Terms of Service
Effective Date: January 10, 2020
Last Updated: August 1, 2022
THESE TERMS SHOULD BE READ CAREFULLY, AS THEY AFFECT THE PARTIES’ LEGAL RIGHTS BY, AMONG OTHER THINGS, LIMITING MONSTER’S LIABILITY AND REQUIRING ARBITRATION OF CERTAIN DISPUTES.
THESE ONLINE TERMS AND CONDITIONS (the “Terms”), including all Quotes and Tickets which by this reference are incorporated herein, are a binding agreement between Carolina Digital Phone, Inc. doing business by the brand name Monster VoIP (“Monster”) and the legal entity identified in the Quote or Ticket (referred to as the “Customer”). Monster and Customer may be individually referred to as a “Party” or collectively as the “Parties.” These Terms shall govern all Quotes, Tickets, and any other contracts or agreements entered into between Monster and the Customer. In the event of any conflict among the documents that comprise the Terms, the following order of precedence shall apply: (i) a Quote (solely as to type, quantity, and pricing of the Services or Hardware ordered thereunder); (ii) a Ticket (solely as to the Services or Hardware ordered thereunder and the billing of amounts related thereto); (iii) these Terms; and (iv) Orders and Tickets (as to all other terms).
“ATA” refers to an Analog Telephone Adaptor.
“Covered Claim” means a claim that one Party intends to assert against the other Party, its affiliates, or any of their personnel, other than (a) provisional remedies related to claims related to infringement or misappropriation of intellectual property, or violations of Section 5 (Customer Conduct); (b) claims of Monster or its affiliates relating to billed amounts; and (c) claims that the other Party is expressly required to defend under these Terms.
“Duration” refers to the length of time that Monster provides Customer the Services as stated in the Quote or Ticket, (i.e. month-to-month, 1-year, 3-year, 5-year, etc.) beginning on the Start Date. Each renewal period following the initial Duration is considered a separate Duration.
“Electronic Signature” or “Electronically Sign(s)” means the process of an electronic sound, symbol, or other process, including clicking a digital button to accept, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.
“End User” means an individual user to whom Customer makes the Services available, and may be a natural person, and may include but is not limited to Customer’s employees, consultants, clients, external users, contractors, and agents.
“Fixed Service Fee” means any Services requiring a fixed monthly fee as stated in the Quote or Ticket and shall be payable monthly, in advance, plus all applicable taxes, tariffs, governmental assessments, surcharges and fees.
“Hardware” means any physical equipment sold, leased, or rented as part of a Quote or Ticket provided by Monster to Customer.
“IP Phone” refers to a hardware- or software-based telephone designed to use VoIP technology to send and receive phone calls over an IP network.
“Intellectual Property Rights” or “IP Rights” means all common law and statutory rights (whether registered or unregistered, or recorded or unrecorded, regardless of method) arising out of or associated with: (a) patents and patent applications, inventions, industrial designs, discoveries, business methods, and processes; (b) copyrights and copyright registrations, and “moral” rights; (c) the protection of trade and industrial secrets and confidential Information; (d) other proprietary rights relating to intangible property; (e) trademarks, trade names and service marks; (f) a person’s name, likeness, voice, photograph or signature, including without limitation rights of personality, privacy, and publicity; (g) analogous rights to those set forth above; and (h) divisions, continuations, continuations-in-part, renewals, reissuances and extensions of the foregoing (as applicable).
“IT” refers to Information Technology.
“LAN” refers to a Local Area Network.
“NRC” means a Non Recurring Charge, a one-time charge usually incurred for installation of Hardware.
“PBX” refers to a Private Branch Exchange.
“PoE” refers to Power over Ethernet, a technology for wired ethernet LANs that allows the electrical current necessary for the operation of each device to be carried by the data cables.
“QoS” refers to Quality of Service.
“Service(s)” means provisioning of voices services, Internet access (including shared bandwidth and dedicated lines), analog, digital, VoIP, or other domestic, international and toll free termination and origination, conferencing, hosting, server collocation, software sales and any related customer support services. This list is not exhaustive and may be modified by Monster at any time and in Monster’s sole discretion. In any event, Services shall refer to all services provided by Monster under these Terms and set forth in any Quote or Ticket.
“SIP” refers to a Session Initiation Protocol.
“Softphone” refers to a software telephone, an application program that enables VoIP telephone calls from computing devices.
“Software” has the definition and is subject to the terms detailed in Section 3.3.
“Start Date” means the date on which Customer Electronically Signs the Quote or Ticket as the case may be.
“Ticket” means any document that may be issued by Monster in Monster’s sole discretion to the Customer which details changes to, additions to, or subtractions from Services or Hardware at any time after the Start Date.
“Usage Fee” refers to the costs for those Services based on the usage by Customer and other variable factors plus all applicable taxes, tariffs, governmental assessments, surcharges and fees
“VoIP” refers to Voice over Internet Protocol.
