THIS
AGREEMENT ("Agreement") is
between Nikkom LLC. ("we," "us" , "Nikkom" or
”Service Provider”), and the user ("you," "user" or
"Customer") of Nikkom Residential or Small Business enhanced communications
or telecommunications services and any related products or services
("Service"). Both the Service and any devices, such as an IP phone,
Multimedia Terminal Adapter, Analog Telephone Adapter or any other IP
connection device ("Device" or "Equipment"), used in conjunction
with the Service. By activating the
Service, you acknowledge that you have read and understood, and you agree, to
the terms and conditions of this Agreement, and you represent that you are of
legal age to enter this Agreement and become bound by its terms. Also, by activating and/or using the
Service, you agree that you are also bound by the terms of Nikkom’s applicable
state and/or federal tariffs, rate schedules, and public disclosures, which are
incorporated into this agreement by reference.
1. SERVICE
1.1 Term Service
is offered on a calendar-month basis, for an initial term that begins on the
date that Nikkom activates your Service and ends on the last day of the month
of your activation. Subsequent terms of
this Agreement automatically renew on a monthly basis without further action by
you unless you give Nikkom notice of non-renewal at least ten [10] days before
the end of the monthly term in which the notice is given. If you terminate
Service prior to the end of a monthly term, you will be responsible for the
full month's charges to the end of the then-current term and any and all
outstanding charges. Customer is responsible for, and shall pay, any applicable
federal, state, municipal, local or other governmental sales, use, excise, value-added,
personal property, public utility or other taxes, fees or charges now in force
or enacted in the future, that arise from or as a result of Customer's
subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for
the Service or Devices and will be billed to your account.
1.2.1 Residential Use of
Service and Device If you have
subscribed to Nikkom’s Residential services, the Service and Device are
provided to you and your household as a residential user, for your personal,
residential, non-business and non-professional use. This means that you are not using them for
any commercial or governmental activities, profit making or non-profit. If you fail to comply with these limitations,
Nikkom reserves the right to immediately terminate or modify the Service, if
Nikkom, determines, in its sole discretion and in accordance with Applicable
Law and/or the rules and regulations of appropriate state and federal
regulatory bodies, that Customer's Service is being used for non-residential or
commercial use. Further, and notwithstanding the above, Nikkom reserves the
right to classify a Residential Customer as a business customer if, in Nikkom’s
sole discretion, the Customer’s calling patterns reasonably indicates business
or abusive usage or the Customer exceeds 4000 minutes of outgoing calls in a given month. If a Customer demonstrates business or abusive usage
patterns, Nikkom will charge this account as if it were a business customer
1.2.2 Small Business Use of Service and Device -
Prohibition on Resale. If you have
subscribed to Nikkom’s Business services, the Service and Device are provided
to you as a business user. This means
that you are not to resell or transfer the service or device to any other
person for any purpose. You agree that the Nikkom Business Plans are for
ordinary and usual office voice communications and do not confer the right to
use the service for auto-dialing, continuous or extensive call forwarding,
telemarketing, fax broadcasting, fax blasting, or any type of automated or
continuous use. Nikkom reserves the right to immediately terminate or modify
the Service, if Nikkom determines, in its sole discretion, that Customer's
Service is being used for any of the aforementioned activities, in accordance
with Applicable Law regarding such terminations.
1.2.3 Bundled Service: You acknowledge and agree that the Services are
offered on a bundled basis (including local, toll, long distance and
international service) and cannot be separated.
I acknowledge that these services (local, toll, and long distance) are
not available individually and that in order to maintain each of the services
in the bundle, one must maintain the others on the same service line. Should you wish to change any of these
service providers from Nikkom, You will terminate your Service with Nikkom.
