’s use thereof, except for taxes assessed upon Callifi based upon its gross income.
6.3 Regulatory Fees. Callifi may charge Customer the following regulatory fees:
a. Federal and State Universal Service Fee. Callifi is required to make contributions to the Federal Universal Service Fund (USF) and certain state Universal Service Funds which provide support to promote access to telecommunications services at reasonable rates for those living in rural and high-cost areas, income-eligible consumers, rural health care facilities, and schools and libraries. Callifi is permitted but not required to recover such costs from its customers. The Federal Communications Commission sets the Federal USF rates on a quarterly basis. USF rates are subject to change each quarter.
b. 911 Fee. This fee is imposed by state and local governments to help pay primarily for the handling of calls for emergency services such as fire and rescue.
c. 911 Service Fee. Callifi may charge a per-DID/ phone number fee to recover Callifi’s costs directly associated with providing 911 and E911 to its customers.
d. Regulatory Recovery Fee. Callifi may charge a monthly regulatory recovery fee to offset costs it incurs in complying with obligations imposed by, and inquiries made by, federal, state, and municipal regulatory bodies/governments and related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. If assessed by Callifi, the regulatory recovery fee will apply to every directly dialable telephone number (in certain cases referred to as DID-phone numbers) assigned to Customer, including toll-free and virtual numbers.
e. Other Fees. Customer agrees to pay any other fees that may be levied on the Services which are chargeable to customers by any governmental authority.
6.4. Credit. Callifi reserves the right to require credit approval prior to providing Callifi Services to Customer. Customer further agrees that Callifi may and is hereby authorized to contact credit reporting agencies and to request credit reports in connection with Customer’s purchase of Services under the Agreement. If Customer’s financial condition at any time does not, in the reasonable judgment of Callifi, justify continuance of the provision of Services under the Agreement pursuant to the payment terms hereunder, Callifi may require full or partial payment in advance or shall be entitled to terminate the Agreement pursuant to Section 20.1.
7. SERVICE LEVELS AND SERVICE AVAILABILITY
7.1 Maintenance and Modifications to Service. Callifi may at any time and without liability modify, expand, improve, maintain, or repair the Callifi network even if such activity might result in temporary suspension(s) of the operation of any or all of the Services or any component thereof. Callifi will endeavor to minimize any disruption to the Services to Customer and shall use commercially reasonable efforts to give Customer notice of a maintenance period prior to the disruption by telephone (real-time or voicemail), facsimile, or e-mail. Credits will not be issued with respect to such Services interruptions, provided that if Callifi has used commercially reasonable efforts to so notify Customer in accordance with this paragraph.
8. Callifi’S IP RIGHTS
8.1 Callifi’s IP. Callifi and/or its third-party licensors, suppliers, partners, and service providers (as applicable) reserve all rights, including, but not limited to, ownership, title, and all other rights and interest in, and to, any computer programs (in object or source code format or any other form), know-how, inventions, processes, databases, documentation, training materials and any other intellectual property and any tangible embodiments of it comprising the Services (or any component thereof) and the provision of the Services (collectively, “Intellectual Property”) that Callifi (i) owned prior to providing the Services under the Agreement, (ii) that Callifi develops, creates, or otherwise acquires independently of this Agreement, and (iii) develops, creates, or otherwise acquires (including, without limitation, derivative works) while performing the Services under the Agreement, whether as a result of Customer’s input, comments, or otherwise, and, to the extent that any of the foregoing would otherwise vest in Customer, Customer hereby irrevocably assigns the foregoing to Callifi.
8.2. Callifi and/or its third-party licensors own all right, title, and interest in and to the Services, associated software, and the content of all information and communications, whether visual, written, audible, or of another nature presented by or on behalf of Callifi as part of the Services (“Callifi’s Content”), including, without limitation, the graphic user interface for the Services and any and all proprietary elements of the portal utilized to access the Services. Customer shall not copy, modify, rent, lease, sell, loan, distribute, or create derivative works based in whole or part upon Callifi’s Content or any portion thereof.
8.3. Nothing in this Agreement grants Customer any right to use any of Callifi’s trade names, trademarks, service marks, logos, domain names, trade dress, or other distinctive brand features.
