Kentec
Communications, Inc.
Terms
And Conditions Of Agreement
Digital Voice Retail Product
These
Terms of Service constitute the agreement ("Agreement")
between Kentec Communications, Inc. (“KCI”) and the End
User (“Customer”) of Digital Voice Telephony Services
(“KCI Voice”) and any related products or services
("Service"). KCI defines an End User as any person,
whether authorized or unauthorized, using the Service provided to
Customer. This Agreement governs the Service and by activating and
using the Service, Customer acknowledges that he has read,
understands, and agrees to, the terms and conditions of this
Agreement and become bound by its terms, and by any changes in terms,
which are available at http://www.kciphone.com/?node=terms.
SERVICE
Term
- Service is offered on a monthly basis for a term which begins on
the date that Service is activated and ends on the last day of the
calendar month. Subsequent terms of this Agreement automatically
renew on a monthly basis without any further action unless written
notification is provided to KCI of non-renewal at least ten (10)
days before the end of the monthly term in which the notice is
given. Customer is purchasing the Service for full monthly terms,
meaning that if Service is terminated prior to the end of a monthly
term, Customer is responsible for the full month's charges through
the end of the then-current term, including without limitation,
unbilled charges, plus any applicable disconnect fee, all of which
immediately become due and payable. Expiration of the term or
termination of Service does not excuse Customer from paying all
unpaid, accrued charges due in relation to the Agreement.
Residential
Use of Service - As a Subscriber to the KCI Voice services, the
Service is provided for residential use, for personal, residential,
non-business, and non-professional use. This means the Service is
not being used for any commercial or governmental activities,
profit-making or non-profit, including but not limited to home
office, business, sales, telecommuting, telemarketing (including
without limitation charitable or political solicitation or
polling), auto-dialing, continuous or extensive call forwarding, or
any other activity that would be inconsistent with normal
residential usage patterns. This also means Customer may not
resell or transfer the Service to any other person for any purpose,
or make any charge for the use of the Service, without express
written permission from KCI in advance. Customer agrees that use
of the Service, or the use of the Service provided by any other
person for any nonresidential purpose, as outlined above, will
obligate Customer to pay KCI's higher rates for commercial service
for all periods, including past periods, in which Customer used the
Service for said nonresidential purposes. KCI reserves the right
to immediately terminate or modify the Service, if KCI determines,
at its sole discretion, that Customer's Service is being used for
non-residential or commercial use.
Commercial
Use of Service - As a Subscriber to commercial KCI Voice services,
the Service is provided as a commercial user. This means Customer
may not resell or transfer the service to any other person for any
purpose, without express written permission from KCI in advance.
Customer agrees that KCI Voice commercial plans do not confer the
right to use the service for auto-dialing, continuous or extensive
call forwarding, or telemarketing (including without limitation
charitable or political solicitation or polling). KCI reserves the
right to immediately terminate or modify the Service, if KCI
determines, at its sole discretion, that Customer's Service is
being used for any of the aforementioned activities.
Equipment:
Customer Premises Access and Service - KCI Voice service requires
certain equipment be provided by Customer such as a touch-tone
telephone (rotary or pulse only telephones are not supported) and
internal wiring in Customer’s Premises. The Service also
requires certain equipment such as external wiring and related
electronic equipment. KCI uses and recommends specific brands of
digital telephony hardware. Should you choose to use different
hardware, KCI cannot assure the quality of your Digital Voice
service.
Lawful
Use of Service
Prohibited
Uses - Customer agrees to use the Service for lawful purposes
only. This means you agree not to use them for transmitting or
receiving any communication or material of any kind when, in KCI's
sole judgment, the transmission, receipt, or possession of such
communication or material (i) would constitute a criminal offense,
give rise to a civil liability, or otherwise violate any
applicable local, state, national, or international law or (ii)
encourages conduct that would constitute a criminal offense, give
rise to a civil liability, or otherwise violate any applicable
local, state, national, or international law. KCI reserves the
right to terminate your service immediately and without advance
notice if KCI, in its sole discretion, believes that you have
violated the above restrictions, leaving you responsible for the
full month's charges to the end of the current term, including
without limitation unbilled charges, plus any applicable
disconnect fee, all of which immediately become due and payable.
You are liable for any and all use of the Service by yourself and
by any person making use of the Service provided to you and you
agree to indemnify and hold harmless KCI against any and all
liability for any such use. If KCI, in its sole discretion,
believes that you have violated the above restrictions, KCI may
forward the objectionable material, as well as your communications
with KCI and your personally identifiable information to the
appropriate authorities for investigation and prosecution and you
hereby consent to such forwarding.
