BlueCloud Communications Service Agreement
This Service Agreement constitute the agreement (“Agreement”) between BLUECLOUD COMMUNICATIONS and the user (“you,” “user” or “Customer”) of BLUECLOUD COMMUNICATIONS’s residential and small business communications services and any related products or services (“Service”). This Agreement governs both the Service and any devices, such as an IP phone, BLUECLOUD COMMUNICATIONS Phone, Multimedia Terminal Adapter, Analog Telephone Adapter or any other IP connection device (“Device” or “Equipment”), used in conjunction with the Service and it applies to all lines on each BLUECLOUD COMMUNICATIONS account.
BY ACTIVATING OR USING THE SERVICE, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU HAVE READ AND UNDERSTAND FULLY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
BlueCloud Communications shall provide, and Customer shall pay for, the Service indicated on all pages of this Service Order and Agreement (EULA) in accordance with the following service terms and conditions:
SERVICE TERMS AND CONDITIONS
Version Date: 1-1-18
1. Scope; General.
1.1. These Service Terms and Conditions (these “Terms”) apply to the provision of Hosted PBX VoIP and related services (the “Services”) to a customer (“Customer”) as identified in the applicable ordering form (“Order Form”) which Services may be provided by BlueCloud Communications, Inc. dba BlueCloud Communications (“BlueCloud Communications”), its subsidiaries and/or affiliates. BlueCloud Communications reserves the right to modify these Terms and any documentation corresponding to the applicable Services posted on the BlueCloud Communications website (www.BlueCloudUSA.com) (the “BlueCloud Communications Website”) at any time.
1.2. Any of the following actions constitutes, without limitation or qualification, Customer’s approval to be bound by, and to comply with, these Terms: (i) Customer’s initialization of the Services, either on the telephone or web page, through the use of Customer’s number and phone password; (ii) Customer’s registering for the Services on the BlueCloud Communications Website and accepting these Terms as part of the registration process; (iii) Customer’s signature on an Order Form; or (iv) Customer’s use of the Services as previously defined. Notwithstanding the foregoing, these Terms shall not become effective until the date that the Customer’s Order Form is accepted by BlueCloud Communications.
1.3. Customer authorizes BlueCloud Communications to accept executed documentation by e-mail, online procedures, facsimile or other electronic transmission and an electronically stored copy (i.e., PDF or fax) shall serve the same purpose as an original document. Customer agrees to indemnify and hold BlueCloud Communications harmless, and hereby releases BlueCloud Communications from any damage, liability, loss, cost or expenses suffered or threatened, arising out of, based upon or relating to any action taken by BlueCloud Communications in good faith reliance upon any such authorization from Customer, its employees, agents or representatives. If Customer is an individual entering these Terms on behalf of Customer’s company, Customer represents and warrants that Customer has sufficient and appropriate authority to bind such company and is competent to do so.
1.4. The obligation of BlueCloud Communications to provide the Services to Customer is subject to approval by BlueCloud Communications of Customer’s credit status. Customer’s execution of these Terms or an Order Form constitutes authorization for BlueCloud Communications to obtain credit information from any credit bureau or other investigative agency pertaining to the credit and financial condition of Customer. Customer understands that, as a result of this credit review, Customer may be required to submit a cash deposit or guaranty in order to receive the Services. In addition, in the event that BlueCloud Communications determines, in good faith, that the creditworthiness of Customer has materially deteriorated following execution of these Terms, BlueCloud Communications reserves the right to require from Customer a cash deposit or such other security as BlueCloud Communications may reasonably require.
1.5. BlueCloud Communications may modify these Terms at any time by posting revised Terms on the BlueCloud Communications Website or otherwise notifying Customer of such modification. Such revised Terms shall be binding upon Customer if Customer continues to use the Services after any such notification. Additionally, BlueCloud Communications may change pricing for the Services at any time upon notice to Customer.
2. Service Term and Renewal. The term with respect to the Services shall begin on the date the Service is available for use by Customer and shall continue for a period thereafter as set forth in the Order Form, unless earlier terminated in accordance with these Terms. The Services will be deemed available for use, and billing will commence, after the underlying facility has been installed at the Customer service address. The Services term shall automatically renew on a month-to-month basis until either party terminates the Service(s) by giving the other party not less than thirty (30) days prior written notice of termination.
