Terms and Conditions
These terms and conditions ("Terms and Conditions") are an integral part of the agreement ("Agreement") between APBX LLC ("APBX") and a Customer ("Customer") of the APBX services. Any APBX services or products (collectively, the "Services") provided by APBX to Customer shall be governed by the terms and conditions herein. By purchasing the Services, CUSTOMER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. They affect the legal rights between Customer and APBX by, among other things, requiring (1) MANDATORY ARBITRATION OF DISPUTES; (2) charging an EARLY DISCONNECTION FEE; and (3) LIMITING APBX's LIABILITY UNDER THE AGREEMENT. THE TERMS "YOU" OR "CUSTOMER" REFER TO THE INDIVIDUAL OR A LEGAL ENTITY, AS APPLICABLE, THAT REGISTERS FOR, RECEIVES AND/OR USES THE SERVICES OF APBX.
EMERGENCY 911 ISSUES AND DISCLOSURE. You acknowledge that emergency 911 services accessed through equipment connected to the Service through the Internet may be different from emergency services through a wireline provider. These differences may have an adverse impact upon the ability or timeliness of the provision of 911 services to you or others in the event of an emergency. In addition, due to limitations on technology, the location reported for your telephone may not include your specific location within a business premise. Accordingly, you are responsible for the accurate reporting of the physical location where the Service is to be used via the Internet and for instructing each employee that he/she must state the specific location in which they are located within your premises in the event of an emergency. In the event that any equipment used to provide the Service via the Internet is moved to another location, you are responsible for notifying APBX and\or updating your account records to reflect the new physical location where the Service is to be provided and for instructing each employee that he/she must update APBX promptly when such employee changes the physical location where the Service is being provided. Even though you will be able to use the Service without interruption in the event you change the physical location where the Services are to be provided, it may take time to update emergency dispatch information, which could result in the failure to dispatch emergency personnel to the proper location.
In some cases, emergency calls may not be routed to the designated emergency response center in your area. Rather, an emergency call may be routed to an alternative emergency dispatch center which may not have access to any or all of your registered physical location information. Consequently, you should be prepared to provide information with respect to your physical location sufficient to dispatch emergency personnel to you. This method may delay the dispatch of emergency personnel to your location. If the emergency call is disconnected for any reason prior to the time you have provided your physical location, emergency personnel will have no way to contact you or determine your identity or location, and you should immediately redial 911. You agree to advise any and all employees, invitees, and every other person who may make calls using the Service via the Internet of the limitations described above, and to affix APBX -provided labels on or near all SIP telephones, analog telephone adapters and telephones attached to an analog telephone adapter having the capability of connecting to the Service, and all computers having softphone software installed, regardless of whether such equipment was purchased from APBX or a third party. Finally, you acknowledge that you have read the above limitations with respect to emergency calls over the Service, that you understand these limitations, and that you agree to them.
E911 SERVICE. E911 SERVICE IS ONLY AVAILABLE IN SELECTED AREAS. IF CUSTOMER SUBSCRIBES TO APBX E911 SERVICE, CUSTOMER WILL BE REQUIRED TO REGISTER THE PHYSICAL LOCATION OF CUSTOMER'S EQUIPMENT (PHONE, SOFTPHONE, DIGITIAL TELEPHONE ADAPTER ("DTA") OR VIDEOPHONE) WITH APBX, EITHER ON THE APBX WEBSITE OR BY CALLING CUSTOMER SERVICE, AND WILL UPDATE THE LOCATION WHENEVER THE PHYSICAL LOCATION OF SERVICE CHANGES. CUSTOMER ACKNOWLEDGES THAT APBX'S ONLY MECHANISM FOR ROUTING 911 CALLS TO THE CORRECT EMERGENCY CALL TAKER IS THE PHYSICAL LOCATION CURRENTLY REGISTERED FOR THE ACCOUNT. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT ANY ENHANCED LOCATION INFORMATION PASSED TO AN EMERGENCY OPERATOR BY APBX WILL BE BASED UPON THE PHYSICAL LOCATION PROVIDED TO APBX BY CUSTOMER. IN THE EVENT THAT THE PHYSICAL LOCATION HAS NOT BEEN UPDATED OR IS NOT COMPLETE, APBX MAY ATTEMPT TO ROUTE A 911 CALL BASED UPON THE BILL-TO OR SHIP-TO ADDRESSES ASSOCIATED WITH THE CUSTOMER'S ACCOUNT.
