These eThink Terms of Service (hereinafter referred to as the "Terms" or "Agreement") apply to the use of products or services provided by eThink Technologies L.L.C. ("we," "us," “eThink”, “eThink.net”, “eThink Technologies L.L.C”) to the person or entity identified in a valid and binding Sales Quote or Sales Order or valid user of the Services (the "Customer", “you”, “user”) and are an integral part of the agreement between eThink and Customer. The Customer and eThink are sometimes collectively referred to herein as the "Parties," or individually as a "Party". By ordering, purchasing or using the Services, Customer agrees to be bound by these Terms, which among other things, require mandatory arbitration of disputes instead of a jury trial and limit eThink's liability.
PURSUANT TO FCC REQUIREMENTS, eThink IS REQUIRED TO ADVISE ITS CUSTOMERS OF ANY LIMITATIONS THAT E911 SERVICE MAY HAVE IN COMPARISON TO TRADITIONAL E911 SERVICE, WHICH ARE SET FORTH AT SECTION 34 BELOW AND IN THE E911 DISCLOSURE NOTICE AND ACKNOWLEDGEMENT, WHICH CAN BE FOUND AT https://www.eThink.net/e911-disclosure
AGREEMENT
DEFINITIONS: The following capitalized terms, as used in this Agreement, shall have the meanings set forth below: "Activation" means when the Customer's Service is available for Customer's use."Activation Date" means the date of Activation."Affiliate(s)" means, with respect to a Party, any entity that Controls, is Controlled by or is under common Control with the entity. "Control," for purposes of this definition, means the direct or indirect ownership or control of more than fifty percent (50%) of the voting equity of the subject entity."Applicable Laws" means any and all applicable federal, state or local laws, rules or regulations, including, but not limited to applicable restrictions concerning call recording, call monitoring, call interception and/or direct marketing or telemarketing."AUP" means the eThink acceptable and reasonable use policy set forth in Sections 18 & 19."Customer Equipment" means all equipment owned, leased or otherwise provided by Customer, or which is specifically identified in one or more Sales Orders as Customer Equipment, used in connection with the Services. "Customer Equipment" includes equipment sold by eThink to Customer, which shall include any devices, such as an IP phone, Multimedia Terminal Adapter, Analog Telephone Adapter or any other IP connection device but does not include eThink Equipment."Customer Premises" means the physical location(s) owned or leased by Customer where Services are provided or eThink Equipment will be used or stored."E911 Disclosure" means the provisions set forth in the eThink E911 Disclosure Notice and Acknowledgement posted on https://www.eThink.net/e911-disclosure or attached to and incorporated by reference into a Sales Order stating eThink’s policies regarding the availability and limitations of E911 Service."In-App Purchase" means the Customer's purchase of eThink products or services from within a mobile application made available on a third-party online app store such as the Apple® App Store® or Google Play™ online app stores, and where payment is processed by the third-party online app store."eThink" or "eThink.net" means eThink Technologies L.L.C, a New Jersey corporation or any Affiliate providing Services to Customer."eThink Equipment" means all equipment that is used, leased or otherwise provided by eThink to Customer for use in connection with the Services, including but not limited to phone hardware (e.g., phones, routers, switches, SD-Wan devices, and battery backup). eThink Equipment does not include Customer owned hardware or equipment or hardware and equipment that Customer purchases through eThink."Sales Order" means a Sales Quote as described in Section 2 that has been accepted by an authorized representative of Customer and shall automatically incorporate these Terms by reference. A Sales Order arises once a Customer accepts a Sales Quote following: (a) initiation of the eThink Services; or (b) upon Customer's successful addition of eThink Products and/or Services via the online process or via phone by a Customer administrator; and the Sales Quote is subsequently accepted by eThink."Service" or "Services" means products or services provided or made available by eThink to Customer that are (a) set forth in a Sales Order, or (b) purchased by Customer via In-App Purchase."Service Term" or "Term" means the period of time (commencing upon the Activation Date) during which eThink provides Services to Customer.“Shipping and Handling” means any fees and costs payable by Customer to eThink in connection with packaging, shipping, or processing eThink Equipment or Customer Equipment to a Customer Premises."Software" means proprietary software (including documentation relating to such software) owned or licensed by eThink, or which eThink has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used by Customer in connection with the Services."Taxes and Fees" means any taxes and fees arising in any jurisdiction imposed on or incident to the provision, sale or use of Service and eThink Equipment, including value added, sales, use, gross receipts, excise, franchise, public utility or other taxes, fees, duties or surcharges (including universal service, 911 and other regulatory fees and surcharges), whether imposed on eThink or a eThink Affiliate.
SALES AGREEMENT: Services will be described in a "Sales Quote" that shall include: (i) the price, location, and other information about the Services; (ii) the details relating to equipment being offered for sale, rental or lease to Customer; and (iii) if applicable, associated installation, maintenance, shipping or delivery requirements. Notwithstanding the foregoing, for In-App Purchases only, the "Sales Quote" shall be deemed to be the description of Services presented to Customer and information provided by Customer within the in-app sign-up process, prior to Customer's confirmation of the purchase of the Services. Upon acceptance of a Sales Order by eThink, eThink will provide, and Customer will pay for and receive from eThink, each Service pursuant to the terms and conditions of each Sales Order and this Agreement. Customer may increase the quantity of Services at existing Customer Locations at any time during the Initial Service Term or Renewal Service Term ("Additional Services") by entering into an addendum or change order that sets forth the specific Additional Services requested. A change order or addendum may be accepted by the Customer via an email confirmation from the Customer to eThink. Each such addendum or change order shall be subject to eThink' acceptance (including by the rendering of the Additional Services), and upon such acceptance shall be considered an amendment to this Agreement and subject to the terms herein. Service Fees will be increased to reflect the Additional Services, subject to the same pricing and payment terms as are set forth in the applicable Sales Order.
TERMS, CONDITIONS AND POLICIES. These Terms incorporate and include addenda and policies that are set forth in an addendum, schedule, exhibit or amendment to a Sales Order or this Agreement (collectively, the "Terms"). These Terms supersede and replace all terms and conditions set forth in any documents issued by Customer, including purchase orders and specifications. eThink reserves the right to change any of the Terms at any time, but only on a prospective, not retroactive, basis. eThink will provide Customer thirty (30) days advance notice of changes to the Terms that would have a materially adverse effect on Customer. Notice may be provided via Customer's invoice or by e-mail to the most recent email address associated with Customer's account. Changes will become effective on the next business day following the thirty (30) day notice period and Customer agrees to be bound by any changes after such thirty (30) day notice period. Notwithstanding the foregoing, notice of changes to third-party terms incorporated into these Terms shall be governed by such third-party terms.
MARKETING PARTNERS & AUTHORIZED DISTRIBUTORS. eThink may enter into marketing arrangements with marketing partners (each a "Marketing Partner") or resale/distribution agreements with authorized distributors (each an "Authorized Distributor") who market eThink Services to prospective customers who then subscribe to these Terms of Service. When these Terms are accepted by a Customer, the Customer is considered a customer of eThink only with respect to eThink Services. As an example, if the distributor of internet services also markets eThink-branded solutions and a Customer subscribes to both internet services and eThink Services with eThink under these Terms, the customer is considered, with respect to eThink Services, only a customer of eThink. The terms, conditions and policies pursuant to a Marketing Partner or Authorized Distributor's contractual arrangement with Customer for other products and services may differ from eThink' Terms of Service, Privacy Policy and other policies applied by eThink to similarly situated customers, but such Marketing Partner's or Authorized Distributor's terms, conditions and policies will not apply to eThink Services, nor supersede these Terms as applicable to eThink Services.
AUTHORIZATIONS. Customer shall provide eThink, at no cost to eThink, all permissions, consents or authorizations necessary to activate, maintain, inspect, and repair the products and/or Services and any eThink Equipment, including (if applicable) the right to access and enter Customer's Premises.
HIGH SPEED INTERNET CONNECTION REQUIRED. Customer understands, acknowledges, and agrees that: (i) Customer must have a high-quality high speed internet connection to use the Services; and (ii) eThink is not providing an internet connection for Customer. eThink does not control and is not responsible for: (i) Customer's internet connection; (ii) the quality of Customer's internet connection; (iii) any third party products and/or services related to Customer's internet connection; or (iv) problems with the Services that are caused by or related to Customer's internet connection. eThink has no obligation to contact any of the internet providers and/or service or product providers on Customer's behalf.
USER DESIGNATION. Customer may designate one or more users to be an account administrator with full administrative control of Customer's account from the eThink user interface. For most eThink customers, the primary administrator for your account is known as the Superuser or, in some cases, a primary administrator (collectively hereinafter, "Superuser"). The individual assigned to be the Superuser is an individual designated by Customer through the online sign-up process or, if the agreement was not entered into online, the individual whose name is identified on the Sales Order. The Superuser: (i) has the ability to make changes to the Customer account (e.g., service additions, service deletions, assignment of users, account cancellations, updates to credit cards, etc.); and (ii) is the authorized individual on Customer's account with respect to transferring (or "porting") of your telephone numbers to a carrier other than eThink. The Superuser may assign one or more additional administrators on the account and may re-assign "Superuser" status to another user. In the event that Customer desires information regarding a customer service record or actual call log details, the information requests must come from Superuser or an administrator. However, eThink shall respond to these requests by transmitting the requisite information to the email address on file for the Superuser.
COMPANY CONTACT. The "Company Contact" for the account is assigned through the online sign-up process. The Company Contact shall refer to the individual(s) who will receive messages from eThink concerning matters of general relevance to the account (e.g., notices of updates to the account, billing notices, maintenance alerts, etc.). Such notices are typically provided through electronic mail. A Company Contact may or may not be the Superuser or an administrator for the account.
REASSIGNING SUPERUSER DESIGNATION. In the event that Customer seeks to re-assign the Superuser designation on Customer's account and the Superuser is unable to make the change, eThink requires that Customer either: (i) submit an email from the Superuser's email address on file with eThink; or (ii) provide a written request, on Customer's letterhead and executed by an officer or owner of the company which Customer represents.
