Terms of Service
These Terms and Conditions (hereinafter the “Service(s)” shall govern all Service Quotes, Addendum(s) to Service Quotes and any other contracts or agreements entered into between Paragon Technology Inc., and its Customers.
Service(s)means provisioning of voices services, Internet access (including Shared Bandwidth and Dedicated lines), domestic , international and toll free termination and origination, conferencing, hosting, server collocation, hardware sales and all related customer support services.
1.1 “Software” means any computer programs or code, software applications, and any other
software provided by Paragon Technology Inc. to Customer pursuant to this Agreement.
2. SERVICES AND EQUIPMENT
2.1 Paragon Technology Inc. Services. Paragon Technology Inc. shall provide the Services to Customer on the terms and conditions set forth in this Agreement. Paragon Technology Inc. obligations under this Agreement are expressly conditioned upon Customer’s landlord granting Paragon Technology Inc. or its designated agents, contractors or representatives access to the building phone room and roof areas as necessary in Paragon Technology Inc. judgment to deliver the Services and to install and maintain equipment.
2.2 Required Equipment. Customer understands and agrees that the Service requires certain equipment provided by Customer such as a sip aware access device, personal computer, an Ethernet card and an appropriate operating system (the “Customer Equipment”), as well as certain equipment provided by Paragon Technology Inc. such as the Software, an edge access device, an IP phone or SIP gateway (the “Paragon Technology Inc. Equipment”). Customer represents that it owns the Customer Equipment or otherwise has the right to use such equipment in connection with the Service.
2.3 Access to Customer’s Premises. Customer authorizes Paragon Technology Inc. and its employees, agents, contractors and representatives to enter Customer’s premises (the “Premises”) to install, maintain, inspect, alter, repair and remove the Paragon Technology Inc. Equipment. All such services shall be conducted at a time agreed to with Customer. If Customer is not the owner of the Premises, upon Paragon Technology Inc. request Customer shall supply Paragon Technology Inc. with the owner’s name and address, evidence that the Customer is authorized to grant access to the Premises on the owner’s behalf, and (if needed) written consent from the owner of the Premises. Customer also grants its consent to Paragon Technology Inc. to contact such owner for the purpose of entering into one or more Right of Access and/or Site Lease(s). If Customer does not provide access as provided herein, Paragon Technology Inc. shall, at its option, a) declare the full amount for the entire term due and payable immediately, or b) elect to terminate this agreement.
2.4 Ownership of Equipment. All Paragon Technology Inc. Equipment and Software shall at all times remain the property of Paragon Technology Inc. or its designee. Customer may not sell, transfer, lease, encumber or assign all or part of the Paragon Technology Inc. or Software, nor shall Customer relocate the Paragon Technology Inc. Equipment outside the Premises. Customer shall pay to Paragon Technology Inc. the full manufacturer’s suggested retail price for the replacement of any lost, stolen, unreturned, damaged, sold, transferred, leased, encumbered or assigned Paragon Technology Inc. Equipment or part thereof, together with any incidental costs incurred by Paragon Technology Inc. relating to the replacement of the Paragon Technology Inc. Equipment. Customer hereby authorizes Paragon Technology Inc. to charge Customer’s Visa, MasterCard, or other credit card for any such charges. Paragon Technology Inc. may, at its option, install new or reconditioned Paragon Technology Inc. Equipment.
2.5 Back-up Requirements. The installation, use, inspection, alteration, maintenance, repair or removal of the Paragon Technology Inc. Equipment and software may result in service outage or potential damage to Customer’s Equipment. If Customer does not back-up all existing computer files by copying them to another storage medium prior to such activities, Customer understands and
accepts the associated risks of not making such a backup. IN ANY EVENT, Paragon Technology Inc. SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OR DESTRUCTION OF THE CUSTOMER’S EQUIPMENT, PERIPHERALS,
SOFTWARE OR DATA.