Use
of Service Outside the United States - KCI reserves the right to
terminate your Service immediately and without advance notice if
it determines that you are using it outside the United States.
Home
Security and Other Non-Voice Communications Equipment - Home
security systems and medical monitoring equipment may not be
compatible with the Service. Customer acknowledges responsibility
for contacting the home security provider or medical monitoring
provider to test the applicable system operation with the Service.
Customer is responsible for the cost of the testing. Customer
acknowledges and agrees that use of the Service is at Customer’s
own risk and waives any claim against KCI for interference or
disruption of any system resulting from or arising in connection
with the operation of the Service.
Power
Source and Battery Backup - Customer acknowledges and understands
that the Service, including the ability to access emergency 911,
may not function in the event of power failure. Customer
acknowledges that the Service does not have its own power source.
KCI recommends use of a UPS power supply to protect the equipment
and provide limited power backup if an outage occurs. The Service
will not work unless it is connected to an independent power
supply, such as an active wall socket, to be provided by Customer.
A power failure or disruption may require the Customer to reset or
reconfigure equipment prior to utilizing the Service.
Loss
of Service - Internet Service Outage or Termination or Suspension
of Internet Connectivity by KCI. Customer acknowledges and
understands that the Service requires a fully functional broadband
connection to the Internet. In the event of an ISP outage, the
Service may not function
until the ISP outage is cured. Should KCI suspend or terminate
Service, the Service will not function until such time as KCI
restores the Service (which may require payment of all invoices and
reconnection fees owed or cure of any breach of this or other
Agreements).
Service
Outage due to ISP or Broadband Blocking of Ports or Other Acts -
KCI may intentionally or inadvertently block the ports over which
the Service is provided or otherwise impede usage of the Service.
Once notified of the problem, KCI will work with you to resolve the
issue. During the time the ports are being blocked or your Service
is impeded, your Service may not function properly.
Tampering
with the Service - KCI reserves the right to terminate the Service
should any attempt to alter or disrupt the Service or to make any
use of the Service that is inconsistent with its intended purpose
or to attempt to do so.
Theft
of Service - Customer agrees to notify KCI immediately, in writing
or by calling the KCI customer support line, if the telephony
device is stolen or if Customer becomes aware at any time that the
Service is being stolen or fraudulently used. Failure to do so in
a timely manner may result in termination of the Service and
additional charges may be assessed. Until such time as KCI
receives notice of the theft or fraudulent use, Customer is liable
for all use of the Service using a stolen device and any and all
stolen Service or fraudulent use of the Service.
Service
Distinctions - Customer acknowledges and understands that the
Service is not a telephone service. Important distinctions (some,
but not necessarily all, of which are described in this Agreement)
exist between telephone service and the KCI Voice service offering
provided by KCI. Currently, the Service is subject to different
regulatory treatment than telephone service. This treatment may
limit or otherwise affect your rights of redress before Federal,
State, or Provincial telecommunications regulatory agencies.
No
0+ Calling; May Not Support x11 Calling - KCI Voice service does
not support 0+ calling (including without limitation collect, third
party billing or calling card calling). The Service may not
support 311, 511, and/or other x11 (other than 911 which is
provided for elsewhere in this Agreement) services in one or more
(or all) service areas.
EMERGENCY
SERVICES — 911 DIALING
Customer
acknowledges and understands the following restrictions apply to
911 and e911 services with KCI Voice:
The
911/e911 service will not function if the Equipment fails, is
moved or relocated, or if the Service is not functioning for any
reason, including but not limited to, a power outage or network
outage; and
For
each phone number issued, Customer must correctly identify the
actual location where the Equipment will be located at the time
Customer registers for the Service or 911 communications may be
misdirected. It is Customer’s responsibility to advise KCI
if the location of the Equipment changes. Should Customer fail to
advise KCI of any location change, 911/e911 services may be
delayed or misrouted. KCI is not responsible for any loss or
damages due to misrouting.
There
is a possibility of network congestion and/or reduced speed in the
routing of 911 calls made utilizing the Service as compared to
traditional 911 calls made via traditional telephony networks.
LOCAL
NUMBER PORTABILITY
If
Customer is transferring an existing phone number from a previous
carrier to the Service, Customer authorized KCI to process the
order for the Service and to notify Customer’s current
carrier of the decision to switch Customer’s existing number.
KCI will charge current retail prices for porting Customer’s
existing number and will give customer an estimated completion date
for the Service completion date.
Upon
termination of the Service, KCI may, at its sole discretion,
release to your new service provider, your telephone number used in
connection with your Service if the following conditions are met:
Such
new service provider may accept such number;
Your
account has been properly terminated and is paid in full; and
You
request the transfer upon termination your account.
