Audian Digital Voice Terms of Service ("Terms")
READ CAREFULLY: THIS IS A BINDING LEGAL AGREEMENT
This Agreement is a binding contract between you (either an individual or an entity that you are representing, hereinafter “you” and “your”) and Audian, Inc, its officers, directors, employees, shareholders, agents, contractors, successors and assigns, suppliers and licensors (collectively “Audian," "us", "we", or "our"). You acknowledge that you are 18 years of age or older, and you agree that you have the legal authority to enter into this Agreement and affirm that the information you supply to us is correct and complete. Providing false or incorrect information may result in Services provisioning delays, the suspension or Termination of your Services and the inability of a 911-dialed call to be correctly routed to emergency response center personnel.
This Agreement covers important information about the Audian services (individually and collectively, the “Services” or “Service”) and equipment. Unless otherwise stated, this Agreement applies to all Services (however branded) and any Audian-supplied equipment (regardless of how branded) you use, purchase or lease in connection with the Services (individually and collectively, the “Equipment”).
This Agreement becomes binding when you accept this Agreement. You legally accept this Agreement when you subscribe to, use or pay for the Services or tell us orally or through written or electronic means that you accept the Agreement. Audian would not agree to provide the Services without your acceptance.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES OR EQUIPMENT. YOU WILL BE RESPONSIBLE FOR ANY CHARGES ASSOCIATED WITH THE SERVICES UNTIL THE SERVICES CANCELLATION DATE.
The Services include new products, product changes, upgrades, support and other services. You must be a subscriber in good standing with a valid, authorized payment method on file with Audian in order to receive the Services. You understand that you must obtain your own Internet connection in order to use the Services (including 911 dialing) and that we do not control your Internet access, availability, or the quality of your Internet connection.
We are not responsible for any third-party products or services, or for problems in the Services caused by your Internet connection or third-party products or services and we will not contact any of these providers on your behalf.
You are also responsible for providing the electrical power necessary for the Services to function. The Services (including 911 dialing) will not function during a power outage without a back-up power source. Your Equipment may utilize a battery back-up feature by maintaining an active battery in the unit. See the documentation accompanying your Equipment for such features, including the expected duration of any included battery backup. Even with an active battery, a power failure or disruption may require you to reset or reconfigure Equipment prior to using the Services.
Unlimited calling applies only to calls made within the continental United States, Alaska, Hawaii and Canada. ALL other international calls ("International Calls") are subject to additional charges.
- Included Documents
This Agreement incorporates and includes the following documents (collectively, “Other Documents”) as part of the contract between you and Audian:
- A. Any detailed Services plans that Audian, or one of its authorized dealers, provides or refers you to during the sales transaction, and any order confirmation materials and receipt that Audian, or one of its authorized dealers, provides or sends to you when (or after) you sign up for Services from Audian.
- C. Any other policies relating to the Services that Audian may choose to develop and implement. These policies may be posted on the Audian website, or may be sent to you via email, regular US Mail, or any other permissible means; and
- D. Any other applicable terms and conditions, addenda and/or policies posted on Audian’s "Legal Information" which may be found at the Audian website.
To the extent that this Agreement conflicts with the provisions of any of these Other Documents, then the terms of this Agreement shall control, unless Audian has expressly stated or agreed otherwise in writing, and the conflicting provisions of the Other Document(s) shall be deemed modified to the minimum extent necessary to be read consistently with this Agreement.
2. Account Management & Users
Additional Audian Services can be purchased by users you designate as administrators through the Audian user interface or by calling Audian Customer Care. You hereby authorize those users with administrative privileges to (i) add additional Services and Equipment to your Audian account and (ii) you commit to pay for these additional Services and Equipment on a recurring monthly basis. Adding additional Services and Equipment to your account shall be confirmed by an email sent by Audian to the email address you provide, and these emails are a part of this Agreement. If Audian requests you to sign a document to confirm your account changes, you agree to sign the account change confirmation form within two business days from your receipt of this document. If you subscribe to or use the Services for use by others, provide access to the Services by others, or otherwise allow other individuals to use the Services, those individuals also are “users” and included in the term “you” or “your” as used in this Agreement. You further authorize Audian to obtain payment of your then-current statement balance from you each month.
You may designate one or more users to be an account administrator with full administrative control of your account from the Audian user interface. The primary administrator for your account is known as the “primary account manager.” Upon creation of your account, the individual assigned to be the primary account manager is the individual who entered into an agreement with Audian through our online sign-up process or, if the agreement was not entered into online, the individual whose name is identified on your Audian quote. The primary account manager: (i) has the ability to make any changes to the account (e.g., service additions, service deletions, assignment of users, account cancellations ("Cancellation" as later defined), updates to credit cards, etc.); and (ii) is the authorized individual on your account with respect to porting of your telephone numbers to a carrier other than Audian. The primary account manager may assign one or more additional administrators on the account and may re-assign “primary account manager” status to another user. In the event that you wish to re-assign the primary account manager designation on your account and the primary account manager is unable to make the change, Audian will require that you submit an email from the primary account manager’s email address which is on file with Audian or otherwise provide a written request via facsimile, on your letterhead and executed by an officer or owner of the company which you represent.
Administrators on the account have the ability to make changes to the account (e.g., service additions, service deletions, assignment of users, updates to credit cards, etc.) but may not (i) authorize Cancellation, or (ii) designate himself or herself as the primary account manager.
Should you wish Audian to provide information on your account with respect to a customer service record or actual call log details (other than through the user interface), such request may be made by the primary account manager or any administrator on the account.
The primary account manager or any other administrator may designate the “Company Contact” for the account. The Company Contact is the individual who will receive all messages from Audian concerning matters of general relevance to the account (notices of updates to the account, billing notices, maintenance alerts, etc.), which such notices are typically provided through electronic mail. Audian will initially assign the primary account manager to be the Company Contact.
3. Payment & Services
3.1 Automatic Monthly Billing; Account Responsibility
The Services are provided on a monthly basis and are automatically renewed monthly unless you give us thirty (30) days’ notice of Cancellation prior to a scheduled billing date in accordance with the requirements of Section 4 below. You agree to pay Audian all fees charged to your account, including the recurring monthly service charges, set-up charges and usage charges, if applicable, for your use of the Services plus any applicable taxes as set forth in Section 3.4 below and any Equipment charges.
3.2 Payment Processing
You agree to provide us with a valid email address and a current and valid credit card payment method. You must advise us immediately if your email address changes and/or payment method changes or expires. Failure to comply may result in Termination of Services as provided in this Agreement. You authorize Audian to automatically bill the credit card you provided, until you cancel the Services in accordance with the requirements of Section 4 below. You agree that Audian may receive updated information about your account from the financial institution issuing your credit card during your contract period or while active service is provided. Under certain circumstances a customer may make payments by check if previously approved by Audian.
3.3 Fee Payments & Late Charges.
Except for usage based fees, all fees are due in advance on the first day of each billing period. All usage based charges (including charges for International Calls or any metered minute usage) and any other non-recurring charges are due and payable in arrears on the first day of each billing period following the month they were incurred. You agree to pay for all Equipment and set up fees at the time you request the Services. You agree to pay a pro-rated amount for the first month of service based on the date of service install. All payments, including payments paid in advance, are completely non-refundable.
Failure to pay in full will result in immediate account suspension and Audian shall have no liability for such suspension under any circumstances. Accounts will be reactivated, as specified herein, only when the account balance is paid in full and a $25 reconnect fee is paid. Audian will assess an additional 1.5% (or the highest amount allowed by law, whichever is higher) per month late charge if your payment is more than 30 days past due. We do not waive our right to collect the full amount due if you pay late or if you pay only a part of the bill. Reactivation will be completed by Audian no longer than 24 hours after receipt of payment in full of all sums then currently due.
