1.3 Healthcare Customers and Resellers.
If Customer provides or resells DIDForSale Services to healthcare providers, Covered Entities, or Business Associates subject to the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), Customer is responsible for ensuring that its use and resale of the Services comply with applicable HIPAA requirements.
Customer shall be responsible for entering into appropriate Business Associate Agreements with its healthcare customers or other downstream parties where required by HIPAA.
Where DIDForSale acts as a subcontractor Business Associate to Customer, Customer and DIDForSale shall execute a separate Business Associate Agreement (“BAA”) before using the applicable Services to create, receive, maintain, or transmit Protected Health Information (“PHI”).
Only services expressly identified as Covered Services in the executed BAA may be used to process PHI. Customer shall not represent any service excluded under the BAA as HIPAA-covered or permit its downstream customers to use such Excluded Services to process PHI.
Customer remains responsible for ensuring that its End Users comply with applicable laws, including HIPAA, and for obtaining any required patient consents, notices, and authorizations.
Nothing in this section relieves DIDForSale of any obligation directly imposed on it by applicable law or an executed BAA.
ARTICLE 2: Sign-Up and Use of Services
2.1 Services Provided.
Cebod Technologies, doing business as DIDForSale (“DIDForSale”), provides telecommunications, voice, messaging, and related technology services (“Services”) to Customer.
Services may include, but are not limited to:
(a) Local, toll-free, and international telephone numbers, including Direct Inward Dialing (DID) services;
(b) SIP trunking, inbound and outbound voice calling, call origination, call termination, and related telecommunications services;
(c) SMS and MMS messaging services, including messaging APIs, message delivery, and related reporting;
(d) Voice APIs, messaging APIs, webhooks, and other programmatic interfaces used to access or manage DIDForSale Services;
(e) Call recording, call tracking, call detail records, usage reporting, and related features, where offered;
(f) Hosted PBX, cloud-based phone systems, white-label VoIP, and reseller services, where offered;
(g) Fax services and related functionality, where offered; and
(h) Any additional telecommunications, communication, or technology services made available by DIDForSale through its website, customer portal, service orders, or applicable service documentation.
The availability, pricing, features, technical requirements, and limitations of each Service shall be governed by the applicable service order, pricing schedule, service description, or other terms communicated by DIDForSale.
DIDForSale may use third-party telecommunications carriers, infrastructure providers, and technology vendors to deliver the Services.
The inclusion of a Service in this Agreement does not constitute a representation that such Service is compliant with HIPAA or approved for the processing of Protected Health Information (“PHI”). Where a Business Associate Agreement (“BAA”) applies, only the services expressly identified as Covered Services in the executed BAA may be used to process PHI.
Customer is responsible for using the Services in compliance with applicable laws, regulations, and the terms of this Agreement.
2.2 Opening an Account. In order to become a DIDForSale customer, you must complete in full an application form on the Website.
Once you have been accepted as a DIDForSale customer, we will send you an electronic mail message (“e-mail”) that confirms that you have become a DIDForSale customer and provides you with information concerning your DIDForSale account (your “Account”).
Upon approval of Customer’s application, DIDForSale may provide account activation instructions and access credentials through email, the customer portal, or another secure method designated by DIDForSale.
DIDForSale may require Customer to establish a password, enable additional authentication measures, or complete identity or account verification procedures before accessing the Services.
Access to specific features, including calling card functionality, where available, shall be subject to the Services purchased by Customer and the applicable service terms. DIDForSale does not guarantee the availability of any particular feature unless expressly included in Customer’s purchased Services.
Please note that we may deny your application and refuse to provide you with the Services if your credit is not deemed satisfactory or for any other lawful reason, which determination shall be made at our sole discretion. In addition, we may accept your application for Services but set a credit limit based on your payment history or your credit score from consumer credit reporting agencies. If we do this, we will notify you of your initial credit limit but we reserve the right to adjust your credit limit at any time. If you exceed your credit limit, we may restrict your access to the Services and also require you to make payment towards outstanding balance on your account.
2.3 Usernames/Passwords/Personal Identification Numbers. YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR ACCOUNT LOGIN AND PASSWORD, AND YOU AGREE TO PAY FOR ALL SERVICES CHARGED TO YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH USE. If you believe that your Account and/or PIN is being used in an unauthorized manner, you agree to contact us immediately so that the appropriate modifications can be made to your Account. Please be aware that your Account information will be sent to the e-mail address that you entered on the application when you applied to become a DIDForSale customer. You are responsible for maintaining a current, operational and secure e-mail address and for reading e-mail from us so that we can notify you of updates to our Services and provide information concerning your Account. We are not responsible if others can access that email account and obtain your Account information. Please note also that you are responsible for any and all charges to your account and that we cannot be held responsible for fraudulent charges that result from theft or fraudulent use of your credit/debit/charge card or PIN.
2.4 Account and API Security.
Customer is responsible for maintaining the security and confidentiality of all account credentials, including usernames, passwords, SIP credentials, API keys, authentication tokens, and other access credentials used to access DIDForSale Services.
Customer shall take reasonable measures to protect its accounts, systems, applications, devices, API integrations, and webhook endpoints against unauthorized access, misuse, or disclosure.
Customer is responsible for managing access permissions granted to its employees, contractors, resellers, and other authorized users and for promptly disabling access when it is no longer required.
Customer shall promptly notify DIDForSale upon becoming aware of any actual or suspected unauthorized access, compromised credentials, or misuse of its account or Services.
