Sparkplug, Inc. Terms of Service
PLEASE READ THIS SPARKPLUG COMMUNICATIONS, INC. ("SPARKPLUG") TERMS OF SERVICE AGREEMENT CAREFULLY. BY ORDERING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT INCLUDING, WITHOUT LIMITATION THE PRIVACY POLICY, ACCEPTABLE USE POLICY, THE E911 POLICIES AND REQUIREMENTS (IF APPLICABLE) AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOTIFY SPARKPLUG IN WRITING WITHIN FIVE (5) DAYS OF ORDERING THE SERVICE THAT YOU DO NOT WANT TO USE THE SERVICE. SPARKPLUG RESERVES THE RIGHT TO MODIFY THESE TERMS AND CONDITIONS AT ANY TIME, AND FROM TIME TO TIME AS SET FORTH IN SECTION 3. THE CURRENT VERSION OF THE TERMS OF SERVICE CAN BE FOUND ON THE SPARKPLUG WEB SITE AT ANY TIME.
This Terms of Service Agreement (the "Agreement") governs your purchase and your End Users' use of the services (the "Services") and all equipment provided and owned by Sparkplug (the "Sparkplug Equipment") in accordance with the Service Agreement submitted by you to Sparkplug (the "Service Agreement"). This Agreement includes, and incorporates by this reference, the Service Agreement, Sparkplug's Privacy Policy, the Acceptable Use Policy, if you are receiving any voice services, the E911 Policies and Requirements, and the terms and conditions described in any service level agreement you enter into with Sparkplug.
1. All Services.
During the Term, Sparkplug will provide the Services to you in accordance with the service(s) you selected in your Service Agreement, provided that you comply with the terms and conditions of this Agreement. Sparkplug will provide you with connections to the Sparkplug network. Sparkplug's responsibility for the Services ends at the Sparkplug Equipment.
2. Restrictions.
Without limiting the generality of the foregoing, you will not, and you will not allow an End User to, directly or indirectly, (a) enable any personnel other than authorized users to access and use the Services or Sparkplug Equipment; (b) use the Services or Sparkplug Equipment in a manner prohibited by any federal, state, or local law or regulation, or Sparkplug's policies and guidelines or in a manner that is fraudulent, (c) use the Services or Sparkplug Equipment for any abusive or unauthorized purpose or in any way that damages Sparkplug's property or interferes with or disrupts Sparkplug's network or other users; (e) attempt to circumvent user authentication or security of any host, network, or account (including, but not limited to, accessing data not intended for you, logging into a server or account that you are not expressly authorized to access, or probing the security of other networks); (f) attempt to interfere with service to any user, host, or network (including, without limitation, "flooding" of networks, deliberate attempts to overload a service, and attempts to "crash" a host; (g) for high-volume auto-dialing, continuous or extensive call forwarding, high volume telemarketing (including, without limitation, charitable or political solicitation or polling), fax or voicemail broadcasting or blasting for services with unlimited local and long distance calling plans; (h) use any kind of program or script or command, or send messages of any kind, designed to interfere with a user's session, by any means, locally or via the Internet; (i) use the Sparkplug Equipment or Services to, or take any other action that may, weaken network performance, or which adversely affects the performance of the Services for other Sparkplug customers, all as determined in Sparkplug's sole discretion; (j) allow any unintended, prohibited or illegal use of the Sparkplug Equipment or Services, allow for a use of the Sparkplug Equipment or Services that you suspect could be a prohibited or illegal use of such Sparkplug Equipment or Services, or use of the Sparkplug Equipment or Services in a manner that leads to or that reasonably could lead to civil or criminal liability to you, the End User or Sparkplug; or (k) engage in or permit any use or other activity involving the Sparkplug Equipment or Services that is not expressly authorized under this Agreement or otherwise in writing by Sparkplug.
Sparkplug has the right but not the obligation to restrict any uses of the Sparkplug Equipment or Services that Sparkplug believes in its sole discretion violate the Agreement or applicable law. You will immediately notify Sparkplug in writing or by email to 'care@sparkplug.net' of any unauthorized use of the Sparkplug Equipment or Services, if the Sparkplug Equipment is stolen, or if you become aware at any time that the Services provided to you are being stolen or fraudulently used. You acknowledge, and will require that each of your End Users will acknowledge that the Voice Services are not compatible with outdialing systems, including without limitation, home security systems, medical monitoring equipment, TTY equipment, and entertainment or satellite television systems, except that certain Services provided by Sparkplug support Telecommunications Relay Services for the deaf and hearing impaired. You hereby waive, and agree to require that each of your End Users, will waive, any claims against Sparkplug for any interruption, malfunction, or disruption of such systems or equipment by the Services or the Sparkplug Equipment, if applicable.