E911 SERVICE CHARGE. CUSTOMERS THAT TO APBX E911 SERVICE WILL BE SUBJECT TO A MONTHLY E911 SERVICE CHARGE. THE MONTHLY E911 SERVICE FEE SHALL BE IN ADDITION TO THE APPLICABLE SERVICE FEES FOR THE ASSOCIATED LINE. THE MONTHLY CHARGE FOR APBX E911 SERVICE IS ASSESSED ON A "PER-LINE" (THAT IS, PER PHONE NUMBER BASIS), AND WILL BE SET AT A LEVEL THAT REIMBURSES APBX FOR THE DIRECT COSTS IT INCURS IN PROVIDING APBX E911 SERVICE.
E911 CHARACTERISTICS. CUSTOMER ALSO ACKNOWLEDGES THAT APBX E911 SERVICE HAS CERTAIN CHARACTERISTICS THAT DISTINGUISH IT FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE. THESE CHARACTERISTICS MAY MAKE APBX E911 SERVICES UNSUITABLE FOR SOME CUSTOMERS. BECAUSE CUSTOMER CIRCUMSTANCES VARY WIDELY, CUSTOMER SHOULD CAREFULLY EVALUATE CUSTOMER'S OWN CIRCUMSTANCES WHEN DECIDING WHETHER TO RELY SOLELY UPON APBX E911 SERVICE. CUSTOMER ACKNOWLEDGES THAT IT IS CUSTOMER'S RESPONSIBILITY TO DETERMINE THE TECHNOLOGY OR COMBINATION OF TECHNOLOGIES BEST SUITED TO MEET CUSTOMER'S EMERGENCY CALLING NEEDS, AND TO MAKE THE NECESSARY PROVISIONS FOR ACCESS TO EMERGENCY CALLING SERVICES (SUCH AS MAINTAINING A CONVENTIONAL LANDLINE PHONE OR WIRELESS PHONE AS A BACKUP MEANS OF COMPLETING EMERGENCY CALLS). THE FOLLOWING CHARACTERISTICS DISTINGUISH APBX E911 SERVICE FROM TRADITIONAL, LEGACY, CIRCUIT-SWITCHED 911 SERVICE:
* APBX E911 SERVICE WILL NOT FUNCTION IF CUSTOMER'S PHONE OR FAILS OR IS NOT CONFIGURED CORRECTLY OR IF CUSTOMER'S APBX SERVICE IS NOT FUNCTIONING FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, ELECTRICAL POWER OUTAGE, BROADBAND SERVICE OUTAGE, OR SUSPENSION OR DISCONNECTION OF SERVICE BECAUSE OF BILLING OR OTHER ISSUES. IF THERE IS A POWER OUTAGE, CUSTOMER MAY BE REQUIRED TO RESET OR RECONFIGURE THE EQUIPMENT BEFORE BEING ABLE TO USE THE APBX SERVICE, INCLUDING FOR E911 PURPOSES.
* AFTER INITIAL ACTIVATION OF THE E911 SERVICE, AND FOLLOWING ANY CHANGE OF AND UPDATE TO CUSTOMER'S PHYSICAL LOCATION, THERE MAY BE SOME DELAY BEFORE THE AUTOMATIC NUMBER AND LOCATION INFORMATION IS PASSED TO THE LOCAL EMERGENCY SERVICE OPERATOR.
* THE LOCAL EMERGENCY SERVICE OPERATOR RECEIVING APBX E911 EMERGENCY SERVICE CALLS MAY NOT HAVE A SYSTEM CONFIGURED FOR E911 SERVICES OR BE ABLE TO CAPTURE AND/OR RETAIN AUTOMATIC NUMBER OR LOCATION INFORMATION. THIS MEANS THAT THE OPERATOR MAY NOT KNOW THE PHONE NUMBER OR PHYSICAL LOCATION OF THE PERSON WHO IS MAKING THE APBX E911 CALL. DUE TO TECHNICAL FACTORS IN NETWORK DESIGN, AND IN THE EVENT OF NETWORK CONGESTION ON THE APBX NETWORK, THERE IS A POSSIBILITY THAT A APBX 911 CALL WILL PRODUCE A BUSY SIGNAL OR WILL EXPERIENCE UNEXPECTED ANSWERING WAIT TIMES AND/OR TAKE LONGER TO ANSWER THAN 911 CALLS PLACED VIA TRADITIONAL, LEGACY, CIRCUIT-SWITCHED TELEPHONE NETWORKS.