8.4. Customer shall not remove, obscure, or alter any proprietary rights notices, such as copyright or trademark notices, attached to or contained within Callifi’s Content, the Services, or associated software or servers.
9. SOFTWARE LICENSE TERMS
The software and documentation provided or made accessible under this Agreement are licensed to Customer by Callifi and/or its third-party licensors (as applicable) in accordance with and subject to any terms and conditions that may be set forth in the Software License Terms at [www.callifi.com/terms] (“License Terms”) or, to the extent applicable, are subject to public license(s) for the use of open source software. Notwithstanding the foregoing, the scope of the license granted to Customer under this Agreement shall be for the sole purpose of utilizing the Services for the specified number of users, strictly in accordance with the terms of this Agreement, and for the duration of Customer’s subscription (until the effective date of termination of the applicable Services or this Agreement).
10. SOFTWARE UPDATES
The Callifi software may automatically (push or pull – download) and install updates from Callifi and/ or affiliated equipment manufacturers from time to time. Updates may take the form of bug fixes, new or enhanced functionality, new software modules, and updated or new versions of the software, and are intended to improve or enhance the Services. As a condition to receiving access to and/or use of the Services, Customer agrees to allow such updates to be promptly downloaded and installed as part of its utilization of the Services.
11. 911/E91111.1 911 limitations and restrictions.
THE SERVICES INCLUDE A 911/E911 ACCESS COMPONENT. THE SERVICES’ 911/ E911 ACCESS COMPONENT DOES NOT HAVE THE SAME FUNCTIONALITY OR AVAILABILITY AS THAT ASSOCIATED WITH TRADITIONAL WIRELINE 911/ E911 SERVICES AND IS SUBJECT TO CERTAIN LIMITATIONS AND RESTRICTIONS INCLUDING, WITHOUT LIMITATION, THOSE DESCRIBED HEREIN, AND CUSTOMER SHOULD NOT SUBSTITUTE THE SERVICES FOR ANY SUCH TRADITIONAL WIRELINE SERVICES. CUSTOMER AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICES OF THE 911/ E911 LIMITATIONS DESCRIBED HEREIN. CUSTOMER ACKNOWLEDGES, AND IS HEREBY ON NOTICE, THAT THE 911/ E911 ACCESS PORTION OF THE SERVICES WILL NOT FUNCTION OR WILL NOT FUNCTION PROPERLY FOR ANY OF THE REASONS DETAILED BELOW AND REPRESENTS AND WARRANTS THAT IT HAS BEEN INFORMED BY Callifi OF THE REASONS TO HAVE AT LEAST ONE BACKUP METHOD OF ACCESSING 911/E911 SERVICE, SUCH AS A CIRCUIT-SWITCHED TDM TELEPHONE OR CELLULAR TELEPHONE, PER CUSTOMER LOCATION.
a. Loss or interruption of electrical power to Customer’s VoIP telephone, its ATA, Modem, Router, Switch or any other devices in the critical path from Customer’s VoIP handset to the Callifi switching center at the user’s location. The user will not be able to use the Services for calls (including “911”) during such a power interruption or outage. Following the power interruption or outage, users may find it necessary to reset or reconfigure the Services prior to being able to use the Services for making and receiving calls, including “911” calls.
b. Loss or interruption of Internet access at the user’s location.
c. Failure of the user’s broadband or VoIP hardware (including without limitation Phones).
d. Failure of the user’s broadband or VoIP software (including without limitation soft phones).
e. Improperly installed or configured user broadband or VoIP hardware.
f. Improperly installed or configured user broadband or VoIP software (including without limitation soft phones).
g. Suspension, disconnection, or termination of the Services for any reason, including without limitation (i) for failure to pay or default, or (ii) failure of the Services to function for any reason.
h. Customer failed to provide Callifi with any physical location of the Callifi served VoIP handset-user, or failed to provide the correct physical location of same (i.e., the address is incorrect, incomplete, abbreviated, or misspelled).i. Customer failed to update the user’s physical location with Callifi when the user moved or changed location/address.j. The user attempts a 911 call via a Callifi served VoIP handset from a location/address different than the location/address registered with Callifi.
k. For the purposes herein (911/E911), the terms location and address shall be understood to designate information necessary to generate a proper Automatic Location Identification record ensuring proper routing to and from the proper PSAP for the call’s originating location. Such location and address may include but not necessarily limited to the street name and number, building, unit, and zip code (e.g. Unit B-22, 1111 North Main Street, Anywhere, State, 99999).