CHARGES
/ PAYMENTS / DEFAULT / TAXES / TERMINATION
Billing
Customer
must notify KCI
of any changes in your account information, including billing
address or telephone number, in writing.
KCI
processes billing on the 25th
of each month. All bills are due on or before the 10th
of the month. Any account over 30 days past due is subject to
disruption
of service. If an account is suspended, the entire balance must
be paid before service is restored and a $10.00 reconnection fee
per line will be imposed.
Billing
Disputes - Customer must notify KCI in writing within 30 days of
the statement date of any disputed long distance charges on that
statement or such dispute will be deemed waived.
Termination
/ Discontinuance of Service - KCI reserves the right to suspend or
discontinue providing the Service generally, or to terminate the
Service, at any time in its sole discretion. If KCI discontinues
providing the Service generally, or terminates your Service in its
discretion without a stated reason, Customer will only be
responsible for charges accrued through the date of termination,
including a pro-rated portion of the final month's charges. If the
Service is terminated for any stated reason, including without
limitation violation of this Agreement, or because of any improper
use of the Service (such as, but not limited to, attempts to hack,
disrupt, or misuse the Service or any acts or omission that
violates any acceptable use policy of KCI or of a third party
provider to which KCI is subject), Customer will be responsible for
the full month's charges to the end of the current term, including
without limitation unbilled charges, plus any applicable disconnect
fee set forth in this document, all of which immediately become due
and payable.
Taxes
- Customer is responsible for, and shall pay, any applicable
federal, state, provincial, municipal, local, or other governmental
sales, use, excise, value-added, personal property, public utility,
or other taxes, fees, or charges now in force or enacted in the
future, that arise from or as a result of Customer’s
subscription or use or payment for the Service. Such amounts are
in addition to payment for the Service and will be billed as set
forth in this Agreement. If Customer is exempt from payment of
such taxes, KCI must be provided with an original certificate that
satisfies applicable legal requirement attesting to tax-exempt
status. Tax exemption will only apply from and after the date KCI
receives such certificate.
Disconnect
Fee - Customer will be charged a disconnect fee of $10.00 per voice
line upon termination of Service for any reason. The
disconnect fee becomes due and payable immediately upon
termination. If Customer has multiple lines, Customer will be
charged a disconnect fee of $10.00 per line for each line
disconnected.
WARRANTY
and LIABILITY LIMITATIONS / INDEMNIFICATION
Limitation
of Liability - KCI shall not be liable for any delay or failure to
provide the Service, including 911 dialing, at any time or from
time to time, or any interruption or degradation of voice quality
that is caused by any of the following:
Act
or omission of an underlying carrier, service provider, vendor or
other third party;
Equipment,
network or facility failure;
Equipment,
network or facility upgrade or modification;
Force
majeure events such as (but not limited to) acts of god; strikes;
fire; war; riot; government actions;
Equipment,
network or facility shortage;
Equipment
or facility relocation;
Service,
equipment, network or facility failure caused by the loss of power
to Customer;
Outage
of Customer's ISP or broadband service provider;
Act
or omission of Customer or any person using the Service provided
to Customer; or
Any
other cause that is beyond KCI's control, including without
limitation a failure of or defect in any telephony device, the
failure of an incoming or outgoing communication, the inability of
communications (including without limitation 911 dialing) to be
connected or completed, or degradation of voice quality.
KCI's
aggregate liability for (i) any failure or mistake; (ii) any claim
with respect to KCI's performance or nonperformance hereunder or
(iii) any KCI act or omission in connection with the subject matter
hereof shall in no event exceed Service charges with respect to the
affected time period.
Disclaimer
of Damages - In no event shall KCI, its officers, directors,
employees, affiliates, agents, or any other service provider who
furnishes services to Customer in connection with this Agreement or
the Service be liable for any direct, incidental, indirect,
special, punitive, exemplary, or consequential damages, or for any
other damages, including but not limited to loss of life, loss of
data, loss of revenue or profits, or damages arising out of or in
connection with the use or inability to use the Service. The
limitations set forth herein apply to claims founded in breach of
contract, breach of warranty, product liability, tort, and any and
all other theories of liability and apply whether or not KCI was
informed of the likelihood of any particular type of damages.
Indemnification
- Customer agrees to defend, indemnify, and hold harmless KCI, its
officers, directors, employees, affiliates, agents, and any other
service provider who furnishes services to Customer in connection
with this Agreement or the Service, from any and all claims,
losses, damages, fines, penalties, costs, and expenses (including,
without limitation, reasonable attorneys fees) by or on behalf of,
Customer or any third party or user of Customer's Service, relating
to this Agreement and the Service. This paragraph shall survive
termination of this Agreement.