* IF CUSTOMER DOES NOT CORRECTLY IDENTIFY THE ACTUAL LOCATION WHERE THE APBX EQUIPMENT WILL BE LOCATED AT THE TIME OF ACTIVATION OF THE SERVICE, APBX E911 COMMUNICATIONS MAY NOT BE DIRECTED TO THE CORRECT LOCAL EMERGENCY OPERATOR.
E911 LIMITATION OF LIABILITY AND INDEMNITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT APBX WILL NOT BE LIABLE FOR ANY SERVICE OUTAGE AND/OR INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER USING APBX OR TO ACCESS AN EMERGENCY SERVICE OPERATOR DUE TO THE 911 DIALING CHARACTERISTICS AND LIMITATIONS SET FORTH IN THIS AGREEMENT. CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS APBX, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH THE SERVICES, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY FEES) BY, OR ON BEHALF OF, CUSTOMER OR ANY THIRD PARTY OR USER OF THE SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE RELATED TO 911 DIALING.
PRICE AND PAYMENT. Customer will pay all fees or recurring charges billed by APBX to your account in accordance with the fees, charges, and billing terms in effect at the time the billing is issued. You will receive an invoice and a summary of charges for your account will be posted and viewable from within your APBX user account. All other unbilled, non-recurring charges will be billed in arrears. Any additional licenses or modules added, after the commencement of the Services, will be billed pro-rata for the initial month. All fees, including Service Fees, payable under the applicable Service Plan shall be non-refundable and non-creditable. Customer must provide APBX with valid payment information (credit card, etc) as a condition to receive or use the Services and Software and further agrees to update any changes to the payment information (e.g., new credit card, new expiry date, etc.) and is responsible for updating its billing information with APBX if Customer’s credit card expires or if you elect to pay with a different credit card. By providing APBX with credit card information, you authorize APBX to charge to the credit card, any amounts arising from or relating to the Services without further authorization from Customer. International rates vary by destination country, city, and band, and are subject to change by APBX from time-to-time without prior notice. You will be charged for all calls to any international destination in with a 30 second minimum and 6 second increments at APBX’s then-current rate as posted in the APBX customer portal. Notwithstanding any other provision of this Agreement, this Agreement is subject to change, modification, or cancellation as may be required pursuant to any order, rule or decision of a public utility commission, the Federal Communications Commission, state or federal court of competent jurisdiction, and APBX shall have the right to amend in writing this Agreement following thirty (30) days’ written notice to Customer. All taxes, regulatory fees, or other charge imposed by any governmental authority are in addition to the fees and charges of APBX and are the responsibility of Customer. It is the express intention of the parties that Customer, and not APBX, shall bear the risk of loss arising from any unauthorized or fraudulent usage of Services provided under this Agreement to Customer. APBX reserves the right, but is not required, to take any and all action it deems appropriate (including blocking access to particular calling numbers or geographic areas) to prevent or terminate any fraud or abuse in connection with the Services, or any use thereof, provided, however, that any such action shall be consistent with applicable federal and state laws, rules, and regulations and provided further that the failure to take any such action shall not limit Customer’s responsibility for all usage of the Services. You must also report and pay any applicable taxes to the appropriate governmental agencies and you hereby indemnify APBX against any claim arising out of your failure to do so.
RETURNS AND ADJUSTMENTS. No Equipment may be returned by Customer for any reason without prior approval of APBX. All returns shall be in original packaging or equivalent. Customer shall be responsible for all costs related to shipping to APBX any Equipment that is being returned. Any Equipment returned to APBX without prior authorization for its return or proper packaging may be refused. In order to obtain an appropriate refund, upon cancellation Customer must immediately obtain a return material authorization number from APBX, return to APBX any Equipment provided hereunder, undamaged and in good working condition, in its original packaging and with its original content or otherwise will be immediately responsible for paying to APBX an amount equal to the fair retail price of the equipment minus any payments Customer had previously paid specifically for such Equipment.
