Terms and Conditions for Use:
This agreement ("Agreement" or "Terms and Conditions") is between Drizzle and the Customer ("End User", "you" "Customer") of the IP Voice Service. Any IP Voice Services ("Services"), associated devices ("Devices") such as IP Telephones, Other Customer Premises Equipment ("CPE") or IP Voice software provided by (Drizzle) to Customer and used in connection with the Service shall be governed by the terms and conditions herein.
By accepting these terms or activating the service, the Customer acknowledges that they have read and understood the articles below or listed on our webpage. You must be of legal age (18 years) to enter into this agreement, and agree to be bound by these Terms and Conditions.
1. SERVICE
1.1 Term
Service is offered on a monthly basis for a term beginning on the date that Customer subscribes to Services and ending on the day before the same date in the following month. All contracted service terms are based on a 1 year minimum commitment. Subsequent terms of this Agreement automatically renew on an annual basis unless you provide (Drizzle) with written e-mail notice of non-renewal at least twenty (20) days before the end of the last monthly term in which the notice is given.
You are purchasing the Service "as is" for 1 year terms, meaning that if you attempt to terminate Service prior to the end of the contracted term, you will be responsible for all billable charges on the current account and the remaining standard monthly service charges on the remaining amounts until the annual expiration, including without limitation unbilled charges, plus any disconnect fee if applicable under the terms of this Agreement. Such charges and fees will immediately become due, payable, and chargeable to your credit card. Expiration of the term or termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement.
1.2 Service Activation
You must enter the End Users' Registered Location on the appropriate documentation and / or the appropriate webpage as instructed by (Drizzle) and formally accept the 911 and E911 limitations of the Service as required, prior to activation of the Service. Upon receipt of such agreement and confirmation, (Drizzle) will provide an e-mail to Customer confirming their Registered Location and that the Service including 911 Dialing feature has been activated for that phone line.
1.3 Equipment Requirements
The Service requires either standard session initiation protocol ("SIP") based customer premises equipment ("CPE"), or IP Voice software which is supplied by (Drizzle). Use of the Service without such equipment as provided is not recommended and will "NOT be supported by (Drizzle). (Drizzle) may terminate the Service at its sole discretion and without notice if any unauthorized equipment is used to access the Service or is used in a manner (Drizzle) deems harmful, illegal or conflicts with the network.
1.4 Residential Use of Service
Residential Service is provided for your own personal, residential, non-business and non-professional use. You agree that you will not resell or transfer the Service to any other person for any purpose. It is prohibited to use the service for any auto-dialing, continuous or extensive call forwarding, telemarketing, fax and voicemail blasting activities.
1.5 Use of Service
Customer agrees not to use the Service for any unlawful, fraudulent, improper, malicious or abusive purpose.
If (Drizzle) believes that the Service has been used for an unlawful, fraudulent improper, malicious or abusive purpose, (Drizzle) may forward details of the relevant communications and other information, including your identity, to the appropriate authorities for investigation and prosecution. (Drizzle) will also provide information in response to law enforcement requests, subpoenas, court orders, to protect it's rights and property and in the case where failure to disclose the information may lead to imminent harm to any third party.
1.6 Use of Service and Device by Customers outside the United States
(Drizzle) allows use of the Service to make calls both within and outside the United States. (Drizzle) does not offer or support any use of the Service or any device outside the United States. Any usage outside the United States will be at the risk of the Customer who will be solely responsible for ensuring that such activity does not violate any laws or regulations of that country, and/or violates the export laws of the United States and/or the import laws of that other country.
1.7 Copyright / Trademark / Unauthorized Usage of Device, Firmware or Software
The Service and any Device and any firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in any Device, and all Services, information, documents and materials on Drizzle's website(s), are protected by applicable trademark, copyright and/or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks, trademarks, trade names, logos and domain names (collectively "marks") of Drizzle's are and shall remain the exclusive property of (Drizzle) (or Drizzle's third party licensors, as applicable) and nothing in this Agreement shall grant you the right or license to use such marks. You acknowledge that you are not given any license to use the firmware or software used to provide the Service or provided to Customer in conjunction with providing the Service, or embedded in any Device, other than a nontransferable, revocable license to use such firmware or software in object code form (without making any modification thereto) strictly in accordance with the terms and conditions of this Agreement, and that any Device is exclusively for use in connection with the Service. You expressly agree that any Device is exclusively for use in connection with the Service and that (Drizzle) will not provide any passwords, codes or other information or assistance that would permit or enable you to use any Device for any other purposes.