11.2 Requirement to Register and Update Location Information. CUSTOMER IS REQUIRED TO REGISTER THE PHYSICAL LOCATION OF EACH USER’S EQUIPMENT (PHONE OR SOFTPHONE) WITH Callifi UPON ORDERING THE SERVICE AND UPON ADDING A USER/ USERS TO AN EXISTING Callifi SUBSCRIPTION VIA ENTERING THE PHYSICAL LOCATION OF THE USER BY EMAIL TO email@example.com. CUSTOMER IS REQUIRED TO IMMEDIATELY UPDATE EACH USER’S LOCATION WHENEVER THE PHYSICAL LOCATION OF SUCH USER’S EQUIPMENT CHANGES BY EMAIL TO Callifi at firstname.lastname@example.org. Callifi WILL SEND A CONFIRMATION EMAIL CONFIRMING THAT THE COMPANY HAS UPDATED A USER’S PHYSICAL LOCATION INFORMATION PER THE USER’S EMAIL REQUEST. ALL UPDATES WILL BE MADE WITHIN 24 HOURS OF RECEIPT OF ANY REQUEST TO UPDATE A USER’S PHYSICAL LOCATION INFORMATION. IF A USER DOES NOT RECEIVE A CONFIRMATION EMAIL WITHIN 24 HOURS OF MAKING A REQUEST TO UPDATE PHYSICAL LOCATION INFORMATION, THE USER SHOULD CONTACT email@example.com. IF A USER DOES NOT RECEIVE A CONFIRMATION EMAIL, THE USER’S INFORMATION WILL NOT BE UPDATED. CUSTOMER ACKNOWLEDGES THAT THE PHYSICAL LOCATION REGISTERED FOR THE USER’S EQUIPMENT WILL BE THE LOCATION TRANSMITTED TO THE EMERGENCY CALL TAKER, AND THAT Callifi’S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE THEN-CURRENT REGISTERED PHYSICAL LOCATION FOR THE USER’S EQUIPMENT. IF CUSTOMER DOES NOT ACCURATELY IDENTIFY A USER’S LOCATION UPON ORDERING THE Callifi SERVICES AND/OR DOES NOT UPDATE SUCH INFORMATION WHEN THE USER’S LOCATION CHANGES, 911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT EMERGENCY CALL TAKER. WHEN CUSTOMER NOTIFIES Callifi OF A CHANGE IN THE REGISTERED LOCATION OF A USER, THERE MAY BE A DELAY IN MAKING THE NEW REGISTERED LOCATION AVAILABLE TO ROUTE 911 CALLS AND TO ADVISE THE APPROPRIATE EMERGENCY CALL TAKER OF THE NEW REGISTERED LOCATION.
11.3 Warning Labels. Callifi WILL PROVIDE CUSTOMER WITH LABELS WARNING THAT THE 911/ E911 COMPONENT OF THE SERVICE MAY BE LIMITED OR NOT AVAILABLE. CUSTOMER AGREES TO PLACE SUCH LABELS ON OR NEAR THE EQUIPMENT USED IN CONJUNCTION WITH THE SERVICE. IN THE EVENT CUSTOMER DOES NOT RECEIVE LABELS OR REQUIRES ADDITIONAL LABELS, CUSTOMER SHOULD CONTACT Callifi VIA EMAIL AT firstname.lastname@example.org.
11.4 Additional 911/ E911 Limitations. THE LOCAL EMERGENCY CALL TAKER RECEIVING THE 911 CALL MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN NUMBER OR LOCATION INFORMATION. THEREFORE THE EMERGENCY CALL TAKER MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE USER MAKING THE 911 CALL WHICH MAY DELAY OR PREVENT EMERGENCY SERVICES. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN AND IN THE EVENT OF NETWORK CONGESTION THERE IS A POSSIBILITY THAT A 911 CALL WILL PRODUCE A BUSY SIGNAL, WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, WIRELINE 911 SERVICES.
