Legal
Terms & Conditions, Privacy Policy
Rally Networks Feature Rich Hosted Service Privacy Policy
For each visitor to our website, our web server automatically recognizes only the consumer’s
domain name and email address. We collect the domain name and email address of visitors to
our Web page, the e-mail addresses of those who communicate with us via email, information
volunteered by the consumer, such as survey information and/or site registrations, name and
address, telephone number, fax number.
The information we collect is used by us to contact consumers for marketing purposes, not
shared with other organizations for commercial purposes, disclosed when legally required to do
so, at the request of governmental authorities conducting an investigation, to verify or enforce
compliance with the policies governing our Website and applicable laws, or to protect against
misuse or unauthorized use of our Web site and to a successor entity in connection with a
corporate merger, consolidation, sale of assets, or other corporate change respecting the Web
site. If you do not want to receive communications from us in the future, please let us know by
sending us an email at centralcsr@rallynet.us and we will be sure to note your information
accordingly.
From time to time, we may use customer information for new, unanticipated uses not previously
disclosed in our privacy notice. If our information practices change at some time in the future we
will post the policy changes to our Web site to notify you of these changes and provide you with
the ability to opt out of these new uses. If you are concerned about how your information is
used, you should check back at our Web site periodically.
With respect to security, when we transfer and receive certain types of sensitive information
such as financial information, we redirect visitors to a secure server and notify visitors of the
same on our site. We have appropriate security measures in place in our physical facilities to
protect against the loss, misuse or alteration of information that we have collected from you at
our site. If you feel that this site is not following its stated information policy, you may contact us
at the below address or email.
Rally Networks
PO Box 175
New Florence, MO 63363-0175
Rally Networks Feature Rich Hosted Service Terms and Conditions
Rally Networks HOSTED UNIFIED COMMUNICATIONS TERMS AND CONDITIONS
BY ACCEPTING THESE HOSTED COMMUNICATIONS SOLUTIONS TERMS AND
CONDITIONS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE
TO THE TERMS AND CONDITIONS BELOW. ALL SERVICE ORDERS AND SERVICES ARE
SUBJECT TO THESE TERMS AND CONDITIONS.
These Hosted Communications Solutions Terms and Conditions (the “Agreement”) are entered
into by and between Rally Networks (hereafter “RALLY” and “Provider”), a Missouri corporation, and
the customer purchasing products or services from Provider (“Customer”).
1. DEFINITIONS
1.1. “Customer Data” means any data, information or other materials of any nature
whatsoever provided to Provider by Customer or a User in the course of
implementing or using the Services.
1.2. “Service Descriptions” means user manuals and other documentation relating to
the Services that are made available to Customer by Provider in digital or
hardcopy form, as updated from time to time.
1.3. “Service Fee” or “Service Fees” means the monthly or annual fees set forth in
the Service Order to be paid by Customer to Provider as consideration for
Provider’s provision to Customer of the Services, but does not include usage
fees, taxes or regulatory fees or surcharges, which Customer must pay in
addition to the Service Fees.
1.4. “Service Order” means an order for Services or products.
1.5. “Service Plan” means the monthly or annual subscription plan a Customer
agrees to in the Service Order.
1.6. “Service Order Addendum” means a Service Order agreed to by Customer
subsequent to the initial Service Order.
1.7. “Services” means the products or services that are being provided to Customer
as described in the Service Order, including any Additional Services set forth in a
Service Order Addendum accepted by Provider.
1.8. “Software” means any proprietary software owned by, licensed by or which
Provider has a right to sublicense that is used in or used to provide the Services.
“Software” includes, without limitation, any application that Provider makes
available to the Customer for use on a mobile device.
1.9. “User” means a user of the software, client, mobile application or other
web-based application, equipment, feature or functionality provided by Provider
in conjunction with the Services.
2. SERVICES
2.1. Generally, Provider will provide the Services set forth in an accepted Service
Order subject to the terms and conditions of this Agreement. Provider hereby
grants Customer limited, revocable, non-exclusive, non-transferable access to
the Services for use by the number of Users set forth in the Service Order, for
Customer’s own internal business purposes. Provider grants Customer a limited,
revocable, non-exclusive, non-transferable right to use the Services Descriptions
in connection with its use of the Services. Each Service Order will be subject to
Provider’s acceptance, which will be deemed given if Provider thereafter provides
the Services to Customer.
2.2. Conditions. Customer agrees that Provider’s obligations to provide the Services
are expressly conditioned upon (a) Customer’s payment of the fees as and when
due, and (b) Customer’s satisfaction of the technical requirements set forth in the
Services Descriptions for the Services made available to Customer by Provider,
as the same may be updated by Provider from time to time.
2.3. Additional Services. Customers may request an increase in Users or additional
Services at any time during the Term (any such increase, “Additional Services”)
by submitting a Service Order Addendum setting forth the specific Additional
Services desired. Each Service Order Addendum will be subject to Provider’s
acceptance, which will be deemed given if Provider thereafter provides the
Additional Services to Customer. Upon acceptance by Provider, such Service
Order Addendum will be deemed an amendment to the Agreement, subject to all
of the terms and conditions herein, and the Service Fees will be increased to
reflect the Additional Services, subject to the same pricing and payment terms as
are set forth in the Service Order or the Service Order Addendum as applicable.
3. TERM
This Agreement will commence on the date Provider accepts the Service Order
and will continue for the period of time specified in the Service Order (the “Initial
Term”). At the end of the Initial Term, the Agreement will automatically renew for
an additional one-year period (a “Renewal Term”), and will renew at the end of
each Renewal Term for an additional one-year Renewal Term, unless either
party provides the other party, at least thirty (30) days prior to the end of the
Initial Term or applicable Renewal Term, written notification in accordance with
Section 20.1 of its desire to cancel the Services. The Initial Term and any
Renewal Terms are collectively the “Term”.
4. TERMINATION
4.1. Early Termination by Customer. If Customer terminates the Agreement, or some
of the Services provided under the Agreement, before the end of the Initial Term
or any Renewal Term (the “Terminated Term”), Provider will charge Customer,
and Customer will pay, an early termination charge equal to 100% of the monthly
Service Fee for the terminated Services, multiplied by the number of months
remaining in the Terminated Term on the date of termination. The early
termination charge is in addition to the full monthly Service Fee payable for the
month of, and months prior to, termination. Provider will also charge Customer,
and Customer will pay, (a) any unpaid recurring or non-recurring charges waived
by Provider at the beginning of or during the Terminated Term, and (b) the
difference between the MSRP and the price paid by Customer for any equipment
purchased at the beginning of or during the Terminated Term. If Customer or its
User transfers or ports its phone number to a service provider other than
Provider, Customer must also contact Provider to terminate the Services
provided to Customer by Provider.
4.2. Termination by Provider.
4.2.1. Provider is entitled, at its sole discretion, to suspend, terminate or change
the Services without advance notice upon any misuse of the Services in
any way, Customer’s breach of the Agreement, Customer’s failure to pay
any sum due hereunder, suspected fraud or other activity by Customer or
a User that adversely affects the Services, Provider, Provider’s network or
another customer’s use of the Services. Provider will be entitled to
determine, at its sole discretion, what constitutes misuse of the Services,
and Customer agrees that Provider’s determination is final and binding on
Customer. Provider may require, and if required, Customer will pay, an
activation fee as a condition to changing or resuming a terminated or
suspended account.
4.2.2. Provider is entitled to terminate any affected portion of the Services if: (i)
Provider is prohibited by law from providing such portion of the Services;
or (ii) any material rate or term contained herein and relevant to the
affected Services is substantially changed by or as a result of any
regulation or order issued by any court of competent jurisdiction, the
Federal Communications Commission (FCC), any other local, state or
federal government authority, or any carrier or Internet service provider.
4.2.3. Upon termination of this Agreement under this Section 4.2, Customer will
be responsible for the full monthly Service Fee for the month in which
termination occurs, in addition to any accrued but unpaid usage and other
charges.
5. FEES, BILLING AND TAXES
5.1. Payment of Service Fees. Customer will pay the Service Fees for Services
ordered by Customer, and all other amounts due under the Agreement, pursuant
to the terms of this Section 5.
5.2. Credit. The provision of Services is contingent upon establishment of and
continuing credit approval by Provider. Customer hereby consents to Provider’s
procurement of a credit score or report regarding Customer. At any time during
the Term, Provider is entitled to require a deposit or other acceptable form of
security from Customer, as it deems appropriate. In addition, if requested by
Provider, Customer agrees to provide, within two (2) business days of request,
appropriate financial records to evaluate Customer’s continuing ability to pay.
Provider may, immediately and without notice, suspend or terminate the Services
if Customer fails to comply with these security obligations. Upon a payment
default by Customer not cured in a timely manner, Provider will have the right to
offset against any security or deposit held any amounts owed to Provider by
Customer, and to invoice and collect all other amounts owed.
5.3. Billing. Provider will provide Customer with a monthly online billing statement for
the Services provided each calendar month and bill all charges invoiced to
Customer’s account. Such charges will include monthly service fees, storage
charges, activation charges, equipment charges, toll charges, shipping charges,
taxes, regulatory recovery fees and any other applicable charges. Monthly
Service Fees will be paid in advance of each month’s service; any variable
charges associated with usage and any other applicable charges associated with
such usage shall be billed in arrears. Billing for monthly Service Fees
commences upon ordering of the Services, and monthly Services Fees will be
billed pro rata in the months in which such Services commence. Customer
agrees to provide Provider with complete and accurate contact and payment
information, which may include Customer’s credit card information, and Customer
agrees to advise Provider of any changes thereto. To the extent Customer’s
payment method is by credit card, Customer authorizes Provider to charge
Customer’s credit card automatically to pay for Customer’s charges. If a charge
to Customer’s credit card is declined or reversed, or if the account or credit card
has expired or been suspended or closed, or if Customer fails to provide the
Provider with accurate or complete credit card information, the Provider may
suspend or terminate the Services.
5.4. Late/Non-payment. If any charges for the Services are due but unpaid for any
reason, Provider may suspend or terminate the Services and all accrued charges
will be immediately due, plus a late fee of 1.5% per month. A fee may also be
charged to activate a suspended or terminated account. No suspension or
termination of the Services or of this Agreement will relieve Customer from
paying any amounts due hereunder.
5.5. Taxes. All Service Fees and other charges are exclusive of any taxes,
surcharges, public utility fees and regulatory fees (including, without limitation,
Universal Service Fees and E911 taxes). Such taxes and fees will be billed by
Provider and paid by Customer. Taxes and regulatory fees may increase during
the Term, and Customer will pay such increased fees commencing with the next
monthly bill. Should Customer claim an exemption of any taxes or regulatory
fees, Customer must provide official documented and certified proof of such
exemption. In no event will Provider be liable for any taxes due by Customer or
its User, and Customer will defend, indemnify and hold harmless Provider if any
claim for taxes or fees is made. If any amounts paid for the Services are refunded
by Provider, applicable taxes and regulatory fees may not be refundable.