1.2.4
Equipment Non-Return Fee: You will be charged an equipment non-return
fee of $59.95 per Device obtained from Nikkom upon termination of Service for
any reason regardless of if such termination is by Nikkom or you. The
equipment non-return fee becomes due and payable immediately upon termination
and will be
billed directly to
your credit card. If you have multiple Devices, you will be charged an
equipment non-return fee of $ 59.95 per Device for each Device belonging to
Nikkom in your possession To
receive a credit for the equipment non-return fee, you must return the
Device(s) undamaged and in original condition within fourteen (14) days of
termination. Nikkom will not credit you if the Device(s) is damaged or
not in its original condition as received by you. In the event you
disconnect multiple lines, Nikkom will issue you a credit for all equipment
non-return fees upon receipt of all Devices (e.g., Multimedia Terminal
Adapters, etc.) in accordance with this Section. Further, Nikkom reserves the right to charge
you for any power cables, network cables or other incidental equipment
(“Equipment”) provided to you in addition to the Device should such Equipment
not be returned.
1.3 Lawful Use of Service and Device
1.3.1 Prohibited Uses: You agree to use the Service and Device only for
lawful purposes. This means that you
agree not to use them for transmitting or receiving any communication or
material of any kind when in Nikkom's sole judgment the transmission, receipt
or possession of such communication would constitute a criminal offense, give
rise to a civil liability, or otherwise violate any applicable local, state,
national or international law. Nikkom reserves the right to terminate your
service immediately and without advance notice if Nikkom, in its sole
discretion, believes that you have violated the above restrictions, or any
Applicable Tariff term, leaving you responsible for the full month's charges to
the end of the current term, including without limitation unbilled charges,
plus an equipment non-return fee, all of which immediately become due and
payable, as may be permitted under Applicable Law. You are 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 and agree to indemnify and hold harmless Nikkom against any and
all liability for any such use that fails to comply with this Section
1.3.1. If Nikkom, in its sole discretion
believes that you have violated the above restrictions, Nikkom may forward the
objectionable material, as well as your communications with Nikkom and your
personally identifiable information to the appropriate authorities for
investigation and prosecution.
1.3.2 Use of Service and Device by Customers Outside
the United States: While we encourage use of the Service within the United States
to other countries, Nikkom does not presently offer or support the Service to
customers located in other countries. If
you remove the Device to a country other than the United States and use the Service from
there, you do so at your own risk, including the risk that such activity
violates local laws in the country where you do so. You are 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. Transport or
sale of the Device outside of the United States may result in a
violation of US or foreign technology import/export laws or rules; compliance
with which is your sole responsibility.
1.4 Loss of Service Due to Power Failure: You acknowledge
and understand that the Service does not function in the event of power
failure. Should there be an interruption
in the power supply to your Device or at any point in your transmission path,
the Service will not function until power is restored. A power failure or disruption may require the
Customer to reset or reconfigure equipment including your Device or any
connecting equipment in your transmission path prior to utilizing the
Service. Power disruptions or failures
will also prevent dialing to emergency service numbers including any
911-calling feature that may be activated in or accessed by your Service.
1.5 Copyright / Trademark / Unauthorized Usage of
Device, Firmware or Software: The
Service and Device and any firmware or software used to provide the Service or
provided to Customer in conjunction with providing the Service, or embedded in
the Device, and all Services, information, documents and materials provided or
offered by Nikkom and on Nikkom's website(s) are protected by trademark, copyright
or other intellectual property laws and international treaty provisions. All websites, corporate names, service marks,
trademarks, trade names, logos and domain names (collectively
"marks") of Nikkom are and shall remain the exclusive property of Nikkom
and nothing in this Agreement shall grant you the right to right or license to
use such marks. You acknowledge that you
are not given any license to use the firmware or software used to provide the
Service or provided to Customer in conjunction with providing the Service, or
embedded in the Device, other than a nontransferable, revocable license to use
such firmware or software (without making any modification thereto) strictly in
accordance with the terms and conditions of this Agreement, and that the Device
is exclusively for use in connection with the Service. If you decide to use the Service through an
interface device not provided by Nikkom, which Nikkom reserves the right to
prohibit in particular cases or generally, you warrant and represent that you
possess all required rights, including software and/or firmware licenses, to
use that interface device with the Service and you will indemnify and hold
harmless Nikkom against any and all liability arising out of your use of such
interface device with the Service.