11.5 911/ E911 Limitation of Liability/Indemnity. Callifi AND ITS AFFILIATES, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, LICENSORS, SUPPLIERS AND RESELLERS WILL HAVE NO LIABILITY to CUSTOMER, ITS USERS, OR ANY THIRD PARTY FOR, AND CUSTOMER WAIVES ALL CLAIMS AND CAUSES OF ACTION, ARISING OUT OF OR RELATED TO, CUSTOMER, ITS USERS, OR ANY THIRD PARTY’S INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER OR TO ACCESS AN EMERGENCY SERVICE OPERATOR OR EMERGENCY SERVICES. CUSTOMER HEREBY RELEASES AND AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS Callifi, ITS AFFILIATES, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, LICENSORS, SUPPLIERS, AND RESELLERS FROM ANY AND ALL CLAIMS, LIABILITY, DAMAGES, LOSSES, EXPENSES AND/OR COSTS (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES AND COST OF SUIT), BY OR ON BEHALF OF CUSTOMER OR ANY THIRD PARTY OR USER ARISING FROM OR RELATED TO THE USE OF 911/E911 SERVICES AND/OR THE FAILURE OF 911/E911 TO FUNCTION OR FUNCTION PROPERLY OR Callifi’S PROVISION OF 911/E911 SERVICES OR FAILURE TO PROVIDE ACCESS TO 911/E911 SERVICES.
12. DID NUMBERS
When supply is sufficient, Callifi will make available to Customer a list of DID/ telephone numbers from which Customer may choose DID/ telephone numbers. Customer will not be the owner of any DID/ telephone number (including fax numbers) assigned to Customer by Callifi, and Customer will not transfer or attempt to transfer its number(s) to anyone else (except as provided in Section 13.2 below with respect to Porting Out). Callifi reserves the right to change, cancel, withdraw, or move such numbers at its sole discretion immediately upon notice. Customer will surrender all rights to the DID/ telephone numbers and fax numbers upon termination of Customer’s Services if they have not been ported out in accordance with Section 13.2 below prior to such termination, and the numbers assigned to Customer may be reassigned upon termination of Customer’s Service. Callifi will not be liable for any direct or indirect damages or incidental costs arising out of such reassignment. Customer may not claim ownership of or engage in any advertising of a DID/telephone number until that number has been activated on Customer’s account.
13. LOCAL NUMBER PORTABILITY13.1 Porting In.
Customer may elect to port an existing DID/ telephone number to Callifi (“Port-In”) for use with the Services. In the event Customer elects to Port-In a number, Customer must first select a temporary number from the list of DID/ telephone numbers Callifi presents to Customer at the time Customer orders the Services, which will be used until the Port-In is complete. Callifi will support all valid requests and will cooperate with Customer to perform any Port-In in accordance with Customer’s reasonable directions and Callifi’s operating procedures. Neither Callifi nor its providers are responsible for any delay, rejection, or false processing of Port-In requests to the extent such delay, rejection, or false processing is attributable to Customer, Customer’s prior provider, or any third parties
13.2 Porting Out.
Customer or a third-party provider acting as agent on behalf of Customer (“Requesting Party”) may request that Callifi port a number assigned to Customer by Callifi to a third-party provider (“Port-Out”). Callifi will support all such requests and will promptly cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party’s reasonable directions and Callifi’s standard operating procedures. In the event of any Port-Out, Customer agrees that until such time as the Port-Out is complete and Customer terminates the Service for such DID/ telephone number, Customer shall remain bound by the terms of this Agreement related to that DID/ telephone number. Once the Port-Out is complete, Customer must terminate the Services associated with such ported DID/ telephone number in order to stop incurring charges for such DID/ telephone number. Customer recognizes and agrees that in the event of a Port-Out Customer shall remain responsible for paying the required monthly service fees in accordance with Section 20.1. If this Agreement or Customer’s Service is terminated for any reason, and Customer fails to Port Out any DIDs/numbers associated with Customer’s account within 10 days of the effective date of the termination of the account, Service or Agreement with which such number is associated, the number becomes the sole and exclusive property of Callifi, and Customer shall have no further right or claim thereto.