5.6. Regulatory Recovery Fee. A regulatory recovery fee may be charged monthly to
offset costs incurred by Provider in complying with inquiries and obligations
imposed by federal, state and municipal regulatory authorities and the related
legal and billing expenses. This fee is not a tax or charge required or assessed
by any government. The regulatory recovery fee will apply to every phone
number assigned, including toll free and virtual numbers. The regulatory recovery
fee may increase during the Term, and Customer will pay such increased fee
commencing with the next monthly bill.
5.7. Service Fee Changes. Provider may change the Service Fees, the types of
Service Plans and any additional usage charges without advance notice.
Provider will post such changes to its website (rallynet.us).
Notwithstanding the foregoing, the Service Fees agreed upon in Customer’s
Service Order will not be increased during the Initial Term. With respect to any
Renewal Term, the Customer will be charged Provider’s then-current Service
Fees in effect at the commencement of the Renewal Term.
5.8. Availability. Customer acknowledges and agrees that the Services may not be
available 100% of the time. Additionally, Services will not be available in the
event of interruption in Customer’s or its User’s internet or broadband service.
Provider will not credit customers for any interruptions in Service.
5.9. Discounts. From time to time in its sole discretion, Provider may offer promotions
or discounts. Any promotion or discount codes must be provided to Provider
upon purchase of the Services. Customers will not be entitled to a subsequent
credit for such promotions or discounts if not requested at the time of account
creation or change of Service. Promotions and/or discounts may not be used
cumulatively or be used for Services retroactively.
5.10. Billing Disputes. Customers must dispute any charges for the Services in writing
to centralcsr@rallynet.us within thirty (30) days of the date of the charge by
Provider, or Customer waives any objection and further recourse with regard to
such charges. Notwithstanding the foregoing, Customer shall pay all undisputed
charges in accordance with this Agreement.
5.11. Usage Charges. Every call using the Services that originates or terminates in the
Public Switched Telephone Network (“PSTN”), including without limitation other
VoIP networks, accrues applicable toll charges. Customers will not be charged
for monthly usage within the limits of its then-current Service Plan. Usage which
exceeds the limits, if any, of Customer’s then-current Service Plan will be
charged to Customer in accordance with the Service Descriptions at the rates
published at rallynet.us. Calls to phone numbers outside the United
States and Canada will also be charged to the Customer in accordance with the
Service Descriptions at the rates published at rallynet.us.
6. TELEPHONE NUMBER
Any telephone number provided by Provider (“Number”) to the Customer will be
leased and not sold. Provider reserves the right to change, cancel or move the
Number should Provider reasonably determine, its sole discretion, that it is
required to do so as a result of its agreements with its underlying services
providers or for other business purposes related to the provision of the Services.
7. PRIVACY
The Services use the public Internet and third-party networks to transmit voice
communications and data. Provider is not liable for the interception, use or
disclosure of Customer’s or its User’s voice communications or data. Provider
does not represent, warrant or covenant that the Services will maintain the
privacy or security of Customer’s or its Users’ voice communications or data.
Customer acknowledges and agrees that none of its Customer Data is
considered “Customer Proprietary Network Information” under the rules of the
Federal Communications Commission. Customer agrees that Provider is entitled
to monitor Customer’s and Users’ use of the Services to protect, maintain, or
improve the Services; to prevent fraud or misrepresentation by affirmative acts
and/or omissions; to protect Provider, its customers or other third parties affiliated
with Provider; or for any other good cause. If required by law, Customer will
inform its Users that Provider may monitor the Users’ communications and store
and use the Users’ personally identifiable information as necessary to provide the
Services. For Provider’s Privacy Policy, please visit https://rallynet.us.
8. LICENSE; PROHIBITED USES; CUSTOMER RESPONSIBILITIES; LIMITATIONS.
8.1. Customer hereby grants to Provider a license to copy, store, record, transmit,
display, view, print and use Customer Data, solely to the extent necessary to
provide the Services to Customer. Except as expressly provided in this Section 8,
Customer grants to Provider no right, title, interest, or license in the Customer
Data. Customer represents and warrants that it has all necessary consents and
rights to provide personally identifiable information about its Users to Provider,
and Customer will provide such information upon reasonable request by
Provider.
8.2. Customer represents and warrants that it will not use the Services for any illegal,
fraudulent, improper, or abusive purpose or in any way that interferes with
Provider’s ability to provide high-quality Services to other customers, prevents or
restricts other customers from using the Services, or damages any of Provider’s
or other customers’ property. If Provider discovers use of the Services for
anything other than the permitted uses in this Agreement or for any of the
prohibited uses in this Agreement, Provider may at its sole discretion terminate or
suspend all or part of Customer’s Services and charge any applicable fees for the
Services used plus damages caused by such improper use. Prohibited uses
include, but are not limited to: (a) behavior that is illegal, obscene, threatening,
harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing,
tortious or invasive of another’s privacy; (b) sending unsolicited messages or
advertisements, including e-mail, voice-mail, text messages or faxes (commercial
or otherwise) (“spamming”), or otherwise sending bulk or junk e-mail, voice-mail,
text messages or faxes; (c) harvesting or otherwise collecting information about
others, including e-mail addresses, without their consent; (d) negligently,
recklessly, knowingly or intentionally transmitting any material that contains
viruses, time bombs, Trojan horses, worms, malware, spyware or any other
programs that may be harmful or dangerous; (e) creating a false caller identity
(“ID spoofing”) or forged e-mail/text message address or header, or otherwise
attempting to mislead others as to the identity of the sender or the origin of any
communication made using the Services; (f) transmitting any material that may
infringe, misappropriate, or otherwise violate the foreign or domestic intellectual
property rights or other rights of third parties; (g) violating any U.S. or foreign law
regarding the transmission of technical data or software exported through the
Services; (h) using the Services in excess of what, in Provider’s sole discretion,
would be expected of normal business use, including without limitation allowing
more than one user to use a single VoIP line or using a single VoIP line in excess
of what would be expected of a single user; (i) using the Services in any way that
interferes with other customers’ and third parties’ use and enjoyment of the
Services; (j) using or employing methods and/or devices that are designed or
likely to take advantage of, bypass, exploit or otherwise avoid this use policy.
8.3. Customer understands and agrees that: (a) it will be solely liable for any
transmissions sent through the Services under its account or its User’s account,
including the content of any transmission sent through the Services under its
account or its User’s account; (b) it will abide by all applicable Provider policies,
procedures and agreements related to the Services; and (c) it will not attempt to
gain unauthorized access to the Services, other accounts, computer systems or
networks connected to the Services through password mining or any other
means.
8.4. Some of Provider’s plans and other Services are offered on an “unlimited” basis.
All unlimited plans: (a) may only be used for normal commercially reasonable
business use; (b) are provided only for dialog between two individuals at one time
per line; (c) are issued on a “one (1) user per line basis”, meaning that only one
registered User may be assigned to use the Services for any one line; and (d) are
subject to additional usage charges, including but not limited to such charges
associated with international calling, in accordance with the then-current rates
posted to Provider’s website (rallynet.us). Unlimited plans may
not be used for any of the following prohibited uses (which are in addition to the
other prohibited uses applicable to all Services): (i) trunking or forwarding a
Provider Number to another phone number capable of handling multiple
simultaneous calls, or to a private branch exchange (PBX) or a key system; (ii)
spamming or blasting (e.g., sending bulk or junk voice-mails, e-mails, text
messages or faxes simultaneously); (iii) bulk call-in lines (e.g., customer support
or sales call centers, “hotlines”, 900 numbers, sports-line numbers, etc.); or (iv)
auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software
program or other means to continuously dial or place out-bound calls). In
addition, unusually high usage of the Services may impair Provider’s ability to
provide high-quality Services to others and/or indicate unauthorized use of the
Services, in which case Provider may suspend or terminate Customer’s account
or, upon prior notice, convert Customer’s account to a metered calling plan that
charges significantly higher usage rates.
8.5. Customers must report any unauthorized use of the Services to Provider
immediately after Customer discovers such use. Customers are responsible for
all use of the Services, whether authorized or unauthorized. Customers will be
responsible if any of its Users use the Services in a manner prohibited by this
Agreement. Customers will be responsible for any act or omission of a User that
would be a breach of this Agreement if done by Customer.
8.6. Customer acknowledges and agrees that the right to use any Services is
nonexclusive and nontransferable, and Customer will not permit use of the
Services other than for its internal business purposes. Nothing in this Agreement
will pass to Customer or any User title to any of the Services, any trade names,
trade dress, trademarks, service marks, commercial symbols, copyrightable
material, designs, logos and/or any other intellectual property of Provider or its
vendors. Customers will not challenge or attempt to register or otherwise protect
any of Provider’s intellectual property or other rights in the Services.
8.7. Customer will not: (a) copy or adapt the Services for any purpose, except as
specifically permitted under this Agreement; (b) use the Services except in
accordance with all applicable laws and regulations, and except as set forth in
this Agreement; (c) reverse engineer, translate, decompile, or disassemble the
Services; (d) use the Services in any outsourcing, application service provider,
time-sharing or service bureau arrangement, including, without limitation, any use
to provide services or process data for the benefit of, or on behalf of, any third
party other than a User; (e) cause or permit the disabling or circumvention of any
security mechanism contained in or associated with the Services; or (f) delete,
alter, cover, or distort any copyright or other proprietary notices or trademarks
with respect to the Services.
8.8. Customer understands and accepts that, in order to protect Customer against
fraudulent use of the Services, Provider may require Customer to contact
Provider in order to enable calling to certain calling destinations.
8.9. Customer will execute such other documents, provide such other information,
and affirmatively cooperate with Provider, all as may be reasonably required by
Provider relevant to providing the Services.
9. USE AND STORAGE
Provider reserves the right to establish or modify general practices and limits
concerning use of the Services and Software, including, without limitation, the
maximum number of days that content will be retained by the Service and the
maximum disk space or bandwidth capacity that will be allotted on servers owned
or operated by Provider on Customer’s behalf. Where practical, Provider will
provide Customer with prior notice of such new or modified practices; provided,
however, that Provider will have the absolute right to implement such new or
modified practices without prior notice in its sole discretion and without liability of
any kind.
10. ELECTRONIC RECORDING
Customer agrees that there are federal and state statutes governing the
electronic recording of telephone conversations and that Provider will not be
liable for any illegal use of any recording services provided to Customer or its
Users. It is Customer’s responsibility to determine if the electronic recordings are
legal under applicable federal and state laws and to comply with those laws.
Customer will defend, indemnify and hold harmless Provider for any claims,
damages, fines, penalties or costs (including, without limitation, attorneys’ fees)
arising out of Customer’s or its User’s failure to adhere to applicable electronic
recording laws.
11. RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF
CUSTOMER COMMUNICATIONS
Customer is solely responsible for maintaining the confidentiality of Customer’s
account login information (including, without limitation, its Users’ account login
information), and will not allow a third party to use the Services. Customer is
solely responsible for any and all activities that occur under Customer’s account
or its User’s account, including, without limitation, fraudulent use of the account.
Customer and its Users must comply with laws regarding online behavior,
acceptable content and the transmission of equipment and information under
applicable export laws. Customer also agrees to comply with applicable local
rules or codes of conduct (including, if applicable, codes of conduct or policies
imposed by employers) regarding online behavior and acceptable content. Use of
the Services is void where prohibited. Customer will immediately notify Provider
of any unauthorized use of Customer’s account or its User’s account or any other
breach of security related to Customer’s account, its User’s account or the
Provider Services. Customer and each User must “log off” at the end of each
session. Provider is not liable for any loss or damage arising from Customer’s or
its User’s failure to comply with any of the foregoing obligations. In consideration
for using the Provider Services, Customer will: (a) provide certain current,
complete and accurate information about Customer and Users when prompted to
do so by the Provider Services, and (b) maintain and update this information as
required to keep it current, complete and accurate. Customer agrees that
Customer is solely responsible for the content of all visual, written or audible
communications (“Content”) sent, displayed or uploaded by Customer or a User
in using the Services. Although Provider is not responsible for any such
communications, Provider may reject or remove any Content that violates a law
or this Agreement. Customer or the User retains copyright and any other rights
already held in Content that Customer or the User submits, posts or displays on
or through, the Services, or any music or ring-tones Customer or a User uses in
connection with the Service. Customer understands and agrees that by
displaying, exchanging or uploading Content to a Provider website, transmitting
Content using the Services or otherwise providing Content to Provider, Customer
automatically grants (and warrants and represents that it has a right to grant) to
Provider a world-wide, royalty-free, sub-licensable (so Provider affiliates,
contractors, resellers and partners can deliver the Services) perpetual,
irrevocable license to use, modify, publicly perform, publicly display, reproduce
and distribute the Content in the course of offering the Services, including,
without limitation, on associated websites (“Sites”). Furthermore, Customer
represents and warrants that it has all necessary consents and rights to transmit
Content and other communications from its users to Provider.
12. RESPONSIBILITY FOR CONTENT OF OTHERS
Customer acknowledges that Users may violate one or more of the above
prohibitions, but Provider assumes no responsibility or liability for such violation.
If Customer becomes aware of misuse of the Services by any person, entity or
organization, Customer agrees to contact Provider Customer Support at
573-835-2500 or centralcsr@rallynet.us. Provider may investigate any
complaints and violations that come to its attention and may take any action that
it believes is appropriate, including, but not limited to, issuing warnings, removing
the content or terminating accounts and/or User profiles. Under no circumstances
will Provider be liable in any way for any data or other content available on a Site
or actions taken while using the Services, including, but not limited to, any errors
or omissions in any such data, content or activity or any loss or damage of any
kind incurred as a result of the use of, access to or denial of access to any data,
content or activities on a Site. Provider does not endorse and has no control over
what Users post, submit to or do on a Site. Customer acknowledges that Provider
cannot guarantee the accuracy of any information submitted by any User of a
Site, nor any personally identifiable information about any User. Provider
reserves the right, in its sole discretion, to reject or remove content.
13. EMERGENCY 911 SERVICES
13.1. Service Limitations. The FCC requires that Provider provide E911 Service to all
Customers who use Provider Services within the United States. Sections
13.2-13.8 apply to all Customers who use Provider Services within the United
States. Section 13.9 applies to all Customers.
13.2. ACKNOWLEDGEMENT AND WARNING LABELS. CUSTOMER
ACKNOWLEDGES THAT PROVIDER’S EQUIPMENT AND SERVICES DO NOT
SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY
FUNCTIONS IN THE SAME WAY THAT TRADITIONAL WIRELINE 911
SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION
13, AND CUSTOMER AGREES TO NOTIFY ALL POTENTIAL USERS WHO
MAY PLACE CALLS USING CUSTOMER’S SERVICES OF THE 911
LIMITATIONS DESCRIBED HEREIN. PRIOR TO THE INITIATION OF
SERVICE, PROVIDER WILL PROVIDE CUSTOMER WITH WARNING LABELS
REGARDING THE LIMITATIONS OR UNAVAILABILITY OF 911 EMERGENCY
DIALING. CUSTOMER AGREES TO PLACE SUCH LABEL ON OR NEAR
EACH TELEPHONE OR OTHER CUSTOMER-PREMISES OR
USER-PREMISES EQUIPMENT ON WHICH THE SERVICES MAY BE USED.
IF ADDITIONAL LABELS ARE REQUIRED, CUSTOMER MAY REQUEST
THEM FROM PROVIDER, AND PROVIDER WILL PROVIDE ADDITIONAL
LABELS. PROVIDER WILL PROVIDE CUSTOMER WITH ADVISORY NOTICES
REGARDING 911 EMERGENCY DIALING AND REQUEST
ACKNOWLEDGMENTS FROM CUSTOMER. CUSTOMER WILL PROVIDE
SUCH ADVISORY NOTICES TO ITS USERS. CUSTOMER AGREES TO
RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT PROVIDER HAS
ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH E911
SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON
TO TRADITIONAL 911 EMERGENCY DIALING. CUSTOMER WILL PROVIDE
SIMILAR ACKNOWLEDGEMENTS FROM ITS USERS UPON REQUEST BY
PROVIDER. PROVIDER ADVISES CUSTOMER AND USERS TO MAINTAIN
AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
13.3. ELECTRICAL POWER. CUSTOMER ACKNOWLEDGES THAT THE
SERVICES, INCLUDING WITHOUT LIMITATION E911 SERVICE, WILL NOT
FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
13.4. INTERNET ACCESS. CUSTOMER ACKNOWLEDGES THAT THE SERVICES,
INCLUDING WITHOUT LIMITATION E911 SERVICE, WILL NOT FUNCTION IF
THERE IS AN INTERRUPTION OF CUSTOMER’S BROADBAND OR
HIGH-SPEED INTERNET ACCESS SERVICE.
13.5. NON-VOICE SYSTEMS. CUSTOMER ACKNOWLEDGES THAT THE
SERVICES ARE NOT SET UP TO FUNCTION WITH OUTDIALING SYSTEMS
SUCH AS HOME SECURITY SYSTEMS, MEDICAL MONITORING
EQUIPMENT, TTY EQUIPMENT, OR ENTERTAINMENT OR SATELLITE
TELEVISION SYSTEMS. PROVIDER WILL NOT BE LIABLE FOR
INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES.
13.6. E911 SERVICE. E911 SERVICE IS A MANDATORY COMPONENT OF ALL
INBOUND/OUTBOUND TRADITIONAL FAX AND VOICE SERVICE PLANS.
E911 SERVICE IS NOT OFFERED ON VIRTUAL NUMBERS, OUTSIDE THE
UNITED STATES, ON TOLL-FREE NUMBERS OR ON SIMILAR SERVICE
ACCESSORIES OR ADD-ON SERVICE PLANS. E911 SERVICE IS ONLY
AVAILABLE IN SELECTED AREAS. E911 SERVICE IS TIED TO THE
CUSTOMER’S REGISTERED SERVICE ADDRESS ASSOCIATED WITH THE
ASSIGNED PHONE NUMBER; CUSTOMER IS RESPONSIBLE FOR
PROVIDING PROVIDER WITH ADDRESS INFORMATION FOR CUSTOMER’S
USERS. THE PROVIDER MOBILE APPLICATION USES THE DEVICE’S
DIALER AND CELLULAR TELEPHONE SERVICE TO MAKE 911 CALLS. IF A
DEVICE DOES NOT HAVE CELLULAR TELEPHONE SERVICE, THEN THE
USER WILL NOT BE ABLE TO CALL 911 FROM THE PROVIDER MOBILE
APPLICATION. CUSTOMER ACKNOWLEDGES THAT PROVIDER’S ONLY
MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY
CALL TAKER IS THE CUSTOMER’S OR USER’S REGISTERED SERVICE
ADDRESS ASSOCIATED WITH THE ASSIGNED PHONE NUMBER.
CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED
LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY
PROVIDER WILL BE BASED UPON THE CUSTOMER’S OR USER’S
REGISTERED SERVICE ADDRESS PROVIDED TO PROVIDER BY
CUSTOMER. IN THE EVENT THAT THE REGISTERED SERVICE ADDRESS
ASSOCIATED WITH THE ASSIGNED PHONE NUMBER IS INCORRECT, IS
OUTDATED, OR IS NOT COMPLETE, A 911 CALL MAY BE ROUTED
INCORRECTLY.
13.7. E911 SERVICE CHARGE. CUSTOMERS THAT ARE REQUIRED TO
SUBSCRIBE TO PROVIDER E911 SERVICE WILL BE SUBJECT TO A
MONTHLY E911 SERVICE CHARGE. THE MONTHLY E911 SERVICE FEE
WILL BE IN ADDITION TO THE APPLICABLE SERVICE FEES FOR THE
ASSOCIATED LINE. THE MONTHLY CHARGE FOR PROVIDER E911
SERVICE IS ASSESSED ON A “PER-LINE” (THAT IS, PER PHONE NUMBER
BASIS), AND WILL BE SET AT A LEVEL THAT REIMBURSES PROVIDER FOR
THE DIRECT COSTS IT INCURS IN PROVIDING PROVIDER E911 SERVICE,
INCLUDING EXPENSES PROVIDER INCURS, EITHER DIRECTLY OR
INDIRECTLY, IN THE FORM OF STATE, COUNTY OR MUNICIPAL E911
SURCHARGES, E911 AUTOMATIC LOCATION INFORMATION (ALI)
DATABASE STORAGE, LINE INFORMATION DATABASE AND CALLER ID
(LIDB/CNAM) EXPENSES, AND ANY OTHER TAXES OR SURCHARGES
DIRECTLY OR INDIRECTLY ASSOCIATED WITH THE PROVISION OF
SERVICES TO CUSTOMERS SUBSCRIBING TO THIS SERVICE. PROVIDER
RESERVES THE RIGHT TO ADJUST THE LEVEL OF CHARGES
ASSOCIATED WITH THE PROVISION OF E911 SERVICES TO REFLECT
INCREASES OR DECREASES IN THE COSTS IT INCURS.