Sparkplug is not liable for any damages, charges, penalties, or fees, including without limitation usage and toll charges, that you or your End Users may incur as a result of the unauthorized or fraudulent use of the Services or your or your End User's telephone and/or network facilities. This unauthorized use includes, but is not limited to, the placement of calls from your or your End User's Premises and the placement of calls through End User Equipment, your equipment, SoftPhones, and/or your or your End User's network. In no event will Sparkplug be liable for protection of your or your End User's network, transmission facilities or equipment from unauthorized access, or for any unauthorized access to or alteration, theft, or destruction of your or your End User's data files, programs, procedures, and information or other network elements or content. You and your End Users shall be responsible for any long distance charges, including, without limitation, charges for international long distance services, and other charges whether or not resulting from any actual or alleged unauthorized or fraudulent use. Sparkplug shall have the right, but not the obligation, to immediately deactivate your or your End User's long distance service or other Services if Sparkplug believes such Services are the subject of suspected theft or fraud.
3. Modifications.
Sparkplug has sole discretion as to the operation, availability and scope of the Services. Sparkplug reserves the right to change or modify the Services, the terms and conditions of this Agreement, or any policy or guideline applicable to the Services, at any time in its sole discretion. Sparkplug will post a notice of such changes on Sparkplug's Web site at www.sparkplug.net (the 'Sparkplug Web Site'). Changes to this Agreement will be effective fifteen (15) days after posting on the Sparkplug Web Site. Changes to any policy or guidelines governing the Services, including the Acceptable Use Policy and the E911 Policies and Regulations, shall be effective upon posting to the Sparkplug Web Site. Your continued use of the Services following Sparkplug's posting on the Sparkplug Web Site of any changes to this Agreement, a Service Agreement, or any policy or guideline will constitute your acceptance of such changes or modifications.
4. End User Equipment.
You are solely responsible for providing, installing and maintaining at your expense: adequate electrical power, a suitable cable access route, adequate space at your and your End User's location(s) for the Sparkplug Equipment, if any, required to provide the Services, an Ethernet broadband router, or other suitable Ethernet device, and other equipment required to make a suitable environment for the Services and Sparkplug Equipment (collectively, the 'End User Equipment'). You are solely responsible for the adequacy and accuracy of all the End User Equipment. Sparkplug is not responsible for troubleshooting, repairing, or configuring the End User Equipment. You are responsible for providing appropriate systems, procedures and safeguards, including system backups to protect the End User Equipment and prevent the loss of data or software. Sparkplug shall not be responsible and have no liability for the protection, modification or loss of your End User Equipment, data, information or programs (including the cost of restoring or recreating such data, information or programs) resulting from the use of the Services or otherwise. You agree to pay for any damages caused to any Sparkplug Equipment by your or your End User's employee's, invitees, or contractors. You agree to return promptly following the termination or expiration of this Agreement or any applicable Service Agreement, the Sparkplug Equipment, or to pay replacement costs for same if the equipment is not promptly returned, or if it is damaged or destroyed. Any and all Sparkplug Equipment shall remain the property of Sparkplug whether or not such Sparkplug Equipment is attached to any End User real estate. At all times you and all of your End Users will use equipment that complies with Sparkplug's specifications or interface requirements (any of which Sparkplug may update and modify from time to time as technology and/or Sparkplug's vendors change).
5. Third Party Services.
You acknowledge that in the performance of the Services or repair, maintenance or replacement of the Sparkplug Equipment, Sparkplug may perform such services itself or utilize certain third party service providers. Your continued use of the Sparkplug Equipment after any such repair, maintenance or installation will constitute your acceptance of any modifications to the Sparkplug Equipment.
6. Support.
Sparkplug shall provide telephone support and email support to you and authorized users relating to the use and operation of the Services. While Sparkplug will use reasonable efforts to respond to your inquiries, Sparkplug assumes no responsibility to resolve any problem or defect in the Services, except as expressly provided herein. You are responsible for integrating and troubleshooting your local area network and internal network, as necessary. Sparkplug will not be responsible for any loss of use of the Services or degradation in performance resulting from your use of incompatible equipment or for any damage to any additional equipment you connect to the Sparkplug Equipment. Sparkplug will troubleshoot and support you on Services and Sparkplug Equipment issues pertaining to the Sparkplug network and Services only. In the event that you request a service call to your Premises and Sparkplug determines that the problem is your responsibility, Sparkplug may charge you for the cost of the service call.
