SE TELECOM TERMS OF SERVICE
The SE Telecom Clear Cloud service is designed for general business use. This Acceptable Use Policy (“AUP”) applies to all SE Telecom customers (each a “Customer” or “you”) and is intended to assist in maintaining the integrity of our network and maintaining high performance standards. If you fail to comply with the AUP, SE Telecom may (in addition to any other rights or remedies it may have) suspend your service (if full or part), delete your communications or data and/or terminate your service agreement with SE Telecom (“Agreement”).
FAIR AND REASONABLE USE
Customer is prohibited from utilizing the SE Telecom Clear Cloud service for anything other than making such services available to its employees, consultants, contractors, or agents who are authorized by Customer to use the Service (“Users”) via the SE Telecom network, in accordance with all applicable federal and state regulations, and is specifically restricted from reselling the SE Telecom service to other telecommunications carriers or customers who may least cost route their traffic to the SE Telecom network via Customer.
30 DAY CANCELLATION FOR NEW PURCHASES
Customer may cancel any services purchased under this Agreement with written notice to SE Telecom within thirty (30) days of the date in which the purchase becomes effective. In the event of a timely cancelation, Customer shall not owe any fees or charges for the services being canceled in respect of any period subsequent to the date of such written notice (except those arising from continued Usage), and shall be entitled to a pro-rata refund of any prepaid and unused fees for the services subject to the cancelation. All purchases are final after 30 days.
Customers shall not (and shall ensure that its Users do not) use the Clear Cloud Services:
(a) To send or receive any content which is obscene, defamatory, offensive or infringes any third-party rights (including intellectual property rights);
(b) For any purpose which breaches applicable laws or regulations, or which is in breach of the Agreement;
(c) To transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of solicitation or spam;
(d) To impersonate any person or entity or otherwise misrepresent your, or SE Telecom’s, relationship with any person or entity;
(e) To attempt to gain unauthorized access to, or cause or attempt any interference, in whatever form, with the proper working of any SE Telecom service, network or software;
(f) To knowingly transmit any data, send or upload any material that contains viruses, trojan horses, worms, time-bombs, keystroke loggers, spyware,
adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;
(g) To use IRC servers or bots connected to public IRC networks or servers;
(h) To circumvent User authentication or security of any host, network or account; or
(i) Otherwise in breach of any instructions issued by SE Telecom from time to time.
SECURITY AND PENETRATION TESTING OF SE TELECOM MANAGED SERVICES
Any form of security testing (also known as penetration testing) on any system managed by SE Telecom is subject to SE Telecom’s prior written authorization. The request for authorization is to be submitted to SE Telecom representative giving at least five (5) working days’ notice. Authorization request should include the scope of the testing activity as well as planned start and end times. SE Telecom technical teams will then review the request and identify the set of addresses / systems that can be included in the testing activity and issue an authorization e-mail to the customer.
BEFORE USING THE SE TELECOM SERVICES PLEASE READ THESE END USER TOS OF SERVICE (THESE “TOS”). THESE TOS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” IN THE ORDER FORM (“CUSTOMER”). PURSUANT TO THESE TOS, CUSTOMER SHALL HAVE THE RIGHT TO USE THE SE TELECOM SERVICES. THESE TOS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND SE TELECOM, INC., ITS AFFILIATES AND SUBSIDIARIES (“SE TELECOM”) EFFECTIVE AS OF THE DATE OF CUSTOMER’S EXECUTION OF THE ORDER FORM.
CUSTOMER IS ADVISED TO READ SECTION 7 CAREFULLY BEFORE USING THE SERVICE. THIS SECTION EXPLAINS THE OPERATION AND LIMITATIONS OF VOIP E911 EMERGENCY CALLS.
These Terms of Service govern and apply to Customer’s use of the SE Telecom Services and Equipment provided by SE Telecom as well as Customer’s access to the SE Telecom website (the “Website”).
1.1 Installation, Initiation, and Service. SE Telecom will begin installation, initiation and Service only after it receives and accepts the following: (1) a duly executed Order Form; and (2) any amounts payable in advance in accordance with the applicable Order Form. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any discussions, oral or written public comments made by SE Telecom with respect to future functionality or features.
1.2 Service Fees. Customer agrees to pay all monthly service charges, installation charges, set-up charges, usage-based charges, rental fees and other charges and fees (collectively, “Service Fees”) agreed to in each Order Form in the manner indicated therein.
1.3 Invoicing. Customer will be invoiced a month in advance for non-usage-based charges and in arrears for all usage-based charges unless otherwise indicated in the Order Form. “Service Activation Date” means the date in which a particular Service is available for use. Services shall be deemed accepted by Customer on the Service Activation Date. SE Telecom will notify Customer in accordance with the information provided by Customer or in the SE Telecom website Customer Portal.
1.4 Payment. Unless otherwise stated in the Order Form, Service Fees are due 30 days from the date of the invoice. All Service Fees are quoted in United States currency and are based on Services ordered. Any payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid.
1.5 Suspension of Service. If any Customer account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute) SE Telecom reserves the right to suspend or disable the Services, after providing notice to Customer without liability to SE Telecom, until such account is paid in full.
1.6 Taxes and Regulatory Fees. Unless otherwise stated in the Order Form, Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, other than SE Telecom’s income taxes, with respect to the Services ordered. In addition to any taxes imposed by the government or regulatory agencies, SE Telecom reserves the right to charge other authorized regulatory fees, including, without limitation, E911 service fees, universal service fees, and regulatory recovery fees (“Fees”). Any imposition, modification or increases in Fees by a government or regulatory agency or that are intended to recover costs associated with government or regulatory programs shall become effective upon prior notice to Customer.
2. Other Networks; Approval and Usage. SE Telecom Services require the ability to transmit data through third party networks and carriers, public and private (“Third Party Networks”). Customer acknowledges that use of or presence of third party networks and carriers may require approval of the owners or operators of such Third Party Networks, and will be subject to any terms and conditions that such Third Party Networks may establish. Customer understands that SE Telecom does not own or control the Third Party Networks, and agrees that SE Telecom shall not be responsible or liable for the performance or non-performance of the Third Party Networks, or within interconnection points between the Service and the Third Party Networks.
3.1. Term of the Agreement. This Agreement commences on the date of execution of the Order Form by Customer and continues until all Services expire or this Agreement is terminated by SE Telecom.
3.2. Term of the Services. The Services are offered for the initial term of service specified in the Order Form (the “Initial Service Term”). The Initial Service Term shall begin on the Service Activation Date (the “First Service”). Following the Initial Service Term, Services shall automatically renew for additional terms equal to the Initial Service Term at the New Service Monthly Commitment (as such term is defined below) in effect at the time of renewal (each, a “Renewal Term”) unless and until either party notifies the other party in writing at least thirty (30) days prior to the expiration of the Term in effect at the time that it does not wish to renew the Services (the Initial Service Term and any Renewal Term collectively referred to as the “Term”). If, during the Initial Term or any Renewal Term, Customer adds any additional services to its use of the Service, the amount of Customer’s monthly recurring charges shall increase the sum set forth in the original Customer Service Order Form (the “New Service Monthly Commitment”). And, the Service Term for any such additional Services shall be coterminous with the Initial Service Term or any Renewal Term in effect at the time.
3.3. Termination of the Agreement. This Agreement and any Services may be terminated by SE Telecom upon thirty (30) days written notice to the other party; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
A. Monthly Plan Customers. For monthly plan customers, You may cancel or terminate Your use of the Plan Services with or without cause at any time by calling customer service at 1-877-826-8324, subject to the restrictions and fees provided in these TOS, and any additional agreements governing the products or services.