1.6 Tampering with the Device: You agree not
to change the electronic serial number or equipment identifier of the Device,
or to perform a factory reset of the Device, without express permission from
Nikkom in each instance. Doing so shall constitute a violation of this
Agreement.
1.7 Theft of Service: You agree to
notify Nikkom immediately, by calling the Nikkom customer service line, if the
Device or Service is stolen or if you suspect or become aware at any time that
your Service is being stolen or fraudulently used. You will be liable for all use of the Service
using a Device or Access Code stolen from you and any and all stolen Service or
fraudulent use of the Service until Nikkom is informed of the theft.
1.8 Delivery or Warranty of Device; Ownership of the
Device: If Customer receives cartons and/or Devices
that are visibly damaged, please note the damage on the carrier's freight bill
or receipt and keep a copy. Keep the
original carton, all packing materials and parts intact and contact Nikkom's
customer care department immediately. Warranty coverage varies depending on the
type of Device that Customer chooses.
Please refer to the Nikkom warranty materials included in the packaging
of your Device(s). If Customer purchased the Device new from Nikkom and the
Device included a limited warranty at the time of purchase, Customer must refer
to the separate limited warranty document for information on the limitation and
disclaimer of certain warranties. If
Customer's Device did not include a limited warranty from Nikkom at the time of
purchase, Customer agrees that it accepts its Device "as is" and that
Customer is not entitled to replacement or refund in the event of any
defect. You understand that any Device
provided by Nikkom for use with the Service is and remains the exclusive
property of Nikkom unless purchased in full by you. Nothing in these terms
should be construed to confer any title, rights of ownership, or other property
rights onto you, the Customer.
1.9 Number Transfer on Service Termination: Nikkom may,
solely at the Company's discretion, release the telephone number that was
ported in to Nikkom by you and used in connection with your Service provisioned
by Nikkom to your new service provider, if such new service provider is able to
accept such number, upon your termination of the Service, and provided (i) your account has been terminated; and (ii) you request
the transfer upon terminating your account.
1.10 Service Distinctions: You
acknowledge and understand that the Service has different technical limitations
than a traditional telephone service. Technical differences exist between
traditional telephone service and this Service offering provided by Nikkom. The
Service may be subject to different regulatory treatment than traditional or wireline phone service. This treatment may limit or
otherwise affect your rights and responsibilities before Federal and State
regulatory agencies.
2. EMERGENCY SERVICES- 911 DIALING
2.1 Differences in Availability and Operation of
Emergency Dialing Service ("911" or "E911"): You
acknowledge and understand that the Service does NOT function or connect the
same way as traditional copper, fiber or wireline
telecommunications support for traditional 911 or E911 access to emergency
services. The 911/E911 Services offered by the Company in conjunction with
these services are available only on Nikkom-provided or other approved Devices
as described herein, and only in specific areas, as specified by the Company,
but you acknowledge and understand that 911-type dialing is NOT automatic. When ordering the service, you must
separately activate such 911-type dialing capabilities by specifically
requesting them at the time of service activation or thereafter, subject to
Nikkom, governmental and/or industry technical approval, availability and
restrictions, with specific confirmation from Nikkom, as described herein. Such request must contain specific
information as requested, and as may be modified by Nikkom in its sole
discretion from time to time, and must be accompanied by your acceptance of the
specific term, conditions and responsibilities attendant thereto, including but
not limited to maintenance and communication to Nikkom in advance of any
changes in information relating to the physical location for which the 911-type
capabilities may be activated, and/or authorized login, passwords and
authorized users on the account.