1.8 Prohibited Use of Service
(Drizzle) reserves the right to immediately terminate Service at its sole discretion without prior notice, or if the Customer breach's any of the terms and conditions of Section 1.3, 1.4, 1.5, 1.6, 1.8; or use the Service or any Device for any other purpose which is prohibited within this Agreement.
Where a Service is terminated due to a breach of Section 1.3, 1.4, 1.5, 1.6, 1.8; or any other purpose which is prohibited within this Agreement, no refund of any outstanding credit in respect of any unused period of the full months service charge will be made. The Customer will also be liable to (Drizzle) for all payment without limitation of all outstanding and/or unbilled charges due in relation to this Agreement; including any disconnection fee which will immediately become payable and chargeable to your credit card.
1.9 Theft of Service or Device
The Customer agrees to notify (Drizzle) immediately, in writing or by calling Drizzle's customer support line, if any Device is stolen or if you become aware at any time that your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of Service. The Customer "is responsible for all usage and charges incurred on your account, whether or not these are expressly used or authorized by you". Customer will be liable for all use of the Service regardless of any abuse or stolen Device or fraudulent use of the Service.
1.10 Loss of Service Due to Power Failure or Internet Service/Broadband Outage
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; the Service will not function until power is restored. A power failure or disruption may require the Customer to reset or reconfigure Devices and other CPE equipment prior to using the Service. You also acknowledge and understand that the Service requires a fully functional broadband connection to the Internet (which may not be provided by (Drizzle) and that, accordingly, in the event of an outage of, or termination of broadband service with or by your Internet service provider ("ISP") and/or broadband provider, the Service will not function. If there is an interruption in the power supply and/or an ISP/broadband outage, the Service will not function until the power supply is restored and/or the ISP/broadband outage fixed. You will continue to be billed for the Service during such failures, terminations and/or outages unless and until you or (Drizzle) terminate the Service in accordance with this Agreement.
1.11 Service Distinctions
You acknowledge and understand that the Service is not a telephone service. Important distinctions exist between telephone service and the IP Voice Service provided by (Drizzle) and some but not all of these distinctions (including 911 calls to Emergency Services as detailed in Section 2) are described in this Agreement. The Service may be subject to different regulatory treatment than telephone service, which may limit or otherwise affect your rights of redress before Federal and State telecommunications regulatory agencies or judicial forums.
1.12 Incompatibility with other Equipment.
The Service may not be compatible with home security systems and Customer's may be required to maintain a telephone connection through your local exchange carrier in order to use any alarm monitoring functions for any security system installed in your home or business. In such instances, Customers are solely responsible for contacting the alarm monitoring company to test the compatibility of any alarm monitoring or security system with the Service. (Drizzle) expressly disclaims any responsibility for any lack of compatibility of the Service with any home security system or similar systems.
The Service may not be compatible with some broadband services and some broadband providers may provide modems that prevent the transmission of communications using the Service. (Drizzle) does not warrant that the Services will be compatible with any particular broadband services and expressly disclaims any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
1.13 Telephone Numbers Provided
Any telephone number(s) provided by (Drizzle) to the Customer as part of the Service will be leased and not sold. The Customer must not use any such telephone number with any other device other than the Device(s) without the express written permission of (Drizzle). (Drizzle) will not transfer or release any telephone numbers that it has assigned to Customer for use in conjunction with your Service upon termination. (Drizzle) reserves the right to change or cancel any telephone number assigned at its sole discretion.
1.14 Number Transfer on Service Termination
Upon termination of Service, (Drizzle) may, solely at Drizzle's discretion, release any telephone number that was ported (transferred or moved across) into (Drizzle) by Customer and is used in connection with your Service; to your new service provider, provided:
a) Your (Drizzle) account has been terminated and payment of all charges has been made, including any disconnect fees which are payable; and
b) Your new service provider is able to accept such number, and
c) Customer requests the transfer upon terminating the Service.