2.6 Non-recommended Configuration. Paragon Technology Inc. has informed Customer of the recommended minimum computer hardware requirements, if any, (the “Minimum Requirements”) for efficiently operating the Service. If Customer allows the installation of the Service utilizing software/hardware that does not meet the Minimum Requirements (a “Non-recommended Configuration”), Customer agrees that (i) Customer shall not be entitled to Customer support relating to any issues other than the quality of the signal delivered to Customer’s IP phone or SIP gateway, and (ii) the following limitations of liability shall apply: Paragon Technology Inc. DOES NOT REPRESENT OR WARRANT THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE CUSTOMER TO SUCCESSFULLY ACCESS, OPERATE OR USE THE SERVICE, NOT THAT ANY SUCH INSTALLATION WILL NOT CAUSE DAMAGE TO THE CUSTOMER’S EQUIPMENT, PERIPHERALS, SOFTWARE OR DATA. Paragon Technology Inc. DOES NOT ASSUME ANY LIABILITY WHATSOEVER FOR ANY DAMAGE OR FAILURE TO INSTALL, ACCESS OR USE THE SERVICE. The foregoing limitation of liability is in addition to and shall not limit any other limitation of liability set forth in this Agreement.
3. INSTALLATION AND SOFTWARE LICENSES
3.1 Installation Process. Paragon Technology Inc. and or its agents may from time to time, supply Paragon Technology Inc. hardware/software to be installed within the customer premise as requested to deliver the service. Costs associated for the installation of services by Paragon Technology Inc. and or its agents to be defined within the Services Quote or additional quotes or addendums agreed to by the parties. Customer may chose to self-install the software, hardware and services at customer’s own risk and expense. Paragon Technology Inc. Technical and Trouble Support for customer
self-installed services will be charged at the current prevailing wage for those services.
3.2 File Modification. As part of the installation process, system files on Customer’s computer may be modified. Paragon Technology Inc. does not represent, warrant nor covenant that such modifications will not disrupt the normal operations of Customer’s computer. For these and other reasons, Paragon Technology Inc. recommends, and Customer agrees, that Customer will back-up all files in accordance with Section.
2.5 above prior to installation of the Service. If Customer does not back-up all existing computer files, Customer understands and accepts the associated risks of not doing so. Paragon Technology Inc. SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE
RESULTING FROM THE ABOVE OR OTHER FILE MODIFICATIONS.
3.3.1 Non-exclusive License. If Software is provided by Paragon Technology Inc., Paragon Technology Inc. grants to Customer a limited, non-exclusive license to use the Software, in object code form only, solely for the purpose of connecting Customer’s computer(s) or sip aware device to the Service. This license will permit such use by Customer and any person authorized by Customer to use the Service, provided that Customer shall be responsible for all uses of the Service as provided in this Agreement. This license will commence upon Paragon Technology Inc. acceptance of Customer’s subscription for the Service and will
terminate immediately upon the expiration or termination of this Agreement for any reason. Customer will destroy all Software and any related written material, together with any copies, promptly upon the expiration or termination of this Agreement for any reason.
3.3.2 Copies. Customer may make a single copy of the Software solely for back-up purposes, provided that such copy contains the same copyright notices and proprietary markings as the original Software. Customer cannot engage in, nor permit, any other copying, or any translation, reverse engineering or reverse compiling, disassembly or modification of or preparation of any derivative works based on the Software, all of which are prohibited.
3.3.3 End User Licenses. Customer agrees to comply with the terms and conditions of all end user license agreements accompanying any 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 is otherwise terminated.
4.1 Fixed Monthly Service Fees. The cost for Services requiring a fixed monthly fee shall be as stated in the Service Quote and shall be payable monthly, in advance, plus all applicable taxes, tariffs, governmental assessments, surcharges and fees (collectively, the “Fixed Service
Fee(s)”). The Fixed Service Fee for the first month of Service shall be due and payable prior
to installation of Service and if commencement of Service occurs on other than the first calendar day of the month then the Fixed Service Fee will be prorated by the number of calendar days remaining in the month. Thereafter, the Fixed Service Fee is due and payable in advance on the first day of each month and shall be considered late if not received by Paragon Technology Inc. by the tenth calendar day of each month.