7. Availability of Service.
Sparkplug will use commercially reasonable efforts to make the Services available in accordance with your Service Agreement, any Service Level Agreement ('SLA') and the other terms and conditions of this Agreement. Service outages may occur due to various reasons, including, without limitation: (a) a power failure or disruption at End User's location; (b) an Internet connection outage, suspension, or disconnection; and/or (c) ISP or broadband provider's blocking of ports or otherwise impeding the usage of the Internet. In the event of a 'Service interruption' (as defined in the SLA) that is the responsibility of Sparkplug, Sparkplug will make a credit allowance to your account in the amount of one day for each full hour that the Service Level described in the SLA is not met. You must request the credit allowance in writing to Sparkplug within thirty (30) days of the beginning of the Service interruption. The credit allowance will be your only remedy for any Service interruption, and will not be available where the Service interruption was related, in whole or in part, to any acts or omissions by you or any equipment not provided by Sparkplug. The credit allowance will not be available if the Service interruption was a result of any Force Majeure Occurrence (as defined herein).
8. Reservation of Rights.
As between you and Sparkplug, Sparkplug or its suppliers are the exclusive owners of and retain all right, title and interest to all materials (including, but not limited to, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights thereto (collectively, "Proprietary Rights")), including but not limited to any computer software (in object code and source code form), data or information developed or provided by Sparkplug or its suppliers pursuant to this Agreement, and any know-how, methodologies, equipment, or processes used by Sparkplug to provide the Services to you.
9. Sparkplug's Rights.
Sparkplug may monitor the Services, or investigate any alleged violation of this Agreement, Sparkplug's policies and guidelines or any third-party complaints. Sparkplug may access or monitor electronic communications except as prohibited by applicable law. Sparkplug may access and disclose any information it considers necessary or appropriate (including, without limitation, registration information, IP addressing and traffic information, and usage history) to (a) comply with applicable law (e.g., a lawful subpoena, warrant or court order) or (b) if Sparkplug reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person requires disclosure of communications or justifies such disclosure without delay. In the event that Sparkplug determines in its sole and reasonable discretion that any End User Content or conduct or actions of any End User (including its employees and users) are objectionable, unlawful, potentially infringing or otherwise violate this Agreement, Sparkplug may take any action that it deems appropriate and reasonable under the circumstances to protect its systems, facilities, other End Users and/or third parties. Such corrective action includes, but is not limited to: (i) issuing a warning; (ii) immediately suspending or terminating the Services; (iii) restricting or prohibiting access to any End User Content that is objectionable or otherwise violates this Agreement; and/or (iv) disabling or removing hypertext links, End User Content or any Third Party Content from the Sparkplug network. In the event Sparkplug takes corrective action, Sparkplug shall not refund any fees paid in advance of such corrective action. Without limiting the foregoing, it is Sparkplug's policy to terminate its Services for repeated violations of Sparkplug's Acceptable Use Policy.
10. Payment Terms; Failure to Pay; Suspension of Services.
For any fees, charges and other amounts due under your Service Agreement, you authorize Sparkplug to charge you at the time the fees, charges and other amounts are incurred. Any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. All amounts payable under your Service Agreement are denominated in United States Dollars. Payment of such finance charges will not excuse or cure your breach or default for late payment. Further, you will reimburse any costs, fees or expenses (including, but not limited to, reasonable attorneys' fees) incurred by Sparkplug to collect any amount which is not paid when due. If you fail to pay any amount under this Agreement when due, in addition to any other remedies available at law or in equity, Sparkplug will have the right, in its sole discretion, to immediately suspend your and your authorized users' access to and use of the Services and the Sparkplug Equipment. Any termination by Sparkplug for your failure to pay will not relieve you from paying any then-current or past due fees, plus interest thereon. To reestablish Services suspended or terminated for delinquency, and the use of or access to the Sparkplug Equipment, you must pay all past due amounts in full, you may be charged a re-activation fee, and you may be required to prepay future fees.
11. Charges; Disputed Charges.
All charges are considered valid unless disputed in writing within fifteen (15) days after you receive your invoice or credit card statement. If you do not dispute such charges within the fifteen-day period, you agree that you waive your right to dispute the charges and release Sparkplug from any and all liability and claims of loss resulting from any error or discrepancy. You may only dispute charges that you believe are a result of a billing error or a problem relating to the Services or the Sparkplug Equipment. Sparkplug shall not be responsible for any charges or expenses that you may incur resulting from overdrawing your bank account, exceeding your credit limit, or exceeding your credit card limit as a result of an automatic charge generated by Sparkplug pursuant to this authority. If your account incurs charges that are denied by your financial institution, Sparkplug reserves the right to rebill you, regardless of your account status, including late charges that may apply, and a service fee in connection with the re-billing process.
12. Taxes.
You shall pay all applicable federal, state or local use, excise, sales, consumption, value added, excise, gross receipts, bypass, franchise or privilege taxes, duties or similar liabilities, Universal Service Fund charges, 911 charges, and all other regulatory fees, or interexchange carrier charges.
