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PEERLOGIC VOIP SERVICES TERMS AND CONDITIONS
SIGNING UP FOR PEERLOGIC’S VOIP SERVICE CREATES A CONTRACT BETWEEN YOU AND US, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT. ANY ONE OF THE FOLLOWING ACTIONS CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THESE TERMS AND CONDITIONS: (1) ACCEPTING THE TERMS AND CONDITIONS ELECTRONICALLY DURING THE ORDERING PROCESS AND/OR UPON LOGGING ON TO USE YOUR SERVICE, (2) YOUR SUBMISSION OF AN ORDER, (3) YOUR USE OF THE SERVICE DESCRIBED HEREIN. THROUGH THESE ACTIONS YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT.
1. INTRODUCTION. These PEERLOGIC VOIP Service Terms and Conditions, together with any operating rules, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to time (collectively, the “Agreement”), constitutes the entire agreement between PEERLOGIC, Inc., an Arizona corporation (hereinafter referred to as “we,” “us” or “PEERLOGIC”) and the party set forth in the related registration order form (hereinafter referred to as “you,” “user” or “Customer”) regarding PEERLOGIC’S Service (as defined herein), and supersedes all prior agreements, discussions and writings between the parties regarding the subject matter of this Agreement. For purposes of this Agreement, the term “PEERLOGIC” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, attorneys and any other service provider that furnishes services or devices to you in connection with this agreement.
PURSUANT TO FCC REQUIREMENTS, PEERLOGIC IS REQUIRED TO ADVISE ITS CUSTOMERS OF ANY LIMITATIONS THAT E911 SERVICE MAY HAVE IN COMPARISON TO TRADITIONAL E911 SERVICE, WHICH ARE SET FORTH AT SECTION 34 BELOW AND IN THE E911 DISCLOSURE NOTICE AND
ACKNOWLEDGEMENT, WHICH CAN BE FOUND AT www.peerlogic.com/resources
2.1. “Device” means a PEERLOGIC-provided telephone, telephone adapter (“Adapter”), router, or other device used with the Services.
2.2. “Documentation” means user manuals and other documentation relating to the Services, which are available to Customer by PEERLOGIC
accessible via the Internet or in the form of printed media.
2.3. “Services” means the products and services that are being provided to you as described in any quote or order form, including, but not limited to, PEERLOGIC’S Unified Communication services, collaboration services, and any associated software, hardware or web-based platform. “Service” shall also include any additional Services provided to you as described in any addendum or amendment.
2.4. “Software” means any proprietary software owned by, licensed by, or which PEERLOGIC has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used in or used to provide the Services.
3. REVISIONS TO TERMS AND PRICING. From time to time, we may revise the terms and conditions of this Agreement (including, without limitation, any of the policies incorporated by reference) and the pricing (except during the term of a Minimum Commitment Contract) for the Service. Notice of revisions to the Agreement or pricing shall be posted on the PEERLOGIC Website (“the Website”) and deemed given and effective on the date posted to the Website. If you do not agree to the revision(s), you must terminate your Service immediately, subject to the Termination provisions provided in this Agreement. By continuing to use the Service after revision(s) are in effect, you hereby accept and agree to all such revisions.
4. CUSTOMER REPRESENTATIONS. You represent and warrant that your primary residence or business address is in the United States. You represent and warrant that you are at least eighteen (18) years of age or, as applicable, the age of majority in the country, state or province in which you reside, and that you possess the legal right and ability to enter into this Agreement. You represent and warrant that your name, user name, contact information and registered location are true and correct and if for business use, you are authorized to act on behalf of your company. You understand that PEERLOGIC relies on the information you supply and that providing false or incorrect information may result in Service provisioning and delivery delays, the suspension or termination of your Service and the inability of a 911-dialed call to be correctly routed to emergency service personnel, as further explained below. You agree to promptly notify PEERLOGIC whenever your personal or billing information changes (including, but not limited to, your name, address, e-mail address, telephone number, and credit card number and expiration date). You agree to be financially responsible for your use of the Service as well as for use of your account by others.
5. USE OF SERVICE AND DEVICE.
5.1. Business Plans. Service is provided to you as a business user, for your business and home office use. This means that you are not using it for
any personal, residential, nonbusiness and nonprofessional purpose. This also means that you are not to resell or transfer the Service to any other person for any purpose or make any charge for the use of the Service, without express written permission from PEERLOGIC in advance. PEERLOGIC reserves the right to immediately terminate, change the calling plan or modify the Service if PEERLOGIC determines, in its sole discretion, that you are using the Service for non-business or non-commercial use.
5.2. Restrictions. You shall not: (a) copy or adapt the Software or the Services for any purpose, except as specifically permitted under this Agreement;(b) use the Software or Services except in accordance with all applicable laws and regulations, and except as set forth in the Documentation; (c) reverse engineer, translate, decompile, or disassemble the Software or Services; (d) use the Software or Services in any outsourcing, application service provider, time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party other than the Customer; or (e) cause or permit the disabling or circumvention of any security mechanism contained in or associated with the Software or Services.
5.3 Residential Plans. If you subscribe to our residential services, we provide you with the Service and the Device solely for residential use. PEERLOGIC reserves the right to immediately terminate, change the calling plan or modify the Service if PEERLOGIC determines, in its sole discretion, that you are using the Service for non-residential use.
5.4. User Responsibility. You agree that you are responsible for all use(s) related to your account. You understand this means that you accept full liability and responsibility for your actions or the actions of anyone who uses the Service via your account with or without your permission. You acknowledge that PEERLOGIC will be sending you information, including your Password, via e-mail over the Internet. You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use or corrupt the information and telephone calls you transmit over the Internet. In order to maintain the security of your Service, you should safeguard your User IDs and Passwords, as well as the media access control (MAC) address of the Adapter. The MAC address is one of the pieces of information used by PEERLOGIC to authenticate customer calls and should not be shared.
5.5. Use of Service and Device by Customers Outside the United States. While PEERLOGIC encourages use of the Service within the United States to other countries, PEERLOGIC does not presently offer or support the Service to customers located in any countries other than the United States. PEERLOGIC’S Services are only for use by persons or entities whose primary residence or business address is in the United States. PEERLOGIC’S Services are designed to work generally with unencumbered high-speed internet connections. However, if the high-speed internet connection you are using is outside the United States and/or your ISP places restrictions on the usage of VoIP services, PEERLOGIC does not represent or warrant that use of the Service by you is permitted by any other jurisdictions or by any or all the ISPs. If you remove the Device to a country other than the United States or use the Service from there, you do so at its own risk, including the risk that such activity violates local laws in the country where you do so. You will be solely responsible for any violations of local laws and regulations or violations of ISP terms of service resulting from such use. You also agree to indemnify us for any claims, damages or expenses resulting from your use of the Services outside of the United States. PEERLOGIC reserves the right to disconnect Services immediately if PEERLOGIC determines, in its sole and absolute discretion, that you have used the Service or the Device in violation of applicable laws, including without limitation laws of jurisdictions outside the United States. You are solely liable for any and all use of the Service and/or Device by any person making use of the Service or Device provided to you.
5.6. Account Ownership. The owner of the account under which the Services are ordered shall be the legal entity (e.g., corporation, partnership, individual) that signs up for the Services with PEERLOGIC. If no legal entity is provided upon sign-up, the account owner shall be the owner of the credit card used to open such account. Subsequent changes to ownership must be supported by appropriate legal documentation. PEERLOGIC shall not adjudicate ownership-related disputes, or any other internal business dispute. If PEERLOGIC is unable to determine the valid owner of the account, PEERLOGIC reserves the right to suspend or terminate the account and Services.
5.7. Unlimited Toll-Free Calling. Unlimited Toll-Free Calling is limited to receiving calls originating in the United States only.
6. LOCAL NUMBER PORTABILITY. In the event you are transferring an existing phone number that currently is subscribed to another carrier, the following terms and conditions apply:
6.1 Authorization. You hereby authorize PEERLOGIC to process your order for the Service and to notify your local service provider of your decision to switch your local services to PEERLOGIC and to transfer your telephone number, and represent that you are authorized to take these actions. You may be required to complete a letter of authorization, provide us with a copy of your most recent bill from your service provider, as well as provide us with any other information required by your service provider to port your number. Failure to provide any information requested by PEERLOGIC or the third party services provider will delay the porting of the number to PEERLOGIC. You acknowledge that the porting of your numbers is dependent upon the cooperation of you and third parties not under the control of PEERLOGIC shall not be responsible for any delay in the port of your number and will not provide credit for any such delays.
6.2 Activation. You agree and acknowledge that you must install and activate your Device prior to the date that the number switch becomes effective. You will be assigned a temporary telephone number until your transfer is completed. You may place and receive calls using this temporary number until such time as your phone number is transferred.
6.3 Limitation. PEERLOGIC has the right to refuse to import a number if, in its sole discretion, it does not have the infrastructure to support the number.
6.4. Unauthorized Port Outs. You acknowledge and agree that telephone or facsimile numbers may be ported out from your Services or your account due to acts or omissions of third parties, and it may be difficult or impossible for PEERLOGIC to: (i) prevent such port-outs: (ii) retrieve numbers ported-out of your account; or (iii) port such numbers back into your account. PEERLOGIC has no responsibility or liability due to such port-outs.