13.8. E911 CHARACTERISTICS. CUSTOMER ACKNOWLEDGES THAT PROVIDER
E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT
FROM TRADITIONAL, CIRCUIT-SWITCHED 911 SERVICE. THESE
CHARACTERISTICS MAY MAKE PROVIDER E911 SERVICES UNSUITABLE
FOR SOME CUSTOMERS OR USERS. BECAUSE CUSTOMER AND USER
CIRCUMSTANCES VARY WIDELY, CUSTOMER SHOULD CAREFULLY
EVALUATE ITS OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO
RELY SOLELY UPON PROVIDER E911 SERVICE. CUSTOMER
ACKNOWLEDGES THAT IT IS CUSTOMER’S RESPONSIBILITY TO
DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES
BEST SUITED TO MEET CUSTOMER’S AND ITS USERS’ EMERGENCY
CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR
ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A
CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP
MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING
CHARACTERISTICS DISTINGUISH PROVIDER E911 SERVICE FROM
TRADITIONAL, CIRCUIT-SWITCHED 911 SERVICE:
13.8.1. E911 SERVICE WILL NOT FUNCTION IF CUSTOMER’S OR ITS
USER’S DTA, PHONE OR VIDEOPHONE FAILS OR IS NOT
CONFIGURED CORRECTLY OR IF CUSTOMER’S OR ITS USER’S
PROVIDER SERVICE IS NOT FUNCTIONING FOR ANY REASON,
INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE,
BROADBAND OR OTHER INTERNET SERVICE OUTAGE, OR
SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF
BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE,
CUSTOMER OR THE USER MAY BE REQUIRED TO RESET OR
RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE
THE PROVIDER SERVICE, INCLUDING FOR E911 PURPOSES. E911
SERVICE MAY NOT FUNCTION IF CUSTOMER OR A USER
RELOCATES EQUIPMENT OR USES A NON-NATIVE TELEPHONE
NUMBER, OR FOR ANY OTHER REASON BEYOND PROVIDER’S
CONTROL.
13.8.2. AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND
FOLLOWING ANY CHANGE OF AND UPDATE TO CUSTOMER’S OR A
USER’S PHYSICAL LOCATION, THERE MAY BE SOME DELAY
BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION
IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR.
THIS INFORMATION IS TYPICALLY POPULATED INTO PROVIDER’S
NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT
NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER
AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS
SCHEDULE.
13.8.3. THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING
PROVIDER E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A
SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO
CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION
INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT
KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE
PERSON WHO IS MAKING THE PROVIDER E911 CALL. DUE TO
TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT
OF NETWORK CONGESTION ON THE PROVIDER NETWORK, THERE
IS A POSSIBILITY THAT A PROVIDER 911 CALL WILL PRODUCE A
BUSY SIGNAL, THE CALLER WILL EXPERIENCE UNEXPECTED
ANSWERING WAIT TIMES OR THE LOCAL EMERGENCY SERVICE
OPERATOR WILL TAKE LONGER TO ANSWER THE CALL THAN 911
CALLS PLACED VIA TRADITIONAL, CIRCUIT-SWITCHED
TELEPHONE NETWORKS.
13.8.4. IF CUSTOMER OR ITS USER DOES NOT CORRECTLY IDENTIFY THE
ACTUAL LOCATION WHERE THE PROVIDER EQUIPMENT WILL BE
LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE,
PROVIDER E911 COMMUNICATIONS MAY NOT BE DIRECTED TO
THE CORRECT LOCAL EMERGENCY OPERATOR.
13.9. E911 LIMITATION OF LIABILITY AND INDEMNITY. CUSTOMER AGREES
THAT PROVIDER WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE OR
INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE
NUMBER USING A PROVIDER SERVICE OR TO ACCESS OR REACH AN
EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING
CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT.
CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS
PROVIDER, ITS OWNERS, MANAGERS, OFFICERS, DIRECTORS,
EMPLOYEES, AFFILIATES AND AGENTS, AND ANY OTHER SERVICE
PROVIDER WHO FURNISHES SERVICES TO CUSTOMER OR A USER IN
CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS,
ACTIONS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) BY,
OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE
SERVICE RELATING TO 911 DIALING OR THE INABILITY TO ACCESS OR
REACH EMERGENCY 911 SERVICES.
14. DISCLAIMER AND LIMITATION OF LIABILITY
PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED,
STATUTORY OR ARISING FROM A COURSE OF DEALING OR
PERFORMANCE OR CUSTOM, WITH RESPECT TO THE SERVICES,
EQUIPMENT, AND ANY OTHER PROVIDER PRODUCTS, SERVICES OR
EQUIPMENT PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, PERFORMANCE IN A WORKMAN-LIKE MANNER, COMPLIANCE
WITH LAWS, QUALITY, ACCURACY, COMPLETENESS OR CURRENCY OF
INFORMATION, SYSTEM INTEGRABILITY, TITLE, QUIET ENJOYMENT AND
NON-INFRINGEMENT. PROVIDER DOES NOT REPRESENT, WARRANT OR
COVENANT THAT THE PRODUCTS, SERVICES OR EQUIPMENT PROVIDED
WILL OPERATE UNINTERRUPTED, ERROR FREE OR WITHOUT
DEGRADATION OR LOSS OF DATA, OR BE SECURE. NEITHER PROVIDER
NOR ITS SERVICE PROVIDERS WILL BE LIABLE FOR UNAUTHORIZED
ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S
OR A USER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION,
INCLUDING, WITHOUT LIMITATION, ANY SUCH DATA IN PROVIDER’S
POSSESSION, CUSTODY OR CONTROL, THROUGH ACCIDENT,
FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD,
REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF
PROVIDER’S OR ITS SERVICE PROVIDER’S NEGLIGENCE. IN NO EVENT
WILL PROVIDER OR ITS AFFILIATE, SERVICE PROVIDER, FACILITY
OPERATOR OR CARRIER, OR THEIR RESPECTIVE OWNERS, DIRECTORS,
MANAGERS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY,
“PROVIDER PARTIES”) BE LIABLE FOR ANY DIRECT, ACTUAL, INDIRECT,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR
ANY COST OF COVER OR LOST PROFITS OF ANY KIND OR NATURE
WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR A
PROVIDER PARTY’S PERFORMANCE OR NONPERFORMANCE OF
OBLIGATIONS HEREUNDER, A FAILURE OF OR A DEFECT IN THE
SERVICES, EQUIPMENT OR ANY PRODUCT, A PROVIDER PARTY’S
VIOLATION OF A THIRD PARTY’S RIGHT, OR A PROVIDER PARTY’S ACTS
OR OMISSIONS. PROVIDER WILL NOT BE LIABLE FOR THE ACTS OR
OMISSIONS OF, A FAILURE OF OR A DEFECT IN ANY PRODUCT OR
SERVICE PROVIDED BY, OR VIOLATION OF ANY THIRD PARTY’S RIGHTS
BY ANY THIRD-PARTY SERVICE PROVIDER, FACILITY OPERATOR OR
CARRIER. THE PROVIDER PARTIES’ MAXIMUM TOTAL LIABILITY TO
CUSTOMER WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO
PROVIDER IN THE THREE (3) MONTHS PRECEDING THE DATE THE CLAIM
ACCRUED. THE PROVIDER PARTIES WILL NOT BE LIABLE IN ANY WAY TO
ANY USER.
15. INDEMNIFICATION
Customer will defend the Provider Parties, at Customer’s expense, against any
third-party claim or action, and indemnify and hold harmless the Provider Parties
from any and all losses, damages, liabilities, penalties, settlement obligations,
costs, attorneys’ fees and other legal expenses related to such third-party claim
or action, arising from or related to: (a) Customer’s breach of this Agreement or
an agreement between Customer and a third party; (b) Customer’s violation,
infringement or misappropriation of the third party’s intellectual property or other
rights in Customer’s use of the Services; (c) Customer’s violation of the third
party’s privacy, publicity, personality or other rights; (d) Customer’s fraud in use
of the Services or fraud or misrepresentation regarding the nature or volume of
Customer’s traffic; (e) Customer’s violation of an applicable law; (f) bodily injury,
death or property damage to the extent such claim or action arises from the
negligence, gross negligence or willful misconduct of Customer, or in the case
where strict liability applies; (g) Customer’s business, acts or omissions; or (h)
acts or omissions by Users that, if done by Customer, would constitute a breach
of this Agreement. Customer will not settle any claim or action without Provider’s
prior written consent. Provider will have the option, at its expense, to participate
in the defense or settlement of the claim or action with counsel of its own
choosing. If a conflict of interests arises or exists between the parties or if
Provider has a good faith belief that its rights are being harmed by the counsel
selected by Customer, Provider will have the right to retain separate counsel to
represent its interests at Customer’s sole cost and expense. Customer will not
settle any claim without Provider’s prior written consent.
16. EQUIPMENT
16.1. Equipment Lease. If the Provider leases any equipment to Customer, the terms
of this Section 16 apply. The Customer agrees to pay the monthly lease of the
equipment for the purposes of internet services. These additional services and
charges will be billed to the Customer’s account. Should this equipment fail due
to regular usage, it will be replaced by Provider at no cost to Customer. Any
equipment found to be defective due to misconduct will be billed to Customer at
$250.
16.2. Equipment Return Policy. Provider may decline Customer’s return or charge
Customer an additional fee for each missing item or for each item that Provider
reasonably determines is modified, damaged or not in good working condition.
Failure to return leased equipment will result in a $250 fee billed to Customer’s
account.
17. MOBILE APPLICATION
Provider may make a mobile application for the Services available to Customer.
Subject to this Agreement, Provider grants to Customer a limited, personal,
revocable, non-exclusive, non-transferable and non-sublicensable license to
install and use the mobile application during the Term. Customer have no other
rights in or to the mobile application. The mobile application is licensed, not sold.
The terms of this Agreement apply to any updated, upgraded or new versions of
the mobile application. Use of the mobile application constitutes use of the
Services. Provider may require Users to agree to additional terms and conditions
governing use of the mobile application, and Customer agrees that its Users will
not be permitted to use the mobile application unless they agree to such terms
and conditions. Customer agrees that from time to time and without notice
Provider may amend, modify, update or upgrade the mobile application or create
new versions of the mobile application. Customer agrees that Provider may
automatically update the version of the mobile application that a User is using on
a mobile device. Customer consents, on behalf of itself and its Users, to such
updating on mobile devices. Updates may cause Customer or users to lose data,
and Provider will not be liable for such loss. Customer agrees that Provider has
no obligation to provide support, maintenance or updates for or to the mobile
application. To the extent the mobile application contains any third-party
software, Customer’s and User’s rights and obligations with respect to such
software will be subject to and governed by the third party’s terms and conditions.
Provider does not make a representation or warranty that the mobile application
will operate on any particular device or operating system. The mobile application
is commercial computer software, and to the extent any U.S. government agency
uses the mobile application, the U.S. government is only granted the limited
rights granted to all other Provider customers. Provider is not a wireless licensee
of the FCC, and the mobile application will not be able to provide access to E911
service unless Customer subscribes to wireless service that complies with the
FCC’s E911 program, as further explained in Section 13.6.