Audian may modify the Services fees at any time after the Initial Term, as later defined. New Services added within the Initial Term or the Renewal Term as later defined, WILL be at the then published rates on the Audian website. Changes to the Services fees after Initial or Renewal Term may be changed with a thirty (30) days advance notice by postal mail or email and will be at the then published rates on the Audian website. Should you elect to make a payment to Audian by wire transfer, an additional charge of $30 shall apply. In the event that you present a check to Audian for payment that is returned by your bank for non-sufficient funds, you shall pay a processing fee of $25. You are responsible and liable for any fees, including attorney and collection fees, that Audian may incur in its efforts to collect any remaining balances from you. You also agree that you will be billed for and will pay any outstanding balances if you cancel the Services.
During any period of suspension for non-payment, Services will be unavailable to you until the account balance is paid in full. If payment is not received within five days of notice to you, this Agreement will be terminated ("Termination") at Audian's sole discretion. While Services shall cease immediately in such case, Termination shall take effect ten (10) days later. In the event that Audian is providing data backup service, call recording service, or any other service for which Audian is collecting or providing data, to you during a period of suspension, you will be unable to backup new data or record calls and you will be unable to access any data or recordings that have previously been stored by Audian. You agree that Audian and the Audian Parties will have no liability whatsoever for the loss or unavailability of any such data or recordings, or other information.
Notwithstanding the foregoing, in the event that your use of the Services involves usage-based charges that in Audian’s opinion are substantial, Audian may, in its sole discretion, process charges against your payment method prior to your regular monthly billing cycle date and/or require a non-interest bearing deposit to secure your payment obligations under this Agreement no later than ten (10) days after notice to you. In the event that Audian requires a deposit, the deposit will be in an amount determined by Audian to be equal to your forecasted monthly usage charges. All deposits must be paid via electronic funds transfer and will be held on account during the term of this Agreement. This deposit may be adjusted as usage levels increase or decline and will be refunded, less any past due balance, if you cancel your account. Audian may suspend your service at any time after the required notice period pending receipt of the required deposit.
3.4 Taxes and Fees
Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility, universal service, e911 or other similar taxes and regulatory fees, or Audian’s Regulatory Recovery Fee, which Audian collects to offset costs of regulatory compliance obligations. All such applicable taxes and fees shall be paid by you and will be added to any amounts otherwise charged to you unless you provide Audian with an appropriate exemption certificate and other documentation satisfactory to us that you are exempt from these charges. If any amounts paid for the Services are refunded by Audian, applicable taxes may not be refundable. We will not provide advance notice of changes to taxes, surcharges and fees, except as required by applicable law.
3.5 Invoice Discrepancies & Currency Conversion
You agree to notify Audian about any billing problems or discrepancies within 60 days after they first appear on your account statement. If you do not bring them to Audian`s attention within 60 days, you agree that you waive your right to dispute such problems or discrepancies. All transactions are charged in U.S. dollars (USD). Please remember that orders placed with us may be converted from USD to your currency by your credit card company when they process the transaction. Audian cannot be held responsible for any adverse currency fluctuations.
3.6 Release of Numbers
You acknowledge that in the event of any account Termination or Cancellation, all telephone numbers associated with your account are released and may not be available to you upon your reactivation. Similarly, the Cancellation of individual services which have associated telephone numbers will result in the release of such numbers. You acknowledge that it is your responsibility to work with a third-party provider to port out those numbers prior to your Termination or Cancellation of your account or Termination of services.
3.7 Metered Usage
There are certain calls that incur additional usage charges, such as International Calls, Toll Free calls (only to the extent that such calls exceed the aggregate total of included minutes specified in your Sales Order for each toll free line for which you pay us monthly fees), or certain metered local Service Plans at the then current rate as set by Audian. Metered usage is billed in six second increments (1/10th of a Minute) for voice calls, and actual usage is rounded up to the next full increment at the end of each call for billing purposes. International rates are subject to change at any time and may be found on our website at
https://www.audian.com/international-search. Other metered usage rates will be determined by your Contract and will not be subject to change by Audian while you are in your Initial Term or a Renewal Term. Once your Initial or Renewal Term has expired, metered rates are subject to change by Audian with a thirty (30) day written notice by postal mail or via email.
You are responsible to secure all credentials used to access the Services, including credentials used by telephones or handsets and credentials used by end users or administrators to access the Audian user interface, as well as the media access control [MDW1] address of telephones used by you. You acknowledge that placing telephones on a publicly accessible Internet protocol address or a publicly accessible network will subject you to a higher level of risk for fraudulent activity, as will use of the Services using a network that has not been secured using best practice measures. You acknowledge that you bear the risk of loss arising from any unauthorized or fraudulent usage of the Services. Audian may, but shall not be required, to take action to prevent or terminate any fraud or abuse in connection with the Services, and will at a minimum provide timely notice to you of any such usage once it is noticed.
3.8 Ancillary Services
List and publish and caller name identification (i.e., caller ID with name) Services are provided by Audian based on availability of such Services from Audian’s underlying providers. We do not guarantee that such Services are available for all numbers in all serving areas.
If and where available, you can also subscribe to Audian’s SMS Services, which provides the functionality and ability to send and/or receive Short Message Service (SMS) messages and may enable Multimedia Messaging Service (MMS) messages, and to provision one or more telephone numbers to facilitate the receipt of SMS, MMS and/or other communications, which telephone number(s) Customer understands and agrees are subject to delivery by downstream wireless carriers and related aggregators, the reliability and delivery of which messages Audian cannot guarantee. Your use of the SMS Services are solely for one-to-one messaging; bulk messaging is not permitted, as explained below in Audian’s Acceptable Use Policy. The rates, terms and conditions, in addition to those reflected in this Agreement, for Audian’s SMS Services will be reflected in your Service plan or other order documentation.
By default, voicemail messages shall be set to forward to the email address associated with each extension where Audian is providing voicemail services to you. Should this option be waived, voicemail messages shall be recorded, and each voicemail message recorded by Audian shall be retained for a minimum of ninety (90) days from the date the message was recorded. Audian retains the right to purge all voicemail messages after this minimum retention period. You agree that Audian and the Audian Parties will have no liability whatsoever for the loss of any such data, names, addresses, or other information. Users may download voicemail from the user portal for longer term archiving if needed.
Certain Services provided by Audian shall be subject to separate end-user license agreements (“EULA”). The terms of such EULAs shall be binding upon the parties to this Agreement. If any such EULAs, or any provisions in such EULAs, are held to be unenforceable for any reason, the terms of this Agreement shall apply with respect to the supply of those Services
Audian may introduce new ancillary Services to new and existing customers. Such ancillary Services may sometimes be offered on a trial basis for a specified period of time during which no fees shall apply to you. In some cases, the terms of the free trial may involve an automatic re-enrollment at the end of the trial unless you opt out of the trial and/or cancels the service during the term of the free trial. In no event shall Audian impose service fees for ancillary services without providing you the opportunity to opt-out of the trial and/or to cancel the ancillary Services during a no-cost trial period.
Certain Audian 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. Audian 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 defend and indemnify Audian from and against any damages or liabilities of any kind related to your recording of any telephone conversations using the Services. Recordings can be played or downloaded through the user portal in the call log of the user. You are responsible for downloading and storing all call recordings. Recordings are permanently deleted after 60 days.
From time to time in its sole discretion, Audian, may offer promotions or discounts of activation or other fees. Any promotion or discount codes must be provided to Audian upon purchase of the Services. You shall not be entitled to a subsequent credit for such promotions or discounts, if not requested at the time of account creation or change of service. Promotions and/or discounts may not be used cumulatively or be used for services retroactively.