IT Disclaimer. Supporting products and features such as Cloud PBX, remote IP phones, SIP Trunking, remote maintenance and Hardware updates involve access to the public internet. Customer understands and agrees that many of these services that utilize the public internet to operate can be negatively affected by Customer’s internet or network issues and outages. These issues can affect certain aspects of system operation. Additionally – Customer’s new telephone system may utilize VoIP (Voice over Internet Protocol) and reside on Customer’s company computer network. Customer represents and warrants that Customer’s LAN is capable of handling VoIP traffic and understands that Monster is relying on this representation in quoting Customer’s new system. If Customer is unsure if Customer’s LAN is capable of this, please check with Customer’s in-house or outsourced IT professional.
All phone system installations require cooperation from Customer’s in-house or outsourced IT professional. If Customer does not have an IT professional, Monster may be able to refer one to Customer. Monster shall collaborate to industry standards with Customer’s IT department or professional to ensure that the correct router/firewall/switch configurations are implemented for Customer’s particular application.
Customer understands and agrees that some system features and connectivity such as Cloud PBX, SIP Trunks, IP Phones, and Remote Maintenance are dependent on your IT department making necessary changes to Customer’s network router, firewall, or switch. Any necessary changes to Customer’s company network by Customer’s IT department or professional shall be at Customer’s expense. If these changes are not made correctly by Customer’s IT department – feature operation and functionality may be negatively affected.
Customer agrees that Monster is not responsible for any Customer IT issues (i.e. incorrect router, firewall or switch configuration, insufficient PoE budgeting, QoS and or loss of service or features) that are the direct or indirect result of incorrect router/firewall/switch configurations beyond the control of Monster. Additionally, if Monster is requested by Customer or their agent to correct network issues that are related to Customer’s network, through either incorrect network configuration or Customer’s IT professional, Customer agrees that Monster may charge Customer additional labor charges.
Toll fraud. If Customer requests that Monster enable international calling with their phone line carrier, Customer agrees to hold Monster harmless and without liability for any toll charges that are the result of unauthorized access and hacking.
Installation of Hardware and Software.
Installation Process. Monster and or its agents may from time to time supply Monster Hardware to be installed on Customer’s premises as requested to deliver the Service. Costs associated for the installation of Services and Hardware is defined within the Quote or Ticket. Customer may choose to self-install the Hardware Services at Customer’s own risk and expense. Monster Technical and Trouble Support for Customer self-installed services will be billed at the current prevailing wage for those services.
File Modification. As part of the installation process, system files on Customer’s computer may be modified for applications, including without limitation Tenfold, ReachUC and Salesforce. Monster does not represent, warrant, nor covenant that such modifications will not disrupt the normal operations of Customer’s computer. For these and other reasons, Customer agrees that Customer will back-up all files prior to any computer work performed by Monster or its agents. If Customer does not back-up all existing computer files, Customer understands and accepts the associated risks of not doing so. Monster SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM INSTALLATION OR FILE MODIFICATIONS.
SOFTWARE. The Services use and include certain software and/or firmware (the “Software”). Some Software resides on Hardware provided by Monster.
End User License Agreement. Customer’s use of any Software is subject to the End User License Agreement that accompanied that Software. With regard to any Software (including Software upgrades, changes, or supplements) which is not accompanied by an End User License Agreement, Monster, or its applicable third party licensors, grants Customer a limited, personal, nontransferable, and nonexclusive right and license to use the object code of its Software for the Services; provided that Customer does not (and does not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or structure, sequence and organization of, sell, assign, sublicense, distribute, rent, lease, grant a security interest in, or otherwise transfer any right in the Software. All licenses terminate immediately on the date that the Services expire or are otherwise terminated. Customer acknowledges that this license is not a sale of intellectual property and that Monster or its third-party licensors, providers, or suppliers continue to own all right, title, and interest to the Software and related documentation. The Software is protected by the copyright laws of the United States and international copyright treaties.
Export Limits. Customer shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and shall not export, or allow the export or re-export of the Software in violation of any such restrictions, laws or regulations. By downloading or using the Software, Customer agrees to the foregoing and represents and warrants that Customer is not located in, under the control of, or a national or resident of any restricted country or on any such list.
Restricted Rights. The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraphs (a) through (d) of the Commercial Computer Restricted Rights clause at 48 CFR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 and in similar clauses in the NASA FAR Supplement.
Non-Monster Software, Services or Applications. Customer’s use of the Services may also include access to and use of software, services and/or applications which interact with the Services and which are provided by non-Monster third parties, and, when applicable, those third-parties terms and conditions apply to Customer’s access to and use of such non-Monster software, services and/or applications. Monster is not liable to Customer for any loss or injury arising out of or caused, in whole or in part, by Customer’s use of any such software, services, and/or applications accessed through, or in conjunction with, the Services.
NOTICE ABOUT AUTOMATIC SOFTWARE UPGRADES.