13. Moves.
If you move service locations, you are required to give Sparkplug ninety days advance, written notification. Sparkplug will determine if the new service address can be serviced by Sparkplug's network, and will make every effort to continue service availability. Sparkplug will inform you whether service is available at the new location. If service is not available, (a) Sparkplug will not refund any fees, charges or amounts you have paid and (b) Sparkplug shall immediately charge your credit card, or invoice you, for an amount equal to 50% of the recurring fees, charges and other amounts due and payable for the remainder of the Term as set forth in your Service Agreement, and the Services will thereafter be terminated. If service is available, your Service Agreement will transfer to the new location and you will be charged a move fee in accordance with Sparkplug's standard procedure. If you do not notify Sparkplug of your move as required, then you shall be liable for 100% of the recurring fees, charges and other amounts due and payable for the remainder of the Term as set forth in your Service Agreement.
14. Term of Service.
Unless earlier terminated pursuant to this paragraph or otherwise as set forth in this Agreement, the term of this Agreement (the "Term") will be as noted on your Service Agreement and will commence as of the date Sparkplug completes the Installation Services. Thereafter, the Term will renew for successive one-year periods unless you give Sparkplug written notice of your intention to terminate at least thirty (30) days prior to the expiration of the then-current Term. On the date of the renewal of a Term, Sparkplug will charge you the applicable renewal fee for the first month of Services based on the then-current fee schedule. If your payment method is via credit card and Sparkplug is unable to charge your credit card, Sparkplug may suspend your use of the Services and Sparkplug Equipment until the required payment is made.
15. Termination.
30-Day Guarantee. You may terminate your Services and return all Sparkplug Equipment, for any reason, within the first 30 days of the term of your Service Agreement. You must give Sparkplug written notice of such termination. Sparkplug will refund you all unused monthly recurring charges, on a pro-rated basis. The refund shall be calculated from the date the written notice of termination is received by Sparkplug. No non-recurring charges shall be refunded. You will not have any other contract or payment liability, and all termination fees shall be waived.
Termination for Convenience by you. You may terminate this Agreement for any reason by providing Sparkplug thirty (30) days prior written notice. You will be responsible for the costs and risks associated with returning the Sparkplug Equipment to Sparkplug. Upon any termination of this Agreement under this section, (a) Sparkplug will not refund any fees, charges or amounts you have paid and (b) Sparkplug shall immediately charge your credit card, or invoice you, for an amount equal to the recurring fees, charges and other amounts due and payable for the remainder of the Term as set forth in your Service Agreement. In addition, you must return the Sparkplug Equipment in good working condition or you will be subject to a non-returned equipment fee. You will permit Sparkplug to access the Premises to remove the Sparkplug Equipment at your expense, or you may remove the Sparkplug Equipment and return it to Sparkplug within 5 days of the effective date of termination or you will be subject to a non-returned equipment fee. Such removal by Sparkplug will be billed at Sparkplug's then current hourly rates for on-site services.
Termination for Convenience by Sparkplug. Sparkplug may terminate this Agreement for any reason by providing you thirty (30) days prior written notice. Upon any termination of this Agreement by Sparkplug under this paragraph, you will be responsible only for fees, charges and other amounts related to the period up to and including termination. Termination by Sparkplug prior to Installation. Sparkplug may terminate this Agreement prior to completing the Installation Services if it is determined that the Services cannot be provided to you for any reason. Upon any termination of this Agreement by Sparkplug under this paragraph, you will be refunded any amounts that you have paid for such Installation Services.
Termination by you for SLA Non-Performance. You may terminate this Agreement, upon written notice to Sparkplug, if you experience three (3) or more Network Outages that qualify for credit allowances of four (4) hours or more each during any consecutive thirty (30) day period. For purposes of this section, a 'Network Outage' is defined as an occurrence within the Sparkplug network that results in the inability of the network to transmit IP packets on your behalf.
Termination for Material Breach or Default. Sparkplug may immediately terminate this Agreement or suspend the Services and reclaim the Sparkplug Equipment upon written notice to you for your or any of your End User's violation of any term of this Agreement or policy, including the Acceptable Use Policy or upon a Default by you or an End User. Upon any termination of this Agreement pursuant to this section, (a) Sparkplug will not refund any fees, charges or amounts you have paid and (b) Sparkplug shall immediately charge your credit card, or invoice you, for an amount equal to the recurring fees, charges and other amounts due and payable for the remainder of the Term as set forth in your Service Agreement. You or an End User are in default of this Agreement if you become insolvent and/or unable to generally meet your or their debt obligations or file or initiate proceedings or have proceedings filed or initiated against you or it, seeking liquidation, reorganization or other relief (such as the appointment of a trustee, receiver, liquidator, custodian or other such official) under any bankruptcy, insolvency or other similar law.