Nikkom 911 dialing cannot be used in conjunction with
any "Soft Phone" ("download") application. You agree to
inform any household residents, guests and other third persons who may be
present at the physical location where you utilize the Service as to the
non-availability of traditional 911 or E911 dialing from your Nikkom Service
and Device(s). If you activate Nikkom
911-type dialing service, you agree to inform any household residents, guests
and other third persons who may be present at the physical location where you
utilize the Service as to the important differences and limitations of Nikkom
911 dialing service as compared with traditional 911 or E911 dialing, as set
forth in this Agreement, including without limitation the conspicuous posting
on the device of any caution or warning materials as may be appropriate, and
you agree to make reasonable efforts and use reasonable judgment in informing
them of the proper and specific operation and requirements of the Service, if
available, and/or to restrict third parties' access to the Service for any
purpose.
2.2 Description of 911-Type Dialing Capabilities - Activation
Required: You acknowledge and understand that 911-type
dialing is NOT automatic. You
acknowledge and understand that you cannot dial 911 from this line unless and
until you have received a confirming email regarding service activation
generally and a primary number assignment associated with the geographic
location you have provided and agree to maintain. Once you have received a confirming email
that such limited 911 dialing has been successfully activated according tot his
Agreement and any amendments hereto that may be posted from time to time on the
Nikkom website, you may dial 911 as needed, provided that all other Service
requirements, including but not limited to, power supply, broadband internet
connection, internet service provider login or "timing out" (even
with an automatic restart – that may cause a reassignment by your internet
service provider of a different session-based internet address), and Service
login are activated, operational and uninterrupted for the entire duration of the
call. When you dial 911 from your
designated physical location, your call is routed from the Nikkom network to
the Public Safety Answering Point (PSAP) or to local emergency service
personnel designated for the address that you listed at the time of activation
and confirmation. Nikkom can only route
911-type calls within certain geographic areas, from Nikkom-provided devices
and IP phone primary number assignments designated by Nikkom as geographically
appropriate, as locations within such areas may be confirmed by Nikkom upon
service activation. You acknowledge and
understand that any 911-type calls made from any physical or geographical
location other than the physical location designated and associated with the
account, regardless where a caller or third party desires or requires emergency
assistance, will fail. WHEN YOU DIAL 911
ON YOUR PHONE UTILIZING NIKKOM VOIP SERVICE, YOUR CALL MAY BE ROUTED TO A
DIFFERENT DISPATCHER THAN THAT USED FOR TRADITIONAL 911 DIALING. THE DISPATCHER
WILL BE LOCATED AT EITHER THE PUBLIC SAFETY ANSWERING POINT (PSAP) OR WILL BE
LOCAL EMERGENCY SERVICE PERSONNEL DESIGNATED FOR THE ADDRESS YOU LISTED AT THE
TIME YOU REGISTERED FOR THE SERVICE.
As described herein, this 911-type dialing currently
is NOT the same as traditional 911 or E911 dialing, and at this time, does not
necessarily include all of the capabilities of traditional 911 dialing. Note, in particular, that certain features of
"E911" may not be available in your area or technically feasible via
this Service. While certain call-back
capabilities, if they are available, may function on this Service, any
interruption – before, during or after any call -- in power supply, broadband
internet connection, internet service provider login or "timing out"
(even with an automatic restart – that may cause a reassignment by your
internet service provider of a different session-based internet address), or
Service login may cause these features to fail.
2.3 Service Outage:
2.3.1 Power Outage: You acknowledge and understand
that 911 dialing, like the Service as a whole, does not function in the event
of a power failure. Should there be an
interruption in the power supply, the Service and 911 dialing will not function
until power is restored. A power failure
or disruption may require the Customer to reset or reconfigure equipment,
connections or logins, prior to utilizing the Service or 911 dialing.
2.3.2 Broadband Service Outage: You
acknowledge and understand that service outages or interruptions by your
broadband provider will prevent ALL Service including 911 dialing. Even a brief interruption in your broadband
internet connection may cause the Service and 911 calling to fail until
Customer resets or reconfigures equipment, connections or logins.