ADDING SERVICES. Additional Services can be purchased by administrators through the eThink user interface or by calling or emailing eThink Customer Care. Customer hereby authorizes those users with administrative privileges to: (i) add Services to Customer's eThink account; and (ii) commit Customer to pay for these Services on a recurring monthly basis. Customer further authorizes eThink to obtain payment of Customer's then-current statement balance from Customer each month from Customer's credit card account, bank account or other electronic payment method. Administrators have the ability to authorize an account cancellation and make changes to the account (e.g., service additions, service deletions, assignment of users, updates to credit cards or other payment accounts, etc.) but may not: (i) designate himself/herself as the Superuser or (ii) designate any other user as an administrator. The ability to purchase Additional Services may be restricted or unavailable for accounts opened via an In-App Purchase.
EQUIPMENT.Customer understands and acknowledges that Activation of the Services may require the use of certain Customer Equipment and/or eThink Equipment.
CUSTOMER EQUIPMENT. Customer represents that it owns or otherwise has the right to use the Customer Equipment in connection with the Services. Customer shall be fully responsible for the installation, maintenance, repair and operation of any Customer Equipment. eThink shall not be responsible for ensuring compatibility of any Customer Equipment with eThink Equipment.
eThink may, upon Customer's request, facilitate the provision of equipment from a third party supplier or resell certain equipment. While eThink recommends some equipment brands and may facilitate Customer's purchase of some equipment as an accommodation, the original equipment manufacturer and not eThink shall be responsible for any equipment defects, if applicable. eThink will pass through all original equipment manufacturer warranties for the equipment to you. eThink shall have no liability to Customer of any nature regarding such equipment. Please check the equipment manufacturer's website for warranty, return rules and other terms and conditions applicable to such third party equipment.
Equipment may not be returned to eThink for any reason. ALL EQUIPMENT SALES ARE FINAL. Equipment sold by eThink to Customer may be returned to the manufacturer solely in the event of a defect which arises within the applicable warranty period, provided Customer complies with the terms of this Section and the Return Materials Authorization ("RMA") policy. Prior to returning the equipment, Customer must contact eThink so that eThink may determine whether a defect exists, to process a warranty claim on behalf of Customer, and to provide an RMA number. You must ship the equipment to the address provided by eThink in accordance with all RMA procedures. You have seven(7) days after receipt of an RMA to ship the equipment. You must pay all shipping fees. Once the equipment is received, the original equipment manufacturer will handle the return in accordance with its applicable warranty policy.
eThink EQUIPMENT. With respect to eThink Equipment rented, leased, loaned or otherwise provided by eThink for use by Customer, Customer will not: (i) relocate, rearrange, repair or otherwise modify any eThink Equipment without eThink's prior written consent; or (ii) create or allow any liens or other encumbrances to be placed on any eThink Equipment.
Customer will use commercially reasonable efforts to protect and maintain eThink Equipment in a secure location at the Customer Premises within conditions (including room temperature) that are customary and reasonable for such equipment, and shall be fully liable for all costs, charges or expenses associated with damage to or loss, including the replacement cost, of eThink Equipment beyond normal wear and tear.
During the Term of any applicable Service, eThink shall repair or replace defective eThink Equipment rented (or otherwise provided by eThink for use, where not purchased by Customer) by Customer. Notwithstanding the foregoing, eThink shall not be obligated to replace eThink Equipment if it is determined by eThink that Customer or another third party is responsible for the defect. Customer will be responsible for the replacement cost.
eThink Equipment (and replacements) may be refurbished equipment.
Upon the termination of this Agreement or any Service and for any other return of eThink Equipment, Customer must contact eThink for a return authorization (RMA), Customer shall securely pack, ship and return to eThink all eThink Equipment in accordance with the RMA instructions to the address designated by eThink. Failure to obtain an RMA and/or to adhere to eThink’ RMA instructions will give rise to Customer’s full liability for the replacement cost of the eThink Equipment. The RMA must be received before the eThink Equipment may be shipped back to eThink. All wires, cables and power supplies must be returned with the eThink Equipment. If the eThink Equipment has not been timely returned to eThink within seven (7) days after the termination of the applicable Service, eThink shall invoice Customer and/or charge Customer's method of payment, and Customer shall pay for the full replacement value of any eThink Equipment. The “replacement cost” shall be the then current list purchase price of the eThink Equipment. eThink Equipment remains the property of eThink at all times and eThink reserves all other rights and remedies, including retrieval. Customer will not withhold access to eThink to retrieve unreturned equipment, and in such case, eThink may charge Customer's selected method of payment, and Customer will pay and be liable for up to a one thousand dollar ($1,000.00) equipment return fee per Customer location (which is a non-exclusive remedy to obtaining the replacement cost chargeable to Customer as applicable.)
Tampering with the Device: You agree not to change the electronic serial number or equipment identifier of the Device without express permission from eThink in each instance
SOFTWARE.
NON-EXCLUSIVE LICENSE. If Software is provided by eThink in connection with the Services, eThink grants to Customer a personal, limited, revocable, non-exclusive, non-assignable and non-transferable license to use the Software in object code form only, solely for the purpose of using the Service(s). This license will permit such use by Customer and any of its employees or contractors (but only within the scope of their employment or services with Customer) authorized by Customer to use the Service, provided that the Customer shall be responsible for all uses of the Service as provided in this Agreement. This license commences upon eThink's acceptance of the Sales Order for the Service and terminates immediately upon the expiration or termination of this Agreement for any reason. Customer shall return or destroy all Software and any related written material, together with any copies, in its possession or under its control promptly upon the expiration or termination of this Agreement for any reason. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this license is void and may result in termination by eThink of this Agreement and the license. No other licenses or rights to the Software are granted or implied.
UPGRADES AND MODIFICATIONS. eThink reserves the right to upgrade the Software or discontinue support for earlier versions of the Software at any time.
END USER LICENSES. Certain Software eThink provides to Customer may contain third-party software ("Third-Party Software"), including open source software. Use of such Third-Party Software may be governed by separate copyright notices and license provisions, which may be found or identified in documentation or on other media delivered with the Third-Party Software and which are incorporated by reference into this license. Notwithstanding any other terms in this Section 9, such provisions shall govern the use of Third-Party Software. Customer agrees to comply with the terms and conditions of all end user license agreements accompanying any Software (including Third-Party Software) or plug-ins to such Software distributed in connection with the Service. All end user licenses shall immediately terminate on the date that the Service expires or this Agreement is terminated.
COPYRIGHT / TRADEMARK / UNAUTHORIZED USAGE OF DEVICE, FIRMWARE OR SOFTWARE. The Service(s), eThink Equipment and Software and all information, documents and materials on eThink' website(s) are protected by trademark, copyright, patent and other intellectual property laws and international treaty provisions. All website content, corporate names, service marks, trademarks, trade names, logos and domain names of eThink are and shall remain the exclusive property of eThink or its Affiliates and nothing in this Agreement shall grant Customer the right or license to use any of the foregoing. Customer agrees that the eThink Equipment is exclusively for use in connection with the Service and that eThink will not provide any passwords, codes or other information or assistance that would enable Customer to use the eThink Equipment for any other purpose. If Customer decides to use the Service through an interface device not provided by eThink (which eThink reserves the right to prohibit in particular cases or generally), Customer warrants and represents that it possesses all required rights, including software and/or firmware licenses, to use that interface device with the Service and Customer will indemnify, defend and hold harmless eThink from and against any and all liability arising out of Customer's use of such interface device with the Service. Customer may not undertake, cause, permit or authorize the modification, creation of derivative works, or translate, reverse compile, disassemble, hack or reverse engineer, or otherwise attempt to derive the source code from the binary code of the Software
SOFTWARE CHANGES. Customer agrees to promptly implement all fixes, updates, upgrades and replacements of Software and Third Party Software as directed by eThink or by the third party providers of Third-Party Software. eThink shall not be liable for inoperability of the Services due to failure of Customer to timely implement the required changes.
SERVICE TERM AND SERVICE CANCELLATION.
SERVICE TERM. The Services are provided on a monthly basis unless another fixed minimum term is agreed upon in the Sales Order and/or other agreement. The Term will begin on the Activation Date. The Service Term shall continue unless and until Customer provides notice of cancellation of the Services in accordance with this Section 10 or eThink terminates the Services in accordance with the terms set forth herein. Notwithstanding notice by a Party to terminate this Agreement, Services will remain in effect through the effective date of termination and the terms and conditions of this Agreement and the applicable Sales Order(s) will continue to apply to such Services. Upon termination of the applicable Service Term, eThink will not be obligated to furnish the Services to Customer.
ACTIVATION OF SERVICE. You understand and agree that before using the Service, you must complete a registration and Service activation process.
NOTICE OF CANCELLATION. Customer acknowledges that the Services automatically renew each month unless Customer provides cancellation notice to eThink at least thirty (30) days prior to a scheduled billing date (in accordance with the terms of Section 10 herein). If Customer provides notice of cancellation (with respect to any or all of the Services) at least thirty (30) days prior to the next scheduled billing date, then the Customer shall not be billed for the next billing cycle. If Customer provides notice of cancellation less than thirty (30) days prior to the next scheduled billing date, then: (i) the cancellation shall be effective the next billing cycle after Customer provides cancellation notification to eThink; and (ii) Customer shall be billed for the next billing cycle in full. eThink does not refund, in whole or in part, or issue credits for any charges already billed to Customer's account. In the event Customer subscribed for a minimum commitment or contract period for the Services being cancelled, the Customer is responsible for all or certain of the applicable Service charges and associated Taxes and Fees for the entire remaining minimum commitment or contract period pursuant to the terms of the commitment agreed to by Customer. When Customer cancels Customer's Service, all charges (including Taxes and Fees) payable to eThink, including any early termination fees, will immediately accelerate and Customer: (a) authorizes eThink to immediately assess all such amounts to Customer's credit card or ACH account on file; or (b) upon demand by eThink, provide a certified check for all Service Fees.