B. Annual Plan Customers. For annual plan customers, You are purchasing the Plan Service for the full length of the applicable Term. You have thirty (30) days from the date of purchase for a prorated refund. After thirty (30) days, if You terminate the Plan Services prior to the end of Your Term, subject to applicable Law, You are responsible for all charges for any remaining time left on the Term as if You remained a customer through the end of the then-current Term, including, without limitation, outstanding charges, unbilled charges, Taxes, and fees, including any applicable disconnection fee. In addition, You will not be entitled to a refund for any unused portion of prepaid Term charges. The parties agree that these early termination charges are a reasonable estimate of anticipated actual damages and not a penalty.
C. Generally. You understand and agree that SE Telecom may at any time, and without additional notice to You, terminate, modify, suspend, disconnect, discontinue, or block access to some or all of the features of the Plan Services if :
- I. SE Telecom determines or reasonably suspects that You have materially breached these TOS;
- II. SE Telecom determines that You have created or caused to be created multiple free accounts;
- III. SE Telecom determines that You have used a fraudulent credit card to pay for Service charges on Your Account;
- IV. SE Telecom determines that You have verbally insulted, abused, or harassed any of its employees, contractors, agents, or other representatives;
- V. You did not or will not reasonably comply or cooperate with any applicable Law or regulation, or SE Telecom is made aware of allegations of the same;
- VI. SE Telecom is ordered by law enforcement or other government agencies to suspend or terminate Service to Your Account;
- VII. You bring any legal action or proceeding, including without limitation in any court, regulatory, or administrative body, arbitral body, or mediator, against SE Telecom, or participate in any class action lawsuit against SE Telecom;
- VIII. Except to the extent prohibited by applicable Law, You file a petition in bankruptcy or if a petition in bankruptcy is filed against You and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over any of Your relevant property;
- IX. SE Telecom determines that such action is necessary to protect, maintain, or improve the Services; to prevent fraud or misrepresentation by affirmative acts and/or omissions; to protect SE Telecom, its customers, or other third parties affiliated with SE Telecom; or for any other good cause;
- X. You violate applicable Law; or
- XI. As otherwise contemplated by these TOS.
Upon any termination or suspension of Your Account, SE Telecom may immediately deactivate or delete Your Account and all related information and files in Your Account and/or restrict any further access to such files, information, or the Plan Services.
SE Telecom shall not be liable to You or any third party for any reason for terminating or suspending Your use or access to the Plan Services.
If You or SE Telecom terminate or suspend Your right to use the Services, You shall not be entitled to any refund or pro ration of any pre-paid amounts, Account Credits, or other amounts paid to SE Telecom prior to the termination or suspension date.
4. Rules of Use. Customer must at all times comply with SE Telecom’s Rules of Use found at https://www.setelecom.ca/Rules. If SE Telecom becomes aware of Customer’s violation of the Rules of Use or illegal use of SE Telecom Services, facilities, network or third-party networks accessed through the SE Telecom network, or SE Telecom otherwise receives notice or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by SE Telecom or government authorities. Any government determinations will be binding on Customer. If Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any violation of the Rules of Use or illegal use, SE Telecom may immediately suspend the Service without further liability to SE Telecom. Further, upon notice to Customer, SE Telecom may modify or suspend the Service as necessary to protect its networks, customers or comply with any law or regulation. Under no circumstances will Customer take any actions in connection with its use of the Service that could result in any harm or damage to the network, any third-party network(s), SE Telecom’ premises, any equipment of SE Telecom or any other SE Telecom customer.
5. Fraud. Customer agrees to notify SE Telecom promptly if it becomes aware of any fraudulent or unauthorized use of its account, Service, or Equipment. SE Telecom shall not be liable for any damages whatsoever resulting from fraudulent or unauthorized use of Customer’s account and the payment of all charges to Customer’s account shall be and remain the responsibility of Customer.
6. Service Levels. SE Telecom will use commercially reasonable efforts to minimize service disruptions and outages. In the event of service disruptions or outages, Customer’s sole remedy, and SE Telecom sole obligation, shall be to provide the service level credits and/or remedies for the applicable Service in accordance with the Service Level Agreement set forth on SE Telecom’ customer support web site at: https://www.setelecom.ca/SLA SE Telecom may update the Service Level Agreement from time to time upon notice to Customer.
7. E911 Service. By use of the Service, Customer acknowledges the limitations of E911 service as described in the E911 Policy found at: https://www.setelecom.ca/911 Customer agrees and acknowledges that while some individual services offer access to E911 service, others may not. Customer is advised to thoroughly understand the Service and the options available. Customer acknowledges that it has received the information regarding the limitations of E911 services, understands them, and assumes the risks associated with the E911 limitations. SE Telecom has acquired Customer’s consent to this E911 limitations and may disclose to the CRTC that Customer has received and acknowledged the E911 Disclosure. SE Telecom may update the E911 Policy from time to time upon notice to Customer.
8. Equipment. If so indicated on any Order Form, SE Telecom may rent or sell certain equipment to Customer. Such equipment shall be listed on the Order Form and/or on any other form signed by Customer (such rented equipment the “Equipment”). Any Equipment rental or purchase shall be subject to the terms and conditions set forth in the Equipment Policy posted on SE Telecom’s web site at: https://www.setelecom.ca/Equipment. Customer shall be solely responsible and liable for user’s compliance with this Agreement and the proper use of the Equipment and the Services
9. Confidentiality. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as the terms and conditions of this Agreement. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, the Disclosing Party shall be further entitled to seek injunctive relief.
A. Number Availability. SE Telecom may make available telephone and/or facsimile numbers for Your selection and assignment to Account(s). You acknowledge and agree that SE Telecom’s listing of a number may be erroneous and does not constitute a representation or guarantee that such number is actually available for such assignment, and that SE Telecom shall be authorized to remove such number from an Account in the event that it is not actually available.
B. Number Porting Policy
- I. Federal Porting Law. Number porting is defined and regulated by the FCC in the United States, and by CRTC in Canada.
- II. Number Port-In Request Procedures. In order to request the porting of a telephone or facsimile number into an Account, the Account Administrator for the Account into which You wish the telephone or facsimile number to be ported must log in to the Admin Portal for such Account and complete all steps and provide all information requested as part of the number port-in request process (which may include without limitation providing an executed Letter of Agency) or as otherwise requested by SE Telecom. In addition, if You wish to port into an Account more than 100 telephone or facsimile numbers from the same third party service provider account, You must contact SE Telecom’s Project Porting Department at firstname.lastname@example.org and comply with their instructions.
- III. The Number Porting Process. In order to request the porting out to another services provider of a telephone or facsimile number currently assigned to an Account, You must follow the instructions specified by that services provider and must provide all information and cooperation requested by the relevant other services providers, SE Telecom, or any other relevant third party. You acknowledge and agree that: (i) the porting of telephone or facsimile numbers into or out of an Account requires Your provision of specific and detailed information to SE Telecom and/or third parties (including without limitation other services providers) and completion of certain steps and procedures, as well as third parties’ completion of certain steps; and (ii) numbers may not be ported into or out of an Account unless and until You are able to provide certain specific information that matches other information on record with SE Telecom or other services providers. For these and other reasons, the completion of any number port request and the timing of and date by which any such request may be completed depend on a number of factors outside of SE Telecom’s control, including without limitation the acts and omissions of both You and third parties, including without limitation other services providers.