18. INTELLECTUAL PROPERTY
The Services and Software, and all intellectual property therein, are and will
remain the exclusive property of Provider. Provider reserves all rights not
expressly granted under this Agreement. The Software may contain third-party
software that is subject to the terms and conditions of third-party licenses. Neither
Customer, Users nor any other third party has a right to inspect, possess, use,
copy, or attempt to discover the source code of (or any portion of) the Software,
except to the extent that Customer, a User or a third party is expressly permitted
to decompile the Software under applicable law and Customer, the User or the
third party notifies Provider in writing in advance of its intention to decompile the
Software and its reason for doing so.
19. PORTAL UPGRADES; PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE
Provider may update the Customer and User portals, and Customer agrees that
Service may be unavailable during the implementation of such updates. Upon
expiration, cancellation or termination of the Services, Customer and Users will
relinquish and discontinue use of any accounts, Numbers, voice mail access
numbers, and/or web portal Sites assigned to Customer by Provider or its service
providers.
20. MISCELLANEOUS
20.1. NOTICES
Unless otherwise specified in this Agreement, any notice required or permitted to
be given pursuant to this Agreement will be given in writing by overnight delivery
service, sent via certified mail, return receipt requested, e-mailed, or delivered by
hand, and such notice will be deemed to have been given and received when
delivered or when delivery was refused, or with respect to electronic
transmissions, at the time of transmission (unless the sender received a notice of
transmission failure). Customer consents to receive all notices in electronic form,
and Provider may send any notice to Customer at Customer’s latest physical
address or e-mail address provided by Customer. Provider may, in addition to all
other methods of giving notice, send any notice to Customer’s mailbox in
Customer’s account on the Provider Customer Care Portal. Both parties agree
that any agreements and notices made or provided by one or both parties in
electronic form, and in accordance with this Agreement, are as legally binding as
if made in physical written form. Customer must send all notices to Provider via
e-mail in accordance with the following:
To report misuse or fraudulent use of Service: noc@rallynet.us
To submit a billing dispute: centralcsr@rallynet.us
To terminate Service: centralcsr@rallynet.us
All other notices: centralcsr@rallynet.us
20.2. FORCE MAJEURE
Provider’s performance of any part of this Agreement will be excused to
the extent that it is hindered by flood, fire, natural disaster, strike, riot, war,
terrorism, hostile attack, governmental action, cable cuts, supplier
shortages, breaches, or delays, Provider’s inability to perform as a result
of actions or inactions of third parties, Customer, a User or Provider’s
vendors, including, without limitation, Customer’s failure to provide or
maintain a circuit with respect to an order for Service, or any other cause
(whether similar or dissimilar to those listed) beyond Provider’s
reasonable control (a “Force Majeure”). Provider may terminate the
Services without liability if a Force Majeure hinders Provider’s
performance for more than five (5) days.
20.3. NO CLASS ACTION
Customer irrevocably waives any right Customer may have to serve as a
representative or as a private attorney general, or to participate as a
member of a class of claimants, in any lawsuit, arbitration or other
proceeding against any Provider Party arising from, related to or
connected with this Agreement or any Service Order.
20.4. BINDING NATURE AND ASSIGNMENT
Customer’s rights and obligations in this Agreement will not be assigned,
delegated or otherwise transferred in whole or in part without the prior
written consent of Provider. Except as part of the sale of all or
substantially of the assets for Provider or the assignment of this
Agreement, or any rights or obligations thereunder, to any of Provider’s
affiliates (which will not require Customer consent), Provider’s rights and
obligations in this Agreement will not be assigned, delegated or otherwise
transferred in whole or in part without the prior written consent of
Customer, which will not be unreasonably withheld. For sake of clarity,
Provider may assign, delegate and transfer some or all of its rights and
obligations under this Agreement to its affiliates. Except as otherwise
expressly provided herein, this Agreement will inure to the benefit of, and
will bind, the heirs, executors, personal representatives, administrators,
successors and permitted assigns of Provider and Customer.
20.5. GOVERNING LAW
This Agreement and any related Service Orders will be governed by and
construed according to the laws of the State of Missouri, without regard to
its conflict of laws provisions. The U.N. Convention on Contracts for the
International Sale of Goods will not apply to this Agreement.
20.6. ARBITRATION
Any dispute or controversy arising out of or in connection with this
Agreement or any related Service Order, or otherwise related to the
Services, will be resolved by binding arbitration. The Federal Arbitration
Act and federal arbitration law applies to this Agreement. The arbitration
will be administered by the American Arbitration Association (AAA),
conducted by one (1) arbitrator, and conducted in accordance with the
AAA’s Commercial Arbitration Rules. The arbitration will be conducted in
St. Louis, Missouri. The language of the arbitration will be English. The
parties’ briefs and other documents and the arbitrator’s findings and
decision will be confidential unless required to be disclosed by law.
Neither party may use any finding or decision of the arbitrator in existing
or subsequent litigation or arbitration involving any other person, entity or
organization. The arbitrator must have sufficient experience in the
matter(s) at issue. The arbitrator’s decision will follow the plain meaning of
the Agreement and will be final and binding. Neither party will have the
right to appeal an error of law or fact. Each party will bear the cost of
preparing and presenting its case. Judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction. This
agreement to arbitrate also requires Customer to arbitrate claims against
other parties relating to Services or products provided or billed to
Customer if claims are asserted against Provider in the same proceeding.
Notwithstanding the foregoing, either party may bring suit in court to
enjoin unauthorized access or trespass to its computer networks or any
misappropriation, infringement or violation of its intellectual property
rights. The arbitrator will have the exclusive power to rule on the
formation, interpretation, applicability, validity or enforceability of this
Agreement, including without limitation the validity or enforceability of this
arbitration agreement. The arbitrator will not have the power to conduct
any form of class or collective arbitration nor join or consolidate claims by
or for individuals. If any dispute or controversy arising out of or in
connection with this Agreement or any related Service Order, or otherwise
related to the Services, cannot lawfully be resolved by arbitration, the
complainant must bring any claim or action in the state or federal courts
for St. Louis, Missouri, and the parties waive any objection based on
personal jurisdiction, venue or inconvenient forum.
20.7. ENTIRE AGREEMENT, AMENDMENTS, CONFLICT, SEVERABILITY,
WAIVER, SURVIVAL
This Agreement, all documents referred to herein and any related Service
Order executed by the parties constitute the entire agreement between
the parties and supersede any and all prior agreements and rates
between the parties with respect to the subject matter hereof. No
additions, deletions or modifications to this Agreement or any Service
Order will be binding unless (a) made in a writing signed by duly
authorized representatives of both parties or (b) agreed to by the party to
be charged by electronic means. In the event of a conflict between any of
the terms and conditions of this Agreement and any Service Order, the
terms and conditions in the Service Order will prevail. The parties are
independent contractors. Nothing contained herein will be construed as
creating any agency, partnership, or other form of joint venture or
enterprise between the parties. If any provision(s) of this Agreement or
any related Service Order is held to be invalid, illegal, or unenforceable,
the validity, legality and enforceability of the remaining provisions will not
in any way be affected or impaired thereby, and the parties further agree
to substitute a valid provision that most closely approximates the
economic effect of the invalid provision. The failure of either party to
require performance by the other party of any provision hereof will not
affect the right to require such performance at any time thereafter, nor will
the waiver by either party of a breach of any provision hereof be taken to
be a waiver of the provision itself. To the extent permitted by applicable
law, the parties agree to and do hereby waive any applicable statutory or
common law that may permit a court to construe a contract against its
drafter. No claim or cause of action may be asserted against either party
more than three (3) months after the time the facts giving rise to the claim
or cause of action are discovered or should have been discovered.In the
event a suit is brought or an attorney or collection agency is retained by
Provider to enforce the terms of this Agreement or any Service Order, or
to collect any monies due hereunder, or to collect money damages for
breach thereof, Provider will be entitled to recover, in addition to any other
remedy available at law or in equity, reimbursement for attorneys’ fees,
court costs, collection costs, costs of investigation and other related
expenses incurred in connection therewith.
The terms and provisions contained in this Agreement and any related Service Order that, by
their sense and context, are intended to survive the performance thereof by the parties hereto
will survive the completion of performance and termination of this Agreement, including, without
limitation, payment obligations, the limitations on damages and liability, ownership of intellectual
property, and defense and indemnity obligations.
RALLY SIP TRUNKING TERMS AND CONDITIONS
SERVICE TERMS AND CONDITIONS
BY ACCEPTING THESE SERVICE TERMS AND CONDITIONS, YOU ACKNOWLEDGE THAT
YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS
BELOW. ALL SERVICE ORDERS AND SERVICES ARE SUBJECT TO THESE TERMS AND
CONDITIONS.
These Service Terms and Conditions (the “Agreement”) are entered into by and between
Rally Networks (“RALLY”), a Missouri Corporation, and the customer purchasing products or services
from RALLY (“Customer”).
1. SERVICES AND TERM
Generally, RALLY offers enterprise voice and optional data session initiation protocol
(SIP) trunking services, typically including an integrated access device (IAD).
Broadband service is required for such services and may be provided by you or
purchased from RALLY. The services ordered by Customer from RALLY pursuant to any
RALLY Service Order or addendum thereto (each, a “Service Order”) constitute the
“Services.” The Services shall commence on the date on which the Services are
first made available to Customer (the “Start Date”) and shall continue for the
length of time specified as the Term Commitment on the applicable Service
Order (the “Initial Service Term”). After the Initial Service Term and any
subsequent term (each, a “Service Term”), this Agreement and the applicable
Service Order will renew automatically for an additional twelve (12)-month period,
unless either party provides written notice of cancellation at least thirty (30) days
before the then-current Service Term ends. Billing for Services and related
charges shall commence on the Start Date and shall continue throughout the
Service Term. RALLY reserves the right to decline any Service Order.
2. BROADBAND SERVICE
To use the Services, Customer must have broadband Internet access service
(“Broadband Service”). RALLY may provide Broadband Service as required for the
delivery of Services if specified in the applicable Service Order, and in so doing
may interact with other telecommunications providers. Monthly charges for such
Broadband Service shall begin on the date upon which Customer is notified by
RALLY that such Broadband Service is activated and ready for use, and such
charges shall be detailed on the Service Order and paid by Customer. Provision
of Broadband Service may require that equipment be installed and that, in some
cases, additional wiring be configured at Customer’s premises. Installation or
wiring charges, if any, are not included in the Service Order and will be billed
separately to the Customer. Broadband Service provided by RALLY constitutes a
Service.