7. SERVICE DISTINCTIONS. You acknowledge and understand that the Service is not a telephone service, and we provide it on a best efforts basis. Important distinctions exist between telephone service and the enhanced Service offering provided by PEERLOGIC. The Service is subject to different regulatory treatment than telephone service. This treatment may limit or otherwise affect your rights of redress before Federal and State telecommunications regulatory agencies or judicial forums. Events beyond our control may affect our service, such as power outages, fluctuations in the internet, your underlying ISP or broadband service, or maintenance. We will act in good faith to minimize disruptions to your use of and access to our service.
7.1. EMERGENCY SERVICES – 911 DIALING. You acknowledge and understand that PEERLOGIC 911 dialing is different than traditional 911 service. See complete 911 disclosure posted on our Web site at www.peerlogic.com. YOUR SERVICE WILL NOT BE ACTIVATED UNTIL PEERLOGIC RECEIVES AN AFFIRMATIVE ACKNOWLEDGMENT THAT YOU HAVE READ AND UNDERSTOOD PEERLOGIC’S 911 DISCLOSURE AGREEMENT.
7.2. No 0+ or Operator Assisted Calling; May Not Support X11 Calling. You acknowledge and understand that the Service does not support 0+ or operator-assisted calling, including, without limitation, collect calls, third party billing calls, 900, calling card calls or dial-around calls. Our Service may not support 311, 511, and other x11 services in one or more service areas.
7.3. No Directory Listing. The phone numbers you get from us will not be listed in any telephone directories. However, any phone numbers you transfer from your local phone company may be listed.
7.4. Incompatibility with Other Services.
7.4.1. Non-Voice Equipment Limitations. You acknowledge and understand that the Service is not compatible with all non-voice communications equipment, including but not limited to, some home and office security systems that are set up to make automatic phone calls, emergency phones in elevators, some aspects of satellite TV systems, digital entertainment systems, fax machines, modems and medical monitoring devices. By accepting this Agreement, you waive any claim you may have against PEERLOGIC for interference with or disruption of such systems due to the Service.
7.4.2. Certain Broadband, Cable Modem, and Other Services. There may also be other services with which our Service may be incompatible. Some providers of broadband service may provide modems that prevent the transmission of communications using the Service. We do not warrant that the Service will be compatible with all broadband services and expressly disclaim any express or implied warranties regarding the compatibility of the Service with any particular broadband service.
7.5 Use Outside of the United States. As previously noted there are limitations with the Service’s access to 911. PEERLOGIC’S Service does not
provide access to emergency services in any country outside of the United States. PEERLOGIC disclaims any obligation to provide you with access to emergency services in any jurisdiction other than the United States.
8. LENGTH OF SERVICE.
8.1. Service Term. We provide the Service for the term that you have signed up for. Your term begins on the date you first ordered service (the “Subscription Date”), or the date we successfully process your payment, whichever is later. It is not the day you receive the Device you ordered or the first time you use the Service. You are purchasing the Service for the full service term as set forth in the Order.
8.2. Automatic Renewal. PEERLOGIC shall automatically renew the Service for the same term on your Subscription Date unless you cancel your Service before the end of the current service term. See “Termination of Service” Section 8.4. The renewal begins on the day after the last day of your term. The renewal will be charged to your payment method (credit card) on file, which may include any payment method automatically updated by your issuing bank. If your credit card is declined, invalid, or payment is not made by the issuer of your credit card on your Subscription Date, without further notice PEERLOGIC reserves the right to automatically recharge the payment method until payment is received, the payment method is updated, or the Service is discontinued for nonpayment.
8.3. Our right to disconnect. You understand and agree that PEERLOGIC has the right to suspend, terminate or disconnect any part of Your Service generally at any time if:
8.3.1. We determine or reasonably believe that You are violating, or violated any applicable law;
8.3.2. We determine or reasonably believe that You materially breached this Agreement and/or the AUP;
8.3.3. We determine or reasonably believe that You used a fraudulent credit card to pay for the Services;
8.3.4. We determine or reasonably believe that You abused or harassed (verbally or otherwise) any PEERLOGIC employee, contractor, agent or representative;
8.3.5. We are ordered by law enforcement or other government agencies to suspend, terminate or disconnect your Services;
8.3.6. You bring any legal action or proceeding against PEERLOGIC, or participate in any class action lawsuit against PEERLOGIC;
8.3.7. A petition in bankruptcy is filed by or against You and such petition is not dismissed within thirty (30) days after the effective filing date thereof, or a trustee or receiver is appointed over You or Your material assets;
8.3.8. We determine that such action is necessary to protect maintain, or improve the Services, to prevent fraud or misrepresentation, to protect PEERLOGIC, its customers or other third party PEERLOGIC affiliates, or for any other good cause.
8.3.9. It is otherwise contemplated by this Agreement.
8.3.10. You fail to make payment.
All charges owed at the time of disconnection will be immediately payable. We will pursue collection for unpaid amounts on disconnected accounts and may report these unpaid charges to credit bureaus.
8.4. Termination of Service. In order to terminate the Service, contact our Customer Care Department, via email at service@Peerlogic.com or by calling 1-800-967-7330 prior to expiration of the current service term. Please refer to the PEERLOGIC Cancellation Policy posted on our Web site at Peerlogic.com.
9.1. Ownership and Risk of Loss. You will own the Device and bear all the risk of loss, theft, or damage regardless of the payment schedule selected for Services and Devices. Minimum Commitment Contracts for Services and Devices may include early termination fees. Returns of non-defective Devices outside of the initial 30-day moneyback guarantee period will not be accepted. Refer to the Cancellation policy for more information.
9.2. Promotional Devices. Devices included in a service offering at no charge may be previously used equipment. Unless otherwise provided in a Minimum Commitment Contract, Devices not returned upon cancellation of the Service will be charged to the customer. See Cancellation policy for details.
9.3 Replacement of a Defective Device. Devices purchased from PEERLOGIC will be covered by their respective factory warranties, if any, only. PEERLOGIC does not offer any warranty in addition to, or in replacement of any factory warranties. If a factory warranty applies, then prior to returning the equipment, you must contact PEERLOGIC at support@Peerlogic.com so that PEERLOGIC may determine whether a defect exists and to receive an RMA number, which is required along with the return. You must ship the equipment to the manufacturer at the address provided by PEERLOGIC in accordance with all RMA procedures. You have 7 days after receipt of an RMA to ship the equipment back to the manufacturer at the address we provide. You must pay all shipping fees. Once the manufacturer has received the equipment, a replacement will be sent to you in accordance with the factory warranty, if any. If an advance replacement is provided and the factory has not received the defective Device within 14 days or it was not in a returnable condition, (original carton, all packing materials, and parts in the same condition in which you received them), then PEERLOGIC will charge you for the second device or for the missing parts.
9.4. Receipt of damaged Devices. If you receive cartons or Devices that are visibly damaged, you must note the damage on the carrier’s freight bill or receipt and keep a copy. You must also keep the original carton, all packing materials, and parts in the same condition in which you received them from the carrier. You must then contact our Customer Care Department immediately at support@Peerlogic.com for return instruction.
9.5. Tampering with the Device. You may not change the electronic serial number or equipment identifier of your Device or perform a factory reset of your Device without first getting our written consent.
9.6. Prohibited Devices. You are prohibited from using the Services with any devices other than Peerlogic-approved devices received from retailers or from us.
10. FEES AND CHARGES.
10.1. We will publish fees and charges on our Web site. These fees and charges may change from time to time (except pricing will not change during the term of a Minimum Commitment Contract). New pricing will be effective the next day following posting to the Web site and may be applied to renewals of existing services. We may introduce new products and services at special introductory pricing. Introductory pricing will not be applied retroactively to existing services and may be applied for only limited periods of time. At our discretion, we may change introductory pricing. Certain service charges, such as Regulatory Recovery Fees, Universal Service Fund fees, and E911 fees, are subject to change from time to time and are applicable to ALL Customers regardless of a Minimum Commitment Contract.
10.2. Billing increments. All billing policies are defined by the specific package the customer chooses. Please refer to the Web site for exact billing policies.
10.3. Taxes. Taxes Customer is responsible for, and shall pay are any applicable federal, state, municipal, local 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 Device and will be billed to you. If the Customer is exempt from payment of such taxes, you will provide Peerlogic with an original government-issued certificate attesting to tax-exempt status. Tax exemption will only apply from and after the date, Peerlogic receives such certificate.
10.4. Charges for Directory Calls (411). We will charge you $1.25 for each call you make to Peerlogic directory assistance.
10.5. Charges for Calls from Public Payphones. We reserve the right to charge you for any tolls or fees resulting from calls you receive from public payphones.
10.6. Activation Fee. One-time activation fees and any other installation fees that may apply are specified on the Web site and vary by product and plan chosen.
10.7 Regulatory Recovery Fee. A Regulatory Recovery Fee shall be charged monthly to offset costs incurred by Peerlogic in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The Regulatory Recovery Fee may apply to every phone number assigned, including toll-free and virtual numbers.
10.8 Reinstatement Fee. Reinstating any service deactivated for non-payment of fees shall result in a reinstatement fee up to $25.
11. BILLING AND PAYMENT.
11.1. Billing. We will charge you in advance for each term of service. If you have selected a free trial offering, we will commence charging you for the Service at the expiration of the free trial period, unless we are notified of the contrary. When you subscribe to the Service, you must give us a valid email address and a payment method (credit card) that we accept. We reserve the right to stop accepting your payment method or your payments. You must advise us at once if your payment method expires, you close your account, your billing address changes, your email address changes, or your payment method is cancelled and replaced on account of loss or theft. Except for usage-based charges, we will bill in advance to your payment method all charges, fees, taxes, and surcharges for each service term. We will bill monthly as due immediately usage-based charges and any other charges which we decide to bill as due immediately. Bills will be posted to the customer portal and emailed to the email address on record.