Effect of Termination. Should this Agreement be terminated for any reason, Sparkplug will not be liable to you for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with your use of the Services or the Sparkplug Equipment, or for any other reason whatsoever flowing from such termination. Except as set forth herein, any termination of this Agreement shall not relieve you of any obligations to pay fees and costs accrued prior to the termination date and any other amounts owed by you to Sparkplug as provided in this Agreement. The provisions contained in this Agreement that by their context are intended to survive termination or expiration will survive, including without limitation, the sections entitled Restrictions, Privacy, Reservation of Rights, Charges; Disputed Charges, Term of Service, Disclaimers, Limitation of Liability, Indemnification, Jurisdiction; Applicable law, Arbitration and General Provisions.
16. Disclaimers.
EXCEPT AS SET FORTH IN THE RELEVANT SERVICE LEVEL AGREEMENT, YOU ACKNOWLEDGE THAT THE SERVICE, SPARKPLUG EQUIPMENT, INSTALLATION SERVICES AND THE SPARKPLUG NETWORK (INCLUDING ANY SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY SPARKPLUG IN CONNECTION WITH ANY SERVICES HEREUNDER) ARE PROVIDED "AS IS" OR "AS AVAILABLE." EXCEPT AS SET FORTH IN THE RELEVANT SERVICE LEVEL AGREEMENT, SPARKPLUG, ITS RESELLER SERVICE PROVIDERS AND SUPPLIERS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PERFORMANCE OF THE SERVICES, SPARKPLUG EQUIPMENT, INSTALLATION SERVICES AND THE SPARKPLUG NETWORK, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OR ANY IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. YOU AND EACH OF YOUR END USERS EXPRESSLY DISCLAIM ALL OTHER SUCH WARRANTIES TO THE FULLEST EXTENT PERMITTED BY LAW. IF ANY HARDWARE OR EQUIPMENT IS PURCHASED BY YOU OR YOUR END USERS UNDER THIS AGREEMENT, SPARKPLUG MAKES NO WARRANTIES AS TO THE HARDWARE OR EQUIPMENT, BUT SHALL USE COMMERCIALLY REASONABLE EFFORTS TO PASS ANY MANUFACTURER'S WARRANTY ON TO YOU OR YOUR END USER, AS APPLICABLE. ALL SPARKPLUG WARRANTIES ARE SOLELY TO AND FOR THE BENEFIT OF THE END USER AND NOT FOR ANY OTHER USER, ENTITY, OR THIRD PARTY. EXCEPT AS SET FORTH IN THE RELEVANT SLA, IN NO EVENT SHALL SPARKPLUG OWE TO YOU OR AN END USER ANY DAMAGES OF ANY KIND FOR OR DUE TO ANY PERIOD OF TIME DURING WHICH THERE WAS A FAILURE OR INTERRUPTION OF SERVICE. SPARKPLUG SHALL USE COMMERCIALLY REASONABLE EFFORTS UNDER THE CIRCUMSTANCES TO RESTORE SERVICE SHOULD IT FAIL OR, IF SPARKPLUG ELECTS, AN EQUIVALENT SERVICE MAY BE SUBSTITUTED.
17. Limitation of Liability.
SPARKPLUG, ITS RESELLER SERVICE PROVIDERS AND SUPPLIERS SHALL HAVE NO LIABILITY FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST ADVANTAGE, LOST SAVINGS OR LOST REVENUES, OR ANY INCREASED COST OF OPERATIONS, EVEN IF SPARKPLUG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SPARKPLUG, ITS RESELLER SERVICE PROVIDERS AND SUPPLIERS HAVE ANY LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATING TO: INTEROPERABILITY, ACCESS OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY YOU, YOUR END USER OR THIRD PARTIES; SERVICE DEFECTS, DELAYS OR INTERRUPTIONS, OR LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR, UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF END USERS' OR THIRD PARTIES' APPLICATIONS, CONTENT, DATA, PROGRAMS, INFORMATION, NETWORK OR SYSTEMS, OR DIRECTORY LISTINGS OR ANY FAILURE OR ERROR RELATED TO DIRECTORY LISTINGS OR NON-PUBLISHED NUMBERS. THE TOTAL LIABILITY OF SPARKPLUG TO YOU FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO SPARKPLUG BY YOU UNDER THIS AGREEMENT DURING THE MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM AROSE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, OTHER CLAIMS FOR INDEMNIFICATION, AND OTHER TORTS.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SPARKPLUG'S LIABILITY SHALL BE LIMITED AS REQUIRED BY LAW IN SUCH STATES.