DIDForSale may temporarily suspend, restrict, or disable affected credentials, API access, or Services when reasonably necessary to prevent fraud, unauthorized access, security threats, or harm to DIDForSale’s network or other customers.
Customer is responsible for activity and charges originating from its accounts, credentials, systems, or integrations, except to the extent directly caused by DIDForSale’s breach of this Agreement or applicable law.
Nothing in this section limits DIDForSale’s obligations under an applicable Business Associate Agreement or applicable law.
ARTICLE 3 BILLING AND PAYMENT
3.1 Except as set forth in Section 2.2, Customer shall pay the recurring and non recurring rates and charges and the usage charges set forth herein and/or in the Service Orders beginning on the Start of Service Date without deduction, setoff or delay for any reason. Customer agrees to pay for the Services, by credit card, paypal, or by check sent to the address provided for herein or on the invoice or by wire transfer sent in accordance with applicable instructions provided by DIDForSale, within thirty (30) days from the date of the invoice (“Payment Period”). Restrictive endorsements or statements on checks accepted by DIDForSale will not be binding upon DIDForSale. Monthly recurring charges are billed in advance while usage and related charges are billed in arrears. The Parties shall provide one another with reasonably requested information for bill validation including, but not limited to, the number of Circuits and charges for each Service.
3.2 Except for amounts in dispute, interest not to exceed 1.5% monthly may be charged on the unpaid balance not paid within the Payment Period. If the interest rate set out above exceeds the maximum rate allowable by law, then the interest chargeable shall be equal to the maximum rate allowed by law. Customer agrees to reimburse DIDForSale for any costs incurred as a result of any collection activity, including without limitation reasonable attorneys’ fees and court costs, unless otherwise prohibited by law. Customer authorizes DIDForSale to request information from a reporting agency to enable DIDForSale to assess Customer’s credit history. Customer agrees that such action is not the extension of “credit” to Customer and further agrees that DIDForSale, in its sole discretion, may alter any billing arrangements as a result of such report or upon determination of a change in Customer’s financial circumstances. Customer agrees that as a condition of initial or continued Service, it must provide financial statements to DIDForSale’s Credit Department within ten (10) days of receiving a request for such statements from DIDForSale or Service, if already installed, may be suspended or terminated, At any time during and upon two (2) business days written notice, DIDForSale may require Customer to wire transfer a deposit or submit another form of security acceptable to DIDForSale if it reasonably deems itself insecure with respect to Customer’s ability to pay (e.g. if Customer has failed to pay any invoice when due, or if there is a material change in circumstances of Customer’s actual or anticipated usage hereunder or Customer’s financial condition). Failure by Customer to comply with such requirement by DIDForSale may result in Service suspension or termination.
3.3 If Customer disputes any invoice, Customer shall notify DIDForSale’s Credit Department in writing, providing the billing identification, Circuit number, any trouble ticket number and an explanation for the dispute, and shall nevertheless pay the affected invoice within the Payment Period, provided that Customer may withhold payment of the amount in good faith dispute up to twenty percent (20%) of the invoiced charges. DIDForSale will investigate the dispute and in its discretion exercised in good faith, may require additional supporting documentation or reject Customer’s claim as inadequate. No charges may be disputed more than sixty (60) days after the date such charges are invoiced, and if not disputed within that time, all such charges shall be deemed valid and undisputed by Customer. Payment shall not prejudice Customer’s right to dispute charges, so long as they are disputed in good faith in the manner and within the timeframes specified in this Section. The Parties will cooperate in good faith to resolve any such disputes within a thirty (30) day period after the dispute is submitted to DIDForSale. If the dispute is not resolved during this period, then either Party may seek resolution of the dispute in accordance with Article 14 (Dispute Resolution).
3.4 If a disputed amount is determined by DIDForSale to be a legitimate charge, interest not to exceed 1.5% monthly may be charged on the balance not paid within the original Payment Period and Customer will make payment of the amount due within five (5) business days of such determination. If the interest rate set out above exceeds the maximum rate allowable by law, then the interest chargeable shall be equal to the maximum rate allowed by law.
3.5 If Customer does not make payment of all invoiced charges in accordance with the provisions herein within the Payment Period, DIDForSale may, at its option and without notice (i) refuse to accept additional Service Orders; (ii) suspend any and all Service provided by DIDForSale under this Agreement and/or any other service agreement until Customer has paid all past due amounts (including interest); (iii) offset such unpaid balances from any amounts that DIDForSale owes to Customer under any other agreement between the parties; and/or (iv) require weekly payments or a surety of up to two (2) times Customer’s aggregrate monthly invoicing and failure by Customer to comply with such requirement by DIDForSale may result in Service suspension. Following suspension of Services for non payment, DIDForSale is not required to reinstate Services to Customer until: (1) Customer has paid in full all charges then due, including any late fees, interest charges, collection costs and any cost of reinstating Services; and (2) Customer provides to DIDForSale satisfactory assurance as requested by DIDForSale (such as a deposit) of Customer’s ability to pay for Services for the remainder of the applicable Service term(s). If Customer fails to timely cure the non payment within the timeframe specified by DIDForSale, Customer will be deemed to have terminated the affected Services as of the effective date of Service suspension, Termination hereunder for non payment shall be treated as termination for convenience by Customer subject to early termination charges as set out in the applicable Exhibit. If Customer has not paid an invoice within the Payment Period and DIDForSale owes any amounts to Customer, DIDForSale may offset respective payments by first applying such amounts owed by DIDForSale to the full balance due from Customer and the remaining amounts owed by DIDForSale, if any, will be remitted in the normal course of business.