11.2. Payment. When you subscribe to the Service, you authorize us to collect from your payment method. This authorization will remain valid until thirty (30) days after you terminate our authority to charge your payment method.
11.3. Collection. If we disconnect the Service, you will remain liable to us for all charges under this agreement and all the costs we incur to collect these charges, including, without limitation, collection costs and attorney’s fees. . You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest and charges due to insufficient credit.
11.4. Notices. You understand that it is difficult for us to distinguish between credit and debit cards. You agree to waive your rights under Regulation E to receive ten (10) days advance notice from us regarding the amount that we will debit from your account. While we may send you messages about your billing from time to time, we are not obligated to do so. We may change or cease our messages at any time without notice to you.
11.5. Billing Disputes. You must notify Peerlogic in writing within seven (7) days after receiving your credit card statement or from the time funds are debited from your bank account if you dispute any Peerlogic charges on that statement or that have been debited from your account, or such dispute will be deemed waived. Notification of all billing disputes shall be sent to the following address: billing@Peerlogic.com.
12. PRICING AND PAYMENT.
12.1. Prices and Fees. Peerlogic fees and charges for the Service are supplied to you during the ordering process unless otherwise provided for in this Agreement. You agree to pay the applicable one-time and recurring charges. You further agree that any taxes and other charges, including but not limited to, account setup fees, Adapter fees, Device charges, shipping and handling and other nonrecurring charges will be charged to your credit card. Recurring charges will be billed and automatically charged to your credit card on the first day of every billing cycle. Your billing cycle will begin on the anniversary date of your subscription date as defined in section 8.1.
12.2. YOU AGREE THAT WE MAY CHARGE YOUR CREDIT CARD FOR ALL AMOUNTS DUE TO US WITHOUT ADDITIONAL NOTICE OR CONSENT. You agree to provide a credit card and not a debit card. If your card is a combination credit card/debit card, you authorize us to use it as a credit card. If your issuing bank automatically provides us with an updated credit card, you agree that we may charge this new credit card for all amounts due to us without additional notice or consent. You also agree to indemnify us for any claims, damages or expenses resulting from providing a debit card instead of a credit card. If your credit card is declined, is invalid or payment is not made by the issuer of your credit card at the time that a charge is attempted, you will not be able to use the Service until your account is paid in full.
12.3. Credit Balance Account. Your credit balance account has been established to cover incidental charges on your account that are not covered by your subscription fee. For example, international calls, toll-free charges, Directory Assistance calls, and taxes related to these calls are automatically charged to your credit balance account. A certain credit limit will be set on your account based upon your service plan and credit history. When the balance of your credit account reaches the credit limit, your account will be unable to make additional calls until the balance is paid down. You can make payments to reduce your credit balance account at any time by contacting our Customer Care Department at 1-800-967-7330 or by email to support@Peerlogic.com. Any credit balance used as of your subscription renewal or monthly anniversary date will be charged to the credit card on file.
12.4. Credit Terms. All Services provided to You and covered by the Agreement shall at all times be subject to credit approval or review by Peerlogic. You will provide such credit information or assurance as is requested by Peerlogic at any time. Peerlogic, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit.
12.5. Discontinuation of Service for Nonpayment. The Service to you may be denied or discontinued without notice at any time in the event your credit card provider denies or discontinues providing credit to you for any reason, or you fail to provide us with a new credit card expiration date before the existing one expires. If your credit card fails for any reason during the ordering process or any regular or monthly billing process, you will have 24 hours to provide Peerlogic your new credit card information. If the credit card issue is not resolved within 48 hours, Peerlogic will deactivate the Service. If your credit card is approved within 24 hours, your calling plan and the billing cycle will remain unchanged. We reserve the right to modify the per-minute calling plan at any time. You agree to pay all charges owed to Peerlogic, including but not limited to the reinstatement fee for reactivated services. In the event Peerlogic utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all expenses incurred to recover such monies, including attorneys’ fees.
12.6. Promotions. Peerlogic may limit the number of promotions you may be eligible for in a given period. Promotions may be canceled by
Peerlogic at any time.
12.7. Cancellation Policy. Peerlogic cancellation policies are outlined in the Cancellation Policy posted at our Web site at Peerlogic.com and are incorporated into this policy with this reference. All cancellation requests must be submitted in the form of an email ticket to support@Peerlogic.com or by calling our Customer Care Department at 1-800-967-7330 and must be made prior to the expiration of the Service term. See the cancellation policy for details. Changes to the Cancellation Policy may be made at any time without notice to you and is effective the day following posting to our Web site.
13. Acceptable Use Policy. You agree to comply with the Peerlogic Acceptable Use Policy (“AUP”), which is posted on our Web site at Peerlogic.com/
terms-and-conditions.html and is incorporated into this policy with this reference. Changes to the AUP may be made at any time without notice to you and is effective the day following posting to our Web site.
14. MANAGEMENT OF YOUR DATA AND COMPUTER.
14.1. System Management and Service Performance. You are solely responsible for obtaining, installing, configuring and maintaining suitable equipment, including your computer and telephone and software, including any necessary system or software upgrades, patches or other fixes which are or may become necessary to access the Service and to operate your computer. Peerlogic will only provide technical assistance with respect to your Peerlogic-provided Adapter.
14.2. Monitoring of Network Performance. Peerlogic automatically measures and monitors network performance. We also will access and record information about your computer’s profile and settings and the installation of the Software in order to provide customized technical support. No adjustments to your computer settings will be made without your permission. You hereby consent to PEERLOGIC’S monitoring of your Internet connection and network performance, and the access to and adjustment of your computer settings, as set forth above, as they relate to the Service.
14.3. Storage of User Information. Peerlogic is not obligated to store Your communications logs, voicemails, faxes, e-mails, or other messages and does so only as a convenience to You. You agree that Peerlogic has no responsibility or liability whatsoever for the deletion or failure to store any call log information, voicemails, faxes, e-mails, messages, and/or other communications maintained or transmitted by the Services. You acknowledge and agree that Peerlogic may establish limits as to the size of communications that Peerlogic transmits or stores and the duration for which Peerlogic stores any communications.
15. LIMITATION ON WARRANTIES, REMEDIES AND LIABILITY, INDEMNIFICATION.
15.1.1 PEERLOGIC MAKES NO EXPRESS OR IMPLIED WARRANTY REGARDING THE SERVICE OR DEVICE OR THE INSTALLATION OF SAME AND DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. PEERLOGIC DOES NOT WARRANT THAT THE SERVICE OR DEVICE WILL FUNCTION WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION. Peerlogic DOES NOT AUTHORIZE ANYONE, INCLUDING BUT NOT LIMITED TO ITS EMPLOYEES, AGENTS OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. CUSTOMER AGREES THAT IT ACCEPTS THE SERVICE AND DEVICE “AS IS” AND THAT CUSTOMER IS NOT ENTITLED TO REPLACEMENT OR REFUND IN THE EVENT OF ANY DEFECT. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST Peerlogic TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
15.1.2. WE WILL NOT GIVE YOU CREDIT FOR ANY INTERRUPTION OF PEERLOGIC SERVICE, INCLUDING INTERNATIONAL CALLING SERVICES. 15.2. LIMITATION OF LIABILITY.
15.2.1. IN NO EVENT SHALL PEERLOGIC BE LIABLE TO YOU, YOUR REPRESENTATIVES OR AUTHORIZED ASSIGNS OR ANYONE ELSE FOR ANY INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, LOSS OF REVENUE OR PROFITS, RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, DELAY, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT. NOR SHALL PEERLOGIC 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 CAUSED BY ANY REASON INCLUDING BUT NOT LIMITED TO THE FOLLOWING: AN ACT OR OMISSION OF AN UNDERLYING CARRIER, SERVICE PROVIDER, VENDOR OR THIRD PARTY, EQUIPMENT, NETWORK OR FACILITY FAILURE, EQUIPMENT, NETWORK OR FACILITY UPGRADE, SERVICE, MAINTENANCE, MODIFICATION, SHORTAGE, OR RELOCATION, FORCE MAJEURE EVENTS SUCH AS BUT NOT LIMITED TO ACTS OF GOD, ADVERSE WEATHER, STRIKES, FIRE, WAR, RIOT, GOVERNMENT ACTIONS OR TERRORISM, SERVICE, DEVICE, EQUIPMENT, NETWORK OR FACILITY FAILURE CAUSED BY THE LOSS OF POWER OR INTERNET SERVICE TO PEERLOGIC OR CUSTOMER, AND ANY CAUSE THAT IS BEYOND PEERLOGIC’S CONTROL, INCLUDING WITHOUT LIMITATION THE FAILURE OF AN INCOMING OR OUTGOING COMMUNICATION, THE INABILITY OF COMMUNICATIONS TO BE CONNECTED OR COMPLETED, INCLUDING 911 DIALING, OR DEGRADATION OF VOICE QUALITY. PEERLOGIC SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO PEERLOGIC’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISES, EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF PEERLOGIC’S NEGLIGENCE OR OTHER ACTS OR OMISSIONS. PEERLOGIC’S LIABILITY FOR ANY ACT OR OMISSION SHALL IN NO EVENT EXCEED THE SERVICE CHARGES WITH RESPECT TO THE AFFECTED TIME PERIOD. THE LIMITATIONS SET FORTH HEREIN APPLY TO ALL CLAIMS FOUNDED IN BREACH OF CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT, AND ANY AND ALL OTHER THEORIES OF LIABILITY, AND APPLY WHETHER OR NOT PEERLOGIC WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGE. FURTHER, YOU AGREE TO REIMBURSE PEERLOGIC FOR ALL COSTS AND EXPENSES RELATED TO THE DEFENSE OF ANY SUCH CLAIMS, INCLUDING ATTORNEYS’ FEES AND LITIGATION COSTS. THE PROVISIONS OF THIS SECTION SHALL BE APPLIED TO THE FULLEST EXTENT OF THE LAW, BUT IF ANY PORTION OF THIS SECTION IS DETERMINED TO BE UNLAWFUL, THEN THIS SECTION SHALL BE CONSTRUED TO LIMIT LIABILITY AGAINST PEERLOGIC TO THE FULLEST EXTENT POSSIBLE UNDER THE LAW.