TERM. The Service provided shall continue in perpetuity unless and until terminated by either party in accordance with the terms enumerated herein, or by written notice to the other party of not less than thirty (30) days prior to desired termination date. In the event Customers does not provide at least thirty (30) days’ notice, the termination date will be thirty (30) days from the date notice is received. Customer is responsible for all charges, including usage, until the termination date. In the event Customer and APBX have entered into a term agreement for the Services, the term period, and any other terms shall govern the relationship between the parties together with these Terms of Service. In the event of a conflict of terms between the term agreement and these Terms of Service, the term agreement shall control as to the conflicting terms and the remaining terms in these Terms of Service shall still apply.
NON-PAYMENT. If timely payment cannot be charged to your credit card or other automated billing account for any reason following three (3) days from the then-current billing cycle, without any notice to you, APBX reserves the right to either suspend or terminate your access to and/or receipt of the Services and Software and to terminate this Agreement. If APBX receives an authorized cancellation notice from you and in accordance Section 2 above, you will be obligated to pay balance any outstanding balance incurred or due on your account, whether such balance has been billed to you or not. You agree that APBX may charge such unpaid balance to your credit card or other automated billing account, or otherwise bill you for such unpaid balance. Delinquent payments are subject to a late-payment charge of 1.5% of the outstanding balance.
LICENSE GRANT. APBX hereby grants, and Customer accepts, a limited, non-exclusive, non-transferable, revocable license to use the Services and Software for Customer’s internal business use only. The grant of the license to use the Software is limited to the right of use in connection with the Services provided by APBX and shall not entitle Customer to use the Software in any other circumstance. Further, to the extent it can, APBX hereby grants, and Customer accepts, a limited, non-exclusive, non-transferable, revocable license to use and to display the audio and visual information, documents, products and software contained in or made available through the Services and Software (the "Content") solely for Customer’s own internal business purposes. All rights not expressly granted by APBX to Customer are hereby expressly retained by APBX. This license shall terminate immediately upon the termination or expiration of this Agreement regardless of the reason.
RESTRICTIONS. Customer shall not, and shall not permit any third party to, modify, decompile, reverse engineer, recreate, disassemble, or otherwise attempt to determine the makeup of the Software or Services. Customer is permitted to store, manipulate, analyze, reformat, print, and display the Content only for its internal business purposes. Unauthorized use of the Content, Services or Software, or the resale or sublicensing of the Content, Services or Software, is expressly prohibited. You shall not transfer, make available, distribute, or assign the Content, Services, Software or this Agreement to any third party. You also shall not create an Internet "link" to the Services or Software, or "frame" or "mirror" any Content contained on, or accessible from, the Services or Software on any other computer server or Internet-based device.
THIRD PARTY INTERACTION. In your receipt or use of the Services and Software, you may enter into correspondence with, purchase goods and/or services, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity are solely between you and the applicable third-party. APBX shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party facilitated by the Services or Software.
LINKS TO THIRD PARTY SITES. APBX does not endorse any sites on the Internet which are linked through the Services and/or Software, if any. APBX may provide these links to you only as a matter of convenience, and APBX shall have no liability, obligation or responsibility for any such any content, products, or other materials on or available from such sites or for any negative effect on Customer, or any hardware or software of Customer, that is caused, whether directly or indirectly, by Customer’s interaction with any sites on the Internet which are linked through the Services and/or Software.
USER ACCOUNTS. Customer understands and agrees that, where applicable in APBX discretion, a user account is required to access the Services and Software. Where a user account is required, that user account may be accessed and used only by those individuals who are registered with and accepted by APBX as having a user account (an "Authorized User"). Customer may add additional Authorized User accounts in the course of receiving and/or using the Services and Software, and in doing so, you agree to pay all charges associated therewith. The Customer or the Authorized User will specify a personal, non-transferable password. Authorized User accounts may not be "shared" or used by more than one named individual, other than the administrative "operator" account that may be used by an appropriate number of individuals required to administer the use of Services and Software within Customer’s organization.