3.6 When Service is initiated on a day other than the first day of the month or terminates on a day other than the last day of the month, any monthly recurring charges for that month shall be prorated accordingly.
3.7 Notwithstanding anything contained herein to the contrary, if DIDForSale is required to construct and/or acquire telecommunications facilities in order to provide Service to Customer, Customer acknowledges and agrees that DIDForSale therefore incurs significant costs and expenses in provisioning such Service to Customer, including but not limited to costs associated with constructing and/or acquiring the telecommunications facilities necessary for delivery of DIDForSale Services to Customer. In addition to any other rights and remedies DIDForSale may have at law, in equity or as provided herein, Customer agrees that if Customer cancels this Agreement or any individual Service Order after signature but prior to the Start Of Service Date, or if Customer terminates this Agreement or any individual Service Order prior to expiration of the committed Service term, Customer shall reimburse DIDForSale for all costs and expenses DIDForSale incurred in constructing and/or acquiring such telecommunications facilities.
ARTICLE 4 TAXES
4.1 The rates, pricing and charges for Services set forth herein or in any Service Order do not include applicable taxes and surcharges. Customer shall be responsible for and shall pay any taxes, arising in any jurisdiction, including without limitation, sales, use, excise, gross receipts, value added, access, bypass, franchise, telecommunications, consumption, or other taxes, fees, duties, charges or surcharges; however designated, imposed on or based on the provision, sale or use of the Services, including taxes or surcharges imposed directly on DIDForSale. If Customer believes it or the Services is exempt from any tax, Customer will provide DIDForSale with a properly executed exemption certificate evidencing such claimed exemption. In no case shall Customer be responsible for any income taxes levied upon DIDForSale’s (or any underlying carriers) net income. Customer agrees that its obligation to pay taxes and surcharges under this Section shall survive the expiration or early termination of the Agreement.
ARTICLE 5 TERM AND RENEWAL OPTIONS
5.1 The term of this Agreement shall commence on the Effective Date of this Agreement, and shall terminate six (6) months thereafter. Thereafter, this Agreement shall be automatically renewed in successive one month periods unless terminated by written notice by one of the Parties at least sixty (60) days prior to the end of the initial term or any renewal period; provided, however, that if the period of time set out in the applicable Service Order for a particular Service(s) extends beyond the effective date of termination of this Agreement, such Service(s) shall remain in effect for such agreed upon time period, subject to this Agreement as if it were still in effect with respect to such Service(s). If Customer wishes to terminate a Service or Circuit(s) for any reason, or not to renew such Service or Circuit(s), Customer shall provide DIDForSale with written notice (“Termination Notice”) addressed to DIDForSale at such location, as DIDForSale shall specify from time to time. Such Termination Notice must specify all necessary identifying details about the Service or Circuit being terminated (e.g., Circuit Identification number) and the requested effective date of such termination (which date must not be less than sixty (60) days from the date notice is received by DIDForSale). Termination of Service/Circuit(s) by any form of communications or means other than as provided above shall not be effective and Customer shall remain obligated to DIDForSale for all Services/Circuit(s) rendered. For the avoidance of doubt, Customer may be liable for early termination charges upon termination of Service/Circuit(s) as further provided in the applicable Service Exhibit attached hereto.
If Customer disconnects any DID within the first six (6) months of service, a disconnect charge of $10 per DID shall apply.
For United States and Canadian telephone numbers, if Customer ports out a number within the first six (6) months of service, an additional port-out charge of $50 per number shall apply. For international telephone numbers, a port-out charge of $100 per number shall apply, subject to applicable law.
Customer shall remain responsible for all applicable port-out charges, early termination charges, outstanding service fees, and other amounts due under this Agreement.
DIDForSale reserves the right to invoice and collect all legally permissible charges, including through applicable collection procedures, regardless of whether Customer’s telephone numbers have been ported to another provider.
DIDForSale will process valid number-portability requests in accordance with applicable laws and regulatory requirements. No provision of this Agreement shall require DIDForSale to reject or delay a valid port-out request solely because Customer has an outstanding balance or has not prepaid a port-out or early termination charge.
Port-out requests remain subject to applicable authorization, validation, technical, and regulatory requirements.
ARTICLE 6 WARRANTIES AND NETWORK STANDARDS
6.1 Each Party represents and warrants to the other Party that it is an entity, duly organized, validly existing and in good standing under the laws of the place of its origin, with all requisite power and authority to enter into and perform its obligations under this Agreement in accordance with its terms.
6.2 Customer represents and warrants that (i) all services rendered by it to its End Users shall be designed, produced, installed, furnished and in all respects provided and maintained in conformance and compliance with applicable federal, state and local laws, administrative and regulatory requirements and any other authorities having jurisdiction over the subject matter of the Customer provided services, and (ii) it has all licenses, approvals, registrations and certifications (collectively, “Approvals”) which may be required by the applicable regulatory authorities for its operation and the provision of any services to its End Users and it shall be solely responsible for applying for, obtaining and maintaining all such Approvals.
6.3 The warranties and remedies set forth in this Agreement constitute the only warranties and exclusive remedies with respect to this Agreement. SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, NON INTERFERENCE AND NON INFRINGEMENT.