Monster, or its applicable third-party licensors may provide Software upgrades, updates, or supplements (such as, but not limited to, adding or removing features or updating security components). Customer understands and agrees that Monster, or the applicable third-party licensor, have the unrestricted right, but not the obligation, to upgrade, update, or supplement the Software at any time. Although unlikely, Software upgrades, updates, or supplements could reset Customer’s Hardware and erase saved preferences and stored content and Monster shall have no liability for any erasure of saved preferences and stored content.
Prohibited Conduct. Neither Customer nor any End User may use or allow use of the Services, the Software, or the Hardware in any of the following ways:
Illegal or inappropriate behavior. Using the Services in any manner that is in violation of applicable law, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious, or invasive of another’s privacy.
Distracted driving. Use while driving or otherwise in an unsafe manner.
Spamming. Sending messages or advertisements, including email, voicemail, SMS, or faxes, without the consent of the recipient or otherwise in violation of applicable law.
Harvesting information. Harvesting or otherwise collecting information about others, including email addresses, without their consent or in breach of applicable data protection or privacy laws.
Auto-dialing. Performing auto-dialing or ‘predictive’ dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place outbound calls) in violation of applicable law, or in an excessive or otherwise abusive manner.
Transmitting viruses. Negligently, recklessly, knowingly, or intentionally transmitting any material that contains viruses, time bombs, Trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous.
ID spoofing. Creating a false caller ID identity (“ID spoofing”) or forged email/SMS addresses or headers, or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the Services.
Infringement of rights. Transmitting any material that may infringe, misappropriate, or otherwise violate the Intellectual Property rights, rights of privacy, personality, or publicity or other rights of Monster or third parties, including but not limited to the display or use of any Monster mark in any manner that violates Monster’s then-current policies on its trademark and logo usage or without Monster’s express prior written permission, or display or use of any third-party mark without the prior written permission of the third party that owns any such third-party mark.
Derivative Works. Undertaking, directing, attempting, causing, permitting, or authorizing the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Services or any other Software or Hardware.
Illegal communications. Transmitting any communication that would violate any applicable law, or using the Services or Hardware to facilitate any illegal activity.
Excessive usage. Utilizing the Services in excess of what, in Monster’s reasonable discretion, would be expected of normal business use.
Interfering with another customer’s use of the Services. Using the Services in any way that interferes with, disrupts, prevents or restricts other customers’ and third parties’ use and enjoyment of the services.
Network Interference. Interfering with, or disrupting, networks or systems connected to the Services.
Avoiding compliance. Using or employing methods and/or devices that are designed or likely to take advantage of, bypass, exploit, or otherwise avoid compliance with these Terms or applicable law.
Granting rights to third parties with respect to the Services. Selling, reselling, distributing, leasing, exporting, importing, or otherwise granting or purporting to grant rights to third parties with respect to the Services, and any Software or Hardware or any part thereof without Monster’s prior written consent.
Unauthorized usage. Undertaking, directing, attempting, causing, permitting, or authorizing the copying, modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Services or any Software and Hardware or part thereof.
Circumvention of security measures. Defeating, disabling, or circumventing any security mechanism related to the Services or Hardware.
Interception. Intercepting, capturing, sniffing, monitoring, modifying, emulating, decrypting, or redirecting, any communication or data for any purpose, including, without limitation, by causing any product to connect to any computer server or other device not authorized by Monster or in any manner not authorized in advance in writing by Monster.
Unauthorized repair. Allowing any service provider or other third party – with the sole exception of Monster’s authorized maintenance providers acting with Monster’s express, prior authorization – to use or execute any software commands that facilitate the maintenance or repair of any Software or Hardware.
Unauthorized Access. Gaining access to or using (or attempting to gain access or use) any device, system, network, account, or plan in any unauthorized manner (including without limitation through password mining).
Trunking. Engaging in or to allowing trunking or forwarding of Customer’s Monster telephone or facsimile number to (an)other number(s) capable of handling multiple simultaneous calls, or to a PBX or a key system.
Traffic Pumping. Engaging in or allowing traffic pumping or access stimulation of calls through Customer’s Services or the Monster systems.
Using any Monster Mark without consent. Displaying or using any Monster mark in any manner in violation of the then-current Monster policies on its trademark and logo usage or without Monster’s express, prior written consent, to be granted or denied in Monster’s sole discretion.
Using any third party’s mark without consent. Displaying or using any third party’s mark without the prior, written consent of the third party that owns that mark.
Protected Health Information. If Customer qualifies as a “covered entity,” “business associate,” or “subcontractor” under HIPAA or are otherwise subject to HIPAA: (1) transmitting, receiving, or storing protected health information (“PHI”) on a non-temporary basis, transmitting or receiving PHI; or otherwise using the Services in violation of HIPAA.