AUTHORIZED USER RESPONSIBILITIES. Customer is solely responsible for creating and protecting the confidentiality of all passwords, for restricting access to the Services and Software to Authorized Users within your organization and for preventing unauthorized access both from within and from outside of your organization. Customer is also solely responsible for any and all activities that occur during the use of the Services and Software accessed through your password(s), and for ensuring that Authorized Users exit or log-off from their accounts at the end of each session of use. Customer shall notify APBX immediately of any unauthorized use of passwords or Authorized User accounts, any copying, reverse engineering or distribution of the Content, Services or Software (or any attempt at these actions), or of any other breach or attempted breach of security that is known or suspected by Customer or an Authorized User. Notwithstanding this notice requirement, Customer shall use its best efforts to stop immediately any unauthorized use of passwords or Authorized User accounts, any copying or distribution of the Content, Services or Software that is known or suspected. Except as expressly provided for herein, APBX shall not be responsible for any unauthorized access to, or alteration of, any transmissions, data, material or information sent or received, regardless of whether the transmission or data is actually received by APBX during the use of the Services or Software or caused by the failure of the Customer or any Authorized User to abide by this Agreement.
ACCOUNT INFORMATION AND DATA. APBX does not own any data, information or material that Customer submits to the Services ("Data"), unless APBX specifically tells you otherwise before you submit it. Except as set forth herein or otherwise required by law, APBX will not monitor, edit, or disclose any information regarding you or your account, including any Data, without your prior permission, except in accordance with this Agreement. APBX does provide certain user registration and statistical information such as usage or user traffic patterns in aggregate form to third parties, but such information will not include any identifying information. APBX may access Customer’s account, including its Data, to respond to technical problems with the Services and/or Software, or as provided for in this Agreement. Customer, not APBX shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data and, except as provided for herein, APBX shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data. Customer understands and agrees that it shall be Customer’s sole obligation to take, and that it will take, all measures necessary to protect its Data, including without limitation, the timely backup of all Data on one or more systems that operate independently from the system associated with the Services and Software.
USE, STORAGE AND OTHER LIMITATIONS. APBX reserves the right to establish or modify general practices and limits concerning use of the Services and Software, including without limitation, the maximum number of days that Content will be retained by the Service, the maximum disk space that will be allotted on servers owned and/or operated by APBX on your behalf, the maximum utilization of telephone lines and minutes and the maximum number of e-mails or faxes transmitted, if any. Where practical, APBX will provide you with prior notice of such new or modified practices; provided however, that APBX shall have the absolute right to implement such new or modified practices without prior notice in its sole discretion and without liability or any kind.
ELECTRONIC RECORDINGS. Customer acknowledges and understands that there are federal and state statutes governing the electronic recording of telephone conversations and that APBX will not be liable for any illegal use of the service. Because Customer circumstances vary widely, Customers should carefully review their own circumstances when deciding whether to use the recording features of the service and it is the Customer's responsibility to determine if the electronic recordings are legal under applicable federal and state laws. APBX is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or the use of its products by the Customer, whether legal or illegal, and Customer will indemnify and hold APBX harmless for any claims, damages, fines, or penalties arising out of Customer's failure to adhere to applicable electronic recording laws.
AUTHORIZED USER CONDUCT. Federal and state laws may govern use of the Service. Customer hereby agrees to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with use of the Services and Software. Customer acknowledges that APBX merely provides the Services, and that the responsibility to use the Service in a lawful manner lies solely with Customer. Customer further agrees to abide by all Terms of Service as set forth herein and other rules, regulations of APBX as herein or otherwise stated and as amended and supplemented from time to time. In addition, without limitation, Customer agrees not to use the Services or Software: (a) in connection with sending unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative messages, whether commercial or otherwise; (b) to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (c) to transmit through or post with the Services or Software unlawful, harassing, libelous, abusive, harassing, tortious, defamatory, threatening, harmful, invasive of another's privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way under the law or otherwise; (d) to transmit or knowingly to accept any material that may infringe the intellectual property rights or other rights of third parties, including, but not limited to, trademark, copyright or right of publicity; (e) to transmit or knowingly to accept any material that contains software viruses or other harmful or deleterious computer codes, files or programs such as, but not limited to, Trojan horses, worms, time bombs or cancel boots; (f) to interfere with or disrupt or to attempt to interfere with or disrupt computer servers or networks connected to the Services and/or Software or violate the regulations, policies or procedures of such networks; (g) to attempt to gain unauthorized access to or to gain access to the Services and/or Software, other accounts, computer systems or networks connected to the Services and/or Software, through password mining or any other means; or (h) to harass or interfere with another user's use and enjoyment of the Services or Software, whether or not they are an Authorized User; and (i) to unlawfully record conversations in violation of applicable federal and state law.