16. INDEMNIFICATION AND WAIVER OF CLAIMS.
16.1. INDEMNIFICATION. 16.1.1. YOU ARE LIABLE FOR ANY AND ALL USE OF THE SERVICE AND/OR DEVICE BY YOURSELF AND BY ANY PERSON MAKING USE OF THE SERVICE OR DEVICE, AND YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS PEERLOGIC AGAINST ANY AND ALL LIABILITY FOR ANY SUCH USE THAT FAILS TO COMPLY WITH THIS AGREEMENT. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS PEERLOGIC FROM ANY AND ALL CLAIMS AND/OR LIABILITY FOR DAMAGES, PERSONAL INJURY, DEATH, FINES, PENALTIES, COSTS, EXPENSES, LOSSES, LOST PROFIT, LOST REVENUE, PROPERTY DAMAGE, ATTORNEYS’ FEES, AND ANY AND ALL OTHER DAMAGES OF WHATEVER KIND AND NATURE RELATING TO OR ARISING OUT OF THE SERVICE, THE USE OF OR INABILITY TO USE THE SERVICE, THE ABSENCE, FAILURE OR OUTAGE OF THE SERVICE, THE INABILITY TO DIAL 911 OR E911 TO ACCESS EMERGENCY SERVICE PERSONNEL, THE INABILITY TO DIAL SECURITY, LAW ENFORCEMENT OR
FIRE PREVENTION/ PROTECTION SERVICES OR SYSTEMS, THE DEVICE, THE USE OF AND/OR INABILITY TO USE THE DEVICE, THE INSTALLATION OF THE DEVICE, AND/OR THIS AGREEMENT UNLESS THE CLAIMS OR CAUSES OF ACTION ARISE FROM OUR GROSS NEGLIGENCE, RECKLESSNESS, OR WILLFUL MISCONDUCT. THIS SECTION SHALL SURVIVE THE AGREEMENT.
17. CONTENT. You are liable for all liability that may arise from the content you transmit to any person, whether or not you authorize it, using the Service or Device. You promise that you and anyone who uses the Service and all your and their content comply at all times with all laws, regulations, and written and electronic instructions for using the Service and the Device.
18. MISCELLANEOUS LEGAL CONSIDERATIONS.
18.1. Governing Law. This Agreement and the relationship between you and Peerlogic shall be governed by the laws of Arizona without regard to its conflict of law provisions. Any claim brought pursuant to this Agreement shall be brought in a court of competent jurisdiction within the State of Arizona and venue for any such claim shall be proper in the appropriate state or federal court located in Maricopa County, Arizona.
18.2. No Waiver of Rights. Our failure to exercise or enforce any right or provision of this agreement will not constitute a waiver of the right or provision. Peerlogic reserves all of its rights at law and equity to proceed against anyone who uses the Services or Device illegally or improperly. All determinations by Peerlogic under this Agreement and exercise of its rights are made and done in our sole and absolute discretion.
18.3. No Third Party Beneficiaries. If you are not a party to this Agreement, you do not have any remedy, claim, liability, reimbursement, or cause of action. This Agreement does not create any other third party beneficiary rights.
18.4. Entire Agreement. This Agreement, the Order, the applicable service description, the AUP, or any reference herein to the content of PEERLOGIC’S websites constitute the entire agreement between you and Peerlogic and govern your use of the Service, superseding any prior agreements between you and Peerlogic and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter. No changes to this Agreement shall be binding upon either you or Peerlogic unless they are agreed to in writing by both parties.
18.5. Severability. If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement will remain valid and enforceable. This invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this agreement.
19. DISPUTE RESOLUTION AND BINDING ARBITRATION.
19.1. It is important that you read this entire section carefully. This section provides for resolution of disputes through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury.
19.2. Arbitration. Peerlogic and you agree to arbitrate any and all disputes and claims between you and Peerlogic except with respect to claims for amounts owed for services rendered. Arbitration means that all disputes and claims will be resolved by a neutral arbitrator instead of by a judge or jury in a court. This agreement to arbitrate is intended to be given the broadest possible meaning under the law. It includes , but is not limited to: disputes and claims arising out of or relating to any aspect of the relationship between you and Peerlogic, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; disputes and claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); disputes and claims that may arise after the termination of this agreement; disputes and claims that are currently the subject of individual litigation; disputes and claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and disputes and claims concerning the scope of this arbitration provision. References to “Peerlogic,” “us” and “you” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of the Service under this agreement or any prior agreements between you and Peerlogic.
19.3. Informal Resolution of Disputes. Our Customer Care Department can resolve most customer concerns quickly and to the customer’s satisfaction. If you have a dispute or claim against us, you should first contact the Peerlogic Customer Care Department at (800) 967-7330 and provide in detail, including documents or analysis supporting your position, the basis of your claim. Customer care shall be provided with 14 days in which to research and respond to your claim.. In the event your dispute or claim is not resolved to your satisfaction, you may seek to have that dispute or claim resolved as set forth below.
19.4. Formal Notice of Disputes A party who intends to seek arbitration must first send to the other party a written “Notice of Dispute” setting forth in detail, including submission of supporting documentation, the grounds of your dispute. The Notice of Dispute to Peerlogic must be sent to Peerlogic, attention “General Counsel,” by certified mail addressed to 6900 E. Camelback Road, Suite 805 Scottsdale, AZ 85251.
19.4.1. The Notice of Dispute must describe the nature and basis of the dispute or claim and set forth the specific relief sought. If you and Peerlogic do not reach an agreement to resolve the dispute or claim within thirty (30) days after the Notice of Dispute is received, you or Peerlogic may commence an arbitration proceeding. The amount of any settlement offer made by you or Peerlogic shall be non-discoverable and shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Peerlogic is entitled.
19.5. Arbitrator and Arbitral Rules. The arbitration shall be administered by the American Arbitration Association (“AAA”). You may contact the AAA by telephone at 1-800-778-7879, by email at AAAUniversity@adr.org, or by mail at 3200 N. Central Ave, Ste 1560, Phoenix, AZ 85012. The arbitration shall be governed by the AAA’s Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”), as modified by this Agreement. The AAA Rules are available at www.adr.org or by calling the AAA at 1-800-778- 7879.
19.6. Waiver of Judge or Jury Trial. You and Peerlogic agree that, by entering into this agreement, you and Peerlogic are waiving the right to a trial by judge or jury.
19.7. Waiver of Class Actions. You and Peerlogic agree that the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. You and Peerlogic agree that you and Peerlogic may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. You and Peerlogic agree that, unless you and Peerlogic agree otherwise, the arbitrator may not consolidate more than one person’s or entity’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific waiver of class actions provision, or any portion thereof, is found to be unenforceable, then the entirety of this dispute resolution and binding arbitration provision shall be null and void.
19.8. Statute of Limitations. You must present a claim within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute (except for billing disputes which are subject to section 10 and 11 of the agreement), or you waive the right to pursue a claim based upon such event, facts, or dispute.
19.9. Exceptions to Arbitration Agreement. Notwithstanding the obligation to arbitrate and any other provisions to the contrary herein, you and we agree that with respect to claims for unpaid invoices: (a) we may take our dispute to small claims court, if the contained dispute qualifies for hearing by such court; (b) if you fail to timely pay amounts due, we may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the Agreement; (c) you or we may take any disputes over the validity of any party’s intellectual property rights to a court of competent jurisdiction; (d) any dispute related to or arising from allegations associated with fraudulent or unauthorized use, theft, or piracy of service may be brought in a court of competent jurisdiction; and (e) either you or we may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of you or Peerlogic, pending the completion of arbitration.
19.10. Modification of Arbitration. If Peerlogic makes any substantive change to this arbitration provision, you may reject any such change and require Peerlogic to adhere to the language in this provision.
19.11. Venue/Jurisdiction. All claims for Arbitration shall be submitted to and heard by the office of AAA located in Maricopa County, Arizona. Should an evidentiary hearing be required by the Arbitrator, such hearing shall be heard in Maricopa County, Arizona.,
21. EXPORT COMPLIANCE. You agree to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations, administered by the Department of Commerce, Bureau of Industry and Security. You also expressly agree that Customer shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Service or Device, including, without limitation, to any destination, company, or person restricted or prohibited by U.S. export controls.