At Drizzle's sole discretion, you may incur a port away fee for any DID number(s) leaving Drizzle's network as this is a pass-through charge from Drizzle's underlying carrier(s).
1.15 No 900 Calls
The Service does not permit calls to 900 numbers, pay-per-call services or any other premium rate numbers.
1.16 No Operator Service
The Service does not support calls to operator services, or operator assisted calling, (including, without limitation, collect calls, third party billing calls or calling card calls).
1.17 Directory Assistance
Any call placed to Directory Assistance (411, 1-XXX-555-1212) including Toll Free numbers (1-800-555-1212) will incur a $0.99 per call charge as the call will be routed to our national Directory Assistance call center.
1.18 No Directory Listing
Phone numbers provided by (Drizzle) to the Customer will not be listed in any telephone directories. Where a phone number has been ported into (Drizzle) from another supplier at the End User's request, (Drizzle) accepts no liability for the accuracy or omission of any directory entry.
1.19 Calls from a Payphone
(Drizzle) does not allow calls originating from Payphones to toll free numbers on its network.
2. EMERGENCY SERVICES - 911 AND E911 DIALING LIMITATIONS
2.1 Use of 911 and E911 Services
*Definitions*
911: - Emergency call service typically used for delivering emergency calls to a public safety access point.
ERC: - Emergency Response Center
PSAP: - Public Safety Answering Point
VoIP: - Voice over IP Protocol
The Customer acknowledges and understands that (Drizzle)'s 911 and E911 Service does not support traditional 911 or E911 access to the Emergency Services in all locations and that there are a number of important differences from traditional 911 and E911 services. (Drizzle) offers a variation of 911 and E911 access, which is available only by using the Device provided by (Drizzle) as part of the Service. Drizzle's 911 dialing feature is not automatic and Customer must take additional affirmative steps as described in Section 2.3 of this Agreement to register the location where the Device will be located and Service used, in order to activate the 911 dialing features. Customer must separately register the location for each (Drizzle) phone number provided to them.
2.2 Awareness of visitors to Household
The Customer shall inform any household residents, guests and other third persons who may be present at the physical location where the Service is used of the non-availability of traditional 911 or E911 access from the (Drizzle) service together with the important differences and limitations of the 911 and E911service offered in comparison to traditional 911 or E911 dialing.
(Drizzle) will provide Customer with a sticker advising of the potential non-availability of dialing 911 or E911 from that Device which the Customer must attach to each Device used to provide the Service. The Customer must ensure that this sticker is maintained and not removed from the Device. If the Customer requires additional stickers, they should contact (Drizzle) customer care department at 1.877.205.4767
2.3 Registration of Physical Location Required
Each user of the (Drizzle) Service must register the physical location of where each device will be located and Service will be used, prior to activation of the Service. Only one physical location may be registered for each phone line used with the Service.
Should the Customer change, add or port a new phone number for association with any Device, Customer will be required to formally confirm the Registered Location for each device in accordance with Section 2.4 below, prior to activation of the Service.
Where the Customer moves any Device to another location, the Customer must immediately notify (Drizzle) and register the new location and effective date. Any change of Registered Location will not be valid until a confirmation e-mail has been sent to the End User.
The Customer can notify (Drizzle) of a change of Registered Location by either e-mail to support@Drizzle.com; or by calling our Customer Care Department on 1.877.205.4767. Any failure to register a new location will result in any 911 calls made from device continuing to be sent to the emergency center near the "old" address registered for that Device.
2.4 Confirmation of Registered Location
We will send an e-mail to you immediately following your subscription to the Service requesting that you enter details of your Registered Location for 911 / E911 purposes to an appropriate webpage. This webpage will also detail some important differences between (Drizzle) 911 and E911 services in comparison to traditional 911 and E911 services. Customer must enter details of their Registered Address and formally acknowledge that they accept and understand the limitations of (Drizzle) 911 and E911 service.
(Drizzle) Service will not be activated for any phone line that you are using with the Service, unless (Drizzle) receives details of the End Users Registered Address and formal acceptance of the 911 and E911 limitations. Upon such receipt and acceptance, (Drizzle) will provide an e-mail to Customer confirming that the Service including 911 dialing features has been activated for that phone line.