18. Indemnification.
You agree to indemnify, defend and hold harmless Sparkplug and all employees, officers, directors and agents of Sparkplug and any of its affiliates from and against any and all claims, suits, actions, charges, disputes, demands or proceedings (whether threatened, asserted, or filed) and all related damages, losses, liabilities, cost and expenses (including, but not limited to, reasonable attorneys' fees) which any third party may assert, claim, or threaten to assert against Sparkplug or its employees, officers, directors and agents or its affiliates, arising out of or relating to: (a) any violation or breach by you of any term, representation or warranty, or policy of this Agreement; (b) your or your End Users' unlawful, unauthorized or improper use of the Services or the Sparkplug Equipment (including unauthorized modifications thereof); (c) any damages caused to the Sparkplug network by your End User Content; (d) any actual or alleged violation of any Proprietary Rights or non-proprietary rights (including, but not limited to, defamation, libel, rights of privacy or publicity) by you or your End User Content. The indemnification provided herein shall survive the termination of this Agreement and the termination of any Services provided pursuant to this Agreement. Notwithstanding any other provision of this Agreement, the officers, directors, employees and agents of Sparkplug shall have no liability to you, your End Users or any of your or their affiliates under this Agreement.
19. Jurisdiction; Applicable Law.
This Agreement shall be interpreted, enforced and governed by and construed in accordance with the laws of the State of Illinois notwithstanding any choice of law principles to the contrary. You expressly agree that the exclusive jurisdiction for any claim or dispute with Sparkplug arising from your use of the Services or the Sparkplug Equipment shall be in a federal or state court of competent jurisdiction located in Cook County, Illinois, USA. You further consent to the exercise of personal jurisdiction of such courts in connection with any such dispute. Sparkplug shall be entitled to attorneys' fees and related expenses in the event suit is brought or an attorney is retained to enforce the terms of this Agreement or to collect any moneys due hereunder or to collect money damages for breach hereof.
20. Arbitration.
ALL DISPUTES ARISING UNDER THIS AGREEMENT (OTHER THAN YOUR FAILURE TO MAKE PAYMENTS IN ACCORDANCE WITH THE AGREEMENT AND ANY ACTION TO COLLECT AMOUNTS DUE TO SPARKPLUG UNDER THIS AGREEMENT, WHICH MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION) WILL BE SETTLED BY BINDING ARBITRATION USING THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA") THEN IN EFFECT. THE PLACE FOR ARBITRATION WILL BE COOK COUNTY, ILLINOIS, UNLESS THAT LOCATION IS PROHIBITED BY LAW, IN WHICH CASE THE ARBITRATOR SHALL SELECT THE LOCATION OF THE ARBITRATION. ONE (1) ARBITRATOR SELECTED IN ACCORDANCE WITH THE AAA RULES WHO HAS EXPERTISE IN THE SUBJECT MATTER HEREOF WILL CONDUCT THE ARBITRATION. UNLESS OTHERWISE REQUIRED BY LAW, EACH PARTY WILL BEAR ITS OWN EXPENSES, INCLUDING ATTORNEYS' FEES, IN CONNECTION WITH THE ARBITRATION EXCEPT THAT PAYMENT OF THE FEES AND EXPENSES OF THE ARBITRATOR SHALL BE GOVERNED BY THE RULES OF THE AAA. THIS DUTY TO ARBITRATE WILL SURVIVE THE TERMINATION OF THIS AGREEMENT FOR ANY REASON. ALL CLAIMS WILL BE ARBITRATED INDIVIDUALLY AND THERE WILL BE NO CONSOLIDATION OR CLASS TREATMENT OF ANY CLAIM UNLESS PREVIOUSLY AGREED TO IN WRITING BY SPARKPLUG. THE ARBITRATOR SHALL NOT HAVE ANY AUTHORITY TO AWARD ANY SPECIAL OR PUNITIVE DAMAGES OR ANY OTHER DAMAGES EXCEPT AS PERMITTED BY THIS AGREEMENT. YOU WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIMS OR DISPUTES RELATING TO THIS AGREEMENT OR THE SERVICES. YOU WAIVE ANY RIGHT TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU AND SPARKPLUG AGREE THAT ANY CLAIM ARISING OUT OF OR RELATED TO THE SERVICES, SPARKPLUG EQUIPMENT, ADDITIONAL EQUIPMENT, INSTALLATION SERVICES OR OTHERWISE UNDER THIS AGREEMENT MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER THE EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM, OR THE CLAIM WILL BE PERMANENTLY BARRED.
21. General Provisions.
Force Majeure. Sparkplug shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control, including but not limited to, fire, flood, earthquake, acts of nature, explosion, war, acts of terrorism, labor dispute, or any governmental law, order, regulation or ordinance, civil disturbances, disruption of telecommunications, power or other essential services, or interruption or termination of service by the third party service provider being used by Sparkplug to link its servers to the Internet, or any malicious or unlawful acts of any third party, performance failures of parties outside the control of Sparkplug and/or any other cause beyond Sparkplug's reasonable control (each of which being, a 'Force Majeure Occurrence')
Independent Contractors; No Third-Party Beneficiaries. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of the parties hereto.