TERMINATION. APBX in its sole discretion, may terminate your password, account or receipt and/or access to or use of the Services and Software, as well as all Data associated therewith, and remove and return or dispose of any Data within APBX control, immediately and without notice if you fail to comply with this Agreement. You may terminate this Agreement if APBX breaches this Agreement and fails to cure such breach within ten (10) days its receipt of written notice thereof. If Customer is not in breach of this Agreement, and requests in writing within ten (10) days of termination, APBX shall make available a file containing all Customer Data that is available on APBX system as of the date of the request. APBX shall have no obligation to make such Data available if this Agreement is terminated because of Customer’s breach or where Customer has failed to pay any amount billed by APBX in a timely manner. Customer expressly acknowledges and agrees that APBX shall have no liability whatsoever to Customer where it fails or is unable to make available Data to Customer following the termination of this Agreement. In addition, APBX may terminate an Authorized User account if they do not first log-on within thirty (30) days after registration or ninety (90) days has transpired since their last log-on. APBX may terminate this Agreement in the event that Customer does not first log-on within thirty (30) days after entering it or ninety (90) days has transpired since Customer’s last log-on. Upon termination of an Authorized User account or this Agreement pursuant to this Section 13, the Authorized User’s and Customer’s rights to use such account and/or the Services and/or Software shall immediately cease, and APBX shall have no obligation to maintain any Data within its control or to make available any Data to Customer or any third party. Customer may, in accordance with these Terms of Service, terminate the Service for convenience upon written notice to APBX of not less than thirty (30) days. Customer acknowledges and agrees that APBX will charge any unpaid pro-rata charges for the Service upon the effective termination date.
PROPRIETARY RIGHTS. The license granted herein shall not be deemed to grant you any right, title or interest in or to the Services, Software or any Content and, in all circumstances APBX shall be deemed to retain all right, title and interest, including copyright and all other intellectual property rights, in and to the Services, Software and Content. All rights not expressly granted by APBX to Customer are hereby expressly retained by APBX and nothing herein shall be deemed to authorize the Customer to use any trademark or service mark of APBX. The Customer shall not remove or alter any copyright and/or trade secret notice affixed to any of the Services, Software or Content.
COOKIES. Where applicable, cookies are files that your web browser may place on your computer's hard drive and are used to tell APBX whether an Authorized User has used the Services and/or Software previously. APBX may use a persistent cookie to help save and retrieve Authorized User names and other information. APBX may issue a session cookie only to record encrypted authentication information of the Authorized User for the duration of a specific session. The session cookie does not include either the username or password of the Authorized User. You agree to allow APBX to place cookies on any computer connecting to the Service, and to allow all such cookies to reside thereon for the term of this Agreement. APBX shall not be liable for any negative effect that the placement of one or more cookies may have on the operation of your computer hardware or software, including without limitation, any loss of data, and you expressly waive any and all claims that you may have against APBX arising, whether directly or indirectly, out of such placement.
LOCAL LAWS AND EXPORT CONTROL. APBX controls and operates the Services and Software from a chosen location in the United States of America and is subject to the United States Export Administration Laws and Regulations. APBX makes no representation that the Services or Software are appropriate or available for use in other locations. If you use the Services or Software from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Services, Software or Content contrary to United States’ law is prohibited. None of the Software or Content, nor any information acquired through the use of the Services and/or Software, has or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor is or will be used for nuclear activities, chemical biological weapons, or missile projects, unless specifically authorized by the United States Government for such purposes. You shall comply strictly with all United States export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
DISCLAIMER OF WARRANTIES. APBX AND ITS LICENSORS (IF ANY), MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, THE SOFTWARE OR ANY OF THE CONTENT, THE DATA OR OTHER INFORMATION OR DATA OBTAINED THROUGH THE USE OF THE SERVICES AND/OR SOFTWARE. APBX AND ITS LICENSORS, IF ANY, DO NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE SERVICES AND/OR SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (II) THE SERVICES AND/OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; (III) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY, RELIABILITY OR WORKMANSHIP OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE USE OF THE SERVICES AND/OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS; OR (V) THE SERVICES OR SOFTWARE OR THE SERVER(S) THAT MAKE THE SERVICES AND/OR SOFTWARE AVAILABLE ARE OR WILL BE FREE OF ERROR, MALFUNCTIONS, VIRUSES OR OTHER HARMFUL OR DEFECTIVE COMPONENTS. THE SERVICES AND SOFTWARE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY EXPRESSLY AND CONSPICUOUSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY APBX. AND ITS LICENSORS (IF ANY). ANY EQUIPMENT PURCHASED THROUGH OR FROM APBX MAY INCLUDE A WARRANTY FROM THE MANUFACTURER, WHICH SHALL BE SOLELY BETWEEN YOU AND THE MANUFACTURER.