2.5 911 / E911 Service Delivery
Once the Customer has confirmed their Registered Address, (Drizzle) will pass this information onto a third party who will use the address of your registered location to determine the nearest emergency response center. Any 911 calls will then be forwarded to a general number at the appropriate Emergency center. You hereby authorize us to disclose your name and address to third-party service providers, including, without limitation, call routers, call centers and public service answering points, for the purpose of dispatching emergency services personnel to your registered location.
2.6 E911 / 911 Service Limitations
(Drizzle) offers an E911 Service in many locations which provides the Emergency Response Center with your Registered Location and phone number. In some cases however, the Center may not be able to receive this information or have this available at the time of call and will request this from the caller. In these circumstances the Operator answering the 911 call will not be able to automatically identify your location or call you back should the call be disconnected for any reason. You must therefore provide your address and phone number in order to get help. Some local emergency response centers may also not be manned by live operators 24 hours a day. Where this is the case, your call will be sent to a national emergency calling center and a trained agent will contact an emergency center near you to dispatch help.
In order for e911 address information to be passed to your local PSAP dispatcher, you must set your outbound caller ID value to the specific DID you are purchasing e911 service for. Therefore, by agreeing to these Terms & Conditions you the customer agree to set the outbound Caller ID number to the DID you have enabled e911 services for when making an outbound 911 emergency call. Failure to set the correct caller ID value will result in an $85 surcharge per 911 call.
2.7 Power Failures or Disruptions
Service including 911 dialing will not operate in the event of any power failure or disruption and will not function until power is restored. Following a power failure or disruption, the Customer may need to reset or reconfigure the Device prior to utilizing the Service, including 911 Dialing.
2.8 Internet or Broadband Outages, Suspension or Termination of Broadband or ISP Service
Any Service outages, suspensions or terminations of service by your broadband provider or ISP will prevent Service, including 911 dialing, from functioning.
2.9 (Drizzle) Service Outages
Any Service outages, suspensions or termination of your IP Voice account provided by (Drizzle) will prevent all Service, including 911 dialing, from functioning.
2.10 Other Service Outages
If there is a Service outage for any reason in connection with any network used to deliver 911 and E911 calls to the Emergency Response Center, such outage will prevent all Service, including 911 dialing, from functioning.
Such outages may occur for a variety of reasons, including, but not limited to, those reasons described elsewhere in this Agreement.
2.11 Network Delays
There may be an increased possibility that your 911 call may be delayed in its delivery to the Emergency Response Center, in comparison to 911 calls dialed using traditional public telephone networks.
2.12 Disclaimer of Liability and Indemnification regarding 911 accesses
You acknowledge and understand that (Drizzle) will not be liable for any service outages, failure to deliver 911 calls, incorrectly forwarding 911 calls, any inability to dial 911 or failure to access applicable emergency services using your Service. We disclaim all responsibility for the conduct of local emergency response centers and the national emergency calling center. Neither (Drizzle) nor its officers or employees or agents may be held liable for any claim, damage, or loss, and you hereby waive any and all such claims or causes of action, arising from or relating to our 911 dialing service unless such claims or causes of action arose from our gross negligence, recklessness or willful misconduct. You shall defend, indemnify, and hold harmless (Drizzle), its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses, by, or on behalf of, you or any third party relating to the absence, failure or outage of the Service regarding 911 dialing.
2.13 Alternate 911 Arrangements
You acknowledge that (Drizzle) does not provide traditional telephone services. If you are not comfortable with the limitations of the 911 dialing service, then we strongly recommend that you have an alternate means of accessing traditional 911 or E911 services.
(Drizzle) recommends either an alternate land line, or the use of your cell phone in cases where your service is interrupted or delayed in any way!
3. BILLING, CHARGES PAYMENTS AND DISPUTES,
3.1 Billing
The Customer must provide a valid e-mail address and a valid credit or debit card number when ordering the Service. If the card expires, you close your account, or your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise (Drizzle) at once by either e-mail to support@Drizzle.com; or by calling our Customer Care Department on 1.877.205.4767. (Drizzle) will bill all charges monthly in advance to your credit card or you may pay by check or money order. Your credit card will be charged for any first-time activation or setup fee, including but not limited to your First Month of Service, surcharges, applicable taxes and regulatory costs, termination fees, advanced feature charges, equipment purchases (including any initial Devices or CPE) and shipping and handling charges. Any charges in respect of International calls or other usage based items will be billed to the customer monthly in arrears; however (Drizzle) reserves the right to bill these items at more frequent intervals if the amount due at any time exceeds US$50.00. A statement detailing all charges will be e-mailed to the Customer on a monthly basis; or at more frequent intervals should it be necessary to bill international calls charges or other usage based items on a more regular basis.