Service Interruptions; Prorated Credit. Except as otherwise required by law, Customer is entitled to a prorated credit upon request only in the event of a complete failure of the Services due to technical malfunction of the system or network operated by Monster for a period of twenty-four (24) consecutive hours or more. To obtain a credit, Customer must request a credit in writing to Monster within thirty (30) days of the failure. Credits shall be applied against any fees due to Monster for the Services or Hardware. In any case, Monster is not required to pay Customer any amount at all. Monster is not required to extend Customer a credit for any amount in excess of the amount of fees due to Monster by Customer for the Services or Hardware. No credit will be provided for failures caused by factors described in Section 18.5. (Force Majeure).
Automatic Renewal & Termination.
Automatic Renewal; Customer Termination Process. Monster’s provision of the Services shall automatically renew for a period equal to the initial Duration as defined in “Definitions” section on the expiration of each Duration unless Customer provides written notice of cancellation to Monster at least thirty (30) days before the end of each Duration.
End-User agrees to provide Monster with thirty (30) days notice of termination. End-User shall be responsible for the full monthly service fee for the month during which the notice of termination of service is provided to Monster until the end of the service month.
For all Services with a Fixed Service Fee, Customer may only terminate those Services prior to the end of the each Duration by giving a thirty- (30-) day written notice to Monster and by payment of an amount equal to the number of months remaining in the Duration multiplied by the amount of the monthly Fixed Service Fee (a “Fixed Service Fee Termination Amount”). For Services billed with Usage Fees, Customer may only terminate prior to the end of the Duration by giving a thirty- (30-) day written notice to Monster and by payment of an amount equal to the number of months remaining in the Duration multiplied by the average of the prior three (or if less than three months have elapsed, the average of the actual number of months elapsed) months’ Usage Fees (a “Usage Fee Termination Amount”). All such types of fees described in this Section 7 are collectively or individually referred to as a “Termination Fee.” ANY CUSTOMER TERMINATION NOTICE WHICH IS NOT ACCOMPANIED BY THE APPLICABLE TERMINATION FEE AND RETURN OF ANY HARDWARE TO THE MONSTER OFFICES WILL RESULT IN THE CUSTOMER’S TERMINATION NOTICE DEEMED NULL AND VOID.
Early Termination of 12-, 24-, or 36-month Commitment. Notwithstanding any other part of these Terms, if Customer elects in any Quote to receive discounted Services for twelve- (12-), twenty four- (24-), or thirty six- (36-) month Durations, then that election is a binding commitment by Customer to pay Monster the entire discounted price of the Services for the Duration. Customer is responsible for payment of the entire amount without regard to termination of Services, and without regard to whether Services are terminated by Customer or by Monster. Customer is not entitled to any refund upon early termination of the Services.
Termination by Monster. Monster may terminate the Services immediately should Customer violate any of these Terms. Monster may also terminate the Services for any other reason by providing Customer written notice of such termination no later than thirty (30) days before the date of termination. In the event that Monster terminates the Services for any reason other than Customer’s violation of these Terms, Fixed Service Fees, Usage Fees and other charges will continue to accrue through the date of termination, but all prepaid fees and charges for terminated Services will be refunded, except as provided in Section 7.2. If termination is due to violation of these Terms, Customer will owe Monster a Termination Fee as the case may be.
Customer Obligations. Customer agrees that upon termination of this Agreement for any cause
Except as provided in Section 7.2, Customer will pay Monster in full for Customer’s use of the Services and Hardware up to the later of (i) the effective date of termination of the Services or (ii) the date on which the Hardware has been disconnected, returned to, and received by Monster.
Customer will permit Monster, its employees, agents, contractors and representatives to access Customer’s premises during regular business hours to remove the Hardware.
Customer will ensure the return of all rental Hardware to Monster. If the Hardware is not returned, Customer agrees to pay the Manufacture’s Suggest Retail Price (MSRP) of each component of the Hardware, prorated over a five-year term. For example, if the current MSRP for a phone is $200 and the Customer fails to return that phone after one year of service rental, the customer will be billed $180 for the phone; if the customer fails to return that phone after four years of service rental, the customer will be billed $40 for that phone. Customer authorizes Monster to charge such amounts to Customer’s credit card, or to electronically debit Customer’s bank account in Monster’s sole discretion.
Number of Devices. Customer, upon request by Monster, which request may not be made more frequently than monthly, shall provide information regarding the number of desktop and/or portable computers and other electronic devices connected to the Services and Hardware during any month.
Retention of Rights. Nothing contained in this Agreement shall be construed to limit Monster’s rights and remedies available at law or in equity. Customer, upon request by Monster, shall provide information in a timely fashion regarding the brand/model of phone system(s), the number of desktop, portable, mobile, or other electronic devices, and/or applications (apps) connected to the Services and Hardware.
Internet Content. There may be some content on the Internet or otherwise available through the Services which may be offensive to some individuals or which may not be in compliance with all local, state, or federal laws, regulations, and other rules. Monster assumes no responsibility for the content contained on the Internet or otherwise available through the Services. All content accessed by the Customer and any End Users through the Services is accessed and used by the Customer and End Users at their own risk and Monster and each of its representatives, affiliates, subcontractors, employees, and agents, shall have no liability whatsoever for any claims, losses, actions, damages, suits, or proceedings arising out of or otherwise relating to access to such content by the Customer or the Customer’s employees, affiliates, agents, representatives, or any End Users. Monster specifically disclaims any responsibility for the accuracy, quality, and confidentiality of information obtained through the Services.