- IV. Unauthorized Port Outs. You acknowledge and agree that telephone or facsimile numbers may be ported out from Your Plan Services or an Account due to acts or omissions of third parties, and it may be difficult or impossible for SE Telecom to: (i) prevent such port-outs: (ii) retrieve numbers ported-out of an Account; or (iii) port such numbers back into an Account. SE Telecom has no responsibility or liability due to such port-outs.
- V. Accurate Porting Information. You agree, represent and warrant that all information or representations provided in connection with any request to port in or port out numbers (including without limitation any information or representations in any Letter of Agency) by You, any User or End User, or any party acting on behalf of, at the direction or request of, or with the permission or knowledge of any of the foregoing shall be true, accurate, and up-to-date.
- VI. Customer Compliance with Porting Laws. You acknowledge and agree that the porting of numbers is subject to telecommunications and other Laws and may be subject to third party terms and conditions. You agree, represent, and warrant that neither You; nor any User or End User; nor any party acting on behalf of, at the direction or request of, or with the permission or knowledge of any of the foregoing will at any time: (i) violate any applicable Law or engage in any fraudulent or deceptive conduct in its porting-related requests or activities; (ii) engage in or facilitate “slamming” or the porting out of any telephone or facsimile number or change or attempt to change any party’s telephony service provider without first obtaining the proper, requisite consents and authorizations; or (iii) violate contractual or other obligations to service providers or other third parties.
- VII. Release of Numbers. You acknowledge that in the event of account termination or cancellation, all telephone numbers associated with Your Account, which have not previously been ported to another provider, may be released. Similarly, the cancellation of individual lines may result in the release of the related numbers if those numbers have not previously been ported to another provider. You acknowledge that You are solely responsible for working with a third-party provider to port out any numbers prior to termination or cancellation of Your Account or Plan Services, or any individual line.
C. Number Publication by Customer. Neither You nor any End User may publicize, list, or communicate any number that You believe to be assigned to Your Plan Services or Account(s), or purchase or invest in any materials or media reflecting any such number unless and until You have verified that such number(s) is(are) active and functioning as desired, including without limitation by test calling such number(s) from a non-SE Telecom service plan and verifying that the fees and charges that will be incurred in connection with use of such number(s) are acceptable to You.
12. Charges and Plan Credits. Please note that all prices, Taxes, surcharges, and fees are subject to change at any time, except to the extent such charges are set by agreement between You and SE Telecom for a specified term. You are responsible for paying all charges for Your Account, including but not limited to toll -free, local, long distance, international minutes, additional feature charges, 411 and operator assisted charges, directory assistance charges, and for all Taxes, surcharges, and fees imposed on Your Account or us as a result of Your use of the Plan Service. Customers with a past due balance on previous or multiple accounts will be charged the full balance, including but not limited to any Taxes or Fees as defined in this TOS, any late fees, service change fees, and fees for chargebacks or returned checks, upon opening a new account or updating their credit card information on file.
A. Charges and Plan Credits. SE Telecom offers several different plan options for Plan Service. You may change Your Plan Service plan at any time; however, a one-time processing fee of ten dollars ($50) may apply when “adding” users and or features an existing plan to a plan. In addition, certain plans may entitle You to receive discounts on equipment used in connection with SE Telecom Plan Service. If You receive any equipment discounts associated with a Plan Service plan and subsequently change that plan to one that does not offer those equipment discounts, You agree to reimburse SE Telecom, and hereby authorize SE Telecom to charge Your credit card on file, or invoice You, as applicable, for such equipment discounts.
B. Service Availability. You acknowledge and agree that the products or services, including without limitation the Plan Services, may not be available one hundred percent (100%) of the time. Credit allowances for interruption of the Plan Services may only be provided on a case-by-case basis at the sole discretion of SE Telecom and shall be Your sole remedy for any Plan Services interruptions or other issues with the Plan Services.
C. Plan Credits and Minutes. SE Telecom offers several different plans for its products and services. Some of the plans provide for a fixed number of monthly usage minutes (“Plan Credits”). If You exceed Your monthly Plan Credits during the course of a Service month, You may purchase additional Plan Credits as needed. SE Telecom may also provide You certain bonus credit minutes and/or other promotional incentives (e.g., “tell-a-friend” credits) upon fulfillment of the applicable promotion requirements. All of the Plan Credits are quoted in terms of domestic minute usage, and may be referred to on the SE Telecom website or by a SE Telecom Customer Service representative as “minutes”. As explained below, international calling may be charged at a different rate than domestic calling, and a Plan Credit “minute” therefore will not entitle You to a minute of international calling (“International Minutes”).
D. Metered Calling Plans. SE Telecom offers several monthly metered plans for some of its products and services. Each metered calling plan provides You with a toll-free or local telephone number and a fixed number of Plan Credits each month for a monthly fee, excluding Taxes, surcharges, and fees. When You exhaust Your initial paid allotment of Plan Credits for Your metered plan, unless You advise SE Telecom otherwise in writing, SE Telecom will automatically bill Your Account for the smallest available bundle of Plan Credits for the applicable service. Additional minute usage will be debited at the applicable per minute rate(s) for Your metered plan. However, in some limited instances, calls placed under a metered plan may not be counted against Your monthly allotment (e.g., calls made via a local phone number to leave or check voicemail or configure a system and calls answered on the SE Telecom Softphone). Please check the details of Your metered plan to determine which calls (if any) are not counted against Your monthly minute allotment. For international calling, international rates will apply.
E. Unlimited Plan. SE Telecom offers unlimited monthly plans for some of its products and services. “Unlimited” does not refer to types prohibited by these TOS, including trunking, access stimulation, reselling of the Plan Services, etc. All unlimited plans are subject to fair usage and the terms and restrictions of these TOS. If, for any reason, SE Telecom believes that Your usage of the unlimited plan and services violates these TOS, then SE Telecom may, in its sole discretion with or without notice, either terminate Your unlimited plan, suspend the Plan Services, or immediately convert Your unlimited plan to a metered plan, as set forth above.
Customer is limited to 2000 minutes per User per month inclusive of both local and long-distance calls. In the event Customer exceeds their number of minutes, SE Telecom has the option to (i) charge Customer at a rate of $0.03 per minute for each minute over the 2000 threshold per User; and/or (ii) adjust Customers plan and/or (iii) terminate their Agreement
All usage is billed based on all “Completed Calls”, which is defined as all calls received by SE Telecom from the Customer or terminated by SE Telecom on behalf of the Customer that receive answer supervision. Call completion rate must be a minimum of 90% of all calls made by Customer with the average call duration over 30 seconds or a $0.02 per minute surcharge will be applied to all minutes. Customers using automatic dialing equipment must dial a minimum of 5 NPA’s at a time so SE Telecom network capacity is not compromised by targeted calling efforts.
For Customers that purchase a Toll-Free number service, toll-free numbers are automatically provided with access available from Canada as the continental US. Customer is responsible for all charges associated with the use of toll free numbers terminated to the SE Telecom provided service
The Outbound Long-Distance service will be billed based on the service address of the Customer. In the case where customer traffic patterns are not in compliance with the above listed parameters, SE Telecom has the right to change pricing within 15 days written notice on domestic services and within 5 days on international services. SE Telecom will have the right to terminate offending Users without notice; however, SE Telecom will make efforts to contact Customer before any service is suspended. Other traffic premium applies to collect, person to person or other RBOC second party billed calls
F. Value, Ownership, and Expiration of Credits or Minutes. In no event shall any Toll-Free Minute, International Minute Credit, Billing Credit, Plan Credit, or any other type of credit or minute issued to You or applied to an Account (collectively “Account Credits”) have any monetary value or be exchangeable or exchanged for cash. Account Credits may be applied to only the Account for which they were purchased and/or provided, and may not be sold, transferred, assigned, or applied to any other Account, account, plan, or customer. Credited Toll-Free Minutes not applied to Usage of the applicable Account during the monthly billing cycle for which they are credited shall expire at the end of such cycle and shall in no event be available for application to Usage occurring during (or “roll over” to) any other period. Other Account Credits shall expire according to the terms of their purchase or provision.