2.3.3 Service Outage Due to Suspension of Your
Account: You acknowledge and understand that service
outages due to suspension of your account as a result of billing issues will
prevent ALL Service, including 911 dialing.
2.3.4 Other Service Outages: You
acknowledge and understand that if there is a service outage for ANY reason,
such outage will prevent ALL Service, including 911 dialing. Such outages may occur for a variety of
reasons, including, but not limited to, those reasons described elsewhere in
this Agreement.
2.3.5 Limitation of Liability and Indemnification: You
acknowledge and understand that the Company's liability is limited for any
Service outage and/or inability to dial 911 from your line or to access
emergency service personnel, as set forth in this document, and applicable
Tariffs. YOU AGREE TO DEFEND, INDEMNIFY,
AND HOLD HARMLESS NIKKOM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES AND
AGENTS AND ANY OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO YOU IN
CONNECTION WITH THE SERVICE, FROM ANY AND ALL CLAIMS, LOSSES, DAMAGES, FINES,
PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE
ATTORNEY FEES) BY, OR ON BEHALF OF, YOU OR ANY THIRD PARTY OR USER OF THE
SERVICE RELATING TO THE FAILURE OR OUTAGE OF THE SERVICE, INCLUDING THOSE
RELATED TO 911 DIALING.
2.4 Requires Activation: You
acknowledge and understand that 911 dialing does not function unless you have
successfully activated the 911dialing feature on your account, and until such
later date that such activation has been confirmed to you through a confirming
email, and until you have carefully reviewed the email and, if indicated, have
responded to any informational errors or discrepancies in such email, and, if
applicable, such errors, if any, are corrected and the corrections confirmed in
writing by Nikkom. YOU ACKNOWLEDGE AND
UNDERSTAND THAT YOU CANNOT DIAL 911 FROM THIS LINE UNLESS AND UNTIL YOU HAVE
RECEIVED A CONFIRMING EMAIL. You agree
to carefully review the confirmation email for any errors in your account
information, and understand and acknowledge that Nikkom relies exclusively on
you to provide and review the correct information for providing your Service.
2.5 Failure to Designate the Correct Physical Address
When Activating 911 Dialing: IF YOU DO NOT CORRECTLY IDENTIFY THE ACTUAL
LOCATION WHERE YOUR NIKKOM EQUIPMENT WILL BE LOCATED AT THE TIME YOU REGISTER
FOR THE SERVICE, 911 COMMUNICATIONS MAY BE MISDIRECTED TO AN INCORRECT LOCAL
EMERGENCY SERVICE PROVIDER.
2.6 Requires Re-Activation if You Change Your Number: You acknowledge and understand that 911 dialing does
not function if you change your phone number unless and until you have
successfully activated the 911 dialing feature following the instructions from
service provider, and until such later date that such activation has been
confirmed to you through a confirming email.
Although you may have activated 911 dialing with your former Nikkom
phone number, you must separately activate 911 dialing for any new number.
2.7 Change of Physical Location of Equipment: 911 DIALING
WILL NOT FUNCTION CORRECTLY IF YOU MOVE YOUR NIKKOM EQUIPMENT TO A LOCATION
OTHER THAN THAT PROVIDED WHEN YOU REGISTERED FOR THE SERVICE. IN SUCH EVENT, IN
ORDER TO HAVE 911 CALLING ROUTED CORRECTLY, YOU MUST UPDATE YOUR SERVICE
ADDRESS IN ACCORDANCE WITH THE INSTRUCTIONS ON THE NIKKOM VOIP SERVICE WEBSITE.