3.11 Notices from Audian
You agree that Audian may provide you notice under this Agreement either by written document, email, voice mail or by publishing the information on the Audian website.
4. Contract Terms
4.1 Initial Term
The initial term of this Agreement ("Initial Term") begins on the date that you enter into the Agreement and continues in force and effect for the duration of the service for the minimum commitment period as defined by the Sales Order.
At the end of the Initial Term, the Agreement is automatically renewed for an additional one year period (a "Renewal Term"), and shall be renewed at the end of each Renewal Term for an additional one-year Renewal Term, unless you provide Audian, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, notification of intention to cancel the service.
4.2.1 Month-To-Month Renewal
Instead of renewal under Section 4.2 or Cancellation, you shall have the option, upon expiration of the Initial Term or any Renewal Term, to renew the Agreement on a month-to-month basis at the then-current rates offered for the Services. You will be converted to a month-to-month basis if you provide to Audian, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, notification of intention to convert to month-to-month service.
4.3 Addition of Service Lines
You may request at any time to add new Services and Equipment to your account through the user portal, in writing, or verbally with an Audian employee. Additional Services will be verified and confirmed by email (which email(s) shall be a part of this Agreement) and included under your existing Commitment Term and will not require extending or renewing the Commitment; however, new Services and Equipment will be billed at the then current rate.
5. Cancellation of Services
5.1 Cancellation of Entire Account and All Services
You may cancel the Services at any time by providing Audian with a notice of your intent to cancel at least thirty (30) days in advance by having the primary account manager send notice in writing to [email protected] or by completing the input form located at https://support.audian.com and stating your intentions to cancel along with which services should be cancelled ("Cancellation").
YOU MAY ONLY CANCEL SERVICES IN WRITING BY EMAIL. AUDIAN WILL NOT ACCEPT CANCELLATION VIA TELEPHONE, FAX, OR OTHER METHODS. FAILURE TO CANCEL SERVICES IN ACCORDANCE WITH THIS SECTION WILL RESULT IN ONGOING SERVICE FEES. You acknowledge that the Cancellation will be effective thirty (30) days after you provide notification to Audian.
Audian will endeavor to provide you with email confirmation of both your request to cancel Services and the actual Cancellation of Services. If you do not receive a confirmation of your request to cancel, you must notify Audian by contacting Audian Customer Care by telephone. You will not receive any refund or partial refund or any credits for any charges already billed to your account.
In the event that you subscribe to ancillary services provided by Audian, your election to cancel Internet phone service with Audian shall also cancel such ancillary Services. In the event that Audian is providing data backup, voicemail recording, call recording, or other such ancillary service to you, all of your data, including all recordings, will be deleted on or after the date that you cancel such service, without further notice to you. In the event that you cancel an end user account within the online Web user interface (located at https://my.audian.com), the user data associated with such account or the ancillary service will be automatically deleted. You agree that Audian and the Audian Parties will have no liability whatsoever for the loss of any such data, names, addresses, or other information.
You will be responsible for all charges for the remainder of the Initial or Renewal Term, and all such fees will immediately accelerate. You authorize Audian to immediately bill all these fees to your payment method unless Audian has modified the terms of this Agreement or Services as provided in Section 6.
5.2 Reduction of Services or Partial Cancellation
You may also cancel individual Services on your account at any time by contacting Audian Customer Care during normal business hours. You acknowledge that the Cancellation of individual Services will be effective on the date you specify but in no event earlier than thirty (30) days after you provide notification to Audian. You will be responsible for all charges for the remainder of the Initial or Renewal Term, and all such fees will immediately accelerate. You will not receive any refund or partial refund or any credits for any charges already billed to your account.
5.3 Thirty (30) Day Satisfaction Guarantee
If you are not absolutely satisfied with your Audian Services in the first thirty (30) days after your Audian Services have been installed and activated, you may cancel this Agreement without penalty or acceleration of fees. Cancellation must be done in the manner described in section 5.1 above. In such case, all leased and Purchased Equipment may be returned to us provided it is in new or like new condition for a full refund to be paid within five (5) business days after receipt of Purchased Equipment by Audian.
5.4 Porting Out Numbers
If you cancel any services that result in porting out phone numbers, a porting fee of $10.00 per number will immediately bill to your payment method.
6. Audian's Right to Modify the Terms of this Agreement & Terminate or Modify the Services
Audian may modify the terms of this Agreement or the Services at any time, including but not limited to the price, content or nature of the Services. Prices of the Services within the Initial Term will not be modified by Audian, and may only be changed by notification in writing or by email no earlier than thirty (30) days after notice and only at the end of the Initial or Renewal Term. Changes to this Agreement will be posted on the Audian Website, (https://www.audian.com/page/terms) and any changes will become effective on the date Audian posts the revised changes.
Your continued use of the Services constitutes your agreement to those modified terms of this Agreement and you acknowledge that Audian would not agree to provide the Services without your agreement. In the event Audian modifies the Agreement or the Services, you may terminate the Services as provided in Section 5, above. Audian may terminate this Agreement and any Services at any time upon at least thirty (30) days notice to you, provided that in the event you have not violated any term of this Agreement, you will be entitled to receive the Services for any period for which you have already paid, or a pro-rata refund for prepaid services at Audian`s sole discretion.
This Agreement will automatically terminate or suspend Services if you fail to comply with any term and fail to correct such failure within ten (10) days after notice. No refund will be provided in the event that you have violated any material term of this Agreement, such as continued non-payment, abusive use, intentional use of the Services contrary to Audian's Acceptable Use Poicy (section 7.2) or illegal use of the Services ("Material Terms"). If you have violated any Material Terms of this Agreement and failed to correct this after ten (10) days notice, no further notice shall be required from Audian to terminate this Agreement. Upon any Termination or Cancellation of this Agreement, you shall discontinue use of the Services as provided herein. Your obligation to pay accrued charges and fees shall survive any Termination, Cancellation or expiration of this Agreement.
In the event that Audian terminates this Agreement, the Services, or any ancillary Services, all of your data, including all recordings, will be deleted on or after the date that Audian terminates such services, without further notice to you. You agree that Audian and the Audian Parties will have no liability whatsoever for the loss of any such data, names, addresses, or other information.
7. Use Restrictions for the Services
7.1 Compliance with Laws
You agree that you shall only use the Services in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights and restrictions concerning call recording, call monitoring, call interception and/or direct marketing or telemarketing. You are solely responsible for ensuring that your use of the Services is in compliance with all applicable laws, including, without limitation. Without limiting the generality of the foregoing, Customer will not engage in, and will not use the Services in connection with any traffic that constitutes, any unsolicited advertising, marketing, or other unlawful activities using the Services, including without limitation, any activities that violate laws and regulations applicable to advertising, electronic communications, and telemarketing, including, but not limited to, Section 5 of the FTC Act (15 U.S.C. § 45), the CAN-SPAM Act (15 U.S.C. §§ 7701-7713), the Telemarketing Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108), the Federal Trade Commission Telemarketing Sales Rule (16 C.F.R. § 310 et seq.), the Telephone Consumer Protection Act (47 U.S.C. §§ 227), the Federal Communications Commission regulations (47 C.F.R. 64.1200 et seq.) and orders implementing the Telephone Consumer Protection Act, all federal and state Do Not Call and calling-time restriction laws and regulations, and, as applicable for calls or SMS to Canadian numbers, the CRTC’s Unsolicited Telecommunications Rules, including the CRTC Telemarketing Rules, National DNCL Rules, and Automatic Dialing and Announcing Device Rules, Telecom Decision CRTC 2007-48, as amended. Customer agrees to provide prompt and complete information reasonably sought by Audian to provide adequate written assurances and corroboration that you are complying with the terms of this Agreement, applicable law, and Section 7.2 below.