3. Service Availability and Installation.
3.1. BlueCloud Communications makes no representation or warranty as to when Services will commence and will use commercially reasonable efforts to initiate the Services as soon as possible. Customer understands and acknowledges that Services initiation is partially dependent upon the actions of third parties not under the control of BlueCloud Communications. Once installed, BlueCloud Communications will use commercially reasonable efforts to ensure that the Services will be available 24 hours a day, 7 days a week, except for scheduled preventive maintenance or for unscheduled emergency maintenance. Under no circumstance shall BlueCloud Communications be liable to Customer or any third party for damages arising from delays in commencement or subsequent operation of the Services, loss of information, numbering or directory listing errors, or loss of business.
3.2. Except for standard Services installation, repair and maintenance provided with the Services, Customer shall be responsible for any time and material charges associated with the dispatch of BlueCloud Communications personnel, sub-contractors or suppliers to Customer premises necessary to repair Services resulting from a Customer caused service interruption. BlueCloud Communications may upon prior notice charge customer for any services relating to porting telephone numbers. BlueCloud Communications shall use all commercially reasonable efforts to notify Customer of any such costs in advance.
4. Customer Premises Equipment.
4.1. BlueCloud Communications reserves the right to deliver the Services using such delivery, technology and/or facilities as it chooses from time to time and Customer acknowledges that the delivery of the Services over certain technologies may require the installation of customer premises equipment, including all BlueCloud Communications provided hardware to include, without limitation, phones, switches, modems, routers and originally-supplied router parts and materials, provided and owned by BlueCloud Communications (the “Components”). Customer shall not make any physical modification, or permit third party access to, the Components without prior written consent of BlueCloud Communications. In the event that the Components are accessed by entities other than BlueCloud Communications or its agents due to the actions of Customer, Customer shall reimburse BlueCloud Communications for any costs incurred to return the Components to the proper condition. Additionally should these actions cause loss, damages or liabilities to BlueCloud Communications, Customer will be solely responsible to compensate BlueCloud Communications for the loss, damage or liability. Upon termination of the Services, Customer’s right to use the Components will immediately end and Customer shall return the Components within thirty (30) days of such termination. In the event that Customer fails to return such Components to BlueCloud Communications (or, at BlueCloud Communications’s option, to permit recovery of the Components by BlueCloud Communications) in good working order, reasonable wear and tear excepted, Customer shall be responsible for the full replacement cost of the Components and shall pay BlueCloud Communications all charges associated with the recovery of that equipment. For avoidance of doubt, the foregoing Components conditions do not apply with respect to Components purchased and fully paid for by Customer. All Components provided and owned by BlueCloud Communications will, at all times, remain the property of BlueCloud Communications. Customer shall not (a) reverse engineer, disassemble, decompile or otherwise attempt to recreate the Component configurations, or modify, translate, adapt, alter or create derivative works therefrom, (b) reproduce, publish, display, distribute, disclose, or otherwise make available the Component configurations, or any part thereof; (c) use the Components for any purposes other than those explicitly stated herein. Customer is at all times responsible for properly maintaining the safety and security of the Components installed at Customer premise. Customer shall bear the risk of loss arising from any unauthorized or fraudulent use of the Components. BlueCloud Communications has no obligation to re-purchase from Customer any Components that Customer purchases from BlueCloud Communications. If BlueCloud Communications decides to re-purchase such Components after 30 days of the date of Customer’s purchase, then BlueCloud Communications reserves the right to charge a restocking fee.
4.2. On some plans, BlueCloud Communications will make available free or heavily discounted Components at Customer’s request. These discounts are provided with the understanding that Customer will purchase the Services for a minimum period set forth in the Order Form. Should Customer receive free or specially discounted equipment as part of an eligible plan and then (a) cancel or cause to be terminated before the minimum period set forth in the Order Form is complete; or (b) within such minimum period change to a plan that does not offer or include free or discounted equipment, Customer agrees and hereby authorizes the charge of 100% of the price of the equipment in place at the time of the Services termination or modification, for any and all free or discounted equipment. This equipment charge is not eligible for, nor will be, prorated.