LIMITATION OF LIABILITY. IN NO EVENT SHALL APBX AGGREGATE LIABILITY EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL APBX AND/OR ITS LICENSORS (IF ANY) BE LIABLE TO ANYONE, CUSTOMER, AN AUTHORIZED USER OR OTHERWISE, FOR ANY SPECIAL INCIDENTAL , INDIRECT, STATUTORY, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OF ANY KIND WHATSOEVER, OR FOR ANY LOSS OF DATA, LOST PROFITS, BUSINESS AND REVENUE LOSS OF GOOD WILL, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF OR RELATED IN ANY WAY WHATSOEVER OR CONNECTED TO THE SERVICES, SOFTWARE, CONTENT, THIS AGREEMENT (OR THE BREACH HEREOF) OR ANY CONTENT, INFORMATION OR DATA OTHERWISE OBTAINED FROM OR THROUGH THE SERVICES AND/OR SOFTWARE, WHETHER SUCH CLAIMS ARE BASED ON BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, ANY FEDERAL OR STATE STATUTORY CLAIM, OR ANY OTHER LEGAL OR EQUITABLE THEORY, THE FOREGOING LIMITATION SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEMDY SPECIFIED IN THIS AGREEMENT IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, APBX SHALL HAVE NO LIABILITY WHATSOEVER IN THE EVENT CUSTOMER HAS MISCONFIGURED ANY TELEPHONE OR OTHER DEVICE CONNECTING TO THE SERVICE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LIMITATION TO APBX IS A MATERIAL TERM TO APBX AND THAT IT WOULD NOT OTHERWISE ENTER INTO THIS AGREEMENT WITHOUT THIS LIMITATION, AND THAT CUSTOMER AGREES THESE LIMITATIONS ARE REASONABLE. ANY ACTION BY EITHER PARTYMUST BE BROUGHT WITHIN ONE (1) YEAR.
FORCE MAJEURE. Neither party shall be liable for any failure to perform its obligations under this Agreement because of circumstances beyond reasonable control of such party, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, war, global or regional internet outages, power failures, any acts or omissions of any government or governmental authority, declarations of government, or transportation delays.
ADDITIONAL RIGHTS. CERTAIN STATES AND/OR JURIDISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIOIN OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE NOT APPLY TO YOU.
BREACH. In the event of Customer's breach of the terms of the Agreement, including without limitation, failure to pay any sum due hereunder, Customer shall reimburse APBX for all attorneys' fees and court, collection and other costs incurred by APBX in the enforcement of APBX's rights hereunder and APBX may keep any deposits or other payments made by Customer.
INDEMNIFICATION. Customer hereby indemnifies and holds APBX its licensors, and each such party's parents, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with Customer’s receipt and/or use of the Services, Software, Content and/or Data (including any actual or alleged infringement of any third party’s intellectual property or rights) or breach of any of the terms and conditions of this Agreement.
SUBMISSIONS. APBX alone will own all right, title and interest, including all related intellectual property rights, to any suggestions, ideas, feedback, recommendations, or other information provided by you relating to the Services or the Software or otherwise ("Submissions"), and you agree to assign such Submissions to APBX free of charge and to waive any and all right to any compensation should APBX elect, in its discretion, to implement, sell or otherwise utilize such suggestions, ideas, feedback, recommendations, or other information provided by you. Customer agrees to perform, during and after the term of this Agreement, all acts deemed necessary or desirable by APBX to permit and assist it in evidencing, perfecting, obtaining, maintaining, defending and enforcing rights and/or Customer’s assignment with respect to such assigned rights to the Submissions. Such acts may include, but are not limited to, execution of documents and assistance or cooperation in legal proceedings. APBX may use such Submissions as it deems appropriate and in its sole discretion.