2.8 Requires Re-Activation if You Move: You acknowledge and understand that 911 dialing does
not function properly or at all if you move or change the physical location of
your equipment to a different street address. Failure to provide the current
and correct physical address and location of your Nikkom equipment will result
in any 911 dialing you may make being routed to the incorrect local emergency
service provider
2.9 Possibility of Network Congestion and/or Reduced
Speed for Routing 911: Due to the
manner in which it is technically possible to provide the 911 dialing feature
for Nikkom VoIP Service at this time, you acknowledge
and understand that there is a greater possibility of network congestion and/or
reduced speed in the routing of a 911 communication made utilizing your
equipment as compared to traditional 911 dialing over traditional public
telephone networks. You acknowledge and
understand that your call may be routed to a different dispatcher than that
used for traditional 911 dialing. The dispatcher will be located at either the
public safety answering point (PSAP) or will be local emergency service
personnel designated for the address you listed at the time you registered for
the service. You acknowledge and understand that there may be a greater
possibility that the general telephone number for the local emergency service
provider will produce a busy signal or will take longer to answer, as compared
to those 911 calls routed to the 911 dispatcher(s) who are specifically
designated to receive incoming 911 calls using traditional 911 dialing.
2.10 Automated Number Identification: At this time
in the technical development of Nikkom 911 dialing, it may or may not be
possible for the Public Safety Answering Point (PSAP) and the local emergency
personnel to identify your phone number when you dial 911. Nikkom's system is configured in most
instances to send the automated number identification information; however, the
phone system routes the traffic to the PSAP and the PSAP itself must be able to
receive the information and pass it along properly, and they are not yet always
technically capable of doing so. You
acknowledge and understand that PSAP and emergency personnel may or may not be
able to identify your phone number in order to call you back if the call is
unable to be completed, is dropped or disconnected, or if you are unable to
speak to tell them your phone number and/or if the Service is not operational
for any reason, including without limitation those listed elsewhere in this
Agreement.
2.11 Automated Location Identification: At this time in the technical development of Nikkom
911 Dialing, it may not be possible to transmit identification of your service
address that you have listed to the Public Safety Answering Point (PSAP) and
local emergency personnel for your area when you dial 911. You acknowledge and understand that you may
need to state the nature of your emergency promptly and clearly, including your
location, as PSAP personnel will NOT have this information. You acknowledge and understand that PSAP and
emergency personnel may not be able to find your location if the call is unable
to be completed, is dropped or disconnected, if you are unable to speak to tell
them your location, and/or if the Service is not operational for any reason,
including without limitation those listed elsewhere in this Agreement.
2.12 Alternative 911 Arrangements: YOU
ACKNOWLEDGE THAT THIS SERVICE IS NOT OFFERED AS A PRIMARY LINE OR LIFELINE
SERVICE. YOU SHOULD ALWAYS HAVE AN ALTERNATIVE MEANS OF ACCESSING TRADITIONAL
E911 SERVICES.
2.13 No compatibility with other equipment: All non-voice
communications equipment, including but not limited to, home security systems
that are set up to make automatic phone calls, fax machines, modems and medical
monitoring devices, are not compatible with the Service. By accepting this Agreement, you waive any
claim against Nikkom for interference with or disruption of such systems due to
the Services
3. WARRANTY and LIABILITY LIMITATIONS /
INDEMNIFICATION
3.1 Limitation
of Liability: Nikkom shall not be liable for any delay or
failure to provide the Service, including 911 dialing, at any time or from time
to time, or any interruption or degradation of voice quality that is caused by
any of the following:
1.) Act or omission of an underlying
carrier, service provider, vendor or other third party.
2.)
Equipment,
network or facility failure.
3.)
Equipment,
network or facility upgrade or modification.
4.)
Force
majored events such as (but not limited to) acts of god; strikes; fire; war;
riot; government actions.
5.)
Equipment,
network or facility shortage.
6.)
Equipment
or facility relocation.
7.)
Service,
equipment, network or facility failure caused by the loss of power to Customer;
or
8.)
Any other
cause that is beyond Nikkom's control, including without limitation the failure
of an incoming or outgoing communications, the inability of communications to
be connected or completed, including 911 dialing, or degradation of voice
quality. Nikkom's liability for any
failure or mistake shall in no event exceed Service charges with respect to the
affected time period.