4.3. CUSTOMER SHALL DEFEND AND INDEMNIFY BLUECLOUD COMMUNICATIONS FROM ANY AND ALL CLAIMS, ACTIONS, LOSSES, DAMAGES, (INCLUDING REASONABLE ATTORNEYS FEES) ARISING OUT OF THE PURCHASE, POSSESSION, OPERATION, CONDITION, RETURN, USE OR MISUSE OF THE COMPONENTS, EXCLUDING, HOWEVER, ANY OF THE FOREGOING RESULTING SOLELY AND DIRECTLY FROM THE NEGLIGENT OR WILLFUL ACTS OF BLUECLOUD COMMUNICATIONS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
5.1. Either party may terminate these Terms with notice prior to a renewal of the then-current Services term.
5.2. Customer shall be in default of these Terms in the event it (a) knowingly provides materially inaccurate, false or otherwise misleading information in an application for the Services; (b) utilizes the Services for any unlawful purpose or for any purpose other than that for which the Services are designed and intended by BlueCloud Communications; (c) violates of any law, rule or regulation of any governing authority having jurisdiction over the Services; (d) is involved in any bankruptcy or similar proceeding; (e) violates these Terms; or (f) has an overdue outstanding unpaid balance. Notwithstanding any other remedies that BlueCloud Communications may have available to it at law or in equity, in the event of any Customer default, BlueCloud Communications may terminate these Terms and/or immediately discontinue any and all Services provided to Customer. Nothing contained herein shall relieve Customer of its obligations to pay BlueCloud Communications for all Services provided. Upon a termination of these Terms due to a Customer default, BlueCloud Communications may, subject to applicable laws and regulations, freely assign or release Customer’s telephone number(s).
5.3. In the event of early termination of these Terms prior to the expiration of any fixed term, Customer shall pay BlueCloud Communications all charges for Services provided through the effective date of such termination, plus any and all applicable re-rated service costs for previous months services that were rated based on a longer term agreement than was satisfied by the early termination.
5.4. The parties agree that, in the event of a decision or ruling by a regulatory authority at the federal, state or local level, with competent jurisdiction over such matters, that materially affects the rights or obligations of either party arising out of these Terms, the parties will negotiate in good faith to modify these Terms in light of such decision. Should such decision or ruling prohibit BlueCloud Communications from furnishing the Services, then either party may terminate these Terms with notice to the other party without further liability hereunder, except Customer’s liability to pay for Services provided through the effective date of such termination.
5.5. Customer may terminate these Terms in the event that BlueCloud Communications is in material breach of its obligations and such breach remains uncured for a period of thirty (30) days from the date that BlueCloud Communications receives written notice thereof from Customer. In such case, Customer shall not incur any termination liability for the termination of the Services but shall be obligated to pay for Services rendered prior to the effective date of such termination.
6. Use of Service.
6.1. Customer shall use the Services in compliance with, and subject to, all applicable government codes, ordinances, laws, rules and regulations, applicable tariff, and any additional documentation corresponding to the Services posted on the BlueCloud Communications Website, and shall secure, prior to the delivery of the Services, and maintain in full force and effect during the applicable Services term, any and all necessary approvals, consents, rights of way, permits, franchises, licenses or similar approvals from all governmental and other authorities which are necessary or required to be obtained by Customer in connection with the Services.
6.2. Customer shall not (a) use, or attempt to use, the Services for any fraudulent, unlawful, improper, harassing, excessive, harmful, or abusive purpose; or (b) resell or attempt to resell any aspect of the Services without the prior written consent of BlueCloud Communications, whether for profit or otherwise. If Customer uses the Services as an auto dialer, telemarketer, call center or other similar type of business, then Customer shall do so in strict compliance with all laws and regulations governing such activities. Customer shall indemnify and hold BlueCloud Communications harmless for any costs incurred by BlueCloud Communications relating to improper use of the Services, including, but not limited to, any fines imposed upon BlueCloud Communications by a governmental or regulatory body. If BlueCloud Communications suspects a violation of this provision, BlueCloud Communications may: (i) begin legal action; (ii) suspend or terminate the Services immediately and without prior notice; (iii) suspend or terminate service(s) provided to Customer under any other agreement with BlueCloud Communications; and (iv) cooperate with law enforcement in prosecuting offenders. BlueCloud Communications may terminate the Services or change Customer’s rate plan at any time if BlueCloud Communications determines, in BlueCloud Communications’s sole discretion, that Customer’s use of the Services is excessive, unusually burdensome, or unprofitable to BlueCloud Communications.
6.3. Customer agrees that all sound files Customer utilizes with the Services have been legally obtained and Customer has the rights to use and distribute such sound files within the Services, including, without limitation, via electronic medium to a remote server for use with voicemail and hold music. Customer takes full responsibility for maintaining its legal rights over it.
6.4. BlueCloud Communications may cooperate with law enforcement organizations that have lawfully requested pursuant to a valid subpoena or court order (i) trap and traces, pen registers, wire taps and similar call intercept methods, and (ii) information regarding Customer or any end user of Customer and provide such organizations with any information requested, including, but not limited to, names, email addresses, mailing or contact addresses, IP addresses, telephone numbers, call detail records, or call content. Customer agrees to cooperate with BlueCloud Communications in investigating suspected violations.