14. 711 DIALING
The Services allow dialing 711 to reach Telecommunications Relay Services (TRS). In the event the user’s registered location is not the same as the user’s geographic location, 711 calls may not be routed to the correct TRS center for the user’s location.
15. SERVICE EXCLUSIONS
The Services do not include directory listings and operator and directory assistance and do not support 976 or 900 calls. The Services may not support 311, 411, 511, or other X11 calling (other than 911 and 711 as detailed in this Agreement) in all or certain service areas.
16. EXCLUSION AND DISCLAIMER OF WARRANTIES
16.1 Callifi PROVIDES THE SERVICES, INCLUDING, WITHOUT LIMITATION SOFTWARE, WEBSITES, SERVERS, CONTENT, SUBSCRIPTIONS, AND ACCOUNTS ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK. NEITHER Callifi NOR ITS THIRD-PARTY LICENSORS OR SUPPLIERS MAKES ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH REGARD TO THE SERVICES OR OTHERWISE RELATED TO THE AGREEMENT, AND Callifi AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY AND ALL OF SUCH REPRESENTATIONS AND WARRANTIES. Callifi DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF THE SERVICES OR THAT THE SERVICES WILL PREVENT TOLL FRAUD. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Callifi DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
16.2 Without limiting the generality of the foregoing, neither Callifi, its licensors, nor suppliers represent or warrant that (i) the services will meet customer’s requirements or provide any specific results, (II) customer’s use of the services will be uninterrupted, timely, secure, or virus or error free, (iii) information or content provided to customer through the use of the services will be accurate or reliable, (iv) defects in the services will be corrected, or that (iv) the Services will have any particular up-time, quality of service or quality of voice or fax communications, except as otherwise specified herein.
16.3 Without limiting the generality of section 16.1 above, neither Callifi, its licensors, nor suppliers shall have any responsibility to customer for damage resulting from the use of the Services, including but not limited to damage to any device or loss of data resulting from the downloading, otherwise accessing or using any content, material, or data through the Service. downloading, otherwise accessing, and using such content, material, or data is at customer’s own risk.
16.4 Callifi DOES NOT HAVE ANY RESPONSIBILITY FOR RETAINING ANY USER INFORMATION OR CONTENT OR COMMUNICATIONS BETWEEN USERS. Callifi SHALL RETAIN CALL DETAIL RECORDS ONLY AS REQUIRED BY APPLICABLE LAW, AND SHALL NOT OTHERWISE HAVE ANY OBLIGATION TO MAINTAIN OR PROVIDE CUSTOMER WITH SUCH RECORDS.
16.5 Callifi’S WARRANTY FOR ANY EQUIPMENT PROVIDED TO CUSTOMER IS SET FORTH IN ATTACHMENT 1 TO THIS AGREEMENT AND IS LIMITED AS SET FORTH THEREIN.
17. CONFIDENTIAL INFORMATION
Confidential Information shall be interpreted to mean that all Callifi business and/or technical information, pricing, discounts and other information or data, whether in tangible or other form if marked or otherwise expressly identified in writing as confidential shall be considered privileged and not for release to others. Information communicated verbally will qualify as Confidential Information if designated as confidential or proprietary at the time of disclosure and summarized in writing within thirty (30) days after disclosure. Confidential Information excludes information that: (i) is publicly available other than by an act or omission of Customer; (ii) subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information without restriction on its dissemination or disclosure; (iii) was known by Customer prior to its receipt as “Confidential Information” and was not received from a third party in breach of that third party’s confidentiality obligations; (iv) was independently developed by Customer without use of Callifi’s Confidential Information; or (v) is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, provided Customer makes prompt written notification to Callifi of the pending disclosure so that Callifi may attempt to obtain a protective order. In the event of a potential disclosure in the case of subsection (v) above, Customer will provide reasonable assistance to Callifi should Callifi attempt to obtain a protective order. Customer will protect such Confidential Information received from Callifi with no less care than the care it uses to protect its own Confidential Information, but in no event, with no less than a reasonable degree of care. Customer will not use or disclose Callifi’s Confidential Information except as permitted in this Section or for the express purpose of performing obligations under the Agreement. Customer’s confidentiality obligations will survive the termination of the Agreement. Upon termination of the Agreement, Customer will cease all use of Callifi’s Confidential Information and will promptly and in a manner of transmittal reasonably expected to protect the confidentiality of such information, return or, at Callifi’s request, and in a manner of destruction reasonably expected to protect the confidentiality of such information, destroy all Confidential Information, including all copies, in whatever form in Customer’s possession or under its control, including such Confidential Information stored on any electronic medium or device of any sort. Upon request, Customer will certify in writing its compliance with this Section.