CANCELLATION PROCESS. The Agreement may be cancelled by Customer only through the Superuser or an administrator by contacting eThink Customer Care by telephone or email during normal business hours. (If Customer contacts a Marketing Partner or Authorized Distributor to cancel the Services or any portion thereof, that Marketing Partner or Authorized Distributor will collect the pertinent information and provide the information to eThink to effect cancellation in accordance with Customer's instructions.) CUSTOMER MAY CANCEL SERVICES ONLY THROUGH THIS METHOD. eThink WILL NOT ACCEPT CANCELLATION VIA FAX OR SMS. FAILURE TO CANCEL SERVICES IN ACCORDANCE WITH THIS SECTION WILL RESULT IN ONGOING SERVICE CHARGES, FEES AND TAXES. eThink will provide Customer with email confirmation of the Services cancelled. If Customer does not receive a confirmation of Service cancellation, Customer must notify eThink by sending an email to billing@eThink.net or contact eThink Customer Care by telephone. Customer may also cancel individual Services on Customer's account at any time by contacting eThink Customer Care during normal business hours. Customer understands and acknowledges that the cancellation will be effective on the date Customer specifies, but in no event earlier than seventy-two (72) hours following cancellation notification to eThink. Moreover, Customer acknowledges that eThink will not refund, in whole or in part, or issue credits for any charges already billed to Customer's account.
ADDITIONAL TERMINATION OBLIGATIONS. Upon termination, expiration or cancellation of the Services, Customer shall discontinue use of any eThink Services, including eThink-provided telephone numbers, log-ins, voicemail access numbers or any web portal sites assigned to Customer by eThink.
ANCILLARY SERVICES. In the event Customer subscribes to ancillary services provided by eThink (including such things as voicemail recording, call recording, etc.), cancellation of the Services for any reason shall also result in the cancellation of such ancillary services. In the event eThink is providing voicemail recording, call recording, or other such ancillary service, all of Customer's data, including all recordings, will be deleted on or after the effective date of termination or cancellation. In the event that an end user account is cancelled or terminated (whether by the Customer or due to termination of the Services), the user data associated with such end user account and related ancillary services will be deleted. Such data will be available subject to eThink' retention policies and could be as soon as the effective date of cancellation or termination.
IN-APP PURCHASES. Sections 10(a) through (d) above shall not apply for Services purchased via In-App Purchase. Services purchased via In-App Purchase are provided on a monthly basis and the Term will begin on the Activation Date. The terms of service for the app store from which Customer downloaded the mobile application shall govern renewals, refunds and cancellations of the Services, and such terms are hereby incorporated by reference.
BILLING, CREDIT, DEPOSITS AND PAYMENT.
BILLING AND PAYMENT PROCESSING. Customer agrees to pay eThink the recurring monthly service charges, Taxes and Fees, Shipping and Handling, set-up charges and usage charges, if applicable, for Customer's use of the Services. eThink may also charge, and Customer shall pay all recurring and nonrecurring costs, charges and expenses incurred by eThink for Customer's benefit in connection with installation, delivery or implementation of the Services (collectively, the "Special Install Costs"). For clarification and by way of example, standard installation does not include (and the following may comprise a portion of any Special Install Costs) core drilling, wiring extensions for excessive distances, installation of new conduit runs, installation of water proof shielding, installation of aerial circuit runs, or removal of hazard materials, as determined by eThink at its sole discretion. Billing will commence on the Activation Date. Customer agrees to provide eThink with a valid email address, billing address, and a valid payment method prior to activation of Service. Customer shall advise eThink immediately if Customer's Company Contact or Superuser email addresses change and/or if the payment method changes or expires. Failure to comply may result in the immediate suspension or termination of Services
PAYMENTS VIA CREDIT CARD OR ACH. Until Customer cancels the Services in accordance with the requirements of Section 10 herein, Customer authorizes eThink to: (a) automatically bill the credit/debit card Customer provided on the same day of each month; or (b) automatically debit (charge) Customer's checking account electronically via ACH on the same day of each month. "ACH" shall mean the automated clearing house, which is the nationwide network of banking institutions that process electronic payments automatically between bank accounts. Customer agrees that eThink may receive updated information about Customer's account from the financial institution issuing Customer's credit/ debit card. Customer's payment method is also subject to charge for applicable fees and charges arising from a cancellation of Service or required eThink Equipment returns.
ALTERNATIVE PAYMENT METHODS. Under certain circumstances, and except for pre-paid cards, eThink may agree to accept alternative payment methods. In such case, Customer shall agree to eThink' reasonable requirements, as well as certain fees, related to the aforementioned pre-approved, alternative payment methods. In such case, Customer authorizes eThink to either: (a) use information from the check to make a one-time electronic transfer from Customer's account as soon as the Customer submits the payment; or (b) to process the check as a check transaction, in which case Customer may not receive the check back from Customer's financial institution. In the event that Customer presents a check to eThink for payment that is returned by Customer's bank for non-sufficient funds, eThink may suspend or terminate the account. Customer shall pay a reconnect fee to re-activate service as set forth in Section 11. iv. Late payments and returned checks are subject to late payment fees and returned check fees, respectively.
SECURITY DEPOSIT. eThink reserves the right any time during the Service Term, in its sole discretion, to require Customer to maintain a non-interest bearing deposit, to be held on account, in an amount determined in eThink' discretion based on customer's actual or anticipated billings to include usage charges. A deposit may be required prior to the next billing date to continue the Services (e.g., with instances of high international calling). The deposit will be adjusted as Services and usage levels increase or decline and will be refunded, less any past due balance or other amounts due by Customer, at the end of the Service Term. In addition, in the event that Customer's use of the Services involves usage-based charges that in eThink opinion are substantial, eThink may, in its sole discretion, process charges against Customer's payment method prior to Customer's regular monthly billing cycle date and/or require a non-interest bearing deposit to secure Customer's payment obligations under this Agreement. All deposits must be paid promptly on demand and will be held on account during the term of this Agreement. Customer authorizes eThink to offset any amounts due to eThink against the deposit.
PAYMENT OF INVOICES. Invoices are delivered monthly. All fees are billed in the billing period following the period in which they were incurred. A one month’s deposit is taken on service activation, and all recurring fees are offset against it. Fees may include monthly recurring charges ("Service Fees") and other non-recurring charges including but not limited to, activation fees, porting fees, early termination fees ("ETF"), and government mandated pass through fees such as, but not limited to, Universal Service Fees ("USF"), e911 fees and regulatory compliance (collectively, "Fees"). All usage based charges (including charges for calls to Alaska, Hawaii and international calls) are due and payable in arrears on the first day of each billing period following the month they were incurred. Customer agrees to pay for all equipment as the equipment order is processed and set up fees upon acceptance of the Sales Order. Customer agrees to pay a deposit for the first month of Services upon Activation of the Services. All payments, including payments paid in advance, are completely non-refundable. Failure to pay in full may result in immediate account suspension and eThink shall have no liability for such suspension under any circumstances. Accounts will be reactivated, at eThink' sole discretion, after the account balance is paid in full and a Fifteen Dollar ($15.00) per line or extension reconnect fee is paid. Past due amounts bear interest at the lower of 1.5% per month or the maximum rate allowed by law. All Fees and any other amounts due to eThink may, at Customer's direction, be charged to Customer's Visa, MasterCard, American Express or valid debit card, and/or electronically debited to Customer's bank account, in which case Customer hereby authorizes eThink to charge Customer's credit/debit card and/or to electronically debit Customer's bank account for all such fees, charges (including termination-related charges), taxes and payment transaction processing costs. Customer acknowledges that pre-paid credit cards are not accepted and agrees not to provide pre-paid credit cards as a payment method.
SUSPENSION OF SERVICES. Failure to pay in full may result in immediate suspension of Services and eThink shall have no liability for such suspension under any circumstances. During any period of suspension, Services and features and functions of the Services (including, but not limited to call recording service and any other service eThink is providing) will be unavailable to Customer until the account balance is paid in full. Customer will be unable to record calls or access any data or recordings that have previously been stored by eThink.
DISPUTES. If Customer reasonably disputes an invoice, Customer must pay the undisputed amount and submit written notice via email of the disputed amount (with details of the nature of the dispute and the Services and invoice(s) disputed) to the email address below on or before the due date. In the event Customer intends to dispute amounts already paid in full, Customer must submit notice of such dispute in writing within ninety (90) days from the date of the invoice (such date at the end of such period being the "Dispute Due Date"). After receipt of notice of the dispute, eThink shall undertake an investigation of the dispute, so long as Customer has not waived its rights pursuant to this paragraph to make the dispute. At the conclusion of the investigation, eThink will notify Customer of any amount determined by eThink to be correctly charged and such amount will become immediately due and payable together with interest from the date originally due. If the dispute notice is not sent by the Dispute Due Date, Customer waives all rights to dispute the applicable charges, unless otherwise provided by law. All billing disputes must be sent to: billing@eThink.net
If Customer does not deliver full payment for all undisputed billed charges by the due date, eThink may restrict, suspend or terminate use of the Services or eThink Equipment. Customer shall also reimburse eThink for all reasonable attorneys' fees and other costs incurred by eThink relating to collecting delinquent payments or Customer's non-payment breach of this Agreement. eThink may also apply any deposits or other payments made by Customer. If eThink applies any portion of a security deposit, Customer shall, within five (5) days following written notice thereof from eThink, replenish the security deposit by the amount so applied by eThink. If eThink restricts, suspends or terminates Customer's Services, eThink may, at its sole option, choose to restore Customer's Services prior to the payment of all charges due. Such restoration shall not be construed as a waiver of eThink' right to (i) receive full payment for all charges due or (ii) again restrict, suspend or terminate the Services at any time for non-payment of any unpaid charges. The failure of eThink to restrict, suspend or terminate the Services for non-payment of any charges shall not operate as a waiver or estoppel to restrict, suspend or terminate the Services of such account for non-payment of current or future charges.