6.5. Customer shall bear the risk of loss arising from any unauthorized, unlawful or fraudulent use of the Services unless such fraud resulted from the gross negligence or willful misconduct of BlueCloud Communications and BlueCloud Communications retains the right to analyze any and all information at its disposal, including credit surveys, call detail records and any other information to confirm unauthorized use. Customer shall pay for unauthorized or fraudulent use of the Services at BlueCloud Communications’s highest usage charges applied to network usage and attempted network usage, whether or not a terminating connection was achieved, plus all costs incurred by BlueCloud Communications to detect, discover, observe, investigate, analyze, examine and locate the party responsible for unauthorized or fraudulent use.
6.6. BlueCloud Communications will restrict (i) calls to 900, 976, 700 numbers and other “pay-as-you-call” services and (ii) international long distance calling functionality from Customer’s account with respect to the Services ordered and will only allow such functionality upon written request by an authorized representative of Customer. In no event will BlueCloud Communications be liable for fraudulent calls originating from Customer owned or operated equipment, for claims arising out of equipment provided by third party vendors that may be installed at Customer premises in connection with the Services, or for damages associated with or arising from any service, channels, or equipment, which it does not furnish.
6.7. Customer remains responsible for its own network security and security violation response procedures. While a virtual private network (VPN) or managed network service ordered from BlueCloud Communications may enhance Customer’s ability to impede unauthorized access to its network and data, and may aid Customer in detecting potential security breaches and network irregularities, Customer understands and acknowledges that no service is guaranteed to ensure Customer’s network security or to prevent security incidents, and that BlueCloud Communications is not responsible for any unauthorized third party or Customer employee access to Customer’s facilities or data.
7. Access to the Internet and Availability of Service. When using VoIP or other Internet-based Services Customer acknowledges Customer must have operational and properly configured access to the Internet and hereby agrees to provide, at Customer’s sole expense, Customer’s own Internet service with a third party provider. Customer further agrees to be responsible for payment of any and all Internet service fees including all equipment necessary to establish and maintain a connection to the Internet as may be required to use the Services. Service availability and level(s) may vary due to conditions beyond the control of BlueCloud Communications, including the type and state of the Customer’s equipment. The Services are subject to interruption or limitation due to factors including but not limited to: network capacity limitations, installation, repair, modification to the network, restrictions by BlueCloud Communications’s long-distance providers, BlueCloud Communications’s efforts to combat fraudulent and/or illegal use, non-payment, or other legitimate business and operational reasons. Notwithstanding the foregoing, Customer represents and warrants that Customer understands VoIP-based services are subject to the vagaries of the Internet. Customer affirms BlueCloud Communications has no duty under these Terms to provide insurance to Customer’s benefit against any losses caused by interruption of Services, whether caused by disrupted access to the Internet, acts of god, scheduled maintenance windows or other reasons whether reasonably seen or unforeseen.
8. Billing and Payment Terms.
8.1. Unless otherwise agreed by BlueCloud Communications, all flat fee charges shall be applied to Customer’s credit card monthly in advance on the first business day of each month. Additionally, any separate variable charges, such as arising from use of an 800 or 411 service, shall be charged to Customer’s credit card in arrears on the first business day of each month. Customer agrees that all such charges may be made without BlueCloud Communications obtaining prior authorization from Customer in each instance. If BlueCloud Communications has agreed to invoice Customer for payment, then all invoices are due and payable within thirty (30) days from the date of invoice. Should Customer fail to pay any undisputed amount when due, Customer shall pay interest on such unpaid amount at the rate of one and a half percent (1.5%) per month, or such lesser amount as is the maximum amount permitted under applicable law, until such sum is paid in full. Customer shall notify BlueCloud Communications in writing of any charge or amount disputed, in good faith, within fifteen (15) days of Customer’s receipt of the applicable invoice. In no event shall Customer’s notice of a good faith dispute relieve Customer from its obligation to pay, in full, all undisputed charges and amounts. The parties shall work in good faith to promptly resolve any billing dispute initiated pursuant to these Terms. If a dispute is resolved in favor of BlueCloud Communications, and Customer has not already paid the disputed amount, Customer will pay such amount to BlueCloud Communications, plus any applicable late fees, on the next billing cycle. If a dispute is resolved in favor of Customer, BlueCloud Communications will apply a credit in the appropriate amount to Customer’s BlueCloud Communications account in the next billing cycle, subject to the billing cycle cut-off date. Credits that miss the billing cycle cut-off date will be applied in the next billing cycle. If a dispute arises and BlueCloud Communications refers this Agreement to an attorney for collection, Customer shall pay all costs of collection, including interest, court costs, fees and reasonable attorney’s fees. Customer shall be charged $35 for each credit card chargeback and bounced check. Customer is responsible for notifying BlueCloud Communications of any changes to Customer’s credit card information. Additionally, Customer is responsible for notifying BlueCloud Communications of any change in Customer’s location and any cessation of use of the Services and Customer will continue to be charged fees under these Terms, even if Customer ceases to use the Services due to a change in its location, merger or sale of Customer’s business, or other cause, unless Customer has provided BlueCloud Communications with prior written notice of such change or cessation of usage.