G. Discounts From time to time in its sole discretion, SE Telecom may offer promotions or discounts. Any promotion or discount codes must be provided to SE Telecom upon purchase of the Plan Services. You are not entitled to a subsequent credit for any promotions or discounts if You do not request the promotion or discount credit at the time of Account creation or change of service. Promotions and/or discounts may not be used cumulatively or retroactively.
13. Billing and Payment
A. Plan Services Fees. The initial Order sets forth the base recurring fees for the Plan Services and the number of minutes of inbound Usage of any toll-free number(s) assigned to an Account, if any, that are included in the Plan Services Fees for each monthly billing cycle. Any applicable initiation charges, monthly recurring charges, support charges, Taxes, and other fees are billed in full in advance. Termination, Usage, international minutes, equipment return fees and transfer charges, if any, are billed in arrears. Upon termination of Your Account for any reason, all unused Account Credits shall expire in their entirety on the termination date. No refund, transfer or proration shall be made of any unused Account Credits.
B. Taxes and Fees. All fees for Services advertised or otherwise listed on the SE Telecom website are exclusive of any Taxes. You agree to pay all Taxes and similar liabilities that may now or hereafter be levied on the Plan Services and related software or hardware by any federal, state, provincial, local, or international law or regulation, as well as any administrative and recovery fees and charges levied on the Plan Services by SE Telecom, whether or not mandated by law or regulation. Should SE Telecom pay or be required to pay such liabilities (including any Taxes that were due but not charged or previously collected), You agree that SE Telecom may charge Your credit card on file or invoice You, as applicable, for such payments upon receipt of an invoice and showing of indebtedness to SE Telecom.
C. Billing for Mid-Year Transactions. In the event that any purchase, transaction, or event involving or resulting in an annually-incurred Plan Services amount occurs subsequent to the beginning of an annual billing cycle, SE Telecom may at that time bill You a pro-rated amount for the remainder of the then-current cycle and thereafter bill You conterminously with each subsequent cycle.
D. Late Fees. You agree and acknowledge that time is of the essence for payment of all fees and charges. Any fees or charges not paid when due shall incur interest at a rate of the lesser of: (i) eighteen percent (18%) per annum; or (ii) the highest rate allowed by Law. SE Telecom’s acceptance of late or partial payments (regardless of how they are marked or designated (including without limitation as “Paid in Full,” “Accord and Satisfaction,” or similarly)) shall not waive, limit, or prejudice in any way SE Telecom’s rights to collect any amount due. SE Telecom may terminate the Plan Services these TOS for non-payment if any fees or charges are not paid within thirty (30) days of the due date.
E. Form of Payment. All fees and charges are payable to SE Telecom by check, ACH, Wire or credit card or debit card. You agree to be liable for a processing fee in the amount of the lesser of: (i) fifty dollars ($50.00); or (ii) the highest amount allowed by Law for any credit card chargeback or check or other payment returned for nonpayment.
When You subscribe to Plan Services, You will provide us with a payment method, such as a valid credit card or information for invoicing (if You are pre-approved by SE Telecom in its sole discretion to be billed via invoice, and SE Telecom reserves the right to revoke such approval and switch You to credit card billing in its sole discretion), and, if applicable, authorize us to collect from the payment method provided. Any authorization to charge a provided credit card will remain valid until thirty (30) days after You withdraw the authorization, or immediately upon provision of a replacement valid credit card. Upon termination of this Agreement, we will charge You any fees and any other outstanding charges and disconnect Your service. You agree to advise and notify us of any changes to Your payment method, such as credit card account number or expiration date changes. If the credit card or other payment method on Your Account is declined or fails for any reason, SE Telecom will use reasonable efforts to contact You and advise You of the failed billing attempts. Notwithstanding the foregoing, SE Telecom reserves the right to disconnect Your Service and terminate Your Account if Your payment method is declined or fails for any reason, or if You withdraw authorization to charge a valid credit and do not provide an alternative payment method, and SE Telecom reserves the right to continue to attempt charging Your credit card for any outstanding Service charges and additional fees and pursue any other legal remedies available to SE Telecom.
F. Disputed Amounts. You will waive the right to dispute any billed amount if You do not dispute such amount within thirty (30) days of the date of its billing. If You fail to provide a written statement explaining in reasonable detail Your reasons for disputing the charge within such time period, You hereby irrevocably waive any objection and further recourse with regard to such charges. In the event that You timely dispute a billed amount and SE Telecom confirms that You were over-billed, SE Telecom shall credit the applicable Account in the amount of the over-billing (“Billing Credits”). Billing Credits shall be SE Telecom’s sole and exclusive obligation and Your sole and exclusive remedy with respect to any erroneous billing.
13.1 Account Disputes The Account owner shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Plan Services with SE Telecom. If no legal entity is provided upon sign-up, the Account owner shall be the owner of the credit card used to open the Account. Subsequent changes to ownership must be supported by appropriate legal documentation.
A. Account Disputes You agree that in no event shall SE Telecom be obligated to – and in no event shall You request that SE Telecom – participate in or act as the arbiter, adjudicator, or intermediary with respect to any claim or dispute relating to the ownership or control of, or rights relating to, Your Plan Services, any Account, any numbers assigned to an Account, or any Account Data or other information related to an Account or Your Plan Services (“Account Ownership Disputes”). In the event of any Account Ownership Dispute, SE Telecom is authorized to take any course of action that it deems to be appropriate, including without limitation declining to take any action.
C. Release You agree to release, discharge, and hold harmless SE Telecom from and against any and all liability relating to or arising from their acts or omissions related to any Account Ownership Dispute or in seeking to comply with any Law or any Legal Process.
Notwithstanding the foregoing, if You request that Your bank or credit card company perform a chargeback or decline to process a check without first contacting SE Telecom to dispute the charge, and SE Telecom subsequently determines that the charges at issue are not erroneous, SE Telecom reserves the right to terminate Your Account immediately and take any available legal action.
You are solely liable for any transactions or usage on Your Account, whether by You, any End User, or any other user of Your Plan Services, and in no event shall SE Telecom be liable for any unauthorized use of Your Account.
14. Service and Promotional Communications and Publications
A. Erroneous Product Information In its marketing, advertising, offering, and sale of the Plan Services, SE Telecom attempts to describe the Plan Services as accurately as possible. Nevertheless, SE Telecom does not warrant that any such information about Plan Services, including related software and hardware, is accurate, complete, reliable, current, or error-free. It is possible that such may be inaccurate or out-of-date, such as listing erroneous or out-of-date pricing information or referring to services or features that are no longer available. Such information is provided only for customers’ convenience and is not part of these TOS, any agreement for the purchase of Plan Services, or any other agreement with SE Telecom.