4.2 Variable Monthly Usage Fees. The cost for Services based on the usage by Customer and other variable factors shall be computed at the rates stated in the Service Quote and shall be payable monthly, using a cut-off date selected by Paragon Technology Inc., in arrears, plus all applicable taxes, tariffs, governmental assessments, surcharges and fees (collectively, the “Usage Fee(s)”). The rates for voice services set forth in the Service Quote shall be valid for the initial
term, provided however, all rates for international services are subject to change at anytime by Paragon Technology Inc. without prior written notice. Paragon Technology Inc. may, at its discretion, choose to adjust the rates for voice services to include the cost, if any, of tariffs, taxes or assessments as imposed upon Paragon Technology Inc. by any governmental agency. All Usage Fees are due and payable on the first day of the month billed and shall be considered late if not received by Paragon Technology Inc. by the tenth calendar day of such month. All rate changes become effective immediately and are posted on the Paragon Technology Inc. website
located at www.paragonvoip.com
4.3 Installation Charge and Security Deposit. Charges for any hardware, software, installation, etc., shall be as stated in the Service Quote as a Non-Recurring Charges “NRC” and shall be due and payable upon ordering the service. An equipment deposit for Paragon Technology Inc. Equipment to be used as rental equipment within the Customer Premises shall be as stated in the Service Quote and shall be due prior to installation and shall be refunded to Customer upon termination of service, provided said Paragon Technology Inc. Equipment is returned in good working
condition and in its original packaging.
4.4 Agreement to Pay. Monthly payments and any other amounts due to Paragon Technology Inc. may be charged to Customer’s Visa, MasterCard, American Express or other credit card, and/or electronically debited to Customer’s bank account, at Customer’s option. Customer agrees to pay all monthly Service Fees, Usage Fees, Installation Charges, NRC’s and Equipment Deposits. Customer hereby authorizes Paragon Technology Inc. to charge Customer’s Visa, MasterCard or other credit card and/or to electronically debit Customer’s bank account for all such fees,
charges, taxes and payment transaction processing costs. Paragon Technology Inc. reserves the
right to change the acceptable forms of payment at its discretion.
4.5 Late Payments/Failure to Pay. If any payment due to Paragon Technology Inc. is not received within 10
days of due date, an administrative charge of 5% of the amount due may be assessed and the Service may be discontinued. If the Service is discontinued, Customer will be required to pay a reconnect fee of $150.00 in addition to all past due amounts before the Service is reconnected. The administrative charge is intended to be a reasonable advance estimate of Paragon Technology Inc. costs resulting from Customer’s late payments and non-payments, and is set in advance due to the difficulty inherent in determining the costs associated with any particular late payment or non-payment. Paragon Technology Inc. does not anticipate that Customer will fail to make payments on a timely basis. Paragon Technology Inc. does not extend credit to its Customer, and the administrative charge is not interest, a credit service charge nor a finance charge. In the event Paragon Technology Inc. , at its sole discretion, elects to use the services of a third party collection agency, the costs of such third party collection agent shall be paid by the Customer.
4.7 Price Changes. Paragon Technology Inc. has the right to change its Service Fee at any time and upon 30 days advance notice unless otherwise stated in the Service Quote.
4.8 Additional Charges. The Service may allow Customer to access the Internet, on-line services and other information. Customer acknowledges that Customer may incur charges while using the Service in addition to those billed by Paragon Technology Inc.. 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.
4.9 Credit Inquiries. Customer authorizes Paragon Technology Inc. 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. Paragon Technology Inc. reserves the right, in its sole discretion, to refuse to provide Service based upon lack of creditworthiness, or in the alternative to require a security deposit that will be returned to Customer, without interest thereon, upon the expiration or termination of Services assuming all amounts due Paragon Technology Inc. have been paid in full. Paragon Technology Inc. shall have the right to offset against the security deposit, in part or in full, for any amounts due Paragon Technology Inc..
4.10 Prepayment Option. Customer may prepay any Fixed Monthly Service Fees for 12 months and receive a discount of 5%. The amount due shall be the then current monthly fee multiplied by twelve multiplied by 95%. Upon early termination the refund due shall be prorated using the calculation set forth in Section 7.1 and the monthly rate upon which the prepayment was calculated.