CREDIT APPROVAL. Customer agrees to supply eThink with the information necessary to verify Customer's credit rating prior to providing Customer with access to the Services or Equipment. eThink may also, during the Service Term of this Agreement, update its information regarding Customer's credit rating without notice to or permission from Customer. Customer authorizes eThink to make inquiries and to receive information about Customer's credit experience from others, enter this information in Customer's file, and disclose such information concerning Customer to appropriate third parties for reasonable business purposes. eThink reserves the right any time during the Service Term, in its sole discretion, to refuse to provide Service based upon lack of Customer's creditworthiness, upon the expiration or termination of this Agreement or other form of secure payment authorization, such as auto-payment.
ADDITIONAL, UNRELATED CHARGES. Customer acknowledges that Customer may incur charges while using the Service in addition to those billed by eThink. For example, Customer may incur charges as a result of accessing certain on-line services or purchasing or subscribing to certain other offerings. Customer agrees that all such charges, including all applicable taxes, are the sole responsibility of Customer, and Customer covenants to timely pay all such charges.
IN-APP PURCHASES. Sections 11 i., ii., iii., v., and vi. above shall not apply for Services purchased via In-App Purchase. The terms of service for the app store from which Customer downloaded the mobile application shall govern payment for the Services, and such terms are hereby incorporated by reference. Failure to comply with such terms may result in the immediate suspension or termination of Services. Due to payment notification requirements of certain app store platforms, Customer may be required to open their mobile app to enable automatic delivery of their monthly subscription payment notification to eThink. If Customer fails to open (or if Customer deletes) their mobile app within fourteen (14) days after the end of the prior monthly subscription period, eThink may not receive payment notification despite Customer's account having been charged by the app store platform. If eThink does not receive payment notification within fourteen (14) days after the end of the prior monthly subscription period for any reason, Customer's account may be suspended or terminated.
DIRECTORY ASSISTANCE. Directory Assistance is accessed by dialing the area code of the listing, plus 555-1212 or by dialing 411. A charge applies to this feature, current rates can be found at https://www.eThink.net/service-fees. eThink reserves the right, in accordance with this Agreement, to modify the terms and charges for and/or discontinue these services at any time
ACTIVATION FEE; SHIPPING FEE. All Customers will be charged a non-refundable activation fee (per line for Residential customers – and per phone for business customers) when signing up for the Service. Current Activation Fees can be found at https://www.eThink.net/service-fees. In addition to the activation fee, Customers will be charged a shipping and handling fee for each piece of equipment, this fee is charged even if the device is picked up from one of our agents and not actually shipped to the customer. Current Shipping Fees can be found at https://www.eThink.net/service-fees.EQUIPMENT FEES. Customer agrees to return the Device(s) upon termination of the Service for any reason (regardless of whether termination is by Customer or eThink). If Customer fails to return the Device(s) upon termination of the Service, eThink will charge Customer, per Device, an equipment non-return fee as set forth at https://www.eThink.net/service-fees. If Customer has multiple Devices, Customer will be charged the non-return fee as set forth https://www.eThink.net/service-fees for each Device belonging to eThink in its possession. To receive a credit for the equipment non-return fee, Customer must return the Device(s) undamaged and in original condition (reasonable wear and tear excepted) with all parts and accessories, within thirty (30) days of termination. eThink will not credit Customer if the Device(s) is damaged or is not in its original condition as received by Customer. In the event Customer disconnects multiple lines, eThink will issue the Customer a credit for all equipment non-return fees upon receipt of all Devices in accordance with this Section. Further, eThink reserves the right to charge the Customer for any power cables, network cables or other incidental equipment (“Equipment”) provided to Customer in addition to the Device should such Equipment not be returned. If Customer was billed a Deposit for the Device upon signup then that amount will be applied to Customer’s account against the equipment non-return fee. For example, if the Customer had been billed fifty ($50.00) dollars Device Deposit then the Customer will only be responsible for the difference of the device deposit and the equipment non-return fee, which in this case would be twenty five ($25.00) dollars. If however, the Customer did not receive the Device from eThink, for example, if the Customer used its own device (“BYOD”) or if you have outright purchased the device from eThink then the Equipment Non-Return Fee will not apply to Customer.
TAXES AND FEES. Prices for Services do not include, and Customer is responsible for, all Taxes and Fees. Customer may also be charged taxes by a Marketing Partner or Authorized Distributor for non-eThink products and services sold or licensed by that Marketing Partner or Authorized Distributor in connection with Customer's order for eThink Services. In addition, a regulatory recovery fee for every phone number assigned to Customer's account, including toll free and virtual numbers, may be charged monthly to offset costs incurred by eThink in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and related legal and billing expenses. This recovery fee may also include recovery of costs for legal, intellectual property, cybersecurity, compliance and other related expenses, including those related to number portability, customer privacy protection and anti-fraud protection. This fee is not a tax or charge required or assessed by any government and may be recovered by eThink through imposition of a surcharge on cost of the Service. Customer may present eThink with an exemption certificate eliminating Customer's and eThink's liability to pay certain Taxes and Fees, but will be responsible for any non-exempt fees, surcharges and taxes. If any amounts paid for the Services are refunded by eThink, Marketing Partner or Authorized Distributor, applicable taxes may not be refundable. The foregoing shall not apply to In-App Purchases. The terms of service for the app store from which Customer downloaded the mobile application shall govern taxes and fees for the Services, if any, and such terms are hereby incorporated by reference
REGULATORY AND LEGAL CHANGES. eThink may discontinue, limit, modify any Service, or impose additional requirements to the provision of any Service, as may be reasonably required to comply with any Applicable Laws. If changes in Applicable Laws materially and adversely affect the delivery of Service (including the economic viability thereof) or would impose further compliance requirements, then eThink will provide notice to Customer (in accordance with Section 40(e)) to the extent that said changes impact Customer's obligations and details of regulatory changes.
METERED USAGE. There are certain calls which may incur additional usage charges, including but not limited to calls to Alaska, Hawaii and international calls. In addition, certain features such as call forwarding from auto attendants to an outside number, calls to a queue, and each line on a conference bridge will incur charges at the then current rate established by eThink. Metered usage is billed in full-minute increments, and actual usage is rounded up to the next full-minute increment at the end of each call for billing purposes. Calls to Alaska, Hawaii and international calls may not be made available for certain types of Services.
BUNDLED USAGE. eThink or its Marketing Partners or Authorized Distributors may offer bundled plans which include a defined combination of services and which may offer a specified number of minutes or unlimited usage (subject to Sections 19 and 20 herein). Bundled plans may also include usage based charges that differ from other eThink, Marketing Partner or Authorized Distributor plans. In some bundled plans, the number of minutes used may be aggregated into a pool of minutes available to extensions on an account with excess usage charges applying for any usage above the allotted aggregate minutes at a specified rate. Customer acknowledges and agrees that the Services are offered on a bundled basis (including local, toll, long distance and international service) and cannot be separated. Customer acknowledges that these services (local, toll, and long distance) are not available individually, and to maintain each of the services in the bundle, Customer must maintain the others on the same service line. Should Customer wish to change any of these service providers from eThink, Customer will terminate your Service with eThink.
UNLIMITED CALLING & UNLIMITED VOICE SERVICES. For unlimited calling plans, unlimited calling applies only to calls made within the region or country specified in the Plan description, available at https://www.eThink.net/rates, or on the Service Order. Unlimited voice services are provided solely for live dialog between two individuals. Unlimited voice services may not be used for conference calling, call forwarding, monitoring services, data transmissions, transmission of broadcasts, transmission of recorded material, or other connections which do not consist of substantially uninterrupted live dialog between individuals. If eThink finds that Customer is using an unlimited voice service offering for other than live dialog between two individuals, eThink may, at its option, terminate Customer's service or change Customer's plan. eThink may provide commercially reasonable written or email notice that it intends to take any of the above actions. Notwithstanding the foregoing, Customer shall be entitled to use eThink conference calling services such as three way calling and eThink-provided conference calling bridges. See Section 19 below for additional limitations pertaining to Customer's use of unlimited voice services.
ANCILLARY SERVICES.
Caller name identification (i.e., caller ID with name) Services provided by eThink are based on availability of such Services from eThink' underlying providers. eThink does not guarantee that such Services are available for all numbers in all serving areas.
Each voicemail and sms message recorded by eThink shall be retained for a minimum of three (3) months from the date the message was recorded. eThink retains the right to purge all voicemail messages after this minimum retention period.
Unless otherwise specified in your Service Order, call recording messages recorded by eThink shall be retained for a minimum of seven (7) days from the date the call was recorded. eThink retains the right to purge all call recording messages after this minimum retention period.
Certain Services provided by eThink shall be subject to separate end-user license agreements ("EULAs"). The terms of such EULAs shall be binding upon the parties to this Agreement. If any such EULAs, or any provisions in such EULAs, are held to be unenforceable for any reason, the terms of this Agreement shall apply with respect to the supply of that Service.
eThink may introduce new ancillary Services to new and existing customers. Such ancillary Services may sometimes be offered on a trial basis for a specified period of time during which fees may or may not apply to Customer. In some cases, the terms of a trial may involve an automatic re-enrollment at the end of the trial unless the customer opts out of the trial and/or cancels the service during the term of the trial. In no event shall eThink impose Service Fees on Customer for ancillary services without providing Customer the opportunity to opt-out of the trial and/or to cancel the ancillary Service during a no-cost trial period.
USE OF THE SERVICES. Customer shall use the Services only in a manner that fully complies with all Applicable Laws, as well as the terms and conditions of this Agreement. Use of the eThink Equipment, the Services or other action that is in violation of this Section 18 or Section 19 or that causes a disruption in the eThink network integrity, or in eThink's determination threatens or compromises the security of eThink, its vendors, its other customers or the Services whether directly or indirectly, is strictly prohibited and permits eThink to suspend or terminate the Services without prior notice at the sole discretion of eThink and further permits eThink to disclose any relevant information, including Customer Confidential Information, to necessary authorities or third parties. eThink shall have the right, in its sole, but reasonably exercised discretion, not to accept, transmit or deliver any messages or content that it reasonably believes contains inappropriate content or that is, or could reasonably become, the subject of any legal, regulatory, or other governmental proceeding or process, including a law enforcement proceeding, process, or inquiry.