ARTICLE 7 . DEFAULT
7.1 A Party shall be deemed in “Default” of this Agreement upon the occurrence of any one or more of the following events:
(i) a Party violates any applicable laws, statutes, ordinances, codes or other legal requirements with respect to the Services and such violation(s) are not remedied within thirty (30) days after written notice thereof; or
(ii) a Party fails to perform any of its material obligations under this Agreement and such nonperformance is not remedied within thirty (30) days after notice thereof or such other cure period as may be specified in the applicable Exhibit, except for payment defaults, which shall be governed by the applicable payment, suspension, and termination provisions of Article 3 of this Agreement; provided, however, if Customer is entitled to outage credits pursuant to the applicable Service Exhibit attached hereto or other remedies set out in this Agreement for such nonperformance by DIDForSale, then such outage credits or other remedies shall be Customer’s exclusive remedy and such nonperformance shall not be construed to be a Default under this Section 7. 1.
7.2 In addition to all remedies available at law or in equity, the non defaulting Party hereunder may terminate this Agreement, including, for the avoidance of doubt, its Exhibits, and/or related Service Orders, in whole or in part, upon the occurrence of a Default.
ARTICLE 8 CONFIDENTIAL INFORMATION
8.1 Confidential Information.
Each Party agrees to protect the other Party’s confidential and proprietary information disclosed or made available in connection with the Services (“Confidential Information”).
Confidential Information includes, but is not limited to, non-public business information, pricing, customer information, account credentials, technical documentation, network configurations, API keys, service information, and other information that is identified as confidential or should reasonably be understood to be confidential.
Each Party shall use reasonable care to protect the other Party’s Confidential Information, but no less than the degree of care it uses to protect its own similar confidential information.
Neither Party shall disclose the other Party’s Confidential Information to any third party except to its employees, contractors, agents, affiliates, or service providers who have a legitimate need to know such information and are subject to appropriate confidentiality obligations.
Confidential Information may be used only as reasonably necessary to perform obligations or exercise rights under this Agreement, or as otherwise authorized in writing by the disclosing Party.
Confidential Information does not include information that:
(a) is publicly available through no breach of this Agreement;
(b) was lawfully known to the receiving Party without confidentiality restrictions;
(c) is lawfully received from a third party without confidentiality restrictions; or
(d) is independently developed without using the disclosing Party’s Confidential Information.
A Party may disclose Confidential Information when required by applicable law, regulation, or legal process, provided that it gives the other Party reasonable advance notice where legally permitted.
The obligations under this Section shall survive termination or expiration of this Agreement for three (3) years, except that trade secrets shall remain protected for as long as they qualify as trade secrets under applicable law.
If the Parties execute a separate Nondisclosure Agreement (“NDA”), that NDA shall supplement this Section. In the event of a conflict, the separately executed NDA shall control with respect to the Confidential Information covered by that NDA, except where an applicable Business Associate Agreement (“BAA”) or mandatory law requires otherwise.
Where Confidential Information includes Protected Health Information (“PHI”), the applicable BAA and HIPAA requirements shall control with respect to the use, disclosure, and safeguarding of such PHI.
8.2 HIPAA and Business Associate Agreement.
If Customer is a Covered Entity or Business Associate under the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), and uses the Services in a manner that requires DIDForSale to act as a Business Associate or subcontractor Business Associate, the parties shall execute a separate Business Associate Agreement (“BAA”) before using the applicable Services to create, receive, maintain, or transmit Protected Health Information (“PHI”).
Only the services expressly identified as Covered Services in the executed BAA are covered by that BAA. Customer shall not use any service excluded under the BAA to create, receive, maintain, transmit, store, or process PHI.
The BAA shall be incorporated into and form part of this Agreement. In the event of a conflict between the BAA and this Agreement concerning the use, disclosure, safeguarding, or handling of PHI, the BAA shall control solely with respect to the applicable HIPAA obligation.
Except as expressly modified by the BAA or prohibited by applicable law, all other terms of this Agreement shall remain in full force and effect, including limitations of liability, indemnification, warranty disclaimers, service limitations, and dispute resolution provisions.
ARTICLE 9 . EMERGENCY CALLING SERVICE (911 Service)
9.1 Emergency Calling Service (911 Service).
DIDForSale provides access to emergency calling services, including 911 and Enhanced 911 (E911), where supported and enabled for the applicable Services.
Emergency calling functionality may depend on the Service purchased, telephone number configuration, registered emergency service location, network availability, and the capabilities of DIDForSale’s underlying telecommunications carriers and emergency service providers.
Customer acknowledges that emergency calling through Voice over Internet Protocol (VoIP) and SIP-based services may differ from traditional telephone services. Depending on the applicable configuration and network capabilities, emergency calls may be routed to a public safety answering point (PSAP), emergency communications center, or other authorized emergency service provider.
Customer acknowledges that emergency calling functionality may be affected by power failures, internet connectivity problems, network outages, incorrect emergency location information, or other conditions beyond DIDForSale’s reasonable control.
Customer is responsible for purchasing and activating emergency calling functionality where required for its intended use, providing accurate and current emergency location information, and following DIDForSale’s applicable activation and configuration procedures.
Where Customer provides or resells Services to End Users, Customer shall be responsible for informing its End Users of applicable emergency calling limitations and ensuring that emergency service information submitted by Customer is accurate and current.
DIDForSale may rely on third-party carriers, emergency service providers, and routing systems to facilitate emergency calls.
Customer authorizes DIDForSale to disclose Customer and End User telephone numbers, registered emergency service locations, and other information reasonably necessary to provide emergency calling services to authorized emergency service providers.