Voicemail. Customer’s Service may include a full-featured voicemail service. If Customer accesses Customer’s voice mailbox from outside Customer’s local calling area, Customer may incur applicable local toll or long distance charges. Voicemail may include a voicemail-to-text (VMTT) feature that provides automated transcription of your voicemail. Monster is not responsible nor liable for: 1) errors in the conversion of or its inability to transcribe voicemail messages to text/email; 2) lost or misdirected messages; or 3) content that is unlawful, harmful, threatening, abusive, obscene, tortious, or otherwise objectionable. Monster does not filter, edit or control voice, text, or email messages, or guarantee the security of messages. Monster can interrupt, restrict, or terminate VMTT without notice, if Customer’s use of VMTT adversely impacts Monster’s network, for example use that could occur from abnormal calling patterns or an unusually large number of repeated calls and messages; or if Customer’s use is otherwise abusive, fraudulent, or does not comply with the law. Customer is solely responsible for and will comply with all applicable laws as to the content of any text messages or emails Customer receives from VMTT that Customer forwards or includes in a reply to any other person. Customer authorizes Monster or a third party working on Monster’s behalf to listen to, and transcribe all or part of a voicemail message and to convert such voicemail message into text/email, and to use voicemail messages and transcriptions to enhance, train and improve Monster’s speech recognition and transcription services, software and equipment. Transcription times are not guaranteed.
Users. Customer acknowledges that Customer, by affixing an Electronic Signature to a Quote, agrees to these Terms on behalf of all persons who use the Service and/or Hardware through Customer’s computer(s), phone systems, PBXs and other telecommunications equipment and electronic devices. Customer shall have sole responsibility for ensuring that all End Users understand and comply with these Terms. Customer further acknowledges and agrees that Customer is solely responsible and liable for any and all breaches of these Terms whether such breach is the result of use of the Services and/or the Hardware by Customer or by any other user of Customer’s computer(s), phone systems, PBXs and other telecommunications equipment, including End Users.
DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES AND HARDWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND MONSTER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE, TOGETHER WITH SIMILAR WARRANTIES, WHETHER ARISING UNDER ANY LAW OR OTHERWISE. TO THE EXTENT THAT MONSTER CANNOT DISCLAIM ANY SUCH WARRANTY, AS A MATTER OF APPLICABLE LAW THE SCOPE AND DURATION OF THAT WARRANTY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
LIABILITY EXCLUSIONS. UNLESS OTHERWISE SPECIFICALLY AND EXPRESSLY PROVIDED IN THESE TERMS OR OTHERWISE PROVIDED BY LAW, NEITHER MONSTER, NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS SHALL HAVE ANY LIABILITY TO THE CUSTOMER OR TO ANY THIRD PARTY FOR:
ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, OR DAMAGES OF ANY KIND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF THE DAMAGED PARTY HAS BEEN INFORMED IN ADVANCE THAT SUCH DAMAGES WERE REASONABLY FORESEEABLE. THIS INCLUDES WITHOUT LIMITATION ANY DAMAGES RESULTING FROM OR ARISING OUT OF THE CUSTOMER’S RELIANCE ON OR USE OF THE SERVICES, SOFTWARE, OR HARDWARE, INCLUDING WITHOUT LIMITATION E911, OR THE MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION OR ANY FAILURE OF PERFORMANCE OF THE SERVICES, SOFTWARE, OR HARDWARE; OR
ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, OR COSTS (INCLUDING LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING ARISING OUT OF OR RELATED TO A CONTENTION THAT THE USE OF THE SERVICES, SOFTWARE, OR HARDWARE OR ANY SOFTWARE OR HARDWARE OF ANY THIRD PARTY INFRINGES UPON THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY OR OTHER INTELLECTUAL PROPERTY RIGHTS, CONTRACTUAL RIGHTS, OR ANY OTHER RIGHTS OF ANY THIRD PARTY.
DIRECT DAMAGES CAP. IN ANY EVENT, THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH MONSTER IN RELATION TO OR ARISING OUT OF THE SERVICES OR HARDWARE IS A REFUND NOT TO EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER TO MONSTER FOR SERVICES DURING THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD.
Indemnification. Customer agrees to indemnify and hold Monster and its subsidiaries, affiliates, directors, officers, agents, and employees harmless from any claim, demand, action, citation, or legal proceeding, including, but not limited to, those arising out of or resulting from the death or bodily injury of any person, or the damage, loss, or destruction of any real or tangible personal property, or for attorneys’ fees, made by any party against Monster, its subsidiaries, affiliates, directors, officers, agents, and employees arising out of or related to Customer’s use of or inability to use the Services, including without limitation E911, the Software, or the Hardware, Customer’s connection to the Services including without limitation E911, the provisioning or alleged failure to provide the Services including E911, a violation of any provision of these Terms, or Customer’s violation of any rights of any third party.