(Drizzle) may make retrospective billing adjustments for any Service for a period of up to one hundred eighty (180) calendar days after the date a Service is rendered in respect of any unbilled costs or for an unlimited period if charges imposed by law.
Any usage charges including international calls will be billed in 6 (six) second increments with a 6 (six) second minimum duration minute except as otherwise set forth in the rate schedules found on our website.
3.2 Regulatory Recovery Fees
A Regulatory Recovery Fee of $1.50 will be charged to the Customer each month for each telephone number which has been assigned to a customer (including Virtual Numbers and Toll Free numbers). This fee is not a tax or charge required or assessed by any government, however offsets costs incurred by (Drizzle) in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments.
3.3 Taxes
The Customer is responsible for all applicable federal, state, municipal, local municipal or other governmental sales, use, excise, Universal Service Fees, value-added, personal property, public utility and other taxes, fees and charges now in force or enacted in the future, that arise from or as a result of Customer's subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your account billing or credit card. If you are exempt from payment of such taxes, you must provide (Drizzle) with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date (Drizzle) receives such certificate.
3.4 Payment
(Drizzle) accepts payments by check, cash, money order, or either credit or debit card. Your subscription to the Service authorizes (Drizzle), at its sole discretion to charge all amounts due as stated in the Agreement on the credit or debit card account number on file with (Drizzle), or on any other credit or debit card provided by Customer if the original card expires or is replaced.
Your authorization will remain valid until 30 days after (Drizzle) receives written notice from you terminating (Drizzle) authority to charge your credit or debit card. Failure to advise an alternative valid credit or debit card at that time will automatically result in (Drizzle) terminating your service and charging your credit or debit card for any outstanding charges, plus a termination fee if applicable.
(Drizzle) reserves the right to terminate your Service at any time at its sole discretion; if any charge to your credit or debit card on file with (Drizzle) is declined or reversed, if your credit card expires and you have not provided (Drizzle) with a new valid and approved credit card, or in case of any other non-payment of account charges.
In the event of Termination of Service for a declined or expired credit card, reversed charges or non-payment; the Customer will remain fully liable to (Drizzle) for all charges accrued before termination and for costs incurred by (Drizzle) to collect all monies owed by Customer, such as (but not limited to) collection costs and attorneys' fees.
3.5 Billing Disputes
You must notify (Drizzle) in writing within twenty (20) days of (Drizzle) invoice date if you dispute any (Drizzle) charges on that statement. The Customer will be deemed to have waived the right to dispute any charges, should written notification not be received within this period.
Notification of all billing disputes shall be sent to the following address:
Drizzle Inc.
14823 SE 82nd Dr.
Clackamas, OR. 97015
Or
support@Drizzle.com
Subject Line: Billing Dispute
Or
Customer Care Department 1.877.205.4767
4. CHANGES TO THIS AGREEMENT
(Drizzle) may change the terms and conditions of this Agreement, including prices from time to time. All such changes will be notified on (Drizzle) website at Drizzle.com and will supersede all previously agreed to electronic and written Terms and Conditions. Any changes to this Agreement will be considered given and effective on the date they are posted on (Drizzle) website; and no further notice need be given by (Drizzle) upon Customers continued subscription to, use of, or payment for the Service. It is the "sole responsibility" of the Customer to read and abide by all conditions of the use of service.
(Drizzle) may at their sole discretion provide additional notification of changes to the Terms and Conditions and a later effective date for these to the Customer by various other methods including (but without limitation to) email at the address provided by you, postcard, letter, recorded announcement, message on your bill, an insert in your bill, newspaper advertisement, or a call to your billed telephone number. Again, it is the Customers sole responsibility to maintain a correct email address for alerts and notifications.