5. CUSTOMER CONDUCT
5.1 Prohibited Uses. Customer shall not use the Service or the Paragon Technology Inc. Equipment, directly or indirectly;
5.1.1 for any unlawful purposes; use of the Service for transmission or storage of any information, data or material in violation of any United States federal, state or local regulation or law is prohibited, such limitation shall include, without limitation, posting or disseminating content which is obscene, unlawful, threatening, defamatory, or infringes upon the intellectual property rights of any third party;
5.1.2 to post, transmit or disseminate objectionable information, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law or regulation;
5.1.3 to access any other person’s computer, software or data without the knowledge and consent of such person;
5.1.4 to upload, post, publish, transmit, reproduce, create derivative works of, or distribute in any way, information, software or other material obtained through the Service which is protected by copyright or other proprietary rights without obtaining permission from the owner(s);
5.1.5 to copy, distribute, or sub-license any software provided by Paragon Technology Inc., except that Customer may make one copy of each
software program for back-up purposes only;
5.1.6 to service, alter, modify or tamper with the Paragon Technology Inc. Equipment or Service or permit any other person to do the same unless such person is authorized by Paragon Technology Inc. to do so;
5.1.7 to restrict, inhibit or otherwise interfere with the ability of any other person to use or enjoy the Service, including, without limitation, posting or transmitting any information or software which contains a virus or other harmful feature, or generating levels of traffic sufficient to
impede others’ ability to send or retrieve information;
5.1.8 to knowingly disrupt the Service;
5.1.9 to resell the Service or otherwise charge others to use the Service; the Service is for personal use only and Customer agrees not to use the Service for operation as an Internet service provider or for any other business enterprise in competition with the Service;
5.1.10 to connect the SIP gateway to any computer outside of Customer’s Premises;
5.1.11 to allow or provide access to adult content material to anyone under the age of 18 years.
5.1.12 Fair Usage Policy. Calls to land lines and mobile devices are included in your subscription and subject to a fair usage limit of 1,000 minutes per subscriber line (sip trunk) per month. Upon exceeding the fair usage limit, Paragon Technology Inc. reserves the right to charge a rate of $0.025 per minute for any overages. In the case of US only bundled trunking services, rates (outside the U.S. and Canada) are charged at the current international rates listed at www.paragonvoip.com as applicable.
Paragon Technology Inc. reserves the right to change this fair usage policy at any time. Your continued use of your subscription after expiry of the 30-day period shall constitute your acceptance to be bound by the terms and conditions of the Paragon Technology Inc. fair usage policy.
5.1.13 Call Flooding. To protect the integrity if its network, Paragon Technology Inc. may in its reasonable discretion, and without liability for damages of any type to Customer, its affiliates or End Users, temporarily block duplicate or repeated numbers dialed in succession, where Paragon Technology Inc. considers the number of attempts to be potentially harmful to the network.
5.2 Termination. Paragon Technology Inc. reserves the right to immediately terminate this Agreement and the Service if Customer engages in any of the activities listed in Section 5.1 above or if Customer uses the Service or Paragon Technology Inc. Equipment contrary to any other Paragon Technology Inc. policy. Copies of such policies may be posted online at www.paragonvoip.com. This Section 5.2 shall in no way limit Paragon Technology Inc. rights of termination pursuant to Section 7.2 of this Agreement.
Customer agrees to indemnify, defend and hold harmless Paragon Technology Inc. against all claims and expenses (including reasonable attorneys’ fees) resulting from Customer’s use of the Services, including, without limitation, the activities listed in Section 5.1 above, or from any other violation of Paragon Technology Inc. policies by Customer. This provision shall survive the expiration or other termination of this Agreement.
6.1 Prorated Credit. Except as otherwise required by law, Customer is entitled to a prorated credit upon request only in the event of a complete failure of the Service due to technical malfunction of the system or network operated by Paragon Technology Inc. for a period of twenty-four (24) consecutive hours or more. To obtain a credit, Customer must request a credit in writing to Paragon Technology Inc. within thirty (30) days of the failure. Credits shall be applied against future fees
payable by Customer for the Service.
6.2 Force Majeure. Paragon Technology Inc. shall have no liability, including as set forth in this Section, for interruption of the Service due to circumstances beyond Paragon Technology Inc. control, including, without limitation, acts of God, flood, natural disaster, regulation or governmental acts, fire,
civil disturbances, strike or weather.