3.2 No
Consequential Damages: In no event shall Nikkom, its officers,
directors, employees, affiliates or agents or any other service provider who
furnishes services to Customer in connection with this Agreement or the Service
be liable for any incidental, indirect, special, punitive, exemplary or
consequential damages, or for any damages, including but not limited to loss of
data, loss of revenue or profits, or arising out of or in connection with the
use or inability to use the Service, including inability to be able to dial 911
or to access emergency service personnel through the Service. The limitations set forth herein apply to
claims founded in breach of contract, breach of warranty, products liability,
tort and any and all other theories of liability and apply whether or not
Nikkom was informed of the likelihood of any particular type of damages.
3.3 Indemnification: Customer agrees to defend,
indemnify, and hold harmless Nikkom, its officers, directors, employees,
affiliates and agents and any other service provider who furnishes services to
Customer in connection with this Agreement or the Service, from any and all
claims, losses, damages, fines, penalties, costs and expenses (including,
without limitation, reasonable attorneys fees) by, or on behalf of, Customer or
any third party or user of Customer's Service, relating to this Agreement, the
Services, including 911 dialing, or the Device.
This paragraph shall survive termination of this Agreement.
3.4 No Warranties on Service: Nikkom makes
no warranties, express or implied, including but not limited to, any implied
warranties of merchantability or fitness of the Service or the Device for a
particular purpose. Nikkom does not warrant that the Service will be without
Service failure, delay, interruption, error, and degradation of voice quality
or loss of content, data or information.
Neither Nikkom nor its officers, directors, employees, affiliates or
agents or any other service provider or vendor who furnishes services or
products to Customer in connection with this Agreement or the Service will be
liable for unauthorized access to Nikkom'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 Nikkom's or its service
provider's or vendors' negligence.
Statements and descriptions concerning the Service or Device, if any, by
Nikkom or Nikkom's agents or installers are informational and are not given as
a warranty of any kind.
3.5 No Third
Party Beneficiaries: No provision of this Agreement provides any
person or entity not a party to this Agreement with any remedy, claim,
liability, reimbursement, or cause of action or creates any other third party
beneficiary rights.
3.6 Content: You are liable
for any and all liability that may arise out of the content transmitted by or
to you or Users using the Services. You
shall assure that your or User's use of the Services and content will at all
times comply with all applicable laws, regulations and written and electronic
instructions for use. Nikkom reserves the right to terminate or suspend
affected Services, and/or remove Your or Users' content from the Services, if
Nikkom determines that such use or content does not conform with the
requirements set forth in this Agreement or interferes with Nikkom's ability to
provide Services to you or others or receives notice from anyone that Your or
Users' use or Content may violate any laws or regulations. Nikkom's actions or
inaction under this Section shall not constitute review or approval of Your or
Users' use or Content. You will
indemnify and hold Nikkom against any and all liability arising from the
content transmitted by or to you or to Users using the Services. A "User" means any person, whether
authorized or unauthorized, using the Service and/or Device provided to you.
4. GOVERNING LAW / RESOLUTION OF DISPUTES
4.1 Mandatory
Arbitration: Any dispute or claim between Customer and
Nikkom arising out of or relating to the Service or Device provided in
connection with this Agreement shall be resolved by arbitration before a single
arbitrator administered by the American Arbitration Association in accordance
with its Commercial Arbitration Rules. The parties agree that no arbitrator has
the authority to: (i) award relief in excess of what
this Agreement provides; or (ii) award punitive or exemplary damages. Judgment on the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. All claims shall be arbitrated individually
and Customer will not bring, or join a punitive or certified class action to
arbitration or seek to consolidate or bring previously consolidated claims in
arbitration. Customer acknowledges that
this arbitration provision constitutes a waiver of any right to a jury trial.