8.2. If any undisputed invoiced amount remains unpaid on the due date, and such default remains uncured 10 days after, BlueCloud Communications provides Customer written notice of such default, BlueCloud Communications may immediately suspend the Services, in whole or in part. Following the issuance of a suspension notice, BlueCloud Communications may terminate all or any part of the Services without further notice to Customer if all outstanding amounts are not paid on or before the scheduled termination date specified in the suspension notice, generally 15 days after the billing date. Neither suspension nor termination of the Services will relieve Customer of any obligation to pay for Services prior to suspension and/or termination, or for any amounts due for early termination. Additionally, BlueCloud Communications may suspend Services in the event service charges exceed the amount of any deposit which BlueCloud Communications may have required or any established credit limit.
8.3. Notwithstanding the cancellation or natural expiration of the Services term, if Customer has accumulated unpaid charges, BlueCloud Communications may refuse any request for release or other transfer of local and toll-free numbers to a third party, and may reject any request for change in toll-free service to another carrier, without liability to BlueCloud Communications, until such charges are paid in full to the date of termination of the Services. BlueCloud Communications reserves the right to re-assign any terminated toll-free or local numbers.
8.4. Customer agrees to pay (i) unless and until Customer provides BlueCloud Communications with satisfactory evidence of its exemption from such impositions, all applicable federal, state and local taxes, imposed on, or with respect to, the Services and any Components purchased by Customer from BlueCloud Communications, (ii) all governmental fees and/or other surcharges in effect from time to time including, but not limited to, Universal Service Fund (USF), and E-911, required or permitted by applicable law, rule or regulation, to be charged to Customer, (iii) fees for special features or services requested by Customer, (iv) any originating access charges or fees that are actually charged by the incumbent local exchange carrier to BlueCloud Communications as a result of the unique configuration of the Services, and (v) all other similar charges in effect from time to time, however designated.
9. Indemnification. Each party shall defend, indemnify and hold harmless the other party, its parent, directors, employees, agents and contractors, subsidiaries and affiliates, from and against all third party claims and damages for physical property damage, physical personal injury or wrongful death to the extent such damage or injury arises out of the gross negligence or willful misconduct of the indemnifying party in connection with the provisioning or use of the Services. Customer shall defend, indemnify and hold harmless BlueCloud Communications its parent, directors, employees, agents and contractors, subsidiaries and affiliates from and against all claims and damages arising or resulting from Customer’s breach of these Terms. The indemnifying party agrees to pay any resulting settlement and damages from such claims, as well as all related costs and fees, including attorneys’ fees; provided that, the indemnified party promptly notifies the indemnifying party in writing upon learning of any such claim and fully cooperates in its investigation and defense. The indemnified party may participate, at its expense, in the defense of such claims. The indemnifying party shall not settle, dismiss or otherwise compromise such claims without written consent from the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed.
10. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY.