5. TERMINATION AND DISCONTINUANCE OF SERVICE
(Drizzle) reserves the right to suspend or discontinue the Service generally, or to terminate your Service, at any time at our sole discretion. If (Drizzle) discontinues the Service generally, or terminates or suspends your Service at its discretion without a stated reason, Customer will only be responsible for charges accrued through the date of termination, including a pro-rated portion of the final month's charges. If your Service is terminated or suspended for any stated reason, including without limitation violation of any terms of this Agreement, or because of any improper use of the Service, you will be responsible for the full month's charges to the end of the current term (1 year), including without limitation unbilled charges, plus a termination fee if applicable, all of which immediately become due, payable and chargeable to your credit or debit card.
There will be no refunds for one-time/setup fees. (custom toll free numbers).
5.1 Disconnect Fee
Should the Customer terminate Service for any reason during the first 12 months following activation of the Service, Customer will be charged a termination fee of US$50.00 per line. This termination fee becomes due and payable immediately upon termination and will be billed directly to Customer's credit or debit card.
5.2 Return of Device
A Device may be returned to (Drizzle) within 14 days of the termination of Service to receive a credit for the $50.00 disconnect fee, provided that the Customer first returns the Device and all of its parts, accessories, documentation, packaging, and packaging materials in an undamaged and original condition. Customer is solely responsible for all costs of shipping the device back to (Drizzle). (Drizzle) will not credit Customer if the Device is damaged or not in its original condition as received by the Customer or if Customer does not fully comply with this Section.
(Drizzle) provides partial credit if the Device is in good condition (resell able), all parts are included and the Device and its parts work with the Service. The credit is at the sole discretion of (Drizzle), and will be NO less than the shipping charges incurred by the Customer to return Device.
6. DEVICES
6.1 Initial Receipt
If Customer initially receives packaging and/or a Device that is visibly damaged, Customer must retain the Device and individual packaging; note the damage on the carrier's freight bill or receipt, keep a copy, and immediately notify (Drizzle) immediately by either e-mail to support@Drizzle.com; or by calling our Customer Care Department on 1.877.205.4767.
6.2 Ownership of Device
The Customer owns the Device and bears all risk of loss of, theft of, casualty to or damage to the Device, from the time it is shipped to you until the time (if any) when it is received by (Drizzle) in accordance with Section 5.2) of this Agreement.
6.3 Warranties
Where a Device has been provided by (Drizzle) to the Customer which includes a separate limited warranty document with the accompanying materials; Customer must refer to this document for information on the limitation and disclaimer of certain warranties. Remedies for breach of any such warranties will be limited to those expressly set forth in such documentation and (Drizzle) makes no separate warranties either expressly or implied regarding the Device provided.
If at the time of receipt, your Device did not include a separate limited warranty document with the materials accompanying the device, you are accepting the Device "as is". You are not entitled to replacement, repair or refund in the event of any defect.
7. CONTENT
You are liable for any and all liability that may arise out of the content transmitted by or to you or Users using the Services. You shall assure that your or User's use of the Services and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. (Drizzle) reserves the right to terminate or suspend affected Services, and/or remove your or Users' content from the Services, if (Drizzle) determines at its sole discretion that such use or content does not conform with the requirements set forth in this Agreement or interferes with Drizzle's ability to provide Services to you or others or receives notice from anyone that Your or Users' use or content may violate any applicable laws or regulations. Drizzle's actions or inaction under this Section shall not constitute review or approval of your or Users' use or content. You will indemnify and hold harmless (Drizzle) against any and all liability arising from the content transmitted by or to you or by or to Users using the Services. A "User" means any person, whether authorized or unauthorized, using the Service and/or Device provided to you.
8. INDEMNIFICATION
The term "(Drizzle)" as used in this section shall mean Drizzle Inc. and its affiliates, employees, directors, officers, servants, agents and any other service provider that furnishes Services or Devices to you in connection with this Agreement, or the Service or any Device.
Customer is liable for any and all use of the Service and / or any Device and for any other person making use of the Service and / or any Device. Customer agrees to defend, indemnify and hold harmless (Drizzle) against all and any claims, losses, liability for damages, death, personal injury, losses, lost profit, lost revenue, property damage, fines, penalties, costs and expenses arising from the use of, or inability to use the Service or Device; any absence, failure, interruption, degradation, loss of power or Internet service, outage or delay of the Service or any Device; or inability to dial 911 to access emergency service personnel or other security, fire protection and prevention and law enforcement services; at any time by the End User, or other third party.