22. RECORDING CONVERSATIONS. Certain Peerlogic Services provide a function that allows You to record individual telephone conversations. The laws regarding the notice, notification, and consent requirements for recording conversations vary from state to state. In some states, You are required to obtain consent from all parties to a record a conversation. You are solely responsible for complying with all federal, state, and local laws in any relevant jurisdiction when using this feature. Peerlogic expressly disclaims all liability with respect to your recording of telephone conversations. You hereby agree to fully, finally, and forever release, discharge, hold harmless, and fully indemnify Peerlogic from and against any damages or liabilities of any kind related to Your recording of any telephone conversations using the Services. You agree that Peerlogic, may at its sole discretion, record any call between Peerlogic and You for Peerlogic quality control purposes.
23. ASSIGNMENT. Peerlogic 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.
24. 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.
25. CALEA. Peerlogic intends to fully comply with the Communications Assistance for Law Enforcement Act (“CALEA”). By using the Service, you hereby agree and consent to PEERLOGIC’S right to monitor and otherwise disclose the nature and content of your communications if and as required by CALEA without any further notice to you.
26. FORCE MAJEURE (EVENTS BEYOND PEERLOGIC’S CONTROL). Peerlogic shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, government intervention, embargoes, strikes, labor difficulties, equipment failure, late delivery by suppliers or other difficulties as may occur in spite of PEERLOGIC’S best efforts.
27. SOFTWARE COPYRIGHT Any software used by Peerlogic to provide the Service and any software provided to you in conjunction with providing the Service is protected by copyright law and international treaty provisions. You may not copy the software or any portion of it. Furthermore, you may not delete, alter, cover, or distort any copyright or other proprietary notices or trademarks provided to you as part of the Service.
28. COPYRIGHT AND TRADEMARK; COPYRIGHT INFRINGEMENT; DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) NOTICE. Our Web site content, our materials, services, logs,
service marks and trademarks are protected by trademark, copyright, or other intellectual property laws, and international treaty provisions. Infringement by you may result in civil or criminal prosecution.
ACCEPTABLE USE POLICY
PEERLOGIC ACCEPTABLE USE POLICY
1.1 Service” – shall mean the products and services that are being provided to you as described in any quote or order form, including, but not limited to, Peerlogic’s Uniﬁed Communication services, collaboration services, the Messaging Services, and any associated software, hardware or web-based platform. “Service” shall also include any additional Services provided to you as described in any addendum or amendment.
1.2 “Appliance” – shall mean a Peerlogic-provided telephone, telephone adapter (“Adapter”), router, or other Peerlogic provided Appliance used with the Services.
1.3 “Fax Broadcasting” and “Fax Blasting” – shall mean sending the same message by fax to six (6) or more recipients at the same time, one after another.
2. Unlimited Voice Services. Peerlogic reserves the right to periodically review usage levels of unlimited minute service plans (“Unlimited Plan(s)”) to ensure that you are not using such service in violation of this AUP and if such an abuse or violation is discovered to terminate or adjust the plan as appropriate. You agree to use the Unlimited Plan for traditional voice or fax call of a duration comparable to that of the average residential or small business customer presently utilizing Peerlogic’s service and will not employ methods, Appliances or procedures to take advantage of unlimited plans by using the voice or fax services excessively or for means not intended by Peerlogic. Excessive use is deﬁned by Peerlogic as use that substantially exceeds the average call volume or duration used by all other Peerlogic Unlimited Plan customers, and attempting to originate or terminate multiple concurrent phone calls through any single line of service. The following types of services are speciﬁcally prohibited and may not be accessed through Peerlogic’s unlimited voice service plan: conference calling, monitoring services, data transmissions, transmission of broadcasts or transmission of recorded material. Peerlogic may terminate your service or change your service plan if, in its sole discretion, Peerlogic determines that your use of the Unlimited Plan violates this prohibition or is otherwise “unreasonable” or results in abuse of the Unlimited Plan.
2.1. We consider your use of our Service to be “unreasonable” and therefore subject to immediate termination if you:
2.1.1 re-sell, re-brand, re-supply, re-market or commercially exploit our Unlimited Plans, without our written consent, in order to aggregate traﬃc from more than one customer over an “unlimited” line or trunk;
2.1.2. set up routing functionality such that only outbound long-distance traﬃc is sent over the Unlimited plan; or
2.1.3 engage in any other conduct which is fraudulent, illegal, harassing or results in signiﬁcant network congestion, or degradation.
2.2 We consider your use of our Service to be “abusive” and subject to immediate termination or adjustment if you utilize:
2.2.1 Autodialing, predictive-dialing, or robo-dialing.
2.2.2 Continuous, repetitive or extensive call forwarding.
2.2.3 Harassing, threatening or abusive calls.
2.2.4 Unsolicited calls if such unsolicited activities could reasonably be expected to, or actually do in fact, provoke complaints.
2.2.5 False information for you or any users of the Service.
2.2.6 Continuous or extensive chat line or conference call participation.
2.2.7 Free conference calling or similar services that participate in traﬃc simulation practices or schemes that result in excessive charges.
2.2.8 Repetitive and/or continuous messaging or calling to the same destination number if such activity could reasonably be expected to, or in fact actually does, provoke complaints.
2.2.9 Long duration calls (deﬁned as calls to the same number in excess of four hours (continuous or cumulative) within a 24 hour period) and/or calls placed to speciﬁc numbers/destinations for the purpose of generating charges or fees for or with a third party.
2.2.10 Calls that do not consist of uninterrupted live human voice dialog by and between natural human beings.
2.2.11 Continuous call session connectivity
2.2.12. Fax Broadcasting
2.2.13. Fax Blasting
2.3 SHORT DURATION CALLS: Peerlogic reserves the right to charge all short duration calls (calls under 10 seconds in length) a ten-cent (10¢) per call assessment if Peerlogic determines, in its sole discretion, that you have an excessive volume (more than 10% of your total calls in any given month) of calls that consist of such short duration calls. You agree that calls, as deﬁned herein for billing purposes, shall include all call traﬃc when accepted by Peerlogic or its underlying carriers for termination whether such calls are terminated or not for any reason (“incomplete calls”). Peerlogic will bill you for all calls completed to Peerlogic’s facility or equipment or that of Peerlogic’s underlying carriers regardless if the call is completed to the called party. Accordingly, you under- stand your obligations in regards to incomplete calls and agrees that Peerlogic shall incur no liability as a result of or, in relation to, said incomplete call.
3. Lawful purposes only. You may not use our Service or your Appliance in any way that is illegal, improper or inappropriate. A non-exhaustive list of examples of illegal, improper or inappropriate uses of our Service and/or Appliances includes:
3.1 Interfering with our ability to provide Service to you or other customers, or avoiding your obligation to pay for the Service within the time frame designated for payment.
3.2 Use of the Service to threaten, abuse, harass, defame, deceive, defraud, interfere or invade another’s privacy or engage in any similar behavior.
3.3 Use our Service or your Appliance for: auto-dialing; continuous, repetitive or extensive call forwarding, telemarketing (including charitable or political solicitation or polling), fax or voicemail broadcasting or blasting.
3.4 Use our Service or your Appliance to: impersonate another person; send bulk unsolicited messages; use robots, data mining techniques, or other automated Appliances or programs to catalog, download, store, or other-wise reproduce or distribute information from our Service or use any automated means to manipulate our Service
3.5 Violate any law, rule, or regulation; violate any third party’s intellectual property or personal rights; or exceed your permitted access to our Service.
3.6 Use the Service for transmitting or receiving any communication or material of any kind which would constitute a criminal oﬀense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or encourage conduct that would constitute a criminal oﬀense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law.
4 Right of Termination. In addition to Peerlogic’s right to terminate any service for non-payment, Peerlogic reserves the right to terminate the Service immediately and without advance notice if Peerlogic, in its sole discretion, believes that you have violated any of the above restrictions, leaving you responsible for the full charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee and any penalties, all of which immediately become due and payable.
5 Monitoring. We may monitor the use of our Service for violations of this agreement. We may, without liability, remove or block all communications if we suspect a violation of this agreement, or if we think it necessary in order to protect our Service, or Peerlogic, its parent, aﬃliates, directors, oﬃcers, agents, and employees from harm.
5.1 Providing information to authorities and third parties. If we believe that you have used our Service or your Appliance for an unlawful purpose, we may forward the relevant communication and other information, including your identity, to the appropriate authorities for investigation and prosecution. You consent to our forwarding of any such communications and information to these authorities. In addition, we may disclose your name, telephone number, credit card information, and other personal information, any communications sent or received by you, and any other information that we may have about your account, including but not limited to, types of service, length of service, MAC address(es), IP address(es), email address(es), registered 911 address, and all other account information, as follows: in response to law enforcement or other governmental agency requests; as required by law, regulation, rule, subpoena, search warrant, or court order; as necessary to identify, contact, or bring legal action against someone who may be misusing the Service, the Appliance, or both; to protect Peerlogic’s rights and property; or in emergency situations where disclosure of such information is necessary to protect Peerlogic customers or third parties from imminent harm.
5.2 Use of Service and Appliance by Customers Outside the United States. While Peerlogic encourages use of the Service within the United States to other countries, Peerlogic does not presently oﬀer or support the Service to customers located in any countries other than the United States. Peerlogic’s Services are only for use by persons or entities whose primary residence or business address is in the United States. Peerlogic’s Services are designed to work generally with unencumbered high-speed internet connections. However, if the high-speed internet connection you are using is outside the United States and/or your ISP places restrictions on the usage of VoIP services, Peerlogic does not represent or warrant that use of the Service by you is permitted by any other jurisdictions or by any or all the ISPs. If you remove the Appliance to a country other than the United States or use the Service from there, you do so at its own risk, including the risk that such activity violates local laws in the country where you do so. You will be solely responsible for any violations of local laws and regulations or violations of ISP terms of service resulting from such use. Peerlogic reserves the right to disconnect Services immediately if Peerlogic determines, in its sole and absolute discretion that you have used the Service or the Appliance in violation of applicable laws, including without limitation laws of jurisdictions outside the United States. You are solely liable for any and all use of the Service and/or Appliance by any person making use of the Service or Appliance provided to you.