18. LIMITATION OF LIABILITY
IN NO EVENT WILL Callifi OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, TOLL FRAUD, COST OF COVER, OR SUBSTITUTE GOODS OR PERFORMANCE. IN NO EVENT SHALL Callifi’s LIABILITY (IF ANY) UNDER THIS AGREEMENT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER FOR THE USE OF THE SERVICES DURING THE TWO (2)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR INCIDENT THAT IS THE SOURCE OF SUCH LIABILITY. THE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES PROVISIONS IN THIS SECTION WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE TO THE PARTIES FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATIONS OF LIABILITY IN THIS SECTION ALSO WILL APPLY TO ANY LIABILITY OF Callifi’S DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS, CONSULTANTS AND SUPPLIERS.
19.1 Customer agrees to indemnify, defend, and hold harmless Callifi, its affiliates, officers, directors, employees, consultants, agents, licensors, suppliers, and resellers from any and all third-party claims, liability, damages, losses, expenses, and/ or costs (including but not limited to attorney’s fees and cost of suit) arising from or related to (i) Customer’s use of the Service, (ii) violation of this Agreement or any applicable law, rule, or regulation (including but not limited to fraudulent or illegal use of the Service), (iii) any negligent acts or omissions or willful misconduct of Customer, or (iv) infringement or violation of any intellectual property or other right of any person or entity in connection with this Agreement.
20.1 Termination for Cause. Callifi may immediately suspend or terminate any Services, at its sole option, without notice to Customer if (i) any payment is delinquent by more than ten (10) days, or (ii) Customer breaches this Agreement, including, without any of its representations or warranties set forth herein. Upon such termination and without limiting any of Callifi’s other remedies under this Agreement, applicable law, and/or at equity, Customer will remain responsible for payment of percent ( %) of the remaining monthly service fees for all months remaining in the Agreement’s then current Term.
20.2. Effect of Termination/Expiration of Subscription. Callifi shall not be liable to Customer or any third party for suspension or termination of Services in accordance with the Agreement unless such suspension or termination is the result of a breach by Callifi. If Customer or Callifi terminates the Agreement, Customer will be obligated to pay the balance due on Customer’s account computed in accordance with the Agreement and its Exhibits.In the event of termination of this Agreement for cause, for any reason, or upon Customer providing the required notice of termination of Customer’s Callifi subscription, Customer shall immediately cease use of the Services and permanently destroy all copies of the software portion thereof within Customer’s possession or control. Such software must be end-user accessible and suited for such destruction without damaging any hardware associated therewith. All software licenses granted in conjunction with, and all subscriptions to the Services shall terminate immediately upon the termination of this Agreement or the Services. Upon termination, Callifi may deactivate or delete Customer’s account and all related information and files therein and/or bar any further access thereto, and Customer shall have no further access to any Customer-assigned DID/ telephone number (unless Port-Out of such phone number was completed prior to termination of this Agreement).
20.3. Survival. All provisions concerning confidentiality, license grant and restrictions, IP ownership, warranty disclaimers, limitation of liability, and indemnity (as well as any other terms which, by their nature, are intended to survive termination) of this Agreement will survive the expiration of Customer’s Callifi subscription and any termination of this Agreement. Any other provision of the Agreement which may reasonably be interpreted or construed as surviving the termination, shall survive such termination for any reason.
21. GOVERNING LAW AND DISPUTE RESOLUTION
21.1 Governing Law; Venue. This Agreement and any claims, disputes, or controversies arising out of or relating to the Agreement (Disputes) will be governed by the laws of the State of New York applicable to contracts entered into and performed in New York without regard to its choice of law principles, and excluding any applicability of the United Nations Convention on Contracts for the International Sale of Goods. Any and all legal disputes under this Agreement shall be heard in the state and/or Federal courts for [Insert name of county], New York, and the parties hereby waive any and all objections to such venue and jurisdiction, including, without limitation, forum non-conveniens.