B. SE Telecom Communications You agree that SE Telecom may send, or have sent, to You, Account Administrators, contacts, and/or End Users Service Communications, and Marketing Communications. SE Telecom shall not send Marketing Communications to You or Your End Users without providing prior notification and the right to opt out. You hereby consent to SE Telecom’s distribution of Service and Marketing Communications in accordance with this Sub-Section 15(B) entitled “SE Telecom Communications”. In the event that You or any End User provides SE Telecom with any feedback, answers, ideas, comments, or other information in connection with any of the foregoing communications, You hereby grant SE Telecom a perpetual, irrevocable, unlimited, worldwide, fully-paid up, royalty free right and license to use the same.
C. Directory Listing Service You acknowledge and agree that in the event that You subscribe to the SE Telecom directory listing service, the information that You provide in connection with such subscription (i) may be used or reproduced by, or disclosed to, third-parties and otherwise made publicly available, (ii) SE Telecom may not be able to have such information or listing removed, altered, updated, or corrected, and (iii) You and End Users may receive calls, messages, mailings, and other communications from third parties as a result of Your participation in the SE Telecom directory listing service. You represent and warrant that all information provided by You or any End User related to any subscription to the SE Telecom directory listing service will be true, accurate, and up-to-date and that You shall promptly update any such information in the event that it changes or becomes inaccurate. You hereby authorize and grant SE Telecom a worldwide, irrevocable, non-exclusive, royalty-free, fully paid-up license to use, disclose, transmit, publish, or publicize, in any medium or technology now or hereafter available, all information that You provide in connection with subscribing to, participating in, or using the SE Telecom directory listing service. You hereby release, discharge, and hold harmless SE Telecom from and against any and all liability relating to or arising from any publication or listing of information in connection with Your subscription to the SE Telecom directory listing service and any third party’s use of the same.
15. End User License and Restrictions
A. Limited License. SE Telecom grants You and Your End Users a limited, personal, revocable, non-exclusive, non-sub-licensable, non-assignable, non-transferable, non-resellable license to use the software and hardware provided in conjunction with the Plan Services during the Term in strict accordance with these TOS and solely for Your own internal business use. In the event of any expiration or termination of your subscription to the SE Telecom Plan Services or termination of pursuant to these TOS, all license rights granted herein or in connection with any software or hardware provided under these TOS, immediately terminate. Any IP Rights in the Plan Services or in any technology used in the provision thereof are and shall remain the sole and exclusive property of SE Telecom and its licensors. All rights not expressly granted herein are reserved and retained by SE Telecom and its licensors, and no IP Rights or other rights or licenses are granted, transferred, or assigned to You, any End User, or any other party by implication, estoppel, or otherwise. You acknowledge that misuse of the Plan Services may violate third party IP Rights in the software and/or hardware provided in conjunction with the Plan Services. You may not use or disclose any Intellectual Property or IP Rights in the Plan Services or any hardware or software related to the same except as expressly contemplated by this section.
B. SE Telecom’s IP Rights. You agree that all rights, title and interest in and to all Intellectual Property in the Plan Services, any software or hardware used in conjunction with the Plan Services, and any materials provided in connection with the Plan Services are owned exclusively by SE Telecom or its licensors. Except as expressly provided herein, the limited license granted to You under the Plan Services does not convey any ownership or other rights, express or implied, in the Plan Services, any materials provided in connection with the Plan Services, or in any Intellectual Property.
C. Use and Disclosure of Intellectual Property. You represent, warrant, covenant and agree that You shall not disclose or use any of the Intellectual Property in the Plan Services, any software or hardware used in conjunction with the Plan Services, or any marketing materials for any purpose following termination of the Plan Services or the limited license granted thereunder to use the Plan Services. You further represent and warrant that neither You nor any End User shall reverse engineer, disassemble or decompile any prototypes, software or other tangible object which embody SE Telecom’s Intellectual Property.
D. New Versions of the Software SE Telecom, in its sole discretion, reserves the right to add, remove, or modify features or functions, and to provide fixes, updates and upgrades to the Plan Services without notification to you. You acknowledge and agree that SE Telecom has no obligation to make available to You any subsequent versions of the Plan Services; provided, however, SE Telecom shall make available to You any such features, functions, fixes, updates and upgrades and subsequent versions of the Plan Services that SE Telecom makes generally available at no additional charge to customers who subscribe to the same edition of the Plan Services purchased by You. In addition, You and SE Telecom acknowledge that no third-party has any obligation whatsoever to furnish maintenance or support services with respect to the Plan Services and that SE Telecom is solely responsible for the provision of maintenance and support as provided in these TOS and to the extent such maintenance and support is required under applicable Law.
E. Publicity Rights You agree that SE Telecom may identify You as a user of the Plan Services in its business deals, press releases, marketing materials, electronic, printed, and broadcast advertising, newsletters, mailings, tradeshows, other promotional materials, on SE Telecom’s website, or any other third-party website where SE Telecom or its designated agents may promote the Services. You hereby grant SE Telecom and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.
A. Service Changes. You understand and agree that SE Telecom may make upgrades or changes to the Services which will not materially diminish the functionality of the Services without prior notice to You. In the event that a change to the Services would, in SE Telecom’s reasonable discretion and judgment, permanently and materially diminish or impair the functionality of the Services (a “Change”), and such Change is unacceptable to You, You may terminate the Services without penalty within thirty (30) days of becoming aware of the Change by calling SE Telecom at 1-877-816-8324. Any use of the Services after the such date will be deemed Your acceptance of the Change.
B. Future Changes to these TOS. We may change the terms of these TOS from time to time upon delivery of electronic or written notices to You. SE Telecom generally provides written notice of changes to Your account, including these TOS and any other legal agreements, via email, electronic notice on the SE Telecom Website or Your Account Page, or on Your billing statements, or as otherwise required by applicable Law. You agree to carefully read and review each such e-mail notice, electronic notice, and billing statement from SE Telecom fully regarding any such notices of changes to Your Account.
Subject to applicable Law, the modified terms shall replace and supersede all previously agreed to electronic and written terms, as well as any prior versions of these TOS and become binding on You on the later of the date they are posted on the SE Telecom website (www.setelecom.ca) or as otherwise indicated in the notice to You. You agree that You are solely responsible for: (i) making sure that Your registered email account is current and functional: (ii) checking Your registered email account regularly; (iii) checking the SE Telecom Website and Your Account page regularly; and (iv) making sure that SE Telecom communications are not blocked or rendered undeliverable by You, Your computer, any software installed on Your computer, Your Internet service provider, or for any other reason. Continued use of the Plan Services will constitute Your acceptance of the modified terms. If the terms of these TOS are amended and You do not wish to accept the modified terms, You may terminate these TOS as provided for in Section 19 entitled “Termination”.
C. Promotional Services. You acknowledge and agree that in the event that SE Telecom offers or provides You discounts or promotional services for Your Plan Services or an Account, SE Telecom may terminate or modify the scope of such promotional services at any time without notice, unless SE Telecom specifically agrees otherwise in writing in connection with its provision of the discounts or promotional services.
17. Data Storage and Processing in the United States.
A.SE Telecom’s data storage and processing facilities are located in the United States. By agreeing to these Terms and using the Services, Customer acknowledges that this is the case and consents to the possible storing and processing of its personal information, or the personal information of Customer’s own clients or customers, in the United States. As is the case with data stored in other countries, including Canada, Customer’s data is subject to access by law enforcement agencies in the United States acting in accordance with applicable laws.