7.2 Acceptable Use Policy
While most reasonable uses of our Services in connection with the terms of this Agreement are permitted by Audian, there are certain uses that cause extreme network capacity issues and interference with the network. Any use of the Services or any other action that causes a disruption in the network integrity of Audian services or its vendors, whether directly or indirectly, is strictly prohibited and could result in Termination of the Services. You agree that you will NOT use the Services in ways that violate laws, infringe the rights of others, or interfere with the users, services, or equipment of the Services. Examples of such prohibited uses of the Services include, but are not limited to:
- Subscription fraud or unauthorized access.
- Behavior that is illegal, obscene, threatening, harassing, defamatory, libelous, deceptive, fraudulent, malicious, infringing, tortious, or invasive of another's privacy.
- Impersonating any person or entity, or otherwise misrepresenting your affiliation with a person or entity;
- Sending unsolicited messages or advertisements, including email, voicemail, SMS, or faxes (commercial or otherwise) ("spamming"), or otherwise sending bulk and/or junk email, voice mail, SMS, or faxes, including, without limitation, any such communications that violate the FTC’s Telemarketing Sales Rule, the Telephone Consumer Protection Act, 47 U.S.C. § 227, or the FCC’s implementing regulations, or any SMS that violate the CTIA’s then-applicable Messaging Principles and Best Practices. Audian’s SMS Services shall solely be used for one-to-one messaging.
- Conducting or promoting any illegal activities while using Services;
- Harvesting or otherwise collecting information about others, including email addresses, without their consent.
- Negligently, recklessly, knowingly, or intentionally transmitting any material that contains viruses, time bombs, trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous.
- Creating a false Caller ID identity ("ID spoofing") or forged email/SMS address or header, or otherwise attempting to mislead others as to the identity of the sender or the origin of any communication made using the Services.
- Transmitting any material that may infringe, misappropriate, or otherwise violate the foreign or domestic intellectual property rights or other rights of third parties.
- Violating any U.S. or foreign law regarding the transmission of technical data or software exported through the Services.
- Utilizing the Services in excess of what, in Audian's sole reasonable discretion, would be expected of normal business use, such as an aggregate average use per hosted voice line or SIP trunk that is beyond the relevant usage specified in section 7.3.
- Attempting or assisting another to access, alter, or interfere with the communications and/or information about another user or customer;
- Using the Services in such a manner so as to interfere unreasonably with the use of the Services by one or more other users or customers or to interfere unreasonably with Audian’s ability to provide the Services;
- Using or employing methods and/or devices that are designed or likely to take advantage of, bypass, exploit, or otherwise avoid this Acceptable Use Policy.
You agree and represent that you are purchasing the Services and/or the Equipment for your use only, and shall not resell, transfer or make a charge for the Services or the Equipment without the advance express written permission of Audian.
This list of prohibited uses is meant to be illustrative and should not be considered exhaustive. All determinations related to violations of this Acceptable Use Policy will be made by Audian in its sole, reasonable discretion. Audian reserves the right to change or modify the terms of the AUP at any time, effective immediately when posted to the Audian website. Customer’s use of the Audian Services after changes to the AUP are posted to the Audian website shall constitute acceptance of any changed or additional terms. If you have a complaint about abuse or a breach of this AUP, please contact a Audian representative.
If you violate these Terms, we may stop providing Services to you or we may close your account. We may also block delivery of a communication (such as a telephone call or SMS) to or from the Services in an effort to enforce these Terms. When investigating alleged violations of these Terms, Audian reserves the right to review the content of your communications in order to resolve the issue. But we cannot monitor the entire Services, and make no attempt to do so.
7.3 Unlimited Voice Services
7.3.1 Hosted Voice
Some of Audian's Hosted Voice Service plans are offered on an "unlimited" basis. Unlimited voice services are provided solely for normal business use. Each Service line is meant to be used by a single registered user for calls between two or three (i.e. three-way conference calling) individuals. Unlimited voice services may not be used for any of the following prohibited uses:
- Conference calling, except where specific conference calling service is provided in the Contract.
- Trunking or excessive call forwarding especially to a PBX, Key System or other phone capable of handling multiple simultaneous calls.
- Monitoring services, or leaving your phone "connected" to be able to monitor the surroundings for excessive periods of time.
- Data transmissions, transmission of broadcasts, or transmission of recorded material.
- Blasting or spamming simultaneous voicemails or faxes.
- Autodialing, iterative dialing, or "predictive" dialing where software or other devices are used to continuously dial numbers using your account.
7.3.2 SIP Trunking
Some of Audian's SIP Trunking plans also offered on an "unlimited minutes" basis. These services are intended to be used for normal business use with a PBX or Key System with one voice channel (concurrent session) per SIP Trunk. Unlimited voice services may not be used for any of the following prohibited uses:
- Monitoring services, or leaving your phone "connected" to be able to monitor the surroundings for excessive periods of time.
- Data transmissions, transmission of broadcasts, or transmission of recorded material.
- Blasting or spamming simultaneous voicemails or faxes.
- Autodialing, iterative dialing, or "predictive" dialing where software or other devices are used to continuously dial numbers using your account.
Excessive use of greater than 3,500 minutes of inbound/outbound minutes per month per SIP Trunk channel will require additional lines of Service (channels) to be added to comply with the Audian Acceptable Use Policy.
If Audian finds that you are using an unlimited voice service offering for other than acceptable normal business use, Audian may, at its option, increase the number of lines of Service in use, terminate your service, or change your plan to a metered plan with no unlimited usage components. Audian will provide written notice via email that it intends to take any of the above actions, and you may terminate the Agreement as provided in section 5.
If it is determined that your usage is abusive, you agree to pay a per minute or per page fee of use in excess of those levels AT THE THEN-CURRENT RATE ESTABLISHED BY Audian, which is currently $.07 per minute and/or $.07 per facsimile page and, at Audian’s sole option, your Services will be Terminated as provided herein. THIS OVERAGE FEE APPLIES TO ALL PLANS INCLUDING THE UNLIMITED PLANS.
7.4 Safe and Lawful Use; High Risk Use
You agree to be solely responsible for all uses of the Services, including without limitation, any use of the Services in conjunction with any High Risk Use. You also agree to use the Services or any output thereby for lawful purposes only, and you agree to comply with all applicable laws and rules and any additional terms that Audian may incorporate into this Agreement. You agree that you will not misuse the Services.
You will be solely responsible for any costs (including attorneys’ fees) incurred by Audian or any other party (including the Audian Parties) as a result of your use, including High Risk Use, or misuse, prohibited, fraudulent or unlawful use of the Services. As used in this Agreement, the “Audian Parties" means Audian, its subsidiaries and affiliates, vendors, suppliers, and licensors, and their respective directors, officers, employees, shareholders, agents, contractors, suppliers, successors, and assigns of each such entity.
7.5 Further Restrictions
In addition to the provisions above, you may not: (i) use the Services in a manner inconsistent with or in violation of this Agreement or any applicable law, rule or regulation; (ii) reverse engineer, decompile, or disassemble any software program underlying the Services (“Software”), in whole or part; except as expressly permitted by mandatory law; (iii) remove or alter any copyright notices, proprietary information notices or restricted rights notices on any maps or other information provided as part of the Services; (iv) modify, translate, adapt, arrange, or create derivative works based on the Software, in whole or part, for any purpose; (v) export the technology underlying the Software in violation of applicable export control laws; (vi) attempt to or actually override any security component of or related to the Services; or (vii) interfere with, overload, “flood,” “crash” or disrupt the Services, which may include but is in no way limited to, submitting, in any manner, whether manual or automated, an unreasonable number of location requests, all as determined by Audian.