10.1. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. BLUECLOUD COMMUNICATIONS DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES RELATING TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10.2. IN NO EVENT SHALL BLUECLOUD COMMUNICATIONS, ITS AFFILIATES OR ITS CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY LOST REVENUE, PROFIT, CUSTOMERS, GOODWILL OR DATA, ARISING FROM OR RELATED TO THE SERVICES, INCLUDING ERRORS, MISTAKES, OMISSIONS, INTERRUPTIONS OR DELAYS BY BLUECLOUD COMMUNICATIONS, ITS PROVIDERS, AGENTS, SERVANTS OR EMPLOYEES IN THE COURSE OF ESTABLISHING, FURNISHING, REARRANGING, MOVING, BILLING, TERMINATING OR CHANGING REGULATED OR NON-REGULATED SERVICES OR FACILITIES AS CONTEMPLATED HEREIN. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY WHETHER A CLAIM IS ASSERTED FOR BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM, AND WHETHER A CLAIM IS ASSERTED IN CONTRACT, TORT OR STRICT PRODUCT LIABILITY, IRRESPECTIVE OF WHETHER BLUECLOUD COMMUNICATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. BLUECLOUD COMMUNICATIONS’S LIABILITY TO CUSTOMER HEREUNDER SHALL NOT EXCEED THE LESSER OF CUSTOMER’S ACTUAL DAMAGES OR THE AVERAGE MONTHLY RECURRING CHARGE PAID BY CUSTOMER FOR THE PARTICULAR SERVICE TO WHICH THE CLAIM PERTAINS, CALCULATED FROM COMMENCEMENT OF THE AFFECTED SERVICE TO THE DATE A CLAIM IS MADE.
10.3. BlueCloud Communications shall not be liable to Customer for any act of or representation made by independent distributors or agents who sell BlueCloud Communications Services, unless expressly approved by an officer of BlueCloud Communications in writing or unless contained in a document provided by BlueCloud Communications to Customer. Customer recognizes the complex nature of telecommunications technology and BlueCloud Communications shall not be responsible for any hardware/software including, but not limited to, PBX and PBX programming, CSU, DSU, channel bank, routers or any other customer-premises equipment required for any service provided by BlueCloud Communications. Under no circumstances shall BlueCloud Communications have any liability for: (a) any act or omission of any connecting carrier or any underlying carrier or local exchange company whose services are resold by BlueCloud Communications, or any other third-party provider of connections, equipment, facilities or service to Customer or BlueCloud Communications; (b) any act or omission of Customer, its agents, servants, employees, invitees or guests; (c) any failure of equipment, facilities or connections provided by Customer; or (d) calls not completed or for any errors in transmission.
11. Disclaimer of Emergency 9-1-1 services.IF CUSTOMER USES VoIP (VOICE over INTERNET PROTOCOL)-BASED PHONES, CUSTOMER IS ADVISED THAT EMERGENCY 9-1-1 SERVICE MAY NOT FUNCTION OR BE AVAILABLE TO CUSTOMER WITH THE LOSS OF ELECTRICAL POWER OR IF THE BROADBAND CONNECTION IS NOT OPERATIONAL. EMERGENCY 9-1-1 SERVICE WILL NOT BE AVAILABLE AT ANY REMOTE LOCATION IF INTERNAL USERS ARE ALLOWED TO USE THEIR VoIP-BASED PHONES REMOTELY. CUSTOMER’S ACCEPTANCE OF THESE TERMS WILL BE CUSTOMER’S ACKNOWLEDGMENT THAT BLUECLOUD COMMUNICATIONS HAS ADVISED CUSTOMER OF THESE LIMITATIONS AND THAT CUSTOMER ACCEPTS THE SERVICES WITH THESE LIMITATIONS. Customer shall execute and return to BlueCloud Communications a 911 and E911 Notice and Disclosure upon execution of the Order Form.
12. Force Majeure. BlueCloud Communications shall not be liable for any delay or failure of performance in connection with the provision of the Services to the extent that such failure or delay is caused by acts of god, acts of civil or military authority, government regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, cable cuts, volcanic action, other major environmental disturbances, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, labor disruptions, or acts or omissions of transportation common carriers or other causes beyond the reasonable control of BlueCloud Communications. If any force majeure event occurs, BlueCloud Communications shall give reasonable notice to Customer and take reasonable steps to correct the excuse of performance condition. For the duration of any force majeure event, the duties of BlueCloud Communications under these Terms shall be abated and shall resume without liability thereafter. Should the force majeure event continue for a period of more than sixty (60) days, either party shall have the right to terminate the affected Services.
13. LETTER OF AGENCY (LOA). Customer hereby appoints BlueCloud Communications to act as our agent in order to effectuate the collection of account information and/or carry out the change(s) authorized on our behalf. Customer hereby authorizes the change of our communications company(s) from that/those which we are currently using to BlueCloud Communications for the purpose of ordering and/or maintaining communications services, including, but not limited to, local services, long distance services, private line services, Internet services and number portability.
