This section of the Agreement governs both the Service and any devices, such as an IP phone, Multimedia Terminal Adapter, Modem, Analog Telephone Adapter or any other IP connection device (“Device”) as well as all power cables, network cables, modems or other incidental equipment (individually and collectively with the Device, the "Equipment"), used in conjunction with the Service.
1.1 Term. See User Agreement, Section I, above.
1.2.1 Residential Use of Service and Device. If You have subscribed to CLEARBAND'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, CLEARBAND reserves the right to immediately terminate or modify the Service, if CLEARBAND 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.
1.2.2 Small Business Use of Service and Device - Prohibition on Resale. If You have subscribed to CLEARBAND's Small Business services, the Service and Device are provided to You as a small 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 CLEARBAND Small 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. CLEARBAND reserves the right to immediately terminate or modify the Service, if CLEARBAND determines, in its sole discretion, that Customer's Service is being used for any of the aforementioned activities.
1.2.3 Bundled Service: You acknowledge and agree that the Service is offered on a bundled basis and cannot be separated. You acknowledge that these services (broadband, 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 services provided by CLEARBAND, You will terminate your Service with CLEARBAND.
1.2.4 Equipment Non-Return Fee: You will be charged an equipment non-return fee of $500.00 per Device (or such greater amount as may determined by CLEARBAND based on the actual costs if such devices) obtained from CLEARBAND upon termination of Service for any reason regardless if such termination is by CLEARBAND or you. The equipment non-return fee becomes due and payable immediately upon termination and will be billed/charged directly to your credit card. If You have multiple Devices, You will be charged an equipment non-return fee of $500.00 per Device for each Device belonging to CLEARBAND 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. CLEARBAND will not credit You if the Device(s) is damaged or not in its original condition as received by You, ordinary wear and tear accepted. In the event You disconnect multiple services, CLEARBAND will issue You a credit for all equipment non-return fees upon receipt of all Devices in accordance with this Section. Further, CLEARBAND reserves the right to charge You for other Equipment (including, without limitation, incidental equipment) that is not 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 CLEARBAND'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. CLEARBAND reserves the right to terminate your service immediately and without advance notice if CLEARBAND, in its sole discretion, believes that You have violated any of the above restrictions, or any restrictions contained in any of the Operating Policies, 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 becomes 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 You agree to indemnify and hold harmless CLEARBAND, its officers, directors, employees or agents from or against any and all liability for any such use that fails to comply with this Section 1.3.1. If CLEARBAND, in its sole discretion believes that You have violated the above restrictions, or in response to a Government request for information, CLEARBAND may forward the objectionable material, as well as your communications with CLEARBAND 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, CLEARBAND 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, and You will indemnify and hold harmless CLEARBAND against any and all liability arising out of such actions.
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 or interruption of line of sight (transmission path). 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 or the path is cleared. 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 User in conjunction with providing the Service, or embedded in the Device, and all services, information, documents and materials provided or offered by CLEARBAND and on CLEARBAND's website(s) are protected by trademark, copyright or other intellectual property laws and international treaty provisions. You acknowledge that You are not given any license to use the firmware or software used to provide the Service or provided to User 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 CLEARBAND, which CLEARBAND 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 CLEARBAND 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 any Device, or to perform a factory reset of any Device, without express permission from CLEARBAND in each instance. Doing so shall constitute a violation of this Agreement.
1.7 Theft of Service: You agree to notify CLEARBAND immediately, by calling the CLEARBAND 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 CLEARBAND is informed of the theft.
1.8 Delivery or Warranty of Device; Ownership of the Device: If User 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 CLEARBAND's customer care department immediately. Warranty coverage varies depending on the type of Device that User chooses. If User purchased the Device new from CLEARBAND and the Device included a manufacturer’s limited warranty at the time of purchase, User must refer to the manufacturers limited warranty document for information on the limitation and disclaimer of certain warranties. CLEARBAND does not separately warrant any Devices or Equipment it sells and User agrees that it accepts its Device "as is" and that User is not entitled to replacement or refund from CLEARBAND in the event of any defect. You understand that any Device provided and installed by CLEARBAND for use with the Service is and shall remain the exclusive property of CLEARBAND 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 User.