No Third Parties. No third party, including without limitation any owner or manager of Customer’s building or land is a party to any agreement between Monster and Customer. Monster is not liable to any third party for any aspect of the Services or Hardware, including without limitation installation or functionality.
Sole Remedies. Customer’s sole and exclusive remedies arising out of or related to the Services, Software, or Hardware are as set forth in these Terms.
E911. The Federal Communications Commission (“FCC”) requires that Monster provide E911 Service to all customers who use Services within the United States.
THE CUSTOMER ACKNOWLEDGES THAT MONSTER’S EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS IN THE SAME WAY THAT TRADITIONAL LANDLINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION AND THE CUSTOMER HEREBY AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICES, INCLUDING END USERS, WHO MAY PLACE CALLS USING THE SERVICES, OF THE 911 LIMITATIONS DESCRIBED HEREIN. THE CUSTOMER AFFIRMATIVELY ACKNOWLEDGES THAT MONSTER HAS ADVISED THE CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH MONSTER E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. MONSTER ADVISES CUSTOMERS TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
THE CUSTOMER ACKNOWLEDGES THAT E911 WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
THE CUSTOMER ACKNOWLEDGES THAT E911 WILL NOT FUNCTION PROPERLY IF THERE IS AN INTERRUPTION OR A LACK OF BANDWIDTH ON THE CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
THE CUSTOMER ACKNOWLEDGES THAT E911 IS NOT SET UP TO FUNCTION WITHOUT DIALING SYSTEMS INCLUDING HOME OR BUSINESS SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, SURVEILLANCE CAMERAS, AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. THE CUSTOMER HEREBY WAIVES ALL CLAIMS AGAINST MONSTER FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY E911.
MONSTER E911 IS A MANDATORY COMPONENT OF ALL INBOUND/OUTBOUND FAX AND VOICE SERVICE PLANS. E911 IS NOT OFFERED ON INTERNATIONAL NUMBERS, TOLL-FREE NUMBERS, OR SIMILAR SERVICE ACCESSORIES OR ADD-ON PLANS. E911 IS ONLY AVAILABLE IN SELECTED AREAS. CUSTOMERS WHO SUBSCRIBE TO MONSTER E911 SERVICE WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF THEIR VOIP EQUIPMENT WITH MONSTER, EITHER ON THE MONSTER USER PORTAL, QUOTES, OR BY CALLING CUSTOMER SERVICE, AND THE CUSTOMER AGREES TO UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES. THE CUSTOMER ACKNOWLEDGES THAT MONSTER’S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY REGISTERED FOR THE ACCOUNT. THE CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY MONSTER WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO MONSTER BY THE CUSTOMER.
THE CUSTOMER ALSO ACKNOWLEDGES THAT MONSTER E911 HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE MONSTER’S E911 SERVICES UNSUITABLE FOR SOME CUSTOMERS. BECAUSE EACH CUSTOMER’S CIRCUMSTANCES MAY VARY WIDELY, CUSTOMERS SHOULD CAREFULLY EVALUATE THEIR OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON MONSTER E911 SERVICE. THE CUSTOMER ACKNOWLEDGES THAT IT IS THE CUSTOMER’S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET THE CUSTOMER’S EMERGENCY CALLING NEEDS AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH MONSTER E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
E911 SERVICE WILL NOT FUNCTION IF THE CUSTOMER’S ATA OR IP PHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF THE CUSTOMER’S SERVICES ARE NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, THE CUSTOMER MAY BE REQUIRED TO RESET OR RECONFIGURE THE HARDWARE BEFORE BEING ABLE TO USE MONSTER E911.
AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY CHANGE OF AND UPDATE TO THE CUSTOMER’S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO MONSTER’S NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING MONSTER E911 CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE MONSTER NETWORK, THERE IS A POSSIBILITY THAT AN E911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
IF A CUSTOMER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE HARDWARE WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, MONSTER E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
THE CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT MONSTER WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING THE SERVICES OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THESE TERMS.
Fraudulent Calls. In the event Customer connects the Services to the public switched network, Customer is solely responsible for the selection, implementation, and maintenance of security features for protection against unauthorized calling, and Monster shall have no liability therefor. The customer is solely responsible for payment of long-distance, toll, and other telecommunications charges incurred through the use of the Services. Customer shall not be relieved from paying Monster for Services or any portion of Services on the basis that fraudulent calls comprised a portion of the Services. In the event Monster discovers fraudulent calls being made, Monster may take any immediate action, without notice to Customer that in Monster’s sole discretion is reasonably necessary to prevent such calls from taking place. Notwithstanding, it is understood that Monster is under no obligation to investigate the authenticity of calls charged to Customer’s account and is not liable for any fraudulent calls billed to Customer’s account.