7. AUTOMATIC RENEWAL AND TERMINATION
7.1 Termination by Customer. The Terms of this Agreement shall be as stated in the Services Quote beginning on the date of Installation and shall automatically renew for a period equal to the initial term on each anniversary unless written notice of cancellation is received by Paragon Technology Inc. sixty (60) days prior to the end of each Term For all other Services billed by a Fixed Service Fee, Customer may only terminate prior to the end of the Term stated in the Services Quote by giving written notice to Paragon Technology Inc. and by payment of a Fixed Service Fee Termination Amount equal to the number of months remaining in the Term times the amount of
the monthly Fixed Service Fee (“Fixed Service Fee Termination Amount”). For Services billed pursuant to Usage Fees Customer may only terminate prior to the end of the Term stated in the Service Quote by giving written notice to Paragon Technology Inc. and by payment of a Usage Fee Termination Amount equal to the number of months remaining in the Term times the average of the prior three (or if less than three months have elapsed, using the actual number of months elapsed) month’s Usage Fees (“Usage Fee Termination Amount”). All such types of Termination Fees described herein shall collectively or individually be known as Termination Fee(s). ANY TERMINATION NOTICE RECEIVED BY Paragon Technology Inc. WHICH IS NOT ACCOMPANIED BY THE PAYMENT OF THE APPLICABLE TERMINATION FEE SHALL BE NULL AND VOID;
7.2 Termination by Paragon Technology Inc.. Paragon Technology Inc. may terminate this Agreement immediately should Customer violate any of the terms of this Agreement. Paragon Technology Inc. may also terminate this Agreement for any other reason by providing Customer with written notice of such termination no later than thirty (30) days before the date of termination. In the event that Paragon Technology Inc. terminates this Agreement for any reason other than Customer’s violation of the provisions of Section 5.1, Service Fees and other charges will continue to accrue through
the date of termination, but all prepaid Service Fees and charges for cancelled Service will be refunded. If termination is due to violation of the provisions of Section 5.1, the termination amount will be equal to the number of months remaining in the Term times the amount of the monthly Fixed Service Fee;
7.3 Customer Obligations. Customer agrees that upon termination of this Agreement;
7.3.1 Customer will pay Paragon Technology Inc. in full for Customer’s use of the Service and Paragon Technology Inc. Equipment up to the later of (i) the effective date of termination of this Agreement or (ii) the date on which the Service and the Paragon Technology Inc. Equipment have been disconnected and returned to Paragon Technology Inc.. Customer agrees to pay Paragon Technology Inc. on a prorated basis for any use by Customer of the Service or Paragon Technology Inc. for a part of a month;
7.3.2 Customer will permit Paragon Technology Inc., its employees, agents, contractors and representatives to access Customer’s Premises during regular business hours to remove the Paragon Technology Inc. Equipment and other materials furnished by Paragon Technology Inc.;
7.3.4 Customer will ensure the return of all Paragon Technology Inc. Equipment to Paragon Technology Inc.. Customer will return or destroy all copies of any software provided to Customer pursuant to this Agreement. If the Paragon Technology Inc. Equipment is not returned, Customer agrees to pay the charges referred to in Section 2.4 above and Paragon Technology Inc. shall have the right to charge such amounts to Customer’s Visa, MasterCard or other credit card, or to electronically debit Customer’s bank account;
7.3.5 Customer, upon request by Paragon Technology Inc. made not more frequently than monthly, shall provide information regarding the number of desktop and/or portable computers connected to the Paragon Technology Inc. Service during any month.
7.4 Retention of Rights. Nothing contained in this Agreement shall be construed to limit Paragon Technology Inc. rights and remedies available at law or in equity. Customer, upon request by Paragon Technology Inc., shall provide information in a timely fashion regarding the brand/model of phone system(s), the number of desktop, portable or mobile devices and/or applications (apps) connected to the Paragon Technology Inc. Service.Paragon Technology Inc. reserves the right to delete all data,
files, electronic messages or other information any reason arising out of or related in any way to the use of the Service and/or Paragon Technology Inc. Equipment by Customer or otherwise arising out of the use of Customer’s computer.
7.5 Survival. The terms set forth in Sections 2,3, and 4 shall survive the termination of this Agreement.
There may be some content on the Internet or otherwise available through the Service which may be offensive to some individuals or which may not be in compliance with all local, state, or federal laws, regulations, and other rules. Paragon Technology Inc. assumes no responsibility for the content contained on the Internet or otherwise available through the Service. All content accessed by the Customer through the Service is access and used by the Customer at Customer’s own risk and Paragon Technology Inc. and each of its representatives, affiliates, subcontractors, employees, and agents, shall have no liability whatsoever for any claims, losses, actions, damages, suits, or proceedings arising out of or otherwise relating to access to such content by the Customer or the Customer’s employees, affiliates, agents, or representatives. Paragon Technology Inc. specifically disclaims any responsibility for the accuracy, quality, and confidentiality of information obtained through the Service.