1.9 Number Transfer on Service Termination: CLEARBAND may, solely at the Company's discretion, release the telephone number that was ported in to CLEARBAND by You and used in connection with your Service provisioned by CLEARBAND 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 in writing and (iii) your account has been paid in full including the equipment non-return fee.
1.10 Service Distinctions: You acknowledge and understand that the VoIP Service has different technical limitations than a traditional telephone service. Technical differences exist between traditional telephone service and this Service offering provided by CLEARBAND. 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.
2.1 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 CLEARBAND-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 CLEARBAND, governmental and/or industry technical approval, availability and restrictions, with specific confirmation from CLEARBAND, as described herein. Such request must contain specific information as requested, and as may be modified by CLEARBAND 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 CLEARBAND 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.
CLEARBAND 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 CLEARBAND Service and Device(s). If You activate CLEARBAND 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 CLEARBAND 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 to this Agreement and any amendments hereto that may be posted from time to time on the CLEARBAND 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 CLEARBAND 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. CLEARBAND can only route 911-type calls within certain geographic areas, from CLEARBAND-provided devices and IP phone primary number assignments designated by CLEARBAND as geographically appropriate, as locations within such areas may be confirmed by CLEARBAND 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 CLEARBAND 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 User 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 User 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 CLEARBAND, ITS OFFICERS, DIRECTORS, MEMBERS, 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 CLEARBAND. 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 CLEARBAND 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 CLEARBAND 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 the "Dial 911" link on your dashboard, and until such later date that such activation has been confirmed to You through a confirming email. 911 dialing must be re-activated. Although You may have activated 911 dialing with your former CLEARBAND 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 CLEARBAND 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 CLEARBAND 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 CLEARBAND 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 CLEARBAND 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 CLEARBAND 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. CLEARBAND'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 CLEARBAND 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 CLEARBAND for interference with or disruption of such systems due to the Service
3.1 Limitation of Liability: CLEARBAND 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 majeure 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 User; or 8.) any other cause that is beyond CLEARBAND'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. CLEARBAND'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 CLEARBAND, its officers, directors, Members, employees, affiliates or agents or any other service provider who furnishes services to User 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 CLEARBAND was informed of the likelihood of any particular type of damages.
3.3 Indemnification: User agrees to defend, indemnify, and hold harmless CLEARBAND, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to User 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, User or any third party or user of User's Service, relating to this Agreement, the Service, including 911 dialing, or the Device. This paragraph shall survive termination of this Agreement.
3.4 No Warranties on Service: CLEARBAND 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. CLEARBAND 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 CLEARBAND nor its officers, directors, members, employees, affiliates or agents or any other service provider or vendor who furnishes services or products to User in connection with this Agreement or the Service will be liable for unauthorized access to CLEARBAND's or User's transmission facilities or premises equipment or for unauthorized access to, or alteration, theft or destruction of, User'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 CLEARBAND's or its service provider's or vendors' negligence. Statements and descriptions concerning the Service or Device, if any, by CLEARBAND or CLEARBAND'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 Service. You shall assure that your or User's use of the Service and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. CLEARBAND reserves the right to terminate or suspend affected portions of the Service, and/or remove Your or Users' content from the Service, if CLEARBAND determines that such use or content does not conform with the requirements set forth in this Agreement or interferes with CLEARBAND's ability to provide Service to You or others or receives notice from anyone that Your or Users' use or Content may violate any laws or regulations. CLEARBAND'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 CLEARBAND against any and all liability arising from the content transmitted by or to You or to Users using the Service. As used herein "User" means any person, whether authorized or unauthorized, using the Service and/or Device provided to You.
CLEARBAND is not liable for any lack of privacy that may be experienced with regard to the Service.
By utilizing CLEARBAND’s services I hereby agree to CLEARBAND’s Terms and Conditions for Broadband Data, and the Terms and Conditions for Voice over IP (VoIP) services and the User Agreement stated above regarding the use of CLEARBAND services.