5.3 No Transfer of Service. You may not resell or transfer your Service or your Appliance or provide a telephone service to anyone else by using your Peerlogic service or features of your Peerlogic service without ﬁrst obtaining our prior written consent.
5.4 No Alterations or Tampering. If you copy or alter or have someone else copy or alter the ﬁrmware or software of the Appliance in any way that facilitates a compromise of your service, you are responsible for any charges that result. You may not attempt to hack or otherwise disrupt our Service or make any use of our Service that is inconsistent with its intended purpose.
5.5 Theft of Service. You may not use or obtain our Service in any manner that avoids Peerlogic policies and procedures, including an illegal or improper manner. You will notify us immediately in writing if your Appliance is stolen or if you believe that your Service is being stolen, fraudulently used, or otherwise being used in an unauthorized manner. When you notify us of one of these events, you must provide your account number and a detailed description of the circumstances of the theft, fraudulent use, or unauthorized use of Service. If you fail to notify us in writing in a timely manner, we may disconnect your service and levy additional charges on you. Until you notify us in writing, you will remain liable for all use of our Service using an Appliance stolen from you and any and all stolen, fraudulent or unauthorized use of the Service up through the date notice is received by Peerlogic.
You may cancel your PEERLOGIC Service at any time by providing PEERLOGIC with a notice of your intent to cancel by sending an email to support@PEERLOGIC.com or calling our Customer Care Department at 1-800-967-7330.
1.1 Money Back Guarantee. If you are unsatisfied with your PEERLOGIC service for any reason in the first 30 days after your initial sign up, under the condition that you have not used over 50% of the allowed minutes in your metered subscription plan or 500 minutes in an unlimited plan, you did not receive a free device, and you are not subject to a minimum commitment contact, you may cancel and be eligible for a refund of equipment, activation and subscription fees. Shipping and handling charges are not refundable. Refunds for devices where an RMA was requested within the 30 day period will be made in full if the devices are in “returnable” condition and the device is returned within 7 days of the RMA date. Returnable condition requires the item to be in new condition, in the original packaging and all parts and documentation received. Return shipping is the customer responsibility.
Our money back guarantee does not apply to customers who received a free device, minimum commitment contracts, any charges for international usage, payphone calls to PEERLOGIC toll free numbers, and directory assistance. Our money back guarantee also does not apply to any renewals or add-on lines or services added after your initial order. In addition, we may not be able to refund all of the taxes that you paid. PEERLOGIC will use commercially reasonable efforts to refund promptly any charges (less any amounts that you owe to us) to your account following the return of your device. If your device is not returned within 14 days from the RMA date, PEERLOGIC will refund for all eligible charges except for the device charges. Once the device is returned, the device charges will be refunded less any applicable restock fee.
A charge for the retail price of any device will be made to the customer’s account if the device is not returned within 14 days of the RMA date.
WE HAVE THE RIGHT TO REVOKE THE MONEY BACK GUARANTEE FOR ALL CUSTOMERS AT ANY TIME WITHOUT PRIOR NOTICE. The 30-Day Money Back Guarantee does not apply if you are found to be in violation of our terms of service or if you have taken advantage of the guarantee in the past.
1.2 Termination After 30 Days. Upon termination of service after the initial 30 days, the termination will be effective on the last day of the current billing period in which notice of termination is given (not applicable to minimum commitment contracts). At any time, and for any reason, PEERLOGIC may provide a refund, discount, or other consideration to a PEERLOGIC customer (“Credit”). The amount and form of a Credit, and the decision to provide them, are at PEERLOGIC’s sole and absolute discretion. The provision of a Credit is one instance does not entitle you to a Credit in the future for similar instances, nor does it obligate PEERLOGIC to provide a Credit in the future, under any circumstances. Equipment is not returnable or refundable after the 30-Day Money Back Guarantee period. Non-usage of service does not constitute cancellation of service nor does it extend the 30-Day Money Back Guarantee period.
1.3 Contracts. In the event you signed up for a minimum commitment contract, in addition to any disconnect fee, you will be responsible for all charges for the entire minimum commitment period and authorize PEERLOGIC to bill these fees to your payment method (credit card). The 30-Day Money Back Guarantee does not apply to any executed minimum commitment contract.
1.4 Porting. You may be able to take, or “port,” your current number to another service provider. Once your port is completed through your new service provider, you must email support@PEERLOGIC.com to cancel your PEERLOGIC Service. Until you cancel service with PEERLOGIC, you will remain a PEERLOGIC customer, and you will continue to be responsible for all charges and fees associated with your Service. If you cancel your Service prior to completion of the port, your Service will not work and your number may not be available for porting. Your account must be active and in good standing in order to port out your number.
Last updated: September 08, 2021
Interpretation and Definitions
The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or in plural.
Account means a unique account created for You to access our Service or parts of our Service.
Company (referred to as either “the Company”, “We”, “Us” or “Our” in this Agreement) refers to Peerlogic Technologies, 6900 E Camelback Rd. Suite 805, Scottsdale, AZ 85251.
Cookies are small files that are placed on Your computer, mobile device or any other device by a website, containing the details of Your browsing history on that website among its many uses.
Country refers to: Arizona, United States
Device means any device that can access the Service such as a computer, a cellphone or a digital tablet.
Personal Data is any information that relates to an identified or identifiable individual.
Service refers to the Website.
Service Provider means any natural or legal person who processes the data on behalf of the Company. It refers to third-party companies or individuals employed by the Company to facilitate the Service, to provide the Service on behalf of the Company, to perform services related to the Service or to assist the Company in analyzing how the Service is used.
Usage Data refers to data collected automatically, either generated by the use of the Service or from the Service infrastructure itself (for example, the duration of a page visit).
Website refers to Peerlogic, accessible from PEERLOGIC.COM
You means the individual accessing or using the Service, or the company, or other legal entity on behalf of which such individual is accessing or using the Service, as applicable.
Collecting and Using Your Personal Data
Types of Data Collected
While using Our Service, We may ask You to provide Us with certain personally identifiable information that can be used to contact or identify You. Personally identifiable information may include, but is not limited to:
First name and last name
Address, State, Province, ZIP/Postal code, City
Usage Data is collected automatically when using the Service.
Usage Data may include information such as Your Device’s Internet Protocol address (e.g. IP address), browser type, browser version, the pages of our Service that You visit, the time and date of Your visit, the time spent on those pages, unique device identifiers and other diagnostic data.
When You access the Service by or through a mobile device, We may collect certain information automatically, including, but not limited to, the type of mobile device You use, Your mobile device unique ID, the IP address of Your mobile device, Your mobile operating system, the type of mobile Internet browser You use, unique device identifiers and other diagnostic data.
We may also collect information that Your browser sends whenever You visit our Service or when You access the Service by or through a mobile device.
Tracking Technologies and Cookies
Flash Cookies. Certain features of our Service may use local stored objects (or Flash Cookies) to collect and store information about Your preferences or Your activity on our Service. Flash Cookies are not managed by the same browser settings as those used for Browser Cookies. For more information on how You can delete Flash Cookies, please read “Where can I change the settings for disabling, or deleting local shared objects?” available at https://helpx.adobe.com/flash-player/kb/disable-local-shared-objects-flash.html#main_Where_can_I_change_the_settings_for_disabling__or_deleting_local_shared_objects_
Web Beacons. Certain sections of our Service and our emails may contain small electronic files known as web beacons (also referred to as clear gifs, pixel tags, and single-pixel gifs) that permit the Company, for example, to count users who have visited those pages or opened an email and for other related website statistics (for example, recording the popularity of a certain section and verifying system and server integrity).
Cookies can be “Persistent” or “Session” Cookies. Persistent Cookies remain on Your personal computer or mobile device when You go offline, while Session Cookies are deleted as soon as You close Your web browser. Learn more about cookies: What Are Cookies?.
We use both Session and Persistent Cookies for the purposes set out below:
Necessary / Essential Cookies
Type: Session Cookies
Administered by: Us
Purpose: These Cookies are essential to provide You with services available through the Website and to enable You to use some of its features. They help to authenticate users and prevent fraudulent use of user accounts. Without these Cookies, the services that You have asked for cannot be provided, and We only use these Cookies to provide You with those services.
Cookies Policy / Notice Acceptance Cookies
Type: Persistent Cookies
Administered by: Us
Type: Persistent Cookies
Administered by: Us
Purpose: These Cookies allow us to remember choices You make when You use the Website, such as remembering your login details or language preference. The purpose of these Cookies is to provide You with a more personal experience and to avoid You having to re-enter your preferences every time You use the Website.
Use of Your Personal Data
The Company may use Personal Data for the following purposes:
To provide and maintain our Service, including to monitor the usage of our Service.
To manage Your Account: to manage Your registration as a user of the Service. The Personal Data You provide can give You access to different functionalities of the Service that are available to You as a registered user.