3. EQUIPMENT
To use the Services, an integrated access device (IAD) and/or other
RALLY-provided equipment (the “Equipment”) may need to be installed at
Customer’s premises. Customer is responsible for installation of the Equipment,
unless otherwise specified in a Service Order. At all times, such Equipment is
and shall remain the property of RALLY and shall not be considered Customer’s
equipment or a fixture. Customer will not allow the Equipment to become subject
to a lien, security interest or other encumbrance. Customer bears all risk of loss
or damage to the Equipment while it is in Customer’s possession, custody or
control. If Customer ceases receiving Services from RALLY, Customer must return
the Equipment to RALLY undamaged and in its original packaging within thirty (30)
days of the termination of Services. Failure to return same will result in an added
fee in the amount of the manufacturer’s suggested retail price of the non-returned
product. To return Equipment, Customer must request a Return Merchandise
Authorization (RMA) number from RALLY in accordance with RALLY’s Return
Merchandise Policy, available on RALLY’s web site. Customer is responsible for the
cost and risk associated with return shipping of the Equipment. Customer will not
attempt to maintain or repair, or permit a third party to maintain or repair, the
Equipment. Customer agrees to comply with all instructions and requirements
regarding the use and/or care of the Equipment and to take reasonable
measures to protect such Equipment at all times. RALLY will repair or replace, in its
sole discretion, any Equipment that does not perform as specified, at no charge
to Customer, unless it is determined, in RALLY’s sole discretion, that Customer was
directly or indirectly responsible for the Equipment failure. RALLY may provide
updated or new Equipment to Customer from time to time, and RALLY may require
that Customer use the updated or new Equipment to continue to receive the
Services. In some cases, Customer will be permitted to use Customer’s own IAD
and other equipment. In such a case, Customer will be fully responsible for such
equipment, and RALLY makes no representation or warranty with respect to such
equipment or its operation with the Services.
4. INSTALLATION OF EQUIPMENT
If Customer has contracted for RALLY to install the Equipment, Customer shall, at its
expense, have the site prepared prior to RALLY’s arrival and in accordance with
RALLY’s installation site preparation specifications. Customer shall provide any
applicable technical user support during installation at its own expense. If
Customer has not contracted for installation from RALLY, Customer shall at its
expense diligently perform or have performed all installation requirements for the
Equipment. Unless the Service Order specifies that Customer will provide its own
hardware, the Services will be deemed to have been made available to Customer
at the time RALLY provides the Equipment to the Customer for self-installation.
5. OWNERSHIP OF INTELLECTUAL PROPERTY
The Services and Equipment, and all intellectual property therein, are and shall
remain the exclusive property of RALLY. RALLY is not providing any software with the
Services or Equipment provided under this Agreement. There is no license
granted, implied or constructively given to Customer.
6. SERVICE FEES, TARIFFS AND OTHER CHARGES; TAXES.
6.1. Services Fees. The fees for Services will be set forth in the Service Order, and
Customer agrees to pay such fees. Service Fees will be billed in advance of
delivery of the Services. Monthly Services fees will be billed pro rata in the
months in which such Services commence and terminate.
6.2. Bundles of Minutes. Customer may purchase long distance and toll free
Bundles of Minutes (BOM) from RALLY at a discounted rate from RALLY’s prevailing per
minute rate. When purchasing a BOM, Customer commits to a fixed monthly
recurring charge (MRC) for the term purchased. BOM charges are billed upon
purchase. If Customer’s usage exceeds the purchased bundle total in a time
period, RALLY will charge for excess usage at the per minute rate based on
Customer’s subscribed package rate. Unused minutes remaining at the end of
any Service Term expire and do not carry over to a subsequent term. If Customer
declines to purchase a BOM, Customer will be billed monthly in arrears for long
distance and toll free usage at RALLY’s then-prevailing per minute usage rates.
6.3. Tariffs. In addition to the fees for the Services specified in a Service Order,
Customer will be charged RALLY’s applicable usage, access, storage, feature and
other charges included in RALLY’s tariffs (“Tariffs”) but not included as part of
Customer’s selected Services plan. This Agreement incorporates by reference all
applicable rates, terms and conditions of RALLY’s Tariffs, which are available on
RALLY’s web site. This Agreement may be superseded, in whole or in part, by a new
or revised Tariff filed with the jurisdictional regulatory agency or agencies, which
may contain such modifications of the provisions of this Agreement, as RALLY
deems necessary or appropriate. RALLY may modify its Tariffs from time to time in
accordance with applicable Laws and thereby affect Services provided to
Customer hereunder, except that the terms and conditions of this Agreement
shall supplement any such modified Tariff to the extent they are not inconsistent
with the terms and conditions of the Tariff. Customer is responsible for payment
of all applicable charges specified in Tariffs and other charges incurred in
connection with Services provided to Customer’s numbers, network addresses
and authorization codes. Tariff charges are rounded up to the nearest tenth of a
cent when billed (three (3) decimal places). Charges based on per-minute of use
rates for underlying carrier services purchased by RALLY to provide the services will
be calculated on the basis of increments specified by the underlying carrier. Such
increments may vary from carrier to carrier. Tariff charges are invoiced to
Customer in arrears, except access loop charges and certain other charges as
indicated on RALLY’s Tariffs schedule, which are invoiced to Customer upon
purchase. Any service provided by RALLY that is not governed by a Service Order
shall be offered solely in accordance with the applicable rates, terms and
conditions of the Tariffs as the same may be revised from time to time.
6.4. Increases to Fees and Tariffs. The aforementioned notwithstanding and
regardless of any fees or Tariffs stated in a Service Order, RALLY may increase the
fees for the Services and the Tariffs in the same proportion that RALLY’s costs in
providing the Services and related features increase due to mandated regulatory
charges, increases in an underlying carrier’s charges or other factors beyond
RALLY’s reasonable control. Any such rate increase will be charged through to
Customer by RALLY at a rate equal to the increased cost to RALLY, and RALLY will deliver
advance notice of any such rate adjustment (thirty (30) days notice of any such
adjustment of domestic rates, seven (7) days notice of any such adjustment of
international rates).
6.5. Additional Charges. In the event additional charges accrue or are paid by RALLY
as a result of direct Customer requests (for example, a request for maintenance
services), Customer shall reimburse RALLY for such charges. RALLY is entitled to
recover any charges imposed on RALLY by payphone owners or operators.
6.6. Taxes. All charges computed by RALLY are exclusive of any taxes, surcharges,
public utility fees and regulatory fees (including Universal Service Fees and
similar charges). Such taxes and fees shall be invoiced by RALLY and paid by
Customer. Should Customer claim an exemption of any taxes or regulatory fees,
Customer shall provide official documented/certified proof of such exemption. It is
Customer’s ongoing responsibility to ensure its exempt status, and the proof
thereof, remains current. In no event shall RALLY be liable for any taxes due by
Customer, and Customer shall defend and indemnify RALLY if any claim for taxes or
fees is made.
6.7. Termination of Domestic Usage. The “cost per minute” outlined on any Service
Order is based on the assumption that Customer will terminate at least 85% of
Customer’s total domestic usage in a tandem owned and operated by a Regional
Bell Operating Company (“RBOC”) and subject to such RBOC’s tariffed access
charges. RALLY will apply a surcharge of $0.04 per minute of use to the number of
minutes by which Customer’s non-RBOC termination (being defined as the sum
of outbound minutes that terminate in non-RBOC areas plus inbound (toll-free)
minutes that originate in non-RBOC areas) exceeds 15% of Customer’s total
domestic usage. For purposes of the calculation pursuant to this paragraph, the
Operating Company Number (“OCN”) of the originating or terminating automatic
number identification will be used. OCN numbers of 9000 and above are
classified as RBOC and OCN numbers below 9000 are classified as non-RBOC.
The surcharge will be invoiced to Customer in arrears.
7. PAYMENT TERMS
7.1. Payment for RALLY’s invoices shall be due thirty (30) days following the date of each
invoice. Invoices will be sent by regular mail or e-mail or will be made available
on the RALLY Customer Care Portal. If the Customer has agreed to a revenue
commitment and does not meet such commitment on a monthly basis, Customer
shall be liable for 100% of any shortfall, which shall be due within thirty (30) days
of invoice, without set-off or demand. In addition to all other remedies available to
RALLY, a late fee shall be assessed in the amount of 1.5% (or the maximum rate
permitted by law, whichever is less) of the unpaid balance per month until paid in
full for charges not paid within thirty (30) days of the due date. Customer shall
notify RALLY in writing of all disputed amounts in its bills within thirty (30) days of the
invoice date, identifying in reasonable detail the nature and amount of any such
dispute. RALLY shall promptly investigate all timely and appropriately documented
disputes and respond to Customer within thirty (30) days. All amounts not so
disputed shall be deemed final and not subject to further dispute. Customer
agrees to pay RALLY for all amounts billed and not so disputed, and where a dispute
is resolved in favor of RALLY. RALLY will consider fairly any disputes raised in a timely
manner, in good faith and appropriately documented. Customer may pay by
check or credit card only. Customer agrees to provide RALLY with complete and
accurate contact and credit card information, and Customer agrees to advise RALLY
of any changes thereto. Customer authorizes RALLY to charge Customer’s credit
card automatically to pay for Customer’s charges. If a charge to Customer’s
credit card is declined or reversed, or if the account or credit card has expired or
been suspended or closed, or if Customer fails to provide RALLY with accurate or
complete credit card information, RALLY may suspend or terminate the Services.
8. CREDIT
8.1. The provision of Services is contingent upon establishment of and continuing
credit approval by RALLY. Customer hereby consents to RALLY’s procurement of a
credit score or report regarding Customer. At any time during the Service Term,
RALLY is entitled to require a deposit or other acceptable form of security from
Customer, as it deems appropriate. In addition, if requested by RALLY, Customer
agrees to provide, within two (2) business days of request, appropriate financial
records to evaluate Customer’s continuing ability to pay. RALLY may, immediately
and without notice, suspend or terminate the Services if Customer fails to comply
with these security obligations. Upon a payment default by Customer not cured in
a timely manner, RALLY shall have the right to offset against any security or deposit
held any amounts owed to RALLY by Customer, and to invoice and collect
cancellation charges in accordance with Section 11 below.
9. CUSTOMER RESPONSIBILITIES
9.1. Customer represents and warrants that it will comply with (a) RALLY’s Acceptable
Use Policy, available on RALLY’s web site (rallynet.us), and (b) all
applicable laws, regulations, rules, court orders and government agency orders
(“Laws”) in its use of the Services and Equipment.
9.2. Customer assumes all risks of and full responsibility for the use of the Equipment
and any and all other equipment connected or related to the Equipment or
Customer’s computer and telecommunication systems. Customer agrees not to
remove the Equipment from the location at which it was initially installed without
RALLY’s prior written permission.
9.3. Customer will execute such other documents, provide such other information,
and affirmatively cooperate with RALLY, all as may be reasonably required by RALLY
relevant to providing the Services. In particular, Customer accepts the
responsibility for providing RALLY with special access surcharge exemption forms
and letters of agency as may be required by carriers for Services, if any. In
addition, Customer agrees that RALLY has the right to audit Customer’s use of the
Services and will make Customer’s place of business (or other location at which
Equipment is located, if requested by RALLY) available for inspection upon
reasonable notice and during reasonable business hours.