Nothing in this Section limits or excludes any emergency calling obligation directly imposed on DIDForSale by applicable law.
9.2 Notification of End Users.
Customer is responsible for informing its employees, users, customers, resellers, and End Users of the limitations and differences between DIDForSale’s 911 Dialing Service and traditional emergency calling services.
If Customer resells or provides DIDForSale Services to third parties, Customer shall be responsible for providing all applicable 911 disclosures, warnings, instructions, and notices to its End Users, including any notices required by applicable law.
Customer shall ensure that its End Users are informed of the importance of maintaining accurate registered emergency service addresses, updating location information when devices are moved, and understanding that 911 Dialing may be unavailable or limited during power failures, internet outages, service interruptions, or other circumstances described in this Agreement.
Customer shall comply with all applicable emergency calling notification requirements, including any applicable requirements concerning warning labels, customer acknowledgments, and disclosures.
Customer shall be responsible for ensuring that its downstream resellers and service providers communicate applicable 911 limitations to their respective End Users.
Nothing in this Section relieves DIDForSale of any emergency calling obligation directly imposed on it by applicable law.
9.3 Registration and Maintenance of Emergency Service Location.
Customer is responsible for providing and maintaining accurate, complete, and current emergency service location information for each telephone number, device, user, or endpoint, as applicable to the Services and supported emergency calling configuration.
Customer shall promptly update its registered emergency service location information whenever a telephone number, device, user, or endpoint is moved or assigned to a different physical location.
If Customer provides or resells Services to End Users, Customer shall be responsible for collecting, maintaining, and submitting accurate emergency service location information for its End Users and ensuring that such information is updated when necessary.
Customer acknowledges that failure to provide or maintain accurate emergency location information may result in emergency calls being routed incorrectly or emergency responders receiving inaccurate or incomplete location information.
Customer is responsible for providing accurate location details, including street address, suite, floor, room, or other information necessary to identify the caller’s location, where applicable.
Customer shall use the location registration and update methods made available by DIDForSale and comply with all applicable emergency calling location requirements.
DIDForSale shall provide emergency calling and location functionality in accordance with its applicable regulatory obligations and the capabilities of the Services purchased by Customer.
Nothing in this Section relieves DIDForSale of any obligation directly imposed upon it by applicable law.
9.4 Confirmation of Activation Required.
Your 911 Dialing feature will not be activated for any phone line that you are using with the Service, unless and until you receive an email from us confirming that the 911 Dialing feature has been activated for that phone line.
9.5 Service Outages.
(a) Service Outages Due to Power Failure or Disruption. 911 Dialing does not function in the event of a power failure or disruption. If there is an interruption in the power supply, the Service, including 911 Dialing, will not function until power is restored. Following a power failure or disruption, you may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing.
(b) Service Outages Due to Internet Outage or Suspension or Disconnection of Broadband Service or ISP Service. Service outages or suspensions or disconnections of service by your broadband provider or ISP will prevent all Service, including 911 Dialing, from functioning.
(c) Service Outage Due to Disconnection of Your DIDforSale Account. Service outages due to disconnection of your account will prevent all Service, including 911 Dialing, from functioning.
(d) Service Outages Due to ISP or Broadband Provider Blocking of Ports or Other Acts. Your ISP or broadband provider or other third party may intentionally or inadvertently block the ports over which the Service is provided or otherwise impede the usage of the Service. In that event, provided that you alert us to this situation, we will attempt to work with you to resolve the issue. During the period that the ports are being blocked or your Service is impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Service, including the 911 Dialing feature, may not function. You acknowledge that DIDforSale is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Service, and any loss of service, including 911 Dialing, which may result. In the event you lose service as a result of blocking of ports or any other impediment to your usage of the Service, you will continue to be responsible for payment of the Service charges unless and until you disconnect the Service in accordance with this Agreement.
(e) Other Service Outages. If there is a Service outage for any reason, such outage will prevent all Service, including 911 Dialing, from functioning. Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
9.6 Re-Activation Required if You Change Your Number or Add or Port New Numbers.
911 Dialing does not function if you change your phone number or if you add or port new phone numbers to your account, unless and until you successfully register your location of use for each changed, newly added or newly ported phone number.
9.7 Network Congestion; Reduced Speed for Routing or Answering 911 Dialing Calls.
There may be a greater possibility of network congestion and/or reduced speed in the routing of a 911 Dialing call made utilizing the Service as compared to traditional 911 dialing over traditional public telephone networks.
9.8 Disclaimer of Liability and Indemnification.
We do not have any control over whether, or the manner in which, calls using our 911 Dialing service are answered or addressed by any local emergency response center. We disclaim any and all responsibility for the conduct of local emergency response centers and the national emergency calling center. We rely on third parties to assist us in routing 911 Dialing calls to local emergency response centers and to a national emergency calling center. We disclaim any and all liability or responsibility in the event such third party data used to route calls is incorrect or yields an erroneous result. Neither DIDforSale nor its officers or employees may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action arising from or relating to our 911 Dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless DIDforSale, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, attorneys fees) by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service, including 911 Dialing, incorrectly routed 911 Dialing calls, and/or the inability of any user of the Service to be able to use 911 Dialing or access emergency service personnel.
9.9 Alternate Emergency Calling Arrangements.
Customer acknowledges that DIDForSale’s emergency calling services may have limitations as described in this Agreement.