For the performance of a contract: the development, compliance and undertaking of the purchase contract for the products, items or services You have purchased or of any other contract with Us through the Service.
To contact You: To contact You by email, telephone calls, SMS, or other equivalent forms of electronic communication, such as a mobile application’s push notifications regarding updates or informative communications related to the functionalities, products or contracted services, including the security updates, when necessary or reasonable for their implementation.
To provide You with news, special offers and general information about other goods, services and events which we offer that are similar to those that you have already purchased or enquired about unless You have opted not to receive such information.
To manage Your requests: To attend and manage Your requests to Us.
For business transfers: We may use Your information to evaluate or conduct a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of Our assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which Personal Data held by Us about our Service users is among the assets transferred.
For other purposes: We may use Your information for other purposes, such as data analysis, identifying usage trends, determining the effectiveness of our promotional campaigns and to evaluate and improve our Service, products, services, marketing and your experience.
We may share Your personal information in the following situations:
With Service Providers: We may share Your personal information with Service Providers to monitor and analyze the use of our Service, to contact You.
For business transfers: We may share or transfer Your personal information in connection with, or during negotiations of, any merger, sale of Company assets, financing, or acquisition of all or a portion of Our business to another company.
With business partners: We may share Your information with Our business partners to offer You certain products, services or promotions.
With other users: when You share personal information or otherwise interact in the public areas with other users, such information may be viewed by all users and may be publicly distributed outside.
With Your consent: We may disclose Your personal information for any other purpose with Your consent.
Retention of Your Personal Data
The Company will also retain Usage Data for internal analysis purposes. Usage Data is generally retained for a shorter period of time, except when this data is used to strengthen the security or to improve the functionality of Our Service, or We are legally obligated to retain this data for longer time periods.
Transfer of Your Personal Data
Your information, including Personal Data, is processed at the Company’s operating offices and in any other places where the parties involved in the processing are located. It means that this information may be transferred to — and maintained on — computers located outside of Your state, province, country or other governmental jurisdiction where the data protection laws may differ than those from Your jurisdiction.
Disclosure of Your Personal Data
Under certain circumstances, the Company may be required to disclose Your Personal Data if required to do so by law or in response to valid requests by public authorities (e.g. a court or a government agency).
Other legal requirements
The Company may disclose Your Personal Data in the good faith belief that such action is necessary to:
Comply with a legal obligation
Protect and defend the rights or property of the Company
Prevent or investigate possible wrongdoing in connection with the Service
Protect the personal safety of Users of the Service or the public
Protect against legal liability
Security of Your Personal Data
The security of Your Personal Data is important to Us, but remember that no method of transmission over the Internet, or method of electronic storage is 100% secure. While We strive to use commercially acceptable means to protect Your Personal Data, We cannot guarantee its absolute security.
Our Service does not address anyone under the age of 13. We do not knowingly collect personally identifiable information from anyone under the age of 13. If You are a parent or guardian and You are aware that Your child has provided Us with Personal Data, please contact Us. If We become aware that We have collected Personal Data from anyone under the age of 13 without verification of parental consent, We take steps to remove that information from Our servers.
If We need to rely on consent as a legal basis for processing Your information and Your country requires consent from a parent, We may require Your parent’s consent before We collect and use that information.
Links to Other Websites
We have no control over and assume no responsibility for the content, privacy policies or practices of any third party sites or services.
By email: email@example.com
BUSINESS ASSOCIATE ADDENDUM
BUSINESS ASSOCIATE ADDENDUM
This Business Associate Addendum (the “Addendum”) is an Addendum to the Terms and Conditions of Use (the “Terms”) between the Peerlogic Technologies Inc (DBA Peerlogic), a Delaware Corporations and such Addendum is hereby incorporated into the Terms. Peerlogic Technologies shall be referred to herein as the “Business Associate” and the User, as the “Covered Entity” (each entity individually, a “Party” and collectively, the “Parties). Any terms not defined herein shall have the meanings ascribed to them in the Terms.
COVERED ENTITY REPRESENTS AND WARRANTS THAT: (I) IT HAS FULL LEGAL AUTHORITY TO ENTER INTO THIS ADDENDUM, (II) IT HAS READ AND UNDERSTAND THIS ADDENDUM AND THE TERMS, AND (III) IT AGREES TO THE TERMS OF THIS ADDENDUM. IF YOU DO NOT HAVE LEGAL AUTHORITY TO ENTER INTO OR DO NOT AGREE TO THESE TERMS, DO NOT ACCEPT THE TERMS OF THIS ADDENDUM.
WHEREAS, Sections 261 through 264 of the United States Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, known as “the Administrative Simplification Provisions,” direct the Department of Health and Human Services to develop standards to protect the security, confidentiality and integrity of health information; and
WHEREAS, pursuant to the Administrative Simplification Provisions, the Secretary of Health and Human Services issued regulations modifying 45 CFR Parts 160 and 164 (the “HIPAA Security and Privacy Rule”); and
WHEREAS, the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), pursuant to Title XIII of Division A and Title IV of Division B, called the “Health Information Technology for Economic and Clinical Health” (“HITECH”) Act, provides modifications to the HIPAA Security and Privacy Rule (hereinafter, all references to the “HIPAA Security and Privacy Rule” are deemed to include all amendments to such rule contained in the HITECH Act and any accompanying regulations, and any other subsequently adopted amendments or regulations); and
WHEREAS, Covered Entity has entered into an agreement with Business Associate or a third party in which Covered Entity will be granted a limited license to use the Application (as such term is defined in the Terms), and by the granting of such a license, Business Associate may be considered a “business associate” of Covered Entity as defined in the HIPAA Security and Privacy Rule; and
WHEREAS, Business Associate may have access to Protected Health Information (as defined below) through Covered Entity’s use of the Application.
THEREFORE, in consideration of the Parties’ continuing obligations under the existing agreements, compliance with the HIPAA Security and Privacy Rule, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the Parties agree to the provisions of this Addendum in order to address the requirements of the HIPAA Security and Privacy Rule and to protect the interests of both Parties.
DEFINITIONS. Except as otherwise defined herein, any and all capitalized terms in this Section shall have the definitions set forth in the HIPAA Security and Privacy Rule. In the event of an inconsistency between the provisions of this Addendum and mandatory provisions of the HIPAA Security and Privacy Rule, as amended, the HIPAA Security and Privacy Rule shall control. Where provisions of this Addendum are different than those mandated in the HIPAA Security and Privacy Rule, but are nonetheless permitted by the HIPAA Security and Privacy Rule, the provisions of this Addendum shall control.
“Protected Health Information” means individually identifiable health information including, without limitation, all information, data, documentation, and materials, including without limitation, demographic, medical and financial information, that relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and that identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to identify the individual. “Protected Health Information” includes without limitation “Electronic Protected Health Information” as defined below.
“Electronic Protected Health Information” means Protected Health Information which is transmitted by Electronic Media (as defined in the HIPAA Security and Privacy Rule) or maintained in Electronic Media. Business Associate acknowledges and agrees that all Protected Health Information that is created or received by Covered Entity and disclosed or made available in any form, including paper record, oral communication, audio recording, and electronic display by Covered Entity or its operating units to Business Associate or is created or received by Business Associate on Covered Entity’s behalf shall be subject to this Addendum; however, Business Associate has no need to take possession of any Electronic Protected Health Information and such possession shall only be tangential to any services provided by Business Associate to Covered Entity.
CONFIDENTIALITY AND SECURITY REQUIREMENTS.
Business Associate agrees: (i) to use or disclose any Protected Health Information solely: (1) for meeting its obligations as set forth in this Addendum or the Terms, or (2) as required by applicable law, rule or regulation, or by an accrediting or credentialing organization to whom Covered Entity is required to disclose such information or as otherwise permitted under this Addendum and as would be permitted by the HIPAA Security and Privacy Rule if such use or disclosure were made by Covered Entity. All such uses and disclosures shall be subject to the limits set forth in 45 CFR § 164.514 regarding limited data sets and 45 CFR § 164.502(b) regarding the minimum necessary requirements; (ii) at termination of this Addendum, or any similar documentation of the business relationship of the Parties, or upon request of Covered Entity, whichever occurs first, if feasible, Business Associate will return or destroy all Protected Health Information received from or created or received by Business Associate on behalf of Covered Entity that Business Associate still maintains in any form and retain no copies of such information, or if such return or destruction is not feasible, Business Associate will extend the protections of this Addendum to the information and limit further uses and disclosures to those purposes that make the return or destruction of the information not feasible; (iii) to ensure its agents, including a subcontractor, to whom it provides Protected Health Information received from or created by Business Associate on behalf of Covered Entity, agrees to the same restrictions and conditions that apply to Business Associate with respect to such information, and agrees to implement reasonable and appropriate safeguards to protect any of such information which is Electronic Protected Health Information. In addition, Business Associate agrees to take reasonable steps to ensure its employees’ actions or omissions do not cause Business Associate to breach the terms of this Addendum; (iv) Business Associate shall, following the discovery of an actual breach of unsecured Protected Health Information, as defined in the HITECH Act or accompanying regulations, notify the Covered Entity of such breach pursuant to the terms of 45 CFR § 164.410 and cooperate in Covered Entity’s breach analysis procedures, including risk assessment, if requested. A breach shall be treated as discovered by Business Associate as of the first day on which such breach is known to Business Associate or, by exercising reasonable diligence, would have been known to Business Associate. Business Associate will provide such notification to Covered Entity without unreasonable delay and in no event later than five (5) calendar days after discovery of the breach. Such notification will contain the elements required in 45 CFR § 164.410; (v) Notice of a breach shall include, at a minimum: (a) the identification of each individual whose Protected Health Information has been, or is reasonably believed to have been, accessed, acquired, or disclosed during the breach, (b) the date of the breach, if known, (c) the scope of the breach, and (d) a description of the Business Associate’s response to the breach. In the event of a breach, Business Associate shall, in consultation with Covered Entity, mitigate, to the extent practicable, any harmful effect of such breach that is known to Business Associate; and (vi) Business Associate will, pursuant to the HITECH Act and its implementing regulations, comply with all additional applicable requirements of the HIPAA Security and Privacy Rule, including those contained in 45 CFR §§ 164.502(e) and 164.504(e)(1)(ii), at such time as the requirements are applicable to Business Associate. Business Associate will not directly or indirectly receive remuneration in exchange for any Protected Health Information, subject to the exceptions contained in the HITECH Act, without a valid authorization from the applicable individual. Business Associate will not engage in any communication which might be deemed to be “marketing” under the HITECH Act. In addition, Business Associate will, pursuant to the HITECH Act and its implementing regulations, comply with all applicable requirements of the HIPAA Security and Privacy Rule, contained in 45 CFR §§ 164.308, 164.310, 164.312 and 164.316, at such time as the requirements are applicable to Business Associate.