You acknowledge and agree that: (i) neither SE Telecom nor any SE Telecom affiliated entity or third-party service provider shall have any obligation to store, retain, back-up, or ensure the availability of any stored Customer Communications, Customer Personal Data or Account Data; (ii) to the extent that You wish to retain any Customer Communications, Customer Personal Information or Account Data or other information relating to Your Plan Services or Your Account(s), You shall ensure that such information is downloaded, saved, and/or backed-up outside of Your Plan Services or Account(s), as necessary or appropriate for Your and/or the End Users’ purposes; (iii) You shall not rely on Your Plan Services or Account(s) as a repository for or means by which to retain, store, or back-up Customer Communications, Customer Information Data or Account Data or any other data, information, or materials; (iv) SE Telecom may delete or purge any and all copies and versions of any stored Customer Communications, Customer Personal Information or Account Data or other data at any time, without notice, including without limitation after You delete any such information from an Account or after termination of the TOS or closure of an Account; and (v) SE Telecom may, in its sole discretion and option and without notice, implement reasonable limits as to the size or duration of storage of Customer Communications, Customer Personal Information or Account Data.
B. Access to Data. You and Your End Users can obtain any stored Customer Communications, Customer Personal Information or Account Data with Your login credentials in the relevant SE Telecom Administrative or Customer Portal. You acknowledge and agree that, notwithstanding anything to the contrary in these TOS, Neither SE Telecom nor any SE Telecom affiliates nor third-party service provider: (i) shall have no obligation to access, view, listen to, watch, or review any stored Customer Communications, Customer Personal Information or to perform any task or undertake any role that would entail or require any of the foregoing; (ii) may not have access to stored Customer Communications, Customer Personal Information or Account Data, or such access may be incomplete, limited, restricted, or subject to certain conditions; and (iii) SE Telecom, its affiliates and third-party service providers’ shall have the right to limit, restrict, condition, or eliminate the ability of any party to access any stored Customer Communications, Customer Personal Information or Account Data in its sole discretion and without notice.
You acknowledge and agree that the Plan Services do not include the performance of any of the following tasks or work by SE Telecom, and in no event shall SE Telecom be obligated under these TOS to perform any of the following tasks or work: (i) the investigation, access, correction, alteration, gathering, compilation, review, verification, or production of any Account Data, Customer Communications, or any other records, documents, information, or evidence related to You or Your Plan Services or transmitted, received, or stored through an Account; (ii) the provision of legal or other counsel; or (iii) the provision of assistance, cooperation, or information beyond that which is directly and specifically related to SE Telecom’s fulfillment of its obligations under these TOS or pursuant to applicable law.
For the avoidance of doubt, except as provided herein or required by Law, SE Telecom is not obligated to: (i) determine, prove, or disprove any fact or claim; (ii) pursue or defend against any claim, allegation, action, lawsuit, demand, or proceeding; (iii) substantiate any party’s compliance with any Law or Legal Process; (iv) respond to or comply with any request or demand; (v) identify any party; or (vi) conduct any surveillance.
C. Export of Data. You acknowledge and agree that: (i) any stored Customer Communications, stored Customer Personal Information or Account Data, or other information or materials that You export will not be under SE Telecom’s control and will not be subject to or protected by SE Telecom’s security controls; (ii) linking or integrating Your Plan Services or Accounts(s) to or with any external service, environment, account or repository (including without Dropbox, Box, Google Drive™, and OneDrive®) constitutes such exportation and SE Telecom shall have no responsibility for, and makes no representation or warranty regarding, the security, privacy, or functionality of any such linked or integrated external service, environment, account or repository. You any Your End Users, as applicable, shall comply with all applicable Law relating to the use, disclosure, access, or export of data from Your Account(s).
D. Release. You hereby release, discharge, and hold harmless SE Telecom from and against any and all liability relating to or arising from its acts or omissions in accordance with this Section entitled “Treatment of Customer Communications, Content, and Account Data.”
A. No Storage of Personal Health Information. You acknowledge and agree that the use of Plan Services other than on the HIPAA Conduit Setting as described in Section B are not designed, intended, or recommended for use as a repository or means by which to store “protected health information,” as defined under the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and similar legislation in other jurisdictions, and the regulations promulgated pursuant thereto (such laws and regulations, “HIPAA”; such information, “PHI”) on a non-temporary basis, and You represent and warrant that neither Your Plan Services nor any ancillary product or service that is a part thereof will be used for such purpose. SE TELECOM SPECIFICALLY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT YOUR PLAN SERVICES, THE ACCOUNT(S), OR THE PRODUCTS (OR THE USE OF ANY OF THE FOREGOING BY ANY PARTY) COMPLIES OR WILL COMPLY WITH HIPAA OR ANY OTHER LAW OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA OR ANY OTHER LAW.
B. Operation of SE Telecom HIPAA Conduit Setting; Consequences of Activation
SE Telecom offers a HIPAA Conduit Setting for its United States based customers. You acknowledge that:
- activation of the SE Telecom HIPAA Conduit Setting may result in automatic and permanent deletion from the applicable Account(s) of Customer Communications that are stored in those Account(s) and that are thirty (30) or more days old;
- if any Customer Communications that are thirty (30) or more days old are currently stored in the applicable Account(s), they may be permanently deleted from such Account(s), and such deletion may occur as soon as immediately after activation of the SE Telecom HIPAA Conduit Setting;
- the deletion functions described above may permanently delete Customer Communications such that they are not retained by SE Telecom in any form (including on any back up or disaster recovery system); and
- the HIPAA Conduit Setting will disable attachment of voicemail, SMS, and facsimile/internet facsimile messages to message notification emails sent by SE Telecom in connection with any such Acco
- The HIPAA Conduit Setting will disable message notification emails of any RO messages.
You hereby release, discharge, and hold harmless SE Telecom from and against any and all liability relating to or arising from its acts or omissions in accordance with this Section entitled “SE Telecom and HIPAA.”
19. Resale.Customer represents and warrants that it will be the end user of the Services. Customer shall not in any way resell, license or permit or suffer any third party to use the Services without receiving SE Telecom’s prior written consent.
20. Disclaimer of Warranties. Except as expressly provided herein, Customer acknowledges and agrees that the Services are provided on an “As Is”, as available basis. Other than as expressly provided herein, SE Telecom DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR, NON-INFRINGEMENT OR TITLE TO THE MAXIMUM EXTENT PERMITTED BY LAW. SE Telecom does not warrant that the Services will meet the Customer’s requirements or that the operation of the Services will be uninterrupted or error-free. Further, SE Telecom does not warrant that all errors in the Services can be corrected.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PLAN SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND SE TELECOM MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, AND 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. SPECIFICALLY AND WITHOUT LIMITING THE FOREGOING IN ANY WAY, SE TELECOM SPECIFICALLY DISCLAIMS ANY WARRANTY: (i) THAT ANY PRODUCT WILL MEET ANY PARTICULAR REQUIREMENTS; (ii) THAT ANY PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR THAT ANY DEFECTS IN ANY PRODUCT WILL BE CORRECTED; OR (iii) RELATING TO THE ACCURACY OR RELIABILITY OF THE RESULTS OBTAINED THROUGH USE OF YOUR OFFICE PLAN, ANY ACCOUNT, OR ANY PRODUCT OR ANY CUSTOMER COMMUNICATIONS, DATA, INFORMATION, OR CONTENT DOWNLOADED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF ANY OF THE FOREGOING. THE PARTIES AGREE, AND IT IS THEIR INTENTION, THAT IN NO EVENT SHALL ANY WARRANTY PROVIDED BY LAW APPLY UNLESS REQUIRED TO APPLY BY APPLICABLE STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. TO THE EXTENT THAT SE TELECOM CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES, SO CERTAIN OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT SE TELECOM CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
21. Limitation of Liability
A. Consequential Damages
IN NO EVENT SHALL SE TELECOM BE LIABLE TO YOU OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT, COVER, OR SUBSTITUTION GOODS OR SERVICES; LOSS OF USE, DATA, EQUIPMENT, PRODUCTS, BUSINESS OPPORTUNITIES, OR PROFITS; INTERRUPTION OF BUSINESS; TRANSACTIONS ENTERED INTO OR NOT ENTERED INTO; OR SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, REPUTATIONAL, OR PUNITIVE DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, EVEN IF SE TELECOM HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF – OR COULD HAVE FORESEEN — SUCH COSTS, LOSSES, OR DAMAGES.