8. Personal Information and Privacy; Consent to Communications
9. Email Notifications
10. Ported Telephone Numbers on Services Disconnection
10.1 Single Line Accounts
You may be able to take, or “port,” your current telephone number(s) to another service provider. You will remain responsible for all charges and fees until you notify Audian of your election to cancel services in accordance with Section 5. Until you notify us of your intention to cancel, your Services and your Agreement with us will not terminate; you will remain a Audian customer, and you will continue to be responsible for all charges and fees associated with your Audian Services. You will not receive any refund or partial refund or any credits for any charges already billed to your account.
10.2 Multiple-line Accounts
If you request that a new service provider port a telephone number from us and you have multiple numbers assigned to your account and/or additional Equipment on your account, you are required to inform us of your intent to terminate the specific affected Services on your account or we will continue to bill for such Services. You will continue to be responsible for all the charges and fees associated with the remaining Services on your Audian account. You will not receive any refund or partial refund or any credits for any charges already billed to your account.
Telephone numbers assigned by Audian for Audian’s facsimile service may not be able to be ported to a new service provider; however, Audian will use commercially reasonable efforts to facilitate a port of a facsimile number.
10.3 Request for Audian to Port Numbers
If you request that Audian port a number from an existing service provider to Audian, Audian will use commercially reasonable efforts to assist you in porting that number. You acknowledge that service providers require verification of identity, as well as authorization and other reasonable information in order to port any numbers to Audian. You must correctly complete a letter of authorization, provide us with a copy of your most recent bill from such service provider, as well as provide us with any other information required by such service provider to port your number. Failure to provide any information requested by Audian or the third party service provider will delay the porting of the number to Audian. Audian shall not be responsible for any delay in the port of your number and will not provide credit for any such delays.
In some cases, Audian may permit you to submit documentation required to port numbers using a web-enabled user interface. You have the ability to obtain a printed copy of all porting documentation at no cost to you from the interface or by contacting Audian Customer Care. Audian will provide copies of the forms by facsimile or email. You may withdraw your consent to submit your porting request electronically by contacting Audian Customer Care prior to our submitting the porting request to our partner. Your consent to electronic submission applies only to the specific porting request you submit through web-enabled interface.
11. WARRANTIES; DISCLAIMERS
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AUDIAN PROVIDES TO YOU THE SERVICES "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE." AUDIAN AND THE AUDIAN PARTIES MAKE NO REPRESENTATIONS, WARRANTIES, GUARANTEES OR CONDITIONS OF ANY KIND. AUDIAN AND THE AUDIAN PARTIES DO NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE SERVICE, EQUIPMENT, OR THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE AMOUNT OF TIME. ANY STATEMENTS MADE IN ANY PACKAGING, MANUALS, OR OTHER DOCUMENTS NOT EXPRESSLY INCORPORATED HEREIN AND ANY STATEMENTS MADE BY ANY AUDIAN EMPLOYEES OR REPRESENTATIVES, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS REPRESENTATIONS OR WARRANTIES OF ANY KIND BY AUDIAN OR THE AUDIAN PARTIES. AUDIAN AND THE AUDIAN PARTIES DO NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON AUDIAN’S OR THE AUDIAN PARTIES’ BEHALF, AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SERVICES AND EQUIPMENT. AUDIAN AND THE AUDIAN PARTIES HEREBY DISCLAIM ALL REPRESENTATIONS, WARRANTIES, GUARANTEES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR WRITTEN, ORAL, CONTRACTUAL OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES, DUTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY, LACK OF VIRUSES, SECURITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF RESPONSES, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. AUDIAN AND THE AUDIAN PARTIES DO NOT WARRANT THE ACCURACY OR RELIABILITY OF THE SERVICE, OR ANY DATA OBTAINED THROUGH THE SERVICE. ADDITIONALLY, AUDIAN AND THE AUDIAN PARTIES DO NOT WARRANT THAT THE SERVICE WILL WORK FAULTLESSLY OR THE EQUIPMENT OR OTHER DEVICES WILL NOT NEED OCCASIONAL UPGRADES OR MODIFICATIONS, OR THAT IT WILL NOT BE NEGATIVELY AFFECTED BY NETWORK–RELATED MODIFICATIONS, UPGRADES OR SIMILAR ACTIVITY. AUDIAN DOES NOT WARRANT THAT THE SERVICES WILL BE WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, DEGRADATION OF VOICE QUALITY OR LOSS OF CONTENT, DATA OR INFORMATION YOU ASSUME THE ENTIRE RISK ARISING OUT OF THE USE OF THE SERVICES.
12. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AUDIAN OR THE AUDIAN PARTIES BE LIABLE FOR OR OBLIGATED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE, UNDER ANY THEORY, WHETHER IN CONTRACT, TORT, NEGLIGENCE, PRIVACY, SECURITY, STRICT OR PRODUCT LIABILITY, FAILURE TO WARN, CONSUMER PROTECTION STATUTES, BREACH OF WARRANTY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR: (I) ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS OR REVENUES, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, CORRUPTION OR LOSS OF DATA OR BUSINESS INFORMATION, COMPUTER FAILURE, FAILURES TO TRANSMIT OR RECEIVE DATA, ANY DAMAGES OR LOSSES ARISING FROM ANY DELAY OR FAILURE IN PERFORMANCE DUE TO EVENTS OR CAUSES OUTSIDE OF THE REASONABLE CONTROL OF THE AUDIAN PARTIES, ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICE, EQUIPMENT, PRODUCTS, OR RIGHTS, OR ANY OTHER PECUNIARY LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES, ANY EQUIPMENT OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF AUDIAN OR THE AUDIAN PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
You agree to and hereby indemnify, defend, and hold Audian and the Audian Parties, harmless from and against any demands, actions, judgments, claims, actions, penalties, fines, losses, damages, settlements, liabilities, costs, or expenses (including, but not limited to, reasonable attorneys' fees and legal expenses) of any kind arising out of or relating to: (a) use or misuse of the Services or related software (or any parties who use your account, with or without your permission, to access the Services), including, but not limited to, High Risk Use, and/or any Equipment or other hardware, or arising from or attributable to any breach or violation by you of your obligations established through the Agreement, including but not limited to the provisions of Section 6.1, or any privacy, employee, or consumer protection right that is implicated herein and by the Services and/or any Equipment; (b) negligent or willful acts, errors or omissions by you (or any parties who use your account, with or without your permission, to access the Services); (c) injuries to or death of any person, and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the willful misconduct of Audian; (d) claims for infringement of any intellectual property rights arising from the use of the Services, Equipment, or the Internet; or (e) the absence, unavailability, failure or outage of the Services, including ANY 911 emergency response service, and/or the inability of you or any user or third-party user of the Services to be able to access emergency response center personnel. Audian would not agree to provide the Services without your providing this and related indemnification obligations under this Agreement. As a condition of your use of the Services, all indemnification duties shall continue in effect during the term of this Agreement and shall survive the termination or cancellation of this Agreement. This Section 13 shall apply regardless of who may be at fault or otherwise responsible under any statute, rule, or theory of law, including but not limited to theories of strict liability, including, but not limited to, claims relating to the Telephone Consumer Protection Act or similar state and federal laws, and even though the subject loss, damage, or injury may have been caused in whole or in part by the concurrent, active, or passive negligence of Audian or a defect in the Services. Audian reserves the right, at your reasonable expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
14. Assignment; Authority to Bind
This Agreement is personal to you (or the company that you represent), and you may not temporarily or permanently assign this Agreement, or assign, transfer or sublicense your rights, if any, in the Services, to any other party, in whole or in part, without Audian`s prior express written consent. Any such purported assignment without such consent will be void and of no force and effect. If you are agreeing on behalf of a company, you represent and warrant that you are authorized to bind the company under this Agreement. We may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed. This Agreement is not for the benefit of any third party except Audian’s affiliates, subsidiaries, agents, predecessors, and successors in interest and assigns.