Unlimited Minutes Plans. Any unlimited-minute plans are subject to the following provisions:
Unlimited minute extensions are subject to fair use restrictions.
All unlimited plans may only be used for normal business purposes, not including call centers or other types of “call blasts” or marketing campaigns unless expressly authorized by Monster in writing.
Unlimited minute plans are provided only for dialog between two individuals at any given time, per extension.
Unlimited minute plans generally exclude international calling. International calling may be available for an additional fee.
Unlimited minutes are issued on a “single-concurrent-call basis”, meaning that in case of concurrent (simultaneous) calls, only the first call will be unlimited and other concurrent calls will be assessed minutes. The term “Unlimited Minutes” applies only to calls that are terminated or initiated from a Monster extension associated with an IP Phone or a Softphone that is defined as an “Unlimited Minutes Extension” or “Unlimited Extensions,” and does not overlap with any calls to the same extension.
Unlimited minute plans may not be used for any of the following prohibited uses (which are in addition to the other prohibited uses in these Terms):
Trunking or forwarding Customer’s number to (an) another phone number (s) capable of handling multiple simultaneous calls, or to a PBX or a key system that is billed on a per-minute basis only, unless otherwise specifically and expressly agreed in writing.
Spamming or blasting, which shall be defined as sending one hundred (100) or more bulk and/or junk voicemail or faxes simultaneously.
Bulk call-in lines including without limitation customer support or sales call centers, “hotlines”, 900 numbers, or sports-line numbers.
Auto-dialing or “predictive” dialing includes without limitation non-manual dialing or using a software program or other means to continuously dial or place outbound calls.
Any other unusually high usage of the unlimited minutes plans which impair Monster’s ability to provide high-quality Services to other customers and/or indicate unauthorized use of the Services, in which case Monster may suspend or terminate Customer’s account or, upon prior notice, convert Customer’s account to a different plan that charges higher usage rates.
Inbound toll-free calls from a toll-free number assigned to this account will be billed separately.
Pre-Filing Notice. Each Party shall, before initiating an arbitration, court or other action, suit, or proceeding against the other Party, its affiliate, or their personnel in respect to any Covered Claim (each a “Proceeding”), provide written notice to the other Party describing in reasonable detail its contentions and the specific provisions of the Terms, if any, allegedly breached. The Parties shall work diligently and in good faith for thirty (30) days following such notice to attempt to resolve the dispute, including without limitation by ensuring that knowledgeable executives of each Party hold at least one meeting (in person or by video or teleconference) to such end. If the Parties fail to resolve the dispute within such thirty- (30-) day period, either Party may thereafter initiate the Proceeding in accordance with these Terms (and without satisfying any further notice or cure period under the Terms). FAILURE TO COMPLY WITH THIS SECTION 16.1 (PRE-FILING NOTICE) MAY BE PLEADED AS A FULL AND COMPLETE BAR AND DEFENSE TO AND MAY BE USED AS A BASIS FOR AN INJUNCTION AGAINST, ANY PROCEEDING INSTITUTED IN CONTRAVENTION THEREOF.
Mandatory Arbitration. (IF THE CUSTOMER IS DOMICILED IN THE US, THIS SECTION 16.2 (MANDATORY ARBITRATION) SHALL APPLY TO ALL COVERED CLAIMS; OTHERWISE, IT SHALL APPLY TO ONLY COVERED CLAIMS RELATING TO SERVICES PROVIDED IN THE US.) COVERED CLAIMS SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”). Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. This agreement to arbitrate also requires Customer to arbitrate claims against other parties relating to Services provided or billed to Customer if Covered Claims are asserted against Monster in the same proceeding. The arbitration will be conducted under AAA’s published commercial arbitration rules. Customer and Monster agree to bear their own fees, costs, and expenses, including those for any attorneys, experts, and witnesses. The place of arbitration shall be Greensboro, North Carolina. The language of the arbitration shall be English.
Venue. Except for Covered Claims or as otherwise provided in Section 16.2., in the event that the Parties are unable to resolve any dispute, any related action, lawsuit, or proceeding shall be brought in and adjudicated by state or federal courts located in the city and county of Guilford, Greensboro, North Carolina, United States of America. Each Party hereby irrevocably consents to and agrees to submit to the exclusive venue and personal jurisdiction of such courts with respect to any such actions, lawsuits, or proceedings (except as provided in Section 15.2) and irrevocably waives any right that the Party might have to assert that either forum is not convenient or that any such courts lack personal or subject matter jurisdiction.
Attorneys’ Fees. Except with regard to any matter submitted to arbitration under Section 16.2., and in any case except with regard to Covered Claims, if any dispute, litigation, or other action or proceeding arises between the Parties arising out of or related to these Terms or the Services, the Software, or the Hardware, the prevailing Party in such proceeding shall be entitled to receive its actual attorney’s fees, expert witness fees, and out of pocket costs incurred in connection with that action, litigation, or proceeding, in addition to any other relief it may be awarded.