Customer is responsible for determining whether the emergency calling functionality available through the Services is appropriate for Customer’s intended use and for maintaining alternative means of accessing emergency services when reasonably necessary.
If Customer provides or resells Services to End Users, Customer shall be responsible for communicating applicable emergency calling limitations and advising its End Users regarding the availability and importance of alternative emergency calling arrangements, as required by applicable law.
Nothing in this Section limits or excludes any emergency calling obligation directly imposed on DIDForSale by applicable law.
ARTICLE 10 . INDEMNIFICATION
10.1. Indemnity. YOU AGREE THAT WE WILL NOT BE RESPONSIBLE FOR ANY CLAIM BY THIRD PARTIES AGAINST EITHER OF US ARISING FROM YOUR USE OF THE SERVICES OR THE WEBSITE. IN ADDITION, YOU AGREE TO REIMBURSE US FOR ALL COSTS AND EXPENSES, INCLUDING ATTORNEYS. FEES, RELATED TO THE DEFENSE OF ANY SUCH CLAIM AGAINST US, UNLESS SUCH CLAIMS ARE BASED ON OUR INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE.
10.2.EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, DIDFORSALE’S TOTAL LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY APPLICABLE BUSINESS ASSOCIATE AGREEMENT, SHALL BE SUBJECT TO THE LIMITATIONS, EXCLUSIONS, DISCLAIMERS, AND REMEDIES SET FORTH IN ARTICLE 11.
WITHOUT LIMITING ARTICLE 11, DIDFORSALE SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF DATA, OR INCREASED COSTS OF OPERATION, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR DIDFORSALE WAS ADVISED OF THEIR POSSIBILITY, EXCEPT TO THE EXTENT SUCH EXCLUSION IS PROHIBITED BY APPLICABLE LAW.
DIDFORSALE SHALL NOT BE LIABLE FOR DAMAGES ARISING FROM CUSTOMER’S INABILITY OR DIFFICULTY IN ACCESSING THE SERVICES THROUGH TOLL-FREE OR LOCAL ACCESS NUMBERS, EXCEPT TO THE EXTENT SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW. DIDFORSALE SHALL NOT BE RESPONSIBLE FOR TOLL CHARGES INCURRED BY CUSTOMER IN USING LOCAL ACCESS NUMBERS, EXCEPT AS REQUIRED BY APPLICABLE LAW.
THE PROVISIONS OF THIS SECTION 10.2 SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
10.3 No Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WE DO NOT MAKE ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND DISCLAIM ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TECHNICAL COMPATIBILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO ANY SERVICE, PRODUCTS OR MATERIAL PROVIDED FOR PURSUANT TO THIS AGREEMENT. WE ALSO MAKE NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. WE DO NOT AUTHORIZE ANYONE, INCLUDING OUR EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.
ARTICLE 11 LIMITATION OF LIABILITY
11.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, RELIANCE, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF GOODWILL, LOSS OF USE OF PROPERTY, LOSS OF DATA, COSTS OF SUBSTITUTE EQUIPMENT OR SERVICES, DOWNTIME COSTS, OR OTHER BUSINESS LOSSES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR EITHER PARTY WAS ADVISED OF THEIR POSSIBILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY OUT-OF-POCKET COSTS OR DAMAGES INCURRED BY A PARTY AS A RESULT OF CLAIMS BROUGHT BY THIRD PARTIES SHALL BE TREATED AS INDIRECT DAMAGES AND SHALL NOT BE RECOVERABLE FROM THE OTHER PARTY, EXCEPT TO THE EXTENT EXPRESSLY COVERED BY AN APPLICABLE INDEMNIFICATION OBLIGATION UNDER THIS AGREEMENT.
CUSTOMER ACKNOWLEDGES AND AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY FOR SERVICE OUTAGES, INTERRUPTIONS, PERFORMANCE FAILURES, OR OTHER SERVICE DEFICIENCIES SHALL BE THE SERVICE CREDITS, IF ANY, EXPRESSLY PROVIDED UNDER THIS AGREEMENT OR THE APPLICABLE SERVICE EXHIBIT, EXCEPT TO THE EXTENT OTHERWISE REQUIRED BY APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DIDFORSALE’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY SERVICE ORDER, EXHIBIT, OR APPLICABLE BUSINESS ASSOCIATE AGREEMENT, SHALL NOT EXCEED THE LESSER OF: (A) THE DIRECT DAMAGES ACTUALLY PROVEN BY CUSTOMER; OR (B) THE TOTAL FEES PAID BY CUSTOMER TO DIDFORSALE FOR THE SPECIFIC SERVICE GIVING RISE TO THE CLAIM DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
THE FOREGOING LIMITATIONS AND EXCLUSIONS SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE, OR OTHERWISE, EXCEPT TO THE EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PROHIBITED BY APPLICABLE LAW.
CUSTOMER ACKNOWLEDGES THAT THE PRICING OF THE SERVICES REFLECTS THE ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.
THE PROVISIONS OF THIS SECTION SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
11.2 Relationship to Business Associate Agreement.
Where Customer and DIDForSale have executed a Business Associate Agreement (“BAA”), all liability arising out of or relating to the BAA, including any alleged breach of the BAA, shall be subject to the exclusions, disclaimers, and limitations of liability contained in this Agreement, except to the extent prohibited by applicable law or expressly agreed otherwise in writing by DIDForSale.