B. Direct Damages Cap
EXCEPT AS SET FORTH BELOW, SE TELECOM’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED THE PLAN SERVICES FEES PAYABLE HEREUNDER DURING THE ONE (1) MONTH IMMEDIATELY PRIOR TO THE DATE OF THE EVENT(S) GIVING RISE TO THE LIABILITY. THE LIMITATION OF LIABILITY SET FORTH IN THIS SUB-SECTION DOES NOT APPLY TO: (i) LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (ii) YOUR LIABILITY ARISING FROM YOUR ACTUAL OR ALLEGED BREACH OF SECTIONS 1 (OPERATION AND LIMITATIONS OF THE SE TELECOM 911 SERVICE), 5 (USE POLICIES), 6 (NUMBER POLICIES), OR 3 (CUSTOMER SECURITY POLICY) OF THESE TOS.
C. Scope and Exceptions
THE LIMITATIONS AND EXCLUSIONS SET FORTH IN SECTION 21.B ENTITLED (DIRECT DAMAGES CAP):
- I. SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW,
- II. SHALL NOT DISCLAIM, LIMIT, OR CAP CUSTOMER’S OBLIGATION TO PAY ANY FEES OR CHARGES OR OTHER AMOUNT OWED TO SE TELECOM OR ANY DAMAGES TO WHICH SE TELECOM IS ENTITLED UNDER APPLICABLE LAW FOR INFRINGEMENT OF IP RIGHTS,
- III. REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES, AND
- IV. SHALL SURVIVE TERMINATION OR EXPIRATION OF THE PLAN SERVICES AND APPLY IN ANY AND ALL CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION IN THE EVENT OF ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY PROVIDED HEREIN.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO CERTAIN OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
22. Indemnification. To the maximum extent permitted by applicable Law, You shall indemnify and hold harmless, individually and collectively, SE Telecom, its affiliates, agents, resellers, and other providers who furnish goods and services to You in connection with the Services, and their officers, directors, managers, employees, and shareholders (the “Indemnified Parties”) from and against any and all liability, claims, losses (including loss of profits, revenue and goodwill), damages, fines, penalties, injuries to persons or property, costs, and expenses (including reasonable attorneys’ fees and dispute resolution expenses) arising from or related to: (i) the use of or reliance upon the Plan Services by You or any third party acting with Your permission, knowledge, authority or direction; (ii) a breach of these TOS by You, or any End User; (iii) any negligent acts, omissions to act or willful misconduct by You or any third party acting with Your permission, knowledge, authority or direction; (iv) the inability to use the Plan Services or failure or outage of the Plan Services for any reason, including but not limited to those related to calling, “911” or other emergency responders; (v) the use of the Plan Services in connection with a violation of any applicable law, code, regulation, or ordnance; or (vi) the misappropriation, breach, violation, or infringement of any right, title or interest of any third party, including but not limited to, contractual rights, Intellectual Property rights, rights of privacy, and rights of publicity and personality.
23. General Terms
A. Relationship of the Parties. The Parties’ relationship under these TOS is that of independent contractors. Nothing in these TOS 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.
B. Notices. Notices to You shall be effective on the date sent to Your registered electronic mail address when sent by email or, at SE Telecom’s option, three (3) days following the date deposited in regular United States Mail, postage prepaid, and addressed to Your current address on Your Account. You are responsible for notifying SE Telecom of any changes in Your contact information or address through Your Account settings page or by contacting customer service at 1-877-826-8324.
Written notice to SE Telecom shall be effective when directed to SE Telecom’s Legal Department and received at SE Telecom’s then-current address as posted on SE Telecom’s Website, available here. Your notice must specify Your name, Account information, and security verification question and answer. All notices from You to SE Telecom must be made in writing.
C. Force Majeure. Excluding either Party’s payment obligations under the Agreement, 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; breach, delay, act, or omission of any supplier, carrier, contractor, subcontractor, or business partner; failure, outage, or unavailability of third party network(s) or system(s); fiber, cable, or wire cut; power outage or reduction; rebellion; revolution; insurrection; criminal acts of third parties, earthquake; storm; hurricane; flood, fire, or other natural disaster; or strike or labor disturbance (each a “Force Majeure”). In the event that a Force Majeure prevents a Party’s performance for more than forty-five (45) consecutive days, either Party may terminate the particular agreement document(s) impacted.
Neither party will be liable for any failure or delay in its performance under the Agreement, due to any cause beyond its reasonable control, including any act of war, act of God, earthquake, flood, embargo, riot, sabotage, terrorist attack, cyber-attack (hacking and DDOS), acts of public enemies, civil disturbances or general restraint or arrest of government and people, boycott, strike (including a general strike), lockout or other similar industrial disturbance, service interruption by a telecommunications services provider, or connectivity delays with internet providers outside of SE Telecom’s reasonable control, provided that the delayed party (a) gives the other party prompt notice of such cause and (b) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
D. Third Party Beneficiaries Nothing in these TOS, 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 these TOS.
E. Choice of Law. These TOS and Your use of the Plan Services shall be governed by and construed under the laws of the State of California and the United States without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these TOS or Your sign up or use of the Plan Services.
F. Dispute Resolution and Optional Arbitration. In the event of any dispute, claim, question, or disagreement between You and SE Telecom (“Dispute”), You and SE Telecom shall first use reasonable best efforts to settle the dispute, claim, question, or disagreement. To this end, You and an authorized member of SE Telecom’s legal department (or other representative of SE Telecom designated by the legal department) shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. Neither You nor SE Telecom shall file or pursue any Disputes in any court, administrative, arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.
Notwithstanding the adjudication requirement above, for any Disputes involving ten thousand dollars ($10,000) or less, either party may choose to resolve such Dispute through binding, non-appearance-based arbitration (i.e., arbitration conducted online, through written filings, and/or via teleconference). Such arbitration shall be conducted through an established alternative dispute resolution provider mutually agreed upon by the parties, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision shall be final and legally binding.
In the event of any litigation (including arbitration) between You and SE Telecom, the non-prevailing party shall reimburse the prevailing party for all reasonable and documented attorneys’ fees, costs, and expenses relating to the Dispute.
Some jurisdictions may place limits on governing law, venue, and/or dispute resolution provisions, so certain of the foregoing requirements in this section may not apply to You.
G. Venue. You agree that any Disputes shall be adjudicated in the state and federal courts of the State of California, U.S.A. Venue for any Disputes shall be the court of proper jurisdiction in the City and County of San Francisco, California. You agree to submit to the exclusive jurisdiction of such courts with respect to any Disputes and agree not to bring any Disputes in any other court or adjudicative body. You hereby consent to venue and personal jurisdiction in such courts with respect to such Disputes and irrevocably waive any right that You may have to assert that such forum is not convenient or that any such court lacks jurisdiction.