9.4. Customer assumes responsibility for the accuracy and completeness of all
information provided to RALLY in connection with the providing of Services and will
reimburse RALLY for any expenses RALLY reasonably incurs as a result of inaccurate
or incomplete information provided by Customer.
9.5. Customer will not sell, lease or license the Services, Equipment or any part
thereof.
9.6. Customer must report any unauthorized use of the Services or Equipment to RALLY
immediately after Customer discovers such use. Customer is responsible for all
use of the Services and Equipment provided to Customer, whether authorized or
unauthorized.
9.7. Customer will not remove serial numbers or labels from, disassemble, reverse
engineer, decompile, reset or otherwise tamper with the Equipment or any
software embedded therein.
9.8. Customer will not challenge or attempt to register or otherwise protect any of
RALLY’s intellectual property or other rights in the Services and/or Equipment.
10. CONDITIONS AND LIMITATIONS ON SERVICES
10.1. Customer may only use the Services and Equipment in the United States of
America.
10.2. Customer understands and accepts that calls to certain countries may require
RALLY’s assistance in accordance with RALLY’s fraud advisory and policy set forth on
RALLY’s web site (https://rallynet.us) as part of RALLY’s
Acceptable Use Policy.
10.3. Customer understands and accepts that the Services and Equipment will not
function in the case of a power or Internet services failure or outage. Failure or an
outage of power or Internet services will not relieve Customer of its payment
obligations under this Agreement. During such a failure or outage, Customer will
not be able to call for 911 or other emergency services.
11. CANCELLATION, SUSPENSION AND TERMINATION
11.1. Cancellation by Customer. Upon thirty (30) days written notice, Customer may
cancel the Services or any portion thereof provided pursuant to a Service Order.
Such notice of cancellation must be accompanied by payment in full for all
Services to be provided during such thirty (30)-day notice period plus a
cancellation charge (“Cancellation Charge”) as follows: (a) 100% of the total
remaining monthly recurring charges for the remaining balance of a one (1)-year
Service Term; (b) 75% of the total remaining monthly recurring charges for the
remaining balance of a two (2)-year Service Term; (c) 50% of the total remaining
monthly recurring charges for the remaining balance of a three (3)-year Service
Term; (d) any discounts of the non-recurring install charge (NRC) that had been
applied; and (e) the local number porting cancellation fee, if applicable.
11.2. Suspension or Termination by RALLY. RALLY may terminate this Agreement and any
and all Service Orders, and the delivery of Services thereunder, at any time upon
RALLY giving Customer two (2) business days written notice of such termination,
during which time the Customer shall have the opportunity to cure, in the event
that RALLY determines, in its sole and absolute discretion, that: (a) Customer has
failed to make payments or to perform any other obligation or condition of this
Agreement or a Service Order; (b) Customer is using the Services in a manner
that interferes with or otherwise disrupts services provided by RALLY to others; (c)
Customer has used, attempted to use, intends to use or is using the Services in
violation of any applicable Law; (d) Customer is insolvent, has made a general
assignment for the benefit of creditors, has filed, or had filed against it, a petition
in bankruptcy, or has had a receiver or trustee appointed for it or any of its
assets; (e) Customer has made an unauthorized assignment of the Agreement or
a Service Order; or (f) in the event that RALLY has required Customer to provide a
forecast covering a good faith estimate of the traffic volume and distribution for
the ordered Services, Customer’s usage exceeds such forecast provided. In the
event of termination by RALLY under this Section 11.2, Customer shall pay to RALLY,
upon demand, all amounts specified in Section 11.1 hereof, as a cancellation
charge and not as a penalty, and RALLY may exercise any and all remedies at law,
in equity and/or under this Agreement. RALLY may suspend any or all of the
Services being provided to Customer immediately if any of the foregoing grounds
for termination exists. If Services are suspended, a restoration charge may apply
and a deposit in an amount equal to one (1)-month’s recurring charges, or
greater, may be required, at RALLY’s sole discretion, prior to RALLY restoring the
Services. In addition, if RALLY discovers or suspects that Customer has engaged in,
attempted to engage in, intends to engage in or is engaging in fraudulent or other
unlawful activity, RALLY has the right to provide Customer’s contact information to
the police and other government authorities. RALLY may also terminate this
Agreement, the Services and all related Service Orders at the end of the term
stated in the Service Order by providing written notice to Customer prior to
expiration of the then-current term; RALLY has no obligation to permit renewal of the
Services and/or Service Orders.
11.3. Additional Cancellation and Termination Charges. In the event of any
cancellation or termination described in this Agreement, Customer shall also pay
RALLY an amount equal to any and all Tariffs, termination charges, porting fees,
expenses, taxes, fees, costs and additional charges due under any and all
applicable Service Orders, and any charges due to any carrier or Broadband
Service provider that has provided services to Customer.
11.4. Cancellation for Legal Compliance. Notwithstanding the foregoing, and upon
thirty (30) days prior written notice, either Customer and RALLY shall have the right,
without payment of any cancellation charge or other liability, to cancel any
affected portion of the Services if: (a) RALLY is prohibited by Law from providing
such portion of the Services; (b) any material rate or term contained herein and
relevant to the affected Services is substantially changed by or as a result of any
regulation or order issued by any court of competent jurisdiction, the Federal
Communications Commission, any other local, state or federal government
authority, or any carrier or Broadband Service provider; or (c) any carrier or
Broadband Service provider from which RALLY is purchasing and reselling services
to Customer is unable to provide its services to RALLY.
12. EMERGENCY 911 SERVICES
12.1. Generally. Emergency 911 services (including without limitation Enhanced 911
(E911) services) that may be provided by RALLY in connection with the Services
may differ in certain respects from the emergency calling services provided by a
traditional wire-line telecommunications provider. These differences may
adversely affect the availability and/or timeliness of the provision of 911 services
to Customer or others in the event of an emergency. Customer may have to
enable 911 services on its devices or Services account. 911 dialing are not
automatic. When a user dials 911 using the Services, the user will be routed to
the general telephone number for the public safety answering point (PSAP) or
local emergency service provider (which may not be answered outside business
hours), and may not be routed to the 911 dispatcher(s) who are specifically
designated to receive incoming 911 calls using traditional wire-line
telecommunications 911 dialing. RALLY relies on third parties for the forwarding of
information underlying the routing of 911 calls, and accordingly RALLY disclaims any
and all liability or responsibility in the event such information is incorrect or
delayed, or in the event the routing of a 911 call fails. In addition, due to
limitations in technology, the location reported by RALLY to the public safety
dispatcher for Customer’s telephone may not include the Customer’s specific
office or other location within a business premises. Due to the inherent limitation
in RALLY’s provision of 911 services, CUSTOMER SHOULD ALWAYS HAVE AN
ALTERNATE MEANS OF ACCESSING EMERGENCY 911 SERVICES.
12.2. Locations of Users. Customer is responsible for the accurate reporting of the
physical location where the Services are to be used and for instructing each
employee, agent and contractor that he/she must provide RALLY with the specific
location in which he/she is located within the Customer’s premises in the event of
an emergency. Customer is required to maintain valid E911 addresses for each
of Customer’s physical locations where the Services are deployed. Should an
emergency arise, emergency services may be delayed or may be unable to
respond to Customer’s needs if Customer’s account does not have a valid E911
address on file. Failure to provide and maintain valid and current information as
to the physical location of the telephone(s) could result in a charge to the
Customer’s account. In the event that any equipment used in connection with the
Services is moved to another location, Customer is responsible for notifying RALLY
and updating Customer’s account records to reflect the new address where the
Services are to be provided, and for instructing each employee, agent and
contractor that he/she must update RALLY promptly when such employee, agent or
contractor changes the physical location to which the Services are being
provided. Even though Customer will be able to use the Services in the event
Customer changes the physical location where the Services are to be provided,
failure to update emergency dispatch information promptly could result in the
failure to dispatch.
12.3. Limitations. As indicated in Sections 12.1 and 12.2, RALLY’s provision of Enhanced
911 service has several limitations. Those limitations may prevent Customer from
making emergency calls. Additional factors that could result in Enhanced 911
failures include but are not limited to any of the following:
● Loss of electrical power
● Loss of Internet connection for any reason
● Defective customer premises equipment
● Network congestion
● Delays in updating Customer’s registered service address
● Unavailability of E911 service for phones or addresses outside the
United States or Canada.
Customer should inform all employees, agents and contractors who may have
access to E911 service about this section of the Agreement and make sure they
understand the terms and conditions under which the E911 service is available.
Customer is solely responsible for marking its telephones and any other devices
regarding the potential non-availability of traditional 911 or E911 dialing. In
addition, Customer should inform its employees, agents and contractors of the
following guidelines for use of 911 or E911 service in connection with the
Services:
● Do not hang up from a 911 or E911 emergency service call unless
and until instructed to do so by the 911 operators.
● If the call is disconnected for any reason, immediately dial 911
again.
● The caller must be prepared to provide a physical address and a
callback telephone number to the 911 operators.
13. DISCLAIMER AND LIMITATION OF LIABILITY
13.1. GENERALLY. RALLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED,
STATUTORY OR ARISING FROM A COURSE OF DEALING OR
PERFORMANCE, WITH REPSECT TO THE SERVICES, EQUIPMENT, AND
ANY OTHER RALLY PRODUCTS, SERVICES OR EQUIPMENT PROVIDED
HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
PERFORMANCE IN A WORKMAN-LIKE MANNER, COMPLIANCE WITH
LAWS, QUALITY, ACCURACY, COMPLETENESS OR CURRENCY OF
INFORMATION, SYSTEM INTEGRABILITY, TITLE, QUIET ENJOYMENT AND
NON-INFRINGEMENT. RALLY DOES NOT REPRESENT, WARRANT OR
COVENANT THAT THE PRODUCTS, SERVICES OR EQUIPMENT PROVIDED
WILL OPERATE UNINTERRUPTED, ERROR FREE OR WITHOUT
DEGREDATION OR LOSS OF DATA, OR BE SECURE. IN NO EVENT WILL
RALLY OR ITS AFFILIATE, THIRD-PARTY SERVICE PROVIDER, FACILITY
OPERATOR OR CARRIER, OR THEIR RESPECTIVE OWNERS, DIRECTORS,
MANAGERS, OFFICERS, EMPLOYEES OR AGENTS (COLLECTIVELY, “RALLY
PARTIES”) BE LIABLE FOR ANY DIRECT, ACTUAL, INDIRECT,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR ANY OTHER DAMAGES, OR
FOR ANY COST OF COVER OR LOST PROFITS OF ANY KIND OR NATURE
WHATSOEVER, ARISING FROM OR RELATED TO THIS AGREEMENT OR AN
RALLY PARTY’S PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS
HEREUNDER, A FAILURE OF OR A DEFECT IN THE SERVICES,
EQUIPMENT OR ANY PRODUCT, AN RALLY PARTY’S VIOLATION OF A THIRD
PARTY’S RIGHT, OR AN RALLY PARTY’S ACTS OR OMISSIONS. RALLY WILL NOT
BE LIABLE FOR THE ACTS OR OMISSIONS OF, A FAILURE OR A DEFECT IN
ANY PRODUCT OR SERVICE PROVIDED BY, OR VIOLATION OF ANY THIRD
PARTY’S RIGHTS BY ANY THIRD-PARTY SERVICE PROVIDER, FACILITY
OPERATOR OR CARRIER. THE RALLY PARTIES’ MAXIMUM TOTAL LIABILITY
TO CUSTOMER WILL NOT EXCEED ONE MONTH’S RECURRING CHARGES
UNDER THE RELEVANT SERVICE ORDER.