Nothing in the BAA shall be interpreted to create any separate or additional indemnification obligation, unlimited liability obligation, consequential damages obligation, regulatory fine or penalty reimbursement obligation, credit-monitoring obligation, or other financial obligation beyond those expressly provided in this Agreement, unless otherwise agreed in writing by DIDForSale.
The BAA shall control solely with respect to applicable HIPAA obligations concerning the use, disclosure, safeguarding, and handling of Protected Health Information (“PHI”). Nothing in this Section limits any obligation directly imposed on either Party by applicable law.
ARTICLE 12 .RATES AND REGULATIONS
12.1 The rates set forth in this Agreement are subject to the imposition of new regulation, modification of existing regulation, new interpretation, application or enforcement of, or exercise of authority related to, any regulation or finding of any federal, state, and/or local regulatory agency, legislative body, or court of competent jurisdiction, including, without limitation, the imposition of any charges, surcharges, and/or taxes in reliance or as a result of the same (collectively, “Regulatory Activity”). Company reserves the right, at any time, (i) to pass through to Customer all, or a portion of, any charges, surcharges, or taxes directly or indirectly related to such Regulatory Activity; and/or (ii) modify the rates and/or other terms and conditions of this Agreement to reflect the impact of such Regulatory Activity, including, without limitation, the impact of any actions by third parties in connection with such Regulatory Activity.
Cebod Technologies reserves the right to modify the rates and charges for the services provided by giving at least 7 days notice to the customer. In the event Cebod Technologies increases the rates, the customer may cancel this agreement without incurring any cancellation charges.
12.2 Customer represents and warrants that all traffic being delivered by Customer or its End Users or agents to DIDForSale for local termination, and all traffic that DIDForSale delivers to Customer or its End Users or agents that has originated in the same local calling area in which Customer’s NPA NXX is assigned and/or in which such traffic is terminated to Customer or its End Users or agents, is local traffic or is legally entitled to be treated as local traffic under all applicable federal, state and local laws, administrative and regulatory requirements and any other authorities having jurisdiction over such traffic. Customer understands that DIDForSale will rely upon such representation to assign local telephone numbers to Customer and/or route Customer’s traffic for termination as local calling. Customer represents and warrants that Customer has paid, or shall promptly pay to DIDForSale, all switched access and other charges associated with any of Customer’s traffic that is delivered pursuant to this Agreement. Customer also represents and warrants that neither it nor any of its end users or agents will remove or in any way alter Automatic Number Identification (“ANI”) or Calling Party Number (“CPN”) information associated with any traffic delivered pursuant to this Agreement. Customer agrees to cooperate with DIDForSale to obtain or verify any necessary regulatory certification or other information regarding the nature of its traffic and/or use of facilities.
12.3 Customer shall promptly pay to DIDForSale all access charges, reciprocal compensation, and/or any other charges, surcharges and/or taxes billed to DIDForSale by a third party, or remitted by DIDForSale to a third party, that are associated with any of Customer’s traffic delivered or facilities utilized pursuant to this Agreement, including but not limited to any retroactive charges, (collectively, “Additional Charges”) and that are not already reflected in the rates charged by DIDForSale for the Services rendered pursuant to this Agreement. Although DIDForSale shall not have any obligation to challenge any Additional Charges levied by a third party, if DIDForSale successfully challenges imposition of any Additional Charges by a third party, it will refund to Customer any Additional Charges previously paid by Customer to DIDForSale that were subject to such successful challenge. Within two (2) billing cycles of any rate increase resulting from Additional Charges, Customer may, upon providing written notice to DIDForSale, elect to transition only the Services directly affected by such increase to another carrier. Any such transition must be completed within thirty (30) calendar days after DIDForSale receives Customer’s written notice, subject to applicable law and regulatory requirements. Notwithstanding any other provision of this Agreement, if, within the designated two (2) billing cycle period, Customer does not provide written notice to DIDForSale of its election to transition the affected Services to another carrier, Customer shall be deemed to have waived its right to such election. Even if Customer elects to transition the affected Services to another carrier, Customer shall still be responsible for paying any and all Additional Charges billed to or remitted by DIDForSale up to and including the final transition date. The parties agree to cooperate on the scheduling of any such transition.
12.4 Customer agrees that, if DIDForSale is subjected to a third party audit relating to Customer’s traffic or use of facilities which is the subject of this Agreement, Customer will cooperate and assist in any such audit. Customer further agrees that it will protect, defend, indemnify and hold harmless DIDForSale, its subsidiaries, affiliates, officers, directors and employees from any and all costs resulting from or related to such third party action.
12.5 Customer understand that some of DIDForSale’s plans and other Services are offered on an “unlimited” basis. All unlimited plans:
- May only be used for normal business use.
- Are provided only for dialog between two individuals at one time per line.
- Exclude international calling, which is available for an additional fee.
- 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.
Unlimited plans also may not be used for any of the following prohibited uses (which are in addition to the other prohibited uses applicable to all Services):
- Trunking or forwarding your DIDForSale number to (an)other phone number(s) capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system.
- Spamming or blasting.
- Bulk call-in lines (e.g., customer support or sales call centers, “hotlines”, 900 numbers, sports-line numbers, etc.).
- 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).
12.6 Storage of the Customer Records, Logs and Data
DIDForSale is not obligated to store Your communications logs, voicemails, faxes, e-mails, or other messages and does so only as a convenience to You. You agree that DIDForSale has no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, e- mails, messages, and/or other communications maintained or transmitted by the Services. You acknowledge and agree that DIDForSale may establish limits as to the size of communications that DIDForSale transmits or stores and the duration for which DIDForSale stores any communications.