21.2 Injunctive Relief. In the event of a breach or threatened breach by Customer of this Agreement, Callifi shall have the right to obtain injunctive relief (without the requirement of posting a bond) from any court of competent jurisdiction, in addition to any and all other remedies available at law or in equity.
21.3 Time Limit. Actions on Disputes between the parties must be brought in accordance with this Section within the latter of one (1) year after the cause of action arises or one (1) year after the party bringing the suit actually became aware of the claim, notwithstanding any contrary statute of limitations under applicable law.
22.1 Compliance. The parties will observe all applicable laws and regulations, including export and re-export laws and regulations, when using the Services and performing their obligations under this Agreement.
22.2 Assignment & Subcontractors. Callifi may assign the Agreement to any of its affiliated entities or to any entity to which Callifi may sell, transfer, convey, assign or lease all or substantially all of the assets or properties used in connection with its performance under the Agreement. Any other assignment of the Agreement or any rights or obligations under the Agreement without the express written consent of the other party will be invalid. Callifi may partner with others or subcontract any or all of its obligations under the Agreement, but will retain its responsibility to Customer for the timely performance of the work necessary to the provision of Service properly paid for by Customer.
22.3 Force Majeure. Callifi will not be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond its control, including without limitation, fire, flood, Act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, and inability to secure materials, systems, subsystems, components, underlying services or transportation facilities (“Force Majeure”).
22.4 Notices. Any notice required or permitted under this Agreement shall be deemed properly made when delivered by email, facsimile, messenger, overnight courier, or mailed via Certified or Registered Mail (Return Receipt Requested) if to Customer: to the information Callifi has on file; and if to Callifi: to P.O. Box 342H Scarsdale, NY 10583. Notices will be considered effective when sent or posted.
22.5 Entire Agreement. The Agreement, including any Attachments, constitute the entire understanding of the parties with respect to the subject matter of the Agreement and will supersede all previous and contemporaneous communications, representations or understandings, oral and/or written, between the parties relating to that subject matter and will not be contradicted or supplemented by any prior course of dealing between the parties. No modification, waiver, amendment, discharge or change of this Agreement shall be valid unless done so in writing and signed by Callifi.
22.6 Severability. If any provision of the Agreement is determined to be unenforceable or invalid by court decision, the Agreement will not be rendered unenforceable or invalid as a whole, and the original unenforceable provision will be changed only minimally as required for it to be enforceable and interpreted so as to best accomplish the objectives of the original provision within the limits of applicable law.
22.7. No Waiver. The failure of either party to assert any of its rights under the Agreement, including, but not limited to, the right to terminate the Agreement in the event of breach or default by the other party, will not be deemed to constitute a continuing or permanent waiver by that party of its right to enforce each and every provision of the Agreement in accordance with their terms.
22.8. No Third-Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any person other than the parties hereto.
22.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same document. A fax signature or signature delivered as an imaged attachment to an email message is deemed equivalent to an original ink signature.
22.10. Headings. The headings and captions of the articles and sections in this Agreement are employed, and are for, the convenience of reference only and do not form a part hereof and in no way modify, interpret or construe the meanings of the parties.
ATTACHMENT 1 – ADDITIONAL TERMS APPLICABLE TO THE PURCHASE OF Callifi COMPATIBLE EQUIPMENT
1. ORDERS. As part of the Service terms, Customer may order Callifi VoIP equipment from Callifi phone or email or web portal or from a third party. Callifi may make changes to equipment or modify the drawings and specifications relating to equipment, or substitute equipment of later design, provided that the changes do not adversely and materially impact equipment form, fit or function. If Customer orders equipment from a third party for use with Callifi Services, Customer shall be responsible for ensuring that such equipment is compatible with Callifi Services. Customer shall be liable for any damage to the Services or to Callifi’s equipment and network, and shall indemnify, defend and hold Callifi harmless pursuant to Section 19.1 of the Agreement, from any third-party claims arising from Customer’s use of third-party equipment in conjunction with Callifi Services.