The provisions of this section shall survive termination of this Agreement.
9. WARRANTIES AND LIABILITY
The term "(Drizzle)" as used throughout this section shall mean Drizzle Inc. and its affiliates, employees, directors, officers, servants, agents and any other service provider that furnishes Services or any Devices to you in connection with this Agreement, or the Service or any Device.
9.1 No Warranties on Service
(Drizzle) makes no express or implied warranties regarding the Service or any Device, including, but not limited to any implied warranties of merchantability and / or fitness for a particular purpose. (Drizzle) does not warrant that the Service or any Device will meet the Customer's requirements, or that the Service or any Device will perform or function without failure, delay, interruption, error, degradation of voice quality, or loss of content, data or information. (Drizzle) does not authorize anyone to make any warranties of any kind on its behalf. Any statements given by (Drizzle) concerning the Service or any Device are strictly for informational purposes and are not given as a warranty of any kind.
(Drizzle) makes no express or implied warranty that any software supplied will be free from any virus or other code that is destructive or contaminating in nature and you are responsible for implementing and maintaining sufficient procedures to satisfy your particular requirements for protection from such viruses or other code.
9.2 Limitation of Liability
(Drizzle) shall at no time be liable for any delay or failure to provide the Service, including 911 dialing, at any time or from time to time, or for any interruption or degradation of voice quality that is caused by any of the following:
An act or omission of an underlying carrier, service provider, vendor or other third party;
Equipment, network or facility failure;
Equipment, network or facility upgrade or modification;
Force majeure events such as (but not limited to) acts of God, acts of nature, strikes, fire, war, riot, acts of terrorism and government actions;
Compliance with applicable law or regulations,
Equipment, network or facility shortage;
Equipment or facility relocation;
Service, equipment, network or facility failure caused by the loss of power to you;
any outage of, or blocking of ports by, your ISP or broadband service provider or other impediment to usage of the Service caused by any third party;
Any act or omission by you or any person using the Service or any Device provided to you; or
any other cause that is beyond our control, including, without limitation, a failure of or defect in any Device, the failure of an incoming or outgoing communication or the inability of communications (including, without limitation, 911 dialing) to be connected or completed, or forwarded.
Any claim against (Drizzle) must be made within 30 days of the event of the claim and (Drizzle) has no liability thereafter. (Drizzle)'s aggregate liability under this Agreement will in no event exceed the Service charges with respect to the affected time period.
9.3 Disclaimer of Liability for Damages
(Drizzle) disclaims, to the maximum extent permitted by law, any and all liability for damages relating to or arising out of the use of, or inability to use, the Service or any Device (regardless of whether such damage has occurred as a result of (Drizzle)'s negligence, or as a result of any statements or descriptions made by (Drizzle) concerning the Service or any Device), including, without limitation, all damages relating to or arising from: personal injury; wrongful death; property damage; loss of data; loss of revenue or profits; absence, failure, interruption, degradation, loss of power or Internet service; any outage or delay of the Service or any Device, or inability to dial 911 to access any emergency service personnel or other security, fire protection and prevention and / or law enforcement services. In no event shall (Drizzle) be liable for any indirect, incidental, special, punitive, exemplary, or consequential damages of any kind whatsoever, even if (Drizzle) has been advised of the possibility of such damages.
Without limiting the foregoing, (Drizzle) shall not be liable for any unauthorized access to or use of either (Drizzle)'s and / or End User's Networks or CPE, or for the unauthorized access to, or any alteration, theft, changes or destruction of Customer's data files, programs, procedures or information through either accidental, fraudulent means or devices, or any other methods (including viruses).
The limitations set forth herein apply to any and all claims whether founded in breach of contract, breach of warranty, product liability, tort or any other theories of liability and apply whether or not (Drizzle) was informed of the likelihood of any particular type of damages.
Customer agrees to reimburse (Drizzle) for all costs and expenses related to the defense of any claims against (Drizzle) in connection with this Agreement, including any attorney's fees and litigation costs. The provisions of this Section shall be applied to the fullest extent of the law; however if any part of this section is deemed to be unlawful, then the Section shall be construed to limit (Drizzle) liability to the fullest possible extent. This section of the Agreement shall survive termination of the Agreement.