Waiver. Except as expressly provided herein, the failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
No Assignment. You may not assign, without the prior written consent of Sparkplug, any rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be void ab initio. Sparkplug may assign this Agreement at any time without notice to you. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors or permitted assigns.
Notice. All notices and other communications required or permitted hereunder shall be in writing and delivered via e-mail. Notice shall be effective when sent. Sparkplug shall send notice to you in accordance with the information in your Service Agreement or as otherwise specified by you in writing. You will promptly notify Sparkplug of any changes to any contact information contained on the Service Agreement. You shall provide notice to Sparkplug at the email address noted on the Sparkplug Web Site. You may change your address for notices hereunder by written notice to Sparkplug.
Entire Agreement; Severability; Construction. This Agreement, the incorporated policies and guidelines and your Service Agreement constitute the complete and exclusive statement of agreement between the parties, and supersede and merge all prior proposals and all other agreements, oral and written, between the parties relating to the subject matter of this Agreement. You acknowledge that no representation, promise, inducement or statement of intention has been made by Sparkplug which is not included herein. In the event that any provision of this Agreement (including any Service Agreements) shall be determined to be illegal or unenforceable, that provision will be eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement. This Agreement may be executed in one or more counterparts, including facsimile transmissions, each of which shall be an original against any party whose signature appears on such counterpart and all of which together shall constitute one and the same agreement.
Addendum 1: E911 Policies and Requirements
1. E911 Service
If Sparkplug provides Voice Services to you pursuant to your Service Agreement, this Addendum 1: Enhanced 911 ('e911') Policies and Requirements shall apply. E911 will not be available to you or any applicable End User in the event of (i) improper configuration of the equipment on the applicable Premises, (ii) an outage, degradation or other disruption of power at your End Users' location; (iii) an outage, degradation or other disruption of the End Users' Internet connection; (iv) a suspension of your account as a result of nonpayment or other breach of the Terms of Service or your Service Agreement; (v) your End Users' failure or delay in maintaining and updating Registered Location; (vii) your End Users' Registered Location being outside the Coverage Area; (viii) your End Users' actual physical location being outside the Coverage Area, whether or not your End User has updated his or her Registered Location.
You are required to obtain the initial Registered Location for each of your End Users, and to provide Sparkplug with the Registered Location of all End Users in the format prescribed by Sparkplug. In the event that a Registered Location is not a valid postal address in the USA or is not in the form prescribed by Sparkplug, the Registered Location shall not be validated. Until an initial Registered Location is validated, the Voice Services will not be available.
E911 is a service only available in the United States of America, and it will not work in locations outside the USA. In the event that your End User moves to a location outside of the USA, you must update the Registered Location to that location outside of the USA. For Registered Locations outside of the USA, Voice Services shall continue to be available, but neither E911 nor Operator Assisted 911 shall be available.
2. Your Obligations and Your End User's Obligations.
a. ACKNOWLEDGEMENT OF LIMITATIONS.
YOU ACKNOWLEDGE THAT SPARKPLUG'S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME MANNER THAT TRADITIONAL WIRELINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION AND END USER AGREES TO NOTIFY ALL POTENTIAL USERS OF THE SERVICES WHO MAY PLACE CALLS USING END USER'S SERVICES OF THE 911 LIMITATIONS DESCRIBED HEREIN. SPARKPLUG STRONGLY RECOMMENDS THAT YOU ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESSING 911 SERVICES VIA A TRADITIONAL PHONE LINE OR A WIRELESS PHONE.
b. Limitations Applicable to 911 Service.
In some states, or in certain areas within some states, even if you have Sparkplug E911 service, due to technical limitations of the 911 systems in those states or areas, the Public Safety Answering Point ('PSAP') or local emergency service dispatcher receiving Sparkplug E911 calls may not be able to capture and/or retain automatic number or location information. This means that the dispatcher may not know the phone number or physical location of the person who is making the 911 call. Therefore, if you dial 911 using Sparkplug service, you must immediately tell the dispatcher your name, address (or the location of the emergency, if different) and phone number. You must also take care not to disconnect the line. If you disconnect the line before you have given the dispatcher your phone number, the dispatcher may not be able to call you back. If you are unable to speak and describe your location, the dispatcher will not be able to locate you. Sparkplug cannot guarantee that all PSAPs will maintain lines to answer alternative 911 services. In the event that any PSAP shall provide reasonable notice to Sparkplug of its decision not to answer alternative 911 calls, Sparkplug shall make reasonable efforts to notify service users with registered service addresses within the area serviced by the PSAP. In addition, if you are using a WiFi handset or SoftPhone and have traveled away from the address registered initially with Sparkplug, and if you have not updated your then-current address, then 911 calls will be routed to the emergency center associated with the originally registered address, which may not be the location from which you are then-currently calling.
c. Registration of Physical Location Required.