Customer acknowledges that Customer is executing this Agreement on behalf of all persons who use the Service and/or Paragon Technology Inc. Equipment through Customer’s computer(s), phone systems, PBXs and other telecommunications equipment. Customer shall have sole responsibility for ensuring that all such other users understand and comply with the terms and conditions of this Agreement. Customer further acknowledges and agrees that Customer is solely responsible and liable for any and all breaches of the terms and conditions of this Agreement whether such breach is the result of use of the Service and/or the Paragon Technology Inc. Equipment by Customer or any other user of Customer’s computer(s), phone systems, PBXs and other telecommunications equipment. Customer agrees to indemnify, defend and hold harmless Paragon Technology Inc. against all claims and expenses (including reasonable attorneys’ fees) arising out of the use of the Service and/or Paragon Technology Inc. Equipment by any other user of Customer’s computer(s), phone systems, PBXs and other telecommunications equipment.
10.1 Exclusions. UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT OR OTHERWISE PROHIBITED BY LAW, NEITHER Paragon Technology Inc., IT’S OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, NOR ANY OWNER OR MANAGER OF THE
BUILDING OR LAND IN WHICH CUSTOMER’S PREMISES IS LOCATED SHALL HAVE ANY
LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY FOR:
10.1.1 ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, RESULTING DIRECTLY
OR INDIRECTLY OUT OF, OR OTHERWISE ARISING IN CONNECTION WITH, THE USE OF THE SERVICE BY CUSTOMER OR ANY OTHER USE OF THE Paragon Technology Inc. EQUIPMENT OR SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE RESULTING FROM OR ARISING OUT OF CUSTOMER’S RELIANCE ON OR USE OF THE SERVICE OR Paragon Technology Inc. EQUIPMENT OR SOFTWARE, OR THE MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION OR ANY FAILURE OF PERFORMANCE OF THE SERVICE OR Paragon Technology Inc. EQUIPMENT OR SOFTWARE; OR
10.1.2 ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS (INCLUDING LEGAL FEES) RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR
OTHERWISE ARISING IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE Paragon Technology Inc. EQUIPMENT OR SOFTWARE, OR SERVICE OR A THIRD PARTY INFRINGES UPON THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY OR OTHER INTELLECTUAL PROPERTY RIGHTS OR CONTRACTUAL RIGHTS OF ANY THIRD PARTY.
10.2 Application. The liability limitations set forth in this Section 10 apply to the acts, omissions and negligence of Paragon Technology Inc. (and its officers, directors, employees, agents, contractors and representatives) which, but for this provision, would give rise to a cause of action in contract, tort or any other legal doctrine. However, the liability limitations set forth in this Section 10 shall apply to liability for personal injury or death only to the extent applicable law does not prohibit such limitation.
10.3 No Third Parties. No third party owner or manager of Customer’s building or land is a party to this Agreement. Thus, no such owner or manager shall be responsible for, nor shall be liable for, the quality of the Service or Paragon Technology Inc. Equipment.
10.4 Sole Remedies. Customer’s sole and exclusive remedies under this Agreement are as set forth in this Agreement.
The Federal Communications Commission (“FCC”) requires that Paragon Technology Inc. provide E911 Service to all customers who use Paragon Technology Inc. Services within the United States.
11.1 CUSTOMER ACKNOWLEDGES THAT Paragon Technology Inc. EQUIPMENT AND SERVICES DO NOT SUPPORT 911 EMERGENCY DIALING OR OTHER EMERGENCY FUNCTIONS
IN THE SAME WAY THAT TRADITIONAL LAND LINE 911 SERVICES WORK. THE DIFFERENCES ARE DETAILED IN THIS SECTION 10 AND CUSTOMER HEREBY AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICES, WHO MAY PLACE CALLS USING CUSTOMER’S SERVICES, OF THE 911 LIMITATIONS DESCRIBED HEREIN. CUSTOMER AGREES TO RESPOND AND AFFIRMATIVELY ACKNOWLEDGE THAT Paragon Technology Inc. HAS ADVISED CUSTOMER OF THE CIRCUMSTANCES UNDER WHICH Paragon Technology Inc. E911 SERVICE MAY NOT BE AVAILABLE OR MAY BE LIMITED IN COMPARISON TO TRADITIONAL 911 EMERGENCY DIALING. Paragon Technology Inc. ADVISES CUSTOMER TO MAINTAIN AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL 911 SERVICES.