2. DELIVERY AND INSTALLATION. Delivery and installation services may be provided by Callifi as specified in a Service Order. Alternatively, Customer may install equipment or rely upon a third party to install equipment for use with Callifi’s Services. Callifi is not responsible and specifically disclaims all responsibility and liability for any damage caused by Customer or third-party installation of equipment for use with the Services. Customer shall indemnify, defend and hold Callifi harmless in accordance with Section 19.1 for any damage caused by a Customer or third-party installation of Equipment for use in connection with the Callifi Services. For any delivery and/or installation completed by Callifi, Customer must allow free access to premises for the installation of the equipment, and for service of the equipment as provided for herein and/or in any applicable Service Order. Customer shall also be solely responsible for securing any and all permits, authorizations or third-party consents, and any associated costs or obligations (e.g., insurance), for access to premises for the installation or servicing of equipment as provided for herein and/or in any applicable Service Order.
3. RISK OF LOSS/TITLE. Risk of loss to the equipment purchased by Customer from Callifi will pass to Customer when Callifi delivers the equipment to the carrier for shipment. Or delivered by us Title to the equipment shall not pass to Customer until Customer has fully paid Callifi for the equipment. Title to software provided under the Agreement will remain solely with Callifi and its licensors.
4. CHARGES. The total cost for the equipment and payment terms are identified in the Customer’s Service Order form completed over the phone, or through a Callifi representative in person, or online at [www.callifi.com], hereby incorporated by reference into the Agreement.
5. EQUIPMENT WARRANTY AND LIMITATIONS
5.1 Callifi Equipment Warranty/Exclusions and Disclaimers. Callifi warrants that from the date of installation equipment provided and installed by Callifi will be free from defects in material and workmanship. If any defects appear, Callifi shall, at its own expense repair such defects or, at its own option, replace the defective equipment. This warranty does not cover damage or destruction resulting from causes such as but not limited to the following: fire, water damage, lightning or other casualty, faulty or negligent operation or handling of the equipment by Customer or any third party, or operation, maintenance, installation, or repair of the equipment by any third party. Customer will pay for maintenance and repairs not resulting from the normal and usual operation of the equipment at Callifi’s then current service rates. This warranty shall be in lieu of, and excludes, all other expressed or implied warranties of merchantability, fitness or otherwise. The foregoing will constitute the exclusive remedies of the Customer and the exclusive liability of Callifi with respect to the sale, installation, maintenance and repair of Callifi equipment.With respect equipment and other Third-Party products purchased from a third party, such Third Party Products may carry their own warranties. Exercise of any such warranty shall be directly between Customer and the third-party provider. “Third Party Products” means any products made by a party other than Callifi, and may include, without limitation, products ordered by Customer from third parties. EXCEPT AS REFERENCED AND LIMITED IN THIS SECTION, NEITHER Callifi NOR ITS LICENSORS OR SUPPLIERS MAKES ANY EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO EQUIPMENT PURCHASED FROM Callifi. Callifi DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF Callifi EQUIPMENT OR THAT THE Callifi EQUIPMENT WILL PREVENT TOLL FRAUD. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Callifi DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES RELATED TO Callifi EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE WARRANTY REMEDIES EXPRESSLY REFERENCED HEREIN WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES RELATED TO THE Callifi EQUIPMENT.
6. Security Interest. Title and right to any Callifi equipment delivered to and/or installed at Customer’s premises shall remain with Callifi, its assigns and/or successors until all payments required under the Agreement/applicable Service Order have been received. Callifi reserves the right to take such actions as are necessary to perfect and maintain title in Callifi. It is the attention of the parties that any Callifi equipment delivered to and/or installed at Customer’s premises shall remain Callifi’s personal property until all payments have been made in full. Upon any default in payments, Callifi shall have the right to enter the premises where the equipment is located and retake possession without notice, free of any claims of Customer. If any Service Order provides for a deferred payment plan for any Callifi equipment, Customer expressly grants Callifi, its successors and/or assigns, the right to file one or more financing statements without the signature of Customer under the Uniform Commercial Code naming Customer as debtor and Callifi as the Secured Party indicating the items of security in which Callifi has or will have a security interest, and Customer will execute any documents that Callifi deems necessary to protect its security interest. Customer will not file or authorize the filing of any financial statement in which Callifi is not named the sole secured party in respect to the equipment sold by Callifi to Customer.