NOTICE. APBX may give notice by means of a general notice through the Services, electronic mail to your e-mail address on record in APBX account information, or by written communication sent by first class mail to your address on record in APBX account information. You may give notice to APBX (such notice shall be deemed given when received by APBX) at any time by any of the following: electronic mail to email@example.com letter sent by confirmed facsimile to APBX at the following fax number: 888-820-0101, or by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to APBX at the following address: APBX LLC, 5201 Blue Lagoon Dr, 8th Floor, Miami, FL 33126.
DISPUTES. Customer shall give the APBX written notice of the dispute within Ten (10) days of the date shown on the billing summary. Such notice shall include a complete description of all bases for each dispute and shall include all documents necessary for APBX to evaluate each dispute. The existence of a validly filed dispute shall in no way relieve Customer of its obligation to pay all amounts billed by APBX including any disputed amounts. Failure by Customer to provide notice, description or documents within such ten (10) day period shall constitute an irrefutable presumption that all billed amounts are correct, due and owing. In the event that a proper dispute arising out of or relating to this Agreement is provided, the parties will attempt to resolve such dispute in good faith through negotiation. In the event a resolution cannot be reached within ten (10) days of the submission of a dispute, such controversy or claim shall be negotiated between appointed counsel or senior executives of the parties who have authority to settle the controversy. If the parties fail to resolve such controversy or claim within thirty (30) days of the disputing party’s notice, or in the case of non-payment of amounts due, within three (3) days of the disputing party’s notice, either party may seek resolution to the dispute through arbitration as set forth below.
DISPUTE RESOLUTION. All disputes arising out of or related to the provision of any Service by APBX to Customer shall be resolved by binding arbitration. All arbitrations shall be filed in either the City of Miami or Miami-Dade County Florida. The arbitration shall be conducted before a single arbitrator in accordance with the commercial rules and practices of the American Arbitration Association then in effect.
The arbitrator shall have the power to order specific performance if requested. Any award, order, or judgment pursuant to such arbitration shall be deemed final and binding and may be enforced in any court of competent jurisdiction. The parties agree that the arbitrator shall have no power or authority to make awards or issue orders of any kind except as expressly permitted by this Agreement, and in no event shall the arbitrator have the authority to make any award that provides for punitive or exemplary damages. All such arbitration proceedings shall be conducted on a confidential basis. A failure, by any party, to appear and participate in arbitration proceedings will permit the participating party to obtain a default award. The arbitrator may, as part of the arbitration award, permit the prevailing party to recover all or part of its attorney’s fees and other out-of-pocket costs incurred in connection with such arbitration.
MODIFICATION TO TERMS. APBX reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Services and/or Software by giving Customer thirty (30) days’ notice thereof. Customer’s continued use of the Services and Software after any such modifications shall constitute consent to such changes.
WAIVER. No term or provision herein shall be waived, and no breach or default excused, unless such waiver or consent is in writing and signed by the Party to which it is attributed. No consent by a party to, or waiver of, a breach or default by the other, whether expressed or implied, shall constitute a consent to or waiver of, any subsequent breach or default.
ASSIGNMENT. Neither this Agreement, nor any rights or obligations under it may be assigned by Customer without the prior express written consent of APBX.
PARTIAL INVALIDITY. If any provision of this Agreement shall be held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render this Agreement unenforceable, but rather this Agreement shall be construed as if not containing the invalid or unenforceable provision. However, if such provision is an essential element of this Agreement, the Parties shall promptly attempt to negotiate a substitute therefor.
ENTIRE AGREEMENT. This Agreement, together with any attached schedule(s) or attachment(s), and all service orders, represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes all other agreements, written or oral, between the Parties relating to the Service. This Agreement supersedes any and all prior agreements between APBX and Customer with respect to the provision of Services. As of the Effective Date hereof, all said prior agreements shall be rendered null and void and have no further force or effect. Further, as of the Effective Date hereof, any and all Service provided pursuant to said prior agreements, if any, shall henceforth be governed by and provided subject to the terms of this Agreement.
RELATIONSHIP OF PARTIES. Neither this Agreement nor the provision of Service hereunder shall be deemed to create any joint venture, partnership or agency between APBX and Customer. The parties are independent contractors and shall not be deemed to have any other relationship. Neither party shall have, or hold itself out as having, the power or authority to bind or create liability for the other by its intentional or negligent act.