13.2. EMERGENCY 911 SERVICES. IN ADDITION TO THE FOREGOING, IN NO
EVENT WILL ANY RALLY PARTY BE LIABLE FOR ANY CLAIM, DAMAGE, OR
LOSS RELATED TO 911 DIALING OR THE INABILITY TO REACH 911
EMERGENCY SERVICES, AND CUSTOMER HEREBY WAIVES AND
RELEASES ALL CLAIMS AND ACTIONS ARISING FROM OR RELATED TO
911 DIALING OR THE INABILITY TO REACH 911 EMERGENCY SERVICES.
CUSTOMER AGREES TO DEFEND AND INDEMNIFY THE RALLY PARTIES
FROM AND AGAINST ANY CLAIM OR ACTION, AND ANY AND ALL RELATED
LOSSES, DAMAGES, LIABILITIES, PENALTIES, SETTLEMENT
OBLIGATIONS, COSTS, ATTORNEYS’ FEES AND OTHER LEGAL
EXPENSES, RELATED TO 911 DIALING OR THE INABILITY TO REACH 911
EMERGENCY SERVICES.
14. INDEMNIFICATION
14.1. Indemnification by RALLY. RALLY will defend Customer, at its expense, against any
third-party claim or action, and indemnify Customer from any and all losses,
damages, liabilities, settlement obligations, costs, attorneys’ fees and other legal
expenses related to such third-party claim or action, for bodily injury, death or
property damage arising from RALLY’s gross negligence or willful misconduct.
Customer must: (a) promptly notify RALLY in writing of the claim or action; (b) allow
RALLY to control, and cooperate with RALLY in, the defense and any related settlement
negotiations; and (c) be and remain in compliance with this Agreement.
14.2. Indemnification by Customer. Customer will defend the RALLY Parties, at
Customer’s expense, against any third-party claim or action, and indemnify the
RALLY Parties from any and all losses, damages, liabilities, penalties, settlement
obligations, costs, attorneys’ fees and other legal expenses related to such
third-party claim or action, arising from or related to: (a) Customer’s breach of this
Agreement or an agreement between Customer and a third party; (b) Customer’s
violation, infringement or misappropriation of the third party’s intellectual property
or other rights in Customer’s use of the Services or Equipment; (c) Customer’s
violation of the third party’s privacy, publicity, personality or other rights; (d)
Customer’s fraud in use of the Services or Equipment or fraud or
misrepresentation regarding the nature or volume of Customer’s traffic; (e)
Customer’s violation of an applicable Law; (f) bodily injury, death or property
damage to the extent such claim or action arises from the negligence, gross
negligence or willful misconduct of Customer, or if strict liability applies; or (g)
Customer’s business, acts or omissions. Customer will not settle any claim or
action without RALLY’s prior written consent. RALLY will have the option, at its expense,
to participate in the defense or settlement of the claim or action with counsel of its
own choosing. If a conflict of interests arises or exists between the parties or if
RALLY has a good faith belief that its rights are being harmed by the counsel
selected by Customer, RALLY will have the right to retain separate counsel to
represent its interests at Customer’s sole cost and expense.
15. PRIVACY
The Services use the public Internet and third-party networks to transmit voice
communications and data. RALLY is not liable for the interception, use or disclosure
of Customer’s voice communications or data. RALLY does not represent, warrant or
covenant that the Services or Equipment will maintain the privacy or security of
Customer’s voice communications or data.
16. NOTICES
Any notice required or permitted to be given pursuant to this Agreement shall be
given in writing by overnight delivery service, sent via certified mail, return receipt
requested, emailed, or delivered by hand, and such notice shall be deemed to
have been given and received when delivered or when delivery was refused, or
with respect to electronic transmissions, at the time of transmission (unless the
sender received a notice of transmission failure). RALLY may send any notice to
Customer at Customer’s latest physical address or email address provided by
Customer. RALLY may, in addition to all other methods of giving notice, send any
notice to Customer’s mailbox in Customer’s account on the RALLY Customer Care
Portal. Customer must send all notices to the physical address, or email address
stated on RALLY’s web site (rallynet.us) as RALLY’s current contact
information.
17. FORCE MAJEURE
RALLY’s performance of any part of this Agreement shall be excused to the extent
that it is hindered by flood, fire, natural disaster, strike, riot, war, terrorism, hostile
attack, governmental action, cable cuts, supplier shortages, breaches, or delays,
or any other cause (whether similar or dissimilar to those listed) beyond RALLY’s
reasonable control (“Force Majeure”). RALLY may terminate the Services without
liability in the case a Force Majeure hinders RALLY’s performance for more than five
(5) days.
18. ENFORCEMENT
In the event a suit is brought or an attorney or collection agency is retained by
RALLY to enforce the terms of this Agreement or any Service Order, or to collect any
monies due hereunder, or to collect money damages for breach thereof, RALLY shall
be entitled to recover, in addition to any other remedy available at law or in
equity, reimbursement for reasonable attorneys’ fees, court costs, collection
costs, costs of investigation and other related expenses incurred in connection
therewith.
19. ENTIRE AGREEMENT
This Agreement, all documents referred to herein and any related Service Order
executed by the parties constitute the entire agreement between the parties and
supersede any and all prior agreements between the parties with respect to the
subject matter hereof. No additions, deletions or modifications to this Agreement
or any Service Order shall be binding unless (a) made in a writing signed by both
parties or (b) agreed to by the party to be charged by electronic means. In the
event of a conflict between any of the terms and conditions of this Agreement
and any Service Order, the terms and conditions in the Service Order shall
prevail.
20. NO CLASS ACTION
Customer irrevocably waives any right Customer may have to serve as a
representative or as a private attorney general, or to participate as a member of a
class of claimants, in any lawsuit, arbitration or other proceeding against any RALLY
Party arising from, related to or connected with this Agreement.
21. BINDING NATURE AND ASSIGNMENT
This Agreement and any related Service Orders shall be binding upon and inure
to the benefit of the parties hereto and their respective successors or assigns;
provided, however, that Customer shall not assign or transfer its rights or
obligations hereunder without the prior written consent of RALLY. RALLY may
subcontract all or any part of the Services provided and assign and transfer its
rights and obligations under this Agreement.
22. ELECTRONIC COMMUNICATIONS
Customer consents to receive all notices in electronic form. Both parties agree
that any agreements and notices made, accepted and/or given by one or both
parties in electronic form are as legally binding as if made in physical written
form.
23. ONLINE ACCOUNT RESPONSIBILITY
Customer is solely responsible for protecting the secrecy of its username and
password. Customer will be liable for any access and/or use of its account,
authorized or unauthorized, using Customer’s username and password.
Customer must notify RALLY immediately if it suspects unauthorized use of its
account.
24. INDEPENDENT CONTRACTORS
The parties are independent contractors. Nothing contained herein shall be
construed as creating any agency, partnership, or other form of joint venture or
enterprise between the parties.
25. GOVERNING LAW
This Agreement and any related Service Orders shall be governed by and
construed according to the laws of the State of Illinois, without regard to its
conflict of laws provisions.
26. LIMITATION ON CLAIMS
No cause of action may be asserted against either party more than one (1) year
after the time the facts giving rise to the cause of action are discovered or should
have been discovered.
27. ARBITRATION
Any dispute or controversy arising out of or in connection with this Agreement or
any related Service Order, or otherwise related to the Services or Equipment,
shall be resolved by binding arbitration. The Federal Arbitration Act and federal
arbitration law applies to this Agreement. The arbitration will be administered by
the American Arbitration Association (AAA), conducted by one (1) arbitrator, and
conducted in accordance with the AAA’s Commercial Arbitration Rules. The
arbitration shall be conducted in St. Louis, Missouri. The parties’ briefs and other
documents and the arbitrator’s findings and decision will be confidential unless
required to be disclosed by law. Neither party may use any finding or decision of
the arbitrator in existing or subsequent litigation or arbitration involving any other
person, entity or organization. The arbitrator must have sufficient experience in
the matter(s) at issue. The arbitrator’s decision shall follow the plain meaning of
the Agreement and shall be final and binding. Neither party shall have the right to
appeal an error of law or fact. Each party shall bear the cost of preparing and
presenting its case. The fees and expenses of the AAA, including the arbitrator,
shall be the responsibility of the non-prevailing party. Any claim or action to enter
or enforce the award shall be initiated in the state or federal courts for St. Louis,
Missouri. Notwithstanding the foregoing, either party may bring suit in court to
enjoin unauthorized access or trespass to its computer networks or any
misappropriation, infringement or violation of its intellectual property rights. The
arbitrator will have the exclusive power to rule on the formation, interpretation,
applicability, validity or enforceability of this Agreement, including without
limitation the validity or enforceability of this arbitration agreement. The arbitrator
will not have the power to conduct any form of class or collective arbitration nor
join or consolidate claims by or for individuals.
28. FORUM
If any dispute or controversy arising out of or in connection with this Agreement
or any related Service Order, or otherwise related to the Services or Equipment,
cannot lawfully be resolved by arbitration as described in Section 27, the
complainant must bring any claim or action in the state or federal courts for
Springfield, Illinois, and the parties waive any objection based on personal
jurisdiction, venue or forum non conveniens.
29. SEVERABILITY
If any provision(s) of this Agreement or any related Service Order shall be held to
be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby and the
parties further agree to substitute a valid provision that most closely
approximates the economic effect of the invalid provision.
30. WAIVER
The failure of either party to require performance by the other party of any
provision hereof shall not affect the full right to require such performance at any
time thereafter, nor shall the waiver by either party of a breach of any provision
hereof be taken or held to be a waiver of the provision itself.
31. CONSTRUCTION
To the extent permitted by applicable law, the parties agree to and do hereby
waive any applicable statutory and common law that may permit a court to
construe a contract against its drafter.
32. SURVIVAL
The terms and provisions contained in this Agreement and any related Service
Order that, by their sense and context, are intended to survive the performance
thereof by the parties hereto shall survive the completion of performance and
termination or cancellation, including, without limitation, the making of any and all
payments due hereunder.