H. Equitable Relief. You agree that any breach of SE Telecom’s IP Rights will cause SE Telecom irreparable harm for which monetary damages will be inadequate and SE Telecom 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.
I. Class Action Waiver.. Any actions, lawsuits, or 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.
J. Consumer Notice. The following specific consumer rights notice is hereby provided under California Civil Code Section 1789.3 to California customers and users of the Products: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at (916) 445-1254.
K. No Waiver. In no event shall any failure or delay by SE Telecom to: (i) assert or exercise any right; (ii) demand fulfillment or performance of any obligation; or (iii) avail itself of any remedy under these TOS, in whole or in part, be deemed a waiver of any right or remedy under these TOS on such occasion or any other occasion. Except as otherwise expressly stated in these TOS or an agreement document duly executed by both SE Telecom and You, all rights and remedies stated in these TOS are cumulative and in addition to any other rights and remedies available under these TOS, any agreement document, at Law, or in equity.
L. Interpretation. These TOS, including the documents incorporated herein, constitutes the entire agreement between You and SE Telecom with respect to the Plan Services and supersedes all prior or contemporaneous understandings regarding such subject matter.
L. Interpretation. These TOS, including the documents incorporated herein, constitutes the entire agreement between You and SE Telecom with respect to the Plan Services and supersedes all prior or contemporaneous understandings regarding such subject matter.
If any part of these TOS is held invalid or unenforceable, that portion shall be construed to reflect the parties’ original intent, and the remaining portions shall remain in full force and effect.
The failure of SE Telecom to exercise or enforce any right or provision of these TOS shall not constitute a waiver of such right or any other provision.
The section titles in these TOS are for convenience only and have no legal or contractual effect.
This electronic document and any other electronic documents, policies, and guidelines incorporated herein will be: (i) deemed for all purposes to be a “writing” or “in writing,” and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable as a signed writing as against the parties subject to the electronic documents; and iii) deemed an “original” when printed from electronic records established and maintained in the ordinary course of business. Electronic documents introduced as evidence in any judicial, arbitration, mediation, or administrative proceeding will, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.
M. Assignment. Customer may not assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of SE Telecom, except to a party that acquires all or substantially all of Customer’s assets as part of a corporate merger or acquisition. The Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
N. Severability. If any provision or portion of the Agreement 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 Agreement shall remain in full force and effect.
O. Survival. The following provisions of these TOS will survive termination or expiration of these TOS for the maximum term allowed by Law: (i) Your payment obligations; (ii) terms relating to intellectual property ownership, customer representations, confidentiality, storage of user information, publicity rights, non-disparagement, indemnification, warranty disclaimers, limitations of liability, dispute resolution and arbitration, and choice of law; and (iii) all provisions that are intended by their nature to survive termination of this agreement.
P. Language. The parties confirm that it is their express wish that the TOS, as well as any other documents relation to this TOS, including notices, schedules and authorizations, have been and shall be drawn up in the English language. Les parties aux présentes confirment leur volonté expresse que cette convention, de même que tous les documents s’y rattachant, y compris tous avis, annexes et autorisations s’y rattachant, soient rédigés en langue anglaise seulement.
Q. Currency. All dollar amounts are expressed in Canadian dollars for Canadian customers and in United States dollars for American customers, or as agreed by the parties.
24. Disclaimer of Third Party Actions and Control. Customer acknowledges and agrees that SE Telecom does not and cannot control the flow of data between SE Telecom’s network and Third-Party Networks. Such flow depends on the performance of Third Party Networks and the services provided or controlled by third parties. Action or inactions caused by these Third-Party Networks can produce situations in which SE Telecom customers’ connections may be impaired or disrupted. Although SE Telecom will use commercially reasonable efforts to remedy and avoid such events, SE Telecom cannot issue any warranties over these Third-Party Networks or any disruptions that may occur. THEREFORE, WITHOUT LIMITING THE GENERALITY OF SECTION 12 ABOVE, SE TELECOM DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE, NONPERFORMANCE OR INCORRECT PERFORMANCE OF THIRD PARTY NETWORKS.
26 Limitation of Liability. IN NO EVENT SHALL SE TELECOM BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE. UNDER NO CIRCUMSTANCES WILL SE TELECOM BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. SE TELECOM’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID AND/OR DUE BY THE CUSTOMER NOT INCLUDING THE COST OF ANY HARDWARE OR MATERIALS. Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to Customer. However, and notwithstanding the provisions of this Section 13, the parties agree that neither party will be liable for breach-of-contract damages that the breaching party could not reasonably have foreseen on entry into this Agreement. No action against either party arising out of these Terms may be brought by the other party more than one year after the cause of action has arisen.
26. SE Telecom’s Indemnification of Customer SE Telecom shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party arising from damage to tangible personal property located at, or from injury to or the death of any person occurring at, Customer’s premises that result from any negligent or willful acts or omissions of SE Telecom or of any agent, employee or contractor of SE Telecom that occur in the course of the performance of any Service installation or maintenance work at the Customer’s premise.
27. Customer’s Indemnification of SE Telecom. The Customer agrees to indemnify and hold SE Telecom harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against SE Telecom by a third party arising from or relating to: (i) any act, error, omission, fault, negligence, or misconduct of Customer or any user of the Service or Equipment; (ii) Customer’s material breach of the Rules of Use; (iii) any claim by any employee or invitee of Customer or user other than a claim based on the gross negligence or willful misconduct of SE Telecom; (iv) any claim by any customer of Customer, User, or any other third party relating to, or arising from, Customer’s use of the Services or Equipment; or (v) violation of any law or regulation by Customer, any User, or any Customer employee, contractor, or agent.
27.1 Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
28. No Lease. Except as otherwise provided herein, the Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any interest whatsoever (leasehold or otherwise) in any premises, real or personal property, equipment or servers of SE Telecom or in any personal property or server space leased by SE Telecom (except for the Equipment rental), and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations, or ordinances.
29. Government Regulations. Customer will not use the SE Telecom network or the Services to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside Canada or the U.S. without first complying with all export control laws and regulations which may be imposed by the Canadian and U.S. Governments and any country or organization of nations to whose jurisdiction Customer is subject.
31. Entire Agreement. The Proposal, these Terms of Service, and any Order Form(s) issued hereunder represent the complete agreement and understanding of the parties with respect to the subject matter hereof and supersede, to the extent of any conflict, any other agreement or understanding, written or oral, between the parties with respect to the subject matter hereof. In the event of an inconsistency between the terms and conditions of the Order Form, these Terms of Service and the Order Form(s) now or hereafter appended hereto, the terms of the Order Form shall govern. Both parties represent and warrant that they have full corporate power and authority to execute and deliver each Order Form and to perform their obligations under the Agreement and that each person whose signature appears on the Proposal, these Terms of Service (if applicable) and any Order Form is duly authorized to execute such document on behalf of the respective party.
32. Surviving Provisions. The parties agree that any limitations of liability, exclusions, and disclaimers of warranties and indemnification obligations are essential to the parties’ entering into this Agreement; will survive the termination of the Agreement and will apply even if the Agreement is found to have failed of its essential purpose.
33. Waiver and Severance. Any failure or delay in exercising or enforcing this policy shall not constitute a waiver of this policy or of any other right or remedy.
Changes to this Policy We may revise this acceptable use policy at any time by publishing it on our webpage. You are expected to check this page periodically to take notice of any changes we make, as they are legally binding on you. Amendments shall automatically come into effect 30 days after being posted on the website. Some of the provisions contained in this AUP may also be superseded by provisions or notices published elsewhere on our website.