14. Relationship of the Parties. The parties shall perform all of their duties under these Terms as independent contractors or independent parties and shall discharge their contractual obligations at their own risk, subject, however, to the terms and conditions thereof. The relationship between the parties shall not be deemed to be that of an agent and principal, partners, or joint ventures, and nothing contained in these Terms shall be deemed to constitute a partnership or agency agreement between them for any purposes, including, but not limited to, tax purposes.
15. Press Release and Authorized Use of Name. Neither party may use the other party’s trademarks, service marks or trade names (“Marks”) or otherwise refer to the other party, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, BlueCloud Communications may use Customer’s Marks on the BlueCloud Communications Website and in BlueCloud Communications customer listings.
16. Notices. Except as otherwise provided herein, any notice required to be given in writing shall be in English and sent by electronic mail, facsimile transmission, or U.S. mail. Notice to Customer shall be sent to the address or email or fax number provided by Customer on the Order Form or otherwise provided to BlueCloud Communications. All notices and other communications required or permitted under these Terms shall be in writing and shall be deemed to have been delivered to the other party’s notice address specified in these Terms in the absence of evidence of earlier delivery: (a) on the delivery date, if delivered by hand; (b) the next business day after being deposited for delivery with a recognized overnight courier; (c) on the date received, if sent by facsimile with evidence of successful completion; or (d) three (3) business days after deposit in the mail. Either party may change the notice address to which future notices or other communications shall be sent by providing notice.
17. Law, Venue, and Limitation of Action.These Terms is to be construed and enforced in accordance with the laws of the State of New York, without regard to its conflict-of-laws principles. All legal actions arising under these Terms shall be brought in the applicable federal or state courts located in or with jurisdiction over Nassau County, New York, and each party irrevocably consents to the jurisdiction of such courts. The prevailing party in any action or proceeding arising out of these Terms will be entitled to recover its related expenses and fees, including attorney’s fees. Unless otherwise set forth herein, any dispute arising under these Terms shall be brought within two (2) years of the date of such dispute. EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN CONNECTION WITH THESE TERMS.
18. Assignment. Neither these Terms, nor any right or interest hereunder, may be assigned or otherwise transferred by Customer without the prior written consent of BlueCloud Communications, which consent shall not be unreasonably withheld, conditioned or delayed. These Terms may be assigned by BlueCloud Communications. These Terms will be binding on and inure to the benefit of the parties, their respective successors and permitted assigns.
19. Survival. Any provisions of these Terms that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of these Terms, shall be deemed to survive for as long as necessary to fulfill such purposes.
20. Partial Invalidity. If any term, clause, provision, covenant or condition contained in these Terms is adjudicated to be illegal or unenforceable, all other terms, clauses, provisions, covenants or conditions of these Terms shall remain in force and effect, and the term, clause, provision, covenant or condition held illegal or unenforceable shall remain in effect as far as possible in accordance with the intention of the parties.
21. Entire Agreement. These Terms (including all incorporated documents) constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes all prior agreements and understandings of the parties, whether oral or written, concerning such subject matter. Except as set forth in these Terms, neither party nor its agents has made any express or implied representation or warranty with respect to these Terms or its subject matter; accordingly, neither party will be bound by nor liable for any such representation, promise or inducement made by the other party or its agents that is not stated in these Terms. These Terms may be modified, supplemented, or amended only by a written instrument signed by the parties.
BlueCloud Communications Web Site Agreement
The www.bluecloudcommunications.com is an online information service provided by BlueCloud Communications, subject to your compliance with the terms and conditions set forth below. PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE. BY ACCESSING OR USING THE SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SITE. www.bluecloudusa.com MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON POSTING OF THE MODIFIED AGREEMENT ON THE SITE. YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SITE SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT.
1. Copyright, Licenses and Idea Submissions.
The entire contents of the Site are protected by international copyright and trademark laws. The owner of the copyrights and trademarks are www.bluecloudusa.com, its affiliates or other third party licensors. YOU MAY NOT MODIFY, COPY, REPRODUCE, REPUBLISH, UPLOAD, POST, TRANSMIT, OR DISTRIBUTE, IN ANY MANNER, THE MATERIAL ON THE SITE, INCLUDING TEXT, GRAPHICS, CODE AND/OR SOFTWARE. You may print and download portions of material from the different areas of the Site solely for your own non-commercial use provided that you agree not to change or delete any copyright or proprietary notices from the materials. You agree to grant to www.bluecloudcommunications.com a non-exclusive, royalty-free, worldwide, perpetual license, with the right to sub-license, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any materials and other information (including, without limitation, ideas contained therein for new or improved products and services) you submit to any public areas of the Site (such as bulletin boards, forums and newsgroups) or by e-mail to www.bluecloudcommunications.com by all means and in any media now known or hereafter developed. You also grant to www.bluecloudusa.com the right to use your name in connection with the submitted materials and other information as well as in connection with all advertising, marketing and promotional material related thereto. You agree that you shall have no recourse against www.bluecloudusa.com for any alleged or actual infringement or misappropriation of any proprietary right in your communications to www.bluecloudusa.com.