SERVICE USE RESTRICTIONS.
RESIDENTIAL USE If Customer orders Residential Service, Customer is representing that it is using the services for residential use only, and not commercial use. Customer shall not in any way interfere with other users, the services or equipment of the network or use the Services in any way for (or as part of) any commercial service or application. Customer may not attempt to, in conjunction with any device, software program or service, circumvent technological measures employed to control access to the Service.
COMMERCIAL USE Customer agrees and represents that Customer is purchasing the Services and/or the equipment for Customer's internal use only, and Customer shall not resell, transfer or make a change to the Services without the advance express written permission of eThink. Customer shall not in any way interfere with other users, the services or equipment of the network or use the Services in any way for (or as part of) any commercial service or application. Customer may not attempt to, in conjunction with any device, software program or service, circumvent technological measures employed to control access to the Service.
FAIR USE eThink's business service plans and features are for normal, reasonable business use and consistent with the types and levels of usage by typical customers on the same business calling plan. "Typical" refers to the calling patterns of at least 95% of eThink' customers on the same calling plan. Certain calling and messaging plans, including unlimited calling and messaging plans, are designed for normal commercial use and are not intended to represent typical usage by unique organizations such as call centers, resellers, fax messaging services, telemarketing firms, or for use without live dialog, such as transcription services, intercom or monitoring services. Unauthorized or excessive use beyond that normally experienced by typical, similarly situated business customers may cause extreme network capacity and congestion issues and interfere with eThink's network and the third party networks with which eThink connects for call initiation and completion services. Any use of the Services or any other action that causes a disruption in the network integrity of eThink services or its vendors, whether directly or indirectly, is strictly prohibited and may result in termination of the Services.
EVALUATION OF USAGE eThink evaluates Customer usage in comparison to typical levels of permissible usage engaged in by eThink’s customers (business use under business service plans or residential use under residential plans). The following is a non-exhaustive list of impermissible uses under eThink's business plans and is considered outside of normal use, whether obtained directly from eThink, an authorized reseller, or from a co-branded eThink partner:
Resale to others;
Auto-dialing or fax/voice blasts;
Without live dialog, including use as a monitor or for transcription purposes;
Continuous or extensive call forwarding;
Continuous connectivity;
Constant dialing;
Iterative dialing;
Fax broadcast;
Fax blasting; and
Telemarketing involving practices that are in violation of any law or regulation or any other activity that would be inconsistent with small business usage.
REVIEW OF UNLIMITED USAGE eThink reserves the right to review usage of unlimited usage plans to ensure that customers are not abusing such plans. Customer agrees to use unlimited voice plans for normal voice and/or text message related communications with aggregate usage that falls within the range of similarly situated business or residential customers. Use of unlimited "paperless facsimile" service must also fall within the normal range of similarly situated business or residential customers and shall be considered abusive if usage exceeds 500 transmitted pages sent or received per month. In addition, Customer agrees that Customer will not employ methods or use devices to take advantage of unlimited plans by using the Services excessively or for means not intended by eThink. eThink may terminate service immediately if it determines, in its sole discretion, Customer is abusing an unlimited minute plan. eThink deems usage that substantially exceeds the average volume of its other unlimited usage plan customers as abusive. Customer agrees that eThink has the right to terminate Customer's service and/or charge Customer additional fees if Customer's usage is considered abusive in the sole discretion of eThink.
EXCESSIVE USAGE If it is determined that Customer's usage is abusive, Customer agrees to pay a per minute, per text message, or per page fee for use in excess of typical levels at the then current rate established by eThink, of the highest rate currently published at https://eThink.net. At eThink's sole option, Customer's service may be immediately terminated. THIS OVERAGE FEE APPLIES TO ALL PLANS INCLUDING THE UNLIMITED PLANS. A Customer's aggregate usage may be considered outside of normal use if involves excessive:
Number of calls made to a conference calling service during a month;
Number of calls terminated and re-initiated consecutively, which, in the aggregate, result in excessive call lengths during a specific time frame;
Number of text messages;
Number of inbound domestic toll free calling patterns during a month; or
Other abnormal calling patterns indicative of an attempt to evade enforcement of this Reasonable Use Policy
Based on such a combination, eThink may determine that abnormal, unreasonable or impermissible usage is occurring when compared to typical customers on the same calling plan, and may take appropriate steps described below to enforce this Section 19 and 20, as well as the Terms of Service. If, in eThink's sole discretion, eThink affords Customer the opportunity to correct Customer's abnormal usage patterns and Customer fail to immediately conform to normal use, eThink may exercise its right to transfer Customer's service to a more appropriate plan, charge applicable rates for that plan, implement other limitations or suspend or terminate Customer's service with or without notice.
PROHIBITED USE OF THE SERVICES Customer may not use any automated means to manipulate our Service or use our Service to violate any law, rule, regulation or any third parties' intellectual property or personal rights. By way of example, Customer shall not use our Service or our device to:
Impersonate another person;
Send bulk unsolicited messages;
Use robots, data mining techniques or other automated devices or programs to catalog,
Download, store or otherwise reproduce or distribute information from our Service or use any automated means to manipulate our Service;
Violate any law, rule or regulation;
Violate any third party's intellectual property or personal rights; or
Exceed Customer's permitted access to our Service.
eThink may remove or block all communications if eThink suspects a violation of this Agreement, or if eThink thinks it necessary in order to protect eThink's Service, or eThink, its parent, affiliates, directors, officers, agents, and employees from harm.
FOR LAWFUL AND APPROPRIATE PURPOSES ONLY; eThink'S RIGHTS Customer may not use our Service or devices in any way that is illegal, improper or inappropriate. The following is a non-exhaustive list of examples of illegal, improper, or inappropriate uses of our Service and or devices:
Threatening;
Abusive;
Harassing;
Defamatory;
Libelous;
Deceptive; or
Invasion of another's privacy or any similar behavior
FRAUDULENT USE OF SERVICE. Customer is solely responsible for any and all activities that occur under Customer's account. Customer shall not transfer its login credentials accessing the Services to any third party. Customer agrees to notify eThink if it becomes aware of any prohibited, fraudulent or unauthorized use of the Services, Customer's account, eThink Equipment or Customer Equipment. eThink shall not be liable for any damages whatsoever resulting from any prohibited, fraudulent or unauthorized use of the Services, Customer's account, eThink Equipment or Customer Equipment, and Customer shall bear the risk of loss and assume all liability arising from any such prohibited, unauthorized or fraudulent usage, except to the extent such usage arose solely from eThink's gross negligence or willful misconduct. Any such prohibited, unauthorized or fraudulent use shall be deemed a material breach of the Agreement by Customer. Customer is responsible for implementing generally accepted security measures to protect all access points. Customer is responsible to secure all credentials used to access the Services, including credentials used by telephones or softphones and credentials used by end users or administrators, as well as the media access control (MAC address of telephones used by Customer. Customer is also solely responsible for terminating credentials and access for any end users no longer authorized by Customer to use the Services. Customer acknowledges that placing telephones on a publicly accessible internet protocol address or a publicly accessible network will subject the Customer to a higher level of risk for fraudulent activity. Customer shall not be excused from paying for Services or any portion thereof on the basis that fraudulent calls, and any charges associated with such calls (e.g. long distance charges), comprised a corresponding portion of the Services. In the event eThink discovers or has reason to believe (i) suspicious or fraudulent calls being made, (ii) calling patterns or volumes materially outside of Customer's regular usage patterns or (iii) other usage in violation of the AUP, Customer consents to eThink taking actions it deems reasonably necessary (including temporary suspension of the affected Service or blocking or limiting access to particular calling numbers or geographic areas), without notice to Customer, to prevent such calls from taking place. Customer acknowledges and agrees that eThink: (a) is under no obligation to investigate the authenticity of calls charged to Customer's account, (b) is under no obligation to take action to prevent such calls from being made, and (c) is not liable for any fraudulent calls processed by eThink and billed to Customer's account.
NO RESALE. Customer represents and warrants that it will be the ultimate end user of the Service. Customer shall not in any way resell, license, permit nor allow any third party to use the Services without receiving eThink' prior written consent.
THIRD PARTY NETWORKS. In some cases, eThink may utilize the public Internet and third party networks outside of its control in conjunction with the provision and maintenance of the Services and its websites. In such cases, eThink makes no representation that the Internet or any such third party network will adequately secure or protect the privacy of Customer or any end user's personal information, and eThink expressly denies any associated liability. Actions or inactions caused by these third party networks can result in situations in which eThink customers' connections may be impaired or disrupted. Although eThink will use commercially reasonable efforts to remedy or avoid such events, eThink expressly disclaims warranties with respect to these third party networks or any disruptions that may occur thereon. Unless required by law, subpoena, court order, warrant or other valid governmental request, eThink will only share Customer's personally identifiable information with other eThink entities and/or business partners (including Marketing Partners and Authorized Distributors) that are acting on eThink' behalf to perform the activities described herein and in accordance with the eThink Privacy Policy, located at https://www.eThink.net/privacy.
REQUIRED MAINTENANCE. eThink reserves the right to perform repairs, maintenance or to upgrade, update or enhance (collectively, the "Maintenance") its network, infrastructure, website(s), Services and/or eThink Equipment with or without prior notice or liability to Customer, even if the Maintenance causes a partial or full disruption of the Services; provided, however, and subject to eThink's business needs, eThink shall use commercially reasonable efforts to perform the Maintenance in a manner so as to avoid unduly interfering with Customer's use of the Services, including by providing reasonable commercial notice where feasible.