Notwithstanding the prohibitions set forth in this Addendum, Business Associate may use, de-identify, and disclose Protected Health Information as follows: (i) if necessary, for the proper management, administration, and operations of Business Associate or to carry out the legal responsibilities of Business Associate, provided that as to any such disclosure, the following requirements are met: (A) the disclosure is required by law; or (B) Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached; (ii) for data aggregation services, if to be provided by Business Associate for the health care operations of Covered Entity pursuant to any Addendums between the Parties evidencing their business relationship. For purposes of this Addendum, “data aggregation services” means the combining of Protected Health Information by Business Associate with the Protected Health Information received by Business Associate in its capacity as a business associate of another covered entity, to permit data analyses that relate to the health care operations of the respective covered entities, or (iii) Business Associate may de-identify Protected Health Information in accordance with 45 C.F.R. §164.514 and use and disclose such de-identified data for its business purposes, including to provide reporting and other services to Covered Entity.
Business Associate will implement appropriate safeguards to prevent use or disclosure of Protected Health Information other than as permitted in this Addendum. Business Associate will implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of any Electronic Protected Health Information that it creates, receives, maintains, or transmits on behalf of Covered Entity as required by the HIPAA Security and Privacy Rule subject to restrictions placed by Covered Entity.
The Secretary of Health and Human Services shall have the right to audit Business Associate’s records and practices related to use and disclosure of Protected Health Information to ensure Covered Entity’s compliance with the terms of the HIPAA Security and Privacy Rule. Covered Entity waives any right to impede or interfere with such audit.
Business Associate shall report to Covered Entity any use or disclosure of Protected Health Information which is not in compliance with the terms of this Addendum of which it becomes aware. Business Associate shall report to Covered Entity any Security Incident (as defined below) of which it becomes aware; provided, however, continuing notice is hereby deemed provided, and no further notice will be provided, for Unsuccessful Security Incidents (as defined below). For purposes of this Addendum, “Security Incident” means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system. In addition, Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this Addendum. For purposes of this Addendum, “Unsuccessful Security Incidents” shall include, but not be limited to, pings and other broadcast attacks on a firewall, unsuccessful login attempts, denial of service attacks, port scans, and any combination of the above, provided that no such incident results in an unauthorized access, use, or disclosure of Electronic Protected Health Information. Business Associate’s obligation to report under this Section 2(e) is not and will not be construed as an acknowledgement by Business Associate of any fault or liability with respect to any use, disclosure, or breach.
Covered Entity acknowledges that use of Business Associate’s Application i
evaluative medical services for Covered Entity or clients of Covered Entity. Business Associate does not control Covered Entity’s computer system and cannot control nor monitor disclosures of Electronic Protected Health Information from such systems. Further, Business Associate does not control third party systems and cannot protect nor actively monitor such systems for unauthorized disclosures. Should Business Associate discover a verifiable Security Incident, Business Associate shall properly report to the Covered Entity the discovery of the Security Incident. Covered Entity shall indemnify and hold Business Associate harmless from any claim, fine, cause of action or administrative action caused by Business Associate reporting a Security Incident in good faith.
AVAILABILITY OF PROTECTED HEALTH INFORMATION. Business Associate agrees to comply with any requests for restrictions on certain disclosures of Protected Health Information pursuant to Section 164.522 of the HIPAA Security and Privacy Rule to which Covered Entity has agreed and of which Business Associate is notified by Covered Entity. Business Associate agrees to make available Protected Health Information to the extent and in the manner required by Section 164.524 of the HIPAA Security and Privacy Rule. If Business Associate maintains Protected Health Information electronically, it agrees to make such Protected Health Information electronically available to the applicable individual. Business Associate agrees to make Protected Health Information available for amendment and incorporate any amendments to Protected Health Information in accordance with the requirements of Section 164.526 of the HIPAA Security and Privacy Rule. In addition, Business Associate agrees to make Protected Health Information available for purposes of accounting of disclosures, as required by Section 164.528 of the HIPAA Security and Privacy Rule and Section 13405(c)(3) of the HITECH Act. Business Associate and Covered Entity shall cooperate in providing any accounting required on a timely basis.
TERMINATION. Notwithstanding anything in this Addendum to the contrary, Covered Entity shall have the right to suspend Covered Entity’s use of the Application immediately if Covered Entity determines that Business Associate has violated any material term of this Addendum. If Covered Entity reasonably believes Business Associate will violate a material term of this Addendum and, where practicable, Covered Entity gives written notice to Business Associate of such belief within a reasonable time after forming such belief, and Business Associate fails to provide adequate written assurances to Covered Entity that it will not breach the cited term of this Addendum within a reasonable period of time given the specific circumstances, but in any event, before the threatened breach is to occur, then Covered Entity shall have the right to suspend Covered Entity’s use of the Software immediately. Sections II(f), V, and VI shall survive termination.
INDEMNIFICATION AND INSURANCE. Business Associate shall indemnify, defend and hold harmless Covered Entity and its directors, officers, subcontractors, employees, affiliates, agents, and representatives from and against any and all third party liabilities, costs, claims, suits, actions, proceedings, demands, losses and liabilities of any kind (including court costs and reasonable attorneys’ fees) brought by a third party, arising from or relating to the intentional acts or sole negligence of Business Associate or any of its directors, officers, subcontractors, employees, affiliates, agents, and representatives in connection with the Business Associate’s performance under this Addendum or the Terms, without regard to any limitation or exclusion of damages provision otherwise set forth in the Addendum. Covered Entity shall indemnify Business Associate and its employees, officers, directors, subcontractors and agents from any and all third party liabilities, costs, claims, suits, actions, proceedings, demands, losses and liabilities of any kind (including court costs and reasonable attorneys’ fees) brought by a third party, arising from or caused by the intentional act or negligence of Covered Entity, its employees, subcontractors, vendors or agents. In addition, Covered Entity shall indemnify and hold harmless Business Associate for any act caused by the joint, but not sole negligence of Business Associate.
MISCELLANEOUS. Except as expressly stated herein or the HIPAA Security and Privacy Rule, the Parties to this Addendum do not intend to create any rights in any third parties. The obligations of the Parties under this Section shall survive the expiration, termination, or cancellation of this Addendum, or the business relationship of the Parties, and shall continue to bind Covered Entity, Business Associate, their agents, employees, contractors, successors, and assigns as set forth herein. This Addendum may be amended or modified only in a writing signed by the Parties. No Party may assign its respective rights and obligations under this Addendum without the prior written consent of the other Party. None of the provisions of this Addendum are intended to create, nor will they be deemed to create any relationship between the Parties other than that of independent parties contracting with each other solely for the purposes of effecting the provisions of this Addendum and any other agreements between the Parties evidencing their business relationship. This Addendum will be governed by the laws of the State of Arizona. No change, waiver or discharge of any liability or obligation hereunder on any one or more occasions shall be deemed a waiver of performance of any continuing or other obligation, or shall prohibit enforcement of any obligation, on any other occasion. The Parties agree that, in the event that any documentation of the arrangement pursuant to which Business Associate provides services to Covered Entity contains provisions relating to the use or disclosure of Protected Health Information which are more restrictive than the provisions of this Addendum, the provisions of the more restrictive documentation will control. The provisions of this Addendum are intended to establish the minimum requirements regarding Business Associate’s use and disclosure of Protected Health Information. In the event any provision of this Addendum is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the provisions of this Addendum will remain in full force and effect. In addition, in the event a Party believes in good faith that any provision of this Addendum fails to comply with the then-current requirements of the HIPAA Security and Privacy Rule, including any then-current requirements of the HITECH Act or its regulations, such Party shall notify the other Party in writing. For a period of up to thirty days, the Parties shall address in good faith such concern and amend the terms of this Addendum, if necessary to bring it into compliance. If, after such thirty-day period, the Addendum fails to comply with the HIPAA Security and Privacy Rule, including the HITECH Act, then either Party has the right to terminate upon written notice to the other Party. Any claim brought pursuant to this Addendum shall be brought exclusively in Maricopa County, Arizona. Both Parties hereby waive their right to a jury. The prevailing party in any litigation shall have the right to the award of attorney’s fees and costs.