For each phone number that you use for the Services, you must register with Sparkplug the physical location where you will be using the Services with that phone number. 911 calls will not function correctly if you move your Sparkplug Equipment to a location other than that provided when you registered for the Services. In such event, in order to have 911 calling routed correctly and for emergency responders to receive accurate location information, you must update your service address in accordance with the instructions on the Sparkplug Web Site. Unless you have updated your service address and allotted the advised time for the service address update provisioning to complete, Sparkplug recommends that you use alternative means of accessing 911. Failure to update your service address immediately after any instance in which you have moved your equipment may result in Sparkplug terminating your Services without notice to you or penalty to Sparkplug.
d. Service Outages.
(1) 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 Services, including 911 dialing, will not function until power is restored.
(2) Service Outages Due to Internet Outage or Suspension or Termination of Broadband Service or ISP Service. Service outages or suspensions or terminations of service by your broadband provider or ISP will prevent all Services, including 911 dialing, from functioning.
(3) Service Outage Due to Suspension or Termination of Your Sparkplug Account. Service outages due to suspension or termination of your account will prevent all Services, including 911 dialing, from functioning.
(4) 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 Services are provided or otherwise impede the usage of the Services. 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 Services are impeded, and unless and until the blocking or impediment is removed or the blocking or impediment is otherwise resolved, your Services, including the 911 dialing feature, may not function. You acknowledge that Sparkplug is not responsible for the blocking of ports by your ISP or broadband provider or any other impediment to your usage of the Services, 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 Services, you will continue to be responsible for payment of the charges for the Services unless and until you terminate the Services in accordance with the Agreement.
(5) Other Service Outages. If there is an outage of your Services for any reason, such outage will prevent all Services, 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.
(6) 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 Services as compared to traditional 911 dialing over traditional public telephone networks.
e. Disclaimer.
If you or your End User do not correctly identify the actual location where your equipment will be located at the time you register for the service, 911 communications may be misdirected to an incorrect local emergency service provider. If you or your End User have call forwarding, find me/follow me, do not disturb, or other features programmed and in use at the time you dial a 911 call, and your 911 call is interrupted, the emergency dispatcher may not be able to call you back at the phone from which you dialed the call. Sparkplug disclaims all responsibility for the conduct of local emergency response centers and the national emergency calling center. Sparkplug relies on third parties to assist in routing 911 calls to local emergency response centers and to a national emergency calling center. Sparkplug disclaims any and all liability or responsibility in the event such third party data used to route calls is incorrect, yields an erroneous result or if a 911 call cannot be completed. Neither Sparkplug nor its officers or employees may be held liable for any claim, damage, or loss. You hereby, and you will require each of your End Users prior to using the Services will, waive any and all such claims or causes of action, arising from or relating to the 911 dialing service unless such claims or causes of action arose from Sparkplug's gross negligence, or willful misconduct. You hereby agree to, and you will require each of your End Users prior to using the Services to agree to, defend, indemnify, and hold harmless Sparkplug, its officers, directors, employees, owners, affiliates and agents in connection with the Services, from any and all claims, losses (including loss of profits or revenue), damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorney fees) by, or on behalf of, you, End User, any third party or user of the Services that gained access to the use of Services from or through End User, relating to the failure or outage of the Services, including those related to 911 dialing. If you are not comfortable with the limitations of the 911 dialing service, you should consider having an alternate means of accessing traditional 911 or E911 services or terminating the Services. The disclaimers in this E911 Policies and Requirement Addendum are in furtherance and not in limitation of any disclaimers contained in the Agreement.
f. E911 Indemnification.
Sparkplug shall have no liability to you or an End User for any 911 call placed by an End User that fails to be completed to the appropriate PSAP or otherwise fails to function as contemplated. The foregoing liability disclaimer includes, but is not limited to (i) an End User's failure to provide and update a registered location that accurately corresponds with the End User's actual physical location; (ii) an End User's failure to properly operate the Services, including but not limited to configuration of any End User Equipment; (iii) an outage, degradation or other disruption of End User's internet service, electrical power at the End User location, or the End User local access connection; (iv) End User's failure to discharge any of its responsibilities specified in the Agreement and/or any responsibilities applicable to the End User in the FCC's VoIP E911 Order or in any applicable law, rule, or regulation; (v) a failure of the functioning of the facilities or services provided by an Underlying Provider or its agents; (vi) any error committed by the PSAP, its agents, or the public safety agencies it serves; and/or (vii) any third-party data used to route calls which is incorrect or yields an erroneous result. The indemnification provisions in this E911 Policies and Requirement Addendum are in furtherance and not in limitation of any indemnification contained in the Agreement.
Updated November 11, 2009