15. Intellectual Property Ownership; Integrity of Notices/Warnings
The Services, including any data, materials, technology, software or other materials that comprise it, and Equipment are protected by copyright, trade secret and other intellectual property laws and treaties and all title and intellectual property rights in and to such are owned by and will remain the exclusive property of Audian, its licensors and/or suppliers. You agree that you will not remove, obscure, make illegible or alter any notices or indications of the ownership rights and Audian’s and its licensors’ rights and ownership thereof, together with any warnings made available through the Services or Equipment. All rights not expressly granted herein are reserved by Audian, its licensors and/or suppliers.
16. Grant of License for services; Usage rights for Name & Logo
16.1 Revocable, Non Exclusive License
Provided you comply with all terms and conditions of this Agreement, you are granted a revocable, limited, non-transferable and non-exclusive license to access and use the Services with the Equipment in the designated calling areas for the period in which you have paid for the Services. You agree that the Services are made available solely for your business use. Unless otherwise specified herein or expressly agreed to in writing by Audian, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, lease or sell any information, software, products or services obtained from the Services.
16.2 Right to use Name & Logo
Audian reserves the right and you agree to allow us to use your name and associated logo as a Audian customer in our marketing and promotional materials including our website. However, such use must appropriately acknowledge your trademarks. You agree that you will not be entitled for any compensation for any such use and further that nothing herein obligates us to use your name and/or logo, such determination made in our sole discretion. For the avoidance of doubt, you may not use the name, service marks or trademarks (including any logos) of Audian without first obtaining our prior, express written consent, such consent granted or denied at our sole discretion.
17. Dispute Resolution; Complete Agreement; Survival; And Equipment
17.1 Dispute Resolution
This Section describes what rights you and Audian possess if you and Audian have a dispute.
- A. Your Right to Dispute Charges or Services If you have a dispute about your invoice, including any charge to your account or any Services for which you were billed, you agree to notify Audian of the dispute within sixty (60) days after the initial posting of the invoice on which the disputed charge for Services first appears. IF YOU DO NOT PROVIDE WRITTEN NOTICE OF YOUR DISPUTE TO AUDIAN WITHIN THIS TIME PERIOD, THEN YOU AGREE THAT YOU HAVE FOREVER WAIVED YOUR RIGHT TO DISPUTE THE INVOICE, CHARGE OR SERVICE, AND THAT YOU CANNOT PURSUE SUCH DISPUTE (OR RAISE SUCH DISPUTE AS A DEFENSE) IN ANY LEGAL OR EQUITABLE ACTION, IN COURT, ARBITRATION, MEDIATION, OR OTHERWISE. Unless otherwise provided by law, you must pay disputed charges until the dispute is resolved. If you accept a credit, refund, or other compensation or benefit that Audian offers to resolve a disputed invoice, charge or other amounts for the Services or otherwise, then you agree that the issue has been fully and finally resolved.
- B. You Agree to Provide Audian an Opportunity to Resolve Informally Your Dispute Before you may pursue any dispute (or raise such dispute as a defense) in court or arbitration against Audian for any claims, including claims related in any way to the Services, you must first send a written description of your claim to Audian at the following address: Audian, 11232 120th Ave NE, Suite 206, Kirkland, Washington 98033, and you must allow Audian a reasonable opportunity to resolve your dispute. Your written notice must describe the problem in reasonable detail, and identify or enclose all relevant documents and information. You and Audian agree to negotiate in good faith with each other to try to resolve your claim. If you and Audian do not reach a resolution of your dispute within sixty (60) days after Audian receives your written notice of claim, you may pursue your claim in arbitration or, solely to the extent specifically provided below, in court.
- C. Arbitration You and Audian agree to arbitrate all disputes between the parties, except as provided in this subsection (c). You agree that if you fail to pay in full any and all amounts you owe when they are due, Audian may assign your account for collection, and Audian and/or the collection agency may pursue in court those claims that are limited to the collection of past due amounts and any interest or cost of collection permitted by law or this Agreement. (However, Audian disclaims any and all liability, and you relieve Audian from any and all liability, with respect to the conduct of any such collection agency.) In addition, Audian may seek injunctive relief in any court with respect to any violation of the patent, trademark, service mark, copyright, trade secret, and/or other intellectual property rights of Audian or of any third party or misuse of the Services.
- D. NOTWITHSTANDING THE PRIOR PARAGRAPH, YOU MAY CHOOSE TO PURSUE YOUR CLAIM IN COURT AND NOT BY ARBITRATION IF: YOUR CLAIM QUALIFIES FOR SMALL CLAIMS COURT IN KING COUNTY, WASHINGTON, IN WHICH CASE YOU MAY INITIATE PROCEEDINGS IN SUCH SMALL CLAIMS COURT. EXCEPT AS PROVIDED IN THE FOREGOING AND THE ARBITRATION PROVISION APPLIES, THEN EITHER YOU OR AUDIAN MAY START AN ARBITRATION PROCEEDING. IF YOU START THE ARBITRATION, YOU MUST SEND A LETTER REQUESTING ARBITRATION AND DESCRIBING YOUR CLAIM TO AUDIAN. THE AMERICAN ARBITRATION ASSOCIATION'S ("AAA") COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER-RELATED DISPUTES (COLLECTIVELY, THE "AAA RULES"), AS MODIFIED BY THIS AGREEMENT, WILL GOVERN THE ARBITRATION; PROVIDED, HOWEVER, THAT UPON AUDIAN'S ELECTION AND NOTIFICATION TO YOU AND THE AAA, THE ARBITRATION WILL BE BASED SOLELY ON THE PARTIES' WRITTEN SUBMISSIONS. THE AAA RULES ARE AVAILABLE ONLINE AT WWW.ADR.ORG, OR BY CALLING THE AAA AT 1-800-778-7879. THE PARTY INITIATING THE ARBITRATION WILL ADVANCE ALL ARBITRATION FILING FEES AND ARBITRATOR’S COSTS AND EXPENSES. EACH PARTY IS RESPONSIBLE FOR ALL ADDITIONAL COSTS SUCH PARTY INCURS IN THE ARBITRATION, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ OR EXPERT WITNESSES. IF THE ARBITRATION PROCEEDING IS DECIDED IN FAVOR OF THE PARTY INITIATING THE ARBITRATION, THE OTHER PARTY SHALL REIMBURSE THE FEES AND COSTS ADVANCED ONLY UP TO THE EXTENT AWARDABLE IN A JUDICIAL PROCEEDING. IF THE ARBITRATION PROCEEDING IS NOT DETERMINED IN FAVOR OF THE PARTY INITIATING THE ARBITRATION, THE OTHER PARTY SHALL NOT BE REQUIRED TO REIMBURSE THE OTHER FOR ANY OF THE FEES AND COSTS ADVANCED BY AUDIAN. IF A PARTY ELECTS TO APPEAL AN AWARD TO A THREE-ARBITRATOR PANEL, THE PREVAILING PARTY IN THE APPEAL SHALL BE ENTITLED TO RECOVER ALL REASONABLE ATTORNEYS’ FEES AND COSTS INCURRED IN THAT APPEAL. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS ARBITRATION PROVISION, AUDIAN WILL PAY ALL FEES AND COSTS THAT IT IS REQUIRED BY LAW TO PAY. ALL ISSUES ARE FOR THE ARBITRATOR TO DECIDE, EXCEPT THAT ISSUES RELATING TO THE SCOPE AND ENFORCEABILITY OF THE ARBITRATION PROVISION ARE FOR A COURT TO DECIDE. UNLESS AUDIAN AND YOU AGREE OTHERWISE IN WRITING, ANY ARBITRATION HEARINGS WILL TAKE PLACE IN KING COUNTY, WASHINGTON. ONE ARBITRATOR, WHO IS SELECTED UNDER THE AAA RULES AND WHO HAS EXPERTISE IN CONSUMER DISPUTES IN THE WIRELESS INDUSTRY, WILL CONDUCT THE ARBITRATION. IF NO ARBITRATOR POSSESSING SUCH EXPERTISE IS AVAILABLE, THEN THE ARBITRATION WILL BE CONDUCTED BY A SINGLE ARBITRATOR WHO IS SELECTED BY THE MUTUAL WRITTEN APPROVAL OF YOU AND AUDIAN. THE DECISIONS OF THE ARBITRATOR WILL BE BINDING AND CONCLUSIVE ON ALL PARTIES. JUDGMENT UPON ANY AWARD OF THE ARBITRATOR MAY BE ENTERED BY ANY COURT OF COMPETENT JURISDICTION. THIS PROVISION WILL BE SPECIFICALLY ENFORCEABLE IN ANY COURT. THE ARBITRATOR WILL NOT HAVE ANY AUTHORITY TO AWARD ANY SPECIAL OR PUNITIVE DAMAGES, EXCEPT AS EXPRESSLY PERMITTED BY THIS AGREEMENT. EXCEPT SOLELY TO THE EXTENT GOVERNING LAW REQUIRES A LONGER PERIOD, ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE BROUGHT WITHIN TWO (2) YEARS AFTER THE CLAIM ARISES, OR THE CLAIM WILL BE PERMANENTLY BARRED.