10. RESOLUTION OF DISPUTES BY BINDING ARBITRATION
PLEASE READ THIS ENTIRE SECTION CAREFULLY. THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF BY A JUDGE, JURY, OR CLASS ACTION LAWSUIT. THE CUSTOMERWILL CONTINUE TO HAVE CERTAIN RIGHTS TO OBTAIN RELIEF FROM A FEDERAL OR STATE REGULATORY AGENCY.
10.1 Mandatory Binding Arbitration
All disputes arising out of or related to this Agreement, or in relation to the Service and/or any Device (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable theory) will be resolved by final and binding arbitration. The arbitration will be conducted by a single arbitrator and conducted in accordance with the American Arbitration Association's ("AAA") Commercial Arbitration rules. In conducting the arbitration and making any award, the arbitrator shall be bound by and strictly enforce the terms of this Agreement and may not limit, expand, or otherwise modify its terms, including awarding damages that are barred by this agreement. The arbitrator may not award relief in excess of what is provided within this Agreement, or award punitive or exemplary damages. All claims must be subject to individual arbitration and no dispute may be joined with another lawsuit or on class wide basis. Judgment on any Arbitration award may be entered in any court having jurisdiction thereof.
Any claim or course of action arising or related to the Service and / or any Device, must be filed for arbitration within six (6) months after the action or claim arose, or be forever barred.
10.2 Arbitration Information and Procedure
Prior to taking a dispute to arbitration, you must first write to us at (Drizzle) Address providing us with an opportunity to resolve the dispute. Prior to (Drizzle) taking a dispute to arbitration, (Drizzle) must first attempt to resolve it by contacting you. If the dispute cannot be satisfactorily resolved within sixty (60) days from the date the dispute was notified to the other party, then either party may contact the AAA in writing. Arbitrations under this Agreement shall be confidential as permitted by federal law. However, by filing for arbitration, you may elect to relieve both parties to the arbitration of confidentiality obligations.
11. GOVERNING LAW
This Agreement and the relationship between (Drizzle) and Customer shall be governed by the laws of the state of Oregon (Clackamas County) without regard to its conflict of law provisions. To the extent court action is initiated to enforce an arbitration award or for any other reason consistent with Section 10, you shall submit to the personal and exclusive jurisdiction of the courts located within the state of Oregon (Clackamas County) and waive any objection as to venue or inconvenient forum.
12. ENTIRE AGREEMENT
This Agreement and any modifications to it pursuant to Section 4, and the rates for Services found on (Drizzle) website, constitute the entire agreement between you and (Drizzle) and govern your use of the Service. This Agreement supersedes any prior agreements between you and (Drizzle) and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
13. SEVERABILITY
If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. Such invalidity or non-enforceability of any section of this Agreement will not invalidate or render unenforceable any other portion of this Agreement.
14. WAIVER OF RIGHTS
Any failure of (Drizzle) to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision.
15. PRIVACY
Drizzle's Service utilizes, in whole or in part, the public Internet and third party networks to provide voice communications services. The Customer therefore acknowledges and understands that (Drizzle) cannot fully guarantee the security of such services and that (Drizzle) is not liable for any lack of privacy which they may experience with regard to the Service. The Customer agrees that (Drizzle) can access all features of your account and the Services to determine whether the Services are being used fraudulently and/or in violation of this Agreement, and for any other purposes. (Drizzle) will not sell, rent or lease End Users personal identification information to third parties, unless with the prior permission of the Customer or as required by law or subpoena. Please refer to our Privacy Policy standards at www.Drizzle.com for further information
16. ASSIGNMENT
(Drizzle) may assign all or part of its rights or duties under the Agreement without notifying you. If we do that, we have no further obligation to you. You may not assign the Agreement or the Service or Device without our prior written agreement.
17. NO THIRD PARTY RIGHTS
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
18. SURVIVAL
The provisions of this Agreement relating to indemnification, limitations on liability, warranty limitations and disclaimers, resolution of disputes, billings and your obligation to pay for the Service provided and any additional usage charges, shall survive the termination of the Agreement and the termination of the Service.