VOICE-TO-TEXT AND TEXT-TO-VOICE LIMITATIONS. Certain eThink Services may provide a function that allows voicemails to be converted to text and vice-versa. Customer understands and agrees that eThink's voice-to-text ("VTT") and text-to-voice ("TTV") features may not accurately transcribe voicemails or articulate text messages, respectively. Customer is solely responsible for checking the original message and verifying the accuracy of the message when using any VTT or TTV features. eThink expressly disclaims all liability with respect to the conversion of voicemails to text or vice-versa.
SUGGESTIONS AND FEEDBACK. In the event that Customer provides eThink with suggestions, enhancement requests, recommendations, proposals, documents, or other feedback with respect to the Services or Software (collectively, "Suggestions"), Customer grants eThink and its Affiliates a royalty-free, worldwide, irrevocable, perpetual license to use, modify, and distribute such Suggestions in connection with efforts to improve, enhance or modify the Services or Software without compensation to Customer or attribution of any kind.
CHANGES TO SERVICES. eThink reserves the right to remove, add, modify or reduce features and functions of the Services, and to provide fixes, updates and upgrades to the Services without notification to Customer, provided that material changes shall be noticed by eThink on its website or communicated to Customer pursuant to the methods in Section 3. All features of this Service are subject to availability, class of service, suitability of Customer’s broadband connection and Customer’s available bandwidth at the time of attempted use by Customer. Features may be discontinued and/or currently free-of-charge features may be reclassified as Advanced (chargeable) Features at any time.
DEFAULT AND REMEDIES.
CUSTOMER DEFAULT. If Customer either (a) fails to make any payment when due and such failure continues for five (5) business days after written notice from eThink, or (b) fails to observe or perform any other material term of this Agreement and such failure continues for thirty (30) days after written notice from eThink, then eThink may elect to: (i) terminate this Agreement and/or any Sales Order, in whole or in part; (ii) immediately suspend Customer's Service, in whole or in part; and/or (iii) pursue all remedies eThink may have at law or in equity.
SUSPENSION OF SERVICES. Notwithstanding any other provision of this Agreement, eThink may suspend Customer's right to access or use any portion or all of the Service immediately and without liability to Customer in any of the following circumstances: (i) Customer's use of the Service violates and Applicable Laws or the AUP; (ii) eThink is legally required to suspend or terminate Service; (iii) Customer's use of the Service poses a security risk to the Service or any third party or may subject eThink or any third party to liability; (iv) the occurrence or threat of any other event or circumstance for which eThink reasonably believes that suspension of Service is necessary to protect the eThink (or other third-party) network, systems or customers; or (v) Customer's failure to make payment (as set forth in Section 11).
eThink DEFAULT. If eThink fails to observe or perform any material term of this Agreement (other than non-performance under or failure to comply with a service level agreement between the parties which contains exclusive remedies therein), Customer may terminate any applicable Sales Order only after Customer has delivered written notice of such failure to eThink, such notice to contain reasonable detail describing any breach, and eThink has failed to remedy such failure and/or prevent its recurrence within thirty (30) business days of its receipt of Customer's written notice.
RIGHT TO TERMINATE OR MODIFY SERVICES. eThink may modify the Services, including but not limited to the price, content or nature of the Services, upon written- notice to Customer. Customer's continued use of the Services constitutes Customer's agreement with the modified Services
WARRANTY DISCLAIMER. eThink PROVIDES THE SERVICES, EQUIPMENT AND SOFTWARE ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND (EXCEPT FOR ANY THIRD PARTY MANUFACTURER WARRANTIES THAT MAY BE APPLICABLE TO EQUIPMENT PURCHASED BY CUSTOMER FROM eThink), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANT ABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. eThink MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER REQUIREMENTS, SPECIFICATIONS, EXPECTATIONS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED, THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER CONTENT, CUSTOMER APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY eThink. CUSTOMER ACKNOWLEDGES THAT eThink DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. eThink IS NOT RESPONSIBLE FOR MESSAGES OR INFORMATION LOST OR MISDIRECTED DUE TO INTERRUPTIONS OR FLUCTUATIONS IN THE SERVICES OR THE INTERNET IN GENERAL, OR FOR ANY ISSUES RELATED TO THE PERFORMANCE, USE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER'S USE, CUSTOMER CONTENT, CUSTOMER APPLICATIONS, OR THIRD PARTY CONTENT. eThink DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS OR USEFULNESS OF THIRD PARTY CONTENT. TO THE EXTENT THAT eThink CANNOT DISCLAIM ANY WARRANTIES IN CERTAIN JURISDICTIONS, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. ALTHOUGH REASONABLE EFFORTS ARE MADE TO PROVIDE SECURITY FOR VOICEMAILS AND FAX TRANSMISSIONS, eThink MAKES NO GUARANTEES OR WARRANTIES OF SECURITY. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT ENABLED TO FUNCTION OUTDIALING SYSTEMS INCLUDING HOME OR OFFICE SECURITY SYSTEMS, TTY EQUIPMENT, MEDICAL MONITORING EQUIPMENT OR SATELLITE TELEVISION SYSTEMS. eThink WILL NOT BE LIABLE FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS BY THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT DESIGNED, INTENDED OR RECOMMENDED AS A MEANS BY WHICH TO STORE OR TRANSMIT "PROTECTED HEALTH INFORMATION" ("PHI') AS DEFINED UNDER THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 AND RELATED OR SIMILAR LAWS (COLLECTIVELY, "HIPAA"). EXCEPT AS OTHERWISE AGREED IN A WRITING SIGNED BY eThink, eThink MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES OR THEIR USE WILL COMPLY WITH HIPAA OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA, AND IS RELEASED FROM ANY LIABILITY FOR ITS ACTS OR OMISSIONS RELATING TO HIPAA.
LIMITATION OF LIABILITY. NEITHER eThink, NOR ITS AFFILIATES, VENDORS, SUPPLIERS, DISTRIBUTORS, CHANNEL AND OTHER MARKETING PARTNERS OR OTHER REPRESENTATIVES SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, REPLACEMENT COSTS, OR ANY LOSS OF REVENUE OR PROFITS, CONTENT, DATA, OR DATA USE, EVEN IF eThink HAS BEEN INFORMED IN ADVANCE OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN BY eThink. eThink' AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO eThink UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM SUBJECT TO THIS SECTION 30.THE PARTIES ACKNOWLEDGE AND ACCEPT THE REASONABLENESS OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 30.
INDEMNIFICATION . Customer agrees to defend, indemnify and hold harmless eThink from and against any loss, damage or costs (including reasonable attorney's fees) incurred in connection with claims made or brought against eThink 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 Services, Software or eThink Equipment, whether authorized or unauthorized by Customer; (ii) Customer's breach of any obligation, warranty, representation, or covenant of this Agreement or the RUP; (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 eThink; (iv) any claim by any customer of Customer, end user or other third party relating to, or arising from, Customer Data or Customer's use of the Services, Software or eThink Equipment; or (v) violation of any Applicable Laws by Customer or any Customer employee, contractor or agent.
CONFIDENTIALITY.
"Confidential Information" means all nonpublic information relating to a Party or its Affiliates that (i) if provided in writing, is marked or labeled as confidential or proprietary, or (ii) if provided verbally, is designated as confidential at the time of disclosure, or (iii) even if not so marked, labeled or identified, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation, all nonpublic information relating to (i) a Party's or its Affiliates' technology, customers, employees, business plans, agreements, finances and other business affairs, (ii) the eThink network or service delivery platform, and (iii) the terms of any Sales Order. Confidential Information does not include any information that (i) has become publicly available without breach of this Agreement, (ii) was known to the Party receiving Confidential Information under this Agreement (the "Receiving Party") at the time of its receipt from the Party disclosing the Confidential Information (the "Disclosing Party") or its Affiliates as shown by documentation reasonably acceptable to Disclosing Party, (iii) is received from a third party who did not acquire or disclose such information by a wrongful or tortious act, or (iv) was independently developed by the Receiving Party without use of any Confidential Information as shown by documentation reasonably acceptable to Disclosing Party.
Each Party hereby agrees to hold Confidential Information in strict confidence and shall, in any case, protect such Confidential Information with no less diligence than that with which it protects its own confidential or proprietary information of a similar nature. The Receiving Party agrees not to use any Confidential Information of the Disclosing Party for any purpose unrelated to the Services. Each Party may disclose the Confidential Information of the other Party on a "need to know basis" and then only to its (and, in the case of eThink, its Affiliates') directors, officers, advisors, employees and other legal, business or financial partners or representatives; provided that all such persons are subject to written confidentiality agreements which contain provisions which are no less restrictive than the provisions of this Section 32. In addition, eThink may disclose this Agreement under a comparable non-disclosure agreement in response to a third party due diligence request supporting a financing or non-ordinary course of business corporate transaction.
If the Receiving Party is legally compelled by any means (including deposition, interrogatory, request for documents, subpoena, civil or regulatory investigative demand or similar process) to disclose Confidential Information of the Disclosing Party, subject to applicable laws, the Receiving Party must provide the Disclosing Party with prompt written notice of such legal requirement in order to allow the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Section 32.
Upon the termination or expiration of this Agreement, or at any time upon the request of the Disclosing Party, the Receiving Party shall, at the Disclosing Party's option, return or destroy (and certify as to such destruction) all Confidential Information of the Disclosing Party in its control or possession, other than copies which the Receiving Party may be required to maintain under applicable law or regulation.