- E. Waiver of Right to Participate in a Class Action and Waiver of Jury Trial YOU AND AUDIAN HEREBY AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION. NEITHER YOU NOR AUDIAN SHALL BE A MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION OR PROCEEDING ON BEHALF OF THE GENERAL PUBLIC (SUCH AS ACTING AS A PRIVATE ATTORNEY GENERAL CAPACITY). YOU FURTHER EXPRESSLY AGREE THAT THE ARBITRATOR OR COURT SHALL NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
- F. Severability If any clause within this Dispute Resolution provision (other than the class action waiver clause identified above) is found to be illegal or unenforceable, that clause will be severed from this Dispute Resolution provision, and the remainder of this Dispute Resolution provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the entire Dispute Resolution provision will be unenforceable, and the dispute will be decided by a court.
- G. In the event this entire Dispute Resolution provision is determined to be illegal or unenforceable for any reason, or if a claim is brought in a Dispute that is found by a court to be excluded from the scope of this Dispute Resolution provision, you and Audian have each agreed to waive, to the fullest extent allowed by law, any trial by jury.
- H. Exclusions from Arbitration YOU AND Audian AGREE THAT THE FOLLOWING WILL NOT BE SUBJECT TO ARBITRATION: (1) ANY DISPUTE OVER THE VALIDITY OF ANY PARTY’S INTELLECTUAL PROPERTY RIGHTS; (2) ANY DISPUTE RELATED TO OR ARISING FROM ALLEGATIONS ASSOCIATED WITH UNAUTHORIZED USE OR RECEIPT OF ANY SERVICES or theft, or piracy of service; (3) with respect to claims for unpaid invoices 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; and (4) Audian may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect the rights or property of Audian, pending the completion of arbitration.
- I. Survival This Dispute Resolution provision shall survive the Termination, Cancellation or expiration of your customer relationship with Audian.
17.2 Complete Agreement
17.4 Purchased Equipment
You may be required to purchase telecom Equipment ("Purchased Equipment") in order to utilize the Services. If so, we will notify you before the Initial Term of this Agreement begins. Procuring and maintaining that Purchased Equipment is your sole responsibility. Audian may, at your request, facilitate the provision of Purchased Equipment from a third party supplier or resell certain equipment. While we suggest and resell some Purchased Equipment brands and facilitate your purchase of some Purchased Equipment as an accommodation, the original equipment manufacturer and not Audian shall be responsible for any Purchased Equipment defects, if applicable. Audian will pass through all original equipment manufacturer warranties for the Purchased Equipment to you. Audian shall have no liability to you of any nature regarding such Purchased Equipment. Please check the Purchased Equipment provider’s website for warranty, return rules and other terms and conditions applicable to such third party equipment supplier. When purchased through Audian, best efforts will be made to facilitate equipment repair. To do so, please create a ticket in the support form located at https://support.audian.com with the nature of the problem. Provided the Purchased Equipment is within the warranty period provided by the manufacturer, Audian will assist with replacement and repair. If outside of the warranty period of the manufacturer, Audian will provide a quote for repair or replacement of the defective hardware. You must pay all shipping fees.
17.5 Leased/Rental Equipment
Lease/Rental fees are subject to all the terms of the contract. All equipment must be returned upon cancellation of services. All returned equipment must be in good working order. You must pay all shipping fees. Retail pricing will be billed through for any damaged equipment. Retail pricing will be billed through for any equipment not returned prior to the end date of your termination of services. These terms apply to Rental Equipment that is provided for Free on a monthly basis as part of your contract as well.
18. VoIP 911 Service Details
18.1 Non Availability of Traditional 911 or E911 Dialing Service
YOU UNDERSTAND THAT 911 SERVICE IS ONLY PROVIDED BY AUDIAN IP DESK PHONES AND SOME SOFTPHONES ON DESKTOP ONLY DEVICES, YOU FUTHER UNDERSTAND THAT 911 SERVICE IS NOT PROVIDED OR AVAILABLE ON ALL AUDIAN DEVICES, OR WITH ALL AUDIAN SERVICES (INCLUDING WITHOUT LIMITATION SOME SOFTPHONES). IF YOU SUBSCRIBE TO ONE OF THE OTHER AUDIAN SOFTWARE APPLICATIONS OR SERVICES (OR YOUR SOFTPHONE DOES NOT PROVIDE E911), YOU MUST MAKE ALTERNATIVE ARRANGEMENTS TO PLACE 911 CALLS, SUCH AS USING A TRADITIONAL WIRELINE OR CELLULAR TELEPHONE, AND YOU SHOULD NOT RELY ON YOUR AUDIAN SERVICE TO CALL 911.
YOU UNDERSTAND THAT THE AUDIAN OR ANY 3RD PARTY SOFTPHONE APPLICATIONS MAY USE YOUR DEVICE'S DIALER AND CELLULAR TELEPHONE SERVICE TO MAKE 911 CALLS. IF YOUR DEVICE DOES NOT HAVE CELLULAR TELEPHONE SERVICE, YOU WILL NOT BE ABLE TO CALL 911 FROM THE AUDIAN OR 3RD PARTY APPLICATION.
Audian does offer a 911-type dialing service (“VoIP 911 Service”) in the U.S., but it does operate differently than traditional 911 service in several ways. We are required by the FCC to advise you of the circumstances under which 911 may not be available or may be in some way limited by comparison to traditional 911 service.
18.2 Services Outages
Circumstances that will cause your 911 call to not connect at all include:
After restoration of any disruption or loss of service may result in a delay before 911 service works such as time needed for your Service to register after a power outage. Please contact Audian Support at any time for training on how to enable service or to verify 911 is working after a disruption in service.