4.2 Governing Law: The Agreement and the
relationship between you and Nikkom shall be governed by the laws of the Commonwealth of Missouri without regard to its
conflict of law provisions. You and
Nikkom agree to submit to the personal and exclusive jurisdiction of the courts
located within Missouri. The failure of Nikkom to exercise or enforce
any right or provision of the Agreement shall not constitute a waiver of such
right or provision. You agree that
regardless of any statute or law to the contrary, any claim or cause of action
arising out of or related to use of the Service or the Agreement must be filed
within one (1) year after such claim or cause of action arose or be forever
barred. If any part of this Agreement is legally declared invalid or
unenforceable, all other parts of this Agreement are still valid and
enforceable. Such invalidity or non-enforceability will not invalidate or render
unenforceable any other portion of this Agreement.
5. BILLING /PAYMENTS /DEFAULT / TAXES / TERMINATION
5.1 Billing: Upon
purchase of the service you must provide Nikkom with a valid credit card
number. You authorize Nikkom to charge the credit card number provided by you
each month for all charges including but not limited to Activation fees,
Monthly service fees, International usage charges, Advanced services charges,
Equipment purchases, Shipping and handling charges, Toll charges, Taxes and any
other applicable charges. You agreed to notify Nikkom of any changes to the
credit card information including, but not limited to, changes in account
number, expiration date or billing address.
5.2 Billing disputes: You must notify Nikkom in writing within 7 days (or
such time permitted by Applicable Law) after receiving your credit card monthly
statement, if you dispute any of Nikkom’s charges, or such dispute will be
deemed waived.
5.3 Late Payment /Termination: If any charges for the service are due but not paid,
Nikkom, in its sole discretion, may suspend or terminate the service and all
accrued charges will be immediately due including, but not limited to, a
monthly fee, other usage charges, Taxes, disconnection fee, a late fee of % 1.5
per month (or the maximum allowed by Law) from the date of invoice until
payment in full is received, any incurred charge by Nikkom due to your non
payment including, but not limited to, collection cost and attorney’s fee.
5.4 Taxes: Customer is responsible to
pay any applicable federal, state, municipal, local or other governmental
sales, use, excise, value-added, personal, property, public utility or other
taxes, fee or charges now in force or enacted in the future that arise from or
as result of Customer use of Nikkom’s service or device. Such amount will be
billed to the account in addition to other accrued charges. If customer is
exempt from paying such taxes, it will provide Nikkom with an original
government issued certificate attesting to tax-exempt status. Tax exempt will
apply from and only after the date Nikkom receives the Tax-exempt
certificates.
6. PRIVACY
Nikkom Service may utilize, in whole or in part, the
public Internet and third party networks to transmit voice and other
communications. Nikkom is not liable for
any lack of privacy that may be experienced with regard to the Service. Please refer to our Privacy Policy at
www.nikkom.com for additional information.
7. CHANGES; NOTICES
Except where expressly prohibited by law, the Customer
agrees to accept notices to this agreement electronically, either by email or
by web site posting. Notices to Customer
of any changes to these "Terms of Service" shall be considered given
by posting to the "Service Announcements" section of the Nikkom VoIP Services Web Site. Notice will be considered received
by Customer, and such changes will become binding on Customer, on the date
posted to the Nikkom Web Site and no further notice by Nikkom is required.
8. ATTORNEY’S
FEE AND COSTS IN LITIGATION
In any action taken by Nikkom to enforce any of the
terms of this Agreement between Nikkom and you, Nikkom shall be entitled to
recover all expenses from you, including, but not limited, to attorney’s fees.
9. ENTIRE AGREEMENT.
This Agreement, the accompanying work order, any Terms
of Services or other rules now or hereafter specified by Nikkom for the
Service, public disclosures and/or any applicable tariff(s) on file with the
applicable state utility commission or FCC shall constitute the entire
agreement between Nikkom and Customer with respect to the subject matter
hereof, and supersedes all previous written agreements between Nikkom and
Customer with respect to the services provided hereunder. Acceptance of the Service shall constitute
acceptance of the terms and conditions herein.