Publications, products, content or services referenced herein or on the Site are the exclusive trademarks or servicemarks of www.bluecloudusa.com. Other product and company names mentioned in the Site may be the trademarks of their respective owners.
2. Use of the Site.
You understand that, except for information, products or services clearly identified as being supplied by www.bluecloudusa.com, www.bluecloudusa.com does not operate, control or endorse any information, products or services on the Internet in any way. Except for www.bluecloudusa.com- identified information, products or services, all information, products and services offered through the Site or on the Internet generally are offered by third parties, that are not affiliated with www.bluecloudusa.com a. You also understand that www.bluecloudusa.com cannot and does not guarantee or warrant that files available for downloading through the Site will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site for the reconstruction of any lost data.YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND THE INTERNET. www.bluecloudusa.com PROVIDES THE SITE AND RELATED INFORMATION “AS IS” AND DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NONINFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICE, ANY MERCHANDISE INFORMATION OR SERVICE PROVIDED THROUGH THE SERVICE OR ON THE INTERNET GENERALLY, AND www.bluecloudusa.com SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF ALL OPINIONS, ADVICE, SERVICES, MERCHANDISE AND OTHER INFORMATION PROVIDED THROUGH THE SERVICE OR ON THE INTERNET GENERALLY. www.bluecloudusa.com DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.
YOU UNDERSTAND FURTHER THAT THE PURE NATURE OF THE INTERNET CONTAINS UNEDITED MATERIALS SOME OF WHICH ARE SEXUALLY EXPLICIT OR MAY BE OFFENSIVE TO YOU. YOUR ACCESS TO SUCH MATERIALS IS AT YOUR RISK. www.bluecloudusa.com HAS NO CONTROL OVER AND ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS.
LIMITATION OF LIABILITY
IN NO EVENT WILL BlueCloud Communications BE LIABLE FOR (I) ANY INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, OR ANY INFORMATION, OR TRANSACTIONS PROVIDED ON THE SERVICE, OR DOWNLOADED FROM THE SERVICE, OR ANY DELAY OF SUCH INFORMATION OR SERVICE. EVEN IF BlueCloud Communications OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SERVICE AND/OR MATERIALS OR INFORMATION DOWNLOADED THROUGH THE SERVICE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, BlueCloud Communications LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.www.bluecloudusa.com makes no representations whatsoever about any other web site which you may access through this one or which may link to this Site. When you access a non-www.bluecloudusa.com web site, please understand that it is independent from www.bluecloudusa.com, and that www.bluecloudusa.com has no control over the content on that web site. In addition, a link to a www.bluecloudusa.com web site does not mean that www.bluecloudusa.com endorses or accepts any responsibility for the content, or the use, of such web site.
You agree to indemnify, defend and hold harmless www.bluecloudusa.com, its officers, directors, employees, agents, licensors, suppliers and any third party information providers to the Service from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of this Agreement (including negligent or wrongful conduct) by you or any other person accessing the Service.
4. Third Party Rights.
The provisions of paragraphs 2 (Use of the Service), and 3 (Indemnification) are for the benefit of www.bluecloudusa.com and its officers, directors, employees, agents, licensors, suppliers, and any third party information providers to the Service. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf.
5. Term; Termination.
This Agreement may be terminated by either party without notice at any time for any reason. The provisions of paragraphs 1 (Copyright, Licenses and Idea Submissions), 2 (Use of the Service), 3 (Indemnification), 4 (Third Party Rights) and 6 (Miscellaneous) shall survive any termination of this Agreement.
This Agreement shall all be governed and construed in accordance with the laws of The United States of America applicable to agreements made and to be performed in The United States of America. You agree that any legal action or proceeding between www.bluecloudusa.com and you for any purpose concerning this Agreement or the parties’ obligations hereunder shall be brought exclusively in a federal or state court of competent jurisdiction sitting in The United States of America . Any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. www.bluecloudusa.com’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement. www.bluecloudusa.com may assign its rights and duties under this Agreement to any party at any time without notice to you.
Any rights not expressly granted herein are reserved.
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