Notices. All notices permitted or required under these Terms shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally, (ii) by commercially established courier service upon delivery or, if the courier attempted delivery on a normal business day and delivery was not accepted, upon attempted delivery, (iii) by facsimile transmission when confirmed by facsimile transmission, or (iv) by certified or registered mail, return receipt requested, ten (10) calendar days after deposit in the mail. Such notices shall be sent to the addresses set in the Quote or such other address as a Party shall notify the other Party in writing.
If to Monster:
US Mail: 301 S Elm Street, Suite 601, Greensboro, NC 27401
If to Customer:
US Mail & Fax: As indicated in the Quote.
Electronic Signature and Counterparts. An agreement between Monster and Customer may be executed electronically and in separate counterparts, each of which when taken together will constitute one in the same original. Each Party agrees that an Electronic Signature, whether digital or encrypted, is intended to authenticate any agreement between the Parties and to have the same force and effect as manual signatures.
Headings. The headings in these Terms are inserted for convenience and do not constitute a part of these Terms, nor do the headings modify or limit any part of these Terms.
Assignment. Monster may assign its rights and obligations under these Terms to any party without the consent of Customer. Customer may not assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of Monster.
Relationship of the Parties. The Parties’ relationship under the Terms is that of independent contractors. Nothing in the Terms shall constitute or create any employment, partnership, association, joint venture, agency, or fiduciary relationship between the Parties. Neither Party shall have the authority to bind or obligate the other Party in any way.
Force Majeure. Excluding either Party’s payment obligations under the Terms, neither Party shall be responsible or liable for any failure to perform or delay in performing to the extent resulting from any event or circumstance that is beyond that Party’s reasonable control, including without limitation any act of God; national emergency; riot; war; terrorism; governmental act or direction; laws; failure, outage, or unavailability of third party network(s), products, or system(s); fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; earthquake; storm; hurricane; flood, fire, or other natural disasters; or strike or labor disturbance. In the event that the affected Party is prevented from performing an obligation under the Terms for more than forty-five (45) consecutive days, either Party may terminate the Services on written notice to the other Party.
Third-Party Beneficiaries. Nothing in the Terms, express or implied, is intended to or shall confer upon any person or entity other than the Parties themselves any right, benefit, claim, or remedy as a third-party beneficiary or by any other nature whatsoever under or by reason of the Terms.
Execution. Each Party represents and warrants that: (i) it possesses the legal right and capacity to agree to these Terms and to perform all of its obligations thereunder; (ii) the individual Electronically Signing the Quote on that Party’s behalf has full power and authority to execute and deliver the same; and (iii) the Terms are a binding obligation of that Party.
Choice of Law. These Terms, and any other agreement regarding the Services between Customer and Monster, are exclusively governed by and intended to be construed under the laws of the State of North Carolina. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or the Customer’s use of the Services.
Class Action Waiver. Any actions, lawsuits, or proceedings shall be conducted solely on an individual basis and the Parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or in any other proceeding in which any Party acts or proposes to act in a representative capacity.
Equitable Relief. Customer agrees that any breach of Monster’s IP Rights, or of any provisions of Section 5 (Customer Conduct) will cause Monster irreparable harm for which monetary damages will be inadequate and that Monster may, in addition to other remedies available at law or in equity, obtain injunctive relief without the necessity of posting a bond or other security, proof of damages, or similar requirement.
No Waiver. Except as expressly provided in these Terms, in no event will any failure or delay by a Party to assert or exercise any right, demand fulfilment or performance of any obligation, or avail itself of any remedy under these Terms, in whole or in part, be deemed a waiver of any right or remedy under these Terms on such occasion or any other occasion. Except as otherwise expressly provided in these Terms, all rights and remedies stated in these Terms are cumulative and in addition to any other rights and remedies available at law, or in equity.
Entire Agreement. These Terms constitute the entire agreement between the Parties and supersede and replace any and all prior or contemporaneous understandings, proposals, representations, statements, or agreements, whether oral, written, or otherwise, regarding the Services, the Software, or the Hardware. Monster expressly rejects in their entirety any additional or conflicting terms or conditions contained in any order confirmation, sales acknowledgment, purchase order, or similar document, which the Parties agree are solely for their convenience.
Severability. If any provision or portion of the Terms is determined to be invalid, unlawful, illegal, void, or unenforceable, in whole or in part, then (i) that provision or portion shall be construed in such a manner as to render the provision or portion enforceable and, to the extent possible, to reflect the Parties’ original intent and (ii) the remaining provisions and portions of the Terms shall remain in full force and effect.
Survival. The following shall survive termination of these Terms or the Services:
Customer’s payment obligations;
Terms relating to IP Rights, Customer representations, Customer Conduct, confidentiality, storage of user information, publicity rights, non-disparagement, indemnification, warranty disclaimers, limitations of liability, dispute resolution and arbitration, and choice of law; and
All other provisions are intended by their nature to survive the termination of this Agreement.