18.3 Description of 911-Type Dialing Capabilities - Activation Required
Traditional 911 service automatically sends Your 911 call to the appropriate local emergency responder, or Public Safety Answering Point ("PSAP"), based on Your telephone number. Traditional Enhanced 911 service (also known as E911) automatically sends Your 911 call to the appropriate PSAP along with your registered address and telephone number. Audian service and the Audian Portal permits you to obtain a telephone number that may not correspond to your physical address, and therefore requires registration of this number to this address. For example, your registered location (“Registered Location”) may be in Seattle, Washington, but you obtain an additional number in Buffalo, New York. Due to this, your VoIP 911 Service functions differently in the following certain respects:
18.4 Failure to Designate the Correct Physical Address When Activating E911 Dialing
As discussed above, you must register the Registered Location where you will be using VoIP service for each VoIP phone line, therefore, if you have three Audian lines of service in three separate physical locations, each such location must be registered correctly. As part of the Audian onboarding process, we will obtain your Registered Location and will not provide service until we have obtained an initial Registered Location. Regardless of what address you register, in some circumstances, such as unavailability of direct routing to PSAPs or the use of portable devices to access the VoIP Service, emergency calls will be routed to the National Emergency Call Center.
You may update your Registered Location by logging on to the Audian portal at https://my.audian.com, by submitting a support request at https://support.audian.com or by sending the Audian E911 form or identical information to [email protected].
18.5 Requires Notification if You Change Your Number or Add or Port New Numbers
You acknowledge and understand that 911 dialing does not function if you change your phone number or (for such newly added or ported numbers) if you add or port new numbers to your account, unless and until you have successfully notified and confirmed with Audian of the correct address for your changed, newly added or newly ported number.
18.6 Requires Notification if You Move or Change Location
You acknowledge and understand that 911 dialing does not function properly or at all if you move or otherwise change the physical location of your Equipment to a different street address, unless and until you have successfully notified Audian of such change in location and the correct address. To request a change, please complete the ticket form located at https://support.audian.com. Failure to provide the current and correct physical address(es) and location(s) of your Equipment will result in any 911 dialing you may make being routed to an incorrect local emergency service provider.
18.7 Automated Number Identification and Emergency Caller ID Number.
Audian’s system is configured in most instances to send the automated number identification information; however, one or more telephone companies, not Audian, route the traffic to the PSAP and the PSAP itself must be able to receive the information and pass it along properly, and PSAPs are not yet always technically capable of doing so. At onboarding, the Emergency Caller ID will be set by Audian; however, you are able to make changes to this and are responsible for ensuring the proper number is set. Additionally, for SIP trunking clients, the Emergency Caller ID number must be set on your equipment and will not be added or modified by Audian. 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 Services are not operational for any reason, including without limitation those listed elsewhere in this Agreement.
18.8 Non-Voice Systems
You acknowledge that all non-voice communications equipment, including but not limited to, alarm systems that are set up to make automatic phone calls, modems, satellite television systems, or some hearing impaired devices, and medical monitoring devices ("Non-Voice Systems"), may not be compatible with the Services or may be interrupted or permanently disabled by installation or operation of the Services. You are solely responsible for the operation and use of such Non-Voice Systems with the Services, including taking any necessary steps, as permitted under your agreements with Audian, to ensure compatibility between such Non-Voice Systems and the Services. You have no claim against Audian for interruption or disruption of such systems by the Services
18.9 Notify All Users of 911 Limitations
You should and agree to inform all business colleagues, household residents, guests, and other persons who may be present at the physical location where You utilize the VoIP Service that 911 may not be available or may be in some way limited in comparison to traditional 911 service.
18.10 Limitation of Liability and Indemnification
You acknowledge and understand that Audian’s liability is limited for any Services outage and/or unavailability and/or inability to dial 911 from your line or to access emergency service personnel, as set forth in this Agreement. You agree to and hereby defend, indemnify, and hold Audian and the Audian Parties (and any other service provider who furnishes services to you in connection with this Agreement or the Services) harmless, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees) by, or on behalf of, you or any third party or user of your Services relating to the absence, failure or outage of the Services, including unavailability of 911-type services or 911 dialing and/or inability of you or any third person or party or user of your Services to be able to dial 911 or to access emergency service personnel. The indemnification, defense and hold harmless obligations in this Section are in addition to your indemnification obligations in Section 13.
Audian is not responsible or liable to you for its failure to perform any of its obligations contributed to by causes or circumstances beyond its reasonable control including, without limitation, Internet outages, communications and cable outages, failure of third party services or products that interface or interact with the Services, change in law, rule, or regulations, labor strikes, lockouts, pandemics, supply shortages, earthquake, fire, flood, war or acts of terrorism, acts of God, criminal acts (e.g. computer hacking that circumvents reasonable security measures), bankruptcy of merchants or licensees, an inability to obtain necessary equipment or services, or any acts, orders or proclamations of governmental bodies or authorities.
19. Consent to use of Electronic Signatures and Records
As a convenience and courtesy to you, Audian provides access to its Services online which may require you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree that by clicking “I Agree” or “I Accept” or words of a similar nature anywhere on an Audian website:
20. Termination by Audian
IN ADDITION TO THE OTHER TERMINATION PROVISIONS SET FORTH IN THIS AGREEMENT, AUDIAN MAY LIMIT, SUSPEND OR TERMINATE YOUR SERVICES OR THIS OR ANY AGREEMENT BETWEEN AUDIAN AND YOU, WITH OR WITHOUT NOTICE FOR ANY GOOD CAUSE, INCLUDING, WITHOUT LIMITATION, if you or any user on your account: (i) breaches this Agreement; (ii) pays late; (iii) provides Audian with any inaccurate or incomplete information; (iv) damages or tampers with, or allows anyone else to damage or tamper with, any Equipment; (v) incurs charges greater than any billing or credit limitation on your account (even if Audian has not yet billed for those charges); (vi) transfers Services to another person without Audian's advance written consent; (vii) becomes insolvent, goes bankrupt, or threatens bankruptcy (except as prohibited by law); or (viii) acts in an abusive, harassing or malicious manner with Audian personnel, other Audian customers, or any other third parties.
21. Copyright Infringement Notices
If you are a copyright owner and believe your copyrighted material has been used on our website in a manner that constitutes copyright infringement, please report the violation to our designated copyright agent by sending written notice to Audian as follows: Audian, Attn: Copyright Infringement Claims Agent, 11232 120th Ave NE Suite 206, Kirkland, Washington 98033. Please include the following information: (1) a detailed description of the allegedly infringed copyrighted material, (2) a description of the location of such material on the website, (3) your contact information, including address, telephone number, and email address (if any), (4) your statement that you have a good faith belief that the allegedly infringing use is not authorized by the copyright owner, its agent or the law, (5) your statement, made under penalty of perjury, affirming that the information in your notice is accurate and that you are authorized to act on the copyright owner's behalf, and (6) an electronic or physical signature of the copyright owner or someone authorized on the owner's behalf to assert copyright infringement and to submit the statement.
22. Governing Law and Venue
This Agreement, and any disputes arising or related in any way to this Agreement or the Services, will be governed by the laws of the State of Washington, without regard to its choice of law principles. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. You hereby irrevocably and unconditionally consent and submit that the exclusive jurisdiction and venue for any and all disputes regarding this Agreement shall lie in the federal, state, and local courts of Seattle, Washington, as supplemented with the Dispute Resolution provision above.
23. 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 you shall not export, directly or indirectly, re-export, divert, or transfer any portion of the Services or Equipment, including, without limitation, to any destination, company, or person restricted or prohibited by U.S. export controls.
No joint venture, partnership, employment, or agency relationship exists between you, Audian or any third-party provider as a result of this Agreement or use of the Services. You agree that the failure of Audian to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Audian in writing. The section titles in Agreement do not limit the other terms of this Agreement.
This document was last amended on September 15 2022