EMERGENCY 911 SERVICES . BY USING THE SERVICE AND/OR eThink EQUIPMENT, CUSTOMER ACKNOWLEDGES THE LIMITATIONS OF eThink E911 SERVICE AS DESCRIBED IN THE E911 DISCLOSURE AVAILABLE AT https://www.eThink.net/e911-disclosure, AS WELL AS THOSE SET FORTH IN THIS SECTION 33. CUSTOMER AGREES AND ACKNOWLEDGES THAT WHILE MOST eThink SERVICES OFFER ACCESS TO E911 SERVICE, OTHERS MAY NOT. CUSTOMER IS ADVISED TO THOROUGHLY READ AND UNDERSTAND THE E911 DISCLOSURE AND THE OPTIONS AVAILABLE. CUSTOMER ACKNOWLEDGES THAT IT HAS RECEIVED THE E911 DISCLOSURE AND HAS READ, UNDERSTANDS AND AGREES TO THE TERMS AND CONDITIONS OF THE E911 DISCLOSURE, AND ASSUMES THE RISKS ASSOCIATED WITH THE eThink E911 SERVICE LIMITATIONS.
LOSS OF SERVICE DUE TO POWER FAILURE . You acknowledge and understand that the Service does not function in the event of power failure. Should there be an interruption in the power supply to your Device or at any point in your transmission path; the Service will not function until power is restored. A power failure or disruption may require the Customer to reset or reconfigure equipment, including your Device or any connecting equipment in your transmission path, prior to using the Service. Power disruptions or failures will also prevent dialing to emergency service numbers including any 911 calling feature that may be activated in or accessed by your Service
LOCAL NUMBER PORTABILITY.
NUMBER TRANSFER ON SERVICE ACTIVATION. In the event Customer is not utilizing a new phone number or numbers for the Services, but rather is transferring existing phone number(s) which currently is subscribed to a carrier other than eThink to eThink, the terms and conditions of this section shall apply:
Customer hereby authorizes eThink to notify Customer's current local telephone company or other service provider of its decision to switch local, local toll and long distance services to eThink and represents that Customer is authorized to take this action;
Customer agrees and acknowledges (i) that the porting of Customer's numbers requires Customer's provision of specific, detailed and accurate information to eThink and other service providers, as applicable, and the completion of certain steps and procedures, as well as third parties' completion of certain tasks, and (ii) that numbers may not be ported in or ported out unless such information matches the information on record with eThink or other service providers. The completion of a port request is dependent upon these and other factors which may be outside the control of eThink or other service providers, and accordingly, eThink is not responsible for delayed or incomplete ports. FAILURE TO PROVIDE ANY INFORMATION REQUESTED BY eThink OR THE THIRD PARTY SERVICE PROVIDER WILL DELAY THE PORTING OF THE NUMBER TO eThink. eThink SHALL NOT BE RESPONSIBLE FOR ANY DELAY IN THE PORT OF CUSTOMER'S NUMBER AND WILL NOT PROVIDE CREDIT FOR ANY SUCH DELAYS.
Customer agrees and acknowledges that if the Services are set up prior to the date that the number transfer becomes effective ("Port Effective Date"), Customer may only be able to make outgoing calls using the Services. In such event, Customer should keep another phone connected to the existing phone number to receive incoming calls until the Port Effective Date, after which Customer will be able to both make and receive calls using the Service. Customer agrees and acknowledges that if the Activation Date has not occurred as of the Port Effective Date, its existing phone service for the number being transferred may be disconnected and Customer may have no service for that number. Therefore, to avoid an interruption in Customer's phone service, Services must be activated prior to the Port Effective Date. An estimate of the Port Effective Date will be sent to Customer via e-mail by eThink.
NUMBER TRANSFER ON SERVICE TERMINATION. After the Activation Date, eThink or its providers may receive requests from other telephony providers ("Requesting Party") acting as agents on Customer's behalf to port a telephone number currently assigned to Customer to a third party provider ("Port-Out"). eThink will support all such requests and will cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party's reasonable directions and eThink' or its vendors' standard operating procedures. Until the effective date of Customer's proper termination (in accordance with the terms of this Agreement), Customer will: (a) remain a eThink customer; and (b) be responsible for all charges and fees associated with Customer's eThink Service. Customer will not receive any refund or partial refund or any credits for any charges already billed to Customer's account. eThink assumes no liability for costs associated with any numbers that cannot be ported or that Customer chooses not to port. Customer acknowledges that in the event of any account termination or cancellation, all telephone numbers associated with Customer's account may be released. Similarly, the cancellation of individual services that have associated telephone numbers will result in the release of such numbers. Customer acknowledges that it is Customer's responsibility to work with a third party provider to port out those numbers prior to Customer's termination or cancellation of Customer's account or termination of Services.
PORTED TELEPHONE NUMBERS UPON CANCELLATION.
CANCELLATION. If Customer requests that a new service provider port a number from eThink, then Customer is required to inform eThink of Customer's intent to terminate the specific affected Services on Customer's account or eThink will continue to bill for such Services. Customer will continue to be responsible for all the charges and fees associated with the remaining Services on Customer's eThink account. Customer will not receive any refund or partial refund or any credits for any charges already billed to Customer's account.
CONSENT & ELECTRONIC SUBMISSION. In some cases, eThink may permit Customer to submit documentation required to port numbers using a web-enabled user interface. Customer may withdraw Customer's consent to submit Customer's porting request electronically by contacting eThink Customer Care prior to our submitting the porting request to the carrier. Customer's consent to electronic submission applies only to the specific porting request Customer submit through web-enabled interface.
FACSIMILE SERVICE. Numbers assigned by eThink for eThink's facsimile service cannot be ported to a new service provider without the assistance and cooperation of eThink' underlying partner. eThink will use commercially reasonable efforts to facilitate a port of a facsimile number which was ported on Customer's behalf to eThink by another service provider. Customer may be required to pay a porting fee to eThink not to exceed One Hundred Dollars ($100.00) per facsimile number ported.
BETA SERVICES AND SOFTWARE. Certain Services or Software may be designated or offered as a "beta" version ("Beta Version") of a Service or Software, which may or may not be released as a full commercial service in the future. Except as otherwise indicated under separate terms and conditions that may apply to such Beta Versions, eThink may or may not charge for such Beta Versions, and reserves the right to charge for subsequent versions of the Beta Version, including any potential commercial releases. Customer acknowledges and agrees that the Beta Version may contain, in eThink' sole discretion, more or fewer features or different licensing terms than a subsequent commercial release version of the Beta Version. eThink reserves the right not to release later commercial release versions of the Beta Version. Without limiting any disclaimer of warranty or other limitation stated in these Terms (or any separate terms and conditions that would otherwise be applicable to such Beta Versions), Customer agrees that Beta Versions are not considered by eThink to be suitable for commercial use, and that may contain errors affecting their proper operation. CUSTOMER ACKNOWLEDGES AND AGREES THAT USE OF ANY BETA VERSION MAY EXHIBIT SPORADIC DISRUPTIONS THAT HAVE THE POTENTIAL TO DISRUPT CUSTOMER'S USE OF ANY SERVICES OR SOFTWARE. NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, INCLUDING eThink SPECIFICALLY DISCLAIMS ALL DAMAGES RESULTING FROM CUSTOMER'S USE OF ANY BETA VERSION. The fact and existence of any Beta Version shall be deemed to be eThink Confidential Information under this Agreement.
ELECTRONIC RECORDING. Customer acknowledges that there are federal and state laws governing the electronic recording of telephone conversations and that eThink is not liable for any illegal use of the Services. It is Customer's responsibility to determine and comply in full with its own compliance obligations. No Services or products offered by eThink are represented or warranted to comply with electronic recording laws. Customer agrees that eThink may, in its sole discretion, record any call between Customer and eThink for eThink quality control purposes.
RIGHT TO REVIEW USE OF SERVICES. eThink reserves the right to review and monitor Customer's use of the Service for purposes of confirming compliance with this Agreement. eThink may also review Customer's security and anti-fraud protections for select eThink Services.
GENERAL.
GENERAL. This Agreement inures to and is binding upon the Parties' successors and permitted assignees. Customer shall not assign this Agreement without eThink' prior written consent, not to be unreasonably conditioned, withheld or delayed; provided that Customer may, without consent, but with reasonable prior written notice, assign its rights and obligations hereunder to any parent, affiliate or subsidiary of Customer or pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets; provided, however, that any proposed assignee shall be at least as creditworthy as Customer (as reasonably determined by eThink), shall agree in advance and in writing to assume and be bound by all provisions of this Agreement, and shall deliver to eThink fully-executed documents reasonably acceptable to eThink establishing the terms of such an assignment. Any assignment by Customer other than as permitted by this Section 39(a) shall be void and of no force or effect.
FORCE MAJEURE. Neither Party is liable for any failure of performance (other than for delay or performance in the payment of money due and payable hereunder) to the extent such failure is due to any cause or causes beyond such Party's reasonable control, including acts of God, fire, explosion, vandalism, cable cut, adverse weather conditions, governmental action, acts of terrorism, denial of service attacks or strikes and similar labor difficulties. Either Party's invocation of this clause will not relieve Customer of its obligation to pay for any Services actually provided or permits Customer to terminate any Services except as expressly provided herein. In the event such force majeure event prevents the availability or material use of the affected portion of Services for more than ten (10) consecutive days, either Party may terminate the affected portion of the Services without liability.
INTELLECTUAL PROPERTY AND PUBLICITY. Except as explicitly granted herein, neither Party is granted a license or other right (express, implied or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets or other form of intellectual property of the other Party or its affiliates without the express prior written authorization of the other Party. Customer will not issue any press release or other public statement relating to this Agreement, except as may be required by law or agreed by eThink in a writing signed by an authorized representative of eThink's Corporate Communications department. Customer agrees that eThink may identify Customer using its name, trademarks and/or logos in its marketing collateral, presentations and websites, provided that Customer may revoke such right with written notice to eThink at any time.
NONEXCLUSIVE. This Agreement is non-exclusive. Nothing in this Agreement prevents either Party from entering into similar arrangements with other persons or entities.
NOTICES. Except as otherwise provided in this Agreement
TO CUSTOMER: In the event eThink is required or desires to provide Customer with notice under this Agreement, it will provide electronic notice to the e-mail address on file for the Company Contact and/or Superuser. In the event Customer changes its e-mail address for notice purposes, Customer shall advise eThink immediately in writing. Customer hereby agrees to electronic delivery of all required notifications, including invoices, unless otherwise expressly provided herein.