11.2 CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION IN THE ABSENCE OF ELECTRICAL POWER.
11.3 CUSTOMER ACKNOWLEDGES THAT THE SERVICES WILL NOT FUNCTION PROPERLY IF THERE IS AN INTERRUPTION OR A LACK OF BANDWIDTH OF CUSTOMER’S BROADBAND OR HIGH-SPEED INTERNET ACCESS SERVICE.
11.4 CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT SET UP TO FUNCTION WITH OUT DIALING SYSTEMS INCLUDING HOME SECURITY SYSTEMS, MEDICAL MONITORING EQUIPMENT, TTY EQUIPMENT, AND ENTERTAINMENT OR SATELLITE TELEVISION SYSTEMS. CUSTOMER HEREBY WAIVES ALL CLAIMS AGAINST Paragon Technology Inc. FOR INTERRUPTION OR DISRUPTION OF SUCH SYSTEMS
BY THE SERVICES.
11.5 Paragon Technology Inc. E911 SERVICE IS A MANDATORY COMPONENT OF ALL
INBOUND/OUTBOUND FAX AND VOICE SERVICE PLANS. E911 SERVICE IS NOT OFFERED ON INTERNATIONAL NUMBERS, TOLL FREE NUMBERS OR SIMILAR SERVICE ACCESSORIES OR ADD-ON PLANS. E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. CUSTOMERS WHO SUBSCRIBE TO Paragon Technology Inc. E911 SERVICE WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF THEIR EQUIPMENT (ATA or IP PHONE) WITH Paragon Technology Inc., EITHER ON THE Paragon Technology Inc. USER PORTAL, INITIAL ORDER FORMS OR BY CALLING CUSTOMER SERVICE, AND AGREE TO UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES. CUSTOMER ACKNOWLEDGES THAT Paragon Technology Inc. ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY REGISTERED FOR THE ACCOUNT. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY Paragon Technology Inc. WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO Paragon Technology Inc. BY CUSTOMER.
11.6 CUSTOMER ALSO ACKNOWLEDGES THAT Paragon Technology Inc. E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE Paragon Technology Inc. E911 SERVICES UNSUITABLE FOR SOME CUSTOMERS. BECAUSE EACH CUSTOMER’S CIRCUMSTANCES MAY VARY WIDELY, CUSTOMERS SHOULD CAREFULLY EVALUATE THEIR OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON Paragon Technology Inc. E911 SERVICE. CUSTOMER ACKNOWLEDGES THAT IT IS CUSTOMER’S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET CUSTOMER’S EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO
EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH Paragon Technology Inc. E911 SERVICE FROM TRADITIONAL,
LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
** Paragon Technology Inc. E911 SERVICE WILL NOT FUNCTION IF CUSTOMER’S ATA or IP PHONE FAILS OR IS NOT CONFIGURED CORRECTLY OR IF CUSTOMER’S Paragon Technology Inc. SERVICE
IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, CUSTOMER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE Paragon Technology Inc. SERVICE, INCLUDING FOR E911 PURPOSES.
** AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY CHANGE OF AND UPDATE TO CUSTOMER’S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO
THE LOCAL EMERGENCY SERVICE OPERATOR. THIS INFORMATION IS TYPICALLY POPULATED INTO Paragon Technology Inc. NOMADIC E911 DATABASES PRIOR TO SERVICE ACTIVATION, BUT NO GUARANTEE CAN BE MADE THAT THE AUTOMATIC NUMBER AND LOCATION INFORMATION WILL BE ACTIVATED WITHIN THIS SCHEDULE.
** THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING Paragon Technology Inc. E911
EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE Paragon Technology Inc. E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE Paragon Technology Inc. NETWORK, THERE IS A POSSIBILITY THAT A Paragon Technology Inc. E911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
** IF A CUSTOMER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE Paragon Technology Inc. EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE,Paragon Technology Inc. E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
11.7 CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT Paragon Technology Inc. WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER
EMERGENCY TELEPHONE NUMBER USING Paragon Technology Inc. OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS Paragon Technology Inc., ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
Indemnification Obligation. Customer shall defend (with counsel reasonably acceptable to Paragon Technology Inc.), indemnify and hold harmless Paragon Technology Inc. and Paragon Technology Inc. officers, directors, employees, agents, contractors and representatives from and against any and all claims and expenses, including reasonable attorneys’ fees).
Customer agrees that Paragon Technology Inc. and/or its agents may, from time to time, collect information regarding Customer’s use of the Service and activities on the Internet. Customer agrees that such information may be shared with third parties provided that (i) Paragon Technology Inc. does not disclose any personally identifiable information to others except, as allowed by law and (ii) otherwise complies with applicable privacy laws. Customer expressly grants Paragon Technology Inc. the
right to disclose information relating to Customer and/or Customer’s account in response to a subpoena issued in a civil or criminal investigation, litigation,court order or a civil investigation by a governmental entity.
14. FRAUDULENT CALLS
In the event Customer connects the Services to the public switched network, Customer is solely responsible for selection, implementation and maintenance of security features for protection against unauthorized calling, and Paragon Technology Inc. shall have no liability therefore. Customer is solely responsible for payment of long distance, toll and other telecommunications charges incurred through use of the Services being provided here under. Customer shall indemnify and hold Paragon Technology Inc. harmless from all costs, expenses, claims or actions arising from fraudulent calls of any nature carried by means of the Services. Customer shall not be excused from paying Paragon Technology Inc. for Services provided to Customer or any portion thereof on the basis that fraudulent calls comprised a corresponding portion of the Services. In the event Paragon Technology Inc. discovers fraudulent calls being made, nothing contained herein shall prohibit Paragon Technology Inc. from taking immediate action, without notice to Customer that is reasonably
necessary to prevent such calls from taking place. Notwithstanding, it is understood that Paragon Technology Inc. is under no obligation to investigate the authenticity of calls charged to Customer’s account and shall not be liable for any fraudulent calls processed by Paragon Technology Inc. and billed to Customer’s account.
15.1 Controlling Law; Venue. The validity, performance, and interpretation of this Agreement will be governed and construed in accordance with the laws of the United States and the
addition to any other relief it may be awarded.
15.2 Notices. All notices permitted or required under this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally, (ii) by commercially established courier service upon delivery or, if the courier attempted delivery on a normal business day and delivery was not accepted, upon attempted delivery, (iii) by facsimile transmission when confirmed by facsimile transmission, or (iv) by certified or registered mail, return receipt requested, ten (10) calendar days after deposit in the mail. Such notices shall be sent to the addresses set in the Services Quote or such other address as a party hereto shall notify the other party of in writing.
If to Paragon Technology Inc.:
Email: firstname.lastname@example.org Attention: Billing Dept.
15.3 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
15.4 Headings. The headings in this Agreement are inserted for convenience and do not constitute a part of the Agreement, nor modify or limit any of the terms.
15.5 Waiver; Amendment; Modification. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed by the party against whom such waiver or consent is asserted. The waiver by either party of, or consent of either party to, a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach by the other party. This Agreement may be amended or modified only by mutual agreement of authorized representatives of the parties in writing.
15.6 Enforce-ability of Provisions. To the extent any provision or portion of this Agreement is determined to be invalid, illegal or unenforceable, such provision or portion shall be severed or deleted from this Agreement or limited so as to give effect to the intention of the parties insofar
as possible. The invalidity or unenforceablity of any provision or portion hereof shall not affect the validity or enforce-ability of any other provision or this Agreement as a whole.
15.7 Assignment. Paragon Technology Inc. may assign its rights and obligations under this Agreement to any party without the consent of Customer. Customer may not assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of Paragon Technology Inc..
15.8 Entire Agreement. This Agreement, including the Services Quote and attachments hereto, constitutes the entire agreement between the parties regarding its subject matter. This Agreement supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. No other representation, warranty, term or condition, other than as expressly set forth in this Agreement, shall be binding on Paragon Technology Inc..