Where Customer and DIDForSale have executed a Business Associate Agreement (“BAA”), the provisions of this Section 12.6 shall remain applicable to the maximum extent permitted by law, subject only to the specific obligations concerning Protected Health Information (“PHI”) expressly required under the BAA and applicable law.
Nothing in the BAA shall require DIDForSale to provide additional data storage, backup, recovery, archiving, or retention services beyond those included in the Services purchased by Customer, except as expressly agreed in writing or required by applicable law.
12.7 Call Recording Limits
Certain DIDForSale Services provide a function that allows You to record individual telephone conversations. The laws regarding the notice, notification, and consent requirements for recording conversations vary from state to state. In some states, You are required to obtain consent from all parties to a record a conversation. You are solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using this feature. DIDForSale expressly disclaims all liability with respect to your recording of telephone conversations. You hereby agree to fully, finally, and forever release, discharge, hold harmless, and fully indemnify DIDForSale from and against any damages or liabilities of any kind related to Your recording of any telephone conversations using the Services. If the recording service is used and the call is recorded, DIDForSale keeps the recording for 30 days for free. To maintain the disk space on the platform, DIDForSale reserves the right to delete recordings older than 30 days, unless a different term is negotiated between DIDForSale and the customer.
12.8 Data Retention and HIPAA Compliance.
DIDForSale may retain, store, process, and delete customer communications, call detail records, recordings, voicemails, SMS/MMS messages, faxes, API logs, and other service-related data in accordance with its applicable retention policies, service limitations, and legal obligations.
Customer acknowledges that DIDForSale is not required to retain communications or related records beyond the retention periods applicable to the Services, unless otherwise agreed in writing or required by applicable law.
Customer is responsible for downloading, exporting, or otherwise preserving any communications, recordings, messages, or records that Customer wishes or is legally required to retain beyond DIDForSale’s applicable retention periods.
Where Customer and DIDForSale have executed a Business Associate Agreement (“BAA”), the handling, retention, return, and destruction of Protected Health Information (“PHI”) associated with Covered Services shall be governed by the applicable provisions of the BAA.
Nothing in this section requires DIDForSale to retain PHI beyond the retention periods applicable to the Covered Services or limits any obligation imposed by applicable law.
DIDForSale may retain records where reasonably necessary for billing, tax, fraud prevention, security, carrier reconciliation, regulatory compliance, legal holds, or other lawful purposes. Any retained PHI shall remain subject to the applicable safeguards and restrictions under the BAA and HIPAA.
ARTICLE 13 FORCE MAJEURE
13.1 In no event shall a Party have any claim or right against the other Party for any failure of performance due to causes beyond its control, including but not limited to: acts of God, fire, explosion, vandalism, cable or fiber cut, adverse weather conditions, flood or other similar occurrences; any law, order regulation, direction, action or request of the government, including federal, state and local governments having or claiming jurisdiction over DIDForSale or of any department, agency, commission, bureau, corporation, or other instrumentality of any federal, state, or local government, or of any civil or military authority; national emergencies; unavailability of materials or rights of way; insurrections; riots, wars; terrorism; strikes, lock outs, work stoppages, or other labor difficulties, supplier failures, shortages, breaches or delays; or any other cause or circumstance, whether of a similar or dissimilar nature to the foregoing, beyond the reasonable control of the affected Party.
ARTICLE 14 DISPUTE RESOLUTION
14.1 The Parties agree to use the dispute resolution procedures set forth in this Article with respect to any controversy or claim arising out of or relating to this Agreement or its breach, except that DIDForSale may elect to litigate, or bring before the applicable agency in the case of subsection (iii), the following types of controversies or claims: (i) action seeking a temporary restraining order or injunction, (ii) a suit to compel compliance with this dispute resolution process, (iii) disputes relating to the lawfulness of rates, terms, conditions or practices concerning Services are subject to the Communications Act of 1934, as amended, or the rules and regulations of the FCC, a state public utility commission or other administrative agency, (iv) (iv) Customer’s unauthorized use of DIDForSale’s name, trademarks, logos, branding, intellectual property, or confidential information, including any action seeking to prevent or remedy such unauthorized use or disclosure; (v) billing or payment disputes or collections matters.
14.2 Upon ten (10) days written notice, either Party may submit disputes to binding arbitration by a single arbitrator with a professional arbitration service selected by the Parties. If the Parties do not otherwise agree on an arbitration service, such services shall be provided pursuant to the American Arbitration Association (“AAA”) Commercial Arbitration Rules and Mediation Procedures. The costs of arbitration, including the fees and expenses of the arbitrator, shall be paid equally by the Parties. Each Party shall bear the cost of preparing and presenting its case. The Parties agree that Orange County, California shall be the location for the arbitration hearing.
14.3 The Parties agree that this Article and the arbitrator’s authority to grant relief shall be subject to the Federal Arbitration Act, 9 U.S.C. §§ 1 16, et seq. (“FAA”), the provisions of this Agreement, and the AAA Code of Ethics for Arbitrators in Commercial Disputes. The Parties agree that the arbitrator shall have no power or authority to make any award that provides for punitive or exemplary damages or damages otherwise limited or excluded in this Agreement. The arbitrator’s decision shall be final and binding. The award may be confirmed and enforced in any court of competent jurisdiction. The FAA shall govern all post award proceedings.