TO eThink: Any notice required or given under this Agreement to eThink (except for billing dispute as described in Section 11) will be in writing and delivered to eThink as follows:
eThink Technologies
Attn: Legal Department
720 Drum Point Rd.
Brick, NJ 08723
Such address and contact information may be changed by either Party by prior written notice to the other Party in accordance with this paragraph. A notice will be deemed to be duly given (i) on the date of delivery if personally delivered by hand or by a nationally recognized overnight express courier, or (ii) upon the third day after such notice is deposited in the United States mail, if mailed by registered or certified mail, postage prepaid, return receipt requested. For clarity, e-mail or fax notices are informational only and shall not constitute formal notice.
FACSIMILE AND ELECTRONIC TRANSMISSION; COUNTERPARTS. Sales Orders, and other documents that may be executed in connection with the Services (collectively "Service Documentation"), may be executed and delivered by facsimile or electronic transmission, and upon receipt, such transmission shall be deemed the delivery of an original. Service Documentation may be executed in several counterparts, each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument.
ELECTRONIC COMMUNICATIONS AND CONSENT TO USE OF ELECTRONIC SIGNATURES AND RECORDS. As a convenience and courtesy to you, eThink provides access to its Services online which may require Customer to enter into agreements or receive notices electronically. Accordingly, Customer acknowledges and agrees that by clicking "I Agree" or "I Accept" anywhere on a eThink website:
Customer agrees to conduct electronically the particular transaction into which Customer thereby enters including, without limitation, entering into this Agreement;
Customer has read and understands the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, and any policies and any amendments hereto or thereto;
Customer is capable of printing or storing a copy of electronic records of transactions into which Customer enters including, without limitation, this Agreement and any amendments hereto;
Customer agrees to receive electronically information about the Services and other electronic records into which Customer thereby enters including, without limitation, this Agreement; and
Customer agrees that any personally identifiable information that Customer provides may be used by eThink and its Authorized Distributors or Marketing Partners in accordance with the eThink Privacy Policy located at https://www.eThink.net/privacy
BASIS OF BARGAIN; FAILURE OF ESSENTIAL PURPOSE. Customer acknowledges and agrees that eThink has established its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability and the warranty disclaimers set forth in this Agreement, and that they are an essential basis of the bargain between the parties and are material terms of this Agreement. The Parties agree that the limitations and exclusions of liability and warranty disclaimers specified in this Agreement will survive and apply even if found to have failed their essential purpose, and Customer hereby waives its right to contest the enforceability of any provision of this Agreement by reason of such failure.
NO COMMITMENTS. Customer represents that eThink has made no commitments or promises orally or in writing with respect to delivery of any future features or functions. In relation to any future features or functions, all presentations, RFP responses, and/or product roadmap documents, information or discussions, either prior to or following the date herein, are informational only, and are not the basis for, nor part of this Agreement or any Sales Order. eThink has no obligation to provide any future releases or upgrades or any features, enhancements or functions, unless specifically agreed to by both Parties. The customer acknowledges that its purchasing decisions are not based upon any future features or functions.
SURVIVAL, MODIFICATION. The terms and conditions of this Agreement will survive the expiration or other termination of this Agreement to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the Party in whose favor they operate. Except for the rights of eThink in Section 1, all modifications, amendments, supplements to or waivers of this Agreement must be in writing and executed by authorized representatives of both parties.
RELATIONSHIP OF THE PARTIES. The relationship of eThink and Customer shall not be that of partners, agents or joint venturers for one another, and nothing contained in the Agreement shall be deemed to constitute a partnership or agency agreement between the Parties for any purposes. eThink and Customer shall be independent parties and shall discharge their contractual obligations at their own risk subject to the terms of this Agreement.
THIRD PARTY SERVICES. eThink may use or rely on one or more licensors, service providers, and/or equipment providers or equipment lessors whose products, equipment and/or services are provided in conjunction with, or incorporated into, the Services and/or eThink Equipment ("Third-Party Services"). Such Third Party Services may also be provided under eThink' trademarks or otherwise branded as an eThink Service. Each provider of such Third-Party Services (a "Third-Party Service Provider") is expressly made a third party beneficiary under the applicable Sales Orders and this Agreement and shall have the right to enforce the terms and conditions of the Sales Orders and this Agreement respecting any terms affecting such Third-Party Service Provider as if such Third-Party Service Provider were a party to the Sales Order and/or this Agreement. No other third party beneficiaries of this Agreement are intended by the Parties. Further, Third-Party Services may be governed by separate legal terms and conditions, which may be found or identified in documentation or on other media delivered with the Third-Party Services and which are incorporated by reference into these Terms and shall govern the use of Third-Party Services. Customer agrees to comply with such terms and conditions of all Third-Party Services and Third-Party Service Providers. Any non-compliance with terms and conditions of Third Party Service Providers shall be considered non-compliance with these Terms.
WAIVER. The failure of either Party to enforce compliance with a provision of this Agreement shall not be construed as a general waiver of such provision or any other provision.
SEVERABILITY. If any term, covenant or condition contained in this Agreement or any Sales Order is, to any extent, held invalid or unenforceable in any respect under the laws governing this Agreement, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
GOVERNING LAW. The laws of the State of New Jersey will govern this Agreement, without reference to its principles of conflicts of laws. Because this agreement is a transaction in interstate commerce, the Federal Arbitration Act ("FAA"), and not state arbitration law, shall govern the interpretation, validity and enforceability of the arbitration provision in Section 40, below.
ENTIRE AGREEMENT. This Agreement supersedes any prior or contemporaneous agreements, statements, understandings, writings, commitments, or representations concerning its subject matter, as between Customer and eThink.
EXPORT CONTROLS. Customer agrees to comply fully with all relevant export laws and regulations of the United States, including the U.S. Export Administration Regulations, administered by the Department of Commerce. Customer also expressly agrees that it shall not export, directly or indirectly, re-export, divert, or transfer any portion of eThink Service, Equipment or Software to any destination, company, or person restricted or prohibited by U.S. export controls.
DISPUTE RESOLUTION; BINDING ARBITRATION.
WRITTEN NOTICE. In the event either Party has a dispute or claim against the other Party (except with respect to invoice disputes which are addressed in Section 11(a) vi.), the disputing Party shall provide written notice to the other Party in accordance with the provisions of Section 40(e), above.
INITIAL ESCALATION TO MANAGEMENT. The Parties agree to escalate disputes to their respective management, who will use commercially reasonable efforts to resolve the dispute by consulting with each other in good faith to reach an equitable resolution satisfactory to both parties within thirty (30) days of the receipt of notice. Neither Party shall pursue or commence proceedings regarding the dispute in any court, administrative arbitral or other adjudicative body prior to engaging in such consultations and negotiations.
BINDING ARBITRATION. If negotiations fail to resolve the dispute within thirty (30) calendar days, all disputed claims (except for claims set forth in subsection (e) below) must be resolved by binding arbitration before a single arbitrator by the American Arbitration Association or another arbitrator selected by eThink. This agreement to arbitrate is intended to be given the broadest possible meaning under Applicable Laws. The initiation of an arbitration dispute shall not otherwise prevent eThink or Customer from terminating Services in accordance with the Terms.
DISPUTES ABOUT THIS AGREEMENT TO ARBITRATE. Disputes about the arbitrability of any claims and/or the scope, enforceability, or validity of this arbitration agreement shall be decided by an arbitrator.
DISPUTES THAT NEED NOT BE ARBITRATED. Disputed claims involving either Party's intellectual property rights, indemnity, or confidentiality obligations; fraudulent or unauthorized use, theft, or piracy of service; or matters relating to injunctions or other relief may be resolved by binding arbitration as set forth in subsection (d), but are not required to be resolved by binding arbitration and may be heard in a court of law, at the option of the entity asserting the disputed claim.
NOTICE FOR COMMENCING ARBITRATION. If an agreement to resolve the dispute is not reached, an arbitration proceeding may be commenced by downloading or copying a form from the AAA website (http://www.adr.org). The amount of any settlement offer made by Customer or eThink shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or eThink is entitled.
LOCATION. All hearings conducted as part of the arbitration shall take place at a location, convenient to Customer, based upon Customer's billing address (or, if no business address is provided, your service address). If Customer claim is for $10,000 or less, Customer or eThink may request that the arbitration be conducted solely on the basis of documents submitted to the arbitrator or through a telephonic hearing. If either party objects, then the arbitrator shall proceed to an in-person hearing as established by the AAA Rules. If Customer claim is in excess of $10,000, the right to a hearing will be determined by the AAA rules.
COSTS. Each Party will be responsible for its own costs incurred in the arbitration, including arbitration filing fees and attorneys' or expert witness fees. The arbitrator's costs and expenses shall be shared equally between the Parties. If a Party elects to appeal an award or seeks to vacate the award in court, the prevailing Party in the appeal or judicial proceeding shall be entitled to recover all reasonable attorneys' fees incurred in that appeal or judicial proceeding.
WAIVER OF JURY TRIAL. Customer and eThink agree that, by entering into this agreement, Customer and eThink are waiving the right to a trial by jury. Customer and eThink agree that the arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party's individual claim. The arbitrator may not award special, indirect, punitive, incidental or consequential damages. CUSTOMER AND eThink AGREE THAT CUSTOMER MAY BRING CLAIMS AGAINST eThink ONLY IN CUSTOMER'S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING AND THAT CUSTOMER EXPRESSLY WAIVES ITS RIGHT TO BRING A CLASS ACTION SUIT. Customer and eThink agree that the arbitrator may not consolidate more than one person's or entity's claims, and may not otherwise preside over any form of a representative or class proceeding.
SEVERABILITY. If any term, covenant, or condition contained in this dispute resolution/arbitration provision, is, to any extent, held invalid or unenforceable in any respect under the laws governing this dispute resolution/arbitration provision, the remainder of this dispute resolution/arbitration provision shall be valid and enforceable to the fullest extent permitted by law.