No
Warranties on Service - KCI makes no warranties, express or
implied, including but not limited to, any implied warranties of
merchantability, fitness of the Service for a particular purpose,
title or non-infringement or any warranty arising by usage of
trade, course of dealing or course of performance or any warranty
that the Service will meet Customer's requirements. Without
limiting the foregoing, KCI does not warrant that the Service will
be without failure, delay, interruption, and error, degradation of
voice quality or loss of content, data, or information.
Neither KCI nor its officers, directors, employees, affiliates, or
agents or any other service provider or vendor who furnishes
services or products to Customer in connection with this Agreement
or the Service will be liable for unauthorized access to KCI's or
Customer's transmission facilities or premises equipment or for
unauthorized access to, or alteration, theft or destruction of,
Customer's data files, programs, procedures, or information through
accident, fraudulent means or devices or any other method,
regardless of whether such damage occurs as a result of KCI's or
its service providers’ or vendors’ negligence.
Statements and descriptions concerning the Service, if any, by KCI
or KCI's agents or installers are informational and are not given
as a warranty of any kind.
No
Third Party Beneficiaries - No provision of this Agreement provides
any person or entity not a party to this Agreement with any remedy,
claim, liability, reimbursement, or cause of action or creates any
other third party beneficiary rights.
Content
- Customer is liable for any and all liability that may arise out
of the content transmitted by or use of the Service. Customer
shall assure that use of the Service and content will at all times
comply with all applicable laws, regulations, and written and
electronic instructions for use. KCI reserves the right to
terminate or suspend affected Service, and/or remove Customer’s
content from the Service if KCI determines that such use or content
does not conform with the requirements set forth in this Agreement
or interferes with KCI's ability to provide Service to you or
others or receives notice from anyone that your use or Content may
violate any laws or regulations. KCI's actions or inaction under
this Section shall not constitute review or approval of your use or
Content. You will indemnify and hold KCI harmless against any and
all liability arising from the content transmitted by or to you
using the Services.
GOVERNING
LAW / RESOLUTION OF DISPUTES
Governing
Law - The Agreement and the relationship between you and KCI shall
be governed by the laws of the State of Colorado without regard to
its conflict of law provisions. To the extent court action is
initiated to enforce an arbitration award or for any other reason
consistent with this section, you and KCI agree to submit to the
personal and exclusive jurisdiction of the courts located within
the State of Colorado and waive any objection as to venue or
inconvenient forum. The failure of KCI to exercise or enforce
any right or provision of the Agreement shall not constitute a
waiver of such right or provision. If any provision of the
Agreement is found by a court of competent jurisdiction to be
invalid, the parties nevertheless agree that the court should
endeavor to give effect to the parties' intentions as reflected in
the provision, and the other provisions of the Agreement remain in
full force and effect. You agree that regardless of any
statute or law to the contrary, any claim or cause of action
arising out of or related to use of the Service or the Agreement
must be filed within one (1) year after such claim or cause of
action arose or be forever barred.
Entire
Agreement - This Agreement and the rates for Services found on
KCI's website (http://www.kciphone.com/?node=products)
constitute the entire agreement between you and KCI and govern your
use of the Service, superseding any prior agreements between you
and KCI and any and all prior or contemporaneous statements,
understandings, writings, commitments, or representations
concerning its subject matter. KCI may change the terms and
conditions of this Agreement from time to time. Notices will be
considered given and effective on the date posted on to the "Terms
and Conditions" section of KCI's website
(http://www.kciphone.com/?node=terms). Notification of
updates may also be sent to Customer if Customer maintains a
current and valid email address with KCI to be used for contact.
Such changes will become binding on Customer, on the date posted to
the KCI website and no further notice by KCI is required. This
Agreement, as posted supersedes all previously agreed to electronic
and written terms of service and also supersedes any written terms
provided to Customers. If you do not agree to any of the new terms
and conditions, you must discontinue your KCI Voice service.
Severability
- If any part of this Agreement is legally declared invalid or
unenforceable, all other parts of this Agreement are still valid
and enforceable. Such invalidity or non-enforceability will not
invalidate or render unenforceable any other portion of this
Agreement.
PRIVACY
KCI’s
Service utilizes, in whole or in part, the public Internet and
third party networks to transmit voice and other communications.
KCI is not liable for any lack of privacy which may be experienced
with regard to the Service. Please refer to our Privacy
Policy applicable to you at http://www.kciphone.com/?node=privacy
for additional information.
Kentec
Communications Confidential – voice-retail-terms –
Revision: 20071203
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